State v. Bouchard

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BUDGE, J.
• Citation: 149 P. 464,27 Idaho 500
• Parties: STATE, Respondent, v. J. J. BOUCHARD, Appellant
• Decision Date: 10 June 1915

149 P. 464

27 Idaho 500

STATE, Respondent,
v.
J. J. BOUCHARD, Appellant

Supreme Court of Idaho

June 10, 1915

IMPEACHMENT OF WITNESS-GENERAL REPUTATION-STRIKING OF TESTIMONY-DISCRETION OF COURT-INSTRUCTIONS TO JURY-DISCUSSION OF ERRORS-WEIGHT OF EVIDENCE.

1. Where a witness, having stated that the reputation of the complaining witness for truth, honesty or integrity in the community where he resided was bad, was asked, "In view of that reputation, would you believe him under oath?" in the absence of a proper foundation having been laid to show that the witness was in possession of such knowledge as would make him a competent witness to answer such question, it was not error for the court to refuse to permit the witness to answer.

2. Whether such a question is a proper one under the statutes of this state, quaere.

3. Held, that in view of all the evidence in this case the action of the trial court in striking out a portion of the testimony of witness Trummel who, after testifying that the reputation of the complaining witness in the community of St. Maries was bad, upon cross-examination and apparently not responsive to the question, recited street gossip and conversations overheard by him of particular acts of bad conduct of the prosecuting witness, was not prejudicial error, the right to strike such testimony being largely within the sound discretion of the trial court, and where there is no abuse of such discretion, the verdict of the jury will not be disturbed. However, the practice of eliciting immaterial evidence and then moving to strike such testimony from the record is not to be commended.

4. Where the record discloses no prejudice, motive, feeling of ill-will or revenge on the part of the complaining witness against the defendant, and where it does not appear that the complaining [27 Idaho 501] witness was specially employed to make up evidence against the defendant, it is not error for the court to refuse to give an instruction to the jury that "Greater care should be exercised in weighing the testimony of informers, detectives and other persons specially employed to make up evidence against the defendant, than in the case of witnesses who are wholly disinterested."

5. The credibility of the witnesses, as well as the weight to be given to their testimony, is exclusively for the jury, and it would be error for the court to indicate the degree of credibility or the weight that should be given to the testimony of any witness.

6. Where specifications of error appear for the first time in counsel's brief, upon an appeal from a judgment and from an order denying a new trial, and do not appear in the transcript or in appellant's application for a new trial, such specifications of error will not be considered.

7. It is within the province of the court to say whether or not the evidence is competent or admissible, but its weight, credibility and sufficiency are primarily for the jury. There is no more justification for the court to assume the functions of the jury than for the jury to assume the duties of the court. Sec. 4824, Rev. Codes, provides: "Upon an appeal from a judgment, the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken: Provided, that whenever there is substantial evidence to support a verdict the same shall not be set aside."

8. Where there is evidence to sustain the verdict and there is a substantial conflict in the evidence, the verdict will not be disturbed. (State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Silva, 21 Idaho 247, 120 P. 835; State v. Downing, 23 Idaho 540, 130 P. 461; State v. Hopkins, 26 Idaho 741, 145 P. 1095, approved and followed.)

9. Held, that the court did not err in refusing to grant a new trial.

APPEAL from the District Court of the Eighth Judicial District for Benewah, formerly Kootenai, County. Hon. R. N. Dunn, Judge.

Prosecution for the crime of selling intoxicating liquors in a prohibition district. Judgment of guilty, from which defendant appeals. Affirmed.

Affirmed.

McFarland & McFarland and R. B. Norris, for Appellant.

