State v. Abbott

213 P. 1024, 38 Idaho 61, 1923 Ida. LEXIS 36

• Court: Idaho Supreme Court
• Decided: March 28, 1923
• Status: Published

Opinions

DUNN, J.

— Appellant was jointly charged with one Nick Mitchell and one Clyde H. Smith with the crime of having robbed one Manuel Coster of $10. Appellant was granted a separate trial, was convicted and moved for a new trial, which was denied. He appealed from the judgment and from the order denying a new trial.

At the outset appellant urges the contention that where error intervenes in a trial “it is presumed to be injurious to the defendant and he is entitled to a new trial,” citing People v. Devine, 44 Cal. 452. This court has not followed the rule announced by appellant, but, on the contrary, has held that an appellant must not only show the commission of error but must also show that it was prejudicial to him. (Territory v. Nelson, 2 Ida. 651, 23 Pac. 116; Territory v. Evans, 2 Ida. 651, 23 Pac. 232, 7 L. R. A. 646; State v. Corcoran, 7 Ida. 220, 61 Pac. 1034, and many other cases.)

Appellant assigns six errors, hut relies mainly upon the claim that the evidence is insufficient to justify a conviction; that the court erred in giving certain instructions and in denying appellant’s motion for a new trial.

The evidence is to some extent circumstantial, hut on examination of the entire record leaves no doubt in our minds as to its sufficiency to sustain the verdict and judgment. Looking solely at the printed record this court might say, as it might in many other civil and criminal cases, that certain facts claimed by appellant to be shown by the record might, if considered separate and apart from all other evidence in the case, be susceptible of a construction different from that which the jury appeared to give such facts, but this does not authorize this court to substitute its judgment as to the credibility of witnesses and the weight to be given to their testimony for that of the jury.

Instruction No. 2 was one in which the court undertook to set out the material allegations of the information. In this instruction it failed to state to the jury that to constitute robbery the taking of the personal property must have been done feloniously. This omission was error, but when this instruction is read in connection with all the other instructions given we think it clear that appellant was not prejudiced thereby. In the previous instruction the court had correctly defined robbery as “the felonious taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.” In other instructions the court charged the jury that “the theory of the prosecution is that the defendants Abbott, Mitchell and Smith entered into a conspiracy to commit the crime charged in the information”; that in order to convict they must believe from the evidence beyond a reasonable doubt that appellant “entered into a combination or understanding with Clyde H. Smith and Nick Mitchell or either of them to rob Mannel Coster”; and that in order to convict appellant they must believe from the evidence beyond a reasonable doubt that appellant “aided or assisted said Clyde H. Smith and Nick Mitchell or either of them to commit the robbery as alleged in the information.”

The words “rob” and “robbery” have a well-understood meaning and we think there can be no- question that the jury understood that it was necessary for the state to prove to their satisfaction beyond a reasonable doubt everything that was involved in the statutory definition of robbery, which includes all that is meant by the word “felonious” or “feloniously.”

Complaint is also made as to the giving of instruction No. 15 on the impeachment of witnesses. This instruction is in substance the same as instruction No. 33, which was disapproved by this court in the case of State v. Dong Sing, 35 Ida. 616, 631, 208 Pac. 860. It is an erroneous instruction, but we think not prejudicial in view of the evidence shown by the record.

Appellant also complains of the denial of his motion for a new trial which he based largely on the charge that one of the jurors had made improper and prejudicial statements of fact to the jury as to appellant’s record while they were deliberating on their verdict. Long after the trial appellant sought to have the court call before it said jurors for examination as to what occurred in the jury-room. Without approving or disapproving this method of procedure if a satisfactory preliminary showing were made to the court, it is sufficient to say that the court did not err in denying appellant the opportunity that he sought to examine the jurors, for while the motion for a new trial contains some averments as to misconduct of this juror, the charge is not supported by any evidence whatever. To have allowed the examination under the circumstances shown by the record would have been simply to permit counsel for appellant to embark upon a fishing expedition. Surely if one seeks to impeach the verdict of the jury by showing- misconduct in the jury-room he ought to be able to present some sort of sworn statement to the court that could be called evidence upon which the court would have a right to proceed. Nothing whatever of this character appears in the record.

The other errors assigned are in our opinion without merit, and the judgment is affirmed.

Budge, C. J., and McCarthy, J., concur.