79 P. 82 | Idaho | 1904
On the eighth day of September, 1903, an information was filed in the district court of Idaho county, charging the defendant, William Rooke, with the crime of grand larceny. After alleging that the defendant had waived a preliminary examination, the prosecuting officer charges the larceny as follows:
1. That the said William Rooke, on or about the twenty-third day of January, 1903, at the county of Idaho, and state of Idaho, then and there being, did then and there willfully and unlawfully and feloniously steal, take, carry, lead and drive away from the possession of one C. W. Dunham, one roan mare, the same then and there being the personal property of said C. W. Dunham.
To this information a demurrer was filed: 1. That said information'does not substantially conform to the requirements of sections 7677, 7678 and 7679 of the Revised Statutes; 2. That the facts stated in said information do not constitute a public offense.
This demurrer was overruled, to which counsel for defendant excepted. Counsel for defendant filed a motion for change of venue, which was by the court overruled; all these proceedings were had at the September, 1903, term of the district court of Idaho county. The next step disclosed by the transcript was an application for a continuance on behalf of the defendant, which was filed on the first day of February, 1904. it be
“February Term, 1904.
The State of Idaho, Plaintiff,
v.
William Rooke, Defendant.
“VERDICT.
“We, the jury in the above-entitled cause, duly impaneled and sworn, find the defendant guilty as charged in the information.
“HENRY FORSEMAN,
“Foreman.”
On the twenty-sixth day of February, 1904, the defendant was sentenced to serve a term of ten years in the penitentiary of the state of Idaho. This appeal is from the judgment and from an order overruling a motion for a new trial. Counsel for defendant make eighty-six assignments of error, and furnish us a transcript of seven hundred and forty folios. A large number of the assignments of error are based upon the admission of evidence and the instructions of the court given on its own motmn.
As we construe the language of the information, the defendant is informed that on or about a date named he is charged with having willfully, unlawfully and feloniously stolen, taken and driven away from the possession of the complaining witness, certain personal property, the unlawful taking of which is grand larceny under our statute. This is all the law requires, and the demurrer was properly overruled.
Assignment No. 2 is based on the ruling of the court in refusing to grant a continuance on the application of defendant. The first statement of the defendant in his affidavit for a continuance is, “that he is one of the defendants in the foregoing cause, and he is also defendant in four other causes for alleged horse-stealing now pending in said district court.” Then follows an allegation that “on or about the eleventh day of February, 1903, he was charged in the probate court, together with other defendants [naming them] with having stolen a number of horses in said county jointly as one joint act.”
“That for some reason or other unknown to affiant all the other defendants excepting Joe Canfield and Bichard Tipton have been released from said charge or charges, and affiant is informed and verily believes that the county attorney of said county, and W. N. Scales, the attorney for the private prosecutor herein, have agreed to release said Canfield and Tipton in case they would testify against affiant in this and the other causes named.”
He next alleges that about the 1st of February, 1903, he entered into a contract with one James Loe, whereby affiant was to furnish Loe about two hundred head of range horses, but on account of a heavy fall of snow and unusually inclement weather about that time, he was unable to furnish the number agreed
In support of this application Clay MeNamee makes an affidavit: “That he is one of the attorneys for the defendant. That within three days after said case had been set for trial he caused subpoenas to be issued for the attendance of William Eller, Ellis. Crooks and Julius Leitch, and within about three days after procured an indorsement by the judge upon the subpoena issued for the said Leitch requiring his attendance at the trial of this cause. No return has been made upon said subpoena by the sheriff of Idaho county, but affiant is informed by one Godfrey Doust that said Leitch is in jail in Spokane, but will be liberated in a few days, said Leitch being held in said jail on suspicion of having committed a crime; that affiant is fully informed and believes the said Leitch, as soon as delivered, will immediately come to this court as witness for the defendant; that on yesterday J. M. Eller made the statement in open court that his son, William Eller, was in Cottonwood, Idaho, on last Saturday, and affiant is fully informed and believes that the said William Eller is now in Idaho county and that no return has been made by the sheriff showing that said Eller is not now in Idaho county; that the same condition as to the return of the officer is true in reference to the witness, Ellis Crooks, and affiant is fully informed and believes that the said Ellis Crooks is now in Idaho county, Idaho. That some three days