State v. McGinnis

Decision Date31 May 1906
Citation12 Idaho 336,85 P. 1089
PartiesSTATE, Respondent, v. THOMAS J. McGINNIS, Appellant
CourtIdaho Supreme Court

Syllabus by the Court.

While section 7782, Rev. St. 1887, which provides that: " If the indictment is for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant," is mandatory; a brief temporary, and voluntary absence of the defendant from the courtroom during the argument by counsel and ruling by the court on a motion to have the jury view the place where the offense was committed, is not such a violation of the statute and invasion of such a substantial right of the accused as will cause a reversal of a judgment of conviction which is otherwise regular.

[Ed Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1466.]

In a case where the court orders the jury to view the place where it is alleged that the offense was committed, it is error for the court to deny the defendant the right to be present at such inspection if he requests in person or by counsel the privilege of being present.

[Ed Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1474.]

As to whether or not a defendant may waive the right of being present at a view of the place by the jury, quaere. State v. Reed, 35 P. 706, 3 Idaho (Hasb.) 754, criticised and soundness of rule questioned.

Evidence examined in this case, and held that it establishes such a state of culpable and criminal negligence or recklessness and disregard for the safety of human life as to support a verdict of manslaughter.

Certain incompetent and inadmissible statements made by the witness that are disallowed and ruled out by the court, and the jury is admonished not to consider and which are repeated by the witness and the same action taken thereon by the court, reviewed and held, that although reprehensible on the part of the witness, they are not sufficient grounds for a reversal of the judgment.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.

Appellant was prosecuted on information by the county attorney, charged with the crime of manslaughter and was convicted as charged. He moved for a new trial and his motion was denied, and he thereafter appealed from the judgment and order. Affirmed.

Affirmed.

T. D. Cahalan, Frank Martin and C. F. Koelsch, for Appellant.

The defendant not only has the right to be present at every stage of his trial, but he must be present--it is a right which he cannot waive. (Cooley on Constitutional Limitations, sec. 319; Clark's Criminal Procedure, sec. 148; State v. Jenkins, 84 N.C. 812, 37 Am. Rep. 643; People v. Kohler, 5 Cal. 72; People v. Higgins, 59 Cal. 357; Gladden v. State, 12 Fla. 562; Smith v. people, 8 Colo. 457, 8 P. 920; Jackson v. Commonwealth, 19 Gratt. (Va.) 656; Adams v. State, 28 Fla. 511, 10 So. 106; Rolls v. State, 52 Miss. 391; State v. Smith, 44 Kan. 75, 21 Am. St. Rep. 266, 24 P. 84, 8 L. R. A. 774; Lovett v. State, 29 Fla. 356, 11 So. 172; Bearden v. State, 44 Ark. 331; State v. Schoenwald, 31 Mo. 147; Andrews v. State, 34 Tenn. (2 Sneed) 550; Younger v. State, 2 W.Va. 579, 98 Am. Dec. 791.)

The improper statements of the witness Packenham on the witness-stand were highly prejudicial to the defendant and calculated to bias the minds of the jury against him. (State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716.)

The record in this case does not show criminal negligence on the part of the defendant. Negligence rendering a man liable in a civil action for damages does not necessarily render him criminally responsible. To have this effect it must be gross. (Clark & Marshall on Law of Crimes, sec. 264; McLain on Criminal Law, sec. 130; Hughes on Criminal Law and Practice, sec. 54; Wharton on Homicide, sec. 477; Chrystal v. Commonwealth, 9 Bush, 669; State v. Justus, 11 Or. 178, 50 Am. Rep. 470, 8 P. 337; Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333; State v. Hardie, 47 Iowa 647, 26 Am. Rep. 496; Cleghorn v. Thompson, 62 Kan. 727, 64 P. 605.)

J. J. Guheen, Attorney General, Edwin Snow, Philip R. Hindman and J. H. Hawley, Special Prosecutor, for Respondent.

No affidavits are admissible to impeach or contradict the court record. (11 Cyc. 657; People v. Judge, 9 Cal. 19; Hahn v. Kelley, 34 Cal. 391, 94 Am. Dec. 742.)

Where the record shows that the accused was present at the commencement of his trial, and nothing to the contrary appears therefrom, it will be presumed that he was present at every subsequent state of the proceeding down to the rendering of the final judgment of the court. (Dodge v. People, 4 Neb. 220; Rhodes v. State, 23 Ind. 24; Brown v. State, 13 Ark. 96; Smith v. State, 60 Ga. 430; Harriman v. State, 2 Greene (Iowa), 270; Stephens v. People, 19 N.Y. 549; Holmes v. Commonwealth, 25 Pa. 221; State v. Craton, 6 Ired. (28 N. C.) 164; Grimm v. People, 14 Mich. 300.)

Where, upon the trial of a criminal case, a view of the premises is directed upon motion of the defendant, and no request or expression of desire upon his part to be present at such view is made, his absence from such view is not ground for a new trial. (State v. Reed, 3 Idaho 754, 35 P. 706.)

The contumacy of a witness, in persisting in answering a question after the court has ruled it out, furnishes no ground for reversal when the court has expressly instructed the jury to disregard the answer. (State v. Butterfield, 75 Mo. 297; People v. Mead, 50 Mich. 228, 15 N.W. 95.)

AILSHIE, J. Stockslager, C. J., concurs, Sullivan, J., concurs in the conclusion.

OPINION

AILSHIE, J.

