State v. Silva

• Citation: 21 Idaho 247,120 P. 835
• Parties: STATE, Respondent, v. MANUEL SILVA, Appellant
• Decision Date: 30 January 1912
• Court: United States State Supreme Court of Idaho

120 P. 835

21 Idaho 247

STATE, Respondent, v. MANUEL SILVA, Appellant

Supreme Court of Idaho

January 30, 1912

JURY-CHALLENGE TO PANEL-EXEMPTION FROM JURY SERVICE-NOT CAUSE OF CHALLENGE-PERSONAL PRIVILEGE-SUFFICIENCY OF EVIDENCE-EXCLUSION OF EVIDENCE-INFORMATION-NAMES OF WITNESSES INDORSED ON-NOT NECESSARY IN REBUTTAL-NEWLY DISCOVERED EVIDENCE-SUBSTANTIAL CONFLICT IN EVIDENCE.

(Syllabus by the court.)

1. Under the provisions of subd. 4 of sec. 3943, Rev. Codes, a minister of the gospel or a priest of any denomination is exempt from jury service.

2. Sec 3946, Rev. Codes, provides the method by which a person exempt from jury service may avail himself of such exemption.

3. Sec 7835, Rev. Codes, provides that exemption from service on a jury is not a cause of challenge but the privilege of the person exempted.

4. Sec 7819, Rev. Codes, provides the grounds of challenge to the panel, and the fact that a person may be exempt from jury service but is drawn for such service is not a cause of challenge to the panel.

5. The evidence held sufficient to sustain the verdict.

6. Where it is sought to show that the deputy sheriff searched the premises of the defendant four days after the alleged unlawful sale of intoxicating liquors and found no intoxicating liquors on the premises, it is not error for the court to exclude such evidence, as such evidence is immaterial and irrelevant.

7. Sec 7656, Rev. Codes, which provides, among other things, that the prosecuting attorney shall subscribe his name to the information and indorse thereon the names of the witnesses known to him at the time of filing the same, and at such time before the trial of any case, as the court may by rule or otherwise prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him, does not require the indorsement of the names of witnesses on the information that are called for the purpose of rebutting the testimony given on behalf of the defendant.

8. Under the provisions of said section, the names of all witnesses that are known to the prosecuting attorney before the trial begins should be indorsed on the information, and if other witnesses, whose names are not indorsed on the information, are discovered during the trial, the court may require the prosecuting attorney to show that he did not know of such witnesses prior to the commencement of the trial.

9. Under the provisions of said section, it is not necessary to indorse on the information the names of witnesses who are called in rebuttal of evidence produced by the defendant, but such witnesses should not be permitted to give testimony that is not clearly in rebuttal.

10. If the state discovers during the trial an important witness on behalf of the state, upon proper showing to the trial court his name may be indorsed upon the information, but the court on application of the defendant should give him proper time to secure witnesses in rebuttal upon a proper showing therefor.

11. Rebutting evidence is that which is given to explain, repel, counteract or disprove testimony or facts given in evidence by the adverse party.

12. Where the defendant had testified that he had received but one shipment of whisky by railroad, it was not error for the court to permit the state to show that he had received other shipments if it could do so.

13. The usual freight or way-bill of a railroad company may be introduced in evidence to show that the defendants have received shipments of goods over a railway.

14. Held, that the newly discovered evidence was not sufficient to warrant the granting of a new trial.

15. The defendant undertook to prove an alibi, and there is a substantial conflict in the evidence upon that question, and under the provisions of sec. 4824, Rev. Codes, where there is substantial evidence to support a verdict, it will not be set aside on appeal.

16. Errors and mistakes in any pleading or proceeding do not render it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.

17. If the evidence of the defendant's guilt is such as ordinarily produces conviction in an unprejudiced mind beyond a reasonable doubt, and the result would not have been different had the erroneous instruction been omitted, the case will not be reversed because of such erroneous instruction.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

The defendant was convicted of selling intoxicating liquors in a prohibition district contrary to law, and sentenced to imprisonment and also to pay a fine. Judgment affirmed.

Affirmed.

Harlan D. Heist, for Appellant.

