State v. Swenor

SHEPARD, J., and C. DONALDSON ex rel. of Oklahoma In Skinner JJ., concur. McQUADE, further Williamson, supra, Douglas Justice of dimensions the constitutional addressed specially) : BAKES, (concurring Justice of crimes: legislative classification I concur in the result. view “Only recently we reaffirmed opinion in State my dissenting of view protection clause does equal that the recognizing prevent legislature from appellant’s brief be noted that it should * * * Con ‘degrees evil’ that ‘the of as re- assignments error contained no of require things which stitution does not this Court quired by 41(2), Rule and that opinion to be are different in fact or an permitted hearing at the the case of though they as were treated law to set appellant’s brief oral amendment Thus, here we had same.’ if out of error. one question as to a State’s of classification crimes, larceny, such embezzlement be question substantial federal omitted; emphasis raised.” (Citations

added.) 316 U.S. at S.Ct.

1113.

Thus, although challenge to the constitu-

tionality defining of larceny of statute fixing punishment

livestock and therefor Plaintiff-Respondent, Idaho, STATE has previously presented, not been principle of according legislature wide in classifying Defendant-Appellant. degrees

latitude crimes and SWENOR, Patricia upheld evil this court No. 11250. analogous Ash, Ida- contexts. State v. of Idaho. damage]; ho (1971) [jail Feb. 1974. parte Knapp, Ex Evans, 411 (1953) [escape], and Rehearing On Nov. (1952) [lewd lascivious conduct awith minor]. legislature specifically desig larceny

nated of livestock as an “evil” to regulated penalties with stricter than types larceny. separate

other clas larceny

sification of bears a livestock relationship protection

reasonable industry while safeguard difficult

marking experi a class of offenders which deserving special

ence dictates treat find no

ment. merit in the defendant’s We specific

argument legislature’s larceny

classification of for livestock with penalties

resulting harsher in relation deprived degrees larceny him rights.

any safeguards constitutional is affirmed. conviction Park, Anthony Atty. Gen.,

W. Idaho, Vasseur, Atty. Thomas M. Asst. Gen., Lee, Atty. Deputy and William F. Gen., Boise, plaintiff-respondent. for McFADDEN, Justice. defendant-appellant, Patricia charged with crime of arson degree. first She was tried before a guilty. imposition and found Prior to sentence, the defendant for a new moved trial which was denied the trial court. judg- Thereafter the trial its court entered imposed ment of conviction and a three year sentence. the trial court suspended of the execution sentence placed probation for defendant on years. appealed three The defendant judgment from the from of conviction and denying order her motion for a new trial. error, assignments her the defend-

