State v. Brassfield

• Decision Date: 02 January 1925
• Parties: STATE, Respondent, v. FRANK BRASSFIELD, Appellant
• Court: Idaho Supreme Court

232 P. 1

40 Idaho 203

STATE, Respondent, v. FRANK BRASSFIELD, Appellant

Supreme Court of Idaho

January 2, 1925

GRAND LARCENY-ABSENT WITNESS-FORMER TESTIMONY-WITNESSES-IMPEACHMENT-PREREQUISITES-INSTRUCTIONS - ALIBI - CORPUS DELICTI - CIRCUMSTANTIAL EVIDENCE-CONFLICTING EVIDENCE-VARIANCE.

1. When it is properly shown that a witness who testified at a former trial is beyond the jurisdiction of the court and that proper diligence has been used in an unsuccessful endeavor to secure his attendance, and his testimony is competent and involves the same issues, it is not reversible error for the court to permit the prosecuting attorney to read such testimony to the jury upon a second trial.

2. The requirements of C. S., sec. 8039, must be complied with before an impeaching question can be put to a witness, but this statute must not be given such an unreasonable construction as to devitalize it and where it is plain that the witness was not misled, that her attention was directed to the identical occasions or conversations brought out by the impeaching testimony, to the places and persons present and she was asked whether she made such statements, the requirements of the statute are complied with.

3. Instruction of the court touching the defense of an alibi considered and held properly given. Held, also, that the same substantially covers instruction on the same subject requested by defendant.

4. Reversible error cannot be predicated upon the refusal of the court to advise the jury to acquit.

5. The corpus delicti may be proven by direct or circumstantial evidence, but the latter must be clear and convincing and exclude all uncertainty. Evidence examined and held sufficient to establish the corpus delicti. The order in which the different material facts are introduced is immaterial.

6. Where there is a substantial conflict in the evidence but sufficient competent evidence to support the verdict and judgment based thereon, the same will not be disturbed.

7. Held, that where an information charged the larceny of geldings, proof of larceny of horses does not constitute a fatal variance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Appellant was convicted of the crime of grand larceny and appeals. Judgment affirmed.

Affirmed.

J. R Smead, for Appellant.

Before a witness can be impeached by proof of statements made out of court, the time, place and parties present at such conversation must be strictly and precisely called to the witness' attention. (C. S., sec. 8039; Hilbert v Spokane etc. R. R. Co., 20 Idaho 54, 116 P. 1116; State v. Farmer, 34 Idaho 370, 373, 201 P. 33.)

An instruction that the jury may require corroboration to their satisfaction of the other testimony of a witness whom they believe to have wilfully testified falsely as to some material matters is error. (State v. Boyles, 34 Idaho 283, 200 P. 125; Jones on Evidence, 1st ed., sec. 905, and authorities cited.)

It is error to limit defendant's proof to a particular phase of the controversy, by instruction, particularly where the same evidence covers other phases of the matter, and such instruction is a comment on the evidence made without authority. (State v. Jones, 28 Idaho 428, 154 P. 378.)

Alibi evidence justifies an acquittal when it raises a reasonable doubt as to defendant's presence at the time and place of the alleged larceny, and refusal to give a requested instruction to that effect is error. (State v. Rice, 7 Idaho 762, 66 P. 87.)

Proof that animals, apparently at liberty to wander away, were "missed," that they "disappeared," does not constitute proof of larceny. A "taking" must be proved. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; 16 C. J. 529, sec. 994.)

Where the description of property in an information for larceny is stated in detail, the proof must describe the property referred to by witnesses in detail and in conformity to the description in the information. (State v. Wilson, 9 Wash. 218, 37 P. 424; State v. Blank, 33 Idaho 730, 197 P. 821; State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647.)

Possession of property is not evidence of larceny by the possessor. The larceny must be sufficiently shown by other independent evidence. (State v. Sullivan, supra; State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Stenberg, 39 Idaho 575, 227 P. 1050.) Nor where there is no evidence identifying property so possessed with property that had been stolen. (25 Cyc. 132; State v. Lackland, 136 Mo. 26, 37 S.W. 812; United States v. Candler, 65 F. 308.)

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

Where a witness is absent beyond the jurisdiction of the court the absent witness' testimony given at a former trial may be reproduced. (Smith v. Georgia, 15 A. L. R. 517, note; Cline v. State, 61 Am. St. 887, note; Henwood v. People, 57 Colo. 544, Ann. Cas. 1916A, 1111, 143 P. 373; People v. Johnson, 51 Cal.App. 464, 197 P. 135; Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, note.)