ago affiant was informed that Hugh O’Kane and William Robinson were in western Oregon; that immediately thereafter he procured an order of this court requiring the attendance of both of said witnesses at this trial. That from an examination of the files and subpoena in this ease, affiant has failed to discover any return by the sheriff of Idaho county in reference to either of said witnesses. That affiant is fully informed and believes and states the facts to be that defendant is poor and unable to pay the mileage and witness fees of either or any of said witnesses, and that owing to that fact he has been unable to ascertain the whereabouts of said witnesses or procure their attendance as witnesses. That the defendant has no other witnesses by whom he can prove the facts alleged in the affidavit
To this application for a continuance a counter-showing was made by the affidavit of Edward M. Griffith, the county attorney, to wit: “That he is, and for some time past has been, personally acquainted with the alleged witnesses mentioned in said affidavit, to wit, Hugh O’Kane and William Robinson; that said Hugh O’Kane up to a month or two ago conducted a saloon in the city of Grangeville, Idaho, and the said William Robinson was bar-keeper therein and performed other services for said O’Kane. That from the affidavit of the defendant, no time or places being given or any other information upon which this affiant could get at the facts, this affiant is unable to see how any testimony of the said Robinson or O’Kane would be competent or material. That one G. A. Doust, head jailer in the Spokane jail in Washington, in which city this defendant was first arrested on charge for which he has been informed against in the above-entitled action, and which said Doust has been
“That this affiant has examined the records in the probate court where a complaint was filed against the said Ellis Crooks, -mentioned in defendant’s affidavit, and the record shows that on February 1, 1903, a complaint was filed in that court charging said Crooks with grand larceny, and that a warrant was issued thereon, and that said charge is now pending, and that said matter has never been dismissed and the reason that said Crooks has never had an examination, as this affiant is informed and believes, is because said Crooks ever since the filing of said complaint, has been and now is a fugitive from justice. That there is now on file with the clerk of the above-entitled court a subpoena issued in behalf of the defendant for said William Robinson and Hugh O’Kane, dated the tenth day of February, 1904; that this cause was set for trial on the third day of February, to be tried February 11, 1904. That this affiant is informed and believes that both the said Hugh O’Kane and William Robinson are now residents of the state of Idaho. That at the last term of court the alleged witnesses, Hugh O’Kane and William Robinson, were both residents of this county and in the city of Grangeville, as this affiant remembers, and could easily have been had as witnesses in this case, but after the case was set for trial at said last term, the defendant broke jail, and escaped from the custody of the officers, and was not recaptured until after the expiration and adjournment of said last term of this court.”
This constitutes the record before the trial court on this application for a continuance, and for the reason that counsel for
We find no error in the ruling of the court in refusing to sustain defendant’s motion for a continuance. We have examined Lillienthal & Co. v. Anderson, 1 Idaho, 673. In this case, it was shown that the witness was on very friendly terms with the defendant. The evidence expected to be obtained from such witness was set forth in the affidavits, and it was material on the issue of partnership. A subpoena had been issued for the
In State v. Lund, 49 Kan. 580, 31 Pac. 146, it seems the defendant was charged with a violation of the prohibition laws of the state of Kansas. An affidavit for continuance was made with the evidence of the absent witnesses set out in the affidavit. The prosecution agreed to treat the statement in the affidavit as the evidence of the absent witnesses; a trial was had, but the jury failed to agree. A second trial was ordered and the court refused to require the prosecuting officer to treat the statement in the affidavit as evidence of the absent witnesses on the second trial. This the court held was error. We do not think the ease at bar falls within the rule laid down in either of the cases above cited and to which our attention is called by counsel for appellant.
In assignment No. 3 it is argued that the court erred in permitting the names of a number of witnesses to be indorsed on the information at or about the time of the commencement of the trial. It seems that the defendant, prior to the date of filing the information, waived a preliminary examination, and only the name of C. W. Dunham was indorsed on the information at the time of filing. The next step taken as shown by the record was the plea of not guilty, entered on September 12, 1903. Next follows an application on behalf of defendant for the court to fix and reduce amount of bail and which was argued and submitted to the court and taken under advisement; this was September 24, 1903.
