State v. Rogers

Decision Date27 March 1917
PartiesSTATE, Respondent, v. E. D. ROGERS, Appellant
CourtIdaho Supreme Court


1. Held, that the language of the information in this case is sufficient to charge the crime of which the defendant was convicted in the court below.

2. Where upon a criminal trial counsel for defendant objects to certain testimony offered on behalf of the state, with regard to the use of vile language, and counsel for the state promises to thereafter connect such testimony with the defendant, but fails to do so, and there is no evidence in the record which connects the defendant with the use of such language, such testimony being highly prejudicial to the defendant, it is reversible error to allow such testimony to go to the jury.

3. In order to make an alleged threat of the defendant against the deceased admissible, it must appear from circumstances in evidence, with a reasonable degree of certainty, that the defendant directed the threat in question against the deceased before it can be admitted in evidence against him and if the circumstances in proof leave this matter in doubt that doubt must be resolved in favor of the defendant and the threat excluded.

4. That portion of an instruction in a trial for homicide which reads: "Malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive," is erroneous, as it tends to lead the jury to believe that they would be justified in finding that an act was done with malice if done in anger. Whereas a killing done in anger might amount only to manslaughter.

5. In an instruction in a trial for homicide wherein the court seeks to define the difference between the first and second degrees of murder, and uses the following language: "But while the purpose, the intent and its execution may follow thus rapidly upon each other, it is proper for the jury to take into consideration the shortness of such interval in considering whether such sudden and speedy execution may not be attributed to sudden passion and anger, rather than to deliberation and premeditation, which must characterize the higher offense," the giving of such instruction is misleading and erroneous, when read in connection with instruction No. 8 defining malice, in that it purports to include in the definition of murder in the second degree elements which tend to constitute only manslaughter.

6. The giving of the following instruction in a trial for homicide "That if you believe, beyond a reasonable doubt, that the deceased was engaged in assaulting the defendant, then you may take into consideration the relative size and strength of deceased and the defendant," places the burden upon the defendant, which is without warrant in law because it requires him to establish some element of his defense beyond a reasonable doubt.

7. In a trial for homicide the defendant is not required to establish circumstances in mitigation or that justify or excuse his act, either beyond a reasonable doubt or by a preponderance of the evidence, but is only bound to prove such circumstances as any fact is to be proven, and if the proof on the whole creates a reasonable doubt of the defendant's guilt, he is entitled to an acquittal.

8. In this case the court gave the following instruction: "The court instructs you, as a matter of law, that when the defendant testified as a witness in this case, he became as any other witness and his credibility is to be tested by, and subject to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded his testimony, the jury have a right to take into consideration the fact that he is interested in the result of the trial, as well as his demeanor and conduct upon the witness-stand, and during the trial, and whether or not he has been contradicted or corroborated by other witnesses or circumstances." This instruction is erroneous, in that it singles out the defendant as a witness and calls the attention of the jury particularly to the matter of his credibility. Instructions as to the credibility of witnesses should be general, and apply to all of the witnesses for the state and the defendant.

[As to admissibility of evidence of threats in prosecutions for murder, see note in 89 Am.St. 691]

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. J. J. Guheen, Judge.

Prosecution for murder. From a judgment of conviction, defendant appeals. Reversed and remanded.

Reversed and remanded with instructions. Petition for rehearing denied.

O. R. Baum, W. G. Griswold and W. G. Bissell, for Appellant.

The court allowed the state, over the objection of the defendant, to cross-examine the defendant upon matters not testified to upon direct examination, which was reversible error. (State v. Anthony, 6 Idaho 383, 55 P. 884; People v. O'Brien, 66 Cal. 602, 6 P. 695; State v. Saunders, 14 Ore. 300, 12 P. 441; People v. Arrighini, 122 Cal. 121, 54 P. 591; Lewis v. Territory, 7 Ariz. 52, 60 P. 694; Cooley's Constitutional Limitations, 5th ed., 386.)

The definition of malice in instruction No. 8 was erroneous; the court instructed the jury that, "Malice not only includes anger, hatred and revenge, but every other unlawful and unjustifiable motive." Mere anger does not of itself purport malice. (Chandler v. State, 141 Ind. 106, 39 N.E. 444.)

