State v. Pettit

Decision Date11 December 1920
PartiesSTATE, Respondent, v. MELVIN PETTIT, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW-SICKNESS OF JUROR-NUMBER OF PEREMPTORY CHALLENGES-VOIR DIRE EXAMINATION-ADMISSIBILITY OF EVIDENCE-INSTRUCTIONS-ARGUMENTS OF COUNSEL.

1. Where in a criminal case after a jury had been passed for cause the court, under the provisions of C. S., sec. 8968 excused one of the jurors on account of sickness, the defendant did not thereby become entitled to another peremptory challenge in addition to the number prescribed by law.

2. The scope of a voir dire examination of jurors by counsel in a criminal case is a matter which rests in the sound discretion of the trial court. Certain questions propounded to jurors considered, and found to be not beyond what is pertinent and proper in such an examination.

3. Particular acts of unchastity on the part of the prosecutrix in a rape case are not admissible to impeach her evidence but might be admissible for the purpose of rebutting the inference of guilt to be drawn from expert medical testimony tending to show that an act of sexual intercourse had been committed.

4. A stipulation in a criminal case that an absent witness, if present, would testify to certain facts is not an admission of the truth thereof, but such evidence is as much subject to rebuttal as any other evidence in the case.

5. In this case the court properly instructed the jury that it is not necessary for the prosecutrix to be corroborated as to the particular acts constituting the offense, but unnecessarily injected into the instruction the words "and the corroborating circumstances and facts testified to by other witnesses" without adding thereto the further condition, "if you find from the evidence that there are corroborating facts and circumstances," but since the court amply protected the appellant in other instructions, the error was without prejudice to any of his substantial rights.

6. It is proper for the jury to consider the arguments of counsel in analyzing the evidence and applying the instructions of the court to it, in so far as such arguments may assist the jury in arriving at the truth. Beyond this their consideration of the case must be confined to the evidence admitted by the court and to the court's instructions.

7. A requested instruction requiring the court to single out any particular fact in evidence and suggest to the jury the effect which may be given to it is properly refused.

8. Certain instructions considered and found that no error was committed by the trial court in giving them.

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

Prosecution for the crime of rape. Judgment of conviction. Affirmed.

Affirmed.

Jas. R. Bothwell and W. P. Guthrie, for Appellant.

Anything which renders the statutory right of peremptory challenge materially less valuable is an injury to a party within the meaning of the statute. (Searle v. Roman Catholic Bishop, 203 Mass. 493, 17 Ann. Cas. 340, 89 N.E. 809, 25 L. R. A., N. S., 992, citing the following cases: Hildreth v. Troy, 101 N.Y. 234, 54 Am. Rep. 686, 4 N.E. 559; Welch v. Tribune Pub. Co., 83 Mich. 661, 21 Am. St. 629, 47 N.W. 562, 11 L. R. A. 233; Scranton City v. Gore, 124 Pa. 595, 17 A. 144; Montague v. Com., 10 Gratt. (Va.) 767; Cunneen v. State, 96 Ga. 406, 23 S.E. 412; Bell v. State, 115 Ala. 25, 22 So. 526; Danzey v. State, 126 Ala. 15, 28 So. 697.)

"Under Penal Code, sec. 1123, providing that if a juror becomes ill and is discharged a new juror may be sworn and the trial begin anew, where a juror is discharged because of illness during the impaneling of the jury, defendant having employed some of his peremptory challenges, is entitled to all the peremptory challenges that he had in the first instance." (People v. Zigler, 135 Cal. 462, 67 P. 754, 56 L. R. A. 882; People v. Stewart, 64 Cal. 60, 28 P. 112; People v. Wong Ark, 96 Cal. 125, 30 P. 1115; Turner v. Territory, 15 Okla. 557, 82 P. 650; 24 Cyc. 361; State v. Hataway, 144 La. 138, 80 So. 227; People v. Brady, 72 Cal. 490, 14 P. 202.)

Under the particular claim of the prosecutrix in this case, testimony as to other acts or opportunity for other acts was material. (22 R. C. L. 209.)

Instruction No. 3 fails to define penetration. This is required. (33 Cyc. 1504.)

Instructions Nos. 11, 12, 13 afford undue prominence to the statement that the prosecutrix need not be corroborated. This is contrary to law. (State v. Jones, 28 Idaho 428, 154 P. 378.)

