State v. Bogris

CourtIdaho Supreme Court
Writing for the CourtBUDGE, J.
Citation26 Idaho 587,144 P. 789
Decision Date19 December 1914
PartiesSTATE, Respondent, v. JOHN BOGRIS, Appellant

144 P. 789

26 Idaho 587

STATE, Respondent,
v.

JOHN BOGRIS, Appellant

Supreme Court of Idaho

December 19, 1914


LARCENY OF CHECKS FROM PAYEE-EVIDENCE-ADMISSIBILITY OF TO PROVE HANDWRITING-INSTRUCTIONS-BURDEN OF PROOF IN DEFENSE OF ALIBI-CONSIDERATION OF NECESSITY FOR INTERPRETER IN PRESENCE OF JURY-IMPEACHMENT OF DEFENDANT'S TESTIMONY-POSSESSION OF RECENTLY STOLEN PROPERTY.

1. Upon a prosecution for larceny of a check for a certain amount of money, no proof of actual value is required, according to the provisions of sec. 7053, Rev. Codes, as the law presumes that the face value of the check is the actual value.

2. In a prosecution for the larceny of certain checks it is not incumbent upon the state, for the purpose of establishing the value of the checks stolen, to offer proof of their due execution by the payer, or to prove the fact that they were never endorsed by the payee.

3. Held, that Exhibits "A" and "B," consisting of checks charged to have been stolen by the defendant in this case, and to have been endorsed by him with the name of the payee, were admitted in evidence in the first instance, not for the purpose of comparison of handwriting, but for the purpose of establishing the crime committed.

4. The question, whether or not a witness requires an interpreter, is a question for the court, and where counsel for defendant neglects to request the court to pass upon this question without the presence of the jury, he cannot afterward assign as error the action of the court in not excusing the jury while this matter was being considered.

5. The state cannot be deprived of the right to cross-examine a witness by the mere statement that such witness does not speak the English language; and, if it is afterward established that such witness speaks and understands the English language, he is estopped from taking any advantage of his conduct in asserting his inability to speak and understand said language.

6. Where the court instructs the jury to the effect that if any witness wilfully testified falsely as to any material fact, the jury were at liberty to disregard the entire testimony of such witness, except in case his testimony should be corroborated by other and reliable witnesses, the testimony of defendant having been impeached by the prosecution, but it appearing, so far as the record shows, that [26 Idaho 588] such instruction applied generally to all of the witnesses testifying in the case, the giving of such instruction was not error.

7. The following instruction, "Where the state proved such a case as would sustain a verdict of guilty, and the defendant then offers evidence, the burden of proof is on said defendant to make out his defense, and when the proof is all introduced then the primary question is, in the light of all the evidence, is the defendant guilty beyond a reasonable doubt," is not prejudicial to the defendant, by merely making it incumbent upon him to offer sufficient proof to raise a reasonable doubt in the minds of the jury as to his guilt.

8. If the defendant relies upon an alibi for the defense the burden of establishing such alibi is upon him. (State v. Webb, 6 Idaho 428, 55 P. 892, cited and approved.)

9. In giving the following instruction, the trial court did not trespass upon the right of the jury to pass upon all questions of fact, in accordance with the provisions of subd. 6, sec. 7855, Rev. Codes:

"You are further instructed that if you believe from the evidence beyond a reasonable doubt that the property described in the information was stolen and that the defendant was found in the possession of the property after it was stolen, then such possession is, in law, a strong, incriminating circumstance, tending to show the guilt of the defendant unless the evidence and the facts and circumstances thereunder show that he may have come honestly in possession of the same.

"In this connection I further instruct you that if you find from the evidence beyond a reasonable doubt that the property described in the information was found in the possession of the defendant, then in determining whether or not the defendant is guilty you should take into consideration all of the circumstances attending such possession."

10. The possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred. (State v. Sanford, 8 Idaho 187, 67 P. 492, cited and approved.)

11. Held, that no error was committed by the trial court in the giving of instructions in this case or refusal to give certain instructions offered by the defendant.

APPEAL from the District Court of the First Judicial District for the County of Shoshone. Hon. W. W. Woods, Judge.

Conviction for the crime of grand larceny. Defendant appeals. Affirmed.

Affirmed.

Chas. E. Miller and W. W. Bixby, for Appellant.

Proof of handwriting by comparison with other handwriting not relevant to any issue, aside from similarity with that in question, is not permissible under the laws of Idaho. (Wharton's Criminal Evidence, sec. 555; Castor v. Bernstein, 2 Cal.App. 703, 84 P. 244; Moore v. United States, 91 U.S. 270, 23 L.Ed. 346; Bane v. Gwinn, 7 Idaho 439, 63 P. 634.)

