State v. Harris

• Decision Date: 12 November 1910
• Citation: 111 P. 406,18 Idaho 620
• Parties: STATE, Respondent, v. FRED HARRIS, Appellant
• Court: Idaho Supreme Court

111 P. 406

18 Idaho 620

STATE, Respondent, v. FRED HARRIS, Appellant

Supreme Court of Idaho

November 12, 1910

CRIMINAL LAW-BURGLARY-INSUFFICIENCY OF EVIDENCE-REQUESTED INSTRUCTIONS-INSTRUCTIONS GIVEN BY COURT ON ITS OWN MOTION-EXCEPTIONS TO.

(Syllabus by the court.)

1. The evidence held sufficient to support the verdict.

2. Where no exception is taken to the introduction of certain evidence and the admission thereof is not specified as error in the assignment of errors in appellant's brief, the admissibility of such evidence will not be passed upon on appeal.

3. Held, that the court did not err in refusing to give certain instructions requested by the defendant.

4. Under the provisions of sec. 7940, Rev. Codes, instructions given by the court on its own motion will not be reviewed on appeal unless exception thereto is duly taken and embodied in a bill of exceptions.

APPEAL from the District Court of the Third Judicial District of Ada County. Hon. Fremont Wood, Judge.

Defendant was convicted of the crime of burglary. Verdict and judgment sustained.

Affirmed.

G. G Adams, and Harry Keyser, for Appellant.

When the circumstances upon which a verdict is based can be as reasonably explained upon some other reasonable hypothesis than that of the defendant's guilt, or as perfectly consistent with the defendant's innocence, then a new trial should be granted. (State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Marquardsen, 7 Idaho 352, 62 P 1034.)

To authorize a conviction on circumstantial evidence alone, the facts and circumstances shown by the evidence must be incompatible upon any reasonable hypothesis with the innocence of the accused. (State v. Levy, 9 Idaho 483, 75 P. 227.)

Mere suspicions or probabilities, however strong, are insufficient to convict of crime. There must be substantial testimony. (State v. McCarthy, 36 Mont. 226, 92 P. 521; 14 Cent. Dig. 1263-1266.)

D. C McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants, for the State, cite no authorities.

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

The defendant with three other defendants was charged with the crime of burglary alleged to have been committed on November 29, 1909. Upon arraignment the defendants demanded separate trials, which were granted, and upon the trial of defendant Harris, he was found guilty as charged in the information, and was thereafter, on December 4th, 1909, sentenced by the court to be confined in the state penitentiary for a term of not less than ten years nor more than twenty-five years. A motion for a new trial was overruled, and this appeal is from the judgment and order denying a new trial.

The errors relied on go to the insufficiency of the evidence to justify the verdict, the refusal of the court to give certain instructions requested by the defendant, and to certain instructions given by the court on its own motion.

It is contended by counsel for appellant that the evidence fails to identify the defendant as one of the persons who committed the offense charged in the information, and fails to connect the defendant with such crime, and that the evidence, taken as a whole, shows that the jury in arriving at a verdict accepted the conclusions of the witnesses in regard to the circumstances surrounding the crime charged, and based their verdict upon such conclusions and not upon the facts and circumstances related...