State v. Hargraves

Decision Date06 November 1940
Docket Number6776
PartiesSTATE, Respondent, v. J. BRITT HARGRAVES, Appellant
CourtIdaho Supreme Court

Rehearing denied December 11, 1940.

HOMICIDE-DEGREE OF CRIME-QUESTION FOR JURY-WITNESSES-CROSS-EXAMINATION-DISCRETION OF TRIAL JUDGE-CRIMINAL LAW-CONSCIOUSNESS OF GUILT-FLIGHT-ACTS AFTER ARREST-EVIDENCE-INSTRUCTIONS-REVIEW.

1. Cross-examination of witness is largely within discretion of trial judge.

2. Unless discretion of trial judge is abused in allowing cross-examination to go beyond matters testified to on direct examination or connected therewith, it will not be held to be error.

3. In prosecution for murder of village marshal who had been called to home of defendant's parents-in-law, where defendant on direct examination testified that he did not know the marshal, that he did not know that there was any trouble, and that he had had no trouble with his wife or members of her family, permitting state on cross-examination of defendant to elicit evidence tending to show that trouble existed and had existed for some considerable period of time between defendant, his wife, and members of her family, was not error.

4. The purpose of all "cross-examination" is to weaken or show the untruthfulness of the testimony of the party examined or the party's bias or prejudice.

5. In murder prosecution, defendant offering himself as witness became subject to cross-examination regarding all matters of fact and circumstances leading up to and surrounding the commission of the homicide and connected therewith or related thereto.

6. Where a defendant in a criminal trial voluntarily takes the witness stand in his own behalf, he is subject to the same rules applicable to other witnesses and may be cross-examined in regard to all matters to which he has testified on his direct examination or connected therewith. (I. C. A., sec 16-1205.)

7. In prosecution for murder of village marshal who had been called to home of defendant's parents-in-law, evidence, that immediately following the fatal shooting defendant hurriedly left his automobile, ran across street into an adjacent lot that he telephoned the home of the parents-in-law within ten minutes, that he took a taxi after leaving a grocery store from which call was made and was let out on university campus, that he then went to the home of another where he remained for approximately two hours and then went to building in course of construction, where he was located and taken into custody after the exchange of shots with and the wounding of two officers, was admissible as evidence of flight tending to show guilty conscience.

8. In homicide cases, evidence of flight is admissible even though homicide is admitted.

9. In homicide case, the conduct and declarations of a defendant at the time of arrest are competent evidence.

10. In murder prosecution, evidence that defendant had obtained from outside of jail a shaving brush in which was concealed a bullet and four grains of morphine, introduced to establish an attempt on part of defendant to escape from jail or to commit suicide while confined therein, was admissible for purpose of showing consciousness of guilt.

11. In murder prosecution, the question of the degree of the crime is one exclusively for the jury, and its determination of such question will not be disturbed where there is any substantial evidence to support it. (I. C. A., sec. 19-2012.)

12. Evidence sustained conviction of first degree murder.

13. In prosecution for murder of village marshal who had been called to home of defendant's parents-in-law, where evidence showed that marshal undertook to secure possession of defendant's gun or to disarm defendant, and that defendant resisted, whether marshal used more force than necessary, what the condition of defendant's mind was toward the marshal, and whether killing of marshal was accompanied with malice, were questions of fact for the jury.

14. Instructions must be read, considered, and applied as a whole.

15. In murder prosecution, instruction to effect that the instructions were to be considered together and as a whole was proper.

16. In murder prosecution, instruction defining word "malice" which contained a typographical error was not error in view of a further instruction defining malice.

17. In murder prosecution, instruction regarding murder in first degree was not misleading because of absence of words "deliberately" and "premeditatedly" in view of other instructions, which cautioned jury that before it could find defendant guilty of murder in first degree it must be satisfied beyond reasonable doubt that defendant unlawfully, feloniously, deliberately, and premeditatedly and with malice aforethought killed the deceased.

18. In first degree murder prosecution, instruction regarding burden of proof in mitigation was not erroneous.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. C. J. Taylor, Presiding Judge.

Conviction of crime of first degree murder. Affirmed.

Affirmed.

Black &amp Black and Merrill & Merrill, for Appellant.

