State of Idaho v. Behler

• Decision Date: 24 February 1944
• Docket Number: 7130
• Citation: 146 P.2d 338,65 Idaho 464
• Parties: STATE OF IDAHO, Respondent, v. WILLIAM BEHLER, Appellant
• Court: Idaho Supreme Court

146 P.2d 338

65 Idaho 464

STATE OF IDAHO, Respondent, v. WILLIAM BEHLER, Appellant

No. 7130

Supreme Court of Idaho

February 24, 1944

1. Criminal law

Defendant could not complain that sheriff violated his duty in that he failed to bring defendant before committing magistrate without unnecessary delay, where it appeared that sheriff did not arrive in town with defendant until about 5:30 in the evening and that sheriff took defendant before a committing magistrate the next morning, especially where defendant waived preliminary examination when taken before magistrate. (I.C.A., secs. 19-515, 19-615.)

2. Criminal law

Defendant could not complain of admission of confession on ground that arresting officer delayed in taking defendant before nearest committing magistrate, for purpose of obtaining the confession, where it was not claimed any "third degree" methods were used to secure confession, defendant testified substantially to what he had confessed. (I.C.A., secs. 19-515, 19-615.)

3. Criminal law

Complaint could not be made of admission of confession on ground that it had been extorted from defendant who possessed a very low order of intelligence, where it did not appear that defendant's confession was extorted, and defendant testified substantially to what he had confessed.

4. Criminal law

A defendant must object to trial court's remarks claimed to be improper, and a failure to do so is a waiver of the alleged error.

5. Criminal law

Defendant could not complain of trial court's conduct and comments during examination of three witnesses, where no objection was made to conduct and comments complained of, and trial court instructed that jury should not be influenced by statements of trial court in replying to questions or in replying to statements of counsel on either side.

6. Homicide

In murder prosecution where defense was insanity, addition of words "and did he know the difference between right and wrong?" to instruction on issue as to whether defendant knew that his act was prohibited by state laws and that its commission would entail punishment did not constitute reversible error.

7. Homicide

In murder prosecution, where defense is insanity, burden of proving such defense is on defendant, but he is not required to establish his defense beyond a reasonable doubt.

8. Homicide

In murder prosecution, where defense was insanity, refusal of requested instruction that insanity was a disease which prevented a person from understanding nature of act in question and its possible consequences, or which rendered him incapable of resisting temptation to commit a crime even though he knew that he was doing wrong was proper.

9. Criminal law

Where insanity is asserted as a defense to crime, the test is whether defendant was able to distinguish right from wrong.

10. Homicide

Supreme Court may modify a judgment where jury has found defendant guilty of murder in the first degree and fixed punishment at death, when furtherance of justice requires such modification.

11. Homicide

Evidence, including fact that defendant who was convicted of murder in the first degree possessed a very low order of intelligence justified, in furtherance of justice, the modifying of sentence so as to reduce it from capital punishment to life imprisonment.

Appeal from the District Court of the Tenth Judicial District of the State of Idaho, for Idaho County. Hon. Miles S. Johnson, Judge.

Modified to sentence of imprisonment for life.

Harry J. Hanley and J. H. Felton for appellant.

Non-expert testimony is admissible on questions of sanity. (McGrath v. West End Orchard and Land Co., 43 Ida. 255; Herring v. Davis, 47 Ida. 211; Weihofen -- Insanity as a Defense in Criminal Law, 255 and following.)

An arresting officer is charged with the duty of bringing a defendant before the nearest magistrate without delay, and if he delays for the purpose of obtaining a confession, it is invalid and cannot be used against him. (McNabb v. United States, 87 L. ed. 579, 63 S.Ct. 608; Anderson v. United States, 87 L. ed. 589, 63 S.Ct. 599; Sec. 19-515, 19-615, I.C.A.)

Bert H. Miller, Attorney General; J. R. Smead, Assistant Attorney General; and Wilbur L. Campbell, Prosecuting Attorney, for respondent.

What is a reasonable delay in taking one arrested before a magistrate depends on the circumstances of the particular case. (Nadson v. Hutchison, 49 Ida. 358.)

The basic test of sanity in a criminal case is the ability to know right from wrong. (State v. Larkins, 5 Ida. 200, 211; State v. Van Vlack, 57 Ida. 316, 386.)