A witness cannot be impeached on collateral matters, or upon matters not at all material to the issue. (Wharton's Criminal Ev., secs. 482-484; Hilbert v. Spokane etc. R. R. Co., 20 Idaho 54, 60, 116 P. 1116; Western Union Oil Co. v. Newlove, 145 Cal. 772, 79 P. 542; State v. Deal, 41 Ore. 437, 70 P. 532.)

If, by proof of an alibi, a defendant is able to raise a reasonable doubt as to his being at a certain place about the time in question he is entitled to an acquittal. (State v. Conway, 55 Kan. 323, 40 P. 661; People v. Dick, 32 Cal. 213; State v. Mackey, 12 Ore. 154, 6 P. 648; State v. Porter, 74 Iowa 623, 38 N.W. 514; Deggs v. State, 7 Tex. App. 359.)

The judge must not charge the jury in respect to matters of fact, and, besides, does not state the law correctly in instruction No. 6. (State v. Walters, 7 Wash. 246, 34 P. 938, 1098; State v. Bliss, 27 Wash. 463, 68 P. 87.)

The presumption that the person found in possession of recently stolen property is the thief, is not a presumption of law, but one of fact. There is no legal rule on the subject; but much depends on the nature of the property stolen and the circumstances of each particular case. (Smith v. State, 58 Ind. 340; State v. Hodge, 50 N.H. 510; State v. Jennett, 88 N.C. 665; Stover v. People, 56 N.Y. 315; Bellamy v. State, 35 Fla. 242, 17 So. 560; Ingalls v. State, 48 Wis. 647, 4 N.W. 785; Jones v. State, 26 Miss. 247; State v. Pomeroy, 30 Ore. 16, 46 P. 797; State v. Walker, 41 Iowa 217; People v. Fagan, 66 Cal. 534, 6 P. 394; Considine v. United States, 112 F. 342, 50 C. C. A. 272.)

The burden of proof does not shift on the establishing of a prima facie case by the state, but continues on the state throughout the trial and until the verdict is rendered, and defendant's guilt is established beyond a reasonable doubt. (12 Cyc. 379; People v. Perini, 94 Cal. 573, 29 P. 1027; State v. Schweitzer, 57 Conn. 532, 18 A. 787, 6 L. R. A. 125; Trogdon v. State, 133 Ind. 1, 32 N.E. 725; State v. Brady (Iowa), 91 N.W. 801; People v. McWhorter, 93 Mich. 641, 53 N.W. 780; State v. Hardelein, 169 Mo. 579, 70 S.W. 130; Davis v. State, 54 Neb. 177, 74 N.W. 599; People v. Downs, 123 N.Y. 558, 25 N.E. 988; State v. Carland, 90 N.C. 668; Turner v. Commonwealth, 86 Pa. St. 54, 27 Am. Rep. 683; Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624.)

J. H. Peterson, Attorney General, T. C. Coffin, and E. G. Davis, Assistants, for Respondent.

Prima facie the value of a check which has become the subject of larceny is the amount of money for which it passed current, or its face value. (State v. Hinton, 56 Ore. 428, 109 P. 24; Pyland v. State, 36 Tenn. (4 Sneed) 357; State v. Collins, 49 La. Ann. 1198, 22 So. 357; Peterson v. State, 6 Ga.App. 491, 65 S.E. 311; Whalen v. Commonwealth, 90 Va. 544, 19 S.E. 182; Rev. Codes, sec. 7053.)

Exemplars of handwriting are admissible in evidence for the sole purpose of comparison with handwriting which is in dispute, when the exemplar is admitted to be genuine or is proved to be such to the satisfaction of the judge. (Bane v. Gwinn, 7 Idaho 439, 63 P. 634; State v. Seymour, 10 Idaho 699, 79 P. 825 (dissenting opinion); Colonel Algernon Sydney's Case, 9 How. St. Tr. 818; Horne Tooke's Case, 25 How. St. Tr. 19; University of Illinois v. Spalding, 71 N.H. 163, 51 A. 731, 62 L. R. A. 817; 15 Am. & Eng. Ency. of Law, 270 (note 2); Baker v. Haines, 6 Whart. (Pa.) 284, 36 Am. Dec. 224; Moody v. Rowell, 17 Pick. (Mass.) 490, 28 Am. Dec. 317; Smith v. Hanson, 34 Utah 171, 96 P. 1087, 18 L. R. A., N. S., 520.)

