*1 grounds for a de- appearing to There complaint, trial the order to the
fense vacating setting the default
court aside affirmed; quash- the order judgment is vacated and
ing writ of attachment hereby cause writ reinstated.
said trial court direc-
is remanded parties to grant file or
tions leave supplement pleadings or to
amend motions, proceed
amend their with fur- disposition
ther and final of the cause.
No costs allowed.
KNUDSON, J., McQUADE, C. SMITH, JJ.,
TAYLOR and concur. P.2d 246 Idaho, Plaintiff-Respondent,
STATE of Warner,
Carlos BASSETT and Buell Defendants-Appellants.
No. 9161.
Supreme Court of Idaho.
Aug. 1963. Sept.
Rehearing Denied *3 Black, Pocatello, R. for Carlos
John Bassett. Racine, Pocatello, F. Jr.,
Louis for Buell Warner. Shepard, Atty. Gen., G.
Allan R. La Var
Marsh, Atty. Gen., Boise, Asst. Eugene L.
Bush, Atty., Falls, respond- Pros. Idaho
ent. filed of Probation dated and
court’s Order alia, February 8, inter provides, which in- pay costs “that said defendant shall in prosecution in action volved of this de- amount of and “that $677.74” days in Bonneville fendant shall serve County jail, sentence shall served which during probation.” this at time joint mo- Appellants regularly filed their tion This for new trial which was denied. appeal judgments is from the of conviction appellants’ denying and the order motion a new trial. KNUDSON, Chief Justice. portion A substantial of State’s evi- charged The information this case testimony dence consisted of the one of June, 1961, ap- day on or the 11th of about Eugene Beckstead, Allen an ac- admitted pellants wilfully, (defendants) did inten- Appellants complice. state that their main unlawfully take,
tionally, feloniously and appeal (1) this that the contentions on carry away personal prop- certain steal and proper insufficient show a evidence is another, erty belonging a Here- to-wit: testimony and of Beckstead’s corroboration value more than ford steer of the of $60.00 re- guilty the verdicts were the (2) that of money United States and lawful misleading instruc- sult of erroneous and Olson, A. personal of one C. property tions. permanently there to intent then and appellants’ first consider conten- deprive said A. Olson of his said shall C. We failed to corroborate the tion that the State property. testimony accomplice of Beckstead which Following trial the returned a ver- assignments of is involved contention finding each of the guilty dict defendants 2,1, and 8. Nos. error larceny charged grand informa- 19-2117 Appellant Warner tion. sentenced to years "Testimony appellant more than ten serve not —Corrobora- conviction can not be had on tion. —A Bassett was to serve not sentenced more testimony accomplice, an years in the unless than five Idaho State Peniten- evidence, by other is corroborated tiary. appellant he Said sentence as to Bassett itself, aid and without the suspended subject terms *5 282 testimony accomplice, lowing of the are some facts
the
tends
and circumstances-
by
the
to connect
defendant with the
which were established
com-
evidence in-
offense;
dependent
given by
mission of the
accomplice
the cor-
sufficient,
Beckstead,
is not
merely
roboration
it
from which the
if
could rea-
sonably
offense,
appellants
commission
shows the
of the
conclude the
were con-
circumstances thereof.”
with the
or the
nected
commission of the crime.
The steer involved in this case was kill-
necessary
It is not
that there be
ed on what is referred to as the Klossner
corroborating
concerning
evidence
every
ranch. The
hide
other remains were
accomplice
fact as to which
material
Tuesday
found
Earl
morning,
Sibbetts on
permits
The statute
testified.
convictions
13, 1961, approximately 20 miles east
June
upon
testimony
accomplice,
of an
with
of the Klossner ranch in a secluded area-
accomplice
limitations
shall be
roadway.
not visible from the
It is undis-
corroborated
such other evidence as
puted that the hide bore A. C. Olson’s brand..
tends to connect
the defendant with
Mr. 'Sibbetts testified that there
been-
had
crime,
commission
and hence the
only
rain
one
storm that area between
independent
corroborative evidence must be
occurred,
June,
5th and 13th of
testimony
accomplice
of the
of the
12th;
morning
that when found
June
connect or tend to connect the defendant
ground,
irregular depressions
on the
charged.
with the commission of the crime
water,
filled with
the hide were
which would
583;
Brake,
310,
State v.
