Idaho Code Title 18

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IDAHO CODE
CONTAINING THE
GENERAL LAWS OF IDAHO
ANNOTATED
ORIGINALLY PUBLISHED BY AUTHORITY OF
LAWS 1947, CHAPTER 224
REPUBLISHED BY AUTHORITY OF
LAWS 1949, CHAPTER 167 AS AMENDED
Compiled Under the Supervision of the
Idaho Code Commission
THOMAS A. MILLER
RICHARD GOODSON R. DANIEL BOWEN
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TITLE 18
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PUBLISHER'S NOTE
Since the publication in 1997 of Replacement Title 18, many laws have
been amended or repealed and many new laws have been enacted. The
resulting increase in the size of the cumulative supplement for Title 18 has
made it necessary to revise this volume. Accordingly, Replacement Title 18
are issued with the approval and under the direction of the Idaho Code
Commission.
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available, through later publications.
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in the following reports:
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Federal Supplement, 2nd Series
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American Law Reports, 5th Series, through Volume 113
American Law Reports, Federal Series, through Volume 189
Opinions of Attorney General, 2002-2
Following is an explanation of the abbreviations of the Court Rules used
throughout the Idaho Code.
I.R.C.R Idaho Rules of Civil Procedure
I.R.E. Idaho Rules of Evidence
LOR. Idaho Criminal Rules
M.C.R. Misdemeanor Criminal Rules
I.I.R. Idaho Infraction Rules
I.J.R. Idaho Juvenile Rules
I.C.A.R. Idaho Court Administrative Rules
I.A.R. Idaho Appellate Rules
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To assist the legal profession and the layperson in obtaining the maxi-
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first volume of this set.
ADJOURNMENT DATES OF SESSIONS OF
LEGISLATURE
Article
3,
22 of the Idaho State Constitution provides: "No act shall take
effect until sixty days from the end of the session at which the same shall
have been passed, except in case of emergency, which emergency shall be
declared in the preamble or in the body of the law."
Section 67-510 Idaho Code provides: "No act shall take effect until July 1
of the year of the regular session or sixty (60) days from the end of the
session at which the same shall have been passed, whichever date occurs
last, except in case of emergency, which emergency shall be declared in the
preamble or body of the law.
Every joint resolution, unless a different time is prescribed therein, takes
effect from its passage."
This table is given in order that the effective date of acts, not carrying an
emergency or which do not specify an effective date, may be determined with
a minimum of delay.
1921 March 5, 1921
1923 March 9
1925 March 5
1927 March 3
1929 March 7
1931 March 5
1931 (E.S.) March 13
1933 March 1
1933 (E.S.) June 22
1935 March 8
1935 (1st E.S.)... r March 20
1935 (2nd E.S.) July 10
1935 (3rd E.S.) July 31
1937 March 6
1937 (E.S.) November 30
1939 March 2
1941 March 8
1943 February 28
1944 (1st E.S.) March 1
1944 (2nd E.S.) March 4
1945 March 9
1946 (1st E.S.) March 7
1947 March 7
1949 March 4
1950 (E.S.) February 25
1951 March 12
1952 (E.S.) January 16
1953 March 6
1955 March 5
vn
1923
1925
1927
1929
1931
1931
1933
1933
1935
1935
1935
1936
1937
1938
1939
1941
1943
1944
1944
1945
1946
1947
1949
1950
1951
1952
1953
1955
viii ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE
1957 March 16
1959 March 9
1961 March 2
1961 (1st E.S.) August 4
1963 March 19
1964 (E.S.) August 1
1965 March 18
1965 (1st E.S.) March 25
1966 (2nd E.S.) March 5
1966 (3rd E.S.) March 17
1967 March 31
1967 (1st E.S.) June 23
1968 (2nd E.S.) February 9
1969 March 27
1970 March 7
1971 March 19
1971 (E.S.) April 8
1972 March 25
1973 March 13
1974 March 30
1975 March 22
1976 March 19
1977 March 21
1978 March 18
1979 March 26
1980 March 31
1981 March 27
1981 (E.S.) July 21
1982 March 24
1983 April 14
1983 (E.S.) May 11
1984 March 31
1985 March 13
1986 March 28
1987 April 1
1988 March 31
1989 March 29
1990 March 30
1991 March 30
1992 April 3
1992 (E.S.) July 28
1993 March 27
1994 April 1
1995 March 17
1996 March 15
1997 March 19
1998 March 23
1999 March 19
1957
1959
1961
1961
1963
1964
1965
1965
1966
1966
1967
1967
1968
1969
1970
1971
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1981
1982
1983
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1992
1993
1994
1995
1996
1997
1998
1999
ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE IX
2000 April 5, 2000
2001 March 30, 2001
2002 March 15,2002
2003 May 3, 2003
2004 March 20, 2004
TABLE OF CONTENTS
TITLE 18
CRIMES AND PUNISHMENTS
Chapter Sections
1. Preliminary Provisions
-
18-100 18-116
2. Persons Liable, Principals and Accessories

18-201 18-216
3. Nature and Extent of Punishment in General

18-301 18-317
4. Abandonment or Nonsupport of Wife or Children

18-401 18-410
5. Abduction [Repealed.]
6. Abortion and Contraceptives

18-601 18-615
7. Arrests and Seizures of Persons or PropertySpecial Officers .
18-701 18-712
8. Arson

18-801 18-806
9. Assault and Battery

18-901 18-922
10. Barratry and Attorneys at Law

18-1001
18-1005
11. Bigamy and Polygamy

18-1101 18-1105
12. Billiard, Pool and Card Rooms and Confectionaries [Repealed.]
13. Bribery and Corruption

18-1301
18-1362
14. Burglary :
18-1401 18-1415
15. Children and Vulnerable Adults

18-1501 18-1523
16. Compounding Crimes

18-1601 18-1608
17. Conspiracies

18-1701 18-1710
18. Contempts

18-1801 18-1809
19. Corporations

18-1901
18-1912
20. Criminal Solicitation

18-2001 18-2005
21. Cruelty to Animals [Amended and Redesignated or Repealed]
22. Computer Crime

18-2201 18-2206
23. Elections

18-2301 18-2323
24. Theft

18-2401 18-2421
25. Escape or Rescue of Prisoners

18-2501
18-2511
26. Evidence Falsified or Concealed and Witnesses Intimidated
or Bribed

18-2601 18-2606
27. Executive Power

18-2701 18-2712
28. Extortion
*
[Repealed.]
29. False Imprisonment 18-2901, 18-2902
30. False Personation
Fraudulent Marriages

18-3001 18-3005
31. False Pretenses, Cheats and Misrepresentations

18-3101 18-3128
32. Falsifying, Mutilating or Concealing Public Records or
Written Instruments

18-3201
18-3206
33. Firearms, Explosives and Other Deadly Weapons

18-3301 18-3324
34. Flags and Emblems

18-3401 18-3403
35. Forcible Entry and Detainer 18-3501, 18-3502
36. Forgery and Counterfeiting

18-3601
18-3620
37. Fraudulent Conveyances or Removals [Repealed.]
38. Gaming

18-3801
18-3810
39. Highways and Bridges

18-3901 18-3914
40. Homicide

18-4001 18-4016
41. Indecency and Obscenity

18-4101
18-4116
42. Intoxicants and Intoxication 18-4201, 18-4202
43. Irrigation Works

18-4301 18-4310
44. Juries and Jurors

18-4401
18-4405
45. Kidnaping

18-4501
18-4512
46. Larceny and Receiving Stolen Goods

18-4601 18-4631
47. Legislative Power

18-4701 18-4707
48. Libel

18-4801 18-4809
49. Lotteries

18-4901
18-4909
50. Mayhem

18-5001
18-5003
51. Military Property [Repealed.]
xi
xii TABLE OF CONTENTS
Chapter Sections
52. Monopolies and Combinations . . . [Repealed.]
53. Opium Smoking [Repealed.]
54. Perjury and Subornation of Perjury

18-5401
18-5414
55. Poisonings
Denatured Alcohol

18-5501 18-5503
56. Prostitution

18-5601
18-5614
57. Public Funds and Securities

18-5701
18-5704
58. Public Health and Safety

18-5801
18-5818
59. Public Nuisances

18-5901 18-5906
60. Railroads

18-6001 18-6015
61. Rape

18-6101 18-6110
62. Religious Meetings
Sunday Rest [Repealed.]

63. Revenue and Taxation

18-6301 18-6309
64. Riot, Rout, Unlawful Assembly, Prize Fighting, Disturbing
Peace

18-6401 18-6410
65. Robbery

18-6501
18-6503
66. Sex Crimes

18-6601 18-6609
67. Communications Security

18-6701 18-6725
68. Telegraph, Telephone and Electric Lines

18-6801 18-6810
69. Offenses Involving Motor Vehicles [Repealed.]
70. Trespass and Malicious Injuries to Property

18-7001 18-7041
71. Vagrancy [Repealed.]
72. Weights and Measures

18-7201 18-7207
73. Civil Rights

18-7301 18-7303
74. BailJumping
18-7401
75. Aircraft Hyacking

18-7501 18-7505
76. Tape Piracy Act

18-7601 18-7608
77. Motion Picture Fair Bidding Act

18-7701 18-7708
78. Racketeering Act

18-7801 18-7805
79. Malicious Harassment

18-7901
18-7906
80. Motor Vehicles

18-8001 18-8011
81. Terrorist Control Act

18-8101
18-8106
82. Money Laundering
18-8201
83. Sexual Offender Registration Notification and Community
Right-Tb-Know Act

18-8301 18-8328
84. Juvenile Sex Offender Registration Notification and
Community Right-To-Know Act

18-8401
18-8414
TITLE 18
CRIMES AND PUNISHMENTS
CHAPTER
1. Preliminary Provisions,

18-100 18-
116.
2. Persons Liable, Principals and Accessories,
18-201 18-216.
3. Nature and Extent of Punishment in Gen-
eral,
18-301 18-317.
4. Abandonment or Nonsupport of Wife or
Children,

18-401 18-410.
5. Abduction. [Repealed.]
6. Abortion and Contraceptives,

18-601
18-615.
7. Arrests and Seizures of Persons or Proper-
ty
Special Officers,

18-701 18-
712.
8. Arson,

18-801 18-806.
9. Assault and Battery,

18-901 18-922.
10. Barratry and Attorneys at Law,

18-
1001
18-1005.
11. Bigamy and Polygamy,

18-1101 18-
1105.
12. Billiard, Pool and Card Rooms and
confectionaries. [repealed.]
13. Bribery and Corruption,

18-1301

18-1362.
14. Burglary,

18-1401 18-1415.
15. Children and Vulnerable Adults,
18-
1501

18-1523.
16. Compounding Crimes,

18-1601 18-
1608.
17. Conspiracies,

18-1701 18-1710.
18. Contempts,

18-1801
18-1809.
19. Corporations,

18-1901
18-1912.
20. Criminal Solicitation,

18-2001 18-
2005.
21. Cruelty to Animals. [Amended and Redes-
ignated or Repealed.]
22. Computer Crime,

18-2201
18-2206.
23. Elections,

18-2301 18-2323.
24. Theft,

18-2401 18-2421.
25. Escape or Rescue of Prisoners,

18-
2501
18-2511.
26. Evidence Falsified or Concealed and Wit-
nesses Intimidated or Bribed,

18-2601
18-2606.
27. Executive Power,

18-2701
18-2712.
28. Extortion. [Repealed.]
29. False Imprisonment,

18-2901, 18-2902.
30. False Personation

Fraudulent Mar-
riages,

18-3001
18-3005.
31. False Pretenses, Cheats and Misrepresen-
tations,

18-3101

18-3128.
32. Falsifying, Mutilating or Concealing Pub-
lic Records or Written Instruments,
18-3201 18-3206.
33. Firearms, Explospves and Other Deadly
Weapons,

18-3301
18-3324.
CHAPTER.
34. Flags and Emblems,

18-3401
18-
3402.
35. Forcible Entry and Detainer,

18-3501,
18-3502.

36. Forgery and Counterfeiting,

18-3601
18-3620.
37. Fraudulent Conveyances or Removals.
[Repealed.]
38. Gaming,
18-3801
18-3810.
39. Highways and Bridges,

18-3901 18-
3914.
40. Homicide,

18-4001 18-4016.
41. Indecency and Obscenity,

18-4101

18-4116.
42. Intoxicants and Intoxication, 18-4201,
18-4202.
43. Irrigation Works,

18-4301
18-4310.
44. Juries and Jurors,

18-4401 18-
4405.
45. Kidnaping,

18-4501
18-4512.
46. Larceny and Receiving Stolen Goods,
18-4601
18-4631.
47. Legislative Power,

18-4701 18-
4707.
48. Libel,
18-4801 18-4809.
49. Lotteries,

18-4901 18-4909,
50. Mayhem,

18-5001 18-5003.
51. Military Property. [Repealed.]
52. Monopolies and Combinations,
18-5201.
53. Opium Smoking. [Repealed.]
54. Perjury and Subornation of Perjury,
18-5401
18-5414.
55. Poisonings
Denatured Alcohol,
18-
5501
18-5503.
56. Prostitution,

18-5601 18-5614.
57. Public Funds and Securities,

18-5701
18-5704.
58. Public Health and Safety,
18-5801

18-5818.
59. Public Nuisances,

18-5901 18-5906.
60. Railroads,

18-6001 18-6015.
61. Rape,
18-6101 18-6110.
62. Religious Meetings

Sunday Rest,
18-6201 18-6201.
63. Revenue and Taxation,

18-6301 18-
6309.
64. Riot, Rout, Unlawful Assembly, Prize
Fighting, Disturbing Peace,

18-6401
18-6410.
65. Robbery,

18-6501
18-6503.
66. Sex Crimes,

18-6601 18-6609.
67. Communications Security,

18-6701

18-6725.
68. Telegraph, Telephone and Electric Lines,
18-6801 18-6810.
69. Offenses Involving Motor Vehicles. (Re-
pealed.]
70. Trespass and Malicious Injuries to Prop-
18-100 CRIMES AND PUNISHMENTS
erty,

18-7001 18-7041.
71. Vagrancy. [Repealed.]
72. Weights and Measures,

18-7201 18-
7207.
73. Civil Rights,

18-7301
18-7303.
74. Bail Jumping,
18-7401.
75. Aircraft Hijacking,

18-7501 18-
7505.
76. Tape Piracy Act,

18-7601
18-7608.
77. Motion Picture Fair Bidding Act,

18-
7701
18-7708.
78. Racketeering Act,

18-7801 18-
7805.
79.
80.
81.
82.
83.
84.
Malicious Harassment,

18-7901
18-
7906.
Motor Vehicles,

18-8001
18-8011.
Terrorist Control Act,

18-8101
18-
8106.
Money Laundering,

18-8201.
Sexual Offender Registration Notifica-
tion and Community Right-To-Know Act,
18-8301 18-8328.
Juvenile Sex Offender Registration Noti-
fication and Community Right-To-Know
Act,

18-8401 18-8414.
CHAPTER 1
PRELIMINARY PROVISIONS
section. SECTION.
18-100. Title, effect of prior law and state- 18-108.
ment of legislative intent. 18-109.
18-101. Definition of terms. 18-110.
18-101A. Definitions. 18-111. :
18-101B. Criminal laws applicable to out-of-
state prisoners and personnel 18-111A.
of private correctional facili- 18-111B.
ties. 18-112.
18-102. Sufficiency of intent to defraud. 18-112A.
18-103. Civil remedies preserved. 18-113.
18-104. Proceedings to remove officers pre- 18-113A.
served. 18-113B.
18-105. Courts may punish for contempt.
18-106. Court to impose punishment. 18-114.
18-107. Determination of punishment by 18-115.
court. 18-116.
[Repealed.]
Definition of crime.
Grades of crime.
Felony, misdemeanor and infraction
defined.
, Felony defined further.
, Misdemeanor defined further.
Punishment for felony.
. Fine authorized.
Punishment for misdemeanor.
. Punishment for infraction.
. Incarceration of juveniles for mis-
demeanor or felony offenses.
Union of act and intent.
Manifestation of intent.
Intoxication no excuse for crime.
18-100. Title, effect of prior law and statement of legislative
intent.
(1) This title is called the Criminal Code.

(2) Except as provided in subsection (3) of this section, this code does not
apply to offenses committed prior to its effective date [April 1, 19721 and
prosecutions for such offenses shall be governed by the prior law, which is
continued in effect for that purpose, as if this code were not in force. For the
purposes of this section, an offense was committed prior to the effective date
of this code if any of the elements of the offense occurred prior thereto.
(3)
In any case pending on or after the effective date of this code,
involving an offense committed prior to such date:
(a) procedural provisions of this code shall govern, insofar as they are
justly applicable and their application does not introduce confusion or
delay;
(b) provisions of this code according a defense or mitigation shall apply,
with the consent of the defendant;
(c) the court, with the consent of the defendant, may impose sentence
under the provisions of this code applicable to the offense and the offender.
(4) The purpose of this code is to re-establish the criminal laws of the
state of Idaho that existed on December 31, 1971, unless otherwise specif-
ically amended or repealed by this act.
3 PRELIMINARY PROVISIONS 18-101
Any provision of law that was in effect on December 31, 1971, is not
repealed by inference or implication by enactment of this code.
(5) Any reference to the Penal and Correctional Code in effect on and
between January 1, 1972 and March 31, 1972 (Chapter 143, Session Laws of
1971) shall be deemed to refer to a comparable provision in this code. [I.C.,
18-100, as added by 1972, ch. 381, 1, p. 1102.]

Compiler's notes. The words in parenthe- Application.
ses so appeared in the law as enacted. Where defendant committed crime prior to
Section 2 of S.L. 1972, ch. 381 is compiled enactment of this statute, it was within the
as

18-111A. trial court's discretion whether to apply the
Section 21 of S.L. 1972, ch. 381 provided
new law or the old. State v. Musquiz, 96 Idaho
that the act should take effect April 1, 1972.
105, 524 P.2d 1077 (1974).
Cited in: State v. Barlow, 113 Idaho 573,
746 P.2d 1032 (Ct. App. 1987).
18-101. Definition of terms.
The following words have in this code

the signification attached to them in this section, unless otherwise apparent
from the context:
1. The word "wilfully," when applied to the intent with which an act is
done or omitted, implies simply a purpose or willingness to commit the act
or make the omission referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage.
2. The words "neglect," "negligence," "negligent," and "negligently," im-
port a want of such attention to the nature of probable consequences of the
act or omission as a prudent man ordinarily bestows in acting in his own
concerns.
3. The word "corruptly," imports a wrongful design to acquire or cause
some pecuniary or other advantage to the person guilty of the act or
omission referred to, or to some other person.
4. The words "malice," and "maliciously," import a wish to vex, annoy, or
injure another person, or an intent to do a wrongful act, established either
by proof or presumption of law.
5. The word "knowingly," imports only a knowledge that the facts exist
which bring the act or omission within the provisions of this code. It does not
require any knowledge of the unlawfulness of such act or omission.
6. The word "bribe," signifies anything of value or advantage, present or
prospective, or any promise or undertaking to give any, asked, given, or
accepted, with a corrupt intent to influence, unlawfully, the person to whom
it is given, in his action, vote or opinion, in any public or official capacity.
7. Where the word "person" is used in this code to designate the party
whose property may be the subject of any offense, it includes this state, any
other state, any territory, government, or country, which may lawfully own
property within this state, and all public and private corporations or joint
associations, as well as individuals. [I.C.,

18-101, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which prising I.C., 18-101, as added by 1971, ch.
comprised R.S., R.C., & C.L., 6301; C.S., 143, 1. However, the latter section was
8074; I.C.A.,

17-101, was repealed by S.L. repealed by S.L. 1972, ch. 109, 1, effective
1971, ch. 143, 5, effective January 1, 1972, April 1, 1972 and the present section added by
and substituted therefor was a section com- S.L. 1972, ch. 336, 1 in the same words as
the section prior to its repeal by S.L. 1971, ch.
143, 5.
The words "this code" refer to the penal
code.
Section 14 of S.L. 1972, ch. 336 declared an
emergency and provided that the act should
take effect on and after April 1, 1972.
Sec. to sec. ref. This section is referred to
in
66-612.
Cited in: State v. Churchill, 15 Idaho 645,
98 P. 853, 19 L.R.A. (n.s.) 835, 16 Ann. Cas.
947 (1909); State v. Winter, 24 Idaho 749, 135
P. 739 (1913); Archbold v. Huntington, 34
Idaho 558, 201 P. 1041 (1921); State v.
Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932);
State v. Barlow, 113 Idaho 573, 746 P.2d 1032
(Ct. App. 1987); State v. Gomez, 126 Idaho
700, 889 P.2d 729 (Ct. App. 1995); State v.
Camp, 134 Idaho 662, 8 P.3d 657 (Ct. App.
2000); State v. Hammersley, 134 Idaho 816,
10 P.3d 1285 (2000); State v. Billings, 137
Idaho 827, 54 P.3d 470 (Ct. App. 2002); State
v. Pole,

Idaho , 79 P.3d 729 (Ct. App.
2003), review denied,

P.3d

(Nov. 30,
2003).
Analysis
Instructions.
Malice.
Negligence.
Wilfulness.
Instructions.
In prosecution where defendant was found
guilty of the crime of wilful concealment and
the jury was instructed on the charged offense
of petit theft and also on the lesser included
offense of wilful concealment, these instruc-
tions adequately addressed the subject mat-
ter of the requested instruction on the statu-
tory definition of negligence, as set forth in
subdivision (2) of this section. State v.
Fetterly, 126 Idaho 475, 886 P.2d 780 (Ct.
App. 1994).
Where defendant was found guilty of crime
of wilful concealment, an explanation of the
mental state, wilfulness, which is a requisite
for guilt of the crime of wilful concealment,
was given to the jury which was instructed
that in order to find defendant guilty of wilful
concealment they would have to find the state
had proven beyond a reasonable doubt that
defendant had wilfully concealed goods or
merchandise belonging to store while still
upon the premises of the store, and the jury
was given a definition of "wilfully" which was
drawn from the definition in subdivision (1) of
this section. These instructions were all that
were required for the statutory definition of
negligence in subdivision (2) of this section,
and subdivision (2) was not the law that
governed defendant's guilt or innocence.
There was no need for an instruction giving
that definition of negligence to support her
defense that she did not act wilfully; her
contention that she was merely negligent was
properly a subject for closing argument, but
did not necessitate a separate jury instruc-
tion. State v. Fetterly, 126 Idaho 475, 886 P.2d
780 (Ct. App. 1994).
Malice.
Although the definition of malice as set
forth in the former section was not applicable
in a murder case, any error of such an instruc-
tion was rendered harmless where the jury
was also fully instructed concerning the
frame of mind required by 18-4002. State v.
Dillon, 93 Idaho 698, 471 P.2d 553 (1970),
cert, denied, 401 U.S. 942, 91 S. Ct. 947, 28 L.
Ed. 2d 223 (1971).
Where it reasonably could be inferred from
the evidence that the defendants knew they
were committing a wrongful act, i.e., taking,
without permission, property belonging to
someone other than themselves, the drawing
of such an inference properly would be within
the province of the jury, not the court, in
deciding whether, as a matter of fact, the
conduct of the defendants was "malicious"
under the trespass statutes and, by rendering
verdicts of guilty, in light of the inferences
which could be drawn from the evidence, the
jury could, and did, find the element of malice
was proven. State v. Gissel, 105 Idaho 287,
668 P.2d 1018 (Ct. App. 1983).
The question whether an act was commit-
ted with malice or whether a person was
actuated by malice is ordinarily a question for
the jury, as the triers of fact, to be determined
in the light of all the surrounding facts and
circumstances which tend to establish or dis-
pute the existence of malice. State v. Gissel,
105 Idaho 287, 668 P.2d 1018 (Ct. App. 1983).
The definition of "malice" in subdivision (4)
of this section leaves no room for an interpre-
tation of the term to include negligence. State
v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct.
App. 1993).
The use of "maliciously" to modify the verbs
"injures or destroys," in 18-7001, indicates
that the act that must be performed with
intent is the injuring or destroying of prop-
erty; there is no implied legislative intent to
create criminal liability under
18-7001
where the injury to property was an unin-
tended consequence of conduct that may have
violated some other statute. State v. Nastoff,
124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993).
Negligence.
Instructions defining negligence in lan-
guage of the statute were not erroneous. State
v. Brace, 49 Idaho 580, 290 P. 722 (1930),
overruled in part, State v. McMahan, 57 Idaho
240, 65 P.2d 156 (1937). See also, State v.
Patterson, 60 Idaho 67, 88 P.2d 493 (1939);
State v. Hintz, 61 Idaho 411, 102 P.2d 639
(1940).
5 PRELIMINARY PROVISIONS 18-101A
This section, read in connection with
18- wilfullness, as set forth in the criminal code,
114,
qualifies the definition of negligence, it is applicable. State v. Montgomery, 135 Idaho
being apparent from the context of the latter
348, 17 P.3d 292 (2001).
section that criminal negligence is not ordi-
The term "willfully," when describing the
nary negligence as defined in this section.
mens rea necessary for a conviction under the
State v. McMahan, 57 Idaho 240, 65 P.2d 156
"willfully permit" prong of 18-1501(1), goes
(1937).
beyond the generalized provisions of this sec-
Wilful ss
tion and requires more than a purpose or
Instruction defining word "wilful" in words
willingness to commit the act or make the
of this section is sufficient. Meservy v. Idaho
omission referred to. The state was required
Irrigation Co., 37 Idaho 227, 217 P. 595
to show that defendant had knowledge of the
(1923)
consequences that his son would suffer "un-
The term "wilfully waste", as used in
18-
justifiable physical pain or mental suffering"
4309, imply the conscious commission of a
as a result of his omission. State v. Young, 138
wrong

the waste of irrigation water with
Idaho 370, 64 P.3d 296 (2002).
intent and design that it be wasted and with-
Where defendant picked his wife up and
out lawful excuse. State v. Hall, 90 Idaho 478,
threw her to the floor, causing injury to her
413 P.2d 685 (1966). arm, the circumstantial evidence was suffi-
Although "wilfullness" is not defined within cient to charge him with the crime of felony
the provisions of the Idaho Securities Act domestic battery; his intent to willfully inflict
[
30-1401
30-1458], since both the Idaho a traumatic injury to his wife could be in-
securities Act and the criminal code relate to ferred from his conduct. State v. Reyes,

criminal prosecutions, the definition of Idaho , 80 P.3d 1103 (Ct. App. 2003).
18-101A. Definitions.

As used in titles 18, 19 and 20, Idaho Code,
and elsewhere in the Idaho Code, unless otherwise specifically provided or
unless the context clearly indicates or requires otherwise, the following
terms shall be defined as follows:
(1) "Correctional facility" means a facility for the confinement of prison-
ers. The term shall be construed to include references to terms including,
but not limited to, "prison," "state prison," "state penitentiary," "governmen-
tal detention facility," "penal institution (facility)," "correctional institution,"
"detention institution (facility)," "county jail," "jail," "private prison (facili-
ty)" or "private correctional facility."
(2) "In-state prisoner" means [a] person who has been convicted of a crime
in the state of Idaho and is either incarcerated or on parole for that crime or
in custody for trial and sentencing, and who is being housed in any state,
local or private correctional facility, or who is being transported in any
manner within or through the state of Idaho.
(3)
"Local correctional facility" means a facility for the confinement of
prisoners operated by or under the control of a county or city. The term shall
include references to "county jail," or "jail." The term shall also include a
private correctional facility housing prisoners under the custody of the state
board of correction, the county sheriff or other local law enforcement agency.
(4) "Out-of-state prisoner" or "out-of-state inmate" means a person who is
convicted of and sentenced for a crime in a state other than the state of
Idaho, or under the laws of the United States or other foreign jurisdiction,
and who is being housed in any state, local or private correctional facility in
the state of Idaho, or who is being transported in any manner within or
through the state of Idaho.
(5) "Prisoner" means a person who has been convicted of a crime in the
state of Idaho and is either incarcerated or on parole for that crime or in
custody for trial and sentencing, or who is convicted of and sentenced for a
crime in a state other than the state of Idaho, or under the laws of the
18- 10 IB CRIMES AND PUNISHMENTS 6
United States or other foreign jurisdiction, and who is being housed in any
state, local or private correctional facility, or who is being transported in any
manner within or through the state of Idaho. The term shall be construed to
include references to terms including, but not limited to, "inmate," "convict,"
"detainee," and other similar terms, and shall include "out-of-state prisoner"
and "out-of-state inmate."
(6)
"Private correctional facility" or "private prison (facility)" means a
correctional facility constructed or operated in the state of Idaho by a
private prison contractor.
(7)
"Private prison contractor" means any person, organization, partner-
ship, joint venture, corporation or other business entity engaged in the site
selection, design, design/building, acquisition, construction, construc-
tion/management, financing, maintenance, leasing, leasing/purchasing,
management or operation of private correctional facilities or any combina-
tion of these services.
(8) "State correctional facility" means a facility for the confinement of
prisoners, owned or operated by or under the control of the state of Idaho.
The term shall include references to "state prison," "state penitentiary" or
"state penal institution (facility)." The term shall also include a private
correctional facility housing prisoners under the custody of the board of
correction. [I.C.,

18-101A, as added by 2000, ch. 272, 1, p. 786.]
Compiler's notes. The bracketed word "a" walls of such correctional facility," because,
in subsection (2) was inserted by the compiler. although he had been charged with a felony,
Section 14 of S.L. 2000, ch. 272 declared an he had not yet been placed in a correctional
emergency. Approved April 12, 2000.
facility when he emerged from the patrol car
and fled. State v. Shanks,
Idaho , 75 P.3d
in

18-2502, 18-2505, 18-2507, 18-2510, 18-
206 (Ct. App. 2003).
6110, 31-3220A.
"Prisoner."
Trial court correctly dismissed a charge of
escape where defendant was not "outside the
18-101B. Criminal laws applicable to out-of-state prisoners and
personnel of private correctional facilities.

(1) An out-of-state
prisoner and personnel of a private prison contractor employed at a private
correctional facility in the state of Idaho shall be subject to all criminal laws
of the state of Idaho.
(2) Any offense which would be a criminal act if committed by an in-state
prisoner housed in a state, local or private correctional facility, or in custody
during transport within or through the state of Idaho, including escape from
such facility or during transport, and any penalty for such offense, shall
apply in all respects to an out-of-state prisoner.
(3) Any offense which would be a criminal act if committed by an officer,
employee or agent of a state or local correctional facility, and any penalty for
such offense, shall apply in all respects to the officers, employees and agents
of a private correctional facility located in the state of Idaho. [I.C.,

18-
101B, as added by 2000, ch. 272, 2, p. 786.]
Compiler's notes. Section 3 of S.L. 2000, Section 14 of S.L. 2000, ch. 272 declared an
ch. 272, is compiled as
18-915. emergency. Approved April 12, 2000.
PRELIMINARY PROVISIONS 18-105
18-102. Sufficiency of intent to defraud.
Whenever, by any of the

provisions of this code, an intent to defraud is required in order to constitute
any offense, it is sufficient if an intent appears to defraud any person,
association, or body politic or corporate, whatever. [I.C.,

18-102, as added
by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which
comprised R.S., R.C., & C.L., 6302; C.S.
8075;I.C.A., 17-102, was repealed by S.L.
1971, ch. 143, 5, effective January 1, 1972,
and substituted therefor was a section com-
prising I.C., 18-102, as added by 1971, ch.
143, 1. However, the latter section was
repealed by S.L. 1972, ch. 109, 1, effective
April 1, 1972 and the present section added by
S.L. 1972, ch. 336, 1 in the same words as
143, 5.
code.
Instruction in Language of Section.
Instruction in-the language of this section is
sufficient. It is not necessary to name the
injured person; the only effect of naming him
in the information as the person intended to
be defrauded is to confine the prosecution in
its proof of intent to defraud to the particular
person named. State v. McDermott, 52 Idaho
602, 17 P.2d 343 (1932).
Collateral References. 37 C.J.S., Fraud,
157.
18-103. Civil remedies preserved.
The omission to specify or affirm

in this code any liability to damages, penalty, forfeiture, or other remedy
imposed by law and allowed to be recovered or enforced in any civil action or
proceeding, for any act or omission declared punishable herein, does not
affect any right to recover or enforce the same. [I.C.,

18-103, as added by
1972, ch.
336, 1, p. 844.]
comprised R.S., R.C., & C.L., 6303; C.S.,
prising I.C.,

18-103, as added by 1971, ch.
143, 5.
code.
18-104. Proceedings to remove officers preserved.
The omission
to specify or affirm in this code any ground of forfeiture of a public office, or
other trust or special authority conferred by law, or any power conferred by
law to remove, depose, or suspend any public officer, or other person holding
any trust, appointment, or other special authority conferred by law, does not
affect such forfeiture or power, or any proceeding authorized by law to carry
into effect such removal, deposition, or suspension. [I.C.,

18-104, as added
by 1972, ch. 336, 1, p. 844.]
comprised R.S., R.C., & C.L.,
6304; C.S.,
prising I.C.,
18-104, as added by 1971, ch.
143, 5.
code.
18-105. Courts may punish for contempt.

This code does not
affect any power conferred by law upon any public body, tribunal or officer,
18-106 CRIMES AND PUNISHMENTS 8
to impose or inflict punishment for a contempt. [I.C.,

18-105, as added by
1972, ch. 336, 1, p. 844.]

prising I.C.,
18-105, as added by 1971, ch.
143, 5.
code.
Cross ref. Contempts in civil proceeding,
7-601 7-614.
Contempts in criminal proceedings,
18-
1801.
Contempts punishable as criminal acts,
18-302.
Inherent Power.
Inherent power of court to punish for con-
tempt cannot be interfered with or abridged
by legislature, at least so far as courts of
record are concerned. McDougall v. Sheridan,
23 Idaho 191, 128 P. 954 (1913).
18-106. Court to impose punishment.
The several sections of this

code which declare certain crimes to be punishable as therein mentioned,
devolve a duty upon the court authorized to pass sentence, to determine and
impose the punishment prescribed. [I.C.,

18-106, as added by 1972, ch.
336, 1, p. 844.]
8079; I.C.A.,
17-106, was repealed by S.L.
prising I.C.,
18-106, as added by 1971, ch.
S.L. 1972, ch. 336,
1 in the same words as
143, 5.
code.
Analysis
Instructions.
Partial repeal.
Instructions.
In involuntary manslaughter proceeding
where jury at its own request was brought
into presence of court and parties and asked
the court if it was required to recommend
punishment of defendant, and court said that
was the duty of the court, it was not error for
court to fail to instruct jury on matter of
included offenses. State v. Scott, 72 Idaho 202,
239 R2d 258 (1951).
Partial Repeal.
This section, in so far as inconsistent with
19-2513, providing indeterminate sen-
tences in certain cases, is impliedly repealed.
In re Erickson, 44 Idaho 713, 260 P. 160
(1927), overruled on other grounds, Spanton
v. Clapp, 78 Idaho 239, 299 P.2d 1105 (1956).
18-107. Determination of punishment by court.

Whenever, in
this code, the punishment for a crime is left undetermined between certain
limits, the punishment to be inflicted in a particular case, must be
determined by the court authorized to pass sentence within such limits as
may be prescribed by this code. [I.C.,

18-107, as added by 1972, ch. 336,
1, p.
844.]
8080; I.C.A., 17-107, was repealed by S.L.
143, 5.
code.
Cited in: State v. Edmonson, 113 Idaho
230, 743 P.2d 459 (1987).
PRELIMINARY PROVISIONS 18-109
Analysis
Measurement of term.
Partial repeal.
Sentence within limits.
Measurement of Term.
For the purpose of appellate review, the
date of first parole eligibility is the bench-
mark for measuring the term of confinement
imposed by an indeterminate sentence. State
v. Tisdale, 107 Idaho 481, 690 P.2d 936 (Ct.
App. 1984).
Partial Repeal.
This section in so far as inconsistent with
19-2513, providing for indeterminate sen-
tences in certain cases, is impliedly repealed.
In re Erickson, 44 Idaho 713, 260 P. 160
(1927), overruled on other grounds, Spanton
v. Clapp, 78 Idaho 239, 299 P.2d 1105 (1956).
Sentence Within Limits.
A sentence within the statutory maximum
will not be deemed excessive unless the defen-
dant shows that under any reasonable view of
the facts the term of confinement is longer
than appears necessary, at the time of sen-
tencing, to accomplish the primary objective
of protecting society and to achieve any or all
of the related goals of deterrence, rehabilita-
tion or retribution. State v. Tisdale, 107 Idaho
481, 690 P.2d 936 (Ct. App. 1984).
18-108. Defendant's testimony may be used to prove perjury. [Re-
pealed.]
Compiler's notes. Former 18-108,
which comprised I.C., 18-108, as added by
1972, ch. 336, 1, p. 844, was repealed by
S.L. 1994, ch. 167, 1, effective July 1, 1994.
Another former
18-108, which comprised
R.S., R.C., & C.L., 6308; C.S., 8081;
I.C.A., 17-108, was repealed by S.L. 1971,
ch. 143, 5, effective January 1, 1972, and
substituted therefor was a section comprising
I.C., 18-108, as added by 1971, ch. 143, 1.
However, the latter section was repealed by
S.L. 1972, ch. 109, 1, effective April 1, 1972
and another version added by S.L. 1972, ch.
336, 1 in the same words as the section
prior to its repeal by S.L. 1971, ch. 143, 5.
18-109. Definition of crime.

A crime or public offense is an act
committed or omitted in violation of a law forbidding or commanding it, and
to which is annexed, upon conviction, either of the following punishments:
1. Death.
2. Imprisonment.
3. Fine.
4. Removal from office; or
5. Disqualification to hold and enjoy any office of honor, trust or profit in
this state. [I.C.,
18-109, as added by 1972, ch.
336, 1, p. 844.]
comprised Cr. Prac. 1864, 1; R.S., R.C., &
C.L., 6309; C.S., 8082; I.C.A., 17-109,
was repealed by S.L. 1971, ch. 143, 5,
effective January 1, 1972, and substituted
therefor was a section comprising I.C.,
18-
109, as added by 1971, ch. 143, 1. However,
the latter section was repealed by S.L. 1972,
ch. 109, 1, effective April 1, 1972 and the
present section added by S.L. 1972, ch. 336,
1 in the same words as the section prior to
its repeal by S.L. 1971, ch. 143, 5.
Cited in: State ex rel. Moore v. Bastian, 97
Idaho 444, 546 P.2d 399 (1976); State v. Major,
111 Idaho 410, 725 P.2d 115 (1986); State v.
McCoy, 128 Idaho 362, 913 P2d 578 (1996).
Analysis
Conviction before punishment.
Statutory offenses.
Conviction Before Punishment.
Reading
19-101 together with, this sec-
tion, it is apparent that the legislature in-
tended that neither death, imprisonment, fine
nor removal or disqualification from office be
imposed as punishment for a crime without
there first being a legal conviction of that
crime. State v. Wagenius, 99 Idaho 273, 581
P2d 319 (1978).
Statutory Offenses.
Law creating statutory offense must define
the acts necessary to constitute such offense
with such certainty that a person may deter-
mine whether or not he has violated the law
at the time he does the act which is charged to
be a violation thereof. Accused must be in-
formed what acts and conduct are prohibited
and made punishable. State v. Burns, 53
Idaho 418, 23 P.2d 731 (1933).
18-110. Grades of crime.
Crimes are divided into:

1. Felonies; and
2. Misdemeanors. [I.C.,
18-110, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6310; C.S., 8083; I.C.A.,
17-110,
18-
Collateral References. Character of of-
fense as felony as affected by discretion of
court or jury regarding punishment. 95 A.L.R.
1115.
Character of offense as felony or misde-
meanor for which a fine is provided as affected
by provision for imprisonment until fine is
satisfied. 127 A.L.R. 1286.
Reliance upon advice of counsel as affecting
criminal responsibility. 135 A.L.R. 1055.
18-111. Felony, misdemeanor and infraction defined.
A felony is
a crime which is punishable with death or by imprisonment in the state
prison. An infraction is a civil public offense, not constituting a crime, which
is punishable only by a penalty not exceeding one hundred dollars ($100)
and for which no period of incarceration may be imposed. Every other crime
is a misdemeanor. When a crime punishable by imprisonment in the state
prison is also punishable by fine or imprisonment in a county jail, in the
discretion of the court, it shall be deemed a misdemeanor for all purposes
after a judgment imposing a punishment other than imprisonment in the
state prison. [I.C.,
18-111, as added by 1972, ch. 336, 1, p. 844; am. 1982,
ch. 353, 6, p. 874.]
comprised Cr. Prac. 1864, 3, 4; R.S., R.C.,
&C.L., 6311;C.S., 8084; I.C.A., 17-111,
18-
Sections 5 and 7 of S.L. 1982, ch. 353 are
compiled as
1-2208 and 18-113A, respec-
tively.
Section 42 of S.L. 1982, ch. 353 as amended
by 2 of S.L. 1983, ch. 2 provided that this
section should become effective July 1, 1983.
Cross ref. Punishment for infraction,
18-113A.
in
18-8004C, 18-8005, 18-8006, 49-236,
67-7033, 67-7035 and 67-7129.
Cited in: State v. Pontier, 95 Idaho 707,
518 P.2d 969 (1974); State v. Thomas, 98
Idaho 623, 570 P.2d 860 (1977); Sparrow v.
State, 102 Idaho 60, 625 P2d 414 (1981);
State v. Edmonson, 113 Idaho 230, 743 P.2d
459 (1987); State v. McCoy, 128 Idaho 362, 913
P.2d 578 (1996).
Analysis
Alternate sentences.
Character of offense.
Conviction of felony.
Designation in charge.
Designation in judgment.
Disbarment proceedings.
Imprisonment for fine.
Prosecutorial discretion.
Punishment.
Purpose.
Reduction of offense.
Alternate Sentences.
If a sentence is suspended or lessened, or
other action taken by the court, after adjudg-
ing the defendant guilty, under
19-2601, it
is not an alternate sentence within the mean-
ing of the former section. State v. O'Dell, 71
Idaho 64, 225 P.2d 1020 (1950).
Character of Offense.
The test to be applied as to whether a crime
is a felony or misdemeanor, where no alter-
nate sentence is provided by law, is the pun-
ishment that may or should be inflicted and
not that actually imposed. State v. O'Dell, 71
Idaho 64, 225 P.2d 1020 (1950).
11 PRELIMINARY PROVISIONS 18-111A
Conviction of Felony.
When the court, pursuant to plea of guilty
or verdict of a jury, adjudges the defendant
guilty of burglary, he has been convicted of a
felony within the meaning of 19-2514. State
v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950).
Designation in Charge.
In a prosecution for poisoning animals, an
indictment substantially in the words of the
statute was sufficient to give the court juris-
diction and was not prejudicial, though the
offense was designated as a misdemeanor
instead of a felony. State v. Farnsworth, 51
Idaho 768, 10 P.2d 295 (1932).
Designation in Judgment.
It is only when the law makes specific
provision therefor, that the court may desig-
nate the crime to be a felony; and though so
provided, absent such designation in the judg-
ment, the crime shall be deemed a misde-
meanor. State v. Davidson, 78 Idaho 553, 309
R2d 211 (1957).
Disbarment Proceedings.
Expression "felony or misdemeanor involv-
ing moral turpitude," as used in the disbar-
ment statute, means felonies and misdemean-
ors involving moral turpitude as defined by
laws of this state, rather than by laws of other
jurisdictions. In re Dampier, 46 Idaho 195,
267 P. 452 (1928).
Imprisonment for Fine.
Statute does not forbid incarceration in
prison of felon sentenced either to pay fine or
undergo imprisonment upon default of such
payment. Territory v. Guthrie, 2 Idaho (Hasb.)
432, 17 P. 39 (1888).
Prosecutorial Discretion.
Where the facts legitimately invoke more
than one statute, a prosecutor is vested with a
wide range of discretion in deciding what
crime to prosecute and this principle logically
applies to a situation where the defendant's
alleged conduct could be deemed in violation
either of a misdemeanor statute or of a stat-
ute declaring the offense to be an infraction.
State v. Phillips, 117 Idaho 23, 784 P.2d 353
(Ct. App. 1989).
Punishment.
Where the statute expressly provided that
the punishment for a designated crime may
be in the penitentiary or by fine or jail sen-
tence, then the provisions of the former sec-
tion would have had application as to whether
or not the particular offense was a felony or a
misdemeanor, depending on the sentence im-
posed; but, where the statute provides that a
crime be punishable by imprisonment in the
state penitentiary with no alternate sentence,
the punishment actually imposed is not con-
trolling in determining whether the crime is a
felony or a misdemeanor. State v. O'Dell, 71
Idaho 64, 225 Pd 1020 (1950).
Where a violation of a statute is punishable
by imprisonment in the state penitentiary,
the offense is classified as a felony albeit the
punishment actually imposed may be of a
lesser degree. State v. Nagel, 98 Idaho 129,
559 P.2d 308 (1977).
Purpose.
This section does not purport to define a
word, but rather establishes a level of offense,
distinguishing felonies from infractions and
misdemeanors based upon the magnitude of
the penalty which may be imposed. State v.
Swisher, 125 Idaho 797, 874 P.2d 608 (Ct.
App. 1994).
Reduction of Offense.
Where the statute defines the crime as a
felony and provides no alternate sentence, the
punishment actually imposed under the com-
mutation provisions of
19-2601 is inconse-
quential and does not reduce the offense from
a felony to a misdemeanor because the man-
datory punishment was lessened by reason of
said section. State v. O'Dell, 71 Idaho 64, 225
P.2d 1020 (1950).
Opinions of Attorney General. A person
who is pardoned or who has successfully com-
pleted the period of a withheld judgment and
had his or her guilty plea or conviction ne-
gated or expunged may possess and transact
firearms without violating the federal Gun
Control Act, 18 USCS 921 et seq.; however,
during the probationary period of a withheld
judgment and during and after the term
which a person serves on probation with a
suspended sentence or on parole, such person
is a convicted felon for the purposes of the
Gun Control Act. OAG 86-16.
Collateral References. Character of of-
fense as felony as affected by discretion of
court or jury regarding punishment. 95 A.L.R.
1115.
Character of offense as felony or misde-
meanor for which a fine is provided as affected
by provision for imprisonment until fine is
satisfied. 127 A.L.R. 1286.
18-111A. Felony defined further.

Wherever the words felony,
felony in the first degree, felony in the second degree, or felony in the third
degree are used in the entire Idaho Code as well as the 1972 Session Law
amendments thereto, the same shall be defined as a felony and shall be
punishable, unless otherwise provided in a specific act, according to the
18-111B CRIMES AND PUNISHMENTS 12
General Felony Statute in the state of Idaho contained in section 18-112,
Idaho Code. [I.C.,

18-111A, as added by 1972, ch. 381, 2, p. 1102.]
Cited in: State v. Nagel, 98 Idaho 129, 559
P.2d 308 (1977); State v. McCoy, 128 Idaho
362, 913 P.2d 578 (1996).
18-111B. Misdemeanor defined further.

Wherever the words
misdemeanor, petty misdemeanor or violation are used in the entire Idaho
Code as well as the 1972 Session Law amendments thereto, these terms or
any of them shall be construed to mean misdemeanor and shall be punished,
unless otherwise provided for in a specific act, as provided under the
General Misdemeanor Statute contained in section 18-113, Idaho Code.
[I.C.,

18-111B, as added by 1972, ch. 381, 3, p. 1102.1
Compiler's notes. Section 4 of S.L. 1972,
ch. 381 is compiled as
18-216.
Cited in: State v. Nagel, 98 Idaho 129, 559
P.2d 308 (1977).
18-112. Punishment for felony.

Except in cases where a different
punishment is prescribed by this code, every offense declared to be a felony
is punishable by imprisonment in the state prison not exceeding five
(5)
years, or by fine not exceeding fifty thousand dollars
($50,000), or by both
such fine and imprisonment. [I.C.,
18-112, as added by 1972, ch. 336, 1,
p. 844; am. 1994, ch. 134, 1, p. 307.]
C.L., 6312; C.S., 8085; I.C.A.,

17-112,
18-
Cross ref. Crimes for which no penalty is
fixed punishable as misdemeanors,
18-317.
Imprisonment for fine,
18-303.
Indeterminate sentence law,
19-2513.
Punishment for common law crimes,
18-
303.
in

18-111A, 36-1402, 49-228, 49-236, 49-
1418.
Cited in: State v. Camp, 107 Idaho 36, 684
P.2d 1013 (Ct. App. 1984); State v. Briggs, 113
v. Beebe, 113 Idaho 977, 751 P.2d 673 (Ct.
App. 1988); State v. Hoffman, 114 Idaho 139,
754 P2d 452 (Ct. App. 1988); State v.
Hernandez, 122 Idaho 227, 832 P2d 1162 (Ct.
App. 1992); Yoakum v. Hartford Fire Ins. Co.,
129 Idaho 171, 923 P.2d 416 (1996); State v.
Chavez, 134 Idaho 308, 1 P.3d 809 (Ct. App.
2000).
Analysis
Application.
Attempted escape.
Construction.
Reasonable sentence.
Unreasonable sentence.
Application.
One convicted of furnishing intoxicating
liquors to minors is properly sentenced under
this section. State v. Payton, 45 Idaho 668,
264 P. 875 (1928); State v. Stewart, 46 Idaho
646, 270 P. 140 (1928).
Where appellant was convicted of a felony
escape under
18-2505 and receiving stolen
property under
18-4612 (repealed), the
former section applied to both felonies, and
appellant was subject to imprisonment for a
period of up to five years on each count.
Lockard v. State, 92 Idaho 813, 451 P.2d 1014
(1969).
Because the legislature unambiguously de-
nominated a violation of 49-1404(2), elud-
ing a peace officer, a felony and because it did
not provide a specific prison term for that
charge, the punishment set forth in this sec-
tion, up to five years imprisonment and
$50,000 fine, is applicable and the penalty set
forth in 49-1404(3), license suspension, is in
addition to that punishment. State v. McCoy,
128 Idaho 362, 913 P.2d 578 (1996).
Attempted Escape.
Two and one-half year, indeterminate sen-
tences were within the maximum penalty
authorized by statute for attempted escape
and were not excessive as the term of addi-
tional confinement did not exceed the mini-
mum period necessary to serve society's inter-
est in deterring escapes. State v. Urquhart,
105 Idaho 92, 665 P.2d 1102 (Ct. App. 1983).
A unified sentence of 13 years in the cus-
tody of the Board of Corrections with a three
year minimum period of confinement was not
excessive for a conviction of felony escape
with persistent violator enhancement, even
though defendant had not been convicted of a
violent crime and the county sheriff had tes-
tified as to improvement in defendant's con-
duct while in custody. State v. Holton, 120
Idaho 112, 813 P.2d 923 (Ct. App. 1991).
Construction.
This is not a maximum penalty statute but
prescribes punishment for felonies only in
cases where punishment is not prescribed by
other sections of the statutes. In re Miller, 23
Idaho 403, 129 P. 1075 (1913).
Imprisonment imposed as alternative of
fine has nothing to do with imprisonment for
nonpayment of costs. State v. Montroy, 37
Idaho 684, 217 P. 611 (1923).
Reasonable Sentence.
Where the record indicated that the defen-
dant had damaged his family, perhaps beyond
repair, and the trial court considered the
likelihood of rehabilitation, the seriousness of
the crime, the defendant's prior criminal
record, and the fact that the defendant had
consistently refused to admit the gravity of
his offense or even acknowledge that he had
sexually abused his three children, a ten-year
indeterminate sentence for three counts of
sexual abuse of a child under 16 was within
the statutory maximum, and there was no
abuse of discretion. State v. Snapp, 110 Idaho
269, 715 P.2d 939 (1986).
A fixed, five-year sentence on a sexual
abuse charge and an indeterminate life sen-
tence with a five-year minimum period of
incarceration on a lewd conduct charge, which
were to run concurrently, were not excessive
nor an abuse of discretion, even though the
court declined to follow the treatment recom-
mendations of the evaluating psychologists.
State v. Bartlett, 118 Idaho 722, 800 P.2d 118
(Ct. App. 1990).
Unreasonable Sentence.
Although defendant's sentence for posses-
sion of methamphetamine was reasonable,
his fixed, five-year sentence for escape was
excessive where the circumstances of defen-
dant's escape were not aggravated or egre-
gious. State v. Chavez, 134 Idaho 308, 1 P.3d
809 (Ct. App. 2000).
Collateral References. Fine extending
term of imprisonment beyond year does not
convert offense into felony. 127 A.L.R. 1286.
18-112A. Fine authorized.

