State v. Mox Mox

• Citation: 28 Idaho 176,152 P. 802
• Parties: STATE, Respondent, v. THOMAS MOX MOX, Appellant
• Decision Date: 01 November 1915
• Court: United States State Supreme Court of Idaho

152 P. 802

28 Idaho 176

STATE, Respondent, v. THOMAS MOX MOX, Appellant

Supreme Court of Idaho

November 1, 1915

CRIMINAL LAW-CONFLICT IN EVIDENCE-REMARKS BY TRIAL JUDGE-CROSS-EXAMINATION-DISCRETION OF THE COURT-ILLEGAL ARREST-RESISTANCE-INSTRUCTIONS.

1. Where there is substantial conflict in the evidence and taken as a whole, it is sufficient to sustain the verdict, a judgment based thereon will not be disturbed upon appeal.

2. The evidence in this case examined and held to be sufficient to support the verdict.

3. Certain remarks made by the judge during the trial held not prejudicial to the rights of the appellant.

4. The extent of cross-examination upon collateral and immaterial matters is largely within the discretion of the trial judge and it is not error to limit the investigation to the issues involved.

[As to extent of cross-examination as to collateral matters, see note in 14 Am.St. 480.]

5. In order to justify the use of force by one seeking to avoid an illegal arrest, or in seeking to free himself from it, force must be necessary, and the person arrested, or sought to be arrested, is not justified in using more force than enough to protect himself and to prevent the infliction upon him of bodily injury.

6. The instructions given by the trial judge to the jury examined and approved.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Appellant was convicted of assault with a deadly weapon. Judgment affirmed.

Affirmed.

Clay McNamee and James L. Harn, for Appellant.

For counsel for defendant to be reprimanded and humiliated without cause or excuse therefor is reversible error. (McDuff v. Detroit Evening Journal, 84 Mich. 1, 22 Am. St. 673, 47 N.W. 671; Wheeler v. Wallace, 53 Mich. 355, 364, 19 N.W. 33, 37; Cronkhite v Dickinson, 51 Mich. 177, 16 N.W. 371; People v. Hare, 57 Mich. 505, 24 N.W. 843; State v. White, 10 Wash. 611, 39 P. 160, 41 P. 442; Grant v. State (Tex. Cr.), 148 S.W. 760, 42 L. R. A., N. S., 428.)

"Cross-examination on matters, either directly in issue or directly relevant to the issue, is a matter of right, and its exclusion is error." (Prout v. Bernards Land & Sand Co., 77 N.J.L. 719, 73 A. 486, 25 L. R. A., N. S., 683; Graham v. Larimer, 83 Cal. 173, 23 P. 286; Jones on Evidence, sec. 821.)

A party has a right upon cross-examination to draw out anything which would tend to contradict, weaken, modify or explain the evidence given by the witness on his direct examination. (40 Cyc. 2480, and notes; State v. Tilden, 27 Idaho 262, 147 P. 1056; People v. Westlake, 124 Cal. 452, 57 P. 465; People v. Sehorn, 116 Cal. 503, 48 P. 495; Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, 63 P. 587.)

The constable Welch was guilty of an assault in making the arrest and a continuing assault in unlawfully detaining defendant thereafter. (Delafoile v. State, 54 N.J.L. 381, 24 A. 557, 16 L. R. A. 500.)

"In case of ordinary misdemeanors, a constable cannot arrest the offender without a warrant, unless he be present at the time of the offense." (Webb v. State, 51 N.J.L. 189, 17 A. 113; Robison v. Miner (People v. Haug), 68 Mich. 549, 37 N.W. 21; People v. McLean, 68 Mich. 480, 36 N.W. 231; Delafoile v. State, supra; Krulevitz v. Eastern R. R. Co., 143 Mass. 228, 9 N.E. 613; State v. Hunter, 106 N.C. 796, 11 S.E. 366, 8 L. R. A. 529.)

"Belief, however well founded, will not justify arrest without warrant for a mere misdemeanor." (Commonwealth v. Carey, 12 Cush. (66 Mass.) 246; Commonwealth v. McLaughlin, 12 Cush. (66 Mass.) 612.)

Though a felony has been committed, yet a bare suspicion of guilt against a person will not justify an officer in forcing the door of his dwelling unless armed with a warrant. It will at least be at the peril of proving that the party so taken on suspicion was guilty. (State v. Grant, 76 Mo. 236.)

J. H. Peterson, Atty. Gen., T. C. Coffin and Herbert Wing, Assts., for Respondent.

The court may admonish counsel as to his manner, even though his questions may be perfectly proper. (State v. Hatfield, 75 Iowa 592, 39 N.W. 910.)

A trial judge may admonish or rebuke in his discretion, so long as his remarks do not prevent the defendant from having a fair trial. (Laporte v. Cook, 22 R. I. 554, 48 A. 798.)

