State v. Hardy

Decision Date20 November 1895
PartiesSTATE v. HARDY
CourtIdaho Supreme Court

SUBDIVISION 4 OF SECTION 7730 OF THE REVISED STATUTES CONSTRUED.-When defendant was arrested after finding of indictment, to avail herself of the benefits of subdivision 4 of section 7730 of the Revised Statutes it is incumbent that the facts set forth in her motion should be supported by proof, at least to the extent of defendant's oath, or verification.

CIRCUMSTANTIAL EVIDENCE-VERDICT-CONFLICT OF TESTIMONY.-When all the evidence in a criminal case, although circumstantial, "taken as a whole, and giving them their reasonable and just weight, and no more, to a moral certainty exclude every other hypothesis except that of the guilt of the accused," the verdict of the jury will not be disturbed on the ground of conflict of testimony.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed.

Goode &amp Orland, for Appellant.

Where the evidence to convict defendant upon trial for murder is circumstantial the evidence must be of a conclusive nature and is insufficient unless they exclude every other supposition. (Casey v. State, 20 Neb. 138, 29 N.W 273; Starkey on Evidence, 10th ed., 863; People v. Padilliac, 42 Cal. 540; People v. Phillips, 39 Cal. 333; Kaiser v. State, 35 Neb. 704, 53 N.W. 610; Kennedy v. State, 31 Fla. 428, 12 So. 858; Dreessen v. State, 38 Neb. 375, 56 N.W. 1024.) The defendant having been indicted by the grand jury without having first had a preliminary examination, and being held to answer before the grand jury, had no opportunity to exercise her right of challenge until arraignment, and before pleading, and this right she then claimed, by interposing a challenge to each individual grand juror, and by motion to set aside the indictment, and for leave to prove the challenge by an examination of the grand jurors individually, as we claim she had a right to do, under the provisions of the Criminal Code. (Rev. Stats., sec. 7730, subd. 4.) The defendant was unlawfully forced upon her trial, under a void indictment. (People v. Beatty, 14 Cal. 567; People v. Turner, 39 Cal. 376.)

George M. Parsons, Attorney General, for the State.

All facts that go to sustain or impeach a hypothesis, logically pertinent, are admissible. (Wharton's Criminal Evidence, sec. 23.) Under our statute the court has no power to direct an acquittal. Such a direction would be a clear invasion of the province of the jury. (Rev. Stats., sec. 7877; People v. Horn, 70 Cal. 17, 18, 11 P. 470; People v. Bennett, 49 N.Y. 137-140; People v. Barnes, 2 Idaho 161, 9 P. 532.) No attempt was made to incorporate the motion to set aside the indictment in a bill of exceptions. Objections, which would have been ground for challenge, if interposed at the proper time, must be taken advantage of after indictment is found by motion to set aside. (Rev. Stats., sec. 7730.) A motion to bring the grand jury into court is not a motion to set aside. (People v. Turner, 39 Cal. 370-372; Rev. Stats., secs. 7730, 7609.) The statute, having prescribed the grounds upon which a motion to set aside an indictment may be made, all other grounds are excluded. (People v. Butler, 1 Idaho 231; Priest v. State, 10 Neb. 393, 3 N.W. 468.) The verdict of the jury or the decision of the lower court will not be disturbed, on the ground that it is not supported by the evidence, where the evidence is conflicting. (People v. Klumpke, 41 Cal. 263; People v. McCurdy, 68 Cal. 576, 10 P. 207; People v. Clark, 84 Cal. 573, 24 P. 313; United States v. Camp, 2 Idaho 231, 10 P. 226; People v. Ah Hop, 1 Idaho 698; State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The defendant was convicted of murder in the second degree at the February term, 1895, of the district court of Latah county by causing the death of one Henrietta Hardy, an adopted child of the defendant, of about the age of two years, by poison. The crime is alleged to have been committed on the tenth day of February, 1895. The indictment was found on the 14th of February, 1895. Defendant was not in custody until after the finding of the indictment. On the 16th of February, 1895, defendant's counsel, upon defendant's arraignment, moved the court to order the grand jury which had found the indictment to be brought into court, to be examined "as to their qualifications, both as a body and as individual members thereof." On the 18th of February, 1895, said motion was overruled by the court, and thereupon defendant's counsel interposed a challenge to certain members of said grand jury, naming them, upon the ground that "each and every one of them had formed an unqualified opinion as to the guilt of this defendant before the examination by them of the case as grand jurors; and for the reason that some of the members of the grand jury had been spoken to by outside parties, not under oath, and other than the district attorney of this district, in reference to the case, and prior to the time when the case was taken up by the grand jury for investigation; and that as to some of the members of the grand jury a state of mind existed prior to the examination of this case which would prevent them from acting impartially and without prejudice to the rights of this defendant; and to substantiate the foregoing ground of challenge, defendant, by her attorneys, asks that the said grand jury be summoned, and ordered to appear in court, to be examined as to the causes of challenge"--all of which was denied and overruled by the court. To this action of the court exception was taken by defendant. Appellant bases her exception to the ruling of the court upon the provisions of section 7730 of the Revised Statutes of Idaho which is as follows: "The indictment must be set aside by the court in which the defendant is arraigned, upon his motion in either of the following cases: . . . . Subd. 4. When the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror." Usually this question was brought before the court by plea in abatement, though under our statutes it may be presented by motion. Still, although the particular manner of raising the question has been changed under our practice, we apprehend it was never the intention of our lawmakers to do away with the essential requisites. The plea in abatement was required to be supported by proof, at least to the extent of the oath of the defendant, that the grounds set forth in his motion were true. It would not, nor will it under our practice, answer for the defendant to simply file his motion alleging generally, although specifically named in his motion, that certain members of the grand jury were disqualified by reason of having formed an unqualified opinion as to defendant's guilt. The grand jury may have been, and not infrequently is, discharged before the defendant is arraigned, or even arrested; and to require the court to resummon them merely to allow the defendant...

