State v. Clark

Decision Date11 March 1915
Citation146 P. 1107,27 Idaho 48
PartiesSTATE, Respondent, v. C. J. CLARK, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW-JURORS-CHALLENGE-IMPLIED BIAS-EVIDENCE - MOTION TO STRIKE OUT - DEFENDANT'S WITNESS - ARREST OF - IN PRESENCE OF JURY - CONDUCT OF PROSECUTING ATTORNEY - PREJUDICE - NOT CURED BY INSTRUCTION - REJECTION OF OFFERED EVIDENCE-CONTINUANCE-AFFIDAVIT FOR-ADDITIONAL INSTRUCTIONS-ERROR - DATE OF CRIME - ELECTION BY STATE - MOTION FOR NEW TRIAL - COUNTY ATTORNEY - COMPEL DEFENDANT TO LEAVE THE STATE-CONTRADICTORY TESTIMONY-INSTRUCTIONS-ACCOMPLICE.

1. The court did not err in denying challenges to certain jurors on the ground of implied or actual bias.

2. Where a motion is made to strike out the entire answer of a witness where a part of such answer is responsive to the question and a part is not, it is not error for the court to deny such motion.

3. Where a witness for the defendant testifies that he was in the room of the prosecutrix on the evening or night the alleged crime was committed, and the prosecuting attorney states in open court and before the jury that the witness according to his own testimony, had committed an offense under the laws of the state, and demands that he be remanded to the custody of the sheriff to be prosecuted for such offense, and the court thereupon orders the arrest of the witness, and he is arrested in the presence of the jury and taken from the courtroom and placed in the jail, such proceeding is prejudicial error and an invasion of the rights of the defendant, and an intimation of the opinion upon the part of the court that the witness had committed either perjury or some other felony. Such action was prejudicial to the rights of the defendant.

4. An instruction given by the court to the effect that the jury must not be influenced in any way by the action of the court in ordering the arrest of the witness in the presence of the jury and must not be influenced by the remarks of the court or counsel touching the arrest of said witness, did not, and could not, cure the error of the conduct of counsel or the action of the court in said matter.

5. Held, that the action of the assistant prosecuting attorney and the arrest of the witness in the presence of the jury was reversible error.

6. It was error for the court to reject any of the testimony given by the prosecutrix on the preliminary examination which would tend to impeach or contradict the testimony she gave on the trial of the case.

7. Held, that the court erred in refusing to admit certain affidavits made for a continuance, where the state, in order to avoid a continuance, admitted that if the witnesses named in the affidavits were present, they would testify as set forth in the affidavits.

8. Held, that the court erred in giving certain instructions.

9. Held, that the court erred in not granting defendant's motion for a new trial.

10. Under the provisions of sec. 7871, Rev. Codes, a conviction cannot be had upon the testimony of an accomplice unless he is corroborated by other evidence.

11. Where the testimony of the prosecutrix is contradictory or her reputation for truthfulness and veracity is impeached and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated by other witnesses, the testimony of the prosecutrix without corroboration will not warrant a conviction.

APPEAL from the District Court of the Fifth Judicial District, in and for Power County, Hon. Alfred Budge, Judge.

The defendant was charged with and convicted of the crime of incest and sentenced to a term of from five to ten years in the penitentiary. Judgment reversed and a new trial granted.

Judgment reversed and a new trial granted, and cause remanded.

McDougall & Jones and T. S. Becker, for Appellant.

The record discloses that the jurors Meadows and Beckstead had heard the facts in this case and had formed an opinion which would require evidence to remove at the time of the examination. (Burke v. McDonald, 3 Idaho 296, 29 P 98; State v. Caldwell, 21 Idaho 663, 123 P. 299; 24 Cyc. 302.)

The admission of a statement of prosecuting witness that when she was a child ten years ago another and distinct crime had been committed by the defendant was clearly error. (62 L. R. A. 338, note; 12 Cyc. 405; People v. Bowen, 49 Cal. 654; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Williams, 36 Utah 273, 103 P. 250; State v. Marselle, 43 Wash. 273, 86 P. 586.)

The court erred in directing the sheriff to take into his custody a witness for the defendant off the witness-stand and in the presence of the jury. (Golden v. State, 75 Miss. 130, 21 So. 971; Commonwealth v. Brady, 71 Mass. (5 Gray) 58; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114.)

