State v. Boykin

• Court: United States State Supreme Court of Idaho
• Citation: 234 P. 157,40 Idaho 536
• Parties: STATE, Respondent, v. LONNIE BOYKIN, Appellant
• Decision Date: 06 March 1925

234 P. 157

40 Idaho 536

STATE, Respondent, v. LONNIE BOYKIN, Appellant

Supreme Court of Idaho

March 6, 1925

MURDER-SUFFICIENCY OF INFORMATION-DENIAL OF COUNSEL-REFUSAL OF WITNESS TO CONVERSE WITH ADVERSE COUNSEL - CONTRADICTORY STATEMENTS OF ACCUSED - EFFECTS OF AS EVIDENCE - INSTRUCTION-NEW TRIAL-IMPEACHMENT OF VERDICT BY JUROR.

1. An information charging the crime of murder in the language of the statute is sufficient.

2. Under the facts in this case it was not prejudicial error for the court to refuse to instruct in the language of sec. 8720 C. S.

3. The court did not commit error in refusing to instruct the jury that it might take into consideration in weighing the evidence the refusal of a state's witness to talk with defendant's counsel.

4. Where the court refused to instruct the jury generally that it could consider contradictory statements of witnesses only for the purpose of impeachment, and it appeared that the accused who had been sworn and testified had also made contradictory statements, held, such refusal was not error accused's statements being admissible as proof of guilt.

5. Where on a motion for new trial on a conviction of manslaughter the court refused to entertain the depositions or oral testimony of jurors as to misconduct in the jury-room not involving the determination by chance, held, no error.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Defendant was convicted of the crime of voluntary manslaughter; he appealed from the judgment and order denying motion for new trial. Affirmed.

Affirmed.

Anderson & Jeffery, for Appellants.

The court should not have overruled the demurrer to the information and the objection should have been sustained to the introduction of evidence, as the information does not allege facts sufficient to constitute the crime of murder. (21 Cyc. 841; State v. Smith, 25 Idaho 541, 138 P 1107; People v. Weaver, 47 Cal. 106.)

Requested instruction No. 2 of defendants should have been given. (16 C. J. 821; C. S. 8720.)

Requested instruction No. 6 should have been given. (State v. Trego, 25 Idaho 625, 643, 138 P. 1124, 1130; 40 Cyc. 2687.)

The court should not have permitted the witnesses Palmer and Boykin to answer the impeaching questions found in the record. (C. S. 8039; Hilbert v. Spokane etc. R. R. Co., 20 Idaho 54, 116 P. 1116.)

The court may assume the existence of facts which are admitted by the parties, especially by the accused, or which are agreed upon by counsel, or which are established clearly and conclusively by the evidence beyond a reasonable doubt.

We admitted that there were contradictory statements in the record by asking for the giving of requested instruction No. 8 (Sec. 18, Branson, Inst. to Juries, Flex. ed.; 14 R. C. L. 738; 16 C. J. 850; Jones v. State (Tex. Cr.), 154 S.W. 1018; Wilson v. State, 37 Tex. Cr. 373, 39 S.W. 373; People v. Davenport, 13 Cal.App. 632, 110 P. 318; Culpepper v. State, 4 Okla. Cr. 103, 140 Am. St. 668, 111 P. 679, 31 L. R. A., N. S., 1166; Owens v. Jenkins, 25 Ky. App. 1567, 78 S.W. 212; 75 Ky. Law Rep. 1567; 40 Cyc. 2764.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

An information which states the crime in the words of the statute is sufficient. The information in this case is sufficient. (State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

It is not error to refuse an instruction which simply quotes the provisions of sec. 8720, C. S. (State v. Turner, 29 S.C. 34, 13 Am. St. 706.)

It is not error to refuse an instruction which in effect states that a witness can be impeached by his refusal before trial to talk with counsel for appellant or counsel for the state.

C. S., secs. 8038, 8039, prescribe the character of evidence and the method to be followed in impeaching a witness. The methods prescribed are exclusive and the statute must be conformed to. (State v. Farmer, 34 Idaho 370, 201 P. 33; State v. Black, 36 Idaho 27, 208 P. 851.)

It is not error to refuse to give an instruction which invades the province of the jury and is so worded as to point out to the jury what inferences they might or could draw from such facts. (State v. Jones, 28 Idaho 428, 154 P. 378; State v. Marren, 17 Idaho 766, 107 P. 993.)

