State v. Johnston, 6680
| Citation | 98 P.2d 628,61 Idaho 87 |
| Decision Date | 15 January 1940 |
| Docket Number | 6680 |
| Parties | STATE, Respondent, v. DUNCAN MCD. JOHNSTON. Appellant |
| Court | United States State Supreme Court of Idaho |
CRIMINAL LAW-HOMICIDE-CIRCUMSTANTIAL EVIDENCE-HEARSAY EVIDENCE-INSTRUCTIONS-INVITED ERROR-WITNESSES-CROSS-EX AMINATION-CONDUCT OF COUNSEL.
1. Error if any in instruction requested by accused was invited and he could not be heard to complain thereof on appeal.
2. Conduct of special prosecutor in pursuing improper cross-examination and in examining accused with respect to a conversation between accused and another without calling other to prove the conversation was improper.
3. In murder prosecution, items of personal property identified as having been the property of, or in possession of, victim immediately prior to time of his death and alleged to have been found in basement adjacent to accused's place of business, accessable to and used by him, were properly admitted as exhibits.
4. Where only communication between accused and attorney, except for minor preliminary and incidental matters, was contained in exhibit which was admitted without objection, overruling objection, based on privilege, to testimony of attorney and admission of exhibit, was not error.
5. An assignment alleging that attorneys appointed by the court did not see that accused had a fair trial was insufficient because too general in that it failed to point out any particular in which attorneys failed to discharge their duty.
6. The failure of attorneys appointed by the court to make any argument to the jury would not require new trial on ground that attorneys failed in discharge of their duty to accused.
7. Where the Supreme Court has concluded that a new trial must be ordered on ground other than insufficiency of evidence the court will not discuss or comment on the evidence.
8. In murder prosecution, where witness testified on direct examination that a letter telling where evidence might be found had been forwarded to him, and on cross-examination that the writer thereof had been interviewed, testimony on redirect examination as to what writer had told witness was improperly admitted because "hearsay," notwithstanding that letter, which was also incompetent, was admitted upon joint request of state and accused.
9. A witness may be interrogated upon redirect examination as to any inferences shown by cross-examination giving explanations, reasons, and motives surrounding or connected with doing or omitting to do a particular thing, but such right does not permit the admission of hearsay nor deprive accused of the right to confront witnesses against him and to test their evidence by cross-examination.
10. In murder prosecution, where witness testified on direct examination that a letter telling where evidence might be found had been forwarded to him, and on cross-examination that the writer thereof had been interviewed, admission of testimony on redirect examination that writer had told witness that writer had observed a man throw a light colored canvass into a dark colored sedan near place where letter indicated that evidence might be found was prejudicial in view of fact that conviction was based on circumstantial evidence, that body of victim was found covered with light colored canvas in dark blue sedan, and that jury might have regarded the testimony as connecting accused with victim's death.
11. Where, upon weighing and considering all facts in the record it seems that improperly admitted hearsay testimony not only may have prejudiced accused but that it probably had that effect and that accused did not therefor have a fair trial conviction will be reversed.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.
Conviction on charge of murder in the first degree. Defendant appeals. Reversed and new trial ordered.
Reversed and remanded with instructions. A new trial ordered.
W. L. Dunn and Thos. M. Robertson, Jr., for Appellant.
The testimony as to what Mills told witness Gillette was hearsay and deprived appellant of his right to confront the witness or to cross-examine him and it stands as evidence in the case to be considered by the jury the same as any other evidence, without the sanction of an oath. This is not justified either on the record or under the authorities:
Hearsay evidence:
Under the record and the authorities the Invited Error doctrine does not justify the hearsay answer that was elicited from the witness Gillette. (
J. W. Taylor, Attorney General, R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.
When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. (16 C. J. 571; 10 R. C. L. 935, 936; 4 Wigmore on Evidence, 2d ed., secs. 2113- 2115; 3 Jones' Commentaries on Evidence, sec. 1063; 10 Cal. Jur. 1080; State v. Hix, 60 Idaho 224, 90 P.2d 694; State v. Cox, 55 Idaho 694, 46 P.2d 1093; State v. Breyer, 40 Idaho 324, 232 P. 560; State v. Moore, 42 N. M. 135, 76 P.2d 19; People v. McCarthy, 25 Cal.App. (2d) 667, 78 P.2d 252.)