In addition to any other punishment
prescribed for felonies in specific statutes of the Idaho Code, the court may
also impose a fine of up to fifty thousand dollars ($50,000). This section shall
not apply if the specific felony statute provides for the imposition of a fine.
[I.C.,
18-112A, as added by 1986, ch. 312, 1, p. 763; am. 1994, ch. 134,
2, p. 307.]
18-113. Punishment for misdemeanor.
(1) Except in cases where

a different punishment is prescribed in this code, every offense declared to
be a misdemeanor, is punishable by imprisonment in a county jail not
exceeding six (6) months, or by a fine not exceeding three hundred dollars
($300), or by both.
(2) In addition to any other punishment prescribed for misdemeanors in
specific statutes of the Idaho Code, the court may also impose a fine of up to
three hundred dollars ($300). This paragraph shall not apply if the specific
misdemeanor statute provides for the imposition of a fine. [I.C.,

18-113, as
added by 1972, ch.
336, 1, p. 844; am. 1994, ch. 141, 1, p. 315.]
Compiler's notes. Aformer section, which
comprised Cr. & P. 1864, 151; R.S., R.C., &
C.L., 6313; C.S., 8086; I.C.A., 17-113,
18-
18-113A CRIMES AND PUNISHMENTS 14
its repeal by S.L. 1971, ch. 143,
5.
Cross ref. Imprisonment for fine,
18-
303.
Public offense for which no penalty is oth-
erwise prescribed is punishable as a misde-
meanor,
18-317.
Punishment for common law crimes,
18-
303.
in
18-111B, 39-804, 39-5303, 39-5310, 49-
236, 50-1526 and 59-1327.
Cited in: State v. Pontier, 95 Idaho 707,
518 P.2d 969 (1974); Stoneberg v. State, 106
Idaho 519, 681 P.2d 994 (1984); State v.
Staten, 114 Idaho 925, 762 P.2d 838 (Ct. App.
1988); Yoakum v. Hartford Fire Ins. Co., 129
Idaho 171, 923 P.2d 416 (1996).
Analysis
Construction.
Judgment.
Construction.
This section fixes the maximum penalty for
a misdemeanor where it has not been other-
wise fixed. State v. Mulkey, 6 Idaho 617, 59 P.
17 (1899); In re Rowland, 8 Idaho 595, 70 P.
610 (1902); In re Burgess, 12 Idaho 143, 84 P.
1059 (1906); In re Miller, 23 Idaho 403, 129 P.
1075 (1913).
Imprisonment imposed as alternative of
fine has nothing to do with imprisonment for
nonpayment of costs. State v. Montroy, 37
Idaho 684, 217 P. 611 (1923).
Judgment.
Where maximum sentence for conviction
for drawing a check without funds was six
months at the time the crime was committed,
judgment placing defendant on probation for
two years was excessive, but judgment of
probation was valid for period of six months.
State v. Eikelberger, 71 Idaho 282, 230 P.2d
696 (1951).
18-113A. Punishment for infraction.
Every offense declared to be

an infraction is punishable only by a penalty not exceeding one hundred
dollars ($100) and no imprisonment. [I.C.,

18-113A, as added by 1982, ch.
353, 7, p. 874.]
Legislative Intent. Section 1 of S.L. 1982,
ch. 353 read: "By the enactment of Chapter
223, Laws of 1981, the state made a dramatic
move to reduce congestion in the court sys-
tem, to improve the ability of peace officers to
regulate and control motor vehicle traffic, and
to achieve significant economies in the admin-
istration of justice. This chapter has not yet
gone into effect, since it was deliberately
enacted with an effective date clause of July
1, 1982. This was done to allow those officials
concerned with the administration and en-
forcement of the law to have time to review
and study its provisions.
"It has now come to our attention that some
adjustments to Chapter 223 are in order, and
that other equally vital changes need to be
made in other sections of the law. It is the
intent of this bill to provide a means to
accomplish this. This bill repeals outright
several sections of Chapter 223, in order that
the Idaho Code provisions amended by such
sections might be left in place; this bill repeals
several sections of existing Idaho Code provi-
sions; this bill replaces some of these repealed
sections; and this bill adds new sections and
makes several amendments in order to make
the entire concept a viable instrument. And
finally, this bill would delay the effective date
of Chapter 223 from July 1, 1982 to March 1,
1983, so that all of the needed changes, revi-
sions and amendments can function as an
integrated whole."
Compiler's notes. Sections 6 and 8 of S.L.
1982, ch. 353 are compiled as

18-111 and
19-1902, respectively.
by 2 of S.L. 1983, ch. 2 provided that this
section should become effective July 1, 1983.
Cross ref. Infraction defined,
18-111.
in

25-2803, 25-2805, 49-236, 67-4237, 67-
7078 and 67-7115.
18-113B. Incarceration of juveniles for misdemeanor or felony
offenses.
(1) Juveniles committing offenses which lie outside the scope

of the juvenile corrections act, chapter 5, title 20, Idaho Code, and not
charged under section 20-508 or 20-509, Idaho Code, may, in the discretion
of a court or arresting officer, be placed in a juvenile detention facility or
juvenile shelter care facility rather than in a county jail pending arraign-
ment or trial, if arrested or held on bond. The option of placing a juvenile in
such a facility shall not affect the misdemeanor or felony status of the
offense.
(2) Juveniles committing offenses which lie outside the scope of the
juvenile corrections act, chapter 5, title 20, Idaho Code, and not charged
under section 20-508 or 20-509, Idaho Code, may, in the discretion of the
court, be sentenced:
(a) To serve time in a juvenile detention facility rather than in a county
jail; or
(b) To serve time in a community sentencing alternative when a manda-
tory minimum period of incarceration is not required by statute.
The option of placing a juvenile in such a facility shall not affect the
misdemeanor or felony status of the offense. [I.C.,
18-113B, as added by
1984, ch. 82, 1, p. 157; am. 2004, ch.
23, 2, p. 25.]
8-705 and
18-114. Union of act and intent.

In every crime or public offense
there must exist a union, or joint operation, of act and intent, or criminal
negligence. [I.C.,
18-114, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6314; C.S., 8087; I.C.A.,
17-114,
effective January 1, 1972 and the present
section added by S.L. 1972, ch. 336, 1 in the
same words as the section prior to its repeal.
Cited in: State v. Cochrane, 51 Idaho 521,
6 P.2d 489 (1931); State v. Kouni, 58 Idaho
493, 76 P.2d 917 (19*38); State v. Perez, 99
Idaho 181, 579 P.2d 127 (1978); State v.
McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct.
App. 1988); State v. Stiffler, 114 Idaho 935,
763 P.2d 308 (Ct. App. 1988); State v. Stiffler,
117 Idaho 405, 788 P.2d 220 (1990); State v.
Odiaga, 125 Idaho 384, 871 P2d 801, cert,
denied, 513 U.S. 952, 115 S. Ct. 369, 130 L.
Ed. 2d 321 (1994); State v. Gonzalez, 134
v. Crowe, 135 Idaho 43, 13 P.3d 1256 (Ct. App.
2000); State v. Hellickson, 135 Idaho 742, 24
P.3d 59 (2001); State v. Prather, 135 Idaho
770, 25 P.3d 83 (2001).
Analysis
Constitutionality.
Construction.
Defense of mistake of fact.
Driving under the influence.
Intent.
Formulation.
Instructions.
Rape.
Jury instructions.
Liability of public officials.
Liquor offenses.
Mental condition.
Negligence.
Constitutionality.
Idaho Code
18-705 and this section give
fair warning to a person of common intelli-
gence that defendant's conduct in swinging a
crutch at a police officer was forbidden and
subject to the penalty of law; therefore,
18-
705, as applied, was not constitutionally de-
fective as void-for-vagueness. State v. Dolsby,
124 Idaho 271, 858 P.2d 810 (Ct. App. 1993).
Construction.
This section must be constructed as part of
police regulations. State v. Omaechevviaria,
27 Idaho 797, 152 P. 280 (1915), aff'd
,
246
U.S. 343, 38 S. Ct. 323, 62 L. Ed. 763 (1918);
State v. Bidegain, 33 Idaho 66, 189 P. 242
(1920).
Wicked and wilful intent to violate criminal
law is not essential element or ingredient in
every criminal offense. This is so in statutory
crimes where statute does not make intent
ingredient of crime. State v. Sterrett, 35 Idaho
580, 207 P. 1071 (1922).
Whether criminal intent is necessary ele-
ment of statutory offense is matter of con-
struction to be determined by language of
statute in view of its manifest purpose and
design. State v. Sterrett, 35 Idaho 580, 207 P.
1071 (1922).
Conviction of involuntary manslaughter
was authorized by evidence of the violation of
four traffic statutes, namely, reckless driving,
driving while intoxicated, at an excessive
speed, and on the wrong side of the road.
State v. Salhus, 68 Idaho 75, 189 P.2d 372
(1948).
The allegations contained in the informa-
tion of the commission of unlawful acts in
violation of certain statutory law and ordi-
nances could be regarded as allegations of fact
out of which the reckless disregard and the
negligence interpreted as reckless disregard
arose which was the basis of the charge and
though they could be characteristic of the
charge of manslaughter, they could not have
the effect of changing the charge from negli-
gent homicide to manslaughter further be-
cause the proof thereof did not and could not
increase the penalty beyond that fixed by the
negligent homicide statute. State v. Davidson,
78 Idaho 553, 309 P.2d 211 (1957).
The conflict between the involuntary man-
slaughter statute imposing a sentence of im-
prisonment not exceeding ten years in the
state prison and the negligent homicide stat-
ute imposing a sentence of imprisonment not
exceeding one year without designating the
state prison or the county jail could not be
reconciled, and that being so, the negligent
homicide statute must govern since it was the
later enactment. State v. Davidson, 78 Idaho
553, 309 P.2d 211 (1957).
The information charging accused with fail-
ure to stop his motor vehicle at the scene of an
accident and to render aid and furnish infor-
mation after striking and injuring two per-
sons, since it failed to charge knowledge on
the part of accused which is an essential
element of the offense, defined in former
49-
1001 (now repealed), was fatally defective,
inasmuch as it failed to state facts sufficient
to constitute a public offense. State v. Parish,
79 Idaho 75, 310 P.2d 1082 (1957).
Defense of Mistake of Fact.
In prosecution for lewd conduct with minor
child under 16 where no evidence was intro-
duced to raise the defense of lack of knowl-
edge on defendant's part as to the victim's
age, the trial court did not err in refusing to
instruct the jury on the defense of mistake of
fact. State v. Herr, 97 Idaho 783, 554 P.2d 961
(1976), modified on other grounds, State v.
Tribe, 123 Idaho 721, 852 P.2d 87 (1993).
Driving Under the Influence.
Section 18-8006 merely requires a causal
connection between defendant's driving under
the influence and victim's injuries rather than
requiring gross negligence of defendant pur-
suant to this section. State v. Johnson, 126
Idaho 892, 894 P.2d 125 (1995).
Intent.
Those entrusted with the care and safe-
keeping of public funds are held to strict
accountability for the safeguarding of same
and in compliance with the statutes govern-
ing the same. To sustain a conviction in a
criminal case more must be proven in connec-
tion with it than will justify recovery in a civil
suit. Bonneville County v. Standard Accident
Ins. Co., 57 Idaho 657, 67 P.2d 904 (1937);
State v. Taylor, 59 Idaho 724, 87 P.2d 454
(1939).
On the question of intent the jury should be
instructed that the intent mentioned in this
section is not an intent to commit a crime but
is merely the intent to knowingly perform the
interdicted act, or by criminal negligence the
failure to perform the required act, herein the
act of receiving either actually or construc-
tively and the act of knowingly or through
criminal negligence not turning over the
money involved herein, or knowingly or
through criminal negligence failing to see
that the money, though only constructively
and not actually in appellant's possession,
was turned over to the state treasurer in
compliance with the statute. State v. Taylor,
59 Idaho 724, 87 P.2d 454 (1939).
Intent of defendant to do what jury found
he did was sufficiently established by the
commission of the acts and the surrounding
circumstances. State v. Johnson, 74 Idaho
269, 261 P.2d 638 (1953); State v.
Missenberger, 86 Idaho 321, 386 P. 2d 559
(1963).
The word "intent" was construed to mean
not an intent to commit a crime but was
merely the intent to knowingly perform the
failure to perform the required act. State v.
Parish, 79 Idaho 75, 310 P.2d 1082 (1957).
Wherever the motive, intention, or belief of
an accused is relevant to the issue, it is
competent for such person to testify directly
upon that point; and if there is any reason to
suspect his candor, the jury may make all the
allowance called for by his position and de-
meanor; question of what accused believed
and intended is one of the facts to be submit-
ted to and determined by the jury. State v.
Hopple, 83 Idaho 55, 357 P.2d 656 (1960).
In prosecution for larceny, the intent of
defendant to steal was in issue and defendant
should have been permitted to unfold and
explain his actions and to state motives which
he claimed prompted him. State v. Hopple, 83
Idaho 55, 357 P.2d 656 (1960).
The jury can infer from the facts surround-
ing the commission of the crime itself the
general criminal knowledge and intent requi-
site for the commission of the crime as
charged, the allegation of "knowingly" and
"intentionally" having reference to the gen-
eral criminal knowledge and intent and not to
the specific intent and knowledge necessary
to commit the crime of forgery. State v.
Booton, 85 Idaho 51, 375 P.2d 536 (1962).
Where defendant had acted openly in in-
forming his former employer that he would
not return various tools in his possession
which belonged to employer until a wage
dispute was settled, there was not sufficient
evidence from which the jury could have con-
cluded beyond reasonable doubt that defen-
dant had a fraudulent criminal intent; there-
fore, the trial court erred in refusing to grant
defendant's motion for judgment of acquittal.
State v. Gowin, 97 Idaho 766, 554 P.2d 944
(1976).
Where evidence showed that a rancher pur-
chased a mare and released it into his pasture
and that another mare which was similar in
size and appearance to his own apparently
strayed into the pasture, and where the
rancher sold the second mare when it became
barren, he could not be convicted for grand
larceny in the sale of such mare since the
circumstantial evidence adduced was consis-
tent with the rancher's assertion that sale
was a mistake; thus, there was necessarily
reasonable doubt as to the element of feloni-
ous intent. State v. Anderson, 102 Idaho 464,
631 P.2d 1223 (1981).
"injures or destroys," in
18-7001 indicates
intent to injure or destroy property; there is
no implied legislative intent to create crimi-
nal liability under
18-7001 where the in-
jury to property was an unintended conse-
quence of conduct that may have violated
some other statute. State v. Nastoff, 124
Idaho 667, 862 P.2d 1089 (Ct. App. 1993).
Formulation.
Where court instructed the jury that it
could consider the fact of intoxication in de-
termining whether defendant in passing
check possessed the intention to defraud, it
was not error for the court to refuse instruc-
tion of the defendant, that if the jury found
the defendant was so intoxicated that he
could not form an intent to defraud they
should acquit the defendant, since jury was
properly instructed as to effect of intoxication
on intent to defraud. State v. Baldwin, 69
Idaho 459, 208 P.2d 161 (1949).
Instructions.
Where question of criminal intent is raised
by facts, it is error for court to refuse a
requested instruction that if the jury believes
defendant had no felonious intent to steal
property at time he took it, he should be
acquitted, although he subsequently con-
ceived the intent to appropriate it. State v.
Hines, 5 Idaho 789, 51 P. 984 (1898); State v.
Riggs, 8 Idaho 630, 70 P. 947 (1902).
Where instructions considered as whole in-
clude element of intent to commit offense
defined in statute they will be deemed suffi-
cient. State v. Ashby, 40 Idaho 1, 230 P. 1013
(1924).
Refusal of trial court to instruct jury that
intent must be proved beyond a reasonable
doubt by competent evidence was not error
where court in other instructions quoted this
section and
18-115. State v. Robinson, 71
Idaho 290, 230 P.2d 693 (1951).
An instruction on criminal intent was not
necessary in proceeding where defendant was
charged with offense of involuntary man-
slaughter. State v. Scott, 72 Idaho 202, 239
P.2d 258 (1951).
Instruction covering intent as set forth in
18-115 was not erroneous merely because

court included statement that "every person
of sound mind is presumed to intend the
natural and probable consequences of his
act." State v. Rutten, 73 Idaho 25, 245 P. 2d
778 (1952).
It was not error on the part of the court to
give an instruction based upon 18-115, it
being the usual and customary instruction
upon intent and the proof thereof. State v.
Gummerson, 79 Idaho 30, 310 P.2d 362
(1957).
Rape.
Where, in a prosecution for assault with
intent to commit rape, defendant defended on
the ground that by reason of drunkenness he
was unable to entertain the required specific
intent to commit an act of sexual intercourse
with prosecutrix, the refusal of an instruction
requested by defendant was not error where
instructions given by the court adequately
covered the requested instruction. State v.
Gailey, 69 Idaho 146, 204 P.2d 254 (1949).
Jury Instructions.
Ajury need not be instructed in the esoteric
distinctions between general and specific in-
tent, and where instructions to the jury re-
peatedly emphasized that before defendant
could be convicted he must have acted with
the intent to kill victim, the jury instructions,
when read and considered as a whole, ade-
quately instructed the jury concerning the
elements of murder in the first and second
degree and manslaughter, and the distinc-
tions between each including intent. State v.
Enno, 119 Idaho 392, 807 P2d 610 (1991).
Because a jury instruction defined assault
and battery pursuant to
18-901 and 18-
903 and identified the specific mental states
required for commission of the crimes, there
was no need for a further instruction based on
18-114 to inform the jury of the required

mental elements. State v. Hoffman, 137 Idaho
897, 55 P3d 890 (Ct. App. 2002).
Liability of Public Officials.
A specific intent such as is necessary in
embezzlement, larceny, making false report
with intent to deceive, etc., is not an ingredi-
ent of an offense under this section requiring
officials to account for public moneys. State v.
Taylor, 59 Idaho 724, 87 P2d 454 (1939).
Liquor Offenses.
In order to sustain charge of unlawful pos-
session of intoxicating liquor, where such pos-
session is merely constructive, it must be
shown that liquor was brought upon premises
of accused or came into his actual or construc-
tive possession with his knowledge or con-
sent. In re Baugh, 30 Idaho 387, 164 P. 529
(1917); State v. Johnson, 39 Idaho 440, 227 P.
1052 (1924).
Intentional transportation of intoxicating
liquor, without legal authority, is unlawful
and good intentions or good faith of trans-
porter is immaterial. State v. Sterrett, 35
Idaho 580, 207 P. 1071 (1922).
Mental Condition.
This section and
18-115 and 18-207 are
not in conflict, since this section and
18-115
do not mandate the existence of a defense
based upon insanity, but rather,
18-207
reduces the question of mental condition from
the status of a formal defense to that of an
evidentiary question. Section 18-207 contin-
ues to recognize the basic common law
premise that only responsible defendants
may be convicted. State v. Beam, 109 Idaho
616, 710 P.2d 526 (1985), cert, denied, 476
U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704
(1986).
This section prescribes a general require-
ment for the mental element of a crime; but
the legislature may vary this requirement in
defining a particular offense, subject to con-
stitutional limits described below. The legis-
lature has varied the requirement in
18-
4006(3)(c), and the two sections do not
conflict. Haxforth v. State, 117 Idaho 189, 786
P.2d 580 (Ct. App. 1990).
An individual must be found competent to
stand trial. In addition, those individuals who
are incapable of forming the necessary intent
needed for the crime are protected by the
mens rea requirements of this section and
18-115 and 18-207. Finally, those "pro-

foundly or severely retarded" individuals who
do not fall under the first two protections and
are convicted and who are "wholly lacking
capacity to appreciate the wrongfulness of
their actions" are protected by the sentencing
provisions of
19-2523. State v. Card, 121
Idaho 425, 825 P.2d 1081 (1991), cert, denied,
506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241
(1992).
Negligence.
Instruction defining negligence in language
of the statute held not erroneous. State v.
Brace, 49 Idaho 580, 290 P. 722 (1930), over-
ruled in part, State v. McMahan, 57 Idaho
240, 65 P.2d 156 (1937).
The term "criminal negligence", as used in
this section, means gross negligence, such as
amounts to reckless disregard of conse-
quences and the rights of others. State v.
McMahan, 57 Idaho 240, 65 P2d 156 (1937).
The legislature did not intend every act
done negligently, resulting in what would
have been a crime if done intentionally, to be
criminal because of the negligence but in-
tended only to constitute such acts criminal in
the event such negligence was such as mani-
fested a reckless disregard of consequences
and of the rights of others. State v. McMahan,
57 Idaho 240, 65 P.2d 156 (1937).
Statute defining involuntary manslaughter
as an unlawful killing without malice, in the
commission of a lawful act which might pro-
duce death, in an unlawful manner (
18-
4006), must be read and construed with this
section, requiring a union or joint operation of
act and intent or criminal negligence. State v.
McMahan, 57 Idaho 240, 65 P2d 156 (1937);
(1940).
Criminal negligence may result from an
omission to perform a duty, the commission of
an act in violation of a duty or by a combina-
tion of both. State v. Patterson, 60 Idaho 67,
88 P.2d 493 (1939).
The term criminal negligence as used in
this section does not mean merely the failure
to exercise ordinary care or that degree of care
which an ordinarily prudent person would
exercise. It means gross negligence, such as
amounts to a reckless disregard of conse-
quences and of the rights of others. State v.
Hintz, 61 Idaho 411, 102 P.2d 639 (1940).
Where truck driven by accused stopped
because of engine trouble and accused was
unsuccessful in his efforts to move the truck
from the highway, accused was not guilty of
"criminal negligence", which would justify a
conviction for involuntary manslaughter,
when an automobile crashed into the truck,
resulting in the death of an occupant of the
automobile. State v. Hintz, 61 Idaho 411, 102
P.2d 639 (1940).
Where a charge in prosecution for involun-
tary manslaughter was given as to man-
slaughter in the perpetration of an unlawful
act, namely, the violation of four traffic stat-
utes, reckless driving, driving while intoxi-
cated, at an excessive speed, and on the wrong
side of road, the failure to charge on criminal
negligence relative to manslaughter in the
commission of a lawful act without due cau-
tion and circumspection was not prejudicial
error. State v. Salhus, 68 Idaho 75, 189 P. 2d
372 (1948).
Vehicular involuntary manslaughter under
18-4006 is not subject to the restrictive

interpretation of "criminal negligence" in this
section, which has been interpreted to mean
gross negligence; the legislature was free to
create a separate, lesser category of crime for
vehicular homicides lacking gross negligence.
State v. Curtis, 106 Idaho 483, 680 P. 2d 1383
(Ct. App. 1984).
Where a jury specifically found that the
defendant was grossly negligent in causing
the death of a person in an automobile acci-
dent and the jury convicted the defendant of
involuntary manslaughter, the defendant
failed to show how his right to due process
was infringed by his claim that
18-4006
was void for vagueness insofar as it pro-
scribed conduct without gross negligence,
since the defendant was not charged with, nor
was he convicted of, conduct lacking gross
negligence. State v. Curtis, 106 Idaho 483, 680
P.2d 1383 (Ct. App. 1984).
18-115. Manifestation of intent.
Intent or intention is manifested

by the commission of the acts and surrounding circumstances connected
with the offense. [I.C.,

18-115, as added by 1972, ch.
336, 1, p. 844; am.
1994, ch. 131, 1, p. 296.]
comprised Cr. & P. 1864, 2, 3; R.S., R.C., &
C.L., 6315; C.S., 8088; I.C.A.,
17-115;
1970, ch. 31, 11, p. 61, was repealed by S.L.
1971, ch. 143, 5, effective January 1, 1972
and the present section added by S.L. 1972,
ch. 336, 1 in the same words as the section
Section 2 of S.L. 1994, ch. 131 is compiled
as
18-204.
Cited in: State v. McDougall, 113 Idaho
900, 749 P.2d 1025 (Ct. App. 1988); State v.
Odiaga, 125 Idaho 384, 871 P.2d 801, cert,
denied, 513 U.S. 952, 115 S. Ct. 369, 130 L.
Ed. 2d 321 (1994).
Analysis
Burglary.
Evidence.
Instructions on intent.
Intent.
Generally.
*
Jury question.
Rape.
Mental condition.
Burglary.
Having in mind the statutes pertaining to
the offense under consideration and to proof
of intent and those capable of committing
crimes, it becomes clear that burglary is a
crime malum in se, as differentiated from a
crime malum prohibitum. State v. Cronk, 78
Idaho 585, 307 P.2d 1113 (1957).
Evidence.
Evidence justified conviction of defendant,
age 15, of acts of lewd and lascivious conduct
on body of 13 year old girl, where the record
showed that the defendant seized girl, choked
her into unconsciousness, removed her cloth-
ing, and took indecent liberties with her, as
against his contention that he was only moti-
vated by curiosity to see her in the nude.
State v. Iverson, 77 Idaho 103, 289 P.2d 603
(1955).
cluded beyond a reasonable doubt that defen-
dant had a fraudulent criminal intent; and,
therefore, the trial court erred in refusing to
grant defendant's motion for judgment of ac-
quittal. State v. Gowin, 97 Idaho 766, 554 P2d
944 (1976).
Where prosecutrix, age thirteen, met defen-
dant, age thirty-one, at a movie, accompanied
him to his home and later traveled with him
to Montana, the evidence was sufficient to
allow the jury to find the intent to keep or
conceal prosecutrix from her parents and to
sustain defendant's conviction for kidnapping
in the second degree. State v. Herr, 97 Idaho
783, 554 P2d 961 (1976), modified on other
grounds, State v. Tribe, 123 Idaho 721, 852
P.2d 87 (1993).
Direct evidence of intent is not required but
can be shown by circumstantial evidence.
Defendant's intent could be proved by his acts
and conduct, and where district court found
that defendant pocketed the store's cash with
the intent to deprive the store of money, there
was substantial evidence to support a finding
of intent. State v. Gums, 126 Idaho 930, 894
P.2d 163 (Ct. App. 1995).
Intent may be inferred from the defendant's
conduct or from circumstantial evidence.
State v. Reyes,
Idaho , 80 P.3d 1103 (Ct.

App. 2003).
Where defendant picked his wife up and
threw her to the floor, causing injury to her
arm, the circumstantial evidence was suffi-
cient to charge him with the crime of felony
domestic battery; his intent to willfully inflict
a traumatic injury to his wife could be in-
ferred from his conduct. State v. Reyes,

Idaho , 80 P.3d 1103 (Ct. App. 2003).
Instructions on Intent.
Refusal of trial court to instruct jury that
intent must be proved beyond a reasonable
doubt by competent evidence was not error
where court in other instructions quoted
18-114. State v. Robinson, 71 Idaho 290,

230 P.2d 693 (1951).
Instruction covering intent, as set forth in
18-114, was not erroneous merely because

court included statement that "every person
of sound mind is presumed to intend the
natural and probable consequences of his
act." State v. Rutten, 73 Idaho 25, 245 P.2d
778 (1952).
In a prosecution for burglary in the first
degree, it was error for the court to refuse to
give the following requested instruction: "An
act committed or an omission made under an
ignorance or mistake of fact which disproves
any criminal intent is not a crime." State v.
Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).
It was not error on the part of the court to
give an instruction based upon 18-114, it
being the usual and customary instruction
upon intent and the proof thereof. State v.
(1957).
tent, and where instructions to the jury re-
peatedly emphasized that before defendant
Enno, 119 Idaho 392, 807 P.2d 610 (1991).
Intent.
Generally.
Intent of defendant to do what jury found
he did is sufficiently established by the com-
mission of the acts and the surrounding cir-
cumstances. State v. Johnson, 74 Idaho 269,
261 P.2d 638 (1953).
Jury Question.
The jury can infer, from the facts surround-
ing the commission of the crime itself, the
charged: the allegation of "knowingly" and
Booton, 85 Idaho 51, 375 P.2d 536 (1962).
In prosecution for lewd conduct with a
minor, trial court did not err in denying de-
fendant's motion for acquittal at the end of
the state's evidence since, although state's
witnesses testified that defendant was intox-
icated on the day in question, the question of
whether his intoxication so affected him that
he could not have had the necessary intent to
commit the offense was for the jury. State v.
Gratiot, 104 Idaho 782, 663 P2d 1084 (1983).
Rape.
Although the jury found that defendant did
not commit rape, there was substantial evi-
dence from which the jury could have found
that he intended to commit rape. State v.
Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App.
1991).
Mental Condition.
This section and

18-114 and 18-207 are
not in conflict, since
18-114 and this section
do not mandate the existence of a defense
based upon insanity, but rather,
18-207
reduces the question of mental condition from
the status of a formal defense to that of an
evidentiary question. Section 18-207 contin-
ues to recognize the basic common law
premise that only responsible defendants
may be convicted. State v. Beam, 109 Idaho
616, 710 P.2d 526 (1985), cert, denied, 476
U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704
(1986).

provisions of
19-2523. State v. Card, 121
506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241
(1992).
18-116. Intoxication no excuse for crime.
A person who is in an
intoxicated condition is criminally responsible for his conduct and an
intoxicated condition is not a defense to any offense and may not be taken
into consideration in determining the existence of a mental state which is an
element of the offense unless the defendant proves that he did not know that
it was an intoxicating substance when he consumed, smoked, sniffed,
injected or otherwise ingested the substance causing the condition. [I.C.,
18-116, as added by 1972, ch. 336, 1, p. 844; am. 1997, ch.

53,
l,p.91.]
C.L., 6316; C.S., 8089; I.C.A.,
17-116,
section was added by S.L. 1972, ch. 336, 1
in the same words as the section prior to its
repeal.
in
39-310.
Cited in: State v. Cornwall, 95 Idaho 680,
518 P.2d 863 (1974); State v. Wolfe, 107 Idaho
676, 691 P.2d 1291 (Ct. App. 1984); State v.
Puga, 111 Idaho 874, 728 P.2d 398 (Ct. App.
1986); Wolfe v. State, 113 Idaho 337, 743 P.2d
990 (Ct. App. 1987).
Analysis
Constitutionality.
Degree of intoxication.
Intent.
Generally.
Issue for jury.
Instructions.
Specific intent.
Instructions to jury.
Mitigating circumstances.
Murder.
State of mind.
Constitutionality.
This section does not violate the due pro-
cess clause of the Fourteenth Amendment of
the United States Constitution. State v. Ran-
som, 137 Idaho 560, 50 P.3d 1055 (Ct. App.
2002).
Degree of Intoxication.
In a murder prosecution it appeared that
the defendant must not have been so far
intoxicated as would have precluded him from
knowing the difference between right and
wrong and being able to complete a social
pattern. State v. Snowden, 79 Idaho 266, 313
P.2d 706 (1957).
Where the defendant presented the defense
that he was incapable of forming the neces-
sary intent, an element of the crime of bur-
glary, it was a question for the trier of fact to
determine whether defendant's intoxication
or voluntary use of drugs reached that level.
State v. Roles, 100 Idaho 12, 592 P2d 68
(1979).
Intent.
Generally.
Voluntary consumption of beer with any
possible intoxication before shooting by the
defendant did not make his act less criminal
but may have been considered negating a
particular purpose, motive, or intent. State v.
Gomez, 94 Idaho 323, 487 P2d 686 (1971).
Issue for Jury.

Question as to whether alleged intoxication
affected the defendant so that he could not
have the necessary intent to commit offense
was for the jury. State v. Johnson, 74 Idaho
269, 261 P.2d 638 (1953).
Gratiot, 104 Idaho 782, 663 P.2d 1084 (1983).
This section states that the issue of intoxi-
cation is for the determination of the jury, not
for the court in a pretrial ruling, and only the
jury could determine what weight to give the
allegation that defendant was drunk on the
morning of the incident involving the kidnap-
ping and assault of a nine-year-old girl with
the intent of committing a lewd and lascivious
act. State v. Soto, 121 Idaho 53, 822 P.2d 572
(Ct. App. 1991).
Whether or not the defendant was too in-
toxicated to have a deliberate and premedi-
tated intent to kill was for the jury to decide
on the trial of the case, but could not preclude
the binding of defendant over to the district
court on preliminary hearing. Carey v. State,
91 Idaho 706, 429 P.2d 836 (1967).
Instructions.
Where, in a prosecution for assault with
intent to commit rape, defendant defended on
the ground that by reason of drunkenness he
was unable to entertain the required specific
intent to commit an act of sexual intercourse
with prosecutrix, the refusal of an instruction
requested by defendant was not error where
instructions given by the court adequately
covered the requested instruction. State v.
Gailey, 69 Idaho 146, 204 P2d 254 (1949).
Idaho 459, 208 P.2d 161 (1949).
Where court instructed the jury that the
intent to defraud is a necessary element of the
crime of forgery, and that existence of that
intent must be established by the state be-
yond a reasonable doubt, it was not error by
the court to refuse instruction of the defen-
dant to the effect that in every crime there
must be a union of act and intent, since jury
had been sufficiently instructed on element of
intent in forgery. State v. Baldwin, 69 Idaho
459, 208 P.2d 161 (1949).
Instruction to the effect that in every crime,
there must be a union of act and intent, or
criminal negligence, is in the language of the
statute, and generally should be given. State
v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949).
Refusal to give requested instructions of
defendant which emphasized defense that by
reason of intoxication he was incapable of
forming the specific intent to commit burglary
for which he was charged was not error where
court's instruction was substantially in the
language of the former section. State v.
Rutten, 73 Idaho 25, 245 P.2d 778 (1952).
Rape, performed by overcoming the resis-
tance of the victim by force or violence, is not
a specific intent crime, thus defendant was
not entitled to jury instruction that voluntary
intoxication may negate an element of specific
intent. State v. Lopez, 126 Idaho 831, 892 P.2d
898 (Ct. App. 1995).
Specific Intent.
Where the evidence at trial demonstrated
that defendant had the ability to carry on a
conversation with a police officer, to make a
telephone call, to create an excuse for return-
ing to the wrecker, and to drive the truck for
some 25 miles at an extreme speed, a reason-
able juror could find that defendant was not
so intoxicated that he was unable to form the
specific intent necessary to commit the
crimes. State v. Tucker, 123 Idaho 374, 848
P.2d 432 (Ct. App. 1993).
Instructions to Jury.
In prosecution for assault with intent to
commit rape, court did not err in failing to
give instruction that jury might consider in-
toxication in determining intent, where such
instruction was not requested, although such
instruction if given would have been proper.
State v. Smailes, 51 Idaho 321, 5 P.2d 540
(1931).
Where it was defendant's defense that he
was not accountable for his acts by reason of
insanity produced by long continuous use of
intoxicants, an instruction that settled insan-
ity produced by long continued intoxication
had the same effect as to legal responsibility
for one's conduct as insanity produced by any
other cause could not result in any prejudice
especially where other instructions properly
defined insanity as a defense to crime. State v.
Clokey, 83 Idaho 322, 364 P.2d 159 (1961).
Where evidence introduced by defendant
tended to show that he has used intoxicating
liquor over a considerable period of time and
also used it to some extent within a short time
before the offense was committed, an instruc-
tion was proper to point out a distinction
between a state of ordinary drunkenness and
alcoholic insanity. State v. Clokey, 83 Idaho
322, 364 P.2d 159 (1961).
Where, in prosecution for second degree
murder and aggravated battery, the jury in-
structions required the jury to consider
whether the defendant had become so intoxi-
cated at the time of the shootings that he
could not act with malice aforethought, the
trial judge did not err in refusing to give
further instructions concerning the effect of
intoxication. State v. Hall, 111 Idaho 827, 727
P.2d 1255 (Ct. App. 1986).
Although the trial court gave an instruction
essentially stating the content of this section,
and defendant argued that the lengthier in-
structions approved in State v. Hall, 111
Idaho 827, 727 P.2d 1255 (Ct. App. 1986),
should have been given, the intoxication in-
struction given adequately stated the law.
State v. Enno, 119 Idaho 392, 807 P.2d 610
(1991).
Mitigating Circumstances.
While the ingestion of drugs or alcohol by a
defendant prior to the murder is not sufficient
in itself to raise a defense to a first-degree
murder charge, any arguable impact of such
substance abuse is a proper consideration in
mitigation of punishment upon sentencing.
State v. Osborn, 102 Idaho 405, 631 P.2d 187
(1981).
Murder.
Voluntary intoxication is no excuse for the
commission of a felonious homicide, but it
may be considered in determining existence
or nonexistence of malice aforethought, which
distinguishes "murder" from "voluntary man-
slaughter." State v. Sprouse, 63 Idaho 166, 118
P.2d 378 (1941).
Evidence, that accused and deceased were
personal friends, but drank intoxicating li-
quors in sufficient quantities to cause them to
fight over the ownership of a part of a bottle of
beer, so that the accused in the sudden quar-
rel and heat of passion, shot and killed the
deceased, was sufficient to sustain a convic-
tion for manslaughter. State v. Sprouse, 63
Idaho 166, 118 P.2d 378 (1941).
In murder prosecution, voluntary intoxica-
tion affects intent but does not render the
homicide excusable. State v. Miller, 65 Idaho
756, 154 P.2d 147 (1944).
State of Mind.
An act is not made less criminal because an
individual is intoxicated when committing the
act. State v. Dragoman, 130 Idaho 537, 944
P.2d 134 (Ct. App. 1997).
Because intent is an element of the crime of
kidnapping in the second degree, the jury
may take into consideration the fact that the
accused was intoxicated at the time in deter-
mining the intent with which the accused
committed the act. State v. Dragoman, 130
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
In a prosecution of defendant for voluntary
manslaughter, the trial court did not abuse its
23 PERSONS LIABLE, PRINCIPALS AND ACCESSORIES 18-201
discretion in determining that defendant was
not entitled to expert testimony to show the
effect of alcohol on defendant's mental state at
the time of the offense. State v. Ransom, 137
Idaho 560, 50 P.3d 1055 (Ct. App. 2002).
Collateral References. 21 Am. Jur. 2d,
Criminal Law,
54, 55, 168-170.
Modern status of the rules as to voluntary
intoxication as defense to criminal charge. 8
A.L.R.3d 1236.
When intoxication deemed involuntary so
as to constitute a defense to criminal charge.
73 A.L.R.3d 195.
Adequacy of defense counsel's representa-
tion of criminal client-conduct occurring at
time of trial regarding issues of diminished
capacity intoxication, and unconsciousness.
78 A.L.R.oth 197.
tion of criminal client-pretrial conduct or con-
duct at unspecified time regarding issues of
diminished capacity, intoxication, and uncon-
sciousness. 79 A.L.R.5th 419.
CHAPTER 2
PERSONS LIABLE, PRINCIPALS AND ACCESSORIES
SECTION.
18-201.
18-202.
18-203.
18-204.
18-205.
18-206.
18-207.
18-208,
18-210.
Persons capable of committing
crimes.
Territorial jurisdiction over accused
persons liable to punishment.
Classification of parties.
Principals defined.
Accessories defined.
Punishment of accessories.
Mental condition not a defense

Provision for treatment dur-
ing incarceration
Reception
of evidence

Notice and ap-
pointment of expert examin-
ers.
18-209. [Repealed.]
Lack of capacity to understand pro-
ceedings
Delay of trial.
SECTION.
18-211. Examination of defendant

Ap-
pointment of psychiatrists and
licensed psychologists
Hos-
pitalization
Report.
18-212. Determination of fitness of defendant
to proceed

Suspension of
proceeding and commitment
of defendant

Postcommit-
ment hearing.
18-213, 18-214. [Repealed.]
18-215. Admissibility of statements by exam-
ined person.
18-216. Criminal trial of juveniles barred
Exceptions

Jurisdictional
hearing

Transfer of defen-
dant to district court.
18-201. Persons capable of committing crimes.

All persons are
capable of committing crimes, except those belonging to the following
classes:
1. Persons who committed the act or made the omission charged, under
an ignorance or mistake of fact which disproves any criminal intent.
2. Persons who committed the act charged without being conscious
thereof.
3. Persons who committed the act or made the omission charged, through
misfortune or by accident, when it appears that there was not evil design,
intention or culpable negligence.
4. Persons (unless the crime be punishable with death) who committed
the act or made the omission charged, under threats or menaces sufficient to
show that they had reasonable cause to and did believe their lives would be
endangered if they refused. [I.C.,
18-201, as added by 1972, ch. 336, 1,
p. 844.]
comprised Cr. & P. 1864, 4, 6, 8, 9; R.S.,
R.C., & C.L., 6330; C.S., 8090; I.C.A.,
17-201; 1970, ch. 31, 12, p. 61, was re-
pealed by S.L. 1971, ch. 143, 5, effective
January 1, 1972, and substituted therefor
was a section comprising I.C., 18-201, as
added by 1971, ch. 143, 1. However, the
latter section was repealed by S.L. 1972, ch.
109, 1, effective April 1, 1972 and the

The words in parentheses so appeared in
the law as enacted.
Cited in: State v. Carpenter, 67 Idaho 277,
176 P.2d 919 (1947); State v. Nelson, 119
Idaho 444, 807 P.2d 1282 (Ct. App. 1991);
State v. Tiffany,
Idaho ,
P.3d , 2004
Ida. LEXIS 44 (Mar. 25, 2004).
Analysis
Age.
Burglary.
Culpable negligence.
Excusable homicide.
Ignorance of fact.
Insanity.
Instructions.
Mistake of fact.
Threat or menace.
Age.
Although the mental age of 17-year-old de-
fendant, charged with murder, and who was
of low-normal intelligence, was under 14, the
former section was not applicable to him,
since the concept of "mental age" is unrelated
to chronological age. State v. Dillon, 93 Idaho
698, 471 P.2d 553 (1970), cert, denied, 401
U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223
(1971).
"Mental age" is not to be considered as
equivalent to "age." State v. Dillon, 93 Idaho
698, 471 P.2d 553 (1970), cert, denied, 401
U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223
(1971).
Burglary.
It was reversible error for the trial court to
fail to give an instruction on intent where the
crime involved was that of burglary which is a
crime malum in se. State v. Cronk, 78 Idaho
585, 307 P.2d 1113 (1957).
Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).
State v. Roles, 100 Idaho 12, 592 P2d 68
(1979).
Culpable Negligence.
The reference to "culpable negligence" in
this section is simply a reiteration of the
excusable homicide standard under
18-
4012. It does not preclude imposition of crim-
inal responsibility for negligence under
18-
4006. Haxforth v. State, 117 Idaho 189, 786
P.2d 580 (Ct. App. 1990).
Excusable Homicide.
The definition of excusable homicide in
18-4012 is not inconsistent with involun-

tary manslaughter as defined in
18-4006.
State v. Long, 91 Idaho 436, 423 P.2d 858
(1967).
Ignorance of Fact.
To be guilty of resisting officer in the dis-
charge of his duty, the person making the
resistance must have had knowledge that
person resisted was an officer and that he was
engaged in the discharge of, or attempt to
discharge, an official duty. State v. Winter, 24
Idaho 749, 135 P. 739 (1913).
Insanity.
Where defense of insanity is raised in pros-
ecution for murder, the burden is on defen-
dant to create a reasonable doubt as to his
responsibility at time of homicide. State v.
Shuff, 9 Idaho 115, 72 P. 664 (1903).
Instruction that to establish the defense it
must be "clearly proven" that accused was
insane is erroneous. State v. Wetter, 11 Idaho
433, 83 P. 341 (1905).
In a murder trial, an instruction that the
law presumes mental capacity and responsi-
bility, unless the fact is proved otherwise by a
preponderance of evidence, was erroneous, as
defendant has only the burden of creating a
reasonable doubt as to his mental capacity at
the time of the commission of the offense.
State v. Calkins, 63 Idaho 314, 120 P.2d 253
(1941).
In a murder trial, an erroneous instruction
placing on the defendant the burden of prov-
ing insanity by a preponderance of the evi-
dence was prejudicial when defendant's evi-
dence might have been sufficient to raise a
reasonable doubt as to his sanity, but was
insufficient to prove insanity, by a preponder-
ance of the evidence, and other instructions
correctly stating the law did not render this
erroneous instruction harmless. State v.
Calkins, 63 Idaho 314, 120 P.2d 253 (1941).
Refusal of defendant's requested instruc-
tion concerning criminal responsibility of one
committing offense without being conscious
thereof was not error, in prosecution for ho-
micide, where court not only instructed the
jury in the language of the statute but fully
instructed regarding standard of accountabil-
ity and that nothing be presumed or taken by
implication against the defendant. State v.
Gish, 87 Idaho 341, 393 P.2d 342 (1964).
Instructions.
In a murder prosecution where defendant
alleged that he had been coerced into aiding
the real murderer in disposing of the victim's
remains, an instruction that he would have
been a principal, although the word principal
was not used, if he was present at and partic-
ipated in assault on victim was not error
where instruction was given that coercion
could relieve defendant of criminal responsi-
bility. State v. Dillon, 93 Idaho 698, 471 P. 2d
553 (1970), cert, denied, 401 U.S. 942, 91 S.
Ct. 947, 28 L. Ed. 2d 223 (1971).
Mistake of Fact.
minor child under 16 where no evidence was
introduced to raise the defense of lack of
knowledge on defendant's part as to the vic-
tim's age, the trial court did not err in refus-
ing to instruct the jury on the defense of
mistake of fact. State v. Herr, 97 Idaho 783,
554 P.2d 961 (1976), modified on other
R2d 87 (1993).
A reasonable mistake of fact will be a de-
fense only for those persons charged with an
offense that has criminal intent as an ingre-
dient of the crime. State v. Stiffler, 114 Idaho
935, 763 R2d 308 (Ct. App. 1988), aff'd, 117
Idaho 405, 788 P.2d 220 (1990).
The legislature, in codifying the crime of
sexual battery of a minor child 16 or 17 years
of age, 18-1508A, intended to incorporate
the immemorial tradition of the common law
that a mistake of fact as to the complainant's
age is no defense. State v. Oar, 129 Idaho 337,
924 P.2d 599 (1996).
Threat or Menace.
A"threat" is a declaration of an intention to
injure another by the commission of an un-
lawful act; a "menace" is synonymous with
"threat." State v. Eastman, 122 Idaho 87, 831
P.2d 555 (1992).
Where defendant was arrested for DUI and
driving without privileges where she at-
tempted to move a vehicle involved in an
accident, and in which she had been a passen-
ger, out of the intersection, there was no
evidence to support an instruction on "threats
or menaces"; an assertion of justification or
evidence of justification does not support a
requested instruction of "threat or menace."
State v. Eastman, 122 Idaho 87, 831 P.2d 555
(1992).
Where a defendant picked up a package at
the airport that the police knew contained
methamphetamine, action of the police officer
who did not tell defendant that he was a
police officer, in felling defendant that he
knew what was inside the package and would
call police unless she gave him a "pinch" of it,
such substance was not delivered under du-
ress for defendant failed to show how her life
would be endangered if she had refused to
deliver the illegal substance; therefore, trial
judge did not err in denying defendant's mo-
tion to dismiss the delivery charge. State v.
Kopsa, 126 Idaho 512, 887 P.2d 57 (Ct. App.
1994).
Because defendant convicted of delivery of
controlled substance did not show he sold
cocaine under any type of threat, nor that he
reasonably believed his life would be endan-
gered if he refused to participate in the trans-
action, trial court's denial of requested in-
struction on the affirmative defense of duress
was affirmed. State v. Canelo, 129 Idaho 386,
924 P.2d 1230 (Ct. App. 1996).
The trial evidence did not support a threats
and menaces instruction to the jury where the
only evidence of threats was testimony that
the accomplice warned defendant, both before
and after the murder, that if defendant told
anyone about the incident, he would suffer
bodily injury. These were threats to dissuade
defendant from disclosure of the crimes, but
there was no evidence of any threat to induce
defendant's participation in the offenses.
State v. Eby, 136 Idaho 534, 37 P.3d 625 (Ct.
App. 2001).
Collateral References. 22 C.J.S., Crimi-
nal Law,

96-113.
Participation in crime without criminal in-
tent for purpose of apprehending real crimi-
nal. 120 A.L.R. 1506.
18-202. Territorial jurisdiction over accused persons liable to
punishment.
The following persons are liable to punishment under the

laws of this state:
1. All persons who commit, in whole or in part, any crime within this
state.
2. All who commit larceny or robbery out of this state, and bring to, or are
found with the property stolen, in this state.
3. All who, being out of this state, cause or aid, advise or encourage,
another person to commit a crime within this state and are afterwards found
therein. [I.C.,

18-202, as added by 1972, ch. 336, 1, p. 844.]
prising I.C.,
18-202, as added by 1971, ch.
April 1, 1972 and the present section was
added by S.L. 1972, ch. 336, 1 in the same
words as the section prior to its repeal by S.L.
1971, ch. 143, 5.
Cited in: In re Moyer, 12 Idaho 250, 85 P.
897, 12 L.R.A. (n.s.) 227, 118 Am. St. R. 214
(1906).
Analysis
Child custody interference.
Fraudulent draft honored outside of state.
Prosecutable act.
Purpose of section.
Result of crime.
Subject matter jurisdiction.
Child Custody Interference.
Where the second and third elements of the
crime of child custody interference, the keep-
ing or withholding and the deprivation of the
custodial rights, occurred in Idaho, under this
section and
19-301 and 19-302, the state
hadjurisdiction over the crime. State v. Doyle,
121 Idaho 911, 828 P.2d 1316 (1992).
Because the withholding of the child from
the custodial parent in violation of a court
order is no different than the withholding of
support from a family in violation of a court
order, the keeping or withholding occurs, for
purposes ofjurisdiction, where the defendant
is required to return the child to the custodial
parent. State v. Doyle, 121 Idaho 911, 828 P.2d
1316 (1992).
Fraudulent Draft Honored Outside of
State.
Where defendant, as agent for foreign cor-
poration, executed a fictitious contract of sale
of wool, and on the basis of such contract,
defendant's sight drafts were honored by the
corporation, defendant was properly tried for
obtaining money under false pretenses in the
county where the sight draft was drawn and
paid, and from which such contract was sent.
State v. Dunn, 60 Idaho 568, 94 P.2d 779
(1939).
Prosecutable Act.
Although the term "prosecutable act" con-
tained in
19-301 has not been defined by
the legislature or by the Idaho Supreme
Court, it would appear that, to be consistent
with this section, "prosecutable act" means
any essential element of the crime. State v.
Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).
Purpose of Section.
By this section legislature intended to pun-
ish any person who should commit any por-
tion of crime within state to same extent and
manner as though all acts which constitute
crime had been committed in state. State v.
Sheehan, 33 Idaho 553, 196 P. 532 (1921).
Result of Crime.
Given the language in this section and
19-301 requiring that the crime must occur

"in whole or in part" within the state, or that
some "prosecutable act" must have been com-
mitted within the state, the language in
19-
302 must be interpreted to mean that the
result of the crime must be an essential ele-
ment of the offense before the result can be
construed to have been "consummated"
within Idaho. State v. Doyle, 121 Idaho 911,
828 P.2d 1316 (1992).
Subject Matter Jurisdiction.
An Idaho court will have subject matter
jurisdiction over a crime if any essential ele-
ment of the crime, including the result, occurs
within Idaho. State v. Doyle, 121 Idaho 911,
828 P2d 1316 (1992).
18-203. Classification of parties.
The parties to crimes are classi-

fied as:
1. Principals; and
2. Accessories. [I.C.,
18-203, as added by 1972, ch.
336, 1, p. 844.]
143, 5.
18-204. Principals defined.

