State v. Foell

• Decision Date: 10 August 1923
• Citation: 37 Idaho 722,217 P. 608
• Parties: STATE, Respondent, v. WILLIAM FOELL, Appellant
• Court: Idaho Supreme Court

217 P. 608

37 Idaho 722

STATE, Respondent, v. WILLIAM FOELL, Appellant

Supreme Court of Idaho

August 10, 1923

CRIMINAL LAW - INTOXICATING LIQUOR - MOTION TO QUASH AND SET ASIDE INFORMATION-ERROR-INSTRUCTIONS-EXHIBITS-CONDUCT OF TRIAL-CONDUCT OF JURY.

1. Upon a motion to quash and set aside an information, the district court is not authorized to review the decision of the committing magistrate as to the question of the sufficiency or competency of the evidence taken in a preliminary examination.

2. Reversible error cannot be predicated upon a refusal of the trial court to give an advisory instruction to acquit.

3. It is not error to permit officers to bring into the courtroom during the trial of accused for having intoxicating liquor in his possession, all vessels containing liquids believed to be intoxicating, secured by a search of accused's premises. But no article should be brought into the courtroom, under such circumstances, which cannot be expected to be admitted over objection.

4. The law permits the jury to take the exhibits in the cause to the jury-room and refer to them in the consideration of their verdict.

5. The purpose of sending exhibits to the jury-room is to enable the jury to examine them and to make such simple tests of the exhibits as may be proper.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Defendant was convicted of having intoxicating liquor in his possession. Affirmed.

Affirmed.

Miller & Ricks, for Appellant.

Inasmuch as instructions given on the court's own motion now constitute a part of the record, the same rule of reasoning should apply as is applied to instructions given at the state's request or refused on defendant's request and any other reasoning would be unjust in principle and unsound.

In the instant case the instructions were before the court for review, and urged as prejudicial, but the motion for new trial was denied and an exception to the ruling of the court taken. (C. S., sec. 9040; State v. Peck, 14 Idaho 712, 95 P. 515; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

A. H Conner, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

Reversible error cannot be predicated upon a refusal to give an instruction for a directed verdict. (State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902.)

The jury may take with them into the jury-room an exhibit offered in evidence. (C. S., sec. 8978.)

It is within the discretion of the trial court to allow the jury to take exhibits offered in evidence with them during deliberation. (State v. Grigg, 25 Idaho 405, 137 P. 371, 138 P. 506; State v. Burcham, 109 Wash. 625, 187 P. 352.)

It is not error for the jury to decide by sampling or experimenting with liquor offered and admitted in evidence to determine whether it is whiskey. (State v. Simmons, 183 N.C. 684, 110 S.E. 591; State v. Burcham, supra.)

An instruction given by the court on its own motion must be excepted to, and in order to be reviewed must be excepted to and preserved by bill of exceptions, or excepted to and incorporated in the reporter's transcript of the proceedings at the trial. (State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Ray, 32 Idaho 363, 182 P. 857.)

WM. E. LEE, J. McCarthy, J., concurs, Dunn and William A. Lee, JJ., concur in the result.

OPINION

WM. E. LEE, J.

--Appellant was tried and convicted upon an information charging him with having intoxicating liquor in his possession. This is an appeal from the judgment of conviction and from the order overruling a motion for a new trial.

From the record in this case, it appears that on the evening of August 24, 1921, the residence of appellant was searched by the sheriff, and a quantity of different liquors was obtained. Appellant was thereafter given a preliminary examination and was held to answer in the district court. Upon arraignment, appellant made and filed his motion to set aside and quash the information. This motion was denied by the court. Appellant was thereafter tried and convicted of the offense charged in the information.

The appeal raises three questions: The action of the court in denying the motion to set aside and quash the information; the action of the court in denying the motion for an advisory verdict; and the action of the court in denying the motion for a new trial.

The first error assigned by appellant is predicated upon the denial by the court of the motion to set aside and quash the information. Appellant contends that the search-warrant, upon the authority of which the search of the premises was made, was illegal; that the evidence obtained in the search should not have been admitted in the preliminary examination; and that, in the absence of such evidence, there was not sufficient, if any, evidence upon which the magistrate could lawfully hold appellant to answer in the district court. C. S., sec. 8863, provides the grounds for setting aside an indictment. Paragraph 1 thereof is the only provision of said section upon which such a motion could possibly be predicated. C. S., sec. 8863, excluding all but paragraph 1, is as follows:

"The indictment must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:

"1. When it is not found, indorsed and presented as prescribed in this code. . . ."

C. S., sec. 8812, makes the provisions concerning an indictment applicable to an information. Section 995 of the Penal Code of California contains a provision identical with paragraph 1, supra, of C. S., sec. 8863, and the supreme court of California has decided that a motion to set aside and quash an information will not lie to determine whether or not a grand jury has received incompetent evidence, and neither will it lie to determine the sufficiency of the evidence taken in a preliminary examination. (People v. Beach et al., 122 Cal. 37, 54 P. 369; People v. Collins, 60 Cal.App. 263, 212 P. 701; People v. Sacramento Butchers' Protective Assn. et al., 12 Cal.App. 471, 107 P. 712; People v. Creeks, 170 Cal. 368, 149 P. 821; Ex parte Williams, 52 Cal.App. 566, 199 P. 347; People v. Hatch, 13 Cal.App. 521, 109 P. 1097.) Admitting, for the purpose of determining the question presented upon the motion to set aside and quash the information, that appellant's contentions are sustained by the record, we are of the opinion that the trial court did not err in denying the motion to set aside and quash the information. On such a motion, the district court is not authorized by C. S., sec. 8863, to review the decision of the committing magistrate as to the question of the sufficiency or competency of the evidence taken in the preliminary examination upon which the accused is held to answer in the district court.

The second point made by appellant is that the court erred in denying his motion for an advisory verdict, the contention of appellant being that, the evidence admitted having been obtained as the result of an illegal search, the court should have advised the jury to acquit the appellant. The point is not well taken. In refusing to give an instruction for an advisory verdict, the court does not commit reversible error. (State v. Sullivan et al., 34 Idaho 68, 199 P. 647, 17 A. L. R. 902.)

Under the third assignment of error, appellant contends that he was prejudiced by the action of the prosecuting attorney and the sheriff in causing to be brought into the courtroom, during the trial of the cause, certain barrels, jugs and containers seized by the sheriff at the time of the search of appellant's premises. Certain of the articles were not admitted in evidence, and appellant claims that he was not able on this account to testify as to the character of such articles. The record does not show that appellant made any effort to explain the contents of the containers that were not admitted in evidence, and, had he not made his objections to the admission of the different articles in evidence, he could, without doubt, have shown what they were. Neither the court nor counsel can be certain, in advance what may be admitted in evidence. However, officers should bring into a courtroom, during the trial of a criminal case, only such things connected with the cause as they believe will be admitted in evidence. This...