State v. Cosler

• Decision Date: 01 August 1924
• Citation: 228 P. 277,39 Idaho 519
• Parties: STATE, Respondent, v. WALTER COSLER, Appellant
• Court: Idaho Supreme Court

228 P. 277

39 Idaho 519

STATE, Respondent, v. WALTER COSLER, Appellant

Supreme Court of Idaho

August 1, 1924

CRIMINAL LAW-INFORMATION-SUFFICIENCY OF-INSTRUCTIONS-RAPE-PERSON OF UNSOUND MIND-CHALLENGE TO PANEL-JURORS-DISQUALIFICATION OF - FAILURE TO CHALLENGE - EVIDENCE-WITNESS-COMPETENCY OF-DISCRETION OF COURT-QUESTIONS OF LAW AND FACT-MISCONDUCT OF COUNSEL.

1. The action of the trial court in disallowing a demurrer to an information will not be inquired into on appeal from the judgment unless the question is presented in a bill of exceptions.

2. All the instructions must be considered and construed together and though an individual instruction, standing alone, would appear to be improper, if the instructions as a whole correctly state the law, the judgment will be affirmed.

3. An instruction, which singles out and emphasizes any particular fact in evidence and suggests the effect or weight to be given such fact, is properly refused.

4. It is not error to refuse to give a requested instruction in any event, where the subject matter thereof is fully and fairly covered by the instructions of the court.

5. Instructions should not be argumentative, nor should they be so worded as to indicate either the court's view of the facts or to permit the jury to erroneously infer the view of the court with respect to the facts.

6. The reputation for chastity of a female cannot be impeached by evidence that an act of sexual intercourse was committed upon her person while she was under the age of eighteen years.

7. A challenge to the panel is an objection to all the jurors and can be founded only upon a material departure from the forms prescribed in the drawing and return of the jury and for the intentional omission to summon any of those drawn.

8. The inclusion of the names of women among those selected by the board of county commissioners for jury service is not a ground for challenge to the panel.

9. The disqualification of any individual juror for jury service is not a ground for challenge to the panel.

10. A person is subject to challenge for cause for a want of any of the qualifications prescribed by law to render a person a competent juror.

11. A party who fails to interpose a challenge for cause with respect to a juror, who may be disqualified, cannot complain that he was forced to exhaust a peremptory challenge to remove such person from the jury.

12. The competency of a witness to testify should be determined when the witness is produced, and, in determining the question of competency, the court is not bound by the allegations of the information.

13. The competency of a witness is a question of law for the court.

14. The misconduct of counsel does not ordinarily authorize the reversal of a judgment when the evidence is so conclusive that the jury could not have properly reached any other verdict.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Henry F. Ensign, Judge.

Appellant was convicted of the crime of rape. Affirmed.

Affirmed.

W. T Stafford, for Appellant.

Argumentative instructions are erroneous. (State v. Love (Okl.), 150 P. 913; People v. Holden, 13 Cal.App. 354, 109 P. 497; People v. Merritt, 18 Cal.App. 58, 122 P 840; State v. Fleming, 17 Idaho 486, 106 P. 305; State v. Marren, 17 Idaho 766, 107 P. 993; 16 C. J., p. 1036, sec. 2476; 13 Cyc. 797, citing cases; 1 Sackett, Instructions, 161, sec. 195.)

Unchastity of party may be shown for the purpose of impeachment. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Trego, 25 Idaho 625, 138 P. 1124.)

Those who are of unsound mind at the time of their production for examination cannot be witnesses.

Incapacity to give intelligent and legal consent to the commission of an act does not necessarily imply incapacity to thereafter truthfully narrate the facts constituting the commission of the act. (State v. Simes, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914.)

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

In order to review the action of the trial court in denying a demurrer to an information, it is necessary to save an exception and incorporate the exception and ruling of the court in a bill of exceptions. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Crawford, 32 Iowa 165, 179 P. 511; State v. Ford, 33 Idaho 689, 197 P. 558; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Ricks, 34 Idaho 122, 201 P. 827; State v. Becker, 35 Idaho 568, 207 P. 429; State v. Moodie, 35 Idaho 574, 207 P. 1073.)

