*1 state, kept in mind that all one
breath, decries defense counsel’s intended “fishing expedition”
cross-examination as a surely
—which it was and as defense coun- agreed argument sel at oral essential- —but goes on
ly fishing to contend that the could , and should have been done earlier dis-
covery.
III.
My dissent is not to be understood as
being any indication defendant guilty; my eye concern is with an precedent.
the state of the law and Were Palin, today
the Court in accord with holding erred, that the court error, doubt, beyond
that the a reasonable jury’s
could not have contributed to the
verdict, Chapman v. California, U.S. (1967), 87 S.Ct. L.Ed.2d 705
would concur. Idaho, Plaintiff-Respondent,
STATE of Smart, Floyd DARBIN aka
Defendant-Appellant.
No. 15361. Appeals
Court of of Idaho.
Oct. been, My exactly activity the same as that declared sexual had view what the level of her prevents questioning such relations the state. statute and whether she had ever had sexual jury preliminary in- just without a person court found with a she met. The front of quiry court has to hear before the court. The matters were not relevant to whether these relevancy. testimony pass raped. in order to on its not she could have been prosecutrix Depending on testifies Code 18-6105 what The state asserts that Idaho camera, may not be relevant. prevent it enacted to the harassment defense, Here, only question- the court by exploratory with consent the crimes victims of sex ing questioning Respon- in order prior should have allowed sexual conduct. about their Brief, added). advisedly. so reads the statute. pp. (emphasis rule Palin dent’s 12-13 *2 sped away, truck
Before the
he was able to
get
plate
the license
number
subse-
quently
registered
learned it
Darbin. Cox checked a
of resi-
number
dences listed under “Darbin” and eventual-
Bishop, Nampa,
G.
defendant-ap-
Van
*3
ly
working
Darbin
truck
observed
on the
at
pellant.
January.
a residence later that same
Cox
to the residence
deputy
returned
with
sher-
Jones,
Gen.,
Atty.
Thomas,
Lynn
Jim
E.
iffs and determined that
the truck was
Gen., A.
Fitzpatrick, Deputy
Sol.
René
During
indeed his.
the time
his
between
Gen.,
Atty.
plaintiff-respondent.
for
previous sighting
locating
and
the truck at
residence,
the
the flatbed had been re-
WALTERS,
Judge.
Chief
pickup
placed
a
on
moved and
bed
the
charged
grand
with
Darbin was
deputies
and the
went to
GMC. Cox
then
(receiving
property)
theft
stolen
and with
previous-
residence where
another
Cox had
persistent
jury
a
being
violator. A
found
ly
pickup
seen a 1948Chevrolet
truck.
offense,
guilty of
and
him
the theft
Darbin
parts
replace
to
original parts
used
the
on
persistent
an admission to
entered
vio-
were apparently
from this Chev-
GMC
lator status. The district court sentenced
deputies
As
pickup.
rolet
Cox and the
to
Darbin
an indeterminate term of nine-
arrived,
pull-
Darbin and his brother were
years
custody
teen
in the
Board of
of the
ing
driveway
pickup.
out of
another
appeal,
On
raises three
Correction.
Darbin
They
stopped
were
and
Cox noticed
the trial
its discretion
issues:
court abused
fenders and
grill
two front
the front
from
refusing
grant
a continuance when
departing
his GMCwere
back of the
permitted
was
the state
to amend
infor- pickup. The
hood
GMC’s
was found behind
trial;
days
three
he
mation
before
was
haystack
property.
on the
later
was
effective
denied
assistance of counsel when
origi-
that the red sideboards of
learned
defense;
present a
trial counsel failed to
given away by
nal
had been
Darbin
flatbed
sentencing
the trial court
and
abused its
neighbor.
as firewood
burned
deciding
discretion. We affirm without
relating to
issue
effective assistance
issue,
it
counsel. On that
we hold
should
preju-
first contends that he was
Darbin
post-con-
through
petition
for
pursued
permitted
the state was
diced when
relief,
appeal
and not on this direct
viction
information and his
amend its
motion
from Darbin’s conviction.
denied.
was ar-
continuance was
Darbin
charge against
charge
The theft
Darbin arose
arraigned on
rested and
following
Curtis
under
circumstances.
