State v. Baldwin

• Citation: 69 Idaho 459,208 P.2d 161
• Decision Date: 05 July 1949
• Docket Number: 7479
• Parties: STATE v. BALDWIN
• Court: United States State Supreme Court of Idaho

208 P.2d 161

69 Idaho 459

STATE v. BALDWIN

No. 7479

Supreme Court of Idaho

July 5, 1949

Appeal from District Court, Tenth Judicial District, Nez Perce County; Miles S. Johnson, Judge.

Affirmed.

Paul C Keeton, Leo McCarty, Lewiston, for appellant.

The Court should have sustained the defendant's objection to the Sheriff of Nez Perce County serving the special venire for jurymen as the sheriff was a witness for the prosecution and his name was endorsed on the Information and he was therefore disqualified to serve a special venire for jurymen and since the sheriff was disqualified, his deputies were also disqualified. Sections 19-1910, 19-1914, 19-1913, Idaho Code Annotated; 35 C.J. 276, 277, 278; 16 R.C.L. 233; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Jordan, 19 Idaho 192, 112 P. 1049; State v Knutson, 47 Idaho 281, 274 P. 108; State v. Le Doux, 155 Cal. 535, 102 P. 517; People v. Vasquez, 9 Cal.App. 545, 99 P. 982; Lyde v. State, 21 Okl.Cr. 426, 209 P. 226.

Robert E. Smylie, Atty. Gen., John R. Smead, Asst. Atty. Gen., both of Boise, and Earle W. Morgan, Pros. Atty., Lewiston, for respondent.

The grounds of challenge to a jury panel are limited to the party against whom the sheriff appears as a witness. State v. Jordan, 19 Idaho 192, 112 P. 1049. ("Syllabus by the Court") Idaho Code, sec. 19-2010.

Such a challenge must be in writing, thus tendering the issue for trial by the Court. Idaho Code, secs. 19-2006 to 19-2009, incl.; State v. Scoble, 28 Idaho 721, 155 P. 969; People v. Armstrong, 2 Idaho 298, 13 P. 342.

The shorthand notes of an oral motion to quash a panel, made in open court, are not "writing". Nowerton v. Augustine, 153 Iowa 17, 132 N.W. 814, 815; Richardson v. Fitzgerald, 132 Iowa 253, 109 N.W. 866, 867.

Taylor, Justice. Holden, C. J., and Givens and Porter, JJ., and Sutphen, Dist. J., concur.

OPINION

Taylor, Justice.

On November 27, 1946, at Lewiston, Idaho, appellant signed and delivered a check for the sum of $ 53.00, drawn on the Bank of Orofino, Orofino, Idaho, and payable to Peterson Furriers. The appellant in signing the check used the name, "Tom Jackson." On the same day appellant opened a bank account at the Bank of Orofino under the name of Thomas Baldwin by making a deposit of $ 1.00. The Peterson Furriers is a retail establishment at Lewiston, Idaho, operated by Mr. and Mrs. J. F. Peterson. The appellant had been in the Peterson establishment a day or two before the making of the check and talked to Mr. Peterson, advising him that he desired to purchase a fur coat for his girl, and looked at a number of coats. On the 27th he returned and, after again talking to Mr. Peterson and looking at the coats, decided upon the purchase of a coat priced at $ 300.00 and then asked and obtained Mr. Peterson's consent to making a down payment of $ 50.00 (plus $ 3.00, apparently for insurance) and to take the coat out and pay the balance in installments. A sales slip was prepared by Mr. Peterson showing the sale and reciting the terms in brief, which was signed by Mr. Peterson and also signed by the appellant, again using the name, "Tom Jackson." The appellant departed with the coat and made no further payments. Appellant was arrested in Walla Walla, Washington, July 13, 1947, where he signed a waiver of extradition, and was returned to Lewiston and there charged with forgery, in the making and uttering of the check, and subsequently tried and convicted.

