State v. Mundell

• Decision Date: 17 May 1945
• Docket Number: 7239
• Citation: 158 P.2d 799,66 Idaho 339
• Parties: STATE OF IDAHO, Respondent, v. HORACE MUNDELL, Appellant
• Court: Idaho Supreme Court

158 P.2d 799

66 Idaho 339

STATE OF IDAHO, Respondent, v. HORACE MUNDELL, Appellant

No. 7239

Supreme Court of Idaho

May 17, 1945

1. Criminal law

Refusal to give instruction directing jury to find defendant not guilty was not reversible error, nor was it reviewable in Supreme Court.

2. Burglary

In burglary prosecution, trial court did not err in allowing state's witness to testify, over defendant's objection, to articles taken from safe for reason that articles were not plead in the information.

3. Criminal law

In burglary prosecution, testimony of defendant's sister relating to alleged conversation with defendant and his wife on night of commission of the crime, and as to alleged conversations had between witness, her husband, defendant and his wife, was properly excluded as hearsay.

4. Criminal law

Testimony as to alleged conversations had between defendant's sister, her husband, defendant, and his wife, was properly excluded on ground that all parties were present at the trial and could have been called to speak for themselves.

5. Criminal law

Where defendant submitted no authorities in support of contentions contained in three of the assignments of error, such assignments were not reviewable.

6. Criminal law

In burglary prosecution, objection to question asked defendant's wife, as to whether she knew the substance and effect of a certain telegram she had received from the defendant, was properly excluded on ground that telegram was the best evidence, in absence of proof that telegram was lost or not available.

7. Criminal law

In burglary prosecution, sustaining an objection to question asked defendant's wife as to whether she knew substance and effect of certain telegram she had received from defendant was not error, where telegram had no bearing on the case.

8. Criminal law

Statement by defendant's wife, referring to his alleged participation in burglary, that he "wouldn't do anything like that", was properly stricken as a conclusion.

9. Criminal law

Trial court did not err in striking part of testimony of defendant's wife on ground that it was but a conclusion of witness for reason that another question had been asked and answered before prosecuting attorney could make his motion to strike.

10. Witnesses

Trial court did not err in permitting state to impeach testimony of its own witness who was defendant's sister by showing contradictory statement made by witness. (I.C.A., sec 16-1210.)

11. Criminal law

Testimony of sheriff on redirect examination by state that, prior to trial, defendant's wife stated to him that she had told her husband that if he had anything to do with the case it would be better for him to confess, constituted proper rebuttal, where defendant's wife testified that defendant was with her during night crime was allegedly committed.

12. Criminal law

Any evidence that repels, counteracts, or disapproves evidence given by a witness is proper "rebuttal".

13. Criminal law

Trial court has a wide range of discretion in admitting rebuttal evidence.

14. Criminal law

Assignments of error directed against certain remarks alleged to have been made by prosecuting attorney during argument to jury in derogation of alleged acts and conduct of defendant's counsel revealed no prejudicial error, where trial court instructed jury to disregard remarks or personal opinions of either counsel, analyze evidence, draw their own conclusions and that statements of counsel were not in evidence.

15. Criminal law

Where there is a conflict in testimony as to whether defendant was at place of commission of crime and participated therein, but there is substantial evidence establishing his presence there and his participation in commission of the crime, conviction would not be reversed.

16. Criminal law

Defendant is not called upon to establish an alibi beyond a reasonable doubt, nor by preponderance of the evidence, but by such evidence and to such a degree of certainty as will, when whole evidence is considered, create and leave in minds of jury a reasonable doubt of defendant's guilt.

17. Criminal law

Evidence supported conviction of burglary as against defense of alibi.

18. Criminal law

Where insufficiency of evidence to corroborate testimony of accomplices was relied on, and particulars wherein it was insufficient were not pointed out in assignments of error sufficiency of the corroborating evidence would not be reviewed. (I.C.A., sec. 19-2017.)

19. Criminal law

Where circumstances point to guilt of accused independent of accomplices' testimony, such circumstantial evidence may be sufficient corroboration of accomplices' testimony to sustain a conviction, and it is not necessary that accomplices' testimony be corroborated in every detail. (I.C.A., sec. 19-2017.)

20. Criminal law

Any corroborative evidence legitimately tending to connect defendant with commission of a crime may be sufficient to warrant a conviction, although standing by itself would not be sufficient proof of defendant's guilt. (I.C.A., sec. 19-2017.)

