State v. Spencer

• Decision Date: 24 June 1953
• Docket Number: No. 7872,7872
• Citation: 258 P.2d 1147,74 Idaho 173
• Parties: STATE v. SPENCER.
• Court: Idaho Supreme Court

Page 1147

258 P.2d 1147

74 Idaho 173

STATE v. SPENCER.

No. 7872.

Supreme Court of Idaho.

June 24, 1953.

Swayne & McNichols, Orofino, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Frank F. Kimble, Pros. Atty., Orofino, for respondent.

PORTER, Chief Justice.

On October 14, 1951, in Clearwater County, appellant shot and killed one Robert B. Kinzer. He was thereafter informed against for the crime of murder in the second degree. At the trial of the cause the jury brought in a verdict of guilty. Judgment of conviction was entered and a motion for new trial denied. Appellant appeals to this court from the judgment and from the order denying his motion for new trial.

Appellant is about 60 years of age. Since the year 1934 he has lived with his wife on a small ranch, having three or four acres of cleared land, located on Whiskey Creek about 10 miles from Orofino. In the early morning of October 14, 1951, a neighbor of appellant telephoned the Sheriff of Clearwater County that appellant requested the sheriff to come to his home as a man had been shot. The sheriff testified that when he arrived at the Spencer home accompanied by Mr. and Mrs. Collins, he saw Mr. and Mrs. Spencer standing at the door of their home and the following took place:

'Q. What did you do then? A. I got out of the car. We spoke and I asked Mr. Spencer was this the place where the man was shot and he said it was, yes.

'Q. What else was said? A. I said, 'Is he alive?' and Mr. Spencer said, 'No, he is dead.' I said, 'Where is he?' and he said, 'Over in the clearing. I will show you.'

'Q. What did you do? A. Mr. Spencer led off, next I came, and Mr. Collins next.

'Q. Can you indicate on State's exhibit 1 toward what you went? A. Yes. We went towards that what is marked as log barn.

'Q. What was done or said then? A. Well, we went through some wooded country, started up, went through a draw, started up the other side, and I said how did he know where the body was and Mr. Spencer said, 'Well, I will tell you how it happened.' He turned around facing me. He said, 'I shot him.'

'Q. He said what? A. He said, 'I shot him.' He said 'I was asleep and two shots went through my bedroom. The dust and shavings fell in our face and I jumped out of bed, dressed and went to see if I could get those fellows to move farther down away from the buildings. Then when I came up to this fellow, I said, 'You shot two shots through my house. Did you know it?' and the fellow said, 'No, I didn't know it.' He has repeated this story very many times and it is hard for me to tell which words he said, which story he told.

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'Q. Continue. A. Then Mr. Spencer said that Mr. Kinzer says, 'Don't you like it?' and Mr. Spencer said, 'No, I don't like it.' Mr. Kinzer said, 'Well, I just think I will shoot you' and Mr. Spencer said, 'I beat him to the shot."

The body of Robert Kinzer was found about 100 feet from the log barn or cabin. The body was removed and Mr. and Mrs. Spencer were taken by the sheriff to Orofino where appellant was lodged in jail.

At the trial appellant testified substantially as follows: That he and his wife were awakened about six o'clock a. m., by a number of shots fired by hunters and that two of such shots entered his bedroom. That he arose, went to his garage, secured his rifle from his Ford automobile and went to investigate the matter. That he saw two men in the vicinity of the log cabin which is situated about 500 feet southwest of his home. That he found two sets of tracks east of his home. That after several minutes of investigation he saw an individual coming out from the west side of the log cabin. That appellant walked down to the basin near where the log cabin is situated and stopped. That the man kept walking toward appellant. That when they were about 50 feet apart appellant hailed him. That the man kept walking in appellant's direction and got up to within about 20 feet of appellant. As to the next events appellant testified:

'Q. Then what happened? A. I said, 'What are you guys shooting at? Did you know you shot through my house?'

'Q. What did he reply? A. He said, 'Don't you like it?'

'Q. What did you say? A. I said, 'No, I don't.'

'Q. Then what was done? A. He said, 'Damn you. I will shoot you.' He pulled the hammer back on his rifle.'

