State v. Ramirez

• Decision Date: 25 May 1921
• Parties: STATE, Respondent, v. VICENTE RAMIREZ, Appellant
• Court: Idaho Supreme Court

199 P. 376

33 Idaho 803

STATE, Respondent, v. VICENTE RAMIREZ, Appellant

Supreme Court of Idaho

May 25, 1921

CRIMINAL LAW-TRIAL-EVIDENCE-REMARKS OF THE COURT-VERDICT.

1. In order for a witness to be permitted to use a memorandum for the purpose of refreshing his memory respecting a fact, it should be shown that the memorandum was written by the witness, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing as provided by C S., sec. 8033.

2. Where a witness is permitted to use a memorandum for the purpose of refreshing his memory, and it is not shown that it was prepared in accordance with the provisions of C. S., sec 8033, prejudicial error is not shown where the testimony of the witness, after inspecting it is substantially the same as his testimony given previous to his inspection thereof.

3. Error in permitting a witness for the state in a criminal case to use a memorandum for the purpose of refreshing his memory, which was not prepared by himself, or under his direction, is not prejudicial where the defendant subsequently testifies to substantially all the facts testified to by the witness in relation to matters contained in the memorandum.

4. A direction given by the trial court in a criminal case to an interpreter in the following words: "Well, just give what he answers now. Don't make any difference what he said before"-is not a comment upon the credibility of the witness, nor does it amount to an instruction to the jury to disregard the previous testimony of the witness, or that the jury should not test the credibility of the witness in view of any conflicting statements which he may have made in the course of his testimony.

5. The testimony of a physician and surgeon to the effect that stains upon overalls worn by one accused of murder at the time of the homicide consisted of blood and dirt is not incompetent, although there was no evidence at the trial to show that the blood was that of a human being, and although the witness was not required to state the character of the tests he made to determine what caused the stains.

6. All instructions given by the court must be construed together. It is not error to instruct the jury that circumstantial evidence is legal evidence in an instruction defining circumstantial evidence, where in the other instructions all the essential elements of the crime are pointed out, and the jury is instructed that it is necessary that the defendants be proved guilty so clearly and conclusively that there is no reasonable theory upon which they, or either or both of them can be innocent, in order to render a verdict of conviction.

7. Under C. S., sec. 8212, which provides that every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state penitentiary for life and that the jury may decide which punishment shall be inflicted, a verdict finding defendant guilty of murder in the first degree as charged in the information and fixing the penalty at execution, is not uncertain. By the use of the word "execution" in the verdict, the jury decided that the punishment to be inflicted is that of death.

8. A judgment of conviction in a criminal case cannot be permitted to stand unless the defendant has had a fair and impartial trial. But where an appellant seeks a reversal, not on the ground of specific errors committed at the trial or because he has been deprived of some constitutional or statutory right, it is incumbent upon him to cause it to appear that the verdict of conviction resulted from a consideration by the jury of incompetent evidence, or evidence which does not tend to prove him guilty of the crime alleged, or that the trial was so improperly conducted that it can be determined from the record as a whole that the defendant was prejudiced in his substantial rights.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Appellant was convicted of murder in the first degree. Affirmed.

Judgment affirmed. Petition for rehearing denied.

J. B. Eldridge and Ira E. Barber, for Appellant.

A witness can only refer to memoranda made by himself, to refresh his memory. (Massey v. Hackett, 12 La. Ann. 54; Price v. Garland, 3 N.M. 505, 6 P. 472; Dwight v. Cutting, 91 Hun, 38, 36 N.Y.S. 99.)

A witness may refresh his memory by a writing only when it was written by the witness, or under his direction, at the time when the fact occurred, or immediately thereafter, or at another time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. (Manchester Assur. Co. v. Oregon R. Co., 46 Ore. 162, 114 Am. St. 863, 79 P. 60, 69 L. R. A. 475; Underhill, Crim. Ev., sec. 217.)

The court erred in instructing the jury that circumstantial evidence was legal evidence, without going further and instructing as to the essential requirements of circumstantial evidence in order to justify a conviction. (Robertson v. State, 33 Tex. Cr. 366, 26 S.W. 508; State v. Fitzgerald, 72 Vt. 142, 47 A. 403; Hamilton v. State, 96 Ga. 301, 22 S.E. 528.)