Where a requested instruction is erroneous either wholly or in part it may properly be refused. (16 C. J. 1066, p. 2507, note 89.)

The court did not err in denying the motion for a new trial, nor in denying the defendant the right to introduce oral evidence at the hearing of the motion for new trial, nor in denying the motion of the defendant to take depositions to be used upon a rehearing upon the motion for a new trial. (State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791.)

T. BAILEY LEE, Commissioner. GIVENS, J., Concurring

Specially. WM. E. LEE, J., Chief Justice William A. Lee, Dissenting.

OPINION

T. BAILEY LEE, Commissioner.

Lonnie Boykin and Lottie Glenn, accused of murdering one Sarah Abrams, were convicted of voluntary manslaughter in the district court of Bannock county and duly appealed from both the judgment and order denying their motion for new trial. Lottie Glenn having died in the meantime, the record is to be considered only with respect to the appeal of Lonnie Boykin.

The information charged: "That the said Lonnie Boykin and Lottie Glenn on or about the 8th day of November, 1923 . in the County of Bannock, State of Idaho, did then and there willfully, unlawfully, feloniously, deliberately, premeditatedly, and with malice aforethought, kill and murder one Sarah Abrams, . . . . "

A general demurrer having been overruled, the trial proceeded upon the plea of not guilty. Defendant objected to the introduction of any evidence upon the part of the state, which objection was overruled. The rulings have been assigned as error, the defendant insisting that the information was insufficient for failure to set forth the manner and means of the alleged killing. Such an information was recently upheld by this court in State v. Lundhigh, 30 Idaho 365, 164 P. 690, where State v. Smith, 25 Idaho 541, 138 P. 1107, relied upon by defendant was expressly overruled, the court declaring that an information charging murder in the language of the statute is sufficient.

It appears from the evidence that when first arrested the defendant, Boykin, was locked up and denied the right to converse with counsel; in consequence whereof his attorney requested the court to instruct the jury in terms of C. S., sec. 8720, directing that one arrested be taken before a magistrate without unnecessary delay and be permitted to receive the visits of an attorney. This evidence was admissible and this instruction would have been proper, only as bearing upon the credibility of the officer so detaining the defendant if such officer were a witness. The testimony discloses that the officer did not testify to anything which was contradicted by the defense or which bore directly upon the guilt of the defendant; therefore it was not prejudicial error to refuse the instruction.

It seems that the state's witness, Boyee, when approached by defendant's counsel, refused to talk; and defendant sought an instruction advising the jury that they might take into consideration such refusal in weighing the evidence. The request was refused and defendant claims error, citing the language of State v. Trego, 25 Idaho 625, at 643, 138 P. 1124, where the court said:

"The state is not interested in convicting any person charged with a crime unless he is really guilty, and it seems to me that no candid witness would hesitate to state what he or she knew about an alleged crime either to counsel for the state or to counsel for the defendant, so that the defendant might have the opportunity to procure proper evidence to explain any suspicious circumstances or other facts tending to show the defendant guilty, if it were possible for him to do so."

This was merely dictum and fell far short of declaring a hesitant witness to be presumably biased or obligated to unbosom himself to the adverse party. Such an instruction would have in effect authorized a method of impeachment unknown to the statute, and was properly refused. The court also refused the following instruction requested by the defendant:

"The court instructs you, gentlemen of the jury, that certain evidence has been admitted of alleged contradictory statements made by certain witnesses of both the prosecution and the defense, and you are instructed that such impeaching evidence may be considered by you only for the purpose of lessening or mitigating the weight to be given the evidence of the witnesses thus attempted to be impeached, and must not be considered by you as proving or tending to prove any fact."

The defendant had testified in his own behalf. Inasmuch as he too had made conflicting statements, it will be observed that the requested instruction would have applied to his testimony as well as to that of other witnesses; and while such instruction, had it been restricted to other witnesses, would have been eminently proper, it would have been a direct misstatement of the law when applied to the defendant. It is well settled that any false statement made by an accused for the evident purpose of avoiding suspicion is admissible as a proof of guilt. (People v. Cuff, 122 Cal. 589, 55 P. 407; Crawford v. State, 112 Ala. 1, 21 So. 214; Huffman v. State, 28 Tex. Ct. App. 174, 12 S.W. 588.) Here the defendant denied his presence at the shooting, a statement the falsity of which was proven by the state, and later admitted by the defendant while on the stand. Where a proffered instruction contains incorrect coupled with correct statements of the law, it is not error to...