State v. Jones

• Decision Date: 22 January 1916
• Parties: STATE, Respondent, v. H. C. JONES, Appellant
• Court: Idaho Supreme Court

154 P. 378

28 Idaho 428

STATE, Respondent, v. H. C. JONES, Appellant

Supreme Court of Idaho

January 22, 1916

CRIMINAL LAW-INSTRUCTIONS-STATUTORY CONSTRUCTION-ADMINISTRATION OF OATH BY PROPER OFFICER-MOTION FOR NEW TRIAL-CONFLICTING AFFIDAVITS.

1. In a criminal case the sufficiency and appropriateness of an instruction must be determined from the evidence, and where no reference is made in appellant's assignment of errors to the particular evidence relied upon in making such assignment, and the page or folio of the transcript wherein such evidence may be found is not cited in the brief, such evidence will not be considered by the appellate court in connection with an offered instruction refused by the lower court.

2. Under the provisions of sec. 7886, Rev. Codes, it is the duty of the court in a criminal case to instruct the jury upon the law of the case, but it is equally the duty of the jury to determine for itself what facts have been proved, and of this they are the sole judges. It is their province to determine the truth, force and importance of the facts which have been placed before them by the evidence. It is not the duty of the court in instructing the jury to draw inferences from the facts in proof, or to point out to the jury what inferences they might or could draw from such facts.

3. It is error for the court, in a criminal case, to give an instruction which is argumentative in form and directs the attention of the jury specially to certain portions of the evidence, and suggests to them certain inferences of fact to be drawn therefrom, thereby singling out for their consideration particular facts favorable to the defendant and ignoring other evidence having a contrary tendency.

[As to instructions on reasonable doubt, see note in 48 Am.St. 566.]

4. Where, in a criminal case, the matter contained in an instruction offered on behalf of the defendant and refused by the court is fully covered by another instruction given by the court, which is just as favorable to the defendant as the one refused, the court commits no error in such refusal.

5. Certain proffered instructions considered, and held that the lower court committed no error in refusing to give them to the jury.

6. Sec 6055, Rev. Codes, which provides: "An affidavit to be used before any court, judge or officer of this state, may be taken before any judge or clerk of any court, or any justice of the peace, or notary public in this state," is not exclusive or a limitation upon sec. 1983, Rev. Codes, which provides: "Every county officer and every justice of the peace may administer and certify oaths." An oath taken before any officer authorized under the law to administer it has the same force as if taken before an officer particularly designated by law.

7. The ruling of the trial court will not be disturbed in passing upon conflicting affidavits, where the misconduct of the jury is in question, in support of, and in opposition to, a motion for a new trial.

APPEAL from the District Court of the Eighth Judicial District for Benewah County. Hon. R. N. Dunn, Judge.

Prosecution for murder in the second degree. Judgment for plaintiff. Affirmed.

Affirmed.

F. C Highsmith, for Appellant.

It is the practice for the judge at nisi prius not only to state to the jury all of the evidence that has been given, but to comment upon its bearing and weight and to state the legal rules upon the subject and their application to the particular case, and to advise them as regards the verdict they should give. (1 Brickwood-Sackett, Instructions, sec 153.)

This common-law practice prevails in this state except in so far as it is modified by statute. The contention of the defense is established by the decision of this court in the cases of People v. Biles, 2 Idaho 114, 6 P. 120; State v. Harness, 10 Idaho 18, 76 P. 788; State v. Knudtson, 11 Idaho 524, 83 P. 226.

The defendant is entitled to an instruction upon every particular material phase of the case presented, which is supported by any evidence. (Williams v. State, 120 Ga. 870, 48 S.E. 368; sec. 7886, Rev. Codes.)

There was evidence supporting the contention of the defense that the deceased was of a quarrelsome disposition, while the defendant was not, which clearly entitled defendant to the instruction. (Wharton on Homicide, p. 428, sec. 258; 2 Brickwood-Sackett, Instructions, sec. 3143.)

There was also evidence as to the disparity of age and physique between the deceased and the defendant, which clearly entitled the defendant to an instruction requested thereon. (Wharton on Homicide, 501, sec. 314; Clark v. State, 45 Tex. Cr. 456, 76 S.W. 573; State v. Petsch, 43 S.C. 132, 20 S.E. 993.)

