State v. Frank, 97 P.2d 410

practical placed its force obviated because the construction through ‘sheir parties contract themselves conduct, virtually an abandonment thereof amounted to least a cessation reliance thereon. original re- opinion petition is adhered and the

hearing appellant. denied. Costs awarded to Budge, Morgan JJ.,

Ailshie, Holden, concur. (No. 6, 1939.) 6709. December FRANK, STATE, Respondent, Appellant. v. JONES (2d) Pac. [97 410.] McCarty, Leo Appellant. for Attorney General, Taylor, W.

J. W. R. Beckwith, E. G. Quinn Elliott, Thomas, and D. Lawrence B. W. Assistant At- General, Respondent. torneys BUDGE, charged Appellant, Jones Frank, was with J.— guilty

and found degree murder the and first sentenced imprisonment Penitentiary. to life in the Idaho State This appeal judgment was taken the of conviction. deceased, woman, Indian

The evidence discloses that an appellant appellant year, married to for about one and at their ranch home in an intoxicated condition 8at o’clock Rankin, A. M. which time Elsie March at a married appellant, husband, stopped her at and the Frank Frances, Mary deceased, home. At this time the had a cut eyebrow bleeding. on which Rankin her was Elsie her and Alpowa fishing went to returned to the husband and Frank just noon fish net from the home before to secure a woodshed. standing jboreh back At on the and this time was steps, go he could not down the and was so “drunk” de- kitchen, sitting in dressed, was “drunker” ceased than before, physical was unchanged, her condition otherwise but except stopped bleeding. procuring After that the cut had Rankin and her husband Elsie went Webb and net left four, picked quarter up Alfred there about Paul girls Frank, Catherine Frances and Rachel Lapwai, and Frank mile they below home and about one-fourth all o’clock, fishing. time, they At this about did not went Mary Jones Frances or stop Frank saw neither house, at the persons around no automobiles or Frank and observed Frank fishing Frank returned from party home. The eight evening found house after in the and home a little key un- Elsie Rankin with dark and the doors locked. ap- lighting matches found locked door and went in and floor, fully dressed and pellant lying dining room on Mary in a asleep, the floor and found Frances saw blood on lying floor, bedroom on her back on the nude. Elsie Rankin entered Frances and the two immediately called Catherine Mary upon found Frances was house and examination awakening left dead. Without deputy locked the and informed Yeager, door sheriff Joe Appellant who returned to the with them. house was dining room, opening then in the but the bedroom door Mary body Frances Frank found on was the floor in position formerly except she had the same been cov- quilt ered was found in with a bed covered clothing. Deputy Yeager with Sheriff bed then made appellant get up put his shoes stated he did not know what the trouble that his wife had Appellant fallen out of bed and hurt herself. taken by Yeager Lewiston Elsie Rankin was left to see that no Yeager the house. one entered returned with the sheriff together they, Rankin, with Elsie entered body and found the position in the in which it of deceased same was first discov- hair had been off and body ered. Deceased’s cut was a wounds, bruises and lacerations. mass of The head showed scalp and the head and softness of face were swollen and entirety. points in their Lacerations bruised at several exposed portion of the head and face frontal the bone. The hands were a solid almost forearms mass of bruises and shoulders, neck, torso,’ chest, The arms, lacerations. knees, and were ankles, thighs sides covered with bruises. On the puncture wounds, hand were each right the back of hand fracture. From the showing bone condition body a it variety a forces appeared that had been applied. The pair shock. A traumatic death was cause scissors was floor fifteen lying on the or sixteen inches found from the body eight inch dining pointed room an file toward and dining on sharp found room table with the end cov- ered with one and what one-half to two of blood and inches appeared A to be a little flesh. stick was found tom-tom dining room, shattered and with hair it. blood and clothing rumpled Ladies was scattered about the and d:ning torn. on Blood was found all around floor of the room, buffet, door, on in the din- walls and and the blood ing appeared through body dragged room had a it to have across the floor the bedroom. toward he was at home was to effect day 21, 1939, during with deceased all of March drinking. morning both were He stated that of March on against 21st his wife was drunk had fallen the stove cut- lips eye. ting distinctly. He remembered the occur- day rences of the that his and her husband came morning afternoon, early and later in the the last time get during he a fish net. He stated that the afternoon porch his on the and that he told deceased he was wife were “passed good rest, that he out” going in and take a on porch dark, it groped and when he awoke was that he for the door; crawled in could not found closed and because he room; stand; lay dining that he then down on floor come in and when that he did not see Elsie or Catherine lying into room he found his wife and walked his he awoke everything scattered; he with no dress on the floor bed; quilt got and went that later wife with covered his went bed. was dead and back to wife, his found she up and felt porch in from the there was when he came stated that He crawled dining room floor as he into the all over blood that he ever struck his wife denied While house. day swollen next or when hands were his and denied appellant’s that both hands were is evidence arrested, there he could 22d of March that not close badly on the so swollen knuckles were skinned. There is and that his of them either 4th chased Lizzie Jabeth March that on also evidence door, house, locked the his husband Mary scream for Frances heard leaving Jabeths kill her say if then he he did and heard help Deputy days. The Sheriff kill some of these going to was and returned to the 4th March Yeager was called on Mary all Frances and found home Jabeths Frank with the teeth knocked out and no on and her bloody no clothes with Mary appellant and Frances. except was at the house one family testimony other members of There is of various when Mary on different occasions she Frances was seen that left her home sev- up and that had on been beaten she had There is trouble with her husband. eral to avoid occasions Frances who testified Catherine evidence Mary say Frances during 20th she heard night of March ’ “ ’ me Don’t do that. Leave alone. in the bedroom: or scream ‘‘ “ ’ ” ’ my me. me. hit You are Stop beating Don’t husband. Mary the morning following And there evidence on swollen, bleeding was from a cut lips were she Frances’ eye had in her hair and that at this time blood over had blood his sweat shirt. appellant on Assignments twelve deal evidence, of error one to with objection, relating appellant’s prior to over threats admitted against prior ill wife and treatment her. appellant his point ill time the threats and treatment related In during the im occurred as follows: winter witnesses several 21st; previous March six weeks before March mediately particularly on 4th. The evidence and, March was to 21st; appellant and deceased on these occasions had effect that had bruises deceased suffered and blackened been drunk her. The treatment of eyes appellant’s occurrence of being the effect that and deceased March 4th was ejected intoxicated, Lizzie Jabeth and her hus up” locked the door and “beaten from the his band witnesses heard scream which time the for help wife at you say “if I don’t kill heard to now I will was days” or effect words similar and that the of these some Yeager immediately called was and when Sheriff he Deputy Mary with Frances a bruise her lip he found arrived face on her and that he discolorations admonished several up” “beating his wife stop him told if he Appellant kill her. liable to quit strives didn’t line of point improperly make objection admitted over his remote and because it was too separate offenses, showed and distinct admissible lend ing to substantiate offense of March 21st. The rule ex jurisdiction prior in threats appears istent be that to are ill treatment between husband and wife relevant admissible mental to illustrate attitude of the accused toward (30 408.) 184, prove his wife and sec. p. to motive. C. 1, relating In to Muguerza, 456, v. 46 Ida. 268 Pac. State testimony by appellant previous of made four threats months upon to an assault her husband it was held: “Prior threats of previous the accused or evidence of always trouble are relevant illustrate to mental of attitude prosecuting the accused toward the the lime witness at (Underhill Ed., of the assault. on Criminal Evidence, 3rd p. 773, 544.)” sec.

