State v. Orr

• Decision Date: 24 July 1933
• Docket Number: 5989
• Citation: 53 Idaho 452,24 P.2d 679
• Parties: STATE, Respondent, v. HARRY ORR, Appellant
• Court: Idaho Supreme Court

24 P.2d 679

53 Idaho 452

STATE, Respondent, v. HARRY ORR, Appellant

No. 5989

Supreme Court of Idaho

July 24, 1933

CRIMINAL LAW - ROBBERY - EVIDENCE-REBUTTAL TESTIMONY-TESTIMONY OF ACCOMPLICE - CORROBORATION - AFFIRMATIVE DEFENSE-ALIBI-INSTRUCTIONS.

1. Where defendant in robbery prosecution introduced evidence that keys and metallic zipper from money bag taken from victim were found in ash pile of alleged accomplice, rebuttal testimony that witness had sifted ashes in stove of such alleged accomplice on evening following robbery was admissible.

2. Large amount of discretion is vested in trial judge with reference to admission of rebuttal testimony.

3. Appellate court will not disturb ruling of lower court on admission of rebuttal testimony unless discretion was abused.

4. Evidence in robbery prosecution corroborating testimony of alleged accomplice held sufficient to sustain conviction (I C. A., sec. 19-2017).

5. Instruction in robbery prosecution on alibi as constituting affirmative defense held not erroneous.

6. Defendant was without right to complain of instructions given at his own request.

7. Instruction in robbery prosecution relating to rejection of testimony of interested party held not erroneous as singling out testimony of defendant (I. C. A., secs. 16-201, 19-103 to 19-105).

8. "Contradiction," as used in instruction to effect that jurors were not bound by uncontradicted testimony of interested party did not necessarily mean direct testimonial contradiction, but might be contradiction of circumstances.

9. Any error in instruction was without prejudice where jury without violation of oath could not have failed to find defendant guilty.

10. Error, in order to justify reversal, must have resulted in miscarriage of justice.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Appeal from a judgment of conviction for the crime of robbery. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Latham D. Moore and A. L. Morgan, for Appellant.

A conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which, in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. (I. C. A., sec. 19-2017; State v. Knudtson, 11 Idaho 524, 528, 83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Gillum, 39 Idaho 464, 228 P. 334.)

Alibi may fail as substantive defense and yet serve to raise reasonable doubt as to guilt of accused, and accused is not required to fully establish alibi to have, at least, benefit thereof, in rebuttal of proofs of prosecution. (People v Marvill, 236 Mich. 595, 211 N.W. 23; State v. Ward, 31 Idaho 419, 173 P. 497.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

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. (People v. Page, 1 Idaho 189 (194 and 195); State v. Mushrow, 32 Idaho 562, 185 P. 1075.)

Rules governing rebuttal evidence are not rigid, but within discretion of the court. (State v. Mushrow, 32 Idaho 562, 185 P. 1075.)

A large discretion is vested in the trial court with reference to admission of rebuttal testimony, and unless grossly abused, its exercise will not be interfered with upon appeal. (State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Waln, 14 Idaho 1, 80 P. 221.)

The only corroboration required is that there be corroborating evidence upon some material fact or circumstance, which in itself and without the aid of the testimony of the accomplice tends to connect the accused with the commission of the offense. (Agreed in Specification No. II of appellant's brief.) (State v. Smith, 30 Idaho 337, 164 P. 519; State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Grant, 26 Idaho 189, 140 P. 959.)

WERNETTE, J. Budge, C. J., Givens, J., and Reed, District Judge, concur. HOLDEN, J., Dissenting.

OPINION

WERNETTE, J.

Appellant, Harry Orr, was convicted of the crime of robbery, and has perfected this appeal from the judgment of conviction.

