23 P. 537 | Idaho | 1890
Lead Opinion
The appellant was indicted for unlawful fishing alleged to have been done in. Bear Lake county. At the
The appellant has assigned numerous alleged errors based upon the ruling of the court on the introduction of the evidence. All such alleged errors must be considered in the light of our statute, adopted from the California code, which is to the effect, that ail errors and mistakes in proceedings which do not prejudice the party in his substantial rights must be disregarded. Under this statute, which seems without ambiguity, it has frequently been held that errors which are not shown to have damaged the party complaining must be disregarded. The criticisms are largely to the admission of questions to which answers were not made, or were not against appellant, or were stricken out. There was also testimony to the effect that appellant had the reputation of being a fisherman. It is not conceded that a party can be convicted of an offense by testimony of general reputation that be has committed it; but the appellant was not charged with any offense of being a fisherman, nor is it an offense, nor does testimony of his reputation as such damage him. We do not think any of the alleged errors based upon the introduction of the testimony are shown to have damaged the appellant. That he was prejudiced in any of his substantial rights will not be presumed when not shown.
It is also claimed the testimony is not sufficient to justify a conviction. The only testimony before us is that introduced by the people, and, as it appears in the record, it is not sufficient. Had appellant rested upon that testimony, and brought it before us in the proper mode for its consideration, a reversal, probably, would be justified; but, instead, he proceeded with the introduction of testimony in his defense. That is not here. We do not know what it was. He may have convicted himself, as has frequently happened with defendants. At any rate, the jury, upon all the evidence, found him guilty, and we cannot interfere.
After appellant’s motion for the peremptory instruction was overruled, he, by introducing his testimony, waived his right to assign as error the order overruling his motion, as is held in civil cases by authority which is controlling with us. (Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Insurance Co. v. Grandal, 120 U. S. 530, 7 Sup. Ct. Rep. 685.) Our statute (section 7864) provides: “The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code.” We think, under our statute, the authorities above control in this case; and the judgment of the lower court is affirmed.
Dissenting Opinion
Dissenting. — I dissent from the opinion of the court. When the prosecution rested, there was not, in my judgment, sufficient evidence to warrant or sustain a conviction. The prosecution having failed to prove the guilt of the accused, the latter had a perfect right to invoke the statute. After the court refused to advise an acquittal, the defendant excepted, and offered testimony in his own behalf. It is urged in support of the judgment (1) that defendant moved for an instruction to acquit — an instruction which the court was not authorized to
1. The prosecution examined several witnesses, and rested. The defendant then moved the court to instruct the jury to bring in a verdict of acquittal. It is proper to state that the exact language of the motion, which was evidently made in open court, and not reduced to writing, does not appear in the transcript. On page 10 we find the following statement: “The defendant, by his counsel, here moved the court to instruct the jury to return a verdict of not guilty, wMch motion was by the court overruled.” On page 49 of the transcript the motion is presented in this form: “Defendant now moves the court to instruct the jury to render a verdict of acquittal.” I quote the two statements as they appear in the transcript for the purpose of showing that the exact words embodied by the defendant in his motion do not appear in the record. This is not material, however, as the ■substance of both motions is the same. Section 7877 of the Penal Code is as follows: “If, at any' time after the evidence on •either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant; but the jury are not bound by the advice.” The court overruled the defendant’s motion asking for an instruction to acquit. There is notMng to indicate that the action of the court was governed ,by any informality in the language of the motion. If, in the judgment of the court, the evidence was such as to warrant it in submitting the case to the jury, it was its duty to overrule the motion. If, on the other hand, the prosecution had failed to ■establish the charge made in the indictment, it was the duty of the court to advise the jury to acquit. I believe that the exercise of such a discretion is subject to. review. The attorney general urges that “the court had no right to give the peremptory instruction in a criminal case as asked at page 10 of the transcript.” It is true the court had no right to give the peremptory instruction to acquit, but no court would presume that the motion was overruled by the court below by reason of the fact that the word “instruct” was used by the attorney who made the motion in place of the word “advise.” It is proper enough for lawyers to deal in techmcalities. By the discussion of tech
