State v. Schieler

• Decision Date: 20 April 1894
• Parties: STATE v. SCHIELER
• Court: Idaho Supreme Court

37 P. 272

4 Idaho 120

STATE v. SCHIELER

Supreme Court of Idaho

April 20, 1894

DEPUTY SHERIFF AS WITNESS-EXCUSED AS GRAND JUROR.-The record shows that the deputy sheriff had served process in the case on trial, and was also a witness in the case. Held, it was within the discretion and proper for the court to excuse him from serving as a grand juror while such case was being considered by them.

PRELIMINARY EXAMINATION.-Under our statute a preliminary examination, as a basis upon which to find an indictment, is not necessary.

INDICTMENT-DEPOSITIONS READ TO GRAND JURY.-Where depositions are read before the grand jury, and the same parties who made them personally appear and testify in the case, and the record does not show that the indictment was found, or predicated upon such depositions, held, not to be reversible error.

DISCRETION OF TRIAL COURT-WIFE OF DECEASED ALLOWED TO BE PRESENT IN COURT.-It is entirely within the discretion of the trial court to permit the wife of deceased to remain in the courtroom during the trial, although objected to by defendant.

PRACTICE-MOTIVE FOR HOMICIDE.-It is not incumbent upon the prosecution to show in the first instance any motive for the homicide further than the same was developed by a proof of the circumstances of the killing. The correct practice is for the defense to show the absence of motive, to be rebutted by proof on the part of the prosecution.

INSTRUCTIONS-EXCEPTIONS.-Where the law of the case has been correctly given by the court to the jury, and, in addition thereto, gives an erroneous instruction, which is not excepted to until after the verdict is returned, held, that the exception comes too late, and such error is not sufficient to warrant a reversal.

SELF-DEFENSE.-W was unarmed, peaceably and quietly passing along a road or trail, which ran through the premises of another, and upon which he had been forbidden to travel by S., who was the servant of the owner. S., while completely concealed, fired at and killed W., who was thirty feet away, and who was making no hostile demonstration, or even approaching the house in which S. was concealed. Held, that a plea of self-defense could not be predicated upon such a state of facts, and the court could have properly declined to instruct upon the law of self-defense.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Affirmed.

James W. Reid and James W. Poe, for Appellant.

The appellant was entitled to have the charge against him investigated by a legally constituted grand jury. By excluding the juror C. F. Smith simply on the ground that he was a deputy sheriff denied the appellant this legal right. Only the statutory grounds could be urged for his exclusion. The cause assigned is not one of them. (Rev. Stats., sec 7609; People v. Colmere, 23 Cal. 631; People v Turner, 39 Cal. 370; People v. Geiger, 49 Cal. 643; Levy v. Wilson, 69 Cal. 105, 10 P. 272.) In all cases which must be afterward investigated by the grand jury, the examination must be taken and cannot be waived or unreasonably delayed by either party, and the testimony must be reduced to writing, as a deposition, by the magistrate, or under his direction, and authenticated. Appellant was refused such an examination, was denied counsel, was confronted by no witnesses, and committed to jail without authority of law. (U. S. Const., arts. 5, 6; Idaho Const., art. 1, sec. 13; Rev. Stats., secs. 7565-7589; Ex parte Walsh, 39 Cal. 705; Kalloch v. Superior Court, 56 Cal. 229; People v. Smith, 59 Cal. 365; People v. Hope, 62 Cal. 293; People v. Elliott, 80 Cal. 299, 22 P. 207; People v. Barnes, 66 Cal. 594, 6 P. 698.) The indictment is invalid and void because in the investigation of the charge against the appellant the grand jury received as evidence the depositions of Crosby Brewer, James A. Long, and Frankie M. Wilson taken at a coroner's inquest, before the appellant was arrested, and neither in form or substance conforming to the requirements of section 7576 of the Revised Statutes of Idaho; and for the further reason that said grand jury received as evidence the ex parte complaint made by H. W. Cone, before the justice of the peace for the arrest of appellant. (Idaho Rev. Stats., secs. 7634, 7576; 1 Bishop's Criminal Procedure, sec. 1194; People v. Mosine, 54 Cal. 575; Williams v. Chadwich, 6 Cal. 550, 65 Am. Dec. 528; People v. Chong Ah Chune, 57 Cal. 567; People v. Mitchell, 64 Cal. 85, 27 P. 862.) As the appellant never had any preliminary examination and the indictment was found on illegal evidence, the court acquired no jurisdiction. (People v. Riley, 65 Cal. 107, 3 P. 413; People v. Wheeler, 65 Cal. 77, 2 P. 892; Ex parte McConnell, 83 Cal. 558, 23 P. 1119; People v. Thompson, 84 Cal. 598, 24 P. 384; People v. Bawden, 90 Cal. 195, 27 P. 201; State v. Sorenson, 84 Wis. 27, 53 N.W. 1124.) The court erred in overruling the appellant's motion in arrest of judgment. The court never acquired any jurisdiction in the action; the judgment should be arrested, and the respondent discharged. (Rev. Stats., sec. 7750; Ex parte Hartman, 44 Cal. 34.) The court erred in refusing to require the district attorney to call the witness James A. Long. This witness knew more of the res gestae than any other witness. He was not related to any of the parties and in no way interested. He had been called before the grand jury and his ex parte deposition taken at the coroner's inquest read to the grand jury. The prosecution should have been required to call him. (People v. Robinson, 6 Utah, 101, 21 P. 403; People v. Robertson, 67 Cal. 646, 8 P. 600; Weller v. People, 30 Mich. 16; Gibson v. State, 23 Tex. App. 414, 5 S.W. 314.) Any testimony calculated to illustrate the motives of the appellant and showing that he acted under a real and honest apprehension of danger was relevant and material. (Rippy v. State, 1 Crim. Def. 345; Williams v. State, 1 Crim. Def. 349.) In the sixth instruction the jury are instructed that they can render one of four verdicts. This, we maintain, is error. Only one of two verdicts could be returned--guilty as charged, or not guilty. (State v. Froin, 82 Ind. 532; Hodge v. State, 85 Ind. 561; Bishop's Statutory Crimes, secs. 501, 512; 10 Am. & Eng. Ency., of Law, 573; Whitcher v. State, 2 Wash. 286, 26 P. 268; Rev. Stats., sec. 6560, 6561, 6562, 6565.)

