State v. McGann

• Decision Date: 18 November 1901
• Citation: 8 Idaho 40,66 P. 823
• Parties: STATE v. McGANN
• Court: Idaho Supreme Court

66 P. 823

8 Idaho 40

STATE v. McGANN

Supreme Court of Idaho

November 18, 1901

INFORMATION-MOTION TO QUASII.-An information in a criminal case should not be quashed on the ground that a witness who testified that he was a physician, and lived in the county where the offense alleged was committed, did not state his occupation and place of residence.

SAME-ASSIGNMENT OF ERROR, HOW MADE.-One of the errors assigned is that the court refused to quash the information, on the ground that "the depositions do not state the ground on which a question put to the witness was overruled." Held, that this assignment of error is too general in its terms, and will not be reviewed on appeal.

CRIMINAL LAW-AMENDING CERTIFICATE OF COMMITTING MAGISTRATE-JURISDICTION.-The trial court permitted the committing magistrate to amend his certificate to the depositions taken before him at the preliminary examination at the county seat, which is outside his district, but in his county. Held, not error, and that the justice had jurisdiction to amend such certificate with leave of the court.

CRIMINAL LAW-INFORMATION-COUNTY OR PROSECUTING ATTORNEY.-A motion to quash an information in a criminal case, on the ground that the "prosecuting attorney" signed it as "county attorney," is properly denied.

CRIMINAL LAW-EVIDENCE.-It is not error for the trial court to permit a witness to show what part of the body of deceased a wound was inflicted by pointing out the corresponding part of his own body.

CRIMINAL INFORMATION-CORRECTING NAME OF WITNESS ON SAME.-It is not error to permit the prosecuting attorney to correct an error made in indorsing the name of a witness on an information where there is no showing that it misled or prejudiced the defendant.

EVIDENCE-CRIMINAL LAW.-The state was permitted to show that within less than a half hour after the homicide the accused tore down and burned a house upon the land over which the controversy between the accused and the deceased arose. Held, that such evidence was admissible for the purpose of showing the intent of the accused.

SAME.-Evidence of the reputation of a witness for peace and quietude is not ordinarily, admissible in a prosecution of a defendant charged with homicide.

ASSIGNMENT OF ERROR.-Assignments of error must be sufficiently specific to point out the particular error complained of, else same will not be considered upon appeal.

SUFFICIENCY OF EXCEPTIONS.-An exception, and assignment of error based thereon, to an instruction in a criminal case, on the ground that it is oral, is not sufficient where it fails to state the substance of the instruction so that the appellate court may determine whether the so-called instruction is, in fact an instruction or statement by the trial court of the law of the case, or any portion thereof.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Affirmed.

J. F Ailshie, for Appellant.

The depositions taken at the preliminary examination and the certificate of the magistrate made at the time do not comply with sections 7571 and 7576 of the Revised Statutes in this: The deposition of T. W. Nickel does not state the "business or profession" of the witness and does not state "his place of residence." The depositions do not state the ground on which "a question put to the witness was overruled." (State v. Braithwaite, 3 Idaho 119, 27 P. 731; State v. Farris, 5 Idaho 666, 51 P. 772; State v. Clark, 4 Idaho 7, 35 P. 711.) The acts of a justice of the peace performed while out of his precinct are void; and this is true whether they are judicial in their character, quasi judicial or merely ministerial. (Wilcox v. Johnson, 34 Kan. 655, 9 P. 612; Phillips v. Thrall, 26 Kan. 780; 12 Am. & Eng. Ency. of Law, 404, and note 5 thereto.) The complaint before the magistrate did not charge the crime of murder and therefore did not give the magistrate jurisdiction to hold a preliminary examination, and conferred no jurisdiction on the prosecutor to file an information. (Rev. Stats., secs. 7516, 7571; Miller v. United States, 8 Okla. 315, 57 P. 836.) To allow a witness to illustrate to the jury evidence he obtained from an inspection of the body of the deceased in the absence of the defendant is to allow the witness to place his own construction upon the evidence and demonstrate to the jury his individual theory of the case. (People v. Bush, 68 Cal. 623, 10 P. 169, and case there cited.) The court erred in overruling defendant's objection to the following questions propounded by the state to the witness Herbert Leach and in permitting the witness to answer each: "What cabin?" "What did he do?" "Describe how he tore it down." "Who drove it after it was hooked on to the cabin?" "Did he do anything else with any other property around there?" This class of evidence tended to prejudice the jury against the defendant, was not a part of the res gestae, tended to establish the commission of another and separate offense, viz., arson. That the offense here proven was participated in by the witness and was directed against the property of a person other than the deceased. (Underhill on Criminal Evidence, secs. 86, 87; People v. Jones, 31 Cal. 571; 1 Greenleaf on Evidence, secs. 51, 52; Roscoe's Criminal Evidence, 7th ed., 80, and note; People v. Baird, 104 Cal. 462, 38 P. 310; State v. Raynolds, 5 Kan. App. 515, 47 P. 574.)

