State v. Allen
State v. Allen
Opinion of the Court
— The defendants were jointly tried and convicted on the charge of murder, and were sentenced to life imprisonment in the state penitentiary. This appeal is from the judgment and an order denying a motion for a new trial.
The homicide occurred in a house of ill-repute in the town of Hailey on the night of September 21, 1911. A robbery was attempted and resulted in the killing of a man named Crowley, who was a piano player in this resort. The house was entered by two masked men, one wearing a tall black hat
A number of errors have been assigned, but we shall not give separate consideration in this opinion to all of them.
3. While the accomplice, Crawford, was on the witness-stand, and during his cross-examination by counsel for defendant, he produced from his pocket a red handkerchief, knotted, and testified that he purchased it at Richfield, that he did not have it in Hailey and that he and Swift tied knots in it while in jail. Thereupon counsel for defendant asked to have the handkerchief marked for identification for use on cross-examination, to which counsel for the state objected and the objection was sustained by the court. This action of the court is assigned as error. Counsel for appellants insist that they had a right to make inquiry as to this handkerchief and to have it retained in the custody of the court. We are of the opinion that the ruling of the court was erroneous. When an article is presented in court before the jury, and either party desires to have it marked for identification and retained in the custody of the court for the purpose of questioning witnesses concerning it, that right should be accorded the party who requests it. If a witness who produces an article in court is allowed to retain the possession of it and carry it away from the courtroom, it may become impossible to again get hold of it or to be certain that the same article is again produced. This ruling of the court, however, was not such an error as could have been prejudicial to the defendants. They did not ask any other witnesses about this handkerchief or pursue the inquiry any further. The evidence elicited fails to show that it had any relevancy whatever to the matters about which the witness was testifying or to any material fact in the case. No contention was made that this
A very similar question arose in Reynolds v. State, 147 Ind. 7, 46 N. E. 33, and the court, after discussing the principle involved and determining it adversely to appellant’s contention, said: “Among the motives recognized as impelling men to commit crime is the desire of gain.....This motive, however, has influenced the conduct of rich persons as well as poor persons. Men do not rob or steal except as they have a desire to do so, but such desire does not come so much from the poverty of the individual as from the absence of a moral sense, and from the desire to possess at all hazards something that does not belong to him.” (See, also, Colter v. State, 37 Tex. Or. 284, 39 S. W. 576.) The court’s ruling did not deprive defendants of any substantial right.
In the case at bar, the charge made by the information primarily involved the character of the defendants for peace and quietude or their general attitude toward individuals, society and the laws of the land. On the other hand, when it is remembered that the principal evidence produced by the state disclosed that this crime was committed in an attempt primarily to commit the crime of robbery, it becomes evident that the charge as disclosed by the evidence in a large measure involved the character of these defendants with reference to honesty and integrity. While .we think it would have been eminently proper for the court to have admitted the evidence offered touching the reputation of the defendants for honesty and integrity as well as peace and quietude, we do not think the ruling of the court deprived the defendant of any substantial right or was prejudicial to his defense.
The judgment should be affirmed, and it is so ordered.
Reference
- Full Case Name
- STATE v. CHARLES H. ALLEN and REECE C. CLEVENGER
- Cited By
- 16 cases
- Status
- Published
- Syllabus
- Criminal Law — Separate Trials of the Defendants Jointly Charged — Identification of Exhibits — Nonresponsive Answers —Remarks of Court — Financial Circumstances of Defendant— Conversations Establishing Alibi — Evidence of Good Character —Sufficiency of Evidence — Newly Discovered Evidence. 1. Under the provisions of sec. 7860, Rev. Codes, as amended by 1911 Sess. Laws (1911 Sess. Laws, p. 3-68), “when two or more defendants are jointly indicted or informed against for a felony or any criminal offense, the defendants may be tried separately or jointly in the discretion of the court.” Held, that under this statute it was not an abuse of the discretion of the trial court to refuse to grant separate trials to defendants, where each of the defendants desired to be a witness for the other and also a witness in his own trial on his own behalf. 2. Held, that it was not error on the part of -the trial court to admit a revolver holster in evidence in a prosecution for murder where the witness .identifying the holster was shown the holster in the presence of the jury and was asked if that was the revolver holster the defendant had, and the witness replied: “I think it is; I am not sure; it appears to be.” 3. Where the attorney for the defendant on cross-examination of a state’s witness in the trial of a criminal case has the witness produce an article of personal property and testify concerning it and tell where he got it and what he had been doing with it, it is error for the trial court to refuse to have the article marked for identification and retained in the possession of the court for the purposes of cross-examination and the inspection of the defendant and his counsel, or for any use to whieh defendant may legally apply the exhibit. 4. Where a witness on behalf of the state while on the witness-stand was asked the question, “Under what circumstances did you see him?” (referring to defendant), and the witness answers, “The Chinaman — the Chinese porter at my house pointed him out to me and told me to be careful of him,” held, that the court did not err in denying a motion to strike the answer from the record. 5. Where a trial judge, after admonishing a jury before taking a recess in the course of the trial of a criminal case, said in the presence of the jury: “The court desires to say to counsel concerned in this case that he is of the opinion that too much time is being consumed in the examinations, as the same questions are being repeatedly asked many times and much needless repetition being indulged in, and that perhaps nine out of ten questions whieh have been asked are irrelevant and immaterial because of this continued and useless repetition,” held, that the remarks of the court were not prejudicial to the rights of the defendant. 6. Where a defendant is on trial on the charge of murder and the evidence on the part of the state tends to show that the murder was committed in an attempt to commit robbery, and the state introduced evidence tending to show that defendant was “broke” and without any means, it would have been proper for the court to allow the defendant’s offer to prove that he was in fact not “broke,” but, on the contrary, had money and property of his own and was in good financial circumstances; and further, held, that the ruling of the court excluding such evidence was not reversible error. 7. Where a defendant, charged with the commission of a homicide, is endeavoring to establish an alibi and testifies that at the time the homicide occurred he was at another place and in his room and in bed, and that he heard a conversation between two persons in a room opposite his and details the conversation, and the persons who occupied the room opposite the defendant testify that they heard the shooting and that one of them opened the door and made remarks about the matter, and then the defendant seeks to have such witnesses detail the conversation had, and the court refuses to admit the evidence, held, that while it would not have been .erroneous for the court to have admitted a detailed account of the conversation for the purpose of corroborating the defendant’s evidence and establishing his alibi, still the court’s ruling excluding such evidence was not prejudicial error, for the reason that the evidence admitted covered substantially all the facts tending to corroborate defendant’s evidence as to the alibi. 8. Upon a trial where a defendant is charged with murder, and the evidence tends to show that the murder was committed in an attempt to commit a robbery, and the court admits evidence as to the good reputation of the defendant for peace and quietude, there was no prejudicial error in the ruling of the court in thereafter excluding a general offer to prove the good reputation of the defendant “for truth and veracity, and honesty and integrity, morality and immorality, sobriety and inebriety.” 9. A defendant who is charged with homicide should, as a rule, be allowed to show, if he can, that he has a good reputation in his community and among those who have known him both for peace and quiet and truth and veraeity, in all cases where the evidence is circumstantial or the plea is one of self-defense and the defendant’s truthfulness or honesty is brought in question. 10. Evidence in this case considered, and held sufficient to support a verdict of conviction. 11. Showing made in this ease for a new trial on the grounds of newly discovered evidence, held insufficient to require the granting of a new trial.