All persons concerned in the commis-
sion of a crime, whether it be felony or misdemeanor, and whether they
directly commit the act constituting the offense or aid and abet in its
commission, or, not being present, have advised and encouraged its com-
mission, or who, by fraud, contrivance, or force, occasion the intoxication of
another for the purpose of causing him to commit any crime, or who, by
threats, menaces, command or coercion, compel another to commit any
crime, are principals in any crime so committed. [I.C.,

18-204, as added by
1972, ch. 336, 1,
p. 844; am. 1994, ch. 131, 2, p. 296.]
comprised Cr. & P. 1864, 5, 7, 10; R.S.,
R.C., & C.L., 6342; C.S., 8093; I.C.A.,
17-204, was repealed by S.L. 1971, ch. 143,

5, effective January 1, 1972, and substi-
tuted therefor was a section comprising I.C.,
18-204, as added by 1971, ch. 143, 1.
as 18-115.
Cross ref. Distinction between accessories
before fact and principals abolished,
19-
1430.
Cited in: State v. Curtis, 30 Idaho 537, 165
P. 999 (1917); State v. Peters, 43 Idaho 564,
253 P. 842 (1927); State v. Wilson, 51 Idaho
659, 9 P.2d 497 (1932); State v. Farnsworth,
51 Idaho 768, 10 P.2d 295 (1932); State v.
Sensenig, 95 Idaho 218, 506 P.2d 115 (1973);
State v. Thompson, 101 Idaho 430, 614 P.2d
970 (1980); State v. Pierce, 107 Idaho 96, 685
P.2d 837 (Ct. App. 1984); State v. Hoffman,
116 Idaho 480, 776 P.2d 1199 (Ct. App. 1989);
State v. Weinmann, 122 Idaho 631, 836 P. 2d
1092 (Ct. App. 1992); State v. Medina, 128
Idaho 19, 909 P2d 637 (Ct. App. 1996); State
v. Page, 135 Idaho 214, 16 P.3d 890 (2000);
State v. Butcher, 137 Idaho 125, 44 P.3d 1180
(Ct. App. 2002).
Analysis
Abolition of distinction.
Accomplice.
Aid and abet.
Application.
City ordinances.
Continuous course of conduct.
Evidence.
Instructions.
Prosecutorial misconduct.
Venue.
Abolition of Distinction.
Evidence sustained verdict of guilty on
charge of burglary, if evidence showed defen-
dant was connected with burglary, as it was
not necessary for state to prove that defen-
dant himself entered building, since distinc-
tion between accessories and principals has
been abolished by legislature. State v. Kleier,
69 Idaho 278, 206 P.2d 513 (1949).
Accomplice.
An accomplice is one of several principals in
a criminal undertaking. State v. Gonzales, 92
Idaho 152, 438 P.2d 897 (1968); State v. Wil-
son, 93 Idaho 194, 457 P.2d 433 (1969).
The fact that a witness had an altercation
with the allegedly murdered decedent shortly
before he was shot, then immediately accom-
panied the defendant to his home to procure a
rifle, accompanied the defendant back to the
scene of the altercation, and sat in the car
while the defendant shot the decedent, after
which the witness left the scene with the
defendant raised an issue as whether such
witness was an accomplice. State v. Gonzales,
92 Idaho 152, 438 P.2d 897 (1968).
Aid and Abet.
To "aid and abet" means to assist, facilitate,
promote, encourage, counsel, solicit or invite
the commission of a crime. Howard v. Felton,
85 Idaho 286, 379 P.2d 414 (1963).
Aperson who participates in criminal activ-
ity only as an agent of law enforcement lacks
the requisite criminal intent. State v. Perez,
99 Idaho 181, 579 P.2d 127 (1978).
Where evidence showed that informant and
undercover officer who was wearing a hidden
microphone, followed by another officer in an
unmarked vehicle who tape recorded the con-
versations made in undercover officer's pres-
ence, picked up defendant who directed them
to a certain house which defendant entered
and from which he returned accompanied by a
friend who sold the officer a white envelope
containing a substance that was later identi-
fied as PCP, such evidence was more than
sufficient to convict defendant of aiding and
abetting in the delivery of a controlled sub-
stance. State v. Sharp, 104 Idaho 691, 662
P.2d 1135 (1983).
Aiding and abetting requires some proof
that the accused either participated in or
assisted, encouraged, solicited, or counseled
the crime; mere knowledge of a crime and
assent to or acquiescence in its commission
does not give rise to accomplice liability and
failure to disclose the occurrence of a crime to
authorities is not sufficient to constitute aid-
ing and abetting. State v. Randies, 117 Idaho
344, 787 P2d 1152 (1990).
Where there was sufficient evidence to
show that the defendant had the requisite
intent to kill a human being and then acted in
furtherance of that intent by encouraging
another to carry through with the plan, con-
victions on two counts of attempted murder
were affirmed. State v. Fabeny, 132 Idaho 917,
980 P.2d 581 (Ct. App. 1999).
Judgment of acquittal was reversed where
the jury could reasonably have concluded that
defendant intended to promote or facilitate
the commission of the offense by his accom-
plice when defendant, failing to shoot the
victim on his own and undergoing a beating at
the victim's hands, asked for help from his
accomplice, whom he knew to be armed with a
pistol. State v. Gonzalez, 134 Idaho 907, 12
P.3d 382 (Ct. App. 2000).
Evidence was sufficient to support jury's
verdict of guilty of aiding and abetting traf-
ficking in cocaine and aiding and abetting
failure to affix illegal drug tax stamps where
defendant arranged for the sale of cocaine to a
confidential informant and accompanied him
to the drug dealer's residence where the sale
took place. State v. Romero-Garcia,

Idaho
, 75 P.3d 1209 (Ct. App. 2003).
Application.
One who aids, abets, or encourages another
in transportation of intoxicating liquor into
state is as guilty as principal, whether or not
he was actually present and participating in
act. State v. Sheehan, 33 Idaho 103, 190 P. 71
(1920).
Where party remained outside building as a
look-out while accomplice entered with inten-
tion of committing larceny in furtherance of a
common purpose, he was guilty of burglary as
a principal, though he himself made no entry.
State v. Bull, 47 Idaho 336, 276 P. 528 (1929).
City Ordinances.
City ordinance making it unlawful for any
person owning, leasing or occupying or in
control of premises to permit the unlawful
sale of liquor thereon is not in conflict with
this section. State v. Brunello, 67 Idaho 242,
176 P.2d 212 (1946).
Continuous Course of Conduct.
Where in a prosecution of defendant for
both conspiracy to deliver a controlled sub-
stance and for aiding and abetting the deliv-
ery of a controlled substance, the evidence
showed that everything the defendant did to
aid and abet the delivery of the cocaine he did
also in furtherance of the conspiracy; thus his
conduct was one continuous "act," and he
could be convicted and sentenced of only one
crime, not both. State v. Gallatin, 106 Idaho
564, 682 P2d 105 (Ct. App. 1984).
Evidence.
Where evidence showed that defendants
charged with robbery, attempted extortion
from parties occupying a hotel room, at-
tempted to get into the room, and followed up
by taking money by force, jury was justified in
assuming that defendants acted in concert.
State v. Robinson, 71 Idaho 290, 230 P.2d 693
(1951).
Where defendant was connected with bur-
glary, it was immaterial whether he himself
actually entered premises burglarized in or-
der to be convicted as a principal for first
degree burglary. State v. Hewitt, 73 Idaho
452, 254 P2d 677 (1953).
In order to find a defendant guilty of aiding
and abetting the failure to affix the required
drug tax stamps, a jury is required to find
that: (1) defendant knowingly participated in
or assisted the drug dealer in the possession
or distribution of cocaine; and (2) the neces-
sary drug tax stamps had not been affixed.
State v. Romero-Garcia,

Idaho , 75 P. 3d
1209 (Ct. App. 2003).
Instructions.
Instruction on distinction between accesso-
ries and principals was sustained by the facts
in this case. State v. Fox, 52 Idaho 474, 16
P.2d 663 (1932) (But see
19-1430.).
Where evidence showed that defendant was
connected with burglary, court did not err in
instructing jury in language of statute that
distinction between accessories and princi-
pals had been abolished. State v. Kleier, 69
Idaho 278, 206 P.2d 513 (1949).
Prosecutorial Misconduct.
There was no prosecutorial misconduct
where prosecutor reiterated what the district
court had already instructed, that the state
bears the burden of proving every element
beyond a reasonable doubt and that defen-
dant has no obligation to present evidence;
the prosecutor stated that criminal defen-
dants had those and a number of other rights.
State v. Romero-Garcia,

Idaho , 75 P. 3d
1209 (Ct. App. 2003).
Venue.
Evidence as to acts of appellant in aiding
the loading of a steer into a truck after it had
been killed, dressing the steer out, and trans-
porting it to the South Fork Lodge, with
intent to deprive the owner of his property,
was sufficient to establish appellant as a
principal; and, as principal, he could be tried
in either the county in which the steer was
stolen or that in which the Lodge was located.
State v. Bassett, 86 Idaho 277, 385 P.2d 246
(1963).
In a murder prosecution where defendant
alleged that he had been coerced into aiding
the real murderer in disposing of the victim's
remains, an instruction that he would have
been a principal, although the word principal
was not used, if he had been present at and
participated in assault on victim was not
error where instruction was given that coer-
cion could relieve defendant of criminal re-
sponsibility. State v. Dillon, 93 Idaho 698, 471
P2d 553 (1970), cert, denied, 401 U.S. 942, 91
S. Ct. 947, 28 L. Ed. 2d 223 (1971).
nal Law,

130-136, 143-148.
18-205. Accessories defined.

All persons are accessories who,
having knowledge that a felony has been committed:
(1)
Willfully withhold or conceal it from a peace officer, judge, magistrate,
grand jury or trial jury; or
(2) Harbor and protect a person who committed such felony or who has
been charged with or convicted thereof. [I.C.,

18-205, as added by 1972,
ch. 336, 1, p. 844; am. 1981, ch. 169, 1, p. 300; am. 1994, ch.
131, 3,
p. 296; am. 2001, ch. 119, 1, p. 413; am. 2003, ch.
217, 1, p. 566.]
C.L., 6343; C.S., 8094; I.C.A.,
17-205,
18-
ch. 109, 1, effective April 1, 1972.
Cross ref. Accessories to misdemeanor,
18-304.
Cited in: State v. Nolan, 31 Idaho 71, 169 P.
295 (1917); State v. Mason, 107 Idaho 706,
692 P2d 350 (1984); State v. Randies, 117
Idaho 344, 787 P2d 1152 (1990); State v.
Barnes, 121 Idaho 634, 826 P.2d 1346 (Ct.
App. 1992).
Analysis
Knowledge requirement.
Sentence.
Knowledge Requirement.
The appropriate interpretation of
18-205
regarding an accessory who harbored or pro-
tected a person charged with, or convicted of,
a felony was that the knowledge requirement
was met if the person had notice that the
accused was charged with, or convicted of, a
felony. State v. Teasley, 138 Idaho 113, 58 P3d
97 (Ct. App. 2002).
Sentence.
Where defendant, who was with three oth-
ers, allowed decedent to be beaten, humili-
ated and murdered; fired shots into the dead
body; after a night of rest, returned to scene of
the slaying and burned the body in a shallow
grave; and never reported the crime to the
authorities, five-year fixed sentence for con-
viction of accessory to murder was not cruel
and unusual punishment. State v. Toney, 130
Idaho 858, 949 P.2d 1065 (Ct. App. 1997).
nal Law,
137-142.
18-206. Punishment of accessories.

Except in cases where a
different punishment is prescribed, an accessory is punishable by impris-
onment in the state prison not exceeding five (5) years, or by fine not
exceeding fifty thousand dollars
($50,000),
or by both such fine and impris-
onment. [I.C.,

131, 4, p. 296.]
C.L., 6344; C.S., 8095; I.C.A., 17-206,
18-
as
18-216.
Sentences.
In an appeal from convictions of grand theft
under
18-2403(4) and acting as an acces-
sory to grand theft pursuant to 18-2403(4),
the trial court's imposition of a four-year
indeterminate sentence for the first count,
under
18-2408, and a concurrent two-year
indeterminate sentence for the second count,
pursuant to this section, was not unduly
harsh where, although the defendant was
only 18 years old, he had a record consisting
of minor traffic violations and a possession of
marijuana charge, and where the presentence
report showed that the defendant was in-
volved with marijuana and cocaine, that the
defendant had sought to obtain $500 from the
rightful owners of stolen snowmobile for in-
formation leading to its return, had offered to
sell a stolen snowmobile to a neighbor, and
had engaged in a number of other criminal
activities. State v. Mason, 107 Idaho 706, 692 Collateral References. 22 C.J.S., Crimi-
P.2d 350 (1984). nal Law,
143-148.
18-207. Mental condition not a defense

Provision for treat-
ment during incarceration
Reception of evidence
Notice and
appointment of expert examiners.
(1) Mental condition shall not be

a defense to any charge of criminal conduct.
(2) If by the provisions of section 19-2523, Idaho Code, the court finds that
one convicted of crime suffers from any mental condition requiring treat-
ment, such person shall be committed to the board of correction or such city
or county official as provided by law for placement in an appropriate facility
for treatment, having regard for such conditions of security as the case may
require. In the event a sentence of incarceration has been imposed, the
defendant shall receive treatment in a facility which provides for incarcer-
ation or less restrictive confinement. In the event that a course of treatment
thus commenced shall be concluded prior to the expiration of the sentence
imposed, the offender shall remain liable for the remainder of such sentence,
but shall have credit for time incarcerated for treatment.
(3)
Nothing herein is intended to prevent the admission of expert evi-
dence on the issue of any state of mind which is an element of the offense,
subject to the rules of evidence.
(4) No court shall, over the objection of any party, receive the evidence of
any expert witness on any issue of mental condition, or permit such evidence
to be placed before a jury, unless such evidence is fully subject to the
adversarial process in at least the following particulars:
(a) Notice must be given at least ninety (90) days in advance of trial, or
such other period as justice may require, that a party intends to raise any
issue of mental condition and to call expert witnesses concerning such
issue, failing which such witness shall not be permitted to testify until
such time as the opposing party has a complete opportunity to consider
the substance of such testimony and prepare for rebuttal through such
opposing expert(s) as the party may choose.
(b) A party who expects to call an expert witness to testify on an issue of
mental condition must, on a schedule to be set by the court, furnish to the
opposing party a written synopsis of the findings of such expert, or a copy
of a written report. The court may authorize the taking of depositions to
inquire further into the substance of such reports or synopses.
(c) Raising an issue of mental condition in a criminal proceeding shall
constitute a waiver of any privilege that might otherwise be interposed to
bar the production of evidence on the subject and, upon request, the court
shall order that the state's experts shall have access to the defendant in
such cases for the purpose of having its own experts conduct an exami-
nation in preparation for any legal proceeding at which the defendant's
mental condition may be in issue.
(d) The court is authorized to appoint at least one (1) expert at public
expense upon a showing by an indigent defendant that there is a need to
inquire into questions of the defendant's mental condition. The costs of
examination shall be paid by the defendant if he is financially able. The
determination of ability to pay shall be made in accordance with chapter
8, title 19, Idaho Code.
(e) If an examination cannot be conducted by reason of the unwillingness
of the defendant to cooperate, the examiner shall so advise the court in
writing. In such cases the court may deny the party refusing to cooperate
the right to present evidence in support of a mental status claim unless
the interest ofjustice requires otherwise and shall instruct the jury that
it may consider the party's lack of cooperation -for its effect on the
credibility of the party's mental status claim. [I.C.,

18-207, as added by
1982, ch.
368, 2, p. 919; am. 1996, ch. 225, 1, p. 736.]
Compiler's notes. Former
18-207 (I.C.,
18-207, as added by 1972, ch. 336, 1, p.
844) was repealed by S.L. 1982, ch. 368, 1,
effective July 1, 1982.
Section 1 of S.L. 1982, ch. 368 contained
repeals; section 3 is compiled as
18-211.
as
18-211.
Cross ref. Consideration of mental illness
in sentencing,
19-2523.
Examination of defendant for evidence of
mental condition,
19-2522.
Cited in: State v. Gratiot, 104 Idaho 782,
663 P.2d 1084 (1983); State v. Dryden, 105
Idaho 848, 673 P.2d 809 (Ct. App. 1983);
Barrows v. State, 106 Idaho 901, 684 P.2d 303
(1984); State v. Searcy, 120 Idaho 882, 820
P.2d 1239 (Ct. App. 1991); State v. Arrasmith,
132 Idaho 33, 966 P.2d 33 (Ct. App. 1998);
State v. Tiffany,
Idaho ,
P.3d , 2004
Ida. LEXIS 44 (Mar. 25, 2004).
Analyses
Burden of proving intent.
Constitutionality.
Expert evidence.
Instructions.
Lacking capacity.
Mental condition as evidentiary question.
No justiciable controversy in record.
Psychological evaluation not compelled.
Sentence.
Burden of Proving Intent.
This section does not relieve the state of the
burden of proving every fact necessary to
constitute the crime charged beyond a reason-
able doubt; it does not operate as a presump-
tion that no defendant can possess such lack
of mental capacity as to be unable to formu-
late criminal intent. State v. Beam, 109 Idaho
616, 710 P.2d 526 (1985), cert, denied, 476
U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704
(1986).
Although eliminating affirmative defenses
based upon the defendant's mental condition,
this section does not relieve the state of its
burden of proving beyond a reasonable doubt
every fact necessary to constitute the crime
charged; in every crime or public offense there
still must exist either a union of act and
intent, or criminal negligence. State v.
App. 1988).
This section does not remove the element of
criminal responsibility for the crime. The
prosecution is still required to prove beyond a
reasonable doubt that a defendant had the
mental capacity to form the necessary intent.
State v. Card, 121 Idaho 425, 825 P2d 1081
(1991), cert, denied, 506 U.S. 915, 113 S. Ct.
321, 121 L. Ed. 2d 241 (1992).
While a defendant's mental condition has
been expressly eliminated as a defense under
subsection (1) of this section, the defendant
may still use expert evidence on the issue of
the defendant's state of mind where it is an
element of the offense and such evidence is
subject to the rules of evidence. State v. Drag-
oman, 130 Idaho 537, 944 P.2d 134 (Ct. App.
1997).
Constitutionality.
This section, which has eliminated mental
condition as a defense but which does not
prevent a defendant from presenting relevant
evidence on the issues of mens rea or any
state of mind which is an element of the
offense, did not deprive the defendant of his
federal constitutional rights under the eighth
and fourteenth amendments where the defen-
dant did not establish either that he was
denied an opportunity to present evidence of
mental condition in an attempt to negate
criminal intent or that he offered such evi-
dence and had it ruled inadmissible by the
trial court. Potter v. State, 114 Idaho 612, 759
P.2d 903 (Ct. App. 1988).
Due process as expressed in the Constitu-
tions of the United States and of Idaho does
not mandate an insanity defense and this
section does not deprive a defendant of his
due process rights under the state or federal
Constitution. State v. Searcy, 118 Idaho 632,
798 P.2d 914 (1990).
A statement by defense counsel asserting
the impossibility of a psychiatrist offering an
opinion as to defendant's insanity without a
legal standard to work with did not suffice to
create a justiciable issue as to whether the
abolition of the insanity defense deprived the
defendant's due process rights; therefore, the
trial court properly refused to render a declar-
atoryjudgment on the issue. State v. Rhoades,
119 Idaho 594, 809 R2d 455 (1991).
Defendant sought a pre-trial ruling from
the trial court as to the constitutionality of
this section, but did not present any evidence
or make any representation sufficient to cre-
ate a justiciable controversy on the issue of
the insanity defense; therefore, the record did
not create a judiciable controversy sufficient
to support a ruling on the issue of the repeal
of the insanity defense. State v. Winn, 121
Idaho 850, 828 P.2d 879 (1992).
The validity of this section eliminating
mental condition as a defense in criminal
proceedings is now established in Idaho case
law. State v. Odiaga, 125 Idaho 384, 871 P.2d
801, cert, denied, 513 U.S. 952, 115 S. Ct. 369,
130 L. Ed. 2d 321 (1994).
Where defendant argued that the Supreme
Court should reconsider its prior rulings on
the constitutionality of this section but of-
fered no new basis upon which to consider the
issue, the court was guided by stare decisis to
adhere to its earlier opinions. State v. Gomez,
126 Idaho 83, 878 P.2d 782 (1994), cert, de-
nied, 513 U.S. 1005, 115 S. Ct. 522, 130 L. Ed.
2d 427 (1994).
The repeal of the insanity defense does not
violate the due process clauses of the Idaho or
United States Constitutions. State v. Moore,
126 Idaho 208, 880 P.2d 238 (1994).
Expert Evidence.
This section merely disallows mental con-
dition from providing a complete defense to
the crime and may allow the conviction of
persons who may be insane by some former
insanity test or medical standard, but who
nevertheless have the ability to form intent
and to control their actions. The statute ex-
pressly allows admission of expert evidence
on the issues of mens rea or any state of mind
which is an element of the crime. State v.
Card, 121 Idaho 425, 825 P.2d 1081 (1991),
cert, denied, 506 U.S. 915, 113 S. Ct. 321, 121
L. Ed. 2d 241 (1992).
Instructions.
Where jury instructions clearly set out the
specific intent required for the crime of rob-
bery, and the jury was instructed that they
could find that at the time the alleged crime
was committed the defendant was suffering
from a mental condition which prevented him
from forming the specific intent, the court's
instructions fairly and accurately presented
the issue of intent and stated the applicable
law correctly. State v. Potter, 109 Idaho 967,
712 P.2d 668 (Ct. App. 1985).
Lacking Capacity.

provisions of
19-2523. State v. Card, 121
506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241
(1992).
Mental Condition as Evidentiary Ques-
tion.
Sections 18-114, 18-115 and this section are
not in conflict, since

18-114 and 18-115 do
not mandate the existence of a defense based
upon insanity, but rather, this section reduces
the question of mental condition from the
status of a formal defense to that of an
evidentiary question. This section continues
to recognize the basic common law premise
that only responsible defendants may be con-
victed. State v. Beam, 109 Idaho 616, 710 P.2d
526 (1985), cert, denied, 476 U.S. 1153, 106 S.
Ct. 2260, 90 L. Ed. 2d 704 (1986).
No Justiciable Controversy in Record.
The Supreme Court upheld the trial court's
finding that the record did not create a justi-
ciable controversy to support a ruling on the
issue of the repeal of the insanity defense
where there was nothing before the court to
indicate an insanity defense had been raised,
as a declaratory judgment can only be ren-
dered in a case where an actual or justiciable
controversy exists. State v. Rhoades, 120
504 U.S. 987, 112 S. Ct. 2970, 119 L. Ed. 2d
589 (1992).
Where the record before the trial court
contained nothing more than the statement of
counsel that he desired to inquire into the
viability of the insanity defense, and that
although defendant had been examined by a
psychiatrist, no opinion in any form as to
defendant's mental state could be forthcoming
unless the court provided an operative legal
definition of insanity, counsel's unsworn
statement and the testimony of a law enforce-
ment officer did not provide a factual showing
sufficient to create a justiciable issue before
the court. State v. Rhoades, 121 Idaho 63, 822
P.2d 960 (1991), cert, denied, 506 U.S. 1047,
113 S. Ct. 962, 122 L. Ed. 2d 119 (1993).
Psychological Evaluation Not Com-
pelled.
The Fifth Amendment to the United States
Constitution and Idaho Const., Art. I, 13
prohibit compelling a criminal defendant to
be a witness against himself or herself. Fol-
lowing the repeal of the insanity defense, no
statutory scheme remains through which a
psychological evaluation can be compelled
without threatening the rights guaranteed
under both of these constitutions. State v.
Odiaga, 125 Idaho 384, 871 P.2d 801, cert,
denied, 513 U.S. 952, 115 S. Ct. 369, 130 L.
Ed. 2d 321 (1994).
Sentence.
Under this section, a judge can select either
a probation program or a sentence of incar-
ceration for a mentally ill convicted defen-
dant; therefore, where the defendant, who
was mentally ill, pled guilty to a charge of
lewd conduct with a minor under the age of 16
years, custody in the Department of Health
and Welfare was not an option and the judge
did not err in sentencing the defendant to the
custody of the board of correction. State v.
Desjarlais, 110 Idaho 100, 714 P.2d 69 (Ct.
App. 1986).
Decisions Under Prior Law
Analysis
Acquittal denied.
Appeal as proper method of challenge.
Authority of department.
Automatic commitment to institution.
Availability of habeas corpus writ.
Challenge to confinement.
Equal protection.
Substantial capacity.
Time allowed for examination.
Transfer of inmates.
Acquittal Denied.
Where the examining psychiatrist's report
stated that defendant could appreciate the
wrongfulness of his conduct but that it was
very difficult to judge whether defendant
could conform his conduct to the require-
ments of the law at the time of the murder,
the report was insufficient for a finding of
insanity and therefore the court's denial of
defendant's motion for acquittal was proper.
State v. Powers, 96 Idaho 833, 537 R2d 1369
881, 47 L. Ed. 2d 99 (1976).
Appeal as Proper Method of Challenge.
The district court did not err when it dis-
missed the declaratory judgment action
brought by criminal defendants, who were
attacking their automatic commitment to
mental institutions following their acquittal
of criminal charges by reason of mental dis-
ease or defect, since the proper method of
contesting the judicial decisions was by ap-
peal. Carter v. State, Dep't of Health & Wel-
fare, 103 Idaho 701, 652 P.2d 649 (1982).
Authority of Department.
Once a commitment to the department of
health and welfare is made by the court, the
department has the power to determine the
method and type of treatment and the loca-
tion of the treatment, and the department can
transfer the patient from one treatment facil-
ity to another without judicial authorization
where the transfer is consistent with the
mental health needs of the patient, but the
department cannot release the patient with-
out a hearing before the committing court.
Flores v. Lodge, 101 Idaho 533, 617 P.2d 837
(1980).
Automatic Commitment to Institution.
Under former statute requiring automatic
commitment of defendant acquitted on
ground of mental disease or defect, an accused
who asserted the defense of mental disease or
defect, and was acquitted on that basis, could
be automatically committed to a mental insti-
tution without further hearing and such au-
tomatic commitment did not violate the
acquittee's rights to due process or equal
protection because his dangerous mental con-
dition was established by his own admission.
The committed acquittee, thereafter, bore the
burden of establishing his right to release by
showing, pursuant to authorized procedures,
that he was no longer dangerously insane.
Penny v. State, Dep't of Health & Welfare, 103
Idaho 689, 652 P.2d 193 (1982).
Since the differences between the release
procedures under

66-327, 66-337 and 66-
343 regarding persons involuntarily commit-
ted under 66-329, and the procedures under
statute requiring automatic commitment of
defendants acquitted on ground of mental
disease or defect, were minor, and since the
state is reasonably entitled to take greater
precaution in releasing persons judicially de-
termined to have already endangered the
public safety than may be appropriate for
persons committed under 66-329, defen-
dants committed under the automatic com-
mitment statute were not denied equal pro-
tection of the law. Penny v. State, Dep't of
Health & Welfare, 103 Idaho 689, 652 P.2d
193 (1982).
An accused who successfully asserted the
defense of mental disease or defect and was
automatically committed to mental institu-
tion was not denied his right to a hearing and
judicial determination on the question of his
mental condition in that those rights were
accorded him at the time his defense of men-
tal disease or defect was tendered and ac-
cepted. The fact that two separate statutes
governed the recognition of those rights, i.e.,
former statute requiring automatic commit-
ment of defendant acquitted on ground of
mental disease or defect and
66-329 govern-
ing involuntary civil commitments did not
deny equal protection, but rather simply re-
flected differing factual settings under which
those rights were equally recognized. Penny v.
State, Dep't of Health & Welfare, 103 Idaho
689, 652 P.2d 193 (1982).
It was within the province of the legislature
to establish reasonable time limits for release
of defendants under former statute requiring
automatic commitment of defendant acquit-
ted on ground of mental disease or defect in
order to ensure that a patient could be re-
leased without endangering himself or others.
Penny v. State, Dep't of Health & Welfare, 103
Idaho 689, 652 P.2d 193 (1982).
Availability of Habeas Corpus Writ.
Where fundamental constitutional errors
occurred which would render the commitment
proceedings and the order of commitment
void, then custody in mental institutions
could still properly be challenged in an appli-
cation for a writ of habeas corpus, even
though no appeal was filed. Carter v. State,
Dep't of Health & Welfare, 103 Idaho 701, 652
P.2d 649 (1982).
Challenge to Confinement.
The appropriate method of challenging the
confinement of a person who claimed that he
was not receiving care and treatment as re-
quired by application to the committing court
and not by petition for writ of habeas corpus.
Flores v. Lodge, 101 Idaho 533, 617 P.2d 837
(1980).
Equal Protection.
A commitment pursuant to former law that
provided for commitment of acquitted defen-
dant did not violate an acquittee's right to
equal protection of the laws in failing to
provide a hearing as to the acquittee's present
mental illness or dangerousness at the initial
state of commitment, or at the expiration of
the acquittee's hypothetical criminal sen-
tence. Stoneberg v. State, 106 Idaho 519, 681
P.2d 994 (1984).
It did not violate equal protection principles
to hold a person acquitted on grounds of
mental disease or defect in confinement for a
period longer than one may be criminally
incarcerated for the commission of the same
offense. Stoneberg v. State, 106 Idaho 519,
681 P.2d 994 (1984).
Substantial Capacity.
This section provides that mental illness is
an affirmative defense which justifies acquit-
tal; the accused must lack substantial capac-
ity, not total capacity. State v. Scroggie, 110
Idaho 103, 714 P.2d 72 (Ct. App. 1986).
Where the trial court misinterpreted this
section to require that the accused lack total
capacity, the jury was precluded from consid-
ering the affirmative defense of mental ill-
ness, and the defendant was prejudiced by the
misinterpretation of this section and the sub-
sequent withdrawal of the proposed jury in-
struction; therefore, the conviction was re-
versed. State v. Scroggie, 110 Idaho 103, 714
P.2d 72 (Ct. App. 1986).
Time Allowed for Examination.
Where a defendant was given only two days
to prepare an examination, the amount of
time allowed was insufficient and the defen-
dant's substantial rights were prejudiced by
the court's denial of a motion for a continu-
ance. State v. Cook, 98 Idaho 686, 571 P.2d
332 (1977).
Transfer of Inmates.
Where an inmate had been committed to a
mental health facility after being acquitted of
a first degree murder charge by reason of
mental disease or defect, the department of
health and welfare had authority to transfer
the inmate from one mental health institution
to another without prior approval of the dis-
trict court that had committed him but did
not have authority to discharge or condition-
ally release him without first obtaining ap-
proval from the court. State v. Nielson, 97
Idaho 330, 543 P.2d 1170 (1975).
Collateral References. 22 and 22AC.J.S.,
Criminal Law,

99-108, 734-739.
18-208, 18-209. Admissibility of evidence of mental disease
Men-
tal illness as affirmative defense. [Repealed.]
Compiler's notes. These sections, which
comprised (I.C.,

18-208, 18-209, as added
by 1972, ch. 336, 1, p. 844) were repealed by
S.L. 1982, ch. 368, 1
For present law, see *
18-207, 19-2523.
18-210. Lack of capacity to understand proceedings
Delay of
trial.
No person who as a result of mental disease or defect lacks capacity

to understand the proceedings against him or to assist in his own defense
shall be tried, convicted, sentenced or punished for the commission of an
offense so long as such incapacity endures. [I.C.,

18-210, as added by 1972,
ch. 336, 1, p. 844.]
comprised S.L. 1970, ch. 31, 4, p. 61, was
was a section comprising I.C.,
18-210, as
in 18-3302.
Cited in: State v. Dryden, 105 Idaho 848,
673 P.2d 809 (Ct. App. 1983); State v. King,
120 Idaho 955, 821 P.2d 1010, 821 P.2d 1010
(Ct. App. 1991).
Analysis
Competency to stand trial.
Discretion of court.
Pre-sentence mental examination.
Psychiatric report.
Competency to Stand Trial.
The district court did not err in finding the
defendant competent to stand trial on the
charges of aggravated battery and burglary
where, although there may have been a viable
issue as to whether the district court correctly
found the defendant competent to stand trial
and correctly accepted the defendant's guilty
plea, the defendant had waived his right to
appeal the district cotfrt's ruling due to his
unconditional plea of guilty to aggravated
battery in exchange for the dismissal of the
burglary charge. State v. Green, 130 Idaho
503, 943 P.2d 929 (1997).
The test to determine whether a criminal
defendant is competent to stand trial is
whether the defendant has sufficient present
ability to consult with his lawyer with a
reasonable degree of rational understanding,
and whether he has a rational as well as
factual understanding of the proceedings
against him. Stone v. State, 132 Idaho 490,
975 P.2d 223 (Ct. App. 1999).
Where the district court made a credibility
assessment of trial counsel, finding her state-
ment that the defendant understood the pro-
ceedings to be credible, and where the court
also determined that, although it trusted a
psychiatrist's opinion that the defendant suf-
fered from episodic psychosis, it would not
accept the doctor's opinion that the defendant
was incompetent at the time of trial because
the doctor did not base his opinion on any
personal communications with the defendant,
nor on any medical evaluations performed
during trial, there was no showing of clear
error in the court's finding the defendant
competent to stand trial, and the denial of
post-conviction relief was affirmed. Stone v.
State, 132 Idaho 490, 975 P.2d 223 (Ct. App.
1999).
Right to counsel in post-conviction proceed-
ings was not a- constitutional right, but a
matter left to the discretion of the trial judge;
however, I.C.R. 44.2 provides for the manda-
tory appointment of counsel for post-convic-
tion review after the imposition of the death
penalty, and where the district court consid-
ered the evidence on defendant's competency
and issued an order finding him competent to
waive the assistance of counsel and to proceed
pro se, the district court's decision finding
that defendant had the capacity to waive his
right to counsel was supported by substantial,
competent, although conflicting evidence, and
accordingly would not be disturbed. State v.
Lovelace,

Idaho ,

P. 3d , 2004 Ida.
LEXIS 62 (Apr. 22, 2004).
Where defendant had been found compe-
tent to stand trial and that finding of compe-
tence was not contested, the trial court was
not required to hold a hearing on the issue
and where a second evaluation was conducted
pursuant to an order signed by the district
court, upon the request of newly appointed
counsel, the magistrate and the district court
properly acted to protect the defendant's right
to a fair trial. State v. Lovelace,
Idaho ,
P.3d , 2004 Ida. LEXIS 62 (Apr. 22, 2004).

Discretion of Court.
The issue of a defendant's fitness to proceed
is determined by the trial court, and while the
trial judge is under a continuing duty to
observe a defendant's ability to understand
the proceedings against him, even under this
section and
18-211 and 18-212 some de-
gree of discretion is permitted in determining
whether reasonable grounds exist to require
an examination. State v. Potter, 109 Idaho
967, 712 P.2d 668 (Ct. App. 1985).
Pre-Sentence Mental Examination.
The trial court did not err by not ordering a
pre-sentence mental examination where
there was extensive evidence to support the
trial court's conclusion that defendant was
competent at sentencing. State v. Moore, 126
Idaho 208, 880 P.2d 238 (1994).
Psychiatric Report.
indicated that defendant had no problem un-
derstanding the proceedings in a murder
prosecution, the fact that defendant lacked
the inner or emotional strength to be an
effective witness did not render him unable to
assist in his own defense and, thus, incompe-
tent to stand trial. State v. Powers, 96 Idaho
833, 537 P.2d 1369 (1975), cert, denied, 423 Collateral References. 22 C.J.S., Crimi-
U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 nal Law,

99-113.
(1976).
18-211. Examination of defendant

Appointment of psychia-
trists and licensed psychologists

Hospitalization

Report.

(1) Whenever there is reason to doubt the defendant's fitness to proceed as
set forth in section 18-210, Idaho Code, the court shall appoint at least one
(1)
qualified psychiatrist or licensed psychologist or shall request the
director of the department of health and welfare to designate at least one
(1)
qualified psychiatrist or licensed psychologist to examine and report upon
the mental condition of the defendant to assist counsel with defense or
understand the proceedings. The appointed examiner shall also evaluate
whether the defendant lacks capacity to make informed decisions about
treatment. The costs of examination shall be paid by the defendant if he is
financially able. The determination of ability to pay shall be made in
accordance with chapter 8, title 19, Idaho Code.
(2) Within three (3) days, excluding Saturdays, Sundays and legal holi-
days, of the appointment or designation, the examiner shall determine the
best location for the examination. If practical, the examination shall be
conducted locally on an outpatient basis.
(3)
If the examiner determines that confinement is necessary for pur-
poses of the examination, the court may order the defendant to be confined
to a jail, a hospital, or other suitable facility for that purpose for a period not
exceeding thirty (30) days. The order of confinement shall require the county
sheriff to transport the defendant to and from the facility and shall notify
the facility of any known medical, behavioral, or security requirements of
the defendant. The court, upon request, may make available to the examiner
any court records relating to the defendant.
(4) In such examination any method may be employed which is accepted
by the examiner's profession for the examination of those alleged not to be
competent to assist counsel in their defense.
(5) Upon completion of the examination a report shall be submitted to the
court and shall include the following:
(a) a description of the nature of the examination;
(b) a diagnosis or evaluation of the mental condition of the defendant;
(c) an opinion as to the defendant's capacity to understand the proceed-
ings against him and to assist in his own defense;
(d) an opinion whether the defendant lacks the capacity to make in-
formed decisions about treatment. "Lack of capacity to make informed
decisions about treatment" means the defendant's inability, by reason of
his mental condition, to achieve a rudimentary understanding of the
purpose, nature, and possible significant risks and benefits of treatment,
after conscientious efforts at explanation.
(6) If the examination cannot be conducted by reason of the unwillingness
of the defendant to participate therein, the report shall so state and shall
include, if possible, an opinion as to whether such unwillingness of the
defendant was the result of mental disease or defect.
(7)
The report of the examination shall be filed in triplicate with the clerk
of the court, who shall cause copies to be delivered to the prosecuting
attorney and to counsel for the defendant.
(8)
When the defendant wishes to be examined by an expert of his own
choice, such examiner shall be permitted to have reasonable access to the
defendant for the purpose of examination.
(9)
In addition to the psychiatrist or licensed psychologist, the court may
appoint additional experts to examine the defendant. In the event a
defendant is suspected of being developmentally disabled, the examination
shall proceed with those experts set out in subsection (7) of section 66-402,
Idaho Code.
(10) If the defendant lacks capacity to make informed decisions about
treatment, as defined in section 66-317, Idaho Code, the court may authorize
consent to be given pursuant to section 66-322, Idaho Code. If the defendant
lacks capacity to make informed decisions as defined in subsection (9) of
section 66-402, Idaho Code, the court may authorize consent to be given
pursuant to sections 66-404 and 66-405, Idaho Code.
(11) If the defendant was confined solely for the purpose of examination,
he shall be released from the facility within three (3) days, excluding
Saturdays, Sundays and legal holidays following notification of completion
of the examination. [I.C.,

18-211, as added by 1972, ch. 336, 1, p. 884;
am. 1974, ch. 165, 1, p. 1405; am. 1980, ch. 312, 1, p. 797; am. 1982, ch.
368, 3, p. 919; am. 1987, ch.
40, 1, p. 67; am. 1996, ch. 225, 2, p. 737;
am. 1998, ch.
90, 7, p. 315; am. 1999, ch. 293, 4, p. 732; am. 2000, ch.
234, 1, p. 656.]
1 restored the subject matter contained in
the section.
compiled as 66-339C and 18-3302, respec-
tively.
as
18-207.
compiled as
66-339C and 18-3302, respec-
tively.
as
15-5-101.
in

18-215, 66-317, 66-318, 66-319, 66-320
and 66-338.
Cited in: State v. Cook, 98 Idaho 686, 571
P.2d 332 (1977); State v. Osborn, 102 Idaho
405, 631 P.2d 187 (1981); State v. Storey, 109
v. Scroggie, 110 Idaho 103, 714 P.2d 72 (Ct.
App. 1986); State v. Beebe, 113 Idaho 977, 751
P.2d 673 (Ct. App. 1988); State v. King, 120
Idaho 955, 821 P.2d 1010, 821 P.2d 1010 (Ct.
App. 1991).
Analysis
Collateral attack on examination.
Determination of fitness.
Drug abuse.
Examination during trial.
Further evaluation not required.
Ineffective assistance of counsel.
Sufficiency of examination.
Collateral Attack on Examination.
Where trial court appointed psychiatrist
under this section and defendant played no
part in the appointment, did not exercise his
right to have his own psychiatrist appointed
under subsection (2) of
18-213 (repealed),
and did not influence state's inactivity with
respect to having additional psychiatrists ex-
amine him under this section or
18-213
(repealed), state could not have kidnapping
and rape case reopened five years later based
on testimony of two psychiatrists disputing
finding of psychiatrist in original case, since
defendant in invoking procedure under
18-
213 (repealed) did not breach a duty to anyone
so as to constitute a constructive fraud upon
the original trial court. State v. Hightower,
101 Idaho 749, 620 P.2d 783 (1980).
Determination of Fitness.
indicated that defendant had no problem un-
derstanding the proceedings in a murder
prosecution, the fact that defendant lacked
the inner or emotional strength to be an
effective witness did not render him unable to
assist in his own defense and, thus, incompe-
tent to stand trial. State v. Powers, 96 Idaho
833, 537 P.2d 1369 (1975), cert, denied, 423
U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99
(1976).
Where the psychiatric report on the defen-
dant did not contain an opinion on the defen-
dant's capacity to understand the proceedings
against him, but did state that the psychia-
trist found no mental disease or defect, there
was no fundamental error in admitting the
report even though it did not contain an
opinion specifically couched in the statutory
language. State v. Wells, 103 Idaho 137, 645
P.2d 371 (Ct. App. 1982).
The mere fact that defendant did not heed
his counsel's advice and was uncooperative, or
that his conduct on the stand would have
more likely hurt than helped his case, did not
render him incompetent to stand trial. State
v. Longoria, 133 Idaho 819, 992 P.2d 1219 (Ct.
App. 1999).
section and

18-210 and 18-212 some de-
967, 712 P.2d 668 (Ct. App. 1985).
Drug Abuse.
Where the record indicated that it was
chronic drug abuse, not mental disease or
defect, that underlay defendant's extensive
anti-social conduct, the district judge was not
required to appoint a psychiatrist or a psy-
chologist to examine defendant. State v.
Dryden, 105 Idaho 848, 673 P.2d 809 (Ct. App.
1983) (Decision based on section prior to 1982
amendment).
Examination During Trial.
Giving defendant a psychiatric examina-
tion during trial and allowing the doctor to
testify as to the examination and defendant's
mental state was permissible under this sec-
tion. State v. Gerdan, 96 Idaho 516, 531 P2d
1161 (1975):
Further Evaluation Not Required.
Where the trial transcript and record did
not even suggest that defendant was so in-
competent as to be unable to stand trial, the
trial judge spoke with the defendant concern-
ing his ability to control himself, the defen-
dant spoke coherently and demonstrated an
awareness of the proceedings, neither the
defendant nor his counsel requested a judicial
determination of competency by the trial
court, and nothing in the record suggested
that defendant's condition had significantly
deteriorated since the pretrial evaluations,
the evidence supported the magistrate's find-
ing of competency, and the trial court's failure
to order further medical evaluations and to
find defendant incompetent was not error.
State v. Potter, 109 Idaho 967, 712 P.2d 668
(Ct. App. 1985).
Ineffective Assistance of Counsel.
Where the record indicates that counsel
was aware of the value of doctor's observation
in his report under this section that defen-
dant was having trouble communicating with
his attorneys and counsel alerted the court to
these problems and argued for further assis-
tance, any assertion that counsel was ineffec-
tive in this regard is without merit, and
failure to subpoena the doctor for the hearing
was not prejudicial. State v. Soto, 121 Idaho
53, 822 P.2d 572 (Ct. App. 1991).
Sufficiency of Examination.
The psychiatric examinations available to a
defendant under this section and 19-852(a)
were sufficient to enable him to evaluate an
asserted insanity defense and were, likewise,
sufficient to satisfy the constitutional de-
mands of fundamental fairness. Accordingly,
where, notwithstanding some apparent irreg-
ularities in preparing and filing the evalua-
tion report, the defendant had already re-
ceived an adequate examination at state
expense, the trial court did not err in exercis-
ing its discretion to deny the defendant funds
for an additional psychiatric examination.
State v. Olin, 103 Idaho 391, 648 P.2d 203
(1982) (Decision prior to 1982 enactment of
18-207).
18-212. Determination of fitness of defendant to proceed
Sus-
pension of proceeding and commitment of defendant

Postcommitment hearing.
(1) When the defendant's fitness to proceed

is drawn in question, the issue shall be determined by the court. The court
shall also determine, based on the examiner's findings, whether the defen-
dant lacks capacity to make informed decisions about treatment. If neither
the prosecuting attorney nor counsel for the defendant contests the finding
of the report filed pursuant to section 18-211, Idaho Code, the court may
make the determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the report is
received in evidence upon such hearing, the party who contests the finding
thereof shall have the right to summon and to cross-examine the psychia-
trist or licensed psychologist who submitted the report and to offer evidence
upon the issue.
(2) If the court determines that the defendant lacks fitness to proceed, the
proceeding against him shall be suspended, except as provided in subsec-
tions (5) and (6) of this section, and the court shall commit him to the
custody of the director of the department of health and welfare, for a period
not exceeding ninety (90) days, for care and treatment at an appropriate
facility of the department of health and welfare or if the defendant is found
to be dangerously mentally ill as defined in section 66-1305, Idaho Code, to
the department of correction for a period not exceeding ninety (90) days. The
order of commitment shall include the finding by the court whether the
defendant lacks capacity to make informed decisions about treatment. For
purposes of this section "facility" shall mean a state hospital, institution,
mental health center, or those facilities enumerated in subsection (8) of
section 66-402, Idaho Code, equipped to evaluate or rehabilitate such
defendants. The order of commitment shall require the county sheriff to
transport the defendant to and from the facility and require an evaluation
of the defendant's mental condition at the time of admission to the facility,
and a progress report on the defendant's mental condition. The progress
report shall include an opinion whether the defendant is fit to proceed, or if
not, whether there is a substantial probability the defendant will be fit to
proceed within the foreseeable future. If the report concludes that there is a
substantial probability that the defendant will be fit to proceed in the
foreseeable future, the court may order the continued commitment of the
defendant for an additional one hundred eighty (180) days. If at any time the
director of the facility to which the defendant is committed determines that
the defendant is fit to proceed, such determination shall be reported to the
court.
(3) If during a commitment under this section a defendant who has the
capacity to make informed decisions about treatment refuses any and all
treatment, or the only treatment available to restore competency for trial,
the court shall, within seven (7) days, excluding weekends and holidays, of
receiving notice of the defendant's refusal from the facility conduct a
hearing on whether to order involuntary treatment or order such other
terms and conditions as may be determined appropriate. The burden shall
be on the state to demonstrate grounds for involuntary treatment including,
but not limited to: the prescribed treatment is essential to restore the
defendant's competency, the medical necessity and appropriateness of the
prescribed treatment, no less intrusive treatment alternative exists to
render the defendant competent for trial, and other relevant information. If
each of these findings is made by the court, treatment shall be ordered
consistent with the findings.
(4)
Each report shall be filed in triplicate with the clerk of the court, who
shall cause copies to be delivered to the prosecuting attorney and to counsel
for the defendant. Upon receipt of a report, the court shall determine, after
a hearing if a hearing is requested, the disposition of the defendant and the
proceedings against him. If the court determines that the defendant is fit to
proceed, the proceeding shall be resumed. If at the end of the initial ninety
(90) days the court determines that the defendant is unfit and there is not
a substantial probability the defendant will be fit to proceed within the
foreseeable future or if the defendant is not fit to proceed after the
expiration of the additional one hundred eighty (180) days, involuntary
commitment proceedings shall be instituted pursuant to either section
66-329 or 66-406, Idaho Code, in the court in which the criminal charge is
pending.
(5)
In its review of commitments pursuant to section 66-337, Idaho Code,
the department of health and welfare shall determine whether the defen-
dant is fit to proceed with trial. The department of health and welfare shall
review its commitments pursuant to chapter 4, title 66, Idaho Code, and
may recommend that the defendant is fit to proceed with trial. If the district
court which committed the defendant pursuant to section 66-406, Idaho
Code, agrees with the department's recommendation and finds the condi-
tions which justified the order pursuant to section 66-406, Idaho Code, do
not continue to exist, criminal proceedings may resume. If the defendant is
fit to proceed, the court in which the criminal charge is pending shall be
notified and the criminal proceedings may resume. If, however, the court is
of the view that so much time has elapsed, excluding any time spent free
from custody by reason of the escape of the defendant, since the commitment
of the defendant that it would be unjust to resume the criminal proceeding,
the court may dismiss the charge.
(6) If a defendant escapes from custody during his confinement, the
director shall immediately notify the court from which committed, the
prosecuting attorney and the sheriff of the county from which committed.
The court shall forthwith issue an order authorizing any health officer,
peace officer, or the director of the institution from which the defendant
escaped, to take the defendant into custody and immediately return him to
his place of confinement. [I.C.,

18-212, as added by 1972, ch. 336, 1, p.
844; am. 1974, ch. 165, 2, p. 1405; am. 1977, ch.
13, 1, p. 25; am. 1980,
ch. 312, 2, p. 797; am. 1982, ch. 368, 4, p. 919; 1987, ch.
40, 2, p. 67;
am. 1999, ch.
293, 5, p. 732; am. 2000, ch. 234, 2, p. 656.]
Compiler's notes. A former section, which the section as it existed prior to its repeal by
comprised S.L. 1970, ch.
31, 6, p. 61, was S.L. 1971, ch. 143, 5.
repealed by S.L. 1971, ch. 143, 5, effective Section 2 of S.L. 1977, ch. 13 has been
January 1, 1972, and substituted therefor repealed.
was a section comprising I.C., 18-212, as Section 5 of S.L. 1982, ch. 368 is compiled
added by 1971, ch. 143, 1. However, the as
18-215.
latter section was repealed by S.L. 1972, ch. Section 6 of S.L. 1999, ch. 293 is compiled
109, 1, effective April 1, 1972 and the as 63-3022E.
present section added by S.L. 1972, ch. 336, Section 3 of S.L. 2000, ch. 234 is compiled
1 restored the subject matter contained in as
66-337.
in

18-215, 19-852, 66-317, 66-324, 66-337,
66-338 and 66-1304.
Cited in: State v. Hoffman, 104 Idaho 510,
660 P.2d 1353 (1983).
Analysis
Alternative procedure to
66-329.
Appeal.
Question.
Further evaluation not required.
Hearing.
Not required.
Required.
Ineffective assistance of counsel.
Procedure where defendant mildly retarded.
Putting issue in question.
Alternative Procedure to 66-329.
Under this section, if the court in which a
criminal case is pending determines that, as a
result of mental disease or defect, the defen-
dant lacks the capacity to understand the
proceedings or to assist in his own defense,
the court must commit the defendant to the
custody of the director of the Department of
Health and Welfare for care and treatment at
an appropriate facility. This section is limited
in application to those defendants whose fit-
ness to participate in the criminal proceed-
ings has been drawn into question and is an
alternative procedure, rather than the sole
procedure to the exclusion of 66-329, for
obtaining a commitment to a mental health
facility for someone in the custody of a county
sheriff. State v. Hargis, 126 Idaho 727, 889
P.2d 1117 (Ct. App. 1095).
Appeal.
Question.
The question on appeal is whether there
was sufficient, competent, although conflict-
ing, evidence for the district court to find that
defendant had the capacity to stand trial, and
the trial court's finding must be clearly erro-
neous to justify reversal. State v. Daniel, 127
Idaho 801, 907 P.2d 119 (Ct. App. 1995).
section and

18-210 and 18-211 some de-
967, 712 P.2d 668 (Ct. App. 1985).
The issue of defendant's competency was
fully litigated in a single hearing. There was
no showing that other evidence would have
been introduced at a second hearing. The
district court did not abuse its discretion by
denying the motion for a second hearing pur-
suant to this section. State v. Harper, 129
Idaho 86, 922 P.2d 383 (1996).
Further Evaluation Not Required.
Where the trial transcript and record did
not even suggest that defendant was so in-
competent as to be unable to stand trial, the
trial judge spoke with defendant concerning
his ability to control himself, defendant spoke
coherently and demonstrated an awareness of
the proceedings, neither the defendant nor
his counsel requested a judicial determina-
tion of competency by the trial court, and
nothing in the record suggested that defen-
dant's condition had significantly deterio-
rated since the pretrial evaluations, the evi-
dence supported the magistrate's finding of
competency, and the trial court's failure to
order further medical evaluations and to find
defendant incompetent was not error. State v.
Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App.
1985).
Hearing.
Not Required.
Where the competency question has not
been raised, the trial judge has no duty to
independently inquire as to the competency of
the defendant. State v. Fuchs, 100 Idaho 341,
597 P.2d 227 (1979).
Because defendant's fitness to proceed was
not called into question before the trial court,
the absence of a hearing on defendant's fit-
ness and the lack of a specific finding on
defendant's competency did not amount to
fundamental error, and defendant's argument
that the trial court erred in failing to deter-
mine defendant's fitness prior to accepting a
guilty plea failed. State v. Hayes, 138 Idaho
761, 69 P3d 181 (Ct. App. 2003).
Required.
When the sanity issue has been raised, the
judge must conduct a hearing to inquire as to
the defendant's capacity before accepting a
guilty plea. State v. Fuchs, 100 Idaho 341, 597
P.2d 227 (1979).
Where defendant merely felt constrained
when speaking with his Caucasian attorney,
the fact that counsel did not move for an
examination under this section was not prej-
udicial and there was no ineffective assis-
tance of counsel on this issue. State v. Soto,
121 Idaho 53, 822 P.2d 572 (Ct. App. 1991).
Procedure Where Defendant Mildly Re-
tarded.
Where two psychologists testified at defen-
dant's competency hearing and each psychol-
ogist found that defendant was mildly re-
tarded, but one psychologist testified that he
believed defendant could understand the pro- guilty to second degree murder pursuant to a
ceedings and assist his counsel if the court- plea bargain, and there was some evidence of
room process was slowed down sufficiently, emotional problems, but her demeanor was
defendant was judged competent to stand
alert and responsive and her counsel never
trial, and court did not err in following recom-
raised the question of her sanity as the initial
mendation of psychologist and allowing de-
defense after withdrawing it, her mental ca-
fendant's counsel to take recesses as neces-
pacity was not put in question and it was not
sary State v. Daniel, 127 Idaho 801, 907 P.2d
error for the trial court to fail to inquire into
119 (Ct. App. 1995).
her capacity State v. Fuchs, 100 Idaho 341,
Putting Issue in Question.
597 P.2d 227 (1979).
Where the defendant had announced her
W^11 a defendants fitness to proceed at
intention to plead not guilty by reason of
tnal 1S in Question, the issue shall be deter-
insanity to a charge of first-degree murder,
mined by the trial court. State v. Daniel, 127
but later withdrew such a defense and plead
Idaho 801, 907 P.2d 119 (Ct. App. 1995).
18-213, 18-214. Acquittal on ground of mental illness

Commit-
ment of acquitted defendant
Release. [Repealed.]
Compiler's notes. These sections, which 25; am. 1980, ch. 312, 3, 4, p. 797) were
comprised (I.C.,

18-213, 18-214, as added repealed by S.L. 1982, ch. 368, 1, effective
by 1972, ch. 336, 1, p. 844; am. 1974, ch. July 1, 1982. For present law see
18-207.
165, 3, 4, p. 1405; am. 1977, ch. 13, 2, p.
18-215. Admissibility of statements by examined person.

