State v. Johnston

• Decision Date: 25 February 1941
• Docket Number: 6863
• Citation: 62 Idaho 601,113 P.2d 809
• Parties: STATE, Respondent, v. DUNCAN McD. JOHNSTON, Appellant
• Court: Idaho Supreme Court

113 P.2d 809

62 Idaho 601

STATE, Respondent, v. DUNCAN McD. JOHNSTON, Appellant

No. 6863

Supreme Court of Idaho

February 25, 1941

ON REHEARING JUNE 4, 1941.

VENUE-Corpus Delicti-EVIDENCE-CONFLICT IN-HARMLESS ERROR-DECEASED WITNESSES.

1. Evidence that a jewelry salesman was last seen alive on May 21, and that on May 24 in same city a dead human body identified as that of the salesman was found in a locked automobile, that a.25 caliber bullet was extracted from neck of corpse and that an exploded.25 caliber shell, but no firearm, was found in automobile, established the "corpus delicti" in murder prosecution.

2. Evidence relating to identification by jewelry salesman's brother-in-law of dead body found in locked automobile as that of salesman, to identification of automobile, clothing and false teeth as belonging to salesman and relating to finding in one of pockets of duplicate receipt and invoice showing purchase of amount of gasoline which salesman had purchased on date when last seen alive sufficiently established identity of the body.

3. Evidence that decedent's dead body was discovered in county in which he had been last seen alive established venue of murder prosecution in that county, in absence of any evidence that he had been absent therefrom between time when last seen alive and time his corpse was found.

4. Venue and corpus delicti, like other facts, may be established by direct testimony, by circumstantial evidence or by both.

5. Conflicts in testimony in murder prosecution presented questions for the jury.

6. Where evidence tending to support conviction in murder prosecution was sufficient to sustain it, judgment could not be reversed because of conflicts in the testimony.

7. Error, if any, in admission of evidence allegedly constituting a confidential communication between attorney and client was harmless where defendant testified to the same state of facts. (I. C. A., secs. 16-203, 17-920.)

8. Where deceased chief of police had testified at former trial concerning his discovery in basement of articles having a bearing on murder case, reading of his testimony at second trial was proper, notwithstanding availability of other witnesses who were present soon after discovery, since they could not testify concerning the actual discovery.

9. The testimony of a deceased witness given at former trial may be read as evidence at subsequent trial between same parties and involving same issues.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Venue and corpus delicti, like other facts, may be established by direct testimony, by circumstantial evidence or by both.

II. Where the evidence to support a verdict is sufficient to sustain it, the judgment will not be reversed because of conflict in the testimony.

III. Error in the introduction of incompetent evidence is rendered harmless by the introduction of other proof, without objection, which establishes the facts sought to be proved by the incompetent evidence.

IV. The testimony of a deceased witness, given at a former trial, may be read as evidence at a subsequent trial between the same parties and involving the same issues.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Appeal from judgment of conviction of murder of the first degree. Affirmed.

Affirmed.

W. L Dunn and T. M. Robertson, Jr., for Appellant.

In a case wholly dependent upon circumstantial evidence proof of the corpus delicti must be clear and convincing and such as to remove all uncertainty. (Wharton Cr. Evidence; State v. Sullivan, 34 Idaho 68.)

In a case that depends wholly upon circumstantial evidence, if the evidence can be as easily reconciled with the theory of innocence as with the theory of guilt the judgment of conviction should be reversed. (State v. Squires, 15 Idaho 545; People v. Staples, (Cal.) 86 P. 886 at 894; People v. Lamson, (Cal.) 36 P.2d 361.)

Proof of the identity of the gun found in the basement is unsatisfactory and incredible, by reason of the very assurance with which the witnesses testify. (State v. Blank, 33 Idaho 730.)

The conversation with Appellant and his attorney F. C. Sheneberger was a privileged communication, likewise the diagram Exhibit 44 was a privileged communication. (Sec. 16-203, I. C. A., 1932; Underhill Criminal Ev., 4th Ed., sec. 333.)

Bert H. Miller, Attorney General, J. R. Smead, Assistant Attorney General, J. W. Taylor, former Attorney General, R. W. Beckwith, former Assistant Attorney General, and Edward E. Babcock, attorneys for Respondent.

