State v. Buchanan

• Decision Date: 14 January 1953
• Docket Number: No. 7881,7881
• Citation: 73 Idaho 365,252 P.2d 524
• Parties: STATE v. BUCHANAN.
• Court: Idaho Supreme Court

Page 524

252 P.2d 524

73 Idaho 365

STATE v. BUCHANAN.

No. 7881.

Supreme Court of Idaho.

Jan. 14, 1953.

Black, Black & Liver, Pocatello, for appellant.

Robert E. Smylie, Atty. Gen., William H. Bakes, Asst. Atty. Gen., and Hugh C. Maguire, Jr., Pros. Atty., Pocatello, for respondent.

GIVENS, Justice.

Appellant assigns in substance three errors: first, that the record affirmatively shows no criminal complaint or warrant of arrest was ever filed in this action, or preliminary proceedings had before a magistrate. Such asserted lack or defect was in no way brought to the attention of the trial court and appellant's assertion in this regard appears for the first time in his brief.

The commitment, information and cross examination of witnesses as to their testimony at the preliminary examination, show a preliminary examination was held.

The only purpose of a warrant is to bring the defendant into custody and before the court, State ex rel. Schwanke v. Utecht, 233 Minn. 434, 47 N.W.2d 99; People v. Baxter, City Ct., 32 N.Y.S.2d 325. After the filing of an information, arraignment thereon--the defendant being present in court--subsequent trial and conviction, it is too late to urge error because the record in the district court does not disclose there was a warrant. State v. Main, 37 Idaho 449, 216 P. 731; State v. Jester, 46 Idaho 561 at page 567, 270 P. 417; State v. Frank, 51 Idaho 21, 1 P.2d 181; Stamper v. State, 25 Okl.Cr. 324, 220 P. 67.

The second assignment urges the evidence is insufficient to support the verdict, particularly in that it does not prove deliberation, premeditation, malice aforethought or an assault with intent to murder. The information charged the defendant----

'* * * did then and there knowingly, wilfully, unlawfully and feloniously and with premeditation and malice aforethought, by means of a certain deadly weapon, to-wit: a loaded .38 caliber pistol, which he the said Albert Buchanan in his hands then and there held, did make an assault upon the person of one James Brown, a human being, by shooting said loaded pistol at the said James Brown, with the intent then and there wilfully, unlawfully, intentionally, feloniously, premeditatedly and with malice aforethought to kill and murder the said James Brown, which assault was likely to and could have produced great severe and mortal injury to the said James Brown.'

Section 18-4015, I.C., proscribes assault with intent to murder and fixes the penalty therefor, thus:

'Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison not less than one nor more than fourteen years.'

Section 18-4001, I.C., defines murder as follows:

'Murder is the unlawful killing of a human being with malice aforethought.'

and Section 18-4002, I.C., malice, as----

'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.'

While Section 18-4003, I.C., makes two degrees of murder, there is but one punishment for assault with intent to commit murder, and it is murder to unlawfully kill a human being with malice aforethought. By Section 18-4001, I.C., there are not two degrees of assault with intent to commit murder, 40 C.J.S., Homicide, § 79, p. 942, nor is premeditation an essential ingredient thereof; therefore, while the information charged and the court instructed that before the jury could find the defendant guilty, the would have to find him guilty of premeditation, the same went beyond the requirement of the statute, and perforce was not prejudicial to the defendant, but was favorable to him--hence, not prejudicially erroneous. State v. Alcorn, 7 Idaho 599, 64 P. 1014, 97 Am.St.Rep. 252.

As argued by appellant, it is, of course, essential that the evidence justify the jury in considering it sufficient to convince them beyond a reasonable doubt the assault was made with intent to commit murder and with malice aforethought. Likewise, it is fundamental that a verdict of a jury will not be disturbed if supported by substantial evidence. State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Askew, 32 Idaho 456, 184 P. 473; State v. Bidgain, 34 Idaho 365, 201 P. 312; State v. Cacavas, 55 Idaho 538, 44 P.2d 1110; State v. Kleier, 69 Idaho 278 at page 284, 206 P.2d 513. Also, that the court is not authorized to substitute its judgment as to the credibility of witnesses and the weight to be given their testimony before the jury. State v. Abbott, 38 Idaho 61 at page 63, 213 P. 1024, 224 P. 791. So, it is not a question of what evidence supports appellant's contentions, but what evidence supports the verdict.

