State v. McLennan
| Citation | 40 Idaho 286,231 P. 718 |
| Parties | STATE, Respondent, v. KENNETH McLENNAN, Appellant |
| Decision Date | 03 January 1925 |
| Court | Idaho Supreme Court |
CRIMINAL PROCEDURE-CHANGE OF VENUE-WHEN PROPERLY DENIED-INCRIMINATING EVIDENCE-WHEN LAWFULLY OBTAINED ADMISSIBLE-CHALLENGE TO PANEL-PROVING THE CORPUS DELICTI-CIRCUMSTANTIAL EVIDENCE-WHEN SUFFICIENT TO SUSTAIN CONVICTION-REQUESTED INSTRUCTION-WHEN IMPROPER IN FORM SHOULD BE REFUSED.
1. Granting a change of venue in a criminal action is largely within the discretion of the trial judge, and its denial will not be reversible error where it appears from the entire record that defendant had a fair trial.
2. It is not sufficient in support of a motion for change of venue to show that great prejudice exists against the accused; it must appear that the prejudice against him is so great as to prevent him from having a fair and impartial trial, and where the evidence in support of and against such motion is conflicting, and it further appears that the defendant did have a fair trial, the court's decision denying a change will not be reversed upon appeal.
3. Where one accused of having commited a homicide, by means of a gun, after his arrest is asked by the officers having him in custody if he has any firearms in his house and he replies that he has not had any in years, and gives the key to his house to one of the officers and tells them to search the same, and they do so and find a revolver concealed from view in the door casing, loaded, with the exception of one exploded shell, this evidence is not unlawfully obtained because the officers at the same time had a search-warrant authorizing them to search the house for contraband liquor.
4. Where one under arrest, charged with a felony, hands the key to his house to an officer, in the presence of the sheriff who has a search-warrant, and notifies such officers to search his house, no question arises as to the search being illegal, since the defendant voluntarily submitted to the search being made, and the evidence obtained by such search is admissible against the defendant.
5. C S., sec. 8915, prescribing the grounds for a challenge to the panel, does not authorize such a challenge because the name of a juror was inadvertently misspelled in the summons requiring his attendance as a juror.
6. Prejudicial error will not be presumed, but it must affirmatively appear from the record that such error prevented the defendant from having a fair trial.
7. While a conviction for a crime cannot be had unless the corpus delicti, that is, the fact that a crime has been committed, is first established, this may be done by circumstantial evidence where such evidence is sufficient to exclude all uncertainty.
8. Where the body of a deceased person is found soon after death, caused by a gunshot wound, and all the circumstances show that the infliction of the wound was not the result of accident, or self-inflicted, the corpus delicti is sufficiently established.
9. Any fact which becomes material in a criminal prosecution may, as a rule, be established by circumstantial as well as by direct evidence, and circumstantial evidence alone will support a conviction if it produces a belief, beyond a reasonable doubt, in the minds of the jury that the accused is guilty.
10. While it is necessary, in order to sustain a conviction based solely on circumstantial evidence, that such circumstances shall be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt, the evidence need not demonstrate the guilt of the defendant beyond the possibility of his innocence; and if the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt, they need not be absolutely incompatible with the innocence of the accused.
11. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. To render evidence of collateral facts competent there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish.
12. A request which instructs the jury that the absence of all evidence of an inducing cause or motive to commit the crime when the fact is in reasonable doubt as to who committed it affords a strong presumption of innocence, is objectionable in form, and the giving of the same should be refused.
13. Evidence considered and found sufficient to support the judgment of conviction.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.
Judgment of conviction for second degree murder. Affirmed.
Affirmed.
Clarence S. Hill, for Appellant.
Where it is shown that newspaper articles highly detrimental to the defendant have been published and distributed, and that the result of said publication and distribution was to create in the minds of the people of the county a widespread belief in the defendant's guilt, it is an abuse of discretion on the part of the trial court to deny a change of venue. (State v. Perkins, 36 S.D. 579, 156 N.W. 73; Cox v. State, 90 Tex. Cr. 106, 234 S.W. 72; State v Dwyer, 29 Nev. 421, 91 P. 305; People v. Suesser, 132 Cal. 631, 64 P. 1095.)
