State v. Owen

253 P.2d 203 et al.

STATE OWEN

No.

Supreme Idaho. Court of 27, 1953.

Jan.

David Doane and Robert Copple, H. Boise, for Owen. Smith,

Vernon K. Boise, for Hastings. Gen., Smylie, Atty. Robert E. John Gen., S. Atty. Merlin Smead, Asst.

R. Evans, Atty.,

Young, and Blaine F. Pros. respondent. Atty., Boise, for

Asst. Pros.

TAYLOR, Justice. 7, September

On defendants Owen, 40, William (appellants) Lawrence Raymond Hastings, Kenneth each gun, and with the avowed in- armed Holly- n robbery, commit entered tent aloft; Grocery, holding at the corner of at the arm the cleaver 'that wood located Streets, Boise, McCurry Mr. Ada then started to fall Resseguie and 8th ran Comity, store was out. grocery Idaho. The operated by deceased Bert

owned There is a conflict the evidence as to Upon McCurry entering, wife. and his Hastings whether left the store first or a Hastings went down one aisle to small whether emerged the two defendants at table, pre- McCurry card Mrs. was where approximately They ran same time. to- deposit, paring the and asked her for bank waiting a car at curb to the north of cigarettes. When she went behind the woman, away by the store and were a driven to the other counter he followed around companion they whom had left at the wheel. the counter and there held her at side of they A short time later were arrested in gun point. proceeded Owen had directly Nampa by Nampa police acting upon radio to the rear of the store McCurry where Mr. messages by police. transmitted the Boise had emerged just from the locker room be- The third shot fired Owen entered the hind a meat counter. Owen exhibited his body of the deceased near the center line of gun and informed him that it was a stick- cavity, upper artery, rupturing chest an up. Mr.McCurry seized a meat cleaver through the fifth vertebra went dorsal from the meat block spinal McCurry and started around cord. Mr. shattered September the counter to where a result of the wound on Owen stood. died as Owen 9th. McCurry’s he fired a shot over said head McCurry him, but Mr. continued to

scare were charged The with the defendants (Owen) advance and he started to back degree, murder in the crime of first tried door; jury Mr. Mc- up jury, guilty, found and the verdict the aisle toward its punishment him, decided that be with the should follow Curry continued to death. raised; point half about meat cleaver store, he fired length of

way down assignments question first six McCurry yelled past Mr. another shot ruling allowing the court’s the state’s here,” of get out companion, “Let’s to his ground veniremen on challenges to six get- “let me McCurry stop and bias, Mr. specifically, they and to implied McCurry continued here;” opinions Mr. conscientious or scru out of entertained him; imposition capital reached the when he ples against pursue except open In substance for these veniremen standing punishment. door, was which dire that while the door voir could side of answered on bumped into the screen, he question shoulder; McCurry guilt and would determine that Mr. left with innocence, bias, they could feet without not vote seven then about advancing was still penalty. death third shot for the fired a then him; that he from “must “Every person guilty guilty, murder in defendant therefore compelled permitted to. degree or be neither nor shall suffer death the first forth, the, Although setting punished by imprisonment state serve”. the section life, may grounds challenge jury decide was not amended' prison and the for punishment in 1911 when first punishment inflicted. for shall be which ” * * * 18-4004, degree murder was modified adding I.C. § imprisonment, alternative life since challenge grounds Among specifically authorized to decide- implied provided by 19-2020 bias I.C. § punishment inflicted, should be following: intent the law remained the same: That punishable charged be “If the offense is, prospective juror entertaining such death, entertaining of such scruples and under who the amended statute opinions pre- conscientious as would required may to vote the death finding guilty; the defendant (cid:127) clude his penalty permitted “must neither be nor- per- in which case he must neither be compelled to juror.” serve as a As stated compelled mitted nor serve as Wilson, supra in State [41 juror.” paragraph I.C. 361], 243 P. “the conclusion is inevitable prospective juror that a who has con- Appellants urge that since 18-4004 is § scientious scruples against the death mandatory, only providing not that the penalty is qualified not to sit as juror punishment, jury may decide the and that charge where the is murder in the first ground challenge under 19-2020the is of § degree.” No error was committed in allow- the “entertaining of such conscientious ing challenges. State Iioagland, v. 39 opinions preclude as would finding 314; Idaho P. 228 State,, Corens v. (emphasis supplied), guilty” and defendant 185 Md. 45 A.2d Am.Jur., Jury, having they answered that these veniremen 159; C.J.S., Juries, § 245(b). § pass guilt innocence, freely upon could or disqualified. not assignments By 7 and present ruling of- the trial court in This same construction of these sec- sustaining objection the state’s to their- Wilson, urged in State tions was proof respective offers of “to show facts 616, 243 P. 359. The court there Idaho up- and circumstances of defendants’ age, fact to the that at the time called attention and bringing environment purpose for the (1864) I.C. was enacted the sole § punishment.” mitigating of provided murder in penalty for the first (Cr.Pun.1864). presents death. Assignment It was No. 9 degree the refusal venireman who plain give appellant could not court to that vote Hastings’ penalty requested could not find for the death instruction No. 17a. This re- de- on unlikelihood of the jury, determining the likelihood or quest in advise the crime ag- having in fendant committed the penalty, facts consider all guilt charged. question mitigation, goes and It to the gravation facts and also and liberty especially appropriate consider the innocence and is that is at applicable commission in a case where the early background environment and age, be determined on the offense must the accused. basis of circumstantial evidence. complains of No. 10 Assignment However, recognize the law does par No. and instruction the court’s previous conduct good or bad should reading as fol thereof ticularly part fixing punishment considered in for : lows principle underlying Such is the crime. punishment what determining “In persistent violator statute. 19- you should consider inflicted should long recognized I.C. The courts have from con- decision at such and arrive the first accorded offender should be in this the evidence of all sideration habitual more lenient treatment than the bias, by any pre- uninfluenced case criminal. In addition to considerations than effect purpose other judice, humanity, justice mercy, object justice.” substantial encourage foster the rehabilitation should this instruction contended It is of one who has the first fallen time specific should have more error, into and whose character for crime evidence, all the included, in reference O’Dell, has not become fixed. n “both aggrava- matters of respect to with 225 P.2d 1020. mitigation,” and that matters tion defining “substantial erred court provides Our statute also the court justice” here used “Substantial justice.” discretionary power cir consider Accepted sense. No techni- popularly its aggravation mitigation cumstances required. see no We merit definition cal punishment, as follows: assignment. in this plea “After or verdict guilty, where a discretion is conferred involving assignments

toAs as the court to the pun- extent of the produce evidence accused to of the right the ishment, court, upon the oral sug- environment, and upbringing age, their of party gestion of either that there are not neces that does observe first we may which circumstances properly to right of an accused sarily involve into good taken view either in aggravation his character. evidence produce punishment, of the mitigation or may, or bad character good Evidence discretion, may in its weight it have hear the same whatever sum- for admitted question. time, upon that marily, specified and determination of The offer aat proof in party as it behalf of the defendant notice adverse Owen such to may 19-2515, is as follows: direct.” I.C. § I.C., requires that And § “Mr. Doane: Comes now the de- may open in hearing be had court. It fendant -William Lawrence Owen and open as whether “cir- to debate to prove by present offers witness 19-2515, I.C., in cumstances” mentioned that the defendant William Lawrence particularly to refer circumstances sur- Tannover, Owen was born Cali- rounding commission crime and fornia, 2, 1911, on October in a family tending aggravate mitigate the char- consisting his father, mother and involved, acter of the conduct or whether one sister brother; and one twin circumstances such include also the con- occupation his father’s was that of himself, individual, vict, as an which would foreman; a railroad that his national- background, age, include upbring- his his ity was Welsh and half-breed Ameri- ing and environment or other matter Indian; can that his mother was a full- appropriate- to a determination of the de- blooded American Indian of Wy- culpability. gree We think that the stat- lacki tribe in northern California; given interpreta- ute should be the broader year 1917 when the defendant tion, particularly capital in a case. James age years was of the of six his mother State, Ariz. 84 P.2d 1081. died; that the defendant had no real home in the ordinary life meaning of therefore, It, appears that term, and lived from time to time contemplates fixing penalty, that in law his sister and other relatives; court, requested party, by either when completed he his formal schooling hear may should and consider circum age at the of fourteen and thereupon mitigation aggravation stances proceeded provide himself, logically follows that if it punishment. It major occupation his first was that of for the court to hear and con proper boy on sailing vessel, deck upon evidence, where it is such sider vessel served for two and punishment, should called .fix years; to three a half that since that opportunity consider such experience at sea the defendant course, subject, proper in learn- proof, foundary moulding ed jury’s trade limiting consideration struction followed that has trade to the determination of ever evidence since such cautioning time, just prior that it is not punishment, to his coming to Idaho, determining guilt in the State of approximately considered to be two nocence, allowed to or be influence weeks before the September date of

