State v. Anstine, 9715

• Court: United States State Supreme Court of Idaho
• Writing for the Court: McFADDEN; McQUADE, TAYLOR and SPEAR, JJ., and FELTON
• Citation: 418 P.2d 210,91 Idaho 169
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Doris Lucille ANSTINE, Defendant-Appellant.
• Docket Number: No. 9715,9715
• Decision Date: 21 September 1966

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418 P.2d 210 91 Idaho 169 STATE of Idaho, Plaintiff-Respondent,
v.
Doris Lucille ANSTINE, Defendant-Appellant. No. 9715. Supreme Court of Idaho. Sept. 21, 1966.

[91 Idaho 170]

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William S. Hawkins and Paul D. McCabe, Coeur d' Alene, for appellant.

Allan G. Shepard, Atty. Gen., Weldon S. Wood, Asst. Atty. Gen., Boise, Pat W. Arney, Pros. Atty., Kootenai County, Coeur d'Alene, for respondent.

McFADDEN, Chief Justice.

Appellant, Doris Lucille Anstine, was charged with the first degree murder of her husband Elmer Anstine. After being bound over to district court, she plead not guilty to the charge and was tried before a jury which returned a verdict of 'Guilty of the crime of voluntary manslaughter.' The trial court entered its judgment on this verdict and sentenced her to serve a term of not to exceed five years in the state prison. Appellant appealed from this judgment and from the court's order denying her motion for new trial.

On January 14, 1965, Mr. and Mrs. Elmer Anstine, who lived a few miles west of Rathdrum, Idaho, spent the evening at [91 Idaho 171]

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the Shady Rest Tavern in Rathdrum, during which time they had about four quarts of beer, Mr. Anstine drinking the greater amount of the beer. While there they quarreled over several matters, but without any display of violence. At about 11:30 P.M., they returned to their home, Mr. Anstine driving their pick-up truck.

Upon arriving home they found the fire in the heating stove had burned out and Mr. Anstine becams incensed with appellant because she let the fire burn out. He resumed drinking beer and continued to argue and berate her. Mrs. Anstine previously that afternoon had prepared a dinner and was getting it ready to serve. The efects of the beer Anstine had consumed became more evident, and he became more incensed at his wife. He slapped her, knocking out her dentures. He went into a bedroom adjoining the kitchen and got his hunting rifle and, while standing with it in the doorway, started to wave the rifle at Mrs. Anstine. Mrs. Anstine stated she was afraid, not of her husband firing the weapon, but of his hitting her with the butt of the gun. He then replaced the gun in a far corner of the bedroom and came back to work with the stove to get the fire going. He continued to curse and berate her, and she went into the bedroom, picked up the gun from the far corner and brought it to a point near the door from the kitchen to the bedroom. He continued cursing and she brought the gun out, holding it by the barrel. This calmed him down a little, and she replaced the gun in the bedroom. In a few minutes, Anstine again continuing with his belligerent attitude and cursing, Mrs. Anstine again got the gun. Mr. Anstine was still trying to get the fire going in the heater, and he saw her with the gun, rose from his work and started toward her. She testified that she started to back up, hit a cooking range, and heard the gun fire. Mr. Anstine fell, having been hit in his chest by a bullet which passed through his body, and which bullet was later recovered by the investigating officers. She tried to administer aid to him, and then went back to the Shady Rest Tavern for help.

The proprietors of the tavern called the officials, and after a deputy sheriff, deputy prosecuting attorney and the sheriff arrived, they all then went to the Anstine residence, and determined that Anstine was dead.

Appellant in her brief makes some twenty-one assignments of error, all of which are directed to instructions given by the court to the jury or the refusal of the court to give certain requested instructions.

Assignment of error No. 1 attacks Instruction No. 6, wherein the trial court discussed and defined the difference between circumstantial evidence and direct evidence. Appellant asserts that there was no direct evidence submitted, but that the whole case was one of circumstantial evidence, and the giving of this instruction would indicate to the jury that the trial court believed there was direct evidence of appellant's guilt. We do not agree with this assertion. The appellant herself testified as to the events leading up to and concerning the fatal shooting. This was direct evidence. State v. Riggs, 61 Mont. 25, 201 P. 272 (1921); State v. Blackwelder, 182 N.C. 899, 109 S.E. 644 (1921). There was no error in giving this instruction.

Assignment of error No. 2 attacks the giving of Instructions Nos. 8 and 31 on confessions, admissions and differences between them. Appellant claims there was no evidence of either confession or an admission and by the giving of these instructions, the jury was misled into believing appellant had confessed or admitted to some element of the crime. Appellant testified in detail as to the events of the shooting, how the gun was held, where the deceased was standing, and what he was doing. Several of the witnesses for the prosecution testified as to what appellant had told them following the shooting. Instruction No. 8, given by the court, advised the jury that the guilt of a defendant in a criminal action could not be based solely on an admission or [91 Idaho 172]

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confession, but that there must be independent evidence of the crime. This instruction was favorable to the appellant herein. Instruction No. 31 discussed the fact that there was evidence of statements made by appellant to others. The instruction fairly apprised the jury of the law in this regard, and discussed the law as it applied to the 'alleged crime or one of the lesser included offenses.' While the statements made by appellant would not constitute a confession, they were in the nature of admissions. It was not error to give these instructions which would in effect dispel any thought that appellant might have 'confessed' to the crime with which she was charged. The trial court did not err in this regard.

Assignment of error No. 3 is directed to the giving of a portion of Instruction No. 9, which instructed the jury on impeachment of witnesses. Incorporated in the instruction was the statement that 'a witness may be impeached also by proof that he has been convicted of a felony.' There was no attempt made by either side to impeach the testimony of any witness in this manner. The questioned portion of the instruction was irrelevant, but the record fails to show any prejudice to appellant resulting therefrom. The burden is on an appellant to show that error was committed of a character sufficiently serious to warrant a reversal. State v. Mundell, 66 Idaho, 297, 158 P.2d 818 (1945).

Assignment of error No. 4 is directed to the giving of Instruction No. 12, wherein the trial court reiterated to the jury the charging part of the information, but did not advise the jury that appellant had plead 'not guilty' to the charge. Appellant also claims that this charge was prejudicially repetitious of the charge which had already been read to them in the information. at the very outset of the case, after the jury was sworn, the clerk of the court read the information to the jury and advised them that appellant was under no obligation to prove her innocence, but that the State had the burden of...