State v. McClurg, 5622

Decision Date25 June 1931
Docket Number5622
Citation300 P. 898,50 Idaho 762
PartiesSTATE, Respondent, v. JOHN C. McCLURG, Appellant
CourtIdaho Supreme Court


1. Information charging crime of murder substantially in language of statute, held sufficient (C. S., secs 8825-8827).

2. Fact of there having been preliminary examination need not be set forth in information charging murder (Const., art. 1, sec. 8; C. S., sec. 8816).

3. Statutes authorized district judge to change place of holding court to another building in same town (C. S., secs. 6485 6487).

4. That murder trial was held in church annex held not prejudicial to defendant.

5. Defendant in murder prosecution could not complain that court changed place of trial to church annex on ground that hall designated by commissioners was unsafe, where no injury was shown (C. S., sec. 6485).

6. Granting of motion for change of venue in criminal action largely in trial judge's sound discretion.

7. Refusal to change venue held not reversible error, where it manifestly appeared defendant had fair trial and no trouble was experienced in obtaining impartial jury.

8. In murder case, court did not abuse discretion in denying motion for change of venue on ground that fair and impartial trial could not be had.

9. Continuance of murder case for absent witnesses held properly denied because of insufficient showing of diligence.

10. Showing required on motion for continuance on ground of absent witnesses stated.

11. Application for continuance is addressed to trial court's sound judicial discretion, and its ruling will not be set aside, unless discretion was abused.

12. Appeal from order denying defendant's application for change of venue, not being "final order," and not coming within statute respecting appeal, did not stay proceedings in trial court (C. S., secs. 8902, 9068).

13. Order denying defendant's application for change of venue, is only reviewable on appeal from final judgment (C S., secs. 8902, 9068).

14. Exception to challenge to panel amounts to demurrer thereto and admits facts stated therein (C. S., sec. 8918).

15. Where state excepted to defendant's challenge to panel it was unnecessary to try challenge if it failed to state facts which, if admitted, were insufficient to sustain it (C. S., sec. 8918).

16. If officers named were present and participated in drawing of panel, whether they had notice contemplated by statute of time and place of drawing held immaterial (C. S., sec. 6530).

17. Challenge to panel can be founded only on material departure from forms prescribed respecting drawing and return of jury, or on intentional omission of sheriff to summon jurors drawn (C. S., sec. 8915).

18. "Material departures" are only such as affect substantial rights of defendant in securing an impartial jury (C. S., sec. 8915).

19. Errors complained of in challenge to jury, including failure of clerk to enter exception to challenge in minutes, held not "material departures" prejudicing defendant in murder case (C. S., sec. 8915).

20. In murder prosecution, evidence regarding statements defendant made at coroner's inquest held admissible against objection that oral testimony was not best evidence.

21. In murder prosecution, members of coroner's jury or coroner may testify regarding defendant's voluntary admissions made at coroner's inquest.

22. Statements of witness, at coroner's inquest, not then under arrest or accused of crime, are regarded as voluntary, and are admissible in his trial for murder, though he was not cautioned regarding rights before giving testimony at inquest.

23. Federal constitutional provisions that no person shall be compelled to testify against himself in criminal case held limitation powers of federal government (Const., U.S. , Amends. 5, 14).

24. Witness may waive privilege of refusing to testify on ground it may incriminate him by answering questions without objection (Const., art. 1, sec. 13).

25. Extent of cross-examination on collateral and immaterial issues rests largely in discretion of trial judge.

26. In murder prosecution, where insurance agent testified defendant had called regarding insurance on deceased's life, but also testified that some business was discussed, rejecting inquiry regarding other business held proper.

27. Generally, proof of existence at particular time of fact of continuous nature gives rise to inference within logical limits that it exists at subsequent time.

28. Evidence, in wife murder case, that defendant and another were husband and wife three years before murder trial, warranted inference that marriage continued until subsequent filing of complaint for divorce.

29. There was inference of fact that identity of names of defendant in divorce action and defendant in murder case indicated an identity of persons.

30. Motive for murder need not be proved, if evidence of guilt is otherwise sufficient.

31. In murder prosecution, state made prima facie proof entitling divorce complaint against defendant, properly certified, to admission in evidence, though there was no direct identification of defendant as defendant in divorce action.

