State v. Oldham

• Decision Date: 04 March 1968
• Docket Number: No. 9970,9970
• Citation: 92 Idaho 124,438 P.2d 275
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James C. OLDHAM and Ivan Leeper, Jr., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 275

438 P.2d 275

92 Idaho 124

STATE of Idaho, Plaintiff-Respondent, v. James C. OLDHAM and Ivan Leeper, Jr., Defendants-Appellants.

No. 9970.

Supreme Court of Idaho.

March 4, 1968.

Derr, Derr & Walters, Boise, for appellants.

Allan G. Shepard, Atty. Gen., and Robert P. Tunnicliff, Asst. Atty. Gen., Boise, for respondent.

SPEAR, Justice.

Appellants were jointly charged with having burglariously entered the Seven Mile Inn, near Boise, Idaho, on December 5, 1965, and robbing and kidnapping three individuals. After jury trial held in August, 1966, appellants were found guilty and convicted of one count of burglary, three counts of robbery and three counts of kidnapping. They were each sentenced September 6, 1966, to imprisonment in the Idaho State Penitentiary for ten years upon each count, for a total of seventy years. The sentences for burglary and kidnapping were subsequently suspended by the court on the condition that appellants serve the three sentences imposed for the robbery conviction. From the judgment of conviction and the order of the trial court denying appellants' motion for new trial, appellants have appealed.

Appellants have raised sixteen assignments of error, all of which concern procedural and evidentiary matters which occurred subsequent to their arrest. We consider herein the specifications of error in the order charged by appellants.

Appellants argue that the court erred in denying their motion for discovery and inspection of certain evidence. They refer particularly to all written statements, admissions, or confessions made by either appellant and certain witnesses, all items of clothing belonging to appellants, one metal suitcase, one 22-caliber automatic pistol, a jacket and watch and cash taken from one victim, an automobile, certain photographs relating to the crime, and all items of cash and personal property taken from appellants by the prosecuting attorney. Their contention, based primarily on I.C. R19-1530, is that discovery should have been allowed because it aids appellants in preparation of their defense.

The trial court, in fact, refused discovery only of the statements and admissions of certain witnesses, the pistol, and the jacket watch and $125.00.

I.C. R19-1530 states, in pertinent part:

'Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the state to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable * * *.'

It is significant that our statute does not refer specifically to statements by participants involved in the same crime as appellants. Further, I.C. R19-1530 gives the trial court broad discretion in granting or refusing discovery and inspection of books, papers, documents, or tangible objects. In the case at bar, appellants failed to allege any substantial prejudice resulting from the failure of the trial court to grant discovery of any of the items requested. It is generally held by courts that have ruled thereon that the grant or denial of criminal pretrial discovery and inspection is within the discretion of the trial court and will not be disturbed unless there is a manifest abuse of discretion. State v. Mesaros, 62 Wash.2d 579, 384 P.2d 372 (1963); State v. St. Peter, 63 Wash.2d 495, 387 P.2d 937 (1963); see also Mendelsohn v. People, 143 Colo. 397, 353 P.2d 587 (1960); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960); State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); State ex rel. Mahoney v. Superior Ct., 78 Ariz. 74, 275 P.2d 887 (1954); State v. Leland, 190 Or. 598, 227 P.2d 785 (1951), affirmed 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. Thus it was not error for the trial court to refuse discovery and inspection of the items designated by appellants, for no abuse of discretion was shown.

Appellants interposed a demurrer to the information on file against them, on the ground that the information did not conform with I.C. § 19-1703(2), which provides that the information must conform to the provisions of I.C. §§ 19-1409(2) and 19-1411(2)(3). The essence of the latter two code sections is that an indictment must contain a statement of the acts constituting the offense in ordinary and concise language, in a manner such as to enable a person of common understanding to know what is intended, and that it must be direct and certain regarding the offense charged and the particular circumstances of the offense, when such are necessary to constitute a complete offense. Appellants object specifically to an alleged lack of precision in the information charging first degree burglary and the illegal acts committed, and to a failure to describe directly and certainly the property taken. They also contend that the Seven Mile Inn is not within the ambit of the buildings or edifices covered by I.C. § 18-1401.

