State v. Browne

• Citation: 44 P. 552,4 Idaho 723
• Parties: STATE v. BROWNE
• Decision Date: 02 April 1896
• Court: United States State Supreme Court of Idaho

44 P. 552

4 Idaho 723

STATE v. BROWNE

Supreme Court of Idaho

April 2, 1896

PRACTICE-CHALLENGES PEREMPTORY, HOW TAKEN.-In the impaneling of a trial jury in a criminal case, where the defendant has double the number of peremptory challenges given the state, the state making the first challenge, the defense is required to make two before the state is again called upon to exercise its next peremptory challenge.

INDICTMENT-REASONABLE DOUBT-INSTRUCTIONS-SECTION 6975 OF THE REVISED STATUTES CONSTRUED.-In the prosecution of an indictment under the provisions of section 6975 of the Revised Statutes of Idaho it is error to instruct the jury that before they can convict a defendant of a violation of the statute, they must be satisfied, beyond a reasonable doubt, that such violation of the statute was made with the intent feloniously and corruptly to wrong, cheat, or defraud the county of its money or property, or any part thereof.

(Syllabus by the court.)

WRIT of error from District Court, Latah County.

W. H Clagett, Clay McNamee, and Sweet & Steele, for Plaintiff in Error.

Section 7848: After the jury is passed for cause, both parties alternately, beginning with the people, may take their peremptory challenges. But no challenge is lost by failure to alternate if the panel is opened by the other party; and each party is entitled to a full panel before exercising a peremptory challenge. It was contended by the district attorney in behalf of the people that to alternate, within the meaning of that statute, and within the general practice adopted in this state, meant that the state should exercise one challenge, the defendant two, and the state one continuing upon this line until both parties had either waived or exhausted their rights. When the statute is silent as to the order of conducting peremptory challenges, the matter seems to have been relegated to the discretion of the court, and it is a discretion which the higher courts have refused to review. (Thompson and Merriam on Juries, 291.) Upon the other hand, when the statute does prescribe the order of making these challenges, the court is without discretion and the order prescribed by law must be strictly adhered to. (Thompson and Merriam on Juries, p. 292, subd. 5.) In cases wherein the statute has fixed the question of intent the law is settled, because the statute is the law. If the state prove that the statute has been violated, the accused is called upon to justify his act, within that statute. (Ex parte Hedley, 31 Cal. 109; Idaho Const., art. 18, sec. 9.) It will be seen that in this case the constitution itself settles the question of intent, taking it entirely out of the rule first quoted. If the unlawful deposit be established we need go no further; we are not called upon to establish a felonious intent, and the accused is left to justify. (People v. Cotteral, 18 Johns. 115; People v. Herrick, 13 Wend. 87; 3 Greenleaf on Evidence, secs. 13, 21; People v. Bedell, 2 Hill, 194; Commonwealth v. Hersey, 2 Allen (Mass.), 178; Commonwealth v. Wentworth, 118 Mass. 441; United States v. Cook, 17 Wall. 538.)

Forney, Smith & Moore, for Defendant in Error.

At the threshold of this inquiry, we are met by this suggestion: Does not the section under which the defendants were indicted apply strictly to county and state officers, and every other person charged with the receipt, safekeeping, transfer and disbursement of public moneys? It is alleged that Gilstrap was a county officer; there is no allegation in the indictment that either Browne or Hattabaugh were county officers, or were persons charged with the receipt, safekeeping, transfer or disbursement of any public moneys whatever. "A statute will not generally make an act criminal, however broad may be its language, unless the offender's intent concurred with his act; because the common law does not." And further, "one who, while careful and circumspect, is led into a mistake of facts, and, doing what would be in no way reprehensible were they what he supposes them to be, commits what under the real facts is a violation of a criminal statute, is guilty of no crime, because such is the rule of the common law, and in construction it restricts the statute." (2 Bishop on Criminal Law, 7th ed., secs. 286, 287.) It would certainly be error in the trial court to instruct a jury that, from the fact that a deposit was made, they would be justified in inferring that it was done with a felonious intent. (People v. Carrillo, 54 Cal. 63.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The defendant in error, Browne, was jointly indicted with one John Gilstrap and one Isaac C. Hattabaugh for violating the provisions of subdivision 4 of section 6975 of the Revised Statutes of Idaho. Said section provides, inter alia: "Each officer of this territory [state], or of any county, city, town or district of this territory [state], and every other person charged with the receipt safekeeping, transfer or disbursement of public moneys, who . . . . [subdivision 4] deposits the same or any portion thereof in any bank or with any banker or other person, otherwise than on special deposit, . . . . is punishable by imprisonment in the territorial [state] prison for not less than one nor more than ten years, and is disqualified from holding any office in this territory [state]." The indictment charges, in substance, that Gilstrap, one of the defendants, was, at the general election held in November, 1894, elected to the office of treasurer of Latah county; that, subsequent to his said election, and on the 24th of December, 1894, said Gilstrap entered into a written contract with the other defendants, Brown and Hattabaugh, by the terms whereof he (the said Gilstrap) agreed to deposit in the Moscow National Bank, of which said Browne was president, and the Commercial Bank, at Moscow, of which said Hattabaugh was president, "any and all sums of money belonging to said Latah county, state of Idaho coming into the possession of or under the control of the said John Gilstrap as treasurer of said Latah county; that, in pursuance of...