that any one saw Billings prior to his death. About 4 or 5 o'clock on the afternoon of December 4th, Le Roy Mix, a small boy living in the east end of Cœur d'Alene City, found a black hat lying in the middle of the street, which was afterwards identified as the hat that Billings was wearing that morning. H. E. Seagreaves, in going to his home in the east end of the city, saw a trail in the snow, running across the road, which indicated that something heavy had been dragged across the road. The next day Luther Mashburn, a small boy, on his way to school observed the same trail. This boy seems to have told some of his classmates at school about the matter, and that afternoon on the way home he, in company with a couple of other school boys, followed the trail, and discovered the body of Billings about 75 or 100 feet from the road, partially covered with some stumps and logs. They reported this fact to the sheriff's office, and the body was taken and identified, and an inquest was thereafter held.

1

The first count charged, in the usual and ordinary form of criminal pleading, that the defendant had willfully, deperately, and with premeditated malice aforethought, killed and murdered one John H. Billings, etc. In the second count the same offense was charged, but it was charged that the offense was committed in the perpetration of the crime of robbery, and the information in this count set out in detail the description of the watch that the defendant was charged with having taken, and that the murder was committed in the perpetration of the crime of robbery. The defendant urged in support of his demurrer that two separate and distinct offenses had been charged in the information; one consisting of murder, and the other consisting of robbery.

Our statute has defined murder (section 6560, Rev. Codes), and express and implied malice (section 6561, Rev. Codes), and section 6562, Rev. Codes, defines the degree of murder. The latter section says: "All murder which is perpetrated by means of poi

perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, or mayhem, is murder of the first degree. All other kinds of murder are of the second degree."

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 tated killing, or which is committed in the pawned with a pawnbroker in the city of Spokane, and it was claimed by the state that this was done by the defendant. The person who pawned the watch gave the name as Fred George, and the description of the person who deposited the watch with the pawnbroker corresponds with the description of the defendant. The contract with the pawnbroker was signed by Fred George, and the signature is identified as that of the defendant, and it has nowhere been disputed by the defendant. The defendant was subsequently, on or about the 15th of December, located at Lewiston, and was taken back to Kootenai county for trial.

Section 7681, Rev. Codes, authorizes a single offense to be charged in different forms and under different counts, and reads as follows: "The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count."

*

It will be observed that under the provisions of section 6562, supra, a murder committed in an "attempt to perpetrate robbery *** is murder in the first degree," irrespective of any deliberation or premeditation. People v. Mooney, 2 Idaho (Hasb.) 17, 2 Pac. 876; State v. Phinney, 13 Idaho, 307, 89 Pac. 634, 12 L. R. A. (N. S.) 935. The prosecutor no doubt thought there might be some question as to his proving deliberation and premeditation on the part of the defendant in the commission of this particular offense, but at the same time was im

At the inquest held over the body of Billings it was found that three wounds had been inflicted on the head, two of which were sufficient to have caused death; that the wounds appeared to have been inflicted with a blunt instrument. A club broken in three pieces was found near the body; this was similar to a club or stick the defendant was using as a walking stick when he was seen with Billings in that part of the city. It also appeared that the deceased had been robbed of everything of value he had in his pockets, and the pockets were turned wrong-pressed with the idea that the homicide had side out. His watch was gone, and he had no money in his pockets. No such person as Harry George was produced as a witness, and no contention was made at the trial that there was such a person, or that there was in fact any chicken ranch about Cœur d'Alene corresponding to the purported Harry George ranch.

been committed in the perpetration of a robbery, and therefore concluded that he would charge in a separate count that the killing was done in the perpetration of robbery, and that he would thereby save the state the necessity of making distinct and separate proof as to deliberation and premeditation. 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- [3] 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. 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 was 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 father shot and killed defendant's mother, and then shot his brother, after which he committed suicide.

Nothing was disclosed by the affidavits which tended to show that the defendant was insane, or irresponsible for his acts. However degrading his early surroundings and associations may have been, and however blunted and distorted his moral sensibilities were, it is, nevertheless, very clear from the record that he was not an insane man. It was not shown by the affidavits that a continuance would enable the defendant to secure evidence that would be of any assistance to him on the trial. More than six months after his conviction a motion was made for a new trial, but no showing was made whatever as to the discovery in the meanwhile of any new evidence, or evidence that would be of value or assistance to him, should a new trial be granted. An application for a continuance is addressed to the sound judicial discretion of the court, and the action of the court in refusing a continuance will not be disturbed on appeal, unless it is made to appear to the appellate court that there has been an abuse of discretion on the part of the trial court. Territory v. Guthrie, 2 Idaho (Hasb.) 432, 17 Pac. 39; State v. St. Clair, 6 Idaho, 109, 53 Pac. 1; State v. Rooke, 10 Idaho, 388, 79 Pac. 82; State v. Wetter, 11 Idaho, 438, 83 Pac. 341; State v. Steers, 12 Idaho, 174, 85 Pac. 104. The motion for a continuance was properly denied.

