State v. Polson
| Decision Date | 09 December 1968 |
| Docket Number | No. 9944,9944 |
| Citation | 92 Idaho 615,448 P.2d 229 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. James B. POLSON, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Derr, Derr & Walters, Boise, for defendant-appellant.
Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, Jack G. Voshell, Pros. Atty., Idaho Falls, for plaintiff-respondent.
James B. Polson was convicted and adjudged guilty of assault with intent to murder, a felony, 1 and of being a persistent violator. 2 He was sentenced to a term of 14 years imprisonment in the penitentiary for the crime of assault with intent to murder, and to an additional 10 years on his conviction of recidivism. The charge arose out of a shooting incident which occurred at a bar in Idaho Falls on the morning of May 2, 1966. Defendant was in the bar in company with one Joe Dunn. The complaining witness Carl Holm was in the bar in company with one Don Fedder. All were long-standing acquaintances, but apparently there was 'bad blood' between defendant and Holm. The bartender was the only other eyewitness to the gunplay. Holm and defendant both carried hand guns from which they exchanged shots at each other. During the exchange Fedder and defendant were wounded. There was competent evidence, though conflicting, to indicate that defendant drew his gun and fired before Holm retaliated. There was also evidence indicating that defendant instigated the fight, seeking to revenge a beating he had suffered a day or two earlier at the hands of Holm.
By his first assignment of error defendant urged that the court erred in entering a judgment of conviction upon the verdict of the jury finding him guilty of 'assault with intent to commit murder.' Defendant's contention is that the crime of which he was found guilty was not charged in the information. The information designates the crime charged as 'Assault With a Deadly Weapon With Intent to Murder.' The information then sets out the commission of the crime as follows:
'That the said defendant, James B. Polson, then and there being, did then and there wilfully, unlawfully, feloniously and with malice aforethought, by means of a certain deadly weapon, that is a loaded revolver, which he, the said defendant in his hands then and there held, did make an assault upon the person of one Carl Holm, a human being, by shooting said loaded pistol at the person of said Carl Holm, he being within range of the said pistol, with the intent then and there to wilfully, unlawfully, intentionally and feloniously and with malice aforethought, kill and murder the same Carl Holm, which assault was likely to and could have produced great, severe and mortal injury to the said Carl Holm.'
Assault with a deadly weapon is defined in I.C. § 18-906. 3
Our statute requires that an information contain:
I.C. § 19-1409. See I.C. §§ 19-1303, 19-1304, 19-1411.
It is proper, and in some cases necessary, to set out in the information the means by, and the manner in, which a crime is committed. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). The information in this case properly charges both the crime of assault with intent to murder and the included offense of assault with a deadly weapon. State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963); cf. I.C. § 19-2312. The fact that the information did not separately name the two offenses in no way prejudiced defendant. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957); State v. Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932); State v. Holder, 49 Idaho 514, 290 P. 387 (1930); State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916); State v. Curtis, 29 Idaho 724, at 730, 731, 161 P. 578 (1916); I.C. § 19-1419; see also I.C. § 19-1418.
Defendant contends that the trial court erred in permitting the state to call Carl Holm as a witness and, in the presence of the jury, extract from him a refusal to testify on the ground that his testimony would tend to incriminate him; also the action of the court in permitting the prosecuting attorney, in the presence of the jury, to grant immunity to the witness Holm in exchange for his waiver of his privilege against self-incrimination, and the action of the court in advising the witness Holm, in the presence of the jury, that his testimony could not possibly tend to incriminate him. The entire record, so far as these assignments are concerned, is as follows:
'Carl Holm produced as a witness by and on behalf of the State, being first duly sworn, was examined, and testified as follows: * * *
'Q (By Mr. Voshell) Will you please state your name?
'A Carl Holm.
'Q Where do you reside?
'A Downstairs in the county jail.
'Q Are you acquainted with the defendant, James Polson?
'A I refuse to answer that question.
'THE COURT: Answer the question, Mr. Holm.
'A. I refuse to answer on the ground it may tend to incriminate me.
We find no error prejudicial to defendant in the court's action in regard to the witness Holm. First, it is to be noted that Holm was not an accomplice or a co-defendant in this case. On the contrary, he was alleged to have been the victim of the assault charged to have been committed by defendant. There was no showing made either expressly or by inference that the prosecuting attorney knew that the witness could or would exercise his claimed privilege. After the grant of immunity the witness testified fully as to the transaction or occurrence in the bar. His testimony tended to support the state's case against defendant. No request was made by the defense for an instruction to the effect that the witness' refusal to answer could not be the basis for an inference favorable either to the prosecution or the defense. The circumstances under which a claim of the privilege against self-incrimination, asserted in the presence of the jury, would be prejudicial to the defendant, is considered in the annotation appearing in 86 A.L.R.2d 1443 (1962) where the following appears at pages 1444 and 1445:
'In the few jurisdictions which have recognized that prejudicial error may possibly be committed when a prosecutor calls as a prosecution witness, with the design or purpose of extracting from the witness a claim of privilege against self-incrimination, one criminally involved in the offense for which a defendant is on trial, a finding of reversible error is, in general, predicated upon the following combination of facts and circumstances: it must appear directly or inferentially (1) that the witness appears to have been so closely implicated in the defendant's alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question tending to establish the offense charged will create an inference of the witness' complicity, which will, in turn, prejudice the defendant in the eyes of the jury; (2) that the prosecutor knew in advance or had a reason to anticipate that the witness would claim his privilege, or had no reasonable basis for expecting him to waive it, and, therefore, called him in bad faith and for an improper purpose; (3) that the witness had a right to invoke his privilege; (4) that defense counsel made timely objection and took exception to the prosecutor's misconduct; and (5) that the trial court refused or failed to cure the error by an appropriate instruction or admonition to the jury.'
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State v. Wright
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...in an earlier appeal, was approved. However, a careful reading of that decision and of a prior decision in the same case--State v. Polson, 92 Idaho 615, 448 P.2d 229, cert. denied, 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 (1969)--reveals that reversal of the first adjudication of status ......
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