State v. Kleier

• Decision Date: 04 October 1949
• Docket Number: 7430
• Citation: 69 Idaho 491,210 P.2d 388
• Parties: STATE v. KLEIER
• Court: Idaho Supreme Court

210 P.2d 388

69 Idaho 491

STATE v. KLEIER

No. 7430

Supreme Court of Idaho

October 4, 1949

Donald P. Kleier was convicted in District Court, Seventh Judicial District, Canyon County, A. O. Sutton, J., of attempted burglary, and he appealed.

The Supreme Court, Holden, C. J., affirmed judgment, holding that evidence sustained conviction, that witnesses were properly permitted to testify although the middle initial of one witness was erroneously given on information and the middle initial of another witness was omitted from information, and that instructions were proper.

Ariel L. Crowley, of Boise, for appellant.

The statutory right to ask a witness for purposes of impeachment if he has been convicted of a felony is limited to civil cases. Sections 9-1209, 19-3001, 19-2110, I.C.A.; 58 Am.Jur 403, § 748; Constitution of Idaho, Art. 1, Sec. 13; 41 A.L.R. 341.

An instruction which assumes the guilt of the accused invades the province of the jury and is prejudicially erroneous. State v. Cox, 55 Idaho 694, 46 P.2d 1093.

An instruction in confused form is error. 53 Am.Jur. 440, § 555; State v. Cox, 55 Idaho 694, 46 P.2d 1093.

Robert E. Smylie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.

A view of the scene of crime is discretionary with the court. Idaho Code, Sec. 19-2124.

And when the physical conditions pertinent to the issues have been changed, a refusal to send the jury to the scene is not erroneous. 53 Am.Jur. 350, Sec. 442, and note 5. Smith v United States, 8 Cir., 50 F.2d 46; Bates v. State, 24 Ala.App. 606, 139 So. 879.

A typographical error of a word or two in an instruction otherwise correct is not prejudicially erroneous. State v. Clark, 47 Idaho 750, 758, 278 P. 776.

Holden Chief Justice. Givens, Porter, Taylor and Keeton, JJ., concur.

OPINION

Holden, Chief Justice.

Donald P. Kleier was charged with and convicted of the crime of attempted burglary, from which conviction he appeals.

It appears from the record there is a place in Nampa called the Waldorf Cigar Store having an alley door at the rear. The cigar store is on the ground floor of a two-story building. A steep rickety and narrow back stairway with hand rails leads to the second floor. In the early morning of February 22, 1947, a Nampa police officer saw Kleier and another man walking up the stairway, Kleier was carrying a bolt cutter in his right hand. The officer ordered the men to stop and come downstairs. Kleier then laid a bolt cutter down on the stairway. On coming down both were placed under arrest, Kleier being later charged with and convicted of the crime of attempted burglary.

Many errors are assigned and numerous contentions made, some, quite a number, do not merit consideration. Furthermore, to discuss and consider all would unduly lengthen this opinion and serve no useful purpose. The contentions deemed to merit consideration will be discussed in the following order:

1. That the evidence is insufficient to support the conviction.

It appears that in the early morning of February 22, 1947, Officer Cardwell of the Nampa police force, was sitting in the cab of a truck standing in a parking lot in Nampa close to the scene of the attempted burglary; that while sitting in the truck he observed three men enter the lot; that in the course of a conversation between them he heard appellant say: "I will take the cutters"; that appellant and a man named Matthews then left the group going in the direction of the Waldorf Cigar Store, appellant carrying something which looked like cutters.

It also appears there is a back stairway leading to the second floor of the building occupied by the cigar store and that the stairway was lighted. That appellant and another named Matthews were seen going up that stairway; that appellant was carrying a pair of bolt cutters in his right hand; that an officer stopped them and ordered them to come down; that before coming down appellant laid a pair of bolt cutters down on the stairway; that when asked what they were doing there it was answered: "We are looking for Johnnie." And it further appears one of the bars of a transom above the back door of the cigar store was found partially cut, and in addition and in connection therewith such partial cut had been made with the said bolt cutters.

Appellant argues, among other things, that the back stairway was not sufficiently lighted to enable the officer to recognize anybody on the stairway and that there is no evidence appellant intended to commit the crime of attempted burglary. Nevertheless, there is convincing evidence in the record the stairway was sufficiently lighted, and, furthermore, that appellant was actually recognized, ordered to come down the stairway and when he got down was placed under arrest.

Concerning the question of intent to commit the crime with which appellant was charged and convicted, his conduct from the time he left the parking lot to the moment he was placed under arrest at the scene of the crime, clearly and sufficiently prove an intent to commit burglary. And whether appellant was too drunk to have committed the offense or to form an intent to commit it, was a question for the jury and the jury found against him.

2. That the court erred in permitting R. J. Pritchett and Austin H. Johnson to testify, in that it is contended their names were not indorsed on the information.

It appears that both Pritchett and Johnson testified at the preliminary examination of the appellant; that Pritchett's name was indorsed on the information as R. I. Pritchett instead of R. J. Pritchett and that Austin H. Johnson's name was indorsed on the information as Austin Johnson instead of Austin H. Johnson. On the trial of the cause objection was made to these witnesses testifying. The court overruled the objection and the ruling of the court is assigned as error. Pritchett and Johnson having testified at the preliminary examination, appellant could not have been either misled or taken by surprise.

3. That the court erred in denying appellant's application to have the jury conducted to the scene of the crime.

Section 19-2124, I.C., in so far as material, provides: [Sec. 19-2124] "View of premises by jury. -- When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to the place, which must be shown to them by a person appointed by the court for that purpose; * * *."

The record shows the physical condition at the scene of the crime had changed. Under these circumstances, the court did not abuse its discretion by denying the application.

4. That the statutory right to ask a witness for purposes of impeachment if he had been convicted of a felony is limited to civil cases.

Section 9-1209, I.C., provides among other things a witness in a civil action may be impeached by examination showing "he had been convicted of a felony." Section 19-2110, I.C. expressly provides: "The rules of evidence in civil actions are applicable also to criminal actions," and section 19-3001, I.C., further provides, "The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings". It being provided (sec. 9-1209, supra) a witness may be examined in a civil action as to...