State v. Lundhigh

161 P. 690, 30 Idaho 365, 1917 Ida. LEXIS 40

• Court: Idaho Supreme Court
• Decided: April 30, 1917
• Status: Published

Opinions

RICE, J.

In this case defendant was convicted of murder in the second degree. The charging part of the information reads as follows: “The said Alfred Lundhigh, on or about the 11th day of June, 1915, at the county of Bingham and state of Idaho, and prior to the filing of this information, did then and there wilfully, unlawfully, feloniously, and with malice aforethought, kill and murder one Evangelos Pappas, a human being.” Demurrer was filed to this information, on the ground that it does not substantially conform to the requirements of sections 7677, 7678 and 7679, Rev. Codes of Idaho, and further, for the reason that it does not state facts sufficient to constitute a public offense.

This court has stated repeatedly that an indictment or information charging an offense in the language of the statute defining it is sufficient. No distinction appears to have been made in this respect between indictments or information for murder and those charging other crimes. (People v. Butler, 1 Ida. 231; People v. Ah Choy, 1 Ida. 317; State v. Ellington, 4 Ida. 529, 43 Pac. 60; State v. Keller, 8 Ida. 699, 70 Pac. 105.)

It is essential that an indictment or information should charge all the elements necessary to constitute the offense. Murder is defined to be the unlawful killing of a human being with malice aforethought. (Rev. Codes, sec. 6560.) The elements constituting the offense of murder are the killing of a human being, the unlawfulness of the killing and that it was accomplished with malice aforethought. I think these are the ultimate facts to be pleaded, and that the means by which and the manner in which the killing was accomplished are evidentiary facts which need not be pleaded. The information filed in this case sufficiently pleads the ultimate facts and satisfies the requirements of sections 7677, 7678, 7679 and 7686 of the Rev. Codes. (Strickland v. State, 19 Tex. App. 518; People v. Cronin, 34 Cal. 191.)

The criminal practice act of the territory of Idaho was enacted in 1864 and was taken from the statutes of California. Prior to the adoption of the California criminal practice act by the legislature of the territory of Idaho, the California courts had held as follows: “There is little or no difference between the requirements of an indictment under the common law and under our statute, except in the manner of stating the matter necessary to be contained.” (People v. Aro, 6 Cal. 207, 65 Am. Dec. 503.) In the matter of indictments charging murder, the supreme court of California changed its position shortly after the adoption of the criminal practice act by the legislature of this territory, as shown by the cases of People v. King, 27 Cal. 507, 87 Am. Dec. 95, People v. Cronin, 34 Cal. 191, People v. Hyndman, 99 Cal. 1, 33 Pac. 782, and People v. Witt, 170 Cal. 104, 148 Pac. 928. These cases and many other California cases have uniformly held an information drawn as was the information in this case to be sufficient and in proper form. The criminal practice act of Idaho thus adopted from California was re-enacted at the time of the enactment of the Revised Statutes in 1887, and again at the time of the adoption of the Revised Codes in 1909, Under the rule usually applicable, the changed position of the California Supreme Court after the adoption of the statute by the legislature of this territory might be persuasive, but would not be binding upon this court. (Cathcart v. Robinson, 5 Pet. 264, 8 L. ed. 120.)

This court, however, prior to the re-enactment of 1887 had stated many times that an information charging a crime in the language of the statute defining that crime is sufficient. In the case of State v. Sly, 11 Ida. 110, 80 Pac. 1125, decided in May, 1905, this court said in effect that sec. 7675, Rev. Statutes, was evidently adopted for the purpose of abrogating the strictness of the common-law form of indictment. Again, in the same case, the court quotes with approval from the-case of People v. Murphy, 39 Cal. 52, as follows: ‘ ‘ The sufficiency of the indictment is not to be tested by the rules of common law, but by the requirements of the criminal practice act of this state. That act provides that the particular circumstances need not be stated, unless they are necessary to constitute the offense charged. Murder is the unlawful killing of a human being, with malice aforethought and certainly the means by which the killing is accomplished can never become material in ascertaining the offense charged. The requirement that it must appear that the party died within a year and a day is a rule of evidence merely. Unless the party died within that time the prosecution will not be permitted to show that he died of the injury received.” And at page 115 of the Sly case this court said: “It is clear to our minds from the foregoing authorities that it has never been the intention of this court since its organization under the territorial government to the present time, to follow the doctrine laid down in the Aro and other early California eases in passing upon the sufficiency of an indictment or information. ’ ’

Under such circumstances it is fair to presume that in the re-enactment of the Criminal Code in 1909 the legislature intended to adopt the construction which had been placed upon the statute by our own court. (Gulf C. & S. F. Ry. v. F. W. & N. O. Ry., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; State Commission in Lunacy v. Welch, 154 Cal. 775, 99 Pac. 181; Mitchell v. Simpson, 25 L. R. Q. B. Div. 183.) This presumption in the ease of a re-enacted statute applies not only to the decisions of courts, but also to the actions of administrative officers taken under a statute. (Copper Queen Con. Min. Co. v. Arizona, 206 U. S. 474, 27 Sup. Ct. 695, 51 L. ed. 1143.)

It would seem that even though some of the observations in the Sly ease were obiter dicta, they would be entitled to as much weight as the acts of administrative officers. I think, therefore, that this court is not bound to follow the California cases decided prior to the adoption of the criminal practice act of 1864.

In the case of State v. Smith, 25 Ida. 541, 138 Pac. 1107, this court held that an information charging manslaughter in the following language, viz., “that the defendant did unlawfully and feloniously kill one Clara Foy,” is defective and insufficient to comply with the statute because of its failure to show the means by which death was accomplished. It is possible that in cases of involuntary manslaughter, it might sometimes be necessary that the particular circumstances be alleged in order to constitute the complete offense. I think, however, that the case of State v. Smith, supra, as applied to manslaughter generally and in so far as it might be considered as an authority with reference to indictments or informations for murder, should be overruled.

