State v. Muguerza

• Decision Date: 07 June 1928
• Docket Number: 5188
• Citation: 46 Idaho 456,268 P. 1
• Parties: STATE, Respondent, v. ELLA MUGUERZA, Appellant
• Court: Idaho Supreme Court

268 P. 1

46 Idaho 456

STATE, Respondent, v. ELLA MUGUERZA, Appellant

No. 5188

Supreme Court of Idaho

June 7, 1928

ASSAULT AND BATTERY-EVIDENCE-PRIOR THREATS-OTHER WRONGFUL ACTS-WITNESSES-COMPETENCY OF-IMPEACHMENT OF-CRIMINAL LAW - INFORMATION - SUFFICIENCY - PROBATIVE FACTS-INSTRUCTIONS.

1. In prosecution for assault with intent to commit murder by means of deadly weapon, testimony relative to conversations between defendant and her husband some four months before assault alleged to have been made on husband by defendant, and wherein defendant was said to have made certain threats, held admissible.

2. Prior threats of accused or evidence of previous trouble are always relevant to illustrate mental attitude of accused toward prosecuting witness at time of assault.

3. Competency of witness by reason of fact that he was unable to express himself clearly in the English language held question of law for trial court.

4. In prosecution for assault with intent to commit murder by means of deadly weapon, admission of testimony relative to statements of husband, whom defendant was alleged to have assaulted, that he did not want to see defendant if she came to the hospital, though probably objectionable as calling for hearsay, held not prejudicial error, when limited to show attitude of mind of prosecuting witness toward defendant, who had offered testimony tending to show friendly state of mind.

5. Under C. S., sec. 8038, forbidding evidence of wrongful acts having no connection with matter on trial, evidence for purpose of showing that prosecuting witness in action for assault with intent to commit murder by means of deadly weapon was engaged in illicit traffic of liquor, held properly excluded.

6. Where defendant, in prosecution for assault with intent to commit murder, was convicted only of assault with a deadly weapon, any error in charge relative to manner of proving intent in charge of assault with intent to commit murder held not prejudicial.

7. In prosecution for assault with intent to commit murder instruction relative to disregarding statements of witnesses successfully impeached, either by direct contradiction or proof of different statements, held not erroneous because of use of words "direct contradiction," in lieu of "contradictory evidence," as found in C. S., sec. 8038.

8. Instruction, in prosecution for assault with intent to commit murder, relative to disregarding testimony of witness whom jury believed had wilfully or knowingly sworn falsely unless corroborated by other credible testimony, held not erroneous.

9. Information charging defendant did wilfully, unlawfully feloniously and with premeditation and malice aforethought by means of a certain deadly weapon, to wit, a certain pistol, make an assault upon the person of another, held sufficient to charge offense of assault with a deadly weapon, without necessity of alleging that pistol was loaded, such being a matter of proof only.

APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. T. Bailey Lee, Judge.

Ella Muguerza was convicted of assault with a deadly weapon and she appeals. Affirmed.

Judgment affirmed. Petition for rehearing denied.

E. P. Barnes, for Appellant.

The admission of incompetent, irrelevant and immaterial matter, or matter remote and unrelated to the crime charged, and calculated to inflame and prejudice the minds of the jury, is prejudicial error, and denies appellant his constitutional right to a fair and impartial trial. (State v. Wheeler, 41 Idaho 212, 238 P. 312; State v. Whitney, 43 Idaho 745, 254 P. 525; State v. Fowler, 13 Idaho 317, 89 P. 757; State v. Sims, 35 Idaho 505, at 507, 206 P. 1045; State v. Main, 37 Idaho 449, 460-462, 216 P. 731; State v. Bubis, 39 Idaho 376, at 379, 227 P. 384.)

It was prejudicial error not to permit appellant to show the business and occupation of the witness Muguerza as a bootlegger in connection with the resort or place he was conducting. (State v. Fong Loon, 29 Idaho 248, 158 P. 233, L. R. A. 1916F, 1198.)

The verdict is contrary to law for the reason that the information does not charge a public offense and does not charge assault with a deadly weapon, of which offense appellant was convicted. (State v. Yturaspe, 22 Idaho 360, 125 P. 802; State v. Singh, 34 Idaho 742, 203 P. 1064; In re McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813; C. S., sec. 8827; State v. Bowman, 40 Idaho 470, at 474, 235 P. 577; State v. Smith, 25 Idaho 541, 138 P. 1107; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

A pistol is not a "deadly weapon" unless loaded. (State v. Yturaspe, supra.)

