State v. Lundhigh

• Decision Date: 30 April 1917
• Citation: 164 P. 690,30 Idaho 365
• Parties: STATE, Respondent, v. ALFRED LUNDHIGH, Appellant
• Court: Idaho Supreme Court

164 P. 690

30 Idaho 365

STATE, Respondent, v. ALFRED LUNDHIGH, Appellant

Supreme Court of Idaho

April 30, 1917

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. F. J. Cowen, Judge.

Defendant was convicted of murder in the second degree. Appeal from the judgment and order denying motion for new trial. Reversed.

Judgment of the district court reversed. Cause remanded, with directions.

Thomas & Anderson and Hansbrough & Gagon, for Appellant.

Before a legal conviction can be had, the state must have established the accused person's guilt of the crime charged by legal evidence and beyond reasonable doubt. (State v. Seymour, 7 Idaho 257, 61 P. 1033, 7 Idaho 548, 63 P. 1036; State v. Marquardsen, 7 Idaho 352, 62 P 1034.)

Dying declarations are admissible only when made under the fear of impending death and after one had given up all hope of recovery. (12 Cyc. 432; 21 Cyc. 973; 4 Elliott on Evidence sec. 3033; State v. Gianfala, 113 La. 463, 37 So 30.)

This is indispensable to that sanction which the law exacts, and if it shall appear in any mode that there was a hope of recovery, however faint it may have been, still lingering in his breast, that sanction is not afforded, and his statement cannot be received. (People v. Sanches, 24 Cal. 17, 24; People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30; People v. Taylor, 59 Cal. 640; People v. Ramirez, 73 Cal. 404, 15 P. 33; People v. Fuhrig, 127 Cal. 414, 59 P. 693.)

T. A. Walters, Atty. Genl., J. H. Peterson, Former Atty. Genl., Herbert Wing, Asst., C. M. Booth and R. W. Adair, for Respondent.

The amount or character of evidence necessary to create a reasonable doubt is solely for the jury to determine, and where the evidence as a whole is sufficient, the verdict will not be disturbed. (State v. Hopkins, 26 Idaho 741, 145 P. 1095; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Webb, 6 Idaho 428, 55 P. 892.)

Where the evidence is conflicting on a material issue, a new trial will not be granted. (State v. Downing, 23 Idaho 540, 130 P. 461; State v. Collett & Ireland, 9 Idaho 609, 75 P. 271; State v. Rathbone, 8 Idaho 161, 67 P. 186.)

In prosecutions for homicide, the declaration of the deceased voluntarily made while sane when in articulo mortis, and under the solemn conviction of approaching dissolution, concerning facts and circumstances constituting the res gestae of his destruction, are always admissible in evidence, provided the deceased would be a competent witness, if living. (21 Cyc. 974; State v. Wilmbusse, 8 Idaho 608, 70 P. 849; 10 Am. & Eng. Enc. Law, 2d. ed., 389; 4 Cyc., Ev., 930.)

For the court to give undue prominence in particular matters in instructions is erroneous. (12 Cyc. 649.)

All errors not prejudicial to the defendant must be disregarded. (Territory of Neilson, 2 Idaho 614, 23 P. 537; State v. Hurst, 4 Idaho 345, 39 P. 554.)

RICE, J. MORGAN, J. Concurring in Part. BUDGE, C. J., Concurring in Part and Dissenting in Part.

OPINION

RICE, J.

In this case defendant was convicted of murder in the second degree. The charging part of the information reads as follows: "The said Alfred Lundhigh, on or about the 11th day of June, 1915, at the county of Bingham and state of Idaho, and prior to the filing of this information, did then and there wilfully, unlawfully, feloniously, and with malice aforethought, kill and murder one Evangelos Pappas, a human being." Demurrer was filed to this information, on the ground that it does not substantially conform to the requirements of sections 7677, 7678 and 7679, Rev. Codes of Idaho, and further, for the reason that it does not state facts sufficient to constitute a public offense.

This court has stated repeatedly that an indictment or information charging an offense in the language of the statute defining it is sufficient. No distinction appears to have been made in this respect between indictments or information for murder and those charging other crimes. (People v. Butler, 1 Idaho 231; People v. Ah Choy, 1 Idaho 317; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Keller, 8 Idaho 699, 70 P. 1051.)