Incapacity to give intelligent and legal consent to the commission of an act does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act. (State v. Sims, 35 Idaho 505, 206 P. 1045; State v. Hyde (Okl.), 221 P. 787; State v. Simes, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914; Lanier v. Bryan, 184 N.C. 235, 26 A. L. R. 1488, 114 S.E. 6.)

It is not error on the part of the trial court to refuse to advise the jury to acquit the defendant. (State v. Sullivan, 34 Idaho 68, 199 P. 647.)

Instructions which are subject to the criticism that they are argumentative do not necessarily constitute grounds for reversible error. (17 C. J., sec. 3689, p. 341.)

Instructions shall be read as a whole. (State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; State v. Nolan, 31 Idaho 71, 169 P. 295; State v. Petrogalli, 34 Idaho 232, 200 P. 119; State v. Dong Sing, 35 Idaho 616, 208 P. 860.)

An entire charge on a particular point must be read together. (People v. Bernard, 2 Idaho 178, 10 P. 30; Loy v. State, 26 Wyo. 381, 185 P. 796; Johnson v. State, 86 Tex. Cr. 276, 216 S.W. 192.)

A new trial ought never to be granted notwithstanding some mistake or misdirection by the judge, provided the revisioning court is satisfied that justice has been done, and that upon the evidence no other verdict could properly have been found. (State v. Marren, 17 Idaho 766, 107 P. 993; State v. Dong Sing, supra.)

It is not error to refuse instructions requested by either the state or the defendant, where the substance of the refused instruction is covered by another instruction given by the court. (State v. Reel, 19 Idaho 463, 113 P. 721; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. Steers, 12 Idaho 174, 85 P. 104; State v. Fondren, 24 Idaho 663, 135 P. 265.)

WM. E. LEE, J. McCarthy, C. J., and Budge, J., concur. Dunn and William A. Lee, JJ., did not sit.

OPINION

WM. E. LEE, J.

--An information was filed in the district court for Gooding county charging Walter Cosler with the crime of rape, committed upon the person of one Elizabeth Walton, who had been prior to the alleged crime a student of the State School for the Deaf and Dumb at Gooding. It was alleged that Elizabeth Walton was incapable, through unsoundness of mind, of giving legal consent to the act of sexual intercourse. Appellant Cosler was convicted and appeals from the judgment. A number of assignments of error are made.

Appellant interposed a demurrer to the amended information. The demurrer was disallowed. The record does not contain any bill of exceptions, presenting this question. The action of the trial court in disallowing a demurrer to an information will not be inquired into on appeal from the judgment unless the question is presented in a bill of exceptions. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Ford, 33 Idaho 689, 197 P. 558; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Moodie, 35 Idaho 574, 207 P. 1073.)

It is next contended that the court erred in giving ten certain instructions requested by the state, and in failing to give seven certain instructions requested by appellant. In the trial of this case, the state requested the court to give seventeen different instructions, while appellant asked the giving of twenty-three separate instructions. The court actually gave forty-two instructions. It would serve no useful purpose to set forth the instructions given at the request of the state and those requested by appellant which the court refused to give. Certain of the individual instructions, standing alone, would appear to be improper, but we cannot say that, taking all the instructions together, any error is found that would justify a reversal. (State v. Sayko, 37 Idaho 430, 216 P. 1036.) Certain of the instructions are somewhat argumentative, but appellant was not prejudiced on that account. The verdict is clearly sustained by the evidence and the jury could not properly have returned any other verdict. (State v. Marren, 17 Idaho 766, 107 P. 993; State v. Dong Sing, 35 Idaho 616, 208 P. 860.) It is claimed that instructions 13 and 14, especially, invade the province of the jury and constitute an expression of OPINION as to the facts proven. Although these two instructions might be improved upon, counsel is unduly critical. To the extent that these two instructions might be construed as an expression of the opinion of the court, instruction No. 40 fully advised the jury that the determination of the facts was wholly within its province and that the court had not attempted to suggest what the facts were. Reasons, illustrations and examples contained in certain of the instructions might properly have been omitted, but we fail to see that appellant was prejudiced.

Appellant especially complains of the refusal of the court to give the instruction requested calling the particular attention of the jury to the fact that Elizabeth Walton was at the time of the alleged crime an employee of the institution and that such fact should be considered with respect to her ability and her mental condition. The evidence covers more than 250 type-written pages, and it would be manifestly improper to single out any particular fact and...