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12 cases
  • State v. Morrison
    • United States
    • Idaho Supreme Court
    • May 19, 1932
    ... ... ( State v. Smailes, 51 Idaho 321, ... 5 P.2d 540; State v. Phinney, 13 Idaho 307, 12 Ann ... Cas. 1079, 89 P. 634, 12 L. R. A., N. S., 935; State v ... Alcorn, 7 Idaho 599, 97 Am. St. 252, 64 P. 1014; ... State v. Schieler, 4 Idaho 120, 37 P. 272; State ... v. Hardy, 4 Idaho 478, 42 P. 507; People v ... Dunn, 1 Idaho 74, 77; People v. Walter, 1 Idaho 386, ... Newly ... discovered evidence is not a ground for a new trial where it ... is cumulative and consisting wholly of impeaching and ... contradictory evidence of the state's witnesses, ... ...
  • State v. McMahan, 6385.
    • United States
    • Idaho Supreme Court
    • January 16, 1937
    ...v. Collins, 4 Idaho 184, 38 P. 38; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Godard, 4 Idaho 750, 44 P. 643; State v. Hardy, 4 Idaho 478, 42 P. 507; State v. Hendel, 4 Idaho 88, 35 P. 836; State v. Hurst, 4 Idaho 345, 39 P. 554; State v. Perry, 4 Idaho 224, 38 P. 655; State v. Sch......
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • January 16, 1937
    ... ... 166; State v ... O'Brien, 3 Idaho (Hasb.) 374, 29 P. 38; State v ... Reed, 3 Idaho (Hasb.) 554, 32 P. 202; State v ... Collins , 4 Idaho 184, 38 P. 38; State v ... Ellington , 4 Idaho 529, 43 P. 60; State v ... Godard, 4 Idaho 750, 44 P. 643; State v. Hardy , ... 4 Idaho 478, 42 P. 507; State v. Hendel, 4 Idaho 88, ... 35 P. 836; State v. Hurst, 4 Idaho 345, 39 P. 554; ... State v. Perry, 4 Idaho 224, 38 P. 655; State v ... Schieler, 4 Idaho 120, 37 P. 272; State v ... Crump, 5 Idaho 166, 47 P. 814; State v. Gordon , ... 5 Idaho ... ...
  • State v. McMahan, 6385.
    • United States
    • Idaho Supreme Court
    • January 16, 1937
    ...v. Collins, 4 Idaho 184, 38 P. 38; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Godard, 4 Idaho 750, 44 P. 643; State v. Hardy, 4 Idaho 478, 42 P. 507; State v. Hendel, 4 Idaho 88, 35 P. 836; State v. Hurst, 4 Idaho 345, 39 P. 554; State v. Perry, 4 Idaho 224, 38 P. 655; State v. Sch......
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