State v. Levy

• Decision Date: 21 January 1904
• Citation: 9 Idaho 483,75 P. 227
• Parties: STATE v. LEVY
• Court: Idaho Supreme Court

75 P. 227

9 Idaho 483

STATE v. LEVY

Supreme Court of Idaho

January 21, 1904

INSUFFICIENCY OF EVIDENCE-CIRCUMSTANTIAL EVIDENCE-REASONABLE DOUBT-WEIGHT OF EVIDENCE-INSTRUCTIONS-JURY ATTENDING THEATER-WITNESS-REWARD-COMPETENCY OF JUROR-NEW TRIAL.

1. Evidence considered and held sufficient to sustain the verdict of the jury.

2. The convincing effect that follows from positive evidence is not necessarily expected to follow from circumstantial evidence although the latter kind of evidence is often the most satisfactory and convincing that can be produced.

3. It is a strong circumstance which the jury ought to consider if it is shown to their satisfaction and beyond a reasonable doubt that the accused had a strong, impelling motive to commit the crime with which he is charged.

4. To authorize a conviction on circumstantial evidence, alone, the facts and circumstances shown by the evidence must be incompatable, upon any reasonable hypothesis, with the innocence of the accused and incapable of explanation upon any reasonable hypothesis or rational conclusion other than that of the guilt of the accused.

5. A reasonable doubt is a fair doubt arising from all of the evidence. It is not a mere imaginary, captious or possible doubt, but a fair doubt based upon reason and common sense.

6. The admission of certain evidence of the diseased condition of one of the women with whom the accused was living, held not prejudicial error.

7. The jury is the judge of the weight to be given to the testimony of the witnesses, and this court will not interfere, unless it is clearly shown that the verdict resulted from prejudice or passion, or is clearly against the evidence.

8. It is not error for the court, on its own motion, to instruct the jury that the neglect or refusal of the defendant to testify in his own behalf shall in no manner prejudice him nor be used against him on the trial.

9. With the permission of the court the jurors were taken to a theater, and six jurors were placed in one open box and six in another, each six with a sworn officer, and in sight of each other, and the play had no reference whatever to the trial. Held, not a sufficient cause for granting a new trial.

10. That a witness, in a capital case, received a part of the reward offered for the conviction of one who committed the crime is not of itself a cause for granting a new trial.

11. Where the credit or veracity of a juror is attacked on the ground that he had sworn falsely on his voir dire, it is not error for the judge to consider affidavits sustaining the character of such juror.

12. Newly discovered evidence examined and held not sufficient to warrant the granting of a new trial.

(Syllabus by the court.)

AILSHIE J.,

dissenting in part and as to conclusions reached.

APPEAL from District Court of Ada County. Honorable George H Stewart, Judge.

Defendant was convicted of murder in the first degree, and judgment of death entered against him. Affirmed.

Affirmed and the cause remanded.

Alfred A. Fraser and N. M. Ruick, for Appellant.

