State v. Gish

• Decision Date: 19 June 1964
• Docket Number: No. 9384,9384
• Citation: 393 P.2d 342,87 Idaho 341
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Clyde GISH, a/k/a Roy Albert King, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 342

393 P.2d 342

87 Idaho 341

STATE of Idaho, Plaintiff-Respondent, v. Clyde GISH, a/k/a Roy Albert King, Defendant-Appellant.

No. 9384.

Supreme Court of Idaho.

June 19, 1964.

J. Blaine Anderson, Blackfoot, for appellant.

Allan G. Shepard, Atty. Gen., and Thomas G. Nelson, Asst. Atty. Gen., Boise, Dean Williams, Pros. Atty., Bingham County, Blackfoot, for respondent.

KNUDSON, Chief Justice.

At approximately 4:30 p. m. on December 20, 1951, appellant went from his employment to his home in Atomic City, Bingham County and immediately upon entering his house he locked the door. He then accused his wife of infidelity and for the ensuing several minutes severely upbraided and physically abused her. Thereafter, and while holding a loaded gun at her back, he directed his wife to go to a place of business known as the Twin Buttes Bar and Cafe. Upon arriving at said bar and cafe he instructed her to enter and tell one Eddie Hudson to come out and talk with him. Hudson went to the door and spoke to appellant, following which event one Edward McEvoy, a patron of the place of business, went to the door, and following some exchange of words between himself and appellant, a rifle in the hands of appellant was discharged and McEvoy was killed. Appellant then moved to a window of the building and fired a shot through it, striking Hudson in the back, seriously but not fatally wounding him.

Appellant was charged with murder in the first degree. After having waived a preliminary hearing, he was held to answer to said charge in the district court, Bingham County. The information charging appellant with murder in the first degree was filed January 4, 1952, to which charge appellant entered a plea of 'not guilty' and 'not guilty by reason of insanity.'

Thereafter, and pursuant to order of the district court dated March 26, 1952, appellant was taken to the Idaho State Hospital South where an examination of his mental condition was to be conducted. Thereafter and following a trial held for the purpose of determining whether appellant was insane, a jury, on April 15, 1952, unanimously returned a verdict wherein they found appellant 'insane at the present time.'

By order of the district court dated and filed the same day, appellant was committed to the State Hospital South 'until he becomes sane.' He remained under treatment at said hospital until June 5, 1952, at which time he eloped therefrom. His whereabouts was thereafter unknown to the officials of Bingham County until July 27, 1962, at which time he made application under the name of Roy Albert King for a store license at San Jose, California, as a result of which he was identified by finger print as being Clyde Gish. He was returned to Idaho and stood trial on the original charge of murder in the first degree. From a judgment of conviction of voluntary manslaughter this appeal is taken.

Appellant has made 18 assignments of error and has set out 26 numbered paragraphs of points and authorities. We shall not undertake to discuss in detail each of the assignments and propositions of law, but shall confine this opinion to a consideration of the principal questions raised by appellant.

The verdict is attacked as being contrary to the law and evidence, claiming that it conclusively appears from the evidence that appellant was an insane person on December 20, 1951.

As support for this contention, appellant relies principally upon the testimony of the former Superintendent of State Hospital South, Dr. J. O. Cromwell, a psychiatrist, who, after completing his examination of appellant, which was commenced on December 24, 1951, expressed the opinion that appellant was mentally ill and 'was unable to distinguish right from wrong and adhere to the right.' While it is true that Dr. Cromwell expressed such an opinion, the record discloses that another qualified psychiatrist, Dr. Charles H. Sprague, expressed the opinion that the appellant, at the time of the shooting, was a sane person and that he, at that time, had the capacity to know right from wrong.

The testimony of other witnesses who observed appellant immediately before and after the shooting, is also in conflict as to how he appeared and acted. One witness, when asked if he noticed anything unusual about appellant immediately after the incident, stated, 'Well not any more than he was real nervous'; appellant's wife described him as being 'more nervous' on that occasion; another witness, of whom appellant had inquired as to the whereabouts of his wife, quoted appellant as saying, 'I have killed two and a few more won't hurt'; appellant was also quoted as saying that he didn't care much for himself but he hated to have his boy see this; the owner of the bar and cafe quoted appellant as saying to him, 'I sure hated to have this happen in your place of business.'

Other witnesses testified that 'he was just like a maniac he was raving and waiving this gun around in the air'; that 'he looked just like someone that was just off his mind at that time.'

