State v. Cox
Decision Date | 28 June 1935 |
Docket Number | 6222 |
Citation | 46 P.2d 1093,55 Idaho 694 |
Parties | STATE, Respondent, v. FAY COX and OSCAR COX, Appellants |
Court | Idaho Supreme Court |
CRIMINAL LAW-GRAND LARCENY-RETURN OF PROPERTY-INSTRUCTIONS-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-APPEAL AND ERROR-RESERVATIONS OF GROUNDS FOR REVIEW-ASSIGNMENTS OF ERROR, SUFFICIENCY OF-CIRCUMSTANTIAL EVIDENCE-INSTRUCTIONS.
1. In prosecution for grand larceny of steer, based chiefly on circumstantial evidence, evidence to account for rope marks on steer and for its presence at pasture gate where found held newly discovered evidence, warranting new trial.
2. Assignment claiming prejudicial error for outcry, "You lie!" by wife of complaining witness while accused was testifying, held not reviewable, where no request was made to have jury instructed relative to incident nor to have wife reprimanded, and no exception was taken.
3. In prosecution for grand larceny of steer, wherein accused, to explain their presence on highway on night in question showed that they were going to residence of certain individual to take care of dishonored check and introduced probate judge to show necessity for so doing cross-examination of probate judge and introduction of check and probate record showing misdemeanor charge held not error.
4. In prosecution for grand larceny of steer, based chiefly on circumstantial evidence against accused, whose defense was that no theft was committed, instruction that, in prosecution for larceny, return by accused of stolen property to its owner is not a defense, held prejudicial error as assuming corpus of crime, and error was not cured by rule that instructions should be considered as a whole.
5. Assignments directed against alleged rulings in admitting evidence held not reviewable, where no references were made to any specific ruling to which objection was made and there were no folio numbers to which appellate court could refer (Rules of Supreme Court, Rule 42).
6. Instruction containing correct abstract principle of law may be wholly erroneous and prejudicial in case where it has no application to facts involved.
7. Instruction of circumstantial evidence reciting that conclusion of guilt need not necessarily follow from circumstances in evidence, but may be obtained therefrom by probable deductions, held erroneous because confusing and argumentative.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. A. B. Barclay, Judge.
Conviction for crime of grand larceny. Defendants appeal. Judgment reversed and new trial granted.
Judgment reversed and new trial granted.
Chas. A. North and W. L. Dunn, for Appellants.
The court in instructing on circumstantial evidence stated abstract principles of law, that in a case depending on circumstantial evidence alone for conviction was prejudicial to the defendants. (Gardner v. State, 27 Wyo. 316, 196 P. 750, 15 A. L. R. 1040; State v. Marren, 17 Idaho 766, 107 P. 993; State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Dawn, 42 Idaho 210, 245 P. 74.)
The court's instruction defining reasonable doubt was involved, argumentative, conflicting and could but have confused the jury. (16 C. J., secs. 2395-2398, pp. 988-991, sec. 2407, p. 995; State v. Stewart, 46 Idaho 646, 270 P. 140.)
The court in giving instruction numbered 16a assumed certain material facts to be established and invaded the province of the jury on a proposition not even supported by the evidence. (State v. Hines, 43 Idaho 713, 254 P. 217; State v. Stewart, supra; 16 C. J., sec. 2328, p. 949; 14 R. C. L., pp. 786-791.)
Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.
Granting of new trials in criminal cases is statutory and largely discretionary; abuse of discretion by the trial court must be clearly shown before denial may be held error. (State v. Farmer, 34 Idaho 370, 201 P. 33; State v. Barber, 15 Idaho 96, 96 P. 116; State v. Wilson, 51 Idaho 659, 9 P.2d 497.)
The charge that return of stolen property is no defense is statutory and correct. (Section 17-3612, I. C. A., State v. Clark, 47 Idaho 750, 278 P. 776; 2 Brill Cyc. Cr. Law, sec. 782.)
