State v. Breyer

• Decision Date: 03 January 1925
• Citation: 40 Idaho 324,232 P. 560
• Parties: STATE, Respondent, v. DANIEL C. BREYER, Appellant
• Court: Idaho Supreme Court

232 P. 560

40 Idaho 324

STATE, Respondent, v. DANIEL C. BREYER, Appellant

Supreme Court of Idaho

January 3, 1925

CRIMINAL LAW-HOMICIDE-CHANGE OF VENUE-IMPROPER ARGUMENT-PROPER METHOD OF OBJECTION-CLOTHING WORN BY DECEASED-ADMISSIBILITY OF - RES GESTAE - TIME - DECLARATIONS OF BYSTANDER - DECLARATIONS OF ONE INCOMPETENT AS WITNESS - DECLARATIONS OF HUSBAND OR WIFE-INDORSING NAME OF WITNESS ON INFORMATION DURING TRIAL-RAISING OBJECTION TO EVIDENCE BY MOTION TO STRIKE-ADMITTING IMMATERIAL EVIDENCE TO MEET IMMATERIAL EVIDENCE.

1. To require a change of venue under C. S., sec. 8888, it must appear that the prejudice against the accused is so great that a fair and impartial trial cannot be had in the county in which the information is filed.

2. An objection to argument of counsel must point out specifically the matter complained of as improper.

3. A motion asking the court to discharge the jury and declare a mistrial is not a proper method of raising an objection to improper argument of counsel.

4. Upon the trial of a homicide case, where defendant pleads not guilty, the clothing worn by the deceased is not rendered inadmissible by the mere fact that defendant's counsel states that the killing and location of the wounds are admitted.

5. In determining whether declarations are part of the res gestae there is no exact standard of time. It is sufficient if they were made at a time so near the occurrence as to preclude the idea of deliberate design.

6. Declarations of one not a principal or party are admissible if so connected with the occurrence being investigated as to be part of the res gestae.

7. Statements which are part of the res gestae are not rendered inadmissible by the fact that the person making them would not have been competent to testify as a witness.

8. The statutory provision that husband and wife are not competent witnesses for or against each other in a criminal action with certain exceptions does not render inadmissible their statements which are part of the res gestae.

9. Held, that the court did not err in permitting the name of a witness for the state to be indorsed on the information after the trial began, in view of the showing made.

10. The question of inadmissibility of evidence cannot be raised by motion to strike the answer when there is no objection to the question, when the question clearly presents the point sought to be raised, and there is no element of surprise in the answer.

11. It is not reversible error to permit one side to introduce immaterial evidence to meet immaterial evidence offered by the other.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph W. Adair, Judge.

Appeal from judgment of conviction of murder of the first degree. Affirmed.

Affirmed.

Whitcomb Cowen & Clark and Chase A. Clark, for Appellant.

The court abused its discretion in denying the motion for change of venue. (People v. Suesser, 132 Cal. 631, 64 P 1095; People v. Pfanschmidt, 262 Ill. 411, Ann. Cas. 1915A, 1171, 104 N.E. 804; Shipp v. Commonwealth, 124 Ky. 643, 99 S.W. 945, 10 L. R. A., N. S., 335.)

The court stated in overruling defendant's motion that he did so after making an independent investigation, and there is no authority in law or reason which permits any judge to decide a question properly presented to him, through making an independent investigation of which the defeated party knows nothing and which he has no opportunity to meet. (15 R. C. L. 1056; United States v. Wilson, 7 Pet. 150 U.S. 8 L.Ed. 640; Arkansas v. Kansas & T. Coal Co., 183 U.S. 185, 22 S.Ct. 47, 46 L.Ed. 144; Green & Sons v. Lineville Drug Co., 150 Ala. 112, 124 Am. St. 17, 43 So. 216; Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Utah Nursery Co. v. Marsh, 46 Colo. 211, 103 P. 302; Purdy v. Erie R. Co., 162 N.Y. 42, 56 N.E. 508, 48 L. R. A. 669; Mann v. Mercer County Court, 58 W.Va. 651, 52 S.E. 776; Monte Vista Canal Co. v. Centennial Irr. Ditch Co., 24 Colo. App. 496, 135 P. 981; Panama Electric Ry. Co. v. Moyers, 249 F. 19; International Harvester Co. v. Industrial Commission, 157 Wis. 167, Ann. Cas. 1916B, 330, 147 N.W. 53.)

The state was permitted to introduce the bloody clothes of the deceased, over objections by the defendant and after his admission of the killing and the course and location of the bullets, and it was not introduced for any other purpose than to prejudice the minds of the jury against the defendant. (13 R. C. L. 928; Rollings v. State, 160 Ala. 82, 49 So. 329; McKay v. State, 90 Neb. 63, 132 N.W. 741, 39 L. R. A., N. S., 714; Flege v. State, 93 Neb. 610, 142 N.W. 276, 47 L. R. A., N. S., 1106.)

