State v. Davis, 7511
| Decision Date | 14 May 1949 |
| Docket Number | 7511 |
| Citation | 69 Idaho 270,206 P.2d 271 |
| Parties | STATE v. DAVIS |
| Court | Idaho Supreme Court |
Appeal from District Court, Third District, Ada County; Charles F Koelsch, Judge.
Reversed and remanded.
Delana & Delana, of Boise, for appellant.
Where the State's evidence is circumstantial, it is reversible error for the court to refuse the Defendant's requested instruction on circumstantial evidence. 23 C.J.S., Criminal Law, § 1250, page 808; People v. Bender, 27 Cal.2d 164, 163 P.2d 8; People v. Koenig, 29 Cal.2d 87, 173 P.2d 1; Russell v. State, 108 Tex.Cr.R. 308 300 S.W. 74, Par. 3; Barber v. State, 127 Tex.Cr.R 532, 78 S.W.2d 183, Par. 2; Walker v. State, 109 Tex.Cr.R. 627, 6 S.W.2d 765, Par. 1; Garcia v. State, Tex.Cr.App., 207 S.W.2d 389, Par. 2; Barrow v. State, 134 Tex.Cr.App. 419, 115 S.W.2d 969, Par. 1; Hanna v. State, 130 Tex.Cr.App. 360, 94 S.W.2d 737, Par. 3.
Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., and James W. Blaine, Pros. Atty., of Boise, for Ada County, for respondent.
Instruction No. 7 was correct and sufficient. No definition or explanation of "circumstantial evidence" was requested. People v. Lang, 142 Cal. 482, 76 P. 232; U. S. v. Camp, 2 Idaho 231, 10 P. 226; State v. Farris, 48 Idaho 439, 444, 282 P. 489; State v. Nolan, 31 Idaho 71, 169 P. 295. Jones, Evidence, Second Ed., § 9.
Requested Instruction No. 1 was misleading in that it would have told the jury that the case against the defendant rested solely on circumstantial evidence, which was not the fact.
Appellant was charged with and tried and convicted of stealing a 1942 Chevrolet sedan owned by one J. A. Percy. On the trial he defended upon the ground he purchased the automobile from one Frank E. Carlson, and for the full value thereof, and without any knowledge or information the automobile had been stolen. On appeal he contends the evidence is not sufficient to prove him guilty. We have fully and carefully examined the record. While the evidence against the appellant is circumstantial, it is, nevertheless, most convincing, if believed. The jury were not bound to believe the testimony of any witness or witnesses. It was their duty to search for the truth, believing only such testimony as carried conviction of truth to their minds. State v. McPherson, 49 Idaho 687, 291 P. 313. In other words, the jury are the exclusive judges of the credibility of witnesses and weight of the evidence. State v. Vanek, 59 Idaho 514, 84 P.2d 567; State v. Gilbert, 65 Idaho 210, 215, 142 P.2d 584; State v. Farnsworth, 51 Idaho 768, 775, 10 P.2d 295; State v. McPherson, supra, 49 Idaho 687, 689, 690, 291 P. 313.
Nor is there any merit in appellant's contention the trial court erred in refusing to permit him to immediately examine state's witness Denney, for the purpose of showing Denney was not physically present at the time of a sale of a car to a Mr. Davis by the Owyhee Cab Company. While the court denied appellant immediate permission to examine Denney about that matter it advised appellant he could examine into the matter on cross-examination. And, furthermore, on cross-examination appellant developed the fact the witness was not present at the time of the sale.
During the course of the trial the state called E. H. Broadbent. He testified he was chief clerk of the Idaho Department of Law Enforcement; that in his capacity as chief clerk he had the custody of all titles of motor vehicles issued by the state; that certain photostatic copies of original records of his office were made under his supervision or direction. Over objections by appellant the court permitted Broadbent to explain what certain records of his office were and to clarify certain exhibits which were somewhat blurred. The overruling of these objections is assigned as error. 32 C.J.S., Evidence, § 645, p. 509, states the rule thus:
We come now to appellant's contention the trial court erred in refusing to give the jury the following requested instruction:
"You are instructed that before you can find a defendant guilty of the crime charged, based on circumstantial evidence, you must find beyond a reasonable doubt that the circumstances are consistent with the guilt of the defendant, and inconsistent with his innocence, and incapable of explanation or any other reasonable hypothesis than that of guilt."
While the trial court gave the usual instructions on reasonable doubt it gave no instruction on circumstantial evidence. Appellant, therefore, insists the court committed reversible error by refusing to give his requested instruction. He points out the above quoted requested instruction follows in substance the language of this court in State v. Marcoe, 33 Idaho 284, 286, 193 P. 80, where this court said:
"* * * the circumstances must be consistent with the guilt of the defendant and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt."
And appellant also points out his requested instruction is in almost the identical language used by this court in State v. McLennan, 40 Idaho 286, 231 P. 718, 723. We quote:
"In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt."
It is true the trial court gave the jury the following instruction:
But appellant directs our attention to People v. Rayol, 65 Cal.App.2d 462, 150 P.2d 812, 813, where the trial court gave the jury a much more complete instruction than that given by the trial court in the case at bar. We quote:
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