State v. Hall

• Decision Date: 08 November 1913
• Parties: STATE, Respondent, v. ARCHIE HALL, Appellant
• Court: Idaho Supreme Court

135 P. 1163

25 Idaho 107

STATE, Respondent, v. ARCHIE HALL, Appellant

Supreme Court of Idaho

November 8, 1913

CRIMINAL LAW-HOMICIDE-ERROR IN REFUSING INSTRUCTIONS-RECORD OF EVIDENCE.

1. Upon an appeal from a judgment of conviction in a criminal case if the evidence given at the trial be not in the record, it will be presumed that the instructions given by the trial court were justified by the evidence, and that the instructions refused, even if correct in themselves, had no application to the evidence.

2. In the trial of a criminal case charging wilful murder, where the defendant is convicted and an appeal is taken to this court upon the ground that the court erred in refusing to give to the jury certain instructions requested by the appellant, and the court gave instructions stating the law applicable to the charge, this court will presume, in the absence of any objections to the court's instructions given, that the trial court committed no error in refusing the instructions tendered.

APPEAL from the District Court of the Fifth Judicial District for Oneida County. Hon. Alfred Budge, Judge.

An action upon an information of the prosecuting attorney for the crime of murder. Judgment of conviction. Judgment affirmed.

Affirmed.

Philip J. Evans, for Appellant.

A person on trial for homicide is entitled to demand a positive instruction to the jury on the character or nature of the danger feared, that entitles a person to offer lawful resistance. (State v. McGreevey, 17 Idaho 453, 105 P. 1047; People v. Angeles, 61 Cal. 188; Drysdale v State, 83 Ga. 744, 20 Am. St. 340, 10 S.E. 358, 6 L. R. A 424.)

A defendant in a homicide trial is entitled to a positive instruction reviewing the testimony, and when asked, such instruction should be given by the court. (State v. Grugin, 147 Mo. 39, 71 Am. St. 553, 47 S.W. 1058, 42 L. R. A. 774; 8 Current Law, 109, note 46; State v. Legg, 59 W.Va. 315, 53 S.E. 545, 3 L. R. A., N. S., 1152, at page 1167.)

A defendant in a homicide trial is also entitled to a positive instruction to the jury to the effect that where the defense is accidental killing, the burden of proof is on the prosecution to show that it was not an accident, and when asked, such instruction should be given by the court. (State v. McDaniel, 68 S.C. 304, 102 Am. St. 661, 47 S.E. 384; State v. Matheson, 130 Iowa 440, 114 Am. St. 427, 103 N.W. 137, 8 Ann. Cas. 430; State v. Cross, 42 W.Va. 253, 24 S.E. 996.)

A defendant in a homicide trial is entitled to a positive instruction to the jury that suspicion or probability of the guilt of the prisoner is not sufficient to convict, and such instruction, when asked, should be given. (12 Cyc. 623-627.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, for Respondent.

In the absence of evidence, it will be presumed that the instructions requested and refused, even if correct in themselves, had no application to the evidence. (1 Hayne, New Trial and Appeal, sec. 130; People v. Mooney, 2 Idaho 17 (24), 2 P. 876; People v. Woods, 2 Idaho 364 (334), 16 P. 551; State v. Watkins, 7 Idaho 35, 41, 59 P. 1106.)

When the evidence is not brought before the reviewing court, and error is predicated upon the refusal of the trial court to give certain requested instructions, it at once becomes a question as to what ground the refusal of the trial court was based upon. Instructions must be pertinent to the evidence. (People v. Ah Too, 2 Idaho 44 (46), 3 P. 10; Territory v. Evans, 2 Idaho 425 (391), 17 P. 139; State v. Peck, 14 Idaho 712 (719), 95 P. 515.)

STEWART, J. Sullivan, J., concurs, AILSHIE, C. J., Concurring in Conclusion.

OPINION

STEWART, J.

The appellant was charged by the prosecuting attorney of Oneida county upon an information filed by the county attorney on the 10th day of June, 1912. The information charges the appellant with the crime of having wilfully murdered one William Bicknell. The trial was had and the appellant was convicted and sentenced to the penitentiary for not less than ten years nor more than forty-five years.

The appellant assigns as error on this appeal the failure of the court to give instructions Nos. 12, 13, 14, 15, 19 and 20, at the request of the appellant.

Before taking up these instructions we desire to call attention to the fact that the evidence has not been brought to this court in the record. The record does contain, however, the instructions that the trial court gave to the jury and the instructions of the trial court clearly cover the law governing the charge in the information, and this court will presume the instructions applied to the evidence in the case. Hayne, New Trial and Appeal, vol. 1, sec. 130, states the rule: "Under this rule, if the evidence given at the trial be not in the record, it will be presumed that the instructions given were justified by the evidence, and that instructions refused, even if correct in themselves, had no application to the evidence."

In the case of People v. Mooney, 2 Idaho 17 (24), 2 P. 876, this court in the syllabus said: "Upon an appeal from a judgment of conviction in a criminal case, in the absence of the evidence, the instructions will be presumed correct, if under any possible state of the evidence, the instructions were authorized." The rule announced above is practically followed in People v. Woods, 2 Idaho 364 (334), 16 P. 551. In the case of State v. Watkins, 7 Idaho 35, 59 P. 1106, this court considered the giving of an instruction and used the following language: "As an abstract proposition of law, it may be that this instruction is erroneous, or at least would be so considered upon a given state of the evidence in the case. But none of the evidence is before us, and in its absence we cannot presume such a condition of the evidence as would make the giving of the instruction prejudicial error."

In the case of People v. Ah Too, 2 Idaho 44 (46), 3 P. 10 the court says: "The ruling of the court in refusing this instruction might be sustained on other...