State v. Webb

Decision Date20 January 1899
PartiesSTATE v. WEBB
CourtIdaho Supreme Court

INDICTMENT.-Objections to indictment considered and overruled.

ROBBERY-CROSS-EXAMINATION.-In the trial of a criminal action, as in this case a charge of robbery, the defendant should be permitted, upon cross-examination of prosecuting witness, to interrogate such witness as to any matters connected with the transaction.

EVIDENCE.-Where it appeared from the evidence that the defendant, the prosecuting witness, and others, had been together drinking from 10 o'clock in the evening until 5 o'clock in the morning, when the robbery was alleged to have taken place the prosecution upon the trial having confined their examination of the prosecuting witness to the first meeting of said witness, and the defendant, and to the occurrences at the time of the alleged robbery, leaving an interim of some seven hours, during which it seems the parties were continually together, unexplained. It was error to refuse to permit the defense to interrogate the prosecuting witness, as to his acts and whereabouts during such interim.

INSTRUCTIONS.-Where instructions are conflicting and irreconcilable they are erroneous.

ALIBI-BURDEN OF ESTABLISHING.-Where a defendant relies upon the defense of an alibi, the burden of establishing such defense is upon the defendant, and if the defendant succeeds, by competent evidence, in establishing a reasonable doubt in the minds of the jury as to his presence at the time and place when and where the offense was committed, when the committing of the offense by him made his presence imperative, he is entitled to an acquittal. The character and extent of the evidence requisite to create such doubt is matter for the jury.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Reversed and remanded for a new trial.

James E. Fulton and Wallace N. Morphy, for Appellant.

The court erred in overruling the demurrer of the defendant to the indictment. The indictment in this cause is insufficient and defective in the following particulars: (a) It is indefinite and uncertain as to the time of the alleged robbery, in that it alleges it to have been "on or about the twenty-sixth day of October, A. D. 1897." The averment as to the time of the commission of an offense must be of a date certain prior to the filing of the indictment. (Commonwealth v. Adams, 4 Gray (Mass.), 27 Commonwealth v. Keefe, 9 Gray (Mass.), 290; State v. Temple, 38 Vt. 37; State v Jackson, 39 Me. 291; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358; People v. Wallace, 9 Cal. 31; Morgan v. State, 13 Fla. 671; 1 Green Cr. Rep. 361.) (b) The indictment should, but does not, allege an intent or purpose to rob or steal from the person of the said Fred Gagnon. Intent or purpose to steal is essential, and a necessary element to constitute the crime of robbery, and cannot be inferred as a legal presumption. This intent must be specifically and directly averred as a part of the description of the offense. (Holt v. Territory, 4 Okla. 76, 43 P. 1083; Chappell v. State, 52 Ala. 359; State v. Dolan, 17 Wash. 499, 50 P. 472; Blanton v. State, 1 Wash. 265, 24 P. 439; Maxwell's Criminal Practice, 176-185; Leonard v. Territory, 2 Wash. Ter. 381, 7 P. 872; State v. So Ho Ge, 1 Wash. 275, 276, 24 P. 442, 443; State v. McCormick, 27 Iowa 402; Fouts v. State, 4 G. Greene (Iowa), 500; Wright v. Territory, 5 Okla. 78, 47 P. 1069; Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 307; Hagan v. State, 10 Ohio St. 459; Snyder v. State, 59 Ind. 105; Shaffer v. State, 22 Neb. 557, 3 Am. St. Rep. 274, 35 N.W. 384; State v. Brown, 21 Kan. 38; State v. Patrick, 3 Wis. 709; Morris v. State, 13 Tex. App. 65; State v. Hollyway, 41 Iowa 200, 20 Am. Rep. 586.) Under the American rule, it is held that a cross-examination is not limited to the very day and to the exact facts named in the direct examination, but may extend to other matters which limit, qualify or explain the facts stated in the direct examination or modifies the inference deducible therefrom, providing only that such matters are directly connected with the facts testified to in chief. (Blake v. Powell, 26 Kan. 320; Haynes v. Ledyard, 33 Mich. 319; Wilson v. Wager, 26 Mich. 452; Thomas v. Miller, 151 Pa. St. 482, 25 A. 127; Mayer v. People, 80 N.Y. 364; People v. Dixon, 94 Cal. 255, 29 P. 504; Black v. Wabash R. R. Co., 111 Ill. 351, 53 Am. Rep. 628; Carey v. Richmond, 92 Ind. 259.) Where a witness in his direct testimony gives only a portion of a material transaction or conversation, it is the right of the party against whom he testifies to cross-examine him in detail concerning the omitted portion. (State v. Adams, 108 Mo. 208, 18 S.W. 1000; Murray v. Great Western Ins. Co., 72 Hun, 282, 25 N.Y.S. 414; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Sayres v. Allen, 25 Or. 211, 35 P. 254; Currier v. Robinson, 61 Vt. 196, 18 A. 147; Weadock v. Kennedy, 80 Wis. 449, 50 N.W. 393; People v. Strong, 30 Cal. 151; People v. Smallman, 55 Cal. 185; Shackelford v. State, 43 Tex. 138; Addison v. State, 48 Ala. 478; Home Benefit Assn. v. Sargent, 142 U.S. 691, 12 S.Ct. 332; Eames v. Kaiser, 142 U.S. 488, 12 S.Ct. 302; Gilmer v. Higley, 110 U.S. 47, 3 S.Ct. 471.) An instruction which authorizes the jury to consider matters foreign to the issue made by the indictment is erroneous. It has also been held that where the evidence makes out a case in favor of the plaintiff, but upon a different theory from that set up in the complaint, it will be error to give an instruction in conformity with the case made by the evidence. (Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Territory v. Evans, 2 Idaho 425, 17 P. 139; Terry v. Shiebly, 64 Ind. 106; Glass v. Gelvin, 80 Mo. 297; Capital Bank v. Armstrong, 62 Mo. 59; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Marx v. Schwartz, 14 Or. 177, 12 P. 253; Parker v. Marquis, 64 Mo. 38.) It is a general rule of law that in criminal prosecutions the burden of proof never shifts, but as to all defenses which the evidence tends to establish, the burden rests upon the state throughout to establish defendant's guilt beyond a reasonable doubt. This rule of law applies as well to any distinct substantive defense which may be interposed by the accused to justify or excuse the act charged as to the case as made by the state. (Gravely v. State, 38 Neb. 871, 57 N.W. 751; 1 Greenleaf on Evidence, sec. 81, notes; 3 Greenleaf on Evidence, sec. 29, and note A; People v. Riordon, 117 N.Y. 71, 22 N.E. 455; People v. Downs, 123 N.Y. 558, 25 N.E. 988; Tiffany v. Commonwealth, 121 Pa. St. 165, 6 Am. St. Rep. 775, 15 A. 219; Rudy v. Commonwealth, 128 Pa. St. 500, 18 A. 344; Commonwealth v. McKie, 1 Gray, 61, 61 Am. Dec. 410; People v. Coughlin, 65 Mich. 704, 32 N.W. 905; Lilienthal v. United States, 97 U.S. 237; Howard v. State, 50 Ind. 190; 1 Bishop's Criminal Procedure, secs. 1048, 1051, 1066; 2 Bishop's Criminal Procedure, secs. 669, 673.) The evidence of an alibi is like any other evidence which tends to negative the guilt of the accused. Self-defense and insanity are regarded as affirmative defenses, but the rule of law is that if the evidence in the case raises in the mind of the jury a reasonable doubt as to whether or not the killing was done in self-defense, or as to whether the party was insane at the time, the accused should have the benefit of such doubt and be acquitted. (Wright v. People, 4 Neb. 407; State v. Donahoe, 78 Iowa 486, 43 N.W. 297; State v. Cross, 68 Iowa 180, 26 N.W. 62; State v. Dillon, 74 Iowa 653, 38 N.W. 525; Baker v. State, 50 Neb. 202, 69 N.W. 749; Ballard v. State, 19 Neb. 609, 28 N.W. 271.)

