State v. Rutten

• Decision Date: 11 June 1952
• Docket Number: No. 7798,7798
• Citation: 245 P.2d 778,73 Idaho 25
• Parties: STATE v. RUTTEN.
• Court: Idaho Supreme Court

Page 778

245 P.2d 778

73 Idaho 25

STATE v. RUTTEN.

No. 7798.

Supreme Court of Idaho.

June 11, 1952.

Rehearing Denied July 22, 1952.

Vernon K. Smith and Pete Leguineche, Boise, for appellant.

Robert E. Smylie, Atty. Gen., John Clinton Peterson, Asst. Atty. Gen., J. R. Smead, Asst. Atty. Gen., and Merlin S. Young, Boise, Pros. Atty., for respondent.

PORTER, Justice.

An information was filed in Ada County against appellant and one F. L. Stover charging them with the crime of burglary in the first degree. The trial of appellant was had thereon and the jury returned a verdict of guilty. Judgment was entered in accordance with the verdict and sentence pronounced. From such judgment, appellant has appealed to this court.

About midnight on April 12, 1951, the Vista Pharmacy, located in Boise, was entered and a cash register and other articles taken therefrom. A school girl living in the vicinity saw a car stop near the pharmacy and two men get out of the car. They broke the glass in the back door of the pharmacy and crawled through the door. She informed her mother who called the police. A few minutes later the two men came out of the pharmacy, one of them carrying a heavy object which they put in the car and which was later identified as the cash register belonging to the pharmacy.

The police arrived about the time the car was leaving the vicinity of the pharmacy and gave chase. A few minutes later the officers overtook the retreating car, which in the meantime had been wrecked. They arrested appellant and Stover, who were attempting to hide in the vicinity of the wrecked car. The car belonged to Stover but was being driven by appellant.

In the wrecked car the police officers found and took possession of certain articles, namely, two wrecking bars, a screwdriver, a wood chisel, a hammer and the cash register taken from the Vista Pharmacy a few minutes before. At the trial these items were offered and received in evidence as exhibits.

Appellant in his brief sets out 14 assignments of error. By Assignments of Error Nos. I and II, appellant contends the court erred in denying his motion to quash and set aside the information and preliminary examination and his motion in arrest of judgment. Appellant's contention is that the depositions taken at the preliminary hearing were not properly authenticated. The testimony of the witnesses at the preliminary examination was taken down in shorthand by a stenographer and certified by her as true and correct. The committing magistrate also attached his certification. The certification by the stenographer erroneously described her as county stenographer.

The pertinent part of Section 19-812, I.C. providing for authentication of testimony taken at preliminary examinations, reads thus:

'The evidence must be authenticated as follows:

'1. If the deposition is taken in writing each answer must be distinctly read to the witness as it is taken down, and must be corrected or added to until it conforms to what he declares is the truth; it must be subscribed and sworn to by the witness, or if the refuses to sign it, his reason for refusing must be stated in writing as he gives it; or,

'2. If the deposition is taken by a stenographer in shorthand it shall be transcribed by him and certified to as true and correct; and

'3. Unless certified by the county stenographer, the deposition must also be signed and certified by the magistrate.'

Appellant relies upon State v. Carlson, 23 Idaho 545, 130 P. 463, to support his position that the testimony must be either taken by the county stenographer or signed and sworn to by the witnesses. However, State v. Carlson was decided in 1913 under a different wording of the statute. The authentication in the present case was sufficient. State v. Miller, 52 Idaho 33, 10 P.2d 955.

By his Assignment of Error No. III, appellant urges that the court erred in denying his motion to quash for the reason that the committing magistrate did not specify in his order for what offense defendant was held to answer to the district court. The formal order of commitment provided for by Section 19-815, I.C., does not appear in the transcript. Therefore, it is not before us for review. Bruce v. Frame, 39 Idaho 29, 225 P. 1024; State v. Weir, 41 Idaho 345, 238 P. 1029.

By Assignment of Error No. IV, appellant questions the ruling of the court in denying his challenge for cause on voir dire examination of the prospective juror Murphy. An examination of the proceedings had does not disclose actual bias against appellant by the venireman but only a disapproval of intoxication. The matter was within the discretion of the trial court. The juror was excused on peremptory challenge and the record does not disclose that the necessity of accepting an unqualified juror was created. State v. Murray, 43 Idaho 762, 254 P. 518. No reversible error appears.

