State v. Farnsworth, 5815

• Decision Date: 16 April 1932
• Docket Number: 5815
• Citation: 51 Idaho 768,10 P.2d 295
• Parties: STATE, Respondent, v. ARTHUR FARNSWORTH and SARAH FARNSWORTH, Appellants
• Court: Idaho Supreme Court

10 P.2d 295

51 Idaho 768

STATE, Respondent, v. ARTHUR FARNSWORTH and SARAH FARNSWORTH, Appellants

No. 5815

Supreme Court of Idaho

April 16, 1932

CRIMINAL LAW-POISONING OF ANIMALS-INFORMATION-SUFFICIENCY OF - DESIGNATION OF OFFENSE - INSTRUCTIONS - CREDIBILITY OF WITNESSES - PRESUMPTION OF INNOCENCE-MOTIVE-ADMISSIONS - VERDICT, IMPEACHMENT OF-RECOMMENDATION, LENIENCY-SENTENCE.

1. In prosecution for poisoning animals, each of several acts which might constitute offense may properly be charged conjunctively in single count (C. S., sec. 8541).

2. In prosecution for poisoning animals, information alleging that defendants did maliciously "administer and expose" poison held not duplicitous (C. S., sec. 8541).

3. In prosecution for poisoning animals, indictment substantially in words of statute held to give court jurisdiction notwithstanding incorrect designation of offense as misdemeanor instead of felony (C. S., secs. 8084, 8541).

4. In prosecution for poisoning animals, incorrect designation of offense as misdemeanor instead of felony held not prejudicial, where acts constituting offense were sufficiently stated (C. S., secs. 8084, 8541).

5. In prosecution for poisoning animals, court's instruction regarding credibility of witnesses and duty to reconcile seeming conflict in testimony held not objectionable.

6. Instruction regarding jury's right to disregard testimony of witness wilfully and knowingly testifying falsely held proper.

7. In prosecution for poisoning animals, instruction regarding presumption of innocence held proper.

8. Instruction held not prejudicial as limiting presumption of innocence to defendants who were innocent and excluding application to defendants who were guilty.

9. Requested instruction having no relation to facts of case and merely stating abstract principle of law, held refused without error.

10. To constitute malice, it is not necessary that defendants charged with poisoning animals know owner of property.

11. Refusing requested instruction sufficiently covered by instructions given held not error.

12. In prosecution for poisoning animals, state need not prove motive or what motive was.

13. Admissions made by one defendant held admissible in joint trial to prove guilt of such defendant, notwithstanding they were made without presence of other defendant.

14. That portion of trial was had in defendant's absence held not to require new trial, where only material matter that occurred during defendant's absence was motion to strike made by defendant's counsel, who knew defendant was not in court, there being no showing of prejudice.

15. Examination by doctors, in which defendants' counsel participated, outside jury's presence, to ascertain whether defendant was able to return to trial, held not to require new trial, there being no showing of prejudice.

16. On motion for new trial, jury may not impeach its verdict by affidavits of members, with exception that verdict was arrived at by chance.

17. Jury's recommendation for leniency, though entitled to great consideration, is not binding on court.

18. In prosecution for poisoning animals, sentence held matter within court's discretion (C. S., sec. 8541).

19. In absence of abuse of court's discretion in pronouncement of sentence in prosecution for poisoning animals, supreme court will not reverse judgment (C. S., sec. 8541).

20. In prosecution for poisoning animals, sentencing one defendant to penitentiary for felony and other defendant to county jail for misdemeanor held not abuse of discretion (C. S., sec 8541).

21. Evidence held sufficient to support conviction for poisoning animals (C. S., sec. 8541).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Appeal from a judgment on conviction for poisoning animals. Affirmed.

Judgment affirmed. Petition for rehearing denied.

B. H. Miller for Appellants.

The trial court should have sustained the demurrer to the information as contended in assignment No. 1, for the reason that the information charges two separate and distinct offenses. The prosecution of this action is governed by C. S., sec. 8541.

C. S., sec. 8829, provides: "Single offense to be charged. The indictment must charge but one offense."

The true test to determine whether or not the information is duplicitous is: Could an action be maintained and a conviction had and upheld, if a prosecution were sought under the allegation or charge that the defendants did administer a poison to foxes, the property of another, and, could an action be maintained and a conviction had and upheld, if a prosecution were sought under the allegation or charge that the defendants did expose a poison to foxes, the property of another, with the intent that the same should be taken and swallowed by said foxes? (Hodge v. State, (Okla. Cr.) 3 P.2d 252; State v. Crawford, 32 Idaho 165, 179 P. 511.)

