State v. Rice

Citation66 P. 87,7 Idaho 762
PartiesSTATE v. RICE
Decision Date15 June 1901
CourtUnited States State Supreme Court of Idaho

NEW TRIAL-APPLICATION THEREFOR.-An application for a new trial must be made within ten days, or within such time as the court by order may extend, under provisions of section 7953 of the Revised Statutes; otherwise the application is unauthorized, and should be denied.

ORDER DENYING NEW TRIAL-APPEAL-DISMISSAL OF APPEAL.-An appeal from an order denying a new trial will be dismissed upon motion where the record shows that application therefor was not made within ten days, and the record fails to show that the time within which the application may be made was extended by the court or judge thereof.

BILL OF EXCEPTIONS-EXTENDING TIME FOR PRESENTING.-Where the record in a criminal case shows that counsel for the state and for the defendant stipulated in open court that either party should have sixty days after verdict in which to prepare and present bill of exceptions for settlement, and that such stipulation was entered in the minutes of the court with the knowledge and acquiescence of the court, and defendant's bill of exceptions was presented within sixty days after verdict, a motion to strike the defendant's bill of exceptions from the record, upon appeal, will be denied.

APPLICATION FOR POSTPONEMENT OF TRIAL-POPULAR EXCITEMENT AND PREJUDICE.-The existence of popular excitement and prejudice against the defendant is not ground for a postponement of trial in a criminal case, but may be grounds for change of venue.

SAME.-An order denying a continuance, upon the ground that a witness whose testimony is desired by the defendant is not ground upon which a reversal can be based, where it appears from the record that the testimony of such witness could not change the result of the trial, the evidence of the absent witness tending to prove a circumstance which would divert suspicion from the accused, but which would not tend to prove a defense.

SAME-DISCRETION OF COURT.-Refusal to grant a continuance being a matter largely within the discretion of the lower court, a judgment of conviction will not be reversed by reason of such refusal unless it is apparent from the record that such discretion has been abused, and that the defendant has been prejudiced thereby.

SAME-TIME TO PREPARE FOR TRIAL.-Where the record shows that the defendant had two weeks after his arrest charged with the crime of which he was convicted in which to prepare for trial, the judgment will not be reversed because the trial court denied his application for continuance, on the ground that he had not had sufficient time to prepare for trial, and the record fails to show that he was prejudiced by reason of being hurried into trial.

APPEAL-REVERSAL-HARMLESS ERROR.-A reversal cannot be predicated upon harmless error.

EVIDENCE-ACCOUNT-BOOKS OF DECEASED.-The account-books of the deceased, shown to have been kept by him in his business, and which were in his handwriting, were properly admitted in evidence, for the purpose of showing that he should have had about $1,200 in cash at the time of the homicide, and the evidence showed that he only had about $400; that defendant was hard pressed for money just immediately preceding the homicide, but on the day of the homicide, and after the commission of same, paid numerous debts which he owed to parties in the vicinity.

WITNESS BEFORE GRAND JURY-CALLING SAME AT TRIAL.-The defendant being entitled to process to compel the attendance of witnesses and having it within his power to call a witness whose name is indorsed upon the indictment as having appeared before the grand jury, the refusal of the trial court to compel the state to produce such witness at the trial is not ground for a reversal, especially when the record fails to show that the defendant made any effort to obtain the presence of such witness at the trial.

MISCONDUCT OF COUNSEL-DUTY OF PROSECUTING ATTORNEYS.-It is the duty of prosecuting attorneys to refrain from prejudicial statements in the presence of the jury, and to see that the defendant has a fair and impartial trial, but a judgment will not be reversed because of such misconduct, unless it is reasonably apparent from the record that the defendant was prejudiced thereby, and the record shows that substantial justice has been done.

EXPERT EVIDENCE-BLOOD AND BLOOD STAINS.-The assistance of chemistry and the testimony of expert witnesses are not necessary to show the existence of blood, owing to the familiarity of all persons competent to testify as witnesses with its appearance, and it is only in cases where it is necessary to distinguish between the blood of a human being and that of the inferior animals that such expert evidence is necessary.

INSTRUCTIONS-LAW OF THE CASE-TECHNICAL ERRORS.-Where the instructions as a whole correctly give to the jury the law of the case and fully guard and protect the rights of the defendant technical objections and immaterial errors therein are not grounds for disturbing the verdict.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment affirmed, and cause remanded, with instructions.

Charles E. Miller, for Appellant.

