State v. Reed

• Decision Date: 12 January 1894
• Citation: 35 P. 706,3 Idaho 754
• Parties: STATE v. REED
• Court: Idaho Supreme Court

35 P. 706

3 Idaho 754

STATE v. REED

Supreme Court of Idaho

January 12, 1894

PRACTICE-CHANGE OF PLACE OF TRIAL.-A motion for change of place of trial must be predicated upon facts existing at the time the motion is made. Where a motion for a change of place of trial, once overruled, is renewed at a subsequent term, several months after that at which such motion was overruled, it will not be presumed, in the absence of any showing to that effect, that the same conditions still existed.

VIEW OF PREMISES WHERE CRIME WAS COMMITTED-ABSENCE OF DEFENDANT NO GROUND FOR NEW TRIAL.-Where, upon the trial of a criminal case a view of the premises is directed upon motion of the defendant, and no request or expression of a desire upon his part to be present at such view is made, his absence from such view is not ground for a new trial.

LIQUORS FURNISHED JURY-IF NOT EXCESSIVE NOT REVERSIBLE ERROR. While the permitting of intoxicating liquors to be furnished to a jury engaged in the trial of a criminal case is strongly disapproved, except in cases of actual necessity, the indulgence therein to a limited extent under the direction of the judge of the trial court before the case is submitted is not, in the absence of any evidence of overindulgence in, or apparent effect from, the use of such liquor by or upon any member of the jury, deemed reversible error.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed.

Albert Hagan, Hawley & Reeves and Pinkham & Halverson, for Appellant.

During the progress of the trial, or after their retirement for deliberation, the jury must be provided by the sheriff with suitable food and lodging. (Rev. Stats., sec. 7901.) We fail to find, however, that any change has been made in the old rule so as to allow intoxicating liquors to jurymen, and insist that there has been no relaxation in that respect. (Proffat on Jury Trial, 398; Rose v. Smith, 4 Cow 17, 15 Am. Dec. 331; Leighton v. Sargent, 31 N.H 119, 64 Am. Dec. 323; State v. Baldy, 17 Iowa 39; Ryan v. Harrow, 27 Iowa 494, 1 Am. Rep. 302; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Cwater v. Glass Co., 85 Ind. 180; Railway Co. v Porter, 32 Ohio St. 368; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760, and note; State v. Bullard, 16 N.H. 139; Pelham v. Page, 6 Ark. 535; Greeg v. McDaniel, 4 Ohio 367; People v. Douglass, 4 Cow. 26, 15 Am. Dec. 332; Brant v. Fowler, 7 Cow. 562.) We have also assigned as error that the jury viewed the premises where the homicide was committed during the progress of the trial and in the absence of the defendant, of the judge and of defendant's counsel. (People v. Coleman, 4 Cal. 451; Tyler v. Palmer, 31 Cal. 254; People v. Webb, 38 Cal. 477; Ex parte Roundtree, 51 Ala. 42; Attorney General v. Brunst, 3 Wis. 787; Commonwealth v. Hartnett, 3 Gray (Mass.), 450; Hess v. Pegg, 7 Nev. 23; Leavenworth Co. v. Miller, 7 Kan. 479, 12 Am. Rep. 425; Walker v. Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456; People v. Bonney, 19 Cal. 426; People v. Lowrey, 70 Cal. 193, 11 P. 605; People v. Bush, 71 Cal. 602, 12 P. 781; People v. Huff, 72 Cal. 117, 13 P. 168; People v. Tut Ling, 74 Cal. 569, 16 P. 489.) Not only the defendant, but his counsel and the judge of the court, should be present at the view. (Benton v. State, 30 Ark. 328; State v. Benton, 24 La. Ann. 46; Carroll v. State, 5 Neb. 31; People v. Green, 53 Cal. 60; State v. Saunders, 68 Mo. 202, 30 Am. Rep. 782; Eastwood v. People, 3 Park. Cr. Rep. 25; Smith v. State, 42 Tex. 444; Wharton's Criminal Pleading and Practice, sec. 707; Foster v. State, 70 Miss. 755, 12 So. 822; Wharton's Criminal Evidence, secs. 312, 797; 26 Cent. L. J. 439.) In all cases of felony, when the prisoner's life is in peril, he has the right to be present, and must be present, during the whole of the trial and until final judgment. (Cooley's Constitutional Limitations, sec. 319, and note.) Especially is this the case in capital cases, where the prisoner cannot by his silence, or otherwise, waive any of his rights. (Dempsie v. People, 47 Ill. 325; People v. McKay, 18 Johns. 217; Bailey v. State, 1 Neb. 385.) And, more especially, the defendant cannot waive a constitutional right. (Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671; Caulem v. People, 18 N.Y. 128; Wilson v. State, 16 Ark. 601; Brown v. State, 16 Ark. 496; Board v. State, 17 Ark. 290.) The right of a prisoner, indicted for felony, to be present in court at his trial, cannot be waived by himself or his counsel by consent or otherwise. (Paine v. Commonwealth, 18 Pa. St. 108; State v. Davis, 66 Mo. 684, 27 Am. Rep. 387; Dunn v. Connecticut, 6 Pa. St. 384; Rev. Stats., sec. 7782.) Where a statute provides that on application and showing in certain cases a party may have a change of venue, if the party brings himself within the statutory requisites, he is entitled thereto, as a matter of right. (Note to Shattuck v. Myers, 74 Am. Dec. 241; Mendenhall v. Gately, 18 Ind. 148; Kession v. Pressly, 80 Ind. 494; Freleigh v. State, 2 Mo. 206; People v. Yoakum, 53 Cal. 566.)