Circumstantial evidence will support a verdict of first degree murder, if the evidence is clear and certain in connecting defendant with the corpus delicti. (People v. Green, (Cal.) 87 P.2d 821; People v. Peete, (Cal.) 202 P. 51; State v. McClurg, 50 Idaho 762; State v. McLennan, 40 Idaho 286; State v. Caviness, 40 Idaho 500.)

Client's communications to attorney to be privileged must have been communicated in confidence, and where the communication is one authorizing or instructing the attorney to perform some act, it is not a privileged communication. (Samish v. Superior Court, (Cal.) 83 P.2d 305; Collette v. Sarrasin, 184 Cal. 2, 193 P. 571; Moran v. Thurman, 127 Kans. 688, 275 P. 160; Mission Film Corp. v. Chadwick Pictures Corp., 207 Cal. 386, 278 P. 855.)

The testimony of a deceased witness, given on a former trial, may be read in evidence at a subsequent trial between the same parties in the same case. (State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Ward, 51 Idaho 68, 1 P.2d 620; State v. Boyd, (Kans.) 38 P.2d 665; State v. Pierson, (Mo.) 85 S.W.2d 48.)

MORGAN, J. Givens, Acting Chief Justice, Holden and Ailshie, JJ., and Sutton, D. J., concur. Budge, C. J., did not sit with the court at the hearing nor participate in the decision. AILSHIE, J. (Dissenting).

OPINION

MORGAN, J.

Appellant was charged with having shot, killed and murdered George Olson, in Twin Falls County, Idaho, on or about May 21, 1938. Heretofore the case was before us on appeal, and a judgment of conviction was reversed and a new trial ordered because of error in the admission of evidence. (State v. Johnston, 61 Idaho 87, 98 P.2d 628.) A new trial was had, which resulted in the conviction of appellant of murder of the first degree, and the jury fixed his punishment at imprisonment in the state penitentiary for life. Judgment was entered accordingly, and the case is here on appeal therefrom.

Appellant assigns as error the action of the court in pronouncing judgment against him, and insists the evidence is insufficient to sustain the judgment, in a number of particulars, among which are that the corpus delicti was not established; that the evidence fails to show the body, claimed by the state to be that of George Olson, is, in fact, his body; that it has not been shown when death occurred, nor how it was produced; that it has not been proven where the murder was committed, if one was committed, and that the venue of the crime has not been established; that the evidence fails to prove Olson met death by a criminal agency, and fails to connect appellant with his death.

George Olson was a traveling jewelry salesman, representing Decker Jewelry Company of Salt Lake, Utah. It was his business to call on the retail jewelry dealers throughout his territory, including southern Idaho, in the interest of his employer and, in so doing, he carried goods and samples of considerable value. Among his customers was appellant herein, who was engaged in the retail jewelry business in Twin Falls.

The record shows appellant had, for some time prior to May 21, 1938, been indebted to Decker Jewelry Company in a substantial amount of money; that about a month prior to that date he made a partial payment of his indebtedness and, May 21, 1938, paid to Olson, for the company, $ 763.30, in cash, taking his receipt therefor, and leaving an unpaid balance, due from appellant to Decker Jewelry Company, of several hundred dollars.

June 1 1938, the chief of police of Twin Falls had a conversation with appellant, in the sheriff's office in the presence of the sheriff of Twin Falls County, with respect to what occurred between Olson and appellant on the occasion of the last visit of the former to Twin Falls. It appears, from the testimony of the chief of police, Johnston stated Olson came into his store about four o'clock in the afternoon of May 20, 1938, and left his trunks; that he was in and out of the store until about 5:15; that it was arranged between them to meet at the store at 8:00 o'clock p.m., which they did, and went from there to the Italian Gardens and had a couple of drinks; that thereafter Olson drove appellant back up town and he saw no more of Olson on May 20. The chief of police further testified appellant stated he came down to his store about nine o'clock the morning of May 21 and Olson was waiting there to see him; that they talked business for sometime; that he had some merchandise there on consignment from Decker Jewelry Company; that Olson figured up how much he owed, and, about 9:30, he paid Olson $ 763.30, in cash. He further testified appellant said he paid Olson five one hundred dollar bills, four fifty dollar bills and the rest in smaller money, totaling $ 763.30; that he accumulated the money over a period of about three weeks to a month from his sales in business, and that he received two of the fifty dollar bills and three of the hundred dollar bills [in exchange for money of smaller denomination] "from the light complexioned fellow in the center cage at the Fidelity National Bank." He stated he had received two one hundred dollar bills from Mr. Groves at the Bank &...