State v. Winter
| Decision Date | 17 October 1913 |
| Citation | 24 Idaho 749,135 P. 739 |
| Parties | STATE, Respondent, v. GEORGE WINTER, Appellant |
| Court | Idaho Supreme Court |
POWER OF COURT TO CORRECT RECORD-CRIMINAL LAW-RESISTANCE OF OFFICER-INTENT IN RESISTING OFFICER.
1. Where a court of record discovers that the minute entry of an order of court is false and does not correctly state the order, the court has the power and jurisdiction to correct the same so as to make the record speak the truth.
2. In a prosecution under sec. 6515 of the Rev. Codes, for resisting an officer in the discharge of his duty, it is not necessary that the resistance should have been made with any particular intent of violating the law or injuring the officer or anyone else, but it is essential that the person making the resistance should have had knowledge that the person resisted was an officer and that he was engaged in the discharge of or the attempt to discharge, an official duty.
3. In a prosecution for unlawfully resisting or obstructing an officer in the discharge of his official duty, it is no defense for the defendant to show that threats had been made against him by other parties or that at the time he was in fear of bodily injury being inflicted upon him or his property being injured or destroyed.
4. Evidence examined in this case and held sufficient to support the verdict.
5. Facts and circumstances of this case examined and held that the judgment is excessive, and it is modified accordingly.
APPEAL from the District Court of the Fifth Judicial District for Bear Lake County. Hon. Ed. L. Bryan, Judge of the Seventh District, presiding.
Prosecution for wilfully resisting an officer engaged in the discharge of his duty. Verdict and judgment of conviction. Appealed. Verdict of conviction affirmed, and judgment of fine and imprisonment modified.
Judgment reversed and set aside.
N. M Ruick and J. H. Hawley, for Appellant.
The record cannot be amended at a subsequent term where there is no record or memoranda of the former order. Affidavits will not do. (Wright v. Commonwealth, 111 Va. 873, 69 S.E. 956; Kilmer v. Parrish, 144 Ill.App. 270; McKay v. People, 145 Ill.App. 277; 11 Cyc. 765.)
Parol evidence is not proper basis for amendment or correction. (Coughran v. Gutcheus, 18 Ill. 390; Crowell v. Deen 21 Ill.App. 363.)
The court rejected all testimony offered in behalf of the defendant tending to show that he was laboring under a mistake of fact, and also refused to give instructions requested by the defendant in support of this theory, viz., requested instructions numbered 9, 10, 11 and 13, which constitutes error. (McClain, Criminal Law, sec. 133; Rev. Codes Idaho, sec. 6330, subd. 4; 12 Cyc. 156; Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322; 5 Am. Crim. Rep. 385; 27 Cyc. 807, 809; Levett's Case, 1 Hale P. C. 474; Yates v. People, 32 N.Y. 509, cited in McClain, Crim. Law, supra; Isham v. State, 38 Ala. 213; Crabtree v. Dawson, 26 Ky. Law Rep. 1046, 83 S.W. 557, 67 L. R. A. 565.)
Such a defense is available under the charge of resisting an officer. (Wharton, Crim. Law, sec. 649.)
It was the right of the defendant to present to the jury a picture of his mind at the time of the offense by showing the facts as they appeared to him at that time; the reasonableness of the appearance was a question for the jury, and the court erred in excluding from the jury testimony calculated to show that defendant was actually laboring under a mistake of fact. (Robinson v. State, 53 Md. 151, 36 Am. Rep. 399; State v. Meche, 42 La. Ann. 273, 7 So. 573.)
A witness may testify in his own behalf as to what his intention was. (Cummings v. State, 50 Neb. 274, 69 N.W. 756; Fenwick v. State, 63 Md. 239; Elliott, Evidence, sec. 2717.)
The lower court, as appears from his instructions to the jury and his exclusion of evidence offered by the defendant, took the view that the defendant's intent was immaterial. In this he was in error, since intent is the very gist of the crime of resisting an officer. (Bishop, Crim. Law, sec. 287.)
Criminal intent is immaterial only in those cases where an act in itself not criminal is prohibited by statute on grounds of public policy, and the statute does not make the criminality of the act depend upon its being wilfully, or maliciously, or knowingly done. (McClain, Crim. Law, sec. 128; State v. Keller, 8 Idaho 699, 70 P. 1051; State v. Henzell, 17 Idaho 725, 734, 107 P. 67, 27 L. R. A., N. S., 159; 9 Ency. of Ev. 142.)
It is competent for the accused to give in evidence any facts tending fairly to show his intent. (Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614; State v. King, 86 N.C. 603; Wharton's Crim. Ev., sec. 428-A, and cases there cited.)