That the evidence was insufficient to justify or sustain the verdict of the jury in this case will be conclusively shown to the court by the reading of the transcript of the evidence given upon the trial; and from reading and considering the same, the court can only arrive at the conclusion that the verdict in this case was the result of the prejudice of the jury against the defendant on account of his immoral habits and method of living. The evidence falls far short of the legal standard which requires (especially in cases of circumstantial evidence) that the defendant can only be convicted when the evidence established to a moral certainty and beyond a reasonable doubt the guilt of the defendant. And in cases of circumstantial evidence, the law requires, before a conviction shall be had, that the circumstances shall not only all be consistent with the theory of the guilt of the defendant, but absolutely inconsistent with the theory of his innocence. In cases of this character where the evidence is entirely circumstantial, the appellate court will reverse a judgment of conviction where, from an examination of the record, the court is satisfied that the evidence is insufficient to sustain a verdict and does not amount to that degree of proof which is legally required before a defendant can be convicted. (State v. Fry, 40 Kan. 311, 19 P. 742; People v. Bowers, 79 Cal. 415, 21 P. 752; Lind v. Closs, 88 Cal. 6, 25 P. 972; State v. Primm, 98 Mo. 368, 11 S.W. 732; Spoon v. Railroad Co., 87 Mo. 74; Whitsett v. Ranson, 79 Mo. 258; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 441; State v. Mansfield, 41 Mo. 470; State v. Daubert, 42 Mo. 239; State v. Brosius, 39 Mo. 534; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 242, 5 S.W. 906.) Where the evidence leaves the defendant's guilt in doubt, a new trial should be granted, as contrary to evidence. (Reynolds v. State, 24 Ga. 427; Rafferty v. People, 72 Ill. 37; Stout v. State, 78 Ind. 492; State v. Milton, 22 Iowa. 241; Crandall v. State, 28 Ohio St. 479; State v. Kane, 1 McCord, 482; Owens v. State, 35 Tex. 361; Brite v. State, 10 Tex. App. 368; Ellis v. State, 10 Tex. App. 540; Saltillo v. State, 16 Tex. App. 249; Dean v. Commonwealth, 32 Gratt. 912.) In a criminal case a new trial will be granted when the evidence preponderates against the verdict. (Territory v. Reuss, 5 Mont. 605, 5 P. 885; Leake v. State, 29 Tenn. (10 Humph.) 144.) "A new trial will be granted where a conviction is had on evidence not connecting defendant with the crime beyond a reasonable doubt." (Williams v. State, 85 Ga. 535, 11 S.E. 859; Green v. State, 12 Tex. App. 51.) The court erred in not granting a new trial, for the reason that the affidavits on file disclosed the fact that Juror Mathews was disqualified to act as a juror in the case. (People v. Plummer, 9 Cal. 298; Busick v. State, 19 Ohio 198; State v. Cleary, 40 Kan. 287, 19 P. 776; Sam v. State, 31 Miss. 480; Achley v. State, 64 Ind. 56; Jewell v. Jewell, 84 Me. 304, 24 A. 858, 18 L. R. A. 473; Long v. State, 56 Ind. 182, 26 Am. Rep. 19; Commonwealth v. Scott, 123 Mass. 239. 25 Am. Rep. 87.) It is a good ground for a new trial when a juror on his voir dire has stated that he has neither formed nor expressed an opinion as to the guilt or innocence of the accused, if it comes to the knowledge of the latter after verdict that such juror had prejudiced the case, and that fact is made to appear to the satisfaction of the court. (State v. Shelledy, 8 Iowa (8 Clark), 447; State v. Burnside, 37 Mo. 343; State v. Gonce, 87 Mo. 627; Willis v. People, 32 N.Y. 715; Fitzgerald v. People, 1 Colo. 56; McGuffey v. State, 17 Ga. 497; Cody v. State, 4 Miss. 27; State v. Taylor, 67 Mo. 358; United States v. Upham, 2 Mont. 170; Hanks v. State, 21 Tex. 526; Washburn v. State, 31 Tex. Cr. Rep. 352, 20 S.W. 715.) The court erred in giving to the jury of its own motion instruction No. 28, as follows, to wit: "A defendant in a criminal action or proceeding to which he is a party is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding." (Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650.) The fact that the accused declines to testify in his own behalf cannot be commented on. (United States v. Snyder (C. C.), 14 F. 554; People v. Tyler, 36 Cal. 522; People v. Brown, 53 Cal. 66; Jackson v. People, 18 Ill.App. (18 Bradw.) 508; Long v. State, 56 Ind. 182, 26 Am. Rep. 19; State v. Graham, 62 Iowa 108, 17 N.W. 192; State v. Balch, 31 Kan. 465, 2 P. 609; State v. Tennyson, 42 Kan. 330, 22 P. 429; Commonwealth v. Scott, 123 Mass. 239, 25 Am. Rep. 87; State v. Martin, 74 Mo. 547; People v. Doyle, 58 Hun, 535, 12 N.Y.S. 836; Hunt v. State, 28 Tex. App. 149, 19 Am. St. Rep. 815, 12 S.W. 737; McPherson v. State (Tex. App.), 15 S.W. 174; Johnson v. State, 31 Tex. Cr. Rep. 464, 20 S.W. 980; Richardson v. State, 33 Tex. Cr. Rep. 518, 27 S.W. 139; State v. Cameron, 40 Vt. 555; Price v. Commonwealth, 77 Va. 593; Baker v. People, 105 Ill. 452.) A remark by the district attorney, in his argument, that the law permits defendants to testify, is ground for reversal. (McDonald v. People, 126 Ill. 150, 9 Am. St. Rep. 547, 18 N.E. 817; Sholewater v. State, 84 Ind. 562; Coleman v. State, 111 Ind. 563, 13 N.E. 100; State v. Ryan, 70 Iowa 154, 30 N.W. 397; State v. Holmes, 65 Minn. 230, 68 N.W. 11; State v. Weddington, 103 N.C. 364, 9 S.E. 577; Jordan v. State, 29 Tex. App. 595, 16 S.W. 543; 1 Bishop's Criminal Procedure, sec. 1186.) The defendant in this case should have been granted a new trial by reason of the acts and conduct of the deputy sheriff of Ada county and chief of police of Boise City in influencing, inducing, and in some instances coercing witnesses in testifying in this case for the prosecution. The following document executed to the witness Ragland, who testified for the prosecution, which was presented to the trial court on motion for a new trial herein, and which was admitted to be genuine and admits of no explanation, and is of such an infamous nature, should have, of itself, been sufficient to impel the trial judge to have immediately granted a new trial in the interest of justice and decency. The document is as follows:

"DEPARTMENT OF POLICE.

"B. F. Francis, Chief.

"Boise, Idaho Feb. 22, 1902.

"This is to certify that we, the undersigned, agree to pay to J. L. Ragland, or order, the sum of fifty dollars out of any reward we may receive from either the state of Idaho or the heirs of Davis Levy.

(Signed)

"B. F. FRANCIS.

"A. ROBINSON."

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