State v. Craner

• Citation: 94 P.2d 1081,60 Idaho 620
• Decision Date: 10 October 1939
• Docket Number: 6611
• Parties: STATE, Respondent, v. CLARENCE CRANER and MELVIN CRANER, Appellants
• Court: United States State Supreme Court of Idaho

94 P.2d 1081

60 Idaho 620

STATE, Respondent, v. CLARENCE CRANER and MELVIN CRANER, Appellants

No. 6611

Supreme Court of Idaho

October 10, 1939

CRIMINAL LAW-LARCENY OF A CALF-CIRCUMSTANTIAL EVIDENCE-INSTRUCTIONS-INCLUDED OFFENSES.

1. An instruction that, if circumstances proved produce moral conviction of guilt to exclusion of every reasonable doubt they did not need to be absolutely incompatible, on any reasonable hypothesis, with innocence of accused, and that theory of innocence must be rational and find support in facts, and that no theory not fairly founded on evidence need be adopted, was prejudicially erroneous, where evidence was entirely circumstantial and not conclusive of guilt.

2. In prosecution for larceny of a calf, omission to charge on offense of slaughtering unbranded neat cattle and maliciously killing animal belonging to another was not error notwithstanding that evidence tended to show that either or both such offenses were committed, since offense of larceny of calf could have been completed without commission of the other offenses. (I. C. A., secs. 17-4202, 24-1606.)

3. Error is not committed by omission to charge on a particular point not necessarily an ingredient of an offense otherwise sufficiently alleged, in absence of a request thereon.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. T. Bailey Lee, Judge.

Appellants were convicted of the larceny of a calf and they appeal. Judgment reversed and cause remanded for a new trial.

Reversed and remanded.

Bert H. Miller and Ariel L. Crowley, for Appellants.

The instruction is prejudicially erroneous. Giving it was reversible error. (State v. Hix, 58 Idaho 730 (742, 743), 78 P.2d 1003; State v. Taylor, 59 Idaho 724, 87 P.2d 454-459; State v. Cox, 55 Idaho 694, 46 P.2d 1093.)

It is the duty of the court to instruct on necessarily included offenses, without request on the part of the defendants. (State v. Hix, supra.)

It is the duty of the court to give to the jury the customary stock instructions on general principles of law applicable to all criminal cases which are necessary for the information of the jury, whether the defense requests such instructions or not, and failure to so instruct is reversible error. (State v. Patterson, ante, p. 67, 88 P.2d 493.)

J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

Error is never presumed and must be proven to be prejudicial, and any error in individual instructions is without prejudice where the jury without violation of oath could not have failed to find the defendants guilty. (Sec. 19-2719, I. C. A.; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Marren, 17 Idaho 766, 107 P. 993.)

Where instructions given cover the law of the case, it is not error to refuse to give instructions requested by defendant, and appellants cannot predicate prejudicial error thereon. It will be presumed that the court has sufficiently instructed the jury. (State v. Brill, 21 Idaho 269, 121 P. 79; State v. Copenbarger, 52 Idaho 441, 16 P.2d 383; State v. O'Brien, 13 Idaho 112, 88 P. 425.)

GIVENS, J. Ailshie, C. J., and Morgan and Holden, JJ., concur. BUDGE, J., Dissenting.

OPINION

GIVENS, J.

--Appellants were convicted of the larceny of a calf.

Their first assignment of error challenges Instruction No. 14 ^[1] which is almost identical with the instruction held cause for reversal in State v. Hix, 58 Idaho 730, 78 P.2d 1003, and State v. Taylor, 59 Idaho 724, 87 P.2d 454, and embodies all the vices of the similar instruction condemned in State v. Cox, 55 Idaho 694, 46 P.2d 1093.

The attorney general admits the instruction is erroneous but asserts it was not prejudicial because "if the jury considered all of the instructions as they should do, they could not have but presumed that the defendants were innocent unless the evidence taken as a whole satisfied the jury beyond a reasonable doubt of the defendants' guilt. . . ." and that if the evidence of guilt was so conclusive that the jury could not have returned a verdict of not guilty without violating their oath then the giving of the erroneous instruction does not warrant a reversal of the conviction.

