State v. Fox

• Decision Date: 03 December 1932
• Docket Number: 5844
• Citation: 16 P.2d 663,52 Idaho 474
• Parties: STATE, Respondent, v. WILLIAM FOX and J. L. MCCARROLL, Appellants
• Court: Idaho Supreme Court

16 P.2d 663

52 Idaho 474

STATE, Respondent, v. WILLIAM FOX and J. L. MCCARROLL, Appellants

No. 5844

Supreme Court of Idaho

December 3, 1932

CRIMINAL LAW-HOMICIDE-TRIAL-SEPARATE TRIAL OF CO-DEFENDANTS-WITNESSES-SCOPE OF CROSS-EXAMINATION-EVIDENCE-PREVIOUS THREATS-OTHER OFFENSES-INSTRUCTIONS-NEW TRIAL.

1. Evidence held to sustain conviction for murder in first degree.

2. That different evidence would be introduced against several defendants jointly prosecuted does not require granting of separate trials, where court admonishes jury to confine consideration of evidence to particular defendant against whom it was introduced.

3. That each defendant jointly prosecuted desired to be witness for other held not ground for separate trials.

4. Where defendants were jointly prosecuted, one defendant could not compel another defendant to testify, whether they were granted separate trials or not (C. S., sec. 9131; Const art. 1, sec. 13; Const. U.S. , Amend. 5).

5. In joint murder prosecution, evidence regarding issuance of search-warrant, resulting in liquor prosecution against one defendant, on affidavit signed by brother of deceased, held properly admitted, under court's admonition, as bearing on such defendant's motive.

6. Where defendants in murder prosecution attempted to show that deceased's friend, of his own volition, got into and stayed in defendants' automobile, permitting state to attempt to show contrary, held not error.

7. Witness may be interrogated on redirect examination as to any inferences shown on cross-examination.

8. Evidence regarding threat made by one defendant in joint murder prosecution against brother of deceased held admissible under circumstances: lapse of time between threat and homicide merely bearing on weight of evidence.

9. Instruction held not objectionable as not sufficiently advising jury as to what evidence might be considered against each defendant, in view of further instruction.

10. Self-defense instruction in murder prosecution held not objectionable when considered with defendant's requested instruction.

11. Self-defense is justifiable excuse for homicide only when reasonable.

12. To make out case of self-defense, defendants need only establish that they made reasonable attempt to avoid difficulty.

13. In murder prosecution, definition of conspiracy and distinction between accessories and principals need not be included in one instruction.

14. Evidence in murder prosecution held to justify giving of conspiracy instruction.

15. Instruction, when considered with admonition given when evidence was introduced, held to sufficiently limit application of testimony to defendant against whom it was introduced.

16. Refusing instruction adequately covered by instruction given held not error.

17. Instruction stating law applicable in case circumstantial evidence alone was considered held properly refused, where state did not depend on circumstantial evidence alone.

18. Refused instruction that jury could act only on evidence introduced on trial held sufficiently covered by other instructions.

19. Refused instruction that neither defendant jointly prosecuted was chargeable with anything any other defendant may have done, unless he advised, aided or abetted the other intending to encourage commission of offense, held sufficiently covered by instruction given.

20. Refusing instructions taken in part from statute constituting rules as to admissibility of evidence held not error (C. S secs. 8038, 8039).

21. Instruction in murder prosecution held to sufficiently advise jury as to method of weighing testimony.

22. Instruction that absence of evidence of motive afforded substantial presumption of innocence held error, but not prejudicial, error being in defendant's favor.

23. Requested instruction regarding right to carry arms held properly refused as not in harmony with statute, and as constituting comment on evidence (C. S., sec. 8407).

24. Objection that jury were not kept together prior to time they were impaneled could not be raised for first time on appeal.

25. Permitting juror, who did not know of his relationship to deceased until after trial, to serve in murder prosecution held not error, even though juror was within degree of relationship prohibited by statute (C. S., sec. 8930).

26. Where record did not disclose what requested instruction was supreme court presumed that instruction was properly refused.

27. Denial of new trial for newly discovered evidence showing that blood and gun were found in automobile in which deceased was taken to hospital held not shown to have constituted abuse of discretion.

28. Denial of new trial for newly discovered testimony of witness examined at length at trial held not abuse of discretion, where matter sought from witness was known to him at time of trial.

29. Evidence regarding difficulty between third party and deceased held not basis for new trial, where difficulty was not known to defendants charged with murder.

