State v. Bond

• Decision Date: 19 June 1906
• Citation: 12 Idaho 424,86 P. 43
• Parties: STATE, Respondent, v. WILLIAM HENRY HICKS BOND, Appellant
• Court: Idaho Supreme Court

86 P. 43

12 Idaho 424

STATE, Respondent, v. WILLIAM HENRY HICKS BOND, Appellant

Supreme Court of Idaho

June 19, 1906

PRELIMINARY EXAMINATION-MOTION TO SET ASIDE INFORMATION-CORROBORATION OF ACCOMPLICE-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS-ERRONEOUS INSTRUCTIONS-NEWLY DISCOVERED EVIDENCE.

1. Where two parties are separately charged with a felony, upon the preliminary examination of one, the other is called as a witness on behalf of the prosecution, he may refuse to answer any questions either on his examination in chief or on cross-examination that would tend in the least to incriminate him.

2. A motion to set aside the information on the ground that the witness or accomplice refused to answer certain questions on cross-examination at the preliminary examination that in the opinion of the witness tended to incriminate her, will not be sustained.

3. Under the provisions of section 7871, Revised Statutes, an accomplice must be corroborated on some material fact or circumstance which tends to connect the defendant with the commission of the offense, independent of the evidence of the accomplice.

4. Where there are disputed facts submitted to a jury, their verdict will not be disturbed by this court, unless it is apparent from the record that their verdict is unwarranted by the evidence. Held, the evidence sufficient in this case to support the verdict.

5. Where the instructions, taken as a whole, amply and fully state the law of the case, the judgment will not be reversed it being the duty of the jury to consider the entire charge even though there may have been an instruction partially erroneous, where it is evident that such instructions did not mislead the jury.

6. Where it is shown that the court erroneously instructed the jury that they "should act upon the evidence of an accomplice with great care and caution, and subject it to careful examination in the light of all the evidence in the case, and the jury ought not to convict upon such testimony alone, unless after a careful examination of such testimony they are satisfied, beyond all reasonable doubt, of its truth," is not sufficient ground for a reversal of the judgment where it is shown the court had twice given the statutory instruction that the accomplice must be corroborated, and it is shown that the accomplice has been corroborated.

7. A new trial will not be granted on the ground of newly discovered evidence, unless it is shown that the introduction of such evidence might change the result of the verdict of the jury in another trial, and sufficient reason must be shown why such evidence could not have been presented at the former trial.

(Syllabus by the court.)

APPEAL from District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.

Appellant was prosecuted in the lower court on information of the prosecuting attorney charging him with murder, and was found guilty of murder in the first degree. Judgment pronouncing the death penalty was entered, from which and an order overruling a motion for a new trial, the appeal is taken. Affirmed.

Affirmed.

Silas W. Moody and Perky & Blaine, for Appellant.

Whenever corroboration of the testimony of an accomplice is required it must be as to material facts. (Kenyon v. People, 26 N.Y. 203, 84 Am. Dec. 177; People v. Plath, 100 N.Y. 593, 53 Am. St. Rep. 236, 3 N.E. 790; People v Courtney, 28 Hun (N. Y.), 589; People v Williams, 29 Hun (N. Y.), 520; State v. Spencer, 15 Utah 49, 49 P. 302; People v. Thompson, 50 Cal. 480; People v. Morton, 139 Cal. 719, 724, 73 P. 609; Frazer v. People, 54 Barb. 310; People v. Koening, 99 Cal. 574, 576, 34 P. 238.)

The accomplice having gone upon the stand and disclosed matters which she might have refused to answer, she waived her privilege, and defendant had the right to cross-examine her thoroughly upon all matters connected with her direct examination. (State v. Larkin, 5 Idaho 200, 47 P. 945.) In no event should her counsel have been permitted to make the claim of privilege for her, the rule being that the claim is for the witness alone to assert. (1 Greenleaf on Evidence, 16th ed., 613; Underhill on Criminal Evidence, 304; State v. Kent (State v. Pancoast), 5 N. Dak. 516, 67 N.W. 1052, 35 L. R. A. 518; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688.)

After the court instructs the witness that he need not answer, as was done by the magistrate in this case, the witness may then answer if he choose to do so, and if after such caution he answers the question fully, he may then be compelled to divulge every detail of the incriminating transaction. (Underhill on Criminal Evidence, sec. 247, citing Williams v. State, 98 Ala. 52, 13 So. 333; Commonwealth v. Pratt, 126 Mass. 462; State v. Van Winkle, 80 Iowa 15, 45 N.W. 388; 3 Rice on Criminal Evidence, 517, 518, 521, citing Commonwealth v. Price, 10 Gray, 472, 71 Am. Dec. 688; State v. Foster, 23 N.H. 348, 55 Am. Dec. 191; Foster v. Pierce, 11 Cush 437, 59 Am. Dec. 152; Foster v. People, 18 Mich. 276; State v. Ober, 52 N.H. 459, 13 Am. Rep. 88.)

