State v. Owen

• Decision Date: 27 January 1953
• Docket Number: No. 7853,7853
• Citation: 253 P.2d 203,73 Idaho 394
• Parties: STATE v. OWEN et al.
• Court: Idaho Supreme Court

Page 203

253 P.2d 203

73 Idaho 394

STATE v. OWEN et al.

No. 7853.

Supreme Court of Idaho.

Jan. 27, 1953.

David Doane and Robert H. Copple, Boise, for Owen.

Vernon K. Smith, Boise, for Hastings.

Robert E. Smylie, Atty. Gen., and John R. Smead, Asst. Atty. Gen., Merlin S. Young, Pros. Atty., and Blaine F. Evans, Asst. Pros. Atty., Boise, for respondent.

TAYLOR, Justice.

On September 7, 1951, the defendants (appellants) William Lawrence Owen, 40, and Kenneth Raymond Hastings, 29, each armed with a gun, and with the avowed intent to commit robbery, entered the Hollywood Grocery, located at the corner of Resseguie and 8th Streets, in Boise, Ada County, Idaho. The grocery store was owned and operated by the deceased Bert McCurry and his wife. Upon entering, Hastings went down one aisle to a small card table, where Mrs. McCurry was preparing the bank deposit, and asked her for cigarettes. When she went behind the counter he followed around to the other side of the counter and there held her at gun point. Owen had proceeded directly to the rear of the store where Mr. McCurry had just emerged from the locker room behind a meat counter. Owen exhibited his gun and informed him that it was a stickup. Mr. McCurry seized a meat cleaver from the meat block and started around the counter to where Owen stood. Owen said he fired a shot over McCurry's head to scare him, but Mr. McCurry continued to advance and he (Owen) started to back up the aisle toward the door; that Mr. McCurry continued to follow him, with the meat cleaver raised; at a point about half way down the length of the store, he fired another shot past Mr. McCurry and yelled to his companion, 'Let's get out of here,' and to Mr. McCurry to stop and 'let me get out of here;' that Mr. McCurry continued to pursue him; that when he reached the door, which was standing open except for a screen, he bumped into the side of the door with his left shoulder; that Mr. McCurry still advancing was then about seven feet from him; that he then fired a third shot at the arm holding the cleaver aloft; that Mr. McCurry then started to fall and he ran out.

There is a conflict in the evidence as to whether Hastings left the store first or whether the two defendants emerged at approximately the same time. They ran to a car waiting at the curb to the north of the store and were driven away by a woman companion whom they had left at the wheel. A short time later they were arrested in Nampa by Nampa police acting upon radio messages transmitted by the Boise police.

The third shot fired by Owen entered the body of the deceased near the center line of the upper chest cavity, rupturing an artery, went through the fifth dorsal vertebra and shattered the spinal cord. Mr. McCurry died as a result of the wound on September 9th.

The defendants were charged with the crime of murder in the first degree, tried by jury, found guilty, and the jury in its verdict decided that the punishment should be death.

The first six assignments question the court's ruling in allowing the state's challenges to six veniremen on the ground of implied bias, specifically, that they entertained conscientious opinions or scruples against the imposition of capital punishment. In substance these veniremen answered on voir dire that while they could and would determine the question of guilt or innocence, without bias, they could not vote for the death penalty.

'Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. * * *' § 18-4004, I.C.

Among the grounds of challenge for implied bias provided by § 19-2020 I.C. is the following:

'If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.' § 19-2020, paragraph 9, I.C.

Appellants urge that since § 18-4004 is not mandatory, it providing only that the jury may decide the punishment, and that under § 19-2020 the ground of challenge is the 'entertaining of such conscientious opinions as would preclude his finding the defendant guilty' (emphasis supplied), and these veniremen having answered that they could freely pass upon guilt or innocence, they were not disqualified.

This same construction of these sections was urged in State v. Wilson, 41 Idaho 616, 243 P. 359. The court there called attention to the fact that at the time § 19-2020, I.C. was enacted (1864) the sole penalty provided for murder in the first degree was death. (Cr.Pun.1864). It was plain that a venireman who could not vote for the death penalty could not find the defendant guilty, and therefore 'must neither be permitted nor compelled to serve'. Although the section setting forth the grounds of challenge was not amended in 1911 when the punishment for first degree murder was modified by adding the alternative of life imprisonment, since the jury was specifically authorized to decide which punishment should be inflicted, the intent of the law remained the same: That is, a prospective juror entertaining such scruples and who under the amended statute may be required to vote upon the death penalty 'must neither be permitted nor compelled to serve as a juror.' As stated in State v. Wilson, supra [41 Idaho 616, 243 P. 361], 'the conclusion is inevitable that a prospective juror who has conscientious scruples against the death penalty is not qualified to sit as a juror where the charge is murder in the first degree.' No error was committed in allowing the challenges. State v. Hoagland, 39 Idaho 405, 228 P. 314; Corens v. State, 185 Md. 561, 45 A.2d 340; 31 Am.Jur., Jury, § 159; 50 C.J.S., Juries, § 245(b).

By assignments 7 and 8, appellants present the ruling of the trial court in sustaining the state's objection to their respective offers of proof 'to show facts and circumstances of defendants' age, upbringing and environment for the purpose of mitigating punishment.'

Assignment No. 9 presents the refusal of the court to give appellant Hastings' requested instruction No. 17a. This request would advise the jury, in determining the penalty, to consider all facts in aggravation and also facts in mitigation, and that the jury is at liberty to consider the age, early environment and background of the accused.

Assignment No. 10 complains of the court's instruction No. 31 and particularly that part thereof reading as follows:

'In determining what punishment should be inflicted you should consider and arrive at such decision from a consideration of all the evidence in this case and uninfluenced by any bias, prejudice, or purpose other than to effect substantial justice.'

It is contended that this instruction should have been more specific and should have included, in reference to all the evidence, 'both with respect to matters of aggravation and matters of mitigation,' and that the court erred in not defining 'substantial justice.' 'Substantial justice' is here used in its popularly accepted sense. No technical definition is required. We see no merit in this assignment.

As to the assignments involving the right of the accused to produce evidence of their age, upbringing and environment, we first observe that this does not necessarily involve the right of an accused to produce evidence of his good character. Evidence of good or bad character is admitted for whatever weight it may have on the likelihood or unlikelihood of the defendant having committed the crime charged. It goes to the question of guilt or innocence and is especially appropriate and applicable in a case where the commission of the offense must be determined on the basis of circumstantial evidence.

However, the law does recognize that previous good or bad conduct should be considered in fixing the punishment for crime. Such is the underlying principle of the persistent violator statute. § 19-2514, I.C. The courts have long recognized that the first offender should be accorded more lenient treatment than the habitual criminal. In addition to considerations of humanity, justice and mercy, the object is to encourage and foster the rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64, 225 P.2d 1020.

Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, as follows:

'After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.' § 19-2515, I.C.

And § 19-2516, I.C., requires that the hearing be had in open court. It may be open to debate as to whether the 'circumstances' mentioned in § 19-2515, I.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation particularly in a capital case. James v. State, 53 Ariz. 42, 84 P.2d 1081.

It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such...