State v. Owen

GIVENS, Justice

(dissenting).

I concur, except as to the reduction of the penalty.

The testimony rejected as to both appellants has been sufficiently stated in the majority opinion. Suffice to notice that both appellants were permitted to give some testimony as to their past environment, upbringing, etc., and the only rejection as to appellant Hastings was the long, detailed account of his claimed military record.

The statement in the majority opinion is correct:

“And § 19-2516, I.C. requires that the hearing be had in open court. It may be open to debate as to whether the ‘circumstances’ mentioned in § 19-2515, I.C. refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case.’’ 253 P.2d 207 .

This court undoubtedly has the right and authority to reduce the penalty. However, it will be noted in State v. Ramirez, 34 Idaho 623 , 203 P. 279 , 29 A.L.R. 297 , cited in support of-reduction generally and herein, the court therein considered the facts of the case in applying the rule:

“* * *, and every consideration of justice demands that this court determine its power * * * to reduce the punishment in this case, and that the punishment be reduced if the facts do not warrant the imposition of the death penalty.” (Emphasis ours.) 34 Idaho at page 631 , 203 P. at page 281 , 29 A.L.R. 297 .

The evidence may be reviewed to determine its sufficiency to support the verdict, and

“* * * to determine whether it justifies the infliction of the death penalty.” 34 Idaho at page 634 , 203 P. at page 282 .

“Causes have frequently found their way into the appellate court, where error had been committed in the trial, not prejudicial error or such as would warrant a reversal of the cause, but which has resulted in the infliction of excessive punishment.” 34 Idaho at page 636 , 203 P. at page 283 .

*422 “Without reciting in detail all of the facts and circumstances involved in the trial of this cause, and specifically pointing out errors which were not reversible, but which may have influenced the jury in assessing the extreme penalty, it is clear to our minds that the jury abused its discretion in so doing.” 34 Idaho at pages 637-638, 203 P. at page 284 .

Conceding the trial court erred in unduly restricting the testimony offered by appellants as to their past, unless the introduction of such evidence could legitimately have affected the jury in the exercise of its discretion, such rejection does not constitute reversible error or authorize or justify reduction of the penalty, contrary to the verdict of the jury. Both appellants admitted in open court they entered deceased’s store with intent to rob and the evidence shows, as indicated in the majority opinion, the killing was done in the course and perpetration of the robbery. Previous good conduct cannot wipe out the established and uncontroverted fact that this killing, under the statute, was murder of the first degree and certainly the jury had complete authority to fix death as the appropriate penalty.

This court has repeatedly, under such circumstances — that is, as to this state of the record — declared and applied this rule:

“Although the instruction referred to contains matter which should not have been given to the jury, we are, however, of the opinion that the appellant could have been in no way prejudiced by the giving of such instruction. Other instructions were given to which no exception was taken, which clearly charged the jury with reference to circumstantial evidence; and not only that, but the evidence in. this case is so clear and convincing of the guilt of the appellant that the jury could in no * * * manner have been influenced to return a verdict of guilty by the objectionable matter contained in this instruction; and from the evidence the jury could not, without a violation of their oaths, fail to have found the defendant guilty, and because of this the defendant could not have been prejudiced by the giving of such instruction.” State v. Marren, 17 Idaho 766 at page 790, 107 P. 993 at page 1001.

State v. Silva, 21 Idaho 247 at page 257, 120 P. 835 ; State v. Brill, 21 Idaho 269 at page 275, 121 P. 79 .

“Where the evidence in a given case clearly shows the defendant to be guilty of an unprovoked murder, without any justification or excuse, and the jury could not, under their oaths, have brought in any other verdict than was rendered by them, even conceding that there is error in the instructions, and the right of the appellate court to review such errors when not assigned, the judgment of the trial court should *423 not be reversed, for the reasons as announced in an opinion by the late Justice Stewart in the case of State v. Marren, 17 Idaho 766 -790, 107 P. 993 , 1001State v. Lundhigh, 30 Idaho 365 at page 377, 164 P. 690 at page 694.

State v. Ward, 31 Idaho 419 at page 422, 173 P. 497 .