ant contends the evidence insufficient conviction, sustain her inasmuch as the principal against witness the defendant an accomplice and there insufficient cor- roborative evidence to sustain the convic- tion. I.C. 19-2117.1 She contends trial court motion granted should have her acquittal (I.C.R. 29) case; made at'the close of the state’s granted her mo- should have lastly for a new trial (I.C.R. 33), and given the trial court her should have requested instructions nos. 1 and 5. outset, At disregarding for the mo- evidence, ment corroborating issue there is competent sufficient sustain this July conviction. About 1972, Mrs. Swenor husband leased her a farmhouse a Mr. and Mrs. from Schneidmiller. Within the month after taking possession problems arose between concerning and their Swenors lessors rent and keep failure Swenors Falls, Judd, defend- F. Post house in a neat condition. Schneid- James ant-appellant. millers had an eviction notice served on Testimony accomplice, “I.C. 19-2117. tends to connect n —Corroboration.—A conviction can offense; not be fendant with the commission of the accomplice, sufficient, had of an unless and the if it corroboration is not merely evidence, offense, shows the he is corroborated commission of the itself, and the aid without or the circumstances thereof.” “ * * * premises during person who left the concerned Swenors crime, August, first week in commission of a whether he di- 1972. The Swenors days stayed rectly participates with two children three in the commission near friends, “camped constituting some and then out” the act or aids the offense river, awaiting commission, oc- or, time could abets its cupy place being present, encouraged another had rented. has advised or 215, its at 142 commission.” 65 Idaho LaFountain, principal witness Verna the P.2d at 585. prosecution, for the testified that she had defendant, friendly with and Gonzales, also, 152, See State v. 92 Idaho driving while the of them were around two Emmons, 438 P.2d (1968); 897 State v. 94 automobile, asked Verna’s the defendant 605, (1972); Idaho v. help Verna to her in a to burn the scheme 218, Sensenig, 95 Idaho Schneidmiller house. testified that Verna (1973). Under this definition La- Verna during evening August early 12 and accomplice. Fountain was an Under I.C. § 13, morning August she hours of drove 19-2117,to sustain this conviction her tes- defendant to a and field behind the house timony by must be corroborated other evi- let the defendant The defendant had out. Brown, 576, dence. In State v. 53 Idaho previously put gas a Chevron can Ver- 26 P.2d 131 (1933), the court discussed car. stopped, na’s After car the defend- type acceptable corroborative evidence stepped car, ant from the can gas took the as follows: unsuccessfully tried to start the field merely “The requires law that, After request, fire. at defendant’s must be testimony corroboration of the Verna then drove the defendant accomplice a before conviction house, driveway leading backed into the can (Section 19-2017, had. be Idaho and the garage, defendant left the car. Code Annotated.) Under said section again gas The defendant took the can with corroborating testimony need tend sprinkled gas her and on a in the mattress to connect the defendant with the crime. garage. Verna further she saw testified may It slight. McLean, be (People v. match, light throw on 480, Cal. 32). 24 P. And only go it need the mattress garage and then shut to one material fact. (State v. Knudt- left, They door. but later drove son, 524, 11 Idaho 226.) 83 P. And the adjoining house and garage and saw it on may corroboration entirely be circum- fire. Gillum, (State 457, stantial. 39 Idaho Swenor, defendant, Mrs. See, also, Orr, 228 P. 334. two of her children testified that she had Idaho, 452, 679; State v. Whis- gone to evening question bed on the ler, 520, 32 Idaho 845.)” 185 P. Ida- participated never in the activities de ho at 26 P.2d at 133. scribed re Verna. the jury Continuing, 585-586, at 53 Idaho defendant, against solved this issue quoted the court Gillum, from State v. most, all that can be said is ques that a 39 Idaho (1924), 228 P. 334 as fol- fact resolution t he was lows: Darrah, presented. point “Where the circumstances to the (1968). guilt accused, independent of the Concerning the issue as to whether accomplice’s testimony, such circumstan- there was sufficient corroborative evidence tial may be a sufficient corrob- of Verna LaFountain’s to sus oration of accomplice’s testimony to conviction, tain this t his court in State v. sustain a necessary conviction. It is not Gilbert, of an be “Accomplice” defined