State v. Crea

Decision Date02 June 1904
PartiesSTATE v. CREA
CourtIdaho Supreme Court

INFORMATION-INDORSING NAMES OF WITNESSES THEREON-JUROR-PEREMPTORY CHALLENGE-READING INDICTMENT TO JURY-IMPEACHMENT OF WITNESS-PHYSICAL STRENGTH OF DEFENDANT AND DECEASED-RETREAT-PREJUDICE OF WITNESS-EXHIBITS TAKEN TO JURYROOM-INSTRUCTIONS.

1. Under the provisions of section 2, Laws Fifth Session, 1889 page 125, requiring the prosecuting attorney to indorse on the information the names of all witnesses known to him at the time of filing the same, and it is sought to have the names of other witnesses indorsed on the information after the same has been filed, the court must be satisfied that the names of such witnesses were not known to the prosecuting attorney at the time the information was filed before such names are allowed to be indorsed thereon.

2. The court may, in its sound discretion, permit the prosecuting attorney to exercise his right of peremptory challenge of a juror at any time previous to the time the jury is sworn to try the case, the object and purpose being to secure a fair and impartial jury.

3. It is not error for the court to permit the witnesses to be sworn in a body.

4. Under the provisions of section 7855, Revised Statutes, a failure by the clerk to read the indictment or information and state the plea of the defendant to the jury is reversible error.

5. Under the provisions of section 6083, Revised Statutes, a witness may be impeached by evidence showing that he has made at other times statements inconsistent with his present testimony, and such statements must not only be relevant to the issue, but must be of matters of fact and not simply the opinion of the witness based on facts.

6. Where the defendant seeks to show the superior physical strength of the deceased when compared with his own, the evidence should be confined to the strength of each at the time of the homicide.

7. It was error to reject evidence tending to show that the defendant was behind the bar in a saloon and could not retreat out of reach of the deceased to escape his attack.

8. It is error to reject any evidence showing or tending to show the bias or prejudice of the witness either for or against the defendant.

9. On the direct examination of a witness called to testify to the reputation of the deceased as to peace and quietude, it is not proper, over the objection of the defendant, to inquire into the relation that existed between the witness and deceased.

10. Under the provisions of section 7902 of the Revised Statutes it is error to permit, over the objection of the defendant the jury to take to their juryroom any exhibits except such papers as are specified in said section.

11. It was error to instruct the jury that "if the evidence shows an unlawful killing, then in order for such unlawful killing to be manslaughter and not murder, there must have been shown by the evidence to have been a serious and highly provoking injury inflicted upon the person killing,.... or an attempt by the person killed to commit a serious injury on the person killing," as the language there used under the provisions of section 6570, Revised Statutes, would be justifiable homicide and not manslaughter.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable E. C. Steele Judge.

Defendant charged with murder; convicted of manslaughter. Reversed.

Cause remanded, with instructions.

Miles S. Johnson and A. S. Hardy, for Appellant.

