Summary
holding that evidence of other crimes may be admissible when it “tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others”
Summary of this case from State v. MarksOpinion
No. 5432.
February 13, 1930.
APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. Hugh A. Baker, Judge.
N.E. Montgomery was convicted of receiving stolen property for his own gain, knowing the same to have been stolen, and he appeals. Affirmed.
S.T. Lowe, for Appellant.
The judgment of conviction should be reversed, for the court had no jurisdiction of the defendant, because no legal or proper order was ever made by the committing magistrate, holding the defendant to answer in the district court.
The order as made held the defendant to answer the offense charged in the complaint and not the offenses as shown by the depositions as required by the statute. (C. S., sec. 8757; State v. Farris, 5 Idaho 666, 51 P. 772; In re Knudtson, 10 Idaho 676, 79 P. 641; State v. McGreevey, 17 Idaho 453, 105 Pac. 1047.)
The depositions as taken at the preliminary hearing disclose seven distinct and separate offenses. ( State v. Main, 37 Idaho 449, 216 P. 731.)
The order holding the defendant to answer, if sufficient for any offense, could only hold the defendant to answer for one offense, to wit: The offense charged in the complaint, and it would be impossible to determine which of the seven offenses as shown by the depositions that the committing magistrate held the defendant to answer, or on which of the seven offenses included in the information the defendant was held to answer.
The prosecuting attorney has no power to file an information against a defendant until after the defendant has been committed by a magistrate, and then only for the offense for which the accused was committed. ( State v. McGreevey, supra; State v. Bilboa, 33 Idaho 128, 190 P. 248; People v. Wallace, 94 Cal. 497, 29 P. 950; People v. Howard (Howland), 111 Cal. 655, 44 P. 342; Ex parte Fowler, 5 Cal.App. 549, 90 Pac. 958; State v. Jarrett, 46 Kan. 754, 27 P. 146; State v. Boulter, 5 Wyo. 236, 39 P. 883; Payne v. State, 30 Okl. Crim. 218, 235 P. 558; People v. Storke, 39 Cal.App. 633, 179 P. 527.)
The demurrer of the defendant to the information should have been sustained, for the information does not state facts sufficient to constitute a public offense, because it does not allege that the property was stolen. An information is not sufficient which states facts inferentially. ( State v. Singh, 34 Idaho 742, 203 P. 1064; People v. Robles, 117 Cal. 681, 49 Pac. 1042; People v. Cohen, 118 Cal. 74, 50 P. 20; People v. Simpton, 133 Cal. 367, 65 P. 834; United States v. McConaughy, 33 Fed. 168, 13 Sawy. 141.)
The information did not substantially conform to the requirements of C. S., secs. 8825, 8826 and 8827, because it did not contain a statement of the acts constituting the offense in ordinary and concise language; more than one offense was charged in the information, for the information on its face stated three distinct offenses without showing that they were one and the same transaction, to wit: The receipt by the defendant of one electric iron with cord attached, seven rugs and fourteen blankets. (C. S., sec. 8829; Trask v. People, 35 Colo. 83, 83 P. 1010.)
One offense can be included in an information. (C. S., sec. 8829; In re Bottjer, 45 Idaho 168, 260 P. 1095; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Gutke, 25 Idaho 737, 139 P. 346.)
The information followed the complaint filed in the probate court before the committing magistrate, and not the depositions on which it was based, as required by the statute. ( State v. McGreevey, supra.)
The depositions taken before the committing magistrate showed that if any offense had been committed, seven distinct and separate offenses had been committed, and when the information is construed in connection with the depositions, it is apparent that the information charges seven distinct and separate offenses. ( State v. Dawe, 31 Idaho 796, 177 P. 393; Trask v. People, supra; Ex parte Jones, 46 Mont. 122, 126 P. 929; Sweek v. People, 85 Colo. 479, 277 P. 1; C. S., sec. 8829; In re Bottjer, supra; State v. Bilboa, supra; State v. Gutke, supra.)
