State v. Cacavas, 6148

CourtUnited States State Supreme Court of Idaho
Writing for the CourtGIVENS, C. J.
Citation44 P.2d 1110,55 Idaho 538
PartiesSTATE, Respondent, v. STEVE CACAVAS, Appellant
Docket Number6148
Decision Date03 May 1935

44 P.2d 1110

55 Idaho 538

STATE, Respondent,
v.

STEVE CACAVAS, Appellant

No. 6148

Supreme Court of Idaho

May 3, 1935


CRIMINAL LAW-INTOXICATING LIQUOR-FURNISHING TO MINORS-EVIDENCE, SUFFICIENCY OF-CORROBORATION-WITNESSES-JURY, CONDUCT OF-INSTRUCTIONS TO ACQUIT.

1. Verdict finding defendant guilty of furnishing two minor girls with intoxicating liquor would not be disturbed because testimony of two girls was uncorroborated (I. C. A., sec. 18-217).

2. Jury can believe or disbelieve testimony of any witness, or any portion of such testimony, even though such witness may have in some respects testified falsely in respect to material matters, or been contradicted.

3. Verdict of jury will not be disturbed where evidence is sufficient to sustain verdict.

4. Verdict of jury cannot be impeached by testimony of jurors as to misconduct other than that verdict was arrived at by chance or lot.

5. Refusal to advise jury to acquit is discretionary with trial court.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. C. J. Taylor, Judge.

Conviction for giving intoxication liquor to a minor. Affirmed.

Judgment affirmed. Petition for rehearing denied.

C. M. Jeffery, for Appellant.

Statutes in many states require corroboration of the testimony of a female, and especially where the crime charged is committed against the female, for example, in a charge of prostitution. (Cal. Pen. Code, sec. 1108; Okla. Comp. Stats., sec. 2703.) The same applies to the nature of crimes, for instance, abduction. (Ore. Laws (1920), sec. 1542; Wyo. Comp. Stats. (1920), sec. 7521; Cal. Pen. Code, sec. 1108; Mont. Stats., sec. 11984; Utah Comp. Stats., sec. 8988.)

If court is dissatisfied with weight and credibility of evidence, he may set aside verdict of guilty and grant a new trial. (State v. Lewellyn, 71 Utah 331, 266 P. 261.)

A juror may be permitted to testify as to what actually took place in a jury-room, but not to state the influence such conduct had upon the verdict, and it is for the court to determine whether or not such conduct actually influenced the verdict of the jury. (Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49.)

Hon. B. H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Admitting that a degree of corroboration is required by judicial precedent in rape cases, no such rule applies here; on the contrary, in view of the statutory enumeration of cases in which corroboration is essential the present type is excluded. Expressio unius est exclusio alterius. (Section 16-501, I. C. A.)

No error may be predicated upon nor review had of a refusal to advise or direct a jury to acquit. (State v. McClurg, 50 Idaho 762, 300 P. 898; State v. Stevens, 48 Idaho 335, 282 P. 93.)

GIVENS, C. J. Budge and Ailshie, JJ., MORGAN, J., Concurring. HOLDEN, J., Dissenting.

OPINION

[55 Idaho 539] GIVENS, C. J.

Appellant, convicted of the felony of furnishing intoxicating liquor to a minor, seeks a reversal on the insufficiency of the evidence, misconduct of certain jurors in the jury-room, and the trial court's refusal to direct a verdict in his favor.

Appellant insists the two girls to whom it is asserted the liquor was given were impeached and unworthy of credence, and uncorroborated, and that their testimony is the sole basis for the verdict, and hence is not sufficient to support the same.

Neither I. C. A., sec. 18-217, making it a felony for any person to sell or give or furnish intoxicating liquor to any minor, nor any other statute requires that the evidence or testimony of the complaining witness must be corroborated.