When the prosecution rested, I do not think the state had introduced evidence upon which any person could be legally convicted of a crime. I think it follows that the defendant was entitled to the instruction, and that the court erred in not giving it; not because the defendant’s attorney, careless of the language he used, asked the court to “instruct” instead of “advise,” but because the prosecution had utterly failed to make out a ease. It was not an instruction to be given or withheld at the discretion of the court. In the absence of evidence to warrant a conviction, it must be given. To refuse the instruction was to give the sanction of the court to the conviction of the defendant without evidence to justify it; and the jury would have a right to suppose that, under the law, the evidence was sufficient to warrant a conviction. Certainly, such an act on the part of the court would interfere with the substantial rights of the defendant if, as a matter of fact, the evidence given would not warrant a conviction. Whenever a defendant asks an instruction of that character, he accepts the results that may follow a refusal on the part of the court to grant it. If, therefore, his request is refused, and the reasons therefor are sufficient, and he is prejudiced because of the order, the resulting misfortune is his own fault; but it does not justify the court in refusing the instruction asked for, if the status of the case demands it. The ease cited by the attorney general (People v. Horn, 70 Cal. 17, 11 Pac. 470) simply declares that the court was not authorized to give the jury a peremptory instruction to acquit, but says the court was authorized to advise an acquittal. The theory of the law is that a man is innocent until he is proven guilty. This in very many cases is a fiction, and it not infrequently happens that a person brought into court is required to prove his inno
The attorney general urges that the court was not authorized to-advise the jury to acquit under subdivision 6, section 7855, which reads that the court must not charge the jury in respect to matters of fact. We do not apprehend that section 7877 is at all in conflict with the provisions of section 7855. Section 7877 distinctly states that the jury is not bound to act upon the advice given by the court; and, if the court were to advise the jury to acquit, it would be the duty of the court to state that the jury were at liberty either to accept or reject its advice. The fact remains, however, that when a person is charged with crime he must be convicted by legal evidence. The jury pass judgment as to the facts. This is an authority upon which the court, dare not trespass. On the other hand, the evidence upon which a person is convicted must be legal evidence; and as to whether or not the evidence tendered is sufficient, under the law, to warrant a conviction, the court, on the last appeal, is the absolute judge. The statute provides that, if the court deems the evidence insufficient to warrant a conviction, it must so advise the jury. If there is, practically, no evidence of guilt, it is not a. matter of discretion with the court. Therefore, when the prosecution rested in this case, it was the duty of the court to advise the jury to acquit, regardless of any trifling mistake the attorney may have made in using one word for another. As well say that a court will refuse to dismiss an indictment, when sufficient, reasons are given, because the prosecutor, following the old form,, asks for a nolle prosequi instead of a dismissal.
2. It is urged that the defendant waived his exception to the order of the court under the ride laid down in Insurance Co. v. Crandal, 120 U. S. 530, 7 Sup. Ct. Rep. 685, and in Railway Co. v. Cummings. 106 U. S. 700, 1 Sup. Ct. Rep. 493. TEe language of the court in the latter case (106 17. S. 701, 1 Sup. Ct.
Let us consider the matter from the standpoint of another well-known principle. The ruling of the court was, in substance, a declaration to the effect that evidence had been given sufficient to warrant a conviction. If, under the legal effect of' legal evidence, this was error, the rights of the accused were-' seriously and unlawfully injured. He was accused, arrested,, and the state presented its evidence of guilt. He was in jeopardy. And, when the state rested, if the evidence was insuffic-'
3. It is also urged that the evidence is not all here. The presumption is that the transcript contains all of the evidence bearing upon the objection made by the defendant. It is too late for the respondent to object to the transcript. The Idaho statute, under which a bill of exceptions is prepared in criminal cases, was taken from the California Penal Code, and the principle in issue has been repeatedly passed upon by the supreme court of that state. In the case of People v. English, 53 Cal 211, the same question was raised that is presented here. The court held that a bill of exceptions, in a criminal case, is presumed to contain all the evidence given at the trial bearing upon the point of the objection, and that, if the bill of exceptions prepared by the defendant in a criminal case does not contain all the evidence given, bearing on the point made, the district attorney should be permitted to suggest an addition to the bill of such evidence; but the appellate court cannot take his suggestion that such evidence was given. It is the duty of the district attorney to see that the evidence is here. This principle was confirmed in People v. Dye, 62 Cal. 524. It is urged that, under our statute, the rules of evidence in civil and criminal eases are the same, except as otherwise provided by the code. That is true. This is not, however, a question of admission of evidence. It is a question of practice, and it is also a question of law; and I do not see that this rule of evidence has any bearing whatever on the issue at bar.