State v. Caviness

• Decision Date: 03 March 1925
• Citation: 40 Idaho 500,235 P. 890
• Parties: STATE, Respondent, v. ALFRED E. CAVINESS, Appellant
• Court: Idaho Supreme Court

235 P. 890

40 Idaho 500

STATE, Respondent, v. ALFRED E. CAVINESS, Appellant

Supreme Court of Idaho

March 3, 1925

HOMICIDE - MOTION IN ARREST OF JUDGMENT - INFORMATION-SUFFICIENCY OF-MOTION FOR NEW TRIAL-INSTRUCTIONS-ASSIGNMENTS OF ERROR-MISCONDUCT OF COUNSEL-EVIDENCE-OFFER OF PROOF-ADMISSIBILITY.

1. Where an information charges murder in the first degree substantially in the language of the statute, it is not necessary to allege that the deceased died within a year and a day of the time of the infliction of the fatal blow where the information alleges that she died prior to the filing thereof and the same was filed prior to the expiration of such period.

2. A requested instruction requiring the court to single out any particular fact in evidence and suggest to the jury the effect which may be given it, thereby emphasizing particular facts favor- able to the defendant and ignoring other evidence having a contrary tendency, is properly refused.

3. Certain instructions given by the court on its own motion examined and held not prejudicial.

4. Where errors are assigned but are not discussed either in the brief or upon oral argument and no authorities are cited in support of such assignments, they will neither be reviewed considered nor discussed by this court.

5. If the purity of the verdict might have been affected by misconduct of the prosecuting attorney it must be set aside but if it could not have been affected thereby it will be sustained. Alleged misconduct of prosecuting attorney considered and held not to affect the purity of the verdict especially in view of the court's repeated admonitions to the jury.

6. A defendant in a criminal prosecution is not permitted by way of defense to show by conjectural inferences that some other person might have committed the crime for which he is on trial, or that some person other than himself is more probably guilty. Held, that an offer of proof that unidentified burglars had been operating in the neighborhood and may have committed the crime, together with other acts remote and disconnected with the crime, was properly refused.

7. Evidence examined and held sufficient to support verdict.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Defendant was convicted of murder in the first degree and from judgment of conviction and order overruling motion for new trial appeals. Affirmed.

Judgment affirmed. Petition for rehearing denied.

J. T. Cook and Harry Keyser, for Appellant.

The information must allege the date of the death of the deceased, in order to charge the crime of either murder or manslaughter, or it must appear that deceased died within a year and a day, in order to constitute either crime. (C. S., sec. 8216; see cases collected in note to Commonwealth v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L. R. A., N. S., 1019, at 1022, to 1025, inclusive, and note to State v. Dailey, (Ind.), 20 A. L. R. 1004, 134 N.E. 481; 13 R. C. L., sec. 208, pp. 902, 903.)

Where the evidence relied upon for conviction by the state is of such character that the purity of the verdict might have been affected by the alleged misconduct of the prosecuting attorney, such verdict will be set aside. (State v. Douglass, 35 Idaho 140, 208 P. 236; People v. Manganaro, 218 N.Y. 9, 112 N.E. 436; State v. Evans, 267 Mo. 163, 183 S.W. 1059; Kelly v. State, 79 Tex. Cr. 362, 185 S.W. 570.)

The rule that withdrawal of prejudicial matter or an instruction to the jury to disregard it cures any error does not apply where statements of counsel are calculated to irrevocably sway the minds of the jurors and instructions are not sufficiently specific. (People v. Manganaro, supra.)

Where error is shown it is presumed to have worked injury to the party against whom it was committed, unless it affirmatively appears from the record that no injury did or could result. (Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

An information charging a crime in the language of the statute defining that crime is sufficient. (State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

The sufficiency of an indictment is not to be tested by rules of common law, but by the requirements of the criminal practice act. The requirement of the statute that it must appear that the party died within a year and a day is a rule of evidence only. (People v. Murphy, 39 Cal. 52; People v. Sanford, 43 Cal. 291.)

