State v. Golden

• Citation: 186 P.2d 485,67 Idaho 497
• Decision Date: 10 November 1947
• Docket Number: 7371
• Parties: STATE v. GOLDEN
• Court: United States State Supreme Court of Idaho

186 P.2d 485

67 Idaho 497

STATE v. GOLDEN

No. 7371

Supreme Court of Idaho

November 10, 1947

Rehearing Denied Dec. 4, 1947.

Rehearing Denied December 4, 1947.

Appeal from District Court, Third Judicial District, Ada County Charles F. Koelsch, Judge.

Affirmed.

Phil J. Evans, of Murphy, for appellant.

"Where the circumstances upon which the verdict is based can be as reasonably explained upon some other hypothesis than that of guilt, or are as consistent with his innocence as his guilt, a new trial should be granted." State v. Lumpkin, 31 Idaho 175, 176, 169 P. 939.

"Where the jury returns a verdict of guilty, though the undisputed evidence is entirely consistent with the defendant's innocence, the refusal to grant a new trial is error." State v. Grover, 35 Idaho 589, 207 P. 1080.

"Where the evidence is insufficient to sustain a conviction of defendant's embezzlement, a new trial should have been granted." State v. Jones, 25 Idaho 587, 138 P. 1116.

Robert Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty Gen., James W. Blaine, Pros. Atty., and Grant L. Ambrose, Deputy Pros. Atty., both of Boise, for respondent.

The trial Court and jury were in a position to observe the witnesses while on the stand, their conduct and demeanor while testifying, and were in a better position to pass upon the sufficiency of the evidence than any other body. State v. Farmer, 34 Idaho 370, 373, 201 P. 33.

Granting of a new trial rests largely in the discretion of the trial Court, and in absence of a clear abuse of such discretion an order refusing to grant a new trial will not be set aside on appeal. State v. Barber, 15 Idaho 96, 99, 96 P. 116; State v. Farmer, 34 Idaho 370, 373, 201 P. 33.

Budge, Chief Justice. Givens, Holden and Hyatt, JJ., concur. Miller, J., dissents.

OPINION

Budge, Chief Justice.

We will hereafter refer to appellant as defendant.

Defendant was duly charged with the crime of murder of the first degree in the following language: "That the said defendant, Ralph Golden, on or about the 30th day of September, 1946, in Ada County, State of Idaho, then and there being, did then and there wilfully, unlawfully, knowingly, feloniously and with malice aforethought, and with intent to kill and murder one Mildred L. Rusho with a .25 caliber revolver, then and there held in his, the said Ralph Golden's hand, and that the said defendant, Ralph Golden, then and there wilfully, unlawfully, knowingly, feloniously, and of his own deliberate and premeditated malice, did by shooting with intent to kill as aforesaid, mortally wound her, the said Mildred L. Rusho, from which mortal wound, the said Mildred L. Rusho, on or about the 30th day of September, 1946, did die."

The cause was tried before the court and jury of the Third Judicial District, for Ada County. Defendant was found guilty as charged in the information, and sentenced to imprisonment in the state penitentiary for life, as fixed in the verdict of the jury.

Defendant served and filed his application for new trial, which was denied, whereupon an appeal was taken from said order, and from the judgment of conviction.

Chapter 12, Sess. Laws 1937, amending sec. 19-2705, I.C.A., provides an appeal from a judgment in a criminal case must be taken within 30 days after its rendition. The judgment herein was entered December 23, 1946; the appeal was taken April 12, 1947. The appeal from the judgment not being taken within the time fixed by statute, is not here for consideration.

In defendant's application for new trial four grounds are set forth, each containing several subdivisions. The first ground is, that the court misdirected the jury on matters of law, and is predicated upon instructions Nos. 12, 13 and 14.

Instruction No. 12 reads, in part as follows:

"The State does contend that the killing of Mildred L. Rusho was a wilful, deliberate and premeditated murder, and that it was committed in the perpetration of, or attempt to perpetrate, robbery.