[55 Idaho 540] It is within the province of the jury to believe or to disbelieve the testimony of any witness, or any portion of such testimony, even though such witness may have in some respects testified falsely in respect to a material matter, or been contradicted. (70 C. J., sec. 1338; 6 Jones on Evidence, 2d ed., 4813; 26 Cal. Jur. 169, sec. 143; I. C. A., sec. 16-201; State v. Harp, 31 Idaho 597, 173 P. 1148; State v. Sims, 35 Idaho 505, 206 P. 1045; Bodenhamer v. Pacific Fruit & P. Co., 50 Idaho 248, 295 P. 243; State v. Driskill, 26 Idaho 738, 145 P. 1095; State v. Hopkins, 26 Idaho 741, 145 P. 1095; State v. Bush, 50 Idaho 166, 295 P. 432; State v. Keyser, 38 Idaho 57, 219 P. 775; Webster v. McCullough, 45 Idaho 604, 264 P. 384; Gordon v. Sunshine Min. Co., 43 Idaho 439, 252 P. 870; State v. Boyles, 34 Idaho 283, 200 P. 125; Baird v. Gibberd, ...

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16 practice notes
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...re McVay's Estate, 14 Idaho 56, 93 P. 28; McDaniel v. Moore, 19 Idaho 43, 112 P. 317; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; [44 P.2d 1110] Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736; Herbert v. Wagg, 27 Okla. 674, 117 P. 209; Hanchett v. Wiseley, 107 Cal.App. 230......
  • State v. Olin, No. 13080
    • United States
    • United States State Supreme Court of Idaho
    • July 9, 1982
    ...(in a criminal case) to believe or to disbelieve the testimony of any witness, or any portion of such testimony, ...." State v. Cacavas, 55 Idaho 538, 540, 44 P.2d 1110 (1935). The jury could also have properly considered the fact that the defendant took and sold some of the victim's proper......
  • State v. Richardson, 6254
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 1935
    ...165, 89 N.W. 828; State v. Sims, 35 Idaho 505, 206 P. 1045.) Refusal to advise the jury to acquit is not reviewable. (State v. Cacavas, 55 Idaho 538, 44 P.2d 1110; State v. McClurg, 50 Idaho 762, 797, 300 P. 898.) Where an assignment of error is not supported by citation of authority or arg......
  • State v. Murphy, No. 10827
    • United States
    • Idaho Supreme Court
    • July 18, 1972
    ...Payton, 45 Idaho 668, 264 P. 875 (1928); See State v. Parris, 55 Idaho 506, 44 P.2d 1118 (1935); [94 Idaho 856] Page 555 State v. Cacavas, 55 Idaho 538, 44 P.2d 1110 (1935). Although I must concede that these holdings are consistent with many of the earlier cases in this country (See genera......
  • Request a trial to view additional results
16 cases
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...re McVay's Estate, 14 Idaho 56, 93 P. 28; McDaniel v. Moore, 19 Idaho 43, 112 P. 317; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; [44 P.2d 1110] Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736; Herbert v. Wagg, 27 Okla. 674, 117 P. 209; Hanchett v. Wiseley, 107 Cal.App. 230......
  • State v. Olin, No. 13080
    • United States
    • United States State Supreme Court of Idaho
    • July 9, 1982
    ...(in a criminal case) to believe or to disbelieve the testimony of any witness, or any portion of such testimony, ...." State v. Cacavas, 55 Idaho 538, 540, 44 P.2d 1110 (1935). The jury could also have properly considered the fact that the defendant took and sold some of the victim's proper......
  • State v. Richardson, 6254
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 1935
    ...165, 89 N.W. 828; State v. Sims, 35 Idaho 505, 206 P. 1045.) Refusal to advise the jury to acquit is not reviewable. (State v. Cacavas, 55 Idaho 538, 44 P.2d 1110; State v. McClurg, 50 Idaho 762, 797, 300 P. 898.) Where an assignment of error is not supported by citation of authority or arg......
  • State v. Murphy, No. 10827
    • United States
    • Idaho Supreme Court
    • July 18, 1972
    ...Payton, 45 Idaho 668, 264 P. 875 (1928); See State v. Parris, 55 Idaho 506, 44 P.2d 1118 (1935); [94 Idaho 856] Page 555 State v. Cacavas, 55 Idaho 538, 44 P.2d 1110 (1935). Although I must concede that these holdings are consistent with many of the earlier cases in this country (See genera......
  • Request a trial to view additional results

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