40á testify gen to such occupa- permitted to

.7, in his engaged was so capacity in his as biographical eral facts tion.” witness, purpose. Owen if for no other a by Hastings made defendant The offer only permitted was to testify to the date military his of a of lengthy consists recital Hastings per place his was and of birth. Army com- service in the United States b;rth, testify his to to the date of mitted voluntary on mencing enlistment with his years age that in 1932when he was ten of July 9, 1940, discharge ending with his and died, his and that mother had father July, a state- 1945. It contains detailed should have remarried. court admitted periods places ment of the different and by any Owen the evidence offered and service, of he o-r engagements Hastings of like character which thing a participated, time, place man- his unit and C.J., may have desired to introduce. 70 ner and decorations of wounds suffered of Witnesses, 919. § conferred, as and and also to decorations However, express- the offers since regiment, citations conferred ly punishment, mitigation limited and to of he and division which served. battalion question free from record, guilt since the military Except for he offered doubt, expunged can be and since the error age, upbringing, no evidence as to and sentence, hold a commutation of the we environment, which was admitted. require that reversal does not military statement of ex- Such a detailed judgment. ploits, medals, wounds engagements, and tendency prejudice a would have natural Assignments 11 and 12 assert.er favor, in the defendant’s and the objections by the overruling of ror in the suggest nature the offer here would that questions state asked defendants perhaps purpose. However, was its respect pre on cross-examination military we think a briefer statement of had tes Defendant Owen felonies. vious proper part service would be a back- response under direct examination tified ground sketch. he his own counsel that question to a felony. practice, previously convicted general least in had been is the It at trials, prosecuting permit On cross-examination criminal important he con torney brought had been briefly generally out testify witness and, felonies, his ob of three over victed giving such facts as background, to his required jections was to answer the birth, family he relation place date felonies?”, to occupation, question, “What were those to better enable the ship and answered, theft and character of which “Grand general appraise jury to robbery.” As defend forgery defendants Each witness. Hastings, had after he and should ant testified on in his own behalf witness applicable crimi- pre- ly, alike in civil that he had been cross-examination I.C.; felony, nal viously his testi- actions. convicted Kleier, mony 69 Idaho was as P.2d follows: “Q. you felony state Will what quite universally It is held a wit was? may impeached ness be this under or simi Object minute. a statutory

“Mr. Smith: authority. lar application The Just improper. question as being provision of such to the accused when into direct ex- gone wasn’t on This witness, however, he becomes a has been amination. subject by considerable discussion Objection However, the courts. Court: overruled.

“The it generally is now held that provision Firearms Act such a applicable “A. National [48 ; defendant, it ’36. I believe was and that when voluntarily Stat. he 1236] you takes the “Q. Have been convicted of subjects witness stand he him Yes, self any one other felonies? A. impeachment cross-examination and under the other. same rules and conditions as “Q. other youWill state what was? witness. Wigmore Evidence, on 3rd Ed., 890; Am.Jur., 58 Witnesses, § 685- year.” Strong-arm robbery, §§ A. last 7—8—9; C.J., 70 Witnesses, 990; 6— State § Appellants urge admitted the having Odell, v. 38 4, 710; Wash.2d 227 P.2d State convictions, previous felony fact of Velsir, v. Wyo. 476, 61 371, 159 P.2d 161 required go not have further should 220; A.L.R. Stanley State, v. 171 Ark. crimes for and reveal the nature of the 536, 17; 285 S.W. People Sorge, 1950, v. which the convictions The suffered. 198, 301 N.Y. 93 637; N.E.2d Fritch v. controlling statute as follows: State, 89, 199 Ind. 155 257; N.E. Tosser may impeached by witness “A State, v. 156, 200 Ind. 162 49; N.E. An party against called, whom he was notation 90 A.L.R. 870. contradictory evidence, by by evi- reputation general that his recognized dence for rule has been This in Idaho. bad, truth, integrity Larkins, honesty 200, 945; but State 5 Idaho v. 47 P. particular wrongful Webb, 892; evidence of 6 428, State Idaho 55 v. P. may Silva, acts, except it 21 247, 835; be shown Idaho State 120 v. P. witness, Wilson, 616, 359; of the or the 41 Idaho the examination 243 P. Martinez, judgment, 180, of the that he 239; record had 43 Idaho State v. 250 P. felony.” 9-1209, Alvord, 765, 322; Idaho been convicted 46 271 State v. § P. Smailes, 321, Idaho 5 540; I.C. State v. 51 P.2d 8, part Hargraves, This section is a 62 Cf. I.C. State v. Idaho 107 P.2d 9, Mundell, general- 297, 66 dealing evidence State v. Title crime. in A.L.R. show the of the nature The annotations P.2d 818. anticipation cannot, The defendant 338, 103 A.L.R. 25 A.L.R. exposition past in that ac universal reveal the almost A.L.R. ap particular, by testifying rule on his di proposition. The ceptance of the examination, prevent prosecu rect annotator: is thus stated plicable tion' from showing the nature provided by statute generally “It is previously con crime of which was may of crime previous conviction that a Indeed, evi victed. weight of the cross-examination shown on impeachment de dence a factor of testing his purpose witness pends upon the of the crime character kind, credibility, statutes as, previous involved conviction — appli- specifically made when not even turpitude whether it involved moral case, a criminal the accused cable to merely prohibitum.” malum Had 6 A.L.R. applicable.” so are held to be ley State, 25 Ariz. 212 P. 1626. Annotation at page A.L.R., compiler page At 1638 of case supporting Delaware cited as support purporting has listed decisions minority Marv., rule, Burton, State v. subsequent these, in a toAs minority view. Del., 446, 254, 43 A. prior holds that a con- fact to the annotation, directed attention is offense, viction an of which would not af- majority the taken since that Arizona has fect the credibility of the accused as a wit- 237, P. 208 State, Ariz. 24 v.West view. ness, may not be shown. In the decisions 23, P. 212 State, 25 Ariz. 412; Hadley v. Illinois, Massachusetts, from Pennsyl- 124, P. 59 State, 48 Ariz. 458; v. Cochrane (appearing the annotation in 103 vania Arizona case the Hadley In 2d 658. the minority supporting as the A.L.R. court said: view) may the rule is the accused be conviction, of rule, prior in the absence impeached by a proof general of “The matter, a but, when of judgment since the record the regulating is a statute witness, evidence, impeachment a himself as must ac- offers best be defendant by shown, complished by either production record, may be cross-examination, that he by not cross-examination. onor record of a conviction previous has suffered state, remaining Virginia, West list- Either method felony or felonies. adhering minority to the rule, as has ed * * * permissible. position by changed its reason since statute, change in its record, which is the best evi and now controlling “The conviction, may may required that the accused al holds previous of a dence It, course, previous answer as convictions of introduced. felonies ways

