State v. Wilson

• Decision Date: 14 November 1925
• Citation: 243 P. 359,41 Idaho 616
• Parties: STATE, Respondent, v. WILLIAM C. WILSON, Appellant
• Court: Idaho Supreme Court

243 P. 359

41 Idaho 616

STATE, Respondent, v. WILLIAM C. WILSON, Appellant

Supreme Court of Idaho

November 14, 1925

CRIMINAL LAW - HOMICIDE - MOTION TO QUASH - QUALIFICATION OF JURORS-DE FACTO OFFICERS-DYING DECLARATIONS-STATEMENTS BY DEFENDANT - EXHIBITS - THREATS BY DECEASED - ARREST - RIGHT OF OFFICER IN MAKING ARREST - MISDEMEANORS - DECEASED'S DISPOSITION-EVIDENCE-CROSS-EXAMINATION OF DEFENDANT-IMPEACHMENT-INSTRUCTIONS.

1. Granting the prosecutor leave not to file an information, and discharging the defendant without prejudice before an information is filed in the district court, are not grounds upon which to base a motion to quash.

2. Where the complete examination of a prospective juror on the disputed point of qualification is not in the transcript, the trial court's rulings in connection therewith will not be presumed erroneous.

3. A venireman who has conscientious scruples against the infliction of the death penalty is not qualified, where the offense charged is murder in the first degree.

4. Where an office exists under the law, and a person is appointed or elected to fill such office, and duly qualifies and enters upon the discharge of his official duties, he is a de facto officer, notwithstanding the fact that he may not possess the prescribed statutory qualification of citizenship.

5. An antemortem statement as to the cause of death, made by the deceased soon after receiving an injury from which he died made when death was apparently imminent and while the deceased believed that he was about to die, is admissible in evidence as against the defendant, on the charge of murdering the deceased.

6. Voluntary statements made by the defendant at the time of and while under arrest, shown not to have been made under, or induced by, threats, coercion, violence or the hope or promise of benefits to accrue to him therefrom, may be proved on the trial.

7. When an arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest.

8. An officer making an arrest has the right to use such force as is necessary to subject the person sought to be arrested to his authority, but the officer may not kill a misdemeanant in arresting him; and if the officer uses unnecessary force, the relations between the parties become the same as between private individuals; and if the person sought to be arrested believes or has reason to believe that he is in danger of being killed, or of receiving great bodily injury, he may defend himself, repelling force with force, to the extent of slaying the officer when necessary to save his own life, or save himself from great bodily injury.

9. On a charge of homicide where self-defense is relied upon, the reputation of the deceased for being turbulent, quarrelsome or dangerous, if communicated to the defendant, is admissible; this rule, however, may not on direct examination be extended to include specific acts based on hearsay.

10. If a defendant has, on direct examination, testified concerning any matter connected with the transaction, he may be fully cross-examined concerning any matters of which he has testified.

11. Where the appellant had testified, on cross-examination without objection, that the deceased had searched his place several times, it was not prejudicial error to ask appellant if the officer had made such searches with the required search-warrants, or to compel an answer to such question.

12. Where an offer of proof includes inadmissible matter, it is not erroneous to sustain an objection to the entire offer.

13. Instructions examined and held not prejudicially erroneous.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. O. R. Baum, Judge.

Appellant charged with murder in the first degree, was convicted of murder in the second degree. Affirmed.

Judgment of the lower court affirmed. Petition for rehearing denied.

Ralph L. Albaugh and W. A. Ricks, for Appellant.

C. S secs. 8819, 8865-8874, and 8875, plainly contemplate that the filing of new indictment or an information after demurrer sustained, or upon a dismissal of the cause, shall rest in the discretion of the court, not in the discretion of the district attorney, and that it shall be filed upon the court's direction to the district attorney to do so. (Ex parte Williams, 116 Cal. 512, 48 P. 499; Adams v. State (Okl.), 209 P. 189; Ex parte Hayter, 16 Cal.App. 211, 116 P. 370; State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785; In re Pierce, 8 Idaho 183, 67 P. 316.)

In the event the offense charged is punishable with death, the entertaining of conscientious opinions such as would preclude the finding of the accused guilty is ground of challenge for implied bias. (C. S., sec. 8930, subd. 9.)

The appointing power must comply with the formalities prescribed by law in order that appointment may be valid and the appointment of an ineligible person is an absolute nullity. (29 Cyc. 1374; People v. Lindblom, 215 Ill. 58, 74 N.E. 73; People v. Platt, 117 N.Y. 159, 22 N.E. 937; State v. Aldermen of Pierce City, 91 Mo. 445, 3 S.W. 849.)