Appellants were arrested and accused of the crime of grand larceny committed on August 27, 1933, in Twin Falls County, the information charging the theft of a "long yearling steer, then and there the personal property of M. L. Perkins." Trial in the district court resulted in a verdict of guilty and judgment was pronounced accordingly. Motion for new trial was denied. Two separate appeals were taken by defendants, one from the judgment of conviction, the other from the order denying motion for a new trial.
Great stress is placed upon appellants' first assignment of error that "the evidence is insufficient to sustain the verdict." The evidence which is chiefly circumstantial is analyzed in detail in appellants' brief and its alleged insufficiency is insistently urged. In view of the conclusions we have reached in relation to rulings of the court on questions of law, it will not be necessary for us to pass upon the sufficiency of the evidence, and since a new trial will be granted we refrain from expressing any opinion as to its weight or sufficiency.
It is contended that the court erred in denying motion of defendants for new trial which was predicated on newly discovered evidence as embodied in the affidavit of one J. C. Tooth. It appears from this affidavit that on the late afternoon of August 27th Tooth was driving eight head of steers from his pasture south of Oakley in Cassia County, to his ranch near Eden, in Jerome County, which necessitated his crossing the Snake River with these cattle by way of what is known as the Murtaugh grade and bridge. The animal alleged to have been stolen had been running in a pasture in Snake River canyon by which the road runs, and it was the state's contention that it was stolen from and returned to the canyon pasture the night of August 27th. Near the bridge Tooth observed four head of cattle, one of which was very similar in description to the steer it is alleged was stolen. When near the bridge these cattle mixed with affiant's cattle; whereupon he cut them out from his herd but two head followed and joined his herd and he was unable to cut them out and finally at the top of the grade north of the river affiant roped one of them, which was a Holstein steer (same breed as one claimed to have been stolen), and "'fair-grounded' him twice, and that is to say, after roping said steer affiant threw the rope down over his rump and run by him and he didn't stay down, when I threw the rope down over his rump a second time and run by him again at which time he stayed on the ground, when affiant got off his horse, took his rope off from said steer and run them back into the canyon using said rope in whipping the two said steers back into said canyon, whereupon affiant proceeded on his way with his eight head of steers to affiant's ranch."
It appears that Tooth did not think of this having any bearing on defendants' case and did not communicate the information until after the trial, at which time he was in conversation with some of his neighbors and told of the incident, which information was later communicated to the defendants. It is contended by the state that this evidence is merely cumulative and would not justify granting a new trial. In this respect we think counsel are in error. This was new and independent evidence and had a direct bearing on two questions: In the first place it could have accounted for the rope marks on the Holstein steer and in the second place it had a direct bearing on the presence of the steer at the pasture gate where Fike and Hranac found him. If such evidence had been introduced upon the trial it would have been the only evidence accounting for the rope mark on the animal as well as the only evidence accounting for the presence of the steer at the gate at the time it was found. It would have also tended to disprove the presence of the steer at the Cox farm early the same evening. If such testimony had been introduced and believed by the jury, it is highly probable that it would have materially affected their verdict. In view of the circumstantial and, in some respects, speculative character of the evidence on which the conviction was predicated, we think it was error on the part of the trial court to deny the motion for new trial in the face of these statements from an apparently reliable and trustworthy citizen. (State v. Lumpkin, 31 Idaho 175, 169 P. 939; McAllister v. Bardsley, 37 Idaho 220, 226, 215 P. 852; Caravelis v. Cacavas, 38 Idaho 123, 128, 220 P. 110.)
While the defendant Oscar Cox was on the witness-stand testifying Fay Perkins, wife of the complaining witness, who was seated back in the courtroom, made the outcry: "Oscar Cox, you lie " Whereupon the trial judge required her to come forward and caused her to be seated in the front part of the courtroom facing the jury. The trial thereupon proceeded. No request was made by defendant to have the jury instructed or admonished in reference to this incident nor to have Mrs. Perkins admonished or reprimanded for her conduct, and no exception was taken. The incident is assigned upon this appeal as prejudicial error. While the conduct of the witness was improper and merited reprimand, nevertheless for the...
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