407 * * * eyes Friedman, 124 jury. him in the v. or misdemeanors. The nature crime or crimes of 4,18 653. S.E.2d W.Va. he proper which was convicted sub- jurisdiction is, no we find The result inquiry ject of in establishing the fact impeachment of permit the does not * * * of his conviction. But details witness, by- when he becomes accused prior comprising circumstances record, crimes, by the proof either prior * * *” are admissible. offenses testimony cross-examination, by of oth David, People v. 12 Cal.2d 86 P.2d However, equally well it is er witnesses. page 814. sole evidence is admitted settled that such Hacker, State v. Mo.Sup., 214 S.W.2d affecting the credibil ly purpose of for the witness, ity the defendant as a In our search of authorities, Montana circum jurisdictions courts in certain only is the jurisdiction find in which we require by various scribed its admission support direct appellants’ position on safeguard accused ments intended specific point here involved. The Montana In prejudice defense. against undue to his essentially statute is the same as our own. California, is the same the statute where It is there if held the defendant on to es ours, prosecution is allowed as cross-examination affirms the- fact of prior nature convictions and the tablish former felony, conviction of that is as far involved, details or but not the the offenses But, as the examination may go. if de- Romer, People thereof. v. circumstances previous nies such then may conviction it David, 749; People v. 218 Cal. P.2d Coloff, be shown the record. State v. 811; People P.2d v. Wil Cal.2d Mont., 343; Quinlan, P.2d State v. 692; People liams, 220, 163 27 Cal.2d P.2d Mont., 244 P.2d 1058. These three are Youders, Cal.App.2d 215 P.2d v. two weight authority decisions. The Newman, People Cal.App.2d better reasoning appears mi- to be 302, 227 P.2d 470. nority expressed view as Angst- Justice David, People Supreme Court In man in the Coloff case. The alternative of out follows : set rule state -of that record of the conviction establishing testimony of a state “In would, course, the reveal judgment impeached by proof may be witness in- giving the crime. Thus nature prior convic- suffered has method formation to Civ.Proc., felony. Code aof tion regard- and is not the statute sanctioned applies to a defendant rule This 2051. How, then, does it be- prejudicial. ed in his own behalf in testifies who prejudicial when produced taboo and come notwithstanding the fact trial criminal prejudice by cross-examination? tends to such evidence 408 leeches, 6, Crawford, 206 are "Both of these defendants 60 Utah P.

In State v. society, were, by perpetrating urged as is off as it 717, -contention was the same duty robbery. society here, said: Does have Utah well and the Court urged They these leeched off men? authority, and, we weight “The society past. in men these Should think, reasoning, better is that continue to do that? Should of what to know jurors are entitled supported by the State of Idaho?” felony has been particular a witness improper argument. This was It is sub- of conviction The evidence convicted. ject prosecutor inference purpose affect- admissible for the credibility urging penalty was witness. the death to avoid the- ing the , -burden supporting to the the de- greater degree involve a state Some crimes penitentiary. As turpitude fendants was said than others. Some of moral Givens, 253, page. State v. more than others. 28 Idaho at felonies are heinous 268, 1054, felony charges 152 P. af- 1058: convictions on Some credibility much fect of witnesses duty prosecutor “It is the Cyc. 2610(b) more than others. 40 trial, see that a defendant has a fair cited; State, 8 with cases McDaniel v. ** *. The desire for success should 358.” State v. 127 Okl.Cr. P. never induce him to obtain a verdict Crawford, 206 P. Utah by argument based ex- anything page 719. cept the evidence in the case and the no error committed conclude We conclusions from legitimately deducible by requiring the to state applicable the law to the same.” previous which felonies for nature of the Clark, 321,, v. In Commonwealth Pa. admitted. We are not had been convictions Supreme -byappellants, the cited 185A. opinion of this court in unmindful Pennsylvania a similar condemns Court of Branch, case of State attorney. How- argument the district decision, insofar as it That P.2d which con- ever, there were other errors herewith, it re- insofar as conflict is in that case. In reversal in tributed I.C., application of § .stricts .the Watson, 565, 111 N.E. People 216 N.Y. to cases witness) accused'is (where the had under consideration the court reputation in put general he has part of improper argument on the the dis- hereby overruled. issue, is First, on, attorney. in- comment trict appel from, failure drawn of the de- assignment No. By ferences “ second, testify, ‘Now there- dosing argument of fendant complain of the lants' burdening the state with this. said: is no sense attorney in which he prosecuting called alleged “Other errors have been the first murder in guilty of is man if he ” to our attention the defendant’s said: The court (cid:127)degree.’ counsel, study but after a careful taken on the evidence trial was “The the record we do not think the defend- to sufficient sustain verdict rights ant’s substantial have been af- unnecessary is jury, it here to re- Procedure, fected. Code Criminal unpleasant peat gruesome and de- constituting testimony facts tail of “The judgment of conviction should appears in the record. There it (cid:127)as be People Watson, affirmed.” writing no reason would N.Y. 111 N.E. and 245. written, not be and one would opinion, approval apparent concerning avoid an As to the remarks (cid:127)except to the bur- n as- of keeping den to the state by the the accused made improper statements this, appears in that case prison, it no one attorney (not the district sistant objection made was defendant, nor tried court) who appearing in this any disregard instruction to given by * * * case. case, And in this, the court. that as in al- quoted, those such as “Statements guilt evidence of was conclusive. How- disregarded improper, can though ever, the court should have instructed the de- guilt court when by this jury disregard the remark and not al- pos- The reasonably certain. fendant is low consideration of the burden to the substantial sibility of the defendant’s state to influence their verdict. ma- affected are having been rights the trial court assignments when terially By lessened Nos. disregard jury to

expressly directs the question 21 and 22 the ruling People Priori, such statements. of the court in refusing give . in certain N.E. 668. Counsel requested 164 N.Y. structions them and giving trial people of criminal in the for the of certain instructions included allowing their zeal should avoid cases charge. court’s Specifically urged judgment their better to overcome it was error to refuse charge jury duty right. In a involuntary their sense manslaughter, attempt guilt of the defendant case where robbery, to commit were included offenses. doubtful, unjustifiable improper and court instructed the jury might tending to a violation suggestions, find defendants or either of guilty them rights statutory or other of the defend- of murder of the degree, first murder ant, require this court to order degree, the second voluntary manslaughter, guilty. trial. Generally any a new or not offense which álO 14, 15, in- language Assignments within included Nos. complain in the and

formation, necessarily included of the refusal of court charge, jury to instruct jury. to the burden was should be submitted However, prove, the state it does not follow that the failure and that the find, possible must as a submit included offenses condition to a verdict of all the murder in degree, the first that is reversible error. the deceased “ * * was killed while * the defendants “were still is it not error to refuse actually engaged” attempt in an to com to a defendant instruct that robbery. mit In appli with its connection may guilty be found of a lesser offense cation of the statutory definitions of mur when is no there evidence would der the first degree murder of such charged crime to lesser reduce the degree, second gave the court the follow Elsen, 50, v. State 68 Idaho offense.” ing in instruction No. 13: 56, page at 979. 187 P.2d 976 page at Thomas, 760, 773; you “And I that if the v. instruct evi- State Idaho P. Brooks, 894; produced upon the v. 288 P. dence trial convinc- Idaho State Monteith, beyond you es 20 P.2d a doubt that v. 53 Idaho reasonable State 1023; Scott, the defendants did kill the State v. 72 Idaho 239 P. said Bert with McCurry malice aforethought 2d deadly weapon, with a but evidence also court has held Further, this fails to show or leaves a reasonable an offenses of more included one or where your doubt minds they whether did the crime of between grade intermediate kill him while so at- committing or convicted, is the defendant tempting to robbery, commit and also court refused to which the offenses lesser leaves a your reasonable doubt jury, the refusal not er- submit to the minds that killing such was done wil- indicates that verdict because the ror fully and with pre- a deliberate and been different had not have would result kill, meditated you intent to then can given. request been omitted them guilty find only of murder of the Alvord, 272 P. 1010. degree.” second killing is case the admitted In in connection with its And instructions oc conclusive it the evidence self-defense, gave on the law the court defendants were either while curred following: attempting robbery commit attempting to Thus, escape while therefrom. it would No. “Instruction 19a on proper instruct and submit have manslaughter, was “You are therefore instructed involuntary not er beyond you are convinced reason- to do if refuse so. ror self-defense, pur- could resort to the law of defendants doubt that the able by you as such given and between law is in Instruc- agreement an suance of tion No. 16 them, store and 18b herein.” entered the decedent’s him, they or ei- rob and that intent to requests not correct state carry- them, purpose of for the ther of applicable ments the facts of the law McCurry, intent to rob ing out their record, shown for the reason that him intimidated put him in fear and committed robber homicide would-be him, gun at pointing a loaded attempting escape, to effect an and occur in- their informing him of same time premises, ring on the immediately fol then, him, under such cir- rob tent to lowing attempted robbery, regarded cumstances, had the McCurry the said having as been committed in the course of attempt to such right to resist lawful robbery or attempt to robbery. commit him, protect himself and and to rob Commonwealth Almeida, 362 Pa. means as to rea- property by such 68 A.2d A.L.R.2d 26 Am. McCurry man situated sonable Jur., Homicide, 67. The instructions necessary situated, ef- seem given adequately cover requests inso protec- resistance and fectuate' such far as merit and hence there was tion, the killing even to the extent of no error in the refusal. Stevens, State v. robber. would-be 48 Idaho 282 93; P. State v. Farns worth, 51 Idaho 10 295; P.2d State however, from evi- you find “If, the Fox, Idaho 663; P.2d shooting prior to the of that dence Monteith, Idaho P.2d McCurry of defend- either the said Brown, State v. 26 P.2d 131. good faith had ants, defendants McCurry, rob question to their intent Another abandoned associated with withdrawn from the foregoing and desisted is their had and asserted right of self- By defense. had, rob, either their and attempt assignments to their 23, 24, Nos. 26,. 25 and they complain act, said notified the or by word the refusal of the give court to abandoned had instructions McCurry requested that by them on the law of you fur- self-defense, him —and rob intent to their complain of instruction No. 19a, quoted situation thereupon the find ther above. Mc- standpoint of from viewed complaint as would as to the longer such The no first Curry was paragraph 19a believe of instruction No. man to that it a reasonable extends to warrant McCurry inwas the deceased property “unqualified his or person his defendants, kill” the right would-be robber, hands danger at thus theory eliminating the them, defendants then the self-defense. either The ál2 gardless extremity to kill he right not of the to which