It is reversible error to admit evidence concerning the acts of the defendant subsequent to the shooting unless they are so closely related as to form a part of the res gestae. (State v. Taylor, 7 Idaho 134, 61 P. 288; People v. Ah Choy, 1 Idaho 317; 8 R. C. L. 192, sec. 188; vol. 1, Wharton's Crim. Ev. 494; People v. Lane, 100 Cal. 379, 34 P. 856; State v. Stallings, 142 Ala. 112, 38 So. 261; Cole v. State, 125 Ga. 276, 53 S.E. 958.)

Evidence of flight by the defendant who admits that the fatal bullet came from his gun is useless; and can only be resorted to for the purpose of determining who did the act and cannot be resorted to for the purpose of fixing the crime or grade of crimes. (People v. Ah Choy, supra; People v. Cismadija, 167 Mich. 210, 132 N.W. 489; 8 R. C. L. 192, sec. 188; Williams v. State, 43 Tex. 182, 23 Am. Rep. 590.)

Cross-examination of the defendant in a criminal case is limited to that scope of examination covered on his direct examination and may not be extended to include wholly new and entirely different facts and circumstances about which no inquiry was made on direct. (Sec. 16-1205, I. C. A. 1932; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Smailes, 51 Idaho 321 at 331, 5 P.2d 540; State v. Larkins, 5 Idaho 200-212, 47 P. 945; State v. Gruber, 19 Idaho 692-704, 115 P. 1.)

The humane provision of the law that a party shall not be compelled to be a witness against himself remains in full force, and is as effectually violated when the cross-examination of the accused is extended beyond the facts to which he has testified as it would be if he were to be called and made to testify for the state. (State v. Lurch, 12 Ore. 99, 6 P. 408; art. 1, sec. 13, Idaho Const., 5th Amendment of U. S. Const.; State v. McLaughlin, 76 Mo. 320; State v. Saunders, 14 Ore. 300, 12 P. 441; State v. Knox, 98 S.C. 114, 82 S.E. 278; De Lerosa v. State, 74 Tex. Cr. Rep. 604, 170 S.W. 312; State v. Miller, 75 W.Va. 591, 84 S.E. 383.)

It is error to define murder in the first degree in an instruction to the jury without including the words "deliberately" and "premeditately" which are essential and indispensable elements in the crime of murder in the first degree, used as articles of escape, is error of a highly prejudicial na-(Secs. 17-1101, 17-1102, 17-1103.)

Introduction of incompetent, irrelevant and immaterial evidence of a highly inflammatory character such as the shaving brush, morphine tablets and cartridge found in defendant's possession four months after date of offense charged and on cross-examination of defendant who had not testified to any facts concerning the same in direct examination and failing to show by any other evidence any connection between the same and the offense on trial, and secondly failing to offer any evidence as to the purpose of any unlawful purpose defendant may have had in the possession or use thereof, the said articles not being articles which per se are ordinarily used as articles of escape, is error of a highly prejudicial nature. (State v. Kehr, 133 Iowa 35, 110 N.W. 149; People v. Yee Fook Din, 106 Cal. 163, 39 P. 530; Sorenson v. United States, 168 F. 785, 94 C. C. A. 181.)

J. W. Taylor, Attorney General, and R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.

In a murder case evidence of flight is admissible, even though the homicide is admitted. (State v. Lyons, 7 Idaho 530, 64 P. 236; State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Davis, 6 Idaho 159, 53 P. 678; State v. Baird, 13 Idaho 29, 88 P. 233; affirmed 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; State v. Bush, 50 Idaho 168, 295 P. 432.)

Conduct and declarations of defendant at time of arrest is competent evidence. (16 C. J. 553, sec. 1070; State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871.)

Where a defendant in a criminal trial takes the witness stand in his own behalf, he is subject to the same rules applicable to other witnesses and may be cross-examined in regard to all matters to which he has testified on his direct examination or connected therewith. (State v. Cox, 55 Idaho 694, 46 P.2d 1093; State v. Van Vlack, 57 Idaho 316, 65 P.2d 736; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Silva, 21 Idaho 247, 120 P. 835.)

The question of the degree of crime is one exclusively for the jury, and its determination in this respect will not be disturbed when there is any substantial evidence to support it. (Sec. 19-2012, I. C. A.; People v. Wells, 10 Cal. (2d) 610, 76 P.2d 493; People v. McNeer, 14 Cal.App. (2d) 22, 57 P.2d 1018; State v. Levy, 9 Idaho 483, 75 P. 227; State v. Fleming, 17 Idaho 471, 106 P. 305.)

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