State v. Marren

• Citation: 107 P. 993,17 Idaho 766
• Parties: STATE, Respondent, v. THOMAS MARREN, Appellant
• Decision Date: 24 March 1910
• Court: United States State Supreme Court of Idaho

107 P. 993

17 Idaho 766

STATE, Respondent, v. THOMAS MARREN, Appellant

Supreme Court of Idaho

March 24, 1910

SUFFICIENCY OF EVIDENCE-REFRESHING RECOLLECTION-EVIDENCE OF PREPARATION TO COMMIT CRIME-FABRICATED OR FALSE EVIDENCE-INSTRUCTIONS-ARGUMENTATIVE-REVERSAL OF JUDGMENT-QUALIFICATION OF JUROR-NEW TRIAL-SHOWING TO BE MADE.

1. Evidence in this case examined and held to support the verdict of murder of the second degree.

2. Under the provisions of Rev. Codes, sec. 6078, a witness may refresh his recollection by reading evidence given by him upon a former trial, and then testify, if he has an independent recollection of the transaction, to the truth of the transaction or to any fact upon which such reference may refresh his recollection and enable him to speak the truth. (Ailshie, J., dissents.)

3. Evidence which tends to show preparation and plan for the commission of the crime charged is admissible as tending to show intent and purpose to commit the act, and the animus of the person and its weight and credit are entirely for the jury.

4. Evidence which tends to show that the accused has attempted to fabricate or procure false evidence is admissible as tending to show a consciousness of guilt; and it is not necessary, in order to render such evidence admissible, that the falsity or fabrication be proven by direct evidence. Such falsity or fabrication may be determined from the circumstances and proven as any other fact, by circumstantial evidence.

5. An instruction which argues to the jury the weight or relative value of circumstantial evidence as compared with direct evidence is not the statement of a legal proposition, and should not be given to the jury as a charge or part of a charge of the law governing any particular case; and when the court comments upon or argues the relative weight of circumstantial evidence as compared with positive evidence, the instruction is an argument and also invades the province of the jury and is erroneous.

6. The following language contained in an instruction discussing circumstantial evidence, "although the fact may be in a degree surrounded by a doubt," could only have a tendency to confuse the meaning of "reasonable doubt" as given to the jury, and in no way aids the jury in reaching a verdict, and may create a doubt in the minds of the jurors as to the weight of circumstantial evidence and the doubt which would justify an acquittal, and should not be incorporated in an instruction.

7. The court, in instructing the jury, should state propositions of law concisely and intelligibly so that the jury may understand, without indulging in any fine-spun theories as to what the law is, applicable to the facts of the particular case, and not give the jury instructions which tend to mystify and not to aid them in reaching a verdict.

8. All instructions given to the jury should be instructions by the court, and the court should in no way indicate to the jury whether the instructions given are instructions given upon the court's own motion or at the request of either the plaintiff or the defendant, as, under the statute, it is the duty of the court to charge the jury, not particularly because requested by either plaintiff or defendant, but because the charge embraces the law applicable to the particular facts of the case.

9. Rev Codes, sec. 8070, admonishes this court, "After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." And Rev Codes, sec. 8236, provides: "Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right."

10. Under these statutory provisions, a new trial ought never to be granted, notwithstanding some mistake or misdirection by the judge, provided, this court is satisfied that justice has been done and that upon the evidence no other verdict could properly have been found.

11. Even though an instruction is erroneous and ordinarily the error would be material, yet if the circumstantial evidence of the defendant's guilt is satisfactory, that is, such as ordinarily produces moral certainty, or conviction in an unprejudiced mind, and the result could not have been different had the instruction been omitted the case will not be reversed because of such erroneous instruction.

12. To entitle a person convicted of an offense to a new trial on the ground of disqualification of a juror, not disclosed upon voir dire and discovered after verdict, the showing should be clear and conclusive, and the trial court should be clearly satisfied that the defendant had been denied the impartial trial guaranteed to him by the constitution.

13. Where the qualification of a juror is attacked after verdict, upon the ground that the juror was biased and prejudiced and made false answer with reference thereto upon his voir dire, affidavits may be received in evidence upon such hearing, made by persons who testify as to the good reputation for truth and veracity of the juror, and affidavits may be considered made by other jurors who testify that the juror attacked acted fairly and impartially and without prejudice in his consideration of the case.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Edward A. Walters, Judge.

Defendant was convicted of murder of the second degree and appeals from the judgment and order overruling a motion for a new trial. Affirmed.

Affirmed.

