State v. Dickens

• Decision Date: 10 March 1948
• Docket Number: 7402
• Citation: 191 P.2d 364,68 Idaho 173
• Parties: STATE v. DICKENS et al
• Court: Idaho Supreme Court

191 P.2d 364

68 Idaho 173

STATE v. DICKENS et al

No. 7402

Supreme Court of Idaho

March 10, 1948

Appeal from District Court, Third District, Elmore County; Chas. F Koelsch, Judge.

Judgments reversed and action remanded with directions to grant a new trial.

Frank Langley, of Boise, for appellant Dickens. Delana & Delana, of Boise, for appellant Lloyd.

Where a juror has had conversations with witnesses knowing the facts and has formed an opinion that will require evidence to remove, he is disqualified. 50 C.J.S., Juries, § 240 page 994; Morehead v. State, 12 Okl.Cr. 62, 151 P. 1183, 1186, Ann.Cas.1918C, 416; State v. White, 326 Mo. 1000, 34 S.W.2d 79, 81.

Such juror is disqualified even though he says he can lay aside his opinion and act impartially. State v. Stentz, 30 Wash. 134, 70 P. 241, 244; People v. Wells, 100 Cal. 459, 34 P. 718.

It is reversible error for the court to instruct the jury that, "If the evidence in the case has made it reasonably certain that the defendants are guilty, then they have been proved guilty beyond a reasonable doubt," because reasonably certain proof is not proof beyond a reasonable doubt nor the equivalent thereof. Jones v. State, 84 Miss. 194, 36 So. 243; Powers v. State, 74 Miss. 77, 21 So. 657; People v. Church, 366 Ill. 149, 7 N.E.2d 894. Repetitious, argumentative, instructions are erroneous. Price v. State, 1 Okl.Cr. 358, 98 P. 447, 457.

The court committed reversible error in giving instruction No. 7 defining a reasonable doubt as a doubt for which a juror can give a good reason. Siberry v. State, 133 Ind. 677, 33 N.E. 681, at page 685; State v. Cohen, 108 Iowa 208, 78 N.W. 857, at page 858, 75 Am.St.Rep. 213.

Robert Allshie, former Atty. Gen., Robert E. Smylie, Atty. Gen., and Perce Hall, Pros. Atty., of Mountain Home, for respondent.

If a juror, regardless of an impression received by hearing or reading a discussion of the case, is in a fair and impartial state of mind to decide the case on the evidence heard or the law as stated, he is a qualified juror. State v. McLennan, 40 Idaho 286, 294, 231 P. 718.

A party is not entitled to any particular juror or jurors, and the denial of a challenge by the court is not erroneous unless the record shows that it created a necessity for accepting a disqualified juror. State v. Clark, 47 Idaho 750, 278 P. 776; Faris v. Burroughs Adding Mach. Co., 48 Idaho 310, 323, 282 P. 72; State v. Hoagland, 39 Idaho 405, 228 P. 314; State v. Murray, 43 Idaho 762, at page 765, 254 P. 518.

Instruction No. 7 on reasonable doubt is supported by the great weight of authority. It is a doubt founded "upon reason that you are conscious of". State v. Bubis, 39 Idaho 376, 382, 227 P. 384; State v. Gilbert, 8 Idaho 346, 350, 69 P. 62, 1 Ann.Cas. 280.

It is a doubt founded on "good reason"; "sound and substantial reason"; "doubt for which a reason may be assigned"; "it is a fair doubt, based on reason and common sense". State v. Serenson, 7 S.D. 277, 64 N.W. 130; Emery v. State, 101 Wis. 627, 78 N.W. 145, 153; Butler v. State, 102 Wis. 364, 78 N.W. 590, 591; State v. Dunn, 159 Wash. 608, 294 P. 217, 219; State v. Harras, 25 Wash. 416, 65 P. 774, 775; State v. Wolfley, 75 Kan. 406, 89 P. 1046, 1048, 11 L.R.A.,N.S., 87, 12 Ann.Cas. 412; State v. Butler, 148 S.C. 495, 146 S.E. 418, 419; Ellis v. State, 120 Ala. 333, 25 So. 1.

Miller, Justice. Holden and Hyatt, JJ., concur. Givens, C. J., and Sutphen, District Judge, concur except as to Assignment No. 3.

OPINION

Miller, Justice.

December 27, 1946, an information was filed in the District Court of the Third Judicial District of Idaho, in and for the County of Elmore, in which Guy Dickens and Dan Lloyd were accused of the crime of grand larceny, to-wit, "That the said Guy Dickens and Dan Lloyd, on or about the 1st day of August, 1946, within three years of the filing of this information and prior to the filing of this information, near Mountain Home, in the County of Elmore, State of Idaho, then and there being, did then and there wilfully, unlawfully, intentionally and feloniously steal, take and drive away one white-faced Hereford calf which said calf was then and there the property of Green Hall and George Rosevear."