Before and after the commencement and during the progress of the trial the court permitted the prosecuting attorney to indorse the name of witnesses upon the information without an affidavit being filed, or any statement made that the said witnesses were unknown to the prosecuting attorney prior to the leave being asked, or any statement made as to what was expected to be proven by said witnesses. (Laws 1899, p. 125, sec. 2; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N.W. 665; State v. Wilmbusse, 8 Idaho 608, 70 P. 849.) We submit that when a peremptory challenge is waived it is gone, and to allow the state to peremptorily challenge a juror after it has waived its last peremptory, is equivalent to giving the state six peremptories. "It is error to allow the state to peremptorily challenge a juror after he is tendered to the prisoner or to allow the state more peremptories than allowed by law." (State v. Fuller, 114 N.C. 885, 19 S.E. 797; State v. Cameron (Wis.), 2 Pinn. 496; Gravely v. State, 45 Neb. 878, 64 N.W. 452; State v. Haines, 36 S.C. 504, 15 S.E. 556; Williams v. State, 63 Ark. 527, 39 S.W. 709; Wiggins v. Commonwealth, 20 Ky. Law Rep. 908, 47 S.W. 1073; Vance v. Richardson, 110 Cal. 414, 42 P. 909.) The information was not read to the jury or the plea stated at any time during the progress of the trial. (See Rev. Stats., sec. 7855, subd. 1.) "If the indictment is for a felony the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with." "Criminal Code Practice, section 219, requiring the indictment to be read to the jury, is mandatory, and a total failure to comply with the requirement is reversible error." (Farris v. Commonwealth (Ky.), 63 S.W. 615; Hendrickson v. Commonwealth, 23 Ky. Law Rep. 1191, 64 S.W. 954; State v. Chambers, 9 Idaho 673, 75 P. 275.) "It is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent." (People v. McQuade, 110 N.Y. 284, 18 N.E. 156, 1 L. R. A. 273.) It is a general rule that a witness cannot be impeached on an immaterial or collateral matter. (People v. Tiley, 84 Cal. 651, 24 P. 290; People v. Furtado, 57 Cal. 345; People v. McKeller, 53 Cal. 65; People v. Bell, 53 Cal. 119; People v. Dye, 75 Cal. 108, 16 P. 537; State v. Irwin, 9 Idaho 35, 71 P. 608; 2 9 Am. & Eng. Ency. of Law, p. 793; People v. Collum, 122 Cal. 186, 54 P. 589; People v. Cole, 127 Cal. 545, 59 P. 984; People v. Webb, 70 Cal. 120, 11 P. 509; Wharton's Criminal Evidence, 484.) Nor can the witness' former opinion in relation to the matter in issue be shown unless it is a matter upon which the opinion of a witness is admissible in evidence. (29 Am. & Eng. Ency. of Law, p. 796; 1 Thompson on Trials, sec. 493; Commonwealth v. Mooney, 110 Mass. 99; Wharton's Criminal Evidence, 482.) The test as to whether a matter is collateral within the meaning of the rule is this: that the cross-examining party be entitled to prove it in support of his case. (29 Am. & Eng. Ency. of Law, p. 794; Wharton's Criminal Evidence, 484.) It is a matter of vital importance in a plea of self-defense to show the comparative strength of the two men. (21 Am. & Eng. Ency. of Law, 2d ed., p. 228.) The testimony in this case showed that McLeod had been in "boxing bouts," and was a very large and powerful man, and an assault and battery by a powerful man with his fists upon a weaker man might produce great bodily injury. (State v. Gray, 43 Or. 446, 74 P. 929; Rogers v. State, 60 Ark. 76, 46 Am. St. Rep. 154, 29 S.W. 894, 31 L. R. A. 465.) It will be seen that papers are the only exhibits which a jury are allowed to take with them to their juryroom and the defendant's discharge was the only paper in evidence. (Rev. Stats., sec. 7902.) Under the same statute the supreme court of Oklahoma, in the case of Hansing v. Territory, 4 Okla. 443, 46 P. 509, held that it was error for the trial court to permit the jury to take with them to the juryroom, and to have the same in their possession while deliberating, the Winchester rifle used by defendant, and the revolver used by his codefendant, and the hat worn by deceased at the time of the affray, with the bullet holes in it. "Serious bodily injury" is substantially equivalent to "great bodily harm." (Lawlor v. People, 74 Ill. 228; Rogers v. State, 60 Ark. 76, 46 Am. St. Rep. 154, 29 S.W. 894, 31 L. R. A. 465.) This instruction also takes away from the defendant the right of acting upon appearances. (State v. Gray, 43 Or. 446, 74 P. 929; State v. Rolla, 21 Mont. 582, 55 P. 523; State v. Sloan, 22 Mont. 293, 56 P. 364.) It is held that when conflicting propositions of law are given upon a material point, one correct and the other incorrect, the judgment will be reversed. (Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075; Claire v. People, 9 Colo. 122, 10 P. 799.)

Attorney General John A. Bagley, E. M. Griffith and Clay McNamee, for Respondent.

SULLIVAN, C. J. Stockslager, J., concurs. Ailshie, J., did not sit at the hearing and took no part in the decision.

OPINION

SULLIVAN, C. J.

The defendant was convicted of the crime of manslaughter. The information on which he was tried and convicted charged him with murder of one Thomas V. McLeod on the eleventh day of January, 1902, by shooting said deceased. The jury found the defendant guilty of manslaughter, and the judgment of the court was that the defendant serve a term of four years and ten months in the state penitentiary at hard labor. Sixty-four errors are assigned and a new trial demanded. Counsel for appellant discuss first in their brief assignments of error numbers 2, 15, 26, 33 [76 P. 1014] and 63. These all refer to the action of the court in ordering the names of certain witnesses to be indorsed upon the information. The record shows that the names of several witnesses were, on the motion of the prosecuting attorney indorsed on the information, and that no reason was shown to the court why said names had not, and could not have, been indorsed thereon at the time said information was filed. Section 2 of an act entitled "An act to provide for prosecuting offenses on information, and to dispense with the calling of grand juries, except by order of the district...

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