State v. Barber

• Decision Date: 05 January 1907
• Citation: 88 P. 418,13 Idaho 65
• Parties: STATE, Respondent, v. CHARLES H. BARBER, Appellant
• Court: Idaho Supreme Court

88 P. 418

13 Idaho 65

STATE, Respondent, v. CHARLES H. BARBER, Appellant

Supreme Court of Idaho

January 5, 1907

WHEN COURT MAY APPOINT SUITABLE PERSON TO PERFORM DUTIES OF COUNTY ATTORNEY-ORDER FOR GRAND JURY MAY BE MADE BY DISTRICT JUDGE-COURT MAY ORDER AN OPEN VENIRE FOR PETITJURY-PEREMPTORY CHALLENGES-MAY SHOW FEELING OF HATRED OF WITNESS TOWARD DEFENDANT.

1. Under provisions of section 2 of the act entitled "Fixing the qualifications and prescribing the powers and duties of county attorneys" (Sess. Laws 1897, p 74), the court can only appoint a suitable person to perform for the time being, the duties of a county attorney upon the happening of some one of the reasons that disqualify the county attorney from performing his duties as provided for in that act.

2. Under the provisions of section 7, page 186, Session Laws of 1891, the judge of the district court may order a grand jury to be drawn as provided by law for any county of his district. It is not necessary that such order be made by the court.

3. Under the provisions of section 3961 of the Revised Statutes the court or judge may order an open venire to issue for such number of persons as may be required to appear for service at any term of court in his district.

4. When it is made to appear that the sheriff is disqualified from the service of any process in his county, the office is disqualified, and it is error to permit any deputy of such sheriff to serve any process wherein the sheriff is disqualified.

5. If a jury has been improperly summoned or summoned by an officer who is disqualified from serving the venire, or for any reason is an unlawful jury, in such case the exercise by the defendant of his peremptory challenges would not cure the defect, and he is not in such case compelled to exercise such challenges.

6. The accused may show feeling of hatred toward him of any witness for the prosecution, in order that the jury may determine to what extent the witness may color his testimony in favor of the prosecution.

7. It is immaterial what the duties of a witness in a certain occupation may be, the only question being what his opportunities were for knowing whereof he testifies.

8. The relative size and physical condition of deceased as well as defendant may be shown ordinarily, but it must be done by statement of facts and not by conclusion.

9. The statements of deceased three days after the affray, unless they are shown to be his dying disclosures, are inadmissible.

10. Uncommunicated threats are not admissible where there is no dispute as to who was the aggressor in the affray; they may be admitted when that question is mooted, or where there are no eyewitnesses to show who was most likely the aggressor.

11. When a defendant offers himself as a witness in his own behalf, he can only relate the facts, and not his conclusions; hence a question, "Did you go into the saloon that night for the purpose of bringing on a fight between yourself and Charlie?" is objectionable.

12. The general reputation of deceased for peace and quiet, unless known to the defendant at the time of the affray, or where the question is in doubt as to who was the aggressor, is inadmissible.

13. Section 7668 of the Revised Statutes of 1887 requires that the names of witnesses for the prosecution shall be indorsed on the indictment, and it is error to permit a witness to testify unless his name appears in the indictment or information, even though such witness be called in rebuttal. The same requirement is made as to information. (Sess. Laws 1899, p. 125.)

14. Where the court fully and fairly instructs the jury on all the issues revealed in the prosecution, it is not error to refuse requests for instructions offered by appellant.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.

Defendant was indicted by a grand jury, tried and convicted for manslaughter; sentenced to seven years in the state prison. This appeal is from the judgment and order overruling a motion for a new trial. Judgment reversed.

Reversed and remanded, with instructions.

Lot L Feltham, for Appellant.

Since the passage of the county attorney act of 1897, the court can appoint another person to perform the duties of the county attorney only upon the happening of one of the conditions mentioned in section 2 of said act (page 74). No such condition existed in this case, and the court presumed upon the law when it stated in the record that, "It appearing to the court that a necessity exists therefor, the prosecuting attorney being engaged in other matters, the court orders that Bertram S. Varian is appointed prosecuting attorney, etc." Nowhere does it appear that George P. Rhea was absent, or had acted as counsel for the accused, or was next of kin, or was unable to attend to his duties from sickness or other disability, or that there was any legal reason why the appointment should be made.

