Territory v. Guthrie

• Decision Date: 27 February 1888
• Citation: 2 Idaho 432,17 P. 39
• Parties: TERRITORY v. GUTHRIE
• Court: Idaho Supreme Court

17 P. 39

2 Idaho 432

TERRITORY v. GUTHRIE

Supreme Court of Idaho

February 27, 1888

INDICTMENT-ACCESSARY.-By our statutes all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, are treated as principals, and should be prosecuted and punished as such yet if one who is in fact an accessary before the fact is indicted as such, this is not a defense of which the accused will be heard to complain.

INDICTMENT-DIFFERENT COURTS.-Under our practice, the indictment must charge but one offense, but the same offense may be set forth in different forms and under different counts. Held, that the indictment charging one defendant as principal and the other as an accessary before the fact charges but one offense.

CONTINUANCE-AFFIDAVIT-ADMISSION.-Where in a criminal action, the defendant applies for a continuance on the ground of absent witnesses, and the prosecution admits that the witnesses, if present, would testify to the facts as stated in the affidavit, and that such evidence, if proper be considered as actually given, the affidavit thereby becomes evidence, but not conclusive of its contents, and it is not error for the court after such admission to deny the continuance.

JUDGMENT-VOID SENTENCE-CORRECTION.-Where the indictment is good and no error appearing on the trial, but the sentence is void for uncertainty, the appellate court may remand the case to the court below, with directions to enter a proper judgment upon the verdict.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment vacated, and case remanded with direction.

Frank Ganahl, James H. Hawley and Albert Hagan, for Appellant.

It is competent to show bias and prejudice on the part of a witness, that the jury may scrutinize and perhaps discredit his testimony. (Roscoe's Criminal Evidence, 181, 182; 1 Greenleaf on Evidence, 450; State v. Dee, 14 Minn. 35 (Gill. 27); State v. Tosney, 26 Minn. 262, 3 N.W. 345.) Where an accusation against a person includes an offense of an inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the inferior one; and hence it is within the province of the jury to convict of an assault only, although the indictment charges an assault with intent to murder, or an assault with a deadly weapon. (1 Chitty on Criminal Law, 638; Rev. Stats., sec. 7859; Stewart v. State, 5 Ohio 241; Givens v. State, 6 Tex. 343; Gardenheir v. State, 6 Tex. 348; 2 Archibald's Criminal Pleading and Practice, 74, 75; 2 Wharton's Criminal Law, 1280; 1 Wharton's Criminal Law. 385 et seq., 565.) The judgment is a fine or imprisonment, not a fine and imprisonment; and for that reason is void as to the imprisonment. (Ex parte Baldwin, 60 Cal. 432; Ex parte Ah Cha, 40 Cal. 427.) The judgment in case a default is made in the payment of a fine imposed must direct imprisonment for payment of fine until paid, at a certain rate per day. (Ex parte Ellis, 54 Cal. 204; Ex parte Chin Yan, 60 Cal. 78.) A party illegally arrested has the right to resist, and, if death ensues, he is at most guilty of manslaughter. (Noles v. State, Horr. & Thomp. 697 et seq.)

Richard Z. Johnson, Attorney General, for the Territory.