instruction does leave contrary, right may reduced, he cannot be excused unqualified. On robbery pro- person McCurry taking and to the life of the to resist the other property, himself and his so do- save own. In such case tect brought necessity upon limited means as to a himself ing kill, to such was, man, his own as he reasonable situated conduct. necessary such resistance

seem to effectuate “Instruction No. 18b protection. foregoing with connection “In dealing portion In of 19a addition to statement, you are instructed that self-defense, gave in instruc- the court receiving being killed fear of bare provisions of tion No. 16 the bodily harm is not sufficient great homicide, I.C., defining justifiable also killing; neither is it neces- justify following: im- sary person that a actual peril of great of his life minent No. “Instruction bodily may harm before he take appears our “From statute this life his assailant. It is.sufficient right self-de- recognize the laws killing if the circum- so excuse right defend oneself fense. would excite the stances such bodily harm or death at against great similarly person, a 'reasonable fear of in- is one of hands of another situated, viewing the situation and cir- person rights guaranteed to a alienable standpoint cumstances from system of law. our under person killing, who and that the did killing really and in good faith No. 18a “Instruction committed under the thus fear aroused right of self-de- though “But from other motive. universally recognized, it is so fense only may be resorted to right “Instruction 19No. are instructed that defend- “You cases. proper actually though en- this case contend that “Thus, person while ants in may attempted find from the evidence perpetration or in the gaged they into store robbery ex- that entered of cannot aof perpetration McCurry pursuance in an of committed decedent subsequent homicide cuse a by agreement and between the defend- ground on the thereof consequence in duty McCurry; rob self-defense, to ants to therein and that being it his of may jury further engaging though find that he is While withdraw. first defendants, carrying attempt rob, in re- out of to robbery

413 testimony, he further testified that McCurry, then Owen’s rob their intent to did picked up McCurry the time de- meat attempt and there to intimidate him, McCurry, cleaver he said by gun at to “Don’t do pointing a loaded cedent that!”; and during rob the course of his him their intent to and informed of retreat, shot, just contend that before he fired the second him—the defendants just forego- yelled of after he though Hastings, find all had to “Let’s facts, nevertheless, get out so the defend- of here!” Mc- ing he said to Curry, contend, prior shooting “Stand still ants to the and let of here.” me out McCurry they, defendants, said support right their In claimed had, faith, in- abandoned their good of self-defense cite law to McCurry, tent rob and had notified applicable to the aggressor in case of of their him abandonment such in- combat, who, good having mutual faith him, spite tent to rob but that in word or withdrawn, brought act by the such abandonment defendants antagonist home to his his to intention de McCurry, their intent to rob and of cline further struggle, is restored to the McCurry their notice to their such right of self-defense. Where the homicide abandonment, the McCurry said there- results combat, from mutual to establish after assaulted the defendant Owen degree first murder the prove state must deadly threatening strike him with to premeditation But, and deliberation. where weapon, wit, cleaver, to meat where- the homicide is perpetra committed in the upon, Owen, the said defendant believ- of, tion attempt perpetrate, robbery, ing danger, life to be in shot the proof of premeditation deliberation and McCurry said in his own self-defense.” essential, not but in its may stead the state given Thus the defendants were the full rely proof of the robbery attempt law of self-defense even benefit 18-4003,I.C.; People rob. Mooney, § v. 2 undisputed though from the facts attested 17, Idaho 876; P. State Gruber, appear by themselves would Idaho 1;P. State v. Arnold, 39 position right. no claim that 748; Idaho 229 P. Reding, State v. Homicide, C.J.S., 119b, p. 991; State v. 13 P.2d 253. Werner, La. 80 So. 6 A.L.R. words, In other the statute recognizes the Wilson, 26 Wash.2d right (as of the victim stated the court 174 P.2d 553. 19a) in instruction No. to resist and purpose discussion and protect For his property, himself and and, if necessary the. full the defendants benefit to effectuate give such resistance, to testimony, it is noted in ad- here kill would-be robber. their In such case the already only related from robber position facts in the to the dition of an 414 withdraw, that, he We do under cir say but no

aggressor must first not who cumstances, attempting the can to a crime which one commit guilty perpetrating is of robbery change mind, says his the at murder abandon defining degree first statute tempt right and society that a death thereafter be the is to should to so offensive restored is, therefrom, intentional, say, self-defense. What we that whether un of do result accidental, upon where one an killing premises is mur of intentional enters Perry, degree. People robbery, other intent and committing v. der first of 559, 1123; deadly by 387, displaying weapon, 94 124 A.L.R. is met resist 14 P.2d Cal.2d 76, Sterling, part victim, Pa. ance on the and 314 170 intended of his Commonwealth Almeida, pressed 362 Pa. such resistance or is 258; Commonwealth v. counterattack A. vigor 26 Am. with such A.L.R.2d the would-be robber A.2d Homicide, plan only opportunity is has no his Jur., 39. Not delibera to abandon § by supplied conflict, the withdraw and premeditation resulting and from the tion crime, attempting is in kills the intended to malice itself said to be an victim in 'but is, escape ingredient of that crime. That save himself from death or to herent bodily harm, is attempt guilty motivated he of murder rob is malice an to That, degree. intended victim. is state facts first toward appears case. from record any person com “The reason is that required accept The was not to deceased commit, any attempting mitting or to Owen’s and me command to “stand let still major is motivated felonies these here,” out of conclusive his intention as killing of a human and when malice hold-up. being to abandon the He was still directly results, though even being gun menaced flaming Owen’s act, intended, malicious it is from his hand, peril faced a his wife similar malice, essential because murder Hastings. the hand of murder, present. is element' person keeps long gun perpetrating or “As his act in malicious felon’s shoot, prepared per- planned his hand perpetrate, his attempting to expected him is not opposing or re- son regarded by the justly major crime accept any act or statement as quired to antecedent the causative law as to discontinue of an intent indicative society this kind In cases homicide. C.J.S., Homicide, assault.” § re punitive person hand on puts its 121, p. 996. legally blamable sponsible authoritatively deliberately planned doctrine Having cause. This rob gun point, law.” Common in the at deceased had no recognized anticipate he Pa. 68 A.2d Almeida, right to cower be- wealth meekly his page money. them fore surrender A.L.R.2d contrary, right On law affirms resistance the' said started defendant duty backing such felons. out, to resist gun lowered citizen to his side I.C. The fact that he asserts indicate his intention abandon rob duty, perform bery, right attempts near slipped the door and fell. culpable no circumstances be held The two under men then him, started for one part, on his redound the benefit them producing or to to gun. a In struggle assailant, the assailant ensued, his and thus afford during which he said told he self- an kill him claim of them excuse to on a he surrender, would both con Hastings Appellant testified defense. ductor and motorman were killed robbery, violence.” “bargained he for but no defendant. Shockley pleaded self-defense. contrary, entered On the when these men In opinion a well reasoned the court said : store, guns, for with both armed loaded “When the defendant covered Glea- they robbery, bar- purpose the avowed Brighton and with son his revolver and Am.Jur., Homi- gained violence. 26 for put hands, to up ordered them their cide, is contended for 66. such A rule as they presume, right had a to and to this case by appellants, under the facts upon presumption, act such that in case simple comparatively for make it would comply either failed to them with robbery intending to rest plan criminal to his demand he precisely would do what is con- consequences, homicide far as as do, viz., he did And, shoot them down. cerned, reaction entirely so long kept as he gun his in his hand submits, cravenly he one to be robbed. If prepared to shoot, were neither escape ef- accomplished and robbery expected required nor to construe and he risk. If re- a minimum of fected with accept any act or statement of his as resistance up sists backs an part intent on his to discontinue the safely may force, shot he be then show of assault pris- surrender himself as a a rule * * * plea self-defense. Such down on a oner. paradise. robbers’ state a make our

