State v. Curtis

• Decision Date: 16 December 1916
• Citation: 161 P. 578,29 Idaho 724
• Parties: STATE, Respondent, v. H. D. CURTIS, Appellant
• Court: Idaho Supreme Court

161 P. 578

29 Idaho 724

STATE, Respondent, v. H. D. CURTIS, Appellant

Supreme Court of Idaho

December 16, 1916

CRIMINAL LAW-INFORMATION-PROOF-VARIANCE-ORDER OF PROOF-REASONABLENESS OF DEFENDANT'S EXPLANATION OF HIS ACTS A QUESTION OF FACT-INSTRUCTIONS.

1. Where an information against several defendants alleges in the last clause that one of them is a fugitive from justice and upon the trial of one of them the whole information is read to the jury, and the reading of the information as a whole is objected to by counsel for the defendant who is being tried, but without specifying any objection to the reading of the clause alleging that his codefendant is a fugitive from justice, the latter question cannot be raised for the first time on appeal.

2. Where in a criminal case against two defendants, one of whom is a fugitive from justice, the jury is justified in concluding from all the evidence that the defendant on trial was a confederate of the other, then the acts of the other committed in pursuance of the criminal design are binding on the defendant upon trial, and the order in which the proof was admitted is not material, the question being one of sufficiency of proof rather than order of proof.

3. Where an information in a criminal case charges the offense of presenting for payment certain false claims, to wit bonds, and refers to the bonds as false and fraudulent, but states in detail facts showing that the offense really consists in presenting for payment genuine bonds as the basis of a false claim, and such allegations are substantiated by the proof, the defendant is not prejudiced by any inaccuracy in designating the offense, and a judgment convicting him of the offense which the pleaded and proven facts show to have been committed will not be disturbed. (State v. Altwatter, 29 Idaho 107, 157 P. 256, cited and followed.)

4. Held, that the evidence in this case is sufficient to establish the fact of ownership of the bonds which are the subject of the prosecution, in Blaine county.

5. Where one accused of the commission of a crime attempts to explain the fact of his possession of the fruits of the crime, the question of the reasonableness of such explanation is a question of fact for the jury, and the appellate court is not justified in substituting its opinion for that of the jury, unless it finds that the defendant's explanation under all of the circumstances was so clearly satisfactory that it was unreasonable for the jury not to give it credence.

6. The trial court in a criminal case is warranted in refusing to give to the jury an instruction requested on behalf of defendant, where it appears that the matter embraced in such requested instruction is fairly and fully covered by some other instruction given by the court.

7. In a criminal case the instructions given by the court to the jury must be read and construed as a whole.

8. Held, that no error of law which would justify a reversal appears in the record of this case, and that the evidence is sufficient to support the verdict under the law applicable.

[As to when accused may testify as to motive or intent, see note in 21 Am.St. 318]

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. James R. Bothwell, Judge.

H. D Curtis was convicted of the crime of presenting for payment to the county treasurer of Blaine county certain false and fraudulent claims, and appeals. Affirmed.

Judgment of conviction affirmed. Petition for rehearing denied.

Sullivan, Sullivan & Baker, for Appellant.

The state must show prima facie case of conspiracy independent of declarations of co-conspirator. Therefore, the acts and declarations of co-conspirator cannot be considered for the purpose of proving the conspiracy itself. (8 Cyc. 683; State v. Walker, 124 Iowa 414, 100 N.W. 354; State v. Miller, 35 Kan. 328, 10 P. 865; State v. Crofford, 121 Iowa 395, 96 N.W. 889; Smith v. State, 46 Tex. Cr. 267, 108 Am. St. 991, 81 S.W. 936.)

An action based upon presenting an affidavit which is genuine in execution but false in statements is separate and distinct, and requires different allegations than an action which is based upon presenting a forged or counterfeited affidavit. ( United States v. Staats, 49 U.S. (8 How.) 12 L.Ed. 979.)

There is a great distinction between an affidavit false in its making and one false in its statements; the indictment should clearly set forth wherein the falsity is claimed to exist so that the defendant can properly prepare for trial. ( United States v. Corbin, 11 F. 238.)

The prosecution must prove both the false affidavit and the false claim as alleged. (United States v. Miskell, 15 F. 369.)

