State v. Nolan

• Decision Date: 05 December 1917
• Citation: 169 P. 295,31 Idaho 71
• Parties: STATE, Respondent, v. GEORGE NOLAN and PERCY HEATH, Appellants
• Court: Idaho Supreme Court

169 P. 295

31 Idaho 71

STATE, Respondent, v. GEORGE NOLAN and PERCY HEATH, Appellants

Supreme Court of Idaho

December 5, 1917

JUSTICE OF PEACE JURISDICTION-OFFICER DE FACTO-INDORSEMENTS ON INFORMATION-LEADING QUESTIONS-ADMISSIBILITY OF EVIDENCE-CONFESSIONS-INSTRUCTIONS-REASONABLE DOUBT.

1. The justice of the peace who sat as committing magistrate in this case was appointed as such justice for Buhl precinct No. 2 but on the date of his appointment and on the date of the preliminary hearing he was a resident of Buhl precinct No. 1 and at all times held his court therein. Held, that while it may be true, under sec. 3885, Rev. Codes, that he was not eligible to the office of justice of the peace of the precinct for which he was appointed and hence could not be regarded as an officer de jure, still under the facts shown by the record he was an officer de facto, and as such his jurisdiction and official acts were as valid as to the public and third parties as though he were qualified and eligible in every respect.

2. Where the trial court permitted the indorsement of the name of a witness on the information the day the case was called for trial, but it does not appear that defendants' counsel requested a continuance or claimed surprise or that defendants were in any way prejudiced, and it further appears that the matter in regard to which such witness testified occurred more than a month after the information was filed no error was committed.

3. Permission to counsel for the state in a criminal case to ask leading questions of witnesses, aside from the cases provided for by statute, rests largely in the discretion of the trial court, and does not constitute reversible error in the absence of an abuse of such discretion.

4. Held, that the exhibits in this case were sufficiently identified upon the trial to justify their admission.

5. Held, that sufficient evidence was introduced in this case to show that the confessions of the defendants were freely and voluntarily made before they were admitted in evidence.

6. The court may properly refuse to instruct the jury that they must acquit the defendant unless some particular isolated fact or circumstance is proven beyond a reasonable doubt, the proper instruction being that such doubt must arise, if at all, from all the facts and circumstances in evidence when considered together.

7. Error cannot be predicated on the refusal of instructions when such instructions are given by the court in a different form but substantially as requested.

8. When there is no request on the part of defendants' counsel for an instruction defining circumstantial evidence, an instruction as given by the court cannot be attacked on the ground that it does not include such definition, when the instruction correctly states the law as far as it goes applicable to the facts in evidence.

9. In instruction No. 11 the court instructed the jury: "No juror from mere pride of opinion hastily formed or expressed should refuse to agree; nor, on the other hand, should he surrender any conscientious views founded on the evidence. The jury should, therefore, lay aside pride of opinion and judgment, examine any differences of opinion there may be among them, in a spirit of fairness and candor, reason together and talk over such differences, and harmonize them if possible, so that this case may be disposed of." Held, that while the giving of such instruction was not justified, it cannot be regarded as prejudicial to the defendants or as constituting reversible error, under the circumstances of this case.

10. Instruction on reasonable doubt considered, and held, that while said instruction contained unnecessary matter, it was not prejudicial to the defendants and the giving of it did not constitute error.

[As to urging or coercing jury's verdict, see note in 105 Am.St. 569]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

From a conviction for grand larceny defendants appeal. Affirmed.

Affirmed.

Longley & Walters and Taylor Cummins, for Appellants.

The alleged justice of the peace did not reside in the precinct for which he was appointed and in which the court was held. He was not legally qualified to sit as a committing magistrate in this case, and a preliminary hearing held before him cannot have any legal effect. Sec. 7662, Rev. Codes, providing for preliminary examination, is mandatory. (State v. Braithwaite, 3 Idaho 119, 27 P. 731.)

A showing should be made by affidavit or otherwise, that the names of additional witnesses were not known to the prosecuting attorney at the time the information was filed. (State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Wilmbusse, 8 Idaho 608, 70 P. 849; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Allen, 20 Idaho 263, 117 P. 849; State v. Silva, 21 Idaho 247, 120 P. 835.)

The jury are not to be bound by any statement of the witness purporting to relate an alleged confession, as to whether any promises of immunity or reward were offered, or threat made, as an inducement for making it, but rather, as a basis for the admission of such testimony, the jury are entitled as a matter of right to be put in possession of all the facts and circumstances surrounding such transaction, and it is the proper province of the jury and not of the witness, to say, after hearing such evidence, whether or not in fact such promises were offered or such threats made, and whether or not such purported confession was voluntary or involuntary. (Wigmore on Evidence, secs. 861, 866; Burton v. State, 107 Ala. 108, 18 So. 284, 285.)