Malice being the gist of the offense, it was incumbent upon the state to establish that fact to the satisfaction of the jury beyond a reasonable doubt. (State v. Churchill, 15 Idaho 645, 16 Ann. Cas. 947, 98 P. 853, 19 L. R. A., N. S., 835; State v. Enslow, 10 Iowa 115.)

By requested instruction No. 7, appellants sought to have the jury informed on the subject of motive and its application in the instant case. "Motive" is the reason, cause, incentive or inducement to do the act charged in the information. Without a motive there could be no commission of the alleged crime. Naturally, of course, in the great majority of criminal cases, motive may be implied and positive proof thereof is not required. Such, however, is not the case where motive is sought to be established by circumstantial evidence. (State v. Allen, 25 N.M. 682, 187 P. 559.)

We think it is elementary law that proof of the existence of a conspiracy, on the testimony or statements of a co-conspirator, cannot be made after the alleged commission of the crime involved in the alleged conspiracy.

In the case of People v. Moore, 45 Cal. 19, the syllabus says:

"It is not competent to use as evidence against one on trial for an alleged crime, the statements of an accomplice not given as testimony in the case, nor made in the presence of the defendant, nor during the pendency of the criminal enterprise and in furtherance of its objects." (People v. Dilwood, 94 Cal. 89, 29 P. 420.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

When a statute enumerates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count in the conjunctive. (State v. Brown, 36 Idaho 272, 211 P. 60; State v. McCarty, 47 Idaho 117, 272 P. 695; State v. Hagan, 47 Idaho 315, 274 P. 628; State v. Montgomery, 48 Idaho 760, 285 P. 467; People v. Gosset, 93 Cal. 641, 29 P. 246.)

Where the information contains a statement of the facts constituting the offense in ordinary and concise language, which apprises the defendant of what he must be prepared to meet, and specific enough to plead former jeopardy, in case another proceeding is taken against him for the same offense, it is not subject to demurrer. (State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Basinger, 46 Idaho 775, 271 P. 325.)

The jury are the exclusive judges of the credibility of the witnesses. (C. S., sec. 7935; State v. Bouchard, 27 Idaho 500, 149 P. 464.)

Defendant is entitled to the same consideration as other witnesses, and his credibility is tested by the same rules applicable to other witnesses. (State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Pettit, 33 Idaho 326, 193 P. 1015; Branson's Instructions to Juries, 1318, sec. 1540.)

Proof of motive is not indispensable to a conviction, and its presence is never conclusive. (16 C. J. 78, 970; Nichols' Applied Evidence, 3146; People v. Bauweraerts, 164 Cal. 696, 130 P. 717; People v. Kelley, 208 Cal. 387, 281 P. 609.)

Admissions and declarations are admissible against the declarant whether or not they are made under menace or undue influence and are admissible against the declarant who is being tried jointly with a co-defendant, when such evidence is restricted for that purpose. (People v. Ramirez, 113 Cal.App. 204, 298 P. 60; People v. Matthew, 68 Cal.App. 95, 228 P. 417; 8 Cal. Jur. 100; Mulligan v. People, 68 Colo. 17, 189 P. 5; 16 C. J. 146.)

GIVENS, J. Lee, C. J., and Budge, Varian and Leeper, JJ., concur.

OPINION

GIVENS, J.

Under C. S., sec. 8541, which provides: "Every person who wilfully administers any poison to an animal, the property of another, or maliciously exposes any poisonous substance, with the intent that the same shall be taken or swallowed by any such animal, is punishable by imprisonment in the state prison not exceeding three years or in the county jail not exceeding one year, and a fine not exceeding $ 500," an information charged appellants as follows:

"The said Arthur Farnsworth and Mrs. Sarah Farnsworth, on or about the 12th day of January, 1931, at the County of Bonneville and State of Idaho, and prior to the filing of this information, committed a Misdemeanor, to-wit:

"Did then and there wilfully, unlawfully, maliciously administer and expose a poison, to-wit Cynaide of Potassium, to three silver black foxes, then and there the property of another, to-wit the Snake River Fox Ranch, with the intent that the same should be taken or swallowed by the said foxes. . . . "

Ten assignments of error are presented, which will be considered in the order assigned.

First that the court erred in overruling the demurrer contesting the information as duplicitous. The information was substantially in the words of the statute, and each of several...