State v. Rooke

• Decision Date: 16 December 1904
• Parties: STATE v. ROOKE
• Court: Idaho Supreme Court

79 P. 82

10 Idaho 388

STATE v. ROOKE

Supreme Court of Idaho

December 16, 1904

DEMURRER TO INFORMATION OVERRULED WHEN-APPLICATION FOR CHANGE OF VENUE OVERRULED WHEN-APPLICATION FOR CONTINUANCE OVERRULED WHEN-WHEN NAMES OF WITNESSES MAY BE INDORSED ON INFORMATION-SWEARING ALL WITNESSES IN A BODY NOT ERROR-SUFFICIENCY OF CHANGE OF OWNERSHIP OF PROPERTY-STATEMENT OF PROSECUTING ATTORNEY TO JURY NOT ERROR WHEN-INSTRUCTIONS OF THE COURT SUFFICIENT WHEN-VERDICT SUFFICIENT WHEN-RULE AS TO TESTIMONY OF ACCOMPLICES-PERMITTING LETTER TO GO TO JUROR NOT ERROR WHEN.

1. A demurrer to an information will be overruled when it charges the unlawful and felonious taking of the property from the possession of the owner, naming him, giving a description of the property, fixing time and venue.

2. An application for change of venue will be denied when it is based on the ground of the bias and prejudice of the people of the county, where it is shown that an equal number of the citizens of the county testify that in their opinion a fair and impartial trial can be had in the county.

3. It is not error to overrule an application for continuance when it is not sufficiently made to appear to the court that the evidence of the absent witnesses can be furnished at a future term of the court, or that the testimony of such witnesses is material to the defendant setting out in the affidavit for continuance what defendant expects to prove by such absent witnesses.

4. Names of witnesses may be indorsed on the information at the beginning of the trial when it satisfactorily appears to the court that the prosecuting officer could not reasonably have asked such permission at an earlier time.

5. It is not error to swear all witnesses in a body at the beginning of the trial.

6. When the information charges that the property alleged to have been stolen was the property of C. W. Dunham, the proof shows that Charles Dunham was the owner thereof, and the verdict shows the property to have been that of C. W. Dunham, the variance is not sufficient to warrant a new trial where it does not appear that they are different persons.

7. Erroneous statements of the prosecuting attorney or other counsel on behalf of the prosecution may be explained by the party making them.

8. When the court trying the case fully and fairly instructs the jury on every question arising on the trial, it is not error to refuse instructions submitted by the defendant or prosecution.

9. Before a party charged with crime can be convicted upon the testimony of accomplices, there must be corroboration of the evidence of such witnesses.

10. Where it is shown that a letter had been given to a juror during the trial or before a verdict had been returned and the court was ignorant of such fact, and it is further shown that on the hearing of the motion for a new trial the attention of the court is not called to such fact, it cannot be urged in this court as a ground for new trial.

(Syllabus by the court.)

APPEAL from the District Court of Idaho County. Honorable Edgar C Steele, Judge.

Judgment of conviction of grand larceny. Judgment affirmed.

Motion for a new trial overruled, and judgment affirmed.

Clay McNamee, M. R. Hattabaugh, A. S. Hardy and C. H. Nugent, for Appellant.

