State v. Allen

• Decision Date: 08 May 1913
• Citation: 23 Idaho 772,131 P. 1112
• Parties: STATE, Respondent, v. CHARLES H. ALLEN and REECE C. CLEVENGER, Appellants
• Court: Idaho Supreme Court

131 P. 1112

23 Idaho 772

STATE, Respondent, v. CHARLES H. ALLEN and REECE C. CLEVENGER, Appellants

Supreme Court of Idaho

May 8, 1913

CRIMINAL LAW-SEPARATE TRIALS OF THE DEFENDANTS JOINTLY CHARGED-IDENTIFICATION OF EXHIBITS-NONRESPONSIVE ANSWERS-REMARKS OF COURT-FINANCIAL CIRCUMSTANCES OF DEFENDANT-CONVERSATIONS ESTABLISHING ALIBI-EVIDENCE OF GOOD CHARACTER-SUFFICIENCY OF EVIDENCE-NEWLY DISCOVERED EVIDENCE.

1. Under the provisions of sec. 7860, Rev. Codes, as amended by 1911 Sess. Laws (1911 Sess. Laws, p. 368), "when two or more defendants are jointly indicted or informed against for a felony or any criminal offense, the defendants may be tried separately or jointly in the discretion of the court." Held, that under this statute it was not an abuse of the discretion of the trial court to refuse to grant separate trials to defendants, where each of the defendants desired to be a witness for the other and also a witness in his own trial on his own behalf.

2. Held, that it was not error on the part of the trial court to admit a revolver holster in evidence in a prosecution for murder where the witness identifying the holster was shown the holster in the presence of the jury and was asked if that was the revolver holster the defendant had and the witness replied: "I think it is; I am not sure it appears to be."

3. Where the attorney for the defendant on cross-examination of a state's witness in the trial of a criminal case has the witness produce an article of personal property and testify concerning it and tell where he got it and what he had been doing with it, it is error for the trial court to refuse to have the article marked for identification and retained in the possession of the court for the purposes of cross-examination and the inspection of the defendant and his counsel, or for any use to which defendant may legally apply the exhibit.

4. Where a witness on behalf of the state while on the witness-stand was asked the question, "Under what circumstances did you see him?" (referring to defendant), and the witness answers, "The Chinaman-the Chinese porter at my house pointed him out to me and told me to be careful of him," held, that the court did not err in denying a motion to strike the answer from the record.

5. Where a trial judge, after admonishing a jury before taking a recess in the course of the trial of a criminal case, said in the presence of the jury: "The court desires to say to counsel concerned in this case that he is of the opinion that too much time is being consumed in the examinations, as the same questions are being repeatedly asked many times and much needless repetition being indulged in, and that perhaps nine out of ten questions which have been asked are irrelevant and immaterial because of this continued and useless repetition," held, that the remarks of the court were not prejudicial to the rights of the defendant.

6. Where a defendant is on trial on the charge of murder and the evidence on the part of the state tends to show that the murder was committed in an attempt to commit robbery, and the state introduced evidence tending to show that defendant was "broke" and without any means, it would have been proper for the court to allow the defendant's offer to prove that he was in fact not "broke," but, on the contrary, had money and property of his own and was in good financial circumstances; and further, held, that the ruling of the court excluding such evidence was not reversible error.

7. Where a defendant, charged with the commission of a homicide is endeavoring to establish an alibi and testifies that at the time the homicide occurred he was at another place and in his room and in bed, and that he heard a conversation between two persons in a room opposite his and details the conversation, and the persons who occupied the room opposite the defendant testify that they heard the shooting and that one of them opened the door and made remarks about the matter, and then the defendant seeks to have such witnesses detail the conversation had, and the court refuses to admit the evidence, held, that while it would not have been erroneous for the court to have admitted a detailed account of the conversation for the purpose of corroborating the defendant's evidence and establishing his alibi, still the court's ruling excluding such evidence was not prejudicial error, for the reason that the evidence admitted covered substantially all the facts tending to corroborate defendant's evidence as to the alibi.

8. Upon a trial where a defendant is charged with murder, and the evidence tends to show that the murder was committed in an attempt to commit a robbery, and the court admits evidence as to the good reputation of the defendant for peace and quietude, there was no prejudicial error in the ruling of the court in thereafter excluding a general offer to prove the good reputation of the defendant "for truth and veracity, and honesty and integrity, morality and immorality sobriety and inebriety."

9. A defendant who is charged with homicide should, as a rule, be allowed to show, if he can, that he has a good reputation in his community and among those who have known him both for peace and quiet and truth and veracity, in all cases where the evidence is circumstantial or the plea is one of self-defense and the defendant's truthfulness or honesty is brought in question.