32. In prosecution for wife murder, evidence that defendant had attempted to marry deceased without divorce from wife being granted, and was open to prosecution for bigamy, held admissible to establish motive.

33. In prosecution for wife murder, relations of defendant and wife shortly before killing held admissible on question of motive.

34. In wife murder case, evidence regarding automobile ride of witnesses with defendant and wife shortly before killing and defendant's treatment of wife held admissible.

35. In wife murder case, evidence that defendant and deceased lived together before marriage, that deceased was pregnant before marriage, and that both wanted to get rid of child, and other evidence regarding relations between defendant and deceased, held admissible on question of motive.

36. In wife murder case, evidence of unwilling marriage held admissible to rebut presumption of affection.

37. Where it was not assigned as error, and not argued on appeal that jury received prejudicial evidence on view by jury, it must be assumed there was no prejudice to defendant because of receipt of improper evidence.

38. Where defendant did not request trial judge's attendance at view by jury, or attendance by defendant himself to accompany jury, and made no prompt objection, defendant is deemed to have waived objection on account of such failure to attend view, absent showing of prejudice (C. S., secs. 8905, 8964).

39. Where timely objection was not made to appointment of sheriff and deputy to take jury to view scene of murder and point out points designated, defendant waived right to object.

40. In murder prosecution, instruction respecting jury's view of premises held not erroneous (C. S., sec. 8964).

41. Refusal to give instruction advising jury to acquit held not reviewable in supreme court (C. S., sec. 8963).

42. In murder prosecution, defendant held not prejudiced by court's refusal to cause jury to retire when written motion was made to instruct jury to acquit.

43. In murder prosecution, corpus delicti, where evidence is entirely circumstantial, need not be proven beyond doubt, and to degree to exclude every other hypothesis than that of guilt.

44. Where evidence in homicide case is entirely circumstantial corpus delicti need be proven only to degree excluding every other reasonable hypothesis.

45. Refusing instruction regarding defendant's failure to testify, fully covered by instructions given, held not error.

46. In murder prosecution, where evidence was circumstantial, instruction on duty of state to prove wilfulness, deliberation, premeditation, and malice aforethought held not erroneous because failing to charge facts must be proven beyond reasonable doubt and to exclusion of any other reasonable hypothesis, in view of another instruction.

47. In murder prosecution, instruction that corpus delicti must be proven beyond reasonable doubt held not erroneous because not adding that, where evidence is entirely circumstantial, it must be proven to exclusion of every other reasonable hypothesis where such element was covered in instruction regarding circumstantial evidence.

48. Instruction must be read, considered, and applied as whole.

49. Instructions to effect that instructions must be considered together held proper.

50. Statute does not require that trial judge serve copy of instructions on litigants before argument (C. S., sec. 9040).

51. Defendant held not prejudiced by delay in filing instructions or failure to file them, where he was able to have them reviewed on record presented (C. S., sec. 9191; Laws 1927, chap. 24).

52. Matters not ground for demurrer to information could not be considered on motion in arrest of judgment (C. S., sec. 9019).

53. In murder prosecution, prosecuting attorney's action in contending in opening statement that motive for murder was collection of insurance, and stating in argument that real motive was defendant's fear that he would be charged with bigamy, held not improper.

54. Where timely objection is not made, defendant will be deemed to have waived objection to argument by state's attorney.

55. Evidence held sufficient to sustain conviction for murder in first degree. [Copyrighted Material Omitted]

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Arthur O. Sutton, Judge.


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    • United States
    • Idaho Supreme Court
    • May 19, 1932
    ... ... in the following cases: State v. Sullivan, 34 Idaho ... 68, 17 A. L. R. 902, 199 P. 647; State v. McClurg, ... 50 Idaho 762, 300 P. 898. Conceding that corpus ... delicti means only that a crime has been committed, the ... fact that the court ... ...
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    ...there was no such admonitory instruction. This evidence was clearly admissible as against Fox as bearing on motive. In State v. McClurg, 50 Idaho 762, 790, 300 P. 898, court said: "The evidence was not offered to convict appellant of bigamy, or adultery, but to establish a motive for killin......
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    ...go beyond the matters testified to on the direct examination or connected therewith it will not be held to be error. In State v. McClurg, 50 Idaho 762, at 788, 300 P. 898, the rule is stated "The extent to which the cross-examination on collateral or immaterial issues may be limited is larg......
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