State v. Preston

• Decision Date: 17 December 1894
• Parties: STATE v. PRESTON
• Court: Idaho Supreme Court

38 P. 694

4 Idaho 215

STATE v. PRESTON

Supreme Court of Idaho

December 17, 1894

VAGRANCY-INFORMATION-SUFFICIENCY OF ALLEGATION.-Under subdivision 31, section 2230 of the Revised Statutes, and subdivision 25, section 69, Second Session Laws of 1893, page 116, an information for vagrancy which alleges, "that the defendant, Frank A. Preston, on the sixth day of May, 1894, and for three weeks prior thereto, at Pocatello in the county of Bannock and state of Idaho, unlawfully roamed and unlawfully has roamed about from place to place without any lawful business, willfully, and unlawfully was, has been and continues to be, and still is an idle and dissolute person, who wanders and roams about the streets of said city at late and unusual hours of the night has continued to be and still is an idle and dissolute person who lives and has lived in and about houses of ill-fame there situated," is sufficient.

ORDINANCES-MUNICIPAL CORPORATIONS.-Municipal corporations may pass ordinances for the punishment of and may punish for the same acts as are punishable under the Penal Code, when authorized so to do by the law under which such towns and villages are organized.

VERDICT-SUFFICIENCY OF.-Held, that the following verdict was sufficient to sustain the judgment, to wit: "We, the jury, in the above-entitled cause, find the defendant guilty of being a vagrant at the time charged in the complaint."

VERDICT-FORM OF.-The form of said verdict did not prejudice or tend to prejudice the defendant in any substantial right; hence should not be held invalid because of any surplusage it contains.

OBJECTIONS.-An objection that does not point out or allege the ground of such objection will not be considered.

INSTRUCTIONS.-When only a part of the charge to the jury is contained in the record, an exception to that part on the ground that it fails to instruct on the question of "reasonable doubt" will not be considered, unless the record shows that the part of the charge omitted from the record failed to instruct upon that question.

ORAL INSTRUCTIONS-WITHOUT CONSENT ERROR WILL NOT BE PRESUMED.-When an oral instruction is given to the jury and the defendant desires to except thereto on the ground that he has not consented that oral instructions may be given, it must be made to appear affirmatively from the record that consent was not given; otherwise the exception will not be considered. Error will not be presumed but must affirmatively appear from the record.

INSTRUCTION MUST BE IN WRITING UNLESS BY MUTUAL CONSENT-STENOGRAPHER'S NOTES.-Subdivision 6, section 7855, Revised Statutes of 1887, requires the judge to reduce all instructions to writing before giving them to the jury unless by the mutual consent of parties they are given orally. The end sought by this provision is the preservation of the instructions verbatim as they came from the lips of the judge, so that there will be no dispute as to their form or substance in the subsequent proceedings in the case. Held that the stenographic reporter's act (15 Idaho Session Laws, 29), by requiring the reporter to correctly report all proceedings of the court, requires him to take in writing all oral instructions given, and thus secures the end sought by the provisions of said subdivision 6.

PRESUMPTION THAT REPORTER TOOK ALL ORAL INSTRUCTIONS.-Unless the record affirmatively shows that the court reporter failed to take down all oral instructions, the presumption is that he did do so.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Affirmed.

Hawley & Puckett and D. C. Lockwood, for Appellant.

The charge is violation of a city ordinance. Subdivision 31 of section 2230 of Revised Statutes gives authority to punish by municipal ordinance all vagrants or other persons found in a town or village without visible means of support or some legitimate business. This is not charged in the complaint. If the complaint charges anything at all, it charges a crime under section 7208 of the Revised Statutes. (Ex parte Kearney, 55 Cal. 225; Idaho Const., art. 12, sec. 2; People v. Buchanan, 1 Idaho 681.) The defendant did not consent to an oral charge, and the court had no right to give an oral charge without such consent. (Rev. Stats., sec. 7855, subd. 6.)

George M. Parsons, Attorney General, for State.