The jury was not required to fix the sentence in this case. Therefore, no instruction was required in reference thereto. (State v. Altwatter, 29 Idaho 107, 157 P. 256; State v. Jones, 28 Idaho 428, 154 P. 378.)

Roy L. Black, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

Where a juror, on account of sickness, is excused by the court on its own motion before the conclusion of the trial, a defendant is not entitled to have one or more additional peremptory challenges granted him or one or more peremptory challenges restored. (State v. Hazledahl, 2 N.D. 521, 52 N.W. 315, 16 L. R. A. 150; State v. De Weese, 51 Utah 515, 172 P. 290; State v. Carmouche, 141 La. 325, 75 So. 68; C. S., sec. 8926.)

Each party to an action has the right to put pertinent questions, to show, not only that there exist proper grounds for a challenge for cause, but to elicit facts which will enable him to decide whether or not he will exercise his right of peremptory challenge. (People v. Goehringer, 196 Ill.App. 472.)

Particular acts of unchasity are not permissible to impeach the evidence of the prosecutrix. (State v. Henderson, 19 Idaho 524, 114 P. 30; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Lancaster, 10 Idaho 410, 78 P. 1081; State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L. R. A., N. S., 269.)

An instruction which fails to define "penetration" is not erroneous. (State v. Brinkley, 55 Ore. 134, 104 P. 893, 105 P. 708; State v. Oden, 69 Ore. 385, 138 P. 1083.)

It is not necessary that prosecutrix be corroborated by testimony of other witnesses as to the particular act constituting the offense. (Brickwood, Sackett's Instructions, p. 1793; Dunn v. State, 58 Neb. 807, 79 N.W. 719.)

It is not error to instruct the jury to disregard the possible punishment which may be inflicted. (State v. Howard, 118 Mo. 144, 24 S.W. 41; State v. Avery, 113 Mo. 501, 21 S.W. 193; 16 C. J. 1026, sec. 2457.)

A jury may properly be instructed concerning remarks of counsel. (Brickwood, Sackett's Instructions, sec. 332.)

The court may not single out any particular fact in evidence and suggest to the jury the effect which may be given to it. (State v. Jones, 28 Idaho 428, 154 P. 378.) Instructions on credibility must apply to witnesses generally. (State v. Rogers, 30 Idaho 259, 163 P. 912; 16 C. J., sec. 2479.)

In the consideration of the court's instructions, the same must be considered as a whole. (16 C. J., sec. 2493; State v. Curtis, 29 Idaho 724, 161 P. 578.)

BUDGE, J. Rice, J., MORGAN, C. J., concurring.

OPINION

BUDGE, J.

Appellant was convicted of the crime commonly designated as statutory rape. This appeal is from the judgment.

The first contention of the appellant is that while he was entitled to ten peremptory challenges, in effect he was allowed only nine. After the jury had been passed for cause and the state had exercised three peremptory challenges and waived one and appellant had exercised four peremptory challenges, the court excused one of the jurors on account of sickness. Appellant objected to such juror being excused unless the court should grant him an additional peremptory challenge, urging that he had not expected to exercise a peremptory challenge with respect to this particular juror. It is insisted by appellant that this proceeding in effect deprived him of one peremptory challenge, and reliance is placed upon the California decisions, People v. Stewart, 64 Cal. 60, 28 P. 112, and People v. Brady, 72 Cal. 490, 14 P. 202. The statutory provision construed by those cases is identical with our C. S., sec. 8968, which provides that:

"If before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards impaneled."

In People v. Stewart, the court said:

"What is implied by the clause, 'and the trial begin anew'? The title of the chapter which provides for challenging the jury is, 'Of proceedings after the commencement of the trial and before judgment.' We think, within the meaning of the code, a trial commences when the case is called for trial unless the trial be then postponed. That everything that transpires in the case after that, and before judgment, is a part of the trial.

"That being so, it follows that the defendant was entitled, after the change had been effected, to all the challenges which the law gave him in the first instance. Within that limit he not only had a right to challenge the new juror, but likewise any or all of the original eleven."

But as pointed out by the supreme court of North Dakota in State v. Hazledahl, 2 N.D. 521, 52 N.W. 315, 16 L. R. A. 150, the effect of the decision in the Stewart case is to place it in the power of the accused to discharge the entire jury or not at his election, while the law places the election with the court. As having a particular bearing upon the situation of the case at bar, we quote the following from the latter case:

"In securing the twelfth juror he may, as he always may, use any peremptory challenges that he has...

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