"It is the duty of the trial court to refrain from allowing their acts and words to indicate to the jury their opinion of the credibility of any witness who testified in a case on trial before them, or of the merits of any such case." (State v. Hughes, 33 Kan. 23, 5 P. 381; People v. Abbott, 4 Cal. Unrep. 276, 34 P. 503; Hicks v. United States, 2 Okla. Cr. 626, 103 P. 873; State v. Taylor, 7 Idaho 134, 61 P. 288; State v. Fowler, 13 Idaho 317, 89 P. 757.)

The court erred in rejecting the offer of the defendant to read to the jury the answers made by the witness Abi Clark Luper before the committing magistrate at the preliminary examination, offered for the purpose of impeaching her evidence given at the trial. (State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Corcoran, 7 Idaho 220, 61 P. 1034; State v. Fowler, 13 Idaho 317, 89 P. 757.)

Where the testimony of the prosecutrix is contradictory, or her reputation for truthfulness and veracity is impeached and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction. (State v. Trego, 21 Idaho 625, 138 P. 1124; State v. Tevis, 234 Mo. 276, 136 S.W. 339.)

If prosecutrix submits to the intercourse, though unwillingly, she is an accomplice. (Mercer v. State, 17 Tex. App. 465; Coburn v. State, 36 Tex. App. 258, 36 S.W. 442; Clifton v. State, 46 Tex. Cr. 18, 108 Am. St. 983, 79 S.W. 824; Tate v. State (Tex. Cr.), 77 S.W. 793; Gillespie v. State, 49 Tex. Cr. 531, 93 S.W. 556; Skidmore v. State, 57 Tex. App. 497, 123 S.W. 1129.)

J. H. Peterson, Atty. Genl., T. C. Coffin and E. G. Davis, Assts., O. R. Baum and W. G. Bissell, for Respondent.

If the challenge is for actual bias, it must be alleged that the juror was biased against the party challenging. (State v. Gordon, 5 Idaho 297, 48 P. 1061; People v. Reynolds, 16 Cal. 128.)

The examination of the jurors Meadows and Beckstead failed to disclose implied bias under subdivision 8 of sec. 7834, upon which the appellant relies, namely, that these jurors had formed or expressed an unqualified opinion or belief. (People v. Reynolds, 16 Cal. 128; State v. Millain, 3 Nev. 409-429; State v. Davis, 14 Nev. 439-450, 33 Am. Rep. 563; People v. O'Loughlin, 3 Utah 133, 1 P. 653.)

The decision of the trial judge as to whether a juror is biased has the effect of a verdict of a jury upon the facts, and will seldom, if ever, be disturbed. (People v. O'Loughlin, supra.)

According to some authorities the court may, in the exercise of its discretion, commit to jail, in the presence of the jury, a witness who has in its opinion perjured himself before the jury, or at the preliminary examination, without committing error. (12 Cyc. 542; Commonwealth v. Salawich, 28 Penn.Super.Ct. 330; State v. Strado, 38 La. Ann. 562; Linsday v. People, 67 Barb. (N. Y.) 548, 63 N.Y. 143; People v. Hayes, 70 Hun, 111, 24 N.Y.S. 194, 140 N.Y. 484, 37 Am. St. 572, 35 N.E. 951, 23 L. R. A. 830.)

Where a witness upon the stand tells a part of the incriminating evidence against himself, voluntarily and without claiming his privilege, he is obliged to make a complete disclosure thereof. (People v. Freshour, 55 Cal. 375; Clark v. Reese, 35 Cal. 89.)

SULLIVAN, C. J. Morgan, J., concurs. Budge, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

SULLIVAN, C. J.

The defendant was convicted of the crime of incest, alleged to have been committed upon his daughter, a married woman about twenty-two years of age, on the 14th of January, 1914, in Power county, and was given an indeterminate sentence in the state penitentiary for a term of not less than five years and not to exceed ten years.

A motion for a new trial was denied and the appeal is from the judgment and the order denying the new trial.

The errors specified to have been committed by the court were in regard to challenges of certain jurors; refusing to strike out certain testimony; directing the sheriff in the presence of the jury to arrest one of the defendant's witnesses on account of testimony he gave on the trial; rejecting certain evidence offered by the defendant; permitting the foreman of the jury, after having been out seventeen hours, to state the matters which in his opinion were preventing the jury from agreeing and in instructing the jury upon such points; giving certain instructions; overruling defendant's motion for a new trial; and in instructing the jury that they might convict upon the uncorroborated testimony of the prosecutrix.

The record shows that the defendant is a man 51 years of age and has a wife and family of ten children, the two oldest being the prosecutrix (about 22 years of age) and a Mrs. Dowell, a married woman about 20 years of age.

The record shows that the people in and about Rockland and vicinity where the defendant resided became very much excited over this matter and very much prejudiced against the...

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