December 17, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Ralph W. Adair, Judge.
The defendant was charged with the crime of receiving stolen goods. The court directed a verdict for the defendant and the State has appealed. Affirmed.
H.J. Swanson, for Appellant.
The trial judge has no power that we know of which enables him to peremptorily direct a jury to acquit a defendant for want of facts or for lack of evidence. C. S., sec. 8963, advises the court what the court may do if the court deems the evidence insufficient. This statute was formerly Rev. Stats., sec. 7877. And, in State v. Peck, 14 Idaho 712, particularly on page 719, 95 P. 515, the court makes the following observation respecting this statute:
"Under this statute, if the evidence is insufficient, the court may advise the jury to acquit, but the court is not authorized to instruct the jury to acquit."
Holden Coffin and R.W. Jones, for Respondent.
Under C. S., sec. 8963, it is the duty of the court to advise the jury to acquit if he deems the evidence insufficient to warrant a conviction. The state of Montana has the same section identically as C. S., sec. 8963, and in the case of State v. Gomez, 58 Mont. 177, 190 P. 982, that court held that a total absence of evidence upon the material elements of the crime called for a peremptory instruction from the court rather than an advisory instruction.
Defendant was charged with the crime of receiving stolen goods. At the close of the State's case, the defendant made a motion for a peremptory instruction to acquit on the grounds that the information was duplicitous and that there was a total absence of evidence tending to establish defendant's guilt in certain vital particulars.
The motion was granted and the jury returned a verdict of not guilty.
We do not decide whether, if the information were duplicitous, an instruction to acquit would be proper because the information was not duplicitous. (C. S., sec. 8438; State v. Janks, 26 Idaho 567, 144 P. 779; State v. Brown et al., 36 Idaho 272, 211 P. 60; 17 R. C. L. 89; 34 Cyc. 523.) The court's action, to be justified, therefore, must have been based upon the absence of any evidence showing defendant's guilt.
At common law the trial judge had the same right to give a peremptory instruction in a criminal proceeding that he had in a civil action. ( Commonwealth v. Murphy, 33 Ky. Law Rep. 141, 109 S.W. 353.) The effect of C. S., sec. 8963, is to limit this power, not to abolish it. Where there is no evidence on which to base a verdict of guilty, it is still the right and duty of the trial court, upon proper motion, to direct an acquittal. A Montana statute, identical with our own, has been so construed. ( State v. Welch, 22 Mont. 92, 55 P. 927, 930; State v. Foster, 26 Mont. 71, 66 Pac. 565; State v. Tate, 55 Mont. 343, 177 P. 243; State v. Gomez, 58 Mont. 177, 190 P. 982; State v. Arnot, 79 Mont. 417, 256 Pac. 1083; see note in 17 A.L.R. 910.) Where, however, the evidence is merely insufficient, the court must then advise the jury to acquit, which advice the jury is not bound to follow.
The above holding does not conflict with State v. Peck, 14 Idaho 712, 95 P. 515, and State v. Downing, 23 Idaho 540, 130 Pac. 461, where the question considered was not the total absence of evidence but the insufficiency of the evidence under C. S., sec. 8963.
The evidence is not in the transcript. In its absence we must presume the trial court correctly decided that there was a total lack of evidence, in which event, by reason of the above, his ruling will not be disturbed.
The judgment is affirmed.
Wm. E. Lee, C. J., and Budge and Taylor, JJ., concur.