The defendant was charged by information of the public prosecutor with the crime of manslaughter in willfully and unlawfully shooting one C. A. Packenham, at the county of Ada, state of Idaho on the twenty-fifth day of November, 1903. The trial which took place in February, 1905, resulted in a verdict of guilty, and the defendant was thereafter sentenced to imprisonment in the state penitentiary for a term of six years. This appeal is prosecuted from the judgment and from an order denying defendant's motion for a new trial. The principal facts leading up to and surrounding the homicide are briefly as follows: The defendant left Boise City during the early afternoon of November 25, 1903, with a team, accompanied by James Kelley and Clarence Still, and went up what is commonly known as the Highland Valley road. The three of them were starting on a hunting trip and the wagon was loaded with camp outfit, and they all had their guns. When they reached a point about three-quarters of a mile beyond the Kelley Hot Springs, and some five or six miles from Boise, while driving along the road the defendant McGinnis remarked to his companions that he could hit a certain rock, pointing it out, to the left of the road about two hundred feet distant. Kelley advised him to save his ammunition as it was too close a shot. They drove on a distance of eleven hundred or twelve hundred feet and came to a slight ascent in the road where they stopped the team to rest, and Still appears to have gotten out of the wagon to fix something about the harness. The defendant turned round in the wagon seat and remarked to his companions, "I can hit that rock from here," and took aim and fired. Kelley says he turned round about the same time and saw dust rising on a sandy knoll about five hundred feet distant from the point of firing and in line between the point from which the defendant fired and the rock, and at the same time saw a man fall in the road about two hundred feet from the rock at which the defendant had fired. Kelley remarked, "There is something wrong with that fellow back there; he is hurt or something"; to which the defendant replied, "I guess not; there is no man back there." After a few words were passed between them they told Still to get in the wagon and they turned and drove back and found the man lying in the road wounded by gunshot. The ball had entered the neck just above the collar bone, and, ranging backward and downward, had passed through the lungs and lodged in the third rib on the right side. They put him in their wagon and brought him to Boise, where they placed him in a hospital and where he received medical treatment and attention until the first day of December, on which date he died. The defendant was taken into custody by the officers soon after the wounded man was placed in the hospital. Packenham made an ante-mortem statement that was admitted in evidence, in which he said: "Above the Kelley Hot Springs on the road to Highland Valley, as I was passing along on foot, the above-named men (referring to McGinnis, Kelley and Still) appeared behind me on the road in a buggy. I made a cut-off and while off the road they passed me, and after some little distance I came into the road behind them near the Bedell house. They stopped near the Bedell house, and one of them got out and was fooling around when a shot was fired. I felt the bullet strike me in the throat. I began to get dizzy and squatted down to keep from falling. I motioned to them. They stayed there awhile and then got into the buggy and went on a piece; after awhile they turned and came back and stood around awhile, and then they put me in the wagon and brought me to town." The state has contended throughout the case that the killing was due to the criminal negligence of the defendant, or that if it was the result of the commission of a lawful act, that the same was done "without due caution and circumspection." On the other hand, the defendant claims that "the deceased met his death by accident and misfortune, through the unforeseen deflection of a bullet, which occurred in a manner which could not have been...

To continue reading

Request your trial
17 cases
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ...v. Sly, 11 Idaho 110, 80 P. 1125; State v. Wetter, 11 Idaho 433, 83 P. 341; State v. Bond, 12 Idaho 424, 86 P. 43; State v. McGinnis, 12 Idaho 336, 85 P. 1089; In re Squires, 13 Idaho 624, 92 P. 754; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Phinney, 13 Idaho 307, 89 P. 634, 12 L.R.......
  • State v. Baker
    • United States
    • Idaho Supreme Court
    • 21 Marzo 1916
    ...v. Kuok Wah Choi, 2 Idaho 90, 6 P. 112; State v. Reed, 3 Idaho 754, 35 P. 706; State v. Schieler, 4 Idaho 120, 37 P. 272; State v. McGinnis, 12 Idaho 336, 85 P. 1089; State v. Roe, 19 Idaho 416, 113 P. 461; v. Challis, 22 Idaho 749, 128 P. 570.) Sec. 7878, supra , which provides that a view......
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ... ... 76 P. 766; State v. Rooke , 10 Idaho 388, 79 P. 82; ... State v. Harness, 11 Idaho 122, 80 P. 1129; ... State v. Sly, 11 Idaho 110, 80 P. 1125; State v ... Wetter , 11 Idaho 433, 83 P. 341; State v. Bond, ... 12 Idaho 424, 86 P. 43; State v. McGinnis, 12 Idaho ... 336, 85 P. 1089; In re Squires , 13 Idaho 624, 92 P ... 754; State v. Barber , 13 Idaho 65, 88 P. 418; ... State v. Phinney , 13 Idaho 307, 89 P. 634, 12 ... L.R.A.(N.S.) 935, 12 Ann.Cas. 1079; State v ... Zarlenga , 14 Idaho 305, 94 P. 55; State v ... Squires, 15 ... ...
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ...v. Sly, 11 Idaho 110, 80 P. 1125; State v. Wetter, 11 Idaho 433, 83 P. 341; State v. Bond, 12 Idaho 424, 86 P. 43; State v. McGinnis, 12 Idaho 336, 85 P. 1089; In re Squires, 13 Idaho 624, 92 P. 754; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Phinney, 13 Idaho 307, 89 P. 634, 12 L.R.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT