35 P. 836 | Idaho | 1894
The defendant John Hendel was charged jointly with one Louis Eoder, by information filed in the district court for Alturas county, with the crime of murder in the killing of one Leander Holstrom, on the seventeenth day of March, 1893. Upon their arraignment, defendant Hendel, on his own application, was given a separate trial. On said trial, at the June term, 1893, of said district court, defendant Hendel was convicted of murder in the second degree. A motion for new trial was made on his behalf, which was denied by the court, and from the order denying said motion, and from the judgment of final conviction, this appeal is taken.
The case comes to this court upon a bill of exceptions. The errors assigned are seven in number, and are as follows: "1. The court erred in overruling appellant’s motion for the appointment of an elisor to take charge of the jury; 2. The court erred in permitting J. S. Waters, Esq., counsel for Louis Poder, to interpose an objection to, and to be heard in argument upon, the request by appellant’s counsel, upon the trial, that the bullet taken from the vest worn by deceased be submitted to a microscopical and chemical expert examination and analysis; 3. The court erred in overruling the application made by appellant’s - counsel, upon the trial, for leave to have made a microscopical and chemical examination of the bullet found in the vest of deceased, and of the substance or substances adhering thereto; 4. That the court erred in overruling the objection of appellant’s counsel, upon the trial, and in permitting the witness D. W. Figgins to testify as to his belief in relation to the bullet found in the vest of deceased; 5. That the
As to the first error assigned: The refusal of the court to-appoint, on application of defendant, an elisor to take charge of the jury during the trial of the case. We think the action of the court was correct. The application did not come within the provision of the statute applicable to such cases. (Kev.. Stats., sec. 1887.) The granting or refusing of the application was within the discretion of the court, and it seems to us it. was properly exercised in this case.
As to the second assignment of error by the court: In permitting counsel for appellant’s codefendant to be heard in opposition to appellant’s request that a certain bullet, offered in evidence by appellant, should be submitted to analytical and microscopical examination. While the point presented is somewhat novel, we think it was largely a matter of discretion with the trial court, and we cannot say, upon'an examination of the record before us, that the action of the court even tended to prejudice the case of appellant. The facts, as shown by the record here (and it is conceded it is only a part of theevidenee), are substantially as follows: The appellant was a keeper of a saloon or beer hall in the town of Hailey, Alturascounty. On the night of the 16th of March, 1893, deceased and three others had been drinking beer at appellant’s place, until about 4 o’clock on the morning of the 17th, when as is quite:
The third specification of error presented by appellant is based upon the refusal of the court to permit the “microscopical and chemical examination of the buEet, and of the substance or substances adhering thereto.” Aside from the objections urged by the counsel for Eoder against the granting of this request, which, of themselves, were sufficient, in our view, to warrant the action of the court, neither the court nor the law ever intended that the granting of a separate trial to one of two or more defendants, jointly indicted, should be used by the defendant first placed on trial as a means by which' he could sacrifice his codefendants, or do aught to impair their just and legal defense. But it does not appear from the record that there was any substance or substances adhering to the bullet which required the invocation of either chemical or microscopical aid to define its character. One witness testified: “There is something in the creases of this bullet, but I cannot say what it is. The apex of the bullet is slightly battered, and is marked with the imprint of the cloth — warp of the cloth — on the end of the bullet.” And this was all the testimony appearing in the record upon the subject. Neither of the medical witnesses testified to the existence of anything on the surface of the bullet at all resembling, or intimating an appearance of, “blood stains, or human tissues.” So far as the record before us shows, the blood and tissue theory has no more support in the evidence than does the) theory of the third shot, with which it is intimately allied. The medical witnesses stated that it would take from one to two weeks to procure the test required. We think, under the circumstances, it was within the discretion of the trial court to grant or refuse the application on the part of appellant, and that, in refusing it, the court committed no error.
The fourth specification of error is predicated upon the ruling of the court in permitting D. W. Figgins, one of the
It is objected by counsel for the appellant that the bill of ■exceptions does not show that any venue was proven upon the trial. While it is apparent from the record that there was great remissness on the part of counsel who represented the state in the settlement of the bill of exceptions, we think there is sufficient therein to show that the venue was proven. Besides, it was conceded by counsel for appellant, before the argument of the case was entered upon, that the record contained ■only a portion of the evidence.
The objection that the verdict is contrary to the evidence is not well taken. In addition to the evidence already commented upon, no less than four witnesses (Field, McGatnish, Farrel, and Saunders) testified positively that Hendel admitted to them, and in their presence, that he killed Holstrom, and undertook to justify the killing by saying that deceased had knocked him down, and had knocked his wife down, and he had to kill Trim