" Robbery is by our statute defined as

"'The felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'"

Defendant gave as reason therefor that the court did not, in the instruction complained of, nor in any instruction given, state the converse of the State's theory as expressed in said instruction. In other words, that the court did not instruct the jury that the defendant did not commit robbery, or attempt to commit robbery, therefore the instruction was highly prejudicial and constituted reversible error; that said instruction was bound to impress the jury that defendant did admit committing a robbery or attempting to commit a robbery, and that there is no evidence in the record that defendant committed a robbery or attempted to commit a robbery on the premises.

When defendant was arraigned he entered a plea of "Not Guilty", that is, that he did not murder Mrs. Rusho as charged in the information, or at all. Furthermore, in instruction No. 3 the court instructed the jury as follows:

"To this Information the defendant has entered his plea of 'Not Guilty.'

"This puts in issue every material allegation of the Information, and makes it incumbent upon the State, before you can convict the defendant of any offense, to produce evidence establishing beyond a reasonable doubt that the defendant is guilty of such offense.

"He is presumed to be innocent unless and until the evidence produced upon this trial justifies beyond a reasonable doubt the belief that he is guilty of some offense charged against him in this Information."

From a reading of this instruction it will be observed the court instructed the jury that defendant contends he did not murder Mrs. Rusho while committing, or attempting to commit, a robbery, but that defendant contends that he did not kill her at all, and he is presumed innocent until he is proved guilty beyond a reasonable doubt. The theory of the defense was clearly and definitely presented to the jury upon this point. 23 C.J.S., Criminal Law, § 1190. "The plea of not guilty * * * controverts the existence of every fact essential to constitute the crime charged." Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 357, 40 L.Ed. 499.

Defendant contends the instruction is erroneous for the reason there is no competent evidence in the case that said homicide was committed in a robbery, or in an attempt to commit robbery by defendant. If the evidence, beyond a reasonable doubt, supported the charge that defendant murdered Mrs. Rusho as charged in the information, the fact that he did not so murder her in the commission of the crime of robbery, or in an attempt to commit robbery, would not justify a reversal of the judgment. State v. Reding, 52 Idaho 260, 13 P.2d 253. However, there was sufficient substantial and competent evidence for the consideration of the jury from which it was their duty to determine whether or not Mrs. Rusho was murdered in the commission of the crime of robbery, or an attempt to commit robbery, or as charged in the information. Oral and documentary evidence established the fact that the two bedrooms in the house had been ransacked, both the dressing table in the east bedroom and the bureau in the west bedroom had been disturbed, the contents scattered about, the purses open and empty, and other pertinent evidence supported the theory of the State that the murder was committed in the commission of robbery or an attempt to commit said crime.

Robbery, or an attempt to commit robbery, standing alone, would not be sufficient to establish that defendant murdered Mrs. Rusho, but would be a circumstance to be considered by the jury along with other facts and circumstances, its weight, credibility and sufficiency being for the jury.

Defendant contends the court committed error in giving instructions Nos. 13 and 14, which read as follows:

Instruction No. 13

"If, therefore, you are convinced beyond a reasonable doubt, by the evidence in this case, that the defendant Ralph Golden killed the said Mildred L. Rusho, and that he did so kill her with malice aforethought, or by use of a deadly weapon, and wilfully, deliberately, and premeditatedly; or that he did so kill her while he, said Ralph Golden, was committing the crime of robbery, or while attempting to commit the crime of robbery, whether he intended to kill her or not, you should find the defendant guilty of murder of the first degree."

Instruction No. 14

"It follows, therefore, that the charge against the defendant includes both murder of the first degree and murder of the second degree. And I instruct you that if the evidence produced upon the trial convinces you beyond a reasonable doubt that the defendant did kill the said Mildred L. Rusho, but the evidence fails to show, or leaves a reasonable doubt in your minds, whether he killed her wilfully, premeditatedly and deliberately, and fails to show, or leaves a reasonable doubt in your minds whether he did so kill her while committing, or attempting to commit robbery, then you can find him guilty only of murder of the second degree.

"In other words, if you are convinced beyond a reasonable doubt that the defendant is guilty, but there is a reasonable doubt in your minds whether he is guilty of murder of the first degree, you can convict him only of the lower degree, that is, of murder of the second degree."

When these instructions are read and considered together with all the other instructions given, they fully state the law applicable to the case. State v. Hansen, 67 Idaho 359, 181 P.2d 192, 195. The various classes of acts are stated constituting murder of the first degree and murder of the second degree under the statute, and the...