It is not for the court to inquire as to the credibility of witnesses since that is the exclusive province of the jury to believe or disbelieve the testimony of any witness, or any portion of his testimony. I.C. § 9-201; State v. Cacavas, 55 Idaho 538, 44 P.2d 1110; State v. Hansen, 67 Idaho 359, 181 P.2d 192; State v. Davis, 69 Idaho 270, 206 P.2d 271; State v. Bedwell, 77 Idaho 57, 286 P.2d 641.

The jury, by their verdict, resolved the conflicts and contradictions in the evidence as to appellant's sanity in favor of the contention made on behalf of the state, and since there is sufficient competent evidence to sustain the jury's conclusions in that regard, we find no merit in the assertion that the verdict is contrary to the law and evidence.

Appellant asserts error on the part of the trial court in refusing to admit the transcribed testimony of one Cecil Floyd Barnes, since deceased. The offered testimony was taken at a hearing before the Industrial Accident Board of this state held August 8, 1952, involving a claim for compensation by Everett Hudson, based on the injury inflicted by appellant shortly after McEvoy had been killed (see Hudson v. Roberts, 75 Idaho 224, 270 P.2d 837).

In support of this offer it was stated to the court that Mr. Barnes, deceased, testified on behalf of the state at the sanity hearing held on April 14 and 15, 1952, and that the record of that hearing had been inadvertently destroyed. It was further stated that at the hearing before the Industrial Accident Board Mr. Barnes, as the employer of appellant, testified in some detail as to appellant's conduct, activities and appearance shortly before and after the occurrence on December 20, 1951; that at said hearing the sanity of appellant was in controversy, and that the witness Barnes was under oath and was examined both on direct and cross-examination as to his knowledge and observation of appellant's conduct at the time in question.

The question as to whether evidence taken at a former trial may be introduced at a subsequent trial has been considered by this court. In State v. Brassfield, 40 Idaho 203, 232 P. 1, it was said:

'* * * However, the weight of authority would seem to be that when it appears that the witnesses who testified at a former trial are beyond the jurisdiction of the court, and the evidence is competent and between the same parties, involving the same issues, and proper diligence to secure their attendance is shown, as in this case, such evidence is admissible, the reason for the rule being that it is the best evidence which can be produced. * * *'

This same rule was applied in State v. Ward, 51 Idaho 68, 1 P.2d 620, in which case the whereabouts of the witness was unknown. In State v. Johnston, 62 Idaho 601, 113 P.2d 809, the witness had died between the dates of the first and second trial, and in affirming the admission of the questioned evidence it was stated, 'The testimony of a deceased witness, given at a former trial, may be read as evidence at a subsequent trial between the same parties and involving the same issues.' This rule was subsequently enacted into I.C. § 9-206, which provides:

'The testimony of a witness who testified at the trial in an action or proceeding in any district court of the State of Idaho, when transcribed and certified to be true or correct by the court reporter reporting such testimony at such trial or proceeding, shall be admissible at any subsequent trial between the same parties and relating to the same subject matter, when such witness is deceased, absent from the state or otherwise unavailable or unable to testify as a witness.'

In order that testimony given at a former trial may be admissible at a subsequent one, it is not only necessary that the parties and subject matter, or issues, be the same in the two trials, but it is necessary that the party against whom the evidence was offered, or someone identified with him in legal interest, should have had an opportunity to cross-examine the witness. 31A C.J.S. Evidence § 390, p. 959; Tom Reed Gold Mines Co. v. Moore, 40 Ariz. 174, 11 P.2d 347; McInturff et al. v. Insurance Co. of North America, 248 Ill. 92, 93 N.E. 369; Werner v. State Bar, 24 Cal.2d 611, 150 P.2d 892.

In the instant case the parties were not the same as the parties to the hearing before the Industrial Accident Board in Hudson v. Roberts, supra, and the issues involved were not the same. Neither the appellant nor respondent had any opportunity to cross-examine Mr. Barnes at the time his offered testimony was elicited before the Industrial Accident Board.

We do not consider that the cases cited by appellant (Green v. State, 69 Tex.Cr.R. 485, 154 S.W. 1003; Robertson v. State, 63 Tex.Cr.R. 216, 142 S.W. 533) support a different rule, since each of said cases involved a retrial on the same charge. There was no error on the part of the trial court in excluding the offered testimony.

Appellant contends that ...