April 21, 1947, the case came on for trial and on April 23rd the jury returned a verdict finding the defendants guilty of grand larceny as charged in the information. April 28, 1947, Dan Lloyd was sentenced to serve a term in the State's prison of not less than one nor more than 14 years and the defendant Guy Dickens was sentenced to serve a term in State's prison for the term of not less than eighteen months nor more than fourteen years. April 29, 1947, Dan Lloyd filed his notice of appeal from the judgment theretofore entered and on May 14, 1947, Guy Dickens filed his notice of appeal from the judgment theretofore entered. Both defendants obtained certificates of probable cause for their respective appeals and each gave a supersedeas bond in the sum of $ 1,000. The appellant, Dan Lloyd became a witness in his own defense, but appellant Guy Dickens did not avail himself of that privilege.

We refrain from commenting on the character of the evidence, or, as to the sufficiency thereof to support the judgments. On account of errors arising during the course of the trial the case must be remanded for a new trial and it is for that reason we deem it inadvisable to comment on the evidence or testimony adduced.

Assignment of error No. 1, asserts that the trial court erred in denying appellant, Dan Lloyd's challenge to the juror Blackstein. The examination disclosed that Blackstein had discussed the case with Green Hall, the complainant, and with his father and that he coincided with the views entertained by said Hall and his father. He had formerly worked for Mr. Hall, had heard statements of the facts from people that claimed to know the facts and had an opinion that would take evidence to remove.

"Q. At this time you are in favor of the things that Mr. Green Hall expressed to you? A. Yes sir.

"Q. And it would take evidence to remove that opinion, wouldn't it? A. Yes, sir.

"Q. In other words, you start out the case here with an opinion in your mind that the other side would have to introduce evidence to remove? A. That's right.

* * * *

"Q. And did your father express an opinion also? A. Well, he made something of it, yes.

"Q. And your father expressed an opinion when he was talking to you? A. Yes.

"Q. That opinion also coincided with Mr. Green Hall? A. Yes, I think so.

* * * *

"Q. And at this time you have an opinion based upon what Mr. Hall, Green Hall, told you and also upon the discussion with your father? A. Yes.

"Q. And you and your father join in the same opinion? A. Yes we talked about it.

"Q. And it would take evidence to remove that opinion? A. I believe it would.

"Mr. Delana: Challenge the juror for having an opinion affecting the merits of this case.

"The Court: How about the state?

"Mr. Hall: We resist the challenge, your Honor.

"The Court: The challenge is denied."

The state of mind of said juror undoubtedly was such as to amount to actual bias. The challenge interposed that the juror had an opinion affecting the merits of the case is not in statutory form but we think that fact would not warrant the trial court in decisively denying said challenge. It was manifestly apparent from the examination of said juror that he could not be such a fair and impartial juror as is contemplated. A defendant in a criminal action should not be put to the necessity of using a peremptory challenge when it clearly appears the prospective juror is disqualified for cause.

50 C.J.S., Juries, § 240, announces the rule as follows:

"Ordinarily it is held that a juror is incompetent, although he states that he can render an impartial verdict, if he has formed an opinion from conversing with witnesses in the case, particularly where he is a personal friend of the witness; and under some statutes an opinion so formed is a ground of exclusion."

In the case of People v. Weil, 40 Cal. 268, it is said:

"The ruling of the Court, in disallowing the defendant's challenge of the proposed juror after his answers to questions, as above recited, in my judgment, was clearly erroneous. * * *

"Thus it plainly appears, that the practical result of the disallowance by the court of defendant's challenge for cause of Riley Senter, was to contract the number of peremptory challenges to which he was entitled, and that such an error may have been seriously prejudicial to defendant."

Assignment of error No. 2, was an objection by appellant Lloyd to the introduction of State's Exhibit No. 2, which was a brand inspection certificate. The objection was on the ground that the same was not an original, nor a certified copy, nor a carbon copy, nor a copy at all and that no proper foundation was laid and that the same was hearsay. Under the circumstances it was error to admit the same in evidence as it was not a certified copy thereof.

Assignment of error No. 3, was an objection to the cross-examination of Dan Lloyd by the prosecuting attorney and in which appellant Lloyd was asked about statements made by appellant Dickens months previously in an action against Dickens regarding an iron that was used to brand a certain cow. In his direct examination appellant Lloyd was not asked, nor did he testify relative to said matter. The objection made was that it was not proper cross-examination, that it was leading, suggestive and that no proper foundation was laid and that it called for a conclusion. It must be remembered that appellant Dickens was not a witness in his own behalf in the instant case.

Irrespective of other objections interposed it was improper cross-examination. It...