September 12, 1928.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Charles L. Heitman, Judge.
Fred Stewart was convicted of giving and furnishing intoxicating liquor to a minor. Reversed and remanded for new trial.
Lynn W. Culp, for Appellant.
In the cause of State v. Crea, 10 Idaho 93, 76 P. 1013, the court, speaking through Sullivan, C.J., in referring to C. S., sec. 8810, used the following language:
"Said section provides, among other things, that the prosecuting attorney must indorse on the information the names of witnesses known to him at the time of filing the same. It also provides that other names may be indorsed thereon as the court may rule, or otherwise prescribe. Under the latter provision before the court allows the name of the witness to be indorsed thereon, some showing should be made, by affidavit or otherwise, why it was not indorsed thereon at the time of the filing the information."
And it appearing that a satisfactory showing why the names of the additional witnesses had not been indorsed on the information as provided by law, the rule of the trial court permitting the names to be indorsed thereon was held to be reversible error.
In the case of State v. Barber, 13 Idaho 65, 88 P. 418, it was held to be error to permit such additional witnesses to testify without their names being first indorsed on the indictment or information.
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
It is not error for the court to permit a witness' name to be indorsed upon the information shortly prior to the trial, where appellant makes no showing that by such action he was surprised or suffered any disadvantage or was prejudiced in any way. ( State v. Allen, 20 Idaho 263, 117 P. 849; State v. Steen, 29 Idaho 337, 158 P. 499; State v. Nolan, 31 Idaho 71, 169 Pac. 295; State v. McGann, 8 Idaho 40, 66 P. 823.)
The title to 1915 Sess. Laws, chap. 11, was broad enough to include the subject matter of the amendatory act of Laws 1925, chap. 171. Such amendatory act was germane to the original act. ( State v. Pasta, 44 Idaho 671, 258 P. 1075; State v. Bowman, 40 Idaho 470, 235 P. 577; 1915 Sess. Laws, chap. 11; 1925 Sess. Laws, chap. 171; C. S., sec. 2621.)
All instructions should be construed together. ( State v. Ramirez, 33 Idaho 803, 199 P. 376; State v. Grimmett, 33 Idaho 203, 193 P. 380; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Dubis, 39 Idaho 376, 227 P. 384; State v. Cosler, 39 Idaho 519, 228 P. 277.)
Fred Stewart was convicted of "giving and furnishing intoxicating liquor to a minor," in violation of chap. 171, 1925 Sess. Laws, and appeals from the judgment, as well as from an order denying a motion in arrest of judgment and an order denying a motion for new trial.
Chap. 171, 1925 Sess. Laws, reads as follows:
"Be it enacted by the legislature of the state of Idaho:
"Section 1. A new section is hereby enacted and added to Article 2, of Chapter 125 of the Idaho Compiled Statutes, to be designated as Section 2621-A and to read as follows:
"Section 2621-A. Any person who sells, gives or furnishes or causes to be sold, given or furnished, intoxicating liquor to any minor is guilty of a felony."
It is urged that C. S., sec. 2621-A, is added to and made a part of C. S., sec. 2621; that the title to section 2621 does not embrace the subject expressed in section 2621-A; and that the latter enactment is void in that the subject thereof is not embraced in the title of section 2621. (Const., art. 3, sec. 16.) This argument is fallacious. By chapter 171, 1925 Sess. Laws, it was not intended to add a new section to C. S., sec. 2621, but, as stated in its title, "a new section is hereby enacted and added to article 2 of chapter 125 of the Idaho Compiled Statutes. . . . ." The fact that the section is designated section 2621-A does not justify an inference that it was intended to be a part of section 2621. Section 2621-A is a new section of article 2, chapter 125, and is complete in itself. The title of article 2, chapter 125, enacted as chapter 11, 1915 Sess. Laws, is amply sufficient to embrace within its purview the subject matter of section 2621-A. ( State v. Pasta, 44 Idaho 671, 258 P. 1075.)
Some thirty-three days after filing the information, and approximately two weeks prior to the trial, over objection, the prosecuting attorney had the name of one Conrad Smick indorsed as a witness on the information. It is contended that the showing made by the prosecuting attorney in support of the motion was entirely insufficient. C. S., sec. 8810, provides, inter alia, that the prosecuting attorney shall indorse on the information the names of the witnesses known to him at the time it is filed; and at such time before trial as the court may rule or prescribe he shall indorse the names of other witnesses as shall then be known to him. This court has held that the purpose of these provisions is to inform the defendant of the names of the witnesses who are to testify against him, so that he may have an opportunity to meet and controvert their evidence. ( State v. Allen, 20 Idaho 263, 272, 117 P. 849.) Appellant makes no complaint that he was surprised, or that he did not have ample time to prepare for trial. It not appearing that appellant was in anywise prejudiced, it is unnecessary to determine the sufficiency of the showing. ( State v. Allen, supra; State v. Steen, 29 Idaho 337, 158 P. 499; State v. Nolan, 31 Idaho 71, 169 P. 295.)
Complaint is made of the following instruction:
"The court instructs the jury that if from the evidence, beyond a reasonable doubt, you find that the defendant did not give the alleged intoxicating liquor to the minor mentioned, but that said minor took said bottle containing such liquor from the hand, or hands, of the defendant, without the consent of the defendant, and without any intention of the defendant that she should do so, then you should acquit the defendant."
The instruction deprives the defendant of the presumption of innocence and imposes on him the burden of establishing, beyond a reasonable doubt, that he did not commit the crime charged against him. That is not the law. (C. S., sec. 8944.) The attorney general admits that the instruction is erroneous, but takes the position that, when the instructions are considered as a whole, no prejudice is shown. The fallacy of his position lies in the fact that the instruction complained of is in conflict with those which are said to render it harmless. It is frequently the case that an instruction which is inaccurate or incomplete may be cared by a correct statement of the law in another instruction, but an instruction which places on the defendant the burden of establishing his innocence is not cured by an instruction which states the rule correctly. Contradictory instructions tend to confuse and mislead a jury; and, in this case, it is not possible to determine that the jury did not follow the erroneous instruction. How, therefore, can it be said that appellant was not prejudiced? ( State v. Judd, 20 Mont. 420, 51 P. 1033; Weber v. State, 2 Okl. Cr. 329, 101 P. 355; Rea v. State, 3 Okl. Cr. 269, 105 P. 381; State v. Sandt, 95 N.J.L. 49, 111 Atl. 651; Weber v. State, 183 Wis. 85, 197 N.W. 193. See, also, State v. Webb, 6 Idaho 428, 55 Pac. 892; State v. Bowker, 40 Idaho 74, 80, 231 P. 706.)
It is also urged that the case was so "clear cut" and the evidence so conclusive that the jury could not have been misled by the erroneous instruction. There is authority in this state to the effect that, even though an instruction is erroneous, if the evidence of defendant's guilt is satisfactory, and the result could not have been different had the instruction been omitted, the judgment should not be reversed. ( State v. Marren, 17 Idaho 766, 107 P. 998. See, also, State v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Cosler, 39 Idaho 519, 228 P. 277.) In none of those cases was the burden of establishing his innocence placed on a defendant. There is a direct conflict in the evidence on the issue to which the erroneous instruction relates and, had it been omitted, the jury might not have been convinced of appellant's guilt beyond a reasonable doubt, even though it was not satisfied of his innocence beyond a reasonable doubt. We are not justified, therefore, in inferring that the jury rejected the evidence on behalf of appellant, or that it could have returned no other verdict.
The judgment is reversed and the cause remanded, with directions to grant a new trial.
Budge, Givens and Taylor, JJ., concur.