State v. Willis

• Decision Date: 14 June 1913
• Parties: STATE, Respondent, v. WALTER M. WILLIS, Appellant
• Court: Idaho Supreme Court

132 P. 962

24 Idaho 252

STATE, Respondent, v. WALTER M. WILLIS, Appellant

Supreme Court of Idaho

June 14, 1913

CRIMINAL LAW-HOMICIDE-MURDER OF SECOND DEGREE-EVIDENCE-ADMISSIBILITY-INSTRUCTIONS-CONTRADICTION.

1. Where a witness is asked a question in a criminal case, and opposing counsel objects to the same on the ground of immateriality, and the court announces that he would withdraw the evidence if its materiality was not shown, and no further action was taken by counsel for the defendant or the court in regard to the matter, and the ruling of the court is assigned as error on appeal on the ground that the materiality of the testimony was not shown, and the evidence was prejudicial to the rights of the defendant, and it appears by the record that such evidence in no way prejudiced the jury against the defendant and in no way strengthened the evidence of the state in showing the defendant guilty, this court will not set aside the ruling of the court on appeal.

2. In a trial upon a charge of murder, where a trial court in instructing the jury repeated the definition of murder and malice in several different instructions, and it appears that such definitions are the same in all the instructions and are only repeated after defining murder generally in connection with other matters upon which the jury are instructed in addition to the general definition of murder, such instructions of the court are not cumulative, and do not in themselves necessarily impress upon the minds of the jury the idea that in the opinion of the trial judge the defendant is guilty.

3. Where two instructions are given upon self-defense, and such instructions together state the law upon the subject of self-defense, this court will not reverse the case upon the assumed error that the court assumes and charges upon a theory not raised or indicated by the evidence, but will follow the rule announced by this court in the case of State v. Wright, 12 Idaho 212, 85 P. 493, wherein the court approved an instruction as follows: "An instruction that leaves the questions of fact to be found by the jury and only suggests the law applicable in case they find certain facts to exist, is not objectionable on the ground that it assumes that certain facts do exist."

4. Where instructions are requested by defendant at the conclusion of the trial, the trial judge is not justified in refusing the instructions on the ground that they were handed to him in bulk at or about the conclusion of the trial, but he should give such instructions if they state the law, or other instructions embracing the same principles of law, as the defendant is entitled to have the law given to the jury by the judge applicable to the facts as shown by the evidence introduced upon the trial.

5. It is not error of the trial court to refuse instructions tendered by defendant upon the trial of a criminal case where the charge is murder, even though such instructions embrace the law applicable to the facts of the case, if the law so stated is covered by other instructions given by the court.

6. Held, in this case, that the evidence supports the verdict of the jury.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

A prosecution for the crime of murder. Judgment for the state finding the defendant guilty of murder in the second degree. Affirmed.

Affirmed.

D. C McDougall, for Appellant.

"The prevailing rule is that where evidence is erroneously admitted, or admitted on the promise to connect it with the other evidence, which promise is not fulfilled, the error may be cured by withdrawing it by an instruction which admonishes the jury in distinct terms not to regard it in considering their verdict." (Thompson on Trials, sec. 2354; Davis v. Peveler, 65 Mo. 189; Zehner v. Kepler, 16 Ind. 290; Links v. State, 13 Lea (Tenn.), 701.)

The charge of the court is cumulative, and repeats time and again in such manner as to impress upon the minds of the jurymen the idea that in the opinion of the trial judge the appellant was guilty. (Powell v. Messer, 18 Tex. 406; Traylor v. Townsend, 61 Tex. 147; Irvine v. State, 20 Tex. App. 12.)

"If the court assumes and charges on a theory not raised or indicated by the evidence, it is radical error, and fatal to the conviction." (Thomas v. State, 34 Tex. App. 482, 31 S.W. 170; Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 643; Hardin v. State, 13 Tex. App. 193; Lynch v. State, 24 Tex. App. 362, 5 Am. St. 888, 6 S.W. 190.)

