State v. Hirsch

There was no brief filed by or on behalf of appellant. Therefore, no assignments of error are before this court for consideration. (Thomas v. Union Sav. Etc., Co., 38 Idaho 247,221 P. 132; Rosa v. Devingenzo, 53 Idaho 213,24 P.2d 1051; Bicandi v. Boise Payette Lbr. Co., 55 Idaho 543,44 P.2d 1103.)

The refused instruction does not correctly state the law and was properly refused. Furthermore the refused instruction is fully covered in the instructions given by the court of its own motion. Conceding that the refused instruction is in part correct and in part erroneous, the erroneous matter is so mixed with that which is law that the whole taken together is so misleading and confusing as to mislead the jury. In such circumstances, it was the duty of the court to refuse to give the instruction. (State v. Van Vlack, 57 Idaho 316, 355, 65 P.2d 736; People v. Buchanan, 1 Idaho 681.) If there should be a retrial, it does not necessarily follow that the proposed instruction set out in the majority opinion should be given. The evidence may not warrant the giving of said proposed instruction upon the retrial.

The fact that the trial court did not give the usual stock instruction, namely, "that all instructions given should be read and construed together; that no one of them states all of the law of the case or states the law completely as to the whole case, but that all of them when taken together state the law which governs the case and which is to be applied to the facts, as the jury may determine the facts to be, and which must guide them in their deliberation in arriving at a verdict," did not constitute prejudicial error that would warrant a reversal, since appellant did not request that such an instruction be given. It is a well settled rule in this state that an omission to charge on a particular point cannot be assigned as error where no instruction on the point is requested by appellant. (State v. Knudtson, 11 Idaho 524,83 P. 226; State v. Harness, 10 Idaho 18, 76 P. 788; State v.McAvoy, 57 Or. 1, 109 P. 763; People v. White, 5 Cal. App. 329,90 P. 471; Robinson v. Territory, 16 Okl. 241,85 P. 451; Mow v People, 31 Colo. 351, 72 P. 1069.) Furthermore the import of the refused instruction was given in the Court's instructions wherein the Court uses the following language: "You are to be governed by the law as given to you by the courtin these instructions * * *." (Italics ours.) The court's instructions were eminently fair and favorable to appellant.

While it is true that ordinarily the accusation herein is easy to make, hard to prove and still harder to defend, the facts of the instant case are clear.

The judgment should be affirmed.