State v. Corcoran

• Decision Date: 03 July 1900
• Citation: 7 Idaho 220,61 P. 1034
• Parties: STATE v. CORCORAN
• Court: Idaho Supreme Court

61 P. 1034

7 Idaho 220

STATE v. CORCORAN

Supreme Court of Idaho

July 3, 1900

MARTIAL LAW-DISABILITY OF SHERIFF TO ACT-CORONER.-Martial law having been declared to exist in a certain county, and the sheriff of such county being detained in prison by the military authorities, the court properly directed the coroner to perform the duties of sheriff.

DUTIES AND QUALIFICATIONS OF COUNTY ATTORNEY.-Where the county attorney is incapacitated from acting in a certain criminal case, it is the duty of the district court having jurisdiction of such case to appoint some suitable person to perform, for the time being, the duties of county attorney, and such appointee has authority to perform all of the duties of county attorney in such case, and may appear before the grand jury to assist in the examination of witnesses.

APPOINTMENT OF PERSON TO ACT TEMPORARILY AS COUNTY ATTORNEY.-A person is not disqualified from acting as temporary county attorney under appointment, by reason of his residence in another county.

CHALLENGING GRAND JURY.-A defendant in a criminal action who was, at the time the grand jury was impaneled, which afterward indicted him for a murder growing out of a riot in which he participated, in open court with his counsel, he being under arrest at the time, and detained pending an investigation of such riot, declines to challenge such panel, and declines to challenge any of the individual grand jurors, is held to answer within the meaning of section 7730 of the Revised Statutes of Idaho, and cannot, after indictment, have the indictment set aside for the reason that he had good ground for challenge to the panel or to any individual grand juror.

CHANGE OF VENUE.-The existence of martial law to a limited extent and an excited condition of the public mind to the prejudice of the defendant, are questions pertinent to a motion for change of venue, but are not pertinent or relevant upon the hearing of a motion for a postponement of the trial.

POSTPONEMENT OF TRIAL.-A postponement of a trial in a criminal case, on the ground of the absence of material witnesses, is properly denied, where the defendant fails to use any diligence to procure their presence, and makes no effort so to do.

CHALLENGING TRIAL JURY-PRACTICE ON APPEAL.-On appeal, the action of the trial court in denying the challenge of the defendant to the panel of trial jurors, upon the ground that the officer who summoned the jurors upon special venire was biased against the defendant will not be reviewed, where the record on appeal shows that such challenge was heard and decided upon the evidence of the officer summoning such jury, and his evidence is not in the record upon appeal.

WITNESS.-A party who introduces a witness may not impeach him by evidence of bad character, but may show that he has made, at other times, statements inconsistent with his present testimony.

EVIDENCE.-It is not competent for the defense in a criminal case to ask an adverse witness if his employer intends to claim damages against the county for the acts constituting or connected with the offense for which defendant is being prosecuted, as such question does not tend to show the state of mind of the witness toward the defendant.

SAME.-Defendant was being tried for murder; the coroner's inquest upon the body of the deceased was not closed, but in progress; de- fendant asked that the testimony of certain witnesses, who had also testified before the coroner's jury should be produced by the coroner; the prosecution had not asked said witnesses in regard to their testimony before the coroner's jury. The court denied the defendant's request to compel the coroner to produce the testimony of such witnesses at the inquest. Held, that the action of the trial court was correct.

DECLARATIONS OF COCONSPIRATOR.-The declarations of one conspirator, the conspiracy being established, made during the pendency of the criminal enterprise with reference to the common object thereof, is competent against his co-conspirator.

INSTRUCTIONS.-An erroneous instruction to the effect that one who abets or aids in the commission of a crime, though absent at the time of its commission, shall be prosecuted, tried and punished as a principal, is cured by other instructions to the effect that before they can convict the defendant, they must believe from the evidence, beyond a reasonable doubt, that he knowingly aided the commission of such offense with guilty purpose and intent.

JURY-INTOXICATING LIQUORS-HARMLESS ERROR.-While it is error to permit the jury to use intoxicating liquors to any extent during the progress of a trial, yet a verdict will not be set aside on such ground, unless it is shown that the jurors were under the influence of such liquor, or that defendant was prejudiced thereby.

PRESUMPTION AS TO ERROR-WHAT RECORD MUST SHOW AS TO ERROR.-To obtain a reversal upon the ground of error committed during the progress of the trial, such error must affirmatively appear in the record.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed.

