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that any one saw Billings prior to his death. ! The first count charged, in the usual and About 4 or 5 o'clock on the afternoon of De- ordinary form of criminal pleading, that the cember 4th, Le Roy Mix, a small boy living defendant had willfully, denperately, and in the east end of Cour d'Alene City, found with premeditated malice aforethought, killa black hat lying in the middle of the street, ed and murdered one John H. Billings, etc. which was afterwards identified as the hat in the second count the same offense was that Billings was wearing that morning. H. charged, but it was charged that the of. E. Seagreaves, in going to his home in the fense was committed in the perpetration of east end of the city, saw a trail in the snow, the crime of robbery, and the information running across the road, which indicated that in this count set out in detail the description something heavy had been dragged across of the watch that the defendant was charged the road. The next day Luther Mashburn, with having taken, and that the murder was a small boy, on his way to school observed committed in the perpetration of the crime the same trail. This boy seems to have told of robbery. The defendant urged in support some of his classmates at school about the of his demurrer that two separate and dismatter, and that afternoon on the way home tinct offenses had been charged in the inhe, in company with a couple of other school formation; one consisting of murder, and boys, followed the trail, and discovered the the other consisting of robbery. body of Billings about 75 or 100 feet from Our statute has defined murder (section the road, partially covered with some stumps 6560, Rev. Codes), and express and implied and logs. They reported this fact to the malice (section 6561, Rev. Codes), and secsheriff's office, and the body was taken and tion 0562, Rev. Codes, defines the degree of identified, and an inquest was thereafter murder. The latter section says: "All mur. held.
der which' is perpetrated by means of poi. At about 2:50 p. m. of this same day, De- son, or lying in wait, torture, or by any othcember 4th, the watch which was after- er kind of willful, deliberate, and premediwards identified as Billings' watch, was i tated killing, or which is committed in the pawned with a pawnbroker in the city of perpetration of, or attempt to perpetrate, Spokane, and it was claimed by the state arson, rape, robbery, burglary, or maybem, that this was done by the defendant. The is murder of the first degree. All other person who pawned the watch gave the kinds of murder are of the second degree." name as Fred George, and the description of Section 7681, Rev. Codes, authorizes a the person who deposited the watch with the single offense to be charged in different pawnbroker corresponds with the description forms and under different counts, and reads of the defendant. The contract with the as follows: “The indictment must charge pawnbroker was signed by Fred George, and but one offense, but the same oifense may the signature is identified as that of the de- be set forth in different forms under diffendant, and it has nowhere been disputed ferent counts, and, when the offense may by the defendant. The defendant was sub- be committed by the use of different means, sequently, on or about the 15th of December, the means may be alleged in the alternative located at Lewiston, and was taken back to in the same count.” Kootenai county for trial.
It will be observed that under the provi. At the inquest held over the body of Bil- sions of section 6562, supra, a murder comlings it was found that three wounds had mitted in an “attempt to perpetrate been inflicted on the head, two of which robbery
is murder in the first dewere sufficient to have caused death; that gree,” irrespective of any deliberation or the wounds appeared to have been inflicted premeditation. People v. Mooney, 2 Idaho with a blunt instrument. A club broken in (Hasb.) 17, 2 Pac. 876; State v. Phinney, 13 three pieces was found near the body; this Idaho, 307, 89 Pac. 634, 12 L. R. A. (N. S.) was similar to a club or stick the defendant | 935. The prosecutor no doubt thought there was using as a walking stick when he was might be some question as to his proving deseen with Billings in that part of the city. liberation and premeditation on the part of It also appeared that the deceased had been the defendant in the commission of this parrobbed of everything of value he had in his ticular offense, but at the same time was impockets, and the pockets were turned wrong-pressed with the idea that the homicide had side out. His watch was gone, and he had been committed in the perpetration of a robno money in his pockets. No such person bery, and therefore concluded that he would as Harry George was produced as a witness, charge in a separate count that the killing and no contention was made at the trial that was done in the perpetration of robbery, and there was such a person, or that there was that he would thereby save the state the in fact any chicken ranch about Cour necessity of making distinct and separate d'Alene corresponding to the purported Har- proof as to deliberation and premeditation. ry George ranch.