corroborated in every Any detail. cor- Goldstein, legitimately tending People Cal.App. (1958); roborative evidence 2d defendant with com- connect the P.2d 581 Harper, may mission of a crime be sufficient 25 Cal.2d Harmon, conviction, although standing also, (1945). warrant See proof sufficient Mont. itself it would P.2d 128 guilt.” defendant’s witnesses, police Another of the state’s 464,228 P. at 336. officer, testified that at time the arrested, Larry It that there is our conclusion fendant “See, her, sufficient to sustain defendant’s stated to I corroborative evidence husband you they you in its case of told The state catch what conviction. you gallon gaso into This fered evidence a Chevron did.” statement was made can, being presence reply line was identified defendant’s and no by similar to one the defendant. made it the by the used to the defendant. Under of gasoline can was taken from one circumstances this statement cor- This would be Larry defendant, the Swenor roborative The how- by Swenor’s vehicles evidence. ever, by that given argues and the officers him. this could consid- to not be by a ered it this can examined as corroborative evidence contents of were because laboratory by accomplice the was made an and had to technician who testified also gas though be fluid it identical to white ob corroborated. Even the defend- was ant objected used as a to her tained from a Chevron dealer the statement made husband, sample. objection control was overruled court, is of error Another of the state’s witnesses testified predicated point. on this evi- There is no that Mrs. after receiving dence in the Larry record that Swenor notice, stated, going eviction “I’m to burn participated burning building in the down,” referring the son of a bitch to the for which defendant was nor is convicted, Moreover, Schneidmillers’ the de- house. any Larry there ad- evidence Swenor fendant admitted under examination direct encouraged or vised the defendant to com- day that on the eviction received mit this crime. It is our conclusion statement, although she notice made such Larry an was not Swenor explained she in a of that was said fit argued inappli- rule defendant statement, temper. although im- This its cable under these facts. defendant, port challenged by can was chief, At the state’s close of the case considered corroborative evidence. the defendant her motion for ac- by a have been ac- Statements defendant quittal pursuant cepted as to Idaho Criminal Rules corroborative evidence Brown, (I.C.R.) rule 29.2 The trial denied court circumstances. motion, Larsen, pre- then the defendant P.2d sented case. the close all evi- her At of Corrob- dence, motion by a renewed her may be furnished defendant’s oration for acquittal. again denied The trial court own words or v. Teitel- conduct. baum, It is Cal.App.2d motion. conclusion of may judgment granted, the defendant ac- the state is not 2. “I.C.R. 29. Motion for of quittal. (a) offer evidence. Submission Motion Before — * *_ * (b) Jury. of the defendant The court on motion ** entry (c) *.” motion order its own shall judgment acquittal of- to Federal Crim- one or rule is almost identical of of more This See, indictment, Prac- charged 8 Moore’s Federal inal Rule fenses information seq. Rev.1973) (Thompson complaint et on either side 29.01 §§ after evidence tice (Thompson See, Practice Moore’s Federal is closed the evidence is insufficient to sus- if Rev.1973) of the defendant 29.05 effect tain a of such or offenses. as to conviction offense putting denial of his motion in evidence after ac- If a motion for defendant’s government’s quittal case. evidence offered close the close argues denying defendant in her brief effect not err trial court did that the accomplice and Larry evi- sufficient Swenor as there was motions these corroborated. pre- hence his had to be jury, to submit to dence any the record is devoid evi- opinion, there in this viously pointed out connecting to the acts for which dence him sustain the verdict sufficient evidence find no error the defendant was tried. We returned. Nor give these instructions. refusing verdict, the de- Following entry re- any error in the trial court’s for a new trial on fendant moved grant fusal to the defendant’s motion give failed to grounds that the trial court trial, premised new in the trial which was on circumstan- requested her instructions give court’s these two instruc- refusal necessity for cor- tial and on the tions. an accom- roboration judgment of is af- plice. the trial court firmed. requested instruc The defendant’s to the on circumstantial evidence was that where circumstantial evidence

