State of Idaho v. Crump

• Decision Date: 08 February 1897
• Parties: STATE OF IDAHO v. CRUMP
• Court: Idaho Supreme Court

47 P. 814

5 Idaho 166

STATE OF IDAHO v. CRUMP

Supreme Court of Idaho

February 8, 1897

DISCRETION OF TRIAL COURT IN DISCHARGING JURY.-The trial court discharged the jury in the first trial after they had been out fifteen and one-half hours, without the consent of the defendant. Held, that it was not error, but in the discretion of the court under section 7905 of the Revised Statutes.

ASSISTANT COUNSEL FOR PROSECUTION.-It was not error for the court to appoint assistant counsel for the prosecution; such counsel having been employed by the county commissioners.

EVIDENCE-WHEN NOT ADMISSIBLE.-A statement made by a defendant while under arrest and in jail in charge of his accuser, and not connecting said defendant with the alleged crime, is not admissible in evidence. So decided by this court in State v Mason, 4 Idaho 543, 43 P. 63.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Reversed and remanded.

Lot L Feltham, for Appellant.

In capital cases the court has no power, without the consent of the prisoner, to discharge the jury because they have not agreed and declare they never can agree upon a verdict. (Commonwealth v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am Dec. 465; McCreary v. Commonwealth, 29 Pa. St. 325; O'Brian v. Commonwealth, 9 Bush (Ky.), 339, 15 Am. Rep. 715; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436; Commonwealth v. Fitzpatrick, 121 Pa. St. 115, 6 Am. St. Rep. 757, 15 A. 466.) The court erred in admitting in evidence, over defendant's objection, the deposition of Charles R. Eldredge, the state not having shown due diligence in securing his attendance at the trial, and defendant not having been permitted the privilege of cross-examination at the time the deposition was taken. (1 Greenleaf on Evidence, sec. 440; People v. Stock, 1 Idaho 222; Territory v. Evans, 2 Idaho 658, 658, 23 P. 115; Territory v. Chavez, 8 N. Mex. 528, 45 P. 1108.) The court erred in admitting in evidence, over the objection of defendant, the statement signed by defendant and marked exhibit 1, it being shown that the statement was made by defendant upon the advice and counsel of George W. Edwards, deputy sheriff, and Charles B. Eldredge, jailer, and was made while defendant was confined in jail, was sick, alarmed and excited, and was in great bodily fear of mob violence, and for the further reason that the statement was not a confession by defendant of the offense charged, but was an accusation of another person. (1 Greenleaf on Evidence, sec. 219, note a, sec. 220, note a, sec. 222; State v. Mason, 4 Idaho 543, 43 P. 63; People v. Barrie, 49 Cal. 345; People v. Thompson, 84 Cal. 598, 24 P. 386; Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, and note; Barnes v. State, 36 Tex. 356; Redd v. State, 69 Ala. 255; Brown v. People, 91 Ill. 506; State v. Jones, 54 Mo. 478; People v. Mondon, 103 N.Y. 211, 57 Am. Rep. 709, 8 N.E. 496; State v. Wintzingerode, 9 Or. 153; 1 Bishop on Criminal Procedure, secs. 1232-1236.) The element of kindness in defendant's character was a matter of clear uncontradicted proof in the evidence, and an important element in the case. Omitting the word "kindness" from the instructions was a misconstruction of the evidence, and tended to mislead the jury. (1 Greenleaf on Evidence, sec. 54, note 3; People v. Dogget, 62 Cal. 27.)

R. E. McFarland, Attorney General, and Hawley & Puckett, for the State.

The court in its discretion may order a jury discharged when it appears there is no reasonable probability of an agreement, and such discharge implies that the defendant will be tried anew. (Rev. Stats., secs. 7905, 7906; People v. Stock, 1 Idaho 218; People v. Harding, 53 Mich. 48, 487, 51 Am. Rep. 95, 18 N.W. 555, 19 N.W. 155; People v. Shotwell, 27 Cal. 394; Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272; United States v. Perez, 9 Wheat. 580; People v. Green, 13 Wend. 57; People v. Goodwin, 18 Johns. 200, 9 Am. Dec. 203.) The statute, as well as the decisions of this court, countenance the employment of special counsel in criminal cases. (Rev. Stats. sec. 7855; State v. Hurst, 4 Idaho 345, 39 P. 554.) Depositions taken before a committing magistrate may be used at the trial, if the attendance of the witness cannot be procured. (Territory v. Evans, 2 Idaho 651, 23 P. 232.) If the statement is made by a party under arrest voluntarily and without any threats or promises of reward, it is admissible. (People v. Rodundo, 44 Cal. 538; People v. Long, 43 Cal. 444; People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73; Rice on Criminal Evidence, 490; Territory v. McKern, 3 Idaho 15, 26 P. 123.) The time at which threats were uttered goes not to the admissibility, but to the weight to be given. (Cribbs v. State, 86 Ala. 613, 6 So. 109.) The remoteness makes no difference as to their competency. (Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; White v. Territory, 3 Wash. Ter. 397, 19 P. 37; People v. Brown, 76 Cal. 573, 18 P. 678; Griffin v. State, 90 Ala. 599, 8 So. 670.) Instruction No. 11 given by the court correctly states the law. (Sackett on Instructions, 641; Roscoe's Criminal Evidence, 55; Connor v. State, 34 Tex. 659; Riley v. State, 4 Tex. App. 538; State v. Hollenscheit, 61 Mo. 302.) Instruction No. 14, as given by the court, is a correct interpretation of the law. (Rice on Criminal Evidence, 446, 447, and authorities cited.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

