State v. Hoagland

• Decision Date: 05 July 1924
• Citation: 39 Idaho 405,228 P. 314
• Parties: STATE, Respondent, v. DAVID L. HOAGLAND, Appellant
• Court: Idaho Supreme Court

228 P. 314

39 Idaho 405

STATE, Respondent, v. DAVID L. HOAGLAND, Appellant

Supreme Court of Idaho

July 5, 1924

CRIMINAL LAW-HOMICIDE-INSANITY-MOTION FOR CHANGE OF VENUE-MOTION FOR CONTINUANCE-ABSENCE OF WITNESSES-SHOWING-DISCRETION OF TRIAL COURT-VOIR DIRE EXAMINATION-JURORS-BIAS-REJECTION OF JURORS-PREJUDICE-INDORSEMENT OF NAME OF WITNESS ON INFORMATION DURING TRIAL-DUE DILIGENCE-EVIDENCE - EXPERT AND NONEXPERT WITNESSES - NEW TRIAL - NEWLY DISCOVERED EVIDENCE-INSTRUCTIONS-APPEAL-RECORD-REVIEW.

1. To require a change of venue under C. S., sec. 8888, providing for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the information is filed, it must appear that the prejudice against the accused is so great as to prevent a fair and impartial trial, and it is not sufficient to show merely that great prejudice exists against him.

2. A motion for change of venue is addressed to the sound discretion of the trial court and its ruling thereon will only be disturbed where it affirmatively appears that such discretion has been abused.

3. An application for continuance is addressed to the sound judicial discretion of the trial court and its ruling will not be disturbed unless such discretion is abused. Showing in support of application for continuance examined, together with other matters ap- pearing in the record and held insufficient to justify the granting of the relief sought.

4. It is improper to ask a venireman whether he would be governed by an assumed principle of law if so instructed by the court as the juror is bound, under C. S., sec. 8971, to take the law as given by the court.

5. The scope of a voir dire examination of veniremen by counsel in a criminal case is a matter which rests in the sound discretion of the trial court. Certain questions propounded to veniremen considered and found to be beyond what is pertinent and proper in such examination, but held that prejudicial error was not committed.

6. Where, in a prosecution for homicide, the only contested issue was whether or not defendant was insane at the time he killed deceased, and a juror objected to on the ground of bias was not interrogated as to such issue, the fact that he stated that he had an opinion with regard to the case which it would take evidence to remove, which opinion had been formed from newspaper reports of the homicide and from statements made by others, was insufficient to establish his disqualification.

7. No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that the cause has been tried by an impartial jury, and where several peremptory challenges were waived by the prosecution, upon any one of which the prosecution might have excused the venireman, the defense cannot complain that the court sustained the challenge, especially where reasonably sufficient grounds existed therefor.

8. Where counsel for the prosecution requested a witness to point out on his (counsel's) body the places where the bullet entered the body of deceased and where it came out the objection of appellant thereto was properly overruled.

9. Under C. S., sec. 8810, requiring the prosecuting attorney to indorse on the information the names of all witnesses known to him, at the time of filing the same, and at such time before the trial of any case, as the court may rule or otherwise prescribe, indorse thereon the names of such witnesses as shall then be known to him, it was not error to permit the prosecuting attorney to indorse the name of a witness on the information after the commencement of the trial, where it is shown that such witness was unknown to him prior to that time, especially where it is only discovered upon the voir dire examination of a venireman that he is a material witness for the prosecution and due diligence is used in asking permission to indorse his name on the information.

10. Where a venireman testified on his voir dire examination that he had had conversations with the accused relative to the deceased, and his name was permitted to be indorsed on the information by the court, and his testimony showed that accused was the only one present at these conversations, and accused had one day in which to prepare for and meet such testimony, a motion for a continuance on the ground of surprise was properly denied, especially where an insufficient showing of surprise was made.

11. Where a witness was called as an expert by the defendant, who testified that he had had nothing more than a casual acquaintance with the defendant, had never examined him nor treated him for any illness and whose qualifications as an expert were not shown and who testified merely that accused might have a pressure on the nerve centers or centers of control of the brain as a result of an injury received prior thereto, such witness was incompetent to testify as an expert as to accused's insanity at the time of the homicide where it is not shown by competent evidence that such pressure on the brain would cause insanity.

12. Held, that where evidence was introduced as to nervousness of the right arm of accused as a result of an injury but such condition was not shown by competent evidence to indicate insanity, a motion to strike the evidence relating to the injured arm was properly sustained.

13. It is not error for the court to refuse to give an instruction requested by the defendant where the same is fully covered by the instructions given.

14. Held, under the facts of this case, that the showing in support of the motion for a new trial upon the ground of newly discovered evidence was insufficient and that the motion was properly denied.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. B. S. Varian, Judge.