“When we consider the character of the testimony offered in this case, and the view the jury must necessarily have taken with regard to it, we are unable to see how they could have been prejudicially influenced against the appellants by reason of such errors as it must be conceded the trial court made. Appellant Lo Ming did not testify. Appellant Dong Sing admittedly was in the laundry immediately before the killing, and if his story had been believed by the jury, they could have done nothing but acquit appellants. There was no room for a verdict of murder of the second degree or manslaughter. Having rejected Dong Sing’s testimony, there was no alternative for the jury, if they believed the evidence offered by the state, but to find appellants guilty of murder of the first degree. In the whole record there is nothing suggestive of any fact that would warrant the conclusion that appellants could be guilty at all without being guilty of murder of the first degree. It is true the jury might arbitrarily have convicted defendants of murder of the second degree or of manslaughter, just as they might arbitrarily have acquitted defendants even though convinced beyond a reasonable doubt of defendants’ guilt, but, on the facts ■ accepted by them as established by the evidence, and on their oaths as jurors they could have found no other verdict than that of murder of the first degree.

“C.S. § 9084, provides that — ‘After hearing the appeal, the 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 C.S. § 9191, provides that — ‘Neither a departure from the form or mode prescribed by this 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.’

“Commenting on these statutes this .court has said: ‘The substance of these statutory provisions is that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon.the evidence no other verdict could properly have been found.’ State v. Marren, 17 Idaho [766] 791, 107 P. [993] *424 1001.” State v. Dong Sing, 35 Idaho 616 , at page 633-634, 208 P. 860 at page 865.

“It is suggested in appellant’s brief that in both the opening and closing arguments the prosecuting attorney referred to the fact that the defendant did not take the stand and testify. There is no record of what the prosecuting attorney said in either argument, but there is contained in the reporter’s transcript an objection, by appellant, to a remark by the prosecuting attorney ‘with relation to the defendant not presenting any evidence in his behalf. * * *’ The court sustained the objection and told the jury the fact referred to should not be considered by them. It was improper for the prosecuting attorney to make the remark which he is credited with having made, and every trial lawyer knows that such an admonition by the court is not ordinarily sufficient to erase from the minds and memories of the jurors such improper remarks. It is probably not too much to say that the remark of the court rather tended to impress the fact upon the minds of the jurors. It would not be proper in this case, however, to reverse the judgment because of this misconduct. The evidence is such that the jury could not have reached any other verdict than that of guilty. The misconduct of the prosecuting attorney, though flagrant, does not justify the reversal of a judgment where the evidence is so conclusive that the jury could not have been misled.” State v. Cosler, 39 Idaho 519 at page 528, 228 P. 277 at page 280.

State v. Stewart, 46 Idaho 646 at page 651-652, 270 P. 140 , is readily and completely distinguishable from the situation herein.

The conclusion herein is not out of harmony with State v. Taylor, 59 Idaho 724 at page 737, 87 P.2d 454 , because herein appellants’ own evidence proves their guilt beyond any doubt and no sufficient, if any, mitigation could properly be rested on the rejected testimony.

“On the whole record we do not think there was reversible error in the matter complained of.

“In the case of State v. Brill, 21 Idaho 269 , 121 P. 79, 80 , this court said: ‘* * * This court held, in State v. Marren, 17 Idaho 766 , 107 P. 993 , that, even though an instruction is erroneous, and ordinarily the error would be material, yet, if the evidence of the defendant’s guilt is satisfactory — that is, such as ordinarily produces moral certainty or conviction in an unprejudiced mind — and the result would not have been different, had the instruction been omitted, the case will not be reversed because of such erroneous instruction.’ The same principo? is applicable here.

*425 “Section 19-2719, I.C.A., provides:

‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’ ” State v. Gilbert, 65 Idaho 210 at page 219, 142 P.2d 584 , at page 588.

Though in a dissent, this statement most pertinently, succinctly and forcibly states the court’s proper function:

“ '* * * question for Supreme Court’s consideration was not whether Supreme Court would have imposed death penalty, but whether discretion vested in trial court was judicially exercised and whether record showed a case in the class justifying sentence of death or in the class justifying sentence of life imprisonment.’ ” State v. Behler, 65 Idaho 464 at page 477, 146 P.2d 338 at page 344.

In State v. Powell, 71 Idaho 131 at page 136, 227 P.2d 582 at page 585—

“4 * 4 {£ was recognized that before this court could act (to reduce the penalty), there must appear an abuse of discretion.”

and recognized the force and effect and correctness of the above statement in State v. Behler, supra, thus:

“In State v. Behler, supra, Justice Budge, the author of the opinion in State v. Ramirez, supra, in his dissenting opinion, called attention to this fact.”

The judgment and penalty as fixed by the jury should be affirmed.