State v. Davis

• Decision Date: 15 June 1898
• Parties: STATE v. DAVIS
• Court: Idaho Supreme Court

53 P. 678

6 Idaho 159

STATE v. DAVIS

Supreme Court of Idaho

June 15, 1898

EVIDENCE-COMPETENT TO SHOW MOTIVE.-The defendant was a cattleman, the deceased a sheepman. The state was permitted, over the objections of the defendant, to prove that the accused was making war against sheepmen generally, and threatening the lives of all sheepmen who failed to keep off a certain range; the deceased, a sheepman, was killed on such range; and the circumstances pointed to the accused as the guilty party. Held, that the evidence objected to was competent, as it tended to show motive on the part of the defendant.

SAME-OTHER CRIME-THREATS AGAINST A CLASS.-When the accused was making war against a class of men (sheepherders) and threatening to keep them off a certain range by use of deadly weapons, and had made threats against sheepherders generally, and against the person of the deceased, who was a sheepherder, it was competent for the state to prove that two days before the homicide the defendant had attacked, with such weapons, the camp of other sheepherders, as such evidence tended to show the state of mind of the defendant toward the deceased, and to establish motive on his part to commit the crime.

SAME-COMPETENT TO SHOW ACCUSED FLED THE STATE.-It is competent, on a murder trial, to show that immediately after the commission of the crime the defendant fled the state and was afterward arrested in another state, where he was going under an assumed name.

ALIBI-WHAT MUST BE SHOWN.-The gist of the defense of alibi consists in showing that at the time of the commission of the alleged crime the defendant was at a place different from that where the crime was committed.

CONFESSION BY AN ACCUSED.-A confession, or declaration tending to show guilt made by an accused while under arrest, of his own volition, and without any threat or promise or inducement having been made or held out to him by such officer or other person present, is competent evidence on the trial of a criminal case.

NEW TRIAL-WHEN SHOULD NOT BE GRANTED.-A new trial should not be granted on the ground of newly discovered evidence where such evidence is merely cumulative, or where it was within the power of the defendant, by the use of reasonable diligence to have produced such evidence on the trial.

SAME-GROUND FOR NEW TRIAL, SECTION 7952, REVISED STATUTES.-If it be a ground for new trial, under section 7952 of the Revised Statutes, that a juror, prior to the trial expressed an opinion that the defendant is guilty, which is doubted, one or two ex parte affidavits are not sufficient to overcome the positive statement of such juror, made on his voir dire examination, that he has no opinion, and has never formed or expressed an opinion, as to the guilt or innocence of the accused, and such juror is shown to have a good reputation for truth and veracity among his neighbors and acquaintances.

SAME-GROUNDS STATUTORY.-The grounds for a new trial are statutory and cannot be extended by the courts by rule.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Affirmed.

Hawley & Puckett and K. I. Perky, for Appellant.

In cases of circumstantial evidence the rule is, that not only must the proof be consistent with the prisoner's guilt but must be consistent with every other rational conclusion. (People v. Strong, 30 Cal. 151; People v. Schuler, 28 Cal. 490; 1 Greenleaf on Evidence, 12th ed., sec. 34; 1 Starkie on Evidence, 181, 182.) Evidence of a prior crime can have no legitimate place in the investigation of the commission of a subsequent crime by the same person. (People v. Sharp, 107 N.Y. 427; 1 Am. St. Rep. 851, 14 N.E. 319) In an indictment for murder committed during a riot, in which the prisoner was engaged, it is incompetent to prove other riotous acts by him several hours earlier at a different place, unless it is first shown that those acts were all part of one transaction. (Commonwealth v. Campbell, 7 Allen, 541, 83 Am. Dec. 705; People v. Lane, 100 Cal. 379, 34 P. 856; Shaffner v. Commonwealth, 72 Pa. St. 60, 13 Am. Rep. 649; Chipman v. People, 24 Colo. 520, 52 P. 677; Farris v. People, 129 Ill. 129, 16 Am. St. Rep. 283, 21 N.E. 821; State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292; Hall v. United States, 150 U.S. 76, 14 S.Ct. 22; State v. Reavis, 71 Mo. 421; Brook v. State, 26 Ala. 106.) The general rule, as we understand it, is, that on an indictment for murder, proof of previous threats made by the defendant against the deceased, is competent as showing malice, and if made long enough before the homicide, as evidence of premeditation and deliberation. (9 Am. & Eng. Ency. of Law, 686, note 1.) But, however, if in making a threat it is directed toward a certain individual or individuals, specifying them, they are not admissible upon the trial of defendant for killing another person. (Carr v. State, 23 Neb. 749, 37 N.W. 630; Aberbathy v. Commonwealth, 101 Pa. St. 322; 9 Am. & Eng. Ency. of Law, 687; Clark v. State, 78 Ala. 474, 56 Am. Rep. 45; People v. Bezy, 67 Cal. 223, 7 P. 643.) We have alleged as an error the admission of the testimony of E. R. Dayley in regard to conversations with defendant while on the road to Albion from Arizona; and while defendant was under arrest and partially in the custody of the witness. This conversation was clearly improper under the general rules of law and the rulings of our supreme court. (State v. Crump, 5 Idaho 166, 47 P. 814; State v. Mason, 4 Idaho 543, 43 P. 63.) Where a party has examined a juror as to his qualification, and the juror does not answer truly, it is manifest that the party is deprived of his right of challenge for cause, and deceived into foregoing his right of peremptory challenge. Therefore, when such a state of facts is proven, a new trial will be granted. (Rusich v. State, 19 Ohio 798; Rice v. State, 10 Ind. 300; Wiggin v. Plummer, 31 N.H. 272; State v. Burnside, 37 Mo. 347; United States v. Upman, 2 Mont. 170; Territory v. Kennedy, 3 Mont. 520.) The misconduct of a juror is more closely scrutinized, and more nearly affects the verdict in a criminal than in a civil case. (Morrow v. Commissioners, 21 Kan. 484; Queen etc. v. Hepburn, 7 Cranch, 297 (decision by Chief Justice Marshall); Monroe v. Georgia, 5 Ga. 85.)

