State v. Ward, 5636

• Decision Date: 09 July 1931
• Docket Number: 5636
• Citation: 1 P.2d 620,51 Idaho 68
• Parties: STATE, Respondent, v. CHESTER G. WARD, Appellant
• Court: Idaho Supreme Court

1 P.2d 620

51 Idaho 68

STATE, Respondent, v. CHESTER G. WARD, Appellant

No. 5636

Supreme Court of Idaho

July 9, 1931

CRIMINAL LAW-MURDER-INFORMATION-AMENDMENTS-WAIVER OF IRREGULARITIES-DISQUALIFIED JUDGE-POWER TO SELECT QUALIFIED JUDGE-ABSENT WITNESS-TESTIMONY AT FORMER TRIAL-PREJUDICIAL REMARKS OF TRIAL JUDGE.

1. Defendant, pleading not guilty at second trial after reading information amended at first trial, waived irregularities, if any, in amendment (Laws 1929, chap. 72).

2. Statute providing for change of judge applies generally in civil and criminal cases (C. S., sec. 6499 et seq.).

3. Substituted judge held not without jurisdiction because designated by regular judge holding himself disqualified because of prejudice and granting change of judge (Const art. 5, sec. 12; C. S., secs. 8888 et seq., 6499 et seq.).

4. Charge placing burden of proof on defendant to lessen degree of offense, but not requiring same beyond reasonable doubt or by preponderance of evidence, held proper.

5. Sufficiency of showing by state of inability to produce witness as predicate for reading testimony at previous trial is addressed to discretion of trial court.

6. Conviction for murder in first degree, after instruction on murder in second degree, held to remove prejudice, if any regarding instructions on manslaughter.

7. Statement by court that testimony by state's witnesses that they never heard deceased's reputation questioned was best evidence of good reputation held erroneous comment on weight of evidence and prejudicial error, where question who was aggressor was material.

8. Exclusion of cross-examination of state's character witnesses whether they heard of deceased's participation in robbery by force held error and prejudicial, where question of who was aggressor was material.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Miles S. Johnson, Judge.

Defendant, convicted of murder in the first degree, appeals from the judgment of conviction, and the order denying his motion for a new trial. Reversed.

Reversed and remanded.

James F. Ailshie, Jr., J. R. Smead and W. D. Keeton, for Appellant.

A disqualified district judge is not empowered to pass upon the qualifications of his associate judge in the same district. (In re Hultner-Wallner, 48 Idaho 507, 283 P. 42; Newman v. District Court, 32 Idaho 607, 186 P. 922; Poff v. Scales, 36 Idaho 762, 213 P. 1019; Gordon v. Conor, 5 Idaho 673, 51 P. 747.)

Disqualification for prejudice is constitutional; and in a criminal case there is no provision for the disqualified judge to do anything further in the case whatever. The statutes concerning the transfer of civil causes have nothing to do with criminal cases. (Const., art. 1, sec. 18; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Bell v. Bell, 18 Idaho 636, 111 P. 1074; People v. McGarvey, 56 Cal. 327.)

The Criminal Code does not authorize the changing of an information on file by interlineation or like means, especially after a plea of "not guilty" has been entered and issues of fact thus made up for trial. (C. S., secs. 8811, 8812, 8823, 8865, 8866, 8874 and 8876.) An indictment cannot be amended by interlineation; therefore, neither can an information.

The failure to arraign the accused on the amended information was fatal. It violated his constitutional and statutory rights, and resulted in an attempt at a trial by jury in a matter wherein no issues of fact were made up for trial. (Const., art. 1, sec. 13; Const. U.S. Amend. XIV, sec. 1, Amend. V; Eagleson v. Rubin, 16 Idaho 92, 100 P. 765; Re Mallon, 16 Idaho 737, 102 P. 374; State v. Crawford, 32 Idaho 165, 179 P. 511; C. S., sec. 8847; State v. Chambers, 9 Idaho 673, 75 P. 274; Rex v. Lancaster, 1 How. St. Tr. 46; Hopt v. Utah 110 U.S. 579, 4 S.Ct. 202, 28 L.Ed. 262; Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; McJunkins v. State, 10 Ind. 140; State v. Wilson, 42 Kan. 587, 22 P. 622; People v. Corbett, 28 Cal. 328.)

It is error for a trial court to comment adversely upon the weight which should be given the evidence of a defendant on trial for a capital offense. Such comments are usually considered the equivalent of an instruction to the jury to the same effect, and in this case the jury having actually been instructed that the evidence of the state concerning the reputation of the deceased for turbulence and violence or the reverse was "the best evidence in the world," this was plainly prejudicial and reversible error. (McKissick v. Oregon Short Line R. R. Co., 13 Idaho 195, 199, 89 P. 629; Goldstone v. Rustemeyer, 21 Idaho 704, 123 P. 635; State v. Chambers, 9 Idaho 673, 75 P. 274; Nave v. McGrane, 19 Idaho 111, 113 P. 82; Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797; Moore v. Columbia & G. R. Co., 38 S.C. 1, 16 S.E. 781; McMinn v. Whelan, 27 Cal. 300; State v. Harkin, 7 Nev. 377; State v. Tickel, 13 Nev. 502; State v. Lane, 47 Ore. 526, 84 P. 804; People v. Kindleberger, 100 Cal. 367, 34 P. 852.)

