State v. Cotterel

• Citation: 86 P. 527,12 Idaho 572
• Parties: STATE, Respondent, v. S.W. COTTEREL et al., Appellants
• Decision Date: 10 July 1906
• Court: United States State Supreme Court of Idaho

86 P. 527

12 Idaho 572

STATE, Respondent, v. S.W. COTTEREL et al., Appellants

Supreme Court of Idaho

July 10, 1906

JOINT INFORMATION-GRAND LARCENY-SEPARATE VERDICTS-JURISDICTION-ADJOURNMENT OF TERMS-JUDICIAL KNOWLEDGE-INSTRUCTIONS.

1. Where two defendants are jointly informed against and tried together for grand larceny, and the jury, under the instructions of the court, bring in a separate verdict against each, finding them guilty as charged in the information, and entitle each of the verdicts as though there were but a single defendant in the case, but name each of the defendants in the title. Held, that such verdicts are not void for uncertainty, and the fact that said verdicts were so entitled could not and did not prejudice the defendants.

2. Where the jurisdiction of the court is attacked on the ground that the term of court at which certain defendants were sentenced had elapsed before the sentence was pronounced by reason of the fact that the term in an adjoining county (under the settings of the terms by the judge) was to begin on the day that the court adjourned its term, and the record fails to show whether such term in the latter county had been adjourned prior to the adjournment of the term in the county where the defendants were convicted, the presumption will be that the court acted legally in the matter and had jurisdiction to pronounce and enter judgment.

3. This court cannot take judicial notice of the adjournment of the terms of the district courts. Such facts may be presented, as other facts are presented, on appeal.

4. Where it is alleged in the information that the ownership of the stolen property is in one person, and on the trial another person testifies that he owns a half interest in such property, and thereafter the former is recalled and explains the ownership of each, and the question of ownership is fairly submitted to the jury upon the evidence, and by an instruction given by the court. Held, that such instruction was properly given.

5. Where it is alleged in the information that the stolen property is owned by a certain person and the evidence shows that such person only has a half interest therein, such variance is not fatal, and does not entitle the defendant to an acquittal.

6. Where the court fairly covers every point in the case by instructions given on its own motion, it is not error to refuse to give instructions requested by counsel for the defendant covering the same point and questions.

7. Held, that under the evidence and affidavits of newly discovered evidence and errors assigned in admitting and rejecting evidence, the court did not err in denying a new trial.

(Syllabus by the court.)

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

The defendants were convicted of grand larceny and sentenced to a term of eighteen months' imprisonment. Affirmed.

Affirmed.

S. C Winters and Hawley, Puckett & Hawley, for Appellants.

The test as to whether a verdict is sufficiently clear as to its import is, whether a conviction thereof could be successfully pleaded in bar of another prosecution for the same offense. (Chambers v. People, 4 Scam. 351; Bland v State, 4 Tex. App. 15; People v. Ah Ye, 31 Cal. 452.)

The term of a district court in one county in a district cannot continue beyond the commencement of a term in another county in the same district. (Cooper v. American Cen. Ins Co., 3 Colo. 318; Gregg v. Cook, Peck (7 Tenn.), 82; Grable v. State, 2 Greene (Iowa), 559.)

The ownership must be proved as alleged, and it had not so been proved. (People v. Bogart, 36 Cal. 245.)

Our practice forbids, in a criminal cause, a summing up of the evidence by the court, or any statement of the evidence that might prejudice the jury. While subdivision 6 of section 7855, Revised Statutes, says the judge may state the testimony and declare the law, it especially prohibits him from charging as to facts, and such an instruction as No. 7 is in effect an instruction as to facts. (People v. Barry, 31 Cal. 357; People v. Christenson, 85 Cal. 568, 24 P. 888; People v. Casey, 65 Cal. 260, 3 P. 874; People v. Cowgill, 93 Cal. 596, 29 P. 228; People v. Kindlegerger, 100 Cal. 367, 34 P. 852; People v. Murray, 86 Cal. 31, 24 P. 802; People v. Matthia, 135 Cal. 442, 67 P. 694.)

J. J. Guheen, Attorney General, Geo. E. Gray, County Attorney, and Standrod & Terrell, for Respondent.

Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. (State v. Ellington, 4 Idaho 529, 43 P. 61; In re Dowling, 4 Idaho 715, 43 P. 871; State v. Larkins, 5 Idaho 200, 47 P. 949; In re Marshall, 6 Idaho 516, 56 P. 470; Territory v. Anderson, 2 Idaho 573, 21 P. 417; State v. Preston, 4 Idaho 215, 38 P. 694; State v. Reed, 3 Idaho 754, 35 P. 706; State v. Clark, 4 Idaho 7, 35 P. 710.)

