State v. Craner

94 P.2d 1081, 60 Idaho 620, 1939 Ida. LEXIS 69

• Court: Idaho Supreme Court
• Decided: October 10, 1939
• Docket: No. 6611.
• Status: Published

Opinions

GIVENS, J. —

Appellants were convicted of the larceny of a calf.

Their first assignment of error challenges Instruction No. 14 1 which is almost identical with the instruction held cause for reversal in State v. Hix, 58 Ida. 730, 78 Pac. (2d) 1003, and State v. Taylor, 59 Ida. 724, 87 Pac. (2d) 454, and embodies all the vices of the similar instruction condemned in State v. Cox, 55 Ida. 694, 46 Pac. (2d) 1093.

The attorney general admits the instruction is erroneous but asserts it was not prejudicial because “if the jury considered all of the instructions as they should do, they could not have but presumed that the defendants were innocent unless the evidence taken as a whole satisfied the jury beyond a reasonable doubt of the defendants’ guilt.....” and that if the evidence of guilt was so conclusive that the jury could not have returned a verdict of not guilty without violating their oath then the giving of the erroneous instruction does not warrant a reversal of the conviction.

In State v. Taylor, 59 Ida. 724, 734, supra, this court in considering the above contention said:

.... this rule has been and should be guardedly applied, otherwise art. 1, see. 7, guaranteeing the right to trial by jury, which means a jury which has not been misled by erroneous instruction to a defendant’s prejudice, will be violated.”

Without discussing the evidence, because the case is remanded for a new trial, it was entirely' circumstantial and not so conclusive of guilt, giving full force and effect to the attorney general’s contention (without approval or disapproval thereof) as to bring this case thereunder.

Appellants contend the court should have instructed on the claimed included offenses of slaughtering unbranded neat cattle (see. 24-1606, I. C. A.) and maliciously killing an animal the property of another (sec. 17-4202, I. C. A.).

State v. Hix, supra, at page 739, of the Idaho Eeports, cited in support of this contention, is distinguishable. There the offense charged was murder in the first degree and it was held error not to give instructions permitting conviction of murder in the second degree and manslaughter. As stated therein “every charge of murder necessarily includes the offense of murder in the first degree, murder in the second degree and manslaughter.” Murder in the first degree cannot be committed without commission at the same time of the offenses of murder in the second degree and manslaughter. In the case at bar appellants were charged with larceny of a calf. The offense could have been completed without the commission of the offenses of slaughtering unbranded neat cattle or maliciously killing an animal the property of another. The fact that the evidence tended to show a violation of either or both sees. 24-1606 and 17-4202, I. C. A., does not make them necessarily included offenses in the crime of larceny of a calf. No error is committed by the omission to charge on a particular point not necessarily an ingredient of the offense otherwise sufficiently alleged, in the; absence of a request thereon. (State v. Patterson, 60 Ida. 67, 88 Pac. (2d) 493.)

Judgment reversed and cause remanded for a new trial.

Ailshie, C. J., and Morgan and Holden, JJ., concur.

1 Instruction No. 14:

“Tlie jury is instructed that the evidence need not demonstrate the guilt of the defendants beyond the possibility of their innocence; and if the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt they need not be absolutely incompatible, on any reasonable hypothesis with the innocence of the aeeused. The value of circumstances as evidence depends upon the degree of certainty with which they point to a particular conclusion. While such evidence to be sufficient must create more than a suspicion of guilt, a mere possibility of innocence will not prevent a conviction where the conclusion or inference of guilt is logical. A theory of innocence must be rational and must find support in facts. You are not required to adopt an unreasonable theory or one not fairly founded upon evidence. You are not required to give to circumstances a strained or artificial construction in determining whether they are consistent with innocence.

“Circumstantial evidence alone will support a conviction, if it produces a belief beyond a reasonable doubt in the minds of the jury that the accused is guilty, and the conclusion of guilt need not necessarily follow from the eireumstanees in proof but may be obtained therefrom by probable deductions. The evidence need not demonstrate the guilt of the defendants beyond the possibility of their innocence, and if the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt, they need not be absolutely incompatible, on any reasonable hypothesis with the innocence of the accused. If, however, you can reconcile the entire evidence as equally consistent with the theory of the defendants’ innocence as well as with the theory of the defendants’ guilt, you will return a verdict of not guilty.”