Territory v. Neilson , 2 Idaho 614 ( 1890 )

BEATTY, C. J.

The appellant was indicted for unlawful fishing alleged to have been done in. Bear Lake county. At the close of the people’s testimony the appellant moved the court to instruct the jury to render a verdict of acquittal, which motion was overruled. The appellant then introduced testimony in his behalf, and thereafter the jury found a verdict against him, upon which judgment was rendered, from which he has taken his appeal to this court.

The appellant has assigned numerous alleged errors based upon the ruling of the court on the introduction of the evidence. All such alleged errors must be considered in the light of our statute, adopted from the California code, which is to the effect, that ail errors and mistakes in proceedings which do not prejudice the party in his substantial rights must be disregarded. Under this statute, which seems without ambiguity, it has frequently been held that errors which are not shown to have damaged the party complaining must be disregarded. The criticisms are largely to the admission of questions to which answers were not made, or were not against appellant, or were stricken out. There was also testimony to the effect that appellant had the reputation of being a fisherman. It is not conceded that a party can be convicted of an offense by testimony of general reputation that be has committed it; but the appellant was not charged with any offense of being a fisherman, nor is it an offense, nor does testimony of his reputation as such damage him. We do not think any of the alleged errors based upon the introduction of the testimony are shown to have damaged the appellant. That he was prejudiced in any of his substantial rights will not be presumed when not shown.

It is also claimed the testimony is not sufficient to justify a conviction. The only testimony before us is that introduced by the people, and, as it appears in the record, it is not sufficient. Had appellant rested upon that testimony, and brought it before us in the proper mode for its consideration, a reversal, probably, would be justified; but, instead, he proceeded with the introduction of testimony in his defense. That is not here. We do not know what it was. He may have convicted himself, as has frequently happened with defendants. At any rate, the jury, upon all the evidence, found him guilty, and we cannot interfere.

At the close of the people’s testimony, appellant moved the court to instruct the jury to return a verdict of not guilty, which motion the court overruled; and this is assigned as error. Our statute (section 7877) is adopted from the California code, and provides the court may advise the jury to acquit. By another section (7855, subdivision 6) it is directed the court “must not charge the jury in respect to matters of fact.” Had the court given the peremptory instruction asked, it would, in violation of this provision, have taken the facts from the jury. It is held in People v. Horn, 70 Cal. 18, 11 Pac. 470, that this the court cannot do, and that it can only advise the jury. Whether, when the court is satisfied the testimony is not,sufficient, it must advise the jury to acquit, regardless of the form of defendant’s motion, or whether, when there is any evidence tending against the defendant, the court may, in its discretion, leave the question to the jury, we need not now consider nor decide.

After appellant’s motion for the peremptory instruction was overruled, he, by introducing his testimony, waived his right to assign as error the order overruling his motion, as is held in civil cases by authority which is controlling with us. (Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Insurance Co. v. Grandal, 120 U. S. 530, 7 Sup. Ct. Rep. 685.) Our statute (section 7864) provides: “The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code.” We think, under our statute, the authorities above control in this case; and the judgment of the lower court is affirmed.

Berry, J., concurs.