would “In 25 Encyc. Am. & Eng. L. Shockley, 29 the rule is stated of State as follows: the case ‘While he In defendant, armed remains in conflict, P. to Utah whatever pur extremity may for the he a streetcar gun, entered be reduced, with a can- he not con be motorman and excused robbing taking pose of the life of completed day’s just antagonist their his had who save his own. ductor, In such may approached down the aisle he case it rightfully he be As run. and truth- fully hands. up hold their One did said that brought he them told the neces- responded, sity upon had “You bet himself other and the his so own criminal * * * your hands.” At this show of conduct.’ up ‘If hold ter circumstanc- such, shot warning, es from the them down he first arising either when are Shockley, entered the car.” State v. adversary, his caused (cid:127)condition of pages 29 Utah at P. affray, during the aggressor’s acts (cid:127)or of the counter from the suddenness referring to the continuous nature of

(cid:127)attack, can- original assailant inception transaction from its notify adversary, it is such not so end of fatal shooting, the court said: fault, must take he assailant’s “In concluding the discussion of this * ** (cid:127)consequences.’ branch of the we case, no hesi have govern in not rule does “The same tancy that, in saying- de according to applies parties engaged this case that testimony, which, fendant’s own combat, that arises or one ain mutual stated, hereinbefore we must .assume pas- heat quarrel or a sudden from true, from the he time entered the may sion, parties both wherein occupants car and told the throw if aggressor, a case the up In such fault. their hands, and until killed with- so, may Brighton, faith good do there was not a he can moment place en- Brighton either Gleason combat and draw from justified shooting him counter, and, party does, if he as- first, protection the their for of justified him pursuing in sailed is down— lives; persons second, and, own and purpose continuing of af- prevent escape.” his State v. Shock fray. this defendant was In case the ley, 865, 25, 29 Utah page 80 P. 870. an acting in role of outlaw and to, endeavoring hold-up. He was and com Assignments Nos. 27 and 28 of, robbing in act fact was plain give of the refusal of the court to couple of blameless and inoffensive requested by de certain instructions and, men, put fendants, when he was told addi charging in effect that in hands, up placed per effect showing was in killing his that the was tion to arrest; killing attempt petrated and the of these while defendants were under a con ing robbery, to commit to warrant men, re- under circumstances as must show the evidence that was viction it by himself in make lated order to aforethought, and com done malice in- just culpable and as escape, was plain giving of of instruction 10.1 No. had, though he without defensible you 8, will that it makes also observe 10No. “Instruction 1. referring perpetration “Again in the the statute clas- murder ‘committed attempt perpetrate degrees, arson, rape, sifying and or murder into two mayhem quoted kidnapping robbery, burglary, I in Instruction statute No. or 7, correctly struction instruction is that No. ad- Specifically it asswted aforethought vised that: make malice does not No. 10 degree as the first an element murder in “In case homicide committed “mur- the word is, therein defined. That deadly weapon, use of a law killing in the used to describe der” as presumes and malice casts paragraph first is omitted from the other person persons responsible or for the that, therefore, paragraphs three these homicide the burden of repelling the paragraphs later murder would make presumption malice', there unless any degree killing so committed first other evidence in the case which shows accompanied regardless whether it was killing was done without mal- aforethought. Malice afore- with malice ice.” thought ingredient essential of mur- an It does possible not seem jury der, jury but we do not think the mis- was could have been misled to the conclusion By instruction. instruction No.

led might dispensed malice with. State 3a, jury charged prosecu- that the Singleton, 66 Ariz. 182 P.2d 920. prove every essential required to tion is beyond rea- charged element of the crime assignments By Nos. 30 and doubt; “murder in No. sonable contend that unlawful kill- defined our statute as the respective and the court abused their dis ing being of a with malice afore- human imposing cretions penalty, death defined; thought;” in No. malice was surrounding in view of facts and circum given, defin- in No. I.C. was including mitiga stances circumstances of malice; implied express ing in- tion, that the evidence is insufficient ’* “ * * degree. killing may wilful, murder of first tile ‘The deliberate words, person premeditated if a while may “In other or it be absolute- committing attempt- ly course of you in the In accidental. either case are ing guilty one of the to commit crimes degree. of murder of the first per- specified, killing takes the of another having life This is so because the degree. son, perpetration murder of the first it is in the attempted done law, says effect, perpetration a case the “In such speci- one of the felonies persons person engaged: statute, so fied in the is an unlawful your perpetration attempt ‘If, killing or malignant in to and the malice and the arson, rape, robbery, burglary perpetrate very heart are shown from the nature of you mayhem, take the life of a fellow you crime committed or were at- intentionally being, ” whether uninten- tempting to commit.’ tionally, your is crime murder the first degree. jury, murder of the whose exclusive degree verdict of first the verdict sustain facts, province support pass it to on the will In punishment of death. Gilbert, theory be disturbed. State v. they not reassert .assignments, these Kleier, 584; 210, 142 State P.2d v. the evi that maintain their defense and 278, 513.” 9 Idaho 206 P.2d State faith aban they good in had dence shows 6 page 71 Idaho Eikelberger, at rob, that attempt had made doned page 230 P.2d seeking McCurry and were known to fact McCurry used premises; to flee appellant Hastings has in resistance his unnecessary force in supplemental assigning a er filed brief such after Owen life of menacing the behalf, own to those rors his additional the kill that thereafter abandonment and by appellants assigned jointly. He asserts there Insofar iri self-defense. ing was information in light that the evi concerning evidence conflict in is a does not state facts dence sufficient transaction, it was the details against charge him; a instruc crime facts. actual jury to determine applied No. 10 is erroneous when tion province to jury’s likewise was It assignments upon him. These are based the con ultimate facts determine that, the contention since he did not do the the evi drawn from fact to be clusions of malice, killing, pre actual the essentials of words, was for the In other dence. part meditation and deliberation on his was appellants’ theory of say whether imposed by par law because of They supported by the facts. defense attempt ticipation in the to commit rob accept required theory that, bery; and since the evidence shows Cates, 97 Mont. self-defense. prem withdrawn and left that he had S., 164 U.S. 578; v. U. Rowe 33 P.2d prior shooting, to the ises he could not be State v. Broad L.Ed. 17 S.Ct. charged and convicted evidence which Or, 178, 407. As we 196 P.2d hurst, 184 against otherwise be sufficient an noted, assuming facts heretofore 19-1430,I.C., provides accessory. : § themselves, by the defendants as stated “The distinction between an accesso- support little, any, if has defense their ry principal before the fact and a sense. evidence, except in theoretical principals in the first between and .sec- law, questions of fact must our Under felony, degree, ond cases of is abro- 19-2131,1.C. jury. by the decided persons gated ; and all concerned felony, long line of commission court, through whether “This directly commit the act repeatedly constituting held decisions, has offense, but or aid and abet in in conflict its com- evidence where conviction, mission, present, though not shall support here- sufficient

