The People v. Stock

• Decision Date: 01 January 1868
• Parties: The People, Respondents, v. Edward Stock, Appellant.
• Court: Idaho Supreme Court

1 Idaho 218

The People, Respondents, v. Edward Stock, Appellant.

Supreme Court of Idaho

January 1, 1868

IMPEACHMENT-WITNESS.-The rule for the introduction of evidence to contradict a witness is as follows: If the fact to which the contradiction applies is material to the issue, he may be contradicted; but when it is immaterial, and not within the issue, contradictory evidence cannot be introduced.

EVIDENCE-REPUTATION OF DECEASED.-The rule is well settled that the reputation of the deceased cannot be given in evidence, unless the circumstances of the case raise a doubt whether the defendant acted in self-defense.

JURY-DISCHARGING JURY.-There is no particular length of time prescribed by law for keeping a jury together. The time is entirely within the discretion of the court.

APPEAL from the Second Judicial District, Boise County. The defendant was convicted of murder in the first degree. On the trial he offered testimony to contradict one of the witnesses for the people, which was excluded by the court, as was also testimony offered to show that the deceased was a man of a violent and quarrelsome disposition. The rulings of the court excluding such testimony are assigned as error: and, also the instruction given to the jury after they had been deliberating on the case several hours, to the effect that it was their duty to agree-to harmonize their views if they possibly could, consistently with their duty as sworn jurors.

Rosborough & Preston and S. A. Merritt, for the Appellant, on the question of the admissibility of the testimony excluded, Page 219 cited: 1 Greenl. Ev., par. 462; 2 Phil. Ev. 959 et seq.; Patchin v. Astor etc. Co., 13 N.Y. 268 ; Hathaway v. Crocker 7 Met. 262; Gould v. Norfolk Lead Co., 9 Cush. 338, 57 Am Dec. 50; Palmer v. Haight, 2 Barb. 210; Sprague v. Caldwell 12 Barb. 516; Howard v. City Fire Ins. Co., 4 Denio, 502; People v. Murray, 10 Cal. 309 ; 1 Archb. Crim. Pr. and Pl. 400, 401; 1 Whart. Crim. L. 641.

No appearance for the people.

KELLY, J.,

delivered the opinion of the court,

McBRIDE C. J., and CUMMINS, J., concurring.

The defendant was convicted of murder in the first degree, and judgment pronounced against him accordingly. From this judgment the defendant appeals, and assigns errors as follows:

1. The court erred in excluding the testimony of the witness Samuel A. Merritt, and also that of the witnesses, J. B. Pierce and S. Maloney, offered by defendant, for the purpose of impeaching the witness Kelly.

2. The court erred in excluding the testimony of J. B. Taylor, Joseph Boss, John Cody, Stephen Maloney, and J. P. Pierce, offered by the defendant to show that the general reputation of deceased was that of a violent and dangerous man, habitually addicted to quarrels, fighting, and bloodshed.

3. The court, after having excluded testimony as aforesaid, erred in its admonitions to the jury, who were still in doubt as to the degree of crime, on the third day of their deliberations, notwithstanding the exclusion of testimony as aforesaid.

4. Error affecting substantial rights of the defendant, the court erred in overruling his motion and denying a new trial.

The defense introduced a witness, Pierce, who stated that deceased was a large man, powerfully built, of great strength, and, in that respect, greatly superior to the defendant, who was a small, weakly man, which was all the testimony on that point. The defendant then offered to show by the testimony of J. B. Pierce, Stephen Maloney, John Cody, Joseph Boss,

and J. B. Taylor, that they were acquainted with deceased, and knew his general reputation in the community where he resided and was well known, and that his general reputation was that of a violent and dangerous man, habitually addicted to general fighting and bloodshed. The court excluded the testimony so offered, and defendant excepted to such ruling.

Kelly, a witness for the prosecution, testified that on the evening before the homicide the deceased and defendant came to his saloon; that deceased struck defendant on the side of the face, so as to turn his face to one side, that it was more of a push than a blow, and defendant said, "I will kill you if you do that again"; that deceased replied, "You are not able to kill me," and defendant said he could kill six men while deceased could kill one; that what led deceased to strike or push defendant was they had taken a drink, and defendant pulled out his purse to pay for it, and deceased reached out his hand for the purse, and defendant told him it would cost him his life to take his purse.

