106 P. 305 | Idaho | 1910
— On Sept. 21, 1908, the county prosecuting attorney in and for Lincoln county filed an information in the district court of said county against the defendant, charging him with the crime of murdering and killing one Frank Langford on July 8, 1908. On the same day he was arraigned upon such information and was' represented by counsel and was given the statutory time in which to plead. On Sept. 22, 1908, the defendant with his counsel being present in court filed a demurrer to the information, which demurrer was overruled, and the defendant entered a plea of not guilty of the offense as charged in the information. By consent of counsel the cause was set for trial on Sept. 28th.
The first error assigned and presented on this appeal is the order of the court overruling the motion for a continuance. The affidavit of the defendant for a continuance was based upon the absence of Douglass Fleming and Mattie Fleming, who it is stated reside at Des Moines in the state of Iowa; that the defendant had been in correspondence with said witnesses since about July 10, 1908, and that said witnesses up to Sept. 15, 1908, informed and advised the defendant, and he believed that they would be in attendance at this term of court to testify upon behalf of the defendant; but that on Sept. 15th the defendant received a communication from the said witnesses that Douglass Fleming was seriously ill and confined to his bed, and that he could not be in attendance at court; that the witness, Mattie Fleming, was in constant attendance and had the sole care of said Douglass Fleming and could not be spared from his bedside; that Douglass Fleming is a brother and Mattie Fleming a sister of the defendant, and that he could prove by such witnesses that from April, 1857, until December, 1861, the defendant was subject to and had spells of nervous prostration and fits resulting therefrom, and during such time was entirely unconscious of his acts and unable to distinguish the difference between rightful conduct and wrongful conduct, and was
As a further ground for such continuance the defendant stated that he had been incarcerated in jail since the alleged commission of the offense, and had no relations within the state to aid or assist him in the preparation of his defense, other than said witnesses and his wife, Amelia Fleming, who was prostrated with nervous debility and enfeebled mental condition so as to render her of no assistance to the defendant in the preparation of his trial; and by reason of his confinement in jail and the absence of his relations he has been unable to find witnesses whose existence he knows and who can testify in his behalf; that during the year 1900 and 1901 and a part of 1902, while residing in Bingham county, state of Idaho, a large portion of the time he was confined to his bed by reason of nervous prostration, and that while so afflicted his mind became deranged to such an extent that he was unable to transact any business or to remember any transactions or the names of those with whom he was best acquainted or to converse with his friends on any subject, and at other times was entirely demented and bereft of his reason and was taken into Boise City in the month of June, 1902, for medical treatment; that the employees of the stock farm of Burk brothers, who ranged stock upon the range in that vicinity during those years, but whose names affiant does not remember, knew of such facts and by whom he could prove such facts, and that if the cause be continued until the next term of court he will be able to ascertain the names of such witnesses and produce them upon the trial; that he relied upon his brother, and that the brother would have come had it not been for sickness, and assisted him personally and financially to ascertain the whereabouts of said witnesses ■ that he is broken in health, without money and with little or no available property, and unable to secure the presence of the witnesses; that the application was not made for delay, etc.
The prosecuting attorney filed a counter-affidavit setting forth the date of filing the information, the date of arraign
"We have thus set out to some extent the material allegations contained in the affidavit filed by the defendant, as well as the affidavit made by the prosecuting attorney upon the hearing of the motion, for a continuance. We have deemed this necessary in view of the argument urged by counsel for the defendant, to the effect that it is a recognized rule by the courts generally that in important criminal cases a continuance at the first term is granted with great liberality, and that the same exactness of showing is not required as in cases of less importance or when application for such continuance is made at a subsequent term after the filing of the information.
