State v. Reding

Decision Date14 July 1932
Docket Number5845
Citation52 Idaho 260,13 P.2d 253
PartiesSTATE, Respondent, v. JOHN REDING, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW - HOMICIDE - EVIDENCE - MOTIVE - DELIBERATION AND PREMEDITATION, PROOF OF-INSTRUCTIONS-WITNESSES-IMPEACHMENT.

1. Where evidence is circumstantial, motive for killing becomes material inquiry.

2. Where evidence is circumstantial, state may advance any motive for killing, within range of human experience and reasonable probability.

3. General rule that evidence of collateral offense is inadmissible is subject to exception that such evidence is admissible to establish motive.

4. Weight and sufficiency of proof of motive for homicide is question for jury, to be considered in connection with all other evidence.

5. In prosecution for homicide with intent to rob, testimony disclosing conversation between defendant and witnesses relating to defendant's conduct before and up to date of killing held admissible to show motive.

6. Error, if any, in admitting incompetent testimony becomes harmless, where fact intended to be proved thereby is fully shown by other evidence introduced without objection.

7. Where proof establishes that homicide was committed in perpetration, or attempt to perpetrate, designated felonies deliberation and premeditation are implied, and need not be otherwise proven (C. S., sec. 8211).

8. Where information charges deliberation and premeditation in commission of homicide, direct proof thereof may be introduced or in lieu thereof proof of perpetration or attempt to perpetrate designated felonies (C. S., sec. 8211).

9. Information charging murder in first degree need not allege particularly perpetration, or attempt to perpetrate designated felony (C. S., sec. 8211).

10. In prosecution for homicide with intent to rob, giving instruction on deliberation and premeditation, or killing while defendant was engaged in committing robbery, held not error under evidence (C. S., secs. 8209, 8211).

11. In homicide prosecution, instruction to find defendant guilty as charged, if allegations of information were proven beyond reasonable doubt, held not prejudicial as invading province of jury.

12. In homicide prosecution, admitting, for comparison, enlarged photographs of imprints taken from gun allegedly used and from another gun, held not error.

13. Weight to be given to evidence admitted for comparison is for jury.

14. In homicide prosecution, excluding copy of warrant of arrest of named witness, offered for impeachment purposes, held not error (C. S., sec. 8038).

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Everett E. Hunt, Judge.

Appeal from judgment of conviction of murder in the first degree. Affirmed.

Affirmed.

E. W Wheelan, for Appellant.

Evidence of circumstances occurring before the homicide which formed no part of the res gestae and do not throw any light upon the actions, animus or intent of defendant or the circumstances of the killing or any issues in the case, are inadmissible. (30 C. J. 193, citing Burton v. Jennings, 185 F. 382, 107 C. C. A. 438; 220 U.S. 613, 31 S.Ct. 717, 55 L.Ed. 610; People v. Cuff, 122 Cal. 589, 55 P. 407; State v. Huber, 38 Nev. 253, 148 P. 562; People v. Esposito, 224 N.Y. 370, 121 N.E. 344; People v. DeGarmo, 179 N.Y. 130, 71 N.E. 736.)

In order to find the defendant guilty of murder while engaged in the commission of robbery or other felony, it would be necessary in a statutory information for murder to charge him with murder committed while engaged in the commission of robbery, or other felony. It would be necessary to make such charge in the language of the statute. (C. S., secs. 8209, 8211; State v. Gruber, 19 Idaho 692, 115 P. 3.)

Fred J. Babcock, Attorney General, and Maurice H. Greene, Assistant Attorney General, for Respondent.

Proof of motive to commit crime is admissible especially when the evidence is circumstantial. (3 Nichols, Applied Evidence, 3146; Underhill on Criminal Evidence, sec. 503; 8 Cal. Jur. 36; 54 C. J. 1059; State v. Maguire, 31 Idaho 24, 169 P. 175.)

When the evidence discloses that the murder may have occurred in an attempt to commit robbery, evidence of financial straits of the defendant is admissible. (State v. Rice, 7 Idaho 762, 66 P. 87; State v. Gruber, 19 Idaho 692, 115 P. 1.)

Proof of intent to kill may be inferred from the use of a deadly weapon. (30 C. J. 140; Walker v. State, 20 Okla. Cr. 319, 202 P. 799; People v. Bennett, 161 Cal. 214, 118 P. 710.)

