State v. Morrison

Decision Date19 May 1932
Docket Number5846
Citation52 Idaho 99,11 P.2d 619
PartiesSTATE, Respondent, v. SETH LEE MORRISON, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW - HOMICIDE - INFORMATION - CONVICTION OF LESSER CRIME-CORPUS DELICTI-FLIGHT-INSTRUCTIONS-CONTINUANCE-NEW TRIAL.

1. Conviction for manslaughter held supported.

2. In prosecution for first degree murder, jury may find defendant guilty of manslaughter, even though there is no evidence to show commission of the lesser rather than greater crime.

3. If deceased was shot by defendant when he was so intoxicated that he did not know what he was doing, defendant would, at least, be guilty of manslaughter.

4. In homicide prosecution, instruction respecting corpus delicti held not prejudicial.

5. In homicide prosecution, instruction on flight held not objectionable as presupposing that defendant did flee, in view of other instructions.

6. Showing of diligence of defendant's counsel who knew of alleged new testimony during trial and did not call matter to court's attention or seek continuance held insufficient to require new trial.

7. That continuance was asked with respect to certain witness held not showing of diligence sufficient to require new trial with respect to other alleged new testimony known to defendant's counsel before close of trial.

8. In first instance, showing for new trial is addressed to trial court's discretion.

9. In absence of abuse of discretion, trial court's ruling on motion for new trial will not be disturbed.

10. Court held not shown to have abused discretion in denying motion for new trial based on affidavit allegedly showing state's principal witness confessed that he killed deceased.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. A. O. Sutton, Judge.

Defendant convicted of manslaughter, appeals from the judgment of conviction and the order overruling his motion for new trial. Affirmed.

Affirmed.

Wm. M Morgan and F. M. Kerby, for Appellant.

Where a defendant has been charged with murder and the evidence shows him to have been guilty of murder or not guilty, and the jury has convicted him of manslaughter, either voluntary or involuntary, the verdict amounts to an acquittal of the charge of murder, and, it being clear from the evidence he cannot properly be convicted of manslaughter, the judgment of conviction should be reversed and the cause remanded with directions that it be dismissed. (State v. Pruett, 27 N.M. 576, 21 A. L. R. 579, 203 P. 840; State v. Trujillo 27 N.M. 594, 203 P. 846.)

The term corpus delicti means the body of the offense or crime, not, as the judge instructed the jury, "that a crime has been committed, and the defendant on trial committed it." (14A C. J. 1425; State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; State v. McLennan, 40 Idaho 286, 231 P. 718; State v. Smith, 46 Idaho 8, 265 P. 666.)

It is prejudicial error for the judge, in instructing on the question of flight, to assume the defendant fled and in not leaving for the determination of the jury the question as to whether or not he did so. (State v. Osborne, 54 Ore. 289, 20 Ann. Cas. 627, 103 P. 62; People v. Jones, 160 Cal. 358, 117 P. 176; Sprouse v. State, (Okla. Crim. App.) 3 P.2d 918; State v. Collins, 292 Mo. 102, 237 S.W. 516.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

Even though the evidence shows the offense of first degree murder, the jury may convict of the included offense of manslaughter, and an instruction thereon in such case even when there is no evidence of manslaughter is not available to defendant as error, such verdict and instruction being beneficial and not prejudicial to him. (State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Phinney, 13 Idaho 307, 12 Ann. Cas. 1079, 89 P. 634, 12 L. R. A., N. S., 935; State v. Alcorn, 7 Idaho 599, 97 Am. St. 252, 64 P. 1014; State v. Schieler, 4 Idaho 120, 37 P. 272; State v. Hardy, 4 Idaho 478, 42 P. 507; People v. Dunn, 1 Idaho 74, 77; People v. Walter, 1 Idaho 386, 387.)

Newly discovered evidence is not a ground for a new trial where it is cumulative and consisting wholly of impeaching and contradictory evidence of the state's witnesses, where it does not appear that the evidence would change the result of the trial. (State v. Fleming, 17 Idaho 471, 106 P. 305; State v. Black, 36 Idaho 27, 208 P. 851; State v. Hoagland, 39 Idaho 405, 228 P. 314; Caravelis v. Cacavas, 38 Idaho 123, 220 P. 110.)