10. Evidence in this case considered, and held sufficient to support a verdict of conviction.

11. Showing made in this case for a new trial on the grounds of newly discovered evidence, held insufficient to require the granting of a new trial.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

Prosecution on the charge of murder. Verdict and judgment of conviction. Defendants appeal. Affirmed.

Affirmed.

C. M. Booth, W. P. Guthrie and R. M. Angel, for Appellants.

Appellants were witnesses for each other, and being at the same time a witness and a defendant, the force and effect of the testimony of each was greatly lessened, by reason of interest, under the instructions of the court that "the jury have the right to take into consideration the fact that they and each of them are interested in the result of the trial. . . ." (People v. New York City Super. Ct., 10 Wend. (N. Y.) 285; Detroit Tug Co. v. Wayne Cir. Judge, 75 Mich. 360, 42 N.W. 968.)

The expression "and told me to be careful of him" was unresponsive, hearsay testimony, and prejudicial to appellants. (People v. McCrea, 32 Cal. 98; Underhill on Criminal Evidence, 2d ed., par. 216.)

The remarks of the court in the presence of the jury, during the cross-examination by appellants of state's witness Dot Allen, were prejudicial to defendants. (State v. Philpot, 97 Iowa 365, 66 N.W. 730; Underhill on Criminal Evidence, par. 215.)

Accused had a right to show that the motive charged did not in fact exist. (People v. Mead, 1 Wheel. Cr. (N. Y.) 36; State v. Edwards, 34 La. Ann. 1012.)

It is for the jury to determine the presence or lack of motive for the particular crime charged, as the absence of motive revealed is a circumstance to be duly considered in weighing the question of guilt. (21 Cyc. 919; 8 Am. & Eng. Enc. 291; Wharton on Crim. Ev., 10th ed., p. 1646; State v. Coleman, 20 S.C. 441; Preston v. State, 8 Tex. App. 30.)

The rule as to a defendant's right under the plea of alibi is that he may show any facts which tend to prove that he could not have been, or was not, present at the place and time of the offense. (12 Cyc. 404, 405; Wharton's Criminal Evidence, 10th ed., p. 1835; State v. Hayward, 62 Minn. 474, 65 N.W. 66.) It was error to exclude testimony that would tend directly to weaken the case made by the state--testimony tending directly to establish an alibi and discredit the state's case. (People v. Hare, 57 Mich. 505, 24 N.W. 843-848; Underhill Crim. Ev. 148; Greenleaf on Evidence, 14th ed., par. 100; Wharton's Criminal Ev., 10th ed. , par. 951, p. 1835; 14 Cent. Dig. 1289, 849; Shaw v. People, 3 Hun (N. Y.), 272; People v. McCrea, 32 Cal. 98; People v. Estrado, 49 Cal. 171; Smith v. Whittier, 95 Cal. 279, 30 P. 532; People v. Barker, 144 Cal. 705, 78 P. 266; State v. Delaney, 92 Iowa 467, 61 N.W. 189; State v. Bedard, 65 Vt. 278, 26 A. 719; Jones on Evidence, par. 300, p. 378.)

In not being permitted to prove their good character, particularly as to honesty and integrity, appellants were deprived of the benefit of evidence which was clearly admissible and of the greatest importance. (Cancemi v. People, 16 N.Y. 501; Saye v. State, 50 Tex. Cr. 569, 99 S.W. 551; State v. Cunningham, 111 Iowa 233, 82 N.W. 755; State v. Parker, 7 La. Ann. 83; Commonwealth v. Winnemore, 1 Brewst. (Pa.) 356; 14 Cent. Dig. 841; People v. Ashe, 44 Cal. 288; Kee v. State, 28 Ark. 155; Klehn v. Territory, 1 Wash. 584, 21 P. 31, 32.)

Evidence of good character is independent evidence, and of itself may raise a reasonable doubt and of itself require the jury to find the accused not guilty. (State v. Kinley, 43 Iowa 294; United States v. Jackson, 29 F. 503; Remsen v. People, 43 N.Y. 6; Kilpatrick v. Commonwealth, 31 Pa. 198; State v. Beebe, 17 Minn. 241; Underhill on Crim. Ev., sec. 79; Wharton's Crim. Ev., sec. 67; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Commonwealth v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N.E. 96; Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467.)

J. H. Peterson, Attorney General, and J. J. Guheen and T. C. Coffin, Assistants, for the State.

Where two defendants are jointly indicted or informed against, a severance is not a matter of right. (Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; 12 Cyc. 505, and cases cited; State v. Johnson, 116 La....