The affray took place July 17, 1951, in the Porters and Waiters Club on South First Avenue in Pocatello, Bannock County, Idaho, about one-thirty or two o'clock in the afternoon.

The main room of the Club is L-shaped. Entering the door from the street, to the left is what might be termed an alcove or the base of the L and along the side thereof farthest from the door is a bar facing towards the street. In the main room on main part of the L were three pool tables extending lengthwise across the room; on the left side of the main room and at right angles to the other bar, separated at the angle by a partition about eighteen inches or so thick and several feet long--a juke box stood by this partition facing the entrance--was a bar and behind it or in the position of a back bar, cupboards and a closet. At the end of this bar nearest the partition was an opening or passage way between it and the partition, and along the front or customers' side of this bar were five movable stools. The first pool table was between these stools and the opposite wall; the other two tables parallel to the first and to the rear thereof. Evidently card tables were in the front of the main room to the right of the entrance from the street.

The salient features of the testimony and which the jury was at liberty to consider as true, and evidently did--as reflected in their verdict--are:

That the defendant asked one Hill, who was seated at one of these card tables, for a light. Hill said he didn't have any lighter, whereupon the complaining witness took out his book of matches and gave it to Hill to hand to defendant, whereupon defendant said, 'I want my cigarette lighter.' Hill replied, 'I haven't got it.' Defendant then said, 'Well, if you (Hill) haven't got it Jimmy (complaining witness) has got it.' Complaining witness said, 'I haven't got your lighter.' 'I don't know anything about your lighter. I don't care for a lighter.' The complaining witness was then seated on the second or third stool to the right of the opening or passage way at the end of this bar and Frank Stevens was seated to his left, facing the bar. Defendant then went behind this bar, through the opening or entrance to the left end thereof, as above mentioned, into a small room or closet, where he secured a .38 caliber Smith & Wesson special revolver fully loaded, came back out through the entrance way or opening at the end of the bar with it in his hand. He raised his hand up, pointed the gun at complaining witness and said: 'Give me my cigarette lighter, or I will kill you.' The complaining witness said, 'I haven't got your cigarette lighter.' Defendant then raised the gun and said, 'Give me my cigarette lighter, Or I will kill you.' Complaining witness again said he didn't have the cigarette lighter and pulled Frank Stevens off the stool in front of him, the two men then scrambling on the floor. The complaining witness testified the gun was pointed at him. He ducked, the gun was fired and the bullet hit the floor evidently over or to the right of Brown and Stevens, who were on the floor, and ricocheted into the wall of the main room away from the bar and to the right of the pool tables. There was also testimony that immediately before the shot, complaining witness threw up his hand and said, 'I haven't got your lighter, take my money.' and he had money in his hand. The complaining witness crawled on his hands and knees along the floor by the side of the bar, scuttled to the entrance, and out on to the street.

Immediately after the shooting, defendant handed the gun to Jones, the bartender behind the bar. Jones testified that as he took the gun from defendant, he asked him if he wanted to kill some one about a cigarette lighter, and defendant replied that Brown, the complaining witness, had been in his pocket before. Kraut, witness for appellant, corroborated this statement by appellant.

While there was other testimony as to how defendant held the gun, how he appeared to be shooting it, etc., three pertinent, and which the jury were justified in considering controlling, features clearly appear from the above recital: that the defendant pointed the gun towards the complaining witness and shot it, missing him either because he was a poor shot or the complaining witness, in ducking and dodging behind Stevens and pulling him to the floor, was momentarily out of the line of fire; thus that an assault was made with a deadly weapon capable of inflicting great bodily injury; and third, the defendant, immediately after the shooting, was asked if he would kill a man for a cigarette lighter and in the place of disclaiming any such intention, but by way of justification of his actions, accused the complaining witness of having been in his prockets before.

Nelson, Chief of Detectives, July 17, 1951, observed where the bullet struck the floor and had ricocheted into the wall and in connection with Exhibit 2, which is a picture of the bar at which the complaining witness and Stevens were seated and shows the opening through which defendant came, thus testified:

'A. From the marks on the floor and the one in the wall would...