Territory v. McKern

Citations

• 3 Idaho 15
• 26 P. 123
• 1891 Ida. LEXIS 8

Syllabus

<p>Robbery — Evidence—Opinion oe Witness not Permissible. — Defendant was indicted for robbery. H., a witness for prosecution, testified that he saw defendant scuffling with Miles (the party alleged to have been robbed) ; saw defendant hand something to McLouthlin, co-respondent, an alleged accomplice of defendant. ■ Witness said “he thought” defendant took what he handed to McLouthlin from the person of Miles; didn’t see him take it, but “thought he did, because he thought he did.” Motion to strike out latter part of testimony as to what witness “thought” denied. Held, such denial was error, as it was not a matter upon which the opinion of witness was permissible.</p> <p>Statute oe Idaho Defined.- — 1The statutes of Idaho define robbery as “the felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accomplished by 'means of force or fear.” Under an indictment upon this statute the trial court charges the jury as follows: “As to the force, the court instructs you that if a man stealthily filch from the pocket of another, the force necessary to remove the property is all the force that the statute requires.” Held, error.</p> <p>(Syllabus by the court.)</p>