In State v. Wilmbusse, 8 Idaho, 608, 70 Pac. 849, this court held that it was not error to allow the names of witnesses to be indorsed on the information even after the trial began, if it was shown that at the time the information was filed the names ■of such witnesses were unknown to the prosecuting officer. Again, in State v. Crea, ante, p. 88, 76 Pac. 1013, this court said: “Under the provision of laws of the Fifth Session of 1899, page 125, .section 2, requiring the prosecuting attorney to indorse on the -information the .names of all the witnesses known to him at -the time of filing the same when it is sought to have the names .of other witnesses indorsed on the information after the same has been filed, the court must be satisfied that the names of .such witnesses were not known to the prosecuting attorney at the time the information was filed, before such names are allowed to be indorsed thereon.”
In People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, the court said: “The court allowed the names of several -witnesses to be added to the information during the trial, under objection, without any showing that they were not known earlier :and in time to give defendant notice in season to anticipate their presence before the trial. The statute is explicit that this shall Be done before the trial where witnesses are known.” The defendant Hall was charged with the murder of his wife by
It is thus shown that defendant was being tried the second time for the murder of his wife and that three months before the second trial, the two doctors had been employed by the prosecution to make an examination of the body, and upon such examination discovered arsenic in the body. There can be no question but that the prosecuting officer knew the importance of the evidence of the two doctors before the trial began and should have procured an order from the court to place such names on the information prior to the commencement of the trial. In the'case at bar we find indorsed on the information at the time it was filed, to wit:
“Names of all witnesses known to said prosecuting attorney at the time of filing this information.
“G. W. DUNHAM.”
At the time the county attorney asked permission to indorse the names of additional witnesses on the information, the following proceedings were had:
“Mr. Griffith: I desire to have a list of witnesses indorsed on the information. I will state this: that what might seem to be an oversight in not having this done before, is due largely to the unsettled facts and circumstances surrounding the trial of this case. It was 'uncertain at the beginning which one of these cases would be tried.
“The Court: How many cases?
“Mr. Griffith: Five cases; and then at that time, or what might have been the proper time to have asked this, for these indorsements, the names of all of our witnesses were not known, or a great many of whom have come to our knowledge since this ease was set down.
*402 “The Court: How many witnesses have yon indorsed there?
“Mr. Griffith: All of them practically, except the prosecuting witness, only the one. I will say this: There was no preliminary examination had in the case, the'defendant waived examination and the only witness who was indorsed was the complaining witness at the preliminary hearing, and that accounts for the fact that most of our witnesses were not indorsed upon the information.
“Mr. Seales: I will state in addition, that all these witnesses, I do not think with a single exception, were known to the defendant. They had the same source of getting it that we did; that was the evidence in the other cases, and in a great many eases. Most all of them had been subpoenaed by the defendant himself, so it is no surprise or anything of the -kind.”
Counsel for application objected to indorsing any names on the information, alleging surprise. This objection was overruled by the court and the names of witnesses were indorsed on the information by order of the court.
We think under the peculiar facts shown to have existed in this case, together with other cases pending in the court against the defendant, there was no error in the ruling of the court permitting the names to be indorsed.
The fourth assignment argued by counsel for appellant relates to the court ordering that all witnesses for the prosecution be sworn in a body. This practice is quite common in the trial courts of the state, especially where there are a large number of witnesses in attendance at the commencement of the trial, and we know of no statute or rule of the courts prohibiting it; hence we find no error.
In assignment No. 7, counsel for appellant says: “Witness Canfield shows by his own testimony that he stole the animal described under the information, and that he was testifying under threats of prosecution if he did not implicate the defendant, and under promises of release if he would do so. The testimony of a witness who is testifying under threats of prosecution is open to the grossest objection.” This argument might
Another assignment of error is the refusal of the court to grant a change of venue. Counsel for appellant with energy, ability and earnestness insist that with the showing made of the bias and prejudice of the people of Idaho county, against defendant, he was entitled to have the case removed to another county, in the second judicial district, for trial. We have read the affidavits in support of this application, as well as those opposing it, with much interest and care. It seems that an organization exists in that county known as the “Idaho County Stock Association,” the object and purpose of which is to protect their stock from larceny, and that such organization, through the medium of the newspapers of that section' of the county, and otherwise, has published its willingness to pay a reward of $300 for the arrest and conviction of anyone charged with such crime. It also appears that this organization employed W. N. Scales to assist the county attorney in the prosecution of this action.