It is essential that an indictment or information should charge all the elements necessary to constitute the offense. Murder is defined to be the unlawful killing of a human being with malice aforethought. (Rev. Codes, sec. 6560.) The elements constituting the offense of murder are the killing of a human being, the unlawfulness of the killing and that it was accomplished with malice aforethought. I think these are the ultimate facts to be pleaded, and that the means by which and the manner in which the killing was accomplished are evidentiary facts which need not be pleaded. The information filed in this case sufficiently pleads the ultimate facts and satisfies the requirements of sections 7677, 7678, 7679 and 7686 of the Rev. Codes. (Strickland v. State, 19 Tex. Ct. App. 518; People v. Cronin, 34 Cal. 191.)

The criminal practice act of the territory of Idaho was enacted in 1864 and was taken from the statutes of California. Prior to the adoption of the California criminal practice act by the legislature of the territory of Idaho, the California courts had held as follows: "There is little or no difference between the requirements of an indictment under the common law and under our statute, except in the manner of stating the matter necessary to be contained." (People v. Aro, 6 Cal. 207, 65 Am. Dec. 503.) In the matter of indictments charging murder, the supreme court of California changed its position shortly after the adoption of the criminal practice act by the legislature of this territory, as shown by the cases of People v. King, 27 Cal. 507, 87 Am. Dec. 95, People v. Cronin, 34 Cal. 191, People v. Hyndman, 99 Cal. 1, 33 P. 782, and People v. Witt, 170 Cal. 104, 148 P. 928. These cases and many other California cases have uniformly held an information drawn as was the information in this case to be sufficient and in proper form. The criminal practice act of Idaho thus adopted from California was re-enacted at the time of the enactment of the Revised Statutes in 1887, and again at the time of the adoption of the Revised Codes in 1909. Under the rule usually applicable, the changed position of the California Supreme Court after the adoption of the statute by the legislature of this territory might be persuasive, but would not be binding upon this court. (Cathcart v. Robinson, 30 U.S. 264, 5 Pet. 264, 8 L.Ed. 120.)

This court, however, prior to the re-enactment of 1887 had stated many times that an information charging a crime in the language of the statute defining that crime is sufficient. In the case of State v. Sly, 11 Idaho 110, 80 P. 1125, decided in May, 1905, this court said in effect that sec. 7675, Rev. Statutes, was evidently adopted for the purpose of abrogating the strictness of the common-law form of indictment. Again, in the same case, the court quotes with approval from the case of People v. Murphy, 39 Cal. 52, as follows: "The sufficiency of the indictment is not to be tested by the rules of common law, but by the requirements of the criminal practice act of this state. That act provides that the particular circumstances need not be stated, unless they are necessary to constitute the offense charged. Murder is the unlawful killing of a human being, with malice aforethought and certainly the means by which the killing is accomplished can never become material in ascertaining the offense charged. The requirement that it must appear that the party died within a year and a day is a rule of evidence merely. Unless the party died within that time the prosecution will not be permitted to show that he died of the injury received." And at page 115 of the Sly case this court said: "It is clear to our minds from the foregoing authorities that it has never been the intention of this court since its organization under the territorial government to the present time, to follow the doctrine laid down in the Aro and other early California cases in passing upon the sufficiency of an indictment or information."

Under such circumstances it is fair to presume that in the re-enactment of the Criminal Code in 1909 the legislature intended to adopt the construction which had been placed upon the statute by our own court. (Gulf C. & S. F. Ry. v. F. W. & N. O. Ry., 68 Tex. 98, 2 S.W. 199, 3 S.W. 564; State Commission in Lunacy v. Welch, 154 Cal. 775, 99 P. 181; Mitchell v. Simpson, 25 L. R. Q. B. Div. 183.) This presumption in the case of a re-enacted statute applies not only to the decisions of courts, but also to the actions of administrative officers taken under a statute. (Copper Queen Con. Min. Co. v. Arizona, 206 U.S. 474, 27 S.Ct. 695, 51 L.Ed. 1143.)

It would seem that even though some of the observations in the Sly case were obiter dicta, they would be entitled to as much weight as the acts of administrative officers. I think, therefore, that this court is not bound to follow the California cases decided prior to the adoption of the criminal practice act of 1864.

In the case of State v. Smith, 25 Idaho 541, 138 P. 1107 this court held that an information charging manslaughter in the following language, viz., "that the defendant did unlawfully and feloniously kill one Clara Foy," is defective and insufficient to comply with the statute because of its failure to show the means by which death was accomplished. It is possible that in cases of involuntary manslaughter, it might sometimes be necessary that the particular circumstances be alleged in order to constitute the complete offense. I think, however, that the case of State v. Smith, supra, as applied to manslaughter generally and in so far as it might be considered as an authority with reference to...