State v. Grigg

137 P. 371, 25 Idaho 405, 1914 Ida. LEXIS 1

• Court: Idaho Supreme Court
• Decided: January 5, 1914
• Status: Published

Opinions

SULLIVAN, J.

The appellant was convicted of the crime of assault with intent to commit murder on one Clarence Franklin, and sentenced, to imprisonment at hard labor in the penitentiary for not less than three years nor more than fourteen years. A motion for a new trial was denied, and the appeal is from the judgment and said order.

(1) The first error assigned is that the judgment of conviction is against the law. There is no merit in that contention, as it does not appear from the record that the judgment is against law or that the court made any reversible error in questions of law arising during the trial.

(2) The refusal of the court to allow appellant to give testimony in rebuttal of the testimony of one of the state’s witnesses is assigned as error. This assignment arises over the question of the knife with which the cutting was done. The defendant admitted that he cut said Franklin and claimed that he did it in self-defense, and whether or not he did it with a particular knife which was not admitted in evidence was immaterial. The defendant claimed that he had lost the knife with which he did the cutting shortly after the cutting was done. There is no merit in this assignment.

(3) The next error assigned is that the court erred in denying appellant’s motion for a new trial. A number of affidavits on the motion for a new trial were filed, setting forth what counsel claims to be newly discovered evidence. Some of those affidavits are in regard to whether defendant started the quarrel in which the cutting was done. On an examination of all of those affidavits, we are fully satisfied that the court did not err in denying a new trial because of anything contained in said affidavits. It appears that if any of said testimony was material, no effort was made by the defendant to procure such evidence en tbe trial. The most of such evidence is merely cumulative and impeaching and much of it not material.

(4) The giving and refusal to give certain instructions is assigned as error. We have examined said instructions given by the court and find that they correctly state the law applied to the facts of this case and that there was no error in refusal to give the instructions refused by the court.

It appears that after this appeal was taken counsel for defendant discovered that on the last instruction given by the court, No. 22, the judge through some inadvertence wrote at the bottom thereof “guilty” instead of “given,” and signed his name. That instruction is as follows: “In this case, in order to reach a verdict of guilty or not guilty, all of your number must agree thereon, and if you so agree, the verdict must be signed by the foreman selected by you,” which instruction is in typewriting, and at the bottom thereof in the handwriting of the judge is the following: “Guilty,” instead of “given” as was clearly intended. The word “guilty” being written there certainly could not have misled anyone, and it does not appear that the jury ever saw said instruction, or that any prejudicial error resulted therefrom, or that the jury ever knew that the judge had made a mistake in writing the word ‘ ‘ guilty ’ ’ instead of ‘ ‘ given. ’ ’ Under the provisions of sec. 7902, Rev. Codes, the jury “may” take with them to the jury-room the written instructions given, but there is nothing in the record to show that said instructions were taken by the jury when they retired to deliberate on their verdict.

That statute is a permissive and not a mandatory one, and it does not require the jury to take the instructions of the court to the jury-room, but permits them to do so. Had it been a mandatory statute, and commanded them to take the instructions to the jury-room, then the presumption would be that they did take them, but as the statute leaves it optional with the jury, it will not be presumed that they did take the instructions with them, unless the record shows that they did do so. Had the jury taken the instructions to their room, it' would have been an easy matter to have shown that fact by affidavit or otherwise, and it would be very technical to reverse this case on the presumption that the jury did take said instructions to their consulta,tion-room under that permissive statute. That contention is without merit. The judgment of the district court, therefore, must be affirmed, and it is so ordered.

Stewart, J., concurs.