99 Or.
P.
being
fix the time of death of the animal as
Gillum,
457,
334;
State v.
39 Idaho
228 P.
prior
the rain storm
which occurred on-
Proud,
429,
State v.
74 Idaho
262 F.2d
morning
A
12th.
Hereford
June
Orr,
452,
State v.
53 Idaho
285
been convicted of other
Beckstead had
that
authority
the
of I.C.
comity under
ville
9-1209,
upon
They rely
felonies.
§
19-309.
which
that
Appellants contend
trial court
impeached by
“A
witness
objections
sustaining State’s
in
erred
called,
against
by
party
whom he
propounded to
questions
Beck-
evidence,
contradictory
by
or
evidence
stead, during his cross-examination. The
truth,
reputation
general
his
that
objections
timely
sustained
court
bad,
honesty
but
integrity
or
questions
put
quoted
following
were
acts,
wrongful
particular
evidence
to the witness succession:
except
may be
it
shown
“Q.
days]
of 90
have
Did
[sentence
witness,
or the rec-
examination
your having com-
anything
do with
judgment,
that he had
been
ord
any
offenses
than
other
other
mitted
felony.”
convicted of a
leaving the state?”
applies to both civil and
This statute
crim
“Q.
any
you
Have
been convicted of
Kleier,
actions. State v.
69
inal
Idaho
you
charges
other
while
have been
278,
513.
have previously
206 P.2d
We
jail?”
fact
witness
has
held
been
“Q.
you
charges
Do
have
other
of a misdemeanor is not
convicted
ad
you
pending against
at this time?”
Scott,
statute.
under this
State v.
missible
“Q.
you
you
I think
said
talked
had
258;
202,
Idaho
239 P.2d
State v. Al
72
to the Sheriff’s office a number of
46
P. 322.
vord,
Idaho
271
Under
you
been
times while
have
down there.
it has been held
identical statute
you
your
assisting
Have
them with
or charged
fact one
been arrested
has
promised any
this case been
further
inadmissible.
an
likewise
offense is
probation
immunity
case
614, 295
People
Quinn,
Cal.App.
v.
office?”
Sheriff’s
Hines,
Cal.App.2d
1042;
People
P.
Harmon, 21
State v.
P.2d
already
he
Beckstead had
testified
581, 152
Wash.2d
P.2d
grand
had been convicted of the crime of
statute,
larceny
question
the steer in
and had
By
express
terms of
acts,
put
probation, but
he had
ex-
wrongful
been
particular
evidence
*8
improper
by leaving
probation
felonies,
the state
is
cept
violated
convictions of
trial,
jail.
the time of
was in
impeachment
so that at
purposes.
for
additionally contends
appellants
for
contend
Counsel
Counsel
9-1209,
to-
questions
read
when
proper
were
to show I.C.
19-2117
§§
trial; and,
you
appellants to
in case
gether, entitle
establish
out
have a
corrupt
received
doubt as to a
is
and has
reasonable
defendant’s
an
you
acquit
should
guilt,
evi
him.”
clemency because
turned
he has
State’s
eight:
a mere
Instruction No.
is not
from
dence.
obvious
in
questions that counsel
reading of the
instructed,
“You are
as a matter of
prove
Beckstead had
the witness
tended
law,
juror
is
doubt which
clemency
therefore cor
and was
received
mind,
allowed to retain in his own
rupt.
proof was made at the
No offer of
and under the
of which
influence
he
objections
sustained which
time
were
guilty,
should frame a
of not
verdict
court’s at
in
manner call the
would
always
must
be a reasonable doubt.