A. A Fraser, Peter Breen, Patrick Reddy, F. C. Robertson, and Jones & Morphy, for Appellant.

Under section 3961 of the Revised Statutes of Idaho the court was authorized to direct the sheriff, and no other officer, to summon the jurors, unless the sheriff was disqualified under sections 1886 and 1887, or incapacitated under section 2085 of the Revised Statutes of Idaho. It is only in the cases mentioned in those three sections that the coroner would be authorized by law to perform any of the duties of the sheriff. Before the duties of the sheriff can be imposed upon the coroner, or upon an elisor, the disqualification of the sheriff must appear of record. There must be a satisfactory showing of disqualification. (People v. Irwin, 77 Cal. 494, 20 P. 56; Bruner v. Superior Court, 92 Cal. 239, 28 P. 341; People v Fellows, 122 Cal. 233, 54 P. 830; Chord v. McCoy, Morris (Iowa), 311; 1 Thompson on Trials, sec. 22; Thompson and Merriam on Juries, sec. 501, subd. 3; Brown v. State, 9 Neb. 157, 2 N.W. 378; Finley v. State, 61 Ala. 206.) The court erred in making the order appointing J. H. Forney to act as special prosecutor and acting county attorney in Shoshone county. (County Attorney Act, sec. 2, Sess. Laws 1899, p. 32.) The word "suitable" used in the statute is synonymous with the word "eligible." (Century Dictionary; Mechem on Public Officers, sec. 124, 19 Ency. of Law, 402; People v. Platt, 50 Hun, 454, 3 N.Y.S. 367, 370; Peters v. Public Administrator, 1 Bradf. (N. Y.) 200, 207.) The defendant, not having been held to answer before the finding of the indictment, was entitled to challenge the individual grand jurors under section 7730, subdivision 4 of the Revised Statutes of Idaho. (State v. Hardy, 4 Idaho 478, 42 P. 507.) The court erred in denying defendant's motion for a postponement of the trial of said action. The facts alleged in affidavits are uncontradicted and the truth of the statements unchallenged. There being no conflict the court should have granted the motion. (People v. Compton, 123 Cal. 414, 56 P. 44.) A prosecuting officer has no more right to attempt to dissuade the witnesses of a party accused of crime from testifying than he would have to induce them to leave the state. (Gandy v. State, 24 Neb. 716, 40 N.W. 302.) Any question tending to show the interest of any witness is competent and proper cross-examination. ( People v. Stork, 1 Idaho 218-223; Greenleaf on Evidence, 14th ed., sec. 446.) The court, in any event, had the power to have confined the cross-examination to matters competent and relevant, and which affected the testimony of the witnesses against the defendant, and could have rejected and excluded the remainder. (Stevens v. People, 19 N.Y. 570; People v. Devine, 44 Cal. 460; 1 Greenleaf on Evidence, 14th ed., sec. 250; Rapalje's Law of Witnesses, sec. 258.) The court erred in denying defendant's motion to strike out the testimony of the witnesses, John Clark, Albert Burch, Nicholas Hardy, A. M. St. Clair, Ida J. Sinclair and others, who had testified against the defendant, and who testified before said coroner at the inquest held on the body of James Cheyne. The defendant having been prevented from cross-examining the witnesses, their testimony in chief should not have been allowed to stand, or remain in the case, and the only remedy was by a motion to strike out. (Rapalje's Law of Witnesses, sec. 245, subd. 2; People v. Cole, 2 Lans. 370; Pringle v. Pringle, 59 Pa. 281; Stevens v. People, 19 N.Y. 570; Kissam v. Forest, 25 Wend. 650; Sperry v. Moore, 42 Mich. 361. 4 N.W. 13; Hewlett v. Wood, 67 N.Y. 394.) A disjunctive instruction that an accessary may be charged as a principal if he aids or abets in the commission of a felony is erroneous. (People v. Compton, 123 Cal. 403, 56 P. 44; Holt v. Spokane etc. Ry. Co., 3 Idaho 203, 35 P. 39; State v. Webb, 6 Idaho 428, 55 P. 892; Monroe v. Cooper (Cal.), 6 P. 378; Sappenfield v. Railroad Co., 91 Cal. 48, 27 P. 590.) An erroneous instruction is not cured by another instruction upon the same subject which is correct, unless the former is specifically withdrawn. (Lufkins v. Collins, 2 Idaho 135, 7 P. 95; Schultz v. Keeler, 2 Idaho 305, 13 P. 481.) Suspicion, however, strong, is never sufficient to convict. (Forsyth an Trial by Jury, 285; Wills on Circumstantial Evidence, 6th Am. ed., 66; People v. Thompson, 50 Cal. 480; Ram on Facts, 108, 117.)

Samuel H. Hays, Attorney General, J. H. Forney, W. E. Borah and Hawley, Puckett & Hawley, for the State.

It is waste of time to quibble about the exact character of the sheriff's imprisonment, or whether national or state authorities were his custodians. The point to determine is whether or not he was in...