69 P. 62 | Idaho | 1902
— The defendant was prosecuted upon the information of the prosecuting or county attorney of Idaho county upon the charge of murder, tried by a jury, and found guilty of murder of the second degree, and duly sentenced to confinement at hard labor in the state penitentiary for life. Thereafter appellant moved for a new trial, which was denied, and he is appealing to this court from an order denying a new trial and from the judgment of conviction.
Appellant has assigned thirty-six errors of law occurring upon the trial and upon the hearing of the motion for a new trial, but in appellant’s brief only four or five of these errors are discussed. However, counsel for appellant, in his oral argument at the hearing, expressly stated that appellant did not waive any of the errors assigned. We have carefully examined the record in this case, and have carefully considered each and every of the assignments of error in the record and after such consideration we deem it unnecessary to discuss any of the alleged errors except those which were discussed in the appellant’s brief. One of the alleged errors which is seriously discussed at length by appellant is based upon the action of the trial court directing a special venire to issue for forty jurors on the evening of May 4, 1901, said venire returnable on the following Monday morning. It is claimed by the appellant that -nine- of the forty persons summoned as jurors under said special venire were summoned by the sheriff on Saturday evening, and that the remaining thirty-one were summoned by the
Before the trial the defendant moved for a change of venue upon the ground of bias and prejudice against the defendant. This motion was denied by the court, and we are now asked to hold that this action of the court was error prejudicial to the defendant, and such as demands a reversal of the judgment of conviction. The granting or refusing to grant a change of venue is a matter largely within the discretion of the trial court, and the denial of the motion for a change of venue cannot be the basis for a reversal of the judgment of conviction, where it manifestly appears from the record that the defendant can have and did have a fair and impartial trial, and no trouble was' experienced in obtaining a jury. An examination of the record convinces us that defendant did have a fair and impartial trial, and, while the evidence is somewhat conflicting, the evidence introduced at the trial was sufficient to authorize and support the verdict of the jury.
The defendant contends that the court erred in instructing the jury as to what constitutes reasonable doubt. This instruction is like many others upon the same point heretofore considered by this court. The instruction complained of is as follows: “The term ‘reasonable doubt’ does not mean a vague or shadowy doubt. A reasonable doubt is one which has some reason for its basis. It is a doubt which a juryman can give a reason for. You should not go beyond the evidence to hunt for doubt. A doubt to justify an acquittal must be reasonable, and arise from a candid and impartial consideration of the evidence. It should be such a doubt as would cause a reasonable, prudent, and considerate man to hesitate and pause before acting in the graver and more important affairs of life.” The defendant contends “that under this instruction the state need only prove by a preponderance of evidence in order to convict the appellant, whereas in fact there must be an abiding conviction to a moral certainty of the truth of the charge, and the jury must he entirely satisfied of the guilt of the accused.” This instruction of the court informed the jury that they must
The appellant also complains of the following instruction given by the trial court to the jury: “The jury should commence the investigation of this ease with the presumption that the defendant is innocent of the crime with which he is charged, and you should act upon this presumption throughout your consideration of the evidence, unless it shall have been overcome by evidence of guilt so strong and credible and conclusive as to convince your minds, beyond a reasonable doubt, that the defendant is guilty. This rule of law, which clothes every person accused of crime with the presumption of innocence, and imposes upon the state the burden of proving his guilt beyond a reasonable doubt, is not intended to aid anyone who is in fact guilty to escape, but is a just and humane provision of law, intended to be construed by the jury in a common-sense manner, and to guard against the liberties of a person being wrongfully taken away from him, or against a person being wrongfully punished.” We do not see how the appellant was prejudiced by this instruction.
One of the witnesses for the state — Peter Olsen — was alleged to be incompetent upon the ground that he was insane, and the trial court was asked to examine into the insanity of said witness, but refused to hold such inquisition. It appears that the insanity of such witness was examined into by the probate court upon the testimony of four examining physicians, and he was found to he sane. It was not error to permit said witness to testify on behalf of the state. ,
The appellant contends that it was prejudicial error to permit in evidence the testimony of witnesses proving the dying declarations of the deceased, made immediately after the affray, to the effect that he was “stabbed to the heart, that he was1 dying, and that he was done for.” The evidence shows that deceased had a large wound inflicted in his side with a knife, and that his entrails and a portion of one of his lungs was protruding therefrom. This declaration, being made at