State v. Whisler

• Citation: 32 Idaho 520,185 P. 845
• Parties: STATE, Respondent, v. P. A. WHISLER, Appellant
• Decision Date: 25 November 1919
• Court: United States State Supreme Court of Idaho

185 P. 845

32 Idaho 520

STATE, Respondent, v. P. A. WHISLER, Appellant

Supreme Court of Idaho

November 25, 1919

CRIMINAL LAW-APPEAL AND ERROR-CHANGE OF VENUE-EVIDENCE-CORROBORATION OF ACCOMPLICE.

1. Held by a majority of the members of the court that, in order to procure a review of the ruling of a trial judge denying a motion for a change of venue, an exception thereto must be saved in the record and presented to this court by bill of exceptions prepared and settled in conformity to C. S., sec 9010.

2. Evidence of a material fact which, independent of the testimony of an accomplice, tends to connect the defendant with the commission of the offense charged is sufficient to satisfy the requirements of C. S., sec. 8957.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Isaac F. Smith, Judge.

Appellant was convicted of arson in the second degree. Affirmed.

Affirmed.

Frank D. Ryan and Hawley & Hawley, for Appellant.

The testimony of J. W. Bullis, a witness for the prosecution, and admitted to be an accomplice in the crime with which the defendant was charged, was not corroborated by other evidence, so as to entitle it to be considered as sufficient to base a conviction upon, and for that reason the jury should have been advised to acquit the defendant. (Sec. 7871 Rev. Codes of Idaho; Commonwealth v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; 5 Corpus Juris, 583; 20 R. C. L 771; State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Smith, 30 Idaho 337, 164 P. 519; State v. Bond, 12 Idaho 424, 86 P. 43; People v. Morton, 139 Cal. 719, 73 P. 609.)

The testimony of the witness, Ruth Bullis, could not be properly considered as corroborating evidence, because said witness was herself an accomplice, under the law, in the crime charged against appellant. (People v. Creegan, 121 Cal. 554, 53 P. 1082; United States v. Hinz, 35 F. 272.)

Roy L. Black, Attorney General, A. F. Stone and Clarence S. Hill, Assts., for Respondent.

In order to present the action of the trial court in overruling a motion for a change of venue, the same must be preserved and presented to this court by a bill of exceptions. ( State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Ray, 32 Idaho 363, 182 P. 857; State v. Crawford, 32 Idaho 165, 179 P. 511.)

The testimony of Mrs. Bullis, as contained in the record, is sufficient corroboration of the evidence of J. W. Bullis upon which to sustain the conviction in this case. (State v. Smith, 30 Idaho 337, 164 P. 519; State v. Grant, 26 Idaho 189, 140 P. 959.)

The wife of an accomplice is not an accomplice. In order to be an accomplice one must be connected with the crime charged against defendant. (16 C. J. 672.)

MORGAN, C. J. Rice, J., concurs. BUDGE, J., Dissenting.

OPINION

MORGAN, C. J.

Appellant moved for a change of venue on the ground that bias and prejudice existed against him in the minds of the people of Washington county, where the action was pending, to such an extent as to prevent him from having a fair and an impartial trial by a jury selected therein. Many affidavits were filed in support of and in opposition to the motion and, upon consideration of the showing so made, it was denied. That ruling is assigned as error.

While the transcript contains copies of the affidavits above mentioned, of the court minutes with respect to the motion and of the order denying it, an exception to the ruling does not appear to have been taken, as provided by C. S., sec. 9009, nor does the transcript contain a bill of exceptions prepared and settled in conformity to sec. 9010. Justices Rice and Budge are of opinion the action of the trial court in denying a change of venue is not properly before us for review and have declined to consider the assignment of error by which appellant seeks to present it. ( State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Ray, ante, p. 363, 182 P. 857.)

I have felt myself impelled to read the affidavits and the order and to try to apply the law thereto. (United States Constitution, Sixth Amendment; Idaho Constitution, art. 1, secs. 7 and 18.)

The affidavits filed in support of the motion are to the effect that public opinion and sentiment were such that appellant could not safely go to trial by a jury composed of citizens of Washington county. Those who made sworn statements in opposition thereto expressed the opinion, based upon their knowledge of existing conditions, that no such bias or prejudice existed as to prevent or interfere with him having a fair and impartial trial in that county. (State v. St. Clair, 6 Idaho 109, 53 P. 1; State v. Gilbert, 8 Idaho 346, 1 Ann. Cas. 280, 69 P. 62; State v. Rooke, 10 Idaho 388, 79 P. 82.) After a careful examination of the affidavits and of the law governing this question my conclusion is the order complained of did not constitute an abuse of discretion and was not error.

The evidence shows that the building which appellant was convicted of burning was leased and occupied by him as a confectionery shop and store some time prior to and until about October 20, 1917; that on or about that date a contract was entered into whereby he delivered possession of the building and business to his son-in-law, one Bullis, upon the expressed consideration of $ 4,500, to be paid in monthly instalments of $ 200 each, and whereby the insurance, which was $ 4,300, was, in the event of a loss, to be paid to appellant as his interest might appear; that on December 24, 1917, Bullis set fire to the building and partially destroyed it. He testified the sale of the business was but a pretense, and that appellant hired him to conduct the business and arranged with and procured him to burn the building so that he (appellant) might collect the insurance on the contents.

Appellant insists that the testimony of Bullis is not corroborated and that, therefore, the evidence is not sufficient to sustain the conviction. He relies on C. S., sec. 8957, which is as follows: "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof."

Bullis testified that a few days after the fire appellant, who was then living in Portland, Oregon, came to Weiser, where the crime had been committed; that he met him at the train and, after looking over the burned building, they went to the house where he (Bullis) lived; that they there had a conversation, in the presence of the wife of the witness, wherein appellant complained that he had not followed his instructions in the matter of burning the property. Bullis' wife testified to having heard portions of that conversation; that she heard appellant say, "'You should have set the fire before you did,' and 'If it all burned no one would have been the wiser or suspicioned.'" She also testified to a statement by appellant to the effect that if Bullis had followed his advice there would not have been any suspicion.

Bullis testified that after the fire he prepared a paper purporting to assign to appellant $ 1,000, which had been placed on deposit in a bank in El Paso, Texas, to the credit of his wife under an arrangement whereby it could not be paid to her until she became of age; that he and his wife signed the paper and he delivered it to appellant so the latter might show it, should occasion require, and might represent that it had been given at the time the business was transferred and was the first payment on the purchase price thereof; that thereafter the paper was delivered back by appellant and was destroyed. Mrs. Bullis also testified to the facts last above mentioned.

There is, in addition to the testimony of Mrs. Bullis, the corroborating circumstance, which it was the duty of the jury to consider and weigh in connection therewith, that appellant was the...