It appears from the record, and the showing is made upon the motion for a continuance, that the prosecuting attorney will admit that if the witnesses mentioned in the defendant’s affidavit were present, they would testify to the facts as therein stated. Sec. 4372, Rev. Codes, provides:
“A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. ’ ’
This section was construed by this, court in the case of Territory v. Guthrie, 2 Ida. 432, 17 Pac. 39, and held to apply to an application for a continuance in a criminal case; and that where a party makes the admission that the witnesses named in the affidavit if present would testify as therein stated, the affidavit becomes evidence and it is not error to overrule an application for a continuance. This case was approved by this court in the case of State v. St. Clair, supra. But counsel for the defendant argues that under the showing
A defendant charged with a crime is required, under the statute of this state, to exercise some diligence in preparing his defense; and where it appears that he has not been deprived of any of his legal rights in the preparation of his case for trial, and that full opportunity has been given him to prepare his defense, it is not an abuse of discretion to deny the application for a continuance. The time for preparing for trial in this case was much longer than that set forth in the case of State v. Rice, supra, in which this court held that the trial court did not abuse its discretion in denying an application for a continuance upon the ground that the defendant did not have sufficient time to prepare for trial.
In the case of State v. Wetter, supra, this court had an occasion to review the showing made upon an application for a continuance, where the facts were very similar but much weaker than the case at bar, and in which it was held that the trial court did not abuse its discretion in overruling the application for a continuance. In this case the defendant was permitted to introduce as evidence the statement which defendant claims would be made by his brother and sister residing in Iowa. The personal attendance of these two witnesses could not be compelled, and if their depositions had been taken it probably would not have had any greater influence with the jury than the statement made by the defendant as to what such witnesses would testify to. In other words, the defendant would not have had the advantage of the personal attendance of such witnesses — and not only that — but, under the showing made in this case, it does not ap
It is further argued by counsel for appellant that the trial court should have taken into consideration, in passing upon the application for a continuance, the fact that there was considerable excitement in- the vicinity of the alleged homicide and that public sentiment was clearly against the defendant,- and that these matters should have influenced the court in granting a postponement of the trial. An examination of the affidavits filed on motion for a continuance does not disclose the contention made by counsel for appellant. It does not appear from the showing made that there was any excitement in the vicinity of the alleged homicide or that public sentiment was against or in favor of the defendant, or that the defendant could not have had as fair a trial at such term of court as at any subsequent term.
It is next urged that the trial court erred in refusing to give the following instruction requested by the defendant:
“The jury are instructed that if, from the evidence, they have any reasonable doubt as to whether the defendant, John Fleming, at the time of firing of the fatal shot, was under reasonable and honest fear that said deceased intended and was about to inflict upon him great bodily harm, and that*484 he fired the shot under that belief and in self-defense, then the jury must acquit the defendant.”
The trial court refused this instruction for the reason, as shown by the indorsement thereon, that there was no evidence to justify the giving of such instruction. If this instruction is not a correct statement of the law, then the court did not err in refusing to give the same, and the reason upon which such refusal was based is of no consequence. We are satisfied that this instruction is not a correct statement of the law of self-defense.
Sec. 6570, Eev. Codes, is as follows:
“Homicide is also justifiable when committed by any person in either of the following eases: .... 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.”
It will thus be seen that under the provisions of this statute the bare fear of the commission of any of the offenses mentioned in subds. 2 and 3, to prevent which homicide may be lawfully committed, is not sufficient to justify it, but the circumstances must be sufficient to excite the fears of a reasonable person; and the party killing must have acted under the influence of such fears alone. When, therefore, the defendant requested the court to instruct the jury that if from the evidence they had a “reasonable doubt as to whether the defendant, John Fleming, at the time of firing of the fatal
As was said by the supreme court of California in the ease of People v. Glover, 141 Cal. 233, 74 Pac. 745:
“A person may have a lively apprehension that he is in imminent danger, and believe that his apprehension is based on sufficient cause and supported by reasonable grounds; that such apprehension is reasonable and warranted from appearances as they present themselves to him. If, however, he acts on these appearances, he does so at his peril, because the law leaves it to no man to be the exclusive judge of the reasonableness of the appearances upon which he acts, but prescribes a standard of its own, which is, not only did the person acting on the appearances himself believe that he was in deadly peril, but would a reasonable man, situated as the defendant was, seeing what he saw, and knowing what he knew, be justified in believing himself in danger. ’ ’ (People v. Lynch, 101 Cal. 229, 35 Pac. 860; 21 Cyc. 817.)
