State v. Taylor, 6594

• Court: United States State Supreme Court of Idaho
• Writing for the Court: GIVENS, J.
• Citation: 87 P.2d 454,59 Idaho 724
• Decision Date: 08 February 1939
• Docket Number: 6594
• Parties: STATE, Respondent, v. IRA J. TAYLOR, Appellant

87 P.2d 454

59 Idaho 724

STATE, Respondent,
v.
IRA J. TAYLOR, Appellant

No. 6594

Supreme Court of Idaho

February 8, 1939

PUBLIC OFFICERS - WARDEN OF PENITENTIARY - DUTIES - FAILURE TO PAY OVER MONEY-CRIMINAL LIABILITY-DERELICTIONS OF CHIEF CLERK-INDICTMENT, VALIDITY OF-ATTORNEY GENERAL-RIGHT TO ATTEND GRAND JURY-STATUTORY CONSTRUCTION-STATUTES ADOPTED FROM ANOTHER STATE-CRIMINAL LAW-CRIMINAL NEGLIGENCE-CIRCUMSTANTIAL EVIDENCE-INSTRUCTIONS.

1. A statute adopted from another state is usually, though not conclusively, construed in accordance with decisions of courts of that state rendered prior to its adoption, if their interpretation is reasonable.

2. Under statute authorizing attorney general to exercise supervisory powers over prosecuting attorneys, attorney general is paramount in control and direction of prosecuting attorneys. (I. C. A., sec. 65-1301.)

3. Under statute authorizing attorney general to exercise supervisory powers over prosecuting attorneys, whatever the prosecuting attorneys may do, the attorney general may also do. (I. C. A., sec. 65-1301.)

4. The words "prosecuting attorney," as used in statute permitting the "prosecuting attorney" to appear before the grand jury, are to be considered generically as including any official attorney on side of prosecution not otherwise disqualified. (I. C. A., sec. 19-1011.)

5. Under statute authorizing attorney general to exercise supervisory power over prosecuting attorneys and statute permitting prosecuting attorneys to appear before a grand jury, the attorney [59 Idaho 725] general or his deputies may appear before a grand jury. (I. C. A., secs. 19-1011, 65-1301.)

6. In prosecution for failure to account for public moneys, refusal to dismiss indictment on ground that attorney general was prejudiced as evidenced by affidavit of accused's successor that attorney general had told him to prepare a secure cell for his predecessor was not an abuse of discretion.

7. Neither preliminary hearing, arrest, commitment, nor presentment are necessary prerequisites to indictment.

8. Indictment charging failure to account for public moneys received as warden of state penitentiary would not be dismissed on ground that it was really a presentment.

9. In prosecution of former warden of state penitentiary for failure to account for proceeds from prison farm which came into hands of chief clerk of penitentiary of whose derelictions warden allegedly should have known, bond of chief clerk, covering major portion of time during which alleged derelictions took place was admissible as bearing on degree of care that warden should have used and rejection was prejudicial. (I. C. A., secs. 17-3202, 20-306, 57-1014.)

10. In prosecution for failure to account for public moneys, instruction that, if circumstances proved produced moral conviction of guilt to exclusion of every reasonable doubt, they did not need to be absolutely incompatible, on any reasonable hypothesis, with innocence of accused, that theory of innocence must be rational and find its support in facts, and that no theory not fairly founded on evidence need be adopted, was prejudicially erroneous.

11. In prosecution for failure to account for funds received as warden of state penitentiary, instruction that "neglect" means want of such attention to nature of probable consequences of act or omission as a prudent man ordinarily bestows in acting in his own concerns was erroneous because defining "civil negligence" and not "criminal negligence."

12. "Criminal negligence" is "gross negligence," being such negligence as amounts to wanton, flagrant, or reckless disregard of consequences or wilful indifference of safety or rights of others, which may be by either or both commission or omission.

13. In criminal prosecution, instruction defining civil negligence rather than criminal negligence was error notwithstanding failure to request correct instruction.

14. Giving of erroneous instruction by court was to be considered in connection with requested instructions of accused which conflicted with each other.

[59 Idaho 726]

15. Rule that erroneous instruction is not prejudicial if evidence of guilt is so clear and convincing that jury could not have failed to convict should be guardedly applied in order that guaranty of right to trial by jury will not be violated. (I. C. A., sec. 19-2719; Const., art. 1, sec. 7.)

16. Constitutional guaranty of right to "trial by jury" means jury which has not been misled by erroneous instructions to prejudice of accused. (Const., art. 1, sec. 7.)

17. In prosecution of former warden of state penitentiary for alleged negligent failure to discover derelictions of chief clerk of penitentiary, the court in connection with proper definition of criminal negligence should have given as instruction substance of statute requiring that in every crime there must exist a union of act and intent or criminal negligence. (I. C. A., sec. 17-114.)

18. "Intent," as used in statute providing that in every crime there must exist a union of act and "intent," is not an intent to commit a crime but is merely intent to knowingly perform interdicted act. (I. C. A., sec. 17-114.)