theory
questions.
to such
tention
A
produced by
sensibility
doubt
undue
Undoubtedly
sustained the ob
the court
in
juror,
the mind of a
in
view
jections
theory
im
on the
were
consequences
is not
the verdict
proper
impeachment purposes under
doubt,
juror
is
reasonable
and the
questions were
broad.
the statute. The
too
ma-
allowed to create sources or
having
proper
one
ruling
been
conjectures
terials of doubt
remote
theory,
appellants
is not available to
possible
as to
of the case dif-
status
error,
in the absence of an offer of
as
from
evi-
ferent
those established
received,
should
proof which shows it
be
liberty
dis-
dence. You are not at
theory. Hughes
on some other
v. Hudel
jurors
if from the evidence
believe
son,
287 of hypothesis innocence. reasonable prudent man to a reasonable and cause need not demonstrate The evidence pause, it would not he and hesitate beyond guilt of the defendant a of to authorize verdict sufficient innocence, possibility of and If, his guilty. considering after all not proved evidence, pro- as you say you if the circumstances can duce a moral conviction to ex- abiding of an conviction the truth have doubt, every beyond of charge, you clusion reasonable are satisfied of absolutely incompat- doubt.” need not be a reasonable ible, hypothesis, any reasonable on that said contend instructions Appellants accused; innocence of the with the confusing, argumentative, prejudicial are is, if the material circumstances appellants impose on burden of and point guilt in evidence to and exclude innocence. establishing their any hypothesis except reasonable are be conceded that these not words, guilt; of other if instructions, however other instruc- model inexplicable theory on of innocence substantially containing the same tions conviction warranted.” approved this have been language Court. language contained in The this instruc- 202, Moon, 757; 117 Idaho P. 20 State v. was taken verbatim from tion State v. 295; 71, Nolan, P. 169 State v. 31 Idaho 286, McLennan, 40 231 Idaho P. 718 where- Gilbert, 346, P.2d State v. 8 Idaho 69 language used as a statement 530, P. 236. Lyons, 64 State v. on the law circumstantial evidence twenty-two: Instruction No. in its determination of the court whether “You in order are instructed that record contained not the sufficient evi- solely on sustain a conviction based justify submitting question dence evidence, circum- circumstantial guilt jury. defendant’s with the stances must be consistent Appellants argue that inconsistent cases of guilt of the accused and 730, Hix, 58 Idaho 78 innocence, incapable of v. P.2d 1003 with his and State Taylor, 724, 59 v. Idaho explanation any State 87 on other reasonable P. Court criticized How- this instructions hypothesis guilt. than 2d substantially encompassing ever, the same lan operates only on the this rule confusing prejudicial. being on as guage facts found not agree. adduced, contention we do this mere items of evidence With held to be erroneous convic- instructions only those essential to a facts objectionable other said cases contained incompatible tion need be with substantially language, the same language not contained in instruction No. we are McLennan, twenty-two. supra, given v. satisfied other instructions State approval proof quantum as late the burden has been cited of evi- required Davis, in order justify 1949 in Idaho State dence con- fully subject cover viction P.2d this instruction. requested The trial court’s *10 Appellants that the contend when considered as a instructions whole “incompatible” in instruction term used applicable the substantially state law. replaced twenty-two with No. should be Appellant Warner was sentenced Notwithstanding the term “irreconcilable”. years not more than ten in the to serve the word the fact that the used Court Penitentiary and he contends State case Idaho “irreconcilable” in the v. Davis State sentence is extreme and such excessive. that synonymous. (supra) the are Web terms prison grand lar maximum term Dictionary, The 2nd ster’s New International years. This ceny is 14 18-4606. Edition, Thes 1959; Roget’s International punish ordinarily that Court has aurus, stated not consider 3rd Edition. We do by prescribed stat ment within limits the constituting as instructions discussed ute and that the discretion is not excessive reversible error. punish fixing in the trial court in vested Appellants complain of the court’s by prescribed law ment within the limits requested