State v. Cox

• Decision Date: 05 July 1923
• Citation: 37 Idaho 397,216 P. 724
• Parties: STATE, Respondent, v. FRANK COX, Appellant
• Court: Idaho Supreme Court

216 P. 724

37 Idaho 397

STATE, Respondent, v. FRANK COX, Appellant

Supreme Court of Idaho

July 5, 1923

WITNESS-INCONSISTENT STATEMENTS-IMPEACHMENT-FAILURE TO LAY FOUNDATION.

Held in this case that failure of state to lay foundation for impeachment of defendant's testimony by showing inconsistent statements by him was not prejudicial error.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Ralph W. Adair, Judge.

Conviction of crime of grand larceny. Affirmed.

Affirmed.

George Donart, A. C. Cherry and W. J. Lamme, for Appellant.

The testimony of the witness Gus Bertsch being offered for the purpose of impeaching the defendant was inadmissible in evidence, because the proper foundation for its admission had not been laid by first asking the defendant upon cross-examination as to whether or not he had made such statements, and giving him an opportunity to explain the same. (C. S., sec. 8039; Hilbert v. Spokane etc. Ry Co., 20 Idaho 54, 116 P. 1116; People v Devine, 44 Cal. 452; People v. Nonella, 99 Cal. 333, 33 P. 1097; Sinkler v. Siljon, 136 Cal. 356, 68 P. 1024; Young v. Brady, 94 Cal. 128, 29 P. 489; Mason v. Vestal, 88 Cal. 396, 22 Am. St. 310, 26 P. 213; People v. Glover, 141 Cal. 233, 74 P. 747; People v. Gray, 148 Cal. 507, 83 P. 707; 40 Cyc., tit. "Witnesses," pp. 2719-2723; Wigmore on Evidence (1904 ed.), secs. 1025-1029.)

Roy L. Black, Attorney General, Dean Driscoll and James L. Boone, Assistants, and J. G. Martin, Prosecuting Attorney, for Respondent.

The court should look to the competency of the evidence and not its order of reception. (C. S., sec. 9084.)

The admission of the evidence of contradictory statements of a witness without laying a proper foundation when the witness was on the stand was not error where the witness afterward denied the testimony. (Hartsfield v. State (Tex. Cr.), 29 S.W. 777; State v. Simes, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 914; State v. Sims, 35 Idaho 505, 206 P. 1045.)

DUNN, J. McCarthy and William A. Lee, JJ., concur. Wm. E. Lee, J., dissents.

OPINION

DUNN, J.

Appellant was convicted in the district court of Butte county of the crime of grand larceny in stealing an automobile. He was sentenced to a term in the penitentiary of not less than one nor more than fourteen years, and from this judgment he has appealed.

Appellant assigns only one error, that of admitting in rebuttal the testimony of one Gus Bertsch to certain statements claimed to have been made by the appellant relative to his purchase of the automobile and to his departure from the town of Arco inconsistent with the testimony of the appellant on the trial, no foundation having been laid for such impeaching testimony by questioning appellant with regard thereto in accordance with C. S., sec. 8039, which reads in part as follows:

"A witness may also be impeached by evidence, that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. . . ."

There can be no question that the admission of this testimony, under the circumstances shown by the record, was error, since it was offered solely for impeachment and the foundation therefor was not laid in conformity with this statute. It is not necessary for us to determine whether this error would be sufficient to require reversal of the judgment if this were all that the record showed. In view of the other matters shown by the record, to which we will refer briefly, we think the error of the court was not prejudicial.

The appellant testified that he had purchased the automobile in question at McCall, Idaho, from one Earl Johnson for the sum of $ 400. He also testified to being at Arco at or about the time the automobile was lost by the owner, and that he went from Arco to Roberts and from Roberts by rail to Pocatello. The witness Bertsch, testifying on behalf of the state in rebuttal, said that after his arrest and shortly before the...