All the instructions in a case must be considered as a whole and error will not be predicated on any isolated portion thereof. (State v. Curtis, 30 Idaho 537, 165 P. 999; Ramon v. Interstate Utilities Co., 31 Idaho 117, 170 P. 88; Brayman v. Russell etc. Co., 31 Idaho 140, 169 P. 932; State v. Jurko, 42 Idaho 319, 245 P. 685.)

When the killing occurs in an attempt to commit robbery, the robbery furnishes the malice to make the crime murder in the first degree. (State v. Arnold, 39 Idaho 589, 229 P. 748; 13 Cal. Jur. 600; People v. Milton, 145 Cal. 169, 78 P. 549; People v. Raber, 168 Cal. 316, 143 P. 317; People v. Denman, 179 Cal. 497, 177 P. 461.)

An information in the language of C. S., sec. 8209, sufficiently charges murder in the commission of robbery. (People v. Witt, 107 Cal. 104, 148 P. 928; State v. Roselli, 109 Kan. 33, 198 P. 195; Harris v. State, 34 Wyo. 175, 242 P. 411.)

Enlargements of photographs may properly be admitted in evidence. (22 C. J. 918; Virginia-Carolina Chemical Co. v. Kirven, 57 S.C. 445, 35 S.E. 745; City of Louisville v. Dahl, 170 Ky. 281, 185 S.W. 1127.)

A witness may not be impeached by evidence of other wrongful acts except that it may be shown on his examination or by the record of the judgment that he has been convicted of a felony. (C. S., sec. 8038; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Alvord, 46 Idaho 765, 271 P. 322; State v. Bush, 50 Idaho 166, 295 P. 432; State v. Muguerza, 46 Idaho 456, 268 P. 1; People v. Crandall, 125 Cal. 129, 57 P. 785.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

Appellant was prosecuted upon an information charging him with murder in the first degree, alleging in part:

"That the said John Reding on or about the 26th day of October, 1930, in the County of Boundary, in the State of Idaho, did then and there unlawfully and feloniously, with deliberation and premeditation, wilfully and with malice aforethought, with the intent to rob, kill one Llewellyn Sumner Curtis Church. . . . "

By its verdict the jury found appellant guilty of murder in the first degree and fixed his sentence at life imprisonment. This appeal is from the judgment entered upon the verdict.

It is first contended that the trial court erred in overruling the objection of appellant to the following question propounded to the witness Washburn:

"Q. Coming back to that conversation, will you tell the jury what was said there between Mr. Priest and yourself and the defendant as to his actions leading up to the 26th and what he did there on the 26th?

"Mr. Wheelan: I object to any evidence as to anything the defendant may have stated to have occurred prior to the time it is claimed that the deceased was killed on the 26th day of October, 1930. . . .

"The Court: Overruled. You may answer. . . .

"Mr. Wheelan: Exception."

And to the question propounded to the witness Priest relating to the same conversation, as follows:

"Q. Will you tell the jury what the defendant told you with regard to where he was and what he was doing?

"Mr. Wheelan: Object to that as entirely immaterial, prior to the alleged commission of the offense, and immaterial for any purpose.

"The Court: Overruled. You may answer."

The evidence objected to and admitted had to do with a certain conversation between appellant, one Priest, of the Burns Detective Agency, and Sheriff Washburn, and was to the effect that appellant stated that he had received approximately $ 300 as compensation for an injury sustained by him; that he went to Spokane a few days before October 26, 1930, where he drank considerably and spent a great deal of his money; that he hired a taxicab to drive him to Yakima and paid the taxi driver $ 50 for the trip; "that he went down there to see his wife and baby and with the intentions of paying a note, or check and a note together, that he had signed up with some relative of his, but he had spent his money and couldn't pay it, and they had threatened to send him to the penitentiary if he didn't make it good"; that he came back to Spokane, had been drinking considerably and tried to get the taxi driver to drive him to Bonners Ferry but did not have the money to pay him, and told him he would have it after he got to Bonners Ferry; and that he rode almost to Bonners Ferry on the stage, but lacked fifteen cents to pay his fare and walked the remaining distance to the home of his parents. It is the contention of appellant that the evidence so given prejudiced him in the minds of the jury and that such evidence had no legitimate tendency to connect appellant with the crime, and its admission constituted prejudicial error.

The only purpose that could be served by the admission of the evidence complained of was to show motive for the killing. The proof shows that appellant killed the deceased while engaged in an attempt to rob him. The evidence complained of establishes the fact that by reason of his acts and conduct prior to the homicide appellant was in financial difficulties and in danger of being prosecuted criminally. The question therefore arises: Was the character of this evidence such as had a tendency to throw any light upon the commission of the offense or of such a nature as to establish...

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