State v. O'Neil

• Decision Date: 17 September 1913
• Court: Idaho Supreme Court
• Parties: STATE, Respondent, v. B. F. O'NEIL, Appellant

135 P. 60

24 Idaho 582

STATE, Respondent, v. B. F. O'NEIL, Appellant

Supreme Court of Idaho

September 17, 1913

BANKS AND BANKING-FALSE REPORT-INDICTMENT-SUFFICIENCY OF-STATUTORY CONSTRUCTION-MEANING OF WORD "MAKES"-EVIDENCE-ADMISSION OF-JURORS-DISQUALIFICATION OF-PROSECUTING ATTORNEY-REMARKS OF-INSTRUCTIONS.

1. Under the provisions of sec. 7679, Rev. Codes, the indictment or information must be direct and certain in regard to (1) the party charged; (2) the offense charged; (3) the particular circumstances of the offense charged when such circumstances are necessary to constitute a complete offense.

2. Under the provisions of sec. 7677, Rev. Codes, the indictment must contain the title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties, a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.

3. Held, that the indictment conforms substantially to the provisions of said sections 7679 and 7677, Rev. Codes.

4. Sec 7128, Rev. Codes, provides, among other things, that "Any person who knowingly makes or publishes in any way whatever or permits to be so made or published any report, statement, exhibit or other publication.... which shall contain any statement which is false or wilfully exaggerated.... shall be deemed guilty of a felony "

5. The word "makes" as used in said section has a meaning broad enough to cover the complete commission of the crime referred to in said section.

6. The word "makes" as used in said section means not only the signing but the passing or issuing of said report.

7. An indictment is sufficient if it describes the offense in the language of the statute by which it is created or defined and the words employed make the charge clear to the common understanding.

8. Held, that other false statements and reports made by the defendant in regard to said bank were properly admitted in evidence.

9. Where a defendant denies knowledge or intent, evidence of other acts of the same character or kind on his part may be admitted so that the jury may determine whether the defendant intended to make a false report.

10. Where the crime is committed in a systematic manner, it is competent to prove other similar transactions occurring at different times and places to show the intent or motive of the accused.

11. Held, that the court did not err in admitting in evidence certain comparative statements, such statements having been taken from numerous and voluminous records which were already in evidence, and which were made for the purpose of assisting the jury in arriving at their verdict.

12. The law requires counsel for the defendant in selecting a juror to try diligently to ascertain his state of mind and his qualification as a juror. If he neglects to do so, the defendant cannot complain after the trial.

13. The prosecuting attorney and his assistants must keep within reasonable bounds in the trial of a criminal case, and must not make any remarks that would tend to prejudice the jury outside of what the evidence shows or warrants.

14. It is not error for the court to refuse to give requested instructions when such instructions are embodied in other instructions given.

APPEAL from the District Court of the Eighth Judicial District, in and for Kootenai County. Hon. Robt. N. Dunn, Judge.

Appellant was convicted of making a false report of the condition of a state bank and sentenced to the state penitentiary for a term not less than two years and not exceeding ten. Judgment affirmed.

Affirmed.

McFarland & McFarland, for Appellant.

The indictment is insufficient, first, because the facts therein stated do not constitute a public offense, and, second, because it does not substantially conform to the requirements of sec. 7679, Rev. Codes, in that it is not direct and certain as regards the offense charged, or the particular circumstances of the offense charged when they are necessary to constitute a complete offense. (22 Cyc. 295, 296; People v. Palmer, 53 Cal. 615; People v. Simpton, 133 Cal. 367, 65 P. 834; People v. Robles, 117 Cal. 681, 49 P. 1042; People v. Cohen, 118 Cal. 74, 50 P. 20; People v. Eppinger, 105 Cal. 36, 38 P. 538; People v. Webber, 138 Cal. 145, 70 P. 1089; People v. Mahony, 145 Cal. 104, 78 P. 354.)

These decisions were rendered under sec. 952, Penal Code of California, which is identical with sec. 7679, Rev. Codes of Idaho. (See, also, State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852; Funk v. State, 149 Ind. 338, 49 N.E. 266; State v. Chinn, 142 Mo. 507, 44 S.W. 245; Strope v. State, 120 Ind. 562, 22 N.E. 773; Whitney v. State, 10 Ind. 404.)

In State v. Swensen, 13 Idaho 1, 81 P. 379, this court held the information, which in our opinion is less defective than the indictment in this case, insufficient.