effect SHEPARD, J., DONALDSON, C. irrec upon by is relied it must be state J., concur. theory of the defend

oncilable with BAKES, (dissenting): in past ant’s such an innocence. In the Justice applicable to struction has been held disagree majority’s I do not with the solely upon cases where the state has relied analysis relating of the law to the suffi- circumstantial evidence the basis for as ciency required of evidence to corroborate Davis, v. 69 Idaho conviction. State However, testimony accomplice. of an Puckett, (1949); specifically major- I must dissent from also, See First, ity opinion major two for reasons. Reynolds, Ariz. my opinion by it is that the statement made Downer, Cal.2d (1969); appellant’s cannot husband be used evi- Cal.Rptr. (1962); corroborating dence White, Mont. and, it; accomplice as majority uses State, (1965); Ballinger P.2d secondly, prejudicial that statement was so (Wyo.1968). Here the state submitted appellant’s motion for a new trial evidence, both direfct and circumstantial granted. should have been and hence there was no error in the trial Harry B. The trial court allowed Officer refusing give requested to this in Capul testify objection that when over to struction. stated, appellant he her husband arrested in requested Defendant’s other “See, you for you they I told would catch struction is as follows: discussing this state- you what did.” In ment, opinion majority states: accomplice

“You an are instructed that cannot, declarations, by either his own witnesses, po- of the state’s “Another himself, otherwise, can corroborate nor officer, the time the lice testified that at accomplice an corroborate an accom- arrested, Larry defendant was plice.” her, husband stated to defendant’s ‘See, you for you told would catch I We find error in no the trial court’s refus- statement was made you al what did.’ This this give The trial court instruction. presence reply no by its in the defendant’s defined the term “ac- instructions by defendant. complice” correctly was made to it Under and also stated the law circumstances this statement would concerning necessity of corroboration defend- accomplice. Giving of an corroborative evidence. The ant, however, that this could requested, argues the instruction under the facts case, evidence jury. of this have be considered as corroborative confused placed arrest be- because was made an under Officer Stuker Even since and also had to be corroborated. fore the statement was made. Ever law, though the to the it has objected Miranda2 been settled husband, practice, statement made hopefully her settled that a defendant objection placed to be overruled who has been under arrest is court, is predicat- rights error advised his under the United Constitution, point.” (Emphasis added). right ed on this including States his by the remain silent. rule announced Although the record does not indicate the attempts majority which to construe appel- court’s overruling trial reason for admission, silence as an and thus corrobor- objection testimony, lant’s the state- evidence, ating flies in the face of clearly hearsay. Gayhart ment right. constitutional Schwabe, 354, 330 Bell, My for reason with disagreeing Handbook of Evidence second for p. Lawyer, majority the Idaho 2d Ed. that I feel that the inadmis- prejudicial such was Even if the sible statement was so that a inadmissible. proof statement had new granted. been offered not trial should have husband, therein, alleged by appellant’s facts stated as a tacit but statement appellant’s “See, guilt upon you they admission of I you based told would catch statement, did,” you silence the face of this the what certainly must have objection weighed heavily jury. should have been Un- sustained. minds of the effect, der certain circumstances the failure to what the trial ma- court and the deny jority did, incriminating statements made in a of this Court was to let the hus- presence may operate “point defendant’s as an ad- band at his accusatory finger” although against mission and be received in wife other cases we refuse in subsequent prosecution. the accused allow such action because of the hus- Wharton, Ed., (13th privilege. 19-3002; Criminal Evidence band-wife I.C. I.C. § 1973), 9-203; p. to come v. McGonigal, proper within that rule a (1965). must 403 is actuality, foundation P.2d 745 In the it police laid showing (1) permitted that statement was point the officer who is the incriminatory accusatory; (2) accusatory finger that husband’s at the wife. made presence hearing was within the damning What evidence could be more defendant; the (3) of fundamentally prejudicial that the defendant more a de- statement; understood the that the cir- (4) fendant than to stand accused one’s own spouse. cumstances were such damage that he have such could naturally statement; denied (5) the have is on a incalculable.

