State v. Cacavas

44 P.2d 1110, 55 Idaho 538, 1935 Ida. LEXIS 92

• Court: Idaho Supreme Court
• Decided: May 3, 1935
• Docket: No. 6148.
• Status: Published

Opinions

GIVENS, C. J.

Appellant, convicted of the felony of furnishing intoxicating liquor to a minor, seeks a reversal on the insufficiency of the evidence, misconduct of certain jurors in the jury-room, and the trial court’s refusal to direct a verdict in his favor.

Appellant insists the two girls to whom it is asserted the liquor was given were impeached and unworthy of credence, and uncorroborated, and that their testimony is the sole basis for the verdict, and hence is not sufficient to support the same.

Neither I. C. A., sec. 18-217, making it a felony for any person to sell or give or furnish intoxicating liquor to any minor, nor any other statute requires that the evidence or testimony of the complaining witness must be corroborated.

It is within the province of the jury to believe or to disbelieve the testimony of any witness, or any portion of such testimony, even though such witness may have in some respects testified falsely in respect to a material matter, or been contradicted. (70 C. J., sec. 1338; 6 Jones on Evidence, 2d ed., 4813; 26 Cal. Jur. 169, see. 143; I. C. A., see. 16-201; State v. Harp, 31 Ida. 597, 173 Pac. 1148; State v. Sims, 35 Ida. 505, 206 Pac. 1045; Bodenhamer v. Pacific Fruit & P. Co., 50 Ida. 248, 295 Pac. 243; State v. Driskill, 26 Ida. 738, 145 Pac. 1095; State v. Hopkins, 26 Ida. 741, 145 Pac. 1095; State v. Bush, 50 Ida. 166, 295 Pac. 432; State v. Keyser, 38 Ida. 57, 219 Pac. 775; Webster v. McCullough, 45 Ida. 604, 264 Pac. 384; Gordon v. Sunshine Min. Co., 43 Ida. 439, 252 Pac. 870; State v. Boyles, 34 Ida. 283, 200 Pac. 125; Baird v. Gibberd, 32 Ida. 796, 189 Pac. 56; Schmidt v. Williams, 34 Ida. 723, 203 Pac. 1075; People v. Quon Foo, 57 Cal. App. 237, 206 Pac. 1028; Decennial Digest, “Witnesses,” sec. 397.)

The jury by their verdict have resolved the conflicts, inconsistencies and contradictions herein in favor of the state, and there is sufficient evidence herein to justify the action of the jury in this regard and sustain the verdict. Hence under the well-known rule it will not be disturbed.

The misconduct charged to the jury was in the jury-room, after the case had been submitted to the jury for its consideration, consisting of statements concerning liquor given to the daughter of one of the jurors, not by the appellant or anyone connected with him, which the juror claimed led to the daughter’s downfall and later being shot, and a review of the history of certain controversies between appellant, his brother and a man named Volkmeir, and the bombing of the latter’s home. Four members of the jury were called before the court on motion for new trial, and gave oral testimony to the above effect which on motion of the prosecution was ordered stricken. No evidence other than the testimony of such jurors was offered in support of this point and it was not contended that the verdict was reached by chance or lot. This court, in line with universal authority, has four times held, after an exhaustive examination of the question, that the testimony of jurors may not be thus used to impeach their own verdict. (State v, Boykin, 40 Ida. 536, 234 Pac. 157; State v. Abbott, 38 Ida. 61, 213 Pac. 1024; rehearing, 38 Ida. 66, 224 Pac. 791; State v. Jester, 46 Ida. 561, 270 Pac. 417; State v. Farnsworth, 51 Ida. 768, 10 Pac. (2d) 295; and cases cited in 16 C. J. 1236, n. 50.) This point may not, therefore, avail appellant.

A refusal to advise a jury to acquit is entirely discretionary with the trial court and no abuse thereof is shown therein. (State v. McClurg, 50 Ida. 762, 300 Pac. 898; State v. Stevens, 48 Ida. 335, 282 Pac. 93; State v. Sullivan, 34 Ida. 68, 199 Pac. 647, 17 A. L. R. 902; State v. Shelton, 46 Ida. 423, 267 Pac. 950; State v. Smith, 46 Ida. 8, 265 Pac. 666; State v. Mason, 41 Ida. 506, 239 Pac. 733; State v. Brassfield, 40 Ida. 203, 232 Pac. 1; State v. Foell, 37 Ida. 722, 217 Pac. 608; State v. Suennen, 36 Ida. 219, 209 Pac. 1072; State v. Chacon, 36 Ida. 148, 209 Pac. 889.)

Judgment affirmed.

Budge and Ailshie, JJ., concur.

Petition for rehearing denied.