85 P. 1089 | Idaho | 1906
The defendant was charged by information of the public prosecutor with the crime of manslaughter in willfully and unlawfully shooting one C. A. Paekenham, at the county of Ada, state of Idaho, on the twenty-fifth day of November, 1903. The trial, which took place in February, 1905, resulted in a verdict of guilty, and the defendant was thereafter sentenced to imprisonment in the state penitentiary for a term of six years. This appeal is prosecuted from the judgment and from an order denying defendant’s motion for a new trial. The principal facts leading up to and surrounding the homicide are briefly as follows: The defendant left Boise City during the early afternoon of November 25, 1903, with a team, accompanied by James Kelley and Clarence Still, and went up what is commonly known as the Highland Valley road. The three of them were starting on a hunting trip and the wagon was loaded with camp outfit, and they all had their guns. When they reached a point about three-quarters of a mile beyond the Kelley Hot Springs, and some five or six miles from Boise, while driving along the road the defendant McGinnis remarked to his companions that he could hit a certain rock, pointing it out, to the left of the road about two hundred feet distant. Kelley advised him to save his ammunition as it was too close a shot. They drove on a distance of eleven hundred or twelve hundred feet and came to a slight ascent in the road where they stopped the team to rest, and Still appears to have gotten out of the wagon to fix something about the harness. The defendant turned round in the wagon seat and remarked to his companions, “I can hit that rock from here,” and took aim and fired. Kelley says he turned round about the same time and saw dust rising on a sandy knoll about five hundred feet distant from the point of firing and in line between the point from which the defendant fired and the rock, and at the same time saw a man fall in the road about two hundred feet from the rock at which the defendant had fired. Kelley remarked, “There is something wrong with that fel
It appears that on the morning of the second day of the trial, and before the defendant had appeared in court, his counsel moved the court, under section 7878, Revised Statutes, for an order directing the sheriff to take the jury to examine and view the place where the offense was alleged to have been committed. Counsel for the state consented and agreed to this motion, and the order was immediately made by the trial judge and the sheriff was sworn to take charge of the jury and keep them together as required by the statute, and two competent persons were appointed by the court to show the jury the place to be viewed by them. It seems that the defendant arrived about the time the jury were ready to start for the inspection. Neither he nor his counsel appear to have manifested any desire that he should accompany the jury, nor was any request made to that effect. The defendant did not go, but his counsel, as well as the counsel for the state, and the trial judge, did go, in company with the jury, sheriff and persons appointed to point out the place. A large number of affidavits have been filed in respect to the presence or absence of the defendant on this occasion. The minutes of the court, standing alone, show that the defendant was present at all times during the trial; but we think it has been successfully shown by the affidavits of defendant and his counsel, and others, that he was not in fact present in the courtroom when the foregoing proceedings were had.
Section 7782, Revised Statutes, provides that: “If the indictment is for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant.” There is an irreconcilable conflict among the decisions and authorities as to whether any absence whatever can be permitted. A very-respectable line of authorities hold that a voluntary absence during the argument or ruling on a motion or demurrer is not reversible error. (12 Cyc. 523-527, and notes.)' There
Counsel for appellant have suggested upon this appeal that it was error for the trial court to permit an examination and inspection by the jury of the place where the offense is charged to have been committed without having the defendant present on such examination. It does not appear, however, from the record that this 'ground of error was urged in the trial court at the time of the trial or on motion for a new trial; neither does it appear that any request was made by counsel for the defendant, or by the defendant himself, that he be present at such examination. On the other hand, counsel for defendant was present at all times. The record does not come to us in such condition that we would feel justified in this case, in face of the decision on the same point in State v. Reed, 3 Idaho, 754, 35 Pac. 706, in passing upon the question as to whether or not it was error to cause a view and inspection by the jury in the absence of the defendant. The attorney general has called our attention to State v. Reed, supra, in which this court held that it was not error to have a view of the premises by the jury in the absence of the defendant. We have very grave doubts, however, as to
The other principal contention made by counsel for defendant on this appeal is that the evidence in the case fails to show the defendant guilty of any offense whatever in connection with this homicide. We have examined the record and the various exhibits very minutely and carefully, and it" seems to us that it has been quite clearly established that the defendant failed to exercise that care and consideration which the law requires when he was firing a deadly weapon along the public highway in the manner and under the circumstances shown in this case. While he testifies that he did not see any person in the direction in which he fired, still the physical facts and conditions that surrounded him, the nearness of Packenham to the object at which defendant claims he fired, the level and open nature of the grounds intervening and surrounding, are all silent but very forceful evidence in contradiction of his story. The fact that defendant on the public highway fired a shot from a gun of carrying power of more than a mile at an object some twelve .hundred feet distant and itself only two hundred feet from the highway, was an act of carelessness which becomes culpable where it results in the death of one traveling orderly and peacefully along on that same highway.
The only other assignment of error we deem it necessary to consider in this case is that urged against certain statements made by the witness Packenham, a brother of the deceased. It appears that he was with the wounded man almost
We have examined the other assignments of error made by appellant, and find nothing in them that constitutes a cause of reversal or appears to require our further consideration here. The judgment should be affirmed, and it is so ordered.