State v. Peck

• Citation: 14 Idaho 712,95 P. 515
• Parties: STATE, Respondent, v. ROY CLARK PECK, Appellant
• Decision Date: 05 May 1908
• Court: United States State Supreme Court of Idaho

95 P. 515

14 Idaho 712

STATE, Respondent, v. ROY CLARK PECK, Appellant

Supreme Court of Idaho

May 5, 1908

EVIDENCE-BILL OF EXCEPTIONS-INSTRUCTIONS-REVIEW-ADMISSION TO BAIL.

1. In order to present to this court for review the evidence in a criminal case, or the rulings and decisions of the court in admitting or rejecting evidence, it is necessary to incorporate in a bill of exceptions so much of the evidence as is necessary to present the questions of law upon which the exception is based.

2. This court will not review comments of the prosecuting attorney upon the evidence, or, as to what has been proven and what not proven, in the absence of the evidence.

3. To authorize this court to review the instructions given by the court upon its own motion, such instructions must be presented to this court by proper bill of exceptions, either incorporating the instructions given, or the exception with a proper identification of such instructions, showing that the exception was taken at the time the instructions were given.

4. This court will not review an instruction advising the jury as to acquittal in the absence of the evidence.

5. An instruction directing a jury to acquit is erroneous, as the court is only authorized to advise the jury.

6. Where the court has fully and fairly instructed the jury upon a question of law, it is not error to refuse an instruction submitted by the defendant covering the same proposition of law.

7. An instruction which invades the province of the jury and directs them with reference to questions of fact, is erroneous, and the court commits no error in refusing to give the same.

8. The refusal of the trial court to admit a defendant to bail cannot be reviewed upon an appeal from the judgment.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Judgment of conviction of grand larceny. Affirmed.

Affirmed.

Clay McNamee, for Appellant.

The court erred in refusing to give defendant's requested instruction No. 3, or the substance thereof, to the effect that the presumption arising from possession alone is completely removed by the good character alone of the defendant. (People v. Hurly, 60 Cal. 74, 44 Am. Rep 55.) The court erred in refusing to advise the jury to acquit the defendant on the ground of the insufficiency of the evidence. (People v. Hurly, 60 Cal. 77, 44 Am. Rep 55; People v. Noregea, 48 Cal. 123; People v Chambers, 18 Cal. 383; People v. Ah Ki, 20 Cal. 180.)

J. J. Guheen, Attorney General, and B. S. Crow, for Respondent.

There is no statutory provision for bringing the evidence before this court unless it be included in a bill of exceptions. (People v. Waters, 1 Idaho 560; People v. O'Conner, 1 Idaho 759; People v. Woods, 2 Idaho 364, 16 P. 551; People v. Williams, 2 Idaho 366, 16 P. 552; State v. Hendel, 4 Idaho 88, 35 P. 836; People v. Brown, 48 Cal. 253; People v. Dye, 62 Cal. 523.)

The fourth assignment of error is predicated upon a certain instruction given by the trial court upon its own motion; but the record discloses that no exception was taken to such instruction, and it cannot, consequently, now be considered. (State v. O'Donald, 4 Idaho 343, 39 P. 556; State v. Hurst, 4 Idaho 345, 39 P. 554; People v. Biles, 2 Idaho 114, 6 P. 120; State v. Suttles, 13 Idaho 88, 88 P. 238; State v. O'Brien, 13 Idaho 112, 88 P. 425.) At the trial, the defense moved the court to "instruct the jury for a verdict of not guilty," which the court had no right to do. The court can only advise the jury to acquit. (Territory v. Neilson, 2 Idaho 614, 23 P. 537; State v. Wright, 12 Idaho 212, 85 P. 493, sec. 7877, Rev. Stat.) To have given instruction No. 3, requested by defendant, would have been to invade the province of the jury by instructing upon the weight of the evidence. The court cannot instruct that one fact offsets another. (People v. Cline, 74 Cal. 575, 16 P. 391; Reed v. State, 54 Ark. 621, 16 S.W. 819; Tomerlin v. State (Tex. Cr. App.), 26 S.W. 624.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The defendant was convicted of the crime of grand larceny. He moved for a new trial, which was denied, and this appeal is from the order denying the motion for a new trial and from the judgment. The appellant assigns ten errors, the first of which relates to the admission of certain portions of the evidence of a witness introduced by the state. The second relates to the acts of the court in sustaining objections to certain questions asked a witness upon cross-examination by counsel for the defendant. The third relates to remarks made by the prosecuting attorney during his argument. The fourth relates to an instruction given by the court on his own motion. The fifth, sixth, seventh and eighth relate to the refusal to give certain instructions asked for by the defendant. The ninth relates to the entering of judgment on the verdict. The tenth relates to the refusal of the court to admit the defendant to bail after sentence.

The attorney general contends that this court cannot consider any matters relating to the evidence, for the reason that the transcript does not show that the evidence, to which objection was made, was incorporated in a bill of exceptions, and for that reason it does not appear what testimony was offered and what rejected, or that the trial judge ever saw, approved, settled or allowed a bill of exceptions containing the evidence set forth in the transcript as the evidence in said case. This objection is well taken.

The transcript in this case first shows the appearances, the filing of the information, the allowance of time in which to prepare a statement on motion for a new trial, and then follows what purports to be evidence given upon said trial; but it does not appear at any place that the evidence was given, or that it was settled or allowed by a bill of exceptions, or identified by the trial judge as evidence given in said cause.

After the evidence is set out, then comes what counsel designates as a bill of exceptions, entitled as follows: "Bill of Exceptions. Comes now the defendant, Roy Clark Peck, by and through his counsel, Edgar G. Riste and Clay MacNamee, and present and set forth the following bill of exceptions on his motion for a new trial herein, which are as follows"; then follows certain statements purported to have been made by the prosecuting attorney, and purported objections and exceptions thereto by counsel for defendant; then the instructions given by the court on his own motion, followed by instructions 1, 2, 3 and 4, requested by counsel for defendant and refused by the court. The verdict, judgment, notice of motion for bail pending appeal and certain affidavits in support of the same, assignments of error, and a certificate of the trial judge as follows: "Entire and foregoing bill of exceptions on motion for a new trial is hereby settled and allowed as a true bill of exceptions of the case herein." So it does not appear that the purported evidence contained in the transcript was incorporated in or made a part of the record by bill of exceptions.

Rev. Stat., sec. 7940, among other things, provides:

"That on the trial of an indictment (which includes a trial upon information), exceptions may be taken by the defendant to a decision of the court. 2. In admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue."

Sec. 7941 provides: "When a party desires to have the exceptions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days, to the district attorney, to the judge for settlement, within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court."

Sec. 7942 provides: "Exceptions may be taken by either party to the decision of a court or judge upon a matter of law in granting or refusing a motion for a new trial."

Sec. 7944 provides: "When a party desires to have the exceptions mentioned in the last two sections (one of which is sec. 7942) settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the adverse party, to the judge for settlement, within ten days after the order or ruling complained of is made, unless further time is granted by the judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court."

Sec. 7945 provides: "A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken, and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein."

Sec 7946 provides: "When written charges have been presented, given or refused, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges, with indorsements showing the action of the court, form part of...