Appellant further testified that the deceased was carrying his gun over his right arm. That he put his left thumb on the hammer and cocked the gun and started to swing the muzzle toward appellant. That appellant was carrying his gun in his right hand with the muzzle down. That appellant swung the muzzle of his gun up and shot deceased through the chest. That deceased was unknown to appellant. That he went to his house, sent his wife to see if there was anything she could do for the wounded man and then went to a neighbor's home and had him call the sheriff.

The record further shows that deceased, his brother and a third man were hunting deer in the vicinity at the time of the tragedy and had fired several shots.

The evidence on the part of the state consisted mainly of an attempt to show discrepancies in the story of appellant; and in particular, the state attemped to show that the two shots fired into the house of appellant were fired by appellant in an endeavor to manufacture evidence.

It having been determined that the judgment in this case must be reversed and the cause remanded for new trial, it is our duty in pursuance of section 1-205 I.C., to pass upon and determine all the questions of law involved in the case presented upon this appeal and necessary to the final determination of the case. County of Bingham v. Woodin, 6 Idaho 284, 55 P. 662.

On the day of trial but prior to the commencement thereof, the court called up appellant's motion to suppress certain evidence obtained by a search of appellant's home on the ground that such evidence was secured by an unlawful search and seizure. At the suggestion of counsel for the state that some time might be saved, the court did not pass upon such motion immediately but heard such motion and evidence in support thereof and in opposition thereto during the course of the trial and before the admission of the questioned evidence. The hearing occupied the greater part of one day. Appellant contends that the court erred in delaying the hearing on such motion and also in denying the same.

It is the general rule as contended by appellant that a motion to suppress evidence should be made and determined prior to the trial of an action. The reason for the rule is that the trial court should not be required to stop during the course of a trial to determine such issue. State v. Conner, 59 Idaho 695, 89 P.2d 197; State v. Robinson, 71 Idaho 290, 230 P.2d 693. However, such rule is a limitation upon the right of the defendant to have such a motion heard and determined. No prejudice resulted to appellant because the court delayed hearing and determination of the motion to suppress evidence until during the course of the trial.

It is admitted that the home of appellant was searched without a search warrant. It was the contention of the state that appellant invited and consented to such search and would not be heard to complain that the search was illegal; which contention appellant challenged. The evidence on the point was conflicting. The court found adversely to appellant upon substantial evidence. Its finding will not be disturbed. Appellant having voluntarily submitted to the search, the evidence so obtained was admissible. State v. McLennan, 40 Idaho 286, 231 P. 718; State v. West, 42 Idaho 214, 245 P. 85; State v. Hagan, 47 Idaho 315, 274 P. 628; State v. Beach, 51 Idaho 183, 3 P.2d 539.

Appellant contends that the court erred in instructing the jury on the law of evidence, reasonable doubt and credibility of witnesses at the beginning of the trial and before any evidence had been adduced. Section R. 19-2101 I.C., reads in part as follows:

'Order of trial.--The jury having been impaneled and sworn, the trial must proceed in the following order:

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'5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the prosecuting attorney or other counsel for the people must open, and the prosecuting attorney may conclude, the argument.

'6. The judge must then charge the jury if requested by either party; he may state the testimony and declare the law, but must not charge the jury in respect to matters of fact; such charge must be reduced to writing before it is given, unless by the mutual consent of the parties it is given orally.'

Section R. 19-2102 I.C., is as follows:

'When order may be departed from.--When the state of the pleadings requires it, or in any other case for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from.'

There is nothing in the record to invoke the discretion of the trial court and to justify a departure from the procedure outlined by the statute. Dunlap v. Savage, 54 Idaho 87, 29 P.2d 493; Byington v. Horton, 61 Idaho 389, 102 P.2d 652. However, there is nothing in the record or pointed out in appellant's brief indicating that appellant was in any way prejudiced by the action of the trial court. No objection was made by appellant to the procedure adopted. A departure from the order prescribed by statute is not reversible error in the absence of timely objection. Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.

Appellant contends the court erred in limiting the cross-examination of state's witness, Herman Collins. Counsel for appellant was cross-examining the witness concerning admitted discrepancies between his testimony at the preliminary hearing and at the trial when the state objected that such was not proper cross-examination. The court ruled appellant must abandon such course of inquiry. The defendant should be allowed considerable latitude...