State v. Baker

• Decision Date: 21 March 1916
• Citation: 28 Idaho 727,156 P. 103
• Parties: STATE, Respondent, v. J. W. BAKER, Appellant
• Court: Idaho Supreme Court

156 P. 103

28 Idaho 727

STATE, Respondent, v. J. W. BAKER, Appellant

Supreme Court of Idaho

March 21, 1916

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Defendant was charged with the crime of assault with intent to commit murder. Convicted of assault with a deadly weapon. Affirmed.

Affirmed.

Charles F. Reddock, K. I. Perky and Charles Clifton, for Appellant.

"Experiments by jurors by which they ascertain facts material to the case but not included in the evidence, constitutes misconduct on their part and will justify reversal." (12 Cyc. 678; Nelson v. State (Tex. Crim.), 58 S.W. 107; Logan v. State, 46 Tex. Crim. 573, 81 S.W. 721; State v Sanders, 68 Mo. 202, 30 Am. Rep. 782; Forehand v State, 51 Ark. 553, 11 S.W. 766; Jim v. State, 4 Humph. (Tenn.) 289; People v. Conkling, 111 Cal. 616, 44 P. 314; State v. Landry, 29 Mont. 218 74 P. 418; People v. Tyrrell, 3 N.Y.Cr. 142; State v. Miller, 61 Wash. 125, Ann. Cas. 1912B, 1053, 111 P. 1053.)

We have shown gross misconduct--receiving evidence out of court and talking with one of the state's witnesses and her daughter; and unless waived by the defendant, it is incumbent upon the state to show that no prejudice resulted. (People v. Stokes, 103 Cal. 193, 42 Am. St. 102, 37 P. 207; State v. Applegate, 28 N.D. 395, 149 N.W. 356, L. R. A. 1915C, 315; State v. Tilden, 27 Idaho 262, 147 P. 1056.)

Appellant could not, if he would, waive the error complained of; to allow him to so waive, would be for the law to authorize the violation of its own provisions, and thus contravene public policy; hence it was not necessary that the defendant object to the error and preserve the same by exception in the record, in order not to waive the error complained of.

"That which the law requires and makes essential in the trial of persons accused of a felony cannot be dispensed with, either by the consent of the accused or by his failure to object to unauthorized methods pursued by those in authority." (State v. Mannion, 19 Utah 505, 75 Am. St. 753, 57 P. 542, 543, 45 L. R. A. 638; State v. Vanella, 40 Mont. 326, 106 P. 364, 366, 20 Ann. Cas. 398; State v. Walton, 50 Ore. 142, 91 P. 492, 13 L. R. A., N. S., 811.)

J. H. Peterson, Atty. Genl., R. L. Givens, Pros. Atty. and E. P. Barnes, Asst., for Respondent.

Defendant did not except to the alleged misconduct of the jury before the verdict, having knowledge at all times as to such alleged misconduct and the various circumstances incident thereto. Exceptions, unless taken at proper time, are waived. (State v. Reed, 3 Idaho 754, 35 P. 706; State v. McGinnis, 12 Idaho 336, 85 P. 1089; People v. Kuok Wah Choi, 2 Idaho 90, 6 P. 112; State v. Roe, 19 Idaho 416, 113 P. 461; State v. Harness, 10 Idaho 18, 27, 76 P. 788; State v. Sly, 11 Idaho 110, 80 P. 1125; State v. Marquardsen, 7 Idaho 352, 62 P. 1034; State v. Murphy, 7 Idaho 183, 61 P. 462; People v. Ah Hop, 1 Idaho 698; State v. Suttles, 13 Idaho 88, 88 P. 238; State v. Schieler, 4 Idaho 120, 37 P. 272; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Peck, 14 Idaho 712, 95 P. 515; State v. Harris, 18 Idaho 620, 111 P. 406; State v. Corcoran, 7 Idaho 220, at 249, 61 P. 1034; State v. Moon, 20 Idaho 202, Ann. Cas. 1913A, 724, 117 P. 757; Jackson v. United States, 102 F. 473, 42 C. C. A. 452; Lee v. McLeod, 15 Nev. 158, 163; Dec. Dig., Crim. Law, 868; 29 Cyc. 813; 12 Cyc. 681.)

This error could have been cured if taken in proper time, but through the fault and negligence of the defendant it was not done, as it appears from the affidavits that the defendant and his counsel being present at the view knew all of these circumstances. (Schumacher v. Truman, 134 Cal. 430, 66 P. 591; Trombley v. State, 167 Ind. 231, 78 N.E. 976, at 977; Commonwealth v. Borasky, 214 Mass. 313, 101 N.E. 377; Young Chung v. State, 15 Ariz. 79, 136 P. 631; Cardwell v. State, 1 Ala. App. 1, 56 So. 12; State v. Mitchell, 127 La. 270, 53 So. 561; Waller v. State, 2 Ga.App. 636, 58 S.E. 1106; Messenger v. State, 152 Ind. 227, 52 N.E. 147; 12 Cyc. 681, note 29, 813; 8 Ency. Pl. & Pr. 1086; State v. Ballew, 83 S.C. 82, 63 S.E. 688, 64 S.E. 1019, 18 Ann. Cas. 569; Thompson on Trials, sec. 2604.) The objection of the defendant as to the alleged misconduct on the part of the jury comes too late on motion for new trial. (Par. 700, Thompson on Trials; McDonald v. Challis, 22 Idaho 749, 128 P. 570.)

