State v. Waln

• Decision Date: 25 March 1905
• Parties: [*] STATE, Respondent, v. REN WALN and FRANK TURNER, Appellants
• Court: Idaho Supreme Court

80 P. 221

14 Idaho 1 v. REN WALN and FRANK TURNER, Appellants

Supreme Court of Idaho

March 25, 1905

^[*]REQUESTED INSTRUCTIONS-CREDIBILITY OF WITNESSES-REBUTTAL TESTIMONY.

1. An instruction to the effect that if the jury believe from the evidence that a witness has wilfully sworn falsely to any material fact in the case, they are then at liberty to disregard the entire testimony of such witness, except in so far as he has been corroborated by other credible evidence or by the facts and circumstances proved upon the trial, is a correct statement of the law, and where requested by defendant should be given by the court.

2. Under the provisions of sec. 7855, Rev. Stat., the parties to a criminal prosecution may respectively offer rebutting testimony, and the court "for good reason and in furtherance of justice" may permit either side to offer evidence upon its original case. By the provisions of this statute a large discretion is vested in the trial court, and unless grossly abused its exercise will not be interfered with upon appeal.

3. Evidence in this case examined; and held that it leaves serious doubts as to the guilt of the defendants.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District Washington County. Hon. Geo. H. Stewart, Judge.

The defendants were convicted upon the charge of robbery and sentenced to imprisonment in the state penitentiary. From the judgment of conviction and an order denying their motion for a new trial they appeal to this court. Reversed.

Reversed and remanded.

Hawley Puckett & Hawley, and L. L. Feltham, for Appellants.

A party has a right to direct, positive and certain instructions, and it is not sufficient that a charge is given which by inference and argument may be pressed to the same extent as the instruction refused. (Blashfield on Instructions to Juries, 149; State v. Hollingsworth, 156 Mo. 178, 56 S.W. 1087; Klatt v. Houston (Tex. Civ. App.), 57 S.W. 1112; Harris v. State (Tex. Cr. App.), 57 S.W 833; People v. Rodley, 131 Cal. 240, 63 P. 351.)

It is error to refuse a requested instruction, although covered by a general charge, or other instructions, where the proposition is given in such a disconnected way as to impair its force. (Wyoming v. Detroit etc. Co., 59 Mich. 257, 26 N.W. 514; Jamson v. Quivey, 5 Cal. 490; Chicago B. & Q. Ry. Co. v. Dickson, 88 Ill. 431; 11 Ency. of Pl. & Pr. 217 et seq.)

J. J. Guheen, Attorney General, George P. Rhea, Prosecuting Attorney of Washington County, and Harris & Smith, for the State, file no brief.

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

The defendants, Ren Waln and Frank Turner, were informed against by the prosecuting attorney of Washington county at the March, 1904, term of the district court in and for Washington county, charged with the crime of robbery. It was alleged by the information that the defendants committed the crime on or about the 24th day of January, 1904, in the county of Washington, by then and there taking from the person of James Morissey, by force and violence, the sum of $ 37. The defendants were duly tried and a verdict of guilty was returned by the jury, upon which verdict a judgment was entered sentencing the defendants to imprisonment in the state penitentiary for the period of seven years each. The defendants moved for a new trial and their motion was denied. They thereupon appealed from the judgment and the order denying their motion for a new trial. The defendants assign the following errors: "First, that the evidence is insufficient to justify the verdict of the jury. Second, errors in refusing defendants' instructions tendered at the trial. Third, errors in the admission and rejection of evidence during the trial."

After a careful examination of the instructions given by the court and those requested by defendants and refused by the court, we are satisfied that all the requested instructions proper to have been given were substantially covered by the court's instructions, except requests numbered 17, 19, 20 and 21. These requests have special reference to the weight to be given the evidence of witnesses who had wilfully testified falsely, or who had been impeached, contradicted or had made statements differing from those to which they had testified, or who had been shown to have bad reputations for truth and veracity in their several communities. Each of these four requests substantially stated the law upon the subject to which each had reference, but some of them were too much in the nature of a lecture and too argumentative to be given to the jury, as they would tend more to confuse than to enlighten the jury.

However the defendants' request numbered 20 is a very concise statement of a hornbook principle of law, and should not have been refused. That request is as follows: "The jury...