In order for the state to have read testimony given at a former mistrial of a homicide case by a witness not produced at the trial in question, it is necessary for the state to show fully that due diligence was used in attempting to procure the attendance of such witness. (State v. Brassfield, 40 Idaho 203, 232 P. 1.)

The mere fact that a witness is out of the jurisdiction is not enough to justify his nonproduction and the reading of such former testimony. (Jolliffee v. State, 21 Okla. Cr. 128, 207 P. 454.)

Fred J. Babcock, Attorney General, and Maurice H. Greene, Assistant Attorney General, for Respondent.

A judge, disqualified to try a cause, has authority to request a judge from another district to hold court in his stead. (Const., art. 5, sec. 12; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; People v. Ebey, 6 Cal.App. 769, 93 P. 379; Ex parte Burch, 168 Cal. 18, 141 P. 813; Yolo Water & Power Co. v. Superior Court, 28 Cal.App. 589, 153 P. 394.)

An information in the language of the statute is sufficient. (State v. Gee, 48 Idaho 688, 284 P. 845; State v. Bull, 47 Idaho 336, 276 P. 528; State v. George, 44 Idaho 173, 258 P. 551; State v. Boykin, 40 Idaho 536, 234 P. 157; State v. Caviness, 40 Idaho 500, 235 P. 890; State v. McMahon, 37 Idaho 737, 219 P. 603; State v. Sly, 11 Idaho 110, 80 P. 1125.)

An information may be amended after plea if the substantial rights of the defendant are not prejudiced. (1929 Sess. Laws, chap. 72; 14 Cal. Jur. 91, sec. 68; Rollen v. State, 7 Okla. Cr. 673, 125 P. 1087.)

Comments of the court in ruling on the admissibility of evidence are presumed not to have affected the jury. (People v. Mayes, 113 Cal. 618, 45 P. 860; People v. Woon Tuck Wo, 120 Cal. 294, 52 P. 833; People v. Wong Chuey, 117 Cal. 624, 49 P. 833; People v. Matthew, 68 Cal.App. 95, 228 P. 417; State v. Elder, 130 Wash. 612, 228 P. 1018; State v. Rappaport, 136 Wash. 603, 241 P. 4; State v. Polos, 140 Wash. 399, 249 P. 488.)

The testimony of a witness for the state on a previous trial is admissible on a proper showing that his presence is unobtainable. (State v. Brassfield, 40 Idaho 203, 232 P. 1.)

Ordinarily, absence from the state is sufficient. (Note, 15 A. L. R. 517, subd. b; Liddell v. State, 18 Okla. Cr. 87, 16 A. L. R. 405, 193 P. 52.)

GIVENS, J. Lee, C. J., and Varian, J., concur. BUDGE J., Dissenting. McNaughton, J., did not participate.

OPINION

GIVENS, J.

This appeal is from a conviction for murder in the first degree, and a sentence of life imprisonment. The appellant attacks the information because the original did not sufficiently allege deliberation and premeditation; that the court was without authority to permit an amendment of the information in this particular, because such amendment was one of substance and not of form, and that there was no plea to the amended information; hence the court was without jurisdiction to hear the cause.

The original information, dated November 11, 1929, designated the crime with which defendant was charged, as murder in the first degree, and one substantially the same was held sufficient in State v. McClurg (filed June 25, 1931).

The appellant was arraigned November 25, 1929, and plead not guilty. January 6, 1930, the information was amended by interlineation, and the wording as to premeditation elaborated.

At the first trial beginning January 7, 1930, the jury failed to agree; the second trial resulting in a verdict of guilty, was commenced April 21, 1930.

1929 Session Laws, chap. 72, p. 110, authorizes the amendment of an information as to form or substance after the plea provided the defendant is not thereby prejudiced. The amended information was unquestionably sufficient. (State v. Rogers, 30 Idaho 259, 163 P. 912; State v. Askew, 32 Idaho 456, 184 P. 473; State v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Arnold, 39 Idaho 589, 229 P. 748; State v. Boykin, 40 Idaho 536, 234 P. 157; People v. Davis, 8 Utah 412, 32 P. 670.) Appellant does not question that the jury was fully and accurately instructed as to what the state was expected to prove to sustain the charge of murder in the first degree, or that the jury did not know what issues were before it, and it is clearly apparent from the record that the appellant was in nowise prejudiced by the amendment. Ample time was given for him to interpose any special plea after the amendment and before the second trial. Furthermore, the record shows that at the time of the second trial, the appellant and counsel being present in the court, the clerk read the information charging the appellant with murder in the first degree, and stated that a plea of not guilty had been entered by the defendant. Appellant raised no objection, and in his objection to the...