The appellant assigns as error the action of the trial court in permitting witnesses Ernest Pappas and Edith Boos to testify as to dying declarations on' the part of the deceased. There can be no doubt but that these dying declarations were made in the presence of approaching dissolution, and both the statements of the deceased at the time and the surrounding conditions show conclusively that the deceased was cognizant of his condition. It appears that the witness Edith Boos was testifying from her knowledge of the statements of the deceased, and not relying upon the translation of his statements made to her by an interpreter. Her testimony, as to the dying declaration of the deceased is not inadmissible within the rule laid down in the case of State v. Fong Loon, 29 Ida. 248, 158 Pac. 233, L. R. A. 1916F, 1198. We are of the opinion that the court did not err in permitting the testimony of these witnesses to be given.

Appellant in his brief failed to assign as error the giving of the instructions or any of them by the court. This court has held, in construing sec. 7946, Rev. Codes, that instructions in writing requested by the state, and given, or requested by the defendant and refused, are deemed excepted to, and the questions presented thereby need not be preserved in the bill of exceptions in order to be reviewed by the appellate court. Also that objections to instructions given by the court on its own motion must be preserved by bill of exceptions in order to be reviewed by this court. (State v. O’Brien, 13 Ida. 112, 88 Pac. 425; State v. Suttles, 13 Ida. 88, 88 Pac. 238; State v. Peck, 14 Ida. 712, 95 Pac. 515.) These provisions of the law, and the practices based thereon, do not appear to have been affected by the amendments to the criminal code which were enacted by the thirteenth session of the legislature, found under chapters 146, 147, 148, 149 and 150 of the 1915 Sess. Laws.

Under sec. 7946, Rev. Codes, as construed by the cases last cited, the instructions given at the request of the state are before the court for review, exceptions thereto having been preserved by law. This court will not assume the burden of searching the record for errors not assigned by the appellant, but in this case certain instructions given at the request of the state have come to our attention. Among them are instructions Nos. 62 and 65, which read as follows:

“Instruction No. 62. The jury are further instructed in the language of the statutes of this state that upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof in the case tends to show what the crime committed only amounts to manslaughter or that the defendant was justifiable or excusable. So, in this ease, if the state has proved beyond a reasonable doubt that the defendant, Lundhigh, shot and killed the deceased Pappas, the plea of self-defense interposed by the defendant must establish and prove such defense by a preponderance of the evidence. So if you find from the evidence, beyond a reasonable doubt, that the defendant has failed by a preponderance of the evidence to establish and prove such defense, it will then be your duty to convict the defendant.”

“Instruction No. 65. The court instructs the jury that the law says that the. defendant is a competent witness and may testify in his own behalf, and the jury should not capriciously disregard such testimony. This does not mean that you should believe, but only that you should consider it and ascertain to the best of your judgment whether it is true, and if true you should act on it, and if you should not believe it you should reject such testimony, you being the sole judges of the truth of the evidence. The jury are not to accept the evidence of the accused blindly or any further than it is corroborated by other evidence, but may consider whether it is true and given in good faith, or merely to prevent a conviction. And in considering the testimony of the defendant Lundhigh, you have a right to take into account any interest he may have in the result of your verdict, as bearing upon the question of his credibility as a witness in his own behalf. ’ ’

In this ease the killing was admitted by the defendant, and the only issue in the case was that arising from appellant’s claim that he acted in self-defense. The only evidence of the immediate circumstances surrounding the killing is that contained in the dying declaration of the deceased and the testimony of appellant. Appellant’s narrative, of those events is not impossible or incredible. The two instructions quoted therefore, bear directly upon the proof required on the part of the appellant to justify the killing of the deceased on the ground of self-defense, and go to the very foundation of his defense. They are both erroneous. (Coffin v. United States, 156 U. S. 432, at pp. 459, 460, 15 Sup. Ct. 394, 39 L. ed. 481, at p. 494.)

By instruction' No. 62 the. jurors are told that the defendant must establish and prove the plea of self-defense by a preponderance of the evidence, and that if they find from the evidence beyond a reasonable doubt that the defendant has failed by a preponderance of the evidence to establish and prove such defense, it will be their duty to convict the defendant. This instruction does not state the law. Sec. 7866, Rev. Codes, is as follows: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof in the case tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” While the burden of proving the circumstances in mitigation or justification of the homicide rests with the defendant, he is not required to establish such circumstances by a preponderance of the evidence, but to establish the circumstances to such an extent that the jury, after considering the whole evidence in the case, have a reasonable doubt as to his guilt. (State v. Rogers, ante, p. 259, 163 Pac. 912; People v. Bushton, 80 Cal. 160, 22 Pac. 127, 549; People v. Elliott, 80 Cal. 296, 22 Pac. 207; Davis v. United States, 160 U. S. 469, 16 Sup. Ct. 353, 40 L. ed. 499.)

By instruction No. 65 the jurors are instructed not to consider the testimony of the accused any further than it is corroborated by other evidence. We do not understand that this is the law as applied to the testimony of a defendant in a criminal case. The defendant is entitled to the same consideration as a witness as the other witnesses in the case, and his credibility is to be tested by the same rules as are applicable to other witnesses. This latter instruction is also subject to the criticism which was applied to a similar instruction in the.case of State v. Rogers, ante, p. 259, 163 Pac. 912, in that it singles out the defendant and directs the jury to apply tests as to his credibility as a witness differing from those applied to other witnesses in the ease.

For these errors the judgment of the district court must be reversed. The cause is remanded, with directions to the trial court to grant the appellant a new trial.