The grand jury was not summoned upon the order of the district court, as required by section 8 of article 1 of the constitution of Idaho but was illegally ordered drawn by the district judge in chambers outside of Washington county. A judge in chambers is not a court, and under said section 8 has no authority to order a grand jury drawn. The grand jury must be selected in the manner prescribed by law. (Bruner v. Superior Court, 92 Cal. 239, 28 P. 341.)

Permission cannot be properly granted to an attorney, employed to assist in the prosecution, to go before the grand jury and there act for the district attorney in framing the indictment. (Durr v. State, 53 Miss. 425; State v. Addison, 2 S.C. 356; United States v. Farrington, 5 F. 343; Thompson & Merriam on Juries, p. 584, sec. 3, p. 686, secs. 633, 634; State v. Heaton, 21 Wash. 59, 56 P. 843; Lewis v. Wake County, 74 N.C. 194-198.)

The presence of a person before the grand jury who is not authorized by law is highly improper, and must be taken advantage of by motion to quash before trial. (State v. Justus, 11 Or. 178, 50 Am. Rep. 470, 8 P. 337.)

The defendant objected to the calling of a petit jury by the sheriff on an open venire to try this case, because of the bias and prejudice of the sheriff. But if there had not been bias or prejudice against defendant on the part of the sheriff, it still was the right of defendant to have a jury drawn from the regular jury-box made up by the board of commissioners, and no reason appears from the records in this case for the court's refusal. (Rev. Stats., secs. 3947-3951; Const., sec. 18, art. 1.)

It was assumed by the court when it placed an open venire in the hands of the deputy sheriff, that it had avoided the criticism of the defendant that the sheriff was biased and prejudiced against him, and that the deputy sheriff was free from this charge. The act of the deputy is the act of the principal, and the principal being prejudiced and disqualified, and the deputy being subject to the control of the principal, the deputy is for the same reason disqualified and unfitted to serve the process. (People v. Enwright, 134 Cal. 527, 66 P. 725; 12 Ency. of Pl. & Pr. 273, 274, also p. 336; Rev. Stats., secs. 1887, 2085.)

It is apparent from the record that the defendant did not exhaust his entire peremptory challenges; his right to ten peremptory challenges was made useless, and could avail him nothing because the talesmen were subject to the same objection as these jurors already in the box. (People v. Dunn, 1 Idaho 74; Simmons v. Cunningham, 5 Idaho 421, 39 P. 1110.)

In the cross-examination of plaintiff's witness, H. N. Macomb, effort was made to show his feeling of animosity and hatred against the defendant. The interest and feeling of a witness are always material elements to be considered by the jury in weighing his testimony. (People v. Gregory, 120 Cal. 16, 52 P. 43; State v. Crea, 10 Idaho 88, 76 P. 1013.)

"It is error to refuse to allow defendant to state what kind of man deceased was physically." (Stephenson v. State, 110 Ind. 358, 59 Am. St. Rep. 216, 11 N.E. 360; Hurd v. People, 25 Mich. 404; State v. Shafer, 22 Mont. 17, 55 P. 527; State v. Crea, 10 Idaho 88, 16 P. 1013.)

Where the homicide was committed in the course of an altercation, and accused pleads self-defense, threats by the deceased, not communicated to defendant, are admissible, and it was error for the court to refuse proof of them. (State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883, 45 P. 145; Babcock v. People, 13 Colo. 515, 22 P. 817; People v. Farley, 124 Cal. 594, 57 P. 571; State v. Tarter, 26 Or. 38, 37 P. 53.)

Where there was evidence that deceased was the assaulting party, it was competent to prove that the general reputation of deceased for peace and quiet was bad, under a plea of self-defense. (State v. Shaffer, 22 Mont. 17, 55 P. 527; State v. Shadwell, 22 Mont. 559, 57 P. 281; Davidson v. People, 4 Colo. 145; State v. McGann, 8 Idaho 40, 66 P. 825; State v. Ellis, 30 Wash. 369, 70 P. 963; State v. Crea, 10 Idaho 88, 76 P. 1013; People v. Lamar, 148 Cal. 564, 83 P. 993; State v. Burton, 63 Kan. 602, 66 P. 633; Kirk v. Territory, 10 Okla. 46, 60 P. 797.)

No excuse was given by the state's attorneys for leaving the name of witness Ransopher off the indictment, and no request was ever made to put his name upon it. The court overruled defendant's objections, and permitted the witness on rebuttal to recite his view of what took place during the affray. This witness should have been called by the state, if they wanted his testimony, before the state rested, thus giving the defendant an opportunity to cross-examine him before the defendant was required to offer any testimony in defense. (Rev. Stats., sec. 7855.)

J. J Guheen, Attorney...