State v. Miller, 6633

• Decision Date: 10 March 1939
• Docket Number: 6633
• Citation: 88 P.2d 526,60 Idaho 79
• Parties: STATE, Respondent, v. L. L. MILLER, Appellant
• Court: Idaho Supreme Court

88 P.2d 526

60 Idaho 79

STATE, Respondent, v. L. L. MILLER, Appellant

No. 6633

Supreme Court of Idaho

March 10, 1939

CRIMINAL LAW-REMARKS BY TRIAL JUDGE-REVIEW-EXAMINATION OF JURY-DRIVING AUTOMOBILE WHILE INTOXICATED-EVIDENCE-PRIOR OFFENSE-CHARACTER OF ACCUSED-REBUTTAL.

1. In criminal prosecution, remark of district court judge that defendant was not in justice court was not prejudicial in absence of showing of circumstances leading up to such remark.

2. The trial court should make no remarks or comments that would tend to prejudice either of the parties litigant on the trial.

3. In prosecution for operating automobile while accused was under influence of intoxicating liquor, sustaining of objections to questions asked of jurymen on voir dire regarding their religious or other prejudice against a man who may take a drink of intoxicating liquor was error.

4. A wide latitude is allowed counsel in examination of jurors on their voir dire in order to enable counsel more intelligently to exercise peremptory challenges.

5. Testimony that accused had been seen so intoxicated as to impair his ability to operate automobile at a time other than that with which he was charged was not admissible either to rebut testimony of accused's good character for sobriety or as evidence of an independent act of a similar character.

6. Specific facts and inferences may not be shown either to corroborate or rebut evidence of general reputation.

7. Evidence as to character of an accused, whether introduced in his behalf or in behalf of prosecution, must be confined to his general reputation and cannot be established by proof of specific acts nor as a result of conversations between police officers.

8. In prosecution for operating automobile while accused was intoxicated, admission of testimony of police officer that other officers had reported instances of accused's intoxication within the last six months was prejudicial error.

9. In prosecution for operating automobile while accused was intoxicated, testimony that witness had seen accused on day of offense in intoxicated condition should have been introduced in state's case in chief and was admissible in rebuttal only upon showing of "good reason" and that its admission would be "in furtherance of justice." (I. C. A., sec. 19-2001, subd 4.)

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Thomas E. Buckner, Judge.

Conviction for operating an automobile while under the influence of intoxicating liquor. Defendant appeals. Reversed and a new trial ordered.

Reversed and remanded.

Creed W. Mullins, for Appellant.

A trial judge should so conduct a trial that a defendant in a criminal action will not be deprived of a fair trial, and where his methods are such that the defendant is deprived of a fair trial, and no error in his rulings is alleged, the supreme court will still consider and pass upon the action of said judge. (State v. Freitag, 53 Idaho 726, 27 P.2d 68, 69.)

Evidence of specific acts of a defendant is not admissible to show his character where evidence has been introduced, to show his good character or that his general reputation is good. (People v. Smith, 9 Cal.App. 644, 99 P. 1111; Harrison v. Harker, 44 Utah 541, 142 P. 716-722; State v. Anselmo, 46 Utah 137, 148 P. 1071; Allison v. Wood, 104 Va. 765, 52 S.E. 559, 561, 7 Ann. Cas. 721; Thurpin v. Commonwealth, 147 Va. 709, 137 S.E 528-530.)

J. W Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

Where it does not appear that the entire examination of challenged juror appears in the transcript, rulings on challenge will not be presumed erroneous. (State v. Wilson, 41 Idaho 616, 243 P. 359; State v. Murray, 43 Idaho 762, 254 P. 518.)

The remarks or conduct of trial judge intended to make points clear, and which do not indicate an opinion of the court as to guilt of accused do not constitute prejudicial error. (State v. Neil, 58 Idaho 359, 74 P.2d 586.)

"Rebuttal evidence" is that which is given to explain, repel, counteract, or disprove facts given in evidence by adverse party, and the admission thereof is entirely in the discretion of the trial court. (State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Mushrow, 32 Idaho 562, 185 P. 1075; State v. Martinez, 43 Idaho 180, 250 P. 239.)

AILSHIE, C. J. Morgan and Holden, JJ., concur, BUDGE, J., Concurring Specially. GIVENS, J., Dissenting.

OPINION

AILSHIE, C. J.

Appellant was tried and convicted of the crime of operating a motor vehicle upon a public highway, February 5, 1938, while under the influence of intoxicating liquor. He was sentenced to thirty days in the county jail and to pay a fine of $ 300 and costs of prosecution. From the judgment of conviction and order denying motion for new trial, he has appealed to this court.

