State v. Mundell

• Decision Date: 14 May 1945
• Docket Number: 7241
• Citation: 66 Idaho 297,158 P.2d 818
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. HORACE MUNDELL, Defendant-Appellant
• Court: Idaho Supreme Court

158 P.2d 818

66 Idaho 297

STATE OF IDAHO, Plaintiff-Respondent, v. HORACE MUNDELL, Defendant-Appellant

No. 7241

Supreme Court of Idaho

May 14, 1945

1. Burglary

Where information charged burglary was committed "on or about the 2nd day of June," proof that alleged burglary was committed "sometime before midnight on June 1", was not a fatal variance it being sufficient that proof show commission of crime any time prior to filing of information and within statute of limitations. (I.C.A., secs. 19-1204, 19-1314.)

2. Indictment and information

The purpose of statute requiring names of witnesses known to prosecuting attorney to be indorsed on information is to inform accused of names of witnesses who are to testify against him so that he may have opportunity to meet and controvert their evidence. (I.C.A., sec. 19-1202.)

3. Judgment

All presumptions are in favor of judgment and unless it affirmatively appears from judgment roll that there was failure in some vital process or requirement, the judgment cannot be questioned.

4. Criminal law

An exception or assignment of error cannot be accepted as proof of facts therein alleged, but it is necessary that there be something in record positively showing what judge actually did or did not do.

5. Criminal law

In absence of any positive showing as to what actually occurred during trial, presumption must be indulged in favor of trial court's action.

6. Criminal law

Allowing name of state's witness to be indorsed on information at opening of trial, on prosecutor's motion supported by affidavit, was not error where accused's only objection was that he had no fair opportunity of meeting such evidence there was no showing that accused did not have ample time to controvert such testimony or that accused was surprised thereby and prosecutor's affidavit was not in record. (I.C.A., sec. 19-1202.)

7. Criminal law

Witnesses

Refusal to permit wife of accused in burglary prosecution to testify as to her conversation with her brother concerning his testimony was not error because, if purpose thereof was to impeach brother's testimony by showing that he had theretofore made statements inconsistent with his testimony at the trial, no proper foundation was laid therefor, and, if not offered for impeachment, the conversation was not shown to be competent, material or relevant. (I.C.A., sec 16-1210.)

8. Witnesses

Defendant by taking stand and testifying regarding certain trip taken after alleged burglary, by himself and others subjected himself to cross-examination regarding such trip and all matters respecting which he testified.

9. Witnesses

The purpose of cross-examination is to weaken or show untruthfulness of testimony of witness examined or his bias or prejudice.

10. Witnesses

Accused who voluntarily takes witness stand in own behalf is subject to same rules applicable to other witnesses and may be cross-examined in regard to all matters to which he has testified on direct examination or connected therewith. (I.C.A., sec. 16-1205; Idaho Const., art. 1, sec. 13.)

11. Criminal law

Any false statement made by accused for evident purpose of avoiding suspicion is admissible as proof of guilt.

12. Witnesses

Defendant who testified in own behalf concerning an automobile trip to another state with alleged accomplices after alleged burglary and reasons therefor could be impeached by showing falsity of his testimony in relation thereto, since intent was an essential element of crime charged against him, as against objection that impeachment was on a collateral issue.

13. Criminal law

In first-degree burglary prosecution, evidence corroborating testimony of alleged accomplice was sufficient to sustain conviction. (I.C.A., sec. 19-2017.)

14. Criminal law

Testimony of an accomplice need not be corroborated by direct evidence but entire conduct of accused may be looked to for corroborating circumstances, and if from those circumstances the connection of accused with the crime may fairly be inferred, the corroboration is sufficient. (I.C.A., sec. 19-2017.)

15. Criminal law

An appellate court will not presume error in a criminal case, but record must affirmatively show that error was committed of character sufficiently serious to warrant reversal.

16. Criminal law

The burden of showing error on appeal after conviction is on defendant.

Appeal from the District Court of the Ninth Judicial District of the State of Idaho, in and for Jefferson County. Hon. C. J. Taylor, Judge.

Affirmed.