Looking at the instruction under consideration again, we find that the instruction leaves the question of fear entirely to the “reasonable and honest belief of the defendant,” not as a “reasonable man” as the statute says, but entirely to his own judgment and conclusion, and entirely ignores an essential element required in order to constitute self-defense. We find no error in the court’s refusal to give this instruction. (State v. McGreevey, ante, p. 453, 105 Pac. 1047.
The first part of this instruction with reference to the policy of the law is argumentative and should not have been given to the jury. (Smith v. State, 141 Ala. 59, 37 So. 423.) The latter part of the instruction, as to the jury being satisfied that every material allegation in the information was proven beyond a reasonable doubt, was fully and completely covered by the instructions given with ■ reference to the presumption of innocence and the necessity for the state proving every material allegation of the information beyond a reasonable doubt, and the instructions defining reasonable doubt.
The third error assigned was the refusal of the court to give the following instruction: ‘ ‘ The jury are instructed that evidence of confession or admission should always be carefully scrutinized by the jury and received with great caution. It is the most dangerous evidence that can be admitted in a court of justice and the most liable to abuse; and though a witness is perfectly honest, it is impossible for him in most cases to give the exact words in which an admission was made, and sometimes by the transposition of the words a party may give a meaning entirely different from that which was intended to be conveyed by the witness.” The court did give, however, the following instruction: “The jury are instructed that evidence of confession or admission should be carefully scrutinized by the jury and received with great caution; though a witness is perfectly honest, it is impossible for him in most cases to give the exact words in which any admission was made; and sometimes by the transposition of
It is next contended that the court erred in refusing to give the following instruction: “The jury are instructed that the statements of the defendant out of court are a very doubtful species of evidence and should be acted upon with great caution ; and unless supported by other evidence tending to show
It is next urged that the court erred in refusing to give the following instruction: “The jury are instructed that it would be highly improper and wrong for them to regard any statements of the prosecuting attorney that are not based on the evidence in the case, if any such has been made, as entitled to any weight whatever in this case.”- This instruction stated a correct principle but was covered by the instructions given.
It is next contended that the court erred in refusing to give the following instruction: “The court further instructs the jury that this is not a civil case, but it is a criminal prosecution, and that the rules as to the amount of evidence in this case are different from those in a civil case, and a mere preponderance of the evidence would not warrant the jury in finding the defendant guilty. But before the jury can convict the defendant, they must be satisfied of the defendant’s guilt beyond all reasonable doubt, and unless so satisfied the jury should find the defendant not guilty. ’ ’ This instruction was fully covered in so far as it was applicable by instructions given by the court. The court very fully and completely instructed the jury that it was the duty of the jury to commence the investigation of the case with the presumption that the defendant was innocent of the crime with which he was charged and to enter upon the consideration of every fact and circumstance in evidence, having in mind the presumption of innocence, and that such presumption should apply to every fact and circumstance, and was not an idle form but a fundamental and important part of the law; and that the jury should act upon this presumption throughout the consideration of the evidence until it should be overcome by proof of guilt, so strong, credible and conclusive and beyond any reasonable doubt that the defendant was guilty. Then follows
Complaint is also made of the refusal of the court to give instructions 10 and 11. "We have carefully examined these instructions and find that they were covered by instructions given by the court on his own motion; and it could avail nothing by a discussion and comparison of such instructions.
It is contended that the trial court erred in refusing to give a certain instruction requested by the defendant on the law of insanity, and also erred in giving the latter part of instruction No. 21 given by the court on its own motion upon the subject of insanity. No exception was taken to the refusal of the court in giving the instruction requested by the defendant, and for this reason error cannot be urged in this court. The instructions given by the court on the subject of insanity are very full and complete, and in our opinion gave the law correctly to. the jury. One of these instructions, embracing the alleged objectionable matter, was as follows:
“Should you first find that the defendant fired the fatal shot, then the court instructs you, gentlemen, that the true test and standard of accountability is: Had the defendant sufficient mental capacity to appreciate the character and quality of his acts? Did he know and understand that it was in violation of the rights of another and in itself wrong? Did he know that it was prohibited by the laws of the state and that its commission would entail punishment and penalty upon himself ? If he had the capacity thus to appreciate the character and comprehend the possible or probable consequences of his acts, he is responsible to the law for the acts thus committed and is to be adjudged accordingly. A person in the possession of a sound mind who commits a criminal act under the impulse of passion or revenge, which may temporarily dethrone reason, or for the time being control his will, cannot be shielded from the consequences of his act.”