Although I.C. § 18-1401 does not refer specifically to 'inns' in listing the structures in which burglary may be committed, its reference to 'or other building' is sufficiently broad to encompass the Seven Mile Inn. In State v. Marks, 45 Idaho 92, 260 P. 697 (1927), this court construed the word 'building' to include an outhouse which was a small structure built against a larger building and used for housing a pump and gasoline. It consisted of three sides of shiplap, with a sloping roof, and the main building formed the fourth side. The court held that:

'The structure was walled in and had a roof and a door. It was erected and used for the purpose of protecting property placed therein. While small, it was more than a wooden box-it was a building, used in connection with a larger building, and subject to burglary.' (at p. 96, 260 P. at p. 698)

Certainly, the Seven Mile Inn is more of a 'building' within the meaning of that word as used in § 18-1401 than the outhouse in the Marks case, supra Colorado has adopted the rule that all stationary structures, no matter of what substance they may be constructed, are within the term building, so long as they are designed for use in the position in which they are fixed. A telephone booth, when set apart from any other structure, was held to be within the purview of the Colorado burglary statute citing some California cases that had reached the same conclusion. Sanchez v. State of Colorado, 142 Colo. 58, 349 P.2d 561, 78 A.L.R.2d 775 (1960). That court further held:

'Rather than limiting the definition of a building to a structure with walls and a roof, which would include the telephone booth in question, we believe it was the legislative intent that a building is 'a structure which has a capacity to contain, and is designed for the habitation of man or animals, or the sheltering of property,' see People v. Miller, supra (95 Cal.App.2d 631, 213 P.2d 534, 536).' (at p. 562)

This is a proper definition of the legislative intent when I.C. § 18-1401 was adopted also. There is no merit, therefore, to appellants' contention that the Seven Mile Inn is not a 'building' within the scope of our burglary statute.

We find that the information in Counts II, III, and IV sufficiently described the property taken, see State v. Derrington, 137 S.W.2d 468 (Mo.1940), and that the other objections contained in appellants' second assignment of error concerning the sufficiency of the information are without merit.

Appellants maintain that the court erred in failing to grant them separate trials upon the charges brought against them. They reason that Leeper was prejudiced by the joint trial because the 22-caliber automatic was admitted in evidence as to appellant Oldham but excluded as to Leeper. According to appellants' theory, were separate trials to have been granted, the charge of robbery might have been defeated as against Leeper because its instrumentality, the pistol, had been excluded as to him.

The granting of separate trials is discretionary with the court. I.C. § 19-2106; State v. Robinson, 71 Idaho 290, 292, 230 P.2d 693, 695 (1951); State v. Fox, 52 Idaho 474, 16 P.2d 663 (1932); State v. Smith, 30 Idaho 337, 343, 164 P. 519 (1917); and in the absence of showing an abuse of such discretion it will not be disturbed on appeal.

The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in felony cases, has been abrogated in Idaho. I.C. § 19-1430. See State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953); State v. So, 71 Idaho 324, 231 P.2d 734 (1951). The evidence from the transcript indicates that both participants were acting in concert during the entire course of the robbery. Therefore, under the circumstances the exclusion of the pistol as to appellant Leeper would make little difference as to the charge of robbery brought jointly against appellants especially when appellants acted in concert.

Appellants claim that the trial court should have granted their motion for a new preliminary hearing. They base their contention on the proposition that a conflict of interest arose between the appellants and their attorney, because one of the original defendants had pleaded guilty, or intended to plead guilty, and the other two did not so plead although the same attorney represented all three. Generally, there should be no conflict of interests between defendants whom counsel represent. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State ex rel. Favors v. Tucker, 143 W.Va. 130, 100 S.E.2d 411 (1957).

The appointment by the trial court of the same attorney to represent two defendants indicted for the same crime is not in itself improper unless the facts show that the interests of the two defendants are in conflict. The fact that one of several defendants for whom a single counsel was...