The case of United States v. Coggin, 3 F. 492, 9 Biss. 416, is also instructive as to the presentation of a false claim upon a genuine certificate and the presentation of a false claim upon a false or fraudulent certificate.

If the indictment charged a genuine writing, the prosecution could not then prove a false writing, and likewise if it charged a false writing, it could not prove a genuine writing as the basis of the false claim. (Dimmick v. United States, 116 F. 825, 54 C. C. A. 329.)

Where the defendant gives a reasonable explanation of his possession and he is corroborated by other witnesses, who are not impeached in any way, and said explanation of possession is not contradicted, evidence is insufficient to sustain the verdict and judgment of conviction. (State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Marquardsen, 7 Idaho 352, 62 P. 1034.)

"If the explanatory evidence creates a reasonable doubt in the minds of the jurors that he stole the property, he should be acquitted. It is not absolutely requisite that the accused should prove that his possession was honest. It is sufficient to acquit him if he gives a natural, reasonable and probable explanation of how he acquired possession which the prosecution does not show to be false." (Underhill on Crim. Ev., sec. 301.)

J. H. Peterson, Atty. Genl., D. A. Dunning and Herbert Wing, Assts. to the Atty. Genl., and P. K. Perkins, Pros. Atty., for Respondent.

The order of proof in the matter of establishing the conspiracy is within the discretion of the court. (6 Am. Dig., Dec. Ed., 569; People v. Bunkers, 2 Cal.App. 197, 84 P. 364, 370; State v. McIntosh, 109 Iowa 209, 80 N.W. 349.)

The felony with which the defendant was charged was the presentment of a false claim, and the receipt of money thereon is in no way essential to the accomplishment of the criminal act. (State v. Adams, 10 Idaho 591, 79 P. 398.)

"A genuine instrument containing a false statement of facts, used in support of a claim, the party knowing it to be false, and using it with intent to defraud, presents a case not distinguishable in principle, or in turpitude, or in its mischievous effects, from one in which every part of the instrument is fabricated." (United States v. Staats, 49 U.S. (8 How.) 12 L.Ed. 979.)

While it is true that the information in this case erroneously designates the offense, examination of the information indicates that the charge is correctly stated. (State v. Altwatter, 29 Idaho 107, 157 P. 256.)

A variance within the meaning of the term as applied to criminal law refers to a disagreement between the allegations in the information and the proof, with reference to some matter which is legally essential to the charge. (State v. Crean, 43 Mont. 47, Ann. Cas. 1912C, 424, 114 P. 603.)

MCCARTHY, District Judge. Budge and Morgan, JJ., concur.

OPINION

MCCARTHY, District Judge.

--This case is appealed from the district court of the fourth judicial district, for Lincoln county. The defendant was jointly charged with L. A. Duvall, W. F. Horne and H. R. Plughoff, with the crime of presenting for payment to the treasurer of Blaine county certain false and fraudulent claims. The information alleges that for some time prior to December 18, 1914, certain bonds and coupons were in the possession, for safekeeping, of the Hailey National Bank of Hailey, Idaho, and were taken from the custody of said bank by the defendants on or about December 18, 1914; that the bonds had never been issued by the said county of Blaine to any person or persons, and that the defendants had no interest or claim in said bonds; that the defendants, with intent to defraud the county of Blaine, on or about December 18, 1914, at the said county of Blaine, in the state of Idaho, presented these bonds for payment to the then treasurer of said Blaine county. In several places the information also refers to said bonds as false and fraudulent. The defendant Curtis demanded and was granted a change of venue to Lincoln county, and a separate trial. Upon his trial the jury found him guilty. Upon this verdict the court rendered judgment that the defendant is guilty of presenting false and fraudulent claims to the treasurer of Blaine county, Idaho, and that he be punished therefor by imprisonment in the state prison of the state of Idaho for not less than 18 months nor more than 5 years. From this judgment the defendant appeals to this court upon all questions of law and fact. The defendant specifies certain errors of law which he claims occurred upon the trial, and also contends that the evidence is insufficient to support the verdict of the jury.

The first point relied upon by appellant is that the trial court erred in permitting the clerk to read the last clause in the information, which stated that the codefendant, Horne, was a fugitive from justice. The statement in the information that Horne was a fugitive from justice was a proper allegation as against Horne himself. (Rev. Codes, sec 7662.) In all felony cases the information must be read to the jury upon the trial. (Rev. Codes, sec....