State v. Huff, 6344

Decision Date02 May 1936
Docket Number6344
PartiesSTATE, Respondent, v. DEL RAY HUFF and VIRGIL BARNEY, Appellants
CourtIdaho Supreme Court

CRIMINAL LAW-ROBBERY-INFORMATION, SUFFICIENCY OF-INTENT-EVIDENCE-STATEMENTS OF ACCUSED-POSSESSION OF STOLEN PROPERTY BY WIFE OF ACCUSED-CREDIBILITY OF WITNESS-IMPEACHMENT-QUESTION FOR JURY.

1. Information in language of statute is sufficient.

2. Information in robbery prosecution which was couched in language of and contained all elements recited in statutes defining robbery held sufficient as against contention that public offense was not stated because of failure to charge intent to steal or rob (I. C. A., secs. 17-1305, 17-1306).

3. Alleged erroneous admission of testimony of sheriff and deputy sheriff concerning conversations with defendant accused of robbery, held harmless, where defendant gave in substance same evidence as that contained in conversation (I C. A., secs. 17-1305, 17-1306).

4. Admissibility of statements creating inference of guilt which were made by defendant after his arrest to sheriff in presence and within hearing of codefendant who had not yet been arrested, held for trial court.

5. Alleged erroneous admission of testimony of sheriff concerning statements creating inference of guilt, which were made by defendant after his arrest to sheriff in presence and within hearing of codefendant who had not yet been arrested held harmless, where another defendant subsequently testified to substance of such statements without objection.

6. Proof of possession by accused's wife of bill of denomination involved in robbery is admissible in evidence (I. C. A., secs. 17-1305, 17-1306).

7. Probative value of evidence of possession by accused's wife of bill of denomination involved in robbery is for jury (I. C. A., secs. 17-1305, 17-1306).

8. Admission of $20 bill secured from wife of defendant charged with robbery held not prejudicial, where one $20 bill was among money stolen, the only $20 bill found when money was recovered was that in wife's hands, and the $20 bill with the other money found in defendants' hands aggregated approximate total alleged to have been stolen (I. C. A secs. 17-1305, 17-1306).

9. Instructions defining "robbery" which were in language of statutes and recited all statutory elements of crime, including statement that it was a "felonious" taking of personalty, held not error as against contention that instructions ignored element of intention, since word "felonious" carried with it intent (I. C. A., secs. 17-1305, 17-1306).

10. Omission to charge in greater detail upon particular point cannot be assigned as error, where no instruction on such point was requested.

11. Evidence that money was taken from person of Japanese after he was struck in face and rendered unconscious, and that his money and pistol were thereafter carried away and found concealed when defendants were apprehended, held sufficient to show intention essential to offense of robbery (I. C. A., secs. 17-1305, 17-1306).

12. Credibility of complaining witness in robbery prosecution, and whether he was impeached, held for jury (I. C. A., secs. 17-1305, 17-1306).

13. Secrecy or shielding identity is not element of felonious intent essential to robbery (I. C. A., secs. 17-1305, 17-1306).

14. Theft of personalty which was perpetrated by use of violence or force constituted offense of "robbery" and not "grand larceny" (I. C. A., secs. 17-1305, 17-1306).

15. Existence of mere conflict in evidence will not justify reversal.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Appeal from conviction of crime of robbery. Affirmed.

Affirmed.

W. A. Ricks, for Appellants.

It was incumbent upon the state in this case to prove the corpus delicti beyond a reasonable doubt. The guilt of a person accused of crime cannot rest upon guess, surmise or speculation, but must be proved by evidence establishing, beyond a reasonable doubt, every material element of the crime alleged. (People v. Burke, 313 Ill. 576, 145 N.E. 164; People v. Tratner, 334 Ill. 564, 166 N.E. 34.)

An indictment for robbery, which alleges that the accused voluntarily took the personal property of the prosecutor from his person and against his will, by violence and by putting him in fear of immediate injury, but which fails to charge an intent to steal the property taken, is defective. (Jones v. State, 95 Miss. 121, 48 So. 407; 21 Ann. Cas. 1137, note.)

Instructions as to the elements of robbery, which omit the element of animus furandi or intent to steal, are erroneous. This rule prevails in Georgia, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Pennsylvania, Texas and West Virginia. (21 Ann. Cas. 1143, note; State v. Jones, supra; State v. Oliver, 20 Mont. 318, 50 P. 1018; Sledge v. State, 99 Ga. 684, 26 S.E. 756; State v. Graves, 185 Mo. 713, 84 S.W. 904.)

The confession of Von Hunter on Huff and Barney in their absence was prejudicial to their rights and inadmissible for any purpose. Confessions made by a third person to a witness are hearsay and inadmissible. (10 R. C. L. 958; State v. Crean, 43 Mont. 47, 114 P. 603, Ann. Cas. 1912C, 424; State v. Main, 37 Idaho 449, 216 P. 731.)