Samuel H. Hays, Attorney General, for the State.

As to the allegation of time the indictment is sufficiently certain. It alleges that "on or about the twenty-sixth day of October, A. D. 1897, and before the finding and filing of this indictment," defendant committed the offense. This allegation is sufficient. (State v. Thompson, 10 Mont. 549, 27 P. 349, and cases there cited; Rev. Stats., sec. 7682; State v. Williams, 13 Wash. 335, 43 P. 15; Rema v. State, 52 Neb. 375, 72 N.W. 474, and cases there cited; State v. Hoover, 31 Ark. 676.) The indictment in other respects is sufficient. (2 Bishop's Criminal Practice, 1st ed., sec. 945; People v. Nelson, 56 Cal. 77; People v. Shuler, 28 Cal. 490.) On the question of the cross-examination of witnesses and whether prejudicial error was committed, authorities are of comparatively little value, owing to the varying circumstances of different cases. The general rule is that the opportunity of cross-examining the opposing party's witness is of course a matter of right, but the latitude allowable is very largely within the discretion of the trial court, and an appellate court will not interfere unless the discretion is oppressively abused. (8 Ency. of Pl. & Pr. 109.) The first instruction standing alone, we contend, states the rule of law correctly, and the second instruction was too favorable to defendant. It is sustained by the following authorities: Holley v. State, 105 Ala. 100, 17 So. 102; State v. Beasley, 84 Iowa 83, 50 N.W. 570; Carrity v. People, 107 Ill. 162; State v. Hamilton, 57 Iowa 596, 11 N.W. 5; State v. Northrup, 48 Iowa 587; Pellum v. State, 89 Ala. 28, 8 So. 83; Sackett's Instructions to Juries, 648.

HUSTON, C. J. Quarles, J., concurs. Sullivan, J., did not sit in the case.



Defendant was convicted of the crime of robbery, from which judgment of conviction, and from the order denying his motion for a new trial, defendant appeals. Defendant makes eighteen assignments of error, as grounds for a reversal of the judgment. The first assignment of error is to the sufficiency...

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