A
statement made by a person subjected to psychiatric or psychological
examination or treatment pursuant to sections 18-211, 18-212 or 19-2522,
Idaho Code, for the purposes of such examination or treatment shall not be
admissible in evidence in any criminal proceeding against him on any issue
other than the defendant's ability to assist counsel at trial or to form any
specific intent which is an element of the crime charged, except that such
statements of a defendant to a psychiatrist or psychologist as are relevant
for impeachment purposes may be received subject to the usual rules of
evidence governing matters of impeachment. [I.C.,

18-215, as added by
1972, ch. 336, 1, p. 844; am. 1980, ch. 312, 5, p. 797; am. 1982, ch. 368,
5, p. 919.]
Compiler's notes. A former section, which Section 6 of S.L. 1980, ch. 312 declared an
comprised S.L. 1970, ch. 31, 9, p. 61, was emergency. Approved April 2, 1980.
repealed by S.L. 1971, ch. 143, 5,
effective
Section 14 of S.L. 1982, ch. 368 read: "This
January
1, 1972 and the present section
act shall be in full force and effect and shall
apply to persons against whom a criminal
words as the section prior to its repeal.
complaint is filed on or after July 1,
1982."
compiled as

18-212 and 18-310, respec-
tively.
18-216. Criminal trial ofjuveniles barred
Exceptions
Juris-
dictional hearing
Transfer of defendant to district court.
(1) A
person shall not be tried for or convicted of an offense if:
(a) At the time of the conduct charged to constitute the offense he was less
than fourteen (14) years of age; or
(b) At the time of the conduct charged to constitute the offense he was less
than eighteen (18) but not less than fourteen (14) years of age, unless:
1. Acourt of this state has no jurisdiction over him pursuant to chapter
5,
title 20, Idaho Code, or
2. The court having jurisdiction pursuant to chapter
5, title 20, Idaho
Code, has entered an order waiving jurisdiction and consenting to the
institution of criminal proceedings against him.
(2) No court shall have jurisdiction to try or convict a person of an offense
if criminal proceedings against him are barred by subsection (1) of this
section. When it appears that a person charged with the commission of an
offense may be of such an age that criminal proceedings may be barred
under subsection (1) of this section, the court shall Jhold a hearing thereon,
and the burden shall be on the prosecution to establish to the satisfaction of
the court that the criminal proceeding is not barred upon such grounds. If
the court determines that the proceeding is barred, custody of the person
charged shall be surrendered to the court having jurisdiction pursuant to
chapter 5, title 20, Idaho Code, and the case, including all papers and
processes relating thereto, shall be transferred. [I.C.,

18-216, as added by
1972, ch. 336, 1, p. 844; am. 1972, ch. 381, 4, p. 1102; am. 1994, ch. 131,
5, p. 296; am. 2004, ch.
23, 3, p. 25.]
January 1, 1972 and the present section
added by S.L. 1972, ch. 336, 1 restored the
subject matter contained in the section prior
to its repeal.
compiled herein as
18-111B and 18-303,
respectively.
compiled as
18-206 and 18-306, respec-
tively.
compiled as
18-113B and 18-1502B, re-
spectively.
Cited in: State v. Anderson, 108 Idaho 454,
700 P.2d 76 (Ct. App. 1985); State v. Dillard,
110 Idaho 834, 718 P.2d 1272 (Ct. App. 1986).
Analysis
Age of defendant.
Intent of statute.
Waiver of jurisdiction.
Review of waiver.
Age of Defendant.
Where the evidence at defendant's jury trial
indicated that defendant was 13 years old
when most of the sexual contacts with his
minor victim occurred and it was unclear how
many acts occurred after he turned 14, his
convictions for lewd conduct with a minor
under 16 were vacated, because under Idaho
Code

18-216(1) defendant could not be con-
victed for crimes that he committed when he
was less than 14 years old. State v. Kavajecz,
Idaho , 80 R3d 1083 (2003).

Intent of Statute.
The enactment of this section and its ante-
cedents, as gained from the literal language,
was to define the minimum age at which a
child could be tried for, and convicted of, a
criminal offense as if he were an adult. Wolfv.
State, 99 Idaho 476, 583 P.2d 1011 (1978).
Sections 16-1806 (see now
20-508) and
this section make it clear that not all chrono-
logical age juveniles will receive treatment as
juveniles. Wolf v. State, 99 Idaho 476, 583
P.2d 1011 (1978).
The legislative history of this section shows
an intent to change the common law which at
times authorized the prosecution for a crime
of a child as young as seven years of age. Wolf
v. State, 99 Idaho 476, 583 P.2d 1011 (1978).
Section 16-1806 (see now 20-508) and its
antecedents were intended to implement the
statutory provisions of this section and, to the
extent of any conflict, this section controls.
Wolf v. State, 99 Idaho 476, 583 P.2d 1011
(1978).
Waiver of Jurisdiction.
Prosecution of defendant who was 17 years
of age at time of alleged offense was barred
where court having jurisdiction under the
Youth Rehabilitation Act (see now Juvenile
Corrections Act,

20-501
20-549) had not

conducted a hearing or entered an order
based thereon, waiving jurisdiction and con-
senting to institution of such prosecution.
Hayes v. Gardner, 95 Idaho 137, 504 P.2d 810
(1972).
When an order is entered waiving juvenile
jurisdiction, the jurisdiction of the magis-
trate's division of the district court, sitting as
a juvenile court, is extinguished and at the
same time there is effected a transfer of
jurisdiction to the district court sitting as an
adult criminal court. State v. Harwood, 98
Idaho 793, 572 P.2d 1228 (1977).
In proceeding to determine whether or not
juvenile jurisdiction should be waived, the
only determination by the magistrate was the
existence of probable cause to justify transfer
to the adult court and such determination
could be based on hearsay and need not be
tested by cross-examination and confronta-
tion. Wolf v. State, 99 Idaho 476, 583 P.2d
1011 (1978).
The nature of the accusation is a relevant
factor for the court to consider in deciding
whether or not to waive jurisdiction. Wolf v.
State, 99 Idaho 476, 583 P.2d 1011 (1978).
A probable cause finding in conjunction
with the procedure of waiving juvenile juris-
diction is not required by the Idaho or federal
constitutions, since when a juvenile court
waives jurisdiction an adult court must still
conduct a preliminary hearing at which prob-
able cause must be determined; and, if juve-
nile jurisdiction is not waived, a probable
cause determination is made by the juvenile
court as to whether and how to proceed on the
juvenile petition. Wolf v. State, 99 Idaho 476,
583 P.2d 1011 (1978).
In proceedings to determine whether or not
juvenile jurisdiction should be waived where
the magistrate found that each of the defen-
dants was emotionally and mentally mature
and that the prognosis for each defendant
under available juvenile rehabilitation pro-
grams was unsatisfactory and that they
would likely remain dangerous to the public if
released at age 21 and in the interim each
would be likely to disrupt the rehabilitation of
other juveniles, such finding met the criteria
necessary for waiver of jurisdiction set forth
in State v. Gibbs, 94 Idaho 908, 500 P. 2d 209
(1972). Wolf v. State, 99 Idaho 476, 583 P2d
1011 (1978).
Review of Waiver.
A review of a juvenile jurisdiction waiver
must be sought before the charges as an adult
have proceeded to trial and, in effectuating
such an appeal, review should first be sought
in the district court while proceedings in the
adult court are held in abeyance pending
resolution of the waiver issue. State v.
Harwood, 98 Idaho 793, 572 P.2d 1228 (1977).
CHAPTER 3
NATURE AND EXTENT OF PUNISHMENT IN GENERAL
SECTION.
18-301.
18-302.
18-303.
18-304.
18-305.
18-306.
18-307.
18-308.
18-309.
[Repealed.]
Punishment for acts also punishable
as contempts.
Common law offenses
Punishment
Imprisonment for nonpay-

ment of fine.
Aiding in misdemeanors.
Conviction of attempt when crime is
consummated.
Punishment for attempts.
Attempt resulting in different crime.
Successive terms of imprisonment.
Computation of term of imprison-
ment.
SECTION.
18-310. Imprisonment Effect on civil
rights and offices.
18-311. [Repealed.]
18-312. Convicts
Capacity as witnesses
Capacity to convey property.

18-313. Protection of person of convict.
18-314. Property of convict not forfeited.
18-315. Omission of public duty.
18-316. [Repealed.]
18-317. Punishment of offenses for which no
penalty is fixed.
18-301. Acts punishable in different ways

Double jeopardy.
[Repealed.]
Compiler's notes. Former 18-301, S.L. 1995, ch.
which comprised I.C., 18-301, as added by 1995.
16, 1, effective February 13,
18-302. Punishment for acts also punishable as contempts.

A
criminal act is not the less punishable as a crime because it is also declared
to be punishable as a contempt. [I.C.,
18-302, as added by 1972, ch. 336,
1, p. 844.]
45 NATURE AND EXTENT OF PUNISHMENT IN GENERAL 18-304
143, 5.
Cross ref. Contempts in civil proceedings,
7-601 7-614.
Contempts in criminal proceedings,
18-
1801.
Criminal acts punishable as contempts,
18-105.
Inherent Powers of Courts.
Where certain acts of contempt are made a
crime under our statute, making of such acts
punishable as crimes does not affect any
power conferred on court to impose or inflict
punishment for contempt. McDougall v.
Sheridan, 23 Idaho 191, 128 P. 954 (1913).
18-303. Common law offenses

Punishment

Imprisonment
for nonpayment of fine.
All offenses recognized by the common law as

crimes and not herein enumerated are punishable, in case of felony, by
imprisonment in the state prison for a term not less than one
(1)
year nor
more than five (5)
years; and in case of misdemeanors, by imprisonment in
the county jail for a term not exceeding six (6) months or less than one (1)
month, or by fine not exceeding $500, or both such fine and imprisonment.
And whenever any fine is imposed for any felony or misdemeanor, whether
such be by statute or at common law and the party upon whom the fine is
imposed has the ability to pay said fine, the party upon whom the fine is
imposed shall be committed to the county jail, when not sentenced to the
state prison, until the fine is paid. [I.C.,

18-303, as added by 1972, ch. 336,
1, p. 844; am. 1972, ch. 381, 5, p. 1102.]
C.L., 7332; C.S., 8604; I.C.A.,
17-303
18-
the latter section was* repealed by S.L. 1972,
present section as added by S.L. 1972, ch. 336,
the section as it existed prior to its repeal by
S.L. 1971, ch. 143, 5.
herein as
18-216.
Cross ref. Criminal offenses for which no
penalties are fixed punishable as misdemean-
ors,
18-317.
General penalties for felonies,
18-112.
General penalties for misdemeanors,
18-
113.
Application.
This section and
19-2512 authorizing
trial court to impose alternative sentence of
imprisonment against defendant in case of
failure to pay fine or costs, or both fine and
costs, as case may be, have reference to judg-
ment upon original trial of a criminal case. In
re Lucas, 17 Idaho 164, 104 P. 657 (1909).
Criminal Law,

11-14, 808.
22 C.J.S., Criminal Law, 24.
18-304. Aiding in misdemeanors.

Whenever an act is declared a
misdemeanor, and no punishment for counseling, aiding in, soliciting or
inciting the commission of such acts [act! is expressly prescribed by law,
every person who counsels, aids, solicits or incites another in the commis-
sion of such act is guilty of a misdemeanor. [I.C.,

18-304, as added by 1972,
ch.
336, 1, p. 844.]
comprised R.S., & R.C., 7233; am. 1917, ch.
137, p. 447; reen. C.L., 7233; C.S., 8605;
I.C.,
18-304, as added by 1971, ch. 143,
1.
The bracketed word "act" was inserted by Collateral References. 22 C.J.S., Crimi-
the compiler. nal Law, 127.
Cited in: State v. Thompson, 136 Idaho
322, 33 P.3d 213 (Ct. App. 2001).
18-305. Conviction of attempt when crime is consummated.

Any person may be convicted of an attempt to commit a crime, although it
appears on the trial that the crime intended or attempted was perpetrated
by such person in pursuance of such attempt, unless the court, in its
discretion, discharges the jury, and directs such person to be tried for such
crime. [I.C.,

18-305, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Felony Murder.
comprised R.S., R.C., & C.L., 7234; C.S., Because intent is not an element of felony
8606; I.C.A., 17-305, was repealed by S.L. murder, but is an element of attempt to com-
mit a crime, there is no such crime as at-
tempted felony murder. State v. Pratt, 125
prising I.C.,
18-305, as added by 1971, ch.
Idaho 546, 873 P.2d 800 (1993).
143,
1. However, the latter section was
Rape.
repealed by S.L 1972, ch. 109, 1, effective

ution for statut defen
.
?"
Voto
9
l
a
oo a
P
i
reSG
H
Se
f
y
dant may be convicted of assault with intent
to CQmmit gtate y Q 45 ^76g
265 p 66g (1928); gtate y Smailes> 51 Idaho

,.
....
321, 5 P2d 540 (1931).
in

18-307.
Criminal Law, 103.
Analysis
Impossibility of consummation of substan-
tive crime as defense in criminal prosecution
Felony murder. for conspiracy or attempt to commit crime. 37
Rape. A.L.R.3d 375.
18-306. Punishment for attempts.

Every person who attempts to
commit any crime, but fails, or is prevented or intercepted in the perpetra-
tion thereof, is punishable, where no provision is made by law for the
punishment of such attempts, as follows:
(1) If the offense so attempted is punishable by imprisonment in the state
prison for life, or by death, the person guilty of such attempt is punishable
by imprisonment in the state prison for a term not exceeding fifteen (15)
years.
prison for five (5) years or more but for less than life imprisonment, or by
imprisonment in the county jail, the person guilty of such attempt is
punishable by imprisonment in the state prison, or in the county jail, as the
case may be, for a term not exceeding one-half (Vfe) the longest term of
imprisonment prescribed upon a conviction of the offense so attempted.
prison for any term less than five (5) years, the person guilty of such attempt
is punishable by imprisonment in the county jail for not more than one (1)
year.
(4) If the offense so attempted is punishable by a fine, the offender
convicted of such attempt is punishable by a fine not exceeding one-half (V2)
the largest fine which may be imposed upon a conviction of the offense so
attempted.
(5) If the offense so attempted is punishable by imprisonment and by a
fine, the offender convicted of such attempt may be punished by both
imprisonment and fine, not exceeding one-half (V2) the longest term of
imprisonment and one-half (V2) the largest fine which may be imposed upon
a conviction for the offense so attempted. [I.C.,

18-306, as added by 1972,
ch. 336, 1, p. 844; am. 1994, ch. 131, 6, p. 296.]
C.L., 7235; C.S., 8607; I.C.A.,
17-306,
18-
as
18-216 and 7 contained repeals.
in

18-307 and 18-310.
Cited in: State v. Downing, 23 Idaho 540,
130 P. 461 (1913); State v. Cotton, 100 Idaho
573, 602 P.2d 71 (1979); State v. Smith, 103
Idaho 135, 645 P.2d 369 (1982); State v.
Brennan, 117 Idaho 123, 785 P.2d 687 (Ct.
App. 1990); State v. Brower, 122 Idaho 450,
835 P2d 685 (Ct. App. 1992); State v. Swader,
137 Idaho 733, 52 P.3d 878 (Ct. App. 2002).
Analysis
Application.
Arson.

Brokers.
Burglary.
Length of sentence.
Lesser included offense.
Murder.
Rape.
Robbery.
Robbery and assault.
Sentence.
Upheld.
Solicitation of attempt.
Subornation of perjury.
Unsuccessful attempts.
Application.
Where a statute denned a crime as an
attempt and also stated that the offender is
guilty of a misdemeanor without prescribing
any punishment therefor, the former section
was not applicable. State v. Reinoehl, 70
Idaho 361, 218 P.2d 865 (1949).
Where amended information charged "as-
sault with intent to commit rape," although
the attempt was not by means of threat or
violence, the means by which the alleged
offense was committed also constituted an
offense and was. sufficiently set forth in the
information as an included offense. State v.
Hall, 88 Idaho 117, 397 P.2d 261 (1964).
Arson.
Attempt to commit arson is a crime under
this section. State v. Collins, 3 Idaho 467, 31
P. 1048 (1892).
Brokers.
One charged with the crime of "acting as a
broker" may be punished for attempt to com-
mit such crime. State v. Johnson, 54 Idaho
431, 32 P2d 1023 (1934).
Burglary.
Information charged attempted burglary
where the information stated that the defen-
dant on or about specified date and place did
wilfully and feloniously attempt to break into
and enter in the nighttime an identified build-
ing with intent to commit larceny therein.
State v. Bedwell, 77 Idaho 57, 286 P.2d 641
(1955).
There was sufficient evidence to convict
defendant of attempted burglary where the
evidence showed that night watchman discov-
ered that a person was attempting to break in
and fired through the door, and defendant
was found eight to 12 feet from the door with
bullet wounds in his arm and leg, and two
screw drivers near his body, and his car was
parked close by. State v. Bedwell, 77 Idaho 57,
286 P2d 641 (1955).
In prosecution for attempted rape of a child,
where the investigation disclosed that defen-
dant, who was 22 years old when sentenced,
had prior convictions for a burglary and two
petit larcenies and also had a history of un-
lawful use and distribution of drugs and alco-
hol, the imposition of a ten-year indetermi-
nate sentence did not represent an abuse of
discretion and the district judge did not abuse
his discretion by refusing to retain jurisdic-
tion under
19-2601 4. State v. Nield, 105
Idaho 153, 666 P.2d 1164 (Ct. App. 1983),
aff'd, 106 Idaho 665, 682 P2d 618 (1984).
The district court properly instructed the
jury on the elements of the offense of kidnap-
ping in the second degree and the instructions
adequately addressed the intent requirement
of the offense, accordingly, in consideration of
the instructions given and in light of the
Idaho Criminal Jury Instructions preface, a
separate instruction denning intent was un-
necessary. State v. Dragoman, 130 Idaho 537,
944 P.2d 134 (Ct. App. 1997).
Length of Sentence.
Where record of 16 year old showed a pat-
tern of uncontrolled substance abuse and vi-
olent behavior towards others and that most
of his criminal activity occurred when he was
under the influence of some massive quantity
of controlled drugs or alcohol, an indetermi-
nate sentence of ten years for attempted rob-
bery was not excessive nor an abuse of discre-
tion, since under
20-223 defendant could be
eligible for parole after serving one-third of
the sentence. State v. Reinke, 103 Idaho 771,
653 P.2d 1183 (Ct. App. 1982).
The 15-year indeterminate sentence for at-
tempted second degree murder was not exces-
sive, where the defendant wounded the night
watchman four times with a .22 caliber pistol
while burglarizing a convenience store, there
was evidence that the victim's final wound
was inflicted from close range while he was
disabled and lying on his stomach, and the
presentence investigation revealed several
nonviolent prior offenses, including a third
degree theft conviction. State v. Bourgeois,
111 Idaho 479, 725 P.2d 184 (Ct. App. 1986).
Defendant's sentences for attempted rob-
bery and aggravated battery were not exces-
sive or represent an abuse of discretion where
trial judge imposed maximum concurrent
sentences, 15 years, for each crime and be-
cause defendant used a firearm in committing
aggravated battery, the court extended the
aggravated battery sentence for an additional
15 years, as permitted by
19-2520; for each
crime the sentencing judge specified that the
minimum term of confinement would be the
entire length of the sentence and under these
sentences defendant must spend 30 years in
confinement without the possibility of parole.
State v. Sanchez, 115 Idaho 394, 766 P.2d
1275 (Ct. App. 1988).
Identical concurrent 14-year sentences
with a minimum period of confinement of ten
years for attempted robbery and for first de-
gree burglary were within the maximum pen-
alties allowed by statute and were not exces-
sive, even though no one was hurt and no
money taken. State v. Ellenwood, 115 Idaho
813, 770 P.2d 822 (Ct. App. 1989).
Imposition of a ten-year unified sentence
with a four-year minimum period of confine-
ment for attempted robbery was not an abuse
of discretion in light of the defendant's previ-
ous record, his past unsuccessful attempts at
rehabilitation and his admitted use and sale
of drugs. See State v. Sommerfeld, 116 Idaho
518, 777 P.2d 740 (Ct. App. 1989).
The district court properly sentenced defen-
dant to a nine-year determinate period of
confinement to be followed by a three and
one-half year indeterminate period with re-
gard to a charge of attempted kidnapping in
the second degree where the court considered
all of the appropriate goals of sentencing in
light of the circumstances of this particular
case, and concluded that defendant's sub-
stance abuse in this case did not mitigate the
seriousness of the offense, and that the com-
munity had a right to expect not to be treated
as defendant had treated the victim. State v.
Connor, 119 Idaho 1003, 812 P.2d 310 (Ct.
App. 1991).
A 15-year fixed term for attempted second
degree murder and a consecutive indetermi-
nate ten-year term for assault with intent to
commit rape was reasonable where psycholo-
gist concluded that defendant was not a good
candidate for verbal psychotherapy and, even
though defendant did not have a long prior
record, the record he had was quite serious.
State v. Fenstermaker, 122 Idaho 926, 841
P.2d 456 (Ct. App. 1992).
Lesser Included Offense.
Where there was only one event, defen-
dant's shooting at victim's door, on which
charges could be based, the charge of assault
with a deadly weapon was a lesser included
offense in a charge of attempted robbery such
as to preclude conviction of both charges un-
der the double jeopardy clause of the Fifth
Amendment of the United States Constitu-
tion and the Idaho Constitution. State v. Th-
ompson, 101 Idaho 430, 614 P.2d 970 (1980).
Murder.
980 P.2d 581 (Ct. App. 1999).
Rape.
Offense of "attempt to commit rape" can be
included in the charge of "assault with intent
to commit rape." State v. Hall, 88 Idaho 117,
397 P.2d 261 (1964).
Penalty for assault with intent to commit
rape is imprisonment of one to fourteen years,
and for attempt to commit rape is one half of
the punishment for the crime of rape which is
imprisonment for one year to life; therefore,
although one half of a life sentence cannot be
calculated, the actual sentence thus fixed may
be less than that imposed for assault with
intent to commit rape, and greater punish-
ment is not authorized for included offense.
State v. Hall, 88 Idaho 117, 397 P.2d 261
(1964).
Written statements by defendant, made to
and taken down by an investigating officer of
the air force, corroborated testimony by
prosecutrix as to actions of defendant that led
to institution of criminal proceedings and
sufficiently established the corpus delicti of
defendant's attempted rape of his thirteen-
year-old daughter. State v. Hall, 88 Idaho 117,
397 R2d 261 (1964).
An overt act is a required element of the
crime of attempted rape. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).
The crime of attempted rape is an included
offense in the crime of assault with intent to
commit rape; specific intent to commit the
rape is an element of both attempted rape and
assault with intent to rape where the rape
itself is not consummated. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).
Giving the amended information a fair and
reasonable construction, and by construing
the document liberally in favor of its validity,
it was held that the language charging defen-
dant with attempted rape was not so defective
as to fail to inform him of the element of
intent to commit rape which was essential to
the crime charged. State v. Leach, 126 Idaho
977, 895 P.2d 578 (Ct. App. 1995).
Robbery.
Where testimony demonstrated that the
defendant committed acts in furtherance of
an intent to take property from a pawn shop
by force when he entered the shop and gave a
signal to another participant to start shoot-
ing, even though the defendant did not com-
plete the robbery by actually taking property
his actions were sufficient to sustain a verdict
for attempted robbery. State v. Fabeny, 132
Idaho 917, 980 P.2d 581 (Ct. App. 1999).
Robbery and Assault.

Since penalty for attempted robbery is half
of sentence for robbery, which is imprison-
ment for five years to life, while punishment
for assault with a deadly weapon is not more
than five years, assault could not be consid-
ered the greater offense on the grounds that it
carried greater penalty; although half of life
sentence cannot be calculated, court can set
base maximum sentence at less than life and
use such maximum to determine the sentence
for attempt so that actual sentence fixed for
attempted robbery may be less than sentence
for assault with deadly weapon. State v. Th-
ompson, 101 Idaho 430, 614 P.2d 970 (1980).
Sentence.
Upheld.
A fifteen-year determinate sentence for at-
tempted murder and a consecutive 35-year
sentence, with fifteen years determinate, for
robbery was not excessive, where the charac-
ter of the offense was vicious and unprovoked
involving infliction of multiple stab wounds
on a helpless victim. State v. Mitchell, 124
Idaho 374, 859 P.2d 972 (Ct. App. 1993).
The trial court properly denied defendant's
motion to correct an illegal sentence where:
the trial court found that for the crime of
attempted first-degree murder, the maximum
penalty defendant faced was one-half of a life
sentence; the trial court fixed a base maxi-
mum of forty-five years based upon defen-
dant's age and life expectancy; the trial court
advised defendant that the maximum penalty
he faced for attempted first-degree murder
was twenty-two years and six months, one
half of the base maximum; and the trial court
then offered defendant the opportunity to
withdraw his plea which he declined. State v.
Wood, 125 Idaho 911, 876 P.2d 1352 (1994).
Where defendant bought a gun the day
before the shooting, he violated a restraining
order and went to his wife's home, he shot all
six bullets from it at his wife, two to four of
which hit her, and it was "purely miraculous"
that she was not killed, given the sentencing
goals of protecting society along with deter-
rence, rehabilitation and retribution, a seven-
year fixed sentence is not longer than neces-
sary to achieve these goals and was not
unreasonable at the time imposed, even
though defendant had no previous criminal
involvement, and may not have posed a threat
to the general public. State v. Gomez, 126
513 U.S. 1005, 115 S. Ct. 522, 130 L. Ed. 2d
427 (1994).
The defendant bears the burden to show
that the sentence is unreasonably harsh in
light of the primary objective of protecting
society and the related goals of deterrence,
rehabilitation and retribution. Therefore, de-
fendant's sentence was not unduly harsh
where defendant had previously been given
an opportunity for rehabilitation through the
retained jurisdiction but continued his crimi-
nal behavior, did not accept responsibility for
his conduct, and continued to assert his inno-
cence in the present case and also denied the
stabbing for which he had previously been
convicted. State v. Harrison, 136 Idaho 504,
37 P.3d 1 (Ct. App. 2001).
Solicitation of Attempt.
Where defendant agreed to pay undercover
agent $1,000 to kill a police officer and actu-
ally paid him $250 in "up front" money before
being arrested, he could not be convicted for
attempted murder since his only actions were
those of solicitation by the preparatory act of
inciting another to commit the crime and
there was no actus reus in actually commit-
ting the crime; moreover, the partial payment
made was a "slight act" only in furtherance of
the solicitation rather than a preparatory act
sufficiently proximate to establish an at-
tempt. State v. Otto, 102 Idaho 250, 629 P.2d
646 (1981).
Subornation of Perjury.
Where the evidence did not establish when,
if ever, the subornation attempt actually was
discontinued, the jury permissibly could have
found that the defendant never withdrew his
offer to pay whatever the witness wanted for
favorable testimony, and discontinuing the
attempt, after it had been made and had
failed, would not take the case outside of this
section, the general attempt statute. State v.
Gibson, 106 Idaho 491, 681 P.2d 1 (Ct. App.
1984).
Unsuccessful Attempts.
An unsuccessful attempt to commit extor-
tion by means of a verbal threat, would, in the
absence of former law providing for punish-
ment for attempted extortion, be punishable,
because there is no distinction between an
attempt and an unsuccessful attempt. State v.
Reinoehl, 70 Idaho 361, 218 P.2d 865 (1949).
Record was clear that defendant intended
to commit second-degree murder during his
attack on the victim when he attempted but
failed to consummate that crime because his
gun misfired, the victim escaped, and this
section permits prosecution for charge of at-
tempted second-degree murder.
Fenstermaker v. State, 128 Idaho 285, 912
P.2d 653 (Ct. App. 1995).
Where defendant did not deny that he in-
tended to engage in sexual relations with a
minor girl for the purpose of gratifying his
sexual desires, which would have amounted
to a crime in violation of 18-1508, or that
his actions went beyond mere preparation,
the evidence was sufficient to support his
conviction for attempted lewd conduct with a
minor under 16 years of age; and the statute
provided no exception for one who intended to
commit a crime but failed because he was
unaware of some fact that would have pre-
vented him from completing the intended
crime, such as the fact that a police officer was
impersonating the teenage girl the defendant
thought he was chatting with online; there-
fore, it had eliminated impossibility as a de-
fense to attempt. State v. Curtiss, 138 Idaho
466, 65 P.3d 207 (Ct. App. 2002).
nal Law, 114.
Attempt to commit assault as criminal of-
fense. 93 A.L.R.5th 683.
18-307. Attempt resulting in different crime.

The last two (2)
sections do not protect a person who, in attempting unsuccessfully to
commit a crime, accomplishes the commission of another and different
crime, whether greater or less in guilt, from suffering the punishment
prescribed by law for the crime committed. [I.C.,

18-307, as added by
1972, ch.
336, 1, p. 844.]
April 1, 1972 and the present section was
words as the section prior to its repeal by S.L.
1971, ch. 143, 5.
18-308. Successive terms of imprisonment.

When any person is
convicted of two (2) or more crimes before sentence has been pronounced
upon him for either, the imprisonment to which he is sentenced upon the
second or other subsequent conviction, in the discretion of the court, may
commence at the termination of the first term of imprisonment to which he
shall be adjudged, or at the termination of the second or other subsequent
term of imprisonment, as the case may be. [I.C.,
18-308, as added by 1972,
ch. 336, 1, p. 844; am. 1972, ch. 381, 6, p. 1102.]
C.L.,
7237; C.S., 8609; I.C.A.,
17-308,
18-
308, as added by 1971, ch. 143, .
1. However,
145, 5.
Cited in: State v. Wagenius, 99 Idaho 273,
581 P.2d 319 (1978); State v. Tipton, 99 Idaho
670, 587 P.2d 305 (1978); State v. Mendenhall,
106 Idaho 388, 679 P.2d 665 (Ct. App. 1984);
State v. Haggard, 110 Idaho 335, 715 P.2d
1005 (Ct. App. 1986); State v. Brandt, 110
Idaho 341, 715 P2d 1011 (Ct. App. 1986);
State v. Reinke, 111 Idaho 968, 729 P.2d 443
(Ct. App. 1986); State v. Maddock, 113 Idaho
182, 742 P.2d 437 (Ct. App. 1987); State v.
Douglas, 118 Idaho 622, 798 P.2d 467 (Ct.
App. 1990); State v. Baiz, 120 Idaho 292, 815
P.2d 490 (Ct. App. 1991); State v. Wolverton,
120 Idaho 559, 817 P.2d 1083 (Ct. App. 1991);
State v. Hoffman, 121 Idaho 131, 823 P.2d 165
(Ct. App. 1991); State v. Sheahan, 126 Idaho
111, 878 P.2d 810 (Ct. App. 1994).
Analysis
Common law rule.
Concurrent sentences.
Consecutive sentences.
Consecutive terms.
Consecutive to sentence in another state.
Conviction.
Failure to appeal.
Modification on appeal.
Power of court.
Common Law Rule.
This section, as amended, was not intended
to prohibit consecutive sentences but, on the
contrary, the primary effect of the amend-
ment was to reinstate the common-law rule
making such sentencing discretionary with
the court. State v. Lawrence, 98 Idaho 399,
565 P.2d 989 (1977).
This section, as amended, was not intended
to abrogate or modify the common-law rule
pertaining to consecutive sentences, thereby
prohibiting the court from imposing such sen-
tences except in the narrow range of cases
meeting the requirements ofthis section, with
respect to cases not falling within the scope of
this section. State v. Lawrence, 98 Idaho 399,
565 P.2d 989 (1977).
This section, prior to the 1972 amendment,
was intended to modify the common-law rule
to the extent that courts were mandated to
impose consecutive sentences in cases within
the scope of the section, although nothing in
the section indicated that the legislature in-
tended to deprive the courts of the common-
law authority to impose consecutive sen-
tences in other cases. State v. Lawrence, 98
Idaho 399, 565 P.2d 989 (1977).
Concurrent Sentences.
The imposition of consecutive sentences is
authorized and made discretionary by this
section; and, in the exercise of that discretion,
a judge's decision to impose concurrent rather
than consecutive sentences may properly be
viewed as mitigation of punishment. State v.
Brandt, 109 Idaho 728, 710 P.2d 638.
Consecutive Sentences.
Although the district court failed to specify
a minimum period of confinement with regard
to a consecutive, three-year indeterminate
sentence imposed on defendant on count two
of issuing checks without funds, in addition to
a three-year fixed sentence on count one,
because the record showed that the court
intended to set the minimum period of con-
finement at zero, the sentence did not violate
the requirements of
19-2513 that the aggre-

gate sentence not exceed the maximum pro-
vided by law. State v. Martinsen, 128 Idaho
472, 915 P.2d 34 (Ct. App. 1996).
District court abused its discretion by arriv-
ing at an unreasonably harsh sentencing
structure of incarceration for sixty years
without the possibility of parole for defen-
dant's crimes of rape, forcible sexual penetra-
tion with a foreign object and robbery; totality
of sentences was more than reasonably nec-
essary to accomplish sentencing goals. Con-
secutive 25-year determinate terms modified
to be served concurrently and consecutive
10-year determinate term for robbery modi-
fied to be made indeterminate. State v.
Amerson, 129 Idaho 395, 925 P.2d 399 (Ct.
App. 1996), cert, denied, 521 U.S. 1123, 117 S.
Ct. 2519, 138 L. Ed. 2d 1020 (1997).
District court properly exercised its discre-
tion in deciding that defendant's sentence for
possession of a controlled substance should be
served consecutively to sentences for grand
theft and burglary where court considered the
appropriate goals of sentencing and properly
considered defendant's psychological evalua-
tion, the presentence investigation report and
defendant's other criminal charges. State v.
Helms, 130 Idaho 32, 936 P.2d 230 (Ct. App.
1997).
Consecutive sentences for second degree
murder of life with 25 years for one murder,
and life with 40 years for the other murder,
were not excessively harsh given brutality
and grizzliness of the crimes, defendant's
planning, profit motive, credibility gap and
apparent lack of deep remorse. State v. Li, 131
Idaho 126, 952 P.2d 1262 (Ct. App. 1998).
Defendant's sentences were modified to re-
move the provision that his sentences must be
served consecutive to his federal probation
because under this section a sentence of im-
prisonment can be made to run consecutive
only to an earlier term of imprisonment. The
statute does not authorize a sentencing court
to order a term of imprisonment to run con-
secutive to a term of probation. State v. Bello,
135 Idaho 442, 19 P.3d 66 (Ct. App. 2001).
The district court had the authority to order
that defendant's Idaho sentence would run
consecutive to his federal sentence because
this section does not limit the district court's
authority to impose consecutive sentences,
and because defendant's probation was re-
voked following the grant of a withheld judg-
ment, so the district court had the authority
to impose any sentence which might have
been imposed at the time of defendant's orig-
inal sentencing for grand theft by possession
of stolen property. State v. Murillo, 135 Idaho
811, 25 P.3d 124 (Ct. App. 2001).
Consecutive Terms.
Sentence to four consecutive terms of im-
prisonment, of three years each, judgment
providing in each of the sentences after the
first, that the additional term of three years is
"to commence at expiration of term of three
years to be served by said defendant this day
adjudged against him in the case of United
States, criminal number three, against Henry
Esmond, or whenever his term of imprison-
ment after judgment in said case shall cease
and be ended for any reason, except by death
of said defendant," is definite and certain and
valid. In re Esmond, 42 F. 827 (D.S.D. 1890).
Where the trial court made a life sentence
for robbery consecutive to previous sentences
for rape and kidnapping because defendant
was a persistent violator of the law and be-
cause the robbery conviction was separate
and apart from the crimes of rape and kidnap-
ping for which he was then serving sentences,
and where the presentence report showed a
lengthy criminal record, the district court did
not act unreasonably in the structuring of the
sentence. State v. Lloyd, 104 Idaho 397, 659
P.2d 151 (Ct. App. 1983).
Where, at the time of sentencing for forgery
and burglary in Idaho, defendant had pled
guilty to both charges and such pleas had
been accepted by the court, then at that point,
for the purpose of the application of this
section, defendant had been convicted on both
charges and once one sentence had been im-
posed, the court was free to exercise its dis-
cretion by ordering the second sentence to be
served consecutive to the first; however, the
district court, in the original judgment and
sentence in each case, erred in making each
sentence consecutive to the other. State v.
Teal, 105 Idaho 501, 670 P.2d 908 (Ct. App.
1983).
Where defendant convicted of grand lar-
ceny was placed on probation for 14 years, but
violated his parole, the district court, upon
revoking probation did not have the power to
order the sentence originally imposed to be
served consecutively to a later sentence im-
posed for a crime which occurred during the
probationary period; the original sentence
could only run concurrently with the later
sentence. State v. West, 105 Idaho 505, 670
P.2d 912 (Ct. App. 1983).
Where the defendant pled guilty to five
counts of first degree burglary and was sen-
tenced to an indeterminate term of 15 years
on each count, in light of the defendant's prior
record and the nature of the present offenses,
the trial court did not abuse its discretion in
ordering that four of the sentences were to be
served concurrently with each other but con-
secutive to the first sentence imposed. State v.
Yarbrough, 106 Idaho 545, 681 P2d 1020 (Ct.
App. 1984).
will not be deemed excessive unless the ap-
pellant shows that under any reasonable view
of the facts the term of confinement is longer
than appears necessary at the time of sen-
tion or retribution; thus, where the defendant
had been convicted of two burglaries in Ore-
gon and was involved in five others in that
state during the 18 months preceding his
convictions in Idaho, and at the time of his
arrest in Idaho, was in violation of the terms
of probation he was serving for the State of
Oregon, and had been involved in ten burglar-
ies within a relatively short period of time
prior to his Idaho convictions, the trial court
did not abuse its discretion by making the
sentences consecutive. State v. Mathis, 107
Idaho 685, 691 P.2d 1300 (Ct. App. 1984).
Where defendant's extensive criminal
record indicated his clear propensity to re-
offend, even when he had been released on
parole under a situation of structured super-
vision, the trial court did not act unreason-
ably or abuse its discretion in sentencing
defendant to a consecutive rather than a
concurrent term of confinement. State v.
Elliott, 121 Idaho 48, 822 P.2d 567 (Ct. App.
1991).
The sentences imposed by the district court
were reasonable and there was no basis to
hold that the district court abused its discre-
tion in ordering a grand theft sentence to be
served consecutively to one imposed for issu-
ing a check without sufficient funds. State v.
Teske, 123 Idaho 975, 855 P.2d 60 (Ct. App.
1993).
Consecutive to Sentence in Another
State.
The question in deciding whether the sen-
tence for one crime should be consecutive to
the sentence for another, is not where the
offenses occurred or where the convictions
were entered, but whether the nature of the
crimes makes cumulative punishment appro-
priate; thus, the inherent power to impose
consecutive sentences includes the authority
to impose a sentence consecutive to another
sentence imposed by the court of a foreign
jurisdiction. State v. McKaughen, 108 Idaho
471, 700 P2d 93 (Ct. App. 1985).
Conviction.
For purposes of this section, "conviction"
occurs when the defendant pleads guilty and
that plea is accepted by the court. State v.
Chauncey, 97 Idaho 756, 554 P.2d 934 (1976).
Failure to Appeal.
Where the defendant failed to appeal the
denial of his motion to reconsider the sen-
tences, he waived his right to challenge the
court's sentencing discretion. Almada v. State,
108 Idaho 221, 697 P.2d 1235 (Ct. App. 1985).
Modification on Appeal.
The sentence of a defendant, convicted on
three separate counts of committing a lewd
act upon the body or the bodies of minor
children, to ten years imprisonment on each
count, which sentences would run consecu-
tively, was unduly harsh and should be mod-
ified to provide for such sentences to run
concurrently. State v. Ross, 92 Idaho 709, 449
P.2d 369 (1968), disapproved on other
grounds, State v. Hall, 95 Idaho 110, 504 P.2d
383 (1972).
Power of Court.
Consecutive sentences were mandatory
when called for by the former section, and
court had no discretion in this regard.
Lockard v. State, 92 Idaho 813, 451 P.2d 1014
(1969).
Where defendant, who had a prior convic-
tion for lewd and lascivious conduct, was
convicted after entering pleas of guilty to
three counts of statutory rape, the trial court
did not abuse its discretion in denying defen-
dant's application for probation and in impos-
ing three consecutive ten-year prison terms.
State v. Mansfield, 97 Idaho 138, 540 P.2d 800
(1975).
Where defendant had been advised of a
possible three-year maximum sentence on
each count of uttering and delivering a check
with insufficient funds, the trial court did not
err in imposing three concurrent three-year
sentences and one consecutive three-year sen-
tence upon defendant's plea of guilty to each
count, even though defendant was not specif-
ically advised of the court's discretion to im-
pose consecutive sentences. State v. Morris,
97 Idaho 273, 543 P.2d 498 (1975).
Where defendant entered plea of guilty to a
charge of burglary on May 12 and then on
May 13 entered plea of guilty to a separate
charge of burglary of a different business
establishment, defendant was thereby con-
victed of two crimes prior to pronouncement
of sentence upon either and the court was
empowered to order consecutive sentences.
State v. Chauncey, 97 Idaho 756, 554 P.2d 934
(1976).
Where judgments of conviction were en-
tered against defendant following pleas of
guilty to murder in the second degree, assault
with a deadly weapon with intent to murder,
and robbery, the trial court did not abuse its
discretion in providing that the twenty-year
robbery sentence would run consecutively to
concurrent sentences of life imprisonment
and fourteen (14) years on the murder and
assault charges. State v. Prince, 97 Idaho 893,
556 P. 2d 369 (1976), overruled on other
grounds, State v. Broadhead, 120 Idaho 141,
814 P.2d 401 (1991).
This section does not limit the authority of
the district courts to impose consecutive sen-
tences. State v. Lawrence, 98 Idaho 399, 565
P.2d 989 (1977).
Where a convicted forger was not sentenced
for that crime until after a subsequent convic-
tion and sentencing for rape, the district court
had authority to impose a sentence for the
forgery conviction which was to run consecu-
tively to the sentence for rape. State v.
Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).
Where the four-year sentences imposed on
each of two convictions for assault with a
deadly weapon were within the statutory lim-
its and the defendant's FBI record indicated
that he had committed a number of offenses
in various other states, the trial court did not
abuse its discretion in ordering that the sen-
tences run consecutively. State v. Thomas, 98
Idaho 623, 570 P.2d 860 (1977).
Where a defendant stated that as soon as
he got out on parole he would be "as bad or
worse" than he was at time of sentencing, the
trial court did abuse its discretion in ordering
that sentences for robbery and assault with a
deadly weapon should run consecutively and
commence at the expiration of the 29-year
sentence the defendant was then serving.
State v. Jagers, 98 Idaho 779, 572 P.2d 882
(1977).
The imposition of consecutive sentences is
authorized and made discretionary by this
section; and, the exercise of that discretion
will not be disturbed on appeal unless it has
been abused. State v. Lloyd, 104 Idaho 397,
659 P.2d 151 (Ct. App. 1983).
A district court possesses inherent author-
ity to impose consecutive sentences for multi-
ple offenses. State v. Lee, 111 Idaho 489, 725
P.2d 194 (Ct. App. 1986).
nal Law,

1582-1588.
18-309. Computation of term of imprisonment.
In computing the
term of imprisonment, the person against whom the judgment was entered,
shall receive credit in the judgment for any period of incarceration prior to
entry of judgment, if such incarceration was for the offense or an included
offense for which the judgment was entered. The remainder of the term
commences upon the pronouncement of sentence and if thereafter, during
such term, the defendant by any legal means is temporarily released from
such imprisonment and subsequently returned thereto, the time during
which he was at large must not be computed as part of such term. [I.C.,
18-309, as added by 1972, ch. 336, 1, p. 844; am. 1972, ch. 381, 7, p.
1102; am. 1975, ch. 201, 1, p. 559; am. 1996, ch. 168, 1, p. 552.]
S.L. 1972, ch. 336, 1 restored the subject
matter contained in the section as it existed
herein as
18-401.
Section 2 of S.L. 1975, ch. 201 provided that
the act should take effect on and after July 1,
1975.
Cited in: Territory v. Guthrie, 2 Idaho
(Hasb.) 432, 17 P. 39 (1888); State v.
Woodman, 116 Idaho 716, 779 P.2d 30 (Ct.
App. 1989); State v. Drennen, 122 Idaho 1019,
842 P.2d 698 (Ct. App. 1992); State v. Roy, 127
Idaho 228, 899 P.2d 441 (1995); State v. Lively,
131 Idaho 279, 954 P.2d 1075 (Ct. App. 1998).
Analysis
Appeal.
Applicability.
Confinement out-of-state.
Entitlement to credit for time served.
Federal charges.
Multiple courts.
Escapee at large.
Lenity.
Presentence confinement.
Probation.
Retained jurisdiction confinement.
Sentence reduction.
Appeal.
A claim that credit for prejudgment incar-
ceration was not properly given is a claim that
the sentence is illegal, since the sentence
would have been imposed in violation of this
section, and defendant's motion filed two-and-
one-half years after imposition of the judg-
ment was timely and was properly considered
on the merits by the district court. State v.
Rodriguez, 119 Idaho 895, 811 P.2d 505 (Ct.
App. 1991).
Applicability.
Where nothing in the record reflected incar-
ceration in Idaho or another state prior to
entry of judgment for the offense or for an
included offense upon which the appeal was
based, this section did not apply. State v.
West, 105 Idaho 505, 670 P.2d 912 (Ct. App.
1983).
Confinement Out-of-State.
Probation violator's arrest and confinement
in California, before he was delivered to the
Idaho authorities, had nothing to do with the
Idaho convictions; violator was not entitled to
credit for any time spent in California cus-
tody, other than the concurrent operation of
the Idaho and California sentences after his
probation was revoked in Idaho. State v. Teal,
105 Idaho 501, 670 P.2d 908 (Ct. App. 1983).
In sentencing, the district court properly
allowed credit only for time defendant served
in confinement related to this state's charges,
and not for time he served in another state on
other charges. State v. Moliga, 113 Idaho 672,
747 P.2d 81 (Ct. App. 1987).
The contention that delay by this state
effectively eliminated any possibility of defen-
dant's prison terms in this state and another
state running concurrently and resulting in
his gaining release without having to transfer
to this state to finish, or to receive parole on,
the remaining sentence in this state was
without merit, as concurrency of sentences is
controlled by statute and is not constitution-
ally required. State v. Moliga, 113 Idaho 672,
747 P.2d 81 (Ct. App. 1987).
Entitlement to Credit for Time Served.
An entitlement to credit under this section
depends upon the answer to a simple inquiry:
was the defendant's incarceration upon the
offense for which he was sentenced? If a
particular period of confinement served prior
to the imposition of sentence is not attribut-
able to the charge or conduct for which a
sentence is to be imposed, the offender is not
entitled to credit for such confinement; nei-
ther does the sentencing judge err by denying
credit under such circumstances. State v.
Hale, 116 Idaho 763, 779 P.2d 438 (Ct. App.
1989).
Where defendant's presentence incarcera-
tion was for the offense of intimidating a
witness and not for the original offense of
theft for which he was ultimately sentenced,
district court did not err in refusing to give
him credit for the presentence incarceration.
State v. Rodriguez, 119 Idaho 895, 811 P.2d
505 (Ct. App. 1991).
A defendant is entitled to credit for any
period of incarceration occurring prior to en-
try of judgment, and for any period subse-
quent to the judgment occurring while the
defendant still is under the jurisdiction of the
court. This section does not specify how the
recitation of this credit is to be documented,
i.e. by amending the judgment of conviction or
by separate order; the district court did not
err by implementing that credit by way of an
order, rather than an amended judgment,
directed to the Board of Correction. State v.
Villarreal, 126 Idaho 277, 882 P.2d 444 (Ct.
App. 1994).
Where defendant's incarceration in the
state penitentiary was attributable to his
previous conviction for attempted burglary,
defendant was not entitled to credit for incar-
ceration that occurred before he was even
charged with the infamous crime against na-
ture offense, and such credit was not allowed
on resentencing. State v. Brashier, 127 Idaho
730, 905 P.2d 1039 (Ct. App. 1995). See also
State v. Brashier, 130 Idaho 112, 937 P.2d 424
(Ct. App. 1997).
If a particular period of confinement served
prior to the imposition of sentence is not
attributable to the charge or conduct for
which the new sentence is to be imposed, the
offender is not entitled to credit for such
confinement. State v. Brashier, 130 Idaho 112,
937 P.2d 424 (Ct. App. 1997).
Under the facts of this case, defendant's
incarceration was not attributable to the
charge of infamous crime against nature until
he was initially sentenced for that crime.
State v. Brashier, 130 Idaho 112, 937 P.2d 424
(Ct. App. 1997).
Federal Charges.
Defendants were not'entitled to credit on
their state sentences for the time they spent
in the custody of federal authorities awaiting
disposition of unrelated federal charges, nor
entitled to credit on their state sentences for
the time they served on the federal sentences
while in the custody of federal authorities.
State v. Dorr, 120 Idaho 441, 816 P.2d 998 (Ct.
App. 1991).
During the time defendants were in the
temporary custody of county they were not
denied their liberty due to pending state
bombing charges, because although they were
awaiting disposition of those charges, their
liberty already had been denied by the federal
courts by virtue of the federal sentences im-
posed on them; therefore, they were not enti-
tled to credit on their state sentences for the
time they served in temporary custody. State
v. Dorr, 120 Idaho 441, 816 P.2d 998 (Ct. App.
1991).
When a defendant is in violation of his
federal supervised release, the resulting im-
prisonment is attributable to the underlying
federal offense; therefore, because the twenty
months of federal incarceration was not at-
tributable to the state offense, the district
court properly denied defendant credit for his
incarceration in federal prison. State v.
Wilhelm, 135 Idaho 111, 15 P.3d 824 (Ct. App.
2000).
Multiple Courts.
A defendant is entitled to have the time he
has already served in confinement ascribed to
each charge upon which he receives a sen-
tence to be served concurrently, so that if for
some reason one of the charges becomes nul-
lified, the defendant is credited for the proper
amount of time on the other charge or
charges; however, this section does not allow
the defendant to receive credit for more time
than he has actually been in confinement, and
as a result, the Idaho Supreme Court has
adopted the policy that a defendant should
not be allowed to "pyramid" his time when
consecutive sentences on multiple counts are
imposed and therefore the same logic applies
to concurrent sentences. State v. Hernandez,
120 Idaho 785, 820 P.2d 380 (Ct. App. 1991).
Escapee at Large.
It is entirely illogical that a prisoner who
escapes from incarceration should be permit-
ted accrual of time toward his sentences while
he is at large. Chapa v. State, 115 Idaho 439,
767 P.2d 282 (Ct. App. 1989).
Lenity.
This section is not ambiguous so as to
require the application of the doctrine of len-
ity. State v. Hale, 116 Idaho 763, 779 P.2d 438
(Ct. App. 1989).
Presentence Confinement.
The legislative intent concerning time
spent in jail prior to sentencing was to credit
that time against the sentence; therefore, a
person sentenced prior to the enactment of
the crediting provision, but after the repeal of
the statute which made no allowance for
crediting, is entitled to have his sentence
reduced by the length of the pre-sentencing
incarceration. State v. Waller, 97 Idaho 377,
544 P.2d 1147 (1976).
Where defendant was convicted of volun-
tary manslaughter and sentenced to a term
not to exceed ten (10) years, defendant was
entitled to credit for time spent in pre-trial
confinement while awaiting trial on the homi-
cide charge as distinguished from time in jail
attributable to prior burglary conviction.
State v. Beer, 97 Idaho 684, 551 P2d 971
(1976).
A defendant who pleaded guilty to two
charges of second-degree burglary and was
sentenced to two consecutive five-year prison
terms could not correct the sentence to apply
the 383 days which he had spent in pre-trial
confinement to each sentence to give him an
aggregate credit of 766 days, since this section
does not reveal any legislative intent to per-
mit a defendant to pyramid the credit simply
because he was sentenced to consecutive
terms for separate crimes. State v. Hoch, 102
Idaho 351, 630 P.2d 143 (1981).
This section requires that the sentencing
judge give credit for presentence incarcera-
tion so as to reduce the convicted person's
sentence by the amount of time that person
has already spent in confinement, whether or
not the person is granted probation. Law v.
Rasmussen, 104 Idaho 455, 660 P.2d 67
(1983).
Where defendant was given maximum sen-
tence of five years for offenses of drunk driv-
ing and marijuana possession, and was not
given any reduction for presentence confine-
ment, the term of imprisonment imposed ex-
ceeded the statutory maximum. Law v.
Rasmussen, 104 Idaho 455, 660 P.2d 67
(1983).
The trial court did not err in granting the
defendant credit for time served in the county
jail prior to conviction solely on the petit theft
sentence and not also on the consecutive
burglary sentence; the legislature, in enacting
this section, did not intend that a defendant
be given credit more than once for time spent
in the county jail awaiting disposition of mul-
tiple and separate charges. Matthews v.
1987).
Defendant was entitled to credit for all time
served prior to being placed on probation.
State v. Banks, 121 Idaho 608, 826 P.2d 1320
(1992).
Pursuant to this section, prejudgment
"house arrest" does not constitute "incarcera-
tion," thus defendant did not receive sentenc-
ing credit for days served under house arrest.
State v. Climer, 127 Idaho 20, 896 P.2d 346
(Ct. App. 1995).
Defendant incarcerated for 104 days prior
to entry ofjudgment was entitled to sentenc-
ing credit. State v. Akin,
Idaho , 75 P.3d
214 (Ct. App. 2003).
Probation.
The district judge did not err in refusing to
give the defendant credit for time that he
spent on probation before the probation was
finally terminated. State v. Sutton, 113 Idaho
832, 748 P.2d 416 (Ct. App. 1987).
Time (34 days) which defendant spent in
jail, after imposition of sentence, was condi-
tion of probation not required to be credited
against sentence. State v. Banks, 121 Idaho
608, 826 P.2d 1320 (1992).
Defendant was not entitled to credit for the
182 days served after probation was ordered
regardless of whether it is viewed as pre-
judgment or post-judgment confinement, be-
cause it was a condition of probation and was
voluntarily accepted in order to obtain proba-
tion and a withheld judgment. State v. Buys,
129 Idaho 122, 922 P.2d 419 (Ct. App. 1996).
A defendant who chose, upon a probation
violation, to serve 365 days in jail as a term
and condition of probation in lieu of the pre-
viously suspended sentence of two years was
not entitled to a time served credit when the
defendant later violated probation again and
had the suspended sentence of two years
reinstated. State v. Jakoski, 132 Idaho 67, 966
P.2d 663 (Ct. App. 1998).
Retained Jurisdiction Confinement.
Time served while under the trial court's
retained jurisdiction, pursuant to
19-2601
should be credited towards sentence under
the terms of this section. State v. Machen, 100
Idaho 167, 595 P.2d 316 (1979).
Under this section, a defendant is entitled
to credit for any period of incarceration occur-
ring prior to entry of judgment and for any
period subsequent to the judgment occurring
while the defendant still is under the jurisdic-
tion of the court. State v. Chilton, 116 Idaho
274, 775 P.2d 166 (Ct. App. 1989).
Sentence Reduction.
The fact that probationer absconded from
supervision, failed to notify any authorities of
his whereabouts, and then committed a felony
in California would preclude any consider-
ation of sentence reduction. State v. Teal, 105
Idaho 501, 670 P.2d 908 (Ct. App. 1983).
18-310. Imprisonment
Effect on civil rights and offices.
(1) A
sentence of custody to the Idaho state board of correction suspends all the
civil rights of the person so sentenced including the right to refuse
treatment authorized by the sentencing court, and forfeits all public offices
and all private trusts, authority or power during such imprisonment:
provided that any such person may bring an action for damages or other
relief in the courts of this state or have an action brought against such
person; and provided further that any such person may lawfully exercise all
civil rights that are not political during any period of parole or probation,
except the right to ship, transport, possess or receive a firearm, and the right
to refuse treatment authorized by the sentencing court.
(2) Upon final discharge, a person convicted of any Idaho felony shall be
restored the full rights of citizenship, except that for persons convicted of
treason or those offenses enumerated in paragraphs (a) through
(jj)
of this
subsection the right to ship, transport, possess or receive a firearm shall not
be restored. As used in this subsection, "final discharge" means satisfactory
completion of imprisonment, probation and parole as the case may be.
(a) aggravated assault (18-905, 18-915, Idaho Code);
(b) aggravated battery (18-907, 18-915, Idaho Code);
(c) assault with intent to commit a serious felony (18-909, 18-915, Idaho
Code);
(d) battery with intent to commit a serious felony (18-911, 18-915, Idaho
Code);
(e) burglary (18-1401, Idaho Code);
(f) crime against nature (18-6605, Idaho Code);
(g)
domestic battery, felony (18-918, Idaho Code);
(h) enticing of children, felony (18-1509, Idaho Code);
(i) forcible sexual penetration by use of a foreign object (18-6608, Idaho
Code);
(j)
indecent exposure, felony (18-4116, Idaho Code);
(k) injury to child, felony (18-1501, Idaho Code);
(I) intimidating a witness, felony (18-2604, Idaho Code);
(m) lewd conduct with a minor or child under sixteen (18-1508, Idaho
Code);
(n) sexual abuse of a child under sixteen (18-1506, Idaho Code);
(o) sexual exploitation of a child (18-1507, Idaho Code);
(p)
felonious rescuing prisoners (18-2501, Idaho Code);
(q)
escape by one charged with, convicted of or on probation for a felony
(18-2505, Idaho Qode);
(r) unlawful possession of a firearm (18-3316, Idaho Code);
(s) degrees of murder (18-4003, Idaho Code);
(t) voluntary manslaughter (18-4006(1), Idaho Code);
(u) assault with intent to murder (18-4015, Idaho Code);
(v) administering poison with intent to kill (18-4014, Idaho Code);
(w) kidnapping (18-4501, Idaho Code);
(x) mayhem (18-5001, Idaho Code);
(y)
rape (18-6101, Idaho Code);
(z) male rape (18-6108, Idaho Code);
(aa) robbery (18-6501, Idaho Code);
(bb) ritualized abuse of a child (18-1506A, Idaho Code);
(cc) cannibalism (18-5003, Idaho Code);
(dd) felonious manufacture, delivery or possession with the intent to
manufacture or deliver, or possession of a controlled or counterfeit
substance (37-2732, Idaho Code);
(ee) trafficking (37-2732B, Idaho Code);
(ff) threats against state officials of the executive, legislative or judicial
branch, felony (18- 1353
A,
Idaho Code);
(gg)
unlawful discharge of a firearm at a dwelling house, occupied
building, vehicle or mobile home (18-3317, Idaho Code);
(hh) unlawful possession of destructive devices (18-3319, Idaho Code);
(ii) unlawful use of destructive device or bomb (18-3320, Idaho Code);
(jj)
attempt (18-306, Idaho Code), conspiracy (18-1701, Idaho Code), or
solicitation (18-2001, Idaho Code), to commit any of the crimes described
in paragraphs (a) through (ii) of this subsection.
(kk) The provisions of this subsection shall apply only to those persons
convicted of the enumerated felonies in paragraphs (a) through
(jj)
of this
subsection on or after July 1, 1991, except that persons convicted of the
felonies enumerated in paragraphs (s) and (t) of this subsection, for any
degree of murder or voluntary manslaughter, shall not be restored the
right to ship, transport, possess or receive a firearm regardless of the date
of their conviction if the conviction was the result of an offense committed
by use of a firearm.
(3)
A person not restored to the civil right to ship, transport, possess or
receive a firearm may make application to the commission of pardons and
parole to restore the civil right to ship, transport, possess or receive a
firearm. The commission shall not accept any such application until five (5)
years after the date of final discharge. The commission shall conduct the
proceeding upon such application pursuant to rules adopted in accordance
with the law. The commission shall not restore the right to ship, transport,
possess or receive a firearm to any person convicted of murder in the first
degree (18-4003, Idaho Code), murder in the second degree (18-4003, Idaho
Code), or any felony enumerated in paragraphs (a) through
(jj)
of subsection
(2) of this section, upon which the sentence was enhanced for the use of a
firearm during the commission of said felony.
(4) Persons convicted of felonies in other states or jurisdictions shall be
allowed to register and vote in Idaho upon final discharge which means
satisfactory completion of imprisonment, probation and parole as the case
may be. These individuals shall not have the right restored to ship,
transport, possess or receive a firearm, in the same manner as an Idaho
felon as provided in subsection (2) of this section. [I.C.,