Attorney General R. E. McFarland, W. E. Borah and O. W. Powers, for the State.

The fact that a juror after trial is found to have formed or expressed an opinion before going on the jury is not ground for a new trial under our statute. (Idaho Rev. Stats., sec 7952; People v. Mortimer, 46 Cal. 114-121; People v. Samsels, 66 Cal. 99, 4 P. 1061; State v. Marks, 15 Nev. 33; State v. Gyle, 8 Wash. 12, 35 P. 417; Spies v. People (The Anarchist Case), 122 Ill. 1, 3 Am. St. Rep. 320, 12 N.E. 867, 992, 993, 17 N.E. 898; State v. Peterson, 38 Kan. 204, 16 P. 264; Hughes v. People, 116 Ill. 330, 6 N.E. 55; State v. Brookes, 92 Mo. 542, 5 S.W. 257; Territory v. Burgess, 8 Mont. 57, 19 P. 558.) It is an established rule that newly discovered evidence on motion for a new trial is looked upon with distrust and disfavor by the courts. (Baker v. Joseph, 16 Cal. 180; People v. Sutton, 73 Cal. 243, 15 P. 86; People v. Howard, 74 Cal. 547, 16 P. 394; People v. Freeman, 92 Cal. 359, 28 P. 261-264; Harralson v. Barrett, 99 Cal. 607, 34 P. 342; O'Brien v. Brady, 23 Cal. 243; Jones v. Singleton, 45 Cal. 94; Hoblar v. Cole, 49 Cal. 250; Arnold v. Skeggs, 36 Cal. 54.) Newly discovered evidence which is merely cumulative or designed to contradict witnesses is not of a character to warrant a new trial. (People v. Anthony, 56 Cal. 397; People v. Sutton, 73 Cal. 243, 15 P. 86; State v. Hardy, 4 Idaho 478, 42 P. 507; People v. Fong Ah Sing, 70 Cal. 8, 11 P. 324; People v. Cesena, 90 Cal. 381; 27 P. 300; People v. Biles, 2 Idaho 114, 6 P. 120; People v. Peacock, 5 Utah 237, 14 P. 332; People v. Goldenson, 76 Cal. 328, 19 P. 161.) A new trial will not be granted upon evidence that is in conflict with evidence given at the trial. (People v. Freeman, 92 Cal. 359, 28 P. 261; People v. O'Neal, 67 Cal. 378, 7 P. 790; People v. Mazuley, 45 Cal. 148.) Confessions under circumstances similar to those at bar have been admitted so often that it would be difficult to collate all the authorities upon the proposition. Our understanding is that the rule is well established. (People v. Tie, 32 Cal. 60; People v. Smalling, 94 Cal. 112, 29 P. 421; People v. Goldenson, 76 Cal. 328, 19 P. 161; People v. Long, 43 Cal. 444; People v. Devine, 46 Cal. 46.) Declarations and threats are admissible, not because they give rise to a presumption of law as to guilt, which they do not, but because from then, in connection with other circumstances, guilt may be logically inferred. (Wharton on Criminal Evidence, sec. 756; State v. Hardy, 4 Idaho 478, 42 P. 507; Hopkins v. Commonwealth, 50 Pa. St. 9, 88 Am. Dec. 518; Dixon v. State, 13 Fla. 636; Spies v. People, 6 Am. Cr. Rep. 570.) It is true, as a general rule, that on a prosecution for one crime, it is not proper to prejudice the jury against the prisoner by showing him to have been guilty of another, but where the evidence is relevant and material on the question of the guilt of the prisoner of the crime for which he is upon trial, it cannot be excluded merely because it also proves him guilty of another crime. (Hope v. People, 83 N.Y. 418, 38 Am. Rep. 460; Kernau v. State, 65 Md. 253, 14 A. 124; Wharton on Criminal Evidence, secs. 31, 32; People v. Weed, 56 N.Y. 628; People v. Doyle, 21 Mich. 227; Roscoe on Criminal Evidence, sec. 86; State v. Cowell, 12 Nev. 344; Swan v. Commonwealth, 4 Am. Cr. Rep. 189; People v. Cummings, 66 Cal. 668, 4 P. 1144, 6 P. 700, 846; People v. Walters, 98 Cal. 138, 32 P. 864.) It is proper in a criminal case to...