State v. Wright , 12 Idaho 212 ( 1906 )

STOCKSLAGER, C. J.

Appellant was charged with the crime of grand larceny in the district court of Washington county, to wit: “That the said John Wright on or about the fifteenth day of May, 1905, in the county of Washington, state of Idaho, then and there one bay horse, the same being the personal property of W. M. Pearson, did unlawfully and feloniously steal, take, lead and drive away — contrary to the form, force and effect of the statute in such eases made and provided, and against the power, force and dignity of the state of Idaho.”

To this information defendant plead not guilty; a trial was subsequently had, which resulted in a verdict of guilty. Defendant moved for a new trial, which was overruled. The appeal is from the order overruling the motion for a new trial and from the judgment. Learned counsel for appellant assigned two errors, to wit: 1. “ That the court misdirected the jury in matters of law, and erred in the matter of decisions of questions of law arising in the trial of the cause.” 2. “That the verdict is contrary to law and the evidence.”

Counsel for respondent moved to dismiss the appeal from the order of the court denying a new trial, and also to strike the bill of exceptions from the record for the reason that appellant did not comply with section 7953 of the Bevised Statutes of 1887, by making his application for a new trial within ten days after verdict. This section provides: ‘'The application for a new trial may be made before or after judgment; and must be made within ten days after verdict, unless the court or judge extends the time.”

The verdict was rendered on November 1st, and on November 3d the defendant served and filed what is designated “notice of motion for new trial,” wherein he stated all the grounds upon which he thereafter moved the court for a new trial and addressed the notice to the district judge and the prosecuting attorney in and for Washington county. On the same date, the prosecuting attorney entered a stipulation with defendant’s counsel for an extension of time for a period of sixty days in which to prepare and present a bill of exceptions, and on the same date the trial judge made and entered an order to the same effect. It is clear and undisputable, we think, that the prosecuting attorney, district judge, and all parties to this action understood the so-called “notice of motion for new'trial” as amounting to an “application for a new trial” within the meaning of section 7953 of the Revised Statutes. Had they not so understood it, there would have been no use or object in granting an extension of time for the settlement of “a bill of exceptions and statement of the case on motion for a new trial” as was done by the trial court. The foregoing views are also re-enforced by the fact that the prosecuting attorney made no objection whatever to the consideration of defendant’s motion for a new trial when the same was formally made, on the ground that the same had not been made within the statutory time. The contention which is here made by the attorney general for the first time in this court was never presented to the trial judge nor urged in any manner until the case was called for hearing in this court. We are admonished by section 8070 of the Revised Statutes that in the hearing of criminal cases on 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.” This section has been time and time again invoked by this court against defendants who were relying on mere technical objections, and we can see no reason why the same statute is not as clearly applicable to and enforceable against the state when it urges a mere technical variance from the statutory requirements which appears neither to have misled nor prejudiced the rights of the people in any respect whatever. It is clear to my mind that the appeal from the order denying defendant’s motion for a new trial should not be dismissed. Section 8056 of the Revised Statutes provides that “If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day and term, on motion of the respondent upon five days’ notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. ’ ’ The objection urged here does not amount to a substantial irregularity. It makes no difference what a party litigant calls a paper or document he files in legal proceedings; the court will look to the purpose, effect and object of the document. The notice given by defendant in this case advised the state beyond all peradventure that he would formally move for a new trial as soon as he could get his bill of exceptions and statement prepared and settled. And in pursuance of this notice, he prepared, served and presented his statement, procured the settlement of the same, and thereupon made his formal motion for a new trial. The rule announced in State v. Smith, 5 Idaho, 291, 48 Pac. 1060, will be so modified as to hold that where a notice of intention to move for a new trial is made within the statutory time and contains the grounds of the application and is treated by the trial court and respective counsel as an application for new trial, it will be so treated on appeal.

The insufficiency of the evidence to sustain the verdict is assigned as error. On an examination of the evidence we conclude that there was sufficient to support the verdict.

The giving of instructions 11 and 12 is assigned as error. Instruction 11 is as follows: “Possession of property recently stolen is not evidence sufficient of itself to warrant a conviction. It is merely a circumstance to show guilt, which, taken in connection with other evidence, is to determine the question of guilt. If, however, the jury believe, beyond a reasonable doubt, that the property described in the information was stolen, and was seen in the possession of the defendant shortly after being stolen, the failure of the defendant to account for such possession or to show that such possession was honestly obtained, is a circumstance tending to show his guilt; and the defendant is called upon to explain the possession m order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence discloses any such.”

The twelfth instruction reads: ‘ ‘ The court instructs you that in order to find that the property described in the information was in the possession of the defendant, for the reason that it was found in the possession of Zibe Morse and Thomas Jackson, if you find that it was in their possession, then you must find that the said Zibe Morse and Thomas Jackson were authorized and directed by the defendant to take possession of said property described in the information for and on behalf of said defendant, and as the property of said defendant.” We think that those instructions correctly state the law, and there was no error in giving them. They should not, however, be used as a model, as they are not as clear as they might be drawn, and might tend to confuse. The court does not assume by either instruction that the evidence shows any particular’ fact; both are conditional, and leave the question of fact in each instance for the jury to determine, and suggest the law to be applied in ease they find certain facts to exist.

Counsel for appellant also submitted a peremptory instruction for the consideration of the court to be given to the jury, which was in effect to return a verdict of not guilty, and urges that the court erred in not giving this instruction. There are two reasons why the court did not err in refusing to give that instruction: 1. In criminal cases, the court is not authorized to direct the jury to return a verdict of not guilty, but may so advise, which advice the jury may decline to follow. (Rev. Stats., sec. 7877; Territory v. Neilson, 2 Idaho, 614, 23 Pac. 537.) And, 2. The evidence was sufficient to sustain the verdict.

The judgment is affirmed.

Ailshie, J., and Sullivan, J., concur.