State v. Brewer

• Decision Date: 16 October 1952
• Docket Number: No. 7888,7888
• Citation: 73 Idaho 191,249 P.2d 189
• Parties: STATE v. BREWER.
• Court: Idaho Supreme Court

Page 189

249 P.2d 189

73 Idaho 191

STATE v. BREWER.

No. 7888.

Supreme Court of Idaho.

Oct. 16, 1952.

McDevitt & McDevitt, Pocatello, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Jack B. Furey, Pros. Atty., Challis, for respondent.

TAYLOR, Justice.

The defendant and his wife were the owners and operators of a business at Stanley, in Custer County, Idaho, known as the Rod and Gun Club, where liquor and beer were sold at retail.

In the early morning of July 15, 1951, two state liquor law enforcement officers entered the premises for the ostensible purpose of investigating possible violations of the law. On the trial there developed a direct contradiction between the witnesses for the state and the witnesses for the defense, both as to the time when the investigation was made, and as to what transpired during the course thereof. The officers testified that they entered the club shortly after 2 o'clock, a. m., and purchased whiskey and beer; that Officer Edwards undertook to arrest the bartender and to dissuade him from mixing and serving further drinks; that the defendant interfered with the proposed arrest of the bartender, directed him to disregard the officer, spilled whiskey which the officer had purchased, and attempted to prevent the officers from taking purchased beer from the premises. The defense witnesses testified that the officers entered the club before 1 o'clock, a. m., and contradicted the officers in certain particulars as to what occurred during the altercation which followed.

We have examined the record with reference to the assignments of error and have found all of them without substantial merit except assignment No. 4. Since we conclude that the error indicated by assignment No. 4 requires a new trial, we will not discuss the other assignments. By assignment No. 4 the appellant complains of the ruling of the trial court excluding evidence, which the defendant proposed to introduce, and the remarks and statements of the trial judge in connection therewith.

During the presentation of the defense and when the defendant had his tenth witness on the stand, and preliminary questions had brought the witness up to the time of his entry into the Rod and Gun Club, the record shows the following exchange between court and counsel:

'The Court: Mr. McDevitt, I think we will have to draw a limit on this repetition of this--what happened in there. The important element in this case now is as to time. Unless this witness can help us on that question, I think I will have to refuse to let him testify again what happened in this Club. We have had a parade of witnesses here, and they have all testified now, and I think the Jury is thoroughly familiar with what happened in this Club. Time is the only important element left in the case, as I see it, and unless this witness can help on that----

'Mr. McDevitt: If the Court, please, I think the testimony of all these witnesses goes farther beyond time, it goes to the contest of the element of combat, fighting, the rod, the whiskey, and all the other details, Your Honor, time is not the only other element in the case by any means.

'The Court: Well, there has, been so many witnesses on this question, and there has been, apparently--I am making this statement after considering it very thoroughly--there has been perjury committed in this court, by witnesses--I don't know who they are, but it has been committed. Because it couldn't be two o'clock and one o'clock at the same time; and that's the important element in this case, and what I am saying now, means that there should be a mistrial, or a new trial, or a directed verdict, let that be as it may, but I am not going to permit in my court, perjury that has been taking place here. On the one hand, we have the Officers testifying that they went in there after two o'clock, now we have these other witnesses coming in here and say it was before one o'clock--somebody has been lying. Now, that's what I want to find out in this case. Now, is there anything else?

'Mr. McDevitt: If The Court, please, might I have an explanation at this time. Am I to understand that we are being forbidden from putting on more testimony in regards to the incidents in the Rod and Gun Club, because The Court intimates that some of these witnesses that we have been putting on may have been lying?

'The Court: I haven't intimated that, Mr. McDevitt, I don't know who--I know this, this broad statement--either the Officers lied, or the witnesses for the defendant lied, one or the other, I don't know which. Now, I am not restricting you to putting on witnesses, as to new points in evidence here, but I am restricting you, which I have the right to do under the statute on cases, from putting on a continuous parade of witnesses to corroborating evidence of testimony that has already been given. This case could go on for a week corroborating one side or the other on that question.

'Mr. McDevitt: Your Honor has spoken to me before, as well as he has to counsel for the prosecuting with regards to the very element, it's very obvious there as regards to the contradictory statements on the element of time, somebody lied, but I submit, Your Honor, because that is the case, it is very necessary for me to put on more corroborating testimony to show the fact that so many more people saw the...