An accomplice is not entitled to the same privilege as an ordinary witness. (Alderman v. Epole, 4 Mich. 414, 9 Am. Dec. 321.) Great latitude should be allowed in the cross-examination of an accomplice. (3 Rice on Criminal Evidence, 517.)

The right to cross-examine witnesses is a substantial right of great advantage to the accused, which, if denied, deprives him of a valuable right. (Matter of Gessner, 53 How. Pr. (N. Y.) 519.)

A correct instruction cannot be said to modify or supplement a wrong one, as is the case where they are not contradictory. (Hughes' Instructions to Juries, sec. 247, and cases cited; Lufkins v. Collins, 2 Idaho 152, 7 P. 95; Holt v. Spokane R. R. Co., 3 Idaho 703, 35 P. 39; State v. Webb, 6 Idaho 428, 55 P. 892.)

The giving of two instructions widely differing from each other on the same vital point in issue in a case is such error that a new trial will be given. An absolute misstatement of the law in giving instructions is not corrected by properly stating the law in other instructions. (Hughes' Instructions to Juries, sec. 248; Sackett's Instructions to Juries, 2d ed., sec. 27, and cases cited; Mackey v. People, 2 Colo. 13; People v. Campbell, 30 Cal. 312; Clair v. People, 9 Colo. 122, 10 P. 799.)

And it must affirmatively appear that an error in a charge did not prejudice defendant, or it is cause for reversal.

J. J. Guheen, Attorney General, Edwin Snow, Chas. F. Koelsch, County Attorney, and H. L. Fisher, for Respondent.

The case of an accused in a criminal trial who voluntarily takes the stand is different from that of the ordinary witness. Here his privilege has protected him from being asked even a single question, for the reason that no relevant fact that could be inquired about would not tend to criminate him. (4 Wigmore on Evidence, 3153, par. 2276.) But a witness situated as Mrs. Daly was may be compelled to be sworn and to answer all such questions as will not incriminate him, and whether a question will necessarily elicit such answer is not left solely to the judgment or caprice of the witness; the court must rule on the objection. (Ex parte Stice, 70 Cal. 51, 11 P. 459; In re Rogers, 129 Cal. 468, 62 P. 47; Overend v. Superior Court, 131 Cal. 280, 63 P. 372, People v. Plyler, 121 Cal. 160, 53 P. 553.)

The crime itself was a distinct act, and to have compelled her to give evidence showing her an accessory would have violated her privilege. (Evens v. O'Conner, 174 Mass. 287, 75 Am. St. Rep. 316, 54 N.E. 557; Lombard v. Mayberry, 24 Neb. 671, 8 Am. St. Rep. 234, 40 N.W. 271; Emery v. State, 101 Wis. 627, 78 N.W. 145.)

Mere irregularities or defects in the preliminary examination of a charge will not render it invalid unless they actually prejudice the defendant, or tend to his prejudice in respect to some substantial right. (State v. Clark, 4 Idaho 7, 35 P. 710; People v. Rodrigo, 69 Cal. 601, 11 P. 481; State v. Bailey, 32 Kan. 83, 3 P. 769; People v. McCurdy, 68 Cal. 576, 10 P. 207; People v. Van Horn, 119 Cal. 323, 51 P. 538; Hamilton v. People, 29 Mich. 173.)

Counsel have the right in protecting their clients to raise the point of privilege and call the attention of the court to the matter. (State v. Kent, 5 N. Dak. 516, 67 N.W. 1052, 35 L. R. A. 518.)

The scope and purpose of a preliminary examination is merely to ascertain that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof. (Rev. Stats. 1887, 7579; State v. Potter, 6 Idaho 584, 57 P. 431; In re Levy, 8 Idaho 53, 66 P. 806; In re Mitchell, 1 Cal.App. 396, 82 P. 347; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, 104 N.W. 154.)

The relations shown to have existed between the defendant and his accomplice supply corroboration of the accomplice's testimony as to motive. (People v. Cook, 148 Cal. 334, 83 P. 43.)

Illegality in the mode of obtaining evidence cannot exclude it, but must be redressed, or punished, or resisted by appropriate proceedings otherwise taken. (3 Wigmore on Evidence, sec. 2183.)

Defendant's letter was introduced for the sole purpose of showing motive, and it was by the court limited to this purpose. If it is admissible for the purpose claimed, then the other consideration that it may discredit the defendant with the jury cannot bar its admission, but requires only that its purpose be limited by instructions from the court. (1 Wigmore on Evidence, sec. 13; Conde v. State, 35 Tex. Cr. 98, 60 Am. St. Rep. 22, 34 S.W. 286; Thornley v. State, 36 Tex. Cr. 118, 61 Am. St. Rep. 837, 34 S.W. 264; People v. Gray, 66 Cal. 271, 5 P. 240.)

For the purpose of proving motive for the murder of the deceased evidence of the declarations of the defendant tending to show intimate...