Stockslager & Bowen, and K. I. Perky, for Appellant.

The memory of a witness cannot, under our statute, be refreshed by stenographer's transcript of the evidence; it was an attempt to get before the jury the substance of the witness Thurber's testimony taken at the former trial, the purpose of which was to bolster up his testimony. Thurber did not make the stenographer's notes; they were not made under his direction, but under the direction of the court; they were not made when the fact occurred, but seven months thereafter; they were not made at the time the fact was fresh in his memory; he did not know the fact to be correctly stated in the writing. (Morris v. Lachman, 68 Cal. 109, 8 P. 799; Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L. ed. 1118; Brown v. State, 28 Ga. 211; Commonwealth v. Phelps, 11 Gray (77 Mass.), 73; Bashford v. People, 24 Mich. 244; Velott v. Lewis, 102 Pa. 326.)

In this case, if it is sought to establish Marren's guilty conscience as an inference from his false statements, the fact that his statements were false must not be left to conjecture, must not be inferred, must not be uncertain. (Manning v. Insurance Co., 100 U.S. 693, 25 L. ed. 761; United States v. Ross, 92 U.S. 281, 23 L. ed. 707; Ruppert v. Brooklyn H. R. Co., 154 N.Y. 90, 47 N.E. 971; Starkie's Evidence, sec. 57; Douglass v. Mitchell, 35 Pa. 440; People v. Kennedy, 32 N.Y. 141; Railroad Co. v. Henrice, 92 Pa. 431, 434, 37 Am. Rep. 699; Wald v. Railroad Co., 13 Ky. Law Rep. 853, 18 S.W. 850; Chicago R. C. & P. Co. v. Rhoades, 64 Kan. 553, 68 P. 58.)

Plaintiff's requested instruction No. 1 does not state the law fully or fairly, in that it lays especial stress and undue emphasis on certain portions of the state's evidence; that a considerable portion of it was couched in extremely argumentative language; that it contains an ingenious statement and comparison as to the relative value of direct and circumstantial evidence, and language as to the weight of evidence. (People v. O'Brien, 130 Cal. 1, 62 P. 297, 300; In re Blake's Estate, 136 Cal. 306, 89 Am. St. 135, 68 P. 827, 828; People v. MeNamara, 94 Cal. 509, 29 P. 953, 954; People v. Travers, 88 Cal. 233, 26 P. 88; People v. Keith, 141 Cal. 686, 75 P. 304; Goodwin v. State, 96 Ind. 563; Brady v. Commonwealth, 11 Bush (Ky.), 282; Harrison v. State, 9 Tex. App. 407.)

When it appears after trial that a juror had beforehand prejudged the case, but had improperly withheld this fact before acceptance, or when asked as to his opinion on voir dire had given false answers, and such formation of opinion was unknown to the party at the time, a new trial will be granted. (Wharton Crim. Proc., sec. 844; State v. Wright, 112 Iowa 436, 84 N.W. 541; Jeffries v. State, 74 Miss. 675, 21 So. 526; Jordan v. State, 119 Ga. 443, 46 S.E. 679; State v. Giron, 52 La. Ann. 491, 26 So. 985; Fitzgerald v. People, 1 Colo. 56; Troxdale v. State, 28 Tenn. 411; Chartz v. Territory (Ariz.), 32 P. 166.)

The reason for the rule is particularly strong when the evidence is conflicting and circumstantial. (Hyman v. Eames, 41 F. 676.)

D. C. McDougall, Attorney General, J. H. Peterson, O. M. Van Duyn, Assistants Attorney General, H. F. Ensign, Prosecuting Attorney, and Sullivan & Sullivan, for Respondent.

The long line of cases holding that preparation on the part of the accused for the commission of the crime is admissible are entirely applicable to this case. (Bolling v. State, 54 Ark. 588, 16 S.W. 658; People v. McGuire, 135 N.Y. 639, 32 N.E. 146; People v. Williams, 17 Cal. 142; Simmons v. State, 31 Tex.Cr. 227, 20 S.W. 573.)

"A witness may refresh his memory by referring to summary of his testimony given upon a former trial of the action in which his testimony is desired." (11 Ency. of Evidence, 145, note, and cases cited; 1 Greenleaf on Evidence, sec. 436; 50 Am. Digest, cc. 1132, 1133.)

Sec 6078, Rev. Codes, was taken bodily from California and is the exact language of sec. 2047, Code Civ. Proc. of California, and has been construed in People v. Durrant, 116 Cal. 179, 48 P. 75. (See,...