After a witness has once testified that the general reputation of another witness, in the community in which he resides, for truth or veracity, honesty or integrity is bad, he may testify whether or not he would believe him under oath. (Stevens v. Irwin, 12 Cal. 306; Wise v. Wakefield, 118 Cal. 107, 50 P. 310; Mitchell v. State, 148 Ala. 618, 42 So. 1014; Bullard v. Lambert, 40 Ala. 204; Spies v. People, 122 Ill. 1, 3 Am. St. 320, 12 N.E. 865, 17 N.E. 898; Knight v. House, 29 Md. 194, 96 Am. Dec. 515; Keator v. People, 32 Mich. 484; People v. Rector, 19 Wend. (N. Y.) 569; Hillis v. Wylie, 26 Ohio St. 574; Page v. Finley, 8 Ore. 45; Lyman v. Philadelphia, 56 Pa. 488; State v. Murphey, 48 S.C. 1, 25 S.E. 43. Teese v. Huntington, 23 How. (U.S.) 2, 16 L.Ed. 479.)

The following instruction, requested by the defendant, "The jury are instructed that greater care should be exercised in weighing the testimony of informers, detectives and other persons specially employed to make up evidence against the defendant, than in the case of witnesses who are wholly disinterested," is a reasonable one, and the court, in refusing to give it, committed reversible error. (40 Cyc. 2655; Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835, 30 N.W. 626; Kastner v. State, 58 Neb. 767, 79 N.W. 713.)

J. H. Peterson, Atty. Genl., E. G. Davis, T. C. Coffin and Herbert Wing, Assistants, and N.D. Wernette, for Respondent.

Perhaps the weight of authority is now against permitting a witness to testify as to his own opinion on reputation. (Greenleaf on Evidence, 15th ed., art. 461.)

"Although the propriety of such questions has been doubted, yet the great weight of authority sustains the practice." (Jones on Evidence, 2d ed., art. 862, and authorities there cited.)

Even the line of cases cited by counsel for appellant holds that "the opinion of the credibility of a witness is held to be admissible on the same ground that opinions in regard to sanity, disposition, temper, distances, velocity, etc., are admissible." (Phillips v. Kingfield, 19 Me. 375, 36 Am. Dec. 760.)

The prevailing rule in the United States is to conform the inquiry to the reputation of the witness for truth and veracity. (Dimick v. Downs, 82 Ill. 570; Rudsill v. Slingerland, 18 Minn. 380; Sargent v. Wilson, 59 N.H. 396; Shaw v. Emery, 42 Me. 59; Jones on Evidence, 2d ed., art. 861.)

Under this rule inquiry cannot be made of the witness as to particular facts which tend to discredit the reputation of the person sought to be impeached. (Johnson v. State, 61 Ga. 305; Dimick v. Downs, supra; Conley v. Meeker, 85 N.Y. 618; Shaefer v. Missouri P. R. Co., 98 Mo.App. 445, 72 S.W. 154; Jones on Evidence, 2d ed., art. 860.)

It is not within the proper province of the judge to instruct the jury as to the relative credibility of classes of witnesses whose testimony comes in conflict. (Jones on Evidence, 2d ed., art. 901; Nelson v. Vorce, 55 Ind. 455; Hronek v. People, 134 Ill. 139, 23 Am. St. 652, 24 N.E. 861, 8 L. R. A. 837.)

"While the jury may consider whether or not the testimony of a detective or private policeman should be taken with some allowance, yet an instruction to the effect that such evidence should be received with a large degree of caution has been held error." (Hronek v. People, supra; State v. Hoxsie, 15 R. I. 1, 2 Am. St. 838, 22 A. 1059; Town of St. Charles v. O'Mailey, 18 Ill. 407.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

[27 Idaho 503] BUDGE, J.

Appellant Bouchard was informed against, prosecuted for and convicted of the crime of wilfully and unlawfully selling intoxicating liquors in violation of law to one James Doyle on October 9, 1914, at St. Maries, then Kootenai, now Benewah county, Idaho.

Upon the verdict of the jury finding the defendant guilty of the unlawful sale of intoxicating liquors the court sentenced the appellant to ten days in the county jail and to pay a fine of $ 100 and the costs of the action, fixed by the court at $ 237. Within the time provided by the statutes and the orders of the court extending the time therefor, appellant duly and regularly made application for a new trial, which [27...