State v. Abbott
| Decision Date | 28 March 1923 |
| Citation | 213 P. 1024,38 Idaho 61,224 P. 791 |
| Parties | STATE, Respondent, v. JESS ABBOTT, Appellant |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.
Appellant was convicted of the crime of robbery, Affirmed.
Affirmed.
C. H Edwards, J. J. Blake and C. C. Cavanah, for Appellant.
Where error intervenes in proceedings of a trial it is presumed to be injurious to the defendant and he is entitled to a new trial, for it is his constitutional privilege to stand upon legal rights. (People v. Devine, 44 Cal. 452; State v. Bidegain, 34 Idaho 365, 201 P. 312.)
Where instructions are not clear, or incorrect or conflicting, it is error and the case should be reversed. (State v Fowler, 13 Idaho 317, 325, 89 P. 757; People v Bernard, 2 Idaho 193, 10 P. 30; State v. Webb, 6 Idaho 428, 55 P. 892; In re Baugh, 30 Idaho 387, 391, 164 P. 529; People v. Oldham, 111 Cal. 648, 44 P. 312.)
The court erred in giving instruction No. 12, which gives the jury to understand that a crime may be committed by persons concerned in the commission of the crime whether one of them acts feloniously and wilfully or not. (Greenleaf's Evidence, sec. 18; People v. Majone, 12 Abb. (N. Y.) 187, 91 N.Y. 211; C. S. 8971, sec. 8972.)
A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.
This court will not disturb a judgment based on a verdict in a criminal case where there may be substantial conflict in the evidence which taken as a whole is sufficient to sustain the verdict. (State v. Steen, 29 Idaho 337, 158 P. 499; State v. Mox Mox, 28 Idaho 176, 177, 152 P. 802; State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Hopkins, 26 Idaho 741, 145 P. 1095; State v. Carlson, 23 Idaho 545, 130 P. 463.)
Instructions No. 14 and No. 15 are correct. (State v. Morris, 40 Utah 431, 122 P. 380; State v. Reese, 43 Utah 447, 135 P. 270; State v. Dye, 44 Utah 190, 138 P. 1193; State v. Hillstrom, 46 Utah 341, 150 P. 935; Cole v. State (Okla. Cr.), 195 P. 901.)
The trial court did not err in denying new trial because of newly discovered evidence.
Appellant was jointly charged with one Nick Mitchell and one Clyde H. Smith with the crime of having robbed one Manuel Coster of $ 10. Appellant was granted a separate trial, was convicted and moved for a new trial, which was denied. He appealed from the judgment and from the order denying a new trial.
At the outset appellant urges the contention that where error intervenes in a trial "it is presumed to be injurious to the defendant and he is entitled to a new trial," citing People v. Devine, 44 Cal. 452. This court has not followed the rule announced by appellant, but, on the contrary, has held that an appellant must not only show the commission of error but must also show that it was prejudicial to him. (Territory v. Nelson, 2 Idaho 651, 23 P. 116; Territory v. Evans, 2 Idaho 651, 23 P. 232, 7 L. R. A. 646; State v. Corcoran, 7 Idaho 220, 61 P. 1034, and many other cases.)
Appellant assigns six errors, but relies mainly upon the claim that the evidence is insufficient to justify a conviction; that the court erred in giving certain instructions and in denying appellant's motion for a new trial.
The evidence is to some extent circumstantial, but on examination of the entire record leaves no doubt in our minds as to its sufficiency to sustain the verdict and judgment. Looking solely at the printed record this court might say, as it might in many other civil and criminal cases, that certain facts claimed by appellant to be shown by the record might, if considered separate and apart from all other evidence in the case, be susceptible of a construction different from that which the jury appeared to give such facts, but this does not authorize this court to substitute its judgment as to the credibility of witnesses and the weight to be given to their testimony for that of the jury.
Instruction No. 2 was one in which the court undertook to set out the material allegations of the information. In this instruction it failed to state to the jury that to constitute robbery the taking of the personal property must have been done feloniously. This omission was error, but when this instruction is read in connection with all the other instructions given we think it clear that appellant was not prejudiced thereby. In the previous instruction the court had correctly defined robbery as "the felonious taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear." In other instructions the court charged the jury that "the theory of the prosecution is that the defendants Abbott, Mitchell and Smith entered into a conspiracy to commit the crime charged in the information"; that in order to convict they must believe from the evidence beyond a reasonable doubt that appellant "entered into a combination or understanding with Clyde H. Smith and Nick Mitchell or either of them to rob Manuel Coster"; and that in order to convict appellant they must believe from the evidence beyond a reasonable doubt that appellant "aided or assisted said Clyde H. Smith and Nick Mitchell or either of them to commit the robbery as alleged in the information."
The words "rob" and "robbery" have a well-understood meaning and we think there can be no question that the jury understood that it was necessary for the state to prove to their satisfaction beyond a reasonable doubt everything that was involved in the statutory definition of robbery, which includes all that is meant by the word "felonious" or "feloniously."
Complaint is also made as to the giving of instruction No. 15 on the impeachment of witnesses. This instruction is in substance the same as instruction No. 33, which was disapproved by this court in the case of State v. Dong Sing, 35 Idaho 616, 631, 208 P. 860. It is an erroneous instruction, but we think not prejudicial in view of the evidence shown by the record.
Appellant also complains of the denial of his motion for a new trial which he based largely on the charge that one of the jurors had made improper and prejudicial statements of fact to the jury as to appellant's record while they were deliberating on their verdict. Long after the trial appellant sought to have the court call before it said jurors for examination as to what occurred in the jury-room. Without approving or disapproving this method of procedure if a satisfactory preliminary showing were made to the court, it is sufficient to say that the court did not err in denying appellant the opportunity that he sought to examine the jurors, for while the motion for a new trial contains some averments as to misconduct of this juror, the charge is not supported by any evidence whatever. To have allowed the examination under the circumstances shown by the record would have been simply to permit counsel for appellant to embark upon a fishing expedition. Surely if one seeks to impeach the verdict of the jury by showing misconduct in the jury-room he ought to be able to present some sort of sworn statement to the court that could be called evidence upon which the court would have a right to proceed. Nothing whatever of this character appears in the record.
The other errors assigned are in our opinion without merit, and the judgment is affirmed.
ON REHEARING.
(April 5, 1924.)
DUNN, J.--Appellant urges that the trial court should have permitted him, on the hearing of the motion for a new trial, to call the jurors for examination as to what took place in the jury-room during the deliberations of the jury.
The verdict of guilty was returned against appellant November 22, 1919, and judgment was pronounced November 29, 1919. Notice of intention to move for new trial, setting forth the grounds, was served and filed October 11, 1920, and the motion was heard about June 10, 1921. It will thus be seen that about a year and a half elapsed between the verdict and the hearing of the motion for a new trial. What we said in the original opinion on this point is applicable to the case now, if the question whether the court erred in refusing to call the jurors for examination is before us. The respondent insists that this matter is not before us for the reason that at the time of hearing the motion for a new trial the court, on motion of respondent, made an order striking from the motion for a new trial and from the affidavit of C. H. Edwards all those portions referring to misconduct of the jury, and that no appeal was taken from said order.
An examination of the record shows the position of respondent to be well taken and that the question of misconduct of the jury is not before us. (C. S., sec. 9068, subd. 3.)
We adhere to the views expressed in the original opinion. The judgment of the trial court is affirmed.
Specially.--Upon a reexamination of the case I am not convinced that the evidence is insufficient to sustain the judgment. Neither am I...
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