Territory v. Neilson

• Decision Date: 05 March 1890
• Parties: TERRITORY v. NEILSON
• Court: Idaho Supreme Court

23 P. 537

2 Idaho 614

TERRITORY v. NEILSON

Supreme Court of Idaho

March 5, 1890

PREJUDICIAL ERROR.-All errors which do not prejudice the party in his substantial rights must be disregarded; that he was prejudiced in any of his substantial rights will not be presumed when not shown.

INSTRUCTIONS TO QUIT-ADVISE JURY.-At the close of the testimony for the prosecution the defendant moved the court to instruct the jury to acquit, which motion the court denied. Held, that such an instruction would have taken the facts from the jury which the court cannot do, as it can only advise the jury.

TESTIMONY-WAIVER.-Where a defendant introduces testimony after a motion to instruct the jury to return a verdict of not guilty is denied, he waives his right to assign as error the order denying such motion.

APPEAL from District Court, Bear Lake County.

Affirmed.

Smith &amp Smith, for Appellant.

Hearsay testimony and evidence of character on the part of the prosecution is not admissible. (Mima Queen v. Hepburn, 7 Cranch, 290; Davis v. Wood, 1 Wheat. 6; Regina v Turberfield, 10 Cox C. C. 1; State v. Thurtell, 29 Kan. 148; People v. Fair, 43 Cal. 137; 1 Phillips on Evidence, 644; State v. Lapage, 57 N.H. 289; Cheney v. State, 7 Ohio 222.) Where an act may be either guilty or innocent, and there is no proof as to which it is, or where a business may be lawful or unlawful, and there is no proof as to which it is, then it is clear that the presumption is that it is lawful or innocent, as the case may be. (1 Greenleaf on Evidence, secs. 34, 35; Roscoe's Criminal Evidence, *17.) If error appears in a record, injury will be presumed, unless the contrary clearly appears from the record. That injury might possibly have resulted from erroneous ruling as to evidence and instructions is ground for reversal. (Leonard v. Kingsley, 50 Cal. 628; Smith v. O'Hara, 43 Cal. 375; People v. Murphy, 47 Cal. 103; People v. Stanley, 47 Cal. 114, 17 Am. Rep. 401; Ponce v. McElvy, 51 Cal. 222; Estate of Toomes, 54 Cal. 509, 35 Am. Rep. 83; People v. Furiado, 57 Cal. 345; MacDougall v. Railroad Co., 63 Cal. 431; People v. Casey, 65 Cal. 260, 3 P. 874.) That injury was highly improbable from the error will not prevent the reversal. (Chapman v. Quinn, 56 Cal. 279.) The burden of showing immateriality of error is upon the respondent. The showing must be conclusive in a criminal case. (People v. Ybarra, 17 Cal. 166.)

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

Mere technical errors are not enough to produce a reversal, but it must be such error as produced injury to the substantial rights of the defendant, and upon him is cast the burden of showing it. (People v. Brotherton, 47 Cal. 388, 404; People v. Smith, 59 Cal. 604; People v. Johnson, 71 Cal. 387, 12 P. 261; People v. Turley, 50 Cal. 471; People v. Nelson, 56 Cal. 82; People v. Olsen, 80 Cal. 122, 22 P. 126.) All intendments are in support of the judgment of the court below, and error is not to be presumed by the court here, but must affirmatively appear in the record. (People v. Williams, 45 Cal. 27; People v. Brotherton, 47 Cal. 389; People v. Leong Sing, 77 Cal. 117, 19 P. 254; People v. Hope, 62 Cal. 295; People v. Winters, 29 Cal. 661.) A general objection to evidence is not sufficient, but the particular grounds of objection must be stated. The party must lay his finger on the very point of objection. (People v. Chee Kee, 61 Cal. 404; People v. Manning, 48 Cal. 335; People v. Apple, 7 Cal. 289; People v. Glenn, 10 Cal. 32; Martin v. Travers, 12 Cal. 243; Leet v. Wilson, 24 Cal. 399; Winans v. Hassey, 48 Cal. 635.) The court has no right to give peremptory instruction in a criminal case. (Rev. Stats., sec. 7855, subd. 6; Rev. Stats., sec. 7877; People v. Horn, 70 Cal. 17, 11 P. 470.) The bill of exceptions nowhere states that the evidence therein set forth is all the evidence had at the trial, and there is no presumption here that it contains all, but the presumption will be that the necessary evidence was given at the trial. (People v. Leong Sing, 77 Cal. 118, 19 P. 254; People v. Marks, 72 Cal. 46, 47, 13 P. 149; People v. Huff, 72 Cal. 118, 13 P. 168.)

