State v. Mushrow

• Decision Date: 22 December 1919
• Citation: 185 P. 1075,32 Idaho 562
• Parties: STATE, Respondent, v. MARTIN MUSHROW, Appellant
• Court: Idaho Supreme Court

185 P. 1075

32 Idaho 562

STATE, Respondent, v. MARTIN MUSHROW, Appellant

Supreme Court of Idaho

December 22, 1919

CRIMINAL LAW-EVIDENCE-REBUTTAL-NEW TRIAL-EXCEPTION-BILL OF EXCEPTIONS-ERRORS ASSIGNED AND NOT DISCUSSED.

1. Rebuttal evidence in criminal cases is that which is given by the state to explain, repel, counteract or disprove evidence introduced by or on behalf of the defendant.

2. Where it is not shown by the record that a defendant is surprised or placed at a disadvantage or denied the opportunity of contradicting or explaining evidence admitted as rebuttal, its admission is not an abuse of the trial court's discretion and is not reversible error.

3. An order denying a motion for a new trial is not reviewable on appeal where no exception to the order was saved and the point is not presented by a bill of exceptions.

4. Errors assigned but not discussed will not be reviewed where no erroneous ruling appears upon the face of the objections.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Conviction for selling intoxicating liquor in violation of law. Affirmed.

Affirmed.

Wm. J Costello and O. J. Bandelin, for Appellant.

The state should not have been allowed to put on witnesses to testify regarding the chute and trap-door and offer the same as rebuttal testimony, when it would be impossible for the appellant Mushrow to meet the issue at that time. (State v. Waln, 14 Idaho 1, 4, 80 P. 221.)

With this newly discovered evidence it is reasonably probable that a different verdict would result, and the affidavits are unquestionably sufficient to entitle appellant to a new trial. (State v. Lumpkin, 31 Idaho 175, 169 P. 939.)

Roy L Black, Attorney General, and C. S. Hill, Assistant, for Respondent.

Any evidence which tends to antagonize or confute new facts introduced by the adverse party at the next previous stage whether given by himself or by his other witnesses, or on cross-examination, is properly admissible as rebuttal evidence. (Chamberlain's Handbook on Evidence, sec. 173; Thomas v. State, 150 Ala. 31, 43 So. 371; Roberts v. Terre Haute Electric Co., 37 Ind.App. 664, 76 N.E. 323, 895.)

Where the action of the trial court in overruling a motion for a new trial is assigned as error, the same cannot be considered by the supreme court on appeal unless the record shows that an exception was saved to the action complained of and presented to the supreme court by a bill of exceptions duly settled as required by law. (C. S., sec. 9008; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Ray, 32 Idaho 363, 182 P. 857.)

Where the appellant assigns errors in his brief on appeal, but fails to discuss the same either in the brief or his oral argument and cites no authorities in support thereof, the same will be treated as waived and will not be considered upon appeal. (Davenport v. Burke, 27 Idaho 464, 149 P. 511; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

BUDGE, J. Rice, J., MORGAN, C. J., concurring.

OPINION

BUDGE, J.

From a judgment of conviction for selling intoxicating liquor in violation of law, and from an order overruling a motion for a new trial, this appeal is prosecuted.

Six errors are assigned, the first three of which attack the ruling of the court in admitting certain evidence.

Appellant testified that the room in the hotel operated by him in which, it had been testified, the intoxicating liquor was sold to certain of the state's witnesses was a bedroom. In rebuttal the court permitted certain witnesses for the state to testify that under a rug in this room was a trap-door opening to a chute leading to a piece of radiator in the basement, there being in the upper end of the chute a small compartment, the bottom of which was a spring-door, so constructed that when the door was unhooked anything in the compartment would go down the chute, strike against the radiator and if breakable would break.

It is insisted by appellant that the admission of this evidence was error, for the reason that it was not proper rebuttal.

Appellant's testimony that the room was a bedroom created a plausible and forcible inference that this room was not used for the sale of intoxicating liquor. This testimony gave a new character to the evidence, which it was not necessary for the state to have anticipated, and the evidence on the part of the state was admissible for the purpose of overcoming the inference created thereby, by showing that the room was equipped to carry on an illicit traffic in intoxicating liquor. Rebuttal evidence in criminal cases is that which is given by the state to explain, repel, counteract or disprove evidence introduced by or on behalf of the defendant. The evidence complained of in this case comes clearly within this rule. (People v. Page, 1 Idaho 189, at 194, 195.)

The author of this opinion and Justice Rice are of the opinion that the evidence complained of was properly admissible as rebuttal evidence under the foregoing rule, yet even if it were not strictly rebuttal evidence, its admission or exclusion rested in the discretion of the trial court, provided the defendant had a fair opportunity to meet the evidence. (C. S., sec. 8941, subd. 4; State v. Ellington, 4 Idaho 529, at 536, 43 P. 60.)

There is nothing in the record before us to show that the appellant was surprised or placed in a position of disadvantage or denied the opportunity of contradicting or explaining the testimony complained of, or that he was unprepared to do so. He neither claimed surprise, nor asked for a continuance to enable him to better meet the state's evidence. Reversible error cannot be predicated upon such a situation. This is the rule supported by the authorities generally. (3 Wigmore on Evidence, sec. 1873, and cases cited in note 1 pp. 2475, 2476, among which State v. Lawrence, 70 Vt. 524, 41 A. 1027, and State v. Webb, 18 Utah 441, 56 P. 159, are...