Opinion
No. 5815.
April 16, 1932.
APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C.J. Taylor, Judge.
Appeal from a judgment on conviction for poisoning animals. Affirmed.
B.H. Miller for Appellants.
The trial court should have sustained the demurrer to the information as contended in assignment No. 1, for the reason that the information charges two separate and distinct offenses. The prosecution of this action is governed by C. S., sec. 8541.
C. S., sec. 8829, provides: "Single offense to be charged. The indictment must charge but one offense."
The true test to determine whether or not the information is duplicitous is: Could an action be maintained and a conviction had and upheld, if a prosecution were sought under the allegation or charge that the defendants did administer a poison to foxes, the property of another, and, could an action be maintained and a conviction had and upheld, if a prosecution were sought under the allegation or charge that the defendants did expose a poison to foxes, the property of another, with the intent that the same should be taken and swallowed by said foxes? ( Hodge v. State, (Okl. Cr.) 3 P.2d 252; State v. Crawford, 32 Idaho 165, 179 P. 511.)
Malice being the gist of the offense, it was incumbent upon the state to establish that fact to the satisfaction of the jury beyond a reasonable doubt. ( State v. Churchill, 15 Idaho 645, 16 Ann. Cas. 947, 98 P. 853, 19 L.R.A., N.S., 835; State v. Enslow, 10 Iowa, 115.)
By requested instruction No. 7, appellants sought to have the jury informed on the subject of motive and its application in the instant case. "Motive" is the reason, cause, incentive or inducement to do the act charged in the information. Without a motive there could be no commission of the alleged crime. Naturally, of course, in the great majority of criminal cases, motive may be implied and positive proof thereof is not required. Such, however, is not the case where motive is sought to be established by circumstantial evidence. ( State v. Allen, 25 N.M. 682, 187 P. 559.)
We think it is elementary law that proof of the existence of a conspiracy, on the testimony or statements of a co-conspirator, cannot be made after the alleged commission of the crime involved in the alleged conspiracy.
In the case of People v. Moore, 45 Cal. 19, the syllabus says:
"It is not competent to use as evidence against one on trial for an alleged crime, the statements of an accomplice not given as testimony in the case, nor made in the presence of the defendant, nor during the pendency of the criminal enterprise and in furtherance of its objects." ( People v. Dilwood, 94 Cal. 89, 29 P. 420.)
Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.
When a statute enumerates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count in the conjunctive. ( State v. Brown, 36 Idaho 272, 211 P. 60; State v. McCarty, 47 Idaho 117, 272 P. 695; State v. Hagan, 47 Idaho 315, 274 Pac. 628; State v. Montgomery, 48 Idaho 760, 285 P. 467; People v. Gosset, 93 Cal. 641, 29 P. 246.)
Where the information contains a statement of the facts constituting the offense in ordinary and concise language, which apprises the defendant of what he must be prepared to meet, and specific enough to plead former jeopardy, in case another proceeding is taken against him for the same offense, it is not subject to demurrer. ( State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Basinger, 46 Idaho 775, 271 P. 325.)
The jury are the exclusive judges of the credibility of the witnesses. (C. S., sec. 7935; State v. Bouchard, 27 Idaho 500, 149 P. 464.)
Defendant is entitled to the same consideration as other witnesses, and his credibility is tested by the same rules applicable to other witnesses. ( State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Pettit, 33 Idaho 326, 193 P. 1015; Branson's Instructions to Juries, 1318, sec. 1540.)
Proof of motive is not indispensable to a conviction, and its presence is never conclusive. (16 C. J. 78, 970; Nichols' Applied Evidence, 3146; People v. Bauweraerts, 164 Cal. 696, 130 P. 717; People v. Kelley, 208 Cal. 387, 281 P. 609.)
Admissions and declarations are admissible against the declarant whether or not they are made under menace or undue influence and are admissible against the declarant who is being tried jointly with a co-defendant, when such evidence is restricted for that purpose. ( People v. Ramirez, 113 Cal.App. 204, 298 P. 60; People v. Matthew, 68 Cal.App. 95, 228 Pac. 417; 8 Cal. Jur. 100; Mulligan v. People, 68 Colo. 17, 189 Pac. 5; 16 C. J. 146.)