THEFT BY
STO-
“GRAND
RECEIVING
three-quarter
complaint
Cox
owner of a 1950
of Feb-
was
LEN PROPERTY.”
ton,
25, 1983,
truck
pickup truck. The
was a
accused him of
ruary
GMC
bright red
Cox
flatbed with
sideboards.
knowingly,
unlaw-
wilfully,
intentionally,
truck
employed
long-haul
as a
driver
take, steal,
feloniously
obtain
fully, and
normally
at his em-
parked
pickup
his
property, wit: a
another’s
or withhold
place
leaving for
ployer’s
truck,
of business when
by CUR-
pickup
owned
1950 GMC
trips.
COX,
In
1982 he
long-haul
deprive
October
with the intent to
said
TIS
pickup
his
trip
proper-
from a
and found
returned
another
aforesaid
owner or
missing
missing.
reported
He
vehicle
appropriate
property
the same
ty
to or
office,
In
person.
sheriff’s
as stolen.
Janu-
That
or a third
said Defendant
pickup being
he
committed the aforemen-
ary
recognized his
Defendant
said
retaining,
attempted
by receiving,
con-
Canyon County.
He
driven
tioned theft
hood,
over,
obtaining
possess-
cealing,
control
the truck. He noticed that
follow
disposing of the
stolen
doors,
replaced.
ing
A
aforesaid
and fenders had been
knowing
having
reason to
property
also
the truck.
sun visor
had been added
long
property
pleads
believe that the said
was stolen.
defendant
so
as the amendment
property
rights.
prejudice
That said
then and there re-
does not
the defendant’s
LaMere,
ceived, retained, concealed, obtained,
19-1420;
State v.
pos-
103 Idaho
I.C.
§
v. Ran
disposed
(1982);
State
sessed or
said Defendant
ONE
HUNDRED
FIFTY
the information must
($150.00),
may prepare
proper
No/100THS DOLLARS
lawful
cific so the defendant
money
protect
against
of the United States of America.
defense and
himself
subse
quent prosecution based on the same con
All
contrary
of which is
to Idaho Code
Gumm,
duct.
18-2403(4),
Section
18-2408....
(1978);
VI;
P.2d
U.S. CONST. amend.
preliminary hearing,
After the
an infor-
IDAHO CONST. art.
Darbin ar
prepared
April
mation was
cit-
gues
rights
prejudiced
his
when
charge
THEFT BY
“GRAND
*4
prosecutor
district court allowed the
to
the
RECEIVING STOLEN PROPERTY —FEL-
change
property
the value of the stolen
ONY Idaho Code Section 18-2408 18-
the offense citation on the information.
2403(4).” The information was worded
begin
We
first
with the amendment
substantially
complaint
the same as the
case,
property
the
value.
In this
the value
except for the value
The
amount.
value
of the stolen truck establishes whether the
amount was stated as “not
exceeding
ONE
felony
theft
is classified as a
misde-
FIFTY
HUNDRED
and No/100THS DOL-
18-2407,
meanor.
18-2408. The
($150.00),
I.C.
money
§§
LARS
lawful
of the Unit-
prosecutor stated that the inclusion of the
added.)
(Emphasis
ed States of America.”
word
typo-
“not”
information was a
15, 1983,
prosecutor
On November
graphical
complaint
error. The
filed at the
moved to amend the information
delet-
outset of this case reflected the value of
“not,”
ing the
indicating
word
thus
that the
the stolen truck in excess of
When
$150.
truck was valued at more than
On
$150.
arraigned,
Darbin was
the court minutes
prosecutor
November
moved
magistrate
reflect the
supplement
to
the amended information
complaint
read the
and advised the de-
retitling the offense as “GRAND THEFT
penalties____
fendant of the maximum
BY RECEIVING OR POSSESSING STO-
The Court further advised the defendant
LEN PROPERTY —FELONY Idaho Code
charged
felony,
that because he is
with a
18-2407(l)(b).”
Section 18-2408 18-2403
A
magistrate
jurisdic-
division has no
hearing on the motion to amend the infor-
accept
plea____
tion to
de-
mation was held on November 25. Dar-
termined the defendant understood
objected
bin’s
amending
counsel
to
the in-
charge
rights.
against him and his
formation but
present any argu-
did not
ment. The
permitted.
represented by
amendment was
counsel
defendant was
Darbin’s counsel then
preliminary hearing
moved for a continu-
the com-
at his
where
ance based on the amended information but
plaint
pickup
indicated
value
that motion was denied. Trial was held on
findings of
truck was over
Both the
$150.
guilty
November 28 and Darbin was found
hearing
preliminary
and the order bind-
by jury.
over to district court reflect
Darbin
charge
grand
that the
theft. The com-
legally
A
sufficient information is
information,
plaint,
in-
initial
and amended
concise,
plain,
and definite written state
formation all
indicated the offense was
constituting
ment of
essential facts
grand theft.
Owens,
State v.
charged.
offense
101 Ida
Lenz,
(1980);
Although
the inclusion of the word
ho
(Ct.App.1982);
significantly changes
651 P.2d
“not”
the nature of
-1418;
7(b).
offense,
19-1409
Idaho
19-1419 states:
I.C.
I.C.R.
Code §
§§
insufficient,
court,
the discretion of the trial
an informa
“No indictment is
nor can the
trial,
judgment,
be amended after the time the
or other
there-
on,
affected, by
any
reason of
defect or
II
imperfection
form,
in matter of
which does
Darbin next contends that he was denied
prejudice
not tend to the
of a substantial
effective assistance of counsel at
trial.1
right of
upon
the defendant
its merits.”
argues
He
that his trial counsel’s conduct
Roland,
See also State v.
83 deprived him
rights
of two critical
—the
(1905) (the
P. 337
information which indi-
a defense and the
cated the offense was committed at a fu-
“proof”
on his own behalf. As
prejudicial
defendant).
ture date held not
assertion,
solely upon
Darbin relies
appears
that Darbin was aware that the
statement made
his trial counsel to the
felony
amending
offense was a
jury. After the state had rested
its case
prejudice
information did not
prepar-
him
chief, Darbin’s counsel addressed the fol
ing a defense.
lowing remarks
jury.
Second,
prejudice
Darbin asserts
gentlement
jury,
Ladies and
I
by allowing the offense citation of the in
prepared
opening
an
statement
formation to be amended from “GRAND
pros-
which didn’t make at the time the
THEFT BY RECEIVING STOLEN PROP
do,
ecutor made his. As I’m entitled to
ERTY-FELONY”
to “GRAND THEFT
I’m entitled to reserve them.
I have it
BY RECEIVING OR POSSESSING STO
goes through
all written out which
all of
LEN PROPERTY —FELONY.”
going
what the
say,
witnesses were
Code
18-2401 consolidated the various
admit,
the evidence
going
we’re
and at
species
single
of theft into
statutory
of
*5
time,
this
going
I’m not
to make that
fense. Both the factual statement and the
statement,
opening
going
I’m
statutory
18-2403(4)
cited
section of I.C. §
defense,
put
decision,
my
on a
and that’s
original
in
pos
the
information refer to the
and I haven’t
Floyd
even talked to
about
session of
property.
stolen
The informa
it.
states
that Darbin committed the of
But I don’t believe that the state has
over,
“obtaining
fense
control
possess
proven
necessary
one
ing or
element of this
(Emphasis
of” the truck.
disposing
added.)
case,
being
Floyd
“Obtains
that element
control” is defined as the
knew
taking,
sale,
carrying away,
convey
pickup
They
or the
the
was stolen.
have
ance,
to,
in,
or transfer of title
or interest
proven
you they probably
prov-
—
possession
property.
of
18-
stolen,
I.C.
pickup
they
en that the
was
2402(5)
added).
(emphasis
Receiving stolen
proven any ____ [Objection
haven’t
—
property impliedly
in
connotes that one is
made.]
possession
property.
of the
The initial in
While Darbin
this
characterizes
issue as
formation adequately set out the nature of
deprivation
one of
of effective assistance of
charged
the offense
which would enable a
counsel,
his
we believe
attack is misdirect-
person
ordinary understanding
to know
upon
ed. The focus should not be
counsel’s
Lenz,
what
intended.
regarding presentation
decision
of a de-
568;
19-1409(2).
at
651 P.2d at
I.C. §
Instead,
inquiry
fense.
the
should be di-
constituting
If the facts
the offense are
rected towards the failure of Darbin to
information,
sufficiently
stated
the
testify in
explain
his own behalf. We shall
giving
mere
of an erroneous offense char
why
approach
should be taken.
acterization is immaterial. State v. David
The record shows Darbin’s counsel did
son, 78 Idaho
defense, although
Here,
calling
without
amending
merely
information
re
any
attorney
witnesses in chief. Darbin’s
defined the same offense. We find no
motions,
pretrial suppression
partici-
made
showing
prejudice
by allowing
to Darbin
selection,
jury
lodged objections
days
pated
be amended three
information to
during the
before his trial.
state’s examination witness-
appeal
attorney
represented
same
who
Darbin at trial.
