State v. Fondren

• Decision Date: 29 September 1913
• Citation: 24 Idaho 663,135 P. 265
• Parties: STATE, Respondent, v. WILLIAM A. FONDREN, Appellant
• Court: Idaho Supreme Court

135 P. 265

24 Idaho 663

STATE, Respondent, v. WILLIAM A. FONDREN, Appellant

Supreme Court of Idaho

September 29, 1913

CRIMINAL LAW-CHALLENGE TO JUROR-PREJUDICE AND BIAS OF JUROR-INSTRUCTIONS - SELF-DEFENSE - ACTING ON APPEARANCES-ARGUMENT OF COUNSEL.

1. Where a defendant in a criminal case interposes a challenge to a juror for cause, and the challenge is overruled and he accepts the juryman without exercising all of his peremptory challenges, he cannot be heard on appeal to urge the action of the court in denying his challenge to the juryman as prejudicial error.

2. Where a defendant who has been convicted of a crime moves for a new trial and sets up as one of the grounds of his motion that one of the jurors was prejudiced and biased against him and that he had been unable to learn of the statements which had been made by the juror prior to accepting him on the jury and files affidavits showing the statements made by such juror, and the juror files an affidavit denying the same and numerous affidavits from his neighbors and acquaintances to the effect that he is a man of good standing and sustains a good reputation for truth, honesty and integrity in his neighborhood and among those who know him, the trial court does not err in denying a new trial on account of such alleged statements and prejudice.

3. Instructions given in this case to the effect that the defendant was not justified in killing the deceased simply because the latter was contesting his homestead entry correctly stated the law, and was not prejudicial to the defendant in the case, although defendant was not urging any such a defense.

4. Held, that the court properly refused to give the following instruction on account of the erroneous nature of italicized statement contained therein: "The court instructs the jury that, upon the trial of a criminal cause, if a reasonable doubt of any facts necessary to convict the accused is raised in the minds of the jury by the evidence itself or by the argument of counsel upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner and he should be acquitted."

5. Certain requested instructions examined and held to be substantially correct statements of the law, and that they were covered by the instructions given by the court on its own motion.

6. Held, that the following instruction substantially states the correct rule of law and should ordinarily be given in a murder case where the plea is self-defense: "The court instructs the jury as a matter of law that a person need not be in actual, imminent peril of his life or of great bodily harm before he may assault his assailant; it is sufficient if in good faith he has a good and reasonable belief from the facts as they appear to him at the time that he is in such imminent peril."

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Prosecution on the charge of murder. Conviction of murder in the second degree. Defendant appealed. Affirmed.

Affirmed.

McFarland & McFarland, for Appellant.

Instructions should be in harmony with the facts in the case or the theories of the defense or prosecution and should be germane and should be free of argument, intimation or insinuation. (1 Brickwood, Sackett's Instructions, 3d ed., 171-176; Whitman v. McComas, 11 Idaho 564, 83 P. 604; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Idaho Mer Co. v. Kalanquin, 8 Idaho 101, 66 P. 933.) Instructions 37, 38, 39 and 40 requested by appellant had not been covered by any other instruction given by the court, and clearly state the law. (People v. Fitzgerald, 138 Cal. 39 70 P. 1014; Allen v. State, 70 Ark. 337, 68 S.W. 28.)

Instruction No. 41 requested by appellant should have been given by the court, because it was not fully or otherwise covered by any previous instruction, and stated the law as recognized by every jurisdiction. (Carle v. People, 200 Ill. 494, 93 Am. St. 208, 66 N.E. 32.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistant, for Respondent.

"If it be a ground for a new trial under sec. 7952, Rev. Stats., 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." (State v. Davis, 6 Idaho 159, 53 P. 678; State v. Marren, 17 Idaho 766, 134 Am. St. 286, 107 P. 993.)

AILSHIE, C. J. Sullivan, J., concurs, STEWART, J., Concurring Specially.

OPINION

AILSHIE, C. J.

The defendant and appellant herein was convicted of murder in the second degree and sentenced to an indeterminate term of imprisonment of not less than ten nor more than twenty-five years. This appeal is taken from the judgment.

The first assignment of error is directed against the action of the court in overruling and denying appellant's challenge to the juror, John W. Fredericks, upon the grounds of both actual and implied bias. Based upon the record showing the examination of the juror, we think the court properly denied the challenge. There is another reason, however, in this case why the appellant's contention is not well taken, and that is that he failed to exercise all of his peremptory challenges and left this man on the jury. (State v. Gordon, 5 Idaho 297, 48 P. 1061; State v. McGraw, 6 Idaho 635, 59 P. 178.) After verdict and judgment the appellant moved for a new trial and set up the disqualification of the juror Fredericks, and alleged that he was biased and prejudiced against the appellant, and produced affidavits to the effect that he had made the statement prior to being accepted on the jury that the defendant "ought to be hung." These affidavits were denied by an affidavit of the juror, and in addition to that the state filed a number of affidavits from the juror's neighbors to the effect that he was a man of high standing and in good repute among his neighbors and acquaintances for truth, honesty and integrity. The showing made by appellant was not sufficient to either require or warrant the granting of a new trial. The cases of State v. Davis, 6 Idaho 159, 53 P. 678, and State v. Marren, 17 Idaho 766, 134 Am. St. 286, 107 P. 993, are decisive of this question.

The greater number of errors assigned by appellant are directed against the action of the court in its rulings in the rejection and admission of evidence. We do not find where the court has committed any such error as would justify a reversal of the judgment or that could with any show of reason be said to have prejudiced any substantial right of the defendant. Where the court cannot so hold, the judgment cannot be reversed. (Sec. 8070, Rev. Codes.)

The appellant complains of the action of the court in giving instruction No. 31. That instruction reads as follows:

"The court instructs the jury that the fact that the deceased filed a contest against the defendant concerning a homestead on government land is not any justification for the taking of the life of the deceased by the defendant, and evidence of the filing of said contest has been admitted in this case for the bearing it may have on the acts and conduct of the defendant and the deceased at the time of the alleged killing and is not to be considered by you as constituting any justification for the killing of the deceased by the defendant, if from the evidence you find that the defendant did kill the deceased."

The homicide occurred at the cabin occupied by the appellant which was located on a government homestead entry. The man killed was named Coplan, and Coplan was contesting appellant's homestead entry and had gone to the cabin on the evening of the homicide for the purpose of serving the contest papers on appellant, and had just delivered to him the copies of the papers only a few moments before the difficulty occurred in which Coplan was shot. Considerable evidence was...