State v. Askew

• Decision Date: 11 October 1919
• Parties: STATE, Respondent, v. GEORGE ASKEW, Appellant
• Court: Idaho Supreme Court

184 P. 473

32 Idaho 456

STATE, Respondent, v. GEORGE ASKEW, Appellant

Supreme Court of Idaho

October 11, 1919

CRIMINAL LAW-INFORMATION-SUFFICIENCY OF THE EVIDENCE-WITNESSES-EVIDENCE.

1. An information in a criminal action, charging that the defendant "did then and there wilfully, unlawfully, feloniously and with premeditation and malice aforethought, kill and murder one George T. Parks, a human being," is sufficient to charge the crime of murder.

2. Where there is substantial evidence to support the verdict the judgment based thereon will not be reversed on appeal.

3. Though the action of the trial court in sustaining objection to a question asked a witness on cross-examination is erroneous, the judgment will not for that reason be reversed where it appears that the action of the court did not prejudice the substantial rights of appellant.

4. The statutory method of impeaching a witness must be followed.

[As to definition of murder, see note in 134 Am.St. 727]

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Edward A. Walters Presiding Judge.

Defendant was convicted of voluntary manslaughter. Appeal from the judgment and order denying motion for a new trial. Affirmed.

Affirmed.

Perky &amp Brinck and Arthur W. Holden, for Appellant.

It is error to reject evidence tending to show bias or prejudice of a witness. (State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Krum, 32 Kan. 372, 4 P. 621; 40 Cyc. 2667.)

It is reversible error for the court to comment on the evidence. ( McKissick v. Oregon etc. R. Co., 13 Idaho 195, 89 P. 629; State v. Fowler, 13 Idaho 317, 89 P. 757; Smartt v. State, 112 Tenn. 539, 80 S.W. 586.)

The occupation, manner and place of living, etc., of a witness may be fully inquired into as bearing on his credibility. ( State v. Fong Loon, 29 Idaho 248, 257, 158 P. 233, L. R. A. 1916F, 1198.)

An information or indictment for homicide should specify in general terms the manner and means of the killing. (3 Bishop's New Crim. Proc., 2d ed. 514; People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; People v. Wallace, 9 Cal. 30; People v. Dolan, 9 Cal. 576, 577; Commonwealth v. Howard, 205 Mass. 128, 91 N.E. 397, 401; Carr v. State, 80 Tex. Cr. 465, 190 S.W. 727; People v. Lukoszus, 242 Ill. 101, 89 N.E. 749, 751; Barrentine v. State, 72 Fla. 1, 72 So. 280; Edwards v. State, 27 Ark. 493; Haney v. State, 34 Ark. 263; State v. O'Neil, 51 Kan. 651, 33 P. 287, 24 L. R. A. 555; State v. Regan, 8 Wash. 506, 36 P. 472; State v. Anderson, 30 Wash. 14, 70 P. 104; Littell v. State, 133 Ind. 577, 33 N.E. 417; 1 Bishop, Crim. Proc., 599, 600; 10 Am. & Eng. Ency. of Law, 522; State v. Jenkins, 14 Rich. (S. C.) 215, 94 Am. Dec. 132; 3 Bishop, New Crim. Proc., 2d ed., 514.)

R. L. Black, Attorney General, A. F. Stone, Assistant, and A. C. Cordon, for Respondent.

Whenever there is substantial evidence to support the verdict, the same shall not be set aside. (Sec. 4824, C. L.; State v. Downing, 23 Idaho 540, 130 P. 461; State v. Silva, 21 Idaho 247, 120 P. 835; State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. Curtis, 29 Idaho 724, 161 P. 578; State v. Williams, 12 Idaho 483, 86 P. 53; State v. Ireland, 9 Idaho 686, 75 P. 257; State v. Steen, 29 Idaho 337, 158 P. 499; State v. Collett, 9 Idaho 608, 75 P. 271.)

It must affirmatively appear that error has worked a substantial prejudice to the defendant, or it will be deemed harmless and not reversible. (Secs. 8070, 8236, C. L.; State v. Ward, 31 Idaho 419, 422, 173 P. 497; State v. Marren, 17 Idaho 766, 107 P. 993; Territory v. Neilson, 2 Idaho 614, 23 P. 537.)

Limiting of cross-examination is not ground for reversal where such limitation does not prejudice the defendant; particularly where the fact sought to be elicited is sufficiently shown by other evidence. (17 C. J. 313; People v. Ho Kim You, 24 Cal.App. 451, 141 P. 950; Cina v. United States, 191 F. 718, 112 C. C. A. 308; People v. Deatrick, 30 Cal.App. 507, 159 P. 175; People v. Kilfoil, 27 Cal.App. 29, 148 P. 812.)