George M. Parsons, Attorney General, for State.

It is not claimed that the liquors had by the jurors were furnished by the state or anyone interested in the prosecution; and the case of Palmer v. Utah etc. Ry. Co., 2 Idaho, 315, 13 P. 425, and authorities therein cited do not apply. In support of the views herein set forth we cite: People v. Biles, 2 Idaho, 114, 6 P. 120; Commonwealth v. Clery, 148 Pa. St. 26, 23 A. 1110, 1112; People v. Deegan, 88 Cal. 602, 604, 605, 606, 26 P. 500; Russell v. State, 53 Miss. 382, 383, 384; Territory v. Burgess, 8 Mont. 57, 19 P. 558, 568; Territory v. Hart, 7 Mont. 489, 17 P. 718, 726; Davis v. People, 19 Ill. 74, 77; Roman v. State, 41 Wis. 312, 316; Thompson and Merriam on Juries, sec. 378; Harris v. State, 24 Neb. 803, 40 N.W. 317, 320; State v. Jones, 7 Nev. 408, 414; Allen v. State, 7 Tex. App. 298; King v. State, 91 Tenn. 617, 629, 630, 20 S.W. 169; People v. Sansome, 98 Cal. 235, 33 P. 202, 204. No exception was taken to the viewing of the premises by the jury, or to the order of the court directing the jury to view the premises. Error is not presumed; it must be shown by the record. (People v. Ah Hop, 1 Idaho, 700; People v. Winters, 29 Cal. 658.) The right of review embraces only such decisions as were excepted to, and errors that appear in the record. (People v. Ah Hop, 1 Idaho, 698, 703.) On appeal, if the record does not affirmatively show that the defendant was absent during a portion of the trial, it will be presumed that he was present. (People v. Stuart, 4 Cal. 218.) In the absence of a showing to the contrary, it will be presumed that the defendant and his counsel were present at the view. (People v. Williams, 45 Cal. 25; People v. Huff, 72 Cal. 117, 119, 13 P. 168.) Right to change of place of trial. (Idaho Rev. Stats., secs. 7768, 7769, 7770.) The granting or refusal of the application is a matter of discretion, and will only be reversed for palpable abuse. (People v. Elliott, 80 Cal. 296, 22 P. 207; People v. Vincent, 95 Cal. 425, 428, 30 P. 581; People v. Goldenson, 76 Cal. 328, 339, 19 P. 161; People v. Congleton, 44 Cal. 92, 95; Edwards v. State, 2 Wash. 291, 26 P. 258; State v. Millain, 3 Nev. 409, 431, 432, 433; Territory v. Egan, 3 Dak. 119, 13 N.W. 568, 569, 570; Commonwealth v. Cleary, 148 Pa. St. 26, 23 A. 1110, 1111; Commonwealth v. Allen, 135 Pa. St. 492, 19 A. 957; People v. Perdue, 49 Cal. 425; King v. State, 91 Tenn. 417, 422, 20 S.W. 169.) The whole matter rests in the sound discretion of the trial judge, subject to reversal for an abuse of discretion. (Territory v. Manton, 8 Mont. 95, 102, 19 P. 387; State v. Russell, 13 Mont. 164, 32 P. 854, 855, 856; State v. Williams, 63 Iowa 136, 137, 18 N.W. 682; State v. Rowland, 72 Iowa 327, 328, 33 N.W. 137; State v. Cadwell, 79 Iowa 473, 476, 44 N.W. 711; State v. Woodward, 84 Iowa 172, 50 N.W. 885; State v. Wilson, 85 Mo. 135, 139; State v. Hunt, 91 Mo. 490, 491, 3 S.W. 858, 868; State v. Rider, 95 Mo. 474, 481, 482, 8 S.W. 723; Spittorff v. State, 108 Ind. 171, 8 N.E. 912; Perrin v. State, 81 Wis. 135, 137, 138, 50 N.W. 516; Muscoe v. Commonwealth, 87 Va. 460, 461, 462, 12 S.E. 790; Edwards v. State, 2 Wash. 291, 293, 294, 26 P. 258; Olive v. State, 11 Neb. 1, 7 N.W. 444; Adams v. State, 28 Fla. 511, 10 So. 106; Hyde v. Harkness, 1 Idaho, 601, 602, 603, 604; Horn v. State, 98 Ala. 23, 13 So. 329, 330.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The defendant was indicted at the September term, 1892, of the district court of the first judicial district of Idaho in and for Shoshone county, for the crime of murder in the killing of one Robert Stevens at Murray, in said county, on the sixteenth day of July, 1892. On October 3, 1892, defendant was arraigned, and filed a demurrer to the indictment, which was overruled. Defendant thereupon entered his plea of not guilty, at same time giving notice of application for a change of venue. The motion for change of venue was based upon affidavits filed on the part of defendant, wherein are set forth the condition of the county at the time of the homicide, as well as at the time of the holding of the term of the district court then in session, the alleged prejudice existing in the community against the defendant, etc. The motion for the change of venue was denied, which action of the district court was brought to this court for review on writ of error. We held that, not being a final order, neither a writ of error nor an appeal would lie from an order overruling a motion for a change of venue in a criminal case, under the code of Idaho. Upon the overruling of the motion for a change of venue, the cause was continued to the next ensuing term of said court-- ...