It is not error to refuse an instruction which singles out any particular fact in evidence and suggests to the jury the effect which may be given to it. (State v. Jones, 28 Idaho 428, 154 P. 378; State v. Pettit, 33 Idaho 326, 193 P. 1015.)

A judgment will not be reversed where the impression received by the jury from the misconduct of the prosecuting attorney is not such that it may well be said that the misconduct rather than the evidence was the determining factor in their decision. (State v. Douglass, 35 Idaho 140, 208 P. 236.)

BUDGE, J. Wm. E. Lee, J., and Babcock, District Judge, concur. William A. Lee, C. J., and Baum, District Judge, dissent.

OPINION

BUDGE, J.

Appellant was charged with and convicted of the crime of murder in the first degree and his punishment was fixed by the jury at life imprisonment. A motion in arrest of judgment was made by appellant and overruled. Thereupon judgment was pronounced in accordance with the verdict. A motion for new trial was later made and overruled. This appeal is from the judgment and from the order overruling the motion for a new trial. The victim of the murder was appellant's wife, Maude Ethel Caviness, who will be hereinafter referred to as the deceased.

Twenty-eight assignments of error are specified and relied upon for reversal. It is asserted in the first assignment of error that the court erred in overruling appellant's motion in arrest of judgment. This assignment attacks the sufficiency of the information upon the ground that it does not state a charge of murder or manslaughter and for that reason no valid judgment could be rendered upon the verdict of the jury. It is insisted that the information is fatally defective in that it fails to allege that the deceased died within a year and a day after the alleged mortal wound was inflicted. The information charges the crime in the language of the statute and, under the authority of State v. Lundhigh, 30 Idaho 365, 164 P. 690, and State v. Askew, 32 Idaho 456, 184 P. 473, is sufficient. (See, also, State v. Sly, 11 Idaho 110, 80 P. 1125, and People v. Sanford, 43 Cal. 29.) It will also be observed that it is alleged in the information that deceased "died prior to the filing of this information." The crime is alleged to have been committed on September 1, 1922, and the information was filed on November 4, 1922, and it is therefore apparent that it is sufficiently alleged that the deceased died within a year and a day from the time she received the fatal blow.

The second assignment predicates error upon the court's refusal to give appellant's requested instruction No. 3, which is as follows:

"The jury are instructed that if there is any evidence before you which raises in your mind a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed, you must acquit the defendant. In this connection it is the contention of the defense that the defendant was sleeping with the little daughter Leona in the bed-room at the time when the deceased, Maude Ethel Caviness was struck by some person, unknown and unidentified, while she was occupying another bed or couch in an adjoining room, described in the testimony as the front or living-room. If you believe such to be the fact, or if the evidence upon this phase of the case raises in your mind any reasonable doubt as to such being the fact, then you must acquit the defendant."

This instruction falls within the rule announced in the case of State v. Jones, 28 Idaho 428, 154 P. 378, wherein it is held that it is error for the court in a criminal case to give an instruction which directs the attention of the jury specially to certain portions of the evidence and suggests to them certain inferences of facts to be drawn therefrom, thereby singling out for their consideration particular facts favorable to the defendant and ignoring other evidence having a contrary tendency. Also as was held in the case of State v. Pettit, 33 Idaho 326, 193 P. 1015:

"A requested instruction requiring the court to single out any particular fact in evidence and suggest to the jury the effect which may be given to it is properly refused."

To the same effect see State v. Cosler, 39 Idaho 519, 228 P. 277. The court properly refused to give appellant's requested instruction No. 3.

Assignments of error Nos. 3, 4, 5 and 6 relate to the giving of certain instructions by the court upon its own motion. A careful reading of the instructions complained of, considered in connection with the entire charge, convinces us that no prejudicial error was committed by the court in giving these instructions. Upon the whole they are fair and are not of such a character as would mislead the jury or result in an unjust verdict.

Assignment No. 8 is predicated upon the action of the court in sustaining the state's objection to a question put to the witness McBride, in which he was asked as to what appellant's daughter stated had happened on the night of the alleged crime. The statements sought to be elicited by the question were alleged to have been made in the presence of the witness shortly after the crime was committed. It is insisted by appellant that this statement was a part of the res gestae and was...