State v. Wilson

• Decision Date: 21 March 1932
• Docket Number: 5751
• Citation: 9 P.2d 497,51 Idaho 659
• Parties: STATE, Respondent v. RULON WILSON, Appellant
• Court: Idaho Supreme Court

9 P.2d 497

51 Idaho 659

STATE, Respondent v. RULON WILSON, Appellant

No. 5751

Supreme Court of Idaho

March 21, 1932

CRIMINAL LAW-INJURY TO JAIL-ACCESSORIES BEFORE FACT-INFORMATION-OBJECTIONS, WHEN MADE-NEW TRIAL, GROUNDS FOR-EVIDENCE-ADMISSIONS-CONFESSIONS.

1. Grounds for new trial enumerated in statute are exclusive and beyond power of courts to extend (C. S., sec. 9017).

2. That counsel did not permit defendant to testify, or call a witness, that his co-defendants were shackled together in presence of jury, that defendant was tried on information alleging that he had an alias, are not statutory grounds for new trial (C. S., sec. 9017).

3. Where defendant in no way objected or procured ruling in respect of shackling of co-defendants in presence of jury, he waived objection.

4. Where defendant made no objection to trial on information alleging he had an alias, objection was waived.

5. Presumption is that on arraignment proceedings required by statute for ascertaining defendant's true name were had and that alias remained in information because defendant did not declare true name (C. S., sec. 8861).

6. Defendant cannot say he was prejudiced by admission, of evidence that he purchased acid not used in crime when same evidence was given by another witness without objection.

7. In prosecution for injuring public jail, evidence that prior to offense search was made by sheriff and hacksaws were removed held not prejudicial to accessory before fact (C. S., sec 8562).

8. Where defendant on outside supplied hacksaws used by prisoners in attempted escape from jail, he could be convicted for injuring jail only as accessory before fact (C S., secs. 8093, 8562).

9. Generally, evidence admissible against principal is admissible against accessory to prove principal's guilt.

10. Acts and declarations of principals tending to show their guilt are admissible against accessory, provided there is other evidence tending to connect him with commission of offense.

11. Accessory who failed to object to evidence of principals' admissions and asked for no limiting instructions cannot complain of admission of such evidence.

12. Where court limited evidence of principals' admissions accessory cannot complain of admission of such evidence, since instruction was in his favor.

13. Where state proved the making of voluntary admissions, and defendant did not deny them or prove they were involuntary, whether they were involuntary could not be considered on motion for new trial (C. S., sec. 9017).

14. Statements as to visit to jail, acquaintance with prisoners, purchase of hacksaws and delivery of them at jail held "admission" rather than "confession" of injuring public jail, hence proof that statements were voluntary was unnecessary (C. S., sec. 8562).

15. Admissions are admissible without preliminary showing that they were made voluntarily and without promise of immunity or reward.

16. Accessory cannot be convicted on proof of his extrajudicial admissions, in absence of corroborating circumstances tending to show commission of offense charged.

17. Slight corroborative evidence of accessory's extrajudicial admissions tending to prove commission of offense charged is sufficient to support conviction.

18. Evidence sustained conviction of accessory before fact of injuring public jail (C. S., sec. 8562).

19. Weight of evidence is for jury.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Appellant was convicted of crime of injuring a public jail and appeals from judgment of conviction and order overruling motion for new trial. Affirmed.

Affirmed.

Walter H. Anderson, for Appellant.

This defendant should not have been tried when his co-defendants were handcuffed and shackled in the presence of the jury during the trial. (People v. Harrington, 42 Cal. 165, 10 Am. Rep. 296; State v. Kring, 64 Mo. 591; Territory v. Kelly, 2 N.M. 292; State v. Williams, 18 Wash. 47, 63 Am. St. 869, 50 P. 580, 39 L. R. A. 821.)

The defendant, Wilson, should not have been tried upon an information alleging an alias. (People v. Maroney, 109 Cal. 277, 41 P. 1097.)

The alleged confession or statements of the defendant should not have been received against him. They were involuntarily given. (People v. Quan Gim Gow, 23 Cal.App. 507, 138 P. 918; People v. Loper, 159 Cal. 6, Ann. Cas. 1912B, 1193, 112 P. 720; People v. Borello, 161 Cal. 367, 119 P. 500, 37 L. R. A., N. S., 434.)

Fred J. Babcock, Attorney General, Z. Reed Millar, Assistant Attorney General and Isaac McDougall, Prosecuting Attorney, for Respondent.

