State v. Fleming

• Citation: 106 P. 305,17 Idaho 471
• Parties: STATE, Respondent, v. JOHN FLEMING, Appellant
• Decision Date: 11 January 1910
• Court: United States State Supreme Court of Idaho

106 P. 305

17 Idaho 471

STATE, Respondent, v. JOHN FLEMING, Appellant

Supreme Court of Idaho

January 11, 1910

POSTPONEMENT OF TRIAL-AFFIDAVIT-ADMISSION-INSTRUCTIONS-RELEVANCY-SELF-DEFENSE-WEIGHT OF EVIDENCE-INSANITY-MOTION FOR A NEW TRIAL-NEWLY DISCOVERED EVIDENCE-COUNTER-AFFIDAVITS-MISCONDUCT AT TRIAL.

1. A motion for a continuance is addressed to the sound discretion of the trial court, and his ruling thereon will not be disturbed on appeal unless it appears there has been an abuse of such discretion.

2. Where an application for the postponement of the trial is based upon the absence of witnesses, and the state offers to admit that if present the witnesses would testify as set forth in the affidavit upon which the application for the postponement is based, it is not error for the trial court to overrule the application for postponement.

3. A defendant charged with a criminal offense, under the laws of this state, is required to exercise due diligence in preparing his case for trial, and where it appears that he has not been deprived of any legal right in the preparation or trial and full opportunity has been given to prepare his defense, it is not an abuse of discretion to deny the application for postponement.

4. No distinction is drawn by the statute of this state as to the showing required on an application for a continuance in a criminal case, whether the application be made at the first or a later term after the indictment is returned; but such fact may be taken into consideration by the trial court in determining the question of diligence.

5. Held, that the trial court did not err in refusing to give the following instruction: "The jury are instructed that if, from the evidence, they have any reasonable doubt as to whether the defendant, John Fleming, at the time of firing of the fatal shot, was under reasonable and honest fear that said deceased intended and was about to inflict upon him great bodily harm, and that he fired the shot under that belief and in self-defense, then the jury must acquit the defendant."

6. The following language, "The court instructs the jury that the policy of our law deems it better that many guilty persons should escape than that one innocent person should be convicted and punished," in an instruction is argumentative and should not be given, and where such matter is coupled with other matter proper to be given to the jury and the latter is covered by other instructions, it is not error for the trial court to refuse to give such instruction to the jury.

7. It is not error for the trial court to strike out and refuse to give the italicized portion of the following instruction "The jury are instructed that evidence of confession or admission should be carefully scrutinized by the jury and received with great caution. It is the most dangerous evidence that can be admitted in a court of justice and the most liable to abuse; and though a witness is perfectly honest, it is impossible for him in most cases to give the exact words in which an admission was made and sometimes by the transposition of the words a party may give a meaning entirely different from that which was intended to be conveyed by the witness."

8. Held, that the trial court did not err in refusing to give the following instruction: "The jury are instructed that the statements of the defendant out of court are a very doubtful species of evidence and should be acted upon with great caution; and unless supported by other evidence tending to show that the prisoner is guilty of the crime charged, are sufficient to warrant a conviction."

9. It is not error for the trial court to refuse to give an instruction where the same subject matter is fully and clearly covered by other instructions given by the court.

10. Held, that the trial court did not err in giving the following instruction: "Should you first find that the defendant fired the fatal shot, then the court instructs you gentlemen, that the true test and standard of accountability is: Had the defendant sufficient mental capacity to appreciate the character and quality of his acts? Did he know and understand that it was in violation of the rights of another and in itself wrong? Did he know that it was prohibited by the laws of the state and that its commission would entail punishment and penalty upon himself? If he had the capacity thus to appreciate the character and comprehend the possible or probable consequences of his acts, he is responsible to the law for the acts thus committed and is to be adjudged accordingly. A person in the possession of a sound mind who commits a criminal act under the impulse of passion or revenge, which may temporarily dethrone reason, or for the time being control his will, cannot be shielded from the consequences of his act."

11. Evidence in this case examined and held to support the verdict of murder in the first degree.

12. After conviction upon the charge of murder, where affidavits are filed on motion for a new trial showing newly discovered evidence in conflict with that given on the trial, and directed to impeach and contradict witnesses who testified at the trial, and it does not appear that such evidence if received would or should change the result of the trial, the discretion of the court in denying the motion will not be disturbed.

