State v. Lyons

Citation7 Idaho 530,64 P. 236
Decision Date25 February 1901
CourtUnited States State Supreme Court of Idaho

HOMICIDE-EVIDENCE OF FLIGHT.-When a party is charged with murder, evidence of flight is admissible, even though the homicide is admitted.

SAME.-It may be shown in connection with other circumstances and facts immediately connected with the homicide to enable the jury to determine the condition of the mind of the party accused of the homicide at the time of flight.

SAME-INSTRUCTION.-An instruction as to the flight of the accused, where the homicide is admitted, may be considered by the jury to determine the degree of crime charged.

IMPEACHMENT-LEADING QUESTION ON IMPEACHMENT.-It is not error to permit a leading question to a witness called on impeachment, and then confine the cross-examination to the particular conversation.

INSTRUCTIONS-THREATS.-It is not error to sustain an objection to a question of alleged threats, where it is not shown that the threats were communicated to the accused prior to the time of the homicide.

REFUSAL TO GIVE INSTRUCTIONS REQUESTED BY DEFENDANT.-When the court fully and accurately instructs the jury on all the issues involved, it is not error to refuse defendant's requests even though they may correctly state the law.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.


Lot L Feltham, for Appellant.

Evidence of the flight of an accused person is admissible only for the purpose of showing who did the killing, and not for the purpose of proving guilt. In this case the accused admitted he did the killing, but claimed he did it in self-defense. Therefore, this proof was inadmissible for any purpose and instruction 41 should not have been given. (People v. Ah Choy, 1 Idaho 317.) A party may contradict his own witness. (Idaho Rev. Stats., sec. 6080; 1 Green on Evidence, sec. 444; Norwood v. Kenfield, 30 Cal. 399; People v. Brilliant, 58 Cal. 217.) The rule is a party may show that his own witness has made statements contrary to those testified to on the stand, when the testimony given has been against the party calling the witness. (Conway v. State, 118 Ind. 482, 21 N.E. 285; Rhodes v. State, 128 Ind. 189, 25 Am. St. Rep. 429, 27 N.E. 867; Schnuer v. State, 18 Ind.App. 226, 47 N.E. 843; Dravo v. Fabel, 25 F. 116; United States v. Hall, 44 F. 864.) Rule stated in State v. Brown, 54 Kan. 71, 37 P. 996; Torris v. People, 19 Colo. 438, 36 P. 153; People v. Mitchell, 94 Cal. 550, 29 P. 1108; State v. Steeves, 29 Ore. 85, 43 P. 947. It is error for the court, over the objection of appellant, to allow the prosecution to put a leading question to the witness, Walter Martin, for the purpose of impeaching the appellant, and afterward to refuse to permit appellant's counsel to cross-examine said witness upon the matter of his answer. (1 Greenleaf on Evidence, sec. 435; Allen v. State, 28 Ga. 396, 73 Am. Dec. 760, and note; 2 Phillips on Evidence, 893; People v. Stock, 1 Idaho 222.) An instruction contrary to law is ground for reversal. (People v. Long, 39 Cal. 694.) An instruction contradicting a correct instruction on a material point is ground for reversal. (State v. Webb, 6 Idaho 428, 55 P. 892; People v. Valencia, 43 Cal. 552; People v. Powell, 87 Cal. 348, 25 P. 486; Plummer v. State, 135 Ind. 308, 34 N.E. 968; 11 Ency. of Pl. & Pr. 145.) The acts and conduct of the deceased alone furnish the test by which the question of self-defense is measured and determined. (People v. Thompson, 92 Cal. 506, 28 P. 590; People v. Hecker, 109 Cal. 451, 42 P. 307.) The judge should limit his instructions to the facts in the case. (Territory v. Evans, 2 Idaho 425, 17 P. 139; People v. Byrnes, 30 Cal. 207; People v. Atherton, 51 Cal. 495; 2 Deering's California Digest, p. 1528, on assumed facts; 11 Ency. of Pl. & Pr. 170, and notes.) An instruction that assumes a material fact is ground for reversal. (Territory v. Kay, (Ariz.), 21 P. 152; People v. Williams, 17 Cal. 142; People v. Hertz, 105 Cal. 660, 39 P. 32.)

Frank Martin, Attorney General, and S. H. Hays, for the State.

Appellant's first contention is that it is incompetent to show flight as a ground for establishing guilt. (United States v. Kuntze, 2 Idaho 480, 21 P. 407; People v. Flannelly, 128 Cal. 83, 60 P. 670; People v. Forsythe, 65 Cal. 101, 3 P. 402.) We admit that a party may impeach his own witness under some circumstances, such, for instance, as when he is entrapped by a hostile witness or deceived as to the testimony he will give. (29 Am. & Eng. Ency. of Law, 811.) But under no circumstances can he deliberately call a witness in his own behalf for the purpose of impeaching him. Oath of jurors. (Clark v. Commonwealth, 123 Pa. 555, 16 A. 795; People v. Whitney, 53 Cal. 420.) Self-defense. (Rev. Stats., sec. 6571; State v. Morey, 25 Ore. 241, 36 P. 575, 36 P. 573, cited by appellant; People v. Bernard, 2 Idaho 193, 10 P. 30.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.