In State v. Taylor, 59 Idaho 724, 734, supra, this court in considering the above contention said:

". . . . this rule has been and should be guardedly applied, otherwise art. 1, sec. 7, guaranteeing the right to trial by jury, which means a jury which has not been misled by erroneous instruction to a defendant's prejudice, will be violated."

Without discussing the evidence, because the case is remanded for a new trial, it was entirely circumstantial and not so conclusive of guilt, giving full force and effect to the attorney general's contention (without approval or disapproval thereof) as to bring this case thereunder.

Appellants contend the court should have instructed on the claimed included offenses of slaughtering unbranded neat cattle (sec. 24-1606, I. C. A.) and maliciously killing an animal the property of another (sec. 17-4202, I. C. A.).

State v. Hix, supra, at page 739, of the Idaho Reports, cited in support of this contention, is distinguishable. There the offense charged was murder in the first degree and it was held error not to give instructions permitting conviction of murder in the second degree and manslaughter. As stated therein "every charge of murder necessarily includes the offense of murder in the first degree, murder in the second degree and manslaughter." Murder in the first degree cannot be committed without commission at the same time of the offenses of murder in the second degree and manslaughter. In the case at bar appellants were charged with larceny of a calf. The offense could have been completed without the commission of the offenses of slaughtering unbranded neat cattle or maliciously killing an animal the property of another. The fact that the evidence tended to show a violation of either or both secs. 24-1606 and 17-4202, I. C. A., does not make them necessarily included offenses in the crime of larceny of a calf. No error is committed by the omission to charge on a particular point not necessarily an ingredient of the offense otherwise sufficiently alleged, in the absence of a request thereon. (State v. Patterson, 60 Idaho 67, 88 P.2d 493.)

Judgment reversed and cause remanded for a new trial.

Ailshie, C. J., and Morgan and Holden, JJ., concur.

DISSENT BY: BUDGE

BUDGE J., Dissenting.--

The following statement of facts recited in the brief of the attorney general appears to be in all respects substantially correct and is adopted and approved as a statement of the material facts disclosed by the record:

"Appellants were convicted of grand larceny of an unbranded Hereford calf, and sentenced to serve a term of not less than one nor more than fourteen years in the Idaho State Penitentiary, from which judgment of conviction this appeal is made.

"The evidence establishes that the two appellants were in the vicinity of where the crime was committed on September 15 1937, the date thereof. Shortly before the calf was discovered by the state's witnesses the appellants stopped at the E. R. A. camp and at that time had no large object in their truck. At this time the endgate in appellants' truck was up, but when the truck was stopped a little past seven o'clock P. M. at Steinson Creek where the calf was found dead, the endgate on appellants' truck was down. The appellants passed the witness Wallace Averill on his way to a forest ranger station while he was leading two horses behind his truck. Fifteen or Twenty minutes after Averill arrived at the ranger station he and the other witnesses accompanying him in his truck heard a shot from a rifle coming from the direction of Flat Creek which was a quarter of a mile distant by airline and approximately three-quarters of mile by the road. This was between seven and seven-thirty o'clock in the evening. In order to investigate the shot Averill and the other witnesses accompanying him in his car drove to the mouth of Flat Creek Canyon, at which place the appellants passed him going out of the canyon at a fast rate of speed with an object in the rear of their truck which looked like a deer. The road leading up Flat Creek canyon was not in the direction of appellants' sheep camp. Averill turned around in the road and followed the appellants about one mile to a place in the road where the road going to the Craner ranch crosses Steinson Creek, at which place, when Averill drove up and stopped, the appellants' car was across the creek about thirty feet, stopped, with the motor running standing in the road, and Melvin Craner was running toward the Craner truck and attempted to flip a long wool sack into the back of the pickup. He appeared to be nervous and fumbled around trying to get the door open and get into the car. Averill hollered for Craner to stop, but they did not and when Melvin got into the pickup they drove away toward their ranch. Averill and witnesses with him found the Hereford bull calf, about three or four months old, not branded, and not weaned, lying about thirty feet from where Craner's car had stopped with blood from where the back of the car was to where the calf was lying with its throat cut and a bullet wound over its left eye in front of the head. It was warm at this time, showing that it had been very recently killed. The brush was crushed down and blood was smeared on the ground and brush where the calf had been...