Instructions which in effect tell the jury that if they find there was no premeditation and deliberation, and that the killing was the result of and could be attributed to sudden passion and anger, then they should find defendant guilty of murder in the second degree, are clearly erroneous, for killing which can be attributed to sudden passion and anger is by our code especially made manslaughter. (Sec. 6565, Rev. Codes; People v. Freel, 48 Cal. 436; State v. Vaughn, 22 Nev. 285, 39 P. 733; State v. Buster, 28 Idaho 110, 152 P. 196.)

The burden of proof never shifts to the defendant to establish any part of his defense, either satisfactorily or beyond a reasonable doubt. (Appleton v. People, 171 Ill. 473, 49 N.E. 708; Lovejoy v. State, 62 Ark. 478, 36 S.W. 575; People v. Perini, 94 Cal. 573, 29 P. 1027.)

The defendant is never required to satisfy the jury of anything. If the evidence falls short of producing satisfaction and raises a reasonable doubt of defendant's guilt, he is entitled to an acquittal. (Boykin v. People, 22 Colo. 496, 45 P. 422; Trogdon v. State, 133 Ind. 1, 32 N.E. 725; State v. Pierce, 8 Nev. 291; State v. McCluer, 5 Nev. 132.) The defendant is never required to prove any of the facts constituting his defense beyond a reasonable doubt, and to so instruct is error. (People v. McCann, 16 N.Y. 58, 69 Am. Dec. 642; Foley v. State, 11 Wyo. 464, 72 P. 627.)

T. A. Walters, Atty. Genl., A. C. Hindman and J. Ward Arney, Assts., and Spencer L. Baird, for Respondent.

The direct examination of defendant was of such a sweeping character as to permit the state to go into all features of the case that were relevant and material, and the cross-examination of defendant by the state was entirely competent in its scope. (State v. Larkins, 5 Idaho 200, 47 P. 945; State v. Anthony, 6 Idaho 383, 55 P. 884; State v. Gruber, 19 Idaho 692, 704, 115 P. 1.)

The words charging the crime in the information did not actually prejudice the defendant or tend to his prejudice in respect to a substantial right. (State v. Larkins, 5 Idaho 200, 212, 47 P. 945.)

There is placed on the defendant the burden of affirmatively establishing that which defendant seeks to prove, i. e., justification. (People v. Milner, 122 Cal. 172, 54 P. 833, 837; People v. Matthai, 135 Cal. 442, 67 P. 695; Culpepper v. State, 4 Okla. Cr. 103, 140 Am. St. 668, 111 P. 683, 31 L. R. A., N. S., 1166; State v. Bogris, 26 Idaho 587, 600, 144 P. 789; State v. Webb, 6 Idaho 428, 55 P. 892; State v. Shuff, 9 Idaho 115, 131, 72 P. 664.)

Error in one instruction does not constitute a ground for reversal when the other instructions of the case, considered as a whole, result in no prejudice to the defendant. (State v. Bond, 12 Idaho 424, 86 P. 43; State v. O'Neil, 24 Idaho 582, 135 P. 60; People v. T. Wah Hing, 15 Cal.App. 195, 114 P. 418.)

Instructions Nos. 7 and 8 properly advised the jury as to premeditation, and do not exceed the express decision of this court upon the point in State v. Shuff, 9 Idaho 115, 128, 72 P. 664; People v. McDonald, 2 Idaho 10, 1 P. 345.

Instruction No. 18, as given, is a verbatim copy of an instruction expressly approved in State v. Shuff, supra, an authority in this regard which has not been overthrown. The question in this sort of a case does not hinge on anger and passion, but on malice, premeditation and deliberation.

BUDGE, C. J. Morgan and Rice, JJ., concur.



Appellant was informed against on Nov. 29, 1915, for the crime of murder alleged to have been committed on or about June 24, 1915, in the village of American Falls, Power county. He was tried and convicted of murder in the second degree and sentenced to the penitentiary for not less than twenty nor more than forty years. A motion for a new trial was overruled and this appeal is from the judgment and from the order overruling the motion for a new trial. The charging part of the information reads as follows:

"That the said E. D. Rogers on or about the 24th day of June, 1915 in the village of American Falls, County of Power, State of Idaho, did then and there, in and upon one, Clyde Cross, feloniously, wilfully, and of his malice aforethought, did make an assault; and the said E. D. Rogers, with a certain knife,...

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