The indictment must be direct and certain as it regards the particular circumstances of the offense charged when they are necessary to constitute a complete offense. (C. S., sec. 8827.)

Assault with a deadly weapon is not necessarily included in the statutory definition of murder, unless the particular means are alleged, nor does the statutory definition of assault with intent to commit murder necessarily include assault with a deadly weapon. (In re McLeod, supra; State v. Singh, supra; State v. Smith, supra; State v. Lundhigh, supra.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

Impeaching questions are improper without first laying the foundation therefor. (State v. Cox, 37 Idaho 397, 216 P. 724; Whitney v. Cleveland, 13 Idaho 558, 91 P. 176.)

A person is not of unsound mind within the meaning of the statute if he can comprehend the obligations of an oath and is capable of giving a fairly correct account of what he has seen or heard. (State v. Sims, 12 Idaho 310, 9 Ann. Cas. 1216, 85 P. 814; State v. Sims, 35 Idaho 505, 202 P. 1045.)

The competency of a witness to testify should be determined when the witness is produced. (State v. Cosler, 39 Idaho 519, 228 P. 277.)

Evidence of other wrongful acts, except to show a prior conviction is not admissible. (C. S., sec. 8038; People v. Crandall, 125 Cal. 129, 57 P. 785.)

An instruction authorizing the jury to disregard the evidence of any witnesses who testify falsely, except where they are corroborated by other credible evidence, is a correct statement of law. (Baird v. Gibberd, 32 Idaho 796, 189 P. 56; State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Boyles, 34 Idaho 283, 200 P. 125; State v. Waln, 14 Idaho 1, 80 P. 211; State v. Pettit, 33 Idaho 326, 193 P. 1015; State v. Rogers, 30 Idaho 259, 163 P. 912.)

An information substantially in the language of the statute is sufficient where the statutory language covers the elements of the crime. (State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Bowman, 40 Idaho 470, 235 P. 577.)

All that is necessary in an information is that it be sufficient to advise the defendant of the nature of the crime for which he is charged and to describe the offense with such particularity as to protect him from a second prosecution of the same offense. (State v. Bowman, supra.)

The information in the present case was sufficient even though it was not alleged therein that the assault was made with a loaded pistol. (State v. Harron, 12 Mont. 230, 33 Am. St. 576, 29 P. 819; People v. Hunter, 71 Cal. 315, 235 P. 67.)

BUDGE, J. Wm. E. Lee, C. J., Taylor, J., and Hartson, District Judge, concur. T. Bailey Lee, J., disqualified. Givens, J., dissents.

OPINION

BUDGE, J.

Appellant was charged with the crime of assault with intent to commit murder by means of a certain deadly weapon, to wit, a pistol. She was found guilty of assault with a deadly weapon and sentenced to imprisonment in the state penitentiary for not less than one nor more than two years. This appeal is from the judgment and from an order denying a motion for new trial.

Error is predicated upon the action of the court in refusing to sustain an objection to and in denying a motion to strike out certain testimony given by one Pickett, a witness on behalf of the state, who testified to conversations carried on between appellant and her husband some four months previous to the assault alleged to have been made upon the latter by appellant, in which appellant was said to have made certain threats. Said objection and motion to strike were based upon the theory that the evidence so given by the witness was incompetent, immaterial and not related to the crime charged. Prior threats of the accused or evidence of previous trouble are always relevant to illustrate mental attitude of the accused toward the prosecuting witness at the time of the assault. (Underhill on Criminal Evidence, 3d ed., p. 773, sec. 544.)

The prosecuting witness, appellant's husband, testified to the alleged facts leading up to and to the commission of the offense. He is a foreigner, his testimony is not altogether clear, and is somewhat contradictory, by reason of the fact perhaps that he was unable to express himself clearly in the English language. A motion was made by appellant to strike out all of his testimony upon the ground that he was mentally incompetent to testify. His competency to testify being a question of law for the trial court, who was best in the position to observe his demeanor on the witness-stand and his apparent ability to give a fairly correct and intelligible account of what transpired, we cannot say, after a careful perusal of the record in this regard, that the testimony of the witness should have been stricken upon the ground stated.

It is insisted that the court erred in overruling appellant's objections to the following questions asked the witness Carlson on direct examination, to which answers were made as indicated:

"Q. Did Steve Muguerza ever say anything to you about permitting the defendant to see him if she came to the hospital? A. Yes, sir, ...