The defendant has never been legally held to answer for any of the offenses set forth and described in the information, because the order made and entered by the committing magistrate held the defendant to answer for the offense charged in the complaint and not the offense or offenses named in the within depositions, as required by law. (C. S., sec. 8757; State v. Main, supra; State v. McGreevey, supra.)
The motion of the defendant at the close of the evidence on behalf of the state to strike all of the testimony pertaining to all of the offenses as shown by the record, excepting the offense on which the state elected to rely, to wit, the seventh offense or transaction, should have been granted, for the testimony related to other offenses charged in the information and was introduced for the purpose of proving the defendant guilty, and not for the purpose of showing knowledge or intent, and was a part of the information. The refusal of the court to strike the testimony as to offenses charged in the information and shown by the evidence, on which the state elected not to proceed, was error. ( Trask v. People, supra; White v. People, 8 Colo. App. 289, 45 P. 539.)
The election of the state at the first trial of the defendant and the court's order in sustaining the motion of the defendant to strike all of the testimony pertaining to the seventh offense was a withdrawal from the consideration of the jury, the offense upon which the defendant was subsequently convicted, to wit, the seventh cause of action, for which the defendant had been placed in jeopardy. ( State v. Gutke, supra; 16 C. J., p. 260, sec. 393; 22 Cyc. 407; 8 R. C. L., p. 145, sec. 130; Runyon v. Morrow, 192 Ky. 785, 19 A.L.R. 632, 234 S.W. 304; Elam v. State, 26 Ala. 48; People v. Jenness, 5 Mich. 305 .)
The defendant cannot be twice placed in jeopardy. (Const., art. 1, sec. 13; United States v. Aurandt, 15 N.M. 292, 107 Pac. 1064, 27 L.R.A., N.S., 1181; State v. Falk, 46 Kan. 498, 26 P. 1023; State v. Hows, 31 Utah, 168, 87 P. 163; Camp v. State, 7 Okl. Crim. 531, 124 P. 331; Edelhoff v. State, 5 Wyo. 19, 36 P. 627.)
W.D. Gillis, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
Where a series of acts, either of which separately or all together may constitute an offense, may be charged in a single count, for the reason that if each act may by itself constitute an offense, all of them can do no more and likewise constitute but one and the same offense. ( State v. Brown, 36 Idaho 272, 211 Pac. 60; State v. Hagan, 47 Idaho 315, 274 P. 628.)
An information will not be quashed, although there is a defect in the complaint or deposition upon which the information is based, if the deposition shows that an offense has been committed and the defendant is being tried for such offense. ( State v. Main, 37 Idaho 449, 216 P. 731; State v. Jester, 46 Idaho 561, 270 P. 417.)
Proof of other crimes for the purpose of showing knowledge and intent to commit the crime for which defendant is being tried is admissible. ( State v. Lancaster, 10 Idaho 410, 78 Pac. 1081; Underhill on Crim. Evidence, 3d ed., secs. 153, 154; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. Alvord, 46 Idaho 765, 271 P. 322.)
Evidence admitted on a count in an information which is later abandoned by an election may still be permitted to go to the jury for the purpose of showing knowledge or intent to commit the crime for which the defendant is being tried. ( Bryan v. United States, 133 Fed. 495, 66 C.C.A. 369.)
The fact that a jury disagrees on the first trial does not prevent a retrial upon any counts of an information which were abandoned in the prior trial by virtue of the election by the state. (16 C. J. 254; State v. Gutke, 25 Idaho 737, 139 Pac. 346.)
A defendant is not placed twice in jeopardy where the first trial resulted in a disagreement by the jury. ( State v. Crump, 5 Idaho 166, 47 P. 814; United States v. Perez, 9 Wheat. (U.S.) 579, 6 L. ed. 165.)
Appellant was charged by information with the crime of receiving stolen property, under the provisions of C. S., sec. 8438. The first trial resulted in a mistrial by reason of failure of the jury to agree upon a verdict. Upon the second trial appellant was convicted, and appeals from the judgment and an order denying a motion for new trial. Numerous errors are assigned and relied upon by appellant for a reversal of the judgment. Only such assignments as we deem of importance will be discussed.