19. "Criminal negligence," as used in statute providing that in every crime or public offense there must exist a union of act and intent or "criminal negligence," means the failure to perform a required act. (I. C. A., sec. 17-114.)

20. A specific intent such as is necessary in embezzlement, larceny, and making false reports with intent to deceive, is not an ingredient of offense of failure by officer to account for public moneys. (I. C. A., sec. 17-3202.)

21. A conviction under statute condemning failure to account for public moneys requires proof of knowledge and intent to do the act, not necessarily to commit a crime, or of criminal negligence in failing to perform required act. (I. C. A., secs. 17-114, 17-3202.)

22. Those intrusted with care and safekeeping of public funds are held to strict accountability for safeguarding thereof and compliance with controlling statutes, but to sustain conviction for failure to so account more must be proven than will justify recovery in civil suit. (I. C. A., sec. 17-3202.) [87 P.2d 455]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Miles S. Johnson, Presiding Judge.

[59 Idaho 727] Appellant was convicted under an indictment charging him with failure to keep and pay over certain public moneys of the State of Idaho which came into his custody as warden of the State Penitentiary, and he appeals. Reversed and remanded.

Reversed and remanded with instructions.

Bert H. Miller, Leo M. Breshahan, J. W. Galloway and George Donart, for Appellant.

A preliminary examination and commitment by committing magistrate is a prerequisite of the finding of a valid indictment. (Const. Idaho, art. 1, sec. 8.)

It is error to deny a motion to quash an indictment where the record affirmatively shows that some prosecutor other than the prosecuting attorney of the county or his assistants, appeared before the grand jury and examined the witness upon whose testimony the indictment was found. (State v. Barber, 13 Idaho 65, 88 P. 418; sec. 19-1011, I. C. A.; sec. 19-1501, I. C. A.; sec. 19-1304, I. C. A.; People v. Breen, 130 Cal. 72, 62 P. 408; People v. Lopez, 26 Cal. 112, 113; 18 C. J. 1312, sec. 39, par. 5; 7 C. J. S. 823, sec. 47; People v. Hanson, 290 Ill. 370, 125 N.E. 268; State v. Gage, 107 Wash. 282, 181 P. 855; State v. State Board of Equalization, 140 Wash. 433, 249 P. 996; State v. Rocker, 130 Iowa 239, 106 N.W. 645; Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, Ann. Cas. 1912D, 180, 33 L. R. A., N. S., 568; Maley, etc., v. District Court, 221 Iowa 732, 266 N.W. 815; Coblentz v. State, 164 Md. 558, 166 A. 45.)

Where instructions given by the court to the jury are inconsistent and contradictory, the judgment will be reversed; the giving of an erroneous instruction is not cured by subsequently giving a correct one unless the latter specifically withdraws the erroneous one from the consideration of the jury. (14 R. C. L., sec. 72, p. 813, subject Instructions; Holt v. Spokane & Palouse R. Co., 3 Idaho 703, 35 P. 39.)

Criminal negligence in the sense that the term is used by section 17-114 means gross negligence or some measure of wantonness or flagrant or reckless disregard of the rights of others or wilful indifference. (State v. McMahan, [59 Idaho 728] 57 Idaho 240, 65 P.2d 156; Nail v. State, 33 Okla. Cr. 100, 242 P. 270.)

While criminal intent may not be a necessary element of the offense created by section 17-3202, I. C. A., an intent to commit the interdicted act of criminal negligence on the part of the defendant, is a necessary element thereof. (Sec. 17-114, I. C. A.; In re Baugh, 30 Idaho 387, 164 P. 529; State v. Bush, 45 Kan. 138, 25 P. 614; State v. Keller, 8 Idaho 699, 70 P. 1051; 16 C. J. 76-78; People v. Forbath, 5 Cal.App. Supp. (2d) 767, 42 P.2d 108; People v. Dillon, 199 Cal. 1, 248 P. 230.)

J. W. Taylor, Attorney General, Lawrence B. Quinn, R. W. Beckwith, E. G. Elliott and D. R. Thomas, Assistant Attorneys General, and Willis C. Moffatt, Prosecuting Attorney for Ada County, for Respondent.

In this state the attorney general has the power and duty to appear before any grand jury, when the public interest requires his presence there. (Art. 4, secs. 1, 3, State Const.; secs. 65-1301, subsecs. 5 and 7, 65-2602, 65-2608, 65-2618, I. C. A.; 5 Am. Jur., secs. 5, 6, pp. 234, 235, also pp. 232, 252, 253; State v. District Court, 22 Mont. 25, 55 P. 916.)

Every public officer charged with the receipt, safekeeping, or disbursement of public moneys, who neglects or fails to keep and pay over the same in the manner prescribed by law, is guilty of a felony, and intent is not an element of this statutory crime. (Secs. 17-3201, 17-3202, I. C. A.; State v. Browne, 4...