that not under arrest at was majority refuses weigh the ef- the time the statement was made.1 fects of this statement and the trial court’s The record in overruling appellant’s the instant case fails to action in objection to requisites establish that were trial, above the statement at the ground on the assignment met. There was no established that predicated foundation “no of error is 3 police ap- point,” officer who testified that on this though even that was issue pellant statement, heard the where length she in oral argument discussed before located at the time statement was this To Court. the constitutional overlook Moreover, appellant made. had been rights of a criminal the ten- defendant on 700, Evidence, Arizona, 436, §§ 1. 3 Wharton’s Criminal v. Miranda 384 S.Ct. U.S. 86 701, 702, Ed.1973; 704, 1602, (1966). 703 & Orser 13th 16 L.Ed.2d 694 (5th States, 580 Cir. v. United 362 F.2d 41(2), Appellate Supreme 3. Rule Rules of the 1966) ; Poynter, 504, 34 Idaho Court of Idaho. aff’d, rehearing; 561, (1922), 208 P. P. Ridley, 671, Cal.Rptr. v. 63 Cal.2d 796, assignment 64, ground 817, (1938), that was no uous there S. 82 L.Ed. 1188 S.Ct. Supreme de- appears to me to be a manifest the United Court overruled of error States process, especially years jurisprudence by in view of one de nial of due hundred application diversity history ciding of this in cases the substan Court’s ap appellate pro- rules of tive law of the state trial must be that rule and other plied, Haggard, In had not been raised cedure. issue 249, parties appellant-defend- courts or before either the lower also, Supreme Haggard of assault with Court. Court ant was convicted 454, Boynton 457, 81 weapon night- Virginia, deadly burglary 364 U.S. 182, 206, in order to avoid S.Ct. 5 L.Ed.2d During time. the course of issues prosecution, considering cross-examination of two broad constitutional concerning presented by appellant questions which were the appellant, questioned pre- petitioner, a statu his his at the considered and resolved failure to disclose alibi liminary appellant tory petition issue not hearing. Counsel for spite Supreme ex- objection 23(1)(c).4 failed to raise an to the cross Court Rule Also, States, ruling amination at the time In Pollard United of trial. U.S. 354, upon appellant’s he contention that 77 S.Ct. 1 L.Ed.2d prived of a fair trial state- Court considered raised for because of the certain issues ment, this the first time in the brief on merits. Court stated: Likewise, Airlines, Kilberg v. Northeast “Counsel for defendant failed to raise 9 N.Y.2d 211 N.Y.S.2d 172 N.E.2d objection to the at the cross-examination Ap New (1961), the York Court of ordinarily time of trial and this Court peals announced in conflict-in-laws assignment would not consider cases, it longer would no follow the law- obligation error. of-the-place-of-the-tort Again, rule. state to that defendant see receives issue was not before Although the court. primary fair trial and fundamental. long espousing line of cases State, Pulver v. rule there must be an (1970) quoting McIntosh v. Common specific error on a issue before this Court wealth, Ky., (Ky.Ct. 368 S.W.2d 331 issue, will rule on that there are nu also App.1963). er case fundamental merous cases wherein this disre Court has ror in a criminal case the garded See, Webb, the rule. may though consider the same even ; Idaho (1974) Paullus v. objection had made at of trial. time ; Liedkie, (1968) People, Shier Colo. Lake, City Spirit McLean v. Cummings, (1947); State v. 779, ; Rollis, (1967) Garren v. 522, Haw. (1967); There Bunn, ; (1968) 50 Haw. appellant’s have been instances wherein Rodriguez, Cal.App.2d briefs this have been submitted to Court Redmond, and, any assignments without of error (1968).” 75 Wash.2d suggestion of the Clerk of office at 262. Supreme Court that such briefs did not Deciding sponte nothing sua issue is comply with Rule amended briefs have judicial system. new to the American setting assignments been out submitted Many landmark decisions have ren 54(c) error. Under Rule the Idaho deciding par dered not issues raised Procedure, Tompkins, Rules of which this Court Ry. ties. In Erie 304 U. Civil Co. every subsidiary review, question “(c) questions presented deemed include to fairly comprised Only questions expressed therein. and circumstances terms fairly unnecessary petition comprised in detail. The set forth the case but without n question therein be considered the court.” statement of a will will pro- adopted purpose pellant’s for the an ac- in 1958 case. Round two will be moting justice simplifying proce- under the Uniform Post Conviction Act, dures, grant seq. et on “every final shall Procedures I.C. 19-4901 ground appellant’s constitutional party relief in whose fa- to which rights if due entitled, vor it is rendered is even were violated because of the process party argument in his ground has not demanded such relief and on the assign competency able un- for failure pleadings.” I have never been of counsel why justice” the “interests of re- as error the defect in this case.5 derstand obvious grant proves relief quire the trial courts to If round two unfruitful for the fendant, petition party which the facts a is then round three will be a show entitled requested regardless of he has in whether the federal courts under 28 U.S.C.A. § pleadings, in his and the same “interests of 2254 to set aside the conviction. State justice” require this Court to refuse courts often bemoan the intervention of cases, party so grant the relief to which entitled the federal courts state but long prejudicial errors, highly he has not demanded such relief such as because e., appeal, assignments pleadings his on i. the admission into the state- evidence of assignments allegedly by appellant’s of error are ment hus- of error. While made helpful band, having reasonably issues but remain uncorrected in courts it state advance, rigidly should is probably good thing clarified that federal courts not become a which this Court are vehicle available to correct such mistakes. regresses century to the 19th technicalities point. One Although final I concur pleading system. of the commonlaw majority’s analysis of the state of the