The only evidence offered to show that this animal was ever in the possession of Rooke is the fact that she was placed in a pasture along with horses belonging to Rooke and that Rooke settled the pasture bill. There is no evidence from which it can even be inferred that the defendant ever knew that this animal had been placed in the pasture, or that any horse had been placed there by others who were not the owners of the same. This court has held that where the presumption arising from the possession of stolen property is overcome, the evidence is insufficient to warrant conviction. (State v Marquardson, 7 Idaho 352, 62 P. 1034.) But in the case at bar the state never raised a presumption of guilt. It did prove that the defendant never took the horse, and established a prima facie case that it was never in the possession of the defendant, to his knowledge. (People v Curran (Cal.), 31 P. 1116.) Where the evidence fails to connect the defendant with the offense charged, the conviction will be set aside. (State v. Adams, 9 Idaho 582, 75 P. 258; State v. Nesbit, 4 Idaho 548 43 P. 66.) Also where no common enterprise is shown. (Hilligas v. State, 55 Neb. 586, 75 N.W. 1110.) In the case at bar the state does not rely upon circumstantial evidence; every detail is sworn to by eye-witnesses. There is no room for the presumptions dealt in where the evidence is circumstantial. It is error to allow a jury to infer a fact of which there is no evidence. (Saunders v. People (Mich.), 1 Am. Cr. Rep. 347.) Testimony which raises a mere conjecture ought not to be left to a jury as evidence of a fact which a party is required to prove. (State v. Carter (N. C.), 1 Am. Cr. Rep. 444.) Evidence of the perpetration by the defendant of a crime other than that for which he is on trial is not admissible unless such connection be shown between the two offenses as tends to prove that if defendant were guilty of the one, he was also guilty of the other. (Swan v. Commonwealth (Pa.), 4 Am. Cr. Rep. 188, and note, p. 190; People v. Tucker, 104 Cal. 440, 38 P. 195.) On the subject of other thefts in larceny cases see State v. Kelly (Vt.), 9 Am. Cr. Rep. 354, and note, p. 361; People v. Bird, 124 Cal. 32, 56 P. 639. The testimony of the witnesses tending to connect the defendant with the alleged theft, and who swore to the taking of the horse, was testimony of witnesses admitting that they were concerned in the taking, and who were therefore accomplices according to their own claim. There is not sufficient testimony from other persons of material facts to corroborate the testimony of these accomplices. The testimony of accomplices must be corroborated. (Territory v. Neligh, 2 Ariz. 69, 10 P. 357; Middleton v. State, 52 Ga. 527, 1 Am. Cr. Rep. 194; People v. Kunz, 73 Cal. 313, 14 P. 836.) The courts hold that threats of lynching are sufficient to authorize change of venue. (Richmond v. State, 16 Neb. 388, 20 N.W. 282; State v. Greer, 22 W.Va. 800.) The courts have also held that newspaper attacks upon the defendant are enough to authorize change of venue. (Gallaher v. State, 40 Tex. Cr. Rep. 296, 50 S.W. 388; State v. Olds, 19 Or. 397, 24 P. 394. See, also, Meyers v. State, 39 Tex. Cr. Rep. 500, 46 S.W. 817; Saffold v. State, 76 Miss. 258, 24 So. 314; Jamison v. People, 145 Ill. 357, 34 N.E. 486; Johnson v. Commonwealth, 82 Ky. 116; State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026; State v. Flaherty, 42 W.Va. 240, 24 S.E. 885.)

John A. Bagley, Attorney General, for the State.

Swearing witnesses in a body not reversible error. (State v. Crea, ante, p. 88, 76 P. 1013.) Misconduct of county attorney: This is not assigned as a ground for a new trial in the notice and motion for a new trial, and cannot be considered by this court. The conduct complained of is not sufficient to warrant a reversal of this case or bring it within the rule laid down in State v. Irwin, 9 Idaho 35, 71 P. 608; State v. Harness, ante, p. 18, 76 P. 788.

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

On the eighth day of September, 1903, an information was filed in the district court of Idaho county, charging the defendant William Rooke, with the crime of grand larceny. After alleging that the defendant had waived a preliminary examination, the prosecuting officer charges the larceny as follows:

1. That the said William Rooke, on or about the twenty-third day of January, 1903, at the county of Idaho and state of Idaho then and there being, did then and there willfully and unlawfully and feloniously steal, take, carry, lead and drive away from the possession of one C. W. Dunham, one roan mare, the same then and there being the personal property of said C. W. Dunham.

To this information a demurrer was filed: 1. That said information does not substantially conform to the requirements of sections 7677, 7678 and 7679 of the Revised Statutes; 2. That the facts stated in said information do not constitute a public offense.

This demurrer was overruled, to which counsel for defendant excepted. Counsel for defendant filed a motion for change of venue, which was by the court overruled; all these proceedings were had at the September, 1903, term of the district court of Idaho county. The next step disclosed by the transcript was an application for a continuance on behalf of the defendant, which was filed on the first day of February, 1904, it being the first day of the February term of the Idaho county district court. The record shows that this motion was argued and submitted to the court and overruled on the said first day of February, 1904. On the same day it is shown that the prosecuting officer asked to have the names of a number of witnesses indorsed on the information, which was objected to by the defendant. The objection was overruled and the court directed the names of a large number of witnesses to be indorsed on the information. On February 18, 1904, it is shown that the court ordered that a jury be impaneled to try the cause, which was completed, and on the 19th the trial was resumed and continued from day to day until completed. On the twenty-fourth day of February, 1904, the jury returned the following:

"February Term, 1904.

The State of Idaho Plaintiff, v. William Rooke, Defendant.

"VERDICT.

"We, the jury in the above-entitled cause, duly impaneled and sworn, find the defendant guilty as charged in the information.

"HENRY FORSEMAN,

"Foreman."

On the twenty-sixth day of...