State v. Bush

• Decision Date: 20 December 1930
• Docket Number: 5513
• Citation: 50 Idaho 166,295 P. 432
• Parties: STATE, Respondent, v. CLEO BUSH, Appellant
• Court: Idaho Supreme Court

295 P. 432

50 Idaho 166

STATE, Respondent, v. CLEO BUSH, Appellant

No. 5513

Supreme Court of Idaho

December 20, 1930

CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON-INFORMATION-LOADED GUN-EVIDENCE-EXHIBITS-GARMENT OF INJURED PERSON-WITNESSES IMPEACHMENT OF-INSTRUCTIONS.

1. Information charging assault with deadly weapon substantially in language of statute held sufficient (C. S., sec. 8552).

2. Information charging assault with two deadly weapons held not objectionable as stating two offenses (C. S., sec. 8252).

3. To constitute assault with deadly weapon by pointing pistol, it must be shown pistol was then loaded (C. S., sec. 8252).

4. Evidence in prosecution for assault with deadly weapon held sufficient to justify finding pistol was loaded (C. S., sec 8252).

5. Asking defendant's witness on cross-examination where she had certain cartridges after she testified to having no cartridges held improper.

6. Where impeachment question was improperly asked, objection question was incompetent, irrelevant, and immaterial held sufficient to preserve defendant's rights on appeal.

7. Questions as to prior statements inconsistent with testimony may be asked for purpose of impeachment (C. S., sec. 8039).

8. Witness may not be impeached upon immaterial matter (C. S secs. 8038, 8039).

9. Before question regarding prior inconsistent statements may be asked for impeachment, statutory requirements must be observed (C. S., sec. 8039).

10. Declarations of witness inconsistent with testimony are not admissible to prove truth of facts stated, but only for impeachment (C. S., sec. 8039).

11. If witness' prior statement shows inconsistency with testimony only by inference, and another inference in favor of consistency may be drawn, statement is inadmissible for impeachment (C. S., sec. 8039).

12. In prosecution for assault with deadly weapon, cross-examining defendant's witnesses regarding inconsistent statements held improper and prejudicial, alleged statements being capable of favorable construction (C. S., sec. 8039).

13. Prosecutor must see defendant has fair trial, and that only competent evidence is submitted to jury.

14. In prosecution for assault with deadly weapon, evidence of pistol being loaded being purely circumstantial, and erroneously admitted testimony possibly being determining factor, verdict should not be permitted to stand.

15. In prosecution for assault with deadly weapon, victim's wearing apparel, properly identified and shown to be in substantially same condition, as at time of alleged offense held admissible as throwing some light upon nature of instrument used in making wound.

16. Instruction that, to justify assault with deadly weapon, it must appear circumstances were sufficient to excite fear of "reasonable person," held proper (C. S., sec. 8252).

17. In prosecution for assault with deadly weapon, admitting evidence tending to show defendant fled from state shortly after affray held not error.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Appeal from judgment of conviction of assault with a deadly weapon and order denying motion for new trial. Reversed and remanded.

Reversed and remanded, with directions.

W. L. Dunn and Peterson, Baum & Clark, for Appellant.

The verdict is contrary to the evidence. The corpus delicti was not established. No intent to commit the crime charged was shown to exist on the part of the defendant and no proof that the defendant committed an assault with a deadly weapon. The purported circumstantial evidence was not clear and convincing. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; State v. Lumpkin, 31 Idaho 175, 169 P. 939.)

The defendant was prejudiced by improper cross-examination of defendant's witnesses over timely objection. (State v. Douglass, 35 Idaho 140, 208 P. 236; State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; State v. Rogers, 30 Idaho 259, 163 P. 912.)

The verdict is contrary to law in that the instructions of the court in so far as they did define the right of the defendant were disregarded and the state was not required to prove guilt beyond a reasonable doubt, the circumstances shown, if any, being as consistent with defendant's innocence as with that of guilt. (State v. Nesbit, 4 Idaho 548, 43 P. 66.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

Considering the facts and circumstances of the case, the only reasonable and common-sense view that can be taken of such facts and the inference drawn therefrom establishes the conclusion that the gun was loaded and the jury had the right to act upon these facts and circumstances, and consider that the statement by the appellant that the gun was not loaded was not true. (State v. Yturaspe, 22 Idaho 360, 125 P. 802; People v. Montgomery, 15 Cal.App. 315, 114 P. 792; People v. Seawright, 72 Cal.App. 414, 237 P. 796; People v. Hall, 87 Cal.App. 634, 262 P. 50.)

