State v. Roby

• Decision Date: 09 March 1927
• Citation: 43 Idaho 724,254 P. 210
• Parties: STATE, Respondent, v. ASHTON ROBY, Appellant
• Court: Idaho Supreme Court

254 P. 210

43 Idaho 724

STATE, Respondent, v. ASHTON ROBY, Appellant

Supreme Court of Idaho

March 9, 1927

FAILURE TO PRESERVE EXCEPTIONS PRECLUDES REVIEW-FORCIBLE DEFENSE OF RIGHT TO PARTNERSHIP PROPERTY-REVERSAL FOR ERROR IN JUDGMENT ONLY-EFFECT.

1. An omission to charge on a particular point cannot be assigned as error, where no instruction on point has been requested by appellant.

2. Where instruction was given upon court's own motion, it cannot be reviewed, where no exception had been preserved by bill of exceptions.

3. Failure to preserve exception to court's denial of motion in arrest of judgment precludes review thereof.

4. Relation of partnership or joint tenancy does not, in absence of specific agreement, entitle one partner or co-owner to exclusive possession as against the other of property owned.

5. Possession of property under relationship of partner or joint tenant conferred no right on one partner to exercise privilege under C. S., sec. 8626, of making resistance to prevent illegal attempt by force to take property, as against copartner.

6. Where, in prosecution under C. S., sec. 8407, for exhibiting deadly weapon, judgment pronounced was of assault with deadly weapon which was not supported by record, the reversal for error in judgment only by appellate court is conclusive adjudication of all questions arising on record prior to sentence, so that jury's verdict of guilty and all precedent proceedings remain in full force and effect.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

Conviction for exhibiting deadly weapon under C. S., sec. 8407. Reversed with directions.

Judgment reversed, with directions.

Walter Griffiths, for Appellant.

Force agencies and words sufficient in violence to protect one's property, or property of which one has control, may be employed to resist a trespass or interference with the ownership or control of such property. (State v Howell, 21 Mont. 165, 53 P. 314; People v Ross, 19 Cal.App. 469, 126 P. 375; Parrish v. State, 32 Tex. Cr. 583, 25 S.W. 420; Yarborough v. State, 66 Tex. Cr. 311, 147 S.W. 272; Robey v. State, 73 Tex. Cr. 9, 163 S.W. 713; Dickenson v. State, 3 Okla. Cr. 151, 104 P. 923; Ryan v. Territory, 12 Ariz. 208, 100 P. 770; People v. Foss, 80 Mich. 559, 20 Am. St. 532, 45 N.W. 480, 8 L. R. A. 472.)

The defendant in this case exercised and used only such language and actions as were necessary "to prevent an illegal attempt by force to take or injure property in his lawful possession," as authorized by C. S., sec. 8626. ( State v. Webb, 163 Mo.App. 275, 146 S.W. 805; State v. Brumley, 53 Mo.App. 126; State v. Cessna, 170 Iowa 726, Ann. Cas. 1917D, 289, 135 N.W. 194; State v. Scott, 142 N.C. 582, 55 S.E. 69, 9 L. R. A., N. S., 1148; State v. Austin, 123 N.C. 749, 31 S.E. 731; Lassiter v. State, 73 Tex. Cr. 35, 163 S.W. 710; Souther v. State, 18 Tex. App. 352; State v. Yancey, 74 N.C. 244; People v. Adams, 52 Mich. 105, 17 N.W. 715; Commonwealth v. Lynn, 123 Mass. 218.)

A court has no jurisdiction to pronounce or enter a judgment convicting defendant of a crime different from that charged in the complaint, or different from that determined by the verdict. (Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

An omission to charge on a particular point cannot be assigned as error where no instruction on the point is requested by appellant. (State v. Jurko, 42 Idaho 319, 245 P. 685; State v. Harness, 10 Idaho 18, 76 P. 788.)

This court will not consider an assignment based upon the court's action in giving instructions on its own motion unless exceptions are saved and incorporated in a bill of exceptions; and the action of the court in denying a motion in arrest of judgment must be incorporated in a special bill of exceptions to be considered on appeal. (State v. Maguire, 31 Idaho 24, 169 P. 175.)

An erroneous recital or statement of the offense by the court in pronouncing sentence will not vitiate the judgment when the record fully discloses the offense for which the accused was indicted, tried and convicted. (Hambrick v. State, 80 Fla. 672, 14 A. L. R. 987, note 989, 86 So. 623.)

Neither an error nor mistake in a pleading or proceeding in a criminal case renders it invalid unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. (C. S., sec. 9191.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

The defendant, Ashton Roby, was convicted in the probate court of Canyon county upon a complaint filed by one Kennison, under C. S., sec. 8407, charging that he ". . . . did . . . . wilfully, knowingly, unlawfully and intentionally, in the presence of two or more persons, exhibit a deadly and dangerous weapon, to-wit: an automatic pistol, in a rude, angry and threatening manner." Upon appeal to the district court, the jury returned a verdict finding him guilty as charged. The court, apparently through inadvertence, adjudged him guilty of assault with a deadly weapon, but sentenced him in accordance with the terms of said sec. 8407.

From this judgment he has appealed, specifying insufficiency of the evidence to support the verdict; that the court erred in giving instruction No. 4 under said sec. 8407 without including therein "exceptions contained in C. S., sec. 8626," in denying defendant's motion in arrest of judgment, and in pronouncing and entering the judgment appealed from. The court was not requested to instruct upon the matter appellant insists the court should have covered under C. S., sec. 8626. An omission to charge on a particular point cannot be assigned as error where no instruction on the point has been requested by appellant. (State v. Harness, 10 Idaho 18, 76 P. 788; State v. Jurko, 42 Idaho 319, 245 P. 685.)

Nor can the criticised instruction be reviewed, since it was given upon the court's own motion, and no exception has been preserved by bill of exceptions. ( State v. Maguire, 31 Idaho 24, 169 P. 175.)

A similar failure to preserve an exception to the court's denial of the motion in arrest of judgment likewise precludes review. (State v. Maguire, supra.)

It appears that the complaint, Ray Kennison, went to appellant's home to get a derrick in which he swore he had a $ 65 interest. Appellant refused to let him have it. Kennison said he would "take it anyway." Whereupon, according to complainant, appellant started into the house "in a loud, angry manner, and came out with an automatic pistol and he said: 'Now you get '" Complainant "just left." When asked why he left, he replied: "I didn't want to get shot." On cross-examination he said he knew there was no danger of his being shot unless he took the derrick, and that he feared to attempt to take it. A corroborating witness, Clifford Dobbins, testified as follows: ". . . . the first thing I heard was that Ray said he would have it; and Roby said, 'I'll show you whether you will or not'; and he run into the house, and, when he came back, he had this gun in his hand. 'Now,' he said, 'You get out of here '" To the question: "Did Mr. Roby say: Get out of here, or words to that effect, in a loud voice?" he answered: "Yes, sir."

Appellant admitted that in response to Kennison's declared intention to take the derrick, he stated: "If that is the way you feel about it, I will see...