State v. Foyte

• Court: United States State Supreme Court of Idaho
• Writing for the Court: T. BAILEY LEE, J.
• Citation: 43 Idaho 459,252 P. 673
• Parties: STATE, Respondent, v. LEE FOYTE, Appellant
• Decision Date: 24 January 1927

252 P. 673

43 Idaho 459

STATE, Respondent,
v.
LEE FOYTE, Appellant

Supreme Court of Idaho

January 24, 1927

HOMICIDE-FAILURE TO TAKE EXCEPTION-PREJUDICIAL ERROR IN ADMISSION OF TESTIMONY-INSTRUCTIONS.

1. In prosecution for murder, failure of defendant's counsel to except to court's ruling permitting testimony to statements by codefendant, made without presence of defendant, held not to preclude review thereof.

[43 Idaho 460]

2. In prosecution for murder, admitting testimony of statements, made by codefendant without the presence of defendant, held prejudicial error.

3. Instruction in murder prosecution that malice aforethought includes not only anger, hatred and revenge but every other unlawful and unjustifiable motive, held erroneous.

4. Instruction, in prosecution for murder, on presumption of truth of defendant's statements against interest and relative to acceptance of testimony in own behalf, held erroneous, as incorrectly stating law and singling out defendant's testimony for special comment.

5. Instruction in murder prosecution, authorizing finding of guilty if jury found that defendant, though not actually killing deceased, aided or abetted therein, held erroneous, in view of apparent theory that defendant alone committed murder, and defendant's accusation of another, showing defendant's presence, and justifying jury's conclusion that he aided and abetted in murder.

6. In prosecution for murder, requested instruction forbidding verdict of murder or manslaughter on finding defendant was only accessory after the fact should have been given in view of defendant's declarations that he knew nothing of murder prior to its commission.

7. Instruction in prosecution for murder, directing jury that it was their duty to find murder in the first degree on finding certain elements specified in instruction, held not erroneous.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Judgment of conviction of murder in the first degree and sentence of death. Reversed and remanded for new trial.

Judgment reversed and a new trial granted.

Carlton Fox and John L. Fitzgerald, for Appellant.

The trial court erred in allowing witness R. E. Weniger to testify as to conversations which he had with the defendant Timmel at a time and place where defendant Foyte was not present, because the testimony was purely hearsay. (State v. Main, 37 Idaho 449, 460, 216 P. 731; Moore v. State, 8 Okla. Cr. 496, 129 P. 71; Brookhaus v. State, 11 Okla. Cr. 625, 150 P. 510; People v. Driggs, 12 Cal.App. 240, 108 P. 62, 64.)

The trial court erred in giving instructions numbered 15, 16, 20, 21, 22, 23, 30, 31 and 32, in that therein it submitted to the jury the theory of defendant's guilt as aiding and abetting the defendant Timmel in the commission of the crime of murder and in permitting the jury to find defendant guilty of murder in aiding and abetting Timmel therein; and, in view of giving such instruction on behalf of the state, the court erred in refusing to give instructions numbered 5 and 17 requested by the defendant. (Commonwealth v. West (Ky.), 113 S.W. 76; Miller v. Territory, 3 Wash. Ter. 554, 19 P. 50.)

The evidence is insufficient to sustain the verdict and the judgment thereon (State v. Marcoe, 33 Idaho 286, 193 P. 80; State v. Hurst, 36 Idaho 156, 209 P. 724), and in that it is not sufficient to warrant the penalty of death. (State v. Ramirez, 33 Idaho 803, 199 P. 376.)

The trial court should not have given instruction numbered 29, in which the jury was told that "the words 'malice aforethought,' includes not only anger, hatred and revenge, but every other unlawful or unjustifiable motive." (State v. Rogers, 30 Idaho 259, 163 P. 912; State v. Dunlap, 40 Idaho 627, 235 P. 432.)

C. S., secs. 9006 and 9013, requiring exceptions to be taken, are not binding on this court, which has the inherent power to require that a defendant be not prejudiced in a substantial right by manifest error. (C. S., secs., 9084, 9086; State v. Blank, 33 Idaho 730, 197 P. 821; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; People v. Jung Hing, 212 N.Y. 393, Ann Cas. 1915D, 333, 106 N.E. 105.)

The corpus delicti, in so far as the charge that Foyte killed Montgomery is concerned, was not sufficiently established, for the evidence does not preclude the hypothesis that Timmel killed Montgomery and that Foyte was merely an accessory after the fact. (People v. Galbo, 218 N.Y. 283, 2 A. L. R. 1220, 112 N.E. 1041.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

Assignments of error involving the action of the court in overruling an objection to the introduction of any evidence, and its rulings upon the introduction of certain oral and documentary evidence, are not reviewable upon appeal when no exceptions thereto were taken and preserved in a bill of exceptions. (C. S., sec. 9006; State v. Brockman, 39 Idaho 468, 228 P. 250; State v. White, 33 Idaho 697, 197 P. 824; State v. Peck, 14 Idaho 712, 95 P. 515.)

The corpus delicti is sufficiently established. (State v. McLennan, 40 Idaho 286, 231 P. 718.)

The evidence is sufficient to justify the verdict. (State v. Marren, 17 Idaho 766, 107 P. 993; State v. McLennan, supra; State v....