Before a lay witness may express an opinion on insanity he must first show facts sufficient to qualify him as well enough acquainted with the subject to be competent to have such an opinion. (State v. Larkins, supra; Underhill Gr. Evidence, sec. 264; People v. Harris (Cal.), 145 P. 520, 523.)

Holden, C.J. Ailshie and Dunlap, JJ., concur. Budge, J., dissenting. Givens, J., concurs.

OPINION

Holden, C.J.

In March, 1943, John P. Gilbertz owned and was operating a store at Ferdinand, Idaho. Shortly prior to March 7, 1943, while William Lipps was in a hospital at Grangeville, Idaho, appellant went to and entered Lipps' home and took therefrom a Winchester "forty-four" rifle belonging to Lipps. About a week later, to-wit, March 12, 1943, appellant went to Ferdinand and at about three o'clock in the morning of that day broke a window by the front door of the store and then unlocked the door and went to the back end where he ate some crackers and cookies and waited until Gilbertz came to the store at about half past seven o'clock. Apparently, while Gilbertz was building a fire in a stove in the store, appellant shot him. After he shot Gilbertz the first time and while Gilbertz was down on the floor appellant shot him again. Thereupon appellant left the store and returned to his cabin near Ferdinand. At about twenty minutes after eight Robert Gilbertz, sixteen-year-old son of the deceased, went down to the store and found his father lying on the floor near the stove, and after trying to revive him, notified a Mr. Remacle. It was at first thought Gilbertz had suffered a heart attack, but an examination by the coroner quickly established the fact Gilbertz had been shot. The authorities at the county seat, Grangeville, were promptly notified and the sheriff immediately organized a posse. Appellant having been seen shortly after the commission of the crime leaving Ferdinand carrying a rifle, the posse immediately went to the Behler cabin, and in the course of repeated demands that Behler come out and surrender, several shots were fired through the windows, and later the cabin was set on fire. Very shortly thereafter Behler came out of the cabin and surrendered. William Lipps' rifle, taken by appellant in the manner above stated (the rifle with which the killing was done), was found in the doorway of appellant's cabin by a member of the posse. Appellant, immediately following his arrest, admitted killing Gilbertz. He was taken by the sheriff and his posse back to Ferdinand and then from Ferdinand on to Grangeville, where the party arrived at about 5:30 in the evening. Upon arrival at Grangeville, appellant made a confession in the office of the county attorney. The confession was taken in shorthand by the county stenographer. The next morning appellant was taken before a committing magistrate where he waived a preliminary examination and was bound over to the district court on a charge of first degree murder.

March 15, 1943, an information was filed against appellant in the District Court of the Tenth Judicial District in and for Idaho County. Following arraignment and the appointment of counsel to represent him his trial was set for Monday, March 22, 1943. On that day, when the case was called for trial, "the question of the sanity of the defendant being raised by counsel for the defense the court ordered a hearing on the sanity of the defendant," at the time of the trial, not at the time of the homicide. Whereupon an inquiry into the sanity of appellant was had as provided by chap. 32, sec. 19-3201, et seq., I.C.A. The jury duly and regularly sworn and impaneled to try appellant on the question of his sanity at the time of the trial, found appellant was then sane.

May 3, 1943, appellant was tried. May 8, 1943, the jury, duly sworn and impaneled to try appellant for the commission of the crime charged in the information filed March 15, 1943, as aforesaid, found appellant "guilty of murder in the first degree and he shall suffer death." May 11, 1943, "judgment on Conviction of the Crime of Murder in the First Degree" was rendered and entered. June 7, 1943, an appeal from that judgment was prosecuted to this court.

A reversal of the judgment is sought by appellant upon the several points hereinafter discussed. First, that it is the duty of a sheriff, when arrest has been made to bring the defendant before a committing magistrate without unnecessary delay.

The pertinent parts of secs. 19-515 and 19-615, I.C.A., provide:

"[19-515.] The defendant must in all cases be taken before the magistrate without unnecessary delay, * * *"

"[19-615.] When an arrest is made without a warrant by a peace officer or private person the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before such magistrate."

In support of the contention there was unnecessary delay appellant cites Madsen v. Hutchison, 49 Ida. 358, 361, 362, 290 P. 208. That was an action to recover damages for false imprisonment. There, it appears, "The sheriff failed to take the prisoners (the Madsens)...