Granting and refusing continuances rests very much in the discretion of the court below, and it is only in cases where that discretion has been abused that this court will review the action of the lower court. (People v. Gaunt, 33 Cal. 157, 158; People v. Walter, 1 Idaho, 386.) Though the jury may convict of the lesser offense, the court is not bound to instruct them as to the lesser offense, or that they may convict of the lesser offense, when there is no evidence to support such a verdict. (People v. Byrnes, 30 Cal. 206; People v. Ah Kong, 49 Cal. 6; People v. Estrado, 49 Cal. 171; People v. Welch, 49 Cal. 174.) No instruction should be given which is not logically deducible from the evidence. (People v. Sanchez, 24 Cal. 28; People v. Best, 39 Cal. 690; People v. Atherton, 51 Cal. 498.) The presumption that the officer did his duty in making the arrest is no more in conflict with the presumption of innocence to which a defendant is entitled on his trial than is the presumption of the regularity of judicial proceedings, or of malice, or from guilty possession, or from motive, or from flight, or any one of the thousand other presumptions that may confront the accused. (Wharton's Criminal Evidence, secs. 833, 835, 836; People v. Smith, 59 Cal. 365; State v. Howard, 10 Iowa 101; Commonwealth v. Fowler, 10 Mass. 293; 3 Russell on Crimes, 220, and note; 1 Bishop's Criminal Procedure, 3d ed., sec. 1131; Lawson's Presumptive Evidence, 53.) The extent of the imprisonment is fixed and declared by the statute, and, when the defendant has been imprisoned the required length of time, he is entitled to be discharged. (Jackson v. Boyd, 53 Iowa 536, 5 N.W. 734; 4 Criminal Law Magazine, p. 841, sec. 34.)

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

At the October, 1887, term of the district court for Shoshone county, Mathew Guthrie and Terrence B. Guthrie were jointly indicted for an assault upon Thomas F. Handly, with intent to commit murder. Separate motions were interposed to set aside the indictment, on account of some alleged irregularity in summoning and impaneling the grand jury. These motions were overruled, and the defendants pleaded not guilty. Separate trials were ordered. The defendants then applied for a change of venue, which motion was granted, and the cases were transferred to Nez Perces county for trial. At the December, 1887, term of Nez Perces county, a trial was had, and Terrence B. Guthrie was found guilty "of an assault with a deadly weapon likely to produce great bodily injury." Motions were made for a new trial, and for an arrest of judgment, and were by the court overruled, and the following judgment was rendered: "It is therefore considered, and the judgment of the court is declared to be, that you, Terrence B. Guthrie, pay a fine of $ 1,000, and that you be taken into custody by the sheriff of Nez Perces county, and taken from this court to the county jail of Nez Perces county, Idaho territory, and thence, unless said fine be sooner paid, within thirty days, to the territorial prison, in Ada county, territory of Idaho; and that you be confined in said prison, at hard labor, until said fine be paid, not exceeding two years from the date of this sentence, and upon the payment of said fine you be released from said custody and confinement." From this judgment, and the order denying a new trial, the defendant Terrence B. Guthrie appealed to this court. The record is voluminous, and counsel for appellant have specified thirty alleged errors in the transcript. From an examination of the record, we are satisfied many of these assignments are not of sufficient interest to justify any further consideration of them.

It is claimed, first, that the indictment is not sufficient to sustain a conviction against the appellant, that the facts stated therein do not constitute a public offense, and that the motion in arrest of judgment should have been sustained. The defendants were indicted jointly; Mathew being charged with an assault with a pistol, etc., with intent to murder, and Terrence B., the appellant, being charged as accessory. Section 7697 of the Revised Statutes abolishes all distinction between an accessory before the fact and a principal, and provides that "all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal." The contention is that, by reason of this statute, one cannot be indicted as an accessory. We cannot agree with this view. The last clause of the statute quoted says: "No other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal." It is true the statute makes an accessory before the fact a principal, and it is wholly unnecessary to charge the accused in any other form than as principal; but, if the grand jury does charge one who is in fact an accessory before the fact as such, the effect is simply to inform him more clearly of what he must defend against, and therefore it is not a defect of which he can be heard to complain. The supreme court must give judgment without regard to technical errors or defects which do not affect substantial rights. (Rev. Stats., sec. 8070.) We do not mean to assert that this is the better course, but only that the defendant was not prejudiced by this form of charging the offense. Indeed, we think, when the statute clearly provides what shall be a sufficient pleading, that it is always better that the statute should be closely followed.

It was said, on the argument, that the indictment charges two offenses. We do not think it is open to this objection. It is true the statute provides that the indictment must charge but one offense, but the same offense may be set forth in different forms, and under different counts. (Rev. Stats sec. 7681.) The rule established by this statute is not violated by setting forth the same offense in...