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue without probable cause shown by affidavit, and particularly describing the place to be searched and person or thing to be seized. (Const., art. 1, sec. 17; Const., 4th Amend.; C. S., sec. 9321; Commonwealth v. Courtney, 243 Mass. 363, 138 N.E. 16; Hampton v. State, 148 Tenn. 155, 252 S.W. 1007; People v. Musk, 221 Mich. 578, 192 N.W. 485.)
Before it can be held one has waived any of his constitutional rights, the court should be able to find that the intention of waiver is sustained by clear and positive testimony. (United States v. Lydecker, 275 F. 976; United States v. Slusser, 270 F. 818; Amos v. United States, 255 U.S. 313, 65 L.Ed. 654; Hampton v. State, supra; Veal v. Commonwealth, 199 Ky. 634, 251 S.W. 648.)
Property taken from one as an incident to a lawful arrest must be taken by the arresting officer at the time and place of the arrest. (United States v. Mounday, 208 F. 186.)
Where it appears that there has been a material departure from the forms prescribed in respect to the drawing and return of the jury, or the intentional omission of the sheriff to summon one or more of the jury drawn, a challenge to the panel should be sustained. (C. S., sec. 8951.)
In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt. (State v. Marcoe, 33 Idaho 284, 193 P. 80; State v. Hurst, 36 Idaho 156, 209 P. 724; State v. Sullivan, 34 Idaho 68, 199 P. 647; State v. Blank, 33 Idaho 730, 197 P. 821; State v. Lumpkin, 31 Idaho 175, 169 P. 939.)
Proof of the charge in criminal cases involves the proof of two distinct propositions; first, that the act itself was done, and secondly that it was done by the persons charged and no others. (State v. Sullivan, supra.)
The corpus delicti in a homicide case must be proven beyond a reasonable doubt, and the evidence must establish that the death was produced by the criminal act of some person and was not the result of accident or natural causes. (Bryam v. People, 49 Colo. 533, 113 P. 528.)
The admission in evidence of the revolver was error inasmuch as there was no evidence identifying it as an instrument used in causing the death of the deceased. (State v. Kehr, 133 Iowa 35, 110 N.W. 149.)
The absence of motive for the killing of the deceased by the appellant in a case in which all of the evidence for conviction is circumstantial, is a circumstance to be considered in the appellant's favor, and he is entitled to an instruction to that effect, there being evidence to support the theory of no motive. (Porter v. State, 173 Ind. 694, 91 N.E. 340; State v. Concelia, 250 Mo. 411, 157 S.W. 778; State v. Bass, 251 Mo. 107, 157 S.W. 782.)
Where a conviction is sought on circumstantial evidence, each circumstance necessary to reach a conclusion of guilt must be fully and fairly proven, and if, in considering any such necessary circumstance, there is a reasonable doubt as to the evidence being sufficient to prove such circumstance, it must be resolved in favor of the appellant, and result in acquittal. (State v. Brazzell, 168 Iowa 480, 150 N.W. 683; Foley v. State, 12 Okla. Cr. 17, 151 P. 486; Nail v. State, 12 Ala. App. 64, 67 So. 752.)
A. H. Conner, Attorney General, and Herbert Wing, Assistant, for Respondent.
The search of defendant's cabin was made with his acquiescence and permission; hence there is properly no question of illegal search and seizure involved in this case. (24 R. C. L. 723; McClurg v. Brenton, 123 Iowa 368, 98 N.W. 881, 65 L. R. A. 519; Smith v. McDuffee, 72 Ore. 276, Ann. Cas. 1916D, 947, 142 P. 558, 143 P. 929; Commonwealth v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L. R. A., N. S., 1056.)
On the question of defendant's challenge to the jury panel, no material departure from the forms prescribed is shown or that there was any intentional omission of the sheriff to summon a juror. (Sec. 8915, C. S.; People v. Sowell, 145 Cal. 292, 78 P. 717; People v. Davis, 73 Cal. 355, 15 P. 8; People v. Shem Ah Fook, 64 Cal. 380, 1 P. 347.)
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State v. McClurg, 5622
...the corpus delicti may be shown by circumstantial evidence where the proof is of such character as to exclude all uncertainty." (State v. McLennan, supra.) State v. McLennan, supra, the defendant was charged with murder and the court, in addition to giving Instruction No. XV herein, also in......