111 P. 853 | Idaho | 1910
This is another ease where liquor, cards and a sixshooter have furnished a subject for the coroner and a victim for the penitentiary. Appellant was convicted of the crime of murder in the second degree and sentenced to a term in the state penitentiary of not less than ten years and extending to a maximum of a life term. The shooting appears to have been the outgrowth of cheating at cards in a poker game the night before the homicide.
This appeal does not involve the sufficiency of the evidence, but rather presents alleged errors of law committed in the course of the trial. The first question presented is the sufficiency of the complaint filed before the committing magistrate and on which the preliminary examination was held. "We might dispose of this on the ground that the question was not properly raised, but, waiving that, have examined the complaint, and are satisfied of its sufficiency.
It is next urged by appellant that the court erred in not quashing and setting aside the information, for the reason that the action was prosecuted in the name of the “State of Idaho,” plaintiff, against the defendant, instead of “The people of the State of Idaho. ” It is insisted that under sec. 1 of art. 5 of the constitution all prosecutions should be had in the name of “The people of the State of Idaho” against the party charged. The constitution recognizes that all criminal prosecutions shall be made by and on behalf of the people of the state, but it does not attempt to specify the particular words or phrase in which the people in their collective capacity shall have their prosecutions made. This section of the constitution is in harmony with sec. 2 of the Bill of Rights which declares, “that all political power is inherent in the people.” The legislature has provided by sec. 7353, Rev. Codes, that “a criminal action is prosecuted in the name of the state of Idaho as a party against the person charged with the offense.” The legislature has not sought to have prosecutions made by or on behalf of any other than the people,
After the jury had been impaneled and sworn to try the case, the prosecuting attorney made a statement to the jury of the facts the state expected to establish upon the trial of the case. In the midst of his statement, one of the attorneys for the defendant asked the trial court for an order excluding witnesses from the courtroom during the progress of the trial, except the witness being examined, and objected to the prosecutor making his statement of the facts he expected to prove in the presence of the witnesses, but insisted that the order be made and that the exclusion be had prior to the statement of the case to the jury. The trial judge declined to make the order until after the statement by the prosecutor was completed, whereupon the order was made. This action „of the trial judge is assigned as error. While we think it would have been eminently proper to have excluded the witnesses, prior to the statement by the prosecutor, we do not consider the action of the court an abuse of his discretion, and it certainly would not afford grounds for reversal.
In the progress of the trial some confusion arose as to the correct name of the deceased who was designated in the information as Sam Sharp. Some witnesses seem to have, referred to him as Sam Sharp and others as Swan Sharp. The state in endeavoring to establish his true name produced a card which was found soon after the shooting among some papers in a cigar box in Sharp’s bunk in a tent at the camp where he was working. This was a card of membership in the Butte Union of the Western Federation of Miners. After proving where the card was found, the state offered to intro
The judgment should be affirmed, and it is so ordered.