State v. Nadlman

• Decision Date: 16 October 1941
• Docket Number: 6900
• Citation: 118 P.2d 58,63 Idaho 153
• Parties: STATE, Respondent, v. CHARLES NADLMAN, Appellant
• Court: Idaho Supreme Court

118 P.2d 58

63 Idaho 153

STATE, Respondent, v. CHARLES NADLMAN, Appellant

No. 6900

Supreme Court of Idaho

October 16, 1941

WITNESSES-IMPEACHMENT-CROSS-EXAMINATION-JUDICIAL DISCRETION-CRIMINAL LAW-INDICTMENTS AND INFORMATIONS-INCLUDED OFFENSES-ELECTION-APPEAL AND ERROR-JURORS-QUALIFICATION OF-CONSTITUTIONAL LAW-TRIAL BY JURY-DUE PROCESS OF LAW.

Conviction of assault with a deadly weapon was reversed, and cause was remanded for new trial by a divided court.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. The right to impeach a witness and the methods of impeachment are statutory, and if the witness is to be discredited in this manner the statute must be conformed to.

II. The extent of cross-examination, on collateral and immaterial matters, is largely within the discretion of the trial judge and his rulings thereon will not be disturbed unless prejudice to the party complaining thereof is apparent.

III. In a charge of assault with a deadly weapon, battery is not an included offense.

IV. Although the charging part of an information states facts sufficient to constitute the crimes of assault with a deadly weapon and battery, if it is stated in the information that the defendant is accused of assault with a deadly weapon, and no statement is made that he is accused of battery, this amounts to an election by the prosecuting attorney to proceed against him for assault with a deadly weapon alone.

V. The right to trial by jury, guaranteed by Article I, 7 of the Constitution of Idaho, is the right as it was known in Idaho Territory at the time the State Constitution was written and adopted.

VI. A defendant in a criminal case has not had due process of law as guaranteed by Article I, 13 of the Constitution of Idaho when he has been tried and convicted by a jury which did not measure up to the constitutional and statutory requirements.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Judge.

From a judgment of conviction of assault with a deadly weapon, and from an order denying a new trial, defendant appeals. Reversed and remanded for a new trial.

Reversed and remanded.

O. R. Baum, Ben Peterson and Donald R. Good, for Appellant.

The trial court misdirected the jury on matters of law during the course of the trial in refusing to give defendant's requested instructions No. 1 and 1-A. Such requested instructions requesting and asking the court to instruct the jury that both battery and assault are included offenses of assault with a deadly weapon or a weapon likely to cause great bodily injury. The trial court instructed the jury that they might, if the evidence warranted, find the defendant guilty of the included offense of simple assault. (Norman D. McLeod, 23 Idaho 257; State vs. Ackles, 36 P. 597; Dulon vs. State, 62 N.W. 1090; Mooney vs. State, 33 Ala. 419.)

The defendant did not have a fair and impartial trial as guaranteed by the laws of the United States and the State of Idaho in that one of the jurors who tried said cause was not a resident of Bingham County, Idaho, as required by law. (Section 2-201 I. C. A.; Section 2-202 I. C. A.; Section 33-401 I. C. A.; Section 7, Art. 1, Constitution of Idaho; Sixth Amendment, U. S. Constitution; Territory vs. Evans, 2 Idaho 651; 23 P. 232; 7 L. R. A. 646; State vs. Kelly, 39 Idaho 668; 229 P. 659; Section 2-101 I. C. A.; Section 2-104 I. C. A.; 20 Ruling Case Law, Sec. 27, page 242.)

The trial court erred in not permitting the defendant to examine the prosecuting witness concerning statements he had made about the defendant prior to the time of the altercation which resulted in this prosecution. Permission to ask into such matters was asked upon the theory and for the purpose of impeaching the witness's testimony, and for the purpose of showing bias and prejudice against the defendant, the prosecuting witness having testified that at all times prior to the altercation he was on friendly terms with the defendant. (Wharton's Criminal Evidence, Eleventh Edition, Vol. III, Section 1346, p. 2226; Bingham vs. State, 203 Ala. 162, 82 So. 192.)

Bert H. Miller, Attorney General, J. R. Smead, Leo Breshnahan, Robert M. Kerr, Jr., and M. Casady Taylor, Assistant Attorneys General, for Respondent.

