214 P. 217 | Idaho | 1923
Lead Opinion
Appellants were jointly informed against for the crime of robbery and after trial together both were convicted. Each moved for a new trial and his motion was denied. Each has appealed from the judgment and from the order of the court denying a new trial.
Appellant Smith moved to quash the information, setting up several grounds, among which he relied mainly upon this one: “ (3) That no order holding defendant Clyde H. Smith to answer to this court was made or endorsed as is required by the provisions of sec. 7579 of the Compiled Laws of Idaho. (C. S., sec. 8757.)”
This motion was denied, but no exception was taken to the ruling and the matter is, therefore, not presented to this court in the manner required by C. S., sec. 9008. (State v. Snook, 34 Ida. 403, 201 Pac. 494.)
Each appellant complains of the refusal of the trial judge to allow him ten peremptory challenges without joining with his codefendant as to such challenges.
C. S., sec. 8912, provides that “When several defendants are tried together they cannot sever their challenges but must join therein,”
It is clear that under these statutes a defendant on trial with one or more eodefendants would not be entitled to exercise his peremptory challenges separate and apart from his eodefendant. We understand that in such a case as this the defendants being jointly tried would have a right to exercise jointly only 10 peremptory challenges. But, even if they were entitled to exercise jointly 20 challenges, they were not injured by the ruling of the court in this case because they jointly exercised only nine such challenges.
Each appellant complains that the information charged robbery by the felonious taking ‘ ‘ from the person, possession and immediate presence of one Manuel Coster, $10 in currency of the value of $10 in gold coin of the United States of America,” while the proof shows the taking of silver money of uncertain amount. This is no variance. Silver money is currency. (See Webster’s International and New Standard Dictionaries.)
Appellant Mitchell relies upon his claim that there is a total lack of evidence to connect him with the offense, but an examination of the record discloses sufficient evidence to sustain the conviction.
The other errors assigned are without merit.
The judgment and the order denying a new trial are affirmed.
Concurrence in Part
Dissenting in Part. — I concur in the majority opinion affirming the judgment of conviction of Smith. Smith was positively identified by two witnesses as the man who committed the robbery, and there is substantial evidence upon which to base his conviction.
In so far as appellant Mitchell is concerned the evidence is entirely circumstantial.
In that case, the court also said: “If the evidence can be reconciled either with the theory of innocence or guilt, the law requires that the theory of innocence be adopted.”
The evidence in this case creates a suspicion that the defendant Mitchell committed the crime for which he was convicted, but, in my opinion, it is clearly insufficient upon which to base a conviction. None of the evidence is inconsistent with the innocence of Mitchell, and every part thereof is capable of explanation upon the hypothesis' that he is innocent.
Applying the rule of law laid down in the case of State v. Marcoe, supra, to the evidence in this case, I am firmly of the opinion that the evidence is insufficient to sustain the verdict, and that the judgment should be reversed and a new trial ordered.