Appeals from the police court of Pocatello to the district court are governed by the same rules as appeals from justice of the peace courts to the district court, and the case was tried anew. (2d Sess. Laws, sec. 36, p. 103; Rev. Stats., sec. 8325.) The complaint was sufficient. The statute expressly confers the power upon cities to pass ordinances relative to vagrants, in addition to the general power to pass ordinances for the welfare and police protection of the city. (Rev. Stats., sec. 2230, subd. 31; 2d Sess. Laws, sec. 69, subd. 25, p. 116.) The ordinance is constitutional, being in harmony with the general laws of the state. (Cooley's Constitutional Limitations, 6th ed., 239.) Municipal corporations may punish for the same acts as are punishable under the Penal Code of the state, when authorized so to do by charter or general law under which corporation is organized. (McPherson v. Village, 114 Ill. 46, 55 Am. Rep. 857, 28 N.E. 454; St. Johnsbury v. Thompson, 59 Vt. 300, 303, 308, 59 Am. Rep. 731, 9 A. 571; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; State v. Williams, 11 S.C. 288; Greenwood v. State, 6 Baxt. 567, 32 Am. Rep. 539; Hamilton v. State, 3 Tex. App. 643; State v. Bergman, 6 Or. 341-343; State v. Mayor, 33 N. J. L. 57-63; Dillon on Municipal Corporations, secs. 367, 368, notes.) "The verdict, although not very artistically worded, is sufficient in substance." (People v. Gilbert, 57 Cal. 96-99; People v. Purdue, 49 Cal. 425-427; People v. McCarty, 48 Cal. 557-559.) It is very generally held that the verdict is good if the intention of the jury can be determined. (Kellum v. State, 64 Miss. 226, 1 So. 174; State v. Wilson, 40 La. Ann. 751, 5 So. 52; Cheek v. Commonwealth, 87 Ky. 42, 7 S.W. 403; Crook v. State, 27 Tex. App. 198, 11 S.W. 444; Bidwell v. State (Tex.), 20 S.W. 556; Stepp v. State, 31 Tex. Cr. Rep. 349, 20 S.W. 753; Pace v. State (Tex.), 20 S.W. 762; Jenkins v. State, 92 Ga. 470, 17 S.E. 693.) The judgment will not be reversed because of any irregularity or informality not prejudicial to a substantial right of the defendant. (State v. Jorgenson, 3 Idaho 620, 32 P. 1129; State v. Reed, 3 Idaho 754, 35 P. 706; State v. Clark, ante, p. 7, 35 P. 710; Rev. Stats., sec. 8236.) The instructions in a criminal case are certainly a part, and a very important part, of the proceedings, and it is the duty of the stenographic reporter to take down the charge as given. (15th Sess. Laws, p. 25; People v. Hersey, 53 Cal. 574; People v. Wheatley, 88 Cal. 114, 26 P. 95; People v. McGregar, 88 Cal. 140, 26 P. 97.) It has been definitely settled that instructions given by the court of its own motion must be excepted to when given, in order to make an exception available on appeal. (People v. Biles, 2 Idaho 114, 6 P. 120; Cook v. Territory, 3 Wyo. 110, 4 P. 887; Ryall v. Central P. R. R. Co., 76 Cal. 474, 18 P. 430; Goldman v. Bashore, 80 Cal. 146-149, 22 P. 82; State v. Schieler, ante, p. 120, 37 P. 272; People v. Hart, 10 Utah 204, 37 P. 330.) "Where the entire charge, considered together, fairly and correctly presents the law bearing upon the issues tried, the appellate court will not disturb the judgment." (Territory v. Evans, 2 Idaho 425, 17 P. 139; State v. Schieler, ante, p. 120, 37 P. 272; People v. Chun Heong, 86 Cal. 329, 24 P. 1021; People v. Etting, 99 Cal. 577, 34 P. 237.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

The defendant was arrested on a complaint filed by the city marshal of Pocatello in the office of the police magistrate of that city, charging him with violating a city ordinance defining vagrancy, and prescribing punishment therefor. The defendant interposed a demurrer to the complaint, which was overruled, and upon trial the defendant was convicted. An appeal was taken to the district court, where the defendant was tried anew, and convicted, and sentenced to pay a fine of ninety-nine dollars. Motion in arrest of judgment was made and overruled. Thereupon the defendant took this appeal.

The first error assigned is, "That the demurrer to the complaint should have been sustained." The record fails to show that the demurrer was insisted on in the district court, or that it was passed upon by that court. The record shows that a demurrer was interposed in the police court, and overruled. The ground of said demurrer was that the complaint did not state facts sufficient to constitute a public offense. Subdivision 31, section 2230 of the Revised Statutes, and subdivision 25, section 69, page 116 of the Laws of Second Session, authorize towns and villages to pass by-laws and ordinances for the punishment of vagrants and persons found in the town without visible means of support or some legitimate business. The complaint charges that the defendant is an idle and dissolute person, without any lawful business, and that he roams about the streets of said city at late and unusual hours of the night, and lives in and about houses of ill-fame. Section 7208 of the Revised Statutes, defines what persons are vagrants, and, among others, it declares a person who roams about from place to place, without any lawful business, or an idle or dissolute person, who wanders about the streets at late or unusual hours of the night, or a lewd and dissolute person, who lives in and about houses of ill-fame, to be a vagrant. The complaint sufficiently charges the crime of vagrancy, and there was no error in overruling the demurrer. (Ex parte...