State v. Seymour

• Decision Date: 05 March 1901
• Parties: STATE v. SEYMOUR
• Court: Idaho Supreme Court

63 P. 1036

7 Idaho 548

STATE v. SEYMOUR

Supreme Court of Idaho

March 5, 1901

GRAND LARCENY-JUDGMENT-REVERSAL-EVIDENCE.-When, on an appeal, the judgment is reversed on the ground that the evidence is insufficient to justify the verdict, the trial court, on the motion of the county attorney, should dismiss the case when it is shown that the state has no other or further evidence than that adduced on the first trial.

SECOND TRIAL-ADDITIONAL EVIDENCE.-Held, in this case that the state did not produce, on the second trial, further or additional material evidence than that produced on the first trial.

REBUTTAL.-Under the facts of this case, it was error to refuse to allow the defendant to introduce, in rebuttal, evidence contradicting certain statements sworn to by a witness on behalf of the prosecution.

JURY-INSTRUCTION TO.-When a judgment has been reversed on the ground that the evidence is insufficient to sustain the verdict, and the case is remanded, and a retrial is had, if no further or additional evidence is produced on the trial of the defendant's guilt, the court ought to instruct the jury to return a verdict of acquittal.

EXCUSING COUNTY ATTORNEY FROM TESTIFYING.-It is error to excuse the county attorney from testifying on behalf of the defendant simply because he does not wish to do so.

DISCHARGE OF DEFENDANT.-When it is made to appear that the state cannot produce additional material evidence of the guilt of one tried for a crime, and this court reverses a judgment of conviction, on the ground of the insufficiency of the evidence to support the verdict, this court will order a discharge of the prisoner.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Judgment reversed, and the appellant, Emery H. Seymour discharged from custody.

Caleb Jones and Hawley & Puckett, for Appellant.

There is absolutely no evidence to sustain the verdict, and it must be presumed to have been rendered under the influence of passion and prejudice, and should be set aside. (State v Nesbit, 4 Idaho 548, 43 P. 66; State v. Crump, 5 Idaho 166, 47 P. 814; State v. Mason, 4 Idaho 543 43 P. 63.) Section 7057 of our Penal Code is in effect section 496 of the California code. The supreme court of California holds that receiving stolen property is a distinct and specific offense under that section, and that although a defendant may receive stolen property and assist in disposing of it, for the benefit of himself and the real thief, he cannot be convicted either of larceny or as an accessary after the fact, but must be tried for the offense of receiving the stolen property only. (People v. Stakem, 40 Cal. 599; People v. Fagan, 98 Cal. 230, 33 P. 60; People v. Maxwell, 24 Cal. 14; People v. Ribolsi, 89 Cal. 492, 26 P. 1082; People v. Avila, 43 Cal. 196.) Since the former decision by this court in this cause heretofore cited, this court has been called upon to pass on a similar case, and has, we urge, affirmed every contention we make herein. (State v. Marquardsen, ante, p. 352, 62 P. 1034.) The fourth error complained of is the refusal of the court to compel Judge Cochran, county attorney, to testify as a witness on sur-rebuttal, when called by defendant. We are entitled, if we so desire, to call upon the judge of the court himself to give evidence in this regard. Section 5956 of the Revised Statutes expressly provides that "all persons except those specified in the two succeeding sections, who are in possession of their faculties, may be witnesses."

Frank Martin, Attorney General, for the State.

The jury is the judge of the credibility of the witnesses, and the weight to be given to the evidence. A careful examination of the testimony in this case, we think, will convince the court that the jury arrived at the verdict on conflicting evidence, and on well-settled rules of this court, such verdict will not be disturbed on appeal. Below we cite a few of the many decisions of this court establishing this principle. (Simpson v. Remington, 6 Idaho 681, 59 P. 360; Bonner v. Powell, ante, p. 104, 61 P. 138; Sears v. Flodstrom, 5 Idaho 314, 49 P. 11; Murphy v. Montandon, 4 Idaho 320, 39 P. 195; United States v. Camp, 2 Idaho 231, 10 P. 226; Monarch G. & S. M. Co. v. McLaughlin, 1 Idaho 618; Mootry v. Hawley, 1 Idaho 543; People v. Lewis, 124 Cal. 551, 57 P. 470; People v. Uh Dong, 106 Cal. 83, 39 P. 12; State v. Haverly, 4 Idaho 484, 42 P. 506; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177.) A substantial conflict is in no way dependent upon the preponderance of the testimony, and even if the evidence apparently preponderates against the verdict, it would not justify this court in overturning it. (Smith v. Thomas, 121 Cal. 533, 54 P. 71; Meyer v. G. W. Ins. Co., 104 Cal. 381, 38 P. 82; Livingston v. Packing Co., 103 Cal. 258, 37 P. 149; Bradford v. Woodworth, 108 Cal. 684, 41 P. 797.) It is well established both by our statutes and a long line of decisions of this court that a judgment will not be reversed by this court for an error committed at the trial, unless some substantial right of the defendant was injured thereby. (Rev. Stats., secs. 7687, 8236; In re Marshall, 6 Idaho 516, 56 P. 470; State v. Reed, 3 Idaho 754, 35 P. 706; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Larkins, 5 Idaho 200, 47 P. 945.)