The court should have submitted appellant's offered instruction to the jury concerning the absence of malice shown. The record will show that the court in his charge to the jury defined malice four different times, thus making that question very prominent in said charge. (State v. Hossack, 116 Iowa 194, 89 N.W. 1077; McClain, Crim. Law, sec. 419; People v. Hyndman, 99 Cal. 1, 33 P. 782; Commonwealth v. Holmes, 127 Mass. 424, 34 Am. Rep. 391.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, for Respondent.

A reading of the court's instructions so clearly shows the fairness of them that argument is unnecessary. (State v. Marren, 17 Idaho 766, 790, 107 P. 993.)

"An instruction that leaves the questions of fact to be found by the jury and only suggests the law applicable in case they find certain facts to exist is not objectionable upon the ground that it assumes that certain facts do exist." (State v. Wright, 12 Idaho 212, 85 P. 493.)

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

OPINION

STEWART, J.

The appellant was tried upon an information against him by the prosecuting attorney of Bannock county, in which the appellant was charged with the crime of murder in the first degree in the killing of one Chauncey Sessions. The jury found the appellant guilty of murder in the second degree, and the trial court committed him to the state penitentiary for a term of from fifteen to thirty-five years. This appeal is from the judgment and also from the order denying a motion for a new trial.

It is admitted that the appellant killed Chauncey Sessions by cutting his throat with a knife. The facts are about as follows: The appellant and the deceased became acquainted about January 1, 1912. The killing occurred on September 2, 1912. The appellant and the deceased, after their acquaintance, became close friends and were often associated together. On the day of the killing the deceased came to Downey with a load of wheat, and after unloading the wheat at the elevator the deceased and the appellant met and they continued friendly thereafter up to the time of the killing. This meeting between the parties was in the morning on Labor Day. These parties associated with other parties and the entire crowd engaged in drinking intoxicating liquors more or less, and were under the influence of the liquor up to the time of the killing. The evidence shows very clearly that the appellant, the defendant, and the deceased, were on the best of terms with each other all the day. Just prior to the killing Jack Russell and Nels C. Olsen were playing cards in the office of the elevator company. The table upon which they played was on the west side of the office and the entrance or door of the office was east of them, a distance of some six or eight feet. Others present at the time were the witnesses Norton, Robinson, Coffin, Cutright, deceased and appellant. The deceased was in the north part of the room, sitting or lying down on some grain sacks. Immediately preceding the difficulty the deceased and appellant were talking together in a friendly way. Appellant approached the table where Russell and Olsen were playing cards, when Russell asked him for a drink of whisky out of a bottle which appellant had, and appellant told Russell to go to hell, and further stated that if he (Russell) fooled with him that he would cut his damned head off and throw it at him, whereupon Russell said, "You would not cut anything." Appellant replied, "I'll show you," and proceeded to cut Russell's shirt on the left arm but did not touch Russell's flesh. Just after this occurred, and within a minute or two, Chauncey Sessions, the deceased, arose from the sacks where he had been sitting and lying and started toward the appellant and made the statement that the appellant had been trying to run over everybody all day, and that he was getting tired of it, and assaulted appellant from behind, grabbing him and striking him and trying to hit him with his fist, and there is evidence that the deceased struck appellant at least twice with his fist. The appellant about this time broke loose from the deceased and he stepped away from him and remarked: "Well, what do you know about that?" About this time they were passing words and striking at each other, and from their actions showed that they were all pretty thoroughly intoxicated and that they were acting under the influence of the liquor, and that none of the parties were prompted by any particular influence other than from the effects of the liquor. About this time the witness, Cutright, came to the door with a large knife in his hand, opened. And about this time the appellant struck Sessions, the deceased, and cut his throat, from the effect of which he died in about two hours afterward. There was only one stroke and one cut and one assault. The whole transaction did not take more than a few minutes.

The defendant, in relating what happened during the forenoon of the day of the killing, testifies that the appellant and the deceased and Russell, Olsen, Cutright, Toler, Norton and Robinson formed a party, and they were drinking, and they went on an auto ride down to Hot Springs, three or four miles from Downey, and then went back and got dinner and...