State v. Shuff

• Citation: 72 P. 664,9 Idaho 115
• Parties: STATE v. SHUFF
• Decision Date: 28 May 1903
• Court: United States State Supreme Court of Idaho

72 P. 664

9 Idaho 115

STATE v. SHUFF

Supreme Court of Idaho

May 28, 1903

INDICTMENT FOR MURDER-SUFFICIENCY OF.-An indictment that charges that the assault was unlawfully, feloniously, willfully deliberately, premeditatedly and of his malice aforethought made upon deceased, is sufficient under the statute.

CROSS-EXAMINATION-ADMISSIBILITY OF EVIDENCE.-When the prosecution shows that the killing was done with a certain gun, the defense may show on cross-examination any fact that will tend to explain why defendant had the gun at the time of the homicide.

COURT COMMENTING ON EVIDENCE BEFORE JURY.-It is error for the court to use any language in the hearing of the jury that can be construed into a comment on the weight of evidence.

PLEA OF INSANITY-NONEXPERT WITNESSES-TO WHAT MAY TESTIFY-NONEXPERT WITNESSES, WHEN THEY MAY TESTIFY AND GIVE AN OPINION.-Where it is shown that a witness has had an acquaintance of six years, or even less, with the party said to be insane, and it is also shown that he had observed peculiarities, it is error to reject such evidence. Where the plea is self-defense coupled with insanity, any witness who has known the defendant sufficiently to give an opinion as to his sanity or insanity may give such opinion; the jury are to determine whether such opinion has any foundation or not.

INSTRUCTIONS-AS TO INTENT AND PREMEDITATION.-It is not error for the court to instruct the jury that there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and if such is the case the killing is murder of the first degree, etc.

SAME-AS TO PREPONDERANCE OF EVIDENCE.-It is error to give an instruction "that to establish a defense on the ground of insanity, it must be clearly proved by the defendant by a preponderance of evidence given upon the trial."

SAME-AS TO REASONABLE DOUBT.-It is error for the court to instruct the jury "That in all other matters except that of insanity the defendant is entitled to every reasonable doubt."

SAME-AS TO STATEMENTS BY COUNSEL.-It is error for the court to instruct the jury that statements made by counsel for defendant in presence of the jury in the conduct of the trial, in so far as they are admissions against the defendant, may be considered by them.

(Syllabus by the court.)

APPEAL from District Court of Shoshone County. Honorable A. E Mayhew, Judge.

Defendant was convicted of the crime of murder in the first degree and appealed from order overruling motion for new trial, and judgment. Reversed.

Reversed and remanded.

Charles E. Miller, for Appellant.

At the time of this homicide the deceased and the appellant were both in the employ of the Standard Mining Company, a corporation operating in Shoshone county, the former as time-keeper and the latter as a miner working underground. Part of the duties of the deceased, who had charge of the office of the mine at Mace, was to deliver checks to the various employees, for the previous month's work, on pay-day, the checks being drawn at the main office in Wallace. Pay-day for the month of October, 1901, fell on November 9th following, and when appellant signed the pay-roll, for twenty-four shifts, entitling him to $ 84, the deceased handed him a check for $ 5.25. Never dreaming that this was other than a mistake, the appellant so informed the deceased and returned him the check, by whom he was told to return after the rush, when any error would be rectified. As this was on Saturday night, he did not return until Monday morning. At that time he presented himself to the deceased at the office, inquiring whether he had found the mistake, upon which the deceased kept on writing at his desk for some time, and then tendered a paper over his shoulder, with the remark that there was a statement of the appellant's time. It then dawned on the appellant's mind that $ 78.75 of his pay had been held up on the demand of creditors although he had given no orders against same. From infancy until nine or ten years old he had been afflicted with chronic meningitis, a disease of the brain and spinal cord, leaving him with an impaired mind, peculiarly susceptible to derangement under excitable conditions, the initiative of which was usually the bursting of a blood vessel on the brain. As he explained it on the trial, the moment he was informed that his pay had been held up there was a shock in his head. He had a rifle with him which he had brought, expecting to complete a prospective trade for a revolver, and as the word "statement" was used, he sprang from his chair and screamed "statement." At this demonstration the deceased reached toward a drawer in his desk, when appellant, supposing he was reaching for a weapon, sprang from his chair, raised the gun and told him to stop. The deceased then arose from his desk, moved toward a rear room, feeling above his head along the wall with his hands. The appellant, believing the office to be wired with destructive apparatus of some kind, after calling upon the deceased to stop, that he did not want to harm him, to save his own life, as he believed, fired the fatal shot, the whole affair occuring in a few minutes. The defense was insanity and self-defense. The jury found a verdict of murder in the first degree. Judgment of death by hanging was pronounced. From this judgment, and an order overruling a motion for a new trial this appeal is taken. The court erred in remarking in the presence of the jury, while Bruce Shuff, a witness for appellant, was giving his testimony, as follows: "Court: Well, I don't know what to think of it; I never in my life heard this line of testimony; now because a man should fall down, that is absolutely not the act of an insane man that I ever heard of." The court here undertook to comment on the weight of evidence, and in a manner prejudicial to the appellant, and such conduct has been universally held to be reversible error. (People v. Bonds, 1 Nev. 33; State v. Stowell, 60 Iowa 535, 15 N.W. 417.)

