State v. Reed , 3 Idaho 754 ( 1894 )

ON REHEARING.

A petition for a rehearing has been filed in this case, wherein it is alleged that this court, in passing upon the question of alleged error in the district court “in allowing the jury to view the premises in the absence of defendant and his counsel and the judge of the court, stated that the defendant waived any right, constitutional or otherwise, he might have to be present, by his failure, in the court below, to object to such view being had in his absence, and respectfully requests that further consideration be had in this regard upon the question herein involved — as to whether a defendant in a criminal action can waive any right guaranteed him by the constitution of the state.”

We thought we had stated our position on this question clearly; but, that there may be no doubt as to the holding of the court upon this question, we now state that no such right as is contended for by defendant is guaranteed by the constitution of Idaho.

As to the other point raised by the petition for a rehearing, to wit, that this court did not pass upon the question as to whether affidavits in opposition to a change of place of trial should be filed upon leave of the court first obtained, and permission given, upon such leave, to the defendant to file rebutting affidavits, we would say that we expressly decided that it was proper to admit counter-affidavits on the part of the state upon an application for a change of the place of trial in a criminal ease. No question of the filing of rebutting affidavits by defendant was raised, either in the record, in brief of counsel or in the argument. It is true, counsel, in their brief, used the term “rebutting affidavits,” but it is applied to the affidavits of the prosecution, and evidently means counter-affidavits. It nowhere appears that any offer was made of “rebutting affidavits” on the part of defendant. Petition for rehearing denied.

Morgan and Sullivan,. JJ., concur.