When the natural and adequate mode of expression of the defendant, in a criminal action, is not intelligible, he is entitled to an interpreter. In each instance, whether this need exists, is to be determined by the court. (Wigmore on Evidence, sec. 811.)

It is within the sound discretion of the court to allow the state to inquire into the necessity for an interpreter, when the court has reason to feel that he has been imposed upon. (3 Ency. of Evidence, 807.)

All the instructions upon a particular point must be considered together in determining whether or not an instruction is misleading. (People v. Bernard, 2 Idaho 193, 10 P. 30; State v. Bond, 12 Idaho 424, 86 P. 43.)

Where instructions fully and fairly state the law upon the questions involved it is not error for the court to refuse further instructions requested by the state or the defendant. (United States v. Camp, 2 Idaho 231, 10 P. 226; State v. O'Neil, 24 Idaho 582, 135 P. 60.)

When the state has proved such a case as would sustain a verdict of guilty, that is to say, has proved its case to the satisfaction of the jury beyond a reasonable doubt, and the defendant offers evidence,...

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21 practice notes
  • State v. Owens, No. 12272
    • United States
    • United States State Supreme Court of Idaho
    • October 18, 1979
    ...above passage was not a mere inadvertency, the State saying that Instruction No. 41 resembles the instruction given in State v. Bogris, 26 Idaho 587, 144 P. 789 (1914), goes on to say: "Both presume the property was stolen and both instruct that the defendant's possession of the property pr......
  • State v. Davis, 6366
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...from which, when unexplained, the guilt of the accused may be inferred, which proposition has been reaffirmed in State v. Bogris, 26 Idaho 587 at 601, 144 P. 789; State v. Jackett, 45 Idaho 720 at 723, 264 P. 875; State v. Yancey, 47 Idaho 1 at 6, 272 P. 495. The court therefore properly in......
  • State v. Boyles
    • United States
    • United States State Supreme Court of Idaho
    • August 4, 1921
    ...a modified and misleading manner. (State v. Willis, 24 Idaho 252, 132 P. 962; 40 Cyc. 2588; 16 C. J. 1017, sec. 2442 (e); State v. Bogris, 26 Idaho 587, 144 P. 789; State v. Waln, 14 Idaho 1, 80 P. 221; People v. McDonald, 167 Cal. 545, 140 P. 256; State v. Lee, 34 Mont. 584, 87 P. 977; Sta......
  • State v. Ponthier, No. 10183
    • United States
    • United States State Supreme Court of Idaho
    • January 13, 1969
    ...which the jury could find him guilty of the crime of burglary.' 90 Idaho at 163, 409 P.2d at 120. To the same effect is State v. Bogris, 26 Idaho 587, 144 P. 789 (1914). This rule is also supported by a majority of the other jurisdictions. State v. James, 194 Mo. 268, 92 S.W. 679 (1906); Pe......
  • Request a trial to view additional results
21 cases
  • State v. Owens, No. 12272
    • United States
    • United States State Supreme Court of Idaho
    • October 18, 1979
    ...above passage was not a mere inadvertency, the State saying that Instruction No. 41 resembles the instruction given in State v. Bogris, 26 Idaho 587, 144 P. 789 (1914), goes on to say: "Both presume the property was stolen and both instruct that the defendant's possession of the property pr......
  • State v. Davis, 6366
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...from which, when unexplained, the guilt of the accused may be inferred, which proposition has been reaffirmed in State v. Bogris, 26 Idaho 587 at 601, 144 P. 789; State v. Jackett, 45 Idaho 720 at 723, 264 P. 875; State v. Yancey, 47 Idaho 1 at 6, 272 P. 495. The court therefore properly in......
  • State v. Boyles
    • United States
    • United States State Supreme Court of Idaho
    • August 4, 1921
    ...a modified and misleading manner. (State v. Willis, 24 Idaho 252, 132 P. 962; 40 Cyc. 2588; 16 C. J. 1017, sec. 2442 (e); State v. Bogris, 26 Idaho 587, 144 P. 789; State v. Waln, 14 Idaho 1, 80 P. 221; People v. McDonald, 167 Cal. 545, 140 P. 256; State v. Lee, 34 Mont. 584, 87 P. 977; Sta......
  • State v. Ponthier, No. 10183
    • United States
    • United States State Supreme Court of Idaho
    • January 13, 1969
    ...which the jury could find him guilty of the crime of burglary.' 90 Idaho at 163, 409 P.2d at 120. To the same effect is State v. Bogris, 26 Idaho 587, 144 P. 789 (1914). This rule is also supported by a majority of the other jurisdictions. State v. James, 194 Mo. 268, 92 S.W. 679 (1906); Pe......
  • Request a trial to view additional results

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