State v. Jurko

• Decision Date: 23 March 1926
• Citation: 42 Idaho 319,245 P. 685
• Parties: STATE, Respondent, v. JOHN JURKO, Appellant
• Court: Idaho Supreme Court

245 P. 685

42 Idaho 319

STATE, Respondent, v. JOHN JURKO, Appellant

Supreme Court of Idaho

March 23, 1926

CRIMINAL LAW-HOMICIDE-PLEA OF SELF-DEFENSE-INSTRUCTIONS-BURDEN OF PROOF-DISREGARD OF TECHNICAL ERRORS.

1. Question of error in refusing to strike testimony is not before the reviewing court; exception not having been taken and saved.

2. Evidence held sufficient to establish deliberation and premeditation.

3. Instruction defining justifiable homicide in language of C S., sec. 8219, with "also" omitted is proper "also" referring back to sections 8217, 8218 defining excusable homicide and justifiable homicide by an officer, and no evidence requiring those sections to be given in instructions.

4. For instruction to quote C. S., sec. 8220, as to fear of the commission of any of the offenses mentioned in certain subdivisions of section 8219, not justifying homicide omitting words "of any" does not change its meaning, and so is harmless; all of section 8219 being set out.

5. It is the province of the jury, in finding the facts, to determine the legal effect of the evidence.

6. Except, at most, on a strained construction, instruction held not to advise that plea of self-defense could not be maintained if defendant was the first aggressor, even though he was thereafter compelled to act in self-defense.

7. All of the instructions must be read and considered together.

8. Instruction only suggesting law applicable if certain facts be found does not invade jury's province.

9. Defendant must have had an honest belief in necessity of taking life that plea of self-defense may be available.

10. For self-defense, the circumstances must have been such as to impress a reasonable man with necessity to take life.

11. All objection to use of words "clearly indicative," in instruction on self-defense, relative to intent of deceased was removed by other instruction.

12. If instructions as a whole are substantially correct, and jury could not have been misled to defendant's prejudice, giving erroneous instruction is not error.

13. Instruction which requires defendant, on commission of homicide by him being proved, to produce such evidence as will create in jury's minds reasonable doubt of his guilt, correctly states the law, and does not shift burden of proof.

14. The appellate court should, under C. S., secs. 9084, 9191, as evidently intended, disregard technical errors not affecting substantial rights.

15. Instructions, though, when read alone, not accurately stating the law, do not constitute reversible error, where, in the light of the entire charge, they are not inconsistent, prejudicial or misleading.

16. Where instructions may be reasonably and fairly harmonized, it will be assumed the jury considered them as a whole, rather than an isolated portion.

17. Instructions given having fairly and fully stated the law applicable to the facts, refusal of others was not error.

18. In the absence of request for charge that all the instructions should be considered and construed together, failure to give it is not error.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Judgment of conviction of murder in the first degree and sentence of death. Affirmed.

Affirmed.

W. P. Guthrie, Homer C. Mills and Delana & Delana, for Appellant.

It is reversible error in an instruction to declare the legal effect of certain portions of the evidence. (State v. Dunlap, 40 Idaho 630, 235 P. 432.)

It is reversible error to fail to instruct the jury that all instructions contained in the charge of the court should be considered and construed together. (State v. Dunlap, supra.)

The jury should have been instructed that the mission of the appellant and his wife to interview the deceased at the time of the killing if the jury believed it to be in good faith and for the purpose of protecting appellant's wife from further annoyance, was lawful and proper. (People v. Williamson, 6 Cal.App. 636, 92 P. 313.)

The court was requested to charge the jury that defendant was a competent witness in his own behalf, and that he should be treated and subjected to only the same tests as were legally applied to the other witnesses. In People v. Archibald, 258 Ill. 383, 101 N.E. 582, the court held that this instruction was a correct statement of the law, and that it was error to refuse to give it.

The evidence of threats was certainly admitted for a purpose and the jury should have been clearly instructed as to the intended purpose. (State v. Nicola, 169 Iowa 171, 151 N.W. 70, at 72; People v. Zigouras, 163 N.Y. 250, 57 N.E. 465.)

No matter how incredible the defendant's testimony is, he is entitled to instructions on the hypothesis that his testimony is entirely true. (People v. Keefer, 65 Cal. 232, 3 P. 818; People v. Williamson, 6 Cal.App. 336, 92 P. 313.)

Instruction No. 14 cut the appellant off from all right of self-defense. (Pratt v. State, 50 Tex. Cr. 227, 96 S.W. 8; Franks v. State, 47 Tex. Cr. 638, 88 S.W. 923; Christian v. State, 46 Tex. Cr. 47, 79 S.W. 562.)