1. Darbin's counsel on this
es, cross-examined,
Supreme
had never
jury
and reviewed the
United States
argument
jury.
right,
instructions in her
expressly
to the
found such a fundamental
opening
closing argu
Supreme
In her
statement and
“[generally
speaking ...
ment
recog-
counsel asserted that
the state had
to favor constitutional
Court seems
failed to demonstrate that Darbin knew the
testify.”
nition of a defendant’s
truck was
is apparent
stolen.
from
was stolen.”
she
fy on his own defense
his alibi be-
about
importance
jury
of another
instruction
give
required
cause Alicea had failed to
which dealt with the inferences
could
which
notice of alibi to the state. The Seventh
from
drawn
circumstantial evidence.2
Circuit ruled that
the Wisconsin statute
exception,
With one
which
will
unconstitutionally
infringed on Alicea’s
address,
next
counsel’s decision to not call
testify.
part
witnesses as
of Darbin’s defense falls
case,
subsequent
the Seventh
aspect
within that
of trial counsel’s role
whether a
Circuit held that
decision
*6
which has been denominated as “trial tac
testify
should
in his own behalf
defendant
Drapeau
v.
“strategy
tics” or
choices.”
personal
was
to the defendant and could
State,
612,
103
(Ct.App.
by
not be
his counsel as a matter of
1982).
made
The decision of what witnesses to
Curtis,
v.
United States
strategy.
trial
call “is an area where we will not second
(7th Cir.1984). In
Curtis
the
troduce his alibi the trial v. n. infra, discussed 3. See also judge’s preclusive ruling” State, when he was P.2d Carter v. by cross-examined the state. 675 F.2d at held: The court hand, if On the other of failure persuaded We are no reasonable testify only a to in defendant considered jury accepted would have bald [Alicea’s] deprivation of a context of fundamental strong assertions over the evidence ad- right, constitutional and not the context duced the state. Because the state’s counsel, of of effective assistance then overwhelming evidence was and [Alicea] only has the he defendant burden to show presenting succeeded in his alibi testimo- deprived right testify. was to
ny in
spite
ruling,
court’s
trial
burden then shifts to the state to demon
ruling
conclude the erroneous
was harm-
strate that the constitutional violation was
beyond
less
doubt.
reasonable
error, i.e.,
harmless
the state must convince
at
Id.
925-26.
Curtis the Circuit Court
reviewing
beyond
court
reasonable
ruled:
alleged
doubt that the
error did
contrib
personal
We hold that
defendant’s
con-
ute
Chap
to the defendant’s conviction.
right
testify truthfully
stitutional
to
California,
man
523
Although Darbin’s contention in Carter’s issue of effective assistance of
right,
volves a
having
fundamental constitutional
judicata as
been
counsel was res
upon
we are reluctant
to rule
that conten
appeal.
raised on the earlier direct
Re-
tion because the issue has been framed
contention,
sponding to the state’s
our Su-
appeal
an insufficient record in this direct
preme Court said:
from the conviction. While we have deter
disposing
ineffective as-
of Carter’s
truly
mined that
this issue is not
one in
appeal,
sistance claim on direct
we sim-
counsel,
volving the effectiveness
we
alleged
ply stated that
deficiencies
any
development
believe that
further
strategic
fell into the area of
and tactical
pursued
petition
issue should be
on a
for
choices and that the record was “devoid
relief,
post-conviction
suggested by
any
indication that such choices were
appellate
certain decisions of the Idaho
ig-
inadequate preparation
a result of
or
dealing similarly
courts
with ineffective
norance of counsel.” Id. “Absent such
State,
counsel claims. See Carter v.
108
evidence,”
presumed
we held “it must be
788,
(1985);
v.
State
Idaho
Id.
Court added a footnote to the
deprivation
claim of
of his
foregoing. The Court said:
through
in his own behalf should be raised
If
contrary
evidence to the
is available
petition
post-conviction relief if he
for
record, may
presented
outside the
it
pursue it.
therefore decline
desires to
We
only by way
petition
post
of a
convic-
on the merits at this
to decide that
issue
pursuant
tion relief
to I.C.
19-4901 et
time,
preserving the
without
thus
issue
*8
seq.
[Citations omitted.]
prejudice
avoiding preclusion later on
and
See RESTATE
judicata.
the basis of res
Subsequently,
petition
filed a
for
Carter
(SECOND)
MENT
OF JUDGMENTS
post-conviction
alleging, essentially,
relief
26(1)(b) (1982).
petition
If
files a
Darbin
§
the same ineffective assistance of trial
issue,
post-conviction
raising
for
relief
that
counsel that had been asserted on his direct
the issue should
determined under the
be
appeal
post-con-
from his conviction. The
Chapman
California,
v.
guidelines
386
petition
ap-
viction
was denied and
of
Carter
pealed.
appeal
On that
the state contended U.S.