The admission in evidence of the confession of Von Hunter on Huff and Barney was prejudicial and of the most damaging nature, and its damaging and prejudicial effect was not removed by the attempt of the court to limit the purpose for which it was received. (State v. Main, supra.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

The information, being in the language of the statute, is sufficient; intent is charged by use of the words "felonious" and "robbery." (People v. Butler, 1 Idaho 231; State v. Keller, 8 Idaho 699, 70 P. 1051; State v. Brill, 21 Idaho 269, 121 P. 79; In re Myrtle, 2 Cal.App. 383, 385, 84 P. 335.)

Error, if any, in admitting incompetent testimony becomes harmless where the fact intended to be proved thereby is fully shown by other evidence introduced without objection. (State v. Reding, 52 Idaho 260, 13 P.2d 253; State v. Martinez, 43 Idaho 180, 250 P. 239; 17 C. J. 322, sec. 3664; State v. Clark, 47 Idaho 750, 278 P. 776.)

There is no error in admitting an admission made to a sheriff by one of several defendants being jointly tried, when its use is restricted to use against the defendant who made the statement. (State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; State v. Wilson, 51 Idaho 659, 9 P.2d 497.)

Proof of possession of a bill of the denomination stolen by the wife of accused is evidence in proof of the animus furandi. ( Buckine v. State, 121 Ga. 337, 49 S.E. 257; Clay v. State, 122 Ga. 136, 50 S.E. 56; Underhill on Criminal Ev., 3d ed., sec. 555.)

BUDGE, J. Givens, C. J., and Ailshie, J., concur. Morgan and Holden, JJ., dissent.

OPINION

BUDGE, J.

Appellants Huff and Barney were charged by information with the crime of robbery, were convicted and sentenced to imprisonment in the state penitentiary for the term of not less than five nor more than ten years.

As related by I. Iriye, a Japanese, appellants came to his place of abode for the stated purpose of inducing him to drink liquor and gamble with them which he refused to do. Appellants then left and returned a short time later making the same requests and while talking to him and following him about the room one of them called him by name and when he turned he was struck in the face and rendered partially unconscious. Upon regaining consciousness Iriye discovered he had been robbed of his money kept in two purses in separate pockets and likewise his pistol. Immediately thereafter the occurrence was reported to the police officers and there is testimony that at this time the Japanese was suffering from a bad looking eye injury and was in an excited condition. Search was immediately instituted and appellants were apprehended in Rigby in an automobile belonging to Von Hunter. Under the front seat of the car was found the pistol of Iriye and $ 105 in bills was found concealed in Barney's right shoe. Iriye had among his currency a $ 20 bill and such a bill was secured from Mrs. Barney and which she had secured from her husband. The defense was to the effect that the visit described took place but that a "crap game" was engaged in and the Japanese lost his money and that no robbery took place.

Numerous errors are assigned, the first being that the information, which is couched in the language of and contains all the elements recited in the statutes defining robbery, fails to state a public offense, because it omits to charge intent essential to a charge of grand larceny. Precisely the same objection was raised and overruled in People v. Butler, 1 Idaho 231, wherein this court said:

"The point urged by the appellant against the indictment is that it nowhere shows 'the intent of the defendant to steal or rob.' This point is not well taken; we think the intent of the defendant to steal or rob clearly and sufficiently appears in the indictment. It charges first a felonious assault upon the person robbed, by the defendant putting him feloniously in bodily fear, thereby the feloniously and violent robbing, taking and carrying away by defendant from his person of the property. The words 'felonious' and 'rob' carry with them the intent and are sufficient."

The information herein recites in part that appellants; "did then and there wilfully, maliciously, forcibly and feloniously take from the person, possession, and immediate presence of I. Iriye, certain personal property, . . . . without the consent and against the will of the said I. Iriye and was then and there accomplished as aforesaid by means of force or fear."

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  • State v. Mcmahan
    • United States
    • Idaho Supreme Court
    • January 16, 1937
    ... ... of State Exhibit B, the same was cured by testimony of ... defendant covering same identical subject matter. ( State ... v. Huff, 56 Idaho 652, 57 P.2d 1080; 31 C. J. 211; ... People v. McAlpine, 25 Cal.App. 727, 145 P. 152.) ... MORGAN, ... C. J. Holden, Ailshie, ... ...
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    ...necessarily adheres to the general rule that a complaint framed in the language of the statute is sufficient. See, State v. Huff, 56 Idaho 652, 57 P.2d 1080 (1936), and cases cited therein. Of course, a complaint drawn in the bare language of the statute may fail to notify a defendant of th......
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