"A wide latitude should be allowed in the cross-examination of parties to the suit, but the action of the trial court, in sustaining objections to immaterial questions, is not prejudicial error." (Just v. Idaho Canal etc. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381; People v. Becker, 48 Mich. 43, 11 N.W. 779.)

The trial court is vested with discretion in directing the limits of cross-examination, and so long as there is no abuse of such discretion, his rulings will not be disturbed. (8 Ency. of Pl. & Pr. 109; State v. Reilly, 25 N.D. 339, 141 N.W. 720; Reynolds v. Pacific Car Co., 75 Wash. 1, 134 P. 512; Gatzemeyer v. Peterson, 68 Neb. 832, 94 N.W. 974; Brown v. Harris, 139 Mich. 372, 102 N.W. 960; Rand v. Newton, 88 Mass. (6 Allen) 38; Cantrell v. Davidson, 180 Mo.App. 410, 168 S.W. 271; Nashville Interurban Ry. v. Barnum, 212 F. 634, 129 C. C. A. 170.)

"One illegally arrested has the right to use such force as may be necessary to resist the illegal arrest; but, if the force used is in excess of what is necessary, it is an assault, for which such person may be punished." (Commonwealth v. Cosler (Quart. Sess.), 8 Kulp. (Pa.), 97.)

The verdict of the jury on substantially conflicting evidence will not be disturbed. (State v. Rathbone, 8 Idaho 161, 67 P. 186; State v. Collett, 9 Idaho 608, 75 P. 271; State v. Cook, 13 Idaho 45, 88 P. 240; State v. Downing, 23 Idaho 540, 130 P. 461.)

It was for the jury to determine whether the entire evidence established the guilt of the defendant beyond a reasonable doubt. (State v. Levy, 9 Idaho 483, 75 P. 227.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

The appellant was convicted of the crime of assault with a deadly weapon and has appealed to this court from the judgment pronounced against him and from the order of the trial court denying his motion for a new trial.

It appears from the record that on the night of March 9, 1914, James P. Welch, who was constable of Arrow Precinct, Nez Perce county, received information by telephone that appellant, who is a Nez Perce Indian, was intoxicated and had beaten his mother and had driven her from home, and the officer was requested to place him under arrest. Accordingly he, in company with his son-in-law, went to the residence of a relative of appellant, where the mother was staying for the night, and from there to a house where appellant and his wife were sleeping, and, being unable to awaken the occupants of the house or to gain admission through the door, the constable, his son-in-law and an Indian who was with them, raised a window and entered the house; that the officer placed appellant under arrest and took into his possession a bottle of alcohol which he found there.

It further appears that at the time the arrest was made the appellant offered neither protest nor resistance; that the officer and his son-in-law took appellant and his wife to a point on the Northern Pacific railway known as Arrow Junction, where the son-in-law left the other parties, and that during the remainder of the night the officer kept watch while the prisoner and his wife slept. Early the next morning, according to the constable's testimony, appellant asked permission to get a drink from the creek and while at the creek appellant attacked and overpowered him, and with the aid of the woman took from him the bottle of alcohol and his revolver, and by pointing the loaded weapon at him drove him up the railroad track a distance of about a mile to a thicket of brush, which he required him to enter. The witness further testified: "I told him, I says, 'You are taking me up to murder me? These people will come and get you if you do.' He was more quiet then. He held me there until 7 o'clock or after and then he told me to come back."

Appellant and his wife tell a different story of what transpired while the parties were at Arrow Junction and thereafter. They testified that in the morning the constable gave each of them two drinks of alcohol from the bottle and took two drinks himself and that while the officer was taking a drink from the creek appellant, noticing that he was in an intoxicated condition and fearing he would do damage with the weapon removed the revolver from his pocket, extracted the cartridges from it and retained it in his possession; that the officer then voluntarily accompanied them a part of the way toward their home and that no assault was made upon him; also that they had some more drinks together from the bottle and that the constable was considerably under the influence of liquor. Certain other Indians testified to having seen the officer early in the morning and that he was intoxicated.

The officer denied that he drank any liquor and certain witnesses, one of them the sheriff of the county, who saw him early in the morning, testified that they were unable to detect any trace of intoxicating liquor about him.

The evidence is very conflicting and it is urged by appellant that it is insufficient to support the verdict. The rule is well settled in this state that where there is a substantial conflict in the evidence and, taken as a whole, it is sufficient to sustain the verdict, a judgment based thereon will not be disturbed upon appeal. (Montgomery v Gray (on rehearing), 26 Idaho 583, 585, 144 P. 646, and cases there cited; State v. Hopkins, 26 Idaho 741, 145 P. 1095; Price v. North Am Acc. Ins. Co., ante, p. 136, 28 Idaho 136, 152 P. 805.) In this case there is...