give their instruction refusal except will be or revised not reviewed four, No. which states: v. State where such discretion abused. Weise, 404, P.2d State 273 are “You that the defend- instructed Farnsworth, v. P.2d 295. Idaho 10 51 upon ants cannot insinu- be convicted the trial record that is clear from the innuendo, ations but that facts person court considered Warner as in evidence must con- or circumstances responsible commission primarily for the you beyond a vince reasonable doubt The court offense involved. guilty the defendants are of the that pre-sentence investigation and aided information, charged in the offense say its abused we cannot the court convinced, you your duty if not so regard. discretion this acquit.” is to the tax- upon Appellant contends that The court refused instruction Bassett ground been him in the amount ing against it had covered of costs other given. probation is Although instructions we as condition $677.74 do specific cost or memoran- encompassing find a because no bill instruction unlawful
289 dum costs was Paragraph filed. son, judgment shall be rendered of the Order of Probation accordingly by the which court before convicted, person such shall have been “That said pay defendant shall may judgment such enforced be prosecution costs involved in the judgments same manner as action, this in the amount of $677.74.” civil cases.” Appellants’ praecipe requested the clerk quoted foregoing statute district court to include cost against directs that the “shall be taxed costs bill or memorandum of together costs person.” convicted this record From pay costs, court’s order to in the record we are if unable to determine or when appeal. The clerk’s certificate does not ap the costs referred to were taxed or if specifically pay state the order to costs pellant opportunity challenge the had was included in the record. it However items so taxed taxed. Such costs must be does state record all “includes en judgment therefor documents, records, papers files and provided. forced (State said statute were before the court and used and con- 611.) Montroy, Idaho P. sidered the court in the trial and de- Under existing circumstances termination of said Although cause.” no necessary to this cause to the trial remand appears cost bill appeal, in the record on *11 court. respondent’s is stated in brief that a cost bill was filed February (The There is no merit to the contention verdict is January dated and was filed provision appellant of the Bassett that 1962.)' Probation re contained in the Order of 19-4703 days the Bonne quiring him to serve 60 jail any County during ville at time
“Judgment costs.—At the close of for year probation, two term is void for every trial offense against It is not a sentence. indefiniteness. laws of this state the costs thereof merely probation a condition of paid provided, shall be law but period speci may performed within the be by way indemnity county fied, appellant. of said at the election costs, the whole amount of such in- cluding the costs of examination if trial court The cause is remanded to the had, such shall have been cases determine to consider and directions ap- convicted, against wherein the properly accused is shall if costs were taxed per- pellant appropriate be taxed against the convicted Bassett to make P.2d 649 findings and order connection therewith. respects judgments In other all FARMERS, INC., corporation, TREE affirmed. Plaintiff-Appellant, McFADDEN, McQUADE, TAYLOR GOECKNER, County Assessor, C. H. SMITH, JJ., concur. Defendant-Respondent. FOR PETITION DENIAL OF ON No. 9184.
REHEARING
Supreme Court of Idaho. KNUDSON, Chief Justice. 7, 1963. Oct. vigorous Buell Warner
Petitioner
ly instruction No. was contends contending confusing,
prejudicial right rely away the defendants’
“it takes presumption of innocence prove his innocence.”
law not that he need portion of this instruction agree
We being ex subject to criticism as to some confusing and for that reason should
tent agree do
not be used. We not that in this error.
case it reversible in no
By language used less than instructions, given which were
four other specifically court,
by the trial defend- repeatedly that the instructed through all innocent presumed
ant is to be proved guilty stages trial until pre- doubt;
beyond such a reasonable initial, part of
sumption is an substantive disregarded.
the law and *12 is denied.
Petition for rehearing McFADDEN,
McQUADE, TAYLOR SMITH, JJ., concur.