State v. Calkins

• Decision Date: 12 December 1941
• Docket Number: 6951
• Parties: STATE, Respondent, v. MURL CALKINS, Appellant
• Court: Idaho Supreme Court

120 P.2d 253

63 Idaho 314

STATE, Respondent, v. MURL CALKINS, Appellant

No. 6951

Supreme Court of Idaho

December 12, 1941

CRIMINAL LAW-MURDER-INFORMATION, SUFFICIENCY OF-PRELIMINARY EXAMINATION-RIGHT TO COUNSEL-MENTAL CAPACITY-PROOF IN MITIGATION-BURDEN OF PROOF-INSTRUCTIONS.

1. In murder trial, instruction that law presumes mental capacity and responsibility, unless the fact is proved otherwise by preponderance of evidence, was erroneous as placing on defendant burden of proving defense of insanity by preponderance of evidence.

2. In murder trial, where erroneous instruction, placing on defendant burden of proving defense of insanity by preponderance of evidence, was in conflict with other instructions claimed to render it harmless, and defendant's evidence might have been sufficient to raise reasonable doubt in jurors' minds as to whether he was sane or insane at time of crime, but insufficient to prove such defense by preponderance of evidence, such instruction was prejudicial to defendant.

3. In murder prosecution, defendant's affidavit, alleging in support of his motion to set aside information that committing magistrate advised defendant that he was entitled to preliminary examination and to attorney and that defendant thereupon advised magistrate that defendant desired attorney's services, whereupon magistrate advised defendant that he could not have attorney at preliminary examination, but that district court would appoint attorney for him when case reached such court, did not show that defendant was denied statutory or constitutional "right to counsel" at preliminary examination. (I. C. A. secs 19-701 to 19-703; Const. art. 1, sec. 13.)

4. A defendant, before being placed on trial, is entitled to be apprised by information, not only of name of offense charged but in general terms of manner in which he is charged with having committed such offense. (I. C. A. secs 19-1309 to 19-1311.)

5. A murder information, charging that defendant made assault on named woman, inflicting mortal wounds on and in her body, and unlawfully, willfully, feloniously, and with malice aforethought killed and murdered her, was fatally defective as not stating acts constituting offense and not charging manner in which or means by which alleged crime was committed. (I. C. A. secs. 19-1309 to 19-1311.)

6. If means by and manner in which alleged crime was committed are unknown to prosecutor, he must so allege in information or amendment thereof. (I. C. A. secs. 19-1309 to 19-1311, 19-1320.)

7. In instruction on burden of proof in mitigation of crime of murder, court should use exact language of statute requiring proof of commission of homicide by defendant before placing such burden on him. (I. C. A. sec. 19-2012.)

8. In murder trial, instruction that "fact of killing first being proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the defendant," etc., was erroneous because of omission of statutory words, "by the defendant," after word "killing." (I. C. A. sec. 19-2012.)

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Murl Calkins was convicted of the crime of manslaughter and appeals. Reversed and remanded with directions to grant a new trial.

Reversed and remanded with directions.

Eugene F. McCann and F. C. Keane, for Appellant.

An information must set out a clear and concise statement of the acts constituting the offense charged in ordinary language and in such a manner as to enable a person of common understanding to know with what particular act or acts he is charged. (Constitution of Idaho, Art. 1, sec. 13; I. C. A. secs. 19-1203, 19-1309, 19-1310, 19-1311, 19-1319, 19-1318; State v. McMahon, 57 Idaho 240.)

An instruction that does not follow the language of section 19-2012 of the Idaho Code by leaving out the words "by the defendant" is erroneous and fatally defective. ( People v. Post, (Cal.) 281 P. 618; State v. Jurko, 42 Idaho 319.)

Bert H. Miller, Attorney General, J. R. Smead, Leo Bresnahan, Robert M. Kerr, Jr., and M. Casady Taylor, Assistant Attorneys General, for Respondent.

All the instructions should be read and considered together; it is presumed that the jury did so. Where one instruction is inaccurate but is corrected by the others, there is no prejudice. State vs. Jurko, 42 Idaho 319, 336; State vs. McClurg, 50 Idaho 762; State vs. Brown, 53 Idaho 576.)