It is not competent for a court to receive affidavits of jurors impeaching their verdict on motion for a new trial. (State v. Marquardsen, 7 Idaho 352, 62 P. 1034; State v. Rigley, 7 Idaho 292, 62 P. 679.)

BOTHWELL, District Judge. Budge and Morgan, JJ., concur.

OPINION

BOTHWELL, District Judge.

The defendant, J. W. Baker, was charged with the crime of assault with intent to commit murder, and was convicted of assault with a deadly weapon. This appeal is taken from the judgment and from an order denying and overruling a motion for a new trial.

The grounds for a new trial assigned by the appellant and relied upon for a reversal of this case are: (1) That the jury received evidence out of court other than that resulting from a view of the premises; (2) misconduct of the jury by which a fair and due consideration of the case has been prevented.

It is shown by the record that at 12:10 P. M. on February 10, 1915, the jury while deliberating requested that it be permitted to view the premises where the assault was alleged to have been perpetrated, which request was granted by the court. The appellant consented to the action of the court and waived the presence of the trial judge at and during the view, whereupon the deputy sheriff was sworn to suffer no person to speak to, or communicate with, the jury, or to do so himself on any subject connected with the trial, and to return the jury into court without unnecessary delay, and was directed to conduct the jury to the premises in question for the purpose of a view.

The deputy sheriff thereupon conducted the jury in a body to the residence of one Bessie Myers, where it was alleged that the offense had been committed. The appellant and one of his counsel accompanied the jury and were present during the view.

The information charges that the appellant made an assault upon one Mrs. Roy E. Wroten with a certain broom, being of a total length of about fifty-three inches, and the handle of which was about forty inches in length and about one inch in diameter and made of a certain hard wood.

A number of affidavits have been filed by the appellant and respondent for the purpose of showing the conduct of the jury at and during the view of the premises. Without quoting at length or in detail from the various affidavits, which we have examined with care, we find the facts to be as follows:

Upon the arrival of the jury at the premises, the foreman secured a broom from the back porch and in the presence of the jury made a demonstration by holding the broom by the brush and striking with it as though using it as a weapon. When the broom was raised over his head it touched the ceiling, but when swung from the shoulder or at an angle, it did not. One of the jurors suggested that the foreman was a larger man than appellant, and thereupon the broom was delivered to H. M. Buck, one of the jurors, and to George L. Myers, another of the jurors, each of whom demonstrated with the broom to ascertain whether or not a "lick" could be struck in the manner alleged and presented to the jury.

Shortly after the jury entered the house, one of the jurors inquired if this (indicating a door between the dining-room and parlor) was the door that Mrs. Wroten was supposed to have fallen against, and Mrs. Myers replied that it was. One of the jurors endeavored to open a door leading direct from the dining-room to the back porch, and Mrs. Myers stated that that door was locked and that was where the side-board had stood. There was more or less talk among the jurors during the view and they were requested not to talk by the foreman and by the deputy sheriff. At one time the deputy sheriff warned the jurors not to discuss the case so that anyone else might hear them. Laura Henroid, daughter of Mrs. Myers, spoke to the deputy sheriff saying that the buffet stood before that door (pointing) and that that door had never been opened. The attorney for the defendant called the deputy sheriff's attention to the fact that Mrs. Myers and her daughter were talking so that the jury could hear them, whereupon the deputy sheriff warned Mrs. Myers and her daughter not to talk.

On leaving the premises the deputy sheriff addressed the attorney for the appellant (referring to the conversation in the presence of the jury) and asked: "Do you think it did any harm?" Whereupon the attorney for the appellant replied, "I don't know; I hope not."

The affidavit of E. P. Barnes, deputy prosecuting attorney, and which is not controverted by the appellant, states that he met the attorney for the appellant directly after the view, and that appellant's attorney related to him the circumstances of the use of the broom on the part of the jurors and stated that there could be no error claimed on the part of the state or defendant on account of anything that took place during the entire view, and that he was satisfied with the view.

It is upon the foregoing facts that the appellant seeks a new trial.

Counsel for respondent, in answer to the assignments of error by appellant, contends, first, that the action of the jury during the view and the statements made in the presence of the jury did not amount to receiving evidence out of court, within the meaning of sec. 7952, Rev. Codes; second, that if it does come within the meaning of sec....