State v. Gruber

• Decision Date: 19 April 1911
• Citation: 115 P. 1,19 Idaho 692
• Parties: STATE, Respondent, v. FRED GRUBER, Appellant
• Court: Idaho Supreme Court

115 P. 1

19 Idaho 692

STATE, Respondent, v. FRED GRUBER, Appellant

Supreme Court of Idaho

April 19, 1911

INDICTMENT FOR HOMICIDE CHARGED IN TWO COUNTS-CRIMINAL LAW-CONTINUANCE-HOMICIDE COMMITTED IN THE PERPETRATION OF ROBBERY-MALICE AND PREMEDITATION-ADMISSION OF EVIDENCE-DEFENDANT AS WITNESS-CROSS-EXAMINATION OF DEFENDANT-PLEA OF INSANITY-INSTRUCTION AS TO INSANITY-PRESUMPTION OF GOOD CHARACTER-INSTRUCTION AS TO CHARACTER-INSTRUCTION AS TO REFUSAL TO TESTIFY-STATEMENTS BY PROSECUTOR.

(Syllabus by the court.)

1. Under the provisions of sec. 7681, Rev. Codes, an indictment or information must charge but one offense, but the same offense may be set forth in different forms under different counts, and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.

2. In an information charging murder in the first degree, the prosecutor may charge the same offense in two counts, one count alleging the murder to have been committed wilfully deliberately and with malice aforethought, and the other count charging that the murder was committed in the perpetration of, or attempt to perpetrate, robbery. In the latter case, proof that the murder was committed in the perpetration of, or attempt to perpetrate, robbery brings the case within the definition of murder in the first degree, as contained in sec. 6562, Rev. Codes, and such proof supplies the place of proof of deliberation and premeditation.

3. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and there is no abuse of discretion in denying such application where the party applying fails to show that if the continuance should be granted he could procure material evidence tending to establish his defense, which he could not reasonably expect to produce unless such continuance should be granted.

4. Where an information charges that murder has been committed in the perpetration of, or attempt to perpetrate, robbery, it is proper to show that the deceased had money or valuables on his person prior to his death, and that his money or other valuables had been taken from him; and it is likewise competent to show that the defendant was in impecunious and necessitous circumstances prior to the time of the homicide and that he had money soon thereafter, or that he had property or valuables soon after the homicide which had belonged to the deceased.

5. Certain evidence as to the identification of the watch claimed to have been taken from the body of the deceased, and the evidence of a witness in identifying handwriting examined, and held, that it was properly admitted.

6. Under the provisions of sec. 6079, Rev. Codes, a witness may be cross-examined by the opposite party "as to any facts stated in his direct examination or connected therewith."

7. Where the defendant testified to going to a specified place or city with another, and to spending the night with such person, and gave no further testimony as to his movements or when he left such place, it was not error to permit the prosecuting attorney on cross-examination to ask the defendant when he left the place to which he and the other party had gone.

8. Where a defendant became a witness in his own behalf and testified concerning his early life, and as to his acquaintance with a third party, and concerning a trip taken by him and a party who was afterward murdered, and made no reference to any property owned by the deceased, and no mention of a transaction in which certain property claimed to have belonged to the deceased was pawned, it was error for the court to allow the prosecuting attorney to ask the defendant on cross-examination if he gave a pawn ticket to a third party for certain of the deceased's property.

9. It is not error for the trial court to refuse to give an instruction to the jury as to the law covering the defense of insanity where there is no evidence introduced on the part of the defendant tending to show that he was insane at the time of the commission of the offense.

10. It is not error for the trial court to refuse to give to the jury an instruction to the effect that the law presumes that the defendant sustained a good reputation prior to the commission of the alleged offense, where no evidence has been introduced touching his character or reputation, and no issue has been made touching his reputation with reference to any trait or quality or in any respect.

11. Under the constitution, sec. 13, art. 1, and the statute sec. 7357, Rev. Codes, no person can be compelled in a criminal action to become a witness against himself, and the court should instruct the jury in a proper case that no presumption can be raised against the defendant by reason of his refusal to testify; but where the defendant voluntarily submits himself as a witness in his own behalf, he may be cross-examined by the state, subject to the same rules and regulations governing cross-examination that apply to other witnesses.

