State v. Leavitt

• Decision Date: 07 October 1927
• Docket Number: 4947
• Parties: STATE, Respondent, v. CHARLES LEAVITT, Appellant
• Court: Idaho Supreme Court

260 P. 164

44 Idaho 739

STATE, Respondent, v. CHARLES LEAVITT, Appellant

No. 4947

Supreme Court of Idaho

October 7, 1927

CRIMINAL LAW - RAPE - APPOINTMENT OF BAILIFFS - SEPARATION OF JURY-EFFECT OF, BY SHOWING ABSENCE OF PREJUDICE-PROPER VENUE - READING PART OF TESTIMONY, EFFECT - ABSENCE OF PROSECUTING ATTORNEY - INSTRUCTION - EXCEPTION OR ASSIGNMENT OF ERROR NO PROOF OF FACTS-PRESUMPTION-CORROBORATING EVIDENCE SUFFICIENCY OF.

1. Under C. S., secs. 3596, 3609, 3700, 6487, courts of record have inherent power to appoint bailiffs in case of exigency but such exigency must arise from some peculiar emergency, or where agency vested by law with power to appoint has neglected or refused to perform its duty.

2. In prosecution for rape, appointment of bailiff by court to take charge of jury, without declaring necessity therefor constituted bailiff de facto officer, assisting court in due exercise of its functions, and did not constitute error without showing of prejudice to defendant thereby.

3. Under C. S., sec. 8973, lodging jurors overnight in three adjoining rooms on same floor of hotel, and at all times under care and control of bailiff, without communication with anyone, held not error.

4. An unwarranted separation of jury constitutes only a prima facie right to new trial, which may be overcome by the state showing absence of prejudice to defendant.

5. In prosecution for rape, evidence held to establish proper venue.

6. Statement that the court had misdirected jury in a matter of law held too vague to require consideration thereof on appeal.

7. Where, after jury requested reading of evidence of complaining witness and defendant, court ordered reading to proceed until entire testimony of complaining witness had been read, at which time juror interposed to effect that they only wanted certain parts of testimony, action of court in having just that portion of defendant's testimony read thereafter held not error.

8. Defendant, in prosecution for rape, has no right to complain that testimony was read to jury, in the absence of and without the presence of prosecuting attorney, in accordance with C. S., sec. 8979.

9. Reading instruction, in prosecution for rape, without notice to defendant's attorney, held not to constitute error, where one of defendant's counsel was present.

10. Instruction, in prosecution for rape, relative to resistance of woman until physically exhausted and powerless to further resist, held not argumentative, but correct, and simple statement of the law.

11. An exception or assignment of error cannot be accepted as proof of facts therein alleged, it being necessary that there be something in the record positively showing what the judge actually did or did not do.

12. In absence of any positive showing as to what actually occurred during trial of case, the presumption must be indulged in favor of trial court.

13. In prosecution for rape, evidence corroborating that of prosecutrix held sufficient to sustain conviction.

14. Failure of court, in prosecution for rape, to instruct jury that evidence of prosecutrix must have been corroborated, held not erroneous, where such instruction was not requested.

15. In prosecution for rape, evidence as to resistance by prosecutrix held sufficient to warrant instruction on lack of consent, after resistance until physically exhausted and powerless to resist.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Defendant was convicted of the crime of rape, and he appeals. Affirmed.

Judgment and order affirmed.

A. H. Oversmith, Fred E. Butler and Edward C. Butler, for Appellant.

The venue of a criminal offense is a material allegation and where it is not proven a judgment of conviction will be reversed on appeal and the cause remanded for a new trial. (State v. Siepert, 38 Idaho 20, 225 P. 135.)

After the jury has retired, if there be any disagreement between them or if they desire to be informed upon any point of law, they may be brought into court and the information required "must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called." (C. S., sec. 8979.)

After hearing the charge, the jury upon retiring must be kept "by an officer" who must be sworn to keep them together in some private and convenient place. (C. S., sec. 8973; 16 C. J. 1074; State v. Chacon, 36 Idaho 148, 209 P. 889; State v. Chacon, 37 Idaho 442, 216 P. 725.)

The court should not indicate whether the instructions are given upon the court's own motion or upon the request of either party. (State v. Marren, 17 Idaho 766, 107 P. 993.)

The instructions to the jury must be based upon the evidence in the case. (Territory v. Evans, 2 Idaho 425, 17 P. 139.)