Under C. S., sec. 8541, which provides: "Every person who wilfully administers any poison to an animal, the property of another, or maliciously exposes any poisonous substance, with the intent that the same shall be taken or swallowed by any such animal, is punishable by imprisonment in the state prison not exceeding three years or in the county jail not exceeding one year, and a fine not exceeding $500," an information charged appellants as follows:
"The said Arthur Farnsworth and Mrs. Sarah Farnsworth, on or about the 12th day of January, 1931, at the County of Bonneville and State of Idaho, and prior to the filing of this information, committed a Misdemeanor, to-wit:
"Did then and there wilfully, unlawfully, maliciously administer and expose a poison, to-wit Cynaide of Potassium, to three silver black foxes, then and there the property of another, to-wit the Snake River Fox Ranch, with the intent that the same should be taken or swallowed by the said foxes. . . . ."
Ten assignments of error are presented, which will be considered in the order assigned.
First, that the court erred in overruling the demurrer contesting the information as duplicitous. The information was substantially in the words of the statute, and each of several acts which might constitute an offense may properly be charged conjunctively in a single count. As said in State v. Brown, 36 Idaho 272, 211 P. 60:
" 'When a statute mentions several acts disjunctively and prescribes that each act shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively, as a single offense.' "
The poison could not have been administered without having been exposed, and it is hypercritical to contend that because the information alleges "administer and expose," the poison was first "administered" and then "exposed." The information charged the completed act of administering or giving, and the jury by its verdict so found. (See, also, State v. McCarty, 47 Idaho 117, 272 P. 695; State v. Hagan, 47 Idaho 315, 274 Pac. 628.)
Appellant urges the court was without jurisdiction because the information charged only a misdemeanor, in that the word "feloniously" was omitted therefrom. C. S., sec. 8541, under which this action was prosecuted, does not use the word "feloniously."
C. S., sec. 8084, provides that:
"A felony is a crime . . . . punishable . . . . by imprisonment in the state prison. Every other crime is a misdemeanor. Where a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonent in the state prison."
Since the offense described in C. S., sec. 8541, is punishable by imprisonment in the state prison, it is clear that it is a felony, and only after a judgment imposing a sentence in the county jail can it be considered as a misdemeanor. The offense being a felony, it must be conceded that the court had jurisdiction unless the failure to use the word "feloniously," and the denomination of the offense as a misdemeanor in effect make the offense merely a misdemeanor. In State v. Basinger, 46 Idaho 775, 778, 271 P. 325, this court said:
"It is fundamental in this state that the charging part of an information or indictment will withstand attack if on its face it be sufficient to advise the defendant of the nature of the charge against him, and describes the offense with such particularity as to serve as a shield in case of a second prosecution for the same offense; or, stated differently, if the act or acts constituting the offense be set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Also, it is provided by statute (C. S., secs. 9084, 9191), that, after hearing an appeal, this court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties; and that neither a departure from the form or mode prescribed by the criminal code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right."
Tested by the above rule, appellants were advised of the nature of the charge against them, and had every safeguard of a felony trial; the information was substantially in the words of the statute ( State v. George, 44 Idaho 173, 258 P. 551), and gave the court jurisdiction. In People v. Keeley, 81 Cal. 210, 22 P. 593, under Penal Code Cal., sec. 596, at that time identical with our C. S., sec. 8541, the court held that it was not necessary to use the word "feloniously." in the information.
The acts constituting the offense defined by statute were sufficiently stated, and the incorrect designation of the offense as a misdemeanor did not substantially prejudice the rights of appellants. ( State v. Altwatter, 29 Idaho 107, 157 Pac. 256; State v. Curtis, 29 Idaho 724, 161 P. 578; State v. Holder, 49 Idaho 514, 290 P. 387.) In Crummey v. State, 37 Ga. App. 149, 139 S.E. 131, defendant was accused of a misdemeanor, when the offense was by statute made a felony. The court said:
"The mere allegation that the defendant was charged 'with the offense of a misdemeanor' is immaterial, it being well settled that the facts set forth in an indictment or accusation determine the offense charged therein."