A. A. Merrill for appellant.

The defendant in a criminal case who has testified in his own behalf can only be cross examined by the state as to facts stated in his direct examination or in connection therewith. Neither can a witness be impeached by evidence of particular wrongful acts having no connection with matter on trial. (State v. Larkins, 5 Ida. 200; State v. Muguerza, 46 Ida. 456; Labonte v. Davidson, 31 Ida. 644; State v. Anthony, 6 Ida. 383; Morton v. Morton Realty Company, 41 Ida. 729; State v. Loon, 29 Ida. 248; State v. Bush, (Ida.), 295 P. 432; State v. McClurg, 50 Ida. 762.)

The admission of incompetent, irrelevant and immaterial matter, or matter too 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 Ida. 212; State v. Whitney, 43 Ida. 745; State v. Fowler, 13 Ida. 317; State v. Sims , 31 Ida. 505; State v. Main, 37 Ida. 449.)

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

A charge that burglary was committed "on or about" a given date is sufficient and the proof may show its commission at any time within the statute of limitations. (State v. Maguire, 31 Ida. 24, 30, citing and quoting; Commonwealth v. Briggs (Mass.), 11 Met. 573; Secs. 19-1314, 19-1203 and 19-1204, I.C.A.)

There was no error in permitting the endorsement of the name of the witness Hardy on the information. (Sec. Tr., f. 6; State v. McGann, 8 Ida. 40; State v. Rooke, 10 Ida. 388.)

A defendant in a criminal case may be cross-examined just as any other witness, not only as to his statements made on direct examination but as to any other facts connected therewith. (State v. Gruber, 19 Ida. 692, 703-704; State v. Martinez, 43 Ida. 180, 195.)

It is only necessary that accomplice testimony be corroborated as to some fact or circumstance tending to connect the defendant with the crime. (State v. Brown, 53 Ida. 576, 581; State v. Gillum, 39 Ida. 457; State v. Orr, 53 Ida. 452, 460.)

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

OPINION

Holden, J.

October 30, 1944, an information was filed in the District Court of the Ninth Judicial District in and for Jefferson County against defendant Mundell. The information charged:

"That said Horace Mundell on or about the 2nd day of June, A.D. 1944, and prior to the filing of this information, and within the County of Jefferson, in the State of Idaho, then and there being, did then and there commit the crime of burglary in the first degree, committed as follows, to-wit: That the said Horace Mundell willfully, unlawfully, feloniously and burglariously did enter a certain Service Station situated in Menan, County of Jefferson, and State of Idaho, then occupied by Menan Cooperative Supply Incorporated, a corporation, in the night time, with intent then and there the goods, chattels and property of the said Menan Cooperative Supply Incorporated, a corporation, then and there in said Service Station being found, then and there feloniously and burglariously to steal, take and carry away, and the said defendant, Horace Mundell, did then and there commit grand larceny * * *" (Emphasis ours).

The cause was tried November 14, 1944. On the same day the jury, duly impaneled and sworn to try the cause, found the defendant guilty as charged in the information. November 20, 1944, judgment was entered on the verdict adjudging defendant guilty and fixing his punishment, from which he appeals. Numerous alleged errors are assigned. These will be discussed in the following order:

ASSIGNMENTS NOS. 1 and 2.

(1) "* * * the State wholly failed to prove, in accordance with the allegations of the information, that on June 2, 1944, the defendant burglarized the service station in question," and further that:

(2) "The State wholly failed to prove the allegations of the criminal complaint in that they failed to prove that the crime was committed on June 2nd, 1944; but to the contrary proved that on June 1st, 1944, George Jenkins, Dale Woolf and Elbert Ritchie did burglarize said service station."

Appellant argues: "All of the State's evidence tends to show that the service station was burglarized on June 1st." "All of the State's witnesses testified that the crime was committed sometime before midnight on June 1st." And "the complaint alleges that the crime was committed during the night of June 2nd."

The information did not allege, as stated by appellant, "the crime was committed during the night of June 2nd." The information alleged, as will have been noted, that the crime was committed "on or about the 2nd day of June, A.D. 1944." It is not a fatal objection the evidence, conceding that to be true, shows the burglary was committed "sometime before midnight on June 1st" rather than on June 2nd, in this: that it is sufficient if the proof shows the commission of the crime at any time prior to the filing of the information and within the statute of limitations. We direct attention to Section 19-1314, I.C.A. (covering indictments) providing as follows:

"The precise time at...