State v. Taylor

• Decision Date: 03 May 1955
• Docket Number: No. 8098,8098
• Citation: 76 Idaho 358,283 P.2d 582
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ralph E. TAYLOR, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 582

283 P.2d 582

76 Idaho 358

STATE of Idaho, Plaintiff-Respondent, v. Ralph E. TAYLOR, Defendant-Appellant.

No. 8098.

Supreme Court of Idaho.

May 3, 1955.

Delana & Delana, Boise, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, T. J. Jones, III, Asst. Attys. Gen., James A. McClure, Pros. Atty., payette, for respondent.

PORTER, Justice.

Appellant was found guilty by a jury in Payette County of the crime of statutory rape. He was sentenced to imprisonment in the state penitentiary for the term of not to exceed five years. From the judgment of conviction entered against him, he has appealed to this court.

On this appeal, appellant lists only two assignments of error. Appellant, by his first assignment of error, contends the trial court erred in giving that part of Instruction No. 7 reading as follows:

'A 'reasonable doubt' is what the word implies; a doubt founded in reason; a doubt for which you can give a sensible reason; a doubt growing out of the testimony in the case, or the lack of testimony; a doubt which would cause you to hesitate in the ordinary affairs of life. It is not a flimsy, fanciful, fictitious doubt which you could raise about anything and everything.'

Appellant complains of this instruction 'For the reasons that it is erroneous (a) to instruct the jury that a reasonable doubt is a doubt, that the jury or jurors should be able to give a reason for; (b) To instruct the jury that a reasonable doubt is a doubt for which the jury or jurors can give a sensible reason; (c) To instruct the jury that only such a doubt entitled the defendant to an acquittal.'

Appellant cites the following authorities from other jurisdictions which appear to lend support to his position: Gibbons v. Territory, 21 Okl. 340, 96 P. 466; Abbott v. Territory, 20 Okl. 119, 94 P. 179, 16 L.R.A.,N.S., 260; Childs v. State, 34 Neb. 236, 51 N.W. 837; State v. Cohen, 108 Iowa 208, 78 N.W. 857; Siberry v. State, 133 Ind. 677, 33 N.E. 681; Owens v. United States, 9 Cir., 130 F. 279; State v. Parks, 96 N.J.L. 360, 115 A. 305; Gilcoat v. State, 155 Ark. 455, 244 S.W. 723; Pettine v. Territory of New Mexico, 8 Cir., 201 F. 489.

The following cases from other jurisdictions appear to be contrary to the contention of appellant and to support the questioned instruction: People v. Davis, 171 Mich. 241, 137 N.W. 61; State v. Liberman, 59 N.D. 252, 229 N.W. 363; State v. McCune, 16 Utah 170, 51 P. 818; Emery v. State, 101 Wis. 627, 78 N.W. 145; State v. Roberts, 15 Or. 187, 13 P. 896; Wallace v. State, 41 Fla. 547, 26 So. 713; People v. Guidici, 100 N.Y. 503, 3 N.E. 493; State v. Grant, 20 S.D. 164, 105 N.W. 97, 11 Ann.Cas. 1017.

The foregoing lists of cases are not exhaustive but the cases cited are intended to be illustrative.

Our court on many occasions has considered instructions defining and attempting to define the term 'reasonable doubt.' State v. Lyons, 7 Idaho 530, 64 P. 236; State v. Gilbert, 8 Idaho 346, 69 P. 62; State v. Moon, 20 Idaho 202, 117 P. 757; State v. Nolan, 31 Idaho 71, 169 P. 295; State v. Bubis, 39 Idaho 376, 227 P. 384; State v. Cox, 55 Idaho 694, 46 P.2d 1093; State v. Hix, 58 Idaho 730, 78 P.2d 1003; State v. Taylor, 59 Idaho 724, 87 P.2d 454; State v. Carner, 60 Idaho 620, 94 P.2d 1081; State v. Dickens, 68 Idaho 173, 191 P.2d 364.

It is in the light of our own decisions that the questioned instruction is to be considered. In State v. Bubis, 39 Idaho 376, at page 382, 227 P. 384, at pages 385- 386, in considering an instruction on reasonable doubt, this court spoke as follows:

'Appellant also complains of the following language used in one of the instructions:

"A reasonable doubt is an actual doubt, based upon the evidence or lack of evidence and upon reason that you are conscious of after going over in your minds, the entire case giving consideration to all the testimony.'

'The objection is that a juryman might have a doubt for which it might be difficult or impossible to assign any reason. Surely, however, he would be conscious of some reason; that is to say, a verdict should be based upon the operation of mental processes and the exercise of judgment. That this language is not prejudicial error, see State v. Gilbert, supra, [8 Idaho 346, 69 P. 62]; State v. Moon, 20 Idaho 202, 117 P. 757, Ann.Cas.1913A, 724; State v. Nolan, 31 Idaho 71, 169 P. 295.'

