State v. Branch

• Decision Date: 14 November 1945
• Docket Number: 7260
• Citation: 164 P.2d 182,66 Idaho 528
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. E. A. BRANCH, Defendant-Appellant
• Court: Idaho Supreme Court

164 P.2d 182

66 Idaho 528

STATE OF IDAHO, Plaintiff-Respondent, v. E. A. BRANCH, Defendant-Appellant

No. 7260

Supreme Court of Idaho

November 14, 1945

Rehearing denied December 18, 1945.

1. Witnesses

Statutory provisions authorizing a defendant in criminal prosecution if he so elects, to testify in his own behalf are derogatory of common law and should receive strict construction, but not such as will nullify legislative intent, nor deprive defendant of his rights.

2. Witnesses

The right to impeach a witness and methods of impeachment are statutory, and, if a witness is to be discredited in such manner, the statute must be conformed to. (I.C.A., sec 16-1209.)

3. Witnesses

Question asked witness as to whether he knew reputation of defendant in criminal prosecution for truth, honesty, and integrity in community in which he resided in an attempt to impeach defendant who testified in his own behalf, instead of inquiring as to defendant's "general" reputation, if otherwise permissible, was improper as failing to conform to statutory requirements. (I.C.A., secs. 16-1209, 19-106, 19-2903; Const., art. 1, sec. 13.)

4. Criminal law

Witnesses

The impeachment of a defendant in criminal case who testified in his own behalf by testimony purporting to show that defendant's reputation for truth, honesty, and integrity in community in which he resided was bad was improper without defendant first putting his reputation therefor in issue. (I.C.A., secs, 16-1209, 19-106, 19-2903; Const., art 1, sec. 13.)

Rehearing Denied December 18, 1945.

Appeal from the District Court of the Eleventh Judicial District of the State of Idaho, for Twin Falls County. Hon. James W. Porter, Judge.

Judgment reversed and cause remanded with directions to grant a new trial.

J. W. Taylor for appellant.

The right to impeach a witness and the methods are statutory and if a witness is to be discredited in this manner the statute must be conformed to. (Boeck v. Boeck, 29 Ida. 639, 161 P. 576; State v. Nadlman, 63 Ida. 153, 118 P.2d 58; State v. Askew, 32 Ida. 456, 184 P. 473; State v. Cosler, 39 Ida. 519 (524), 228 P. 277; LaBonte v. Davidson, 31 Ida. 644, 175 P. 588.)

It is error to admit testimony as to defendant's bad reputation unless such evidence is directed to a time at or before the commission of the offense charged. (People v. Fong Ching (Cal.), 20 P. 396; People v. McSweeney (Cal.), 38 P. 743; State v. Ewing (Ore.), 149 P.2d 765 (771.)

In a criminal action it is error to admit evidence of defendant's bad reputation except for truth unless defendant has submitted evidence to establish his good character. (People v. Hinksman (N.Y.), 85 N.E. 676; Stevens, Digest of Ev. (2d Ed.), p. 158; Fletcher v. State (Ind.), 19 Am. Rep. 673; State v. Beal (Ind.), 34 Am. Rep. 263; Underhill Criminal Ev. (3rd Ed.), Section 120; State v. Ewing (Ore.), 149 P.2d 765 (771); Wigmore, Evidence Sections 57, 58.)

Frank Langley, Attorney General; J. R. Smead, Assistant Attorney General; Everett M. Sweeley, Prosecuting Attorney, and Ray D. Agee, Assistant Prosecuting Attorney, for respondent.

Where a defendant in a criminal case testifies in his own behalf, he may be impeached by evidence that his reputation for truth, honesty and integrity is bad. (I.C.A., Sec. 16-1209; 70 C.J., p. 822, Sec. 1035; People v. Hickman (Cal.), 45 P. 175; People v. Bastian (Cal.), 272 P. 756; People v. Gordon (Cal.), 273 P. 568; People v. Bannon (Cal.), 209 P. 1029; State v. Schnepel (Mont.), 59 P. 927; State v. O'Donnell (Ore.), 149 P. 536; People v. Beck, 58 Cal. 212; People v. Fealy (Cal.), 165 P. 1034; 28 R.C.L., p. 620, Sec. 209.)

Where the impeaching question shows that the inquiry is directed to the general reputation of the witness, the omission of the word "general" from the impeaching question is not error, unless the question is objected to on that ground and the Court's attention is specifically directed to the omission. (People v. Hickman (Cal.), 45 P. 175; People v. Bush (Cal.), 10 P. 169; People v. Ryan (Cal.), 41 P. 451; People v. Roberts (Cal.), 55 P. 137; Wise v. Wakefield (Cal.), 50 P. 310; People v. Billings (Ill.), 24 N.E. (2) 339; State v. Madison (S. Dak.), 122 N.W. 647; St. Louis Southwestern Ry. Co. of Texas v. Garber (Tex.), 111 S.W. 227.)