30. Evidence known to defendants' counsel before trial regarding activities of defendant negativing making of threat, evidence regarding which had been introduced by state, held not newly discovered evidence, and would not justify new trial.

31. Granting or refusing new trial is within trial court's discretion.

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

William Fox and J. L. McCarroll were convicted of murder in the first degree. Affirmed.

Affirmed.

Holden & Clark, Charles W. Sandles and F. A. Miller, for Appellants.

The court erred in overruling defendants' motion for separate trials. It is clearly apparent that there was testimony, if admissible against one of the defendants was clearly inadmissible as to the other defendants. The court in its instructions recognized the fact that testimony had been admitted which was admissible against certain of the defendants, but inadmissible as to the others, and sought but wholly failed to limit the effect of such testimony as to such other defendants. (Cook v. People, 56 Colo. 474, 138 P. 756; Davis v. People, 22 Colo. 1, 43 P. 122.)

The questions asked and answers given were not under any theory evidence of guilt on the part of William Fox of liquor law violations; he was being tried for murder, but the questions and answers under this assignment of error, and exhibits A, B and C placed before the jury, over objection, told the jury that appellant Fox had liquor in his residence; and every other offense known to be a violation of the prohibition law was included in the printed form of these three exhibits. The presumption of innocence was denied appellant, and he stood convicted before the jury of said alleged offenses without trial; such evidence was admitted for all purposes, and left appellant Fox standing before the jury condemned of other offenses not included in the information. (State v. Burke, 11 Idaho 420, 427, 83 P. 228.)

Witness George Samuels was asked to relate a conversation that he had with William Fox. This conversation was made some time before the homicide; no proper foundation was laid therefor, and there was no evidence that appellant Fox even knew Gerald Clark, deceased; there is no evidence that the threat testified to had reference to Gerald Clark, deceased; on the contrary, the evidence shows conclusively that it did not refer to Gerald Clark. (Casteel v. State, 73 Ark. 152, 83 S.W. 953; State v. Swain, 68 Mo. 605; State v. Buster, 28 Idaho 110, 152 P. 196; State v. Rogers, 30 Idaho 259, 265, 163 P. 912.)

The evidence must show that there was no other reasonable hope of escape from such present impending peril. (McDaniel v. State, 76 Ala. 1; Brown v. State, 83 Ala. 33, 3 Am. St. 685, 3 So. 857; Foutch v. State, 95 Tenn. 711, 34 S.W. 423, 45 L. R. A. 687; People v. Gonzales, 71 Cal. 72, 12 P. 783; Wharton on Homicide, 479, sec. 298.)

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

Granting of separate trials of co-defendants is within the court's discretion, and in the absence of a clear abuse thereof is not reversible error. (State v. Allen, 23 Idaho 772, 131 P. 1112; State v. Smith, 30 Idaho 337, 164 P. 519; People v. Trotter, 120 Cal.App. 54, 7 P.2d 731; People v. Roderick, 118 Cal.App. 457, 5 P.2d 463; People v. Perry, 195 Cal. 623, 234 P. 890.)

Threats against a third person are admissible where deceased is a member of the same class, or where a sufficient connection is shown between the threat and the killing. (People v. Wilt, 173 Cal. 477, 160 P. 561; Martin v. State, 96 Tex. Cr. 575, 259 S.W. 572; Roberson v. State, 218 Ala. 442, 118 So. 654; 30 C. J. 191.)

It is proper on redirect examination to allow witness to explain any matter brought out on cross-examination. (40 Cyc. 2468, 2524; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; King v. Hahn, 40 Idaho 555, 234 P. 937; Nichols, Applied Evidence, 2089.)

Admissions and statements made by one defendant are admissible in a joint trial to prove the guilt of such defendant. (State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; State v. Wilson, 51 Idaho 659, 9 P.2d 497.)

The extent of cross-examination is within the court's discretion. (State v. McClurg, 50 Idaho 762, 300 P. 898; State v. Mox Mox, 28 Idaho 176, 152 P. 802.)

It is proper on cross-examination to show witnesses' interest, bias, prejudice and relationship toward the other defendant. (State v. Askew, 32 Idaho 456, 184 P. 473; State v. Olds, 18 Ore. 440, 22 P. 940; 40 Cyc. 2489, 2666; Nichols, Applied Evidence, 733.)

Self-defense is founded in necessity, and when no necessity to take human life to defend one's self exists, the defense of self-defense fails. In other words, only when the...