Judgment of conviction of murder in the first degree and sentence of death. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Carl A. Burke, Barber & Barber and Eldridge & Hiler, for Appellant.

Failure to grant defendant's motion for change of venue was an abuse of the trial court's discretion. (Art. 1, secs. 7, 18, Const.; C. S., sec. 8888; State v. Lundhigh, 30 Idaho 365, 164 P. 690, 694; People v. Suesser, 132 Cal. 631, 64 P. 1095; State v. Perkins, 36 S.D. 579, 156 N.W. 73; State v. Crafton, 89 Iowa 109, 56 N.W. 257; Richmond v. State, 16 Neb. 388, 20 N.W. 282; Cox v. State, 90 Tex. Cr. 106, 234 S.W. 72; State v. Weisengoff, 85 W.Va. 271, 101 S.E. 450; Streight v. State, 62 Tex. 453, 138 S.W. 743; Coffman v. State, 62 Tex. Cr. 88, 136 S.W. 779; People v. Pfanschmidt, 262 Ill. 411, Ann. Cas. 1915A, 1171, 104 N.E. 804; Tennison v. State, 79 Miss. 708, 31 So. 421, and cases cited; 16 C. J. 203.)

The following question properly states the law: "If the defendant should introduce evidence as to his insanity, which evidence is sufficient to raise in your mind a reasonable doubt, would you then require the state to prove he were sane beyond a reasonable doubt, if the court should instruct you that was the law?" And the court's action in sustaining state's objection thereto was prejudicial to the rights of the defendant. (State v. Larkins, 5 Idaho 200, 211, 47 P. 945; State v. Shuff, 9 Idaho 115, 72 P. 664; State v. Hurst, 4 Idaho 345, 39 P. 554; State v. Wetter, 11 Idaho 450, 83 P. 341; State v. Rogers, 30 Idaho 271, 163 P. 912; Underhill, Crim. Evidence, p. 324; Davis v. United States, 160 U.S. 469-483, 16 L.Ed. 353, 40 L.Ed. 499; 2 Bishop's Crim. Procedure, 2d ed., sec. 1049.)

Jurors Boyd Smith, G. E. Scheline, Henry Cross, Theodore Hoff and Clayton Downend were clearly disqualified under C. S., secs. 8930, subd. 8, and 8939; and the court's action in disallowing defendant's challenge to said jurors was prejudicial error and in violation of his constitutional right to a fair and impartial jury. (Art. 1, secs. 7 and 18, Const.; State v. Caldwell, 21 Idaho 663, 123 P. 299; People v. Sullivan, 59 Cal.App. 633, 211 P. 467; People v. Khairdim, 39 Cal.App. 695, 179 P. 713; People v. Wells, 100 Cal. 227, 34 P. 719; People v. Riggins, 159 Cal. 113, 112 P. 862; People v. Helm, 152 Cal. 532, 93 P. 99; People v. Miller, 125 Cal. 44, 57 P. 771; People v. Weil, 40 Cal. 268; People v. Johnston, 46 Cal. 78; People v. Edwards, 41 Cal. 641; People v. Gehr, 8 Cal. 354; Coughlin v. People, 38 Mich. 739; State v. Brown, 15 Kan. 400; People v. Casey, 96 N.Y. 115; Gallagher v. State, 40 Tex. Cr. 296, 50 S.W. 388; State v. Williams, 28 Nev. 395, 82 P. 353; State v. Dwyer, 29 Nev. 421, 91 P. 305; State v. Roberts, 27 Nev. 449, 77 P. 598; State v. Salgado, 38 Nev. 64, 145 P. 920, 150 P. 764; Conway v. Quinton, 1 Utah 215; Childs v. State, 45 Ark. 165; 16 R. C. L. 261, par. 79; 17 Ency. Proc. & Prac., p. 375.)

Relationship of juror with one of witnesses subpoenaed by defendant is not ground for challenge because of implied bias. (C. S., sec. 8930; State v. Gordon, 5 Idaho 297, 48 P. 1061.)

It was improper to permit prosecution to subpoena juror when called to jury-box and then sustain challenge for an implied bias directed at such juror. (C. S., sec. 8930; 16 R. C. L., p. 262, par. 79.)

It was error to permit the indorsement of the name of a material witness on the information after the trial had started without allowing defendant sufficient time to prepare defense. (C. S., sec. 8810; State v. Wilmbusse, 8 Idaho 608, 70 P. 849; State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Barber, 13 Idaho 65, 88 P. 418; Gandy v. State, 24 Neb. 716, 40 N.W. 302, 44 N.W. 108; Stevens v. State, 19 Neb. 647, 28 N.W. 304; Sweenie v. State, 59 Neb. 269, 80 N.W. 815.)

A practicing physician shown to have had experience in brain diseases is competent to give an opinion as to the...