The court in instruction No. 18 placed the burden of proving the issue of self-defense upon the defendant; the giving of such instruction was vicious and erroneous. (Price v. State, 1 Okla. Cr. 358, 98 P. 447, at 458; Hawkins v. United States, 3 Okla. Cr. 651, 108 P. 561, at 567; Allen v. Commonwealth, 86 Ky. 642, 6 S.W. 645; Cogdell v. State, 43 Tex. Cr. 178, 63 S.W. 645; Harris v. State, 49 Tex. Cr. 627, 89 S.W. 1064; Castro v. State, 66 Tex. Cr. 282, 146 S.W. 553; Moody v. State, 52 Tex. Cr. 232, 105 S.W. 1127; Henderson v. State, 51 Tex. Cr. 193, 101 S.W. 245.)

Instruction No. 16 is erroneous because it required an open manifest act, and also that said open manifest act be clearly indicative of a present purpose to do injury, and in addition it is erroneous in that it required the circumstances to authorize the opinion that the deadly purpose then existed. (People v. Davis, 300 Ill. 226, 133 N.E. 320, at 323.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant, for Respondent.

Instruction No. 3, relative to justifiable homicide, is correct. (C. S., secs. 8219, 8220.) Instruction No. 17 is correct. (State v. Lyons, 7 Idaho 530, 65 P. 236.)

It is not error for the court to refuse to give an instruction requested by the defendant where the same is fully covered by the instructions given. (State v. Hoagland, 39 Idaho 405, 228 P. 314; State v. Cosler, 39 Idaho 519, 228 P. 277.)

Where errors are assigned, if they are not discussed in the brief and no authorities are cited in support of the assignments, they will neither be reviewed, considered nor discussed by the court. (State v. Brockman, 39 Idaho 468, 228 P. 250; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

Where there is a conflict in the evidence, if there is substantial evidence to support the verdict, it will not be disturbed. (State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Shepard, 39 Idaho 666, 229 P. 87.)

All the instructions must be considered together, and although an individual instruction, standing alone, would appear to be improper, if the instructions as a whole correctly state the law, the judgment will be affirmed. (State v. Cosler, 39 Idaho 519, 228 P. 277; State v. Sayko, 37 Idaho 430, 216 P. 1036; People v. Bernard, 2 Idaho 193, 10 P. 30; Loy v. State, 26 Wyo. 381, 185 P. 796; Johnston v. State, 86 Tex. Cr. 276, 216 S.W. 192.) Instruction No. 14 is correct. (State v. McCann, 43 Ore. 155, 72 P. 137.)

The law of self-defense is a law of necessity and that necessity must be real, or bear all the semblance of reality, and appear to admit of no other alternative before taking of life will be justified. (People v. Bernard, supra; State v. Lyons, supra; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733; State v. Miller, 73 S.C. 277, 114 Am. St. 82, 53 S.E. 426; Weaver v. State, 19 Tex. App. 547, 53 Am. Rep. 389; State v. Reed, 53 Kan. 767, 42 Am. St. 322, 37 P. 174; Logue v. Commonwealth, 38 Pa. 265, 80 Am. Dec. 481; Mewly v. State, 26 Tex. App. 274, 8 Am. St. 477, 9 S.W. 563; note, 74 Am. St. 717, 721; note, 109 Am. St. 805; note, 3 L. R. A., N. S., 535, 540, 543; note, 45 L. R. A. 688, 690, 695.)

A charge on a hypothetical statement of facts, declaring the legal result thereof, or stating that if the jury find the existence of certain facts, certain legal conclusions will follow, is not a charge on the facts, and does not invade the province of the jury. (1 Randall's Instructions, p. 207; People v. Kelly, 146 Cal. 119, 79 P. 846; People v. Creeks, 170 Cal. 368, 149 P. 821; Densley v. State, 24 Ga.App. 136, 99 S.E. 895; State v. Beal, 95 Me. 520, 48 A. 124; State v. Davison, 74 N.H. 10, 64 A. 761; State v. Duncan, 86 S.C. 370, Ann. Cas. 1912A, 1016, 68 S.E. 684; Reese v. State, 83 Tex. Cr. 394, 203 S.W. 769; State v. Gohl, 46 Wash. 408, 90 P. 259; State v. Fenton, 30 Wash. 325, 70 P. 741.)

BUDGE, J. William A. Lee, C. J., and Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

Appellant was charged with the crime of murder in the first degree, found guilty and sentence of death imposed. A motion for new trial was made and denied. As no appeal was perfected from the order denying the motion for a new trial, this appeal is from the judgment.

It appears from the record that appellant and the deceased had been business associates, engaged in operating a billiard parlor in Twin Falls. A short time prior to the homicide their business relations had ceased, due to disagreements between them that resulted in ill will. At the time of the homicide appellant was conducting a barber-shop and the deceased was operating the billiard parlor.

On the evening of June 25, 1924, appellant was seen coming down the...