The above rule is applicable to all classes of crimes, including murder. (Adams v. State, 62 Okla. Cr. 167, 70 P.2d 821; Huffman v. Commonwealth, 168 Va. 668, 190 S.E. 265; McRoberson v. State, 117 Tex. Cr. 405, 38 S.W.2d 82; Matthews v. State, 118 Tex. Cr. 468, 38 S.W.2d 813; State v. Moore, supra; State v. Breyer, supra.)
Technical and immaterial errors do not constitute prejudicial error justifying a reversal of any case.
Sec. 16-1205, I. C. A.,--cross-examination witness covers facts connected with direct examination.
Sec. 19-2010, I. C. A.,--rule of evidence in civil cases applicable to criminal cases.
Sec. 19-2719, I. C. A.,--court must give judgment without regard to technical errors or defects.
Sec. 19-3602, I. C. A.,--error or mistake in trial does not render same invalid unless defendant is prejudiced in some substantial right. (State v. Marren, 17 Idaho 766, 107 P. 993; State v. Orr, 53 Idaho 452, 24 P.2d 679; State v. Gruber, 19 Idaho 692, 115 P. 1.)
The appellant Duncan McD. Johnston was by information of the prosecuting attorney of Twin Falls county, November 14, 1938, charged with murder in the first degree, and was by the verdict of the jury convicted of that charge December 10, 1938, and his punishment fixed at life imprisonment. December 14, 1938, a judgment of the court was entered accordingly and thereafter appellant moved for a new trial which motion was denied January 3, 1939. The appellant appeals from the judgment and order denying his motion for a new trial.
As a basis for the reversal of the judgment and order, the appellant makes eight assignments of alleged error. The assignments will be considered in inverse order.
By the eighth assignment it is charged the court erred in giving Instruction No. 17. The record discloses this instruction was given upon the request of the appellant. The error in it, if any, was invited by appellant and he cannot now be heard to complain of it. (State v. Orr, 53 Idaho 452. 24 P.2d 679.)
Assignment No. 7 charges the court erred in permitting the defendant to be impeached on immaterial matters, and folios 2333 to 2344 of the transcript are pointed out to support the charge. An examination of this portion of the transcript does show an inexcusable persistence on the part of the special prosecutor to pursue a line of improper cross-examination. It further discloses that each objection based upon that ground was sustained and that such special prosecutor was admonished to desist. As just stated, many of these questions were improper and should not have been asked; but, in the main, these were not prejudicial except possibly the questions asked concerning an alleged conversation between the defendant and one Posner which were asked and answered without objection. So the most appellant can urge, with respect to these latter questions and answers, is that the prosecution failed to call said Posner or any other person to prove conversations which the questions infer had occurred between defendant and said Posner. Such practice on the part of the prosecution should not be indulged in. (State v. Bush, 50 Idaho 166, 295 P. 432; State v. Copenbarger, 52 Idaho 441, 16 P.2d 383; State v. Boyatt, 59 Idaho 771, 87 P.2d 992.)
Assignment No. 6, which charges the court erred in overruling defendant's motion for new trial, will be considered later.
Assignment No. 5 charges the court erred in admitting State's exhibits numbered 18, 23, 24, 28, 29, and 32 in evidence. These exhibits are made up of items of personal property identified as having been the property of, or in the possession of, the deceased immediately prior to the time of his death and alleged to have been found in the basement adjacent to defendant's place of business, accessible to and used by him. There was no error in the admission of these exhibits.
Assignment No. 3 charges the court erred in overruling defendant's objection to the witness Scheneberger testifying to matters he learned...
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State v. Linebarger, 7613
...on redirect examination and without recalling the witness for direct examination, the following cases are in point: In State v. Johnston, 61 Idaho 87, 98 P.2d 628, 632, this Court stated: 'A witness may be interrogated upon redirect examination as to any inferences shown by cross-examinatio......
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State v. Johnston
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