The jury fixed the punishment at execution. An examination of authorities gives such varied meaning to the word "execution" as to leave the duty of the court a mere matter of conjecture. "Execution," generally speaking, is to put the party entitled into possession of that which the law gives him; to put the judgment of the law into force; a carrying out of the final decree of the court; a process authorizing seizure or appropriation in order to the satisfaction of a judgment; or putting the sentence of the law into force. (3 Words & Phrases, 2564, 2565.) Similar verdicts have been held to be bad. (Thetge v. State, 83 Ind. 126; Turbaville v. State, 58 Ga. 545; Washington v. State, 55 Fla, 194, 46 So. 417; Allen v. State, 52 Ala. 391; Commonwealth v. Walsh, 132 Mass. 8; O'Leary v. People, 17 How. Pr. (N. Y.) 316.)

Having permitted the jury to be discharged and separated, the court was without power to make correction, and the verdict must fail to support the judgment and order of the court. (C. S., sec. 8999; 12 Cyc. 699, 700, and cases cited.)

Sec. 18, art. 1, of the constitution, guarantees to a defendant a fair and impartial trial. (Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Bell v. Bell, 18 Idaho 636, 111 P. 1074.)

Prejudicial remarks of trial courts constitute error. (Howland v. Oakland Consol. St. Ry. Co., 115 Cal. 487, 47 P. 255; Schneider v. Great Northern Ry. Co., 47 Wash. 45, 91 P. 565; Peterson v. Pittsburg Silver Peak Gold Min. Co., 37 Nev. 117, 140 P. 519; Koontz v. State, 10 Okla. Cr. 553, Ann. Cas. 1916A, 689, 139 P. 842; Wheeler v. Wallace, 53 Mich. 355, 19 N.W. 33; Chicago City Ry. Co. v. Wall, 93 Ill.App. 411; State v. Jackson, 83 Wash. 514, 145 P. 470.)

"It is the duty of the court to abstain carefully from any expression of opinion or comment upon the facts or evidence, not only in its charge to the jury, but also on the examination of witnesses and otherwise during the course of the trial." (16 Corpus Juris, 832; 26 R. C. L. 1027; State v. Clark, 27 Idaho 48, 146 P. 1107.)

When an expert is placed upon the stand and testifies positively that stains are what they appear to be, namely, blood, he must show how or in what manner his examination was made, to make such evidence competent and legal evidence. (1 Wharton, Crim. Ev. , 10th ed., sec. 423; Underhill, Crim. Ev., 2d ed., sec. 334.)

An incompetent defense is ground for new trial. (State v. Jones, 12 Mo.App. 93; State v. Lewis, 9 Mo.App. 321; State v. Benge, 61 Iowa 658, 17 N.W. 100.)

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

A witness is permitted to refresh and assist his memory by the use of a written instrument and it is not necessary that the writing should have been made by the witness, providing after inspecting it, he can speak as to the facts from his own recollection. (State v. Marren, 17 Idaho 766, 107 P. 993; 1 Greenleaf, sec. 436.)

A verdict of the jury will be reasonably considered and in such manner as to give effect to the meaning intended. (Russell v. State, 97 Ark. 92, 133 S.W. 188; State v. McDonough, 232 Mo. 219, 134 S.W. 545; Pearson v. State, 79 Tex. Cr. 609, 187 S.W. 336, 337; Lee v. State, 83 Tex. Cr. 532, 204 S.W. 110; Kendall v. State, 183 Ind. 162, 105 N.E. 899; Ex parte Booth, 39 Nev. 183, 154 P. 933; L. R. A. 1916F, 960; 1 Bishop's New Crim. Law, sec. 105; Richardson v. State, 72 Fla. 154, 72 So. 665; Goodman v. State, 188 Ind. 70, 121 N.E. 826; Abbott's Trial Brief, Crim. Causes, p. 728; Webb v. State, 138 Ala. 53, 34 So. 1011.)

In the absence of a request for an instruction defining circumstantial evidence, error cannot be predicated on an instruction defining circumstantial evidence where the latter correctly states the law, so far as it goes. (State v. Nolan, 31 Idaho 71, 169 P. 295.)

All instructions given by the court shall be taken and read together and considered as a whole as the law governing the case. (Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep 45, 5 P. 847; State v. Corcoran, 7 Idaho 220, 61 P. 1034; Hansen v. Haley, 11 Idaho 278, 81 P. 935; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; Barrow v. B. R. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Anderson v. Great Northern R. R. Co., 15 Idaho 513, 99 P. 91; Just v. Idaho Canal etc. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381; Tilden v. Hubbard, 25 Idaho 677, 139 P. 1133; Osborn v. Cary, 28 Idaho 89, 152 P. 473; Whitney v. Cleveland, 13 Idaho 558, 91 P. 176; People v. Cleveland, 49 Cal. 578; People...