The court's charge, as given, threw upon the defendant the burden of negativing such knowledge, when the burden is on the state to prove knowledge of the facts which make the offense a crime, to the satisfaction of the jury beyond a reasonable doubt. (McClain, Crim. Law, sec. 924; Jones v. State, 114 Ga. 73, 39 S.E. 861; Wharton's Crim. Law, sec. 649; People v. Nash, 1 Idaho 206.)
"The evidence must show knowledge of some legal proceeding or process that had been interfered with; the intent will not be inferred merely from the act." (9 Ency. of Ev. 139, and cases cited; State v. Murphy (Del.), 66 A. 335; 2 Am. Dig. 1947.)
That which would make such resistance criminal is the evil intent or legal malice, including not only the purpose to do the act, but to do wrong. (Mills v. Glennon, 2 Idaho 105, 6 P. 116; Spurr v. United States, 174 U.S. 728, 19 S.Ct. 812, 43 L.Ed. 1150; Roberts v. United States, 126 F. 897, 61 C. C. A. 427; Potter v. United States, 155 U.S. 438, 15 S.Ct. 144, 39 L.Ed. 214; United States v. Smith, 27 F. 859; Felton v. United States, 96 U.S. 699, 24 L.Ed. 875.)
"'Wilful' when used in a statute creating a criminal offense implies the doing of the act purposely and deliberately in violation of law." (Lewis, Sutherland's Stat. Cons. 776; 40 Cyc. 944; Brown v. State, 137 Wis. 543, 119 N.W. 338; State v. Clifton, 152 N.C. 800, 67 S.E. 751; State v. Perry, 109 Iowa 353, 80 N.W. 401.)
J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, for Respondent. D. C. McDougall, Ex-Attorney General, and O. M. Van Duyn, Ex-Assistant, on brief.
Courts always have jurisdiction over their records to make them conform to what was actually done at the time.
"The power to amend or correct the record may be exercised in criminal as well as civil cases."
The record may be amended at any time so as to make it truly show the proceedings and judgment of the court.
The power of the court to make such corrections is not lost by mere lapse of time, and in this respect the rule as to the fact of the adjourning of the term has become obsolete. (Kaufman v. Shain, supra; Freeman on Judgments, sec. 71; Black on Judgments, secs. 155, 157, 158, 162; Coop v. Northcutt, 54 Mo. 128; In re Tolman, 101 Me. 559, 64 A. 952.)
"That the mistakes and clerical errors of the clerk can be amended and corrected at any time is a principle too well settled to require argument or the citation of authority." (Walsh v. Colby, 153 Mich. 602, 126 Am. St. 546, 117 N.W. 207; Bouldin v. Jennings, 92 Ark. 299, 122 S.W. 639; Clark v. Bank of Hennesy, 14 Okla. 572, 79 P. 217, 2 Ann. Cas. 219.)
To the general rule that ignorance or mistake of fact is a defense, there are certain exceptions. It does not apply to statutory offenses; so also a mistake of fact is not always an excuse if, considering the facts as they seemed to the accused, the intention was criminal, if he was engaged in an immoral act or if he voluntarily closed his eyes to the truth or negligently failed to make inquiry. (12 Cyc. 157; State v. Hardie, 47 Iowa 647, 26 Am. Rep. 496; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2; Behler v. State, 112 Ind. 140, 13 N.E. 272; Crabtree v. State, 30 Ohio 382; People v. Dolan, 96 Cal. 315, 31 P. 107; State v. Ruhl, 8 Iowa 447; Commonwealth v. Murphy, 165 Mass. 66, 52 Am. St. 496, 42 N.E. 504, 30 L. R. A. 734; Commonwealth v. Elwell, 2 Met. (Mass.) 190, 35 Am. Dec. 398; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144.)
We think the court in the case of State v. Estis, 70 Mo. 427, has taken the right view of introducing threats made by parties other than the officer executing the process. Such an offer was made in that case and the court refused it.
"It will be observed at once that the statute itself says nothing about the intent with which the person acts; it is no way deals with the subject of intent,--it only deals with the acts." (State v. Henzell, 17 Idaho 726, 107 P. 67, 27 L. R. A., N. S., 159.)
Evidence of threats made by others for the purpose of showing lack of intent is immaterial, and was properly barred by the court. (Secs. 11-135, McClain's Crim. Law; secs. 1009-1013, Bishop's New Crim. Law; secs. 2716-2718, Elliott on Evidence; secs. 446-447, Underhill on Criminal Evidence, 2d ed.; Woodworth v. State, 26 Ohio St. 196.)
Appellant herein was convicted of the crime of wilfully and unlawfully resisting an officer who was engaged in the discharge of official duty.
It appears that one J. M. Francis, a deputy sheriff, of ...
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