Territory v. McKern

• Decision Date: 16 March 1891
• Parties: TERRITORY v. McKERN
• Court: Idaho Supreme Court

26 P. 123

3 Idaho 15

TERRITORY v. McKERN

Supreme Court of Idaho

March 16, 1891

ROBBERY-EVIDENCE-OPINION OF WITNESS NOT PERMISSIBLE.-Defendant was indicted for robbery. H., a witness for prosecution, testified that he saw defendant scuffling with Miles (the party alleged to have been robbed); saw defendant hand something to McLouthlin co-respondent, an alleged accomplice of defendant. Witness said "he thought" defendant took what he handed to McLouthlin from the person of Miles; didn't see him take it, but "thought he did, because he thought he did." Motion to strike out latter part of testimony as to what witness "thought" denied. Held, such denial was error, as it was not a matter upon which the opinion of witness was permissible.

STATUTE OF IDAHO DEFINED.-The statutes of Idaho define robbery as "the felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accomplished by means of force or fear." Under an indictment upon this statute the trial court charges the jury as follows: "As to the force, the court instructs you that if a man stealthily filch from the pocket of another, the force necessary to remove the property is all the force that the statute requires." Held, error.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed.

T. M Stewart, for Appellant.

Opinions as to the main point in issue invade the province of the jury, and are therefore inadmissible. (Conner v Stanley, 67 Cal. 315, 7 P. 723.) No confession made under the influence of hope or fear is admissible. (People v. Jim Ti, 32 Cal. 60; People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73; People v. Brown, 59 Cal. 353; People v. Center, 66 Cal. 551, 5 P. 263, 6 P. 481.) A confession made to a person apparently acting by authority, making the defendant believe that he will get off easier, is inadmissible. (People v. Wolcott, 51 Mich. 612, 17 N.W. 78.) If there is reasonable ground for presuming that the disclosure was made under the influence of a promise, it ought to be excluded. (State v. Day, 55 Vt. 510; People v. McGloin, 91 N.Y. 241; Ellis v. State, 65 Miss. 44, 7 Am. St. Rep. 634, 3 So. 188; Simmons v. State, 61 Miss. 243.)

George H. Roberts, Attorney General, for the Territory.

There being no evidence presented by the record, an instruction is presumed to be applicable to the evidence. Confidential communications to clerks, confidential agents, etc., are admissible. (Rapalje on Witnesses, sec. 278.)

HUSTON, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

HUSTON, J.

The defendant was indicted and convicted at the May term, 1890 of the district court for the county of Bingham of the crime of robbery. "Robbery," as defined by the statutes of Idaho, "is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." The evidence in this case, as shown by the record, is as follows: "One W. D. Hood testified that he was in Pocatello on or about the twenty-eighth day of January last. Knows the defendant. Saw him there about that time. Started to go into a saloon, when witness met this man and one McLouthlin. Afterward saw them get into a scuffle. While they were scuffling, saw defendant hand McLouthlin something. He took this something, and dodged into next room. Didn't see what it was that he handed him. He got it from an old man that he was scuffling with. Didn't see him get it from him. Wouldn't swear that he got it from him. Thought he got it from him, because I thought so." On cross-examination this witness testified, in response to the question what he saw: "I think he got it from this man, and I saw him pass it to McLouthlin. Didn't think he would get into a scuffle without some object. The old man was very drunk. Think the defendant was sober." James Criswell, a witness on the part of the prosecution, testified, as appears by the record, in substance as follows: "Was in Gundecker's saloon at 5 o'clock on the morning of that day [January 28, 1890] Saw this man and a man by the name of Miles standing close together, and defendant had his right arm over his shoulder, and while he was standing there he took something from Miles' pocket, and it was handed to this man McLouthlin, and he left the room. Witness was not more than two or three feet away when defendant took, and saw him take it from his pocket." On cross-examination, this witness testified, as appears by the record: "That there was no scuffle at all. That there were in the saloon only witness Hood and the bar-tender. This occurred about five minutes after witness entered the saloon. Don't know what the parties were doing before. Defendant and Miles stood in position described some time. When witness entered they were standing close to the window. McLouthlin's, whereabouts, when he saw the defendant put his arm around the old man, unknown to the witness. They were not standing in that position when witness entered. The old man was drunk--very drunk. Didn't seem to know what was going on. Don't think he realized what was going on. Question. You say you saw no scuffling? Answer. Yes, sir; that is what I say. McLouthlin took what the defendant handed him, and left the room." Samuel Gundecker, a witness for the prosecution, testified: "That he was a machinist residing at Pocatello, Idaho. Was there on the twenty-eighth day of January last. Was keeping the People's saloon. Saw the defendant on that day, after the occurrence in the saloon, in the jail at Pocatello. Witness, having learned what had occurred, thought he would look up the case, and found the man, and he acknowledged to him that he got the money, and when witness asked him what he did it for, he said that it was to get out of town. Didn't state what he did with the money, or what was the amount." On cross-examination, this witness testified that when he called on this man in jail he asked him what he did with what he took, and what he took the money for; and he said he didn't take any money; and after witness made him believe that he was going on his bond, and...