State v. Sayko

• Decision Date: 05 July 1923
• Citation: 216 P. 1036,37 Idaho 430
• Parties: STATE, Respondent, v. LOUIS SAYKO, Appellant
• Court: Idaho Supreme Court

216 P. 1036

37 Idaho 430

STATE, Respondent, v. LOUIS SAYKO, Appellant

Supreme Court of Idaho

July 5, 1923

CRIMINAL LAW-SPECIFICATIONS OF ERROR-INSTRUCTIONS-PROOF OF MARRIAGE.

1. A general specification of error to the effect that the evidence is insufficient to sustain the verdict, without reciting the particulars in which the alleged insufficiency consists, does not comply with the requirements of C. S sec. 9068, and under such general specifications of error the court will not review the evidence in the record to determine whether or not it is sufficient to sustain the verdict.

2. Instructions given by the court on its own motion, to which no exceptions were taken or preserved in a bill of exceptions, are not reviewable on appeal.

3. It is not error for the trial court in a criminal case to refuse to give to the jury instructions requested on behalf of the defendant, where the matter embraced in such requested instructions is fairly and fully covered by other instructions given by the court.

4. Instructions must be read, considered and applied as a whole.

5. The fact of marriage may be proved other than by the record of the ceremony.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Defendant was convicted of marrying the spouse of another. Affirmed.

Judgment affirmed.

A. S Dickinson, for Appellant.

The court misdirected the jury as shown by appellant's specifications of error Nos. 1, 2 and 3. (C. S., sec. 8285; Kerr's Cal. Pen. Code, sec. 284; Baker v. State, 86 Neb. 775, 126 N.W. 300, 27 L. R. A., N. S., 1097 and note.)

A. H Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

Upon an appeal from a final judgment of conviction, if the reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 Idaho 403, 210 P. 494.)

An exception must be saved to an instruction given by the court on its own motion. (C. S., sec. 9012; State v. Ford, 33 Idaho 689, 197 P. 558; State v. White, 33 Idaho 697, 197 P. 824.)

Instructions must be read as a whole. (State v. Curtis, 29 Idaho 724, 161 P. 578; State v. Nolan, 31 Idaho 71, 169 P. 295; State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Petrogalli, 34 Idaho 232, 200 P. 119.)

The failure of the court to give a requested instruction which may state the law correctly is not error when the matter is fully covered by other instructions given. (State v. Curtis, supra; State v. Petrogalli, supra.)

Marriage may be proved by reputation. (State v. Jeanoes, 36 Idaho 810, 213 P. 1017.)

BAUM, District Judge. McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

BAUM, District Judge.

--Louis Sayko, appellant, was on May 27, 1921, convicted of marrying the spouse of another. From the judgment rendered on the verdict he appeals.

The evidence in the cause shows that on December 10, 1905, at Jersey City, New Jersey, Harry L. McAuley and Josephine Bassuet intermarried, and that as a result thereof four children were born, three of whom are now living and residing with them; that in May, 1920, Harry L. McAuley came to Pocatello, Idaho, and shortly thereafter met appellant, and that during July, 1920, Josephine McAuley, accompanied by three children, arrived in Pocatello, Idaho, and was by Harry L. McAuley introduced to appellant as his, McAuley's, wife; that McAuley and his family, upon their arrival in Pocatello, resided at the Home Hotel for several months, during a greater portion of which time the appellant resided there likewise; that McAuley by profession was an engineer for the O. S. L. Railroad Company; that the McAuleys left the Home Hotel and took a home of their own consisting of three rooms, and for five or six weeks appellant resided with the McAuleys in such home, the appellant occupying one room as sleeping quarters, and McAuley and wife occupying one room as sleeping quarters, and that the appellant knew of the occupancy of the room as sleeping quarters by McAuley and wife; that certain trouble arose between the McAuleys, and there was some discussion between them about a divorce, but that no divorce was procured; that thereafter, and in March, 1921, owing to depressing financial conditions, McAuley was cut off the engineer board, and went to Idaho Falls to take a hostler's job with the same company; that McAuley procured a pass for his wife and children, and on March 26, 1921, Josephine McAuley and three children left Pocatello, Idaho, by train for Idaho Falls, Idaho; that appellant accompanied them as far as Blackfoot, Idaho, where appellant and Josephine McAuley left the train and presented themselves to the proper official of Bingham county, Idaho, and procured a marriage license, and were immediately married by the probate judge of said county; that appellant and Josephine McAuley then returned to Pocatello that evening and registered as man and wife at the Pacific Hotel, and on the following morning the appellant was arrested.

The several assignments of errors assigned by appellant may be summarized as follows:

1. Error by the court in giving instruction No. 14, in that said instruction did not contain the law applicable to the facts of the case, and is contradictory to instructions No. 11, and No. 12, and in refusing to give defendant's requested instructions No. 1 and No. 2, and in modifying and giving special requested instruction No. 3, in that the instruction as requested correctly stated the law applicable to the case.

2. That the judgment of conviction is contrary to the law, and the verdict is unsupported by the evidence.

The court on its own motion gave instruction No. 14, to which no exception was taken or preserved in a bill of exceptions, and settled as required by law; therefore, no error can be predicated thereon, and the court will not review the same on appeal. (C. S., sec. 9012; State v. Ford, 33 Idaho 689, 197 P. 558; State v. White, 33 Idaho 697, 197 P. 824.)

Appellant contends that the evidence is insufficient to sustain the verdict but fails in his brief to state in what particular the same is insufficient. C. S., sec. 9068, provides: " . . . . Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial; providing, a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court."

The foregoing statute has been construed by this court in the following decisions: State v. Snook, 34 Idaho 403, 201 P. 494; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Poulos, 36 Idaho 453, 212 P. 120.

In view of appellant's failure to specify in what particular the evidence is insufficient to support the verdict, the court will not discuss the evidence to any greater extent than is necessary to intelligently pass upon the errors of law alleged to have been committed by the court in giving certain instructions and refusing to give certain requested instructions.

Instructions given by the court to...