When the case was called for trial, the prosecuting attorney moved to strike the name of the sheriff of the county from the list of witnesses appearing on the information. The motion was resisted by the defense and granted by the court. By subpoena the sheriff was then summoned as a witness for the defense. Upon impaneling the jury, the regular panel being exhausted, the court directed the sheriff to summon a special venire. When this venire was returned, the appellant orally moved to quash the panel on the ground that the veniremen had been summoned by the sheriff, who was a witness in the case. This motion the court denied and appellant assigns error. By the terms of section 19-2010, I.C., the panel may be challenged on account of any bias of the officer who summoned them on any ground which would be good ground of challenge to a juror. And, under the provisions of section 19-2020, subsection 6, a juror is disqualified if he is "a witness for the prosecution, or subpoenaed as such." Section 19-2006 provides that the challenge to the panel "must be in writing." Appellant's challenge was not in writing as required by this section. State v. Scoble, 28 Idaho 721, 155 P. 969; State v. Conner, 59 Idaho 695, 89 P.2d 197. State v. Shaw, Idaho, 207 P.2d 540. The sheriff was not a witness for the prosecution or subpoenaed as such. Although he was called to the witness stand by the defendant, he knew nothing of the pertinent facts and had taken no part in investigating or procuring evidence. Two of his deputies, who did actively participate in the investigation, were called and testified as witnesses for the state. When the sheriff, himself, is disqualified, his deputies are disqualified. State v. Barber, 13 Idaho 65, 88 P. 418; People v. Le Doux, 155 Cal. 535, 102 P. 517; People v. Vasquez, 9 Cal.App.2d 982, 99 P. 982; Lyde v. State, 21 Okl.Cr. 426, 209 P. 226. But the fact that the sheriff's deputy or deputies may be disqualified, does not of itself disqualify the sheriff. State v. Le Doux, supra; State v. Salter, Mo.App. 256 S.W. 1068; People v. Swanson, Cal.App., 75 P.2d 623.

Appellant's second assignment brings up the refusal of the trial court to give requested instructions Nos. 1, 6, 7, 8 and 9. Request No. 1 is as follows:

"The burden of proof is upon the State to prove beyond all reasonable doubt the following elements of the crime of forgery: 1, that the defendant forged or counterfeited the seal and handwriting of another; 2, that he did so knowing the same to be forgery or counterfeit, with intent to defraud another; and 3, that he uttered, published or passed, or attempted to pass as true and genuine such forged or counterfeit check.

"I therefore instruct you that if the State fails to prove beyond a reasonable doubt any one or all of the foregoing elements of the crime of forgery, you must find the defendant not guilty." This is not a correct statement of the law. Sections 18-3601 and 18-3606, I.C., defining forgery, set forth a great many acts and means by which the crime may be committed. The commission of any one of the proscribed acts, with the intent to defraud, is sufficient. State v. McDermott, 52 Idaho 602, 17 P.2d 343; State v. Allen, 53 Idaho 737, 27 P.2d 482. It is obvious that the commission of the crime of forgery cannot be limited to cases requiring "that the defendant forged or counterfeited the seal and handwriting of another." Further, the crime is committed by making, altering, etc., with the necessary intent as well as by uttering, publishing, passing, etc., with intent. If the prosecution proves the commission of the offense by either of these means, it is sufficient. The state is not required to prove both, as was requested by the appellant. State v. McDermott, supra.

Appellant's request No. 6 sought an instruction on circumstantial evidence. His assignment in this respect is not argued, and the state's case, not being based upon circumstantial evidence, the point will not be further considered.

Request No. 7 is as follows:

"You are instructed that in every crime or public offense there must be a union, or joint operation, of act and intent, or criminal negligence.

"If you find that there did not exist a joint operation of act and intent on the part of the accused, you are instructed to acquit him." The first paragraph is substantially the language of the statute, section 18-114, I.C., and is and should be generally given. In cases where the statute defining the offense does not require any specific intent, the commission of the act wilfully and knowingly is sufficient. State v. Browne, 4 Idaho 723, 44 P. 552; State v. Keller, 8 Idaho 699, 70 P. 1051; State v. Henzell, 17 Idaho 725, 107 P. 67, 27 L.R.A.,N.S., 159; In re Baugh, 30 Idaho 387, 164 P. 529; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; State v. Sheehan, 33 Idaho 103, 190 P. 71; State v. Johnson, 39 Idaho 440, 227 P. 1052; State v. Sterrett, 35 Idaho 580, 207 P. 1071. In cases where specific intent is a part of the statutory definition of the crime, such as forgery, the intent must be alleged and proved. State v. Swensen, 13 Idaho 1, 81 P. 379, 37 C.J.S., Forgery, § 3, p. 34, 23 Am.Jur. 688. In this case the information charged that the appellant made the check "with intent to defraud" and that he uttered the check "with intent to defraud." The complete charge as contained in the information was given to the jury by the court and, in its instruction No. 2, the court gave a part of the statute defining forgery as follows:

"Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits any check * * * or who counterfeits or forges the seal or handwriting of another, or utters, publishes, passes or attempts to pass as true and genuine any such false, altered, forged or counterfeited check, knowing the same to be false, altered, forged or counterfeited, with intent to prejudice, damage or defraud any person, is guilty of forgery." (Emphasis added.)

In its instruction No. 3, the court informed the jury that "it is incumbent on the State to prove every material allegation of the Information to be true beyond a reasonable doubt, or else you should acquit the defendant." (Emphasis added.)

Appellant's No. 8 was a request for an instruction substantially in the language of section 18-116, I.C. In its...