A verdict is to have a reasonable intendment, and is to receive a reasonable construction, and must not be avoided except from necessity. (Clark's Criminal Procedure, p. 486. and notes; Polson v. State, 137 Ind. 519, 35 N.E. 907; Chambers v. Butcher, 82 Ind. 508; Daniels v. McGinniss, 97 Ind. 549; People v. Ah Kim, 34 Cal. 189; People v. Purdue, 49 Cal. 425; People v. McCarty, 48 Cal. 557; Hroneck v. People, 134 Ill. 139, 23 Am. St. Rep. 652, 24 N.E. 861, 8 L. R. A. 837; People v. Whitney, 64 Cal. 211, 27 P. 1104; People v. West, 73 Cal. 345, 14 P. 848.)

Where two are tried jointly for robbery, the jury may return at the same time two separate verdicts. (Cruce v. State, 59 Ga. 83.)

It must be presumed that what was done by the court below was properly and legally done. Error is not to be presumed, but when alleged it must be affirmatively shown. (Talbert v. Hopper, 42 Cal. 397; People v. Ah Ying, 42 Cal. 18; State v. Montgomery, 8 Kan. 351; State v. Palmer, 40 Kan. 474, 20 P. 270; State v. Rogers, 56 Kan. 362, 43 P. 256.) Even if the evidence had shown that the son of the prosecuting witness had an interest in the horse in question, there would not be a variance that would fatally affect the judgment in this case. (State v. Ireland, 9 Idaho 686, 75 P. 257; State v. Rooke, 10 Idaho 388-404, 79 P. 82; State v. Rathbone, 8 Idaho 161, 67 P. 186.)

When the court trying the case fully and fairly instructs the jury in writing upon every question arising on the trial, it is not error to refuse instructions submitted by the defendant or prosecution. (State v. Rooke, 10, Idaho 388, 79 P. 82; People v. Barnard, 2 Idaho 193, 10 P. 30.)

Requested instructions already substantially given are properly refused. (State v. Cushing, 14 Wash. 527 45 P. 145; People v. Thiede, 11 Utah 241, 39 P. 837; State v. Cushing, 17 Wash. 544, 50 P. 512.)

Where full and accurate instructions are given, it is not error to reject charges asked, even though they are technically correct. (People v. Chadwick, 7 Utah 134, 25 P. 737; State v. Ward, 19 Nev. 297, 10 P. 133; People v. Ah Jake. 91 Cal. 98, 27 P. 595.)

SULLIVAN, J. Stockslager, C. J., concurs. Ailshie, J., took no part in the decision.

OPINION

SULLIVAN, J.

The defendants in this action were informed against jointly, and tried together and convicted of grand larceny on the fifteenth day of September, 1905, for stealing a certain mare. The jury brought in two verdicts, which are as follows:

"State of Idaho Plaintiff, v. S. H. Cotterel, Defendant.

VERDICT.

We, the jury in the above-entitled cause, find defendant guilty of grand larceny, as charged in the information."

"In the District Court of the Fifth Judicial District of the State of Idaho and for Bannock County.

State of Idaho Plaintiff, v. S.W. Cotterel, Defendant.

VERDICT.

We, the jury in the above-entitled cause, find defendant guilty of grand larceny as charged in the information."

Thereafter, and on November 1, 1905, the defendants were sentenced to serve a term of eighteen months in the state penitentiary. On the thirty-first day of October, 1905, the defendants moved for a discharge on the grounds that no judgment could be entered on the verdicts, for the reason that neither of said verdicts refer to the cause in which the defendants were tried, or in any wise connect said verdicts with the cause upon trial, or with the information against the defendants, and that each of said verdicts were void for uncertainty, which motion was overruled. A motion for a new trial was also overruled. The appeal is from the judgment.

Several errors are specified, but the first considered is to the form of the verdicts. It is contended by counsel for appellant that the case tried was entitled "State of Idaho v. S. H. Cotterel and S.W. Cotterel," and it will be observed from the form of the verdicts above quoted that in the title S.W. Cotterel is named as defendant in one and S. H. Cotterel in the other; and it is contended by counsel for appellants that each of said verdicts refer to some other cause than the cone upon which the defendants are being tried. It would seem very peculiar if a jury sat and heard one case and rendered a verdict in another. That is what counsel says was done in this case. But we find in the record that the court very clearly advised the jury as to the different verdicts which they might find in the case. The defendants S. H. and S.W. Cotterel were the only defendants on trial. The jury entitled one verdict, "State v. S. H. Cotterel," and the other verdict was entitled, "S.W. Cotterel," in which verdicts they found each of the defendants guilty and each verdict was properly signed by their foreman. It certainly cannot be seriously contended that the...