The People v. Ah Hop

• Decision Date: 01 January 1878
• Citation: 1 Idaho 698
• Parties: The People, Respondents, v. Ah Hop Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 698

The People, Respondents, v. Ah Hop Et Al., Appellants.

Supreme Court of Idaho

January 1, 1878

CRIMINAL. LAW-ARRAIGNMENT-RECORD.-It is not necessary for the record on appeal to show an arraignment. The fact of an arraignment is not necessarily a part of the record.

IDEM - INDICTMENT - ACCESSARIES. - An indictment charging five persons with murder in one count, and four of the same persons with being accessaries before the fact in another count, does not charge two offenses.

IDEM - INDICTMENT - PRINCIPALS - ACCESSARIES - SURPLUSAGE.-The statute requires all persons concerned in the commission of an offense, whether as principals or accessaries before the fact to be indicted as principals, and a second count in such indictment charging a portion of the same persons with being accessaries before the fact, is surplusage, which does not vitiate the indictment.

JURY-IRREGULARITY.-No irregularity in drawing, summoning, returning, or impaneling trial jurors is sufficient to set aside a verdict, unless injury results, nor unless the objection is made before verdict.

CRIMINAL CASES-PRESUMPTIONS.-The presumptions are in favor of the regularity of the proceedings in the district court, in criminal as well as in civil cases.

TECHNICAL DEFECTS.-This court will give judgment without regard to technical defects, which do not affect substantial rights.

WAIVER.-If a defendant does not insist upon the mere formalities of the law in the court below, he will be deemed to have waived them. It is too late to take advantage of them for the first time in this court, on appeal.

APPEAL-REVIEW-QUESTIONS OF LAW.-Upon appeal in criminal cases, the review in this court is confined to questions of law arising upon exceptions taken on the trial and errors appearing in the record. The evidence constitutes no part of the record, and it must be disregarded, except for the purpose of determining the materiality of the exceptions.

APPEAL from the Second Judicial District, Boise County.

Jonas W. Brown and E. J. Curtis, for the Appellants. George Ainslie, District Attorney, for the Respondents.

PRICKETT J.,

delivered the opinion.

HOLLISTER C. J., and CLARK, J., concurred.

The defendants were jointly indicted for the crime of murder alleged to have been committed on the tenth day of June, 1877, by feloniously, willfully, deliberately, and with premeditation killing one John McGuinness. The indictment contains two counts; the first charging all of the defendants as principals; and the second charging the defendants Yung Sing, Ah Pong, Hong Chu, and Ah Doe, with being accessaries before the fact, in standing by and aiding, abetting, and assisting the defendant, Ah Hop, to commit the murder. The defendants Yung Sing, Ah Pong, and Hung Chu demurred to the indictment, on the ground that more than one offense is charged against them in the indictment. The demurrer being overruled, all of the defendants, except Ah Doe, who had not been arrested or found, entered the plea of not guilty, upon which they were jointly tried and convicted of murder in the second degree. Before judgment, a motion for a new trial was made upon the minutes of the court, on the grounds: 1. That the verdict is contrary to the law and the evidence; 2. Error in law occurring at the trial of the cause, in this: That the people opened and closed the argument of the cause to the jury. The motion was overruled, and the defendants sentenced.

The appeals are from the judgment and from the order denying a new trial, and the record consists of the judgment-roll and a bill of exceptions. No exceptions appear to have been taken to any order, ruling, or proceeding in the court below, except the order denying a new trial.

The defendants assign as error: 1. That the record fails to show any arraignment of the defendants, or either of them. 2. That the demurrer should have been sustained, and the overruling of it was error. 3. That it does not appear that the names of eight additional trial jurors summoned, were selected

in the manner required by law. 4. That it nowhere appears in the record that the indictment was read and the plea stated by the clerk to the jury after the jury were sworn to try the cause. 5. That the court erred in refusing to allow the counsel for the defense to close the argument to the jury, and in not permitting counsel to argue the cause to the jury alternately. 6. Error in refusing the defendant's motion for a new trial.

Section 445 of the Criminal Practice Act prescribes what papers and matters shall constitute the record in criminal actions, and the arraignment or a copy of the minutes thereof is not included.

Section 475 provides what shall be transmitted to this court of review upon an appeal, viz.: "A copy of the notice of appeal and of the record." Any matters not otherwise made by statute a part of the record, must be made so by bill of exceptions, and there is nothing in the bill of exceptions in this case which shows that the court failed to arraign the defendants, and such failure is not to be presumed. Error will not be presumed in a criminal, any more than in a civil action. It must be shown by the record. (People v. Waters, ante, p. 560.)

The demurrer to the indictment was properly overruled; the point urged here is that the indictment does not conform to section 237 of the Criminal Practice Act, because it charges all of the defendants, except Ah Hop, with two offenses. It clearly appears on the face of the indictment that the matters set forth in the different counts were intended to describe one and the same transaction and charge but one offense, which is the murder of McGuinness. Section 251 of our Criminal Practice Act provides that "no distinction shall exist between an accessary before the fact and a principal, or between principals in the first and second degrees in cases of felony; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, shall hereafter be indicted, tried, and punished as principals." This statute has changed the rules of pleading so that it is no longer necessary...