People v. Too

Decision Date14 February 1884
PartiesPEOPLE v. AH TOO
CourtIdaho Supreme Court

INSTRUCTIONS.-In charging a jury the court should give only such instructions as are pertinent to the evidence.

SAME-CIRCUMSTANTIAL EVIDENCE.-There was an absence of circumstantial evidence at the trial-the evidence being that of eye-witnesses to the homicide; defendant asked the following instruction: "If the evidence introduced by the prosecution to establish the guilt of the defendant be regarded by the jury as circumstantial, and the circumstances be themselves doubtful the jury must examine and inquire very closely into the adequacy of the motive of the defendant for committing the offense charged." Held, that such instruction was properly refused.

SAME-ABSTRACT PROPOSITIONS.-Instructions giving abstract propositions of law, but which have no application to the facts proven should not be given.

APPEAL from District Court, Ada County. Reversed.

Judgment reversed, a new trial ordered, and case remanded.

Fremont Wood and G. W. Adams, for Appellant.

The rule is, upon a motion for a new trial on the ground of newly discovered evidence, if it is probable that the verdict would be changed, or if it is doubtful how it would affect the verdict, the motion should be granted. (Jones v Hartley, 3 Whart. 189; Windham Co. Bank v. Kendall, 7 R. I. 77; Flannagan v. Newberg, 1 Idaho, 78; 3 Graham & Waterman on New Trials, 1044; State v. Logan, 1 Nev. 509.) In capital cases, when upon a review of the whole testimony the court is not satisfied with the verdict, a new trial will be granted. (9 United States Digest, p. 635, sec. 2643; Raines v. State, 33 Ga. 571; 9 United States Digest, sec. 2648; Falk v. People, 42 Ill. 331; Manuel v. People, 48 Barb. 548; 9 United States Digest, 635, sec. 2658; 9 United States Digest, 636, sec. 2668; State v. Packwood, 26 Mo. 340.) The court erred in refusing defendant's instruction, viz.: "If the evidence introduced by the prosecution to establish the guilt of defendant be regarded by the jury as circumstantial, and the circumstances of themselves doubtful, the jury must examine and inquire very closely into the adequacy of defendant's motive for committing such an offense as charged." (1 Parker's Criminal Reports, p. 655; also p. 32.) To refuse such instructions as properly arise upon the record is error. (3 Graham & Waterman on New Trials, 710.)

T. D. Cahalan, District Attorney, for the People.

A new trial should not be granted on the ground of newly discovered evidence unless there is either a total deficiency of evidence or it preponderates so greatly against the verdict as to render it clear that the jury acted under the influence of passion or prejudice. (People v. Manning, 48 Cal. 337.) It must be shown that newly discovered evidence could not have been obtained by reasonable diligence, that it is material, not merely cumulative and corroborative or collateral. (Hilliard on New Trials, 375.) Where the evidence is conflicting, the verdict will not be set aside. (Mootry v. Hawley, 1 Idaho, 543; Ainslie v. Idaho etc. Printing Co., 1 Idaho, 641; People v. Gill, 45 Cal. 285; Giles v. State, 6 Ga. 276; 1 Archibald's Criminal Practice, 664.) In criminal cases, the presumption is in favor of the verdict. (Waller v. State, 4 Ark. 87; 1 Archibald's Criminal Practice, 663, note b; 3 Graham & Waterman on New Trials, 240.)

BUCK, J. Morgan, C. J., and Prickett, J., concurred.

OPINION

BUCK, J.

Ah Too was indicted, tried, convicted, and sentenced at the November term of the district court, 1882, in Ada county, on an indictment for murder in the killing of Ah You. This appeal is taken from the judgment and from the order of the court overruling the motion for a new trial. The errors assigned in the bill of exceptions, and insisted upon in the argument on appeal are: 1. The refusal of the court to give a certain instruction at request of the defendant; and 2. The order of the court overruling the motion for a new trial. The instruction asked by defendant and refused by the court is as follows: "If the evidence introduced by the prosecution to establish the guilt of the defendant be regarded by the jury as circumstantial, and the circumstances by themselves doubtful, the jury must examine and inquire very closely into the adequacy of the motive of the defendant for committing the offense charged." The exception to the refusal of the court to give this instruction seems based, by a reference in appellant's brief, upon a principle in 3 Graham & Waterman on New Trials, 710, where it is stated: "To refuse such instructions as properly arise in the case is error." This proposition is conceded to be good law, and it suggests the question, Did the instruction asked for properly arise in this case? While "there is no...

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7 cases
  • State v. Mcmahan, 6385
    • United States
    • United States State Supreme Court of Idaho
    • 16 Enero 1937
    ...218; People v. Walter, 1 Idaho 386; People v. O'Callaghan, 2 Idaho 156, 9 P. 414; Territory v. Evans, 2 Idaho 425, 17 P. 139; People v. Ah Too, 2 Idaho 44, 3 P. 10; People Armstrong, 2 Idaho 298, 13 P. 342; People v. Bernard, 2 Idaho 193, 10 P. 30; People v. Biles, 2 Idaho 114, 6 P. 120; Pe......
  • State v. Fleming
    • United States
    • United States State Supreme Court of Idaho
    • 11 Enero 1910
    ...Assistant, and Frank T. Disney, for Respondent. Only such instructions should be given as are pertinent to the evidence. (People v. Ah Too, 2 Idaho 44, 3 P. 10; Territory v. Evans, 2 Idaho 425, 17 P. The defendant did not act in self-defense in killing Langford, but was acting with a spirit......
  • Humbird Lumber Co. v. Morgan
    • United States
    • United States State Supreme Court of Idaho
    • 7 Julio 1904
    ......699;. State v. District Court, 13 Mont. 370, 34 P. 298;. State v. Webb, 34 Kan. 710, 9 P. 770; State v. Hunter, 3 Wash. 92, 27 P. 1076; State v. Lichtenberg, 4 Wash. 653, 30 P. 1056; State v. Superior Court, 14 Wash. 687, 45 P. 670; State v. McClinton, 17 Wash. 45, 48 P. 740; People v. Van. Tassel, 13 Utah 9, 43 P. 625.) In the district court for. Kootenai county, within the last two years, three decisions. have been rendered holding that an appeal would lie in behalf. of a taxpayer from an order made by the board of county. commissioners, sitting as a board of ......
  • State v. Hall
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    • United States State Supreme Court of Idaho
    • 8 Noviembre 1913
    ...question as to what ground the refusal of the trial court was based upon. Instructions must be pertinent to the evidence. (People v. Ah Too, 2 Idaho 44 (46), 3 P. 10; Territory v. Evans, 2 Idaho 425 (391), 17 P. State v. Peck, 14 Idaho 712 (719), 95 P. 515.) STEWART, J. Sullivan, J., concur......
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