Credibility of witnesses and the weight to be given their testimony being solely for the jury, verdict on conflicting evidence will not be disturbed on appeal where there is substantial and competent evidence to support it. (State v. Murray, 43 Idaho 762, 254 P. 518; State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Shepard, 39 Idaho 666, 229 P. 87; State v. White, 33 Idaho 697, 197 P. 824; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791.)

VARIAN, J. Lee and McNaughton, JJ., concur. GIVENS, C. J., concurring in part and dissenting in part. Budge, J., dissents.

OPINION

VARIAN, J.

Appellant was convicted of the crime of assault with a deadly weapon under C. S., sec. 8252, and appeals from the judgment and an order denying his motion for a new trial.

The defendant, his brother William V. Bush, Anna Bush, said brother's wife, and Cecilia Drexler, her sister, all living at Twin Falls, on the night of May 10, 1928, attended a dance at the filer dance-hall. Shortly after their arrival, William V. Bush and a man named Marvin Cole went downstairs from the smoking-room at the dance-hall and engaged in a rough-and-tumble fist fight. The defendant held the fighters' coats. After a time defendant attempted to interfere by kicking at the combatants, who were down in the street struggling. The prosecuting witness, George Jasper (who is related to the defendant and his brother by marriage), interfered, telling defendant to "let them settle it their own way." The fighters then got up and fought each other across the street, when they again went down. Thereupon, defendant attempted to kick Cole and struck his brother William in the face. Then Jasper intervened and he and defendant began a fist fight on their own account. Jasper testified that the first blow he received was on the left side on the ribs, from which he felt a "stinging pain." Finally, defendant backed away and pointed an automatic pistol at Jasper, used obscene words, and said, "Now, will this stop you?" and he answered, "Yes, it will." In the meantime, William V. Bush and Cole had ceased fighting, and the former rushed between defendant and Jasper, saying, "Don't shoot, Slim; this is George." Jasper also testified that defendant rushed at him and said, "Get away, Bill, and leave me at him; I'll kill him." Jasper dodged behind a car and went back to the dance-hall, arriving in time for the last dance. He had felt his side paining him more or less, and discovered, when he stepped on the running-board of his car to go home, that when his shirt and underwear pulled away from his body, it felt wet and sticky. He then went to a doctor's office, where it was discovered that Jasper had a "stab wound" in the chest about an inch long, running transverse to the line of the ribs. It was directly over a rib and was a quarter of an inch in depth. The doctor testified that the sharp instrument used to inflict the wound could not be determined, nor whether or not it was a deadly weapon. We will refer to parts of the testimony in greater detail in discussing the points involved.

An information charging defendant with assault with a deadly weapon was filed September 10, 1928, a demurrer to which was sustained and the prosecuting attorney directed to file a new information. On September 12, 1928, a new information was filed, charging:

"The said Cleo Bush, on or about the 10th day of May, 1928, in the county of Twin Falls, state of Idaho, did then and there willfully, wrongfully, unlawfully, feloniously, and intentionally make an assault, with two certain deadly weapons, to wit: with a pistol, which said pistol was then and there likely to produce great bodily injury, and with a sharp instrument, the exact nature of which is at this time unknown to this affiant, and which said sharp instrument was then and there likely to produce great bodily injury, upon the person of one George Jasper, then and there a human being, by then and there attempting with the intention to do great bodily injury to the person of said George Jasper, he, the said Cleo Bush, then and there having the present ability to do so; and which said assault was then and there likely to produce great bodily injury to and upon the person of said George Jasper," etc.

Defendant demurred to this information for that it failed to state a public offense, alleged an assault with two deadly weapons and failed to show in what respect the weapons were deadly or by what means they were likely to produce great bodily injury; that it charged more than one offense; that it does not conform to C. S., secs. 8825, 8826 and 8827, governing informations, in that it does not appear that the assault was committed by pointing a loaded pistol or by striking another with the pistol, or in what manner it ...