There is no merit in appellants' assignment of error No. 3, that Instruction No. 4 is erroneous. An identical instruction was considered and upheld in State v. Sheehan, 33 Idaho 103, 190 Pac. 71. Both appellants were principals whether the crime be considered as a felony or a misdemeanor, since C. S., secs. 8845 and 8093, are to be construed together. ( State v. Curtis, 30 Idaho 537, 165 P. 999.)
Appellants complain of error in Instruction No. 16 as given by the court. The instruction is as follows:
"The court instructs the jury that you are the exclusive judges of the credibility of the witnesses, and it is your duty to reconcile any seeming conflict that may appear in the testimony as far as may be in your power upon the theory that each witness has sworn to the truth. When this cannot be done, you may consider the conduct of the witnesses upon the witness stand; the nature of the testimony given by them; to what extent, if any, they are corroborated or contradicted by other testimony, their interest, if any, in the cause; their relation to the parties, and such other facts appearing in the evidence as will, in your judgment, aid you in determining whom you will or will not believe. You may also, in considering whom you will or will not believe, take into account your experiences and relations among men.
"If you believe that a witness, or any number of witnesses, have willfully and knowingly testified falsely in regard to any material matter, you may disregard such witnesses' testimony, except in so far as it is corroborated by other credible evidence or by facts or circumstances appearing in the case."
As to the first paragraph of the instruction, the jury are the exclusive judges of the credibility of witnesses (C. S., sec. 7935; State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. McPherson, 49 Idaho 687, 291 P. 313), and it is their duty to reconcile any seeming conflict as far as may be in their power. (16 C. J. 931.) Appellant contends that the use of the phrase, "their interest, if any, in the cause," singles out the testimony of appellants, because they naturally had an interest therein.
In State v. Webb, 6 Idaho 428, 55 P. 892, the court considered this instruction:
"The defendant has been examined as a witness upon his own behalf. This it is his right to be, and the jury will consider his testimony as they will that of any other witness examined before them. It is proper, however, for the jury to bear in mind the situation of the defendant, the manner in which he may be affected by your verdict, and the very grave interest he must feel in it; and it is proper for the jury to consider whether this position in interest may not affect his credibility or color his testimony."
And in discussing it said:
"When a defendant goes upon the witness stand in a criminal action, he occupies the same position as any other witness. He is subject to the same rules, and is entitled to the same immunities and protection, as any other witness. To send a defendant to the jury handicapped by such an instruction as this, especially the latter portion of it, is a vivid illustration of 'keeping the word of promise to the ear, and breaking it to the hopes.' We think the giving of the last paragraph (quoted above) of this instruction was error."
In State v. Rogers, 30 Idaho 259, 163 P. 912, the following instruction was given:
" 'The court instructs you, as a matter of law, that when the defendant testified as a witness in this case, he became as any other witness and his credibility is to be tested by and subject to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded his testimony, the jury have a right to take into consideration the fact that he is interested in the result of the trial, as well as his demeanor and conduct upon the witness-stand, and during the trial, and whether or not he has been contradicted or corroborated by other witnesses or circumstances.' "
And the court said:
"The words italicized, it is insisted by counsel for appellant, are prejudicial, for the reason that the defendant is singled out and the attention of the jury is particularly directed to his credibility as a witness. We think the better rule for the court to follow is not to single out any special witness personally and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of a witness should be general, and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no particular reason why he should be visited with condemnation upon the one hand or clothed with sanctity upon the other. He is before the court as a witness and should be treated by both the court and the jury just as other witnesses are treated, no better and no worse. And the giving of such instruction cannot be regarded as otherwise than erroneous."
It will be noticed that the instructions considered in State v. Webb, supra, and State v. Rogers, supra, both specifically instructed as to the testimony of defendant. Herein they were generally instructed as to witnesses. In the instruction given herein, the court did not in any manner single out the testimony of defendants, and it applied as well to any other witness as to them. See, also, State v. Foyte, 43 Idaho 459, 252 P. 673; State v. Smith, 46 Idaho 8, 265 Pac. 666.
In the Rogers case, the court said:
"Instructions as to the credibility of a witness should be general, and apply equally to all of the witnesses for the state and the defendant alike."