The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible. (12 Cyc. 405; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L. R. A. 193; People v. Jones, 32 Cal. 80; People v. Schweitzer, 23 Mich. 301; Welhousen v. State, 30 Tex. App. 623, 18 S.W. 300; People v. Hurley, 126 Cal. 351, 58 P. 814; Raymond v. Commonwealth, 123 Ky. 368, 96 S.W. 515; People v. Dixon, 118 A.D. 593, 103 N.Y.S. 186; State v. McNamara, 212 Mo. 150, 110 S.W. 1067; Brown v. State, 54 Tex. Cr. 121, 112 S.W. 80; State v. Sparks, 79 Neb. 504, 113 N.W. 154; State v. Missouri P. Ry. Co., 219 Mo. 156, 117 S.W. 1173; State v. Hight, 150 N.C. 817, 63 S.E. 1043; People v. Dudenhausen, 130 A.D. 760, 115 N.Y.S. 374; Gray v. State, 160 Ala. 107, 49 So. 678; People v. Friedman, 149 A.D. 873, 134 N.Y.S. 153; Dyar v. United States, 186 F. 614, 108 C. C. A. 478; Johnson v. Commonwealth, 144 Ky. 287, 137 S.W. 1079; Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. Rep. 649; Clark v. State, 59 Tex. Cr. 246, 128 S.W. 131, 29 L. R. A., N. S., 323; Gross v. State, 61 Tex. Cr. 176, 135 S.W. 373, 33 L. R. A., N. S., 477.)

There are exceptions to the general rule that evidence of other offenses is not admissible, but the evidence of other crimes must tend directly to prove the defendant guilty of the crime charged. (12 Cyc. 406.)

The only testimony tending to connect appellant with the making of the alleged false report, or the commission of the crime charged, or tending to prove knowledge or notice of the alleged falsity of said report, is that of Gary Burke. If the testimony of Gary Burke is true, he was an accomplice, and his evidence is not sufficient upon which to base a conviction. (Sec. 7871, Rev. Codes; State v. Knudtson, 11 Idaho 524, 83 P. 226.)

J. H. Peterson, Attorney General, James A. Wayne and John P. Gray, for Respondent.

An indictment in the form of the present one was considered by this court in the case of State v. Paulsen, 21 Idaho 686, 123 P. 588. An information identical with the indictment in this case drawn under the same section of the statute was before this court in State v. Cutts, ante, p. 329, 133 P. 115,

In the event that the defendant is not able to identify that particular report for the making of which he is to be tried, then he has the right to demand of the state a bill of particulars. (Bailey v. Commonwealth, 130 Ky. 301, 113 S.W. 140; State v. Rathbone, 8 Idaho 161, 67 P. 186.)

If the court resorted to conjecture and speculation in order to hold an indictment faulty, there would scarcely be an indictment that would be admittedly sufficient. (Cochran v. United States, 157 U.S. 286, 15 S.Ct. 628, 39 L.Ed. 704.)

The second objection of counsel to this indictment, viz." That it does not charge what was done with the report after it was signed or made by the defendant, is disposed of in the case of State v. Cutts, supra.

An indictment is sufficient if it describes the offense in the language of the statute by which it is created or defined. (People v. Butler, 1 Idaho 231-234.)

An indictment is sufficient if the words employed make the charge clear to the common understanding (Ex parte Pierce, 155 F. 665; Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann. Cas. 362), with such a degree of certainty as to apprise the defendant of the nature of the charge against him, and protect him against a second conviction for the same offense. (People v. Helmer, 154 N.Y. 596, 49 N.E. 249; Chamberlain v. State, 80 Neb. 812, 115 N.W. 555; Richburger v. State, 90 Miss. 806, 44 So. 772; Wall v. State, 2 Ala.App. 157, 56 So. 57; State v. Rathbone, supra.)

"In such cases a broad range of inquiry is permitted, and when the evidence tends even remotely to establish the ultimate fact, its admission will not be ground for reversal." (Spurr v. United States, 87 F. 701, 31 C. C. A. 202; Coffin v. United States, 162 U.S. 669, 16 S.Ct. 943, 40 L.Ed. 1109.) Evidence is proper to show the course of business for the purpose of permitting the jury to determine whether or not the intent was shown. (United States v. Breese, 131 F. 915; Thomas v. United States, 136 F. 159, 69 C. C. A. 157; United States v. Kenney, 90 F. 257.)

Other acts of kindred nature are competent to illustrate the character of the transaction in question and throw light on the intent with which the particular act was done. (Walsh v. United States, 174 F. 616, 98 C. C. A. 461; United States v. Dexter, 154 F. 890-895; Van Gesner v. United States, 153 F. 46, 82 C. C. A. 180; Williamson v. United States, 207 U.S. 425, 28 S.Ct 163, 52 L.Ed. 278; Prettyman v. United States, 180 F. 30, 103 C. C. A....