The point sought to be made that the court erred in overruling appellant's motion to quash the information is without merit. The depositions taken at the preliminary hearing disclosed that a public offense had been committed and that there was sufficient cause to believe appellant guilty thereof, which being true it was the duty of the magistrate to hold appellant for trial in the district court for any offense disclosed at the preliminary hearing. ( People v. Lee Look, 143 Cal. 216, 76 P. 1028; People v. Warner, 147 Cal. 546, 82 Pac. 196; People v. Storke, 39 Cal.App. 633, 179 P. 527; People v. Hinshaw, 194 Cal. 1, 227 P. 156.) Nor is there any merit in the contention that appellant was never legally held to answer the offense set forth in the information because the committing magistrate inadvertently in his order of commitment held appellant to answer upon the offense charged in the complaint instead of that contained "in the within depositions." ( State v. Main, 37 Idaho 449, 216 P. 731.)
The contention is made that the information fails to state facts sufficient to constitute a public offense. In order to be sufficient the information need only charge the offense as defined by the code or in language of equivalent import. It is unnecessary to allege that the defendant received the stolen property both for his own gain and to prevent the owner from again possessing his property. The allegation of either intent, under the statute, is sufficient. (22 Cal. Jur., p. 558, sec. 4.)
We are not in accord with the contention that an examination of the information discloses that there is no sufficient allegation that the property had been stolen. After charging appellant with receiving certain property, etc., the information continues with the words, "said N.E. Montgomery then and there well knowing the said personal property and each and every article and part thereof to have been stolen. . . . ." We are admonished by the provisions of C. S., sec. 8835, that "no indictment (or information) is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." The information substantially conforms to the provisions of C. S., secs. 8825, 8834, and the trial court did not err in overruling appellant's demurrer thereto. ( State v. Brown, 36 Idaho 272, 211 P. 60; State v. Hagan, 47 Idaho 315, 274 P. 628.)
Appellant contends that there was a fatal variance between the allegations in the information and the proof upon the trial as to the ownership of the property stolen and received. The information charges the property to have been that of Elizabeth Sanders. The proof shows the property was delivered to Elizabeth Sanders by her son for the purpose of disposing of the same by sale. The property was owned by Elizabeth Sanders or some member of her family. We think this was a sufficient possession to support the allegation of ownership in the information. ( State v. Farris, 5 Idaho 666, 672, 51 P. 772.)
Error is sought to be predicated upon the refusal of the court to strike from the record all the testimony of the transactions relating to offenses on which the state elected not to proceed, the state having elected to rely for conviction upon the seventh offense. It is insisted that the purpose of the introduction of proof of other offenses was to show appellant's guilt and not to show knowledge or intent. Evidence of other crimes is always admissible when such evidence tends directly to establish the particular crime; and evidence of other crimes is usually competent to prove the specific crime when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others. ( State v. O'Neil, 24 Idaho 582, 135 P. 60; People v. Grutz, 212 N.Y. 72, Ann. Cas. 1915D, 167, 105 N.E. 843, L.R.A. 1915D, 229; 8 Cal. Jur., p. 61 et seq.) Any pertinent fact which throws light upon the subject under judicial consideration, the accused's guilt or innocence of the crime for which he is charged and on trial, is admissible; nor is such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime or many crimes. ( State v. King, 111 Kan. 140, 22 A.L.R. 1006, 206 P. 883, 884; 8 R. C. L., p. 201 et seq.) When a defendant is shown to have received stolen goods from a thief, evidence of previous dealings with the thief in like transactions is admissible to show that the defendant at the time knew that the property had been stolen. ( People v. Willard, 92 Cal. 482, 28 P. 585, 587.) This seems to be particularly true when all the property made the subject of proof was taken from the same owner and delivered to the defendant. In the instant case there is ample proof that appellant received the stolen goods from the thief at different times at the same place under such circumstances that any reasonable person of ordinary observation would have known that the goods were stolen.