The defendant was informed against for the murder of Thomas Ronan. A trial was had on May 12, 1896, upon which trial the case was submitted to the jury at 11 o'clock P. M. on the 16th of May, and at half past 2 o'clock P. M. of the following day the jury was discharged by the court, they having failed to agree upon a verdict. On May 21, 1896, another jury was impaneled, and another trial was had, resulting in a verdict against the defendant of guilty of murder in the second degree, with two special verdicts in favor of the state upon defendant's two special pleas of "former acquittal" and "once in jeopardy," interposed by defendant upon said second trial. The facts in regard to the homicide are briefly as follows: The deceased, Thomas Ronan, was a farmer residing in Canyon county, at Lower Boise, about eleven miles from the town of Caldwell, with his family, consisting of a wife and two children, of the respective ages of seven years and four years. On the evening of May 13, 1895, the deceased partook of his supper at half past 6 or near 7 o'clock, which consisted of fried beefsteak, fruit and bread. Shortly after supper, deceased went to his field, to change the water (irrigating). Returning, he lighted the lamp, and sat down to read the newspaper. At about 9 o'clock he called to his wife, who was in another room, that he heard a noise in the wire fence, and he would go down and see if horses were in the wire. Thereupon he drew on his boots, and went out. The next morning deceased was found dead about two hundred and fifty or three hundred yards from the house. There was a wound, apparently made by some blunt instrument, in his forehead, and two more of the same character upon the back of his head. There was no evidence of a struggle near where the body lay. No footprints were visible. The clover was eight or ten inches high where the body was found. A reward of $ 1,000 had been offered for the apprehension and conviction of the party or parties who committed the homicide. On the eleventh day of June, 1895, the defendant was arrested at the town of Payette, in Canyon county, upon the complaint of one Charles R. Eldridge, for the murder of said Thomas Ronan. The circumstances attending the arrest of the defendant were peculiar. It seems from the evidence that the defendant and Eldridge had been on a trip to Vale, Malheur county, Oregon, and, returning, had stopped at Payette.

Edwards the deputy sheriff, who arrested Crump, states as follows: "It was between the hours of 6 and half past 6 on the eleventh day of June, 1895, Mr. Eldridge came to my residence in Payette, and asked me if I was the deputy sheriff. I told him I was, and he says, 'I want you to arrest a man for the murder of Ronan.' I asked him his name, and he told me it was Matt Crump. I asked him what ground he had for suspecting this man for the killing of Ronan. He said, as he was riding from Riverside to Vale, Oregon, that Matt Crump told him that he killed Tom Ronan. I told him I would go in and finish my supper, and come down after supper, and arrest him. He told me he would go and get his supper over at the restaurant. I told him I would see him down in front of the post office in Payette. As I went down, Eldridge and Crump came out of the restaurant. He came over to me, and gave me an introduction to him. I told him, says I: 'You look like the man I am looking for. I am going to arrest you for the murder of Thomas Ronan.' The defendant did not say nothing whatever. He did not deny it or say anything at all about it. I took my handcuffs out of my pocket, and put them on him, and, as I put them on him he commenced to sweat. I thought the man was sick. The sweat dropped actually from his face as thick as small-sized shot. The man was sick. I asked him if he was sick, and he said he drunk a couple of glasses of beer over to Ontario, and it was very warm, and he did not feel well. I took him down to the jail, and sent Eldridge to get a bucket of water. This was C. R. Eldridge, the man who was afterward a witness in this case. The defendant never said nothing to me in regard to the charge, or in answer to my statement that I arrested him for the Ronan murder. After Eldridge went for the bucket of water, defendant asked me if that fellow gave him away, meaning Eldridge. I asked him, 'Who?' He says, 'Eldridge.' Says I, 'What for did...