Frank Martin, Attorney General, for the State.

This court has held that technicalities or defects in the preliminary examination of the defendant will not render it invalid unless they actually prejudice the defendant or tend to his prejudice in respect to some substantial right. (State v. Clark, 4 Idaho 7, 35 P. 710; People v. Sehorn, 116 Cal. 503, 48 P. 495; People v. Rodrigo, 69 Cal. 601, 11 P. 481.) There is no question but that the magistrate had a perfect right by leave of the court to amend his certificate so as to make it state the actual facts in regard to the taking of the depositions and to put it in such a form as the statute required. (State v. Geary, 58 Kan. 502, 49 P. 596; People v. Lane, 101 Cal. 513, 36 P. 16; Ex parte Keil, 85 Cal. 310, 24 P. 742.) "The limit of the county is the limit of jurisdiction in matters of preliminary examinations." (State v. Griffin, 4 Idaho 462, 40 P. 58.) It will hardly be contended that should the county attorney by inadvertence or mistake omit from the information when it was filed the name of a witness then known to him, the name can never thereafter be properly indorsed upon the information and that the state would be deprived of the testimony he would give had his name been so indorsed. But in such case the court unquestionably has the power in the exercise of a proper discretion, to permit such name to be indorsed and the witness to testify. (State v. Calder, 23 Mont. 504, 59 P. 903; State v. Schnepel, 23 Mont. 523, 59 P. 927; People v. Jocelyn, 29 Cal. 564.) It is often permissible upon the trial of a defendant to show the commission by him of another and separate crime where such crime has been committed in point of time close to the one for which he is being tried and tends to throw some light upon the offense for which he is being tried. (People v. Walters, 98 Cal. 138, 32 P. 864; People v. Cunningham, 66 Cal. 668, 4 P. 1144, 6 P. 700, 846; People v. McGilver, 67 Cal. 55, 7 P. 49.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

The appellant was prosecuted in the district court in and for Idaho county upon an information of the prosecuting attorney charging the appellant with the crime of murder in the first degree, and was on the twenty-sixth day of May, 1901, found guilty of manslaughter by the jury, and thereafter was duly sentenced by the district court to serve a period of ten years at hard labor in the state penitentiary. From the judgment of conviction against him, appellant appeals to this court.

A number of assignments of error are made by appellant, based upon the action of the court before and during the trial, and duly excepted to by the appellant, all of which appears in appellant's bill of exceptions.

The first error assigned is the action of the court in overruling appellant's motion to set aside the information. This motion is based upon the ground that the depositions taken at the preliminary examination, and the certificate of the magistrate made at the time, do not comply with sections 7571 and 7576 of the Revised Statutes, in the following particulars: 1. The deposition of the witness Nickel does not state the business or profession of the witness, or his place of residence. 2. The deposition does not state the ground upon which one question put to one of the witnesses was overruled. 3. The certificate of the committing magistrate did not show that the witnesses were sworn before testifying and failed to show other matters required to be shown by the statutes. 4. The amended certificate signed by the committing magistrate was without jurisdiction. 5. The information was not presented or signed by any officer known to the constitution. 6. The complaint before the committing magistrate did not charge the crime of murder, for which reason the committing magistrate had no jurisdiction to hold a preliminary examination. Therefore the prosecuting attorney had no authority to file an information. The first ground of the motion is not well taken. The witness Nickel testified that he was coroner of the county, and was a practicing physician within that county. This objection is purely technical. The second ground of the motion is not sufficiently stated by the appellant. The ground as stated in his assignment of error is as follows: "The depositions do not state the ground on which a question put to the witness was overruled." The...