The portion of the instruction above printed in italics is that to which counsel for defendant takes exception, counsel
We take it to be the law that a person in the possession of a sound mind and whose reason is temporarily dethroned under the influence of passion or revenge alone, who while in such condition commits a crime, cannot be shielded from the consequences of his act upon the ground that he was not mentally responsible. If this were not the law, then every crime committed under the influence of passion or revenge would go unpunished, for it may be conceded as an inevitable conclusion that if a crime is committed under the influence of passion or revenge the person’s mind to a certain extent is-temporarily dethroned and is acting without direction of reason; yet this fact is not an excuse for the commission of a criminal act when in this condition. If this were the law, then very little difficulty would be encountered in successfully defending all criminal acts committed under the influence of passion or revenge, upon the ground that the person committing such offense was not mentally responsible for his acts. (State v. Larkins, 5 Ida. 200, 47 Pac. 945; State v. Erb, 74 Mo. 199; State v. Pagels, 92 Mo. 300, 4 S. W. 931; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224; State v. Privitt, 175 Mo. 207, 75 S. W. 457; 2 Brickwood-Sackett Instructions, sec. 2580.)
There is no ■ substantial conflict in the evidence. Lang-ford was seen driving away from his home in an easterly direction on the morning of July 8, 1908; he was seen in the evening about 6 o’clock returning home, and stopped at a neighbor’s place and watered his horses. Shortly after that a gunshot was heard and Langford’s team was seen running in the road and ran to his place of residence. Langford’s dead body was found immediately thereafter about thirty feet from Fleming’s fence and ten feet off the beaten road. Indications showed that the wagon had turned from the beaten track in the road, seventy or eighty feet from where the body lay, and that the body had been dragged a short distance and that the wagon wheels had passed pver the body. There were no indications found, or any evidence in the neighborhood of where the dead body was found or any place thereabout, of any struggle or contest in any way between the defendant and the deceased, or that Langford’s team had stopped. There was a main lateral ditch running inside of Fleming’s field, and near this there were indications that a person wearing gum-boots had been standing near the ditch and also had been sitting down, and a knee print was also found in the dirt. The ground was wet and the alfalfa very tall and had not been cut. Examination was made up and down the ditch from where these tracks were found for a distance of seventy-five yards, and no indications were found that the tracks had crossed the ditch in the direction of the road. Evidence was further found showing tracks
An examination of the body of the deceased the day after his death disclosed a bullet wound entering the front of the chest and passing upward and downward, the point of exit being some two inches lower than the point of entrance and the wound of such a character as to cause death. Evidence was also offered showing previous difficulty and a personal encounter between the deceased and the defendant about a year prior to the killing, and that Fleming had made threats against the deceased. Shortly after the killing a rifle was found in Fleming’s house with mud on the butt of the gun and a bullet taken therefrom was of the size and character
Will this evidence support a verdict, of murder in the first degree? Sec. 6560, Rev. Codes, defines murder as follows: “Murder is the unlawful killing of a human being, with malice aforethought.” The following section provides: “Such malice may be express or implied. It is express when there is manifested a deliberate intention, unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show -an abandoned and malignant-heart.” The following section defines murder of the first degree as “All murder which is perpetrated by means of poison, dr lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, .... is murder of the first degree.”