George M. Parsons, Attorney General, for the State.

C. F Smith was a qualified and acting deputy sheriff of the county of Idaho before and at the time of the trial, had served process in the preliminary proceedings in the case, and, upon examination in open court stated that it was intended that he should be a witness in the case, was challenged by the prosecution, and the challenge allowed by the court. The decision was final and is not subject to review. (Pen. Code, sec. 7940; People v. Murphy, 45 Cal. 157-142; People v. Colson, 49 Cal. 679; People v. Atherton, 51 Cal. 495, 496; People v. Cochran, 61 Cal. 548.) A grand jury may indict if no preliminary examination was had. (Pen. Code, sec. 7630.) If the defendant was not given a preliminary examination, and he desired it, the examination might have been compelled by mandamus. (People v. Barnes, 66 Cal. 594, 6 P. 698.) It required no examining court to enable the grand jury to indict. (Osborn v. Commonwealth, 14 Ky. Law Rep. 246, 20 S.W. 223, 234; Idaho Const., art 1, sec. 8.) "The grand jury must inquire into all public offenses committed or triable within the county." (Pen. Code, secs. 7630-7638; 1 Bishop's Criminal Procedure, sec. 744.) "The objection herein does not apply in cases of indictment." (People v. Goldenson, 76 Cal. 328-345, 19 P. 161.) The motion is not based on any of the statutory grounds. (Pen. Code, sec. 7730.) The grounds enumerated are the only grounds upon which an indictment may be set aside on motion. (People v. Butler, 1 Idaho 231; People v. Southwell, 46 Cal. 141; People v. Schmidt, 64 Cal. 260, 30 P. 814.) The statute governs in prescribing the manner, form and substance of indictment, and the procedure thereunder, through the whole course of a criminal investigation. People v. Cronin, 34 Cal. 191.) "An objection to the formation of a grand jury cannot be presented in the court below on a motion to set aside the indictment." (People v. Hunter, 54 Cal. 65.) The indictment was found, indorsed and presented as prescribed by sections 7665, 7668, 7669 of the Penal Code. (People v. Colby, 54 Cal. 37; People v. Hunter, 54 Cal. 65; People v. Geiger, 49 Cal. 51.) The complaint filed in a magistrate's court is a deposition. The grand jury properly received and examined the depositions taken before the coroner's jury. (People v. Stuart, 4 Cal. 218, 219; Charge of Justice Field, 2 Saw. 670, F. Cas. No. 18,255; Pen. Code, sec. 7634,) A deposition taken before a coroner's jury is legal evidence. (1 Bishop's Criminal Procedure, sec. 524; Pen. Code, sec. 8382.) The filing of the indictment gave the court jurisdiction. (Washburn v. People, 10 Mich. 383; People v. Johnson, 71 Cal. 392, 12 P. 261; Ex parte McConnell, 83 Cal. 558, 23 P. 1119; People v. Bawden, 90 Cal. 195, 27 P. 204.) Exclusion of witnesses from the courtroom rests in the discretion of the trial court. (1 Greenleaf on Evidence, sec. 432, and notes; People v. Garnett, 29 Cal. 622; People v. Hong Ah Duck, 61 Cal. 387-393; People v. Sam Lung, 70 Cal. 515, 11 P. 673.) The prosecution are not required to call all witnesses whose names are indorsed on the indictment. (People v. Robinson, 6 Utah, 101, 21 P. 403; People v. Robertson, 67 Cal. 651, 8 P. 600.) Objections to the instructions given by the court of its own motion, not excepted to at the time they were given, cannot be heard on appeal. (People v. Biles, 2 Idaho 114, 6 P. 120; Cook v. Territory, 3 Wyo, 110-118, 4 P. 887; People...