The facts are as follows: One Thompson D. Matthews was conducting a confectionery store known as the Oriole Nest, adjacent to the campus of the University of Idaho, in the city of Moscow. It was his general custom to check his cash about midnight, then leave for his home with the receipts of the day's business about 12 or 12:30 in the morning. On this occasion, on the morning of October 25, 1932, about 12:20 o'clock A. M., he left his place of business, in company with his clerk, for his residence, carrying with him approximately $ 150 in cash. Both were riding in the front seat of Matthews' car. On the way home Matthews stopped at the home of the clerk, let him out of the car, then continued on to his own residence. Before starting for home Matthews' car was parked close by the confectionery store. Some person concealed himself in the rear seat of Matthews' Dodge sedan, which he was driving, and while Matthews was on his way home, and after the clerk had left the auto at his home, the person who had concealed himself in the rear of the car, at a place near Matthews' home, struck Matthews over the head with a blunt instrument of some sort. The blow stunned him, but did not cause him to become unconscious. Matthews engaged in a struggle with the party who hit him, during which time he was again struck over the head rendering him unconscious. At the time of the encounter he was traveling approximately 45 miles per hour, and when he lost consciousness the car left the highway and collided with a tree on the parking along the road, badly wrecking the car. The party who made the assault was thrown with great force against the back of the front seat so that one side of the same was considerably bent forward from the force of the impact. The person making the assault, after the car was wrecked, succeeded in robbing Matthews of his money, amounting to approximately $ 150. Blood stains were thereafter found on the left rear door and the back of the front seat, and were identified by a professor of bacteriology from the University of Idaho. The pieces of cloth bearing the blood stains were removed from the upholstery of the car and introduced in evidence, indicating that the assailant was injured in the struggle and collision.

The collision took place very close to the home of a Mr. Blanchard, an instructor at the University, who immediately upon hearing the crash went to the car, locating the same through the moaning and groaning of Matthews. The assailant, however, had already escaped with the money. Almost immediately after Blanchard reached Matthews' wrecked car, Clifford Benjamin, a confessed accomplice of appellant, came driving down the road in the same direction Matthews' car was going at the time of the wreck. Blanchard flagged to Benjamin, who stopped his car and came to the wreck. Blanchard, in company with Benjamin, while making a casual inspection found a blackjack on the front seat of the wrecked car, close to the body of Matthews. Blanchard and Benjamin then took Matthews to the hospital. About this time a Mr. Richard Storch, in company with Miss Pearl May, came to the wrecked car and saw the blackjack on the front seat. After taking the young lady to her home Mr. Storch returned to the wreck, and in company with Mr. Blanchard again inspected the same, discovering that the blackjack had been removed.

Benjamin and Orr had been associating with each other for some time, and on the day prior to the robbery they went to Troy, Idaho, where they hijacked some beer. On one or more occasions prior to the trip to Troy the proposition of robbing Matthews was discussed between Orr and Benjamin, and during the trip to Troy final plans were made to do the robbing. The blackjack had been in the possession of Orr for some time. Pursuant to the plan, or plot, as agreed upon between Orr and Benjamin, Orr was to get into the rear of Matthews' car and at the opportune time slug Matthews with the blackjack, and take his money. Benjamin was to follow the Matthews car in the car owned by Orr, pick up Orr after the robbery was completed and then both make their escape. Things did not materialize, however, just as was anticipated, as Matthews drove his car so fast through town that Benjamin was not able to follow as closely as was intended. The result being that Blanchard came to the wreck before Benjamin arrived with the Orr car.

After Blanchard and Benjamin took Matthews to the hospital Benjamin returned to the wrecked car and took the blackjack, destroying it by burning the leather and scattering the shot. Upon the same day of the crime both Orr and Benjamin were placed under arrest. Orr was examined by a physician and others and it was found that he had a large number of abrasions, contusions, and scars all over his head, hands, body and legs, the injuries indicating that they had been received within twenty to twenty-four hours.

So as not to unduly lengthen this opinion a more detailed statement of facts will not be made here, but other specific facts of importance, where necessary, will be mentioned.

The appellant has specified a number of assignments of error, which we will dispose of in their order.

The first assignment is to the effect that the court erred in overruling defendant's objection to the testimony of the witness George K. Moody, testifying for the state, and in failing to strike the testimony on motion, as it...