State v. Bedwell

• Decision Date: 18 July 1955
• Docket Number: No. 8162,8162
• Citation: 286 P.2d 641,77 Idaho 57
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Theoadore Delores BEDWELL, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 641

286 P.2d 641

77 Idaho 57

STATE of Idaho, Plaintiff-Respondent, v. Theoadore Delores BEDWELL, Defendant-Appellant.

No. 8162.

Supreme Court of Idaho.

July 18, 1955.

Charles J. Kiblen and Tom Felton, Moscow, for appellant.

Graydon W. Smith, Atty. Gen., John R. Smead, Asst. Atty. Gen., Melvin J. Alsager, Moscow, for respondent.

SMITH, Justice.

Oscar Bailey owned and operated Bailey's Tavern in Bovill, Idaho, for a time prior to and on August 23-24, 1953. He had hired Frank Wilson as a night watchman to watch the place, as it had been broken into twice.

The tavern's rear door had glass in the upper portion protected by bars of 3/4 inch pipe. The drop or step-down, outside the rear door was about nine inches below the level of the tavern floor. An alley, in which was an arc light, was situate to the rear of the lot location of the tavern.

The night of August 23, 1953, the tavern was closed for the night about 11:00 o'clock P.M. Mr. Bailey then went to the second floor, which he and his wife occupied as their living quarters; they retired about 12:45 the morning of August 24th.

Frank Wilson had his sleeping quarters on the ground floor. He checked the latches on the front and rear doors, including the bolt used to lock the rear door; glanced out the windows, noted the rainy weather, turned off the lights and retired about midnight.

Later, Wilson was awakened by a noise as of someone 'prying on the door.' He got up and saw a human figure outlined through the glass of the rear door, which area was lighted some by the arc light in the alley. He watched the activities of the person for several minutes; then he went to his sleeping quarters, put on some clothes, obtained his .22 automatic pistol, returned to the rear door and continued his observations. The person was still outside working on the door. When the door started to bulge Wilson moved to a position about a foot or two from the door on his hands and knees; the lock on the door sprung and the casing started to 'come in.' He then fired four shots through the lower wooden part of the door. He fired three of the shots at the person working on the door, i. e., one at his arm and two at his leg; then he fired a fourth shot at the outline of another person he had seen when he had gotten over to the door.

Mr. Wilson then finished unbolting the lock, the bolt of which was bent, stepped out of doors, and there found a man, lying on his back a few feet from and angling to the right of the rear door,--variously estimated at eight to twelve feet,--his feet nearest the door. The man proved to be the appellant. He had been shot once in the arm and twice in the leg. The upper part of the femur bone had been fractured by two bullet wounds in the thigh. The wounding bullets of .22 caliber were recovered; they had penetrated appellant's body almost horizontally from the front.

The shots awakened Mr. Bailey, who, after slipping on clothes, in a minute or thereabouts was downstairs and out the back door. He also saw appellant lying, as Wilson stated, a few feet from the back door. Appellant at the time wore gloves on his hands.

A large screw driver was found about a foot to a foot and a half from the back door; a smaller screw driver was found beside appellant's body. The screw drivers were introduced in evidence (State's Exhibs. Nos. 1 and 2).

There were some four or five freshly made marks on the door as made by a 'square object' used in prying. The door casing where the lock bolt entered its socket had been torn loose and a piece of the casing was 'hanging on the inside.' The bolt was bent inward, 'the door had been pushed in and the hook on it was tore off.' The door showed the four bullet holes, three of which went through straight and one diagonally. The door was introduced in evidence (State's Exhib. No. 3). The two former burglaries had not been accomplished through the back door. The door was in the same condition as when Mr. Bailey acquired the tavern during 1951 except for the recently made marks and bullet holes.

Before arrival of the deputy sheriff and a physician from Moscow, Mr. Vigue, the marshal of Bovill, arrived at the tavern shortly after 1:00 o'clock A.M., and found appellant as described. The marshal asked appellant who was with him on the break-in and received the reply, 'He said nobody; he was alone.' The marshal also made inquiry of appellant about the screw drivers and got his reply, i. e., 'I asked him if those were his and he said yes, those were his screw drivers.'

Appellant denied that he had a car but search of his person revealed his license in his pocketbook for a 1946 Buick automobile; next morning the marshal located the car to the rear and about 265 feet from Bailey's Tavern, containing a 'bunch of tools' and other things; it was in good running order and its tank showed full of gas.

The witnesses, Bailey, Wilson and the Bovill marshal positively testified that the arc light in the alley to the rear of the tavern was on, while the deputy sheriff and the physician testified that they did not notice the light being on.

The attending physician entertained the opinion that appellant because of the severe shock suffered by the shattering of his upper femur, would not be able to traverse the short distance--some eight to twelve feet--from the tavern's back door.

Appellant waived a preliminary examination before a magistrate, and upon arraignment in the district court, entered a plea of not guilty of the offense as charged in the information; thereafter the trial court denied his motion for dismissal of the action for failure to bring him before a magistrate without unnecessary delay.

At the conclusion of appellant's trial the jury returned its verdict of guilty, followed by entry of judgment of conviction. Appellant made a motion for a new trial which the trial court denied. Appellant thereupon perfected his appeal.

Appellant assigns error of the trial court in failing to grant his motion to dismiss the action by reason of respondent's failure to bring him before a magistrate without unnecessary delay. I.C. § 19-615.

Appellant cannot take advantage of the complained of irregularity in the manner attempted. He made no motion prior to the time that he entered his plea. He waived the irregularity, I.C. § 19-1602. Moreover the irregularity, if such there was, did not deprive the district court of jurisdiction to try appellant. State v. Poynter, 70 Idaho 438, 220 P.2d 386.

Appellant assigns error of the trial court in failing to grant a new trial on the ground that the undisputed evidence is entirely consistent with appellant's innocence. Appellant urges that the evidence is entirely circumstantial and therefore insufficient to satisfy the rule, that to support a conviction based solely on circumstantial evidence the material circumstances must be consistent with the guilt of the accused and inconsistent with his innocence.

The evidence is direct which establishes the facts hereinbefore set forth, and undisputed except in the instances indicated. All such direct evidence indicates the commission of the offense charged, and was adduced by the testimony of witnesses who, with their physical senses, perceived conduct constituting the offense, and whose testimony relates to what they thereby perceived. Further, there was sufficient connection between State's Exhibits Nos. 1 and 2,--the screw drivers,--including where they were found, and appellant's admitted ownership of the tools, to admit them in evidence, since the tools so admitted were capable of being used in making the entry. State v. Kleier, 69 Idaho 278, 206 P.2d 513. The rule which appellant urges cannot be applied herein not only because of the direct...