In laying the foundation for the impeachment of a witness, in complying with the provisions of C. S., sec. 8093, only reasonable certainty is required. It is necessary only that the witness shall clearly understand the matter about which he is interrogated and is not misled. (28 R. C. L., sec. 223, note 9; 40 Cyc. 2731, notes 67-73.)

The instruction dealing with the false testimony of a witness given by the court on its own motion is correct. (Baird v. Gibberd, 32 Idaho 796, 189 P. 56.)

The instruction on alibi given by the court on its own motion is correct. (State v. Webb, 6 Idaho 428, 55 P. 892; State v. Bogris, 26 Idaho 587, 144 P. 789.)

It is not error to refuse a requested instruction when the matter is fairly covered by an instruction given by the court on its own motion. (State v. Curtis, 29 Idaho 724, 161 P. 578; State v. Petrogalli, 34 Idaho 232, 200 P. 119; State v. Black, 36 Idaho 27, 208 P. 851.)

Instructions must be read, considered and applied as a whole. (State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Petrogalli, supra; State v. Sayko, 37 Idaho 430, 216 P. 1036.)

It is not error to refuse to advise the jury to acquit. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647.)

The corpus delicti can be proved by circumstantial evidence. (Choate v. State, 12 Okla. Cr. 560, L. R. A. 1917A, 1287, 160 P. 34; State v. Black, supra; State v. James, 39 S.D. 263, 164 N.W. 91.)

Possession of stolen property is evidence of guilt and taken with all the other circumstances is sufficient upon which to predicate a verdict of guilty. (State v. Seymour, 7 Idaho 257, 61 P. 1033; 9 C. J., sec. 127, p. 1070; 9 C. J., secs. 144, 145, p. 1082; 4 R. C. L., sec. 34, p. 440; Collins v. People, 69 Colo. 343, 193 P. 634; Smith v. State, 85 Tex. Cr. 355, 212 S.W. 660.)

The term "horse" is generic and includes gelding. (People v. Pico, 62 Cal. 50; People v. Butler, 2 Utah 504; People v. Monteith, 73 Cal. 7, 14 P. 373; People v. Melandrez, 4 Cal.App. 396, 88 P. 372.)

BUDGE, J. McCarthy, C. J., William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was convicted of the crime of grand larceny. This appeal is from the judgment. This is the second time this case has been before this court, the decision in the former case being reported at 33 Idaho 660, 197 P. 559, where a statement of the material facts in the case will be found. We will proceed to take up and dispose of the errors relied upon for a reversal in the order in which they are stated in appellant's brief.

The first error assigned involves the action of the trial court in permitting the prosecuting attorney to read to the jury the testimony of one, Steenson, given upon the former trial, Steenson not being present as a witness. The objection is based upon the ground that no proper foundation was laid justifying the admission in evidence of the testimony of this witness in the manner above indicated. This question has not to our knowledge received the attention of this court upon any former occasion. The decisions of the different states are not in harmony on the question as to whether such testimony is admissible against the accused under such circumstances. However, the weight of authority would seem to be that when it appears that the witnesses who testified at a former trial are beyond the jurisdiction of the court and the evidence is competent and between the same parties, involving the same issues, and proper diligence to secure their attendance is shown, as in this case, such evidence is admissible, the reason for the rule being that it is the best evidence which can be produced. (United States v. Macomb, 5 McLean, 286, F. Cas. No. 15, 702.) It has further been held by courts of respectability that no constitutional right of the defendant is violated by permitting such testimony to be read to the jury; that while the defendant is guaranteed the right, by the sixth amendment to the federal constitution, to be permitted to meet the witnesses against him face to face, having had that opportunity on the first trial his constitutional rights have been observed. (Henwood v. People, 57 Colo. 544, Ann. Cas. 1916A, 1111, 143 P. 373; People v. Johnson, 51 Cal.App. 464, 197 P. 135.) However, this state has no such constitutional provision and the same has application to federal courts only. (Ann. Cas. 1916A, 1091, 1093.)

Assignments of error Nos. 2, 2a, 2b, 2c, 2d, 3 and 3a involve the admission, over appellant's objection, of certain testimony introduced by the state for the purpose of impeaching the testimony of the mother of appellant. It is strenuously insisted by appellant that no proper foundation was laid...