State v. Cacavas

Appellant, convicted of the felony of furnishing intoxicating liquor to a minor, seeks a reversal on the insufficiency of the evidence, misconduct of certain jurors in the jury-room, and the trial court's refusal to direct a verdict in his favor.

Appellant insists the two girls to whom it is asserted the liquor was given were impeached and unworthy of credence, and uncorroborated, and that their testimony is the sole basis for the verdict, and hence is not sufficient to support the same.

Neither I. C. A., sec. 18-217, making it a felony for any person to sell or give or furnish intoxicating liquor to any minor, nor any other statute requires that the evidence or testimony of the complaining witness must be corroborated.

It is within the province of the jury to believe or to disbelieve the testimony of any witness, or any portion of such testimony, even though such witness may have in some respects testified falsely in respect to a material matter, or been contradicted. (70 C. J., sec. 1338; 6 Jones on Evidence, 2d ed., 4813; 26 Cal. Jur. 169, sec. 143; I. C. A., sec. 16-201;State v. Harp, 31 Idaho 597, 173 P. 1148; State v. Sims,35 Idaho 505, 206 P. 1045; Bodenhamer v. Pacific Fruit P. Co.,50 Idaho 248, 295 P. 243; State v. Driskill, 26 Idaho 738,145 P. 1095; State v. Hopkins, 26 Idaho 741, 145 P. 1095;State v. Bush, 50 Idaho 166, 295 P. 432; State v. Keyser,38 Idaho 57, 219 P. 775; Webster v. McCullough, 45 Idaho 604,264 P. 384; Gordon v. Sunshine Min. Co., 43 Idaho 439,252 P. 870; State v. Boyles, 34 Idaho 283, 200 P. 125; Baird v.Gibberd, 32 Idaho 796, 189 P. 56; Schmidt v. Williams, 34 Idaho 723,203 P. 1075; People v. Quon Foo, 57 Cal. App. 237,206 P. 1028; Decennial Digest, "Witnesses," sec. 397.)

The jury by their verdict have resolved the conflicts, inconsistencies and contradictions herein in favor of the state, and there is sufficient evidence herein to justify the action of the jury in this regard and sustain the verdict. Hence under the well-known rule it will not be disturbed.

The misconduct charged to the jury was in the jury-room, after the case had been submitted to the jury for its consideration, consisting of statements concerning liquor given to the daughter of one of the jurors, not by the appellant or anyone connected with him, which the juror claimed led to the daughter's downfall and later being shot, and a review of the history of certain controversies between appellant, his brother and a man named Volkmeir, and the bombing of the latter's home. Four members of the jury were called before the court on motion for new trial, and gave oral testimony to the above effect which on motion of the prosecution was ordered stricken. No evidence other than the testimony of such jurors was offered in support of this point and it was not contended that the verdict was reached by chance or lot. This court, in line with universal authority, has four times held, after an exhaustive examination of the question, that the testimony of jurors may not be thus used to impeach their own verdict. (State v. Boykin, 40 Idaho 536,234 P. 157; State v. Abbott, 38 Idaho 61, 213 P. 1024; rehearing, 38 Idaho 66, 224 P. 791; State v. Jester, 46 Idaho 561,270 P. 417; State v. Farnsworth, 51 Idaho 768,10 P.2d 295; and cases cited in 16 C. J. 1236, n. 50.) This point may not, therefore, avail appellant.

A refusal to advise a jury to acquit is entirely discretionary with the trial court and no abuse thereof is shown therein. (State v. McClurg, 50 Idaho 762, 300 P. 898;State v. Stevens, 48 Idaho 335, 282 P. 93; State v. Sullivan,34 Idaho 68, 199 P. 647, 17 A.L.R. 902; State v. Shelton,46 Idaho 423, 267 P. 950; State v. Smith, 46 Idaho 8,265 P. 666; State v. Mason, 41 Idaho 506, 239 P. 733; State v.Brassfield, 40 Idaho 203, 232 P. 1; State v. Foell, 37 Idaho 722,217 P. 608; State v. Suennen, 36 Idaho 219,209 P. 1072; State v. Chacon, 36 Idaho 148, 209 P. 889.)

Judgment affirmed.

Budge and Ailshie, JJ., concur.

Petition for rehearing denied.