This was proper, and clearly within the pur[1, 2] The first question presented is the ac- view of the statute. Sections 7681 and 6562, tion of the court in overruling the demurrer supra. See Wharton on Homicide, p. 876. to the information. The prosecuting attor-  Appellant assigns as error the action ney in his information charged the defend of the court in refusing a continuance in ant with the same offense in two counts. I the case. It appears that the defendant was
without means to employ counsel, and that, The state showed, in the first place, that the court appointed an attorney to defend Billings had been robbed; that his pockets him. This attorney subsequently withdrew had been rifled. This had evidently been from the case, and Mr. McBee, the present done immediately after Billings had receivcounsel, was appointed by the court. An ap-ed the fatal blow. It was also shown that plication was made for a continuance in or- at that time, and immediately preceding that der to enable counsel to prepare for trial. date, the defendant had no money, or, if This application appears to have been grant- any, a very small sum. The letter written ed; at any rate, the plea of “not guilty" by him to his friend in Boise indicated that was entered on January 27th, and no further he was broke; it also indicated that he action was taken until about the 26th of wa's expecting to make a raise of about $50 February following. On the latter date a on a trip he was planning to take. He did new application was made, supported by af- not disclose in the letter the nature of the fidavits; the substance of this application trip, or the place to which he was going. was that the defendant was without means The letter disclosed the fact that he was in to investigate the case, and that counsel hard financial circumstances. He was subwas of the opinion that he should prop- sequently apprehended in the city of Lewiserly interpose the defense of insanity. The ton. It does not appear how he came to affidavits tended to show that the defend- Lewiston. It was evident at once that it ant's father had been a man of evil as- had taken some money to enable him to sociations, that he had brought the boy make the trip and meet his expenses in the up to the age of six or seven under the meanwhile. These were proper matters to worst kind of influences and surroundings, submit to the jury for their consideration. and at the age of six or seven years the  Appellant also complains of the action father shot and killed defendant's mother, of the court in admitting evidence, identifyand then shot his brother, after which he ing a watch owned by Billings, and subsecommitted suicide.
quently pawned by defendant with a pawnNothing was disclosed by the affidavits broker at Spokane. The information dewhich tended to show that the defendant scribed the watch as a 15-jewel Waltham was insane, or irresponsible for his acts. watch; the evidence showed that the watch However degrading his early surroundings was an 11-jewel Waltham watch. Witnessand associations may have been, and how- es positively identified the watch as being ever blunted and distorted his moral sensi. Billings' watch, and the only discrepancy bilities were, it is, nevertheless, very clear consists in the conflict between the allegafrom the record that he was not an insane tions of the information and the testimony
It was not shown by the affidavits of the witnesses as to the specific description that a continuance would enable the de- in this respect. This was immaterial. The fendant to secure evidence that would be of watch was identified as Billings' watch, and any assistance to him on the trial. More on that point there is no conflict in the evi. than six months after his conviction a mo- dence. It makes no difference whether it tion was made for a new trial, but no show was an 11-jewel watch or a 15-jewel watch, ing was made whatever as to the discovery if it was Billings' watch, and the defendant, in the meanwhile of any new evidence, or subsequent to Billings' death, pawned the evidence that would be of value or assist watch. It was a circumstance proper and ance to him, should a new trial be granted. very material to be submitted to the jury An application for a continuance is ad- for their consideration. Witnesses might dressed to the sound judicial discretion of easily be mistaken as to the number of the court, and the action of the court in re- jewels jn a watch, and still be certain as to fusing a continuance will not be disturbed the identity of the particular watch. As we on appeal, unless it is made to appear have before said, this was not a prosecuto the appellate court that there has been tion for robbery or larceny; the evidence of an abuse of discretion on the part of the robbery was only introduced in the case trial court. Territory v. Guthrie, 2 Idaho for the purpose of supplying evidence of (Hasb.) 432, 17 Pac. 39; State v. St. Clair, | deliberation and premeditation. 6 Idaho, 109, 53 Pac. 1; State v. Rooke, 10 There is no merit in the objection made Idaho, 388, 79 Pac. 82; State v. Wetter, 11 by the appellant to the evidence of the witIdaho, 438, 83 Pac. 341; State v. Steers, 12 ness Platt as a handwriting expert, in idenIdaho, 174, 85 Pac. 104. The motion for a tifying the handwriting and signature of the continuance was properly denied.
defendant to the letter written in the latter  Counsel for defendant made a number part of November to a Mrs. Ward at Boise. of objections to the admission of certain This was the letter to which reference has evidence, and assigns the action of the court heretofore been made. It seems in this in overruling his objections as error. The connection that Platt's name was not orig. first objection was made to the introduction inally indorsed on the information, and that of evidence showing that Billings had mon the prosecuting attorney did not know at ey in his possession on or about the date the time of filing the information that he he and defendant went to Cæur d'Alene would want to use the witness for that pur.