12. Where the court permitted the prosecutor to ask a question on cross-examination which was not proper cross-examination, and it appears that the question was one that did not prejudice the defendant's rights, and did not prejudice him in any substantial manner, it was not error for the trial court to refuse to instruct the jury that the defendant had properly declined to answer such question, and that his refusal to answer should not be construed against him.

13. Where the conduct of a prosecutor in making certain statements in the course of his argument to the jury is assigned as error, the defendant should set forth in his statement or bill of exceptions the language of the prosecuting attorney with sufficient certainty and definiteness, together with the circumstances and conditions under which it was made, and the context thereof, to enable this court to determine whether or not the same was prejudicial to any substantial right of the defendant.

14. Evidence in this case examined and held sufficient to justify the verdict and judgment.

APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. Robt. N. Dunn, Judge.

Prosecution for murder in the first degree. Conviction had and defendant appealed. Affirmed.

Affirmed.

McBee & La Veine, for Appellant.

Where an information describes an article with particularly, the proof will be held to that article so particularly described, and the allegation of the fifteen jeweled watch was not supported by the testimony of a watch with eleven jewels. (Morgan v. State, 61 Ind. 447; Turner v. State, 50 Tenn. 452; Harris v. State (Tex. Cr. App.), 30 S.W. 221; State v. Kube, 20 Wis. 217, 91 Am. Dec. 390.)

"The defendant in a criminal action, who has testified in his own behalf, can only be cross-examined by the state as to facts stated on his direct examination or connected therewith." (State v. Larkins, 5 Idaho 200, 47 P. 945; Evans v. O'Connor, 174 Mass. 287, 75 Am. St. 316, 54 N.E. 557; People v. Arrighini, 122 Cal. 121, 54 P. 593.)

Instructions Nos. 34, 35, and 38 refer to the question of insanity as governed by heredity and also tender to the jury an instruction in regard to the effect of the suicide of defendant's father. These instructions correctly state the law and should have been given. (Brown, Medical Jurisprudence of Insanity, secs. 524, 525; Wharton and Stille, Medical Jurisprudence, p. 93; The Arrowsmith Case, 1 Am. Law Reg. 353; People v. Smith, 31 Cal. 466.)

It was error for the prosecuting attorney to state to the jury in argument that, "They might acquit the defendant and allow him to go out and kill somebody else." (State v. Irwin, 9 Idaho 35, 71 P. 608.)

D. C. McDougall, Atty. Gen., O. M. Van Duyn and J. H. Peterson, Assts., for Respondent.

Two offenses are not charged, but one offense is charged, and the second alleged offense, as shown by the second count in the information, to wit, robbery, is only for the purpose of showing the means which go to make the said offense murder in the first degree. (Wharton on Homicide, p. 876.)

An application for continuance is addressed to the sound judicial discretion of the court, which will not be revised unless abused. (Citing authorities cited in the opinion of the court.)

Every fact from which the jury may legally deduce or infer the guilt of the accused shall be submitted, when, taken in connection with these facts or all the other facts, its relevancy is made to appear. (Sec. 323, Underhill, Criminal Evidence; sec. 584, 3d ed., Wharton on Homicide; State v. Reed, 53 Kan. 767, 42 Am. St. 322, 37 P. 174; Jenkins v. State, 35 Fla. 737, 48 Am. St. 267, 18 So. 182.)

The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith. (Sec. 6079, Rev. Codes; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Larkins, 5 Idaho 200, 47 P. 945; People v. Arrighini, 122 Cal. 121, 54 P. 591; People v. Meyer, 75 Cal. 383, 17 P. 431; People v. Freshour, 55 Cal. 375; People v. Davenport, 13 Cal.App. 632, 110 P. 318; People v. Gallagher, 100 Cal. 474, 35 P. 80; People v. Schmitz, 7 Cal.App. 330, 94 P. 407-419; People v. Rozell, 78 Cal. 91, 20 P. 36.)

The prosecuting attorney has the right to state his view of what the evidence shows and the conclusion to be drawn therefrom. (People v. Romero, 143 Cal. 458, 77 P. 163.)

AILSHIE, Presiding J. Sullivan, J., and Woods, District Judge, concur.

OPINION

AILSHIE, Presiding J.

The appellant was prosecuted on information by the county attorney on the charge of the murder of one John H. Billings and was convicted of murder in the first degree and sentenced to be hanged. This appeal is from the judgment and an order denying a ...