80 P. 1125 | Idaho | 1905
— The defendant relies upon two principal assignments of error for a reversal of the judgment in this case: 1. That the court erred in overruling the demurrer to the information; and 2. Alleged separation of the jury after they had been accepted and sworn to try the case.
It is contended that the information in this case does not charge that the person assaulted died within a year and a day after the infliction of the wound. The charging part of the information is as follows:
“The said William E. Stillinger, the prosecuting attorney as aforesaid, by this information accuses the said defendant, Lorenzo Payne Sly, of the crime of murder, committed as follows:
“That the said Lorenzo Payne Sly, at the county of Latah, state of Idaho, on the twenty-seventh day of January, A. D. 1904, then and there beina, did then and there willfully, unlawfully and feloniously and of his deliberately premeditated*112 malice aforethought, kill and murder one John H. Hays, a human being, by then and there willfully, unlawfully and feloniously, and of his deliberately premeditated malice aforethought, shooting at and against the body and person of the said John H. Hays, with a certain gun then and there loaded with gunpowder and leaden bullet, and which said gun he, the said Lorenzo Payne Sly, then and there held in his hands.”
It is claimed by appellant that under the statute of this state, an indictment or information should charge the offense with all the strictness and particularity required at common law, and in support thereof cites People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; People v. Wallace, 9 Cal. 30; People v. Cox, 9 Cal. 32; People v. Lloyd, 9 Cal. 55; People v. Coleman, 10 Cal. 334; People v. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Cronin, 34 Cal. 191. It seems to us, however, that section 7675, Bevised Statutes, which provides that “all the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code,” is a sufficient answer to this contention. That section was evidently adopted for the purpose of abrogating the strictness of the common-law form of indictment. Sections 7677, 7678 and 7679 of the statute provide what an indictment or information must contain and the form thereof, and are as follows:
“Sec. 7677. The indictment must contain: 1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.
“Sec. 7678. It may be substantially in the following form: The state of Idaho against A. B., in the district court of the -judicial district, in the county of-,-term, A. D. eighteen-:
“A. B. is accused by the grand jury of the county of-, by this indictment, of the crime of (giving its legal appellation, such as murder, arson or the like), committed as follows:
*113 “The said A. B., on the-day of-, A. D. eighteen -, at the county of- (here set forth the act or omission charged as an offense).
“Sec. 7679. It must be direct and certain as it regards: 1. The party .charged; 2. The offense charged; 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”
These provisions of the statute were adopted by the territorial legislature in 1864, and were taken from the California code. Prior to the adoption of these statutes the supreme court of California had considered the question of sufficiency of indictments, and in People v. Aro, People v. Wallace, People v. Cox, and People v. Lloyd, supra, held to the strict rule of the common law, and under the doctrine announced in those cases there is no doubt but that the information used in the case at bar would be held insufficient.
In People v. Stevenson, 9 Cal. 274, the court began to relax the rule announced in the Aro case, and continued to manifest evidences of a desire to depart from the severity of that rule, as will be seen from an examination of People v. Dolan, 9 Cal. 576, and People v. Judd, 10 Cal. 507.