13. Upon a motion for a new trial in a criminal case, it is proper for the court to receive and consider counter-affidavits in relation to any pertinent matter except the issue of fact to which the newly discovered evidence is addressed, in order to enable the court to properly and intelligently exercise its discretion in passing upon the motion, and to determine whether a new trial would result with reasonable probability in a different judgment.

14. Where a showing is made on a motion for a new trial to the effect that the wife of the defendant, who was in the courtroom and at his side, while the trial was in progress was placed under arrest; and a counter-showing is made that such arrest created no commotion or disturbance or was not done in such a manner as to call the jury's attention to such arrest, and it further appears that defendant's counsel or the jury did not know that the defendant's wife was placed under arrest, such act on the part of the officer is not such misconduct as will entitle the defendant to a new trial.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Edward A. Walters, Judge.

Trial and conviction of murder in the first degree. Defendant appeals. Affirmed.

Affirmed.

Hawley, Puckett & Hawley, for Appellant.

The defendant did not have a reasonable opportunity between the date of the offense and that of the trial to procure witnesses and prepare his defense, and if such is the case, a continuance should be granted. (9 Cyc. 188, and authorities cited in note 97.)

An instruction to the effect that evidence of confession or admission is the most dangerous evidence that can be admitted in a court of justice and most liable to abuse is proper. (Garrison v. Aiken, 2 Barb. (N. Y.) 25; 1 Ency. of Ev. 610, 611.) Evidence of admissions should be received with caution. (Bullard v. Bullard, 112 Iowa 423, 84 N.W. 513; Niles v. Rhodes, 7 Mich. 374; Ryder v. Emrich, 104 Ill. 470; Sadler v. Sadler, 16 Ark. 628.)

The instruction, "The jury are instructed that it would be highly improper and wrong for them to regard any statements of the prosecuting attorney that are not based on the evidence in the case, if any such has been made, as entitled to any weight whatever in this case," is proper, and not covered by the court's instruction No. 32. (Sackett's Instructions, 2d ed., 641, 724, No. 28; also at page 641, No. 31; Kennedy v. People, 40 Ill. 488; Spies v. People, 122 Ill. 1, 3 Am. St. 320, 12 N.E. 865, 17 N.E. 898.)

The court should never refuse instructions asked by defendant in a criminal case, to which there is no valid objection, even if the jury has already been instructed on the point; and a prosecuting attorney should never object to such instructions. (People v. Lachanais, 32 Cal. 433.)

Testimony by persons present at the scene of the homicide, tending to show that the killing was self-defense is a good ground for new trial, even in the absence of diligence in procuring it. (Wharton on Homicide, 355, 356; Cline v. State (Tex. Cr. App.), 71 S.W. 23.)

D. C. McDougall, Attorney General, J. H. Peterson, Assistant, and Frank T. Disney, for Respondent.

Only such instructions should be given as are pertinent to the evidence. (People v. Ah Too, 2 Idaho 44, 3 P. 10; Territory v. Evans, 2 Idaho 425, 17 P. 139.)

The defendant did not act in self-defense in killing Langford, but was acting with a spirit of revenge and with a desire to inflict vengeance for some fancied wrong, and where such a motive is behind a killing, self-defense may not be availed of as a defense. (Wharton's Criminal Law, 8th ed., sec. 485; State v. Smith, 12 Mont. 378, 30 P. 679.)

The record in this case fails to show that there was even a threat against the life of the defendant, and the cases all hold that there must be an overt act indicative of imminent danger at the time the act is committed. (21 Cyc. 791, and cases cited; People v. Bernard, 2 Idaho 193, 10 P. 30; People v. Pierson, 2 Idaho 76, 3 P. 688; State v. Schieler, 4 Idaho 120, 37 P. 272.)

Error cannot be claimed in refusing to give an instruction which has been already substantially covered in the language of the court. (United States v. Camp, 2 Idaho 231, 10 P 226; State v. Roland, 11 Idaho 490, 83 P. 337; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Cotterel, 12 Idaho 572, 86 P. 527; State v. Rathbone, 8...