The court erred in permitting M. T. Whitenack, a witness for the state in rebuttal, to testify in the case, for the reason that his name did not appear at any time upon the information and was not placed thereon during the trial or thereafter. (State v. Crea, 10 Idaho 88, 76 P. 1013; State v. McGann, 8 Idaho 40, 66 P. 823; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Wilmbusse, 8 Idaho 608, 70 P. 849; Ex parte Schmidt, 71 Cal. 212, 12 P. 55.)

"A bill of lading must be proved to have been signed by the duly authorized agent of the carrier to be admissible." (Pendery v. Crescent Mut. Ins. Co., 21 La. Ann. 410; 1 Ency. of Ev. 295; Wood v. Roach, 2 Dall. (Pa.) 180, 1 Am. Dec. 276, 1 L.Ed. 340.)

D. C. McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants, for Respondent.

If defendant intended to prove that liquor was not found on his premises four days after the offense is alleged to have been committed, there is no legal theory upon which the relevancy of such evidence could have been established. (Abbott's Trial Brief, sec. 11, and cases cited; Commonwealth v. Page, 72 Mass. (6 Gray) 361; 23 Cyc. 250, sec. 3; Boulden v. State, 102 Ala. 78, 15 So. 341.)

Witnesses who testify in rebuttal need not have their names indorsed on the information. (Fager v. State, 49 Neb. 439, 68 N.W. 611; Rauschkolb v. State, 46 Neb. 658, 65 N.W. 776; State v. Huckins, 23 Neb. 311, 36 N.W. 527; Kastner v. State, 58 Neb. 768, 79 N.W. 713; McVey v. State, 57 Neb. 477, 77 N.W. 1111; Kelly v. State, 51 Neb. 572, 71 N.W. 299.) The Idaho statute was adopted from Nebraska.

The books of an express company are admissible to show shipments of intoxicating liquor, and we are equally positive that entries made by the agent on a loose sheet, which is one of the steps in his method in bookkeeping, are equally admissible. (State v. Kriechbaum, 81 Iowa 633, 47 N.W. 872; Commonwealth v. Blood, 11 Gray (Mass.), 74.)

SULLIVAN, J. Stewart, C. J., AILSHIE, J., Concurring.

OPINION

SULLIVAN, J.

The defendant was convicted of an unlawful sale of intoxicating liquors, contrary to what is known as the "Local Option Law" (Sess. Laws 1909, p. 9), and sentenced to imprisonment in the county jail for a term of five months and to pay a fine of $ 500 and costs of prosecution. The appeal is from the judgment.

The first error assigned is to the effect that the court erred in overruling appellant's challenge to the jury.

Before the jury was called, defendant interposed a challenge to the panel, based on the ground that there was a material departure from the form prescribed by law in respect to the drawing and returning of said jury, in that the county commissioners, in selecting the names of the men to act as jurors for the ensuing year, selected a person exempt from service; that such person was a minister of the gospel. Subd. 4 of sec. 3943 of the Rev. Codes provides that a person is exempt from liability to act as a juror if he be a minister of the gospel or a priest of any denomination. Sec. 3946 provides the method by which one may avail himself of such exemption, to wit, that he must make and transmit an affidavit to the clerk of the court, stating his office, occupation or employment showing his exemption, and this affidavit must be filed with the clerk. Sec. 7835, Rev. Codes, provides that exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. The provisions of that section fully meet and answer this assignment of error. Further, sec. 7819 prescribes the only ground for challenge to the panel, and the disqualification of a juror is not given in said section as a ground for such challenge. The challenge interposed by counsel for the defendant was to the panel, and it was such a challenge to the panel as is not known to the statute. Simply because a person is exempt from jury service, if he possess the qualifications of a juror as provided by statute, is no ground for challenge to the panel nor to the individual juror.

2. The second assignment of error is that the court erred in overruling defendant's motion to instruct the jury that the defendant was not guilty on the ground that the evidence was insufficient from which to warrant a verdict of conviction. There is nothing in that contention whatever. While there is a direct conflict in the evidence, there is the positive evidence of two witnesses who purchased the intoxicating liquor from the defendant and paid him for it. There is a substantial conflict in the evidence, and the jury found, after hearing the witnesses testify and observing their demeanor on the stand, against the defendant, and the evidence is amply sufficient to sustain the verdict; therefore the court did not err in refusing to grant said motion.

3. The third error assigned is the refusal of the court to permit the deputy sheriff to testify relative to the results of his search of the premises of the defendant. It appears that the deputy sheriff searched the premises of the defendant four days after the alleged crime was...