State v. Freeman
| Decision Date | 05 March 1963 |
| Docket Number | No. 9173,9173 |
| Citation | 85 Idaho 339,379 P.2d 632 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Rufus William FREEMAN and Jerry McGuire, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Rayborn, Rayborn, Rayborn & Webb, Twin Falls, for appellants.
Frank L. Benson, Atty. Gen., William E. Swope, Asst. Atty. Gen., Boise, James J. May, Pros. Atty., James M. Cunningham, Asst. Pros. Atty., Twin Falls, for respondent.
On the morning of September 6, 1961, the defendants, Rufus Freeman and Jerry McGuire, were arrested by police officers near Filer, Idaho. On that same day a criminal complaint was made out, charging the defendants with the commission of a felony. The complaint, as amended on September 11, 1961, charged the defendants with the crime of robbery alleged to have been committed in Twin Falls County, Idaho, on the 5th day of September, 1961. A preliminary hearing was held September 19, 1961, and the defendants were bound over to District Court. Thereafter, on September 28, 1961, an information was filed in District Court for Twin Falls County, against these defendants, charging them with the crime of robbery. On this same date the defendants were arraigned before the district court. At this proceeding, pursuant to the request of the defendants, the trial court appointed counsel to represent them. The following day the defendants appeared in court with their counsel and entered a plea of 'not guilty' to the charges contained in the information.
Thereafter, on October 31, 1961, counsel appointed by the court petitioned the court for permission to withdraw as counsel for the defendants on the grounds that the defendants had made written request that he do so. The trial court permitted the withdrawal and on November 1, appointed other counsel to represent the defendants.
The case was tried November 8, 1961. At the trial, George Cross and George Bevell testified that they were working at the Magic Valley Drug in Twin Falls on the evening of September 5th when the defendants entered the store, and, after purchasing a package of cigarettes, forced Cross and Bevell at gunpoint into a back room, where they were commanded to lie down on the floor. These witnesses further stated that they were ordered, under threats that their 'heads would be blown off,' to hand over their wrist watches and billfolds. Both witnesses identified Freeman and McGuire as their assailants.
Several police officers who participated in the arrest of the defendants, testified that they stopped a taxicab in which the defendants were riding, made the arrest, and upon searching the taxicab, found guns, a blue money bag and certain other objects connecting the defendants with the crime.
The case was submitted to the jury, which returned a verdict of guilty as charged against both defendants. On November 10, 1961, the defendants were sentenced to be imprisoned in the Penitentiary of the State of Idaho for a term of not more than life imprisonment, the precise period of confinement to be determined by other authorities, according to law.
Thereafter, defendants, acting as their own counsel, filed a motion for a new trial on the grounds that the trial court had erred in denying their motion for change of place of trial; that the defendants were inadequately represented by counsel because they did not have adequate time to consult with said counsel prior to the trial; that certain evidence had been improperly admitted during the trial; and that the defendants were improperly informed of their rights either by counsel or the trial court. The motion was mailed November 20, but not received and filed with the clerk of trial court until November 22. This motion was denied by the trial court on the grounds that it was not made within the statutory 10 day period as provided by I.C. § 19-2407.
Defendants next filed notice of appeal from the judgment of conviction. Counsel was appointed to represent the defendants and this appeal was perfected. Defendants now contend that the trial court erred in denying their motion for a new trial; that the trial court improperly refused to consider an application for clemency on behalf of the defendants and that the trial court erred in entering final judgment of conviction against the defendants for the reason that they were denied their right to counsel, the jury was improperly instructed as to the law, and improper verdicts were submitted to the jury.
I.C. § 19-2407 establishes the time within which application for a new trial must be made as follows:
'The application for a new trial may be made before or after judgment; and must be made within ten days after verdict, unless the court or judge extends the time.'
The record is devoid of any indication that the trial court extended the time for application for a new trial. The jury arrived at a verdict on November 8, 1961. Judgment of conviction was entered on November 10. The motion for new trial was not mailed until November 20 and not filed until November 22. There trial court properly denied the motion for a new trial on the ground that it was not timely made. State v. Neil, 58 Idaho 359, 74 P.2d 586; State v. Davis, 8 Idaho 115, 66 P. 932; State v. Davis, 7 Idaho 776, 65 P. 429; State v. Rice, 7 Idaho 762, 66 P. 87; State v. Dupuis, 7 Idaho 614, 65 P. 65. The motion for a new trial not being timely made was properly denied and renders unnecessary a discussion of the grounds urged by the appellants in support of said motion.
Appellants contend the jury was improperly instructed as to the law of the case in that the trial court failed to specifically instruct the jury that 'it is the burden of the prosecution to prove every essential element of the offense charged beyond a reasonable doubt;' because the trial court failed to include in its instructions to the jury a definition of the term 'reasonable doubt,' and because the trial court failed to instruct the jury that it could find one of the defendants guilty and the other not guilty. While appellants admit that they did not request any instructions, they contend that the trial court had a duty to give such instructions on its own motion and failure to do so constitutes reversible error.
In State v. Patterson, 60 Idaho 67, 88 P.2d 493, this court stated:
'* * * 'on the trial of a criminal action it is the bounden duty of the trial court, if its own motion, to give to the jury pertinent instructions by which the jury may be correctly informed with respect to the essential legal principles that are applicable to the evidence that has been adduced; and that failing in that regard, the fact that proper instructions have not been requested by either party to the action will not cure such error.'
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I.C. § 19-2132, insofar as it is pertinent to the issues to be decided in this case, provides as follows:
'In charging the jury, the court must state to them all matters of law necessary for their information.'
This Court, in the case of State v. Parish, 79 Idaho 75, 310 P.2d 1082, construed I.C. § 19-2132 as follows:
'* * * I.C. § 19-2132 charges the trial judge with the duty of instructing the jurors on what he believes to be 'matters of law necessary for their information.' His stock instructions, given on his own motion, are intended to state the fundamental principles of law applicable in all criminal cases, and additionally, 'to advise the jury as to the nature and elements of the crime charged.''
It becomes necessary to determine whether the instructions appellant contends the trial court failed to give were in fact not given; if not given, whether such instructions may be classified as 'stock instructions'.
Appellant contends that the trial court failed to specifically instruct the jury that 'it is the burden of the prosecution to prove every essential element of the offense charged beyond a reasonable doubt.' The court instructed the jury on this issue as follows in Instruction No. 3:
Instruction No. 4, after setting out the material allegations contained in the information, instructs the jury as follows:
'If the evidence does not satisfy you beyond a reasonable doubt of the truth of each and all of the foregoing matters, you will give the defendants the benefit of that doubt and acquit them.'
We conclude that the above...
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