In State v. Dickens, supra, this court reviewed at length the Idaho decisions dealing with instructions on reasonable doubt and again approved the instruction given in State v. Bubis, supra.

In the Dickens case the instruction on reasonable doubt given in State v. Bubis, supra, is set out as follows: [68 Idaho 181, 191 P.2d 368]

"A reasonable doubt is an actual doubt based upon the evidence, or lack of evidence, and upon reason that you are conscious of after going over in your minds the entire case, giving consideration to all the testimony. If you then feel uncertain and not fully convinced that the defendant is guilty, or if you feel that you would not be acting reasonably should you find him guilty, and if you believe that a reasonable man in any matter of like importance in his own affairs would hesitate to act because of such a doubt as you are conscious of having, then that is a reasonable doubt and the defendant is entitled to the benefit of it. But, if after considering all the evidence you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and should return you verdict accordingly."

The instruction on reasonable doubt contained in Instruction No. 7 in this case is as follows:

'A 'reasonable doubt' is what the word implies; a doubt founded in reason; a doubt for which you can give a sensible reason; a doubt growing out of the testimony in the case, or the lack of testimony; a doubt which would cause you to hesitate in the ordinary affairs of life. It is not a flimsy, fanciful, fictitious doubt which you could raise about anything and everything. It means a reasonable doubt. If, when all is said and done, you have such a doubt about the guilt of the accused, it is your duty to acquit him. If, however, after considering these instructions and all the evidence that you are permitted to consider, you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt and should render your verdict accordingly.'

A comparison of these two instructions shows that they are substantially the same in import. In the Bubis case we held in effect the juror must be conscious of a reason for his doubt arising from the operation of mental processes and not from mere fancy. By Instruction No. 7 herein the juror is required to have a doubt for which he can give a sensible reason and not based upon a mere fanciful reason. To say either that the juror must be conscious of such a reason or to say that he must be able to give such a reason is to convey the same thought. The word 'sensible' is sometimes used as synonymous with the word 'reasonable.' Webster's New International Dictionary, Second Edition; Tabor v. Continental Baking Co., 110 Ind.App. 633, 38 N.E.2d 257.

When we consider Instruction No. 7 as a whole and compare the same with the instruction given on reasonable doubt in State v. Bubis, supra, which we have approved, the difference between the two instructions appears to be of slight weight or importance and the jury could not have been misled thereby. While the use of the phrase 'a doubt for which you can give a sensible reason' was erroneous, the use of same in conjunction with the remainder of Instruction No. 7 was not prejudicial error requiring a reversal of the judgment in this cause.

This court has on a number of occasions criticized long and involved definitions and attempted definitions of 'reasonable doubt.' Such instructions generally are more apt to confuse the jury than to enlighten it. A short, concise instruction on reasonable doubt is to be preferred. In some jurisdictions the courts have frowned upon the giving of any instruction attempting to define reasonable doubt. Wallace v. State, 96 Okl.Cr. 163, 250 P.2d 484; State v. Liberman, supra, and cases cited.

It will be noted that Instruction No. 7 used the phrase 'a doubt which would cause you to hesitate in the ordinary affairs of life.' (Emphasis supplied.) While appellant does not set out the use of the words 'ordinary affairs' as error, or claim that same were prejudicial to appellant, the use of the phrase 'ordinary affairs of life' is improper. In State v. Nolan, supra, [31 Idaho 71, 169 P. 298], the terms "graver transactions of life" and "important affairs of life" are approved. In State v. Bubis, supra, as shown in State v. Dickens, supra, the instruction used the phrase 'in any matter of like importance in his own affairs.'

The second assignment of error urged by appellant is as follows:

'The Court erred in allowing the Prosecuting Attorney on cross examination of the defendant to question the defendant about and confront the defendant with or compare or read to the defendant the tetimony of other witnesses and to ask the defendant if the testimony of such other witnesses was a mistake or was untrue or false, * * *.'

An examination of the record with reference to the questions about which appellant complains shows that no objections were made to such questions, no motions were made to strike such questions or the answers thereto and no rulings were requested or made thereon by the trial court. Under these circumstances no error was preserved for consideration by this court on appeal. Objections to evidence cannot be raised for the first time on appeal. Goody v. Maryland Casualty Co., 53 Idaho 523, 25 P.2d 1045; State v. Boyatt, 59 Idaho 771, 87 P.2d 992; Neff v. Hysen, 72 Idaho 470, 244 P.2d 146.

In State v. Davis, 57 Idaho 413, at page 420, 65 P.2d 1385, at page 1388, in referring to alleged error in the cross examination of a witness, the court said:

'He was...