on the information, and made a showing to whereabouts on December 4th. It is now the effect that he had not previously known urged that the court erred in permitting the that he would want to use the witness. The witness to be examined as to matters occurcourt permitted his name to be indorsed on ring on the 4th, for the reason that it was the information at that time, and allowed not proper cross-examination. The correcthim to testify. There was no error in this ness of this rule must be measured and deaction of the court. The witness appears termined by the statute (section 6079, Rev. to have only testified as a handwriting ex- Codes), which reads as follows:
"The oppert in identifying the writing and signature posite party may cross-examine the witness of the defendant. This in no way surprised as to any facts stated in his direct examor prejudiced the defendant.
ination or connected therewith, and in so The letter written to Mrs. Ward, being doing may put leading questions; but if he once identified as having been written by examine him as to other matters such examdefendant, was properly admissible for the ination is to be subject to the same rules purpose of showing the defendant's financial as a direct examination.” condition, his prospects and intentions, and It will be observed from a consideration the fact that he was intending to take a trip of the foregoing provisions of the statute somewhere; that on such trip he was in- | that cross-examination is limited to facts tending to make a raise of some money, ap- stated in the direct examination, "or conparently about the sum of money that Bil- nected therewith.” It seems to us that the lings was shown to have had at the time he question as to when the defendant left Caur went with defendant to Cour d'Alene City. d'Alene was very intimately connected with
 The most serious question presented his statements made on examination in chief. on this appeal revolves about the action of He had testified to going to Cour d'Alene the court in its ruling as to the scope of City with Billings and had given a somecross-examination which should be allowed what detailed account of his movements from the state in cross-examining the defendant. the time he went until the morning of the After the state had rested its case, the de. 4th. The state had been unable to prove fendant took the stand and testified, first, positively and definitely as to just when he as to his early life and associations, and the did leave Cour d'Alene, but it had been well conditions under which he was reared ; sec- established that he left Cour d'Alene, and ond, his acquaintance with one Harry George, apparently that he had left about noon of and as to a letter which he had received the 4th. We cannot say that it was error to from George concerning a chicken ranch ask him on cross-examination when he left owned by the latter; and, third, the trip Cæur d'Alene; on the other hand, we are with Billings to Cour d'Alene City on De- satisfied it was proper cross-examination. cember 3d, and the events and happenings See State v. Larkin, 5 Idaho, 200, 47 Pac. of that afternoon, evening, and night at 945; State v. Anthony, 6 Idaho, 383, 55 Pac, Cour d'Alene City, including the search and 884. inquiry made in the vicinity of Cour d'Alene,  Further along in the cross-examination or between Cour d'Alene and Fernan Lake, of defendant the prosecuting attorney asked in order to locate the Harry George chicken him about his acquaintance with Harry ranch; and the further fact that the defend- George, and when he saw George last. The ant and Billings stopped overnight at the defendant, in answer to these questions, Cour d'Alene Inn and occupied the same among other things, said: "I did not see room and bed at the hotel, and that he saw him when I got back from Cour d'Alene on Billings the next morning on arising. De- this trip with Billings. He was not the first fendant closed his testimony with the morn- man I met when I got off the train." There, ing of December 4th. He gave no account upon the prosecuting attorney asked him: of himself or Billings later than, or subse- | "Did you give him the pawn ticket?” to quent to, arising on the morning of Decem- which defendant's counsel objected, on the ber 4th at the Cour d'Alene Inn.
ground that it was not proper cross-exam The state then cross-examined defend- | ination. The court overruled the objection, ant, covering all the matters about which he and the defendant refused to answer. This had testified on his direct examination. In action of the court is assigned as error. course of his cross-examination he said: “I It should be remembered that the state stayed in Cour d'Alene Friday night, and had already proven that about 2:50 p. m., Billings was with me. We slept together December 4th, the defendant, under the name that night. I next saw him the next morn- of "Fred George,” had pawned the Billings ing when I woke up.” The prosecuting at- watch with a pawnbroker in Spokane, named torney then asked the question, "When did Goldblatt. The duplicate pawn ticket had you leave Cœur d'Alene?” to which counsel been introduced in evidence; it was to this for defendant objected, on the ground that ticket that the prosecuting attorney referred it was not proper cross-examination. The in the question above stated. The defendcourt overruled the objection, and counsel ant had made no reference to the watch or took exception to the ruling. The witness the pawn ticket, or any part of that transdeclined to answer the question, or any oth- action in his evidence in chief; this queser question, concerning his movements or tion did not, therefore, relate to any matter
concerning which the defendant had testi- , ant is presumed to have, and reads as folfied, and was not proper cross-examination. lows: "The court instructs the jury that the People v. Arrighini, 122 Cal. 121, 54 Pac. character of the accused person is, in law, 593. It was error for the court to overrule presumed to be good until the contrary apthe objection to this question.
