State v. Moore, 8426
| Decision Date | 04 December 1956 |
| Docket Number | No. 8426,8426 |
| Citation | 304 P.2d 1101,78 Idaho 359 |
| Parties | The STATE of Idaho, Flaintiff-Respondent, v. Joe MOORE, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Carver, McClenahan & Greenfield, Givens, O'Leary, Doane & Givens, Boise, for appellant.
Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Blaine F. Evans, Pros. Atty., Boise, for respondent.
November 23, 1955, defendant (appellant) was accused by information of the prosecuting attorney of the infamous crime against nature, alleged to have been committed in Ada County, State of Idaho, on the 1st day of January, 1955.
On November 29, 1955, the defendant appeared with his counsel. The information was read to defendant and a copy was given him. On defendant's motion further arraignment was continued to December 9th. On December 9th defendant and his counsel again appeared and upon request of defendant's counsel 'the court continued further hearing herein until' December 16, 1955. December 14, 1955, the prosecuting attorney, with defendant and his counsel, appeared before the court 'to plead to the information', and, upon arraignment by the court, the defendant pleaded guilty as charged. The prosecuting attorney made a statement for the information of the court, and counsel for defendant made a statement on his behalf. Nine witnesses were sworn and testified for the defendant. The court then continued 'further proceedings' until December 23, 1955.
December 23, 1955, the prosecutor, with the defendant and his counsel, appeared. Defendant's counsel moved that the record be extended to include a medical report submitted in writing by Dr. Dale Cornell, and a telegram from one McKee of Eugene, Oregon, offering employment to the defendant. Defendant's counsel also moved that the court withhold judgment on the ground that the defendant had received further medical treatment since the last medical report was submitted, and that additional expert medical testimony from Dr. J. L. Butler would be available December 27, 1955, and should be received by the court. Defendant also made a motion for an order granting probation. The court granted the motion to extend the record, and denied the motions to withhold judgment and grant probation. These denials are assigned as error.
From the clerk's transcript and the notice of appeal, it appears these motions were made and denied after judgment of conviction and sentence was pronounced. The State urges that the court lacked jurisdiction to consider the motions at that stage of proceedings, citing State v. Ensign, 38 Idaho 539, 223 P. 230; State v. Johnson, 75 Idaho 157, 269 P.2d 769. However, the motions were made on the occasion of the rendition of judgment and, in making the motions, counsel for appellant requested the court to let the record show the motions were made after judgment of conviction, but prior to sentence. Under the circumstances we shall review the orders.
Appellant contends the pre-sentence investigation or hearing should have been further continued in order to permit the introduction of the testimony of Dr. Butler. We have held that the court on application for probation should hear the evidence offered, both in aggravation and in mitigation of the offense, and should consider such evidence in exercising its discretion invoked by the motion. State v. Mitchell, 77 Idaho 115, 289 P.2d 315.
While the trial court should exercise great liberality in receiving and considering all evidence offered, the conclusion is unavoidable that the court must also have and exercise a sound discretion as to the extent of the hearing to be had upon such application. Here the trial court in denying the motion to withhold sentence for the purpose of receiving the testimony of Dr. Butler, observed that the...
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