In limine, the attorney general contends that the assignments of error are too indefinite to merit consideration under the rule in this state, as announced and followed in State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Poynter, 34 Idaho 504, 513, 205 P. 561, 208 P. 871; State v. Sims, 35 Idaho 505, 508, 206 P. 1045; State v. Becker, 35 Idaho 568, 207 P. 429; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Brockman, 39 Idaho 468, 477, 228 P. 250; State v. Johnson, 39 Idaho 440, 227 P. 1052. It is true that the specifications are not up to the requirements of the rule but under the exception recognized in Noble v. Harris, 33 Idaho 188, 190 P. 922, and Hoy v. Anderson, 39 Idaho 430, 439, 227 P. 1058, we will consider such assignments as are specifically discussed in appellant's brief.

It is argued by appellant that the trial court erred in denying his counsel the right to examine jurors on their voir dire as to certain possible prejudices and beliefs entertained by them; and that during the examination of the jurors certain rulings of the court were made which tended to prejudice the defendant by reason of the court belittling defendant's counsel. In support of appellant's contention he cites the following from the record:

On voir dire:

"Mr. MULLINS: I'll repeat the question I asked Mr. Kyle, for the record:

Q. (By Mr. MULLINS.) Mr. Kyle, do you have any religious or other prejudice against a man who may take a drink of intoxicating liquor.

Mr. ANDERSON: I wish to object to that on the ground it is incompetent, irrelevant and immaterial and not a proper question to be asked of a juror on voir dire examination.

The COURT: Objection sustained.

Mr. MULLINS: We except to that, and to the remark made by the court, to the effect that--the court made the remark that the defendant was not in Justice Court. We take exception to that remark.

The COURT: The exception is allowed."

We fail to see anything prejudicial in the remark of the court that "the defendant was not in Justice Court. " (State v. Freitag, 53 Idaho 726, 734, 27 P.2d 68; State v. Neil, 58 Idaho 359, 74 P.2d 586; State v. Roland, 11 Idaho 490, 83 P. 337; State v. Seablom, 103 Wash. 53, 173 P. 721; State v. Hughlett, 124 Wash. 366, 214 P. 841.) The record in that respect is incomplete and we are not informed as to what circumstances lead up to the court's making the remark. It is a recognized rule of this court that the trial court should make no remarks or comments that would tend to prejudice either of the parties litigant on the trial. Prejudicial comment should be avoided. (State v. Mox Mox, 28 Idaho 176, 181, 152 P. 802; State v. Neil, 58 Idaho 359, 367, 74 P.2d 586.)

We do not think, however, it was error for the trial court to sustain the objections to the questions propounded to the jurymen with reference to their "prejudice against a man who may take a drink of intoxicating liquor" and with reference to any religious prejudices they might entertain. It is true that no possible answer the juror might have made to this line of questions would have been ground for challenge to the juror, but the answer would necessarily have afforded counsel information which might have enabled him to more intelligently exercise his peremptory challenges. It is for this reason that a wide latitude is allowed counsel in the examination of jurors on their voir dire. (Beatty v. United States, 27 F.2d 323, 324; Young v. State, 41 Okla. Crim. 226, 271 P. 426, 429; Menefee v. State, 30 Okla. Crim. 400, 236 P. 439; Cummings v. State, 32 Okla. Crim. 274, 240 P. 1078; Turnage v. State, 40 Okla. Crim. 180, 267 P. 1038; Elliott v. State, 117 Tex. Crim. 180, 36 S.W.2d 513.)

Counsel makes the further assignment:

"That the Court erred in permitting on rebuttal the testimony of witnesses as to other acts of intoxication claimed to have been committed by the Appellant, which said acts were not committed on the 5th day of February, 1938, or at the time alleged, in said amended complaint on file herein." The objections urged in appellant's brief are not directed against cross-examination of his witnesses but are rather against the ruling of the court in permitting answers from the witnesses Holmes and Summers in reference to independent acts of intoxication and to the introduction of such testimony on rebuttal. The witness Holmes, on rebuttal, was allowed, over the objection of appellant's counsel, to answer the following question:

"Mr. Holmes, did you see the defendant, L. L. Miller under the influence of intoxicating liquor to such a degree that he was not--that it was not safe for him to drive an automobile and so as to impair his ability to operate an automobile to some extent, during the month of December 1937."

The answer should not have been allowed for the following reasons: It was not proper or competent evidence tending to prove the particular offense with which appellant...