The court erred in denying defendant's motion for a postponement of the trial of said cause. 1. It is commonly regarded as reversible error to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, and the evidence is material and due diligence is shown, and the opposite party refrains from making such admissions as will obviate a continuance. (Lilienthal v. Anderson, 1 Idaho 673; People v. Brown, 54 Cal. 243; Lord v. Dunster, 79 Cal. 477, 21 P. 865; Sutton v. People, 119 Ill. 250, 10 N.E. 376; Saylor v. Commonwealth, 97 Ky. 184, 30 S.W. 390; Mercer v. Lowell Nat. Bank, 29 Mich. 243.) 2. The existence of intense popular excitement and prejudice is a good ground for continuance. (Beavers v. State, 53 Ind. 530; Bishop v. State, 9 Ga. 121; Cox v. State, 64 Ga. 374, 37 Am. Rep. 76; John v. State (Tenn.), 1 Head 49; State v. Poe, 8 Lea (Tenn.), 647; State v. Wells, 61 Iowa 629, 47 Am. Rep. 822, 17 N.W. 90.) 3. And failure to allow the accused proper time in which to prepare for trial is error. (Conley v. People, 80 Ill. 236; Metts v. State, 29 Ga. 271; State v. Lewis, 1 Bay (S. C.), 1; Newman v. State, 22 Neb. 356, 35 N.W. 194; State v. Lewis, 74 Mo. 222.) Evidence of identity, whether of person or thing, especially in capital cases, should be as certain as the most favorable circumstances will permit. (3 Greenleaf on Evidence, sec. 30; 1 Taylor on Evidence, sec. 555; Will's Circumstantial Evidence, c. 47.) In a trial for murder it is error to admit evidence of the declarations of the deceased, made several hours before the murder. (People v. Carkhuff, 24 Cal. 640; Combs v. State, 75 Ind. 215; Weyrich v. People, 89 Ill. 90.) The court erred in permitting the counsel for the state to use the following language, in the presence and hearing of the jury, during the examination of the witness, Joseph Whelan: "As to what transpired there that first day of October in that store, we do not know what occurred there; there was no eye-witness so far as we know; it is known only to God Almighty, Rice and the spirit of the departed Maily. Circumstances that point to his guilt; among them was his need of money. This defendant was in financial embarrassment prior to this time. The statements which I made, I think are all borne out by the evidence already adduced." This language was used during the discussion of the admissibility of the evidence. (Long v. State, 56 Ind. 186; State v. Graham, 62 Iowa 103; Cooley's Blackstone's, Commentaries, 354; State v. Olds, 19 Ore. 397, 24 P. 349.) It is both a right and a duty to give to the jury, by evidence, as complete a picture as possible of all the surroundings; and this irrespective entirely of any question of subsequently connecting the defendant with the transaction by other proofs. (Brown v. People, 17 Mich. 433, 97 Am. Dec. 195; Patten v. People, 18 Mich. 327, 100 Am. Dec. 173; Maher v. People, 10 Mich. 226, 81 Am. Dec. 781.) Each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt. (Scott v. State, 19 Tex. App. 325; People v. Anthony, 56 Cal. 397; Clare v. People, 9 Colo. 123; Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711, and note.) The rule supported by the weight of authority is that, even though the evidence may fall short of establishing the plea, it may be considered by the jury with the entire evidence, in determining whether a reasonable doubt of defendant's guilt has been raised. (People v. Fong Ah Sing, 64 Cal. 253, 28 P. 233; Kaufman v. State, 49 Ind. 248; Howard v. State, 50 Ind. 190; Commonwealth v. Choate, 105 Mass. 451; State v. Reitz. 83 N.C. 634; Walters v. State, 39 Ohio St. 215; Watson v. Commonwealth, 95 Pa. 418; State v. Hardin, 46 Iowa 623, 26 Am. Rep. 174; State v. Watson, 7 S.C. 63; State v. Webb, 6 Idaho 428, 55 P. 892.)

Frank Martin, Attorney General, for the State.

The application by appellant for a new trial was not made within ten days after the rendition of the verdict in the said cause, and that the time for making such application was not extended by order of the court or judge. (Rev. Stats., sec 7953; State v. Smith, 5 Idaho 291, 48 P. 1060; Connor v. Southern California M. R. Co., 101 Cal. 429, 35 P. 990; California Imp. Co. v. Baroteau, 116 Cal. 136, 47 P. 1018; Burton v. Todd, 68 Cal. 485, 9 P. 663.) A motion is an application for a rule or order made viva voce to the court or judge. Making out and filing a written application for such rule is not sufficient. The attention of the court must be called to it and the court moved to grant it. ...

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