Applying the statute to this evidence, we find, first, that the killing is confessed. If this evidence shows a deliberate intention unlawfully to take the life of the deceased, malice is “express.” If, however, the evidence shows no considerable provocation in the killing, or that the circumstances attending the killing show an abandoned and malignant heart, then malice is “implied.” From this evidence we think the jury were warranted in concluding that there was a deliberate intention on the part of the defendant to take the life of the deceased, and that there was no considerable provocation for the killing. If so, then there was both express and implied malice. The statute says: “All murder which is perpetrated by means of lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, is murder of the first degree. ’ ’ The evidence in this case shows a state of facts from which the jury would have been justified in concluding that the defendant was lying in wait and shot the deceased from this position; or, that the defendant wilfully,
It is contended by counsel for appellant that the evidence does not show that the defendant did not act in self-defense and for his own preservation in taking the life of the deceased. There is nothing in the evidence which would have justified the jury in concluding that the defendant did act in self-defense. To our minds, the evidence clearly shows that the defendant killed the deceased deliberately and with malice and with the purpose and intent of taking the life of the deceased. There are no mitigating circumstances whatever, no acts which in any way would tend to justify the killing. The killing appears to have been done without any excuse or reason whatever, and the evidence fully warranted the verdict of the jury, unless the defendant was not in such a mental condition as to make him responsible for his acts, and this leads to the next contention made by the appellant and that is: Was the defendant mentally responsible for his acts at the time of the killing; in other words, was he sane?
The defendant introduced professional and expert witnesses who gave evidence tending to show that the defendant was suffering from paranoea and at the time of such examination was not responsible for his acts. The evidence of these experts further showed that there might be lucid periods when the defendant would be able to distinguish right from wrong and that at other times he would not be able to so distinguish. The wife of the defendant also testified and detailed certain mental disturbances the defendant had experienced and his queer and unusual actions at such time; and this was met upon the part of the prosecution by expert testimony and by the testimony of a large number of the defendant’s neighbors and acquaintances who were personally acquainted with him, had business relations, and associated intimately with him, and who g.ave the opinion that he was sane and accountable for his acts. Upon this evidence the
There are a number of circumstances surrounding tbe commission of tbe crime charged which we bave not attempted to set out in detail but which no doubt were given much weight by tbe jury; and tbe acts and movements of tbe defendant before and after tbe billing no doubt were suggestive to the jury tbat a person would not pursue tbe course taken by tbe defendant unless be was conscious of bis own wrongdoing, and was able to distinguish tbat by bis acts be bad clearly transgressed tbe laws of bis state and was willing to surrender himself to answer therefor; and to our minds, tbe evidence of sanity preponderates and outweighs tbe professional testimony of tbe expert as to bis opinion based upon certain evidences be discovered from an examination of tbe defendant. Tbe evidence of these professional witnesses is interesting, and evidences great learning in tbeir profession, yet in each instance they base tbeir opinion of the witness’ mental condition at the time of tbe homicide upon bis condition after and long prior to tbe homicide, and from these facts they reason and conclude tbat at tbe time of tbe homicide be was not mentally responsible for bis acts. While insanity is a legitimate defense, and no one should be punished who is not mentally responsible for bis acts, yet before this court would be justified in disturbing tbe verdict of a jury where insanity is claimed as a defense, it must appear from tbe evidence tbat a reasonable and fair doubt necessarily will arise out of tbe evidence as to tbe sanity of the defendant. In this case we believe tbe evidence supports tbe verdict of tbe jury.
“When new evidence is discovered material to the defendant, .and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing in support thereof the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.”
Inasmuch as this statute makes no provision for filing counter-affidavits by the state, counsel for appellant contends that the affidavits filed in this case should have been stricken from the files and not considered by the trial court, and that the court committed error in not sustaining'the motion to strike. Counsel for appellant contends that Rev. Codes, sec. 4441, subd. 1, in relation to motions for new trials in civil eases, specifically provides for filing counter-affidavits, and that had the legislature intended to allow counter-affidavits on motions for new trial in criminal cases, the statute would have so provided.