Particular wrongful acts cannot be shown for the purpose of impeaching the credibility of a witness. (Sec. 6082, C. L.; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Hammock, 18 Idaho 424, 110 P. 169; State v. Henderson, 19 Idaho 524, 114 P. 30.)

An information charging homicide is not required to state the means by which the killing is accomplished. (State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

RICE, J. Budge, J., MORGAN, C. J., concurring.

OPINION

RICE, J.

By the information in this case the appellant was charged with the crime of murder, committed jointly with his son, Albert W. Askew, and his daughter, Mary A. Parks. The jury which tried the case returned a verdict acquitting the son and daughter of appellant, and finding appellant guilty of the crime of voluntary manslaughter. From the judgment of conviction, and from the order of the court overruling appellant's motion for a new trial, this appeal is taken.

It is contended that the information, which is similar in form to that upheld by this court in the case of State v. Lundhigh, 30 Idaho 365, 164 P. 690, is insufficient in that it fails to state facts constituting a public offense. We are urged to reconsider the question of the sufficiency of the information. The information in this case differs from that under consideration in the Lundhigh case in that in the instant case the information charges that the crime was committed with premeditation.

After a reconsideration of the matter involved, and a careful consideration of the authorities relied upon by appellant in his brief, we are constrained to adhere to the rule announced by the majority of the court in the Lundhigh case.

It is insisted further that the evidence shows that appellant acted solely in self-defense when he shot the deceased, and therefore fails to show that he was guilty of the crime of voluntary manslaughter, or of any crime.

The deceased was killed in a room in a dwelling-house. The only eye-witnesses to the killing were the three defendants in the case. Two other persons were in an adjoining room in the house at the time, and testified at the trial. There seems to be no necessity for reciting at length the testimony of the witnesses as to the facts and circumstances connected with the killing. The jury was entitled to consider all the facts and circumstances testified to by other witnesses in the case in connection with the narrative given by appellant on the stand, and when all the testimony is considered, there is substantial evidence in the record to sustain the verdict of the jury.

The same question was presented to the trial court in considering the motion for a new trial. The trial court has greater latitude in its consideration of the weight and sufficiency of the evidence when the question is raised on motion for a new trial than has this court when the matter is presented on an appeal from the judgment, or from an order overruling motion for a new trial.

Where there is substantial evidence to support the verdict and judgment, the appellate court will not reverse the judgment. (State v. Steen, 29 Idaho 337, 158 P. 499.)

The deceased was the husband of the defendant, Mary Parks. It appears that he had leased the premises which had been occupied by himself and wife, including the dwelling-house, to one J. W. Cromwell; that on the forenoon of the day on which the killing occurred, Cromwell came to the dwelling-house, bringing his household furniture, for the purpose of moving into the dwelling-house; that an altercation arose between the deceased and his wife, Mary Parks, she demanding that Cromwell refrain from bringing his furniture into the house, and the deceased ordering him to bring the furniture in. Cromwell was a witness in the case, and testified as to the difficulty that occurred between the husband and the wife at that time. Appellant assigns as error the action of the court in sustaining the state's objection to the following questions asked witness Cromwell on cross-examination:

"Q. Now, in the light of that controversy between the husband and wife, you chose to take the side of the husband and move in against her will. Is not that correct?"

"Q. And you willingly obeyed them, did you not?"

The last question referred to orders by the deceased to the witness to move in.

In a criminal case, it is proper to show the relations of a witness with or his feeling toward a defendant, or the victim of the alleged crime, or the prosecuting witness, and the inquiry may extend to particular facts tending to show his hostility toward or his bias or prejudice for or against such persons. (40 Cyc. 2667.)

But the action of the court in sustaining the objections to these questions was not prejudicial to appellant. The witness elsewhere in his testimony stated that he was on friendly terms with deceased all the time.

It appearing that the erroneous action of the court did not prejudice the substantial rights of appellant, the judgment will not for that reason be reversed. (C. L., sec. 8070; State v. Gruber, 19 Idaho 692, 115 P. 1; State v. Moon, 20 Idaho 202, Ann. Cas. 1913A, 727, 117 P. 757.)

Appellant assigns as error the action of the court in sustaining the state's objection to the following question asked witness George Cromwell on cross-examination:

"Q. And during that conversation that she was asking to come there and make her home, did Mr. Parks tell her that he had...