It is shown by the affidavit of the defendant, Clay Mc-Namee, one of his attorneys, that this organization has about three hundred members, and whilst it is not’ shown by the record, we take judicial knowledge of the fact that Idaho county cast about four thousand five hundred votes at the last general election, being about one member of this organization to fifteen electors in that county, so far as interpreted by the courts. These organizations exist in many counties of the state under different names, are organized for the purpose of protecting personal property — especially livestock — from theft. It is certainly the privilege of good citizens to thus band themselves together for the universal protection of this property, and if the organization of such an association in a county where livestock raising is one of the principal industries is to be ground for a change of venue in cases where the parties are charged with the larceny of livestock, then the very object and purpose of the organization is to be thwarted by the law as interpreted by the courts.
Another assignment upon which appellant relies is based upon the fact that the information charges that the animal alleged to have been stolen was the property of G. W. Dunham, when, in fact, it belonged to Charles Dunham.
State v. Rice, 60 Kan. 868, 63 Pac. 737, is cited in support of this contention; the syllabus says: “Where property stolen belonged to one S., but the ownership was alleged in one B., and the evidence showed that the latter had charge of it as the servant of S., and had no other interest in it, a conviction for larceny from B. cannot be sustained.” This ease has no application to the facts of the one under consideration. It is nowhere shown that C. W. Dunham is not Charles Dunham, but it is shown by the evidence of Charles Dunham that the roan mare, alleged to have been stolen, was his property.
In State v. Ireland, 9 Idaho, 686, 75 Pac. 257, recently decided by this court, involving a question similar to this, it is said: “Where the information avers the title to stolen property in B., and the evidence shows that B. and J. are the owners thereof, the variance between the averment and proof is not fatal. (Overruling People v. Frank, 1 Idaho, 200.” We do not think the variance in this case is fatal.
“Mr. McNamee: The defendant desires an exception to'the statement of counsel.
“The Court: Certainly, the counsel does not mean to say that any juror has been improperly influenced.
“Mr. Scales: No, sir; I mean nothing of that kind. Gentlemen, when I examined you as to your qualifications to act as jurors, I asked each and every one of you whether, if the defendant’s wife and two small children were brought into the courtroom during this trial, you would allow your sympathy for the wife and children to unduly affect you in arriving at your verdict; whether you would allow your sympathy to cause you to find the defendant not guilty, if the evidence found him guilty; and each and every one of you said you would not; and what I mean is that you should not let your sympathy alone cause you to find the defendant not guilty, but should be governed entirely from the evidence. I did not intend to impute improper methods to anyone.”
Again, in the same argument, and immediately following the above language, Mr. Scales made use of the following language: “I want you to give this defendant justice, and justice is what this defendant does not want.” Again, immediately following the last quoted language, the following language is credited to Mr. Scales: “Mr. Moore had said in his argument to you that he desired you to consider him as a thirteenth juror, and asked you to consider him as such. I am willing to accept Mr. Moore as a juror, and from the evidence in this case he would find the defendant guilty.” We will dispose of these statements in the order named.
The first statement, in our view, was improper, but after the suggestion of the court, we think Mr. Scales placed himself in
! The next statement seems to have been called for in the estimation of counsel by what was said by Mr. Moore in his argument to the jury in behalf of defendant. It does not appear that the jury took Mr. Moore into their confidence sufficiently to make him the thirteenth juror. We are not informed as to whether Mr. Scales’ confidence in him as the thirteenth juror was ill-advised, or otherwise. None of these statements fall within the rule laid down in State v. Irwin, 9 Idaho, 35, 71 Pac. 608, or State v. Harness, ante, p. 18, 76 Pac. 788.
Counsel for appellant base a number of assignments of error on the instructions given to the jury by the court on its own motion. We have carefully considered all the objections of counsel, and conclude that the defendant has no reason to complain of any of the instructions. The court fully and fairly i-natmctp.fl the jury on all questions of law arising on the trial of the ease, and we find none that were misleading or ambiguous. When this state of facts appears from the record, it is not error for the court to refuse instructions offered by counsel for either the prosecution or defense.