“But, any charged in event, of with murder the woman holding wife, relationships he was out as his shortly prior killing, pleasant otherwise, to the whether were admissible question (This of motive. is the rule (30 between 184, 408), husband wife) J. sec. feelings so evidence of (30 defendant toward victim 407.) 182, C. J. We hold evidence of both these prove witnesses was admissible to motive and the did court (State admitting not err in McClurg, it.” v. 762, 50 Ida. 300 Pac.

Objection remoteness of such evidence is ordi narily regarded affecting as weight and not the admis sibility evidence, especially when of the the conditions con (30 184, the time of homicide. 405; tinue to C. J. State (2d) 663.) Fox, 474, 52 16 v. Ida. Pac. Vlack, 316, (2d) State v. Van 57 Ida.

See also: 65 Pac. Larkins, 200, 945; 5 736; v. Ida. Pac. State Rogers, State 47 v. 259, 912; Buster, Pac. 163 State v. 30 Ida. 28 Ida. appear Pac. does pre 196. It not herein that the ill treatment were any inadmissible for vious threats urged. reasons assignment Appellant’s thirteenth of error is to the failing fully the court erred instruct effect attorney argued prosecuting evidence jury after the in the record. The to consists evidence referred following words remarks “any appearing more” prosecuting attorney: Monday you “But recall of Catherine night, during night, from sound she was awakened sleep by mother, her mother screams of her and that asking any me husband hit more.’ ‘Don’t object ‘any McCarty: going

“Mr. I am more’ exception on there. I That isn’t in the take record and ’’ that. only immediately jurors Not did the court advise the judges were the evidence, sole and exclusive but immediately prosecut- at the conclusion of his remarks the ing attorney jury stated to the as follows : gentlemen, stated, you

“As I judges are the sole testimony, and if produced statement to the facts your chair witness are not accordance with disregard remembrance, entirely.” mine Furthermore the court jury instructed the that the sole and judges exclusive of the facts and of what facts proved by or had been the evidence. No error prejudicial to is made appear to from the remarks (State prosecuting attorney. of the Flitton, 374, 52 Ida. v. (2d) 397; Smith, 8, 666.) 15 Pac. 46 State v. Ida. 265 Pac.

