Lonnie Boykin and Lottie Glenn, accused of murdering one Sarah Abrams, were convicted of voluntary manslaughter in the district court of Bannock county and duly appealed from both the judgment and order denying their motion for new trial. Lottie Glenn having died in the meantime, the record is to be considered only with respect to the appeal of Lonnie Boykin.
The information charged: "That the said Lonnie Boykin and Lottie Glenn on or about the 8th day of November, 1923, . . . . in the County of Bannock, State of Idaho, did then and there wilfully, unlawfully, feloniously, deliberately, premeditatedly, and with malice aforethought, kill and murder one Sarah Abrams, . . . . "
A general demurrer having been overruled, the trial proceeded upon the plea of not guilty. Defendant objected to the introduction of any evidence upon the part of the state, which objection was overruled. The rulings have been assigned as error, the defendant insisting that the information was insufficient for failure to set forth the manner and means of the alleged killing. Such an information was recently upheld by this court in State v. Lundhigh, 30 Idaho 365, 164 P. 690, where State v. Smith, 25 Idaho 541, 138 P. 1107, relied upon by defendant was expressly overruled, the court declaring that an information charging murder in the language of the statute is sufficient.
It appears from the evidence that when first arrested the defendant, Boykin, was locked up and denied the right to converse with counsel; in consequence whereof his attorney requested the court to instruct the jury in terms of C. S., sec. 8720, directing that one arrested be taken before a magistrate without unnecessary delay and be permitted to receive the visits of an attorney. This evidence was admissible and this instruction would have been proper, only as bearing upon the credibility of the officer so detaining the defendant if such officer were a witness. The testimony discloses that *Page 540 the officer did not testify to anything which was contradicted by the defense or which bore directly upon the guilt of the defendant; therefore it was not prejudicial error to refuse the instruction.
It seems that the state's witness, Boyce, when approached by defendant's counsel, refused to talk; and defendant sought an instruction advising the jury that they might take into consideration such refusal in weighing the evidence. The request was refused and defendant claims error, citing the language of State v. Trego, 25 Idaho 625, at 643, 138 P. 1124, where the court said:
"The state is not interested in convicting any person charged with a crime unless he is really guilty, and it seems to me that no candid witness would hesitate to state what he or she knew about an alleged crime either to counsel for the state or to counsel for the defendant, so that the defendant might have the opportunity to procure proper evidence to explain any suspicious circumstances or other facts tending to show the defendant guilty, if it were possible for him to do so."
This was merely dictum and fell far short of declaring a hesitant witness to be presumably biased or obligated to unbosom himself to the adverse party. Such an instruction would have in effect authorized a method of impeachment unknown to the statute, and was properly refused. The court also refused the following instruction requested by the defendant:
"The court instructs you, gentlemen of the jury, that certain evidence has been admitted of alleged contradictory statements made, by certain witnesses of both the prosecution and the defense, and you are instructed that such impeaching evidence may be considered by you only for the purpose of lessening or mitigating the weight to be given the evidence of the witnesses thus attempted to be impeached, and must not be considered by you as proving or tending to prove any fact."
The defendant had testified in his own behalf. Inasmuch as he too had made conflicting statements, it will be observed *Page 541 that the requested instruction would have applied to his testimony as well as to that of other witnesses; and, while such instruction, had it been restricted to other witnesses, would have been eminently proper, it would have been a direct misstatement of the law when applied to the defendant. It is well settled that any false statement made by an accused for the evident purpose of avoiding suspicion is admissible as a proof of guilt. (People v. Cuff, 122 Cal. 589, 55 P. 407;Crawford v. State, 112 Ala. 1, 21 So. 214; Huffman v. State,28 Tex. App. 174, 12 S.W. 588.) Here the defendant denied his presence at the shooting, a statement the falsity of which was proven by the state, and later admitted by the defendant while on the stand. Where a proffered instruction contains incorrect coupled with correct statements of the law, it is not error to refuse the entire instruction.
The court over defendant's objection admitted evidence of an indefinite threat made by defendant toward the deceased some time prior to the shooting. As a threat the statement was uncertain, but it clearly evidenced a dislike on defendant's part and his desire to be rid of her. This was proper to show the state of his feelings toward the deceased. (State v.Battle, 126 N.C. 1036, 35 S.E. 624; Hammock v. State,52 Ga. 397.)
The remaining specifications have no merit. It is insisted that the evidence is insufficient to support the verdict. We think the circumstances of the killing and the conduct and relationship of the parties as evidenced by the record are sufficient to warrant the verdict.
Of the errors urged on appeal from the order denying a new trial, the only one meriting consideration is the court's refusal to permit the defendant to take the depositions of certain jurors, and submit the oral evidence of others for the purpose of showing gross misconduct of one of their number in the jury-room. The motion was supported by the affidavit of defendant's counsel based upon information and belief that one of the jurors had stated in the jury-room that he knew all about the case before he went into the jury-box; that "there was nothing to it but murder," and that his harangue continued until a fellow-juror threatened to report *Page 542 him to the judge, whereupon he desisted but voted for first degree murder several times.
This brings squarely before the court the question as to whether or not in a criminal case a juror can, under sections 6888 and 9017, C. S., impeach his verdict by showing misconduct in the jury-room other than the determination by chance. Many decisions hold in the affirmative, permitting the juror to testify or make affidavit to any misconduct by members of the jury or others in the jury-room. But is relief possible under our present statutes, taken bodily from California, whose court for years has held the evidence of a juror inadmissible in a criminal case to impeach his verdict save in the case of verdicts arrived at by chance? Not until 1862, when the California civil statute was amended, did its court recognize any exception whatever.
In a particularly illuminating analysis in his concurring opinion in State v. Abbott, 38 Idaho 61, 224 P. 791, Chief Justice McCarthy traced the genesis and development of the California statutes adopted verbatim by Idaho, and marshaled an unbroken line of decisions from that state directly construing these original sections to prohibit a juror from impeaching his verdict in a criminal case except in the one instance mentioned. We do not think such construction either unreasonable or unconscionable, and agree with the former chief justice that it should be sustained until modified by future legislation. The judgment and order of the trial court should be affirmed.