Assignment No. 80 is based on the verdict as returned by the jury. It is shown by the record that in the beginning of the trial all proceedings were ordered to be in the name of William I. Hooke; the verdict is returned against William Hooke. There is no pretense that William Hooke and William I. Hooke is not one and the same party against whom the information was filed, and who was found guilty of larceny of the .animal in controversy. It is insisted that the verdict should Have been sent back to be corrected before being received, and failure to do so was error. It would perhaps have been better
Many exceptions were taken to the ruling of the court on the admission of evidence of accomplices. Also as to other charges of larceny against the defendant. It seems that other charges of larceny were so closely interwoven with the one from which defendant was being tried that the court admitted some evidence as to other crimes. The court fully instructed the jury as to their duties with relation to both of these matters, and we think made it plain to them that defendant could only be convicted for the larceny of the animal alleged to have been stolen, and as charged in the information; also that the testimony of accomplices must be corroborated by some fact or circumstance before a conviction can be had.
This brings us to an important, as well as an unfortunate, condition of this case as shown by the record and the certificates of the learned judge who tried the case and settled the statement.
At folio 619, we find the following statement: “And be it remembered, that after the jury had retired to consider of their verdict, and before they had arrived at or returned their verdict into court, that a sealed letter was handed to the bailiff by some bystander, or stranger to the court, for the juror, J. D. Knoor, and was by the said bailiff handed to the said juror, who retained and read the same, all before the verdict of the jury was returned or rendered; and that the said letter was not read by the court nor 'the defendant or his counsel, or submitted to either of them, nor did the defendant assent to the said letter being delivered to the said juror.”
At the time of the hearing of this case' at the last term of this court at Lewiston, Honorable Edgar C. Steele, judge of the second judicial district, filed the following certificate: “I, Edgar C. Steele, judge of the second judicial district of the state of Idaho, hereby certify that I am the judge who tried the above cause in Idaho county, state of Idaho, and certify to the statement of the case and bill of exceptions on motion for a new trial, as being true and correct, and that I have this day
“I hereby certify that the said above quoted matter is false and untrue, in so far as any information of the district court is concerned, and was inserted in the record without my knowledge, assent or approval, and that the said statement and bill of exceptions, when signed, were not known to me to contain the foregoing quoted matter, and that I have no information or knowledge that any letter was referred to as having been delivered to the jury at any time until yesterday, the eighteenth day of October, 1904.
"I make this additional certificate in the interest of justice and good practice, and in order that your honorable court may strike the same 'from the statement, or take proper steps to have the statement and bill of exceptions corrected, in order that you may have a true statement and bill of exceptions before you in the hearing of this important case. I further certify that upon the motion for a new trial the same was never called to my attention, nor assigned as a reason for granting said motion, and. that the same was never brought to my attention until the time hereinbefore stated.”
It was admitted on the hearing of this case in this court by counsel for appellant that the letter was an unimportant one -from the wife of the juror, and only related to some family matters, and the fact that the coyotes were killing the chickens, and as I now remember it, urging him to come home as soon as possible.
In our view of the case, it matters not what the letter may have contained, for the reason that the motion for a new trial did not call attention to the fact that this letter had been permitted to pass into the hands of one of the jurors, and an assignment of error urged upon the trial court by reason thereof, •and be given an opportunity to investigate the facts in the case as to this letter. In all fairness to the trial courts, they should be given an opportunity to pass upon every question that is to
We find a difference in the authorities on the question under discussion, some saying that if it was shown that a letter has been allowed to go to a juror, it devolves upon the prosecution to show that the contents were of such a character that they did not in any way relate to the case; whilst others hold that it is error to permit a letter to go to a juror, no difference what its contents may be.
• We wish to be understood in this case as placing our ruling entirely on the ground that the trial court was ignorant of the fact that a letter had -been given to a juror at any time during the trial, or before a verdict was returned by the jury; and further, that in the presentation of the motion for a new trial, the court’s attention was not called to the existence of such fact.
We have carefully examined all the assignments of error, and in our view of the case it is unnecessary to pass upon any excepting those set out in this opinion. Many conditions arise in this case that are unusual in the criminal practice. We have set out in full the facts in many instances for the reason that courts are not frequently called upon to decide cases where so many complications arise, especially under conditions that exist in this case.
We have concluded that the motion for a new trial was properly overruled, and that the judgment in this case should be affirmed, and it is so ordered.