Opinion
March 17, 1927.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.
Conviction of unlawful possession of intoxicating liquor. Affirmed.
Bothwell Chapman, for Appellants.
Where the voir dire examination of a juror shows the existence of a state of mind which leads to the inference that he will not act with entire impartiality, a challenge for cause should be sustained. (C. S., sec. 8929, subd. 2; Const., art. 1, sec. 7; State v. Caldwell, 21 Idaho 663, 123 P. 299.)
A court should be very careful in the selection of a jury to reject all persons who are biased and prejudiced. ( State v. Clark, 27 Idaho 48, 54, 146 P. 1107.)
Where the evidence discloses probable animus on the part of a state's witness toward a defendant, the trial court should permit the fullest and most searching examination of the witness for the purpose of disclosing his motives and testing his credibility. ( State v. Bouchard, 27 Idaho 500, 506, 149 Pac. 464.)
A.H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.
In a challenge for actual bias, it must be alleged that the juror is biased against the party challenging. The challenge may be oral but it must be entered on the minutes of the court. (C. S., sec. 8932; State v. Gordon, 5 Idaho 297, 48 P. 1061.)
Where the complete examination of a prospective juror on the disputed point of disqualification is not in the transcript, the trial court's rulings in connection therewith will not be presumed erroneous. ( State v. Wilson, 41 Idaho 616, 243 Pac. 359.)
There must be a showing in the record that the necessity of accepting other jurors not qualified was created by reason of the ruling of the court on the challenge for cause against Sanger. ( State v. Hoagland, 39 Idaho 405, 228 P. 314.)
Error will not be presumed, but the record must affirmatively show the error complained of. ( State v. Dawson, 40 Idaho 495, 235 P. 326; State v. Abbott, 38 Idaho 61, 213 P. 1024.)
Where there is a substantial conflict in the evidence but sufficient competent evidence to support the verdict and judgment based thereon, the same will not be disturbed on appeal. ( State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Shepard, 39 Idaho 666, 229 P. 87; State v. White, 33 Idaho 697, 197 P. 824.)
The credibility of the witnesses, as well as the weight to be given to their testimony, is exclusively for the jury. ( State v. Abbott, 38 Idaho 61, 213 P. 1024; State v. Bouchard, 27 Idaho 500, 149 P. 464.)
Appellants were convicted of the crime of illegal possession of intoxicating liquor and appeal.
Appellants' first assignment of error is that the lower court erred in not sustaining the challenge for cause interposed to venireman W.E. Sanger.
C. S., sec. 8929, sets forth two particular causes of challenge, the second being as follows:
"For the existence of a state of mind on the part of the juror in reference to the case, or either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality, and which is known in this code as actual bias."
It was not alleged that the venireman was biased against the appellants herein, which is necessary in a challenge for actual bias.
"In a challenge for actual bias, it must be alleged that the juror is biased against the party challenging. In either case the challenge may be oral, but must be entered on the minutes of the court." (C. S., sec. 8932; State v. Gordon, 5 Idaho 297, 48 P. 1061; State v. Wilson, 41 Idaho 616, 243 P. 359.) State v. Caldwell, 21 Idaho 663, 123 P. 299, relied upon by appellants to support this assignment, is clearly distinguishable from the case at bar, for the reason that therein the prospective juror admitted he was prejudiced against the accused and that he would not want to be tried for the same offense under similar circumstances, while herein the venireman stated that he would require the defendants to be proven guilty beyond a reasonable doubt before he would find them guilty. Furthermore it does not appear that the entire examination of the prospective juror on this point of qualification appears in the transcript, and the trial court's rulings in connection therewith will not be presumed erroneous. ( State v. Wilson, supra.)
There is no showing in the record that the necessity of accepting other jurors not qualified (the juror in question having been excused on defendants' peremptory challenge) was created by reason of the ruling of the court in this respect. ( State v. Hoagland, 39 Idaho 405, at 421, 228 P. 314.)
Appellant urges that the action of the trial court in refusing to permit defendants to inquire of the state's witness, Butz, as to certain incidents which occurred some two weeks prior to the date charged in the information, for the purpose of developing facts which would tend to show the witness' motives and affect the weight and credibility of his testimony, was erroneous. Some eight objections to question asked Butz on cross-examination were sustained. No exception was saved to any of the rulings of the court with the exception of one question and thus this is the only one properly before this court ( State v. Brockman, 39 Idaho 468, 228 P. 250; State v. White, 33 Idaho 697, 197 P. 824), and it does not appear from an examination of the entire record that appellant was prejudicially affected by the court's rulings on such question.
Appellants' last assignment of error is as follows:
"The evidence is insufficient to support the verdict of the jury and the judgment entered thereon, in that the only evidence that the defendants had intoxicating liquor in their possession is found in the uncorroborated testimony of a single witness, Butz, a police officer."
The assignment in itself admits that there was some evidence upon the point that the defendants had intoxicating liquor in their possession and this is borne out by the testimony of Butz. On the other hand, the only evidence that the defendants did not have intoxicating liquor in their possession was their own testimony. There is a conflict in the evidence, but there is substantial and competent evidence to support the verdict and the judgment based thereon, and the same will not be disturbed. ( State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Bouchard, 39 Idaho 666, 229 P. 87; State v. White, supra.) This assignment goes more to the weight and credibility of the witnesses than the insufficiency of the evidence. The credibility of the witnesses and the weight to be given their testimony is a matte solely within the province of the jury. ( State v. Abbott, 38. Ida. 61, 213 P. 1024; State v. Bouchard, supra.)
The judgment is affirmed.
Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.