While this court has never had occasion to pass upon this question directly, yet it has in several instances recognized the right to file counter-affidavits by the state. (State v. Davis, 6 Ida. 159, 53 Pac. 678; State v. Levy, 9 Ida. 483, 75 Pac. 227.) The statute of California with reference to filing
“We are of the opinion that the court did not err in receiving these affidavits, or in taking them into consideration in determining the question as to whether a new trial should be granted. To hold otherwise would be to make it necessary for the trial court in many cases to grant a new trial upon the ex parte affidavits of perjured witnesses, where it is easily within the power of the other side to demonstrate that the new witnesses are utterly unworthy of credit, and that the allegations of their affidavits are entirely without foundation, and can be overwhelmingly overcome by the evidence of reputable persons.Such counter-affidavits are received and considered, as has been said by some courts, simply for the purpose of enabling the trial court to intelligently exercise the discretionary power confided to it of determining whether or not the interests of justice demand that a new trial should be had.”
To the same effect, People v. Fice, 97 Cal. 459, 32 Pac. 531; People v. Woon Tuck Wo, 120 Cal. 294, 52 Pac. 833.
A motion for . a new trial upon the ground of newly discovered evidence is addressed to the sound legal discretion of the trial court, and the important question the trial court is called upon to decide is, would such newly discovered evidence, if produced upon another trial, render a different result reasonably probable; and in the absence of such evidence did the defendant have a fair trial on the merits; and while upon the hearing of a motion for a new trial the court cannot retry the ease upon its merits upon affidavits and counter-affidavits, yet the court can permit counter-affidavits to be filed, and may consider the same in relation to any pertinent matter except the issue of fact to which such newly discovered evidence is addressed. In other words, the prosecution may file counter-affidavits for the purpose of showing that the newly discovered evidence claimed by the state does not exist, or that the same is unworthy of consideration or be
A motion for a new trial was made and overruled and this ruling is assigned as error. The motion for a new trial was based upon newly discovered evidence and is supported by certain affidavits. The defendant filed affidavits separately made by Drs. W. B. Lyman, J. L. Stewart and John Boeck, all physicians, in which each states that he examined the defendant on Mar. 29, 1909, and found the defendant suffering from chronic, delusional insanity to such an extent that he was unable to place himself in a sane relation with his environments, and unable to comprehend the full nature and extent of his acts and the import of his social relations, and unable to distinguish between right and wrong in connection with his acts; and that such condition, in the opinion of the physicians making the affidavits, has existed for many years and is incurable. These affidavits in the main relate to the condition of the defendant at the time the examination was made, and the opinion is given that such condition has existed for many years; but it does not appear that at the time the homicide- was committed the defendant was acting under any delusion, or was mentally unable to distinguish between right and wrong, or unable to comprehend the nature or quality of his act at the time he fired the shot which took the life of the deceased. This can be determined only by a process of reasoning.
Doctor Boeck, who. makes one of the affidavits used, was a witness at the trial, and carefully and fully testified with reference to the defendant’s mental condition at that time; and the affidavits of Drs. Stewart and Lyman only relate to
Tbe defendant also filed an affidavit made by one C. E. Byrum, in which Byrum makes tbe statement that in a conversation once bad with Langford with reference to bis trouble with Fleming, Langford stated: “I will tell you, By-rum, I am going to agitate tbe old man until be makes a crooked move and then I am going to get tbe damned old son-of-a-bitcb’s bide.” This statement is alleged to have been made in May, 1908. Even though this evidence were given upon tbe trial it would not have justified or excused tbe defendant in taking tbe life of tbe deceased, and would not have supported or tended to prove that tbe homicide was committed by tbe defendant in self-defense. It will be observed that tbe statement is claimed to have been made some two months before tbe homicide, and does not relate to tbe incidents surrounding tbe difficulty at tbe time tbe homicide was committed, and it would not have aided tbe jury in concluding that tbe act of tbe defendant was done in self-defense.