In People v. King, supra, the court reviewed a number of the foregoing authorities and in a large measure repudiated the doctrine previously announced to the effect that the strictness of the common-law rule should be followed in that state, and held that the rules of pleading in criminal eases were prescribed in the statute, and that a compliance therewith was sufficient. This latter case was followed in People v. Cronin, supra, and thai ease was in turn cited with approval in People v. Murphy, 39 Cal. 55, and People v. Sanford, 43 Cal. 29, in both of which latter cases the court passed upon substantially the same question involved in the case at bar. In People v. Murphy, the charging of the indictment was as follows: ‘ ‘ The said John Murphy, on or about the thirteenth day of October, A. D. 1868, at and in the county and state aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder Patrick Murray,” etc. Upon the sufficiency of such
In People v. Sanford, the indictment was as follows: “The said Cyrus Sanford is accused by the grand jury of the county of Los Angeles, state of California, by this indictment, found this eighth day of September, A. D. one thousand eight hundred and seventy, of the crime of murder, committed as follows : The said Cyrus Sanford, on the fourth day of September, A. D. eighteen hundred and seventy, at the county and state aforesaid, did feloniously, willfully, maliciously, and of his malice aforethought, shoot, kill and murder one Enoch Barnes, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the people of California.” And in passing upon its sufficiency, the court said: “It is objected that ‘the indictment does not sxate that Barnes died within a year and a day, ’ etc. This objection rests upon the circumstance that the time of the death is . ot specifically stated; and if diere be anything in the objection, it might have been extended further, as it is not specially stated that Barnes died at all. But the averment in substance is that he died on the fourth day of Septem
This latter rule seems to have been followed by the California court continuously ever since the Murphy and Sanford cases. It is true that at the time of the adoption of these statutes by the Idaho legislature, the California court was still adhering to the strict rule announced in the Aro case, though manifesting evidence of an intention to veer toward the more liberal rule. It is true'that under the recognized rule of statutory construction, where a statute is adopted from another state, the construction previously placed upon it by the courts of that state is also adopted. While the question before the court has not previously been passed upon in this state, still in every case where the sufficiency of an indictment or information has been under consideration, this court has adopted the liberal construction and held that the indictment or information was sufficient where it charged the offense in the language of the statute defining it. We do not find this court citing the Aro case and other cases following the rule there announced in any instance; but, on the other hand, we find as early as People v. Butler, 1 Idaho, 231, the court announcing that a description of the offense in the language of the statute is sufficient, and siting People v Cronin in support thereof.
Again, in People v. Walters, 1 Idaho, 271, the court announced the same principle, and cited People v. Cronin and People v. King as authority. Territory v. Evans, 2 Idaho, 425, 17 Pac. 139, State v. Elington, 4 Idaho, 529, 43 Pac. 60, State v. Alcorn, 7 Idaho, 599, 97 Am. St. Rep. 252, 64 Pac. 1014, State v. Keller, 8 Idaho, 699, 70 Pac. 1051, and State v. Shuff, 9 Idaho, 115, 72 Pac. 664, are all to the same effect.
It is clear to our minds from the foregoing authorities that it has never been the intention of this court since its organization under the territorial government to the present time, to follow the doctrine laid down in the Aro and other early California cases in passing upon the sufficiency of an indictment or information.
As to the separation of the jury the facts are substantially as follows: After the jury was accepted and sworn to try the case, and during the progress of the trial and at a recess of the court, the juror Smith, who was suffering from blood poison in the arm, went, in company with the bailiff, to the hospital and had his arm treated and dressed. It appears that the bailiff was keeping the jury at the Hotel Del Norte, a distance of about one-fourth of a mile from the hospital. When the juror Smith asked the bailiff to go to the hospital Avith him for the purpose of having his arm treated, the bailiff left the remaining eleven jurors in their room at the hotel and locked the doors, and then took the juror Smith to the hospital, and was gone for a period of about fifteen minutes, as shown by the numerous affidaAdts filed and considered upon the motion for a new trial. The prosecuting attorney filed the affidavits of a number of jurors in which they testify that the eleven jurors were left in their room and the doors were locked by the bailiff
The foregoing are the principal facts constituting the separation of the jury complained of in this case.