18-310, as added
by 1972, ch.
336, 1, p. 844; am. 1981, ch. 182, 1, p. 318; am. 1982, ch.
368, 6, p. 919; am. 1991, ch. 202, 1, p. 480; am. 1993, ch. 120, 2, p. 308;
am. 1993, ch. 184, 1, p. 465; am. 1998, ch. 171, 1, p. 592; am. 2003, ch.
113, 1, p. 356; am. 2003, ch. 253, 1, p. 652; am. 2004, ch.
166, 1, p.
541.]
Compiler's notes. A former section, which which appear to be compatible and have been
comprised Cr. & P. 1864, 153; R.S., R.C., & compiled together.
C.L.,
7239; C.S.,
8611; I.C.A.,

17-310;
The 2003 amendment by ch. 113, 1, sub-
am. 1947, ch. 47, 1, p. 51, was repealed by
stituted
"18-1508"
for "18-1508(3),
(4), (5) and
S.L. 1971, ch. 143, 5, effective January 1, (6)" in subsection (2)(m).
1972, and substituted therefor was a section
The 2003 amendment by Ch. 253, 1,
comprising I.C.,

18-310, as added by 1971,
added the exception in subsection (2)(kk).
ch. 143,
This section was amended by two 1993 acts
effective _
ch. 120, 2, and ch. 184, 1, both effective
July 1, 1993
which do not appear to conflict

and have been compiled together,
The amendment by ch. 120, 2, near the
143,

5.
beginning of subsection (1) deleted "for any
This section was amended by two 2003 acts time less than for life" preceding "suspends all
the civil rights"; near the middle of subsection
(1) added "provided that any such person may
bring an action for damages or other relief in
the courts of this state or have an action
brought against such person; and" following
"power during such imprisonment:"; and
added "further" preceding "that any such per-
son".
The amendment by ch. 184, 1, near the
middle of subdivision (2)(a) added "unlawful
possession of a firearm (18-3316, Idaho
Code)," preceding "degrees of murder"; and
near the end of subdivision (2)(a) added "traf-
ficking (37-2732B, Idaho Code)," preceding "or
any person convicted of an attempt".
as
18-215.
as
5-230 and 3 contained a repeal.
act shall apply prospectively and retroactively
to all persons convicted of a felony, except
treason." Approved March 31, 1981.
in

18-312 and 18-3316.
Analysis
Application.
Inmate business activity.
Restrictions on convicted felons.
Application.
In appeal of habeas corpus petition for
relief from convictions for robbery and use of a
firearm in the commission of a felony, the
defendant failed to support his allegation of
an unconstitutional application of this section
with any explanation or argument of how this
section was applicable to his case. Potter v.
1988).
Inmate Business Activity.
The denial of inmate's request to attempt to
secure a publisher for his illustrated poetry
was constitutional because the regulatory
prohibition on inmate business activity is
reasonably related to the legitimate prison
security interests of the Idaho Department of
Corrections. Freeman v. State, 134 Idaho 481,
4 P.3d 1132 (Ct. App. 2000).
Restrictions on Convicted Felons.
The restrictions of Rules of Evidence, I.R.E.
Rule 609, Criminal Rules, I.C.R. Rules
32(b)(2) and 46(a)(7) and
19-2514 on con-
victed felons do not overcome the broad effect
of subsection (2) of this section restoring the
right of convicted felons upon final discharge,
and the attendant provisions of Idaho Const.,
art.
6, 3,
giving a discharged felon the right
to vote and subsection (2) of
2-209 giving
discharged felons the right to serve on a jury.
United States v. Gomez, 911 F.2d 219 (9th Cir.
1990).
Collateral References. 18 C.J.S., Con-
victs,

3-7.
Right in absence of express statutory au-
thorization, of one convicted of crime and
imprisoned or paroled, to prosecute civil ac-
tion. 74 A.L.R.3d 680.
Convict's capacity to make will. 84 A.L.R.3d
479.
18-311. Imprisonment for life
Effect on civil rights. [Repealed.]

which comprised (I.C., 18-311, as added by
1972, ch. 336, 1, p. 844; am. 1982, ch. 368,
7, p. 919), was repealed by S.L. 1993, ch.
120, 3, effective July 1, 1993.
A second former section, which comprised
Cr. & P. 1864, 153; R.S., R.C., & C.L.,
7240; C.S., 8612; I.C.A., 17-311, was
January 1, 1972. Athird former section which
comprised I.C.,
18-311, as added by 1971,
ch. 143, 1 was repealed by S.L. 1972, ch.
109, 1, effective April 1, 1972.
18-312. Convicts
Capacity as witnesses
Capacity to convey
property.
The provisions of the last two (2)

preceding sections must not
be construed to render the persons therein mentioned incompetent as
witnesses upon the trial of a criminal action or proceeding, or incapable of
making and acknowledging a sale or conveyance of property. [I.C.,

18-312,
as added by 1972, ch.
336, 1, p. 844.]
prior to its repeal.
victs,

3-5.
18-313. Protection of person of convict.

The person of a convict
sentenced to imprisonment in the state prison is under the protection of the
law, and any injury to his person, not authorized by law, is punishable in the
same manner, as if he were not convicted or sentenced. [I.C.,

18-313, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Collateral References. 60 Am. Jur. 2d,
7242; C.S., Penal and Correctional Institutions, 21.
8614; I.C.A.,

Mistreatment of prisoner as contempt. 40
A.L.R. 1278.
Prison conditions as amounting to cruel
and unusuai punishment. 51 A.L.R.3d 111.
18-314. Property of convict not forfeited.

No conviction of any
person for crime works any forfeiture of any property, except in cases in
which a forfeiture is expressly imposed by law; and all forfeitures to the
people of this state, in the nature of a deodand, or where any person shall
flee from justice, are abolished. [I.C.,

18-314, as added by 1972, ch. 336,
1, p.
844.]
Compiler's notes. Aformer section, which ch. 336, 1 in the same words as the section
comprised R.S., R.C., & C.L., 7243; C.S., prior to its repeal.
8615; I.C.A.,

victs
,
4.
18-315. Omission of public duty.
Every wilful omission to perform

any duty enjoined by law upon any public officer, or person holding any
public trust or employment, where no special provision shall have been
made for the punishment of such delinquency, is punishable as a misde-
meanor. [I.C.,

18-315, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which Collateral References. 63A Am. Jur. 2d,
6534; C.S., Public Officers and Employees, 412.
8202; I.C.A.,

17-1025, was repealed by
Conduct contemplated by statute which
S.L. 1971, ch. 143, 5,
effective January 1,
makes neglect of duty by public officer or
1972 and the present section added by S.L.
employee a punishable offense. 134 A.L.R.
1972, ch. 336 in the same words as the section
1250.
18-316. Neglect of duty by public administrator. [Repealed.]
Compiler's notes. Former 18-316, C.S., 8179; I.C.A., 17-1002, was repealed
which comprised I.C.,

18-316, as added by by S.L. 1971, ch. 143, 5, effective January 1,
1972, ch. 336, 1, p. 844, was repealed by 1972 and the present section added by S.L.
1972, ch. 336, 1 in the same words as the
Another former

18-316, which comprised
section prior to its repeal.
1881, p. 292, 5; R.S., R.C., & C.L., 6511;
18-317. Punishment of offenses for which no penalty is fixed.
When an act or omission is declared by a statute to be a public offense and

no penalty for the offense is prescribed in any statute, the act or omission is
punishable as a misdemeanor. [I.C.,
18-317, as added by 1972, ch. 336,
1, p. 844.]
61 ABANDONMENT OR NONSUPPORT OF WIFE OR CHILDREN 18-401
8203; I.C.A.,
S.L. 1971, ch. 143, 5, effective January 1,
Cross ref. Imprisonment for nonpayment
of fine,
18-303.
Punishment for common law offenses,

18-
303.
Punishment for felony where punishment
not prescribed,
18-112.
Punishment for misdemeanor where pun-
ishment not prescribed,
18-113.
CHAPTER 4
ABANDONMENT OR NONSUPPORT OF WIFE OR CHILDREN
SECTION.
18-401 . Desertion and nonsupport of children
or spouse.
18-402. Orders providing for children and
wife upon violation of preced-
ing section.
18-403. Abandonment or nonsupport prima
facie wilful.
18-404. Proceedings upon violation of provi-
sional order

Disposition of
proceeds of forfeited recogni-
zance.
18-405. Rules of evidence.
18-406
18-410. [Repealed.]
18-401. Desertion and nonsupport of children or spouse.
Every-
person who:
(1) Having any child under the age of eighteen (18) years dependent upon
him or her for care, education or support, deserts such child in any manner
whatever, with intent to abandon it;
(2) Willfully omits, without lawful excuse, to furnish necessary food,
clothing, shelter, or medical attendance for his or her child or children, or
ward or wards; provided however, that the practice of a parent or guardian
who chooses for his child treatment by prayer or spiritual means alone shall
not for that reason alone be construed to be a violation of the duty of care to
such child;
(3) Having sufficient ability to provide for a spouse's support, or who is
able to earn the means for such spouse's support, who willfully abandons
and leaves a spouse in a destitute condition, or who refuses or neglects to
provide such spouse with necessary food, clothing, shelter, or medical
attendance, unless by the spouse's misconduct he or she is justified in
abandoning him or her;
Shall be guilty of a felony and shall be punishable by a fine of not more than
five hundred dollars ($500), or by imprisonment for not to exceed fourteen
(14) years, or both. [I.C.,

18-401, as added by 1972, ch. 336, 1, p. 844;
am. 1972, ch. 381, 8, p. 1089; am. 2000, ch. 294, 1, p. 1008.1
comprised 1923, ch. 190, 1, p. 297; am.
1931, ch. 112, 1, p. 193; I.C.A., 17-1901;
am. 1953, ch.
34, 1, p. 51, was repealed by
comprising I.C., 18-401, as added by 1971,
ch. 143, 1. However, the latter section was
S.L. 1972, ch. 336, 1 restored the subject
matter contained in the section prior to its
repeal by S.L. 1971, ch. 143, 5.
as
18-309 and 9 repealed
18-1203.
Cross ref. Adoption, 16-1501, et seq.
Contributing to the delinquency of a minor,
44-1307.
Employment or permitting of a child in
violation of child labor laws,
44-1305.
Falsely swearing to child's age, perjury,
44-1305.
Intoxicants, disposing to a minor, felony,
23-603.
Mandatory income withholding for child
support,

32-1201
32-1217.
Necessaries, parents liability for,
32-
1003.
Parent and child,

32-1001
32-1008A.
Parent and child relationship, proceedings
for termination of, disclosure of information
and records a misdemeanor,
16-2013.
Parent responsibility act,
32-1301.
Prostitution, sending minor to house of or
employing minor therein a misdemeanor,
44-1307.
Reciprocal duties of support,
32-1002.
Theatrical performance, employment of a
child in, misdemeanor,
44-1306.
Uniform child custody jurisdiction and en-
forcement act,
32-11-101 32-11-405.
Cited in: State, Dep't of Health & Welfare
ex rel. Bowler v. Bowler, 116 Idaho 940, 782
P.2d 63 (Ct. App. 1989).
Analysis
Duty to support child.
Evidence.
In general.
Jurisdiction.
Prima facie case.
Wilfulness.
In a prosecution of defendant for nonsup-
port of his minor children, the trial court did
not abuse its discretion in allowing the com-
plaining witness to sit at the counsel table
with the prosecuting attorney. State v. Shaw,
96 Idaho 897, 539 P.2d 250 (1975).
Duty to Support Child.
It is the obligation of the father to support
his minor child. In re Wilson's Guardianship,
68 Idaho 486, 199 P.2d 261 (1948).
Upon entering a decree for divorce to the
wife, the trial court had authority to order the
husband, who had paid nothing for the sup-
port of his child between the separation of the
parties and the trial on the ground that it was
not his child, to pay a certain sum to the wife
for support of the child in such interval. Voss
v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).
Evidence.
In the prosecution of defendant for nonsup-
port of his three minor children, testimony of
a state's witness that he had called an insur-
ance company and had been told by an anon-
ymous agent that defendant had received
payment on a life insurance policy after the
death of an older son was hearsay and admis-
sion of the testimony over defendant's objec-
tion was error. State v. Shaw, 96 Idaho 897,
539 P.2d 250 (1975).
In General.
The obligation of a father to support his
children is statutory; therefore, it stands on
an equal with a claim reduced to judgment.
Petty v. Petty, 66 Idaho 717, 168 P2d 818
(1946).
Paragraph (2) does not require that a valid
child support order be the basis for a criminal
prosecution and such prosecution is not con-
tingent on the defendant's marital status.
State v. Beorchia, 135 Idaho 875, 26 P3d 603
(Ct. App. 2001).
Jurisdiction.
Where defendant was residing in Nevada at
the times relevant to a charge of nonsupport
of his minor children, the Idaho court had
jurisdiction to try defendant. State v. Shaw,
96 Idaho 897, 539 P.2d 250 (1975).
Prima Facie Case.
Since wilfulness of a failure to provide sup-
port for minor children is presumed by stat-
ute ( 18-403), in order to establish a prima
facie case, the state need only establish the
venue of the action, its timeliness, and proof
of failure to provide. State v. Shaw, 96 Idaho
897, 539 P2d 250 (1975).
Wilfulness.
The connection between defendant's failure
to support his minor children and the ulti-
mate fact of wilfulness of such nonsupport
was sufficient to justify a jury instruction on
the presumption of wilfulness; but, where
defendant challenged the wilfulness of his
failure to support, the factual issues of
whether defendant had raised a reasonable
doubt as to his ability to provide and the
wilful nature of his nonsupport were for res-
olution by the jury. State v. Shaw, 96 Idaho
897, 539 P.2d 250 (1975).
Desertion and Nonsupport,

1 and 2.
41 C.J.S., Husband and Wife,

242-246.
67A C.J.S., Parent and Child, 1 et seq.
Criminal responsibility of husband for
abandonment or nonsupport of wife who re-
fuses to live with him. 3 A.L.R. 107; 8 A.L.R.
1314.
Aiding and abetting abandonment of child,
criminal responsibility. 5 A.L.R. 786; 74
A.L.R. 1110; 131 A.L.R. 1322.
Vagrancy, abandonment of wife or child as.
14 A.L.R. 1485.
Adultery of wife as affecting criminal
charge of abandonment against husband. 17
A.L.R. 999.
Criminal liability of father for failure to
support child as affected by decree of divorce
or separation. 23 A.L.R. 864.
"Infamous offense," failure to support wife
63 ABANDONMENT OR NONSUPPORT OF WIFE OR CHILDREN 18-402
or children as, within constitutional or statu- fact that other persons supply his needs or are
tory provision in relation to indictment or able to do so, as affecting criminal responsi-
presentment by grand jury. 24 A.L.R. 1014. bility of parent under desertion or nonsupport
Criminal responsibility for abandonment or
statute. 131 A.L.R. 482.
nonsupport of children who are being cared
Criminal liability of father for desertion of
for by charitable institution. 24 A.L.R. 1075.
or failure to support child where divorce de-
Illegitimate child as within statute relating
cree awards custody to another. 73 A.L.R.2d
to duty to support child. 30 A.L.R. 1075; 99
960.
v! . l i c
Parent's desertion, abandonment, or failure
Extent or character of support content-
to minor' child as affecting right or
plated by statute making nonsupport of wife
measure f rec f wrongful death f
offense. 36 A.L.R. 866.
child 53 a L R 3d 566
Adopted child, abandonment of. 44 A.L.R.
__'
. ' ,
'
,*..,, . , .
g2Q
Who has custody or control of child within
Power to make abandonment of family a
ten
?
s
f
Penal statute punishing cruelty or
criminal offense. 48 A.L.R. 1193.
ne
S
lect b
?
one havin
S
custody or control. 75
Child's possession of independent means, or
A.L.K.dd 933.
18-402. Orders providing for children and wife upon violation of
preceding section.
In any case enumerated in the previous section, the

court may render one of the following orders:
1. Should a fine be imposed it may be directed by the court to be paid in
whole or in part to the wife, or to the guardian or to the custodian ofthe child
or children, or to an individual appointed by the court as trustee.
2. Before trial, or after conviction, with the consent of the defendant, the
court, in its discretion, having regard to the circumstances and to the
financial ability or earning capacity of the defendant, shall have the power
to make an order which shall be subject to change by it from time to time as
circumstances may require, directing the defendant to pay a certain sum
weekly during such time as the court may direct, to the wife or to the
guardian, or custodian of the minor child or children, or to an individual
appointed by the court and to release the defendant from custody or
probation during such time as the court may direct upon his or her entering
into a recognizance, with or without sureties, in such sum as the court may
direct. The condition of the recognizance to be such that if the defendant
shall make his or her appearance in court whenever ordered to do so, and
shall further comply with the terms of the order and of any subsequent
modification thereof, then the recognizance shall be void, otherwise to
remain in full force and effect.
3. When conviction is had and a sentence to imprisonment in the county
jail is imposed, the court may direct that the person so convicted shall be
compelled to work upon the public roads or highways or any other public
work in the county where such conviction is had, during the time of such
sentence. And it shall be the duty of the county commissioners or of the
highway district board within the county where such conviction and
sentence is had and where such work is performed by persons under
sentence to the county jail to allow an order of payment out of the current
fund or maintenance road fund, to the wife, or to the guardian, or custodian
of the child or children, or to an individual appointed by the court as trustee,
at the end of each calendar month, for the support of such wife, or child or
children, ward or wards, a sum not to exceed one and fifty one-hundredths
dollars for each day's work of such person. [I.C.,

18-402, as added by 1972,
ch.
336, 1, p. 844.]
comprised 1923, ch. 190, 2, p. 297; I.C.A.,
17-1902, was repealed by S.L. 1971, ch.

143, 5, effective January 1, 1972, and sub-
stituted therefor was a section comprising
I.C.,
18-402, as added by 1971, ch. 143,
1.
Cross ref. Wages of parents, assignment
for child support,
8-704.
Cited in: State v. Brower, 122 Idaho 450,
835 P.2d 685 (Ct. App. 1992).
Although this section provides the sentenc-
ing court with sentencing alternatives to im-
prisonment in cases involving felony nonsup-
port of children, these alternatives are
discretionary in nature, and a sentencing
court is not required to recite or check off the
sentencing guidelines during sentencing, nor
is it even required to give its reasons for
imposing the sentence. State v. Beorchia, 135
Idaho 875, 26 P.3d 603 (Ct. App. 2001).
18-403. Abandonment or nonsupport prima facie wilful.
Proof
of the abandonment or nonsupport of a wife, or the desertion of a child or
children, ward or wards, or the omission to furnish necessary food, clothing,
shelter, or medical attendance for a child or children, ward or wards, is
prima facie evidence that such abandonment or nonsupport, or omission to
furnish food, clothing, shelter, or medical attendance is wilful. [I.C.,

18-
403, as added by 1972, ch. 336, 1, p. 844.]

I.C., 18-403, as added by 1971, ch. 143, 1.
ch. 336,
1 in the same words as the section
Analysis
Jury issue.
Prima facie case.
ness of his failure to support, the factual
issues of whether defendant had raised a
reasonable doubt as to his ability to provide
and the wilful nature of his nonsupport were
for resolution by the jury. State v. Shaw, 96
Idaho 897, 539 P.2d 250 (1975).
Prima Facie Case.
Since this section establishes the inference
of the wilful nature of a failure to provide
support for minor children, in order to estab-
lish a prima facie case the state need only
establish the venue of the action, its timeli-
ness, and proof of failure to provide. State v.
Shaw, 96 Idaho 897, 539 P.2d 250 (1975).
Jury Issue.
Where a defendant challenged the wilful-
18-404. Proceedings upon violation of provisional order
Dis-
position of proceeds of forfeited recognizance.

If the court be
satisfied by the information or complaint and due proof, under oath, that at
any time the defendant has violated the terms of such order, it may
forthwith proceed with the trial of the defendant under the original
indictment or information, or sentence him under the original conviction, or
enforce the original sentence, as the case may be. In case of forfeiture of a
recognizance and enforcement thereofby execution, the sum recovered may,
in the discretion of the court, be paid in whole or in part to the wife or to the
guardian or custodian of the minor child or children. [I.C.,

18-404, as
added by 1972, ch. 336, 1, p. 844.]
65 ABDUCTION 18-501
stituted therefor was a section comprising and the present section added by S.L. 1972,
I.C.,
18-404, as added by 1971, ch. 143, 1. ch. 336, 1 in the same words as the section
However, the latter section was repealed by prior to its repeal by S.L. 1971, ch. 143, 5.
18-405. Rules of evidence.

No other evidence shall be required to
prove marriage of such husband and wife, or that such person is the lawful
father or mother of such child or children, than is or shall be required to
prove such facts in a civil action. In all prosecutions under this act, any
existing provisions of law prohibiting the disclosure of confidential commu-
nications between husband and wife, shall not apply, and both husband and
wife shall be competent witnesses to testify for or against each other to any
and all relevant matters, including the fact of such marriage and the
parentage of such child or children. Proof of the desertion of such wife, child
or children in destitute or necessitous circumstances or of neglect to furnish
such wife, child, or children necessary and proper food, clothing or shelter is
prima facie evidence that such desertion or neglect is wilful. [I.C.,

18-405,
336, 1, p. 844.1
Compiler's notes. A former section, which Jury Issue.
comprised 1923, ch. 190, 5, p. 297; I.C.A., Where a defendant challenged the wilful-
17-1905, was repealed by S.L. 1971, ch. ness of his failure to support, the factual
issues of whether defendant had raised a
reasonable doubt as to his ability to provide
I.C.,

18-405, as added by 1971, ch. 143,
1.
and the wilful nature of his nonsupport were
for resolution by the jury. State v. Shaw, 96
Idaho 897, 539 P.2d 250 (1975).
Prima Facie Case.
prior to its repeal by S.L. 1971, ch. 145,

5.
since this section establishes the inference
Cross ref. Generally husband or wife may
of the wilful nature of a failure to provide
not testify against one another,

19-3002.
SU
pp
rt for minor children, in order to estab-
Analysis
ns
^
a
P
ri ma facie case the state need only
establish the venue of the action, its timeli-
Jury issue. ness, and proof of failure to provide. State v.
Prima facie case. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).
18-406
18-410. Responsibility of persons for criminal conduct
Determination. [Repealed.]
Compiler's notes. These sections, com- 1971, ch. 143, 1, p. 630 were repealed by
prising I.C.,

18-406
18-410, as added by S.L. 1972, ch. 109, 1, effective April 1, 1972.
CHAPTER 5
ABDUCTION
SECTION.
18-501
18-506. [Repealed.]
18-501. Abduction for marriage or defilement. [Repealed.]
Compiler's notes. This section, which A former 18-501, which comprised Cr. &
comprised I.C., 18-501, as added by 1972, P. 1864, 53; R.S., R.C., & C.L., 6769; C.S.,
ch. 336, 1, p. 844, was repealed by S.L. 8266; I.C.A., 17-1605, was repealed by
1981, ch. 319, 1. S.L. 1971, ch. 143, 5, effective January 1,
1972, and substituted therefor was a section repealed by S.L. 1972, ch. 109, 1, effective
comprising I.C., 18-501, as added by 1971, April 1, 1972.
ch. 143,
18-502

18-506. Criminal solicitation and conspiracy
Possess-
ing instruments of crime
Weapons. [Repealed.]
Compiler's notes. These sections, which by 1971, ch. 143, 1, p. 630, were repealed by
comprised I.C.,
18-502
18-506, as added S.L. 1972, ch. 109, 1, effective April 1, 1972.
CHAPTER 6
ABORTION AND CONTRACEPTIVES
SECTION. SECTION.
18-601. Interpretation of state statutes and 18-608A. Persons authorized to perform
the state constitution. abortions.
18-602. Legislative findings and intent. 18-609. Physicians and hospitals not to incur
18-603. Advertising medicines or other civil liability

Consent to
means for preventing concep- abortion
Notice.
tion, or facilitating miscar- 18-609A. Consent required for abortions for
riage or abortion. minors.
18-604. Definitions. 18-610. Refusal to consent by pregnant
18-605. Unlawful abortions

Procurement woman
Effect.
of Penalty. 18-611. [Repealed.]
18-606. Unlawful abortions Accomplice or 18-612. Refusal to perform abortions
Phy-
accessory
Submitting to

sicians and hospitals not lia-
Penalty. ble.
18-607. Abortifacients
Unauthorized sale. 18-613. Partial-birth abortions prohibited.

18-608. Certain abortions permitted
Con- 18-614. Defenses to prosecution.

ditions and guidelines. 18-615. Severability.
18-601. Interpretation of state statutes and the state constitu-
tion.
The supreme court of the United States having held in the case of
"Planned Parenthood v. Casey" that the states have a "profound interest" in
preserving the life of preborn children, Idaho hereby expresses the funda-
mental importance of that "profound interest" and it is hereby declared to be
the public policy of this state that all state statutes, rules and constitutional
provisions shall be interpreted to prefer, by all legal means, live childbirth
over abortion. [I.C.,
18-601, as added by 2001, ch. 273, 1, p. 996.]
18-601 was Casey, referenced in this section, is reported
amended and redesignated as
18-602 by at 505 U.S. 833, 120 L.Ed.2d 674, 112 S.Ct.
S.L. 2001, ch. 273,
2. 2791 (1992).
Planned Parenthood of Southeastern PA v.
18-602. Legislative findings and intent.
(1) The legislature finds:

(a) That children have a special place in society that the law should
reflect;
(b) That minors too often lack maturity and make choices that do not
include consideration of both immediate and long-term consequences;
(c) That the medical, emotional and psychological consequences of abor-
tion and childbirth are serious and can be lasting, particularly when the
patient is immature;
(d) That the capacity to become pregnant and the capacity for mature
67 ABORTION AND CONTRACEPTIVES 18-603
judgment concerning the wisdom of bearing a child or of having an
abortion are not necessarily related;
(e) That parents, when aware that their daughter is pregnant or has had
an abortion are in the best position to ensure that she receives adequate
medical attention during her pregnancy or after her abortion;
(f) That except in rare cases, parents possess knowledge regarding their
child which is essential for a physician to exercise the best medical
judgment for that child;
(g)
That when a minor is faced with the difficulties of an unplanned
pregnancy, the best interests of the minor are always served when there
is careful consideration of the rights of parents in rearing their child and
the unique counsel and nurturing environment that parents can provide;
(h) That informed consent is always necessary for making mature health
care decisions.
(2) It is the intent of the legislature in enacting section 18-609A, Idaho
Code, to further the following important and compelling state interests
recognized by the United States supreme court in:
(a) Protecting minors against their own immaturity;
(b) Preserving the integrity of the family unit;
(c) Defending the authority of parents to direct the rearing of children
who are members of their household;
(d) Providing a pregnant minor with the advice and support of a parent
during a decisional period;
(e) Providing for proper medical treatment and aftercare when the life or
physical health of the pregnant minor is at serious risk in the rare
instance of a sudden and unexpected medical emergency. [I.C.,

18-601,
7, 1, p. 10; am. and redesig. 2001, ch. 273, 2, p.
996.]
Compiler's notes. This section was for- R.C., & C.L., 6795; C.S., 8282; I.C.A.,
merly compiled as
18-601.
17-1811, was transferred to I.C.,
18-1506,
A former section, which comprised Cr. & P. effective January 1, 1972, and substituted
1864, 42; R.S., R.C., & C.L., 6794; C.S., therefor was a section comprising I.C.,
18-
8281; I.C.A., 17-1810, was transferred to 602, as added by 1971, ch. 143, 1. However,
I.C., 18-1505, effective January 1, 1972, the latter section was repealed by S.L. 1972,
and substituted therefor was a section com- ch. 109, 1, effective April 1, 1972, and
prising I.C., 18-601, as added by 1971, ch. substituted therefor was a section comprising
143, 1. However, the latter section was I.C., 18-602, as added by 1972, ch. 336, 1,
repealed by S.L. 1972, ch. 109, 1, effective p. 844, which was repealed in turn by S.L.
April 1, 1972, and substituted therefor was a 1973, ch. 197, 2. For present law see
18-
section comprising I.C., 18-601, as added by 606.
1972, ch. 336, 1, p. 844, which was repealed Section 2 of S.L. 2000, ch. 7 is compiled as
in turn by S.L. 1973, ch. 197, 2. For present
18-604.
law see
18-605. Section 3 of S.L. 2001, ch. 273 is compiled
A former section, which comprised R.S., as 56-209c.
18-603. Advertising medicines or other means for preventing
conception, or facilitating miscarriage or abortion.
Every person,
except licensed physicians of this state and those licensed or registered
health care providers hereinafter referred to acting under their direct
supervision or medical order, who wilfully publishes any notice or adver-
tisement of any medicine or means for producing or facilitating a miscar-
riage or abortion, or for the prevention of conception, or who offers his
services by any notice, advertisement, or otherwise to assist in the accom-
plishment of any such purpose, is guilty of a felony. A licensed physician or
licensed or registered health care provider acting at his direction or medical
order may lawfully provide examinations, prescriptions, devices and infor-
mational materials regarding prevention of conception to any person re-
questing the same who, in the good faith judgment of the physician or such
provider, is sufficiently intelligent and mature to understand the nature and
significance thereof. [I.C.,

18-603, as added by 1972, ch. 336,
1
p. 844;
am. 1974, ch.
69, 1, p. 1150.]
Compiler's notes. A former section, which take effect on and after April 1, 1972.
comprised R.S., R.C., & C.L., 6843; C.S., Sec. to sec. ref. This section is referred to
8306; I.C.A.,
17-2103, was repealed by in
18-613.
S.L. 1971, ch. 143, 5, effective January
1, Cross ref. Contraceptive and prophylac-
1972, and substituted therefor was a section tics, violation of law governing, misdemeanor,
39-804.
ch. 143, 1. However, the latter section was Penalty for felony when not otherwise pro-
repealed by S.L. 1972, ch. 109, 1, effective vided,

18-112.
April 1, 1972 and the present section added by Collateral References. 1 Am. Jur. 2d,
S.L. 1972, ch. 336, 1 restored the subject Abortion,
12.
matter contained in the section as it existed 1 C.J.S., Abortion,

1
3.
prior to its repeal by S.L. 1971, ch. 143, 5. Validity of regulations as to contraceptives
Section 14 of S.L. 1972, ch. 336 declared an or dissemination of birth control information,
emergency and provided that the act should 96 A.L.R.2d 955.
18-604. Definitions.
As used in this act:

(1) "Abortion" means the intentional termination ofhuman pregnancy for
purposes other than delivery of a viable birth.
(2) "First trimester of pregnancy" means the first thirteen (13) weeks of a
pregnancy.
(3) "Hospital" means an acute care, general hospital in this state, licensed
as provided in chapter 13, title 39, Idaho Code.
(4) "Informed consent" means a voluntary and knowing decision to
undergo a specific procedure or treatment. To be voluntary, the decision
must be made freely after sufficient time for contemplation and without
coercion by any person. To be knowing, the decision must be based on the
physician's accurate and substantially complete explanation of each fact
pertinent to making the decision. Facts pertinent to making the decision
shall include, but not be limited to:
(a) A description of any proposed treatment or procedure;
(b) Any reasonably foreseeable complications and risks to the patient
from such procedure, including those related to future reproductive
health; and
(c) The manner in which such procedure and its foreseeable complica-
tions and risks compare with those of each readily available alternative to
such procedure, including childbirth and adoption.
The physician must provide the information in terms which can be under-
stood by the person making the decision, with consideration of age, level of
maturity and intellectual capability.
(5)
"Physician" means a person licensed to practice medicine and surgery
or osteopathic medicine and surgery in this state as provided in chapter
18,
title 54, Idaho Code.
(6)
"Second trimester of pregnancy" means that portion of a pregnancy
following the thirteenth week and preceding the point in time when the
fetus becomes viable, and there is hereby created a legal presumption that
the second trimester does not end before the commencement of the twenty-
fifth week of pregnancy, upon which presumption any licensed physician
may proceed in lawfully aborting a patient pursuant to section 18-608,
Idaho Code, in which case the same shall be conclusive and unrebuttable in
all civil or criminal proceedings.
(7)
"Third trimester of pregnancy" means that portion of a pregnancy
from and after the point in time when the fetus becomes viable.
(8) Any reference to a viable fetus shall be construed to mean a fetus
potentially able to live outside the mother's womb, albeit with artificial aid.
[1973, ch. 197, 3, p. 442; am. 2000, ch.
7, 2, p. 10.]
ch. 197, read: "The Supreme Court of the
United States having ruled that the several
states lack the power to prohibit the practice
of abortion or the commission thereof in the
fashion previously prescribed by the criminal
code of this state, and having specifically
stricken down as violative of the constitu-
tional right of privacy of the pregnant mother,
criminal and related abortion statutes of the
states of Georgia and Texas but reserving to
the state the power to provide some standards
and restrictions if they deem it appropriate to
do so, and appearing that, in the event of the
failure of this state to enact legislation regu-
lating and proscribing abortion under such
circumstances as it is within the power of the
state so to regulate and proscribe, there is an
immediate danger of widespread and undesir-
able abortion practices within the state, the
legislature deems it necessary and in the
public interest to provide standards and reg-
ulations and to define crimes with respect to
the general subject of abortion in the interest
of filling the voids and resolving the ambigu-
ities generated by the said recent decisions in
the Texas and Georgia cases, and in the
furtherance and preservation of the public
policy of this state in such matters. Without
condoning or approving abortion or the liber-
alization of abortion laws generally, nonethe-
less by this act the legislature of the state of
Idaho does express the policy of the state to
regulate and to prescribe the standards with
respect to the type of judgment, practice and
conduct that is implicit in the performance of
the abortions or the submission thereto."
comprised I.C., 18-604, as added by 1971,
ch. 143, 1, was repealed by S.L. 1972, ch.
The words "this act" refer to S.L. 1973, ch.
197, compiled as

18-604
18-608, 18-609,
18-610, and 18-612.
Section 2 of S.L. 1973, ch. 197 repealed
18-601 and 18-602, Idaho Code.

compiled as

18-602 and 18-608A, respec-
tively
in 18-613.
Cross ref. Department of Health and Wel-
fare funds used for abortion, when, 56-209c.
Induced abortion, reporting of to vital sta-
tistics unit,
39-261.
Opinions of Attorney General. The def-
inition of viability in
18-604 departs from
the definition provided by the United States
Supreme Court. Should a case arise under
this portion of the statute, a court might
conclude there is a difference between "a
realistic possibility" of maintaining and nour-
ishing a life outside the womb (the Supreme
Court definition) and a "potential" ability to
live outside the womb (the
18-604 defini-
tion). A broader definition of viability which
correspondingly narrows or restricts the
woman's ability to obtain an abortion prior to
viability conflicts with the Supreme Court's
past ruling. OAG 98-1.
Collateral References. 1 C.J.S., Abortion,
112.

Procurement of

Penalty.

(1) Every person not licensed or certified to provide health care in Idaho
who, except as permitted by this chapter, provides, supplies or administers
any medicine, drug or substance to any woman or uses or employs any
instrument or other means whatever upon any then-pregnant woman with
intent thereby to cause or perform an abortion shall be guilty of a felony and
shall be fined not to exceed five thousand dollars ($5,000) and/or imprisoned
in the state prison for not less than two (2) and not more than five (5) years.
(2)
Any person licensed or certified to provide health care pursuant to
title 54, Idaho Code, and who, except as permitted by the provisions of this
chapter, provides, supplies or administers any medicine, drug or substance
to any woman or uses or employs any instrument or other means whatever
upon any then-pregnant woman with intent to cause or perform an abortion
shall:
(a) For the first violation, be subject to professional discipline and be
assessed a civil penalty of not less than one thousand dollars
($1,000),
payable to the board granting such person's license or certification;
(b) For the second violation, have their license or certification to practice
suspended for a period of not less than six (6) months and be assessed a
civil penalty of not less than two thousand five hundred dollars
($2,500),
payable to the board granting such person's license or certification; and
(c) For each subsequent violation, have their license or certification to
practice revoked and be assessed a civil penalty of not less than five
thousand dollars
($5,000),
payable to the board granting such person's
license or certification.
(3) Any person who is licensed or certified to provide health care pursuant
to title 54, Idaho Code, and who knowingly violates the provisions of this
chapter is guilty of a felony punishable as set forth in subsection (1) of this
section, separate from and in addition to the administrative penalties set
forth in subsection (2) of this section. [1973, ch. 197, 4, p. 442; am. 2001,
ch.
277, 1, p. 1000.]
Compiler's notes. A former section, which required redrafting. Buchin v. Lance, 128
comprised I.C., 18-605, as added by 1971, Idaho 266, 912 P.2d 634 (1995).
ch. 143, 1, was repealed by S.L. 1972, ch.
Opinions of Attorney General. The pro-
visions of

31-2227, 31-2604 and 50-208A
are fully applicable to the provisions of this
as

18-609A.
section,
18-606 and
18-607 making cer-
tain violations criminal offenses. Thus, pros-
in

18-608 and 18-613.
ecutions for unlawful abortions under this
section and 18-606, which are declared to
be felonies, would be the responsibility of the
Where attorney general s short title felled
prosecuti attorney. 0AG 93-1.
In General
Where att
to capture the distinctive characteristics of
the proposed initiative in that it inaccurately
AU
C"ate
^
1
1
R
Q
efe
Q
r
c
enceS
'
1 Am
-
Jur< 2d
'
informed voters that the purpose of the initia-
Aboon
1,
*?-**>
tive was to create a law prohibiting post-
1 C- JS
>
Abortion,

112.
viability abortions, with exceptions, but, in
Necessity, to warrant conviction of abortion,
fact, did not create a new law but rather
that fetus be livin
at time of commission of
deleted an exception to the existing ban on
acts
- 16 A.L.R.2d 949.
post-viability abortions, added a new excep-
Pregnancy as element of abortion or homi-
tion to the ban, created new civil causes of
cide based thereon. 46 A.L.R.2d 1393.
action, new criminal liabilities and repealed
Availability of defense of entrapment where
existing criminal penalties against pregnant
accused denies participating at all in offense.
women who violated the chapter, the short 61 A.L.R.2d 677.
title was not the product of an analysis of the Right of action for injury to or death of
initiative that distinguished the initiative woman who consented to illegal abortion. 36
from existing abortion laws and, as such, it A.L.R.3d 630.
Entrapment defense in sex prosecutions. 12
A.L.R.4th 413.

Accomplice or accessory

Sub-
mitting to
Penalty.
Except as permitted by this act: (1) Every person

who, as an accomplice or accessory to any violation of section 18-605,
induces or knowingly aids in the production or performance of an abortion;
and
(2) Every woman who knowingly submits to an abortion or solicits of
another, for herself, the production of an abortion, or who purposely
terminates her own pregnancy otherwise than by a live birth, shall be
deemed guilty of a felony and shall be fined not to exceed five thousand
dollars ($5,000) and/or imprisoned in the state prison for not less than one
(1) and not more than five
(5)
years; provided, however, that no hospital,
nurse, or other health care personnel shall be deemed in violation of this
section if in good faith providing services in reliance upon the directions of
a physician or upon the hospital admission of a patient for such purpose on
the authority of a physician. [1973, ch. 197, 5, p. 442.]
Compiler's notes. A former section, which post-viability abortions, added a new excep-
comprised I.C., 18-606, as added by 1971, tion to the ban, created new civil causes of
ch. 143, 1, was repealed by S.L. 1972, ch. action, new criminal liabilities and repealed
existing criminal penalties against pregnant
women who violated the chapter, the short
197 compiled herein as
18-604

18-608,
title was not the product of an analysis of the
18-609, 18-610, and 18-612.
initiative that distinguished the initiative
from existing abortion laws and, as such, it
in
18-608 and 18-613
required redrafting. Buchin v. Lance, 128
Idaho 266, 912 P.2d 634 (1995).
In General. Opinions of Attorney General. The pro-
Where attorney general's short title failed visions of

31-2227, 31-2604 and 50-208A
to capture the distinctive characteristics of are fully applicable to the provisions of

18-
the proposed initiative*in that it inaccurately 605, this section and
18-607 making certain
informed voters that the purpose of the initia- violations criminal offenses. Thus, prosecu-
tive was to create a law prohibiting post- tions for unlawful abortions under Idaho
viability abortions, with exceptions, but, in Code
18-605 and this section, which are
fact, did not create a new law but rather declared to be felonies, would be the respon-
deleted an exception to the existing ban on sibility of the prosecuting attorney. OAG 93-1.
18-607. Abortifacients
Unauthorized sale.
A person who sells,

offers to sell, possesses with intent to sell, advertises, or displays for sale
anything specially designed to terminate a pregnancy, or held out by the
actor as useful for that purpose, commits a misdemeanor, unless:
(1) The sale, offer or display is to a physician or druggist or to an
intermediary in a chain of distribution to physicians or druggists; or
(2) The same is made upon prescription or order of a physician; or
(3) The possession is with intent to sell as authorized in paragraphs (1)
and (2) of this section; or
(4) The advertising is addressed to persons named in paragraph (1) of
this section and confined to trade or professional channels not likely to reach
the general public. [1973, ch. 197, 6, p. 442.]
Compiler's notes. A former section, which ch. 143, 1, was repealed by S.L. 1972, ch.
comprised I.C., 18-607, as added by 1971, 109, 1, effective April 1, 1972.
Opinions of Attorney General. The pro- tions for unlawful abortions under Idaho
visions of

31-2227, 31-2604 and 50-208A Code

18-605 and 18-606, which are de-
are fully applicable to the provisions of

18-
clared to be felonies, would be the responsi-
605, 18-606 and this section making certain
bilityof the prosecuting attorney. OAG 93-1.
violations criminal offenses. Thus, prosecu-
18-608. Certain abortions permitted

Conditions and guide-
lines.
The provisions of sections 18-605 and 18-606 shall not apply to and
neither this act, nor other controlling rule of Idaho law, shall be deemed to
make unlawful an abortion performed by a physician if:
(1)
When performed upon a woman who is in the first trimester of
pregnancy, the same is performed following the attending physician's
consultation with the pregnant patient and a determination by the physi-
cian that such abortion is appropriate in consideration of such factors as in
his medical judgment he deems pertinent, including, but not limited to
physical, emotional, psychological and/or familial factors, that the child
would be born with some physical or mental defect, that the pregnancy
resulted from rape, incest or other felonious intercourse, and a legal
presumption is hereby created that all illicit intercourse with a girl below
the age of sixteen (16) shall be deemed felonious for purposes of this section,
the patient's age and any other consideration relevant to her well-being or
directly or otherwise bearing on her health and, in addition to medically
diagnosable matters, including but not limited to such factors as the
potential stigma of unwed motherhood, the imminence of psychological
harm or stress upon the mental and physical health of the patient, the
potential stress upon all concerned of an unwanted child or a child brought
into a family already unable, psychologically or otherwise, to care for it,
and/or the opinion of the patient that maternity or additional offspring
probably will force upon her a distressful life and future; the emotional or
psychological consequences of not allowing the pregnancy to continue, and
the aid and assistance available to the pregnant patient if the pregnancy is
allowed to continue; provided, in consideration of all such factors, the
physician may rely upon the statements of and the positions taken by the
pregnant patient, and the physician shall not be deemed to have held
himself out as possessing special expertise in such matters nor shall he be
held liable, civilly or otherwise, on account of his good faith exercise of his
medical judgment, whether or not influenced by any such nonmedical
factors. Abortions permitted by this subsection shall only be lawful if and
when performed in a hospital or in a physician's regular office or a clinic
which office or clinic is properly staffed and equipped for the performance of
such procedures and respecting which the responsible physician or physi-
cians have made satisfactory arrangements with one or more acute care
hospitals within reasonable proximity thereof providing for the prompt
availability of hospital care as may be required due to complications or
emergencies that might arise.
(2) When performed upon a woman who is in the second trimester of
pregnancy, the same is performed in a hospital and is, in the judgment of the
attending physician, in the best medical interest of such pregnant woman,
considering those factors enumerated in subsection (1) of this section and
such other factors as the physician deems pertinent.
(3) When performed upon a woman who is in the third trimester of
pregnancy the same is performed in a hospital and, in the judgment of the
attending physician, corroborated by a like opinion of a consulting physician
concurring therewith, either is necessary for the preservation of the life of
such woman or, if not performed, such pregnancy would terminate in birth
or delivery of a fetus unable to survive. Third trimester abortions under-
taken for preservation of the life of a pregnant patient, as permitted by this
subsection, shall, consistent with accepted medical practice and with the
well-being and safety of such patient, be performed in a manner consistent
with preservation of any reasonable potential for survival of a viable fetus.
[1973, ch. 197, 7, p. 442.1
Compiler's notes. The words "this act" mester abortions be performed in a hospital,
refer to S.L. 1973, ch. 197 compiled herein as is unconstitutional. OAG 93-1.
18-604
18-608, 18-609, 18-610, and 18- While this section contains an exception to
612. the third-trimester abortion prohibition if the
Sec. to sec. ref. This section is referred to life of the mother is endangered, it does not,
in

18-604 and 18-609. however, contain an exception if her health is
Opinions of Attorney General. The leg- jeopardized. The omission of any health ex-
islative intent and purpose behind
18-609 ception in Idaho's ban on third-trimester
was to provide legal protection from civil abortions creates a constitutional problem,
liability for physicians performing abortions OAG 98-1.
in compliance with both this section and
18- The definition of viability in
18-604 de-
609. Further, it was not the intent and pur- parts from the definition provided by the
pose of the legislature to impose criminal United States Supreme Court. Should a case
sanctions against a physician for non-compli- arise under this portion of the statute, a court
ance with

18-609. OAG 93-1. might conclude there is a difference between
The United States Supreme Court's recent "a realistic possibility" of maintaining and
rejection of Roe v. Wade's (410 U.S. 113 nourishing a life outside the womb (the Su-
(1973)) trimester approach to abortion issues preme Court definition) and a "potential" abil-
in Planned Parenthood
of
Southeastern Penn- ity to live outside the womb (the
18-604
sylvania v. Casey, 112 S. Ct. 2791 (1992) does definition). A broader definition of viability
not affect the constitutionality of this section. which correspondingly narrows or restricts
However, regardless of*whether a trimester or the woman's ability to obtain an abortion
viability approach is used, subdivision (2) of prior to viability conflicts with the Supreme
this section, which requires that second-tri- Court's past ruling. OAG 98-1.
18-608A. Persons authorized to perform abortions.
It is unlaw-
ful for any person other than a physician to cause or perform an abortion.
[I.C.,

7, 3, p. 10.]
18-604 and
18-609. Physicians and hospitals not to incur civil liability

Consent to abortion

Notice.