Tbe defendant also filed affidavits made by Giles G. Titus and Chester Titus, in which Giles Titus makes tbe statement that on tbe morning after tbe killing, at about 125 feet south of where Langford’s body lay and about ten feet from tbe wagon tracks made by Langford’s wagon turning out of tbe road, be saw a pair of gloves lying on tbe ground about a foot apart; that be picked them up and examined them and they were driving gloves belonging to Fleming; that be bad seen Fleming wear them, and that bis brother told him that be bad seen tbe gloves. Chester Titus states that be and bis brother in law, W. W. Pittinger, went to tbe place where Langford was killed, and that George Montgomery, Sr., joined them, and at about 125 feet south, where tbe wagon bad left tbe road, and on tbe west side of tbe wagon tracks where tbe team bad turned off, be found a pair of driving gloves about a foot apart; that he picked one up and laid it down again in about tbe same place; that be did not know
An affidavit was also made by Walter Isbell to the effect that he was over in the Fleming field on the evening of the killing, and that he saw no tracks except where a man had walked down the field across to the fence; and Harry Blivens makes an affidavit that on July 8th he saw Fleming coming from water on Isbell’s farm just across the road from Fleming’s place; that the defendant had a plow and was near the ditch alongside the road and close to the place Langford was
These statements contained in these affidavits were no doubt intended to show that evidence could be produced disproving the evidence given by the state at the trial with reference to the tracks and conditions in the Fleming field indicating that the defendant was lying in wait at the time the homicide was committed. There is no reason or excuse why, if this evidence existed at the time of the trial, it was not produced, but if the witnesses did testify to these facts, still it would not disprove or throw doubt on the evidence of the state to the effect that tracks and imprints were found in the field. Not one of these witnesses say they made an examination and did not find such tracks or imprints. The statements contained in the affidavits are mere incidents from which it is left to inference that the tracks and imprints described by the witnesses for the prosecution were not there. As an excuse for not producing these witnesses, an affidavit was filed by the defendant and also his counsel, John M. Peebles, to the effect that they did not know of the existence of this evidence until after the trial, and were not aware that they could have proven such facts by the witnesses; and defendant’s counsel further makes affidavit to the effect that the defendant was without means to employ anyone to secure evidence or procure the attendance of witnesses. A counter-affidavit, however, is filed by the state, made by the deputy sheriff who had Fleming in charge, to the effect that Fleming received about Aug. 1, 1908, a check to the amount of about $250 or $300. It also appears from the affidavit of the sheriff that Fleming had money in the bank during his time in jail, but did not show any disposition to spend the same. From all the facts as they appear in the affidavits presented by the defendant on motion for a new trial, we are
There is one question which has not been alluded to, which counsel for defendant very earnestly urges is a sufficient ground for a reversal of this judgment. But an examination of the record discloses that counsel for defendant has permitted himself to become very much exercised over what appears to have been an unimportant and inconsequential matter in so far as it could possibly have affected the defendant’s rights or in any way prejudiced the jury against him. The question to which we advert is the fact that during the progress of the trial and in the presence of the jury, the wife of the defendant was arrested upon a charge of insanity. There is nothing in the minutes of the proceedings of the trial showing the arrest of Amelia Fleming, the wife of the defendant, at any time. This matter is presented entirely by the affidavit of John M. Peebles, one of defendant’s counsel; and in his affidavit he states that after the close of the evidence of the ■ prosecution and while he and his associate were consulting with Amelia Fleming, the wife of the defendant, Art Murray, the deputy sheriff of said county, walked into said courtroom and inside of the bar of said court and up to where counsel were holding consultation with Amelia Fleming, and, in the presence of counsel and the jury, grasped Mrs. Amelia Fleming by the arm and said, “Come with me”; that he was asked by counsel to leave Mrs. Fleming alone and advised that he could not take her and that she was needed in the courtroom; that there was considerable confusion, and the attention of the jury was directed to what was happening and during such confusion the court adjourned. If this arrest took place as thus stated,