419 850; tried, punished Am.Jur., L.R. 26 Homicide, prosecuted, be after §§ need other facts no principals, and 67 and 69. against any in indictment alleged be Hastings complains also of in required accessory are in than an such struction 212 No. The instruction is a principal.” his against indictment an correct statement of applied the law as to one in Hastings’ fact, position. In last Hastings proper section was Under this paragraph is a more application favorable prin charged, convicted as a ly tried and of the rule to the Hastings defendant than dispute in evidence cipal. There a he was entitled to appear under the facts premises left he had as to whether ing here. Hastings emphasizes the state was fired at about fatal shot or before ment in the instruction that “such defend question for This was the same time. ant must have abandoned the criminal But, assuming a few that was jury. enterprise before the robbery was in course flight, of Owen paces ahead of consummation.” This is the correct state not. He was think We him? relieve fact ment applied when to the facts. We are Commonwealth with Owen. guilt equal not here concerned with its correctness 12 68 A.2d Almeida, Pa. as an abstract principle applicable in all cases Adams, Mo. to 183; cases which A.L.R.2d would-be robber had exercised an opportunity Anno 632, 108A.L.R. to 926, 98 S.W.2d abandon his purpose under circumstances 847; Annotation A. A.L.R. tation result of common scheme which he has No. “Instruction helped carry devise to and to forward be- has who defendant for order “In as the cause result either of fear or even a rob- commit another conspired with aof better motive he concludes to de- responsibility a homi- for bery avoid very or flee at sist instant when the during the course occurs which cide robbery about committed and when attempted robbery, robbery such immediately the transaction which be- the crim- abandoned must defendant actually gets it has robbery commenced. was in enterprise before inal you consummation. other hand “On the if course find from evidence that defendant Owen must be such as to “The abandonment McCurry Bert prior shot said and that only go determination no his not show shooting the time such give defend- as to his also such co- but further Hastings had abandoned opportunity ant the criminal conspirator a reasonable enterprise, shooting example such then and refrain from was the follow robbery alone, is at- defendant Owen before act and the action further Hastings tempted. legal would have defendant no escape respon- conspirator responsibility can therefor.” “A sibility natural' an act for “When are complete and two or more defendants was where such abandonment jointly against any indicted or informed before the intended victim known to felony of- or for criminal As said in occurred. counterattack fense, standpoint may sep- defendants tried discussing the facts from jointly, arately the discretion Owen, of the counter vigor if from the court,” 19-2106 the I.C. opportunity aban was § there no attack robbery to make such abandon the don This court an has held that it is not the before ment known to the deceased separate abuse of discretion to refuse a misfortune, homicide, but one that was a trial be where each defendant desires to appel which both the calculated risks other for witness for the as well as upon the they lants when entered assumed Allen, 772, Idaho himself. State v. McCurry. The in situation plan to rob 1112; Fox, 474, 16 P. State v. 52 Idaho was the themselves found justify P.2d 663. To a reversal on such act, con criminal own of their creature ground, prejudice arising some out of they must bear. 26 sequences of which joint appear. trial made to should be Homicide, Am.Jur., 135. Huskinson, 82, 71 Idaho 226 P.2d State prejudice find no such shown We 779. appellant assignment, In his last regard. in that record ruling trial assigns the of the Hastings separate motion for a denying his court in examination the entire After a careful record, evidence, motion was his proceedings The based in- trial. and court, showing he aban that had of the we find that the and structions contention premises impartial a fair trial fled the defendants had and robbery and doned question far concerns the fired; so as their that he shots were fatal before errors, guilt. The which we have two accessory; that he would longer an was no noted, only the determination of concern prejudiced before the reason be for punishment. A consideration of in these jointly appellant he tried were with the entire record in- has connection he further that desired Owen; and jus- conclude that the ends of us to duced testify in own behalf and sworn by commutation of be served tice will defendant Ow to have the further desired 1-205, I.C.; Ramirez, State v. sentence. § him. 'As to for testify witness as a en 203 P. 34 Idaho A.L.R. not an was contention first Behler, 65 Idaho 146 P.2d State v. by joint prejudiced accessory dis heretofore trial, said we have what second, therefore, is, the judg- As It ordered that question. of that poses provide imprison- be modified for ment follows: provides, as statute degree Penitentiary culpability. life in of the think ment in the We and, modi- that the statute penalty, given lieu as so should be of the death fied, interpretation, broader judgment is affirmed. particularly capital case.’’ 253 P.2d 207. THOMAS, PORTER, J., con- J., and C. undoubtedly This court right has the cur. authority to penalty. However, reduce the l it wil Ramirez, be noted State v. GIVENS, (dissenting). Justice 203 P. 29 A.L.R. cited in support of-reduction concur, generally except as to the reduction of and here I in, the court therein considered penalty. the facts of the case in applying the rule: rejected ap- testimony as to both “* * *, sufficiently every pellants has been stated consideration opinion. justice demands majority Suffice to notice this court de- * * * power termine its permitted give both to reduce testimony past punishment case, to their environ- some and that punishment ment, rejec- etc., only upbringing, be reduced if the facts appellant do not Hastings long, tion as to warrant imposition military penalty.” death (Emphasis detailed account of his claimed ours.) 34 631, Idaho at page record. P. at page 29 A.L.R. 297. majority opinion The in the statement may evidence be correct: reviewed to deter- mine sufficiency its support verdict, the 19-2516, requires “And I.C. that § hearing open had in the court. It “* * * to determine whether it open may to debate to whether as justifies the infliction of the pen- death the mentioned ‘circumstances’ in 19- alty.” 34 Idaho at page 634, 203 atP. particularly refer cir- I.C. page 282. surrounding the cumstances commis- crime and tending ag- sion of the frequently “Causes have found their way appellate or into the gravate mitigate court, the character of where er- involved, ror such had or whether committed in trial, the conduct the convict, prejudicial not the error include also or circumstances such as would individual, himself, which warrant a as an reversal of cause, but up- background, age, his which has include resulted in the infliction of punishment.” or bringing environment other excessive 34 Idaho at appropriate determination page matter to a 203 P. at page 283. however, ap- opinion all of the in detail reciting

