State v. Iverson

• Court: Idaho Supreme Court
• Writing for the Court: Graydon W. Smith, Atty. Gen.; ANDERSON; TAYLOR; KEETON
• Citation: State v. Iverson, 77 Idaho 103, 289 P.2d 603 (Idaho 1955)
• Decision Date: 05 October 1955
• Docket Number: No. 8183,8183
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Joe IVERSON, Defendant-Appellant.

Page 603

289 P.2d 603

77 Idaho 103

STATE of Idaho, Plaintiff-Respondent, v. Joe IVERSON, Defendant-Appellant.

No. 8183.

Supreme Court of Idaho.

Oct. 5, 1955.

Rehearing Denied Nov. 28, 1955.

Charles F. Reddoch, Charles S. Stout, Boise, for appellant.

Graydon W. Smith, Atty. Gen., J. Clinton Peterson, Asst. Atty. Gen., Blaine F. Evans, Asst. Pros. Atty., Boise, Cecil D. Hobdey, Pros. Atty., Gooding, for respondent.

ANDERSON, Justice.

This case was before us previously on the application of the defendant for issuance of a certificate of probable cause and for release of the defendant on bail pending appeal. State v. Iverson, 1954, 76 Idaho 117, 278 P.2d 205.

The present appeal is from the judgment of conviction of the defendant of the crime of lewd or lascivious conduct with a minor or child under the age of sixteen years. I.C. sec. 18-6607.

January 3, 1954, about one o'clock in the afternoon, the girl involved, who was 13 years of age, was on her way home from church when the defendant, age 15, drove up and asked her to go for a ride with him. The evidence is conflicting as to whether or not she voluntarily got into the car or whether he forced her in. They rode around for some time, and finally stopped on a desert road near the Malad River, where defendant made improper advances, and the girl jumped out of the car and ran. The defendant pursued her, grabbed her and choked her until she lost consciousness. He then removed all of her clothing and took improper liberties with her by either committing, or at least attempting to commit, sodomy. Thereafter he dragged her nude body over rough and rocky terrain and threw her into a 20 or 25-foot canyon in the icy Malad River. She regained consciousness temporarily during part of the time he was dragging her and resisted him, and then again lost consciousness. Sometime after being thrown on the ice in the river she regained consciousness, and while nude and in a dazed condition wandered near the railroad track about four and a half miles west of Gooding, where she was picked up by an eastbound train and taken to town, and thereafter to a hospital. Her body was severely battered and bruised, and she was for some time unable to talk. She later identified the defendant as her assailant. He had returned to his home, where he was later arrested, and took the officers to the scene of the crime about 2 a. m. January 4, 1954, and showed them where he had left the girl's clothes.

After being found sane at a sanity trial, appellant was convicted, and hence this appeal.

Appellant in his argument of this case presented five main points upon which he asked for reversal of the judgment of conviction. First, he urged that refusal of the district court to grant his motions for change of venue, based upon prejudice against him within the county, was erroneous. He made two such motions. One was made March 27, 1954, which he supported by several affidavits and newspaper accounts. March 31, 1954, the state filed counter-affidavits. The motion was denied, and a sanity hearing (which is not a part of the present record) was held before a jury beginning April 7, 1954, and the defendant was found to be sane. Thereafter, on April 27, 1954, defendant filed another motion for change of venue based upon the same ground as the first one, and filed the affidavits of many more individuals, the contents of which were virtually identical with the first ones. April 28, the state filed an answer to the motion, re-including all of its old counter-affidavits, but did not file additional ones. The court, after considering the matter, denied the motion, and the case was tried on its merits May 11, 1954.

