State v. Hewitt

• Citation: 73 Idaho 452,254 P.2d 677
• Decision Date: 03 February 1953
• Docket Number: No. 7914,7914
• Parties: STATE v. HEWITT.
• Court: United States State Supreme Court of Idaho

Page 677

254 P.2d 677

73 Idaho 452

STATE v. HEWITT.

No. 7914.

Supreme Court of Idaho.

Feb. 3, 1953.

Rehearing Denied March 31, 1953.

Jack M. Murphy, Shoshone, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Joseph McFadden, Pros. Atty., Hailey, for respondent.

THOMAS, Justice.

Appellant was charged with and convicted of burglarizing the Kilpatrick Bros. Co. general store at Picabo, Blaine County, Idaho, in the nighttime on or about January 1, 1952.

A complete inventory of the merchandise in the store had been taken on Sunday, December 30, 1951. The store was open for business as usual the following day. On Tuesday, January 1, 1952, the store was closed. Mr. Atkinson, the store manager, was in the store on that day at about 5:30 P.M. to take care of the stoker. He examined the store at that time and found nothing out of order or missing. The following morning about 7 o'clock it was determined that the store had been burglarized and considerable merchandise taken. Most of this merchandise was found in the possession of the appellant and one Don Stone at Ogden, Utah, where they resided, on or about January 11, 1952. The evidence, so far as material, relative to the circumstances concerning and the evidence given about such possession will be discussed later in connection with specific errors assigned.

On December 31, 1951, defendant and Stone drove to Ketchum, Idaho, in a Buick car owned by defendant; they came by way of Pocatello and Arco. Defendant testified that they also went to Shoshone and that he thought he remembered a town by the name of Carey enroute but did not remember Picabo; defendant further testified they did not stop enroute between Arco and Ketchum nor did they seek any information about directions, although he was under the impression they stopped somewhere to get gasoline.

In accounting for their time and actions while at Ketchum and Sun Valley, defendant testified they looked around the first night, arose late the next day and that evening about 7 o'clock he let Stone take his car to pick up a date; that Stone returned between midnight and one o'clock and they then returned to Ogden over the same route they had taken in going, without stopping until within forty miles of Ogden; Stone did the driving and defendant slept most of the way; they arrived in Ogden the morning of January 2, 1952; defendant fixed the time as between 6 and 7 o'clock A.M., while Stone fixed the time at about 8 o'clock A.M.

They drove to the home of defendant who got out and Stone then drove the car to his home, returning to the home of defendant later in the day. Upon his return, so defendant testified, he advised he had purchased some merchandise which he had in the trunk of the car at that time and, upon request, defendant agreed to help him sell it; all of the merchandise was taken from the car and placed in the home of defendant; some of the merchandise was sold by defendant and Stone, defendant receiving payment therefor; later, under authority of a search warrant, much of this merchandise was taken into possession by the officers of Ogden, Utah. Stone testified that he ran into two men in Ogden on the afternoon of January 2, 1952, whom he had seen in Sun Valley and that he purchased the merchandise from them. Other aspects of the testimony will be further related and discussed in connection with the errors assigned.

On appeal from the judgment of conviction appellant assigns as error the action of the court in overruling appellant's objection to the admission of certain testimony; also in refusing to give an instruction as requested by appellant and also makes numerous assignments of error directed at the insufficiency of the evidence to support the verdict and judgment.

Following the introduction of evidence of the burglary which occurred after 5:30 P.M. on January 1, 1952, and prior to 7:00 A.M. January 2, 1952, the State's case in chief was further developed by testimony concerning the identity and location of the merchandise which was taken from the home of defendant under search warrant on January 11, 1952; the officers of Ogden, Utah, as State witnesses, testified that defendant first denied that he knew anything about the property or that any of it was in his possession; that he stated to the officers that he did not return to Ogden with Stone but that he hitch-hiked (he admitted on the witness stand that he did not hitch-hike but that he returned to Ogden in his own car and with Stone); these officers further testified that defendant on further questioning admitted possession of the goods and that he had received the property from Stone innocently and only for the purpose of helping Stone sell it; that he did not know the property was stolen; the officers testified further that among the articles recovered were some billfolds found in the glove compartment of defendant's car, also a gun hidden in his garage which, upon questioning, he located and gave to the officers, and an electric blanket which was found on a bed in his house.

