State v. Gilbert

• Decision Date: 16 May 1902
• Citation: 69 P. 62,8 Idaho 346
• Parties: STATE v. GILBERT
• Court: Idaho Supreme Court

69 P. 62

8 Idaho 346

STATE v. GILBERT

Supreme Court of Idaho

May 16, 1902

CRIMINAL LAW-JURY-SPECIAL VENIRE-SUNDAY-MINISTERIAL ACTS.-There is no statute in this state prohibiting secular business or the performance of ministerial acts by ministerial officers on Sunday, and therefore an objection to the panel of a jury in a criminal action that some of said jurors were summoned under a special venire on Sunday was properly overruled, and such action is not ground for reversing the judgment in a criminal action.

CRIMINAL LAW-MOTION FOR CHANGE OF VENUE-DISCRETION OF TRIAL COURT.-The granting of a change of venue in a criminal action, upon motion of the defendant, is a matter resting largely in the sound discretion of the court, and the denial of such motion will not authorize a reversal of a judgment against the defendant where it manifestly appears from the record that the defendant had a fair and impartial trial, and that no trouble was experienced in obtaining an impartial jury.

EVIDENCE-DYING DECLARATIONS-RES GESTAE.-The declaration of the deceased made immediately after he was mortally stabbed by the accused to the effect that he was "stabbed to the heart; that he was dying; and that he was done for," is admissible as a part of the res gestae, but the rule would be different if any considerable time had elapsed between the affray and the making of such declaration.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Affirmed.

Goode & McNamee, for Appellant.

Not only the appellant, but the whole community of Idaho county were wronged by the sheriff serving the venire in this case on Sunday--the common law forbids it; the statute forbids it. (Rev. Stats., secs. 12, 3866; State v. Ricketts, 74 N.C. 193; 24 Am. & Eng. Ency. of Law, 574 et seq.; Lempe v. Manning, 38 Wis. 673; Gladwin v. Lewis, 6 Conn. 49, 16 Am. Dec. 33; Pearce v. Atwood, 13 Mass. 324.) Appellant Gilbert before the trial began made application for change of venue under Revised Statutes, section 7768 et seq. The alleged dying declarations in no sense come within the rule which would admit them as competent evidence in this case. Some of the alleged statements were made almost immediately after the affray by the decedent, such as "I am stuck to the heart," "I am stabbed twice," "I am killed," etc. To admit dying declarations in cases of this kind has been held erroneous. (Collins v. Commonwealth (Ky.), 2 Am. Cr. Rep. 282; Lieber v. Commonwealth, 9 Bush (Ky.), 11.) Expressions of opinion by deceased, as to the character of the injuries of which he is dying are inadmissible as dying declarations. (People v. Lanagan, 81 Cal. 142, 22 P. 482; People v. Taylor, 59 Cal. 650; People v. Wasson, 65 Cal. 538, 4 P. 555; State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537.) Where it appears that the deceased had any expectation or hope of recovery, however slight it may have been, at the time of making alleged dying declarations, they are not admissible; on this point authorities coincide. (People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549; People v. Ah Dat, 49 Cal. 652.)

Frank Martin, Attorney General, for the State.

The first assignment of error taken up by the appellant is that the court erred in not sustaining his objection to the panel of the jurors summoned by special venire, part of which the record shows were served with notice of their selection as jurors on Sunday. We desire, however, to call the attention of the court to one other point in connection with this assignment of error, and that is that under our statute the objection sought to have been taken by appellant could not have been sustained and that no error was committed by the court in denying it. Section 7824 of the Revised Statutes provides that: "When the panel is formed, or in part formed, from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be a good ground of challenge to a juror." It will thus be observed that there is but one ground of challenge provided for by the statute to such a panel and that is "bias of the officer who summoned them." (People v. Welch, 49 Cal. 174; People v. Southwell, 46 Cal. 141; People v. Fellows, 122 Cal. 233, 54 P. 830; People v. Wallace, 101 Cal. 281, 35 P. 862.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

The defendant was prosecuted upon the information of the prosecuting or county attorney of Idaho county upon the charge of murder, tried by a jury, and found guilty of murder of the second degree, and duly sentenced to confinement at hard labor in the state penitentiary for life. Thereafter appellant moved for a new trial, which was denied, and he is appealing to this court from an order denying a new trial and from the judgment of conviction.

Appellant has assigned thirty-six errors of law occurring upon the trial and upon the hearing of the motion for a new trial, but in appellant's brief only four or five of these errors are discussed. However, counsel for appellant, in his oral argument at the hearing, expressly stated that appellant did not waive any of the errors assigned. We have carefully examined the record in this case, and have carefully considered each and every of the assignments of error in the record and after such consideration we deem it unnecessary to discuss any of the alleged errors except those which were discussed in the appellant's brief. One of the alleged errors which is seriously discussed at length by appellant is based upon the action of the trial court directing a special venire to issue for forty jurors on the evening of May 4 1901, said venire returnable on the following Monday morning. It is claimed by the appellant that nine of the forty persons summoned as jurors under said special venire were summoned by the sheriff on Saturday evening, and that the remaining thirty-one were summoned by the sheriff on Sunday, May 5th, which claim is sustained by the record. Upon the calling of the case, and before any of the said persons so summoned as jurors under said special venire were sworn upon their voir dire, counsel for appellant objected to the drawing of any names from the box, or the swearing of any persons as jurors, who were summoned on Sunday, May 5th. This objection was overruled by the court, to which appellant duly excepted. Appellant now contends that the summoning of said persons as jurors on Sunday was a judicial act, and as such prohibited by the provisions of sections 12 and 3866 of the Revised Statutes. Said section 12 has no application whatever to the question before us. Section 3866 is as follows: "No court can be opened nor can any judicial business be transacted on Sunday, on the first day of January, on the fourth day of July, on Christmas or Thanksgiving Day, or on a day on which the general election is held, except for the following purposes: 1. To give, upon their...