State v. Webb

HUSTON, C. J.

— Defendant was convicted of the crime of robbery, from which judgment of conviction, and from the order denying his motion for a new trial, defendant appeals. Defendant makes eighteen assignments of error, as grounds for a reversal of the judgment. The first assignment of error is to the sufficiency of the indictment. Defendant demurred to the indictment upon the grounds: “1. That it does not substantially- conform to the requirements of sections 7677-7679 of the Bevised Statutes of Idaho; 2. That the facts stated in said indictment do not constitute a public offense.’ These ob- *433 jeetions are elaborated at some length in the brief of counsel, but we are unable to agree with his contention. We think the demnrrer was properly overruled. The second assignment of error is to the action of the trial court in sustaining the objection of the district attorney to certain questions propounded by counsel for the defense to the prosecuting witness Fred Gagnon. The prosecuting witness, the person upon whom the robbery was alleged to have been committed, had testified, in substance, “that he arrived in Wallace on the evening of October 25, 1897, at about half-past 9 o’clock; that he met one Foust in front of Daxon’s saloon, on the sidewalk, about 10 o’clock; that, on the morning of the twenty-sixth day of October, A. D. 1897, he lost some money; that he lost it because the defendant, George G. Webb, and Theodore Foust took it away from him.” Witness then describes the money he alleges was taken from him, being fifty-five dollars in all. Witness then proceeds to describe the manner in which said money was taken from him, as follows: He (witness) was on the bridge. Theodore Foust came up after him, and told him to take a walk uptown. That witness said no, and said to Foust that he was waiting for a train, and that he did not want to go uptown then. That Foust said, “Hell! Come on; let’s take a walk.” That he then walked out with him. That he walked out of the Klondike saloon, .and then Foust said he was sick. That they went onto the bridge together, and Foust was leaning over the railing either vomiting or pretending to do so, and witness was standing by his side, with both hands in his pockets. That he was caught under the neck, and thrown on his back, by the defendant.” “That he saw defendant’s face, and recognized him.” That he called Foust to help him, but there was no answer. That Foust then held him down, and that defendant and Foust took the money from him while he was so held. That, after taking his money, defendant and Foust ran away. It seems, from the time witness Gagnon first met Foust, in front of Daxon’s saloon, the witness, Foust, and several other parties were drinking together, at various saloons in the town. Hpon the preliminary examination of defendant, Gagnon had testified as follows: “I got here on the stage from *434 Murray. I went inside the saloon. I tools a drink, and walked out. As soon as I got outside, I saw Theodore Foust, and shook hands with him. I told him to come inside the saloon, and take a drink. I told him to wait a minute for me. I went outside, and went to another saloon. I changed ten dollars, and gave him five dollars. We then stayed around together until I was robbed.” The defense sought to show by the prosecuting witness where he was, and with whom, from 10 o’clock P. M. until 5 o’clock A. M., the time when he alleges he was robbed, and this the trial court refused to let him do. This was error. The defendant was entitled to rigid and thorough examination of this witness, “as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions.” (Rev. Stats., sec. 6079, amended by Laws of 1889.) This witness was the party making the charge against the defendant. It would be a perversion of the rules of evidence, a denial of justice, to say that the defendant, in a case like this, must be confined, in his cross-examination, of this witness, to his recital of what took place immediately at the time of the robbery, in face of the fact that it was already shown that the parties had been on friendly terms and drinking together throughout the night. No such rule is contemplated by or expressed in the statutes. The defendant was entitled to go into a searching examination of the witness Gagnon as to his whereabouts, his doings, and the company he was in, from the time he met defendant and Foust to the time of the robbery. To refuse it was a prejudicial error. The trial court permitted counsel for defendant to read all of the testimony cited above as having been given by the witness Gag-non on the preliminary examination, except the words, “We then stayed around together until I was robbed.” TJpon what principle of law this ruling is based we are unable to comprehend. It was error. What we have said covers the assignment of errors up to and including the seventh assignment. The eighth and ninth assignments of error are not well taken. There was no error ih the instructions therein challenged. The tenth assignment is to the giving of the fifth instruction requested by the state, and in this instruction we find no error, *435 except in the closing paragraph, where the court says: “The defendant has been examined as a witness upon his own behalf. This it is his right to be, and the jury will consider his testimony as they will that of any other witness examined before them. It is proper, however, for the jury to bear in mind the situation of the defendant, the manner in which he may be affected by your verdict, and the very grave interest he must feel in it; and it is proper for the jury to consider whether this position in interest may not affect his credibility or color his testimony.” When a defendant goes upon the witness-stand in a criminal action, he occupies the same position as any other witness. He is subject to the same rules, and is entitled to the same immunities and protection, as any other witness. To send a defendant to the jury handicapped by such an instruction as this, especially the latter portion of it, is a vivid illustration of “keeping the word of promise to the ear, and breaking it to the hopes.” We think the giving of the last paragraph of this instruction was error. (Thompson on Trials, sec. 2421, and cases cited in notes; Buckley v. State, 62 Miss. 705 .) It is incumbent upon the state to establish the guilt of the defendant in a criminal action to the satisfaction of the jury, by competent evidence, beyond a reasonable doubt. If the defendant relies upon an alibi for his defense, the burden of establishing such alibi is upon him. If he succeeds, by competent evidence, in raising a reasonable doubt in the minds of the jury as to the fact of his presence at the place and at the time the offense was committed, he is entitled to an acquittal. As to the amount or character of the evidence necessary to create such a doubt, we think it is a matter upon which the jury are alone to pass. If the evidence offered by the defendant in support of his claim or defense of alibi is sufficient to raise a reasonable doubt in the minds of the jury, then the state has not satisfied the jury of the guilt of the defendant beyond a reasonable doubt, and he is entitled to an acquittal. The- jury could hardly say they were satisfied of the guilt of the defendant beyond a reasonable doubt, while they entertain a doubt as to his presence at the time and place where the offense was committed, and when without such presence it would *436 be impossible for him to commit the offense. The instructions of the court upon this subject were conflicting, and therefore erroneous. The sixth instruction asked by the state was, we think, erroneous, while the thirteenth instruction correctly states the law. (State v. Shafer, 22 Mont. 17 , 55 Pac. 526 ; State v. Rolla, 21 Mont. 582 , 55 Pac. 523 .) We find no error in the refusal of the court to give the instructions asked by defendant. While it is true that the fourteenth instruction asked by the defendant correctly states the law, the court had already given it in the thirteenth instruction asked by the defendant, and its repetition could avail nothing. For the reasons herein given, the judgment of the district court is reversed, and the cause remanded for a new trial.

Quarles, J., concurs. Sullivan, J"., did not sit in the case, on account of sickness.