By Assignments of Error Nos. V and VI, appellant complains of remarks and comments by the court during the voir dire examination and the course of the trial. Appellant does not contend that any individual remark or comment by the court was sufficiently prejudicial to constitute reversible error, but insists that when all such comments and remarks are considered together they were prejudicial. 'It is a recognized rule of this court that the trial court should make no remarks or comments that would tend to prejudice either of the parties litigant on the trial. Prejudicial comment should be avoided.' State v. Miller, 60 Idaho 79, 88 P.2d 526, 527. A careful examination of the remarks and comments of which complaint is made, shows they were made mostly in connection with explanation of rulings upon objections. McShane v. Quillin, 47 Idaho 542, 277 P. 554. They indicate a degree of impatience not to be commended. However, they do not indicate an opinion by the trial court as to the guilt or innocence of appellant; do not hold up counsel to obliquity or ridicule; and do not tend to reflect upon the conduct of counsel in the handing of the case. We find no reversible error in this respect.

Appellant complains by Assignment of Error No. VII, that the court erred in permitting tags prepared by the police containing alleged hearsay and opinion evidence to remain affixed to exhibits admitted in evidence. The tags were merely tags of identification placed upon the exhibits by the police showing when and where the exhibits were taken into their possession. No objection to such tags was made at the time the exhibits were admitted. The information thereon was covered by oral evidence. No prejudicial error is shown.

Appellant questions in his Assignment of Error No. VIII, the admission in evidence over the objections of defendant, of the articles taken by the police from the wrecked automobile at the time of the arrest. A motion prior to trial to suppress such evidence was denied. The seizure of these articles by the police was incidental to the arrest and it was not error to receive the same in evidence. State v. Kleier, 69 Idaho 278, 206 P.2d 513; State v. Conner, 59 Idaho 695, 89 P.2d 197.

By Assignments of Error Nos. IX, X and XI, appellant urges that the court erred in refusing to give his Requested Instructions Nos. 1, 2 and 3. The instructions requested amplify and emphasize appellant's defense that by reason of intoxication he did not have and was incapable of forming the specific intent necessary to constitute burglary. The trial court gave the following instruction substantially in the words of Section 18-116 I.C.:

'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.'

In 53 Am.Jur., Trial, par. 542, p. 433, it is said:

'As a general rule where the law governing a case is expressed in a statute, the court in its charge not only may, but should, use the language of the statute, * * *'

In People v. Flores, 86 Cal.App. 235, 260 P. 822, the defendant requested an instruction similar to those requested by appellant in this case. The court gave an instruction almost verbatim with the instruction given here. It was held that the instruction given stated the law and fully covered all that was contained in the offered instruction and that the refusal of the offered instruction was not error.

In People v. Casagranda, 43 Cal.App.2d 818, 111 P.2d 672, the jury was instructed as to the extent to which intoxication is an excuse for crime in the words of California statute, identical with our statute, and as the jury was instructed in the instant case. The court, 111 P.2d on page 675, said:

'Since this instruction amply covered the matter, it is clear that appellant was not prejudiced by the court's refusal to give the requested instruction upon the same subject.'

The People v. Webb, 25 Cal.App.2d 130, 77 P.2d 231, the defendant was charged with burglary and his defense was that he was incapable of forming the necessary intent by reason of intoxication. The court approved the giving of the instruction on the effect of intoxication in the language of the statute.

In State v. Brooks, 49 Idaho 404, 288 P. 894, where the trial court used the language of the statute to define an offense, this court held that the law upon that subject was sufficiently covered and it was not error for the court to refuse to amplify thereon.

It is not error to refuse to give a requested instruction where the subject matter thereof is fully and fairly covered by the instructions given by the court. Foberg v. Harrison, 71 Idaho 11, 225 P.2d 69; State v. Baldwin, 69 Idaho 459, 208 P.2d 161; Landholm v. Webb, 69 Idaho 204, 205 P.2d 507; State v. Vanek,...