This court, in the case of State v. McClurg, 50 Idaho 762, 300 P. 898, 902, upheld the trial court's refusal of a change of venue under similar circumstances. In that case, as in the present one, the defendant had sought a change of venue on the ground "public sentiment and prejudice is too strong against the defendant" in the county; the defendant submitted affidavits to that effect; it was alleged prejudice had been created by newspaper accounts of the crime and by widespread discussion in the county, and that 55 jurors were excused for cause on voir dire examination. The court in the McClurg case stated:

'As has often been held by this court, the granting of a motion for a change of venue on motion of the defendant in a criminal action is largely a matter resting in the sound discretion of the trial judge, and his denial of the motion will not authorize a reversal of a judgment of conviction where it manifestly appears from the record that defendant had a fair and impartial trial and no trouble was experienced in obtaining an impartial jury. [Citing cases.]

'In the case at bar, the trial judge was acting within his sound legal discretion in denying the motion.'

A review of the record in the case now before us convinces us that the defendant had a fair and impartial jury, and that the denial of the application for change of venue is not reversible error.

Second, defendant contends that the evidence is insufficient to sustain the verdict and judgment, in that there is no proof of intent to commit the offense charged. The appellant contends the boy was motivated only by curiosity--by a desire to see the victim in the nude--and that the offense was therefore not in violation of I.C. sec. 18-6607. I.C. § 18-115 provides:

'The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused * * *.'

This court, in reference to I.C. sec. 18-6607, involved in this case, stated in the case of State v. Madrid, 74 Idaho 200, 259 P.2d 1044, 1047:

'The naked body of the victim need not be touched to constitute a violation of this statute.

The evidence in the present case is uncontradicted that the defendant choked his victim into unconsciousness, removed all of her clothing, and took indecent liberties with her while she was unconscious. Defendant made a statement to this effect to a deputy sheriff of the county wherein the offense occurred, and told the deputy where he had left the girl's clothing. His own psychiatrist testified that he stated he wanted to see the girl's breasts and also wanted to see her nude body. The girl's condition when found disclosed a redness and cracks in her rectum. Dr. Fredrick E. Barrett, who examined and treated the girl, testified:

'* * * The rectum had been dilated, it was violently reddened. The anus had several small cracks where it was bleeding slightly.

'Q. And what could have caused the condition that you found in it, the anus and rectum, doctor? A. Being dilated in any manner, blunt object, stick, finger, anyway.

'Q. Would it require an assertion of some type? A. Yes.'

This, together with consideration of the other facts and circumstances brought out at the trial, amply and sufficiently sustains the verdict and judgment of conviction. State v. Johnson, 74 Idaho 269, 261 P.2d 638.

Third, defendant contends that instruction No. 13 was erroneous. This instruction reads as follows:

'The law presumes every man to be sane and to possess a sufficient degree of reason to be responsible for his crime until evidence is presented sufficient to raise in the minds of the jury a reasonable doubt as to the sanity of the accused.

'This presumption of sanity prevails only until a reasonable doubt is cast upon it. The presumption of sanity merely relieves the prosecution from introducing proof that the defendant was sane, until that issue is raised by evidence creating a reasonable doubt as to the sanity of the accused.

'If such evidence tending to establish insanity is presented, thereupon the ultimate burden of convincing the jury beyond a reasonable doubt that defendant was sane within the legal test of responsibility is on the prosecution.'

The court, in the case of State v. Shuff, 9 Idaho 115, 131, 72 P. 664, 670, in stating the law on this point, said:

'The defendant on his own motion brings the question of insanity into the case, and it devolves upon him to create a reasonable doubt in the minds of the jurors as to his responsibility at the time of the homicide. If he fails to do this, the prosecution may rest on the legal assumption that all men are sane and responsible for their acts. If, on the other hand, he does succeed in creating a reasonable doubt in the minds of the jurors as to his sanity at the time of the commission of the homicide, he is entitled to the benefit of such doubt at the hands of the jurors, and the responsibility of overcoming such doubt shifts to the prosecution.'

We think the above instruction complies with the law as laid down in the above case. See also State v. Tharp, 48 Idaho 636, 284 P. 201.

Appellant cites as error the refusal to give his requested instruction No. 5. Instruction No. 13 above quoted substantially covers it except that defendant's requested instruction states the presumption of sanity 'may be overcome by evidence tending to prove insanity...