On cross-examination this witness was asked if deceased did not say to him on that occasion that he intended to rob defendant of his purse for a Lemhi stake, and the witness replied in the negative. He was then asked if he had not in a conversation with Samuel A. Merritt on the second day after the homicide, in the street in front of Nicholdson & Clark's store in Idaho City stated to said Merritt, that on the occasion above referred to, the deceased told him he intended to rob the defendant of his money and keep it for a Lemhi stake, and the witness answered that he had not so stated, and that he had never made any such statement to Merritt or anyone else. For the purpose of impeaching said witness, the defendant offered said Merritt as a witness to prove that said Kelly had at the time and place indicated and also at a subsequent time, made the statement so denied, and also offered J. B. Pierce and S. Maloney to prove that said Kelly had about the same time in their presence and in a public saloon made the same statement; all of which evidence, so offered, the court excluded, to which ruling the defendant excepted.

The evidence or statement of the defendant made in pursuance of our statute is incorporated into the record sent up to this court to sustain the second exception, and is as follows: "I had been with deceased on the afternoon of the day preceding the killing. We had been drinking together on the evening of the-day of May. The day before the killing the deceased and myself went up to Bannock Bar. We stopped at the residence of Richard French, and I requested him to get supper for us, which he, French, agreed to do; and he went down town (Idaho City) to procure some articles. Shortly afterward I went down to Idaho City to get a bottle of port wine for Mr. French, and the deceased followed me. I drank a great deal and became intoxicated. About 11 o'clock at night I started home, the deceased accompanying me. Between 11 and 12 o'clock we reached the house of Richard French. We went in. I had a bottle of port wine and some eggs. The deceased and I drank at French's. We left French's residence after remaining there some time. When I left French's I had my purse, containing about five hundred dollars in golddust, in my pocket, and also a silver watch and chain. After we left French's deceased induced me to drink twice or more from the bottle of port wine which he had brought from French's, where I had left it. Deceased then blew out the candle which French had given us, or it went out, I don't know how, and took me into a vacant cabin, and where I immediately laid down and fell into a sleep. I have no recollection of anything until I waked up in the morning and found my watch and purse gone. The deceased was there. I accused him of taking them. He denied the charge. I then went down to the house of Richard French and asked him if I had my watch when I left his house the night previous. He stated that I had, and that he had asked me the time, and I had pulled out the watch and he saw it. I then returned to the cabin where I left deceased, and asked him to give me my money and watch, stating that he, the deceased, was a strong, healthy man and able to work, and that I was sickly and feeble and needed my means for my support. I

reproached deceased with the manner he had treated me after my kindness to him. The deceased called me a son of a bitch, and told me to help myself. I then told him I would go down and have him arrested by the officers for robbing me. The deceased immediately rushed toward me in a threatening manner, saying he would wring my neck. He being a very powerful man, and fearing that he would kill me, or inflict some great bodily injury upon me, as he rushed toward me, I drew my pistol and fired twice, very rapidly, the deceased seizing my pistol with both of his hands, and trying to wrench it from my grasp. I did not know that any shot had taken effect on deceased; and in the struggle for the pistol, I drew my knife with my left hand, and, I suppose, I cut him, although I cannot answer that I did. Upon repeating to deceased several times that I would cut him if he did not let go the pistol, he let go and went off. I did not know whether deceased was hurt or not. I went down to Idaho City, and was arrested at the Idaho brewery."

The first question submitted is: Did the court err in refusing to admit the testimony of S. A. Merritt, J. B. Pierce, and S Maloney, offered by defendant for the purpose of impeaching the witness Kelly? The rule laid down for the introduction of other evidence to contradict a witness is this: If the fact to which the contradiction applies is a material fact within the issue, he may be contradicted by any evidence or other statement, but when it is not material, and not within the issue, contradicting evidence cannot be introduced. When a witness testifies to a material fact within the issue, the adverse party may give evidence that the witness has at some other time, or at various times, given a different statement of the fact. It goes to show that his present statement is erroneous or false as to such material fact. Such contrary statements may be proved by the witness himself or...