Here there was no evidence, nor claim, or accident or necessity as resulting in the homicide. In such case there is no error in an inaccurate instruction concerning those matters, even if related to mitigation under the statute. (I. C. A., sec. 19-2012; Jackson vs. State, (Ga.) 75 S.E. 245; State vs. Anderson, (S. Car.) 67 S.E. 237.)

HOLDEN, J. Morgan and Ailshie, JJ., concur, BUDGE, C. J., Givens, J., concurring in part, dissenting in part.

OPINION

HOLDEN, J.

Murl Calkins was informed against and tried in the district court in and for Shoshone County for the crime of murder. His defense was, that at the time of the alleged commission of the crime, he was insane. He was convicted of manslaughter and appeals.

It is strenuously, and we conclude, correctly, insisted the trial court committed reversible error by instructing the jury that

"The law presumes mental capacity and responsibility unless the fact is proved otherwise by a preponderance of the evidence. (Italics ours.) If you believe from the evidence that the defendant, at the time that he assaulted Dell Marie Calkins, was laboring under mental aberration[r] to such an extent that he did not realize or comprehend his acts and was incapable of forming an intent, it is a defense for an act committed while in that condition; but if you find from the evidence that "the defendant knew and realized what he was doing, and was capable of forming an intent, then the defendant will be held responsible for his acts."

By the above quoted instruction the trial court squarely placed upon appellant the burden of proving his defense of insanity by a preponderance of the evidence. The law does not impose that burden upon a defendant. Here, as in State v. Stewart, 46 Idaho 646, 651, 270 P. 140, the Attorney General admits the instruction is erroneous, but takes the position that, when the instructions are considered as a whole, no prejudice is shown. As this court pointed out in the Stewart case, supra, the fallacy of that position "lies in the fact that the instruction complained of is in conflict with those which are said to render it harmless. It is frequently the case that an instruction which is inaccurate or incomplete may be cured by a correct statement of the law in another instruction, but an instruction which places on the defendant the burden of establishing his innocence is not cured by an instruction which states the rule correctly. (Italics ours.) Contradictory instructions tend to confuse and mislead a jury; and, in this case, it is not possible to determine that the jury did not follow the erroneous instruction. How, therefore, can it be said that appellant was not prejudiced? State v. Judd, 20 Mont. 420, 51 P. 1033; Weber v. State, 2 Okla. Crim. 329, 101 P. 355; Rea v. State,) 3 Okla. Crim. 269, 105 P. 381; State v. Sandt, 95 N.J.L. 49, 111 A. 651; Weber v. State, 183 Wis. 85, 197 N.W. 193. See, also, State v. Webb, 6 Idaho 428, 55 P. 892; State v. Bowker, 40 Idaho 74, 80, 231 P. 706." approved and adhered to in State v. Hines, 43 Idaho 713, 718, 254 P. 217; State v. Copenbarger, 52 Idaho 441, 463, 16 P.2d 383.

Respondent did not offer any evidence in opposition to appellant's defense of insanity, but rested its case against him, as to that defense, on the presumption appellant was presumed to be sane. Hence, in passing on that defense the jury was necessarily confined to a consideration of appellant's evidence. That evidence might have been sufficient to raise a reasonable doubt in the minds of the jury as to whether appellant was sane or insane at the time of the alleged commission of the offense, but insufficient to prove that defense by a preponderance of the evidence, as the trial court so emphatically instructed the jury appellant was required to do. Therefore, it is quite impossible for this court to say either that the jury could not have reached any other verdict, or that it would not have reached a different verdict if correctly instructed.

It is also insisted appellant at his preliminary examination was denied the right of counsel, in violation of Sections 19-701 and 19-703, I. C. A., and Section 13 of Article 1 of the Constitution of the State of Idaho. It appears appellant moved in the trial court to set the information aside upon two grounds: (1) That it was "not found, endorsed and presented as prescribed in the Idaho Code Annotated"; (2) that the defendant had not been held to answer to the charge set forth in the information upon a preliminary examination held before it was filed. The motion was supported by the affidavit of appellant. The pertinent allegations of the affidavit are that the committing magistrate advised appellant that he, appellant, "was entitled to a preliminary examination, and that he also was entitled to an attorney; that affiant thereupon advised the said Probate Judge sitting as a committing magistrate that he desired the services of an attorney, but that the said Judge Kelly thereupon advised him that he could not have an attorney at the preliminary examination, but that he would have to wait until said action reached the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, at which time the Court would appoint an attorney for him."

Certain of the proceedings...