[5] Appellant also complains of the action of the court in admitting evidence, identifying a watch owned by Billings, and subsequently pawned by defendant with a pawnbroker at Spokane. The information described the watch as a 15-jewel Waltham watch; the evidence showed that the watch was an 11-jewel Waltham watch. Witnesses positively identified the watch as being Billings' watch, and the only discrepancy consists in the conflict between the allegations of the information and the testimony of the witnesses as to the specific description in this respect. This was immaterial. The watch was identified as Billings' watch, and on that point there is no conflict in the evidence. It makes no difference whether it was an 11-jewel watch or a 15-jewel watch, if it was Billings' watch, and the defendant, subsequent to Billings' death, pawned the watch. It was a circumstance proper and very material to be submitted to the jury for their consideration. Witnesses might easily be mistaken as to the number of jewels in a watch, and still be certain as to the identity of the particular watch. As we have before said, this was not a prosecution for robbery or larceny; the evidence of robbery was only introduced in the case for the purpose of supplying evidence of deliberation and premeditation.

There is no merit in the objection made by the appellant to the evidence of the witness Platt as a handwriting expert, in identifying the handwriting and signature of the defendant to the letter written in the latter [4] 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 origfirst 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 Coeur d'Alene would want to use the witness for that pur

on the information, and made a showing to the effect that he had not previously known that he would want to use the witness. The court permitted his name to be indorsed on the information at that time, and allowed him to testify. There was no error in this action of the court. The witness appears to have only testified as a handwriting expert in identifying the writing and signature of the defendant. This in no way surprised or prejudiced the defendant.

It is now

whereabouts on December 4th.
urged that the court erred in permitting the
witness to be examined as to matters occur-
ring on the 4th, for the reason that it was
not proper cross-examination. The correct-
ness of this rule must be measured and de-
termined by the statute (section 6079, Rev.
Codes), which reads as follows: "The op-
posite party may cross-examine the witness
as to any facts stated in his direct exam-
ination or connected therewith, and in so
doing may put leading questions; but if he
examine him as to other matters such exam-
ination is to be subject to the same rules
as a direct examination."

It will be observed from a consideration of the foregoing provisions of the statute that cross-examination is limited to facts stated in the direct examination, "or connected therewith." It seems to us that the question as to when the defendant left Cœur d'Alene was very intimately connected with his statements made on examination in chief. He had testified to going to Coeur d'Alene City with Billings and had given a somewhat detailed account of his movements from the time he went until the morning of the 4th. The state had been unable to prove positively and definitely as to just when he did leave Cœur d'Alene, but it had been well established that he left Coeur d'Alene, and apparently that he had left about noon of the 4th. We cannot say that it was error to ask him on cross-examination when he left Cœur d'Alene; on the other hand, we are satisfied it was proper cross-examination. See State v. Larkin, 5 Idaho, 200, 47 Pac. 945; State v. Anthony, 6 Idaho, 383, 55 Pac. 884.

The letter written to Mrs. Ward, being once identified as having been written by defendant, was properly admissible for the purpose of showing the defendant's financial condition, his prospects and intentions, and the fact that he was intending to take a trip somewhere; that on such trip he was intending to make a raise of some money, apparently about the sum of money that Billings was shown to have had at the time he went with defendant to Coeur d'Alene City. [6] The most serious question presented on this appeal revolves about the action of the court in its ruling as to the scope of cross-examination which should be allowed the state in cross-examining the defendant. After the state had rested its case, the defendant took the stand and testified, first, as to his early life and associations, and the conditions under which he was reared; second, his acquaintance with one Harry George, and as to a letter which he had received from George concerning a chicken ranch owned by the latter; and, third, the trip with Billings to Coeur d'Alene City on December 3d, and the events and happenings of that afternoon, evening, and night at Coeur d'Alene City, including the search and inquiry made in the vicinity of Coeur d'Alene, [8] Further along in the cross-examination or between Coeur 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, Coeur 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 Coeur 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 mornman I met when I got off the train." Thereing 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 Coeur d'Alene Inn. ground that it was not proper cross-examination. The court overruled the objection, and the defendant refused to answer. action of the court is assigned as error.