Further, has relating the fact that Court law to instructions on circumstan- granted evidence, failure to as- tial occasion relief from I feel in which cases points sign as error under the doctrine there is both direct and circumstantial evi- error, dence, permitting practice oral fundamental better be to in- would assign- amendments of briefs to struct include on the distinction between error, ap- sponte, ments of or sua direct and circumstantial evidence.6 pear to be violation Article Section For these reasons I would reverse the 26, of the Constitution which re- Idaho. judgment of conviction and remand the quires relating gen- all laws to courts to be case for a new trial. Also, eral and uniform. the indiscriminate application of error rule J., McQUADE, concurs. process as much a denial of due under as is indiscrim- federal constitution ON REHEARING application penalty inate of the death recently found the United States McFADDEN, Justice. Georgia, in Furman v. Court L.Ed.2d 346 U.S. S.Ct. petition rehearing in the above principle (1972). The is the same. reargued. granted entitled action was record, today majority’s I fear that the decision con- reviewed the only ap- arguments coun- the conclusion round one sidered incarcerated, imposed presently quences appellant the basis of will be on is not 5. That (Emphasis added). challenged import probation, in view of conviction.” is of no but State, decision Smith this Court’s (1971), example is con- and the instruction P.2d 6. An of such an Idaho Instructions, Jury holding Supreme Crimi- tained California Court United States p. edition, 2.00, York, nal, 1970, 21. at 88 S.Ct. revised v. New 392 U.S. 3d Sibron Fed.Jury Instr., & See also 1 Devitt Blackmer wherein 20 L.Ed.2d 917 11.02, p. Ed., Pattern “a case 208. that criminal 2d ruled January Jury (effective Instructions, No. 113 is no that if it is shown is moot legal 1, 1974). any possibility eonse- collateral sel, the views and we continue to adhere to

expressed and the conclusion reached opinion.

our earlier DONALDSON,

SHEPARD, J.,C.

J., concur. BAKES, strongly

McQUADE JJ., expressed in dissent

adhere to the views

previously issued. H. of Dora In the Matter of ESTATE Ware, O’Connell, Lewiston, Stellmon & Christie, PIERCE, Dora H. a/k/a defendants-appellants. Deceased. Keeton, Lewiston, Al- Paul C. Dennis L. Representative CLARK,

Paul T. Personal bers, Grangeville, plaintiff-respondent. Pierce, Deceased, Estate of H. Dora Plaintiff-Respondent, McFADDEN, Justice. creditor, Dorendorf, allegedly Blanche Polly al., A. KNOTT et Defendants- Appellants. claimant, petition tort dis- filed her County seeking trict Nez Perce No. 11284. Pierce, also have the estate of Dora H. Supreme Court of Idaho. (hereinafter known as Dora H. Christie Nov. decedent), probated. referred to as the among petition alleged, it was facts, died on November that decedent years; age at the death, time of her decedent was domiciled County, Washington, Spokane, Spokane and that she was survived various heirs, defendants-appel- named who are the appeal. petition also al- lants on this proceedings is in leges that for the venue repre- County; personal Nez Perce state; appointed for this sentative of this estate and that “The total amount of decedent’s will not exceed amount petitioner liability.” automobile appointed the prayed that Paul Clark be T. representative personal of the estate. No- hearing tice of issued. defendants-appellants (named heirs) quash petition dismiss the moved to or to un- and notice filed Blanche Dorendorf pon grounds. The trial various appointed nied the Clark as the motion

Case Details

Case Name: State v. Swenor

Court Name: Idaho Supreme Court

Date Published: Nov 18, 1974

Citation: 528 P.2d 671

Docket Number: 11250

Court Abbreviation: Idaho