State v. Jester

• Decision Date: 25 July 1928
• Docket Number: 5089
• Citation: 270 P. 417,46 Idaho 561
• Parties: STATE, Respondent, v. JOSHUA JESTER, Jr., Appellant
• Court: Idaho Supreme Court

270 P. 417

46 Idaho 561

STATE, Respondent, v. JOSHUA JESTER, Jr., Appellant

No. 5089

Supreme Court of Idaho

July 25, 1928

CRIMINAL LAW-INFORMATION-MOTION TO QUASH-EMBEZZLEMENT-INTENT-EVIDENCE-ADMISSION OF BOOKS AND RECORDS-SUFFICIENCY OF PROOF-WITNESSES-USE OF MEMORANDUM-MOTION TO STRIKE TESTIMONY-CROSS-EXAMINATION-EXTRANEOUS MATTER-VERDICT-IMPEACHMENT.

1. Court properly overruled defendant's motion to quash information because complaint filed before committing magistrate failed to state public offense, since even fatal defect in complaint filed before committing magistrate does not warrant setting aside information where defendant has been properly committed after preliminary hearing at which evidence was introduced.

2. In prosecution for embezzlement, evidence, while to quite an extent circumstantial, held sufficient to support conviction.

3. An intent to embezzle may be proved by circumstantial evidence.

4. Sufficiency of preliminary proof to justify admission of books and records in evidence is in discretion of trial court.

5. In order to justify reversal of judgment, error must have been prejudicial.

6. In prosecution for embezzlement, refusal to permit defendant to cross-examine witness regarding whether or not his deed of gift to his wife was "occasioned in any way by the facts in this case" held not error, since fact sought to be elicited was entirely immaterial.

7. Where defendant moved to strike all testimony of witness, who read from memorandum, court properly denied motion, where a number of questions and answers were not contained in memorandum.

8. Generally answers of witnesses should not be written out in advance and read into record, since C. S., sec. 8033, in providing when witness is allowed to refresh his memory impliedly at least requires that in other instances witness must answer questions from memory.

9. Much discretion is reposed in trial judge to regulate examination of witnesses.

10. In prosecution of irrigation district treasurer for embezzlement, use of memorandum containing list of questions and answers by witness, who had made audit of books of district, although improper, under C. S., sec. 8033 held not reversible error, where two other auditors testified to substantially same state of facts detailed by witness, and answers of witness in very few cases followed wording of prepared answers.

11. Verdict of jury should not be vacated, and new trial ordered unless substantial right of accused has been invaded, and he has not been accorded a fair trial.

12. In prosecution of irrigation district treasurer for embezzlement, prosecuting attorney's asking defendant on cross-examination if there had not been shortage in accounts of county assessor during period when defendant was employed in that office held not such misconduct as to justify reversal of judgment.

13. Where affidavits of jurors, in prosecution of irrigation district treasurer for embezzlement, showed that certain jurors discussed and considered matter of shortage in accounts of county assessor during period when defendant was employed in that office, which court had instructed them not to consider, and that it was stated during deliberations that official surety on defendant's bond had paid irrigation district amount defendant was accused of having embezzled court properly denied new trial, since, in criminal case party cannot by juror's affidavit show misconduct, with single exception that verdict was arrived at by chance.

14. Reading of portion of testimony of accused in embezzlement prosecution at jury's request, in presence of prosecuting attorney and defendant and his counsel, after case had been submitted, held authorized by C. S., sec. 8979.

15. In embezzlement prosecution, where several witnesses testified as to accused's reputation, and state made no effort to rebut character evidence, striking of evidence of one of defendant's character witnesses, who had never heard defendant's reputation discussed, held not reversible error.

16. In embezzlement prosecution, refusal to permit defendant to testify that he owned his home held not error.

17. Failure of prosecuting attorney to secure ruling on question of right to consider affidavits of jurors to prove misconduct, after denial of new trial without specifically passing on objection, held not to constitute a waiver of objection.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Joshua Jester, Jr., was convicted of embezzlement and appeals. Affirmed.

Affirmed.

Scatterday & Stone and Frawley & Koelsch, for Appellant.

The defendant never had a preliminary examination, as provided by the constitution of this state and the laws of the state, and hence the prosecuting attorney, in filing an information against the defendant, acted without authority, exceeded his jurisdiction and the court erred in denying motion to set aside and quash the fourth information filed by the prosecutor in this cause, and on which said information the defendant was tried. (Const., sec. 8, art. 1, secs. 8706, 8709, 8711, 8712, 8716; 16 C. J., pp. 286, 288; White v. State, 28 Neb. 341, 44 N.W. 443; People v. Wallace, 94 Cal. 497, 29 P. 950.)