BEATTY, C. J. Berry, J., concurs. SWEET, J., Dissenting.

OPINION

BEATTY, C. J.

The appellant was indicted for unlawful fishing alleged to have been done in Bear Lake county. At the close of the people's testimony the appellant moved the court to instruct the jury to render a verdict of acquittal, which motion was overruled. The appellant then introduced testimony in his behalf, and thereafter the jury found a verdict against him, upon which judgment was rendered, from which he has taken his appeal to this court.

The appellant has assigned numerous alleged errors based upon the ruling of the court on the introduction of the evidence. All such alleged errors must be considered in the light of our statute, adopted from the California code, which is to the effect that all errors and mistakes in proceedings which do not prejudice the party in his substantial rights must be disregarded. Under this statute, which seems without ambiguity, it has frequently been held that errors which are not shown to have damaged the party complaining must be disregarded. The criticisms are largely to the admission of questions to which answers were not made, or were not against appellant, or were stricken out. There was also testimony to the effect that appellant had the reputation of being a fisherman. It is not conceded that a party can be convicted of an offense by testimony of general reputation that he has committed it; but the appellant was not charged with any offense of being a fisherman, nor is it an offense, nor does testimony of his reputation as such damage him. We do not think any of the alleged errors based upon the introduction of the testimony are shown to have damaged the appellant. That he was prejudiced in any of his substantial rights will not be presumed when not shown.

It is also claimed the testimony is not sufficient to justify a conviction. The only testimony before us is that introduced by the people, and, as it appears in the record, it is not sufficient. Had appellant rested upon that testimony, and brought it before us in the proper mode for its consideration, a reversal, probably, would be justified; but, instead, he proceeded with the introduction of testimony in his defense. That is not here. We do not know what it was. He may have convicted himself, as has frequently happened with defendants. At any rate, the jury, upon all the evidence, found him guilty, and we cannot interfere.

At the close of the people's testimony, appellant moved the court to instruct the jury to return a verdict of not guilty, which motion the court overruled; and this is assigned as error. Our statute (section 7877) is adopted from the California code, and provides the court may advise the jury to acquit. By another section (7855, subdivision 6) it is directed the court "must not charge the jury in respect to matters of fact." Had the court given the peremptory instruction asked, it would, in violation of this provision, have taken the facts from the jury. It is held in People v. Horn, 70 Cal. 17, 11 P. 470, that this the court cannot do, and that it can only advise the jury. Whether, when the court is satisfied the testimony is not sufficient, it must advise the jury to acquit, regardless of the form of defendant's motion, or whether, when there is any evidence tending against the defendant, the court may, in its discretion, leave the question to the jury, we need not now consider nor decide.

After appellant's motion for the peremptory instruction was overruled, he, by introducing his testimony, waived his right to assign as error the order overruling his motion, as is held in civil cases by authority which is controlling with us. (Railway Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266; Insurance Co. v. Crandal, 120 U.S. 527, 7 S.Ct. 685, 30 L.Ed. 740.) Our statute (section 7864) provides: "The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code." We think, under our statute, the authorities above control in this case; and the judgment of the lower court is affirmed.

Berry, J., concurs.

DISSENT BY: SWEET

SWEET J., Dissenting.--

I dissent from the opinion of the court. When the prosecution rested, there was not, in my judgment, sufficient evidence to warrant or sustain a conviction. The prosecution having failed to prove the guilt of the accused, the latter had a perfect right to invoke the statute. After the court refused to advise an acquittal, the defendant excepted, and offered testimony in his own behalf. It is urged in support of the judgment (1) that defendant moved for an instruction to acquit--an instruction which the court was not authorized to give; (2) that, by introducing testimony in his own behalf, he waived his exception; and (3) that the evidence is not all here. I shall consider these points as here presented.

1. The prosecution examined several witnesses, and rested. The defendant then moved the court to instruct the jury to bring in a verdict of acquittal. It is proper to state that the exact language of the motion, which was evidently made in open court, and not reduced to writing, does not appear in the transcript. On page 10 we find the following statement: "The defendant, by his counsel, here moved the court to instruct the jury to return a verdict of not guilty, which motion was by the court overruled." On page 49 of the transcript the motion is presented in this form: "Defendant now moves the court to instruct the jury to render a verdict of acquittal." I quote the two statements as they appear in the transcript for the purpose of...