That is exactly what the first paragraph of the instruction in this case does, and it was neither prejudicial nor erroneous. The last paragraph of the instruction has been held to properly state the law. ( State v. Waln, 14 Idaho 1, 80 Pac. 221; State. v. Boyles, 34 Idaho 283, 200 P. 125; State v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Muguerza, 46 Idaho 456, 268 P. 1; State v. Alvord, 47 Idaho 162, 178, 272 Pac. 1010; State v. McPherson, supra.) In Bennett v. State, 147 Okl. 14, 294 P. 149, cited by appellants, the instruction considered therein was held erroneous for the reason that the instruction did not limit false testimony to that wilfully and intentionally given; did not require it to be as to a material matter, and failed to require that the corroborating testimony be credible. All these elements are in the instruction herein. The instruction was proper.
Complaint is made as to a portion of Instruction No. 6, appellants contending that, in effect, it reverses C. S., sec. 8944, and requires appellants to establish their innocence rather than requiring the state to establish their guilt. An identical instruction was considered in State v. Dong Sing, supra, and while criticised, was held not erroneous.
Assignment No. 6 complains of this portion of Instruction No. 5:
"All presumptions of law, independent of evidence, are in favor of innocence, and a man is presumed to be innocent until he is proved to be guilty beyond a reasonable doubt," citing People v. Maughs, 149 Cal. 253, 86 P. 187, wherein the instruction criticised did not contain the words, "until he is proved to be guilty beyond a reasonable doubt," which makes the authority inapplicable as condemning the instruction given herein. The instruction given is supported by State v. Bubis, 39 Idaho 376, 227 P. 384.
Appellants complain of Instruction No. 9, contending that it limits the presumption of innocence to those defendants who are innocent, and excludes its application to defendants who are guilty. It follows:
"The rule of law, which clothes every person accused of crime with the presumption of innocence, and imposes upon the state the burden of proving his guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty to escape, but is a humane provision of law, intended, so far as human agencies can, to guard against the danger of an innocent person being unjustly punished."
An instruction substantially the same in meaning was considered in State v. Gilbert, 8 Idaho 346, 351, 1 Ann. Cas. 280, 69 P. 62, and held not prejudicial. (See, also, State v. Hanlon, 38 Mont. 557, 100 P. 1035; 16 C. J., p. 535, sec. 1007.)
There was no error in refusing to give requested Instruction No. 1. C. S., sec. 8074, defines "person" and a corporation is included in the definition. The instruction has no relation to the facts of the case, and was merely an instruction upon an abstract principle of law, and the refusal was not error. ( State v. Williams, 36 Idaho 214, 209 P. 1068; State v. Chacon, 37 Idaho 442, 216 P. 725; Moreland v. Mason, 45 Idaho 143, 260 P. 1035; State v. Brace, 49 Idaho 580, 290 P. 722.)
Requested Instruction No. 2 was erroneous. The subject of malice was correctly and sufficiently covered by Instructions Nos. 10 and 11, as given by the court. To constitute malice, it is not necessary that the defendant know the owner of the property. ( People v. Jones, 241 Ill. 482, 16 Ann. Cas. 332, 89 N.E. 752; Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76.)
Appellants' requested Instruction No. 3 was sufficiently covered by Instructions Nos. 12 and 13 as given.
Appellants' requested Instruction No. 4 improperly commented on the evidence, and thus being in part incorrect, was rightfully refused. ( State v. Boykin, 40 Idaho 536, 234 Pac. 157.)
Requested Instruction No. 6 was sufficiently covered by Instruction No. 13 when read in connection with the other instructions.
Requested Instruction No. 7, as follows: "The court instructs you that, where motive is sought to be established by circumstantial evidence merely, the circumstances shown must bear such relation to the facts as to be capable of creating the given state of mind of the defendants which is sought to be established, that is to say, that even though you find from the evidence beyond a reasonable doubt, that on the night of the 12th of January, 1931, a poisonous substance was administered or exposed to certain foxes the property of the Snake River Fox Ranch, a corporation, then, and in that event, the state must not only prove that there was a motive, but what the motive was, and if the state has failed to prove that there was a motive and what the motive was you should acquit the defendants," — is not the law, and was properly refused. ( State v. McLennan, 40 Idaho 286, 231 P. 718; State v. McClurg, 50 Idaho 762, 789, 300 P. 898.) It was not necessary herein for the state to prove a motive or what the motive was. The rule is stated in 16 C. J., p. 78, sec. 43, to be:
"In a criminal prosecution the state is not required to prove a motive for the crime, if, without this, the evidence is sufficient to show that the act was done by the accused," and with regard to an instruction: "If the offense is made out clearly, it is not necessary to prove motive, and the court properly may so charge, or may refuse a request, to charge to the contrary." (16 C. J. 970.)