“Without way pellant no could have been in involved in and circumstances facts prejudiced by in- specifical- giving such cause, and the trial of this struction. instructions Other were ly which pointing out errors exception given to which no was tak- may have influ- reversible, which but en, clearly charged jury ex- jury assessing enced the with reference to circumstantial evi- penalty, to our minds it is clear treme dence; that, only and not but evi- jury its discretion in abused in. and con- dence case is so clear pages this at doing.” so 34 Idaho vincing guilt appellant page P. 284. at * * * jury could in no erred un- trial court Conceding the manner have been to return influenced testimony offered duly restricting guilty by objection- a verdict of in- past, unless the their appellants as to matter able contained in this instruc- legiti- could evidence of such troduction tion; and jury from the evidence jury in the ex- affected mately have not, could without a violation of their discretion, rejection does such of its ercise oaths, fail to have found the defend- authorize error reversible not constitute guilty, ant and because of this the penalty, con- of the reduction justify defendant could preju- not have been jury. ap- Both of the trary the verdict by the giving diced of such instruc- open en- court admitted pellants Marren, tion.” State v. 17 Idaho 766 intent to rob store deceased’s tered at page page 107 P. shows, indicated in the and the evidence Silva, State v. page 247 at killing done opinion, majority Brill, 120 P. Idaho 269 at robbery. perpetration course page 121 P. 79. wipe cannot out the conduct good Previous fact uncontroverted established “Where the evidence in a given case statute, was murder under killing, clearly shows the defendant to be jury certainly the degree first unprovoked of an guilty murder, with- authority fix death as the complete had any justification out excuse, and the penalty. appropriate not, oaths, could under their repeatedly, under such has court This any other brought verdict than was is, to state of as this circumstances—that them, by rendered even conceding that applied rule: this record—declared the is error in instructions, there the right appellate the of the referred court instruction the re- “Although such view errors when not which should not assigned, matter contains judgment of trial are, the court jury, we should given to been have reversed, as not be for the reasons might arbitrarily con- have by opinion late announced in an victed defendants of murder of the in the degree Stewart case State second or manslaughter, just Justice Marren, they 17 Idaho P. as might arbitrarily acquit- 30 Idaho ted Lundhigh, 1001State defendants even though convinced beyond page P. page 365 at 690 at a reasonable doubt of defend- n guilt, but, ants’ accepted on the facts by them as by established evidence, Ward, page 31 Idaho State v. and on their jurors oaths they could 173 P. 497. have found no other verdict than that the character of “When we consider of murder of the first degree. case, testimony in this offered 9084, provides “C.S. § that —‘After necessarily jury must view hearing appeal, the court give must it, we are regard have taken with judgment without regard to technical they could have how unable see errors defects, exceptions prejudicially against influenced been which do not affect the substantial by er- appellants reason of such - rights of parties.’ And C.S. § the trial as it must be conceded rors 9191, provides that —‘Neither a de- did Appellant Ming court made. Lo parture from the form pre- or mode testify. Appellant Dong ad- Sing by scribed respect Code in any mittedly laundry inwas immedi- pleading or proceeding, nor an error ately killing, before and if his or mistake therein, invalid, renders it story jury, had been believed unless it has actually prejudiced nothing they could have done but ac- defendant, or tended to his prejudice quit appellants. There was no room respect to a substantial right.’ for a verdict of murder of the second degree manslaughter. Having re- “Commenting on these statutes this testimony, jected Sing’s Dong there .court has said: ‘The substance of jury, for the no alternative if statutory provisions these is that a new the evidence offered believed ought trial never to be granted, not state, to find guilty but withstanding some mistake or even degree. first In the of murder misdirection judge, provided nothing sugges- record there is court revisioning whole is satisfied jus would warrant fact tice has done and that upon.the tive of appellants could be evidence no other verdict could prop the conclusion guilty erly have been found.’ being without at all v. Mar guilty murder first degree. It is true ren, ^[766] 107 P. ^[993] 424 flagrant, justify the Sing, Idaho does not 35 reversal Dong

1001.” State v. judgment evidence 616, 633-634, where the is at 208 P. 860 at page jury so not conclusive that could page 865. Cosler, have been misled.” v. State appellant’s brief suggested is “It 528, 39 228 P. page Idaho 519 at 277 closing opening and in both the page at attorney prosecuting re arguments the Stewart, page at 46 Idaho 646 State v. defendant ferred to the fact that 140, readily com- 651-652, 270 is P. testify. did not take the stand from the situation pletely distinguishable prose There is no record of what herein. attorney argu cuting in either said out of har herein is not conclusion The ment, in the re but there contained is Taylor, Idaho 724 v. with State mony transcript by ap porter’s objection, an ap herein because P.2d page pellant, prosecuting to remark proves guilt their evidence own pellants’ defend attorney ‘with relation to the sufficient, any, if no beyond any doubt and in his any ant not evidence presenting * * *’ rested on properly be could mitigation The court sustained behalf. rejected testimony. objection jury fact and told the “On the whole we do not record referred to should be considered not there error think was reversible improper It by them. complained matter of. the re attorney make prosecuting having credited with is Brill, mark “In the case State lawyer knows made, every trial court P. this Idaho * * ‘* court by an admonition such held, This court said: erase ordinarily sufficient not Marren, is 107 P. memories of minds from the 993, that, is though an even instruction It improper remarks. such jurors erroneous, ordinarily the error say that the much to not too probably material, yet, if the would be evidence rather tended the court remark of guilt is satisfac- defendant’s the minds of impress fact tory is, ordinarily pro- such as —that proper in this not be certainty It would conviction in jurors. moral duces however, judg reverse case, unprejudiced mind —and result an different, The misconduct. been this not have had the because ment omitted, could the case instruction will such evidence because verdict not reversed of such er- other reached The prin- instruction.’ same The misconduct roneous guilty. than cipo? applicable attorney, though here. prosecuting provides: I.C.A., ing opinion, called attention “Section fact.” hearing appeal, ‘After the court judgment regard give

must without judgment and penalty fixed jury should be affirmed. defects, technical or or to ex- errors ceptions which do not affect sub- ” KEETON, rights parties.’ (dissenting). stantial of the State Justice Gilbert, page 65 Idaho 210 at v. I opinion judgment am the that the page P.2d at 588. conviction should be and a new reversed only dissent, trial ordered —this fairness Though in not in this statement most state, pertinently, appellants. but There succinctly forcibly and also to the states precedent no proper the court’s our function: called to has imposed penalty attention was where the “ '* * * question Supreme rejection reduced because of erroneous Court’s consideration was not whether testimony, offered reversible errors Supreme imposed Court would have committed. penalty, death but whether discretion in judicially vested trial court I was do not ex- concur in the holding that the complained of, ercised and whether assigned record errors and showed a and case in the majority opinion class justifying exist, sentence of found to can only or in justifying death the class punish- be material effecting sen- ” imprisonment.’ tence of life ment imposed. question v. to be State The real Behler, presented 65 Idaho 464 at page guilt whether or not page appellants P.2d at has been in established the man- v. correctness penalty), “4 of discretion.” In fore this court Behler, supra, recognized State * P.2d 582 at page v. of the above statement there must {£ Powell, the force could thus: recognized that 71 Idaho 131 act appear an 585— (to and effect and reduce the in abuse be- State page means and was established and on the first instance to be determined by the ner long recognized jury. and the We experience and should Our degree guilt procedure by inquiry never lose and sound reasoning. procedure provided and innocence of crime are concerns the established, punishment sight questions of the fact and based appellants imposed. method, guilt law, in Behler, supra, State “In Justice If were convicted, or opinion Budge, the author of might convicted, have been and the death Ramirez, supra, penalty imposed, in his dissent- because of errors 73 IDAHO REPORTS them, peachment, then each whether or not proceedings against taken was asked every formerly he had fel- apparent to all that other been convicted of a must he placed ony. Each person similarly on answered in the affirmative. situated cross-examination, posi- appellants, On exactly the same over ob- trial would be tion; jection, required procedure law and to answer the name and the rules of must, necessity, ap- nature of the felonies so committed. adhered to here This, my opinion, error, plicable persons. to all other was reversible and contrary prior holdings procedure, Under our rules of law court. jurisdictions Cases from other an- established, recognized before a well nouncing contrary rule are not neces-' person’s taken, liberty life it is can be in different sarily Statutes authoritative. a court necessary that he first be tried in subject matter are covering the same states im- competent jurisdiction, before an identically. Some statutes worded partial such a is im- jury. When provide specifically that a defendant when judge paneled, it is the exclusive impeached may be the same as he testifies particular proceeding, in this facts —and Our does not so other witness. statute punish- fit, may, if it sees determine distinction, provide. a.summary This with imposed. ment to be states, ably of the statutes of various is dis- trial; is, the ac- Trial means a fair by Branch, Miller in cussed State v. Justice ' proceed- rights, the legal during cused’s 164 P.2d 66 Idaho in which case respect- had, safeguarded and ings must be per- this court concluded that the statute the ed, impeachment mitting in the observance the of a witness is not alone applicable defendant in a law, not to a criminal recognition in the but naked forms very this ap- The reason for is ap- action. principles of the just application and parent. an examination highly an .Such time as Until such plicable case. to the wholly prejudicial and collateral to the guilty, found and so tried has been accused impeach- investigated. Such being legally convicted. matter be he cannot necessity per- must of permitted, ment, if are assigned of the errors some While or confuse the avoid is- jury to mit correctly dis- have been merit without general based on sues, a verdict return opinion, are there majority posed of in crimes, prior principles, or because I shall presented which propositions some indulged in knavery malicious conduct briefly discuss. an- consider rule by the accused. I sound, case, supra, in the Branch against taken the nounced proceedings During opinion it should testify in not be and I am of was sworn each appellants, purpose im- overruled. For defense. own If, testimony regarding The the felonies of however, a criminal a defendant previously action, appellants which impeached be- had been con- or a witness be is to committed, prior victed did not have remotest cause of such im- connection felonies peachment appellants with the crime of which limited fact that stood should to the be assume, charged. or I without he has been so and the citations of convicted name authority, extensive particular details is well recog- crime of which it punished nized the commission of other formerly convicted and crimes -has pertinent bearing no on inquired should not In whether into. other an words, guilty accused is par- when the innocent of witness answers he has ticular felony, being offense investigated. convicted aof the examina- See Garney, State v. 668; tion or cross-examination in 45 Idaho regard this 265 P. Machen, Coloff, State v. Mont., should end. 56 Idaho State v. See 58 P.2d 1246; 343; Miller, Quinlan, Mont., P.2d State 60 Idaho 88 P.2d P.2d Jones, State v. Idaho, 1058. There is prior no case in 113 P.2d decision, this particular other holds the crimes herein testified to appellants felony, or the to,, details were crime are nowise linked proper subjects with, connected introduced for im- crime with which appellants stood charged. peachment purposes. After prejudicial improper evi-