At the first trial the evidence disclosed seven distinct and separate offenses. At the conclusion of the state's evidence appellant made a motion that the state be required to elect upon which of the seven offenses it would rely for a conviction. The court required the state to elect, whereupon it elected to stand upon the sixth offense. At the second trial, at the conclusion of the state's evidence, upon appellant's motion that the state elect upon which of the seven offenses it would rely for a conviction, the state elected to stand upon the seventh offense. Appellant here urges that the court erred in denying his motion in arrest of judgment for the following reasons: (1) The election of the state made at the close of the evidence at the first trial to proceed on the sixth offense constituted a dismissal of each and all of the other offenses; (2) The election of the state to proceed upon the sixth offense and the granting by the court of the motion of appellant to strike all the testimony pertaining to the seventh offense at the first trial amounted to an acquittal as to the seventh offense; (3) Upon the second trial the state was bound by its election made at the first trial and could not thereafter elect a different offense from the one which it elected to proceed on at the first trial; (4) Appellant was twice put in jeopardy on the seventh offense, the offense on which the state elected to proceed at the second trial, and the only offense upon which the jury could have legally returned a verdict at the second trial was the sixth offense, the one elected by the state at the first trial.
The question presented is new in this jurisdiction. It will be observed that it was upon the motion of appellant at both trials that the state be required to elect. In State v. Hibbard, 76 Kan. 376, 92 P. 304, 305, it was said:
"The state appears to have disclosed what transaction it would regard as constituting the offense charged as soon as it was called upon to do so. This disclosure was made at the time and in the manner asked by the defendant in his motion to require an election, and he is in no position to complain of the method pursued, for he himself suggested it. If, in the second and in the final trial, he had consistently maintained that the first election still controlled, and that he could be convicted of no other act than that thereby designated, he would now be entitled to insist upon a ruling upon that proposition. But when, at the conclusion of the plaintiff's evidence in each of the subsequent trials, he filed a motion asking that the state be then required to elect which of the several acts shown by the evidence it would rely upon for a conviction, he abandoned that position. His motion was entirely inconsistent with the idea that an effective election had already been made. His demand for a new election necessarily implied that the former election had spent its force. He invited the procedure adopted, and cannot now assail it. Mercer v. McPherson, 70 Kan. 617, 79 P. 118."
And in Williams v. State, (Okl. Crim. App.) 268 P. 329, 330, the court said:
"When a case has been tried and has resulted in a mistrial or a new trial has been granted, it stands in the same situation as if no trial had taken place, and the state upon a second trial may elect upon which act it will rely as in the first instance. The state is not required to elect upon which act it will rely until the evidence for the state is concluded. An election of a particular act in the first trial did not preclude the state upon a second trial from electing a different act."
See, also, State v. Peak, 9 Kan. App. 436, 58 P. 1034; State v. Keerl, 33 Mont. 501, 85 P. 862; State v. Champeau, 52 Vt. 313, 36 Am. Rep. 754; Linden v. United States, 2 Fed. (2d) 817.
Numerous objections are made to the admission and exclusion of certain evidence. We find no prejudicial error in the action of the court in this regard.
At the close of the evidence appellant requested the court to instruct the jury to return a verdict of not guilty, which was denied, and we think correctly so. ( State v. George, 44 Idaho 173, 258 P. 551; State v. Smith, 46 Idaho 8, 265 P. 666; State v. Murphy, 29 Idaho 42, 156 P. 908.)
Appellant urges that due to misconduct of the prosecuting attorney in his argument to the jury prejudicial error was committed. Standing alone, we are not inclined to reverse the judgment upon this ground, being of the opinion that the evidence was so clear and convincing that the verdict could not have been otherwise than as found by the jury. There was ample evidence independent of the testimony of the thief to connect appellant with the commission of the crime.
We have carefully considered the instructions given by the court of its own motion and instructions offered on behalf of appellant and refused, and find no reversible error in the action of the court in regard thereto.
No reversible error appearing in the record it follows that the judgment and order overruling motion for new trial should be affirmed, and it is so ordered.
Givens, C.J., and Lee and Varian, JJ., concur.