98 P. 413 | Idaho | 1908
The defendant was tried on the charge of murder, and was convicted of manslaughter and sentenced to serve a term of three years in the state penitentiary. He appealed from the judgment and an order denying his motion for a new trial, and that appeal was subsequently dismissed by this court. (State v. Squires, ante, p. 327, 97 Pac. 411.) He again appealed from the judgment and order. Counsel for the state moved to dismiss the appeal from the order denying the motion for a new trial and to strike the statement of the case from the record; but subsequent to the argument and submission of the case, the attorney general has withdrawn that motion.
Appellant assigns the action of the court in overruling his demurrer to the information as error. The principal objection made to this information is directed against the charging part thereof, wherein it is alleged that the defendant did “then and there, wilfully, unlawfully and feloniously in a manner unknown, strike, beat, wound and ill-treat the body and person of Robert Clemm, a human being; by reason whereof the said Robert Clemm sickened and languished with mortal sickness and feebleness of body,” etc., and thereafter, within a year and a day, died from such injuries.
Appellant insists that in order to make the information good the prosecutor should have charged the instrument with which the wound was inflicted, or at least its general character and the nature of the injury that was inflicted thereby. We cannot sustain that contention. The rule of liberal construction of indictments and informations has been adopted in this state. (State v. Sly, 11 Ida. 110, 80 Pac. 1125.) Under that rule this information is sufficient. The acts charged as constituting the offense are stated in “ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” (Sec. 7677, Rev. Stat.) The defendant was in no respect misled as to his defense by the language used in the information.
It is next insisted by appellant that the court erred in refusing to admit the deposition of one L. B. Martin, which was taken at the coroner’s inquest. Upon the trial it was ad
Under the provisions of see. 8382, Rev. Stat., the coroner is required to take the testimony of witnesses examined by him in writing: By sec. 8383 it is made the coroner’s duty in the event any person has been arrested, charged with causing the death of the deceased, to transmit the depositions to the magistrate before whom the prisoner is held, and it is thereupon made the duty of the magistrate to transmit such depositions, along with the depositions taken in his court, to the clerk of the district court. The chief reason that exists for not allowing the introduction of depositions taken at the coroner’s
The principal and real contention made by appellant in this case is that the evidence does not support the verdict and judgment, and that there is no evidence whatever in the case to justify a conviction. We are fully satisfied of the correctness of this contention. We have read and re-read the whole of the evidence, and nowhere find anything that would to our minds warrant a conviction of the defendant or that can be said to even constitute the slightest conflict of evidence on the question of his guilt. The evidence is entirely circumstantial, and is in no respect inconsistent with the innocence of the defendant; but, on the contrary, is entirely and wholly consistent with his innocence.
In State v. Seymour, 10 Ida. 712, 79 Pac. 825, in considering the sufficiency of the evidence, we said: “The undisputed evidence in this ease is not only entirely consistent with defendant’s innocence, but inconsistent with his guilt, and if the settled rules of law uniformly recognized in the trial of criminal cases are to be applied in this case, it becomes our duty to so declare and grant the defendant a new trial.” That language is equally as applicable in the present case. In this case the defendant is a colored man. He owned and conducted a restaurant in the town of Troy at the time of the death of Clemm. Clemm was an habitual drunkard. During his sober periods he had been working for the defendant waiting on tables. The defendant had repeatedly befriended him, and when he was drunk would either send him home or take him to some place where he could lie down until he got sober. On the night of this occurrence, defendant went into his restaurant, after an absence for a short period, and found Clemm in a drunken stupor lying on one of the tables in a little room or box on one side of the dining-room. He also found two men and a dissolute woman there drinking and quarreling and using vile and obscene language. He ordered
The condition of the record in this case has caused the court much annoyance and unnecessary labor, and had the attorney general not withdrawn his motion, we would not, perhaps, under the statute and established rules of practice, have been able to grant the relief to which the defendant is clearly entitled.
The judgment in this ease is reversed and a new trial is granted. In view of the fact that the defendant has now served in the county jail what would amount to at least half his sentence, and that the evidence which has been produced is insufficient to support a verdict and judgment against him, it is hereby advised that the district court, or judge thereof, make an order discharging the defendant, unless the prosecuting attorney, within thirty days after the going down of the remittitur in this case, makes a showing to the court, or judge thereof, that he has other and additional material evidence in the ease that was not produced on the previous trial.