State v. Larkins

• Decision Date: 11 February 1897
• Parties: STATE v. LARKINS
• Court: Idaho Supreme Court

47 P. 945

5 Idaho 200

STATE v. LARKINS

Supreme Court of Idaho

February 11, 1897

CRIMINAL LAW-PRACTICE-BILL OF EXCEPTIONS.-Where the record shows that the prosecuting attorney provided by law was present at the time the bill of exceptions of the defendant in a criminal action was settled by the trial judge, and did not object to the settlement of such bill of exceptions, the objection that the record on appeal does not show that the defendant gave notice of the time that such bill of exceptions would be presented for settlement, will not be heard on appeal; but the appellate court will presume that such notice was given.

PRELIMINARY EXAMINATION-WAIVER OF.-A defendant is not prohibited by the constitution and laws of Idaho from waiving a preliminary examination, and if he does so, he cannot complain that he was permitted to do so.

DEFENDANT TESTIFYING MAY BE CROSS-EXAMINED.-The defendant in a criminal action cannot, under the constitution and laws of Idaho, be compelled to testify; and if he voluntarily takes the witness- stand and testifies in his own behalf he may be cross-examined about any facts testified to on direct examination, or connected therewith. (See opinion on rehearing.)

INSANITY-BURDEN OF PROVING.-In a murder case, where the defense is insanity the burden of proving such defense is on the defendant, but he is not required to establish his defense beyond a reasonable doubt. In such case the vital question is, Was the defendant, at the time of the homicide, capable of knowing right from wrong?

DECLARATION OF DEFENDANT-WHEN ADMISSIBLE.-L., who was on trial for the murder of H. about three hours before the homicide, said to D. a witness for the state: "I would like to take you with me, but I have a dirty piece of business to do to-night." Held, that such declaration was admissible on the trial to show the animus of defendant toward deceased and to show the character and intent of the acts of the defendant in committing the homicide.

EXCEPTION TO ORDER DENYING NEW TRIAL.-Affidavits disclosing newly discovered evidence in a criminal case, in order to be entitled to consideration by the appellate court on appeal must appear in a bill of exceptions, duly settled, in conformity to the provisions of the Penal Code. And an exception to an order denying a new trial must be saved in the same way.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed.

Hawley & Puckett, for Appellant.

The first point we desire to discuss is the power of defendant to waive an examination upon a charge of felony. We claim that he cannot waive this right, and that the motion to quash the information should have been sustained. Section 7576 of the Revised Statutes of Idaho expressly declares an examination cannot be waived. (Kalloch v. Superior Court, 56 Cal. 229; Ex parte Walsh, 39 Cal. 705.) "Malice," says Rice on Criminal Evidence, 442, "may be proven by direct evidence, such as prior threats; but in order to make a threatening remark admissible, it must be clearly shown that it was directed against the deceased. Where the evidence shows a threatening remark has been made, it is not admissible until it is shown to whom the remark referred. (People v. Irwin, 77 Cal. 494, 20 P. 56.) The cross-examination of witness should be confined to matters which have been elicited from him on his direct examination. (People v. Miller, 33 Cal. 99; Landsberger v. Gorham, 5 Cal. 450; People v. Jenkins, 56 Cal. 4; Aitken v. Mendenhall, 25 Cal. 212.) A defendant in a criminal prosecution who has become a witness in his own behalf cannot be cross-examined as to any facts or matters not testified to by him in his examination in chief. If the trial court permit a more extensive cross-examination the right secured to defendant by section 13, article 1 of the constitution is violated. (People v. O'Brien, 66 Cal. 602, 6 P. 695.) To entitle witness to testify as to the mental conditions of a defendant. (Lawson's Expert and Opinion Evidence, rule 2, pp. 2, 466; McRue v. Malloy, 93 N.C. 154; Baldwin v. State, 12 Mo. 223; Goodwin v. State, 96 Ind. 550; Grubbs v. State, 117 Ind. 277, 20 N.E. 257; Webb v. State, 5 Tex. App. 596; State v. Bryan, 93 Mo. 273, 6 S.W. 102; Moore v. Moore, 67 Mo. 192; Reed v. State, 62 Miss. 405; Craig v. Sutherland, 148 Ill. 37, 35 N.E. 361; Hardy v. Merrill, 56 N.H. 227, 22 Am. Rep. 441; Estate v. Brooks, 54 Cal. 471; State v. Lewis, 20 Nev. 333, 22 P. 241; Newcombe's Executors v. Newcomb, 96 Ky. 120, 27 S.W. 997; State v. Hurst, 4 Idaho 345, 39 P. 554.)