The validity or regularity of an appointment or election of a public officer cannot be inquired into in an action to which he is not a party, but enough inquiry into the validity of his title may be made to determine whether he is an intruder, since the acts of an intruder may be treated as null and void in any proceeding. (29 Cyc., 1375; United States v. Alexander, 46 F. 728.)

If an officer in making an arrest acts in such a wanton and menacing manner as to threaten persons being arrested with serious bodily harm, the latter have the right to defend themselves by means proportionate with the necessities of the occasion, as viewed from their standpoint. (Snow v. State, 91 Tex. Cr. 1, 237 S.W. 563; State v. Anselmo, 46 Utah 137; 148 P. 1071; Condron v. State (Tex. Cr.), 155 S.W. 253; Owen v. State, 58 Tex. Cr. 261, 125 S.W. 405.)

As a general rule, an officer has no right, except in self-defense, to kill a mere misdemeanant, in attempting to arrest him or to prevent his escape after arrest. (Harding v. State, 26 Ariz. 334, 225 P. 482; State v. Smith (Iowa), 101 N.W. 110; North Carolina v. Gosnell, 74 F. 734; Williams v. State, 44 Ala. 41; Handley v. State, 96 Ala. 48, 38 Am. St. 81, 4 Ann. Cas. 760, 11 So. 322.)

Uncommunicated threats are admissible on the issue as to which party brought on the conflict. (1 Wigmore on Evidence, sec. 10.)

A person charged with homicide is entitled to rely on proof of the desperate character of the deceased, and of special acts communicated to him indicating his dangerous character, as tending to show that he acted in self-defense. (State v. Burton, 63 Kan. 602, 66 P. 633; note, 3 L. R. A., N. S., 372; State v. Davis (N. M.), 234 P. 311; State v. Dowen (Kan.), 234 P. 46.)

It is improper in a homicide case, upon cross-examination, to ask the accused if he is not a bootlegger. (Wooton v. Commonwealth, 200 Ky. 588, 255 S.W. 153; People v. Greenwall, 108 N.Y. 296, 2 Am. St. 415, 15 N.E. 404; State v. Gottfreedson, 24 Wash. 398, 64 P. 523; State v. Hale, 156 Mo. 102, 56 S.W. 881; Nix v. State (Tex. Cr. ), 74 S.W. 764; State v. Sheppard, 49 W.Va. 582, 39 S.E. 676; Hall v. United States, 150 U.S. 76, 14 S.Ct. 22, 37 L.Ed. 1003; State v. Roscum, 119 Iowa 330, 93 N.W. 295; People v. Derbert, 138 Cal. 467, 71 P. 564; State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; People v. Montgomery, 176 N.Y. 219, 68 N.E. 258; State v. Douglass, 35 Idaho 140, 208 P. 236; State v. Givens, 28 Idaho 253, 152 P. 1054.)

An exception to the general rule excluding evidence as to the character of the deceased on trial for homicide exists in cases where the defendant admits the killing and claims to have acted in self-defense; and, as bearing on this issue, after laying a proper foundation, produces evidence of the turbulent and dangerous character of the deceased. (Garner v. State, 28 Fla. 113, 29 Am. St. 232, 9 So. 835; People v. Tracy, 1 Utah 343; Williams v. State, 14 Tex. App. 102, 46 Am. Rep. 237; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; note, L. R. A. 1916A, 1245.)

An officer making an arrest has no right to use more force than is reasonably necessary to subject the person sought to be arrested to his authority; and, where he goes further and uses unnecessary force, the relations between the parties become the same as those between private individuals; and, if the person sought to be arrested believes, or has reason to believe, that he is in danger of being killed, or of receiving great bodily harm, he may defend himself, repelling force with force, to the extent of slaying the officer when necessary to save his own life, or save himself from serious bodily harm. (Williams v. State, 44 Ala. 41; Appleton v. State, 61 Ark. 590, 33 S.W. 1066; Plummer v. State, 135 Ind. 308, 34 N.E. 968; Bullock v. State, 65 N.J.L. 557, 86 Am. St. 668, 47 A. 62; Vann v. State, 45 Tex. Cr. 434, 108 Am. St. 961, 77 S.W. 813.)

Where an officer arrests a person without lawful authority, it constitutes an illegal assault which may be resisted; and if the death of the person seeking to make the arrest results from the resistance, it is excusable homicide. (Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751; Creighton v. Commonwealth, 83 Ky. 142, 4 Am. St. 143; Simmerman v. State, 14 Neb. 568, 17 N.W. 115; Cortez v. State. 44 Tex. Cr. 169, 69 S.W. 536; Earles v. State (Tex.), 94 S.W. 464.)

In the absence of proof of malice aforethought, a conviction of murder in the second degree cannot be sustained. (State v. Buster, 28 Idaho 110, 152 P. 196.)

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