For the purpose of impeaching a witness, the inquiry is not confined to his reputation for truth and veracity, but may extend to his general reputation for truth, honesty and integrity. (I.C.A., Sec. 16-1209; People v. Prather (Cal.), 53 P. 259; People v. Silva (Cal.), 54 P. 146; Heath v. Scott (Cal.), 4 P. 557; People v. Hickman (Cal.), 45 P. 175.)

Miller, J. Ailshie, C.J., and Holden, J., concur. Givens, J., dissenting. Budge, J., concurs in this dissent.

OPINION

Miller, J.

On April 23, 1945, an information was filed in the District Court of Twin Falls County, Idaho, charging appellant with having, on or about February 12, 1945, committed the crime of grand larceny, by stealing a Guernsey heifer calf about ten months old, weighing about 265 pounds, and the personal property of one C. H. Ferguson. At the April term of District Court of said county appellant was tried before a jury, found guilty as charged, and sentenced to serve a term in the Idaho State Penitentiary of not less than one nor more than fourteen years at hard labor, and to pay the costs of prosecution.

The appeal is from the judgment. The material assignments of error assert the insufficiency of the evidence to sustain the verdict or support the judgment, and that the state was permitted, in rebuttal, over objection, to impeach appellant as a witness by testimony of his bad reputation for "truth, honesty, and integrity", without appellant having first offered evidence of good character.

The complainant, C. H. Ferguson, owns and resides on a tract of land in Gooding County, Idaho, on the north side of the Snake River in the vicinity of the Idaho Power Company's "Thousand Springs Power Plant". The latter part of October, 1944, he took eight head of calves and put them on a 75-acre tract of pasture land he owned in Twin Falls County, Idaho, almost directly across the river from where he lived. It is for the alleged larceny of one of the eight calves that appellant was prosecuted and convicted. The appellant at the time of the trial lived in Gooding County, Idaho, five miles south and one mile east of Wendell. From October 1, 1944, to February 22, 1945, he lived on the Bill Robinson ranch northwest of Buhl and about five miles southwest of complainant's pasture land. Prior to moving onto the Robinson place he had lived in the vicinity of Wendell, Idaho. In October, 1943, he was divorced from his present wife and they were remarried in June, 1944. Mrs. Branch had three children by a former marriage, including Aloha Belle Hine, eleven years old at the time of the trial. At the time of the divorce she owned several cows. Subsequent to the divorce and prior to the remarriage Mrs. Branch lived at and kept her cows on the Jacobson place several miles south of Wendell. While there, Guy Metcalf, in the spring of 1944, tried to buy a heifer calf from Mrs. Branch because "it was out of an awfully good cow", which he milked, and "looked like it would make a very good cow". During the spring of 1944 Mrs. Branch's cows were leased to a man named Arthur Koch, who lived four and one-half miles west of Wendell and about one-half mile from appellant's place. Her cattle, other than the cows that were leased to Koch, were pastured with defendant's cattle in the vicinity of the Koch place. About September 21, 1944, twenty-one head of said cattle, including the calf in question, were taken to A. L. Mullin's place on the south side of the Snake River and up stream some two or three miles from the 75-acre tract belonging to complainant. A few days later some four head more were taken to the Mullins place. The mother of the calf in question was among the cattle taken to the Mullins place and because Mullins was asked to milk the cow some discussion arose as to the calf. Appellant had rented the Mullins pasture and the cattle remained there until about December 19th. After they left the Mullins place they were taken to the Banbury ranch about a mile and one-half from the Mullins place, where they remained until about the middle of January, at which time they were taken to the Ring ranch, where appellant had bought some hay. About February 8, 1945, said cattle were removed to the Robinson place. At all times when the cattle were being moved from one place to another Aloha Belle Hine accompanied the appellant and assisted in moving said cattle.

After complainant placed his eight head of calves on the 75-acre tract he carried feed to them from time to time. The fence was down in places and the calves often left the premises grazed along the highway and were bothersome to some of the ranchers in that vicinity. There is some dispute as to the time when complainant last saw said calves. There is some testimony to the effect that it was February 4, 1945, and other testimony, given by complainant at the preliminary examination and used for impeachment purposes, that it was February 21st. The record discloses that along about the 24th or 26th of February, 1945, complainant was looking for said calves and making inquiry from people living in the vicinity of the 75-acre tract as to their whereabouts. The record likewise discloses that at the time of the trial none of the eight head of calves had been found by complainant. February 21, 1945, about nine o'clock in the morning, the twenty-eight head of cattle, including the calf in question, were trucked to the Twin Falls Commission Company to be sold, and by said commission company shortly thereafter the calf in question was sold...