State v. O'Brien , 13 Idaho 112 ( 1907 )

SULLIVAN, J.

The defendant was. convicted of the crime of burglary, in the first degree, and sentenced to serve a term of twelve years in the state penitentiary. This appeal is from the judgment alone. None of the evidence given on the trial is contained in the record and this appeal is presented on questions of law alone.

The first error assigned is that the appellant was not given a fair and impartial trial, for the reason that the record failed to show that he was ever informed by the court or by anyone tinder the direction of the court before the jury was called, or at any time, that if he intended to challenge an individual juror he must do so before the jury was sworn. This assignment is based on the fact that the record fails to show that the defendant was so informed of his rights. That question was disposed of in the case of State v. Sutiles at this term of the court. (See ante, p. 88.) It was there held that the fact that the defendant was informed of his rights under the statute is not required to be shown by the record, and that all presumptions are in favor of the regularity of the proceedings of a court of record.

The second error assigned is the giving of instructions 7, 9 and 11. These were instructions given by the court on its own motion, and no exceptions thereto were taken and embodied in a bill of exceptions, and for that reason cannot be reviewed here. This court held in State v. Sutiles, supra, that it was obligatory upon the defendant to except to any and all instructions given by the court on its own motion at the time given, and if he failed to do so, he was deemed to have waived any objections thereto, and that in ease such exceptions were relied on upon appeal they must be settled and saved by a bill of exceptions. As that was not done in this case we cannot review the instructions given by the court on its own motion.

The third error assigned is the refusal of the court to give the instructions asked for by the defendant. Under t.Tn'g assignment counsel for appellant contends that the court erred in refusing to give instruction No. 3 requested by the defendant, which instruction defines larceny in the language of the- statute. By .the information the defendant was charged with the crime of burglary, and that crime was defined by'the court in its instructions to the jury. Under the provisions of section 7886, Revised Statutes, the court in charging the jury must state to them all matters of law necessary for their information, and on the trial of a defendant for the crime of burglary there might be a necessity for defining the crime of larceny to the jury, but whether it was necessary in the case at bar for the court to so charge the jury we cannot ascertain, as the evidence is not before us, and the presumption is that the court would have defined larceny to the jury if the evidence in the case showed that it was necessary to do so. As the record fails to show the necessity of such an instruction, we cannot say that the court erred in refusing to give it. We find no error in the record and the judgment is affirmed.

Ailshie, C. J., concurs.