State v. Wetter

• Decision Date: 24 November 1905
• Citation: 11 Idaho 433,83 P. 341
• Parties: STATE v. WETTER
• Court: Idaho Supreme Court

83 P. 341

11 Idaho 433

STATE v. WETTER

Supreme Court of Idaho

November 24, 1905

INFORMATION CHARGING MURDER-APPLICATION FOR CONTINUANCE-APPLICATION TO TAKE DEPOSITIONS-ADMISSIBILITY OF EVIDENCE-INSANITY-INSTRUCTIONS.

1. Where an information charges murder and a demurrer is filed which is overruled by the court, and no error is predicated on such ruling in this court, it will be treated as waived.

2. Where an application for a continuance is filed and overruled by the court, it will only be reversed in this court where it is shown that there was an abuse of discretion in the court below.

3. Where there is an application to take depositions outside of this state, and such application is denied by the lower court, and it further appears that the evidence sought to be procured would not change the result of the trial, the action of the lower court will not be disturbed. The granting or refusal of such application being within the discretion of the trial court, it will only be disturbed where it is shown that there has been an abuse of such discretion.

4. Where a witness is asked a question that in itself is immaterial and no foundation is laid by which it may become material, a ruling sustaining the objection will be sustained.

5. Where the defense is insanity, it is always brought into the case by the defendant, and until he furnishes such evidence of insanity-at least sufficient to raise a question of doubt in the minds of the jurors-the prosecution may rest upon the legal proposition that all men are supposed to be sane and legally responsible for their acts.

6. Where it is shown that the instructions taken as a whole correctly state the law and are uniformly fair to the defendant, and that from the entire record no possible benefit could flow to the defendant from granting a new trial, the judgment will be sustained.

(Syllabus by the court.)

APPEAL from the District Court of Idaho County. Honorable Edgar C Steele, Judge. Judgment affirmed.

Affirmed.

W. N Scales, for Appellant.

An erroneous instruction containing a plain statement of an incorrect principle of law is not cured by other instructions. (People v. Westlake, 124 Cal. 452, 57 P. 467; People v. Higgins (Cal.), 12 P. 301; State v. Webb, 6 Idaho 428, 55 P. 892.)

J. J Guheen, Attorney General, Edwin Snow and F. S. Wettach, for Respondent.

In asking for a continuance on the ground of absence of a material witness, it is not sufficient that the affidavit should state that the attendance of such witness can be procured at the next term. It must state the ground of such opinion of the affiant as to such attendance, so that the court may form its own conclusion on the subject. (Dacey v. People, 116 Ill. 566. 6 N.E. 155; State v. O'Neill, 13 Or. 183, 9 P. 284.) In State v. Turlington, 102 Mo. 643, 15 S.W. 141, it is said: "Where it appears that the testimony of absent witnesses, as set out in an application for a continuance, would not make out such a defense of insanity as required by law, if the witnesses were present, the application is rightly overruled." (Faulkner v. Territory, 6 N. Mex. 464, 30 P. 905; Fisher v. State, 30 Tex. App. 503, 18 S.W. 90.) Where a prisoner relies upon a plea of insanity, but there is no evidence whatever that he had exhibited any sign of insanity, evidence tending to show that some of his uncles and aunts were insane is inadmissible. (Green v. State, 64 Ark. 523, 43 S.W. 973; People v. Smith, 31 Cal. 466; Bradley v. State, 31 Ind. 492; Sawyer v. State, 35 Ind. 80; State v. Van Tassel, 103 Iowa 11, 72 N.W. 497; Laros v. Commonwealth, 84 Pa. 201; State v. Cunningham, 72 N.C. 469.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

The prosecuting officer of Idaho county filed an information in that county charging the defendant with the crime of murder. The charging part of the information follows: "That the said Rudolph Wetter, on or about the nineteenth day of July, 1904, at the county of Idaho state of Idaho then and there being, did then and there willfully, deliberately, 'premeditatedly,' unlawfully, feloniously and with malice aforethought kill and murder one Christ Long, a human being, by then and there willfully, deliberately, 'premeditatedly,' unlawfully, feloniously, and with malice aforethought, shooting at, in and upon the body and person of the said Christ Long, with a certain gun, to wit, a rifle, the same then and there being a deadly weapon, and then and there loaded with powder and leaden ball, and then and there held in the hands of the said Rudolph Wetter, and the said Rudolph Wetter did then and there willfully, deliberately, premeditatedly, unlawfully, feloniously and with malice aforethought, wound, kill and murder him, the said Christ Long."