Robert E. McFarland, Attorney General, for the State.

Motion to quash the information, on the ground that the court had no jurisdiction to try the defendant, for the reason that the law had not been complied with in the preliminary examination of defendant, must be made before plea or trial, and all objections to indictment are waived. (State v. Clark, 4 Idaho 7, 35 P. 710.) Section 8, page 186, Session Laws of 1890-91, expressly provides: "No information shall be filed against any person for any offense until such person shall have had a preliminary examination, unless such person shall waive his right to such examination." The other objection urged by appellant against the information is, that a probate judge has no jurisdiction to sit as an examining magistrate. Sections 7516 and 7565 of the Revised Statutes provide that magistrates shall examine all persons charged with a public offense. Section 7510 of the Revised Statutes defines a magistrate. By subdivision 2, of section 7511 of the Revised Statutes, probate judges are made magistrates. The constitution has continued such laws in force. (Const., art. 5, secs. 21, 22, art. 21, sec. 2.) In State v. Spencer, 21 N. J. L. 196, it is held that, "in a prosecution for murder, the defense being insanity, and the fact of the killing being clearly established, it is the duty of the jury to convict where the evidence is equally balanced on the issue." (Davis v. United States, 160 U.S. 469, 16 S.Ct. 357; People v. Walters, 1 Idaho 386; Laffner v. State, 10 Ohio St. 598; People v. Coffman, 24 Cal. 233; People v. Myers, 20 Cal. 518.) We maintain that on the trial of an indictment for murder, proof of previous threats is competent, although not directed against any particular person if they tend to show a malicious condition of defendant's mind. (Harrison v. State, 79 Ala. 29; Jordan v. State, 79 Ala. 9; Anderson v. State, 79 Ala. 5; State v. Hoyt, 47 Conn. 519, 36 Am. Rep. 89, and note; Dixon v. State, 13 Fla. 636; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218; State v. Hymer, 15 Nev. 49; Benedict v. State, 14 Wis. 423; Baldwin v. State, 12 Mo. 223; Goodwin v. State, 96 Ind. 557; Geroke v. State, 13 Tex. 568.) It is an old rule of law too thoroughly established to require the citation of authorities in support thereof, that when a defendant in a criminal case takes the witness-stand in his own behalf, he may be subjected to the same rules that govern the cross-examination of others. (Laws 1889, sec. 1, p. 2; Harper v. Lamping, 33 Cal. 647; Neal v. Neal, 58 Cal. 287.) Affidavits used upon motion for a new trial should be disregarded and not considered on appeal, unless incorporated in a bill of exceptions properly authenticated, or otherwise properly identified, as having been used at the hearing of the motion. (People v. Stonecifer, 6 Cal. 405; People v. Price, 17 Cal. 310; People v. Paddilla, 42 Cal. 535.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

Respondent moved to dismiss this appeal for the reason that the record contained no evidence of service of notice of appeal. Appellant suggested diminution of record, and, on leave given, filed a certified copy of the notice of appeal herein, from which it appears by the indorsement of the district attorney that the said notice was duly served. The motion to dismiss the appeal is therefore denied.

It is contended by the learned attorney general on behalf of the state, that this court should not consider the appellant's bill of exceptions, because the record fails to show that notice of the time when the same would be presented to the district judge for settlement was served upon the adverse party, as required by section 7944 of the Revised Statutes. The order settling said bill of exceptions (called "statement" in the record) shows that the district attorney was present when the said bill of exceptions was settled. The object of the motion required by the statute is to furnish either party the opportunity to examine the bill of exceptions presented for settlement by the adverse party, and to give the opportunity to point out to the district judge any errors that might exist in the draft of the bill of exceptions proposed by the adverse party, and to give the opportunity to present amendments; thus insuring correctness in the bill of exceptions. But the object of the statute was attained in the case at bar, the district attorney having been present at the settlement of the bill of exceptions. Being present, it was his duty to object to the settlement of the bill of exceptions, if he had no notice; and, if the district judge should overrule his objection, he should then except, and save his exception by having it incorporated in a bill of exceptions; otherwise this court will not hear such objection, where the record shows that counsel for the adverse party was present when the bill of exceptions was settled. The presumption being in favor of the regularity of the proceedings of the court below, error will not be presumed, and must affirmatively appear by the record. The district attorney having been present at the settlement of defendant's bill of exceptions, and having failed to object to such settlement for want of notice...