87 S.Ct.
III
a
ing. The Court’s
then states
opinion
that
Finally,
argues
Darbin
that the dis
undecided,
leaving
question
by
waiver
trict court abused its discretion in sentenc
preserved
and
the issue
have
we
him
an
not to
indeterminate term
preclusive
judicata
effect of res
years.
avoided
nineteen
In
exceed
addition
grand
charge,
being
proceedings.
theft
Darbin admitted
in later
This statement
cor-
per
of
persistent violator
the law. As a
it goes.
as far as
Preclusion
rect
violator,
sistent
he could have been sen
authorizing a
by expressly
avoided
claim or
imprisonment.
See
to life
I.C.
tenced
litigation.
subsequent
issue to be raised in
Therefore,
year
nineteen
19-2514.
analysis
I think the
should be
But
taken
imposed upon
sentence
Dar
indeterminate
step
judicata apply
one
further. Does res
clearly
statutory
within the
limits for
bin is
at all?
by
as
his status as a
the offense
enhanced
of
must
Practitioners
criminal law
find it
sentencing,
persistent violator. Prior to
disquieting
only
to be
told
discre-
and a
felony
had three
convictions
Darbin
tionary largesse
appellate
an
court
ten-year
of misdemeanors over a
number
bar of res
stands between them and the
period.
sentencing,
district court
At
State,
all,
v.
After
judicata.
Kraft
apparently
Darbin had
chosen
noted that
(1979), our
525 in May, Joyce-Ramseyer Larsen v. judicata earlier decision 93 Idaho version of res is was, 602, (1970). preclu- P.2d 866 Larsen 468 known as the of claim now doctrine indeed, case; post-conviction a fully That doctrine is articulated in sion. (SECOND) nothing judicata. there said OF Court about res the RESTATEMENT Rather, (1982). the Court if simply said that a The Second Restate- JUDGMENTS post-conviction application genu- exceptions to framed no ment identifies several fact, preclusion. ine issues of material and raised noth- of claim One of these doctrine questions previously exceptions, more than of law found at Second Restatement appeal, 26(f), litiga- hearing a was un- is invoked the second decided new where § Summary challenges invalidity necessary. disposition ap- apparent “the tion having Nothing continuing under I.C. in condition a propriate 19-4906. a restraint or Larsen, it, liberty____” harbinger personal I read of res relation to as was a vital judicata i provides in to this section the fol- Comment Kraft. lowing explanation: opinion only invoked res not Kraft preclusion instance One claim [where in judicata, it also the doctrine enunciated apply] in which does is a case form: its broadest validity at question issue is the a expectation controver- that entire [The] having continuing restraint or condition presented be all rele- sies will and that liberty. to personal vital relation Al- long produced material will be has vant attacking penal civil actions though rule in think the Idaho: “We been custody criminal con- resulting from rule to be action be- correct that an beyond scope victions are this parties upon the same the same tween Restatement, such actions do illustrate demand, adjudication claim or former the need moderate conventional no- parties privies only as concludes and finality liberty personal tions of when is every matter received to offered and at stake. claim but also as or defeat the sustain
every might matter or should which litigated been suit.” suggested concept of It is not that the first Murphy added.) Joyce v. (Emphasis cases, place finality has no in such Co., 549, 553, Etc. Land 35 208 P. Idaho every court such case must that Ramseyer, 241, (1922). Ramseyer v. 242 splitting relitigation without lim- allow 358, Idaho 360 98 569 P.2d the need for it. What indicated is (1977). flexibility and, greater in some matters legisla- type, special of this need By at P.2d at [Emphasis tive treatment. added.] embracing Joyce Ramseyer, Kraft an- judicata that res attach to nounced would Thus, post-conviction proceedings are “might” ap- that raised on all matters preclusion. the ambit of claim outside peal. wholly dis- This announcement of, governed are creatures and are They previously recognized distinc- regarded Procedure by, the Uniform Post-Conviction “ (which ‘mere errors’ between trial tion Act, 19-4901 -4911. This Act I.C. §§ only by appeal) corrected direct can be “special legislative treatment” represents (which may raised errors’ ‘fundamental Restatement. the Second as envisioned they raised on though could have been even says judicata or nothing Act about res State, v. appeal).” Smith says, noted preclusion. simply as claim 491 P.2d earlier, post-conviction application is Smith, appeal. I take Joyce for an not a “substitute” contrasted with When mean, held in Supreme as our Ramseyer cases choices curious May, post-convic- supra, v. Larsen involved Neither of them precedent. convicted Moreover, place for a no post-conviction proceeding. Akins, relitigate legal ques- same