The information charges assault by hurling a typewriter at the complaining witness's head; under the evidence, appellant was either guilty of using the typewriter as a deadly weapon, an instrument likely to cause great bodily injury, or he was not guilty at all. Even if battery were also charged, there was no error in failing so to instruct because the evidence did not support a charge of battery as distinguished from the major crime. (State v. Brooks, 49 Idaho 404, 410; State v. Thomas, 47 Idaho 760, 766; People v. Brown (Cal.) 84 P. 670; People v. Warr (Cal.) 136 P. 304; State v. Alvord, 47 Idaho 162.)

Non-residence in the county of a member of the jury, unknown to defendant till after the verdict, is not ground for a new trial. (16 C. J. 1156, Sec. 2652, and authorities cited, Note 50; People v. McFarlane (Cal.) 71 P. 568, 572; Brown v. State (Ga.) 315 E. 557.)

MORGAN, J. Budge, C.J., concurs, Holden, J., GIVENS, J., and AILSHIE, J., concurring in the conclusion.

OPINION

MORGAN, J.

At about the hour of midnight, ending October 8, 1940, in the lobby of the Cottage Hotel, in Blackfoot, Bingham County, a fight occurred between appellant and J. O. Bradford, who was manager of the hotel. As a result of the fight an information was filed against appellant, the charging part of which is:

"The said Charles Nadlman, on or about the 9th day of October, 1940, at the County of Bingham and State of Idaho, and prior to the filing of this information with a certain deadly weapon or instrument which was likely to produce great bodily injury, to-wit, a typewriter weighing approximately thirty pounds, did then and there wilfully, unlawfully and feloniously make an assault in and upon the person of one J. O. Bradford, by then and there throwing said typewriter at said J. O. Bradford and by striking said J. O. Bradford on the head and face with said typewriter."

A trial was had and the jury found appellant "guilty of the offense of an assault with a deadly weapon as charged in the information." A motion for a new trial was made and was denied. Judgment was made and entered that appellant be punished by imprisonment in the state prison for a term of not less than one year and not more than two years and that he pay a fine of $ 250 and costs; that the prison term be, and it was commuted to four months in the Bingham County jail. It was adjudged that, on his failure to pay the fine and costs, he be imprisoned in the county jail until they were satisfied, at the rate of one day for each $ 2.00 thereof, such imprisonment for failure to pay the fine and costs to commence to run at the expiration of the four months imprisonment imposed in the judgment. This appeal is from the judgment and from the order denying a new trial.

Appellant has made but one assignment of error, to-wit:

"The trial court erred in denying and overruling defendant's motion for a new trial for the reasons and upon the grounds assigned in defendant's motion for a new trial."

The first specification in the motion for a new trial is:

"That the Court has erred in the decision of a question of law arising during the course of the trial more particularly in this: That upon the examination of the prosecuting witness, J. O. Bradford, he testified that at all times prior to the altercation growing out of which this prosecution was had, he was on friendly terms with the defendant, and for the purpose of impeachment, and for this purpose only, the defendant sought to elicit from the prosecuting witness on cross-examination whether or not it was true that he had said to Pauline Duspivia that he was going to 'The next time the S of B comes in, I am going to take a Winchester at him--I am going to pull a Winchester on him.' The court erred in not permitting the defendant to cross-examine the complaining witness concerning and with respect to the statement above referred to for the purpose of impeachment and for that purpose alone, the complaining witness having already testified that prior to the altercation he was on friendly terms with the defendant; and the Court further committed error every place in the cause where the Court refused to permit the defendant to inquire of the complaining witness concerning the threats he had made against Nadlman, such statements having been made to Pauline Duspivia. Such evidence being offered for the purpose of impeaching the prosecuting witness Bradford and also for the purpose of testing the credibility of the prosecuting witness, and, further, to show bias, prejudice and hostility on the part of the prosecuting witness Bradford and against the defendant Nadlman, and the extent and the cause of such bias, prejudice and hostility."

In folio 118 of the transcript this offer of proof, made by counsel for appellant, appears:

Mr. BAUM: "At this time, Your Honor, the defendant offers to prove, subsequent to interrogating the witness on it, as to whether or not on October 6th, Sunday preceding the occurrence, that Bradford said to Pauline Duspivia, at a time when the only persons were present were Mr. Bradford, the witness on the stand, and Pauline Duspivia, at which time Bradford said, 'The next time Nadlman--the next time the "sun-of-a-bitch" comes in I am going to take a Winchester at him--I will pull a Winchester on him.'"

The offer of proof was denied. In folios 120 and 121 the following questions and answers appear:

"Q. Mr. Bradford, on the evening of October 8th, immediately prior...