(1) Any physician may perform an
abortion not prohibited by this act and any hospital or other facility
described in section 18-608, Idaho Code, may provide facilities for such
procedures without, in the absence of negligence, incurring civil liability
therefor to any person including, but not limited to, the pregnant patient
and the prospective father of the fetus to have been born in the absence of
abortion, if informed consent for such abortion has been duly given by the
pregnant patient.
(2) In order to provide assistance in assuring that the consent to an
abortion is truly informed consent, the director of the department of health
and welfare shall publish, after consultation with interested parties, easily
comprehended printed material to be made available at the expense of the
physician, hospital or other facility providing the abortion, and which shall
contain the following:
(a) Descriptions of the services available to assist a woman through a
pregnancy, at childbirth and while the child is dependent, including
adoption services, a comprehensive list of the names, addresses, and
telephone numbers of public and private agencies that provide such
services and financial aid available;
(b) Descriptions of the physical characteristics of a normal fetus, de-
scribed at two (2) week intervals, beginning with the fourth week and
ending with the twenty-fourth week of development, accompanied by
scientifically verified photographs of a fetus during such stages of devel-
opment. The description shall include information about physiological
and anatomical characteristics, brain and heart function, and the pres-
ence of external members and internal organs during the applicable
stages of development; and
(c) Descriptions of the abortion procedures used in current medical
practices at the various stages of growth of the fetus and any reasonable
foreseeable complications and risks to the mother, including those related
to subsequent child bearing.
(3) No abortion shall be performed unless, prior to the abortion, the
attending physician or the attending physician's agent (i) confirms or
verifies a positive pregnancy test and informs the pregnant patient of a
positive pregnancy test, and (ii) certifies in writing that the materials
provided by the director of the department of health and welfare have been
provided to the pregnant patient, if reasonably possible, at least twenty-four
(24) hours before the performance of the abortion. If the materials are not
available from the director of the department of health and welfare, no
certification shall be required. The attending physician, or the attending
physician's agent, shall provide any other information required under this
act. In addition to providing the material, the attending physician may
provide the pregnant patient with such other information which in the
attending physician's judgment is relevant to the pregnant patient's deci-
sion as to whether to have the abortion or carry the pregnancy to term.
(4) If the attending physician reasonably determines that due to circum-
stances peculiar to a specific pregnant patient, disclosure of the material is
likely to cause a severe and long lasting detrimental effect on the health of
such pregnant patient, disclosure of the materials shall not be required.
Within thirty (30) days after performing any abortion without certification
and delivery of the materials, the attending physician, or the attending
physician's agent, shall cause to be delivered to the director of the depart-
ment of health and welfare, a report signed by the attending physician,
preserving the patient's anonymity, which explains the specific circum-
stances that excused compliance with the duty to deliver the materials. The
director of the department of health and welfare shall compile the informa-
75 ABORTION AND CONTRACEPTIVES
18-609A
tion annually and report to the public the total number of abortions
performed in the state where delivery of the materials was excused;
provided that any information so reported shall not identify any physician
or patient in any manner which would reveal their identities.
(5) If section 18-608(3), Idaho Code, applies to the abortion to be per-
formed and the pregnant patient is an adult and for any reason unable to
give a valid consent thereto, the requirement for that pregnant patient's
consent shall be met as required by law for other medical or surgical
procedures and shall be determined in consideration of the desires, interests
and welfare of the pregnant patient. [1973, ch. 197, 8, p. 442; am. 1982, ch.
242, 1, p. 627; am. 1983, ch. 149, 1, p. 403; am. 2000, ch.
7, 4, p. 10.]
Compiler's notes. The words "this act" and purpose of the legislature to impose crim-
refer to S.L. 1973, ch. 197, compiled herein as inal sanctions against a physician for non-
18-604
18-608, 18-609, 18-610, and 18-
compliance with this section. OAG 93-1.
612.
While the former parental notification pro-
Collateral References. Validity, construe-
vision of this section (see now 18-609A)
tion, and application of statutes requiring
contains no express bypass provision, judicial
parental notification of or consent to minor's
or otherwise, nor does it provide any other
abortion. 77 A.L.R.5th 1.
formal mechanism for exempting mature mi-
Opinions of Attorney General. Idaho's
nors from its terms? but does require parental
informed consent provision contained in this
notification only "if possible," thus, seemingly,
section does not violate the United States
providing a safety valve in the notification
Constitution. OAG 93-1.
requirement, such subsection would be vul-
The legislative intent and purpose behind
nerable to attack unlesg a CQurt were tQ find
this section was to provide legal protection
^^gaf yalve j
_
if possible"
from civil liability for physicians performing
_
e e &n for
abortions in compliance with both
18-608 , ,

AP
/ .
and this section. Further, it was not the intent
Such a challen
^
e
-
0AG 93
"
1-
18-609A. Consent required for abortions for minors.
(l)(a) No
person shall knowingly cause or perform an abortion upon a minor unless:
(i) The attending physician has secured the written informed consent
of the minor and the written informed consent of the minor's parent; or
(ii) The minor is emancipated and the attending physician has received
written proof of emancipation and the minor's written informed con-
sent; or
(iii) The minor has been granted the right of self-consent to the
abortion by court order pursuant to paragraph (b) of this subsection and
the attending physician has received the minor's written informed
consent; or
(iv) A court has found that the causing or performing of the abortion,
despite the absence of informed consent of a parent, is in the best
interests of the minor and the court has issued an order, pursuant to
paragraph (b)(iv)2. of this subsection, granting permission for the
causing or performing of the abortion, and the minor is having the
abortion willingly, pursuant to paragraph (f) of this subsection; or
(v) A medical emergency exists for the minor so urgent that there is
insufficient time for the physician to obtain the informed consent of a
parent or a court order and the attending physician certifies such in the
pregnant minor's medical records. In so certifying, the attending
physician must include the factual circumstances supporting his pro-
fessional judgment that a medical emergency existed and the grounds
for the determination that there was insufficient time to obtain the
informed consent of a parent or a court order. Immediately after an
abortion pursuant to this paragraph, the physician shall, with due
diligence, attempt to provide a parent of an unemancipated minor
actual notification of the medical emergency. If the parent cannot be
immediately contacted for such actual notification, the physician shall,
with due diligence, attempt to provide actual notification to a parent for
an eight (8) hour period following the causing or performing of the
abortion and shall, until a parent receives such notification, ensure that
the minor's postabortion medical needs are met. Notwithstanding the
above, a physician shall, within twenty-four (24) hours of causing or
performing an abortion pursuant to this paragraph, provide actual
notification of the medical emergency by:
1. Conferring with a parent or agent designated by the parent, and
providing any additional information needed for the minor's proper
care, and, as soon as practicable thereafter, securing the parent's
written acknowledgement of receipt of such notification and informa-
tion; or
2. Providing such actual notification in written form, addressed to
the parent at the usual place of abode of the parent and delivered
personally to the parent by the physician or an agent with written
acknowledgement of such receipt by the parent returned to the
physician; or
3. Providing such actual notification in written form and mailing it
by certified mail, addressed to the parent at the usual place of abode
of the parent with return receipt requested and restricted delivery to
the addressee so that a postal employee can only deliver the notice to
the authorized addressee.
For the purposes of this section, "actual notification" includes, but is
not limited to, a statement that an abortion was caused or performed, a
description of the factual circumstances supporting the physician's
judgment that the medical emergency existed and a statement of the
grounds for the determination that there was insufficient time to obtain
the informed consent of a parent or a court order.
If the physician causing or performing such abortion reasonably
believes that the minor is homeless or abandoned so that the parents
cannot be readily found or that the minor has suffered abuse or neglect
such that the minor's physical safety would be jeopardized if a parent
were notified that the abortion was caused or performed, the physician
shall, in lieu of notifying a parent as required above, make a report to
a law enforcement agency pursuant to section 16-1619, Idaho Code, and
a petition shall be filed pursuant to section 16-1605, Idaho Code, which
petition shall include a reference to this code section. Upon adjudication
that the minor comes within the purview of chapter 16, title 16, Idaho
Code, either on the basis of homelessness or abandonment such that no
parent can be found, or on the basis of abuse or neglect such that the
minor's physical safety would be in jeopardy if a parent were notified
that the abortion was performed, the court shall, as a part of the decree,
77 ABORTION AND CONTRACEPTIVES 18-609A
also order that the physician's duty to so notify a parent is relieved. In
any other event, unless the court enters a finding that the best interests
of the child require withholding notice to a parent, the court shall order
that a parent receive actual notification of the medical emergency and
the causing or performing of the abortion.
(b) A proceeding for the right of a minor to self-consent to an abortion
pursuant to paragraph (a)(iii) of this subsection or for a court order
pursuant to paragraph (a)(iv) of this subsection, may be adjudicated by a
court as follows:
(i) The petition shall be filed in the county where the minor resides or
the county where the abortion is caused or performed. A minor shall
have the legal capacity to make and prosecute a petition and appeal as
set out herein. A guardian ad litem may assist the minor in preparing
her petition and other documents filed pursuant to this section and may
seek appointment as set forth below. A guardian ad litem, whether
prospective or appointed, must be an attorney properly licensed in this
state. The court shall ensure that the minor is given assistance in filing
the petition if the minor so desires a guardian ad litem but no qualified
guardian ad litem is available.
(ii) The petition shall set forth:
1. The initials of the minor;
2. The age of the minor;
3. The name and address of each parent, guardian, or, if the minor's
parents are deceased or the minor is abandoned and no guardian has
been appointed, the name and address of any other person standing
in loco parentis of the minor;
4. That the minor has been fully informed of the risks and conse-
quences of.the abortion procedure to be performed;
5. Aclaim that the minor is mature, of sound mind and has sufficient
intellectual capacity to consent to the abortion for herself;
6. A claim that, if the court does not grant the minor the right to
self-consent to the abortion, the court should find that causing or
performing the abortion, despite the absence of the consent of a
parent, is in the best interest of the minor and give judicial consent to
the abortion; and
7. If so desired by the minor, a request that the court appoint a
guardian ad litem, or, alternatively, if no guardian ad litem is
requested, that the court should consider whether appointment of a
guardian ad litem for the minor is appropriate.
The petition shall be signed by the minor and, if she has received
assistance from a prospective guardian ad litem in preparing the
petition, by the guardian ad litem.
(iii) A hearing on the merits of the petition shall be held as soon as
practicable but in no event later than five (5) days from the filing of the
petition. The petition shall be heard by a district judge on the record in
a closed session of the court. The court shall appoint a qualified
guardian ad litem for the minor if one is requested in the petition. If no
qualified guardian ad litem is available, the court may appoint some
other person to act in the capacity of a guardian ad litem, who shall act
to fulfill the purposes of this section and protect the confidentiality and
other rights of the minor.
At the hearing, the court shall, after establishing the identity of the
minor, hear evidence relating to the emotional development, maturity,
intellect and understanding of the minor; the nature of the abortion
procedure to be performed and the reasonably foreseeable complica-
tions and risks to the minor from such procedure, including those
related to future childbearing; the available alternatives to the abor-
tion; the relationship between the minor and her parents; and any other
evidence that the court may find relevant in determining whether the
minor should be granted the right to self-consent to the abortion or
whether the court's consent to causing or performing of the abortion,
despite the absence of consent of a parent, is in the best interests of the
minor.
(iv) The order shall be entered as soon as practicable, but in no event
later than five (5) days after the conclusion of the hearing. If, by clear
and convincing evidence, the court finds the allegations of the petition
to be true and sufficient to establish good cause, the court shall:
1. Find the minor sufficiently mature to decide whether to have the
abortion and grant the petition and give the minor the right of
self-consent to the abortion, setting forth the grounds for so finding;
or
2. Find the performance of the abortion, despite the absence of the
consent of a parent, is in the best interests of the minor and give
judicial consent to the abortion, setting forth the grounds for so
finding.
If the court does not find the allegations of the petition to be true or
if good cause does not appear from the evidence heard, the court shall
deny the petition, setting forth the grounds on which the petition is
denied.
If, in hearing the petition, the court becomes aware of allegations
which, if true, would constitute a violation of any section of title 18,
Idaho Code, by a person other than the petitioner, or would bring a child
within the purview of chapter 16, title 16, Idaho Code, the court shall
order, upon entry of final judgment in the proceeding under this
subsection, that an appropriate investigation be initiated or an appro-
priate information, complaint or petition be filed. Such allegations shall
be forwarded by the court with due consideration for the confidentiality
of the proceedings under this section. If, but for the requirements for
proof as set forth in this section, the minor would have been privileged
to withhold information given or evidence produced by her, the answers
given or evidence produced and any information directly or indirectly
derived from her answers may not be used against the minor in any
manner in a criminal case, except that she may nevertheless be
prosecuted or subjected to penalty or forfeiture for any perjury, false
swearing or contempt committed in answering or failing to answer, or in
producing or failing to produce, evidence as required by the court.
79 ABORTION AND CONTRACEPTIVES
18-609A
(c) A notice of appeal from an order issued under the provisions of this
subsection shall be filed within two (2) days from the date of issuance of
the order. The record on appeal shall be completed and the appeal shall be
perfected as soon as practicable, but in no event later than five (5) days
from the filing of notice of appeal. Because time may be of the essence
regarding the performance of the abortion, appeals pursuant to this
subsection shall receive expedited appellate review.
(d) Except for the time for filing a notice of appeal, a court may enlarge
the times set forth pursuant to this subsection upon request of the minor
or upon other good cause appearing, with due consideration for the
expedited nature of these proceedings.
(e) No filing, appeal or other fees shall be charged for cases or appeals
brought pursuant to this section.
(f) If a minor desires an abortion, then she shall be orally informed of,
and, if possible, sign the written consent required by this act, in the same
manner as an adult person. No abortion shall be caused or performed on
any minor against her will, except that an abortion may be performed
against the will of a minor pursuant to court order if the abortion is
necessary to preserve the life of the minor.
(g)
All records contained in court files of judicial proceedings arising
under the provisions of this subsection, and subsection (3) of this section,
shall be confidential and exempt from disclosure pursuant to section
9-340G, Idaho Code. Dockets and other court records shall be maintained
and court proceedings undertaken so that the names of the parties to
actions brought pursuant to this section will not be disclosed to the public.
(2)
The administrative director of the courts shall compile statistics for
each county for each calendar year, accessible to the public, including:
(a) The total number of petitions filed pursuant to paragraph (b) of
subsection (1) of this section; and
(b) The number of such petitions filed where a guardian ad litem was
requested and the number where a guardian ad litem or other person
acting in such capacity was appointed; and
(c) The number of such petitions for which the right to self-consent was
granted; and
(d) The number of such petitions for which the court granted its informed
consent; and
(e) The number of such petitions which were denied; and
(f) For categories described in paragraphs (c), (d) and (e) of this subsec-
tion, the number of appeals taken from the court's order in each category;
and
(g)
For each of the categories set out in paragraph (f) of this subsection,
the number of cases for which the district court's order was affirmed and
the number of cases for which the district court's order was reversed.
(3) In addition to any other cause of action arising from statute or
otherwise, any person injured by the causing or performing of an abortion on
a minor in violation of any of the requirements of paragraph (a) of
subsection (1) of this section, shall have a private right of action to recover
all damages sustained as a result of such violation, including reasonable
attorney's fees if judgment is rendered in favor of the plaintiff.
(4) Statistical records.
(a) The vital statistics unit of the department of health and welfare shall,
in addition to other information required pursuant to section 39-261,
Idaho Code, require the complete and accurate reporting of information
relevant to each abortion performed upon a minor which shall include, at
a minimum, the following:
(i) Whether the abortion was performed following the physician's
receipt of:
1. The written informed consent of a parent and the minor; or
2. The written informed consent of an emancipated minor for herself;
or
3. The written informed consent of a minor for herself pursuant to a
court order granting the minor the right to self-consent; or
4. The written informed consent of a court pursuant to an order
which includes a finding that the performance of the abortion, despite
the absence of the consent of a parent, is in the best interests of the
minor; or
5. The professional judgment of the attending physician that the
performance of the abortion was immediately necessary due to a
medical emergency and there was insufficient time to obtain consent
from a parent or a court order.
(ii) If the abortion was performed due to a medical emergency and
without consent from a parent or court order, the diagnosis upon which
the attending physician determined that the abortion was immediately
necessary due to a medical emergency.
(b) The knowing failure of the attending physician to perform any one (1)
or more of the acts required under this subsection is grounds for discipline
pursuant to section 54-1814(6), Idaho Code, and shall subject the physi-
cian to assessment of a civil penalty of one hundred dollars ($100) for each
month or portion thereof that each such failure continues, payable to the
center for vital statistics and health policy, but such failure shall not
constitute a criminal act.
(5) As used in this section:
(a) "Cause or perform an abortion" means to interrupt or terminate a
pregnancy by any surgical or nonsurgical procedure or to induce a
miscarriage upon a minor known to be pregnant.
(b) "Emancipated" means any minor who has been married or is in active
military service.
(c)(i) "Medical emergency" means a sudden and unexpected physical
condition which, in the reasonable medical judgment of any ordinarily
prudent physician acting under the circumstances and conditions then
existing, is abnormal and so complicates the medical condition of the
pregnant minor as to necessitate the immediate causing or performing
of an abortion:
1. To prevent her death; or
2. Because a delay in causing or performing an abortion will create
serious risk of immediate, substantial and irreversible impairment of
a major physical bodily function of the patient.
(ii) The term "medical emergency" does not include:
1. Any physical condition that would be expected to occur in normal
pregnancies of women of similar age, physical condition and gesta-
tion; or
2. Any condition that is predominantly psychological or psychiatric
in nature.
(d) "Minor" means a woman less than eighteen (18) years of age.
(e) "Parent" means one (1)
parent of the unemancipated minor, or a
guardian appointed pursuant to chapter 5,
title 15, Idaho Code, if the
minor has one. [I.C.,
7, 5, p. 10; am.
2001, ch. 277, 2, p. 1000.]
Compiler's notes. Sections 1 and 4 of S.L. Sec. to sec. ref. This section is referred to

18-605 and in 9-340G, 18-602 and 18-614.
18-610. Refusal to consent by pregnant woman

Effect.

Notwithstanding any provision of law permitting valid consent for medical
or surgical procedures to be given by a person or persons other than the
patient, the refusal of any pregnant woman, irrespective of age or compe-
tence, to submit to an abortion shall be grounds for a physician or hospital
otherwise authorized to proceed, to decline performance of an abortion
and/or to submit the matter of consent to adjudication by a court of
competent jurisdiction. [1973, ch. 197, 9, p. 442.]
18-611. Patient's representations
Physicians and hospitals may

accept. [Repealed.]
Compiler's notes. Former 18-611, was repealed by S.L. 2000, ch.
7, 6, effective
which comprised 1973, ch. 197, 10, p. 442, July 1, 2000.
18-612. Refusal to perform abortions
Physicians and hospitals

not liable.
Nothing in this act shall be deemed to require any hospital to

furnish facilities or admit any patient for any abortion if, upon determina-
tion by its governing board, it elects not to do so. Neither shall any physician
be required to perform or assist in any abortion, nor shall any nurse,
technician or other employee of any physician or hospital be required by law
or otherwise to assist or participate in the performance or provision of any
abortion if he or she, for personal, moral or religious reasons, objects thereto.
Any such person in the employ or under the control of a hospital shall be
deemed to have sufficiently objected to participation in such procedures only
if he or she has advised such hospital in writing that he or she generally or
specifically objects to assisting or otherwise participating in such proce-
dures. Such notice will suffice without specification of the reason therefor.
No refusal to accept a patient for abortion or to perform, assist or participate
in any such abortion as herein provided shall form the basis of any claim for
damages or recriminatory action against the declining person, agency or
institution. [1973, ch. 197, 11, p. 442.]
Compiler's notes. The words "this act"
refer to S.L. 1973, ch. 197 compiled as
18-
604
18-608, 18-609, 18-610, and 18-612.

18-613. Partial-birth abortions prohibited.

(1) Prohibited acts.
Any physician who knowingly performs a partial-birth abortion and thereby
kills a human fetus shall be subject to the penalties imposed in section
18-605, Idaho Code. This section shall not apply to partial-birth abortions
necessary to save the life of the mother when her life is endangered by a
physical disorder, illness or injury.
(2) Definitions. As used in this section:
(a) "Partial-birth abortion" means an abortion in which the person
performing the abortion partially vaginally delivers a living fetus before
killing the fetus and completing the delivery.
(b) The phrase "vaginally delivers a living fetus before killing the fetus"
means deliberately and intentionally delivering into the vagina a living
fetus, or a substantial portion of the fetus, for the purpose of performing
a procedure the physician knows will kill the fetus, and which kills the
fetus.
(c) "Physician" has the same meaning provided in section 18-604, Idaho
Code. However, any individual who is not a physician or not otherwise
legally authorized by this state to perform abortions, but who neverthe-
less directly performs a partial-birth abortion, shall be subject to the
prohibitions described in this section.
(3)(a) Civil actions. The father of the aborted fetus, if married to the
mother of the aborted fetus at the time of the abortion; or the maternal
grandparents of the aborted fetus, if the mother is not at least eighteen
(18) years of age at the time of the abortion, may bring a civil action
against the defendant physician to obtain appropriate relief. Provided
however, that a civil action by the plaintiff father is barred if the
pregnancy resulted from criminal conduct by the plaintiff father or he
consented to the abortion. Further, a civil action by the plaintiff maternal
grandparents is barred if the pregnancy is the result of criminal conduct
by a maternal grandparent or a maternal grandparent consented to the
abortion,
(b) As used in this section, "appropriate relief" shall include:
(i) Money damages for all mental and physical injuries suffered by the
plaintiff as a result of the abortion performed in violation of this section;
(ii) Money damages equal to three (3) times the cost of performing the
abortion procedure.
(4)(a) Hearing. A physician accused of violating this section may request
a hearing before the state board of medicine to determine whether the
mother's life was endangered by a physical disorder, illness or injury and
therefor whether performing the abortion was necessary to save the
mother's life.
(b) The findings of the board of medicine regarding the issues described in
subsection (4)(a) of this section are admissible at the criminal and civil
trials of the defendant physician. Upon a motion by the defendant
physician, the court shall delay the beginning of the criminal and civil
trials for not more than thirty (30) days to permit the hearing to take
place.
(5) Immunity. Awoman upon whom a partial-birth abortion is performed
shall not be prosecuted for violations of this section, for conspiracy to violate
this section, or for violations of section 18-603, 18-605 or 18-606, Idaho Code,
in regard to the partial-birth abortion performed. [I.C.,

18-613, as added
by 1998, ch.
34, 1, p. 153.]
Compiler's notes. Former 18-613, in full force and effect on and after its passage
which comprised 1973, ch. 197, 14, p. 442, and approval. Approved March 16, 1998.
was repealed by S.L. 1990, ch. 207, 1. Collateral References. Validity, construc-
Section 2 of S.L. 1998, ch. 34 declared an tion, and application of statutory restrictions
emergency and provided that this act shall be on partial birth abortions. 76 A.L.R.5th 637.
18-614. Defenses to prosecution.
(1) No physician shall be subject

to criminal or administrative liability for causing or performing an abortion
upon a minor in violation of any provision of subsection (1) of section
18-609A, Idaho Code, if prior to causing or performing the abortion the
physician obtains either positive identification or other documentary evi-
dence from which a reasonable person would have concluded that the
woman seeking the abortion was either an emancipated minor or was not
then a minor and if the physician retained, at the time of receiving the
evidence, a legible photocopy of such evidence in the physician's office file for
the woman. This defense is an affirmative defense that shall be raised by the
defendant and is not an element of any crime or administrative violation
that must be proved by the state.
(2) If, due to a medical emergency as defined in subsection (5) of section
18-609A, Idaho Code, there was insufficient time for the physician to
confirm that the woman, due to her age, did not then come within the
provisions of subsection (1) of section 18-609A, Idaho Code, the physician
shall not be subject to criminal or administrative liability for performing the
abortion in violation of subsection (l)(a)(v) of section 18-609A, Idaho Code,
if, as soon as possible but in no event longer than twenty-four (24) hours
after performing the abortion, the physician obtained positive identification
or other documentary evidence from which a reasonable person would have
concluded that the woman seeking the abortion was either an emancipated
minor or was not then a minor and if the physician retained, at the time of
receiving the evidence, a legible photocopy of such evidence in the physi-
cian's office file for the woman. This defense is an affirmative defense that
shall be raised by the defendant and is not an element of any crime or
administrative violation that must be proved by the state.
(3) If after performing an abortion under circumstances of a medical
emergency as defined in subsection (5) of section 18-609A, Idaho Code, the
physician, after reasonable inquiry, is unable to determine whether or not
the woman is a minor, the physician shall not be subject to criminal, civil or
administrative liability for taking any action that would have been required
by subsection (l)(a)(v) of section 18-609A, Idaho Code, if the woman had
been a minor at the time the abortion was caused or performed.
(4) For purposes of this section, "positive identification" means a lawfully
issued state, district, territorial, possession, provincial, national or other
equivalent government driver's license, identification card or military card,
bearing the person's photograph and date of birth, the person's valid
passport or a certified copy of the person's birth certificate. [I.C.,

18-614,
as added by 2001, ch. 277
4, p. 1000.]
Compiler's notes. Former section 18-614,
2000, ch.
7, 7, p. 10, was repealed by S.L.
2001, ch. 277, 3.
Section 2 of S.L.
as 18-609A.
2001, ch. 277 is compiled
18-615. Severability.

If any one (1) or more provision, section,
subsection, sentence, clause, phrase, or word of this chapter or the applica-
tion thereof to any person or circumstance is found to be unconstitutional,
the same is hereby declared to be severable and the balance of this chapter
shall remain effective notwithstanding such unconstitutionality. The legis-
lature hereby declares that it would have passed every section of this
chapter and each provision, section, subsection, sentence, clause, phrase or
word thereof irrespective of the fact that any one (1) or more provision,
section, subsection, sentence, clause, phrase or word be declared unconsti-
tutional. [I.C.,

18-615, as added by 2000, ch.
7, 8, p. 10.]
Compiler's notes. Former 18-615, Section 9 of S.L.
which comprised 1973, ch. 197, 16, p. 442,
9-340G.
was repealed by S.L. 1990, ch. 207, 1.
2000, ch. 7 is compiled as
CHAPTER 7
ARRESTS AND SEIZURES OF PERSONS OR PROPERTYSPECIAL OFFICERS
SECTION.
18-701. Refusal of officer to make arrest.
18-702. [Repealed.l
18-703. Illegal arrests and seizures.
18-704. Inhuman treatment of prisoners.
18-705. Resisting and obstructing officers.
18-706. Unnecessary assaults by officers.
18-707. Refusing assistance to officers.
18-708. Recapture of goods from legal cus-
tody.
SECTION.
18-709. Maliciously procuring warrant.
18-710. [Repealed.]
18-711. Unlawful exercise of functions of
peace officers
Unlawful im-
portation of police officers

Suppression of violence
Ex-
ceptions.
18-712. Civil liability for importing police of-
ficers or armed men.
18-701. Refusal of officer to make arrest.
Every sheriff, coroner,

keeper of a jail, constable, or other peace officer, who wilfully refuses to
receive or arrest any person charged with criminal offense, is punishable by
fine not exceeding
$5,000, and imprisonment in the countyjail not exceeding-
one
(1) year. [I.C.,

18-701, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6510; C.S., 8178; I.C.A., 17-1001,
18-
take effect on and after April 1, 1972 and the
Opinions ofAttorney General. Counties
are responsible for the cost incurred by the
85 ARRESTS AND SEIZURES OF PERSONS OR PROPERTY 18-705
countyjail in housing a prisoner who has been
charged with a state law violation committed
within city limits and investigated by city
police officers, and while counties may bring
legal action to recoup jail costs incurred for
city prisoners charged under city ordinances
or state motor vehicle laws, sheriffs cannot
refuse to accept city prisoners. OAG 84-4.
18-702. Delay in taking person arrested before magistrate,
pealed.]
[Re-
18-702,
18-702, as added by
Another former 18-702, which comprised
R.S., R.C., & C.L., 6512; C.S., 8180;
I.C.,
18-702, as added by 1971, ch. 143, 1.
18-703. Illegal arrests and seizures.
Every public officer, or person

pretending to be a public officer, who, under the pretense or color of any
process or other legal authority, arrests any person or detains him against
his will, or seizes or levies upon any property, or dispossesses any one of any
lands or tenements, without a regular process or other lawful authority
therefor, is guilty of a misdemeanor. [I.C.,

18-703, as added by 1972, ch.
336, 1, p. 844.]
8181; I.C.A., 17-1004, was repealed by
143, 5.
Cross ref. False personation, 18-3001.
Issuance of warrant of arrest,

19-506
19-509.
Penalty for misdemeanor when not other-
wise provided,
18-113.
Searches without warrant under fish and
game law,
36-1303.
When peace officer may arrest,
19-603.
Cited in: State v. Richardson, 95 Idaho
446, 511 P.2d 263 (1973).
Arrest,
37, 90, 115, 116, 150, 151.
6A C.J.S., Arrest, 111.
18-704. Inhuman treatment of prisoners.

Every officer who is
guilty of wilful inhumanity or oppression toward any prisoner under his
care or in his custody is punishable by fine not exceeding $5,000, and
removal from office. [I.C.,

18-704, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6514; C.S., 8182; I.C.A., 17-1005,
18-
its repeal by S.L. 1971, ch. 143,
5.
Penal and Correctional Institutions,

181-
209.
72 C.J.S., Prisons, 125.
18-705. Resisting and obstructing officers.

Every person who
wilfully resists, delays or obstructs any public officer, in the discharge, or
attempt to discharge, of any duty of his office or who knowingly gives a false
report to any peace officer, when no other punishment is prescribed, is
punishable by a fine not exceeding one thousand dollars
($1,000), and
imprisonment in the county jail not exceeding one (1) year. [I.C.,

18-705,
as added by 1972, ch. 336, 1, p. 844; am. 1982, ch.
50, 1, p. 75.]
C.L., 6515; C.S., 8183; I.C.A.,
17-1006,
Rule to sec. ref. This section is referred to
in M.C.R., Rule 13.
Cited in: Martin v. Lyons, 98 Idaho 102,
558 P.2d 1063 (1977); Frank v. City of
Caldwell, 99 Idaho 498, 584 P.2d 643 (1978);
State v. McNary, 100 Idaho 244, 596 P.2d 417
(1979); Hopper v. Hayes, 573 F. Supp. 1368 (D.
Idaho 1983); State v. Rutter, 112 Idaho 1142,
739 P.2d 441 (Ct. App. 1987); State v.
Wilkerson, 121 Idaho 345, 824 R2d 920 (Ct.
App. 1992); State v. Pick, 124 Idaho 601, 861
R2d 1266 (Ct. App. 1993); State v. Bowman,
124 Idaho 936, 866 P.2d 193 (Ct. App. 1993);
State v. Brandt, 135 Idaho 205, 16 R3d 302
(Ct. App. 2000); Mallonee v. Dep't of Corr.,
Idaho , 84 R3d 551 (2004).

Analysis
Defenses.
Duty to public.
Exigent circumstances.
Instructions.
Intent.
Notice.
Order or act of officer contrary to law.
Other punishment.
Permissible seizure.
Private right of action.
Probable cause for arrest.
Question for jury.
Request of officer lawful and authorized.
Right to counsel.
Separate and distinct acts.
Sufficiency of evidence.
Sufficiency of uniform citation.
Vagueness challenge.
Defenses.
It is no defense for defendant to show that
threats had been made against him by other
parties, or that he was in fear as to his person
or property. State v. Winter, 24 Idaho 749, 135
P. 739 (1913).
Duty to public.
The officers had a duty to the general public
in addition to the duty owed to the suspect.
The officers' duty to the general public when
arresting a potentially dangerous individual
is to protect innocent bystanders from any
harm the arrestee may inflict upon them
during the process of being arrested. Kessler
v. Barowsky, 129 Idaho 640, 931 P.2d 634 (Ct.
App. 1996).
Exigent Circumstances.
The situation was one of exigent circum-
stances that justified a forced entry, and the
attempt to enter the house was not properly
resisted; however, a prompt and limited
search of the scene should be strictly circum-
scribed by the exigency and cannot be used to
support a general exploratory search. State v.
Wiedenheft, 136 Idaho 14, 27 P.3d 873 (Ct.
App. 2001).
Instructions.
Where, in a prosecution for obstructing a
police officer and committing a battery upon a
police officer, there was a question of fact
whether the defendant had made a lunge at
one officer, justifying the other in grabbing
the defendant from behind, and there also
was a related question as to whether the
officers at any time used force to an excessive
degree, the magistrate's refusal to instruct
the jury on the right of a citizen to resist
excessive force by police constituted revers-
ible error entitling the defendant to a new
trial. State v. Spurr, 114 Idaho 277, 755 P.2d
1315 (Ct. App. 1988).
Intent.
No special intent is necessary, but defen-
dant must have had knowledge that person
resisted was an officer, engaged in discharge
or attempted discharge of his duty. State v.
Winter, 24 Idaho 749, 135 P. 739 (1913).
An attorney's unsworn oral misstatement
to police officers regarding the whereabouts of
a safe belonging to the attorney's client, whom
the police were investigating, did not consti-
tute obstructing and delaying an officer
within the meaning of this section. State v.
Brandstetter, 127 Idaho 885, 908 P.2d 578 (Ct.
App. 1995).
Notice.
Where deputy sheriff was faced with a
dangerous drunk who was attempting to
strike him with a potentially lethal weapon,
the deputy was not required to give the stat-
utory notice that he was placing defendant
under arrest until defendant physically had
been subdued. State v. Dolsby, 124 Idaho 271,
858 P.2d 810 (Ct. App. 1993).
Order or Act of Officer Contrary to Law.
Where an individual refuses to obey an
order or obstructs an act of a public officer
which is contrary to the law, be it statute or
constitution, that individual does not violate
this section. State v. Wilkerson, 114 Idaho
174, 755 P.2d 471 (Ct. App.), aff'd, 115 Idaho
357, 766 P.2d 1238 (1988).
Other Punishment.
Where a defendant threatened to kill a
police officer who arrested him, such conduct
constituted an attempt to prevent by threat
an executive officer from performing his duty
punishable under
18-2703 (repealed); thus,
such action was not punishable under a
former version of this section. State v.
Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971),
overruled on other grounds, State v. Tucker,
97 Idaho 4, 539 P.2d 556 (1975).
Permissible Seizure.
While not ruling as to whether activation of
the patrol car's emergency lights was a show
of authority that effectuated a seizure, but
instead assuming that activation of the lights
effectuated a seizure by conveying to defen-
dant that she was not free to leave, such a
seizure was reasonable and constitutionally
permissible in view of the surrounding cir-
cumstances. State v. Waldie, 126 Idaho 864,
893 P.2d 811 (Ct. App. 1995).
Private Right of Action.
A private right of action for insurance com-
pany's alleged obstruction of justice and vio-
lations of the Idaho Bribery and Corrupt
Influences Act (chapter 13, title 18, Idaho
Code) was not available and district court's
dismissal of these claims was proper. Yoakum
v. Hartford Fire Ins. Co., 129 Idaho 171, 923
P.2d 416 (1996).
Probable Cause for Arrest.
Probable cause existed to arrest defendant
for obstructing and delaying an officer in the
discharge of his duties where, as a passenger
in a car driven by his wife, defendant was
aware that the police were attempting to cite
his wife for various traffic violations, yet,
when ordered to keep his hands in plain view,
away from the bulge in his jacket, he refused
to do so, and where defendant pushed an
officer who was using reasonable force to
place his hands on the hood of the car in an
attempt to pat defendant down. State v.
Wight, 117 Idaho 604, 790 P2d 385 (Ct. App.
1990).
Reasonable or probable cause for an arrest
exists where the officers possess information
that would lead a person of ordinary care and
prudence to believe or entertain an honest
and strong suspicion that the person arrested
is guilty. State v. Quimby, 122 Idaho 389, 834
P.2d 906 (Ct. App. 1992).
Though defendant did not touch the offic-
ers, he placed himself in the path of the
officers, forcing them to push him out of the
way. Defendant ignored the officers' repeated
verbal requests to move away. He placed
himself unnecessarily close to the officers and
made hand gestures in front of their faces.
These facts were sufficient to establish prob-
able cause for defendant's arrest. State v.
Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App.
1992).
Where there were other sufficient facts to
establish probable- cause for arrest, the fact
that defendant turned around and ran gave
the officers an additional basis under which
they had probable cause to arrest him. State
v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct.
App. 1992).
While defendant did not object to the pros-
ecutor's comments during trial, review of the
error was warranted under the doctrine of
fundamental error; contrary to defendant's
argument, the prosecutor did not advise the
jury that it was entitled to consider evidence
of defendant's refusal to be fingerprinted or
photographed in determining whether defen-
dant violated 18-705, and thus there was no
prosecutorial misconduct. State v. Adams, 138
Idaho 624, 67 P.3d 103 (Ct. App. 2003).
Question for Jury.
In prosecution for resisting and obstructing
a police officer, whether the officer was per-
forming a duty of his office when he called tow
truck operator and ordered the defendant to
cease her obstruction ofthe tow turned upon a
resolution by the jury of those factual mat-
ters. State v. Wilkerson, 114 Idaho 174, 755
P.2d 471 (Ct. App.), aff'd, 115 Idaho 357, 766
P.2d 1238 (1988).
Request of Officer Lawful and Autho-
rized.
Where defendant was exceeding the speed
limit, the stop was valid and did not consti-
tute an unreasonable search and the officer's
request for defendant's license, registration
and proof of insurance was a lawful and
authorized act, and her refusal to produce
those documents constituted obstructing and
delaying an officer in the performance of a
duty of his office. State v. George, 127 Idaho
693, 905 P.2d 626 (1995).
Right to Counsel.
The magistrate court erred by denying de-
fendant's right to counsel when it did not
appoint counsel to help with his defense to the
charge of delaying and obstructing a peace
officer. State v. Hardman, 120 Idaho 667, 818
P2d 782 (Ct. App. 1991).
Separate and Distinct Acts.
Where, in prosecution for obstructing a
police officer and battery upon a police officer,
the alleged act of battery
the kick making

contact with an officer

could be viewed
either as a fortuitous event subsumed by the
general struggle or as an event separated in
time and place from the rest of the alterca-
tion, the magistrate was directed on remand
to instruct the jury that they could not convict
of both offenses unless they were convinced
beyond a reasonable doubt that both alleged
crimes arose out of separate and distinct acts,
each accompanied by criminal intent. State v.
Spurr, 114 Idaho 277, 755 R2d 1315 (Ct. App.
1988).
Sufficiency of Evidence.
Defendant testified that he was in a manic
state at the time he was arrested and that his
arms "went out" when officer handcuffed him
and officer testified that he had to wrestle
with defendant in order to restrain him;
therefore, based on this testimony, there was
sufficient evidence to support the resisting an
officer conviction. State v. Goerig, 121 Idaho
108, 822 P.2d 1005 (Ct. App. 1991).
Evidence was sufficient to sustain the de-
fendant's conviction for obstructing an officer
where the defendant struck the officer after
the officer told the defendant he was under
arrest. State v. Hollon, 136 Idaho 499, 36 P.3d
1287 (Ct. App. 2001).
There was sufficient evidence to support
defendant's conviction of resisting, delaying,
or obstructing a public officer; defendant fled
from police when they tried to talk to him and
hid in a bedroom closet in an attempt to avoid
them. State v. Anderson, 138 Idaho 359, 63
P.3d 485 (Ct. App. 2003).
Given that defendant refused to cooperate
with police when arrested, and given that
defendant repeatedly used profanity in ad-
dressing officers once defendant arrived at the
county jail, there was sufficient evidence to
support defendant's conviction of resisting
and obstructing an officer. State v. Adams, 138
Idaho 624, 67 P.3d 103 (Ct. App. 2003).
Sufficiency of Uniform Citation.
Where defendant was charged pursuant to
this section, the officer's inscription of the
date, time, the words "resisting, obstructing
and delaying an officer" and the number of the
applicable code section on the preprinted Uni-
form Citation Form was sufficient to charge
an offense, and defendant could have utilized
Misdemeanor Criminal Rule 3(d) to demand a
sworn complaint had he been in doubt as to
the nature of the offense charged. State v.
Cahoon, 116 Idaho 399, 775 P.2d 1241 (1989).
Vagueness Challenge.
Where the plaintiff is found to have en-
gaged in conduct which is clearly proscribed
by this section, plaintiff cannot complain of
the vagueness of the law as applied to the
conduct of others. Hallstrom v. City of Garden
City, 811 F. Supp. 1443 (D. Idaho 1991), mod-
ified on other grounds, 991 F.2d 1473 (9th Cir.
Idaho 1993).
Absent a finding that this section impli-
cates a substantial amount of constitutionally
protected conduct, striking down this section
based on a facial vagueness review would be
improper. Hallstrom v. City of Garden City,
811 F. Supp. 1443 (D. Idaho 1991), modified
on other grounds, 991 F.2d 1473 (9th Cir.
Idaho 1993).
This section and
18-114 give fair warning
to a person of common intelligence that defen-
dant's conduct in swinging a crutch at a police
officer was forbidden and subject to the pen-
alty of law; therefore, this section, as applied,
was not constitutionally defective as void-for-
vagueness. State v. Dolsby, 124 Idaho 271,
858 P.2d 810 (Ct. App. 1993).
Arrest,
4,
105-116.
58 Am. Jur. 2d, Obstructing Justice,

54-
71.
67 C.J.S., Obstructing Justice,

112.
What constitutes obstructing or resisting
an officer, in the absence of actual force. 44
A.L.R.3d 1018.
18-706. Unnecessary assaults by officers.

Every public officer
who, under color of authority, without lawful necessity, assaults or beats any
person, is punishable by fine not exceeding $5,000 and imprisonment in the
county jail not exceeding one (1) year. [I.C.,

18-706, as added by 1972, ch.
336, 1, p. 844.]
18-707. Refusing assistance to officers.
Every male person above

eighteen (18) years of age who neglects or refuses to join the posse comitatus
or power of the county, by neglecting or refusing to aid and assist in taking
or arresting any person against whom there may be issued any process, or
by neglecting to aid and assist in retaking any person who, after being
arrested or confined, may have escaped from such arrest or imprisonment,
or by neglecting or refusing to aid and assist in preventing any breach of the
peace, or in commission of any criminal offense, being thereto lawfully
required by any sheriff, deputy sheriff, coroner, constable, judge or other
officer concerned in the administration ofjustice, is punishable by fine of not
less than fifty dollars ($50.00) nor more than $1,000. [I.C., 18-707, as
added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. Aformer section, which 1972 and the present section added by S.L.
comprised Cr. Prac. 1864, 36; R.S., R.C., & 1972, ch. 336, 1 in the same words as the
C.L., 6517; C.S., 8185; I.C.A., 17-1008; section prior to its repeal,
am. 1969, ch. 127, 1, p. 393, was repealed Cited in: Smith v. Lowe, 121 F. 753 (9th
by S.L. 1971, ch. 143, 5, effective January 1, Cir. 1903).
18-708. Recapture of goods from legal custody.

Every person
who wilfully injures or destroys, or takes, or attempts to take, or assists any
person in taking or attempting to take, from the custody of any officer or
person, any personal property which such officer or person has in charge
under any process of law, is guilty of a misdemeanor. [I.C.,

18-708, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which ch. 336, 1 in the same words as the section
8147; I.C.A.,

Cross ref. Penalty for misdemeanor when
1971, ch. 143, 5,
effective January 1, 1972
not otherwise provided, 18-113.
18-709. Maliciously procuring warrant.
Every person who, mali-

ciously and without probable cause, procures a search warrant or warrant of
arrest to be issued and executed, is guilty of a misdemeanor. [I.C.,

18-709,
as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which 1972, ch. 336, 1 in the same words as the
comprised R.S., R.C., & C.L., 6533; C.S., section prior to its repeal.
8201; I.C.A.,

S.L. 1971, ch. 143, 5,
not otherwise provided,
18-113.
18-710. Restrictions on appointment of police officers. [Repealed.]
Compiler's notes. A former section, which comprising I.C.,
18-710 as added by S.L.
comprised 1890-1891, p. 15, 1; reen. 1899, 1972, ch. 336, 1 dealing with the same
p. 9, 1; reen. R.C. & C.L., 6545; C.S., subject which section was in turn repealed by
8206; I.C.A.,

S.L. 1972, ch. 381, 17, effective April 1,
S.L. 1971, ch. 143, 5, effective January 1, 1972.
1972 and substituted therefor was a section
18-711. Unlawful exercise of functions of peace officers
Unlaw-
ful importation of police officers

Suppression of violence

Exceptions.
1. Any person who shall in this state unlawfully exercise or

attempt to exercise the functions of, or hold himself out to any one as, a
deputy sheriff, marshal, policeman, constable or peace officer, or any person,
whether acting in his own behalf or as an officer of the law, or as the
authorized or unauthorized agent or representative of another, or of any
association, corporation or company, who shall bring or cause to be brought,
or aid in bringing into this state any armed or unarmed police force or
detective agency or force, or any armed or unarmed body of men for the
suppression of domestic violence, shall be guilty of a felony, and on
conviction thereof shall be punished by imprisonment in the state prison for
not less than two (2) years and not more than five (5) years: provided, that
the legislature, or the executive when the legislature can not be convened,
may call upon the lawfully constituted authorities of the United States for
the protection against invasion and domestic violence, as provided in section
4 of article 4 of the Constitution of the United States.
2. This section shall not apply to a law enforcement officer who pursuant
to an interlocal cooperation plan upon receiving an emergency request from
an Idaho law enforcement officer enters Idaho to give assistance; nor shall
this section apply to the Idaho law enforcement officer who makes a request
for emergency assistance. [I.C.,

18-711, as added by S.L. 1972, ch. 336,
1, p. 844; am. 1975, ch. 130, 1, p. 287.]
Compiler's notes. A former section, which exercising or attempting to exercise the func-
comprised 1890-1891, p. 15, 2; reen. 1899, tions of or holding himself or herself out to
p. 9, 2; reen. R.C. & C.L., 6546; C.S., anyone as one of the delineated law officials,
or the statute can be violated when a person,
1,
acting on his or her own behalf, or as an
officer, or as an agent for another or a com-
1972, ch. 336,
1 restored the subject matter
pany, brings or aids in bringing an armed or
contained in the section as it existed prior to
unarmed police force or body of men into the
its repeal.
state. State v. Rivera, 131 Idaho 8, 951 P.2d
528
< Ct
-
A
PP-
1998)-
emergency. Approved March 26 1975.
M Authorizing Employment.
Cross ref. No armed police force or detec-
fc the mayor of a city authorizes a
tive agency, or armed body of men shall be
person to select detectives or policemen to act
brought into the state for the suppression of
for and on behalf of the city, and such persons,
domestic violence, except on the application of
residents of Washington state, are so selected
the legislature, or of the executive when the
and serve in such capacity and are paid by
legislature cannot be convened. Const, art. 14,
sucn person, who thereafter presents a claim
6.
against the city for the money so expended,
and the city council allows such claim and
orders and directs that a warrant issue in
Construction.
payment therefor, the acts of the council are a
Mayor authorizing employment.
ratification of the mayor's acts in authorizing
the selection of such person to act for and on
Construction. behalf of the city, and the expense thereby
The construction of the statute provides incurred becomes a city charge, which the city
two manners in which the statute can be is authorized to pay. Moore v. Hupp, 17 Idaho
violated; a person can violate the statute by 232, 105 P. 209 (1909).
18-712. Civil liability for importing police officers or armed men.
Any person, officer, company, association or corporation who shall

knowingly bring, or cause to be brought, or aid in bringing, into this state
any armed or unarmed police force, detective agency or force, or armed or
unarmed body of men for the suppression of domestic violence, shall be
liable in a civil action to any person for any injury to person or property
through the action, or as the result of the coming or bringing into the state
91 ARSON 18-801
of such body of men, or any of them, whether acting together or separately
in carrying out the purpose for which they were brought or came into the
state. [I.C.,

18-712, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which S.L. 1971, ch. 143, 5, effective January 1,
comprised 1890-1891, p. 15, 3; reen. 1899, 1972 and the present section added by S.L.
p. 9, 3; reen. R.C. & C.L., 6547; C.S., 1972, ch. 336, 1 in the same words as the
8208; I.C.A.,
17-1031, was repealed by section prior to its repeal.
CHAPTER 8
ARSON
SECTION. SECTION.
18-801. Arson
Definitions. 18-804. Arson in the third degree
Burning
18-802. Arson in first degree

Burning of of real or personal property or
dwelling or other structures forest land
Penalties,
where persons are normally
18-805. Aggravated arson
Penalties,
present Penalties.
18-806. [Repealed.]
18-803. Arson in the second degree
Burn-
ing of a structure
Penalties.
18-801. Arson

Definitions.

In this chapter, the following terms
have the following meanings:
(1) "Damage", in addition to its ordinary meaning, includes any charring,
scorching, burning or breaking, and shall include any diminution in the
value of any property as a consequence of an act;
(2) "Dwelling" means any structure used or intended for use as human
habitation;
(3)
"Structure" means any building of any kind, including fixtures and
appurtenances attached thereto, any coliseum, bridge or carport, any tent or
other portable building, or any vehicle, vessel, watercraft or aircraft;
(4) "Real property" means any land, and shall include any crops growing
thereon;
(5) "Personal property" means any tangible property, including anything
severed from the land;
(6) "Forest land" means any brush covered land, cut-over land, forest,
prairie, grasslands, wetlands or woods;
(7) "Firefighter" means any person assisting in the suppression or extin-
guishment of any fire or explosion. [I.C.,

18-801, as added by 1993, ch.
107, 2, p. 273.]
Legislative Intent. Section 1 of S.L. 1993, only in cases involving a charring or burning,
ch. 107 read: "It is the finding of the Legisla- but also, in any circumstances in which there
ture that the crime of arson presents a serious
has been any damage to property as a result
threat to human life and creates an extraor-
of fire or explosion.
dinary financial cost as a result ofthe destruc-
turn of property. This arson code categorizes
which comprised (LC, 18-801, as added by
the severity of penalty and punishment based
1972> ch# 336j 1? p> 844)> was repealed by
upon the priority of human life as our greatest
s L 1993) ch 107> 7>
concern, thereafter followed by concern for
a second former section, which comprised
costs resulting from the loss of property. The
I.C.A., 17-3310, as added by 1939, ch. 67,
addition of a definition section will clarify the
2, p. 118, was repealed by S.L. 1971, ch.
categories of property protected under these
143, 5, effective January 1, 1972.
laws and allow for the charging of arson not A third former section which comprised
I.C.,
18-801, as added by 1971, ch. 143, 1,
effective April 1, 1972.
Cross ref. Electrical transmission plants
and lines, burning or destruction of a felony,
18-6803 18-6805.
Mines, burning underground workings of, a
felony,

18-7024, 18-7025.
Timber and prairies, violation of law for
protection against fire, a misdemeanor,
18-
7004.
Forest fires, precautions against and regu-
lations regarding,
38-107 et seq.
Idaho Arson and Fraud Reporting-Immu-
nity Act,
41-290 41-298.
Uniform fire code,
41-253 et seq.
in 18-7803.
Analysis
Burning of jail.
Persistent violator.
Sentence.
Burning of Jail.
Any building which is usually occupied by
any person lodging therein at night is an
inhabited building within the law of arson;
consequently a jail is a subject of arson. State
v. Collins, 3 Idaho 467, 31 P. 1048 (1892).
Persistent Violator.
Asentence of 21 years was not excessive for
one convicted of arson in the first degree who
was found to be a persistent violator under
19-2514. State v. Dunn, 91 Idaho 870, 434

P.2d 88 (1967).
Sentence.
An indeterminate sentence of not to exceed
20 years was not excessive for first-degree
arson, in view of the defendant's relatively
extensive prior criminal record, and the risk
of injury or death to the public in general, and
firefighters in particular, caused by the defen-
dant's actions. State v. Knight, 106 Idaho 496,
681 P.2d 6 (Ct. App. 1984).
A sentence of ten years with a three-year
minimum period of confinement was not ex-
cessive for a defendant who plead guilty to
first-degree arson. State v. Harper, 116 Idaho
335, 775 P2d 649 (Ct. App. 1989).
Evidence held sufficient to allow the jury to
find beyond a reasonable doubt that fire in
defendant's mobile home was likely to have
been the result of arson and that defendant
was the perpetrator. State v. Jussaume, 112
Idaho 108, 730 P.2d 1028 (Ct. App. 1986).
An accomplice's testimony linking defen-
dant to a fire which destroyed his own house
was sufficiently corroborated by evidence that
defendant moved almost all of his uninsured
equipment out of the house just before the
fire, that defendant called the fire department
from neighbor's house instead of his own, that
defendant made an appointment prior to the
fire to get a new artificial leg, that defendant
left his wallet and checkbook in pickup taken
by his accomplice, that defendant listed an
inflated value for his house on his proof of loss
form, that defendant had access to the two
points of origin of the fire which expert testi-
fied were started by accelerants, that he had
opportunity to set the fire in those areas and
that defendant would gain substantially if his
inflated proof of loss was paid. State v. Morris,
116 Idaho 16, 773 P.2d 284 (Ct. App. 1989).
Arson and Related Offenses, 1 et seq.
6A C.J.S., Arson,
422.
Criminal responsibility of one cooperating
in offense of arson which he is incapable of
committing personally. 5A.L.R. 783; 74A.L.R.
1110; 131 A.L.R. 1322.
"Outhouse" or "outbuilding," what is. 20
A.L.R. 234.
Evidence of other offenses in prosecution
for. 63 A.L.R. 605.
Entrapment to commit crime. 66 A.L.R.
483; 86 A.L.R. 263.
Vacancy or nonoccupancy of building as
affecting its character as "dwelling." 44
A.L.R.2d 1456.
Admissibility, in prosecution for criminal
burning of property, or for maintaining fire
hazard, of evidence of other fires. 87 A.L.R.2d
891.
What constitutes "burning" to justify
charge of arson. 28 A.L.R.4th 482.
18-802. Arson in first degree

Burning of dwelling or other
structures where persons are normally present
Penalties.
Any
person who willfully and unlawfully, by fire or explosion, damages:
(1) Any dwelling, whether occupied or not; or
(2) Any structure, whether occupied or not, in which persons are nor-
mally present, including without limitation: jails, prisons or detention
93 ARSON 18-802
centers; hospitals, nursing homes or other health care facilities; department
stores, office buildings, business establishments, churches or educational
institutions, or other similar structures; or
(3) Any other structure which the actor has reasonable grounds to believe
is occupied by a human being; or
(4)
Any real or personal property, whether the property of the actor or
another, with the intent to deceive or harm any insurer or any person with
a legal or financial interest in the property, or obtain any financial gain for
the actor or another;
is guilty of arson in the first degree, and upon conviction thereof shall be
sentenced to the custody of the department of correction for not more than
twenty-five (25) years or fined not more than one hundred thousand dollars
($100,000) or both. [I.C.,

18-802, as added by 1993, ch. 107, 3, p. 273.]
18-802,
1972, ch. 336, 1, p. 844), was repealed by
Another former section, which comprised
I.C.A., 17-3311, as added by 1939, ch. 67,
A third former section which comprised
I.C., 18-802, as added by 1971, ch. 143, 1
18-6803 18-6805.
felony,

18-7024, 18-7025.
18-
7004.
lations regarding,
38-107 et seq.
nity Act,

41-290 41-298.
Uniform fire code,
41-253 et seq.
in

18-805, 18-7803.
Cited in: Brown v. State, 137 Idaho 529, 50
P.3d 1024 (Ct. App. 2002).
Analysis
Constitutionality.
Double jeopardy.
Inconsistent verdicts.
Sentence not excessive.
Constitutionality.
This section is not unconstitutionally vague
because it gives adequate notice to people of
ordinary intelligence concerning the conduct
it proscribes, and it is not overbroad because
arson is within the reach of the state's police
power. State v. Leferink, 133 Idaho 780, 992
P.2d 775 (1999).
Double Jeopardy.
One of defendant's convictions for aggra-
vated first degree arson was vacated because,
although defendant's act of arson was en-
hanced to aggravated arson by virtue of the
deaths of two persons, defendant could not be
convicted for two acts of arson when there
was only one fire. State v. Payne, 134 Idaho
423, 3 P.3d 1251 (2000).
Inconsistent Verdicts.
The jury's verdict was not impermissibly
inconsistent where the jury acquitted defen-
dant of first degree arson but convicted him of
aggravated first degree arson. State v. Payne,
134 Idaho 423, 3 P.3d 1251 (2000).
Sentence Not Excessive.
Where defendant was found guilty of two
counts of first degree arson for setting fire to a
vacant house and to an occupied home, the
district court did not abuse its discretion by
sentencing him to seven years' fixed incarcer-
ation. State v. Brizendine, 123 Idaho 886, 853
P.2d 631 (Ct. App. 1993).
Analysis
Corpus delicti.
Impeachment of conviction.
Instructions.
Sentence.
Corpus Delicti.
The corpus delicti in a prosecution for arson
in the second degree was established by cir-
cumstantial evidence that included testimony
of a witness who observed defendant fleeing
and carrying a can which was later found to
contain gasoline and opinion testimony of the
fire chief who examined the premises after
the fire. State v. Johnson, 96 Idaho 727, 536
P.2d 295 (1975).
Impeachment of Conviction.
Where a defendant was convicted of arson
under this section, a subsequent judgment in
his favor in a civil action brought by the
owner of the burned building could not be
used to impeach the arson conviction. State v.
Johnson, 96 Idaho 727, 536 P.2d 295 (1975).
Instructions.
Trial court properly refused to give an in-
struction in an arson case that all fires are
presumed to be caused by accidental or natu-
ral causes where there were no facts pre-
sented raising any issue as to the incendiary
origin of the fire. State v. Johnson, 96 Idaho
727, 536 P.2d 295 (1975).
Sentence.
A judge did not abuse his discretion in
imposing a 15-year sentence with a minimum
of six years confinement, or in later refusing
to reduce the sentence for a defendant con-
victed of bombing a public structure under
former law, where the judge explained the
sentence in terms of protecting society, retri-
bution and deterrence and also took rehabili-
tation into account. State v. Langley, 115
Idaho 727, 769 P.2d 604 (Ct. App. 1989).
6A C.J.S., Arson,

422.
1110; 131 A.L.R. 1322.
A.L.R. 234.
for. 63 A.L.R. 605.
483; 86 A.L.R. 263.
A.L.R.2d 1456.
891.
18-803. Arson in the second degree
Burning of a structure
Penalties.
Any person who willfully and unlawfully, by fire or explosion,

damages any structure, whether the property of the actor or another, not
included or described in the preceding section, is guilty of arson in the
second degree, and upon conviction thereof shall be sentenced to the custody
of the department of correction for not more than fifteen (15) years or fined
not more than seventy-five thousand dollars ($75,000) or both. [I.C.,
18-803, as added by 1993, ch. 107, 4, p. 273.]