It is urged that the court erred in overruling the objection of defendant to the evidence of the witness Atkinson called on rebuttal on the ground it was not proper rebuttal, but impeaching without proper foundation.

As to this matter, Atkinson testified that he saw Stone in the court room in Ogden, Utah, several days after the robbery, where he was being arraigned for burglary committed in Ogden; he was then asked if he had ever seen Stone previously; following his affirmative answer a general objection to such line of questioning was made on the ground that it was only collateral and without bearing on the case; in the absence of the jury the prosecuting attorney stated that he made the offer of proof purely for the purpose of impeachment; that appellant had in effect testified that he had never been through Picabo; that the witness Atkinson had identified Stone in Ogden and that he would testify that he also saw Stone in the store at Picabo on the night defendant and Stone were together enroute to Sun Valley. The court then overruled the objection and the witness proceeded to testify that he saw Stone in his store on December 31, 1951 between 6 and 6:30 P.M.; that Stone was then driving a dark Buick car and there were two other persons in it; that Stone came into the store and asked if he were on the road to Sun Valley and also inquired how far it was to Sun Valley.

It is urged that the ruling of the court in admitting such evidence constituted reversible error for the reason that such was impeachment evidence and was offered for impeachment purposes without laying a proper foundation and otherwise without complying with the statute, Sec. 9-1210, I.C.; that such testimony was not rebuttal and did not contradict the testimony of defendant; that it was upon matters immaterial and collateral.

Stone's testimony did not reveal the entire route taken in going from Ogden to Sun Valley and return; his testimony is to the effect that he and the defendant travelled through Pocatello and Arco but he offered no testimony as to the route taken from Arco to Sun Valley. On returning to Ogden, his statement is to the effect they returned the same way they came up. The defendant testified that they went from Ogden to Sun Valley in his car by way of Pocatello, Arco and Shoshone and that they returned the same way; he further in effect testified they did not go through Picabo and they did not stop enroute between Arco and Ketchum nor did they seek any information about directions, although he was under the impression they stopped somewhere for gasoline, and that they did not stop in returning to Ogden until they were within forty miles of Ogden; Stone fixed the time of arrival at Sun Valley as about 6 o'clock P.M. while the defendant fixed it as the afternoon of December 31, 1951, and the operator of the motel at which they registered fixed the time as in the evening of that day; Atkinson, when called on rebuttal, testified that Stone, whom he had identified, was driving a dark Buick car and that he stopped at the store between 6 and 6:30 on the evening of December 31, 1951, and made inquiry as to whether or not he was on the proper road to Sun Valley and also as to what the distance was; Atkinson further testified that when the car stopped near the store there were two other people in it and that Stone was the driver of the car.

Rebutting evidence is that which is given to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party, State v. Mundell, 66 Idaho 339, 158 P.2d 799; State v. Martinez, 43 Idaho 180, 250 P. 239; State v. Mushrow, 32 Idaho 562, 185 P. 1075; State v. Silva, 21 Idaho 247, 120 P. 835; either the prosecution or the accused is ordinarily entitled to rebut the evidence of the other by any competent testimony which explains, counteracts, repels or disproves such testimony, State v. Ayres, 70 Idaho 18, 211 P.2d 142; State v. Mundell, supra; State v. Orr, 53 Idaho 452, 24 P.2d 679; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v. Fox, 52 Idaho 474, 16 P.2d 663; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Martinez, supra; State v. Mushrow, supra; 23 C.J.S., Criminal Law, § 1050, p. 450.

Courts take judicial notice of towns and villages, their location and the distance between them, Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707; 31 C.J.S., Evidence, § 33(e), p. 587; Picabo is located a short distance north and west of Carey and on a direct and the shortest route to Ketchum, on an improved highway some 32 miles distant; to go by way of Shoshone would necessitate 54 additional miles of travel; defendant testified that they arrived at Ketchum in the afternoon; Stone established the time of arrival as about 6 o'clock P.M.; the operator of the motel fixed the time of registration as the evening of December 31, 1951. If they were in Picabo between 6 and...