State v. Keyser

• Citation: 219 P. 775,38 Idaho 57
• Parties: STATE, Respondent, v. FRANK KEYSER, Appellant
• Decision Date: 31 October 1923
• Court: United States State Supreme Court of Idaho

219 P. 775

38 Idaho 57

STATE, Respondent, v. FRANK KEYSER, Appellant

Supreme Court of Idaho

October 31, 1923

CRIMINAL LAW-APPEAL-DENIAL OF CHANGE OF VENUE-REVIEW-BILL OF EXCEPTIONS-PREJUDICIAL REMARK BY COURT-OBJECTION-EXCEPTION - WAIVER - CONFLICT IN EVIDENCE - SUFFICIENCY OF EVIDENCE.

1. Alleged error in denying a motion for change of venue must be presented by bill of exceptions.

2. Error cannot be predicated upon remark of court in response to question by juryman, in absence of objection made, and exception saved, at the time.

3. Where there is a substantial conflict, but the evidence taken as a whole is sufficient to sustain the verdict, a judgment of conviction will be affirmed.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph W. Adair, Judge.

Judgment of conviction of rape. Affirmed.

Affirmed.

W. W Adamson, for Appellant.

On motion for continuance, when defendant makes affidavits as to the testimony expected to be obtained from such witnesses and if the adverse party thereupon admits, in order to avoid a continuance, that it be considered "as actually given on the trial," which was done in this case, then it is error, when the jury returns for further instructions and asks the further reading of the affidavits and their source for the court to state that they are merely the affidavits of defendant, and to refuse and neglect to advise and admonish the jury that the testimony in such affidavits must be considered as actually given by the witnesses themselves, and given the same weight as if the witnesses themselves were present on the stand and so testified under oath. (C. S., sec. 6840; Territory v. Guthrie, 2 Idaho 432, 17 P. 39.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

In order to review the action of the trial court in denying a motion for change of venue it is necessary that an exception be saved to the order of the court and incorporated in the bill of exceptions. (C. S., secs. 9009, 9010; State v. Reed, 3 Idaho 554, 32 P. 202; State v. Maguire, 31 Idaho 24, 169 P. 175.)

Where there is a substantial conflict in the evidence but which taken as a whole is sufficient to sustain the verdict, the appellate court will not disturb the judgment found on the verdict. (State v. Carlson, 23 Idaho 545, 130 P. 463; State v. Hopkins, 26 Idaho 741, 145 P. 1095; State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Mox, 28 Idaho 176, 152 P. 802; State v. Steen, 29 Idaho 337, 158 P. 499; State v. Suennen, 36 Idaho 219, 209 P. 1072.)

Where the accused has knowledge of any irregularity during the course of the trial, he must avail himself of the earliest opportunity to object thereto or he will be deemed to have waived the objection. (16 C. J., p. 836, sec. 2111.)

MCCARTHY, J. Budge, C. J., and Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an appeal from a judgment convicting appellant of rape alleged to have been committed upon the person of one Vesta Daugherty. It is contended that the court erred as follows: First, in overruling appellant's motion for a change of venue; second, in advising the jury that parts of appellant's affidavits in support of his motion for continuance, setting forth what certain absent witnesses would testify to, and introduced in evidence upon the state's admitting that they would so testify, were the affidavits of appellant, and neglecting to instruct them that they should be considered as the testimony of said witnesses. The third assignment of error is that the evidence is insufficient to support the verdict and judgment in that (1) the testimony of the prosecutrix was contradictory and uncorroborated, (2) that the testimony of the prosecutrix was impeached.

Subdiv. 1 of C. S., sec. 9009, provides that exceptions may be taken by a defendant to a decision of the court refusing to grant a motion for a change in the place of trial. C. S., sec. 9013, provides that a transcript of the evidence, proceedings and exceptions on the trial may be used in reviewing proceedings had during the trial. In order to procure a review of an order or ruling of the court not made upon the trial, such as those mentioned in C. S., secs. 9008 and 9009, appellant must preserve and present his exception by a bill of exceptions. (State v. Maguire, 31 Idaho 24, 169 P. 175.) This appellant has not done, and therefore the question as to whether the trial court erred in denying his motion for a change of venue is not before this court for review.

Appellant moved for a continuance in order to secure the testimony of Lulu Johnson and Claude McKendrick, setting up in his supporting affidavit what they would testify to. Respondent resisted the motion and admitted that if these witnesses were present they would testify as claimed by appellant. Thereupon the motion was properly denied. (C. S., sec. 6840; State v. Fleming, 17 Idaho 471, 106 P. 305.) No instruction was requested and none was given as to the effect of this. However, in reading the parts of the affidavits which were admitted by the court, appellant's counsel stated that respondent admitted the witnesses would so testify if present. After the jury had retired they came into court and asked that the affidavits be read to them again, stating they would like further instructions in regard to the matter. The court then stated to them that the state admitted the witnesses would testify as represented in the affidavits and that the same might be considered as given upon the witness-stand. One of the jurors then asked the court "That is...