Assignment of error fifteen is that the court erred refusing give appellant’s in requested instructions num four, bered three and fully that the court did not instruct regard in Requested to circumstantial evidence. instruction fully number three by covered instruction number fifteen given by Requested the court. instruction number four part its in recited: material you

“but if find the deceased died as a of a result by defendant, inflicted cannot blow be convicted of degree jury unless the murder beyond shall find a doubt the blow reasonable was delivered with malice ’’ aforethought, with intent kill the deceased. gave several court instructions re- matters foregoing requested in the

ferred instruction. Instruc- fully doubt, covers reasonable eighteen tion instructions 782

eight, nine, ten, fully afore twelve and thirteen cover malice thought, degrees, man murder in the first and second slaughter, guilty, properly defining and not such terms pointing jury application out to the the method of points requested evidence submitted. As involved fully, completely correctly instructions were covered given re instructions court committed no error in fusing give requested (State Monleith, instructions. v. 30, (2d) Fox, 53 1023; supra; Ida. 20 Pac. v. State State Copenbarger, (2d) v. 441, 383; 52 Ida. 16 Pac. State v. Pasta, 671, 44 44 1075; George, Ida. 258 Pac. State v. Ida. 551; Jurko, Pac. v. 42 Ida. Pac. State

Assignment of error numbered fourteen deals with the insufficiency being support verdict, of the evidence to it particularly urged that the sustain evidence is insufficient to degree premeditation the verdict of first murder as no or part malice on the shown. From careful appears examination of evidence heretofore related beyond susceptible amply of, doubt that evidence was jury’s finding malice, premedita sufficient to warrant the tion and existed in mind of deliberation deceased, the time he took the life and that guilty degree. in the first of murder appearing prejudicial judgment in the record the No error is affirmed.

Givens, Holden, JJ., concur. AILSHIE, Judgment. for Modification have—I carefuly ease, pur- examined evidence anything pose finding justify that would the conclusion any malice, premeditation appellant entertained time before or at the of the commission of the deliberation he was convicted. which of cffense a Nez Perces Indian and is decedent They been Indian. had Colville married about one was a by previous marriages. children grown They year and protracted spree drunken on a for been some time liad both definitely weeks), and continuously (three or four over 1w<> days; alleged and on the were both in a date of the murder dazed state of intoxication.

It is a well use recognized and fact that the known among is demoralizing dangerous alcohol more Indians and recog- people. than with white so Indeed, it has been well nized, Congress long more than since century, prohibitory against selling liquor enacted giving laws or (25 A., Indians. 241, p. 128, U. S. C. derived from sec. sec. July Act of 1832, chap. 174, 4 Stat. people

Here it is (part admitted that of the time these accompanied by others) drinking were an extent to such they get place place; couldn’t about from and that decedent, was true of the evidenced Menne, Oregon analyzed Dr. School, of the Medical who blood, stomach content, portions body decedent, “I and said: would conclude that death was due multiple injuries shock, to the with alcohol a con- tributing He factor.” further said that he found present in alcohol was the stomach Dr. the Mood. Speir performed who autopsy said the “shock” was “traumatic.” daughter

Appellant’s and decedent’s had been living at the Frank home time, for considerable each at- tending Spalding. They school at they each testified that Frank saw any never strike his wife at time. Arthur Bolen yards Maud Bolen lived within or 250 of the Frank barn, forty residence standing the Frank thirty used yards away, they daily. to which went almost Both tes- being constantly tified to forth daily back and almost house; they the Frank at no time ever saw him strike although did, occasion, one them on one hear sounds coming which made her think that having trouble, might and that Frank be his beating seeing At two wife. least -witnessestestified to them on the day porch forenoon of the back which it is claimed committed; the murder was was helping off face; dried blood his wash some wife’s and at that time appearance no feeling evidence of ill there was be- day neighbors On the before her them. death tween some they drinking called they and found had both been beating singing. tom-tom face explained his wife’s Appellant the wound on on an- against falling was caused the stove and of bed; other and the evidence occasion she fell out of the daughters, including them, all their the witnesses who saw state been, in was, is to the such effect that she exceedingly intoxication that it difficult the homicide day walk. All who saw on the say was beastly drunk. tending I circumstances call attention these facts as premedita- strongly deliberation, disprove malice, more tion than homicidal deliberation do to show premeditation. charge voluntary

While intoxication is no defense to is, never- murder, the state and condition of intoxication capa- competent considered, determining theless, in to be intent, city where to form the homicidal defendant any pre-existing malice, premedita- evidence fails to disclose E. 77, (Long State, 109 141 N. tion or motive. v. St. Ohio Indiana, 24 N. E. 691; 123 Ind. Aszman v. State of ed., 33, 37; Underhill, Ev., Crim. 3d sec. L. R. A. aforethought’’ proof requires Our statute of “malice (I. A., sec. in order to of murder. convict a defendant 17-1101.) shown in case. Malice was not opinion, judgment in be modi- my

In this ease should imprisonment the maximum fied, limit the allowed modified, manslaughter and, as so of conviction of case I concur cannot affirmance should be affirmed. convicting appellant degree of first murder. judgment Morgan, concurs.

Case Details

Case Name: State v. Frank

Court Name: Idaho Supreme Court

Date Published: Dec 6, 1939

Citations: 97 P.2d 410; 60 Idaho 774; 1939 Ida. LEXIS 89; No. 6709.

Docket Number: No. 6709.

Court Abbreviation: Idaho