Aldape defendant recently noted context, tions, virtually factual the same (Ct.App.1983), *10 already presented appeal. in a direct charges, This trial on criminal there should be meaning preclusion. is consistent with I.C. 19- no issue 4901(a)(4), which authorizes application an provides The case an illustration. to be filed when “there exists evidence of post-conviction application encouraged The facts, material previously presented not by today’s presumably decision specify will heard, requires and vacation of the communications, any, if between Dar- in conviction or sentence the interest of attorney concerning bin and the his defense justice____” post-conviction applica- If a facts, right testify. and his These al- presents tion question previ- a substantial though determining crucial whether ously appeal, raised on but in a materially unilaterally waiving counsel acted in Dar- context, different nothing factual in the testify, pe- bin’s would have been addressing ques- ripheral guilt Uniform Act forbids to the issue of or innocence pending tion on its merits. before the trial court. Because significantly the focus the trial differed might argued be if judi- that even res prospective post-convic- from the focus of a preclusion cata in the form of claim does proceeding, and because the accused’s apply post-convictión proceedings, not attorney communications with his be could (now estoppel collateral known as issue probed extensively post-con- far more in a However, preclusion) might applicable. be trial, viction than in the I be- again, argument once such would find no lieve this case would fall within fore- support textual in the Uniform Act. More- going exceptions preclusion. to issue over, recognizes Second Restatement upshot of this discussion is that res important exceptions pre- several to issue in Kraft, judicata, broadly enunciated pro- clusion. Second Restatement 28§ provides unsatisfactory an framework for pertinent part vides as follows: defining appeals the roles of direct Although litigated actually an issue is post-conviction proceedings achieving judg- determined a valid and final justice. As criminal the Second Restate- ment, and determination is essential observes, ment conventional notions of fi- judgment, relitigation to the of the issue nality personal must be moderated where par- subsequent in a action between the liberty society, is at stake. In a free where precluded following ties is not in the liberty carefully imposed, restraints on are circumstances: challenges legality to the we should bar merely they because confinement (b) (2) The is one of law and ... issue presented ap- on “might” have been direct new determination is warranted order or, hampered by an peal presented, if intervening change of an to take account record. When a undeveloped appellate legal or applicable in the context other- application makes a sub- post-conviction inequitable wise to administration avoid process due or anoth- showing stantial laws; abridged— has been er fundamental supported by is (3) application facts A of the issue is and the new determination development original in the quality ill-suited for by differences warranted addressed on its merits. procedures fol- trial —it should be or extensiveness apply. Neither can judicata does not two courts or factors Res lowed jurisdiction application be characterized as relating allocation of such an them____ appeal. mere “substitute” between case, kind of the thrust of the by post- invoked exceptions These misdirected. There is no application decision is applications. If an conviction Kraft “inviting” previ- parry the thrust beyond the record need to grounded in facts application. application post-conviction and if the addi- presented appeal, ously not, When that conclu- simply precluded. could facts are those which tional not, accepted, the dis- developed in a sion is understood customarily would *11 judicata quietude put over res can be
rest. P.2d 932
KONIC INTERNATIONAL CORPORA
TION, Systems, dba Transtector
Inc., Plaintiff-Appellant, SERVICES, COMPUTER
SPOKANE
INC., Washington corporation,
Defendant-Respondent,
No. 15882. Appeals
Court of of Idaho.
Nov. Eisele, argued, Mark A. Joseph
R. Jackson, d’Alene, plaintiff-appel- for Coeur lant. d’Alene, Arney, for defend-
Pat W. Coeur ant-respondent.
WALTERS, Judge. Chief Corporation International sued Konic Services, Inc., Computer to collect Spokane allegedly of an electrical device price Spokane Computer. sold Konic sitting magistrate before a suit was tried magistrate jury. The entered without a Spokane Computer, conclud- judgment par- no contract between ing there was authority apparent lack of ties because of Computer Spokane employee of an device from Konic. dis- purchase the court, magis- appeal, upheld the trict appeal by On further judgment. trate’s magistrate’s Konic, also affirm the