pears from the evidence, and he is under no We fail to see, however, how the defend- obligation to prove a good character until ant could have been prejudiced by this ques- his character is in some way attacked, and tion, for the reason that the state had al- the jury will not be justified in drawing any ready proven the pawning of the watch, and inference unfavorable to the defendant, from that the watch was deposited with the pawn- the fact that he has offered no proof as to broker by the defendant. See sections 8236 good character in this case." and 8070, Rev. Codes; State v. Larkin, 5 The court refused to give this instruction. Idaho, 212, 47 Pac. 945. This evidence has No evidence was introduced touching the denot been disputed in any way, and was not fendant's reputation. He did not offer any disputed by the defendant. It is true that evidence tending to show his general reputathe defendant was placed under the neces- tion in any respect, and without his doing so sity of either answering the question or ex- the state could not assail his reputation. For ercising his right of refusing to answer, and some reason, however, the defendant requestthat he did accordingly decline to answer ed the court to instruct the jury, as above set the question. This may have tended to con- out, to the effect that the law presumes evfirm the jury in their belief that the defendery one to have a good reputation, or rather ant had seen George and given him the pawn a good character, as stated by the requested ticket, or else he would have answered in instruction. It is a well-recognized rule of the negative. If he had not done so, then law that the character, or, more correctly it was his own fault in not answering the speaking, the reputation, of every one is prequestion in the negative; if he had done so, sumed to be good, and this is true of one who we do not see where he was injured or prej- is accused of the commission of a crime. He udiced by not answering the question at all. is presumed to bear a good reputation. No These observations are made in view of the issue, however, as to the reputation of the fact, as above stated, that it had already defendant can arise until he raises it himbeen established by competent evidence that self. The state cannot introduce evidence to he had pawned the watch and received the show that a defendant bears a bad reputapawnbroker's ticket for the same.
tion, until he first puts his reputation in is Appellant next complains of the ac- If he feels that he can establish by his tion of the court in refusing to give a num- acquaintances and neighbors the fact that he ber of instructions requested on the part of bears a good reputation, the law permits him the defendant. Defendant's requests, Nos. to introduce such evidence, and then the state 34, 35, and 38, define the law applicable to may show the contrary, if it can do so. the defense of insanity in such cases. The State v. McGreevey, 17 Idaho, 468, 105 Pac. court refused to give the instructions, and 1047. In such cases an issue arises, and it is while it does not affirmatively appear from proper for the court to instruct the jury as the record why he refused the instructions, to the law on the subject. Until such an iswe are justified in concluding that he did so sue arises, however, there is no occasion for because there was no defense offered or evi- an instruction on the subject of the defenddence submitted in the case tending to es- ant's good character or reputation. We do tablish the insanity of defendant. Counsel not see where any error can arise by reason for the defendant did not introduce any evi- of the court's declining to give an instrucdence in the case which tended in the slight- tion on this subject, when there was no eviest degree to even suggest that the defend- dence introduced, either to support or imant was laboring under any mental disability ; peach the defendant's reputation. that he was insane, or had any tendency to In Addison v. People, 193 Ill. 405, 62 N. E. insanity. The defendant had testified to his 235, an instruction was requested by the defather's vicious traits and propensities, and fendant to the same effect as the instruction this evidence was probably submitted to the requested in this case. The trial court rejury for the purpose of showing that the de- fused to give the instruction, and the action fendant had been brought up under adverse of the court was assigned as error on appeal. circumstances and conditions, and that his The Supreme Court of Illinois, in commentfather before him was degenerate and of vi- ing on the question, said: "Defendant had cious instincts. This evidence might tend to a right to put his reputation as a lawabiding show that the defendant was criminally or citizen in issue, if he saw fit. Jupitz v. Peoviciously inclined by heredity, but it did not ple, 34 Ill. 516. In such case it would be a even tend to establish insanity. Criminality proper subject for evidence on each side. If and insanity are two very different things, he should establish the fact that he was of although the latter is sometimes resorted to good character as a law-abiding, peaceable as a cover or shield to protect one who har- citizen, the jury would be bound to take it bors the former.
