State v. Cypher
Citation | 92 Idaho 159,438 P.2d 904 |
Decision Date | 20 March 1968 |
Docket Number | No. 9749,9749 |
Parties | STATE of Idaho, Plaintiff-Respondent, v. David James CYPHER, Robert William Mueller, Defendants-Appellants. |
Court | United States State Supreme Court of Idaho |
James Annest, Burley, Cauley, Birsic & Clarke, Pittsburgh, Pa., for appellants.
Allan G. Shepard, Atty. Gen., and Daniel A. Slavin, Asst. Atty. Gen., Boise, for respondent.
Appellants (defendants) each were charged by separate informations and were adjudged guilty of the crime of robbery. They appeal on several grounds, principally contending error committed by the trial court in refusing to dismiss the cases upon their plea of having been once in jeopardy, or in the alternative, in refusing to grant a change in venue, and a new trial.
The alleged crime occurred the evening of August 14, 1964, at Parish Motel in Burley, Idaho. During that evening, two men entered the motel premises and, in attempting to rob the motel, shot and wounded Mrs. Norma Newcombe, who was attending the motel in the absence of its owners. The two men took what money was in the cash drawer, approximately $26.00, and disappeared. Mrs. Newcombe's 13-year-old daughter, Ruth Marie Newcombe, witnessed the commission of the crime. Gail Shattuck, who was in another part of the building, arrived shortly thereafter.
Floyd Higens, deputy police sergeant for the city of Burley and Cassia County deputy sheriff Woodall arrived at the motel soon after the crime, and obtained descriptions of the men from Mrs. Newcombe. Higens ascertained that men fitting the descriptions had been seen by several citizens at various places in Burley on the day of the crime. The morning following the robbery, a local farmer provided Higens with the names of two itinerant laborers who had worked for him during the previous week and who met the descriptions provided by Mrs. Newcombe. Upon receiving the names and possible whereabouts of these men, the Burley police called the Pennsylvania State Police Detective Bureau. Five days after the call, the police received a letter from Pennsylvania containing photographs of the two suspects. They were identified as the appellants by Ruth Marie Newcombe, by Mrs. Newcombe, and by Mrs. Teddy Allen, an employee at a restaurant in Burley.
Subsequent to identification of the suspects, warrants were issued for the arrest of appellants, and they were arrested by F.B.I. personnel in Pittsburg, Pennsylvania. Appellants executed waivers of extradition, and Officer Higens and Cassia County Sheriff Warrell traveled to Pittsburg and returned them to Idaho.
At the conclusion of a preliminary hearing held October 9, 1964, appellants were bound over to the district court, and each was duly charged with the crime of robbery.
The cases came on for trial on March 4, 1965, in Cassia County, before Hon. Lloyd J. Webb, a district judge of the then eleventh (now fifth) judicial district, and a jury. The State, as its first witness, called and questioned Mr. Higens. Defense counsel then cross-examined Mr. Higens, with the following exchange taking place:
'Q Did you ask him (Mueller) for a sample of his hair so that you could have it tested?
'A No. I didn't.
'A I don't recall that.
'Q Didn't he ask you to use every scientific test or every available test of science that was available to determine whether or not he was the man who did this job?
'A But he didn't ask me to take any scientific test to determine the hair at all.
'Q Didn't he ask you about a lie detector, Mr. Higens?
'Mr. Smith (prosecuting attorney): Your honor * * *
March 28, 1965, following the declaration of mistrial, Judge Webb, deeming himself disqualified in both causes, entered orders of disqualification.
June 28, 1965, the cases came on for trial in Cassia County before Hon. Thomas H. Felton, a district judge of the second judicial district to whom the cases had been duly assigned for trial, and before a jury.
Shortly before the second trial, appellants moved the trial court for dismissal of the cases upon the ground that appellants had been once in jeopardy and further moved the court for rearraignment. At the same time, appellants moved for a change of venue, claiming that the feeling in the community had become so intense against both defense counsel and appellants that an impartial trial could not be had in Cassia County or in the eleventh judicial district, which motions the trial court denied.
Forty-three prospective jurors, all of whom had some knowledge of the cases, were examined on voir dire at the second trial. Appellants used all ten of their peremptory challenges. Of the twelve trial jurors, and alternates selected, two were clients of the prosecutor's firm and one was an employee of the prosecutor's office. Nine jurors had read of the crime in local newspapers, three had heard or discussed the case with someone, and ten were acquaintances of one or more of the State's witnesses.
Appellants were adjudged guilty of the crime of robbery, and their motions for new trial were denied. They have appealed from the judgments of the trial court entered against them in favor of the State upon their pleas of being once in jeopardy; also from the judgments of conviction, and from the orders denying new trial and arrest of judgment.
Appellants, by their assignments, contend that the trial court erred in the first trial in declaring a mistrial in that there was no manifest overriding or extraordinary necessity requiring mistrial; that by such action jeopardy attached to prevent a second trial of appellants for the same charged offense; and that the declaration of mistrial under such circumstances, inasmuch as appellants did not consent thereto, was tantamount to the acquittal of appellants. They base their reasoning on the proposition that no person shall be twice put in jeopardy for the same offense. U. S. Constitution, Amendment 5; Idaho Constitution, Art. I, § 13.
Judge Webb declared a mistrial of the first trial after appellants' counsel had propounded a question on cross-examination to the State's witness Higens as to whether appellant Mueller had asked 'about a lie detector,' ostensibly as a scientific test to determine whether 'he was the man who did the job.' Bearing upon his actions Judge Webb's affidavit dated June 16, 1965, appears in the record, in which he stated:
'Affiant has been advised since the mistrial that this was not the intention of counsel for the defendant, but it appeared from the question directed by counsel for the defendants that counsel was directly contravening the order of the Court in this regard.'
The following excerpts are taken from the affidavit of appellants' counsel, dated June 20, 1965, replying to Judge Webb's affidavit:
motion to suppress certain evidence illegally obtained informed the court that the defendants had received the sodium pentothal examination * * *;
...
To continue reading
Request your trial-
State v. Hall
...nonexistence of a fact, and the circumstances do not need to be exactly the same as those surrounding the event." State v. Cypher , 92 Idaho 159, 171, 438 P.2d 904, 916 (1968). Finally, "[a]ccuracy ... is not the standard governing relevance of illustrative evidence; rather, the illustrativ......
-
State v. Lankford
...134 Idaho 294, 299, 1 P.3d 795, 800 (2000) (declining to extend implied bias to jailor/prisoner relationship); State v. Cypher , 92 Idaho 159, 167–68, 438 P.2d 904, 912–13 (1968) (declining to extend implied bias to attorney/client relationship between juror and attorney); State v. Major , ......
-
State v. Aragon
...verdict. State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979); State v. Griffith, 97 Idaho 52, 539 P.2d 604 (1975); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968). Our function on appeal is to examine the supporting evidence, not to place ourselves in the jury's position or reweigh the si......
-
State v. Beck
...should properly be regarded to be character evidence. See People v. Spigno, 156 Cal.App.2d 279, 319 P.2d 458 (1957); State v. Cypher, 92 Idaho 159, 438 P.2d 904, 916 (1968); State v. Sinnott, 24 N.J. 408, 132 A.2d 298, 304-311 (1957); Ward v. Turner, 12 Utah 2d 310, 366 P.2d 72, 74 (1961); ......