Counsel for appellant demurred to the information, first, "that said information does not state facts sufficient to constitute a public offense; second, that said information does not substantially comply with the requirements of sections 7677, 7678, 7679 of the Revised Statutes of Idaho." This demurrer was overruled, and an exception saved, but counsel for appellant does not urge the ruling of the court as error, hence we infer, after more mature deliberation, he abandoned it; at least we will treat it as waived. It is also shown that at the time fixed for defendant to plead, his counsel filed a motion to set aside the information. This motion was overruled, to which ruling an exception was saved.

Counsel for appellant does not urge this ruling as error, hence it will be treated waived also. On the ninth day of September W. N. Scales, counsel for appellant, filed a motion supported by his affidavit for a continuance of the case until a future term of the court. In this affidavit it is shown that the preliminary examination was had on the first and second days of August, 1904, and the defendant held to answer; that on the fifth day of September thereafter, the county attorney filed an information charging defendant with murder in the first degree, and on the same day filed a second information charging the defendant with a like offense. The affidavit then states that one of the defenses to be interposed, and which will be a substantial and material part of the defense, will be that at the time of the alleged offense defendant was insane and not responsible for any act committed at that time. That affiant has been informed that some of the near relations of the defendant have been or are insane; that affiant has been informed that a brother of defendant is insane and was confined in the insane asylum in California. Then the affidavit states that affiant had addressed a letter to the "Superintendent Insane Asylum, Asylum Station, California," in which affiant had requested said superintendent to inform him whether said brother of defendant was confined in said asylum, the cause of such insanity, how long he had been there, what form it assumed, whether he was cured, and where he now was; that affiant informed said superintendent of the great importance of the information sought and the necessity for a prompt response. That said letter was duly mailed; that afterward it was returned with the San Francisco and another postmark, for better direction. That affiant has been informed that said address was correct. Affiant was also informed that said brother was admitted to the insane asylum under the name of Jos (or Thomas) C. Brainbridge. That thereafter defendant received a letter addressed on the inside "Dear Brother" and signed "Your sister, Amelia," therein giving her address as New Hope, Pennsylvania. Said letter bore the postmark, "Grangeville, Idaho Sept. 1st, 1904," and "New Hope, Pennsylvania, Aug. 22, 1904," and was handed thereafter to affiant, in which appears this: "I had hoped Charlie was the only one of the family who would show any signs of insanity." Affiant has never had any communication with any member of the family, did not know their address, and the last-mentioned letter seems from its reading to have been written on account of information received from one Mrs. Campbell, post office, Resort, that the defendant was in trouble. From what affiant has heard and from said letter he is thoroughly convinced that the defendant has near relatives, or a near relative, insane, or who has been insane. Then it is stated that affiant will be unable to ascertain the facts in regard to the insanity of the near relatives of defendant in time for trial at the present term of court; that defendant has no relatives in Idaho as far as affiant knows or believes; that there is no witness or person in this state that this affiant knows or has known of by which he can prove anything about the insanity of the relatives of defendant. That such testimony will be absolutely necessary and material in the defense of the defendant; that affiant is convinced that if this action is postponed until the next regular term of this court, he can either have a personal attendance of some person who will testify in regard to the insanity of the near relatives of the defendant; otherwise he can obtain a deposition of such person or persons; and a deposition of the superintendent of the insane asylum in which said brother was detained. That affiant cannot obtain at the present term of court the facts necessary to make a fair and just defense of the defendant, and without the evidence indicated herein the defendant cannot safely go to trial. That affiant cannot state the exact facts which he will be able to prove in regard to the insanity of the near relatives of the defendant, nor can he ascertain them from the defendant, who has been, as affiant is informed, long absent from his home, and knows nothing of his own knowledge about the same;...