This

[7] The state then cross-examined defendant, covering all the matters about which he had testified on his direct examination. In course of his cross-examination he said: "I It should be remembered that the state stayed in Coeur 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 mornof "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 declined to answer the question, or any other question, concerning his movements or

the pawn ticket, or any part of that transaction in his evidence in chief; this question 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 obligation to prove a good character until his character is in some way attacked, and the jury will not be justified in drawing any inference unfavorable to the defendant, from the fact that he has offered no proof as to good character in this case."

The court refused to give this instruction. No evidence was introduced touching the defendant's reputation. He did not offer any evidence tending to show his general reputation in any respect, and without his doing so the state could not assail his reputation. For some reason, however, the defendant request

We fail to see, however, how the defendant could have been prejudiced by this question, for the reason that the state had already proven the pawning of the watch, and that the watch was deposited with the pawnbroker by the defendant. See sections 8236 and 8070, Rev. Codes; State v. Larkin, 5 Idaho, 212, 47 Pac. 945. This evidence has not been disputed in any way, and was not disputed by the defendant. It is true that the defendant was placed under the necessity of either answering the question or exercising his right of refusing to answer, and that he did accordingly decline to answered the court to instruct the jury, as above set the question. This may have tended to confirm the jury in their belief that the defendant had seen George and given him the pawn ticket, or else he would have answered in the negative. If he had not done so, then it was his own fault in not answering the question in the negative; if he had done so, we do not see where he was injured or prejudiced by not answering the question at all. These observations are made in view of the fact, as above stated, that it had already been established by competent evidence that he had pawned the watch and received the pawnbroker's ticket for the same.

out, to the effect that the law presumes every one to have a good reputation, or rather a good character, as stated by the requested instruction. It is a well-recognized rule of law that the character, or, more correctly speaking, the reputation, of every one is presumed to be good, and this is true of one who is accused of the commission of a crime. He is presumed to bear a good reputation. No issue, however, as to the reputation of the defendant can arise until he raises it himself. The state cannot introduce evidence to show that a defendant bears a bad reputation, until he first puts his reputation in issue. If he feels that he can establish by his acquaintances and neighbors the fact that he bears a good reputation, the law permits him to introduce such evidence, and then the state may show the contrary, if it can do so. State v. McGreevey, 17 Idaho, 468, 105 Pac. 1047. In such cases an issue arises, and it is proper for the court to instruct the jury as to the law on the subject. Until such an issue arises, however, there is no occasion for an instruction on the subject of the defendant's good character or reputation. We do not see where any error can arise by reason of the court's declining to give an instruction on this subject, when there was no evidence introduced, either to support or impeach the defendant's reputation.

[9] Appellant next complains of the action of the court in refusing to give a number of instructions requested on the part of the defendant. Defendant's requests, Nos. 34, 35, and 38, define the law applicable to the defense of insanity in such cases. The court refused to give the instructions, and while it does not affirmatively appear from the record why he refused the instructions, we are justified in concluding that he did so because there was no defense offered or evidence submitted in the case tending to establish the insanity of defendant. Counsel for the defendant did not introduce any evidence in the case which tended in the slightest degree to even suggest that the defendant was laboring under any mental disability; that he was insane, or had any tendency to insanity. The defendant had testified to his father's vicious traits and propensities, and this evidence was probably submitted to the jury for the purpose of showing that the defendant had been brought up under adverse circumstances and conditions, and that his father before him was degenerate and of vicious instincts. This evidence might tend to show that the defendant was criminally or viciously inclined by heredity, but it did not even tend to establish insanity. Criminality | proper subject for evidence on each side. If and insanity are two very different things, although the latter is sometimes resorted to as a cover or shield to protect one who harbors the former.

[10] Defendant's request No. 37 was with

In Addison v. People, 193 Ill. 405, 62 N. E. 235, an instruction was requested by the defendant to the same effect as the instruction requested in this case. The trial court refused to give the instruction, and the action of the court was assigned as error on appeal. The Supreme Court of Illinois, in commenting on the question, said: "Defendant had a right to put his reputation as a lawabiding citizen in issue, if he saw fit. Jupitz v. People, 34 Ill. 516. In such case it would be a

he should establish the fact that he was of good character as a law-abiding, peaceable citizen, the jury would be bound to take it into account in making up their verdict; but if he should offer such evidence the people