A counter-affidavit was filed by the deputy sheriff making such arrest in which he says: “I went into the courtroom where the trial was going on; after telling Sheriff Jones that I had the warrant, I leaned over and whispered to Mrs. Amelia Fleming the words, ‘I want to see you.’ She replied, ‘Wait till I talk to my attorneys.’ She then leaned over and talked to J. C. Rogers, Esq., and J. M. Peebles, Esq., the attorneys defending her husband, and also consulted with John Fleming, her husband; neither of her attorneys asked me what the trouble was or in any way conversed or communicated with me. Neither did I grasp Mrs. Fleming by the arm; neither did I use the words ‘come with me.’ There was no confusion of any kind. Mrs. Fleming did not herself know what the trouble was till after I had taken her to the sheriff’s office. There was nothing said or done to indicate tó the jury that anything unusual had taken place. After court adjourned this said evening the said attorneys J. C. Rogers and J. M. Peebles came to the sheriff’s office and inquired regarding what, if anything, had happened to Mrs. Fleming; that the same said evening as well as the next morning the said attorneys had the opportunity to consult with Mrs. Fleming and did consult with her. That she was not confined but was permitted the use of the sheriff’s office, and was permitted to remain a portion of the time in the court
An affidavit was also filed by the prosecuting attorney which among other things said: “When Mr. Murray came into the courtroom he simply,, leaned over and told Mrs. Fleming that he would like to speak to her. There was no interruption or confusion and the attention of the jury was not attracted to the matter. After conversing a few moments with her husband and attorneys she quietly left the room and the trial proceeded. Her attorneys did not tell Mr. Murray that he could not take her from the courtroom, as they did not know that any action had been taken until after the close of the trial that same evening, when they made inquiries and were told that a warrant had been served on Mrs. Fleming. The .actions of Mrs. Fleming during the trial were so hostile that her neighbors, who were witnesses against her husband, were very much afraid of being injured.
“Since the trial of Fleming I have talked with several of the jurors who sat in the case and all of them have stated that they did not know that Mrs. Fleming was arrested upon the charge of insanity or any other charge, until after they had rendered their verdict and had been discharged from the case.”
If the facts were as stated in these affidavits, it does not appear that the defendant could in any way have been prejudiced by the arrest of Mrs. Fleming. There was nothing in the conduct of the deputy sheriff in arresting Mrs. Fleming which directed the jury’s attention to the matter so that they could in any way have been prejudiced or influenced by such arrest. It does not appear that the jurors even knew that such arrest was made. While the prosecuting officer should be very cautious in the trial of a case not to inject or permit to be injected into the proceedings any fact or circumstance which would tend to influence or prejudice the jury against the defendant, except such as arises out of the evidence given and the defendant’s conduct, and the court should carefully guard the proceedings and see that a fair trial is had, yet where some foreign or outside circumstance
The granting of a new trial upon the ground of newly discovered evidence is largely a matter of discretion, in the exercise of which this court will not disturb the order of the trial court except in ease of abuse clearly disclosed by the record. A new trial should not be granted in a case where the party has not shown due diligence in discovering and producing the evidence, nor where the evidence is purely cumulative or contradictory, nor unless the newly discovered evidence is such as to render a different result upon a retrial probable. To entitle the defendant to a new trial upon the ground of newly discovered evidence, it must appear from the affidavits presented that the new evidence is not cumulative merely, that it is such as to render a different verdict reasonably probable upon a retrial, and that the evidence could not with reasonable diligence have been discovered and produced at the trial. (Flannagan v. Newberg, 1 Ida. 78; Knollin v. Jones, 7 Ida. 466, 63 Pac. 638; State v. Bond, 12 Ida. 424, 86 Pac. 43; State v. Williams, 12 Ida. 483, 86 Pac. 53; Hall v. Jensen, 14 Ida. 165, 93 Pac. 962; O’Rourke v. Vennekohl, 104 Cal. 254, 37 Pac. 930; People v. Demasters, 109 Cal. 607, 42 Pac. 236; People v. Chew Wing Gow, 120 Cal. 298, 52 Pac. 657; People v. Rushing, 130 Cal. 449, 80 Am. St. 141, 62 Pac. 742; Chalmers v. Sheehy, 132 Cal. 459, 84 Am. St. 62, 64 Pac. 709.)
We have carefully and exhaustively examined the record in this case and are unable to discover any error of the trial court which would warrant a reversal of the judgment. The record in this case shows that the defendant committed a grave and serious offense without any justification whatever, and that he had a fair trial, and we believe that we can safely say, without even a doubt, that the verdict of the jury is supported by the evidence. The judgment is affirmed.