A second former section, which comprised
I.C.A., 17-3312, as added by 1939, ch. 67,
A third former section which comprised
I.C.,

18-803, as added by 1971, ch. 143, 1
18-6803
18-6805.
felony,

18-7024, 18-7025.
18-
7004.
lations regarding,
38-107 et seq.
nity Act,
41-290 41-298.
Uniform fire code,
41-253 et seq.
in

18-805, 18-7803.
Cited in: Brown v. State, 137 Idaho 529, 50
P.3d 1024 (Ct. App. 2002).
Constitutionality.
The defendant's allegation that this section
was constitutionally invalid because it was
vague and overbroad failed because the defen-
dant did not raise the matter before the trial
court through any motion to dismiss or other
pretrial procedures; therefore, the matter
could not be considered on appeal. State v.
Fox, 130 Idaho 385, 941 P.2d 357 (Ct. App.
1997).
95 ARSON 18-804
Analysis
Erroneous charge.
Sentencing.
Erroneous Charge.
Charge and conviction of burning "bean
hay" will not be sustained by evidence that
substance destroyed was residue after beans
or seed had been removed by threshing. State
v. Choate, 41 Idaho 251, 238 P. 538 (1925).
Sentencing.
Where defendant was sentenced to a five-
year unified sentence with two-years fixed
and three-years indeterminate for burning
property not subject to arson, and two one-
year terms for firing timber or prairie lands,
all to run concurrently, and during the period
of retained jurisdiction, the judge decided to
decrease the term of the fixed sentence to one
year with four-years indeterminate because of
defendant's performance in a special pro-
gram, although the one-year sentence for fir-
ing of timber appeared to be illegal, because
the sentence ran concurrently with the sen-
tence for burning property not subject to
arson, the issue of the illegal sentence was
moot, and the other sentence was found to be
reasonable in light of the potential danger to
property and human life caused by the fire.
State v. Goodson, 122 Idaho 553, 835 P.2d
1364 (Ct. App. 1992).
6A C.J.S., Arson,

422.
1110; 131 A.L.R. 1322.
A.L.R. 234.
for. 63 A.L.R. 605.
483; 86 A.L.R. 263.
A.L.R.2d 1456.
891.
18-804. Arson in the third degree
Burning of real or personal

property or forest land

Penalties.

Any person who willfully and
unlawfully, by fire or explosion, damages:
(1) Any real or personal property of another; or
(2) Any forest land;
is guilty of arson in the third degree, and upon conviction thereof shall be
sentenced to the custody of the department of correction for not more than
ten (10) years or fined not more than fifty thousand dollars ($50,000) or both.
[I.C.,

18-804, as added by 1993, ch. 107, 5, p. 273.]
I.C.A.,
17-3313, as added by 1939, ch. 67,
I.C.,
18-804, as added by 1971, ch. 143, 1.
and the former section added by S.L. 1972, ch.
336, 1 contained the same words as the
section prior to its repeal by S.L. 1971, ch.
143, 5.
18-6803 18-6805.
felony,

18-7024, 18-7025.
18-
7004.
lations regarding,
38-107 et seq.
nity Act,

41-290 41-298.
Uniform fire code,
41-253 et seq.
in 18-7803.
6A C.J.S., Arson,

422.
committing personally. 5 A.L.R. 783; 74 A.L.R.
1110; 131 A.L.R. 1322.
A.L.R. 234.
for. 63 A.L.R. 605.
483; 86 A.L.R. 263.
A.L.R.2d 1456.
891.
18-805. Aggravated arson
Penalties.
A person whose violation

of sections 18-802, 18-803 or 18-804, Idaho Code, results, directly or
indirectly, in great bodily harm, permanent disability, permanent disfigure-
ment or death of a firefighter or any other person, regardless of intent or
lack of intent to cause such harm, upon a finding of guilt thereon shall be
sentenced to an extended term of imprisonment. The extended term of
imprisonment shall be computed by increasing the sentence imposed for a
conviction under such sections, by a period of not more than ten (10) years.
[I.C.,
18-805, as added by 1993, ch. 107, 6, p. 273.]
18-805,
Another former
18-805 which comprised
I.C., 18-805, as added by S.L. 1971, ch. 143,
Section 7 of S.L. 1993, ch. 107 contained a
repeal.
in 18-7803, 19-5307 and 19-5506.
Cited in: State v. Brizendine, 123 Idaho
886, 853 P.2d 631 (Ct. App. 1993).
In General.
Aggravated first degree arson is not a lesser
included offense of felony murder, but is
merely an aggravated form of first degree
arson which provides for enhanced punish-
ment in accordance with the aggravating fac-
tors set forth in this section. State v. Payne,
134 Idaho 423, 3 P.3d 1251 (2000).
18-806. Criminal coercion. [Repealed.]
Compiler's notes. This section, which ch. 143, 1, p. 630 was repealed by S.L. 1972,
comprised I.C., 18-806, as added by 1971, ch. 109, 1, effective April 1, 1972.
CHAPTER 9
ASSAULT AND BATTERY
SECTION.
18-901. Assault defined.
18-902. Assault
Punishment.
18-903. Battery defined.
18-904. Battery
Punishment.
18-905. Aggravated assault defined.
18-906. Aggravated assault
Punishment.
18-907. Aggravated battery defined.
18-908. Aggravated battery
Punishment.
18-909. Assault with intent to commit a seri-
ous felony defined.
18-910. Assault with the intent to commit a
serious felony
Punishment.
18-911. Battery with the intent to commit a
serious felony defined.
18-912. Battery with the intent to commit a
serious felony
Punishment.
SECTION.
18-913. Felonious administering of drugs de-
fined.
18-914. Felonious administering of drugs

Punishment.
18-915. Assault or battery upon certain per-
sonnel
Punishment.
18-915A. Removing a firearm from a law en-
forcement officer.
18-915B. Propelling bodily fluid or waste at
certain persons.
18-916. Abuse of school teachers.
18-917. Hazing.
18-918. Domestic violence.
18-919. Sexual exploitation by a medical care
provider.
18-920. Violation of no contact order.
97 ASSAULT AND BATTERY 18-901
SECTION.
18-921. Peace officers
Immunity.
18-922. Order
Transmittal to law enforce-

ment agency.
18-901. Assault defined.
An assault is:
(a) An unlawful attempt, coupled with apparent ability, to commit a
violent injury on the person of another; or
(b) An intentional, unlawful threat by word or act to do violence to the
person of another, coupled with an apparent ability to do so, and doing some
act which creates a well-founded fear in such other person that such violence
is imminent. [I.C.,

18-901, as added by 1979, ch. 227, 2, p. 624.]
Compiler's notes. Former sections 18-901
18-913 which comprised I.C.,

18-901
18-912, as added by S.L. 1972, ch. 336, 1, p.

844; I.C., 18-913, as added by S.L. 1974, ch.
198, 1, p. 1515; am. S.L. 1976, ch. 144, 1,
p. 529, were repealed by S.L. 1979, ch. 227,
1.
Other former
18-901
18-911, which
comprised Cr. & P. 1864, 41, 46-48; R.S.,
R.C., C.L.,

6703-6706; 6727-6732, 7211;
C.S.,
8231-8234, 8247-8252, 8590; I.C.A.,
17-1201

17-1210, 17-4604, were re-
January 1, 1972. Also former sections which
comprised I.C.,

18-901
18-911, as added
by S.L. 1971, ch. 143, 1. However, these
sections were repealed by S.L. 1972, ch. 109,
1, effective April 1, 1972.
Cross ref. Husband or wife may testify in
prosecution for crime committed by one
against the person of the other,
9-203.
Medical examination of victim, cost paid by
law enforcement agency,
19-5303.
Sec. to sec. ref. This chapter is referred to
in 18-7905,37-1926.
This section is referred to in

18-915,
18-918 and 18-920.
660 P.2d 1353 (1983); State v. Major, 111
Idaho 410, 725 P.2d 115 (1986); State v.
App. 1988); State v. Boehner, 114 Idaho 311,
756 P.2d 1075 (Ct. App. 1988); State v.
Marchant, 115 Idaho 403, 766 P.2d 1284 (Ct.
App. 1989); State v. Pugsley, 119 Idaho 62,
803 P.2d 563 (Ct. App. 1991); State v. Fee, 124
v. Leach, 126 Idaho 977, 895 P.2d 578 (Ct.
App. 1995); State v. Medina, 128 Idaho 19,
909 P2d 637 (Ct. App. 1996); State v. Hudson,
129 Idaho 478, 927 P.2d 451 (Ct. App. 1996);
Butler v. State, 129 Idaho 899, 935 P.2d 162
(1997); State v. Page, 135 Idaho 214, 16 P.3d
890 (2000); Jakoski v. State, 136 Idaho 280, 32
P.3d 672 (Ct. App. 2001); State v. Pole,

Idaho , 79 P.3d 729 (Ct. App. 2003), review
denied,
P.3d

(Nov. 30, 2003).; State v.
Rae,
Idaho , 84 P.3d 586 (Ct. App. 2004).

Analysis
Deadly weapon.
Evidence.
In general.
Sufficient.
Included offense.
Indictment and information.
Instructions.
Prior acts.
Sentence.
Deadly Weapon.
Legislative policy expressed within this sec-
tion and
18-905 evidenced an intent that it
was a victim's reasonable perception that was
dispositive of the question of whether a
weapon was deadly. State v. Cudd, 137 Idaho
625, 51 P.3d 439 (Ct. App. 2002).
Evidence.
In General.
In prosecution for aggravated assault on a
law enforcement officer, the admission of the
defendant's blood alcohol test result, even if
error, was harmless, where testimony was
adduced, without objection, that the defen-
dant had been consuming alcoholic beverages
and the test result simply confirmed that
undisputed fact, and the evidence of intoxica-
tion actually could have been exculpatory
under the instructions the trial court gave the
jury on intent. State v. Missamore, 114 Idaho
879, 761 P.2d 1231 (Ct. App. 1988).
Sufficient.
Where the testimony, albeit somewhat con-
troverted, was that defendant entered the
victim's residence uninvited and beat the vic-
tim on the head with a beer bottle when the
victim objected, and the defendant did not
deny the assault, the evidence amply sus-
tained the conviction. State v. Larson, 109
Idaho 868, 712 P.2d 569 (1985).
When a defendant carries a loaded gun
during a burglary attempt, he has already
completed any requirement regarding mere
preparation, and the act of drawing the
weapon and pointing it toward an individual,
or where an individual is expected or known
to be, goes beyond mere preparation and goes
to the intent to inflict "a violent injury on the
person of another." State v. Daniels, 134 Idaho
896, 11 P.3d 1114 (2000).
Evidence was sufficient to convict defen-
dant of attempted assault when he threat-
ened three boys and maneuvered his car as if
to assault them, even though the car became
hung up on a rock; the jury was properly
instructed as to the mens rea of the offense.
State v. Broadhead,

Idaho , 84 P. 3d 599
(Ct. App. 2004).
Included Offense.
An assault is a necessarily included offense
of battery; an aggravated assault is a neces-
sarily included offense of aggravated battery.
State v. Eisele, 107 Idaho 1035, 695 P.2d 420
(Ct. App. 1985).
Even assuming that the misdemeanor of-
fenses of exhibition or use of a deadly weapon,
aiming a firearm at others, and discharge of
arms aimed at another were lesser included
offenses which the district court was obli-
gated to offer to the jury, any error in the
district court's failure to give the instructions
was harmless under the "acquittal first" re-
quirement of
19-2 132(c). Jury would not
have considered the lesser included misde-
meanor offenses because it had unanimously
concluded defendant was guilty of felony ag-
gravated assault (a lesser included offense
than the one charged of assault with intent to
commit a serious felony). State v. Hudson, 129
Idaho 478, 927 P.2d 451 (Ct. App. 1996).
Indictment and Information.
Where the information filed in an aggra-
vated assault prosecution contained a plain,
concise, and definite statement of the essen-
tial facts constituting the offense charged, the
failure of the information to list the precise
subsections of the statutes that the defendant
was alleged to have violated did not render
the information legally insufficient. State v.
Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App.
1982).
Where although the judge did not explicitly
define the intent element of the alleged crime
but did state the offense charged and enunci-
ated defendant's rights, including the right to
insist that the state meet its burden of proof
and also asked the prosecutor to narrate the
underlying facts which he did, defendant was
informed of the gravamen of the charge
against him and was adequately informed of
the nature of the charge, aggravated assault.
State v. Bonaparte, 114 Idaho 577, 759 P.2d 83
(Ct. App. 1988).
Instructions.
In prosecution for aggravated assault, the
evidence did not require the court to give the
requested instruction on assault, where the
defendant admitted holding the gun but de-
nied pointing it or making a threatening
statement. State v. Mason, 111 Idaho 660, 726
P.2d 772 (Ct. App. 1986).
Defendant's conviction was vacated be-
cause the statement in the jury instruction
that "upon a showing of criminal negligence,
the law will impute or attribute to the defen-
dant a willful intention even though he may
not in fact have entertained such intention"
diminished the state's burden on the mental
element of assault under subsection (b) and,
in effect, modified the mens rea element from
intent to negligence. State v. Crowe, 135
Idaho 43, 13 P.3d 1256 (Ct. App. 2000).
Court was not required to instruct the jury,
and the state was not required to prove be-
yond a reasonable doubt, that defendant in-
tended to cause apprehension in the victim; to
convict defendant of aggravated assault the
state needed only to prove, under subsection
(b), defendant's intent to threaten by word or
act, and not a separate specific intent to cause
apprehension in the victim. State v. Dudley,
137 Idaho 888, 55 P.3d 890 (Ct. App. 2002).
18-901 and 18-

897, 55 P.3d 890 (Ct. App. 2002).
Prior Acts.
Where defendant's prior bad acts of stalk-
ing and harassing defendant's girlfriend were
not similar to the aggravated assaults com-
mitted against police officers, the admission
of the acts was erroneous but harmless. State
v. Alsanea, 138 Idaho 733, 69 P.3d 153 (Ct.
App. 2003).
law enforcement officer, the prosecutor's re-
mark improperly predicting future confronta-
tions between the defendant and the police
was not fundamental error, requiring reversal
of the judgment of conviction, where the de-
fendant made no objection to the argument
nor did he move for a mistrial or otherwise
challenge the comment before the case was
submitted to the jury, and the remark was not
so egregious or inflammatory that any preju-
dice arising therefrom could not have been
remedied by a ruling from the trial court.
State v. Missamore, 114 Idaho 879, 761 P. 2d
1231 (Ct. App. 1988).
Sentence.
The record reveals that the court properly
considered the appropriate goals of sentenc-
ing when it imposed the five-year term, noted
the violence inherent in defendant's act, and
ordered a sentence within the statutory max-
imum. State v. Adams, 120 Idaho 350, 815
P.2d 1090 (Ct. App. 1991).
The 15-year indeterminate part of defen-
dant's sentences was reasonable in light of his
numerous prior alcohol-related driving of-
fenses and his extensive history of repetitive
unlawful behavior. State v. Hildreth, 120
Idaho 573, 817 P.2d 1097 (Ct. App. 1991).
The judge fairly considered each of the
sentencing factors in that he noted the defen-
dant undoubtedly had been an outstanding
worker who could be a productive member of
society but for his alcohol and glue addictions;
the protection of society was properly consid-
ered to be of primary importance in arriving
at an appropriate sentence; defendant was a
longtime alcoholic; he had undergone counsel-
ing and treatment; he had been given proba-
tion, paid fines and been incarcerated several
times, and nothing had worked to stop his
driving while intoxicated; and no short-term
rehabilitative program had been shown to be
effective; therefore the five-year minimum
period of incarceration was reasonable for the
crime of DUI and aggravated assault. State v.
Hildreth, 120 Idaho 573, 817 P.2d 1097 (Ct.
App. 1991).
The district judge believed that any further
reduction in sentence would depreciate the
seriousness of the defendant's crime, namely,
shooting a pistol at police officers chasing him
on foot, regardless of defendant's current in-
stitutional adjustment, rehabilitation goals,
and conditions at the penitentiary; the rea-
soning of the judge in denying the Rule 35
motion indicated no abuse of discretion. State
v. White, 121 Idaho 876, 828 P.2d 905 (Ct.
App. 1992).
The district court did not abuse its sentenc-
ing discretion when it ordered the execution
of a previously imposed sentence and modi-
fied the sentence to four years fixed with
one-year indeterminate for aggravated as-
sault. The court adequately considered the
extent of defendant's mental state when com-
bined with her substance addiction and her
extensive record. State v. Tesheep, 122 Idaho
759, 838 P.2d 888 (Ct. App. 1992).
Analysis
Attempt.
Included offense.
Instruction.
Rape.
Attempt.
M
The pointing of a loaded gun, combined
with a stated or implied threat, was sufficient
to justify a jury's finding of "attempt," even if
the threat was a conditional threat. State v.
Mathewson, 93 Idaho 769, 472 P2d 638
(1970).
Included Offense.
The language of the charging part of the
information, of "assault with intent to commit
murder" was sufficient to charge "assault
with a deadly weapon," an included offense
pursuant to 19-2312; it clearly appeared
that the intent of appellant to do what the
jury found he did was sufficiently established
by the commission of the acts and circum-
stances surrounding them. State v.
Missenberger, 86 Idaho 321, 386 P.2d 559
(1963).
An information charging an assault with
intent to commit murder by then and there
striking, hitting, and beating a person with a
heavy stick or club did not charge an assault
with means and force likely to produce great
bodily injury. State v. Singh, 34 Idaho 742,
203 P. 1064 (1921).
The charge that a man committed battery
necessarily included the charge that the bat-
tery was preceded by an assault which culmi-
nated in the battery. There could be no bat-
tery without a previous assault. A person
cannot wilfully strike another without mak-
ing an unlawful attempt to do so. An assault
is an inchoate battery. Hence, a complaint
charging battery sustains a conviction for
assault. State v. Wilding, 57 Idaho 149, 63
P2d 659 (1936).
Crime of assault with deadly weapon is not
necessarily included in the statutory defini-
tion of murder, and therefore a person cannot
be convicted of former crime under informa-
tion for latter unless information alleges that
the murder was committed by an assault with
a deadly weapon, or by any means or force
likely to produce great bodily injury. In re
McLeod, 23 Idaho 257, 128 P. 1106, 43 L.R.A.
(n.s.) 813 (1913); State v. Singh, 34 Idaho 742,
203 P. 1064 (1921).
An information charging an assault and
battery on a named person by striking, beat-
ing, wounding and bruising him until he
became unconscious and by reason of which
he was permanently injured and suffered a
long illness charged a battery. State v.
Crawford, 32 Idaho 165, 179 P. 511 (1919).
Information held defective as not charging
statutory elements. State v. Crawford, 32
Idaho 165, 179 P. 511 (1919).
Instruction.
The following instruction was correct: "A
mere threat or menace to do violence, without
any overt attempt to do violence is not an
assault; an apparent effort to do violence,
without the existence of a present ability at
the time to do the violence apparently at-
tempted, would not be an assault; and a gun
is not a deadly weapon, within the meaning of
this statute, unless it is loaded; consequently
in this case, in order that you may find the
defendant guilty, you must find beyond a
reasonable doubt that he pointed and aimed a
loaded gun at the complaining witness,
within a distance at which the gun, if dis-
charged, could have committed a violent in-
jury upon the person of the complaining wit-
ness, and that the defendant unlawfully
attempted to commit such injury by means of
such gun." State v. Yturaspe, 22 Idaho 360,
125 P. 802 (1912).
Rape.
In prosecution for statutory rape, defen-
dant may be convicted of simple assault. State
v. Garney, 45 Idaho 768, 265 P. 668 (1928).
Charge of lewd and lascivious conduct on
body of female child under age of 16 does not
necessarily include assault with intent to
rape, but charge of assault with intent to rape
minor child does include charge of lewd and
lascivious conduct. State v. Petty, 73 Idaho
136, 248 P2d 218 (1952), appeal dismissed,
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1953).
Information, which charged defendant with
committing lewd and lascivious acts on fe-
male under the age of 16 with the intent of
arousing, appealing to and gratifying the
lusts and passions of sexual desires of said
defendant and of said minor, and which added
"with the intent and purpose of having sexual
intercourse with the said minor child," the
last sentence was surplusage, since state in-
tended to charge defendant under
18-6607
(now
18-1508), to-wit lewd and lascivious
conduct. State v. Petty, 73 Idaho 136, 248 P2d
218 (1952), appeal dismissed, 345 U.S. 938,
73 S. Ct. 834, 97 L. Ed. 1364 (1953).
Assault and Battery, 1, 2.
6A C.J.S., Assault and Battery, 2.
Acquittal on charge as to one as bar to
charge as to the other, where one person is
assaulted by acts directed at another. 2 A.L.R.
606.
Assault in attempting to prevent elope-
ment. 8 A.L.R. 660.
Insufficient lighting as proximate cause of
assault. 11 A.L.R. 1414.
Assault in connection with use of automo-
bile for unlawful purpose or in violation of
law. 16 A.L.R. 914; 21 A.L.R. 1504; 27 A.L.R.
1182; 30 A.L.R. 66; 41 A.L.R. 725; 42 A.L.R.
1120; 46 A.L.R. 1060; 49 A.L.R. 608; 53 A.L.R.
254; 99 A.L.R. 756.
Peace officers' criminal responsibility for
wounding one whom they wished to investi-
gate or identify. 18 A.L.R. 1368; 61 A.L.R. 321.
"Infamous offense," assault as, within con-
stitutional or statutory provision in relation
to presentment or indictment by grand jury.
24 A.L.R. 1007.
Assault in defense of habitation or property.
25 A.L.R. 537; 32 A.L.R. 1541; 34 A.L.R. 1488.
Sense of shame, or other disagreeable emo-
tion on part of female, as essential to an
aggravated or indecent assault. 27 A.L.R. 859.
Indecent assault, reduction by appellate
court of punishment imposed by trial court.
29 A.L.R. 335; 89 A.L.R. 295.
Right of one in loco parentis other than
teacher to punish child. 43 A.L.R. 507.
Illegal arrest, right of self-defense by officer
attempting. 46 A.L.R. 904.
Self-defense by one who has rightfully en-
tered on premises of his assailant. 53 A.L.R.
486.
Peace bond, assault as breach of. 54 A.L.R.
391.
"Third degree," police officers' criminal lia-
bility in respect of examination of persons
under arrest. 79 A.L.R. 457.
Automobile, assault in connection with neg-
ligent operation of, or its use for unlawful
purpose or in violation of law. 99 A.L.R. 835.
Danger or apparent danger or death or
great bodily harm as condition of right of
self-defense. 114 A.L.R. 634.
Instruction applying rule of reasonable
doubt with respect to defendant's claim of
self-defense as curing instruction placing bur-
den of proof upon defendant in that regard.
120 A.L.R. 595.
Right to use force to obtain possession of
real property to which one is entitled. 141
A.L.R. 273.
Liability for assault by joint adventurer. 30
A.L.R.2d 859.
fense. 79 A.L.R.2d 597.
Criminal liability for excessive or improper
punishment inflicted on child by parent,
teacher, or one in loco parentis. 89 A.L.R.2d
396.
What conduct by repossessing chattel mort-
gagee or conditional vendor entails tort liabil-
ity. 99 A.L.R.2d 358.
Relationship with assailant's wife as prov-
ocation depriving defendant of right of self-
defense. 9 A.L.R.3d 933.
Consent as defense to charge of criminal
assault. 58 A.L.R.3d 662.
fense. 93 A.L.R.5th 683.
18-902. Assault
Punishment.

An assault is punishable by fine
not exceeding three hundred dollars
($300), or by imprisonment in the
county jail not to exceed three (3) months, or by both such fine and
imprisonment. [I.C.,

18-902, as added by 1979, ch. 227, 2, p. 624; am.
1982, ch. 246, 1, p. 633.]

18-902 was
repealed, see compiler's notes,
18-901.
in 19-603.
Cited in: State v. Josephson, 124 Idaho
286, 858 P.2d 825.. (Ct. App. 1993).
Analysis
Discharging firearm.
Information or indictment.
Discharging Firearm.
Firing a shotgun at and toward victim con-
stituted battery. State v. Patterson, 60 Idaho
67, 88 P.2d 493 (1939).
Information or Indictment.
A complaint, charging the accused with
battery by wilfully and unlawfully striking
and fighting a certain person, charges an
assault and will sustain a conviction for as-
sault, since no battery could be committed
without being preceded by assault. State v.
Wilding, 57 Idaho 149, 63 P.2d 659 (1936).
Assault and Battery,
3, 6, 7.
Right to resist excessive force used in ac-
complishing lawful arrest. 77 A.L.R.3d 281.
18-903. Battery defined.
A battery is any:
(a) Willful and unlawful use of force or violence upon the person of
another; or
(b) Actual, intentional and unlawful touching or striking of another
person against the will of the other; or
(c) Unlawfully and intentionally causing bodily harm to an individual.
[I.C.,

18-903, as 'added by 1979, ch. 227, 2, p. 624.]
18-903 was
18-901.
in

18-915, 18-918, 18-920 and 19-603.
Cited in: State v. Tucker, 103 Idaho 885,
655 P.2d 92 (Ct. App. 1982); State v.
Burroughs, 107 Idaho 195, 687 P.2d 585 (Ct.
App. 1984); State v. Fink, 107 Idaho 1031, 695
P.2d 416 (Ct. App. 1985); State v. Major, 111
Idaho 410, 725 P.2d 115 (1986); State v.
Marek, 112 Idaho 860, 736 P2d 1314 (1987);
State v. Hancock, 112 Idaho 950, 738 P. 2d 420
(1987); State v. McDougall, 113 Idaho 900,
749 P.2d 1025 (Ct. App. 1988); State v. Spurr,
114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988);
State v. Barton, 119 Idaho 114, 803 P.2d 1020
(Ct. App. 1991); State v. Bolton, 119 Idaho
846, 810 P.2d 1132 (Ct. App. 1991); State v.
App. 1991); State v. Stoddard, 122 Idaho 865,
840 P.2d 409 (Ct. App. 1992); State v. Bow-
man, 124 Idaho 936, 866 P.2d 193 (Ct. App.
1993); State v. Velasquez-Delacruz, 125 Idaho
320, 870 P.2d 673 (Ct. App. 1994); State v.
Carlson, 134 Idaho 389, 3 P.3d 67 (Ct. App.
2000); State v. Clark, 135 Idaho 255, 16 P.3d
931 (2000); State v. Hellickson, 135 Idaho 742,
24 P.3d 59 (2001); State v. Larsen, 135 Idaho
754, 24 P.3d 702 (2001); State v. Prather, 135
Idaho 770, 25 P.3d 83 (2001); State v. Pole,
Idaho , 79 P.3d 729 (Ct. App. 2003), review

denied,
P.3d
(Nov. 30, 2003).

Analysis
Evidence.
Felony domestic violence.
Included offense.
Informing defendant of offense charged.
Intent.
Jury instructions.
Juveniles.
Sentence.
Evidence.
Evidence that a lawyer touched a client
without the solicitation of the client and
against the client's wishes and the touching
resulted in bruises on the client's arm was
sufficient to prove that the lawyer was guilty
of battery under subsection (b) of this section.
Idaho State Bar v. Williams, 122 Idaho 404,
834 P.2d 1320 (1992).
Evidence at trial was sufficient to support
verdict that defendant used his pickup truck
to perpetrate battery upon his wife, where
there was evidence that this truck struck
vehicle which defendant's wife was driving,
for willful use of force or intentional striking
of another person that was made criminal by
this section (1) could be committed indirectly
through intervening agency which defendant
set in motion, (2) did not need to be committed
directly against alleged victim, and (3) could
be committed against anything intimately
connected with person of alleged victim. State
v. Townsend, 124 Idaho 881, 865 P.2d 972
(1993).
defendant's conviction of misdemeanor bat-
tery; the victim told police and the jury of
defendant's battery, and an officer testified as
to the injuries the victim sustained as a result
of the battery. State v. Anderson, 138 Idaho
359, 63 P.3d 485 (Ct. App. 2003).
Felony Domestic Violence.
Crime of felony domestic violence under
Idaho Code 18-918(3) requires a person to
commit a battery, as defined in Idaho Code
18-903, and requires that the person will-
fully inflict a traumatic injury. State v. Reyes,
Idaho , 80 P.3d 1103 (Ct. App. 2003).

Included Offense.
(Ct. App. 1985).
Informing Defendant of Offense
Charged.
Section 19-608 requires that the person be
informed of the cause of the arrest and not the
charge for which he might eventually be made
to answer; thus, although defendant's under-
lying arrest was validated under a different
charge (aggravated battery) than that for
which he was originally cited (misdemeanor
domestic battery), defendant was informed of
the cause of his arrest, the alleged battery
committed on his wife, and such arrest was
lawful. State v. Julian, 129 Idaho 133, 922
P.2d 1059 (1996).
Intent.
Where defendant insisted 13-year-old girl
go upstairs and show him where some towels
were, followed her, blocked the hall, pushed
her into the bedroom and, pointing to the bed,
stated "Right here should be fine," the jury
could have reasonably concluded that, by suc-
cessfully getting away, the girl had escaped
being a victim of rape or lewd conduct; thus,
defendant was unable to demonstrate on ap-
peal that there was insufficient evidence to
support the jury's conviction for battery with
the intent to commit a serious felony. State v.
Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct.
App. 1996).
Proof of a violation of 18-903(a) requires
a showing that the accused purposely used
force or violence upon the victim's body, al-
though it is not necessary that the defendant
know that the act is illegal or intend that it
cause bodily injury, but only that the defen-
dant intend a forceful or violent contact with
the other person, while a conviction for viola-
tion of 18-903(b) requires proof of intent to
touch or strike another person, and the intent
element to be proved under 18-903(c) is
intent to cause bodily harm to a person; thus,
under any of the subsections of 18-903, an
intent to cause physical contact or touching is
necessary. State v. Billings, 137 Idaho 827, 54
P.3d 470 (Ct. App. 2002).
Jury Instructions.
Where the district court instructed the jury
in an aggravated battery trial on the lesser
included offense of injuring another by dis-
charge of an aimed firearm, and also gave the
jury an "acquittal first" instruction, the jury's
unanimous verdict convicting the defendant
of aggravated battery foreclosed it from con-
sidering whether he was guilty of any lesser-
included offenses, and any potential error in
the district court's failure to give requested
instructions on additional lesser-included of-
fenses was harmless. State v. Trejo, 132 Idaho
872, 979 P.2d 1230 (Ct. App. 1999).

18-901 and
18-

897, 55 P.3d 890 (Ct. App. 2002).
Juveniles.
Unlike status offenses, for which certain
conduct is proscribed only if the actor is a
juvenile, the perpetrator's age is not an ele-
ment of the offense of battery under Idaho
Code
18-903. Where a seventeen-year-old
minor committed battery, the State was not
required to prove her status as a juvenile at
the evidentiary hearing in order to establish
her guilt. State v. Doe (In re Doe),
Idaho
,
79 P.3d 165 (Ct. App. 2003).
Sentence.
A unified sentence of 15 years with a mini-
mum period of confinement of ten years for
conviction of aggravated battery was not an
abuse of discretion where defendant inflicted
numerous serious injuries upon the victim,
who was his girlfriend, by beating her se-
verely, defendant kicked or stomped on her
with his feet, a glass dining room table was
smashed over her body and chairs were piled
on top of that, victim was found unconscious
in a pool of blood by her landlady and young
son, the victim received permanent physical
damage and psychological harm and defen-
dant's criminal record consisted of six felony
convictions, including sexual assault, break-
ing and entering and larceny, and 21 misde-
meanors. State v. Burns, 121 Idaho 788, 828
P.2d 351 (Ct. App. 1992).
Supreme Court in review of denial of I.C.R.
35 motion did not abuse its discretion in not
reducing sentence of fifteen years for aggra-
vated battery plus a consecutive enhance of
twelve years, where the sentence imposed
was within the statutory maximums, where
the crime committed involved an act of do-
mestic violence which caused life-threatening
harm to defendant's former wife and was
committed in the presence of their 14-year-old
son, where although alcohol was a factor it
could not be used as defense to excuse the
actions, where there was no provocation for
the attack which was a result of an ongoing
cycle of domestic violence that escalated over
the years, where the victim impact statement
disclosed a long history of abuse and terror
directed at former wife by defendant, where
protection of victim and son were viewed as a
paramount concern, and where defendant
presented no evidence of any serious rehabil-
itation effort on his part. State v. Wickel, 126
Idaho 578, 887 P.2d 1085 (Ct. App. 1994).
Since a sentencing court may, with due
caution, consider the existence of a defen-
dant's alleged criminal activity for which no
charges have been filed or where charges have
been dismissed, there was no error in sentenc-
ing court's determination of the significance
to be placed on victim's account of defendant's
prior, uncharged criminal acts against her.
State v. Wickel, 126 Idaho 578, 887 P.2d 1085
(Ct. App. 1994).
Where district court found that defendant
was a multiple offender with prior convictions
of voluntary manslaughter and malicious
wounding, that he lied in writing to the court
regarding his prior offenses, and that he had
the potential to inflict serious harm, defen-
dant was unable to show on appeal that his
sentence to a fixed term of 15 years for con-
viction for battery with intent to commit a
serious felony was excessive under the facts.
State v. Monroe, 128 Idaho 676, 917 P.2d 1316
(Ct. App. 1996).
18-904. Battery
Punishment.
Battery is punishable by a fine not

exceeding five hundred dollars ($500), or by imprisonment in the county jail
not to exceed six (6) months, or both unless the victim is pregnant and this
fact is known to the batterer, in which case the punishment is by a fine not
exceeding one thousand dollars
($1,000), or by imprisonment in the county
jail not to exceed one
(1)
year, or both. [I.C.,

18-904, as added by 1979, ch.
227, 2, p. 624; am. 1996, ch. 227, 1, p. 741.]
18-904 was
18-901.
Cited in: State v. Cootz, 110 Idaho 807, 718
P.2d 1245 (Ct. App. 1986).
18-905. Aggravated assault defined.
An aggravated assault is an
assault:
(a) With a deadly weapon or instrument without intent to kill; or
(b) By any means or force likely to produce great bodily harm.[; or]
(c) With any vitriol, corrosive acid, or a caustic chemical of any kind.
(d) "Deadly weapon or instrument" as used in this chapter is denned to
include any firearm, though unloaded or so defective that it can not be fired.
[I.C.,

18-905, as added by 1979, ch. 227, 2, p. 624.]
18-905 was
18-901.
The bracketed material in subdivision (b)
was inserted by the compiler.
in
18-310, 18-920, 19-2520, 19-5307, 19-
5506, and 33-1208.
Cited in: State v. Browning, 107 Idaho 870,
693 P.2d 1072 (Ct. App. 1984); State v.
Galbraith, 111 Idaho 379, 723 P.2d 923 (Ct.
App. 1986); State v. Torres, 112 Idaho 801, 736
P.2d 853 (Ct. App. 1987); State v. Pugsley, 119
v. Fee, 124 Idaho 170, 857 P.2d 649 (Ct. App.
1993); State v. Leach, 126 Idaho 977, 895 P2d
578 (Ct. App. 1995); State v. Medina, 128
v. Page, 135 Idaho 214, 16 P.3d 890 (2000).
Analysis
Constitutionality.
Deadly weapon.
Evidence.
In general.
Sufficient.
Firearm.
Enhancement of sentence.
Included offense.
Information.
Instructions.
Sentence.
Constitutionality.
This section is not constitutionally defective
for failure to define precisely the meaning of a
"deadly weapon." State v. Lenz, 103 Idaho
632, 651 P.2d 566 (Ct. App. 1982).
Deadly Weapon.
While the courts are divided on whether a
pocket knife represents a "deadly weapon" per
se, it is the general rule that a pocket knife
may be a deadly weapon, depending on the
circumstances of its use. Therefore, where the
facts showed that the defendant pointed a
pocket knife at two men and threatened to kill
them, he was properly convicted of aggra-
vated assault. State v. Lenz, 103 Idaho 632,
651 P2d 566 (Ct. App. 1982).
If an assailant uses a deadly weapon with-
out intent to kill, then the crime becomes an
aggravated assault. State v. Olson, 119 Idaho
370, 806 P.2d 963 (Ct. App. 1991).
Hands, or other body parts or appendages,
may not, by themselves, constitute deadly
weapons under this section. State v.
Townsend, 124 Idaho 881, 865 P.2d 972
(1993).
Defendant's post-conviction petition alleged
that the information under which he was
convicted failed to state a felony offense, as it
charged that he committed aggravated as-
sault with a deadly weapon by using his
hands to choke the victim and State v.
(1993), held that hands and other body parts
or appendages may not by themselves be
considered deadly weapons; however, since
defendant's appeal from the district court's
decision was final at the time Townsend was
decided, it did not apply to defendant's case.
Butler v. State, 129 Idaho 899, 935 P.2d 162
(1997).
Legislative policy expressed within
18-
901 and this section evidence an intent that it
is a victim's reasonable perception that is
dispositive of the question of whether a
weapon, such as an unloaded crossbow, is
deadly. State v. Cudd, 137 Idaho .625, 51 P.3d
439 (Ct. App. 2002).
Evidence.
In General.
879, 761 P.2d 1231 (Ct. App. 1988).
Sufficient.
In prosecution for aggravated battery and
aggravated assault, sufficient proof was pre-
sented for the jury to find beyond a reasonable
doubt that the defendant acted in violation of
the law and that he harbored the intent
necessary to violate the laws, where he pre-
cipitated the conflict by confronting his par-
ents, he discharged his weapon at persons in
the yard around his home, and, as a result,
one law enforcement officer was seriously
injured. State v. McDougall, 113 Idaho 900,
749 P.2d 1025 (Ct. App. 1988).
Where defendant kicked wife one time in
the head with his hiking boot and the kick
resulted in a cut on wife's head which re-
quired stitches to close, a rational trier of fact
could have found beyond a reasonable doubt
that the boot was of the type and used in such
a manner that was likely to produce death or
great bodily injury; therefore, the defendant's
conviction of aggravated assault with a
deadly weapon was affirmed. State v. Huston,
121 Idaho 738, 828 P.2d 301 (1992).
The state offered sufficient substantial and
competent evidence for a jury to convict de-
fendant of aggravated assault on a law officer.
State v. Daniels, 134 Idaho 896, 11 P.3d 1114
(2000).
Evidence was sufficient to support defen-
dant's conviction of aggravated battery and
assault on a law officer, and there was no
abuse of discretion in sentencing given defen-
dant's criminal history; a jury could have
reasonably concluded from the evidence that
defendant intended to shoot the officers in-
volved in the altercation, instead of attempt-
ing suicide as defendant contended, given the
fact that defendant pointed the gun at them
when he gained control over it. State v.
Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App.
2002).
Court, in defendant's aggravated assault
case, erred by dismissing the charge where
there was probable cause to try defendant on
the charge as there was sufficient evidence
showing that defendant intended to make a
threat to a roommate during a game of Rus-
sian roulette by pointing a gun at the room-
mate, and because the roommate was fright-
ened. State v. Pole,

Idaho , 79 P.3d 729
(Ct. App. 2003), review denied,

P.3d

(Nov. 30, 2003).
Firearm.
Enhancement of Sentence.
Where aggravated assault involved a fire-
arm, the enhancement of defendant's sen-
tence for using a firearm did not violate his
constitutional right against double jeopardy;
the Idaho legislature intended that certain
crimes, when committed with a firearm,
should receive greater penalties than if no
firearm had been used, and the legislature
adopted this section and
19-2520 to achieve
this result. State v. Metzgar, 109 Idaho 732,
710 P.2d 642 (Ct. App. 1985).
District court should not have instructed
the jury on the firearm enhancement by de-
fining a firearm consistent with the definition
of a deadly weapon in the aggravated assault
statute, Idaho Code
18-905. State v.
McLeskey, 138 Idaho 691, 69 P.3d 111 (2003).
Included Offense.
(Ct. App. 1985).
Because the use of a pistol was recited in
the elements of the aggravated assault and
also appeared in the kidnapping enhance-
ment as charged, the aggravated assault
charge was an included offense of the kidnap-
ping charge and the separate conviction for
aggravated assault must be vacated. State v.
Bryant, 127 Idaho 24, 896 P.2d 350 (Ct. App.
1995).
quirement of
Idaho 478, 927 P.2d 451 (Ct. App. 1996).
Information.
Where the information filed in an aggra-
vated assault prosecution contained a plain,
concise, and definite statement of the essen-
tial facts constituting the offense charged, the
failure of the information to list the precise
subsections of the statutes that the defendant
was alleged to have violated did not render
the information legally insufficient. State v.
Lenz, 103 Idaho 632, 651 P2d 566 (Ct. App.
1982).
Where although the judge did not explicitly
define the intent element of the alleged crime
but did state the offense charged and enunci-
ated defendant's rights, including the right to
insist that the state meet its burden of proof
and also asked the prosecutor to narrate the
underlying facts which he did, defendant was
informed of the gravamen of the charge
against him and was adequately informed of
the nature of the charge, aggravated assault.
State v. Bonaparte, 114 Idaho 577, 759 P. 2d 83
(Ct. App. 1988).
Instructions.
trial court did not err in refusing to give the
requested self-defense instructions where any
threat to the defendant had subsided when
the victim left his presence; thus, he was not
"about to be injured" and lawful resistance
was unnecessary. State v. Mason, 111 Idaho
660, 726 P.2d 772 (Ct. App. 1986).
evidence did not require the court to give the
requested instruction on assault, where the
defendant admitted holding the gun but de-
nied pointing it or making a threatening
statement. State v. Mason, 111 Idaho 660, 726
P.2d 772 (Ct. App. 1986).
trial court erred in refusing to give the exhib-
iting a deadly weapon instruction requested
by the defendant, where the jury could have
concluded that the defendant
not acting in
self-defense
and in the presence of at least

four witnesses exhibited his revolver in a
rude, angry and threatening manner. State v.
Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App.
1986).
Defendant's conviction was vacated be-
cause the statement in the jury instruction
that "upon a showing of criminal negligence,
the law will impute or attribute to the defen-
dant a willful intention even though he may
not in fact have entertained such intention"
diminished the state's burden on the mental
element of assault under 18-901(b) and in
effect modified the mens rea element from
intent to negligence. State v. Crowe, 135
Idaho 43, 13 P.3d 1256 (Ct. App. 2000).
State v. Missamore, 114 Idaho 879, 761 P.2d
1231 (Ct. App. 1988).
Sentence.
The defendant's five-year indeterminate
sentence for aggravated assault was not an
abuse of discretion, despite factors which mit-
igated against imposing a maximum sen-
tence, where the defendant had previously
been convicted of other felonies and had a
history of probation violations. State v. Bell,
115 Idaho 81, 764 P.2d 448 (Ct. App. 1988).
Where defendant, convicted of aggravated
assault, second degree kidnapping, misde-
meanor battery, and use of a firearm in the
commission of a crime, had an extensive crim-
inal record, where it was apparent that some
of his previous criminal behavior involved
violence and he had before violated law re-
garding use of firearms and demonstrated
that he seemed to be drawn toward criminal
behavior and where district judge noted that
defendant had almost no prospects for reha-
bilitation, that he had violated probation in
the past and it was, in fact, only a day after
his release from jail that the present offenses
occurred, it was reasonable to conclude that
serious risk of harm to the public might result
absent a lengthy period of incarceration and,
therefore, sentence that would result in ten
years incarceration was not unreasonable in
light of sentencing goals which include: retri-
bution, rehabilitation, deterrence and the pro-
tection of society. State v. Arledge, 119 Idaho
584, 808 P.2d 1329 (Ct. App. 1991).
P2d 1090 (Ct. App. 1991).
Idaho 573, 817 P.2d 1097 (Ct. App. 1991).
effective; therefore, the five-year minimum
Hildreth, 120 Idaho 573, 817 P2d 1097 (Ct.
App. 1991).
ing discretion when it ordered the execution
of a previously imposed sentence and modi-
fied the sentence to four years fixed with
one-year indeterminate for aggravated as-
sault. The court adequately considered the
extent of defendant's mental state when com-
bined with her substance addiction and her
extensive record. State v. Tesheep, 122 Idaho
759, 838 P.2d 888 (Ct. App. 1992).
Analysis
Assault by pointing pistol.
Evidence of prior conduct.
Included offense.
Information.
In general.
Instructions.
Lesser included offenses.
Performance of police duties.
Sentence.
Voluntariness of plea.
Assault by Pointing Pistol.
In prosecution for assault by pointing pis-
tol, state must show that pistol was loaded at
time it was pointed. State v. Yturaspe, 22
Idaho 360, 125 P. 802 (1912); State v. Bush, 50
Idaho 166, 295 P. 432 (1930).
Evidence of Prior Conduct.
In prosecution of tribal game warden for
assault with a dangerous and deadly weapon,
evidence tending to show that defendant had
either expressly or impliedly threatened to
use a firearm or actually pointed a firearm at
persons trespassing on the reservation was
properly admitted as bearing on defendant's
intent and state of mind. United States v.
Burns, 529 F.2d 114 (9th Cir. 1975).
Included Offense.
Where the information charged an aggra-
vated battery, committed by defendant with
premeditated design and by means calculated
and likely to inflict great bodily injury, the
information was sufficient to charge an aggra-
vated assault as well as aggravated battery;
the assault having been alleged as the man-
ner and means of the commission of the
aggravated battery, it was an included offense
and the information, therefore, was not
duplicitous. State v. Blacksten, 86 Idaho 401,
387 P.2d 467 (1963).
Crime of assault with deadly weapon is not
necessarily included in statutory definition of
murder, and therefore a person cannot be
convicted of former crime under an informa-
tion for latter, unless information alleges that
the murder was committed by an assault with
a deadly weapon, or by a means or force likely
to produce great bodily injury. In re McLeod,
23 Idaho 257, 128 P. 1106, 43 L.R.A. (n.s.) 813
(1913); State v. Singh, 34 Idaho 742, 203 P.
1064 (1921).
The court held that charging part of infor-
mation does not mention elements of an as-
sault found in the statutory definition, but
does charge battery. State v. Crawford, 32
Idaho 165, 179 P. 511 (1919).
Demurrer to information charging assault
with two deadly weapons, on ground that it
stated two offenses, should not be sustained.
State v. Bush, 50 Idaho 166, 295 P. 432 (1930).
murder" was sufficient to charge "assault
with a deadly weapon," an included offense
pursuant to
19-2312; it clearly appeared
that the intent of appellant to do what the
jury found he did was sufficiently established
by the commission of the acts and circum-
stances surrounding them. State v.
Missenberger, 86 Idaho 321, 386 P. 2d 559
(1963).
The fact that information did not sepa-
rately name the offenses of assault with in-
tent to murder and assault with a deadly
weapon in no way prejudiced defendant. State
v. Poison, 92 Idaho 615, 448 P2d 229 (1968),
L. Ed. 2d 765 (1969).
Information.
An information which charged that the de-
fendant assaulted the prosecuting witness
"with the premeditated design then and there
had, by a use and means calculated to inflict
great bodily injury ... by striking and beating
him with his hands and fists and by kicking"
him was sufficient as against demurrer. State
v. McKeehan, 91 Idaho 808, 430 P.2d 886
(1967).
In General.
Assault, if committed with a deadly weapon
or by means of force likely to produce bodily
injury, is an assault with a deadly weapon and
punishable as such. It may be committed
without wilful intent if perpetrator be guilty
of criminal negligence in the use of the
weapon or force whereby it is committed.
State v. Patterson, 60 Idaho 167, 88 P.2d 493
(1939).
Instructions.
Failure of court to give instruction as to
disparity of age and physical condition of the
parties to an affray, justifying the weaker and
older party in using a weapon to defend
himself, was not reversible error, where the
jurors had both parties before them and were
qualified to determine whether the defendant,
being the older was the weaker of the two and
was justified in using the force and means
used. State v. Blacksten, 86 Idaho 401, 387
P.2d 467 (1963).
Where a considerable disparity is revealed
by the evidence or the appearance of the
parties, the court may, in its discretion, in-
struct on the disparity in the ages and phys-
ical conditions of the parties to the affray and
that such disparity might justify the weaker
in using a weapon to defend himself though
the other party be unarmed. State v.
Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).
Lesser Included Offenses.
Assault with a deadly weapon is not "nec-
essarily committed" in the commission of at-
tempted rape, because attempted rape is not
always committed with a deadly weapon nor
is attempted rape necessarily committed in
an assault with a deadly weapon, because
such an assault is not always committed with
an intent to rape; thus, where neither crime
was alleged, in the prosecutor's information,
to be the means or an element of the commis-
sion of the other, assault with a deadly
weapon was not an included offense of the
attempted rape. Bates v. State, 106 Idaho 395,
679 P.2d 672 (Ct. App. 1984).
Performance of Police Duties.
In prosecution of tribal game warden for
assault with a dangerous and deadly weapon,
evidence that defendant pointed a loaded au-
tomatic pistol at non-Indian who had tres-
passed onto Indian reservation for the pur-
pose of crossing over onto public land
supported trial court's finding that defen-
dant's conduct went beyond the force neces-
sary to carry out his duty as a game warden.
United States v. Burns, 529 F.2d 114 (9th Cir.
1975).
Sentence.
Where the sentence imposed is within the
statutory limits, defendant has the burden of
showing a clear abuse of discretion, which is
dependent upon the circumstances of each
case. State v. Chapa, 98 Idaho 54, 558 P2d 83
(1976).
Where a presentence report in a prosecu-
tion for robbery and assault with a deadly
weapon did not make clear the number of
felonies with which the defendant had previ-
ously been charged but did establish three
previous felony convictions, the error, if any,
was not prejudicial. State v. Jagers, 98 Idaho
779, 572 P.2d 882 (1977).
Despite court's acknowledgment that two-
year prison sentence given to defendant con-
victed of aggravated battery of infant daugh-
ter under former law, denning aggravated
assault and battery and providing punish-
ment therefor, would be of no rehabilitative
value, sentence was not improper inasmuch
as it was well within the three-year statutory
maximum provided in former law and was
imposed in order to deter others from commit-
ting similar offenses. State v. Adams, 99
Idaho 75, 577 P.2d 1123 (1978).
Where, even though defendant's criminal
record was clean during the years immedi-
ately preceding the crimes charged, he had
previously been convicted of multiple felony
and misdemeanor charges, had been incarcer-
ated numerous times, and had suffered from
an uncontrollable alcohol problem, and where
his crime was of a violent nature, involving
the firing of some 16 rounds of ammunition at
two police officers and defendant's mother,
there was no abuse of discretion in imposing
maximum five-year sentence for each of two
counts of assault with a deadly weapon and
an additional five years under
19-2520.
State v. Olsen, 103 Idaho 278, 647 P. 2d 734
(1982).
Voluntariness of Plea.
Where information specifically alleged that
defendant "intentionally" attempted to rape
the victim, where there was no assertion that
defendant was not conversant with the En-
glish language nor was he a stranger to the
charge of attempted rape, having been previ-
ously convicted of attempted rape and forcible
rape, and where details of assault were fully
explored at preliminary hearing, defendant
was made aware, before pleading guilty, of
evidence the state could offer at trial to prove
both the acts and the intent comprising the
attempted rape, and the district court did not
err in determining that, under both the fed-
eral and state standards, pleas of guilty to
attempted rape and assault with a deadly
weapon were voluntary. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).