into account in making up their verdict; but (10) Defendant's request No. 37 was with if he should offer such evidence the people
would have an opportunity to prove, if they i covered both questions, and in that respect could, that his character and reputation were ' was incorrect. For the same reason, heybad. Defendant did not choose to put his ever, that we hold that the question was not reputation in issue or prove that it was good, of a prejudicial character and did not injure but sought by the instruction all the benefit the defendant, we hold that the refusal of of an affirmative finding of such fact, with the court to give the instruction was also out proof or an opportunity to combat the barmless, and does not afford grounds for claim or prove the negative. If the instruc- reversal of the judgment. It would have tion were the law, a defendant need never been entirely proper for the court to have prore good reputation, but could take the instructed the jury that the defendant was benefit of proof, which perhaps he could not not required to become a witness in the case, make.” See Brickwood's Sackett on Instruc- and that they should not raise any unfavortions, vol. 3, § 4334.
able presumption against him by reason of The other instructions requested by de- bis refusal, either to testify at all, or his fendant, except No. 46, were all substantially refusal to go into any distinct part of his covered by the instructions given by the defense, or any particular transaction in concourt, and it was therefore not error to re-nection therewith. See State v. Levy, 9 Idafuse such requests.
ho, 498, 75 Pac. 227. The failure of the  Instruction No. 46, requested by the court to give an instruction on this question defendant and refused by the court, is as 'will not justify this court in reversing the follows: "The jury is instructed that under judgment. the Constitution and laws of the state of  In the course of the argument to the Idaho, no person can be compelled to give jury by the prosecuting attorney, C. H. Potts, testimony against himself in a criminal ac- the record says: "He stated, among other tion. In this case the defendant has refus- things, that, if counsel for defendant in his ed to answer certain questions asked him on 'argument to the jury had advanced certa in the witness stand. In that regard you are other theories in this case which said C. H. instructed that he had a right so to do, and Potts specified, the jury might then acquit that the jury shall not presume from said the defendant and allow him to go out and fact that the answers to said questions would kill somebody else, to which statement of be unfavorable to the defendant, and you are the prosecuting attorney the defendant, by to render your verdict in this case the same his counsel, then and there duly excepted.” as if no questions had been asked and no re- Appellant complains of these remarks fusal to answer had been made by the de- made by the prosecutor in the course of his fendant.”
argument, and assigns the same  The request for this instruction was In support of this assignment the appellant evidently prompted by the controversy which relies on the rule announced by this court in arose over the cross-examination of the de- State v. Irwin, 9 Idaho, 35, 71 Pac. 608, 60 fendant as hereinbefore considered. Under L. R. A. 716. In this case the record does the Constitution (section 13, art. 1) and the not purport to contain the exact language statute (section 1357, Rev. Codes), "No per- used by the prosecuting attorney. It only son can be compelled in a criminal action to purports to give the substance of some statebecome a witness against himself,” but the ment made by the prosecutor in the course authorities are uniform to the effect that of his argument. This is too indefinite and after he has voluntarily made himself a wit- uncertain for the court to consider it in the ness on his own behalf he is subject to the light of a reversible error. In order for this same rules of cross-examination that apply court to intelligently pass on any alleged prejto all other witnesses. In this case the de- udicial statement made by the public prosfendant did not see fit to go into all the mat- ecutor, it is necessary for the court to be adters touching his defense, with which he vised of the language used, or its substance, must have been familiar. He also refused to and the connection in which it was used; answer some of the questions asked him on otherwise this court cannot say that the cross-examination. As we have indicated statements made were not justified by the above, one of the questions asked him was record, or that they were appeals to the prejproper, and ought to have been answered. udice and passions of the jury, for which a The other was not a proper question on judgment should be set aside. The rule across-examination. It would not have been nounced by this court in State v. Irwin, a correct statement of the rule applicable to supra, states the law on this subject as we the facts in this case to have told the jury view it, and any case falling within the rule that the defendant had a right to decline to there announced should be dealt with in the answer both of the questions that had been same manner that that case was met. This, put to him, and that the jury should not however, is not such a case. raise any unfavorable presumption against (14] The last question raised by the appelhim on account of his refusal to answer both 'lant is the alleged insufficiency of the eviquestions. It would, on the other hand, have dence to support the verdict and judgment. been proper and correct for the court to have It is urged that the evidence is wholly cirgiven that instruction to the jury with ref- cumstantial, and that it is not of such a conerence to the pawn ticket. The instruction clusive and convincing character as to estab