The state was permitted, over the objection of the defendant, to prove statements made by defendant's wife out of his presence and hearing. These statements were clearly hearsay, were very damaging and were used as an indirect mode of avoiding the operation of C. S., sec. 9130, prohibiting the wife from testifying against her husband. (State v. Hatcher, 29 Ore. 309, 44 P. 584.)

The evidence relating to threats or to the participation of witness Millick in any of the events was not admissible until after it was at least substantially proven that the crime had been committed. (State v. Hyde, 234 Mo. 200, Ann. Cas. 1912D, 191, 136 S.W. 316.)

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

The admission of the bloody clothes of the deceased was not prejudicial error. (State v. Dong Sing, 35 Idaho 616, 208 P. 860; People v. Hayden, 18 Cal.App. 543, 123 P. 1102, 1114; State v. Moore, 80 Kan. 232, 102 P. 475; State v. Stansberry, 182 Iowa 908, 166 N.W. 359.)

In seeking to review the alleged prejudicial statement of the prosecuting attorney the defendant should make his objection publicly in court, pointing out specifically the matter complained of as improper in the argument, and should take exception promptly to the failure of the trial judge to condemn it. (16 C. J., sec. 2268, p. 914, notes 29, 30 and 31.)

A general objection to an argument without calling the attention of the court to any particular feature complained of is insufficient and cannot be made specific for the first time on appeal. (People v. Frigerio, 107 Cal. 40, 151 P. 107.)

A witness' name may be indorsed on the information after the trial is begun. (State v. Allen, 20 Idaho 263, 117 P. 849; C. S., sec. 8810.)

Appellant in error is estopped to complain of error in the admission of evidence where the evidence was not rebuttal or explanatory of his evidence, and where the error, if any is committed, is invited by the action of appellant. (17 C. J., sec. 3557, note 6, p. 211; Selman v. State, 159 Ark. 131, 251 S.W. 882; State v. Steidel, 98 Ore. 681, 194 P. 854; Davis v. State, 25 Ga.App. 532, 103 S.E. 819; People v. H. Jevne Co., 179 Cal. 621, 178 P. 517.)

It was not error to overrule a motion for change of venue. (State v. Reed, 3 Idaho 754, 35 P. 706; State v. Gilbert, 8 Idaho 346, 1 Ann. Cas. 280, 69 P. 62; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Hoagland, 39 Idaho 405, 228 P. 314.)

Before a specific declaration of a third party admitted as a part of the res gestae is to be declared by this court to be prejudicial, an effective showing must be made proving that the utterance has been made after the time within which the nervous excitement has subsided and the reflective powers have come into dominance. (3 Wigmore on Evidence, pp. 744-751.)

Such spontaneous declarations made in the absence of the defendant are not prejudicial. (People v. Jones, 160 Cal. 358, 117 P. 176.)

MCCARTHY, C. J. Budge, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

This appeal is from a judgment of conviction of murder of the first degree. Appellant Breyer shot one Oscar Taylor in the face, inflicting a mortal wound, shot him a second time in the chest, and then, as he lay upon the ground, shot him a third time in the back. In defense of his act appellant relied upon self-defense and insanity. He also introduced testimony to the effect that he believed deceased had improper designs on his wife and introduced evidence which he said caused him to entertain this belief. This included his own testimony that, just before the killing, he had seen deceased embracing Mrs. Breyer in the Breyer home. This alleged belief of appellant, and the circumstances on which it was based, could not have furnished a justification of, and thus an absolute defense for, the killing, but would undoubtedly have had great weight with the jury in determining the degree of the homicide, if the jury had considered the evidence credible. The verdict of the jury shows that it repudiated the idea of self-defense or insanity and also the idea that there was any provocation which would reduce the degree of the homicide. All the evidence shows the act to have been deliberate and premeditated in the extreme. The jury evidently regarded the case as one of those in which an individual assumes the role of executioner and inflicts capital punishment upon another. It is not even claimed that the evidence is insufficient to sustain the verdict. The only errors assigned are errors of law, of which we will discuss such as appear to require it.

Appellant contends that the court erred in denying his motion for a change of venue and in basing its ruling in part upon an independent investigation made by the presiding judge. In ruling upon the motion the court said:

"The Court: An exception will be allowed. I have carefully examined the affidavits made on behalf of the defendant, and the counter-affidavits, and have listened to the argument of counsel, and have made independent investigation of the situation which exists with reference to the question under...