It is absolutely necessary that the court instruct the jury that the testimony of the prosecutrix must be clearly corroborated. (State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Short, 39 Idaho 446, 228 P. 274; State v. Hines, 43 Idaho 713, 254 P. 217.)

Where the defendant specifically denies the testimony of the prosecutrix as to the commission of the alleged offense the testimony of the prosecutrix is not sufficient unless corroborated. (Force v. State, 105 Neb. 175, 179 N.W. 387.)

It is error for the court to give an instruction which is argumentative in form and directs the attention of the jury especially to certain portions of the evidence or suggests to the jury certain inferences of fact, to be drawn therefrom, thereby singling out for their consideration particular facts favorable to either the state or defendant and ignoring other evidence having a contrary tendency. (State v. Jones, 28 Idaho 428, 154 P. 378; State v. Fleming, 17 Idaho 471, 106 P. 305; State v. Pettit, 33 Idaho 326, 193 P. 1015.)

Frank L. Stephan, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.

Proof of venue may be either direct or indirect. (State v. Siepert, 38 Idaho 20, 225 P. 135; State v. Rigby, 41 Idaho 570, 240 P. 859; People v. Manning, 48 Cal. 335.)

The facts in this case do not constitute separation of the jury. (16 C. J. 1077; State v. Jarrow, 158 La. 18, 103 So. 390; Commonwealth v. Manfredi, 162 Pa. 144, 29 A. 404.)

A new trial will be denied when the state makes a showing that nothing prejudicial transpired during the separation of the jury or on account of the separation. (State v. Chacon, 36 Idaho 148, 209 P. 889; State v. Main, 37 Idaho 449, 216 P. 731.)

It is a well-settled rule of law in this state that an omission to charge on a particular point cannot be assigned as error where no instruction on the point is requested by the appellant. (State v. Jurko, 42 Idaho 338, 245 P. 685; State v. Harness, 10 Idaho 18, 76 P. 788.)

An instruction on corroboration falls within this rule. (22 R. C. L. 1230; Hanks v. State, 88 Neb. 464, 129 N.W. 1011; Edwards v. State, 69 Neb. 386, 5 Ann. Cas. 312, 95 N.W. 1038; Branson's Instructions to Juries, 2d ed., sec. 126.)

It is the duty of the court to re-instruct the jury on any question on which the jury say they are in doubt and on which they ask further instructions. (People v. Anthony, 20 Cal.App. 568, 129 P. 968; People v. M'Kay, 122 Cal. 628, 55 P. 594; State v. Kessler, 15 Utah 142, 62 Am. St. 911, 49 P. 293; Brown v. State, 111 Neb. 486, 196 N.W. 926.)

An assignment of error involving the manner of the trial judge in charging the jury cannot be reviewed by this court. (State v. Corcoran, 7 Idaho 220, 61 P. 1034; State v. Hurst, 4 Idaho 345, 39 P. 554.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

Defendant, Charles Leavitt, was convicted of the crime of rape alleged to have been committed in Nez Perce county upon the person of the prosecutrix, a young woman twenty-three years of age. From the judgment and a subsequent order overruling his motion for new trial, he appeals.

In support of his motion eight grounds were urged, the first being that the jurors, after the submission of the cause to them, were not kept together by the sheriff, deputy or officer as required by statute. It appears from the record that the bailiff in charge had been appointed by the trial judge; that he lodged the jurors overnight in three adjoining rooms on the same floor in a local hotel; and, as is attested by the affidavits of the twelve talesmen, they were at all times under his care and control without communication with anyone or opportunity therefor.

The inherent power of courts of record to appoint bailiffs when exigency demands cannot be questioned, but the exigency must arise from some peculiar emergency or where the agency vested by law with the power to appoint has neglected or refused to perform its duty. This principle has been announced in several jurisdictions having statutes identical with or similar to our own C. S., secs. 3596, 3609, 3700, 6487, whereby the business of furnishing the court with attendants is lodged in the sheriff or board of commissioners. A most interesting review by Justice Sanner of the historical exercise of such powers will be found in State v. Sullivan, 48 Mont. 320, 137 P. 392, where, holding that the district court's appointment of a bailiff was unauthorized, the appellate court observed:

"The relator at bar was appointed by the district court to render a service which by statute and by the common law it was the right and duty of the sheriff to render, or of the county to supply."

The same limitation upon the court's inherent power is declared in Mayhew v. Hamilton County, 12 Ohio Dec 565; Ex parte Strobach, 49 Ala. 443; ...