Attorney General John A. Bagley, for the State.

The appellant's statement of facts is not according to the evidence; his testimony is taken from the testimony of the defendant, although he is contradicted on several material points by respectable witnesses. The witness Lippert gives us the facts in the case: "I saw the defendant at about 10 o'clock of the morning of that day, November 11, 1901. I first saw him when I was at the boiler-house and he was walking toward the Standard mine office with a rifle in his hands. The office is about one hundred yards above the boiler-house, at Mace, Shoshone county, Idaho. The defendant went toward the office, stopped in front of the office on the railroad track. As I came into the office the defendant was in there, standing with his rifle in his hand, and Klein was sitting in front of the desk. Klein and I each said 'Good morning,' and I went behind the stove, and sat down in a chair, kind of back in the west corner of the office. In a few minutes Mr. Klein looked around and said, 'You have worked twenty-four days,' and the defendant says, 'Yes; that is correct.' Klein then went and wrote a statement, or went on writing, and in a few minutes he passed that over his shoulder and says, 'Here.' Defendant says, 'What's that?' Klein says, 'That's a statement of your time that you have worked.' Defendant said then, 'What in hell and God damnation can I do with that? I want you to make me out a check in full for my money; if you don't I will kill you right here,' and raised the gun on him. Klein then says, 'This is all I can give you; I can't give you nothing else.' By that I looked over my shoulder a little, just at the defendant and he turned the gun on me and says, 'You git out of here; git, or I will kill you first ' I got up, of course, from the chair and walked across in front of the gun, between him and Mr. Klein, opened the door and as I opened the door I heard Klein turn in his chair, jump up and start to the hallway back of the office, and before I had the door shut behind me the shot came and I shut the door; then I heard Klein make a loud scream, and I went outside on the porch of the office, just about two or three steps. When the defendant came outside opposite me and he throwed in another cartridge in his rifle and he raised the gun to me and said, 'If you say one damn word I will kill you yet right here.' I says to him, 'I never said nothing to you, did I?' And he says, 'No, nor you don't want to say nothing.' Then he walked on down the railroad; that's all I saw there."

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

OPINION

STOCKSLAGER, J.

This is an appeal from the district court of Shoshone county. On the twelfth day of March, 1902, the grand jury of that county returned an indictment against the defendant charging him with the murder of one Eugene Klein.

The indictment charges that Chalmer E. Shuff on the eleventh day of November, A. D. 1901, and before the finding of this indictment, at the county of Shoshone, and state of Idaho did unlawfully, willfully, deliberately premeditatedly and of his malice aforethought make an assault on one Eugene Klein, with a certain gun, commonly called a rifle, which then and there was loaded with gunpowder and one leaden bullet, and by him, the said Chalmer E. Shuff, had and held in both hands, he, the said Chalmer E. Shuff, did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought shoot off and discharge at and upon the said Eugene Klein, thereby and by thus striking the...