21. Criminal law

Evidence was sufficient to corroborate testimony of alleged accomplices and sustained conviction of burglary. (I.C.A., sec. 19-2017.)

Appeal from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Affirmed.

A. A. Merrill for appellant.

An information must contain every element of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet. (State v. Grover, 36 Ida. 278; State v. Cole, 31 Ida. 603; State v. Bowman, 40 Ida. 470; State v. Scheminishy, 31 Ida. 504; State v. Bidegain, 33 Ida. 66.)

Where the State introduces exculpatory evidence, the burden rests upon the State to show that such exculpatory evidence is false. (State v. Darrah, 60 Ida. 479 (and on rehearing p. 486 and cases cited); State v. Pate, 43 Ida. 648, 9 C.J. 1084.)

Frank Langley, Attorney General, and J. R. Smead, Assistant Attorney General, for respondent.

Denial of a motion for a directed verdict is not reviewable. (State v. Stevens, 48 Ida. 335; State v. Murphy, 29 Ida. 42.)

Testimony of an accomplice is the same as that of any other witness, regardless of the necessity of some corroboration. (State v. Brown, 53 Ida. 576, 581.)

Any evidence which repels, counteracts or disproves evidence given by a defendant is proper rebuttal. (State v. Mushrow, 32 Ida. 562.)

A trial court has a wide range of discretion in admitting rebuttal evidence. (State v. Martinez, supra, pp. 196-197; State v. Smailes, 51 Ida. 321, 332; State v. Orr, 53 Ida. 452, 458-459.)

Misconduct of counsel is no ground for reversal if the jury is instructed to disregard it. (State v. Caviness, 40 Ida. 500, 509.) Or where a statement is withdrawn or repudiated by counsel.

Budge, J. Holden, J., and Buckner, D.J., concur. Givens, J., dissenting. Ailshie, C.J., concurs with this dissent.

OPINION

Budge, J.

Throughout this opinion we shall refer to appellant as the defendant.

Defendant was charged with, and convicted of, the crime of burglary, from which judgment he has appealed. Briefly stated, the following facts are disclosed by the record:

Ritchie and Woolf, together with one Jenkins and defendant, were charged with the commission of the crime of burglary at Rexburg, Madison County, on June 4, 1944. Ritchie, Woolf and Jenkins plead guilty to the crime charged, and sentenced to the penitentiary. Upon the trial of the charge against defendant they testified as witnesses for the State. From the testimony of Ritchie and Woolf it appears that on the evening of June 3rd, Ritchie, Woolf, Jenkins and defendant were at a cabin in an auto court at Idaho Falls. Ritchie, his wife, a sister of defendant, and defendant and his wife, occupied the cabin; the four men left Idaho Falls on the evening of June 3rd in Woolf's car and went to Rexburg. They visited the Modern Cigar Store, thereafter drove to Tetonia, where they remained for approximately five hours, and then returned to Rexburg. Woolf's car was driven to the back door of the Modern Cigar Store, the transom above the door was forced open, Woolf crawled in and opened the door from the inside, the four of them then rolled out the safe that was in the store and loaded it into the car. From there they drove to a point across the Snake River west of Rexburg, where they broke open the safe and took from it money, war bonds, a diamond ring, and two watches. They then took the safe back to the bridge and threw it into the river, then drove back to Idaho Falls, arriving there early Sunday morning, June 4th. Jenkins then drove away from the auto court in his own car, and was subsequently located in Wyoming. Ritchie, Woolf and defendant stayed at the auto court for a very short time, and then left in Woolf's car for Montana.

From the testimony of the operators of the Modern Cigar Store the safe contained, among other things, money, checks, war bonds, a diamond ring, and two watches. When the safe was retrieved all the above mentioned property was missing.

On the way to Montana the bonds were hidden under a rock near Spencer, Idaho, and were recovered upon their return a week later, whereupon they were secreted behind the upholstering at the side of the back seat of the car, where they were later found. When the three men reached Butte, defendant and Ritchie offered to sell the diamond ring to a certain jeweler, who tendered his check in payment therefor, but acceptance of the check was refused and for that reason the sale was not consummated. The three men then went to Missoula, Montana, where defendant and Ritchie sold the ring to a jeweler for $ 90.00, and the money so received was split three ways. About a week later the...