Every attorney, with even limited ex- admitted, dence was appellants made perience practice, in criminal knows that proof an offer of which is set forth in the. impeachment of an accused in a criminal majority opinion. I repeat shall not it not, fact, case purpose the real here. The testimony so offered and exclud- simply pictures the mis- It examination. ed the learned trial judge, inwas sub- villainy the accused and conduct stance admissible case, particularly jury injecting hate into prejudices after appellants had been pictured so proceedings. as entirely devoid of all social virtue. given instruction was no Further there In this proceeding the purpose of the al- advising charged degree first murder. Pun- testimony, or which limit- impeaching leged ishment be could fixed jury the at life testing credibility of the it to the ed imprisonment or death. Certainly all ma- testimony encouraged the appellants; and terial evidence that could anywise in tend impose crime, the and death mitigate convict to the to lessen jury punish- the the prior ment, crimes and mis- .generally including because penalty testimony ap- appellants conduct of which the chief, former malicious and and each offered, should, my opinion, in in all pellants. fairness be case, stood, then should have been proceedings and admitted. As delinquen- permitted testify in picture many in substance accord jury had a proof. cies, ance the offer of This rule is mis- with much misconduct and malicious majority opinion recognized and the conniving appellants, chief in only entitled, testimony drawn that such were then if for no other rea- conclusion son, penalty goes to I do might to be heard which inflicted. on matters testimony interpret so would not it. I think such show some or conduct that virtue any testimony regardless admissible in criminal offset- case or tend ameliorate the already empowered jury of whether or not the in evidence. This rule is stated in 373; penalty. authority, to determine For 467, Sec. as follows: Am.Jur. 762, 919; 373, see 70 Sec. C.J. Am.Jur.

, under the accused is tried “Where 467; Brown, Sec. Commonwealth v. in dis- jury its permitting the statute 726; Pa. 164 A. v. Commonwealth the defendant to to recommend cretion Williams, 602; 307 Pa. 160 A. Smith punish- thereby his reduce mercy and People, 914; v. People Colo. 75 P. counsel for ment, right it 428; Mangano, 375 Ill. 30 N.E.2d a recommen- argue such defendant People Lane, 300 Ill. 133 N.E. is likewise the jury. It dation to the People v. Heffernan, 312 Ill. 143 N.E. de- duty for the counsel right imprison- appealing life for fendant penalty circumstances where it the death instead of Under ment up- penalty, to fix the an in- age, duty the court the defendant’s discuss environment, mitiga- oth- or circumstances in quiry and all into facts bringing and expressly provided aggravation is from the evidence appearing tion matters er choosing I.C. reads as Sec. follows: may for. assist which penalty. On other appropriate plea guilty, “After or verdict of have the the state hand, counsel upon a discretion is conferred where the recom- argue that right same punish- as to the extent of the the court withheld, although should mendation court, upon sugges- oral ment, prosecution, in con- by the insistence party that there of either are cir- tion in- designed to language nection may be properly cumstances defendant be jury, flame aggravation either into view taken recommendation without guilty found mitigation punishment, may, prejudicial.” mercy been held has discretion, in its hear the same sum- time, marily, specified action, at a age, defendant’s a criminal In notice to the such adverse party his back environment upbringing, may direct.” nature material áre of ground provision In argument and a relative to an in- prosecut- similar to the jury pre- ing vestigation attorney and examination made used language: the following suspension probation of sentence is cede “It is rather to me ridiculous 20-220, I.C., provided which for in Sec. they (referring they say to appellants) reads: couldn’t hock their watches. What ex- they cuse did doing have for this? probation parole officer

“When a and Now, we know what the men have is available to no defendant court, done in this case, and it comes back to placed probation on shall be until thing. They the same respect have no report investigation written society. Both of these defend- parole probation and officer shall have ants are leeches were, as it society, presented to and considered off by perpetrating robbery. society Does court, charged and no defendant any duty to these They men? felony or indictable shall be offense have leeched off of society in past. suspension released under of sentence Should these men continue to do that? parole without investigation. such The they Should supported by the probation inquire officer shall into of Idaho?” (Emphasis supplied). offense, circumstances crim- record, history inal present social prosecutor In other words the argu- was condition of the defendant. Whenever prior ing because of crimes misconduct, practicable, investigation such in- shall shown the evidence and improperly physical clude a and mental examina- admitted, appellants should be con- tion of the defendant. If a defendant hanged. victed and Such remarks and any institution, pro- committed to argument should be avoided. The language report bation officer shall send a intemperate used was and was probably the investigation such to the institution at result of the tension under which pros- the time of commitment.” ecutor labored. It appel- should remembered that the ap- In the proceedings against taken lants were on trial for their lives and pellants, jury permitted fix should not have their prejudiced by cause penalty mitigat- without background or intemperate remarks might warp the should ing circumstances could and judgment jury. parties did not properly If have been considered. equal on footing, stand had court, fixing penalty, is entitled to way no to answer. mitiga- all know facts circumstances in tion, why, person penalty, put when the fixes the No should be to death be- cause, live, should it not be allowed to hear and con- should the state would have support sider such matters? him. Banquo’s again like Clark, ghostj again rise

Commonwealth v. 322 Pa. 764; Berger States, plague A. us. United 295 U.S. Edwards S.Ct. 79 L.Ed. person If a in a wrongly civil matter is Commonwealth, Ky. S.W.2d deprived property, person in a a

948. criminal proceedings wrongly convicted of important society crime, might possible less serious

It is far more it for way partially in some rectify action wrong accord a defendant in a criminal done. Were expiation imposed life in the sentence fair trial than he forfeit his in this proceeding executed, regardless of the crime. of how might be, it wrong no rectification could procedure The rules of law and ever be impossible made. It is to call back apply appellants are, be, to the and should the dead. yardstick same and exact- measured judgment of conviction should'be re- apply ly the same standards as to all oth- versed, granted. and new trial appel- persons; determining er and in necessarily rights, we measure lants’ might rights

determine the of all who others similarly trial those situated. A fair protects liberties of all. crime

accused of assign- in detail not discuss

I -shall some instructions relative to ments of error P.2d re- refused. Some of and others given ' have been should quested instructions et et McDOWELL ux. v. GEOKAN ux. give oth- error was reversible given; No. 7620. why reason ers, this another and I consider Supreme Court Idaho. be reversed. As the should judgment retried, detailed discus- to be case is not Jan. serve no useful of these errors

sion

purpose. pro- assigned in this errors

Some imaginary, nor trivial

ceeding neither were went the im- substantial

but whether not the question of

portant fair trial. had a help precedent that the feel but cannot

I opinion will, majority by the

established

Case Details

Case Name: State v. Owen

Court Name: Idaho Supreme Court

Date Published: Jan 27, 1953

Citation: 253 P.2d 203

Docket Number: 7853

Court Abbreviation: Idaho