The appellant contends that under the statute of this state whenever the "eiendant in a ease of homicide shows that a separation of the jury has taken place after they have been sworn to try the case, that such fact is error per se and ground for reversal of a judgment of conviction. By the provisions of section 379 of the Criminal Practice Act adopted by the territorial legislature in 1864, it was provided that “in all cases on the trial of an indictment for felony the jury sworn shall be kept together until they are finally discharged by the court from further consideration of the cause.” This section was re-enacted as section 377 of the Criminal Practice Act of 1875. As may be seen from this statute, it was made the duty
It should be observed that in the California cases discussing this question reference is had to separations of the jury after the cause has been finally submitted to them. Counsel for appellant places great reliance upon People v. Adams, 143 Cal. 208, 101 Am. St. Rep. 92, 76 Pac. 954, 66 L. R. A. 247, a recent case from the California court. One quotation from that opinion is sufficient to show that they hesitate to lay down the strict rule that every separation is per se reversible error: “The circumstances of a separation in a particular case,” says Justice McFarland, “might possibly be such as to themselves show that no prejudice to the defendant could have resulted, and in such case a court perhaps would be warranted in upholding the verdict, notwithstanding the direct violation of an express provision of the code ■intended for the protection of a defendant, but we need not pass upon that question, for it does not arise in the case at bar. ’ ’
In State v. Levy, 9 Idaho, 483, 75 Pac. 227, this court had occasion to consider a similar question, and held that the misconduct or separation of the jury complained of in that case did not constitute such misconduct as was contemplated by the statute, and therefore refused to grant a new trial on that ground. The facts disclosed in that ease failed to show a separation of the jury as contemplated by the statute. The court there cited People v. Bemmerly, supra, and People v. Bush, 68 Cal. 623, 10 Pac. 169, in support of the conclusion reached. The court’s attention, however, was not called to the difference between the California statute and our own on this subject, nor was our attention called to the fact that our statute upon this subject was not taken from the California statute. Had our attention been called to the difference in the
Rules amounting in substance to the same as above announced have been followed in Nevada (State v. McMahon, 17 Nev. 365, 30 Pac. 1000), Colorado (Chestnut v. People, 21 Colo. 512, 42 Pac. 656), Kansas (State v. Gould, 40 Kan. 258, 19 Pac. 739), Missouri (State v. Schmidt, 137 Mo. 256, 38 S. W. 938), Texas (Stewart v. State, 31 Tex. Or. Rep. 153, 19 S. W. 908), Wisconsin (Hempton v. State, 111 Wis. 127, 86 N. W. 596), Indiana (Cooper v. State, 120 Ind. 377, 22 N. E. 320), Mississippi (Carter v. State, 78 Miss. 348, 29 South. 148), Illinois (Gott v. People, 187 Ill. 249, 58 N. E. 293), and Montana (Territory v. Hart, 7 Mont. 489, 17 Pac. 724).
Applying the foregoing principles to the facts disclosed in this ease, we think the ends of justice have been attained, and that there is no such error disclosed as to demand a new trial. The state has established, we think, clearly and beyond all reasonable doubt that the jury have been free from outside influences and communications; that the juror Smith’s absence from the other jurors was caused purely by his sickness, and was solely for the purpose of administering to his necessities, and that in the meanwhile he conversed with no one concerning the case, and was not so situated as to expose him to any pressure or influence from the outside; that the irregularity in the conduct of the juror Jain, who stepped aside from the remainder of the jury to inquire for his mail, did not expose him to any influence that could have prejudiced the defendant in any manner whatever.
We are of the unanimous opinion, however, that the conduct of the jury bailiff in this case is reprehensible and calls for severe rebuke. It is getting to be too frequent in this state that in criminal cases appealed to this court it is shown that conversations and communications have taken place with juries or that mail has been delivered to them, or that some temporary separation has taken place. These things should not be allowed, and if jury bailiffs who permit them were fined or imprisoned for such misconduct, there would be less cause for complaint on appeal in these respects. In State v. Bland, supra, we had occasion to express our views on a kindred topic, but that warning does not seem to have in any way diminished the frequency of these occurrences. There can be no occasion for a juror in a capital case going to the postoffice to inquire for his mail, for the reason that jurors required to be kept together should not be permitted to receive mail during such time or until it has first been submitted to the court and counsel for their examination. (State v. Bland, supra.) And again, in this case, while it is clear to our minds that the juror Smith needed and required medical attention, and it was proper for him to have such, it was
As before observed, while some irregularities have occurred, we think the ends of justice have been met in this case, and the judgment will therefore be affirmed.
