State v. O'Brien

Criminal Daw — Right to Challenge Jury — Pailtjre to Admonish Jury — Presumption of Regularity of Proceedings of Court of Record-Instructions by the Court — Exceptions to Instructions — Refusal to Give Instructions. 1. Under the provisions of section 7826, Revised Statutes, the court, or some one under its direction, is required to instruct the defendant of Ms right to challenge an individual juror, and that if he desires to do so he must exercise the right before the jury is sworn, but the fact that such duty was performed is not required to be shown by the record which constitutes the judgment-roll on appeal. 2. All presumptions are in favor of the regularity of the proceedings of a court of record, and in the absence of any showing to establish the fact as to whether or not the court has complied with the requirements of the law in the trial of a case, the presumption is that it has so complied. 3. Under the provisions of section 7946, Bevised Statutes, all written charges presented and requested by either the state or the defendant are deemed excepted to as a matter of law, and such exceptions need not be embodied in a bill of exceptions in order to have them reviewed on appeal. 4. Under section 7940, Bevised Statutes, the defendant is required to take exceptions to any and all instructions given by the court on its own motion which he deems to be prejudicial to him or contrary to law, and in order to have such exceptions reviewed on appeal they must be embodied in a bill of exceptions. 5. On a prosecution for burglary, where the defendant was convicted of burglary in the first degree, and the evidence is not before the court, the court will not presume error, because of the failure of the court to define larceny in the instructions to the jury. (Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph. T. Morgan, Judge. Defendant was convicted of the crime of burglary and sentenced to a term of twelve years in the state penitentiary. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so before the jury is sworn. (Rev. Stats., sec. 7826.) The failure of the record to show that defendant was acquainted with his rights under this law, since it appears that he did not exercise the privilege of challenging any of the jurymen, indicates that he was ignorant of what .was authorized by the law to secure an impartial and unprejudiced jury. The definition of larceny is one of the most important elements of the accurate definition of burglary, when the charge is the entering of a railroad car with the intent to commit larceny therein. The jury should be instructed as to what larceny is under the law in order that the members may be properly informed as to when burglary based on an intent to commit larceny has been in reality committed. Instructions to the jury should cover fully and define all offenses included in the main offense charged. (Walton v. State, 29 Tex. App. 163, 15 S. W. 646; State v. Yoke, 87 Iowa, 33, 53 N. W. 1088; People v. Taylor, 36 Cal. 255, 267; People v. Ramirez, 13 Cal. 173.) At folio 18 of the record it affirmatively appears that four jurors were peremptorily challenged. We cannot see, therefore, even if a showing were made that the court disregarded its duty, that the defendant was prejudiced in any particular. He was represented by counsel, and as is said in the case of People v. Elswortk, 92 Cal. 594, 28 Pac. 604: “The appellant suffered no prejudice from neglect of the court to inform him of his right to challenge jurors as provided in section 1066 of the Penal Code, as he was represented by counsel, unless we are to assume that his counsel was incompetent.” The record fails to show that an exception was taken to any of said instructions at the time of the trial. “Where instructions are given by the court upfm its own motion, they must be excepted to before the verdict, to be considered here.” (State v. O’Donald, 4 Idaho, 343, 39 Pac. 556; State v. Hurst, 4 Idaho, 345, 39 Pac. 554; People v. Biles, 2 Idaho, 114, 6 Pac. 120.) . The next reason why the instructions given .by the court of its own motion cannot be considered here is that they are not incorporated in a bill of exceptions. (People v. Williams, 2 Idaho, 366, 16 Pac. 552; People v. Woods, 2 Idaho. 364, 16 Pae. 551; State v. Walter, 1 Idaho, 386; State v. Watkins, 7 Idaho, 35, 59 Pac. 1106.) In an indictment for burglary drawn under the statute it is not necessary to allege the value of the property intended to be stolen. (People v. Stapleton, 2 Idaho, 47, 3 Pac. 6.) It is, therefore, apparent that the distinction between grand and petit larceny has no place in an instruction on a trial for burglary because it is entirely immaterial what was the value of the property with respect to which the larceny was intended to be committed. (Tarver v. State, 95 Ga. 222, 21 S. E. 381.)