The language of sec. 6055 clearly limits the class of officers who are authorized to take affidavits for use in court. "The statutes requiring affidavits frequently specify the officer or officers before whom they may be made. An affidavit taken under such a statute before an officer not authorized by it has generally been held of no force or validity whatever, but in some cases it has been held that these statutes are merely directory and do not prohibit the taking of affidavits before other officers, so an affidavit may be taken by an officer who by one statute is given the powers and jurisdiction of an officer expressly authorized by another statute to take an affidavit." (2 Corpus Juris, p. 327; Swearingen v. Howser, 37 Kan. 126, 14 P. 436; Richards v. State, 22 Neb. 145, 34 N.W. 346; Horkey v. Kendall, 53 Neb. 522, 68 Am. St. 623, 73 N.W. 953.)

The misconduct of the jury in not remaining together entitled defendant to a new trial. (State v. Sly, 11 Idaho 110, 80 P. 1125; State v. West, 11 Idaho 157, 81 P. 107.)

J. H. Peterson, Atty. Genl., T. C. Coffin and Herbert Wing, Assts., Ed. S. Elder and N.D. Wernette, for Respondent.

"The court has no right to point out what inference may or should be drawn from particular facts in proof." (Duckworth v. State, 83 Ark. 192, 103 S.W. 601.)

Requests to charge which are in the nature of a special argument to the jury under the guise of instructions of law are properly refused. (In re Dolbeer's Estate, 149 Cal. 227, 86 P. 695, 9 Ann. Cas. 795; Hussey v. State, 86 Ala. 34, 5 So. 484; Campbell v. State, 133 Ala. 81, 91 Am. St. 17, 31 So. 802; Gordon v. State, 140 Ala. 29, 36 So. 1009.)

Instructions must not emphasize or give prominence to particular portions of the evidence. (State v. Quigley, 26 R. I. 263, 58 A. 905, 67 L. R. A. 322, 3 Ann. Cas. 920; Gilmore v. State, 126 Ala. 20, 28 So. 595; State v. Drigger, 84 S.C. 526, 137 Am. St. 855, 66 S.E. 1042, 19 Ann. Cas. 1166; Commonwealth v. Hourigan, 89 Ky. 305, 12 S.W. 550; State v. Cantlin, 118 Mo. 100, 23 S.W. 1091; People v. Hawes, 98 Cal. 648, 33 P. 791; Haile v. Smith, 128 Cal. 415, 60 P. 1032.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

An information was filed against appellant on January 28, 1915, in the district court of the eighth judicial district in and for Kootenai county, charging him with the crime of murder in the second degree, in the killing of one Charles E. Plunkitt, on or about December 1, 1914.

The crime was committed in Kootenai county in territory which subsequently was included in Benewah county when the latter county was created. After the organization of Benewah county, this case was transferred to the district court of that county for trial.

Defendant was tried before the court and jury and was found guilty of manslaughter and sentenced to serve a term in the state penitentiary of not less than two nor more than ten years. Motion for a new trial was then made and overruled. This is an appeal from the judgment, and from the order of the trial court overruling appellant's motion for a new trial.

Appellant specifies four assignments of error: (1) The court erred in refusing defendant's instruction No. 1; (2) the court erred in denying defendant's motion to strike from the record the affidavits of ten certain jurors; (3) the court erred in denying defendant's motion for new trial; and (4) the court erred in entering judgment and passing sentence on the verdict. These assignments of error will be discussed and disposed of in their order.

The instruction offered and refused, upon which the first error is predicated, is as follows:

"You are to determine from the evidence the state of mind of the defendant when he shot and killed the deceased (if he did so) and in that connection you may consider threats (if any) made by the deceased, either expressed or implied, regarding the defendant, the reputation of the deceased, (if such it was) as a violent and dangerous man, the defendant's personal knowledge (if such he had) that the deceased was a violent and dangerous man, the relation of the deceased and the defendant, and all other facts in the case, that may shed light on the case.

"And you are further charged that the relative size and strength of the deceased and the accused should be considered by you in determining the question whether or not the defendant had reasonable grounds to apprehend death or great bodily harm at the hands of the deceased.

"And in this connection, you are further instructed that the defendant is not required to wait until an actual assault made upon him has reached a stage where resistance would be useless. If the situation is such that a reasonable man in the situation of defendant would be justified in believing that his life is in danger or that he was in danger of great bodily harm being committed upon him, he could act; and what was apparent to him should be considered by you as the real danger."

That portion of the first paragraph of appellant's requested instruction which refers to threats is subject to...