The court committed prejudicial error in permitting and allowing the books of the Caldwell Commercial Bank and other books and documents (Exhibits "D," "KK," "MM," "PP-1-5") to be introduced in evidence over the timely objection of the defendant, without requiring the prosecution in a legal and ordinary way to have the entries and exhibits properly authenticated and verified by the requisite preliminary proof and by all persons who took any part in the making of such entries. (County of Bingham v. Wooden, 6 Idaho 284, 55 P. 662; Stolz v. Scott, 28 Idaho 417, 154 P. 982; State v. Brassfield, 33 Idaho 660, 197 P. 559; Carlton v. Carey, 83 Minn. 232, 86 N.W. 85; Swan v. Thurman, 112 Mich. 416, 70 N.W. 1023.)

The cross-examination of a witness is not limited to the particular matters asked about on direct examination. Inquiry may be made tending to show the interest, animus, bias or prejudice of the witness. For such purpose the evidence is not collateral, but direct. (Pryor v. State (Okla. Cr.), 257 P. 335; Hembree v. State, 20 Ala. App. 181, 101 So. 221; Davidson v. State, 19 Ala. App. 77, 95 So. 55.)

A memorandum made only for the purposes of the trial is not a sufficient basis for testimony. (C. S., sec. 8033; Downs v. Downs (Iowa), 102 N.W. 431.)

Extraneous matters brought before the jury and considered while deliberating to the effect that the bonding company had paid shortage and that there was a shortage in another office while defendant was a deputy therein is flagrant prejudicial misconduct of a nature necessitating a new trial. (C. S., sec. 9017; State v. Burton, 65 Kan. 704, 70 P. 640; Doulton v. State (Tex.), 73 S.W. 395; State v. Rambo, 69 Kan. 777, 77 P. 563; Tutt v. State, 49 Tex. Cr. 202, 91 S.W. 584; State v. Duncan, 70 Kan. 883, 78 P. 427; White v. State, 72 Tex. Cr. 185, 161 S.W. 977; San Antonio Traction Co. v. Cassanova (Tex. Civ. App.), 154 S.W. 1190; Jolly v. Doolittle, 169 Iowa 658, 149 N.W. 890; State v. Parker, 25 Wash. 405, 65 P. 776; State v. Lorenzy, 59 Wash. 308, Ann. Cas. 1912B, 153, 109 P. 1064; State v. Tilden, 27 Idaho 262, 147 P. 1056.)

It is not for a juror to state the effect of his misconduct, or the misconduct of other jurors, or that he was not affected thereby, it being the duty of the court, upon the facts, to make determination of the effect thereof. (State v. Parker, supra; State v. Lorenzy, supra; State v. Tilden, supra.)

The state has the burden of proving that misconduct of a juror or the jury has not resulted in prejudice to the defendant. (State v. Burton, supra; State v. Chacon, 36 Idaho 148, 209 P. 889; State v. Maheras, 42 Idaho 544, 246 P. 304; State v. Lowe, 67 Kan. 183, 72 P. 524; State v. Tilden, supra. )

After the cause had been finally submitted to the jury it was prejudicial error to cause and permit the court reporter to read to the jury from his notes certain evidence, or supposed evidence, given at the trial. (Bartell v. State, 40 Neb. 232, 58 N.W. 716; Padgett v. Moll, 159 Mo. 143, 81 Am. St. 347, 60 S.W. 121, 52 L. R. A. 856; Hersey v. Tully, 8 Colo. App. 110, 44 P. 855; Alexander Bros. v. Gardner, 14 R. I. 15.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

The complaint filed against defendant and the preliminary examination had thereon was sufficient and no error was committed by the court in denying defendant's motion to quash the information. (C. S., sec. 8757; State v. Main, 37 Idaho 449, 216 P. 731; People v. Lee Look, 143 Cal. 216, 76 P. 1028; People v. Velarde, 59 Cal. 457; People v. Storke, 39 Cal.App. 633, 179 P. 527; Havlicek v. State, 101 Neb. 782, 165 N.W. 251.)

The evidence of intent may be inferred from the circumstances of the particular case. (20 C. J. 433; O'Brien v. United States, 27 App. D. C. 263.)

The limiting of cross-examination is not reversible error where such limitation does not prejudice defendant and where the fact sought is sufficiently shown by other evidence. (People v. Ho Kim You, 24 Cal.App. 451, 141 P. 950; Cina v. United States, 191 F. 718, 112 C. C. A. 308; People v. Deatrick, 30 Cal.App. 507, 159 P. 175.)

It is not necessarily prejudicial misconduct of the prosecuting attorney to ask a question which is improper if it is propounded in good faith. (16 C. J. 892; People v. Allen, 166 Cal. 723, 137 P. 1148; People v. Barbera, 29 Cal.App. 604, 157 P. 532; People v. Smith, 13 Cal.App. 627, 110 P. 333; People v. De Vries, 69 Cal.App. 201, 230 P. 982.)

The court's immediate instruction to disregard the question...