GIVENS, J. Lee, C. J., and Budge and Varian, JJ., concur. LEEPER, J., Dissenting.

OPINION

GIVENS, J.

Appellant, charged with murder in the first degree, was found guilty of manslaughter, and appealing from the judgment of conviction and the order overruling his motion for new trial, assigns as error the insufficiency of the evidence, erroneous instructions as to manslaughter, corpus delicti and flight, and urges that newly discovered evidence demands a new trial.

The appellant and one Hamilton had been staying for some time at the Carpenter ranch about four miles below Yellow Pine on the East Fork of the Salmon River. Shortly before the murder of the deceased, Maples came to the same place and was likewise staying there. All parties agree that the night before the killing, September 17, 1930, Maples and Hamilton went to Yellow Pine, had some drinks (moonshine), and returned some time during the night. From there on, the stories as told by Hamilton, the only eyewitness to the tragedy other than appellant, and appellant diverge and differ.

Hamilton, in effect, stated that all parties went to sleep, and in the morning appellant prepared some coffee, but when he, Hamilton, started to drink it, it was bitter, and he threw it out of the door of the cabin. Appellant ordered him out of the house, and told him to sit on an oil can a few feet from the door, and then to call the deceased, which Hamilton did, and that appellant, making remarks that the deceased was a son-of-a-bitch and stool-pigeon, ordered him to sit on the can alongside of Hamilton, and thereupon shot him. Appellant compelled Hamilton to drag deceased's body into a little ditch near the house and then told Hamilton to catch a horse and ride to Yellow Pine, and tell them that Maples had shot himself by accident. Hamilton also stated that appellant said he was going to kill some other parties at Yellow Pine. Hamilton caught a horse, rode to Yellow Pine, and told people there that appellant had killed Maples.

The appellant's story is to the effect that when Maples and Hamilton returned from Yellow Pine, both were intoxicated; that Hamilton, calling him names, told Maples to go upstairs and go to bed, then forced appellant to take several drinks of whisky with him, and they sat and talked until early in the morning, after which time appellant was intoxicated, and did not know what happened; that later, Hamilton told him that Maples had been killed and they would have to get out of there. That the next thing appellant remembered, he was on the side of the hill with his horse tied to a tree and a Remington rifle was hanging on the saddle-horn; that he wandered around for some time, brought in the horse, and the rifle was gone.

The morning after the killing, Hamilton returned with the officers, who, unobserved by appellant, from positions on the sidehill and among the trees, watched appellant unsaddle the horse referred to by him, and approach the cabin, looking in different directions, and that they waited some time to see if anyone else was there, and finally arrested defendant. There was testimony by the officers to the effect that Hamilton, at the time of the arrest, and after appellant was in custody, made the statement in the presence of appellant that he, appellant, had killed Maples, and that appellant did not deny it. Appellant testified that he did not hear these statements, though he was close enough to have heard them. Appellant also argues as a reason for not denying it, that after his arrest, he, appellant, started to talk, and the sheriff told him to keep still, which situation was corroborated by other witnesses, and that consequently he did not talk. The jury were justified in drawing different conclusions from the above, favorable or unfavorable to the defendant, as they were impressed by the testimony.

The body was found in a ditch where Hamilton said he had placed it at appellant's instigation, covered with a canvas.

As possibly furnishing proof of motive, the state produced evidence that some time before the killing, appellant told Hamilton that he thought that deceased was trying to double cross him in regard to driving a tunnel in a mine for one Hennessey, the purport of which was denied by appellant.

Appellant urges that Hamilton's story is so improbable and inconsistent that no one should believe it. It is no more inconsistent that appellant's own statements. Both appellant and Hamilton testified fully, were cross-examined at length, and the jury saw their demeanor and heard all the testimony of both men, and there is no question but that one or the other killed Maples. The sole issue is, which one?

Appellant also contends that Hamilton's testimony is not worthy of belief because at the preliminary hearing he testified that they had not drunk whisky at Yellow Pine, while at the trial, he testified that they had. This was a matter for the jury, fully presented to them, and under instructions not questioned except as hereafter noted, the jury has resolved the conflict in the evidence in favor of the conclusion that appellant fired the fatal shot.

The court instructed the jury that the defendant might be found guilty of manslaughter, which appellant contends is error because there is no evidence of...

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