SULLIVAN, J. Quarles, C. J., concurs. STOCKSLAGER, J., Dissenting.

OPINION

SULLIVAN, J.

The defendant was convicted of the crime of grand larceny, and from the judgment of conviction and order denying a new trial appealed to this court at the May term, 1900. (See 61 P 1033.) The court there held that the evidence was insufficient to establish the guilt of the defendant, and the cause was remanded to the lower court. The cause was again brought on for trial in the district court at the November term, 1900. The county attorney thereupon made a motion to dismiss the case, which motion was in writing, and is as follows: "Henry D. Wilding was duly called and sworn as a witness on the part of the prosecution, and testified as follows: Counsel for defendant at this time objected to the introduction of any testimony in this case, for the reason that the prosecuting attorney had theretofore asked the privilege and made a motion to dismiss this case for the reasons stated in said motion, which are as follows: 'In the District Court of Fremont County, State of Idaho. State of Idaho Plaintiff, v. Emery H. Seymour, Defendant. Now comes J. E. Cochran, county attorney of Fremont county, and asks that the within case be dismissed for the following reasons: 1. Because, upon the evidence submitted upon the former trial, the supreme court of the state has held insufficient to sustain a verdict of guilty, and has remanded it for trial which means, impliedly, if we have or can supply more competent evidence; otherwise, of course, they mean that he shall be discharged. This prosecution, being fraught with great interest to the people of the county, has been very industriously and vigilantly prepared and prosecuted by all the officers of this and the former county administration whose duty it was so to do, and every particle of legitimate evidence that any of us could procure we did, and it was well and forcibly presented at the former trial, and consisted of the testimony of witnesses whom the jury knew, and who comprise many of our best and most highly respected citizens, including our ex-sheriff and our present sheriff, and leading representative farmers of the county. From these witnesses the prosecution has not an additional fact that can be presented, and nothing from any witnesses of their standing or integrity. The only further testimony will be such as Edward H. Trafton, his wife, and one Ben Williams may swear to, and what that will be I think no man can know until it proceeds from the mouth on the witness stand, and from my knowledge of them would not believe them under oath; and I here apologize to the court for asking their indorsement on the information, knowing them as I do now, their character and reputation, but it was done by request, and without knowledge of what their testimony will be, and without stopping then, as I should have done, and considered fully the matter. At the former trial of this case Trafton was here as a witness for the defendant, and, further, officiated in the capacity of attempting to get witnesses for the state to withhold testimony, and this court, on hearing of that action, ordered me to investigate the facts, which I did, and prosecuted him for that offense, and convicted him of it in the probate court. Since that time one of the Seymour boys was a witness, and an unwilling one, on the part of the state against this same Trafton on a charge of petit larceny; and, when he was convicted for that offense, he, in my presence and others, stated that he would get even for that, if not on him, he would on Emery Seymour, this defendant; and to this day he is under bonds to appear for preliminary examination on a charge of grand larceny, and the records of the criminal courts of this county abound in cases of the state of Idaho against Edward H. Trafton, and his reputation is such that he cannot and ought not to be believed. Of Mrs. Trafton, I have but to say that she is his wife, and has always been a witness when he was, and from their testimony I conclude that they are as man and wife are sometimes described, "as the twain being one flesh." Ben Williams I understand to be a fugitive from justice, and to escape prosecution for grand larceny, and not a stranger to the criminal dockets of this county, and I am informed is not and will not come into the jurisdiction of this court. Therefore, in view of the decision of the supreme court of this state, regardless of individual opinion as to its...