Appellants complain of the admission of the testimony of Harry Meppen, the sheriff, in regard to admissions made by each of the defendants without the presence of the other.
Admissions made by one defendant are admissible in a joint trial to prove the guilt of such defendant. ( State v. Wilson, ante, p. 659, 9 P.2d 497, filed March 21, 1932.) The court instructed the jury to limit the admissions to the party making them, and appellants have suffered no prejudice.
Appellants' last specification is that the court erred in overruling the motion for new trial, for the reasons: 1. That a portion of the trial was had in the absence of defendant, Sarah Farnsworth; 2. That the verdict was not a fair expression of the opinion of all the jurors; 3. That there were errors in matters of law, and in refusal to properly instruct; and 4. That the verdict is contrary to law and evidence, and insufficient to warrant a judgment of conviction.
The defendant, Sarah Farnsworth, was absent from the courtroom a short time due to illness, and the only material matter that occurred during her absence was a motion to strike made by her counsel, who, at the time of making the motion knew she was not in court. The only other proceeding had which was outside the presence of the jury was the examination of two doctors, in which counsel for appellants participated, to ascertain whether or not she was able to return to the trial. Counsel for appellant did not object to these proceedings. The motion to strike was later renewed in the presence of defendant, Sarah Farnsworth. There was no showing of any prejudice.
Appellants' contention on motion for new trial that the verdict was not a fair expression of the opinion of all the jurors, attempted to be shown by the affidavits of the two jurors and counsel, is of no merit. It is the settled rule in this state that on motion for new trial, the jury may not impeach its verdict by affidavits of the members, with the exception that the verdict was arrived at by chance. ( State v. Jester, 46 Idaho 561, 270 P. 417; State v. Boykin, 40 Idaho 536, 234 P. 157; State v. Abbott, 38 Idaho 61, 213 P. 1024, affirmed on rehearing, 38 Idaho 61, 224 P. 791.)
Counsel complains that the court disregarded the jury's recommendation for leniency. A recommendation for leniency, though entitled to great consideration, is not binding on the court, and may be disregarded, or regarded by it as surplusage. ( State v. Sweat, 159 La. 769, 106 So. 298; State v. Stewart, 189 N.C. 340, 127. S.E. 260. See, also, 16 C. J., pp. 1110, 1111, sec. 2601.)
The question arises as to whether the court had the right to sentence Arthur Farnsworth to the penitentiary as for a felony, and Sarah Farnsworth to the county jail as for a misdemeanor, appellant contending that such situation is ludicrous. As above pointed out, the acts denounced by the statute constitute a felony if the maximum sentence is given by the court. However, the pronouncement of sentence is a matter within the sound discretion of the court, and in the absence of any abuse of such discretion this court will not reverse a judgment. As this court said in State v. Kruger, 7 Idaho 178, 183, 61 P. 463:
"In regard to the action of the trial court in pronouncing sentence in this case, we can only say the statute fixes the limits of punishment for the offense of which a defendant has been convicted, and within the limits so prescribed the trial court has discretion, and we do not think that the exercise of such discretion is reviewable in this court."
See, also, Feinberg v. United States, 2 Fed. (2d) 955, 958; Harris v. State, 142 Miss. 342, 107 So. 372; State. v. Miglin, 101 Conn. 8, 125 Atl. 250; Camarota v. United States, 2 Fed. (2d) 650.
The legislature provided the penalties, and the court had discretion as to which penalty was to be inflicted. The trial court acted within his discretion, since he fixed the penalties within the limits provided by C. S., sec. 8541.
We conclude from a careful perusal of the record that the evidence is sufficient to sustain the verdict and judgment. The judgment should be affirmed, and it is so ordered.
Lee, C.J., and Budge, Varian and Leeper, JJ., concur.
Petition for rehearing denied.