State v. McKenna

• Decision Date: 28 March 1957
• Docket Number: No. 8480,8480
• Citation: 309 P.2d 206,78 Idaho 647
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Don McKENNA, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 206

309 P.2d 206

78 Idaho 647

STATE of Idaho, Plaintiff-Respondent, v. Don McKENNA, Defendant-Appellant.

No. 8480.

Supreme Court of Idaho.

March 28, 1957.

Rehearing Denied April 15, 1957.

Meek & Miller, Caldwell, for appellant.

Graydon W. Smith, Atty. Gen., Lloyd C. McClintick, Pros. Atty., Nampa, J. R. Smead, Asst. Atty. Gen., for respondent.

PORTER, Justice.

Appellant was convicted in the District Court of Canyon County of the crime of assault with intent to commit robbery. He has appealed to this court from the judgment of conviction.

The evidence on behalf of the State shows the facts hereinafter set out. On December 31, 1955, Marvin L. Williams, a retired laborer 75 years of age, was living alone in his cabin in Nampa. He had on his person more than $2,500 in cash which he had been carrying for some time.

Appellant, during the months of November and December, 1955, was employed at the Simplot Dehydrating Plant in Caldwell. He worked a shift commencing at twelve o'clock at night. After getting off work in the morning, he would frequently drop into Milliner's Inn in Caldwell for a bottle of beer. In the latter part of November, 1955, he had a conversation with the witness, Harris Talley, who was also a frequenter of Milliner's Inn. He told Talley that there was an old man living in Nampa who carried two or three thousand dollars in cash around on his person. They then discussed trying to get this money. Shortly thereafter, they drove in Talley's automobile one evening over to Nampa and to the home of Mr. Williams. Appellant sat in the automobile while Talley went into the cabin of Williams, talked with him a few minutes and looked the place over. Talley then came back to the automobile and they drove back to Nampa.

Appellant and Talley had several conversations about the matter during the month of December. The witness, Robert Pierce, also had a conversation with appellant at Milliner's Inn on December 30th concerning which Pierce testified as follows:

'Q. What was said at this conversation? A. Mr. McKenna asked me if I would help him do a job. I said I would. He told me there was a fellow in Nampa that we could--he--hit him on his head and take his money, and that would be all there was to it. Then he asked me if I had someone that would help me, and I told him I did.'

On the evening of December 30th, appellant, Talley, John Hicks and Robert Pierce went in Talley's car from Caldwell to Nampa and parked near the home of Williams. Hicks, Pierce and Talley got out of the car, went down the alley and Talley pointed out to Hicks and Pierce the cabin of Williams. Talley then came back to the car where appellant had remained. Hicks and Pierce decided not to go through with the robbery, waited awhile and then came back to the car and stated that Williams was not at home. Hicks and Pierce got in the automobile and they all went back to Caldwell. Appellant said he had to go to work and asked that he be taken to his car which was done. During the trip back someone said that they had gone too late and that they should go earlier if they tried it again.

Appellant is an experienced bartender. He did not have to work at Simplot's on the night of December 31st. He accepted temporary employment for that night as a bartender at the Bamboo Room of the Golden Pheasant Cafe. That evening Talley called appellant over the telephone and asked to use appellant's car. Concerning this telephone conversation, Talley testified as follows:

'Q. Did you state of Mr. McKenna why you wanted to use the car? A. I said I thought I would go over to Nampa.

'Q. Did you state for what purpose? A. I may have.

'Q. Well, did you? A. Yes, I believe I did.

'Q. What was that? A. To take Hicks and those two boys over, and they said they was going to try to get the money from Mr. Williams.

'Q. Hicks and what two boys? A. I think one of them's name was Downard and the other was Newby or something like that.

'Q. Then, did McKenna consent that you could use his car? A. Yes.

'Q. Pursuant to this telephone conversation, did you go get his car? A. Yes.'

Talley went to the Bamboo Room and got the keys to the car from appellant. Talley, John Hicks, Robert Lee Downard and Floyd Darbin drove in appellant's car to Nampa and parked near the home of Williams. Talley remained in the car and the other three went into the house. One of them grabbed Williams, another started beating him about the head with a blackjack and the third one began searching his pockets. Williams succeeded in breaking loose, stepped into his bedroom and secured his gun. He shot all three of his assailants. Downard and Darbin were fatally wounded but Hicks recovered although he lost the sight of one eye. Talley drove back to Caldwell and returned appellant's car. Talley then had some conversation with appellant with reference to an alibi.

Appellant sets out ten specifications of error in his brief. Specification of Error No. I is that the court erred in the admission in evidence of State's Exhibit No. 6, the same being a blackjack, for the reason that such exhibit was never identified as having been used in the commission of the crime, was not found at the scene of the crime and was never in any way connected with the defendant. The evidence discloses that Harris Talley had owned a blackjack since 1946. That he had his blackjack with him on the trip from Caldwell to Nampa the evening of December 30th. That he gave the blackjack to Pierce before Pierce and Hicks went to the home of Williams. That when they returned, Pierce gave the blackjack back to Talley. That Talley had the blackjack with him on the night of December 31st. That he gave the blackjack to Darbin when Darbin, Hicks and Downard started to the home of Williams. Officer Honeycutt, who went to the scene of the attempted robbery immediately after it had occurred, gave the blackjack, State's Exhibit No. 6, and Darbin's clothing to Officer Baker who had custody of the blackjack thereafter.

Witness Talley identified Exhibit No. 6 as his blackjack by reason of its color, although on cross-examination he admitted the difficulty of identifying a blackjack with complete certainty. However, there is no question here of distinguishing between two blackjacks. No other blackjack is mentioned in the evidence. The evidence as to the identity of State's Exhibit No. 6 and its connection with the offense was sufficient for submission of the matter to the jury. The court did not err in admitting State's Exhibit No. 6 in evidence.

Specification of Error No. II is that the court erred in admitting evidence of a telephone conversation between the witness Talley and appellant on the ground there was no proper foundation laid for the admission of such conversation. This is the telephone conversation testified to by the witness Talley as occurring on the evening of December 31st wherein he asked to borrow appellant's car. In his direct examination, appellant admitted such telephone conversation and testified to what was said therein. Appellant cannot now predicate error upon any alleged failure to lay a proper foundation for the admission in evidence of such telephone conversation.

Specification of Error No. III is that the court abused its discretion in allowing the Prosecuting Attorney to ask leading questions of witnesses for the State, particularly, the witness Talley. The questions and answers complained of are too long to be set out herein. An examination of same indicates that the court was strict in its rulings and did not in any way abuse its discretion in overruling objections to questions by the State.

Specification of Error No. IV is that the court erred in refusing to grant appellant's motion to quash and set aside the information on the ground that no proper preliminary examination had been had as the record shows the magistrate refused to grant appellant's motion for the exclusion of all persons under the provisions of Section 19-811, I.C. This section reads as follows:

'The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general, the prosecuting attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.'

Committing magistrates should abide by and enforce the provisions of this section. However, a failure to do so is not necessarily prejudicial error. The enforcement of this section is not a jurisdictional matter but is a procedural one. The affidavit of Attorney Dean Miller in support of the motion to quash the information shows that there was present at the preliminary hearing a newspaper reporter and several other people. However, the record, including such affidavit, does not show any prejudice resulting to appellant from the magistrate's failure to grant appellant's motion to...