Confessions and admissions of the principal are admissible to prove the principal's guilt, provided the effect thereof is limited for that purpose. (16 C. J. 146; Mulligan v. People, 68 Colo. 17, 189 P. 5.)

A defendant remaining silent during his trial and speculating on a verdict in his favor, and then finding it against him, will not be allowed to raise the objections which he should have made upon the trial. (State v. Keyser, 38 Idaho 57, 219 P. 775; State v. Baker, 28 Idaho 727, 156 P. 103; 16 C. J. 836, sec. 2111; People v. Mendez, 193 Cal. 39, 223 P. 65.)

An admission is distinguished from a confession by the fact that an admission relates to matters of fact, not involving a criminal intent, while a confession is an acknowledgment of guilt. (People v. Elder, 55 Cal.App. 644, 204 P. 29; People v. Fowler, 178 Cal. 657, 174 P. 892; State v. Stevens, 60 Mont. 390, 199 P. 256; 1 Words & Phrases, 3d Series, pp. 281-283; 1 Words & Phrases, 2d Series, p. 119.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

Appellant and three others were jointly tried and convicted of the offense of injuring a public jail, as defined by C. S., sec. 8562. From the judgment of conviction and from an order denying his motion for new trial appellant alone appeals.

The record discloses that all of the defendants and appellant were represented upon arraignment and throughout the trial by counsel appointed by the court. In proceedings connected with the motion for new trial and this appeal appellant is represented by other counsel.

The evidence establishes conclusively that appellant's three co-defendants, on the night of March 13, 1931 and early morning of March 14, 1931, by means of hacksaws, cut a hole in the steel floor of a tank in the Bannock county jail, in which they were confined, crawled through the hole and the space between the floor of the tank and the floor of the jail, and also by the use of hacksaws cut through two iron bars in a window of the jail, through which they unsuccessfully prepared to escape, being there apprehended by two deputy sheriffs. The following evidence tends to connect appellant with the crime charged:

A police officer, chief of detectives and a deputy sheriff testified to a conversation had with appellant on March 24, 1931, at the office of the chief of detectives after appellant's arrest on that day, each testifying substantially as follows: That appellant was advised that he did not have to make a statement unless he wanted to; that he talked freely; that he said he had visited a woman at the county jail but repeatedly stated that his co-defendant Cornish was the only man that he knew and visited there and that he had talked with him about purchasing his (Cornish's) car; that appellant stated that he purchased hacksaws at Manning & Sorgatz's, a hardware store, and acid at Whittlesley's drug-store, both in Pocatello, and delivered the hacksaws and acid to the county jail; that he also stated that the party he delivered the hacksaws and acid to at the county jail offered to pay him for doing so but he only took what the acid and hacksaws actually cost; that he would rather not name the party he gave these articles to as he "didn't want to be classed as a rat," although one witness testified positively that appellant said he delivered the saws to Cornish; and that appellant said he signed the register at Whittlesley's drug-store when he purchased the acid.

A deputy sheriff testified that in a conversation with appellant's co-defendant Lucero, in the sheriff's office on March 14, 1931, Lucero stated that a bottle of acid was sent to Cornish but the bottle was dropped and broken. Another deputy sheriff testified that in a conversation with appellant's co-defendant Cornish in the sheriff's office on March 14, 1931, Cornish "contended from the start that he was to blame for the whole thing."

H. B. Whittlesley, proprietor of Whittlesley's drug-store, testified that he knew appellant; that appellant was in his drug-store almost every day and on March 8 or 9, 1931, purchased hydrochloric acid; that four days prior thereto appellant asked the witness what kind of acid would eat soft iron off hard steel; that the witness informed him that the acid would eat both and he better use an oxyacetylene torch but appellant said that could not be done.

Walter J. Ford, pharmacist employed at Whittlesley's drug-store, testified that he knew appellant and that on March 8, 1931, appellant was in said drug-store and purchased twelve ounces of hydrochloric acid and that he saw appellant sign the poison register, introduced in evidence, after making such purchase "George Rogers, 654 North Ninth," and that the witness initialed such signature.

There is also evidence to the effect that at least one hacksaw was found in the window of the jail at the time appellant's co-defendants were apprehended. The sheriff and a deputy testified that about the middle of February, 1931, a thorough search of the jail was made and two hacksaw blades were found and removed.

In support of his motion for new trial appellant filed an affidavit in which...