The defendant was convicted of the crime of murder in the second degree, from which judgment of conviction defendant appeals to this court. The matters complained of by appellant are: "The admission of improper evidence over the objection of the appellant; the refusal to admit evidence offered on behalf of appellant; the giving of instructions by the court over the objection of appellant; and the refusal to give instructions asked for by him."

We gather from the record that on the tenth day of September, 1898, in Canyon county, this state, William H. Bradley received a gunshot wound in the head, and died from the effects thereof; that thereafter the defendant was charged with the crime of murder, informed against by the prosecuting officer of Canyon county, placed upon his trial, and on December 22, 1898, was found guilty of murder in the second degree; that on the twenty-ninth day of said month he was sentenced by the judge of said court to the penitentiary of this state for the term of his natural life. The record does not disclose that a motion for a new trial was ever made or passed upon in this case by the trial court; hence we are not called upon to pass upon the sufficiency of the evidence to support the verdict and judgment of the court.

The first assignment of error is the refusal of the court to overrule appellant's objection to the introduction of the testimony of W. H. Taylor, ex-sheriff of Canyon county, as to the flight of appellant, and to afterward give instruction 42, and refuse appellant's request No. 18. Witness testified that he was "sheriff of Canyon county. Have known defendant since about the 1st of September. About the 10th of September, 1898, there was a warrant left at the office for the arrest of the defendant. I don't think I was at home at the time. I can't recall the date when I served it--somewhere along the 14th or 15th. I could not find the defendant before. I searched in parts of the county here." In answer to a suggestion from the prosecuting officer to go on and state just what he did with reference to searching for the defendant, he stated "that after he heard of the killing he organized a posse of ten or twelve men, and searched in different localities where we thought we would be likely to find the defendant. We tracked him close to Emmettsville, and lost track of him there, and about that time the gentleman who was keeping him concealed sent word or came to Caldwell, and notified parties here. Mr. Campbell, I think, went over and got him. I was searching for him about four days." Cross-examination: "Mr. Campbell delivered him to Mr. Madden. I was not here."

Instruction 42, complained of and assigned as error, reads thus: "The flight of a person immediately after the commission of a crime, or after a crime is committed with which he is charged, is a circumstance which the jury may consider in determining the probabilities for or against him--the probabilities of his guilt or innocence; but the weight to which the circumstance is entitled is a matter for the jury to determine, in connection with all the facts called out or proven on the trial." Instruction 18, as requested by the defendant and refused by the court, and alleged as error, reads as follows: "You are instructed that evidence of flight of defendant after the killing is admissible, and should be considered by you only for the purpose of showing who committed the alleged crime, and is not to be considered by you for the purpose of determining the degree of the offense, if you find an offense has been committed." In support of his contention that the court erred in giving instruction 42, and refusing his request 18, appellant cites People v. Ah Choy, 1 Idaho 317. We do not find anything in this case to support the contention of the appellant. We think it was proper for the prosecution to show by the sheriff what efforts he made to apprehend the accused, and the court says: "The jury may consider this fact in determining the probabilities for or against him--the probabilities of his guilt or innocence"--all to be considered in connection with other facts and circumstances in the case. We do not think there was error in this instruction or the admission of this evidence, neither do we think it was error to refuse appellant's request No. 18. (See People v. Flannelly, 128 Cal. 83, 60 P. 670; People v. Forsythe, 65 Cal. 101, 3 P. 402.) In the latter case, almost the identical language was used as was used by the learned judge in his instruction 42, who tried the case at bar. (See, also, State v. Seymour, ante, p. 257, 61 P. 1033.)

The next ruling of the court complained of and alleged as error is that the court permitted "William H. Pope to answer questions as to his statements made to George A. Bryan regarding what transpired at...

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18 cases
  • State v. Morrison
    • United States
    • United States State Supreme Court of Idaho
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    ...instruction herein. The latter part of the instruction therein was not criticized, and is quite similar to the one given herein. If State v. Lyons, supra, be not sufficient justify the instruction on flight given above, similar language has been sustained in the following cases: Thomas v. S......
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    ...semblance of reality, and appear to admit of no other alternative before taking of life will be justified. (People v. Bernard, supra; State v. Lyons, supra; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. State v. Miller, 73 S.C. 277, 114 Am. St. 82, 53 S.E. 426; Weaver v. State, 19 Tex. App. ......
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