State v. George

Appellant was charged with and convicted of the crime of interfering with a headgate regulated by a water-master, in violation of the provisions of C. S., sec. 8532, as amended by Sess. Laws 1921, chap. 131, p. 316.

It is urged that the court erred in overruling a demurrer to the information. It has frequently been held by this court that an information or indictment charging a statutory offense substantially in the language of the statute, as was done in this case, is sufficient. (State v. Lundhigh, 30 Idaho 365,164 P. 690, and cases therein cited; State v. McMahon, 37 Idaho 737,219 P. 603; State v. Brill, 21 Idaho 269, 121 P. 79;State v. O'Neil, 24 Idaho 582, 135 P. 60.). In our opinion the information herein is sufficiently comprehensive and explicit as to enable a person of common understanding to know what is intended, and satisfies, we believe, the requirements of C. S., secs. 8825, 8826, 8827 and 8834.

It is further urged that the trial court erred in refusing to permit counsel for appellant to examine instructions requested by the state, as well as to submit authorities in support of the instructions offered by appellant. Thus far the request was proper and should have been granted, but in the absence of a showing that the action of the trial court in the respects complained of resulted in any prejudice to appellant, the judgment will not be disturbed.

Error is also claimed in the failure of the trial court to indorse and sign its decision upon each requested instruction of both of the parties, as provided by C. S., sec. 8972, and in its refusal to give certain instructions requested by appellant.

With respect to the failure of the court to indorse each of the state's requested instructions, although such indorsements should have been made, we are reminded by the provisions of C. S., secs. 9084 and 9191 that this court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties; and that neither a departure from the form or mode prescribed in the Code of Criminal Procedure in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right. Appellant does not claim error because of the giving of any instruction requested by the state, and there is no attempt to show any prejudice to him as a result of the court's failure to indorse the state's requested instructions. At most this was but a technical error, and did not affect any substantial right of the appellant.

On appellant's requested instruction No. 3 the court indorsed the words, "Refused. Sufficiently covered by instruction given by. Court on his own motion." The subject matter of this instruction was sufficiently covered by instruction No. 2. Likewise with respect to appellant's requested instruction No. 2, the substance of which was fully and fairly covered by the court's instructions Nos. 10 and 11. It is not error to refuse to give a requested instruction where the same is fully covered by the instructions given. (State v. Hoagland, 39 Idaho 405,228 P. 314; State v. Cosler, 39 Idaho 519, 228 P. 277; State v.Jurko, 42 Idaho 319, 245 P. 685.) This applies also to several other instructions requested by appellant, the refusal to give which is severally assigned as error.

Appellant's requested instructions Nos. 4, 7 and 8 were not indorsed by the court, but it appears that his requested instruction No. 4 is in identical language with his requested instruction No. 3 and that his requested instructions Nos. 7 and 8 covered the same subject matter, all of which were fairly covered by the court's instruction to the jury, No. 2. Certainly the court would not be required to repeat to the jury the same instruction twice, or reiterate the same subject matter though submitted in different form; and it is not shown that appellant was injured by the mere omission of the court to indorse the requested instructions, particularly in view of the fact that their substance was fairly covered by the instructions given.

There is no merit in the contention that the court erred in refusing to advise the jury to render a verdict of acquittal, as requested by appellant. This was within the discretion of the trial court, and its action in such regard will not be reviewed. (State v. Murphy, 29 Idaho 42, 156 P. 908; State v.Chacon, 36 Idaho 148, 209 P. 889; State v. West, 42 Idaho 214,245 P. 85.)

The judgment is affirmed.

Wm. E. Lee, C.J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.