Instruction No. 11 clearly invaded the domain of the jury, and its undeniable effect was to coerce a verdict. (State v. Ivanhoe, 35 Ore. 150, 57 P. 317; Randolph v. Lampkin, 90 Ky. 551, 14 S.W. 538, 539, 10 L. R. A. 87; Whitelaw's Exr. v. Whitelaw, 83 Va. 40, 1 S.E. 407; Cranston v. New York Cent. & H. R. Co., 103 N.Y. 614, 9 N.E. 500; State v. Bybee, 17 Kan. 462; State v. Chambers, 9 Idaho 673, 75 P. 274; Hodges v. O'Brien, 113 Wis. 97, 88 N.W. 901; State v. Fisher, 23 Mont. 540, 59 P. 919; People v. Kindleberger, 100 Cal. 367, 34 P. 852; People v. Sheldon, 156 N.Y. 268, 66 Am. St. 564, 50 N.E. 810, 41 L. R. A. 644.)

Instruction No. 6, wherein the court attempted to define a reasonable doubt, was prejudicial error. (Bothwell v. State, 71 Neb. 747, 99 N.W. 669; Lillie v. State, 72 Neb. 228, 100 N.W. 316; Clements v. State, 80 Neb. 313, 114 N.W. 271; Lambert v. State, 91 Neb. 520. 136 N.W. 720; People v. Johnson, 140 N.Y. 350, 35 N.E. 604; Siberry v. State, 133 Ind. 677, 33 N.E. 681; 12 Cyc. 627; 3 Brickwood's Sackett on Instruction, sec. 4445; McAllister v. State, 112 Wis. 496, 88 N.W. 212; Blue v. State, 36 Neb. 189, 125 N.W. 136; Brown v. State, 88 Neb. 411, 129 N.W. 545; Bartels v. State, 91 Neb. 575, 136 N.W. 717.)

John E. Davies, Pros. Atty., J. H. Peterson, Atty. Genl., Edwin Snow and Laurel E. Elam, for Respondent.

If the jurisdiction of the court before whom the preliminary examination was held really extended to the place where the trial was actually held, any irregularity as to the place where the court held the examination would be waived by failure to object at that time. (State v. Noyes, 15 Idaho 241, 96 P. 435.)

Permission by the trial court to indorse new names on the information is not reversible error unless it clearly appears that by such permission the rights of the defendants have been substantially prejudiced. (State v. Rooke, 10 Idaho 388, 400, 79 P. 82; State v. Silva, 21 Idaho 247, 254, 120 P. 835; State v. Wilmbusse, 8 Idaho 608, 70 P. 849.)

Our statute on this particular question is taken from Nebraska. (Fager v. State, 49 Neb. 439, 68 N.W. 611; Trimble v. State, 61 Neb. 604, 85 N.W. 844, 845.)

Courts now permit the use of general questions by the prosecutor for the purpose of establishing a prima facie admissibility of the confession and then give to the defense the opportunity of cross-examination for the purpose of showing affirmative facts of restraint, promises of immunity, etc. The court must decide as to the admission of the confession. The jury, after admission of the testimony has been allowed, must then decide all facts in connection therewith. (Burton v. State, 107 Ala. 108, 18 So. 284, 285; Wigmore on Evid., p. 993; note in 18 L. R. A., N. S., 768, 777.)

Instruction No. 11 was not prejudicial to defendants. This instruction is never objected to except where it has been given after the jury have already deliberated and failed to reach a conclusion, and even at that time only from the standpoint that it is coercive and invades the province of the jury. (State v. Hawkins, 18 Ore. 476, 23 P. 475, 477.)

Instruction No. 6, on reasonable doubt, was approved in State v. Moon, 20 Idaho 202, Ann. Cas. 1913A, 724, 117 P. 757. See, also, Commonwealth v. Harman, 4 Pa. 269, 273; Fife v. Commonwealth, 29 Pa. 429, 439; Nevling v. Commonwealth, 98 Pa. 322, 334; Spies v. People, 122 Ill. 1, 82, 3 Am. St. 320, 12 N.E. 865, 17 N.E. 898; People v. Zajicek, 233 Ill. 198, 84 N.E. 249; State v. Potts, 20 Nev. 389, 22 P. 754; Perry v. People, 38 Colo. 23, 87 P. 796; State v. Tyler, 122 Iowa 125, 97 N.W. 983; State v. Pott, 166 N.C. 268, Ann. Cas. 1916C, 422, 80 S.E. 1060; Boulden v. State, 102 Ala. 78, 15 So. 341; State v. Pierce, 65 Iowa 85, 89, 21 N.W. 195; Moore v. State, 4 Okla. Cr. 212, 111 P. 822, 823.

Where the instructions taken as a whole clearly present the law to the jury, minor errors in one instruction will not be ground for reversal. (People v. Oppenheimer, 156 Cal. 733, 106 P. 74; People v. Kreidler, 180 Mich. 654, 147 N.W. 559; Bartley v. State, 53 Neb. 310, 73 N.W. 744.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

The appellants, ...