3442.
6A C.J.S., Assault and Battery,
72,
7780.
Firearm used as bludgeon as a deadly
weapon. 8 A.L.R. 1319.
Cane as a deadly weapon. 30 A.L.R. 815.
Intent to do physical harm as essential
element of crime of assault with deadly or
dangerous weapon. 92 A.L.R.2d 635.
Fact that gun was unloaded as affecting
criminal responsibility. 68 A.L.R.4th 507.
Kicking as aggravated assault, or assault
with dangerous or deadly weapon. 19
A.L.R.5th 823.
18-906. Aggravated assault

Punishment.

An aggravated as-
sault is punishable by imprisonment in the state prison not to exceed five
(5)
years or by fine not exceeding five thousand dollars ($5,000) or by both. [I.C.,
18-906, as added by 1979, ch. 227, 2, p. 624.]

18-906 was
18-901.
Cross ref. Aiming firearms,

18-3304,
18-3305.
Concealed weapons, carrying under influ-
ence of alcohol or drugs,
18-3302B.
Discharge of firearm at dwelling house,
occupied building, vehicle or mobile home
unlawful,
18-3317.
Exhibition of deadly weapons,
18-3303.
Minor, possession of weapons by,
18-
3302E, 18-3302F.
Minor, sale of weapons to, 18-3302A.
Minor, selling of explosives, ammunition or
firearms to,
18-3308.
Possession of deadly weapons, 18-3303.
Possession of deadly weapon with intent to
assault, 18-3301.
Prohibited conduct by person obtaining li-
cense to carry a concealed weapon,

18-
3302C.
School property, carrying weapons on,
18-
3302D.
Unlawful possession of a firearm,
18-
3316.
Cited in: State v. Cardona, 102 Idaho 668,
637 P.2d 1164 (1981); Almada v. State, 108
Idaho 221, 697 P.2d 1235 (Ct. App. 1985);
State v. Galbraith, 111 Idaho 379, 723 P.2d
923 (Ct. App. 1986); State v. Page, 135 Idaho
214, 16 P.3d 890 (2000); State v. Alsanea, 138
Idaho 733, 69 P.3d 153 (Ct. App. 2003).
Analysis
Offense.
Lesser included.
Sentence.
Offense.
Lesser Included.
offense in a charge of attempted robbery, such
der the double jeopardy clause of the fifth
amendment of the United States Constitution
and the Idaho Constitution. State v. Thomp-
son, 101 Idaho 430, 614 P.2d 970 (1980).
(Ct. App. 1985).
Sentence.
Since penalty for attempted robbery is half
of sentence for robbery, which is imprison-
ment for five years to life, while punishment
for assault with a deadly weapon is not more
than five years, assault could not be consid-
ered the greater offense on the grounds that it
carried greater penalty. Although half of life
sentence cannot be calculated, court can set
base maximum sentence at less than life and
use such maximum to determine the sentence
for attempt so that actual sentence fixed for
attempted robbery may be less than sentence
for assault with deadly weapon. State v. Th-
ompson, 101 Idaho 430, 614 P.2d 970 (1980).
An indeterminate sentence of three years'
confinement to run concurrently with a pre-
vious conviction was well within the discre-
tion of the sentencing court in view of the
defendant's previous record and the
presentence report. State v. Larson, 109 Idaho
868, 712 P.2d 569 (1985).
A maximum sentence of a fixed period of
five years, where the actual period of impris-
onment would be approximately three and
two-thirds years, imposed where following
plea negotiations, defendant who was ini-
tially charged with assault accompanied by
intent to commit a serious felony and with
attempted rape entered a plea of guilty of
aggravated assault, was not an abuse of sen-
tencing discretion, where defendant entered
residence with intent to commit burglary and
upon confronting victim brandished a gun
and threatened her with rape, even though
defendant had suffered a troubled childhood,
the death of his mother, the contribution of
alcohol to his behavior and had no prior
felonies as an adult and the fact that he did
not physically harm the victim and had com-
passion when she became ill. State v. Torres,
112 Idaho 801, 736 P.2d 853 (Ct. App. 1987).
Although, in prosecution for aggravated as-
sault and aggravated battery, it was the de-
fendant's first criminal conviction, it involved
a particularly serious and violent series of
offenses which resulted in probable perma-
nent injury to one victim, and a diminished
capacity to act rationally does not excuse the
crime; therefore, the district court did not
abuse its discretion in giving an indetermi-
nate 15-year sentence for the battery and
indeterminate five-year sentences for the as-
saultsall to run concurrently. State v.
App. 1988).
Where defendant charged with aggravated
assault was sentenced to a five-year indeter-
minate sentence, of which defendant would
serve at least 20 months in confinement since
the result of defendant's action in firing the
gun easily could have been a homicide and his
presentence report revealed a long string of
minor crimes and the trial judge noted the
seriousness of the offense, as well as defen-
dant's prior record, acknowledged the role
played by alcohol in defendant's misconduct
and concluded that incarceration was the only
sentencing alternative reasonably available
to protect society from further danger, the
reasons given by the judge for the sentence he
imposed were sound and there was no abuse
of sentencing discretion. State v. Bonaparte,
114 Idaho 577, 759 P.2d 83 (Ct. App. 1988).
A trial court did not abuse its discretion by
imposing a five-year minimum period of con-
finement which was equal to the maximum
punishment allowed for aggravated assault in
light of the court's concern for the defendant's
history of violent crime and the fact that
defendant was on parole when he committed
the charged offense. State v. Gibson, 116
Idaho 265, 775 P.2d 157 (Ct. App. 1989).
Where defendant, convicted of aggravated
assault, second degree kidnapping, misde-
584, 808 P.2d 1329 (Ct. App. 1991).
P2d 1090 (Ct. App. 1991).
A unified sentence of five years with a fixed
two-year period of confinement for one count at the sight of his wife and children in the
of aggravated assault was confirmed, where company of another man, chased the man
defendant, who had an extensive history with with a butcher knife, and struck his es-
the criminal justice system, entered his es- tranged wife. State v. Cortez, 122 Idaho 439,
tranged wife's house, became extremely upset 835 P.2d 674 (Ct. App. 1992).
18-907. Aggravated battery defined.
(1) A person commits aggra-

vated battery who, in committing battery:
(a) Causes great bodily harm, permanent disability or permanent disfig-
urement; or
(b) Uses a deadly weapon or instrument; or
(c) Uses any vitriol, corrosive acid, or a caustic chemical of any nature; or
(d) Uses any poison or other noxious or destructive substance or liquid; or
(e) Upon the person of a pregnant female, causes great bodily harm,
permanent disability or permanent disfigurement to an embryo or fetus.
(2) For purposes of this section the terms "embryo" or "fetus" shall mean
any human in utero.
(3) There shall be no prosecution under subsection (l)(e) of this section:
(a) Of any person for conduct relating to an abortion for which the
consent of the pregnant female, or person authorized by law to act on her
behalf, has been obtained or for which such consent is implied by law.
(b) Ofany person for any medical treatment of the pregnant female or her
embryo or fetus; or
(c) Of any female with respect to her embryo or fetus.
(4) Nothing in this chapter is intended to amend or nullify the provisions
of chapter 6, title 18, Idaho Code. [I.C.,

18-907, as added by 1979, ch. 227,
2, p. 624; am. 2002, ch. 330, 4, p. 935; am. 2002, ch.
337, 2, p. 953.1
18-907 was 389, 3 P.3d 67 (Ct. App. 2000); State v. Lopez,
18-901.
Idaho , 77 P.3d 124 (Ct. App. 2003).
This section was amended by two 2002 acts.
Section 2 of S.L. 2002, ch. 337 amended this
Analysis
section as it read following the amendment of
Deadly weapon or instrument,
the section by section 4 of S.L. 2002, ch. 330.
Evidence.
The 2002 amendment by ch. 330, 4, effec-
Federal crime
tive July
1, 2002, added subsections (l)(e)
"Great bodily harm."
th
J2
U8
ifi" i , o
intent_
tive July 1, 2002, in subsection (3), substi-
jury instruction
tuted "There" for "Nothing in this section" and
"no" for "construed to permit the" near the
Reversible error
beginning and added "under subsection (l)(e)
Sentence
of this section" at the end.
Section 3 of S.L. 2002, ch. 330 is compiled Deadly Weapon or Instrument.
as

18-4016. In determining whether an instrumentality
Sec. to sec. ref. This section is referred to comes within subdivision (b) (now (l)(b)) of
in

18-310, 18-920, 19-2520, 19-5307, 19-
this section, the triers of fact must examine
5506, 20-525A and 33-1208. the circumstances of its use; thus, where the
Cited in: State v. Fink, 107 Idaho 1031, evidence showed that the defendant inmate
695 P.2d 416 (Ct. App. 1985); Almada v. State, swung a sock weighted with batteries at the
108 Idaho 221, 697 P.2d 1235 (Ct. App. 1985); head of the prison guard, causing a laceration
State v. Pearson, 108 Idaho 889, 702 P.2d 927 that required fifteen stitches, the evidence
(Ct. App. 1985); State v. Hancock, 112 Idaho was sufficient to enable the jury to determine
950, 738 P.2d 420 (1987); State v. Stoddard, that the sock weighted with batteries was a
122 Idaho 865, 840 P.2d 409 (Ct. App. 1992); "deadly weapon or instrumentality". State v.
State v. Warren, 123 Idaho 20, 843 P.2d 170 Jones, 109 Idaho 31, 704 P.2d 363 (Ct. App.
(Ct. App. 1992); State v. Carlson, 134 Idaho 1985).
Ill ASSAULT AND BATTERY 18-907
Although a firearm was not the instrument
of physical contact with a battery victim, the
jury reasonably could have found that such a
weapon was employed to intimidate the vic-
tim, causing her to endure physical contacts
which she might otherwise have resisted or
attempted to evade during defendant's phys-
ical contact with her and, under these circum-
stances, the jury's determination that deadly
weapon was used within the meaning of this
section was proper. State v. Cates, 117 Idaho
90, 785 P.2d 654 (Ct. App. 1989), cert, denied,
117 Idaho 372, 788 R2d 187 (1990).
The appellate court could not say there was
insufficient evidence before the trial jury to
support the jury's verdict that a sulphur gun
used by an inmate in an assault on a correc-
tional officer was a deadly weapon; the prison
doctor testified that the officer's eye could
have been permanently disabled and the de-
fendant testified that he used the gun in his
left hand and turned his eyes away to avoid
injury to his good hand or to his eyes if the
gun blew up. State v. Matthews, 118 Idaho
659, 798 P.2d 941 (Ct. App. 1990).
Expert testified that the wounds were con-
sistent with those made with a knife and had
they been in different locations on victim's
chest, her life could have been threatened;
therefore, there was substantial evidence
upon which the jury could have found beyond
a reasonable doubt that defendant had at-
tacked victim with a deadly weapon. State v.
Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct.
App. 1991).
Where the state alleges and proves the use
of a deadly weapon as an element of aggra-
vated battery under this section, the nature
or extent of the injury suffered by the victim is
secondary. State v. Hernandez, 120 Idaho 653,
818 P.2d 768 (Ct. App. 1991).
Hands, or other body parts or appendages,
may not, by themselves constitute deadly
weapons under this section. State v.
(1993).
Court did not err in giving a jury instruc-
tion as to the elements of aggravated battery
where evidence indicated that defendant ac-
tually, intentionally and unlawfully touched
victims with a pistol by placing the barrel of
the gun on one victim's forehead and pushed
it into the stomach of the other victim, and
both victims testified they did not resist or
flee for fear of being shot. State v. Velasquez-
Delacruz, 125 Idaho 320, 870 P2d 673 (Ct.
App. 1994).
Evidence.
Even though the doctor was allowed to give
his opinion as to whether "great bodily injury
(harm)," one of the elements of the aggravated
battery charge against the defendant, could
have resulted from the victim's injuries, there
was no abuse of discretion that would war-
rant a reversal of the conviction, where testi-
mony by the doctor, in addition to his opinion,
overwhelmingly established that great bodily
injury occurred, and the jury was instructed
by the judge that it should consider the na-
ture and extent of any injuries in deciding
whether those injuries were likely to cause
great bodily harm. State v. Crawford, 110
Idaho 577, 716 P.2d 1349 (Ct. App. 1986).
Where the witness's sole intent in entering
the motel room, accompanied by a police of-
ficer, was simply to get clothes for the victim,
there was insufficient evidence to show any-
thing more than de minimis government in-
volvement; therefore, there was no infringe-
ment of Fourth Amendment rights, and the
witness's testimony was properly admissible.
State v. Crawford, 110 Idaho 577, 716 P.2d
1349 (Ct. App. 1986).
In prosecution for aggravated battery and
aggravated assault, sufficient proof was pre-
sented for the jury to find beyond a reasonable
doubt that the defendant acted in violation of
the law and that he harbored the intent
necessary to violate the laws, where he pre-
cipitated the conflict by confronting his par-
ents, he discharged his weapon at persons in
the yard around his home, and, as a result,
one law enforcement officer was seriously
injured. State v. McDougall, 113 Idaho 900,
749 P.2d 1025 (Ct. App. 1988).
Evidence was sufficient to support the ju-
ry's verdict convicting defendant of aggra-
vated battery where the state's evidence in-
cluded photographs and the testimony of
persons who witnessed the altercation at the
campground, where a pathologist testified
that the victim exhibited extensive bruising
to her head, the area of her left eye, lips and
neck and that the neck injuries were of "grave
concern," "life threatening," and sufficient to
cause death, and where defendant himself
admitted that he had choked the victim and
had forced her to the ground during an alter-
cation. State v. Clark, 115 Idaho 1056, 772
P.2d 263 (Ct. App. 1989).
assault on a law officer in violation of

18-
901(b), 18-903, 18-905(a), 18-907(b) [now
(1Kb)] and 18-915, and there was no abuse of
discretion in sentencing given defendant's
criminal history; a jury could have reasonably
concluded from the evidence that defendant
intended to shoot the officers involved in the
altercation, instead of attempting suicide as
defendant contended, given the fact that de-
fendant pointed the gun at them when he
gained control over it. State v. Hoffman, 137
Idaho 897, 55 P.3d 890 (Ct. App. 2002).
Federal Crime.
The Major Crimes Act, 18 U.S.C. 1153, is
preemptive of state jurisdiction with respect
to crimes enumerated therein. Thus, defen-
dant, an enrolled member in the Nez Perce
Tribe, was subject to federal prosecution for
the crime of aggravated battery, against his
child, an enrolled member of the Thlingit
Tribe. State v. Marek, 112 Idaho 860, 736 P.2d
1314 (1987), aff'd, 116 Idaho 580, 777 P.2d
1253 (1989).
"Great Bodily Harm."
Statutory phrase "great bodily harm," as
used in the prosecutor's information, was an
adequate statement of the essential facts con-
stituting the "aggravated" component of the
battery since the statutory phrase set down a
statement of an act necessary to constitute
the commission of an aggravated battery such
as to enable a person of common understand-
ing to know what is intended. State v. Clark,
115 Idaho 1056, 772 P.2d 263 (Ct. App. 1989).
Charged.
P.2d 1059 (1996).
Intent.
Sufficient evidence supported the jury's
finding that the State had proved aggravated
battery, including the intent element; al-
though there was no direct evidence that
defendant intended that his shotgun pellets
would strike the victim, facts were presented
from which such an intent could be inferred,
including the nature of the weapon used, a
shot gun which does not fire a bullet but
rather a shotgun shell containing scores of
pellets that spray out when the weapon is
fired, and the defendant's own testimony that
he was well-experienced in the use of a shot-
gun and his acknowledgement that if shotgun
pellets hit the ground, "when there's gravel
and stuff there, they can ricochet." State v.
Billings, 137 Idaho 827, 54 P.3d 470 (Ct. App.
2002).
Court properly dismissed defendant's ag-
gravated battery charge where the evidence
presented at the preliminary hearing failed to
show that defendant knew that the victim
was in an adjacent apartment or that defen-
dant intended that someone bear the brunt of
the force or violence caused by the firing of the
handgun. State v. Pole,

Idaho , 79 P.3d
729 (Ct. App. 2003), review denied,
P.3d
(Nov. 30, 2003).

Jury Instruction.
included offense of injuring another by dis-
charge of an aimed firearm and also gave the
unanimous verdict convicting the defendant
of aggravated battery foreclosed the jury from
considering whether defendant was guilty of
any lesser-included offenses, and any poten-
tial error in the district court's failure to give
requested instructions on additional lesser-
included offenses was harmless. State v.
Trejo, 132 Idaho 872, 979 P.2d 1230 (Ct. App.
1999).
The aggravated battery was not a lesser
included offense of murder because a jury
reasonably could conclude from the evidence
that the victim had suffered an aggravated
battery prior to the germination of the idea to
murder him. State v. Campbell, 114 Idaho
367, 757 R2d 230 (Ct. App. 1988), cert, de-
nied, 490 U.S. 1070, 109 S. Ct. 2076, 104 L.
Ed. 2d 640 (1989).
included offense of the kidnapping because
the aggravated battery, although sequentially
related to the kidnapping, was a separate and
distinct crime, requiring elements of proof
beyond that required for the kidnapping.
State v. Campbell, 114 Idaho 367, 757 P.2d
230 (Ct. App. 1988), cert, denied, 490 U.S.
1070, 109 S. Ct. 2076, 104 L. Ed. 2d 640
(1989).
Reversible Error.
Jury instruction which allowed jury to con-
vict defendant of an offense different from
which he was charged was reversible error.
State v. Sherrod, 131 Idaho 56, 951 P. 2d 1283
(Ct. App. 1998).
Conviction was vacated where, taking the
excessive cross-examination and the final ar-
gument of the prosecutor together, it was
clear that the prosecution went far beyond
use of the post-Miranda silence of defendant
for any legitimate purpose and sought to
establish guilt by defendant's exercise of a
constitutional right to remain silent. State v.
Strouse, 133 Idaho 709, 992 P.2d 158 (1999).
Sentence.
Because the trial judge gave sound reasons
for the sentence imposed and because his
retained jurisdiction would enable him to
modify the sentence in the event the proposed
rehabilitative measures were not followed,
the defendant's sentence of an indeterminate
term of four years for aggravated battery was
not excessive. State v. Burroughs, 107 Idaho
195, 687 P.2d 585 (Ct. App. 1984).
The legislature clearly intended the en-
hancement provision of
19-2520 to apply to
aggravated battery committed with a firearm.
State v. Cootz, 110 Idaho 807, 718 P.2d 1245
(Ct. App. 1986).
A district judge did not abuse his discretion
in sentencing aggravated battery defendant
to six years with a four-year minimum period
of confinement despite defendant's physical
ailments, where defendant had a long-stand-
ing problem of alcohol and substance abuse,
had a prior criminal record, and was on parole
from another state at the time of his convic-
tion. State v. Rankin, 115 Idaho 728, 769 P.2d
605 (Ct. App. 1989).
Where defendant admitted to forcing a
girl's car off the road, threatening her and
stabbing her several times in the back before
she freed herself from him, pursuant to an
amended information charging him with ag-
gravated battery with an enhancement for
the use of a weapon, a sentence of 30 years,
with ten years fixed, was not an abuse of
discretion. State v. King, 120 Idaho 955, 821
P.2d 1010, 821 P.2d 1010 (Ct. App. 1991).
in a pool of blood by her landlady and young
P.2d 351 (Ct. App. 1992).
A sentence of 15 years' imprisonment for
aggravated battery of another inmate, to be
served consecutively to the 75-year sentence
defendant was already serving, was affirmed,
where the judge noted that the victim had
been stabbed multiple times with a sharp-
ened metal object and that defendant's record
showed extremely violent past criminal be-
havior which created the potential for ex-
traordinarily violent harm to other people.
State v. Martinez, 122 Idaho 629, 836 P2d
1090 (Ct. App. 1992).
Based upon the facts and circumstances of
the offenses and defendant's character, the
district court did not clearly abuse its discre-
tion in sentencing defendant or in denying his
I.C.R., Rule 35 motion where defendant was
convicted of first degree burglary, first degree
kidnapping, and aggravated battery against
his ex-wife. State v. Dowalo, 122 Idaho 761,
838 P.2d 890 (Ct. App. 1992).
A unified sentence of seven years with one
year required as the minimum period of con-
finement for aggravated battery was reason-
able where defendant assaulted victim over a
traffic dispute, where the victim and defen-
dant were not acquainted with each other
prior to this incident and where the victim's
medical expenses for his injuries, hospitaliza-
tion and reconstructive surgery approximated
$20,000. State v. Davis, 123 Idaho 970, 855
P.2d 55 (Ct. App. 1993).
Sentence of twelve years, with four years
fixed, for aggravated battery was reasonable,
and refusal to further reduce the sentence
was not an abuse of discretion where defen-
dant had entered victim's apartment and at-
tacked victim who was asleep in her bed,
fracturing her nose, breaking her jaw, and
causing severe swelling to one side of her face.
State v. Del Rio, 124 Idaho 52, 855 P.2d 889
(Ct. App. 1993).
Supreme Court in review of denial of I.C.R.
35 motion did not abuse its discretion in not
reducing sentence of fifteen years for aggra-
vated battery plus a consecutive enhance of
twelve years, where the sentence imposed
was within the statutory maximums, where
the crime committed involved an act of do-
mestic violence which caused life-threatening
harm to defendant's former wife and was
committed in the presence of their 14-year-old
son, where although alcohol was a factor it
could not be used as defense to excuse the
actions, where there was no provocation for
the attack which was a result of an ongoing
cycle of domestic violence that escalated over
the years, where the victim impact statement
disclosed a long history of abuse and terror
directed at former wife by defendant, where
protection of victim and son were viewed as a
paramount concern, and where defendant
presented no evidence of any serious rehabil-
itation effort on his part. State v. Wickel, 126
Idaho 578, 887 P.2d 1085 (Ct. App. 1994).
Since a sentencing court may, with due
caution, consider the existence of a defen-
dant's alleged criminal activity for which no
charges have been filed or where charges have
been dismissed, there was no error in sentenc-
ing court's determination of the significance
to be placed on victim's account of defendant's
prior, uncharged criminal acts against her.
State v. Wickel, 126 Idaho 578, 887 P.2d 1085
(Ct. App. 1994).
There was error in imposing sentence en-
hancements for use of a deadly weapon in
defendant's convictions for involuntary man-
slaughter and aggravated battery because
three of defendant's crimes arose out of the
same indivisible course of conduct, and, there-
fore, he was only subject to one enhanced
penalty. State v. Custodio, 136 Idaho 197, 30
P3d 975 (Ct. App. 2001).
Prosecutor violated a plea agreement in
defendant's aggravated battery case where
her comments at the sentencing hearing were
"fundamentally at odds" with the State's
promised sentencing recommendation, which
called for leniency pursuant to Idaho Code
19-2601(4), and defendant's sentence was

vacated and he was to be resentenced by
different judge. State v. Jones,
Idaho , 77
P.3d 988 (Ct. App. 2003).
Analysis
Included offense.
Information.
Instructions.
Intent.
Included Offense.
Where the information charged an aggra-
vated battery, committed by defendant with
premeditated design and by means calculated
and likely to inflict great bodily injury, the
information was sufficient to charge an aggra-
vated assault as well as aggravated battery;
the assault having been alleged as the man-
ner and means of the commission of the
aggravated battery, it was an included offense
and the information, therefore, was not
duplicitous. State v. Blacksten, 86 Idaho 401,
387 P.2d 467 (1963).
Information.
An information which charged that the de-
fendant assaulted the prosecuting witness
"with the premeditated design then and there
had, by a use and means calculated to inflict
great bodily injury ... by striking and beating
him with his hands and fists and by kicking"
him was sufficient as against demurrer. State
v. McKeehan, 91 Idaho 808, 430 P.2d 886
(1967).
Instructions.
Failure of court to give instruction as to
disparity of age and physical condition of the
parties to an affray, justifying the weaker and
older party in using a weapon to defend
himself, was not reversible error, where the
jurors had both parties before them and were
qualified to determine whether the defendant,
being the older was the weaker of the two and
was justified in using the force and means
used. State v. Blacksten, 86 Idaho 401, 387
P.2d 467 (1963).
Where a considerable disparity is revealed
by the evidence or the appearance of the
parties, the court may in its discretion, in-
struct on the disparity in the ages and phys-
ical conditions of the parties to the affray and
that such disparity might justify the weaker
in using a weapon to defend himself though
the other party be unarmed. State v.
Blacksten, 86 Idaho 401, 387 P2d 467 (1963).
Intent.
The tenant was entitled to be upon the
premises of the farm for all purposes properly
connected with his farming operations, and
the fact that defendant owner claimed and
tenant denied that the latter had abandoned
his lease would not affect the issue in an
aggravated battery case, particularly in view
of the law that abandonment is a question of
intent. State v. Blacksten, 86 Idaho 401, 387
P.2d 467 (1963).
3442.
18-908. Aggravated battery
Punishment.

An aggravated bat-
tery is punishable by imprisonment in the state prison not to exceed fifteen
(15) years. [I.C.,

18-908, as added by 1979, ch. 227, 2, p. 624.]
18-908 was
18-901.
in
18-7803.
Cited in: State v. Grob, 107 Idaho 496, 690
P.2d 951 (Ct. App. 1984); State v. Pearson, 108
v. Stoddard, 122 Idaho 865, 840 P.2d 409 (Ct.
App. 1992); State v. Cagle, 126 Idaho 794, 891
P.2d 1054 (Ct. App. 1995); State v. Watts, 131
Idaho 782, 963 P.2d 1219 (Ct. App. 1998).
Analysis
Sentence.
in a pool of blood b}' her landlady and young
P.2d 351 (Ct. App. 1992).
Sentence.
Fifteen-year concurrent indeterminate sen-
tences with a five-year indeterminate en-
hancement for use of a deadly weapon were
not excessive when imposed on a defendant
who pled guilty to second-degree kidnapping
and aggravated battery even though the de-
fendant had no prior record, when consider-
ing the brutal nature of the crimes. State v.
Fink, 107 Idaho 1031, 695 P.2d 416 (Ct. App.
1985).
Where the crime committed by defendant
was the most serious one imaginable for an
aggravated battery and there was an abnor-
mally high likelihood of repetitive conduct,
given defendant's background and prior crim-
inal record, the district court did not abuse its
discretion in ordering a determinate sentence
of 15 years. State v. Thiemann, 109 Idaho 535,
708 P.2d 940 (Ct. App. 1985).
Where the defendants raped and sodomized
a 12-year-old girl, the fixed 30-year sentence
for rape, fixed 30-year sentence for lewd con-
duct with a minor, fixed 15-year sentence for
aggravated battery, and the indeterminate
25-year sentence for second degree kidnap-
ping were not an abuse of discretion. State v.
Martinez, 111 Idaho 281, 723 P.2d 825 (1986).
There was no abuse of discretion in sen-
tencing the defendant to the maximum inde-
terminate sentences available for the crimes
of second-degree kidnapping and aiding and
abetting in the commission of aggravated
battery, where the court considered the defen-
dant's active participation in the kidnap and
murder of the victim, the need for appropriate
retribution, and the mitigating factors, in-
cluding the unusually large number of favor-
able character attestations on the defendant's
behalf. State v. Hemenway, 111 Idaho 839,
727 P.2d 1267 (Ct. App. 1986).
The district judge did not abuse his discre-
tion in sentencing the defendant to a ten-year
indeterminate sentence for one of the burglar-
ies, a concurrent ten-year fixed sentence for
the battery, and a ten-year indeterminate
sentence for the other burglary, where the
court considered the criteria of protection of
society, deterrence of the defendant and of
others, retribution, rehabilitation, the defen-
dant's background, and the nature of the
crimes to which he had pled guilty. State v.
Reinke, 111 Idaho 968, 729 P.2d 443 (Ct. App.
1986).
Although, in prosecution for aggravated as-
sault and aggravated battery, it was the de-
fendant's first criminal conviction, it involved
a particularly serious and violent series of
offenses which resulted in probable perma-
nent injury to one victim, and a diminished
capacity to act rationally does not excuse the
crime; therefore, the district court did not
abuse its discretion in giving an indetermi-
nate 15-year sentence for the battery and
indeterminate five-year sentences for the as-
saultsall to run concurrently. State v.
McDougall, 113 Idaho 900, 749 P. 2d 1025 (Ct.
App. 1988).
15 years, as permitted by 19-2520; for each
State v. Sanchez, 115 Idaho 394, 766 R2d
1275 (Ct. App. 1988).
A judgment of conviction imposing a ten-
year prison sentence with a five-year mini-
mum confinement period for aggravated bat-
tery, and an order denying the defendant's
motion for reduction were affirmed where
defendant had an extensive criminal history,
he was on probation at the time of the offense,
he had a substance abuse problem and he had
threatened the life of two teenagers with a
knife without provocation. State v. Maxfield,
115 Idaho 910, 771 P.2d 928 (Ct. App. 1989).
Adistrict judge did not abuse his discretion
in sentencing aggravated battery defendant
to six years with a four-year minimum period
of confinement despite defendant's physical
ailments where defendant had a long-stand-
ing problem of alcohol and substance abuse,
had a prior criminal record, and was on parole
from another state at the time of his convic-
tion. State v. Rankin, 115 Idaho 728, 769 P.2d
605 (Ct. App. 1989).
Where defendant was convicted of aggra-
vated battery, the three-year minimum period
of confinement provided for in defendant's
minimum sentence was deemed to give defen-
dant the opportunity to prove his rehabilita-
tion potential to corrections officials, and the
judge did not abuse his discretion by imposing
a five-year sentence with a minimum period
of confinement of three years. State v. Luna,
118 Idaho 124, 795 P.2d 18 (Ct. App. 1990).
A 15-year sentence with a ten-year mini-
mum period of confinement for aggravated
battery upon a correctional officer, to run
consecutively to the indeterminate life sen-
tence already being served by inmate, was not
excessive in light of inmate's lengthy disci-
plinary record while in prison and in light of
the fact that inmate acted deliberately with-
out the slightest provocation. State v.
Matthews, 118 Idaho 659, 798 R2d 941 (Ct.
App. 1990).
Defendant's five-year sentence was well
within the maximum punishment of 15 years
which could have been imposed for aggra-
vated battery and in the absence of any fac-
tual information to support defendant's ICR
35 motion, beyond the record existing when
he was initially sentenced, the Court of Ap-
peals found that the District Court had not
abused its discretion by denying the ICR 35
motion. State v. Prieto, 120 Idaho 884, 820
P.2d 1241 (Ct. App. 1991).
Where defendant admitted to forcing a
girl's car off the road, threatening her and
stabbing her several times in the back before
she freed herself from him, pursuant to an
amended information charging him with ag-
gravated battery with an enhancement for
the use of a weapon, a sentence of 30 years,
with ten years fixed was not an abuse of
discretion. State v. King, 120 Idaho 955, 821
P.2d 1010, 821 P.2d 1010 (Ct. App. 1991).
A 15-year unified sentence, with a mini-
mum period of confinement of ten years was
reasonable for aggravated battery, where the
amended charge of aggravated battery was
predicated upon an initial allegation of at-
tempted rape, and defendant was previously
charged with aggravated battery against his
ex-wife and sexual abuse of his step-daughter.
State v. Barnes, 121 Idaho 409, 825 P2d 506
(Ct. App. 1992).
In light of the fact that alcohol treatment
had, thus far, been unavailing and that defen-
dant's criminal behavior existed prior to his
indulgence in alcohol, the minimum period of
confinement imposed by the defendant's sen-
tences was not improper and did not consti-
tute an abuse of discretion. State v. Cagle, 126
Idaho 794, 891 P.2d 1054 (Ct. App. 1995).
The maximum sentence for the crime to
which defendant was found guilty, including
the enhancement for using a firearm, was
thirty years; therefore, defendant had the
burden of showing a clear abuse of discretion
by the trial court in sentencing him. State v.
Morrison, 130 Idaho 85, 936 P.2d 1327 (1997).
18-909. Assault with intent to commit a serious felony defined.
An assault upon another with intent to commit murder, rape, the infamous
crime against nature, mayhem, robbery, or lewd and lascivious conduct with
a minor child is an assault with the intent to commit a serious felony. [I.C.,
18-909, as added by 1979, ch. 227, 2, p. 624.]

18-909 was
18-901.
in

18-310, 18-920, 18-8304, 19-2520, 19-
5307, 19-5506, 20-5254, and 33-1208.
660 P.2d 1353 (1983); State v. Boehner, 114
Idaho 311, 756 P.2d 1075 (Ct. App. 1988);
State v. Marchant, 115 Idaho 403, 766 P.2d
1284 (Ct. App. 1989); Balla v. Idaho State Bd.
of Cors., 869 F.2d 461 (9th Cir. 1988).
Analysis
Evidence.
Sentence.
Evidence.
While the state has a duty to use earnest
effort to preserve evidence for possible use by
a defendant, the state does not have a general
duty to gather evidence for the accused. State
v. Ames, 109 Idaho 373, 707 P.2d 484 (Ct. App.
1985).
Sentence.
A 15-year fixed term for attempted second
candidate for verbal psychotherapy and even
P.2d 456 (Ct. App. 1992).
Analysis
Included offense.
Rape.
Assault with intent to commit.
Intent to commit.
Sentence.
Included Offense.
Where amended information charged "as-
sault with intent to commit rape," although
the attempt was not by means of threat or
violence, the means by which the alleged
offense was committed also constituted an
offense and was sufficiently set forth in the
information as an included offense. State v.
Hall, 88 Idaho 117, 397 P.2d 261 (1964).
quirement of
gravated assault. State v. Hudson, 129 Idaho
478, 927 P.2d 451 (Ct. App. 1996).
Rape.
Assault with Intent to Commit.
In a prosecution for assault with intent to
commit rape on a girl 14 years of age, it was
not required to allege nor was it required to
prove an assault calculated to overcome the
resistance of prosecutrix by force or fear.
State v. Gailey, 69 Idaho 146, 204 P.2d 254
(1949).
The crime of assault with intent to commit
rape is a lesser included offense of rape and,
in prosecuting such an assault, the state must
prove all elements of rape except penetration.
State v. Huggins, 103 Idaho 422, 648 P.2d
1135 (Ct. App. 1982), modified on other
grounds, 105 Idaho 43, 665 P.2d 1053 (1983).
Intent to Commit.
136, 248 P.2d 218 (1952), appeal dismissed,
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1953).
The offense of "attempt to commit rape" can
be included in the charge of "assault with
intent to commit rape." State v. Hall, 88 Idaho
117, 397 P.2d 261 (1964).
Where the defendant restrained the 11-
year-old girl by force, and touched her on the
thigh with his penis before she escaped, the
jury did not unjustifiably infer an intent to
have sexual intercourse with the girl. State v.
Greensweig, 103 Idaho 50, 644 P.2d 372 (Ct.
App. 1982).
Sentence.
Where defendant abducted the victim at
gunpoint from her car, struck her on the head
when she refused to disrobe, and shot her
twice when she attempted to escape, consec-
utive sentences for the maximum term of
confinement on respective counts of second
degree kidnapping, assault with intent to
commit infamous crime against nature, and
assault with intent to commit murder were
not excessive. State v. Drapeau, 97 Idaho 685,
551 P.2d 972 (1976).
Where defendant's convictions for assault
with intent to commit infamous crime against
nature and attempt to commit infamous
crime against nature arose out of the same
act, the sentences imposed would be served
concurrently. State v. Drapeau, 97 Idaho 685,
551 P.2d 972 (1976).
Collateral References. Assault with in-
tent to ravish consenting female under age of
consent. 81 A.L.R. 599.
Impotency as defense to charge of assault
with intent to commit rape. 23 A.L.R.3d 1351.
Robbery, attempted robbery, or assault to
commit robbery, as affected by intent to collect
or secure debt or claim. 88 A.L.R.3d 1309.
18-910. Assault with the intent to commit a serious felony

Punishment.

An assault with the intent to commit a serious felony is
punishable by imprisonment in the state prison not to exceed ten (10) years.
[I.C.,

18-910, as added by 1979, ch. 227, 2, p. 624.]
18-910 was
18-901.
Cited in: State v. Boehner, 114 Idaho 311,
756 P.2d 1075 (Ct. App. 1988); Balla v. Idaho
State Bd. of Cors., 869 F.2d 461 (9th Cir.
1988).
Sentence Upheld.
Where defendant was charged with kidnap-
ping and assaulting a nine-year-old girl, with
act, although defendant did not have a crim-
inal record and had a fairly stable family and
work history, a sentence of seven years fixed,
followed by an indeterminate period of con-
finement of 13 years on the kidnapping
charge, and a term of five years fixed, to be
followed by an indeterminate period of five
years on the assault charge was not an abuse
of discretion. State v. Soto, 121 Idaho 53, 822
P.2d 572 (Ct. App. 1991).
18-911. Battery with the intent to commit a serious felony de-
fined.
Any battery committed with the intent to commit murder, rape,

the infamous crime against nature, mayhem, robbery or lewd and lascivious
conduct with a minor child is a battery with the intent to commit a serious
felony. [I.C.,
263, 1, p. 559.]
18-911 was
18-901.
as 18-915.
in
18-310, 18-920, 18-8304, 19-2520, 19-
5307, 19-5506 and 33-1208.
Cited in: State v. Araiza, 109 Idaho 188,
706 P. 2d 77 (Ct. App. 1985); State v. Storey,
109 Idaho 993, 712 P.2d 694 (Ct. App. 1985);
State v. Peltier, 119 Idaho 14, 803 P.2d 202
(Ct. App. 1990); Milton v. State, 126 Idaho
638, 888 P.2d 812 (Ct. App. 1995); State v.
Garcia, 126 Idaho 836, 892 P.2d 903 (Ct. App.
1995).
Analysis
Evidence sufficient.
Harmless error.
Rape.
Sentence.
Sufficient information.
Evidence Sufficient.
Where defendant insisted 13-year-old girl
go upstairs and show him where some towels
were, followed her, blocked the hall, pushed
her into the bedroom and, pointing to the bed,
stated "Right here should be fine," the jury
could have reasonably concluded that, by suc-
cessfully getting away, the girl had escaped
being a victim of rape or lewd conduct; thus,
defendant was unable to demonstrate on ap-
peal that there was insufficient evidence to
support the jury's conviction for battery with
the intent to commit a serious felony. State v.
Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct.
App. 1996).
Harmless Error.
Although testimony about defendant's drug
addiction should not have been admitted to
show motive to commit burglary and battery
with the intent to commit robbery, the error
was harmless. State v. Boman, 123 Idaho 947,
854 P.2d 290 (Ct. App. 1993).
Rape.
Battery with intent to commit rape is a
lesser included offense of forcible rape. State
v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct.
App. 1991).
Sentence.
A unified sentence of 15 years, with a
12-
year minimum period of confinement for con-
viction of battery with the intent to commit a
serious felony, namely rape, was not excessive
where defendant had an extensive criminal
record for sex-related offenses and a psychol-
ogist's diagnosis attached to the presentence
report indicated that the defendant's psy-
chotic disorders of schizophrenia and "hyper-
sexuality" required long-term inpatient reha-
bilitation and treatment in order to prevent
further sexual misconduct. The sentencing
court noted that its primary concern was for
the protection of society and noted that proper
medical treatment would be available during
incarceration. State v. Tillman, 118 Idaho
617, 798 P.2d 462 (Ct. App. 1990).
Sentencing judge did not abuse his discre-
tion where he sentenced a defendant con-
victed of two counts of first degree burglary
and battery with intent to commit rape, to 25
years, with ten years indeterminate following
a minimum period of confinement of 15 years
on each of the three felony counts; ordinarily,
each felony would carry a maximum penalty
of not more than 15 years; however, because
the jury found that the defendant was a
persistent violator, the maximum permissible
sentence for each of the felonies was extended
to imprisonment for life. State v. Haggard,
119 Idaho 664, 809 P.2d 525 (Ct. App. 1991).
The court did not abuse its discretion in
imposing a minimum of seven years with a
unified sentence of fifteen years for first de-
gree burglary, which was enhanced for the use
of a deadly weapon to a fixed twelve-year
sentence and an indeterminate sentence of
twenty-five years and the same sentence for
battery with intent to commit a serious felony,
with the same enhancement, on a burglary
charge where the presentence investigation
report revealed felony convictions for two pre-
vious robberies and one battery on a peace
officer along with a number of felony burglary
and robbery charges that were reduced or the
disposition was unknown. State v. Boman,
123 Idaho 947, 854 P.2d 290 (Ct. App. 1993).
Where district court found that defendant
was a multiple offender with prior convictions
of voluntary manslaughter and malicious
wounding, that he lied in writing to the court
regarding his prior offenses, and that he had
the potential to inflict serious harm, defen-
dant was unable to show on appeal that his
sentence to a fixed term of 15 years for con-
viction for battery with intent to commit a
serious felony was excessive under the facts.
State v. Monroe, 128 Idaho 676, 917 P.2d 1316
(Ct. App. 1996).
Sufficient Information.
Information alleged facts sufficient to state
an offense and, therefore, was sufficient to
confer jurisdiction; the term "rape," even as insufficient to allege the specific element of
used in the everyday language of non-law- battery with intent to commit rape. State v.
yers, referred to sexual penetration, and de- Mayer,

fendant could not argue that the words "with
2004).
the intent to commit the crime of rape" were
18-912. Battery with the intent to commit a serious felony

Punishment.

A battery with the intent to commit a serious felony is
punishable by imprisonment in the state prison not to exceed fifteen (15)
years. [I.C.,
18-912, as added by 1979, ch. 227, 2, p. 624.]

18-912 was stabbed two store clerks who followed his wife
repealed, see Compiler's notes,

18-901. from a store in an attempt to detain her for
Cited in: Volker v. State, 107 Idaho 1059, shoplifting, and the presentence report indi-
695 P.2d 809 (Ct. App. 1985); State v. Araiza,
cated that the defendant had a history of
109 Idaho 188, 706 P.2d 77 (Ct. App. 1985);
assaultive behavior, an indeterminate sen-
479 U.S. 989, 107 S. Ct. 582, 93 L. Ed. 2d 585
tence not to exceed 15 years was not exces-
(1986); State v. Bolton, 119 Idaho 846, 810
sive. State v. Pardo, 109 Idaho 1036, 712 P.2d
P.2d 1132 (Ct. App. 1991).
737 (Ct. App. 1985).
Sentence Upheld
Where defendant's criminal record spanned
Where the defendant's attack upon victim
ten
y
ears
>
including his juvenile record, a
was an unprovoked, execution-style attempt
sentence of five years with two years fixed for
to take a human life that only fortuitously
first degree burglary, to be served concur-
was unsuccessful, and defendant denied that
rentl
y
Wlth an identical sentence previously
he had any mental disease or needed treat-
imposed in a separate case, and a sentence of
ment, fixed life sentence for robbery and fixed
ten years with three years fixed for battery
15-year sentence for battery, enhanced by an
with the intent to commit rape, to be served
additional 15 years for use of a firearm, was
consecutively to the sentence on the first
justified to protect society. State v. Storey, 109
degree burglary conviction were reasonable
Idaho 993, 712 P.2d 694 (Ct. App. 1985).
sentences under the circumstances. State v.
Where the defendant, who had been re- Acha, 122 Idaho 744, 838 P.2d 873 (Ct. App.
leased on parole only five months previously, 1992).
18-913. Felonious administering of drugs defined.

Any person
who administers, aids in administering or orders the administering to
another any chloroform, ether, laudanum or other narcotic, anaesthetic or
intoxicating agent, with intent to enable or assist himself or any other
person to commit a felony, is guilty of felonious administering of drugs. [I.C.,
18-913, as added by 1979, ch. 227, 2, p. 624.]

18-913 was Collateral References. 6A C.J.S,
Assault
18-901. and Battery, 81.
in

18-920 and 19-5307.
18-914. Felonious administering of drugs

Punishment.

A
felonious administering of drugs is punishable by imprisonment in the state
prison not to exceed five
(5)
years or five thousand ($5,000)
dollars, or both.
[I.C.,

18-914, as added by 1979, ch. 227, 2, p. 624.]
18-915. Assault or battery upon certain personnel

Punish-
ment.

Any person who commits a crime provided for in this chapter
against or upon a justice, judge, magistrate, prosecuting attorney, public
defender, peace officer, bailiff, marshal, sheriff, police officer, correctional
officer, employee of the department of correction, employee of a private
prison contractor while employed at a private correctional facility in the
state of Idaho, employees of the department ofwater resources authorized to
enforce the provisions of chapter 38, title 42, Idaho Code, jailer, parole
officer, officer of the Idaho state police, fireman, social caseworkers or social
work specialists of the department ofhealth and welfare, employee of a state
secure confinement facility for juveniles, employee of a juvenile detention
facility, a teacher at a detention facility or a juvenile probation officer,
emergency medical technician certified by the department of health and
welfare, emergency medical technician-ambulance certified by the depart-
ment of health and welfare, advanced emergency medical technician and
EMT-paramedic certified by the state board of medicine, a member, em-
ployee or agent of the state tax commission, United States marshal, or
federally commissioned law enforcement officer or their deputies or agents
and the perpetrator knows or has reason to know of the victim's status, the
punishment shall be as follows:
(a) For committing battery with intent to commit a serious felony the
punishment shall be imprisonment in the state prison not to exceed
twenty-five (25) years.
(b) For committing any other crime in this chapter the punishment shall
be doubled that provided in the respective section, except as provided in
subsections (c) and (d) of this section.
(c) For committing a violation of the provisions of section 18-901 or
18-903, Idaho Code, against the person of a justice, judge or magistrate,
jailer or correctional officer or other staff of the department of correction, or
a county jail, or of a private correctional facility, or of an employee of a state
secure confinement facility for juveniles, an employee of a juvenile detention
facility, a teacher at a detention facility or a juvenile probation officer and
the person committing the offense knows or reasonably should know that
such victim is a justice, judge or magistrate, jailer or correctional officer or
other staff of the department of correction, or of a private correctional
facility, an employee of a state secure confinement facility for juveniles, an
employee of a juvenile detention facility, a teacher at a detention facility or
a juvenile probation officer because of the victim's former or present official
status, and the victim is engaged in the performance of his duties, the
offense shall be a felony punishable by imprisonment in a correctional
facility for a period of not more than five (5) years, and said sentence shall
be served consecutively to any sentence being currently served.
(d) For committing a violation of the provisions of section 18-903, Idaho
Code, except unlawful touching as described in section 18-903(b), Idaho
Code, against the person of a peace officer, sheriff or police officer because of
the victim's former or present official status, the offense shall be a felony
punishable by imprisonment in a correctional facility for a period of not
more than five
(5) years, and said sentence shall be served consecutively to
any sentence being currently served. [I.C.,
18-915, as added by 1979, ch.
227, 2, p. 624; am. 1981, ch. 263, 2, p. 559; am. 1992, ch. 221, 1, p. 670;
am. 1995, ch.
51, 1, p. 118; am. 1999, ch. 247, 1, p. 635; am. 2000, ch.
272, 3, p. 786; am. 2000, ch. 297, 3, p. 1025; am. 2000, ch. 469, 21, p.
1450; am. 2001, ch. 181, 1, p. 609.]
Compiler's notes. This section was
amended by three 2000 acts

ch. 272, 3,
effective April 12, 2000, ch. 297, 3 and ch.
469, 21, both effective July 1, 2000, which
do not conflict and have been compiled to-
gether.
The 2000 amendment by ch. 272, 3, near
the middle of the introductory language, in-
serted "employee of a private prison contrac-
tor while employed at a private correctional
facility in the state of Idaho" following "de-
partment of correction"; in subdivision (c),
inserted "or of a private correctional facility"
following "department of correction", inserted
"or other staff of the department of correction,
or of a private correctional facility" following
"correctional officer", and substituted "a cor-
rectional facility" for "the state prison".
the end of the introductory language, inserted
"a member, employee or agent of the state tax
commission," following "state board of medi-
cine".
the middle of the introductory language, sub-
stituted "the Idaho state police" for "the state
department of law enforcement".
as 18-101B.
as
63-3077.
compiled as

9-340C and 18-3302, respec-
tively.
as 18-911.
in

18-310, 18-920, 20-525A and 63-3076.
Cited in: State v. Browning, 107 Idaho 870,
693 P.2d 1072 (Ct. App. 1984); Anderson v.
City of Pocatello, 112 Idaho 176, 731 P.2d 171
(1986); State v. Rutter, 112 Idaho 1142, 739
P.2d 441 (Ct. App. 1987); State v. Bonaparte,
114 Idaho 577, 759 P2d 83 (Ct. App. 1988);
State v. Marchant, 115 Idaho 403, 766 P.2d
1284 (Ct. App. 1989); State v. Barton, 119
Idaho 114, 803 P.2d 1020 (Ct. App. 1991);
State v. Robison, 119 Idaho 890, 811 P.2d 500
(Ct. App. 1991); State v. Bowman, 124 Idaho
936, 866 P. 2d 193 (Ct. App. 1993); State v.
Smoke, 130 Idaho 263, 939 P.2d 582 (Ct. App.
1997); State v. Watts, 131 Idaho 782, 963 P.2d
1219 (Ct. App. 1998); State v. Alsanea, 138
Idaho 733, 69 P.3d 153 (Ct. App. 2003).
Analysis
Evidence.
Improper admission.
Officer's testimony.
Witness testimony.
Instructions.
Information and indictment.
Sentence.
Evidence.
commit a serious felony upon a law enforce-
ment officer, testimony of the witness that the
police radio dispatcher stated that the defen-
dant had said he "wanted to kill a cop" was
inadmissible because it was relevant only for
the impermissible hearsay purpose of show-
ing that the defendant actually had expressed
a desire to "kill a cop" and it was irrelevant if
offered for the nonhearsay purpose of showing
what information the officers possessed and
how this information affected the subsequent
actions of the officers because evidence of the
officers' motives did not prove any element of
the offense charged. State v. Boehner, 114
Idaho 311, 756 P.2d 1075 (Ct. App. 1988).
879, 761 P2d 1231 (Ct. App. 1988).
assault on a law officer in violation of
18-
901(b), 18-903, 18-905(a), 18-907, and 18-915,
and there was no abuse of discretion in sen-
tencing given defendant's criminal history; a
jury could have reasonably concluded from
the evidence that defendant intended to shoot
the officers involved in the altercation, in-
stead of attempting suicide as defendant con-
tended, given the fact that defendant pointed
the gun at them when he gained control over
it. State v. Hoffman, 137 Idaho 897, 55 P3d
890 (Ct. App. 2002).
Improper Admission.
ment officer, the improper admission of offic-
ers' testimony about a radio report where the
dispatcher stated that the defendant had said
he "wanted to kill a cop" was not harmless
error because it may have made a significant
contribution to the jury's ultimate determina-
tion of the specific intent issue. State v.
Boehner, 114 Idaho 311, 756 P.2d 1075 (Ct.
App. 1988).
Officer's Testimony.
The court did not err in its consideration of
the testimony given by officers that the shoot-
ing of a fellow officer had a significant impact
on the relatively close-knit community of the
district's state police force. State v. Kerrigan,
123 Idaho 508, 849 P.2d 969 (Ct. App. 1993).
Witness Testimony.
ment officer, the testimony of the preliminary
hearing witness regarding the defendant's
alleged statement in her presence was not
hearsay but a party's statement under Rule
I.R.E. 801(d)(2); however, on remand the trial
court should make a ruling on the application
of I.R.E. 403 to this testimony. State v.
Boehner, 114 Idaho 311, 756 P.2d 1075 (Ct.
App. 1988).
Instructions.
police officer and committing a battery upon a
police officer, there was a question of fact
whether the defendant had made a lunge at
one officer, justifying the other in grabbing
the defendant from behind, and there also
was a related question whether the officers at
any time used force to an excessive degree,
the magistrate's refusal to instruct the jury on
the right of a citizen to resist excessive force
by police constituted reversible error entitling
the defendant to a new trial. State v. Spurr,
114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988).
Information and Indictment.
Although the information did not set forth
the official or customary citation of the statute
related to the penalties for aggravated as-
sault upon a police officer, it did set forth the
facts necessary to advise defendant that he
was charged with aggravated assault and
that the alleged victim was a police officer;
therefore, all the factual elements for a
charge punishable under this section were set
forth, and defendant did not show prejudice
from the lack of the citation. State v. Page,
135 Idaho 214, 16 P.3d 890 (2000).
police officer and battery upon a police officer,
the alleged act of battery
the kick making

contact with an officer

could be viewed
either as a fortuitous event subsumed by the
general struggle or as an event separated in
time and place from the rest of the alterca-
tion, the magistrate was directed on remand
to instruct the jury that they could not convict
of both offenses unless they were convinced
beyond a reasonable doubt that both alleged
crimes arose out of separate and distinct acts,
each accompanied by criminal intent. State v.
Spurr, 114 Idaho 277, 755 P.2d 1315 (Ct. App.
1988).
State v. Missamore, 114 Idaho 879, 761 R2d
1231 (Ct. App. 1988).
Sentence.
A 15-year sentence with a ten-year mini-
mum period of confinement for aggravated
battery upon a correctional officer, to run
consecutively to the indeterminate life sen-
tence already being served by inmate, was not
excessive in light of inmate's lengthy disci-
plinary record while in prison and in light of
the fact that inmate acted deliberately with-
out the slightest provocation. State v.
Matthews, 118 Idaho 659, 798 P.2d 941 (Ct.
App. 1990).
The district court sentence of a five-year
term with two years fixed was not an abuse of
discretion where the maximum sentence
could have been 10 years, and the court found
that the goal of rehabilitation was secondary
to that of deterrence, and a person who would
draw a weapon on a law enforcement officer
under these circumstances should be consid-
ered a danger to the community. State v.
Daniels, 134 Idaho 896, 11 P3d 1114 (2000).
Voluntariness of Guilty Plea.
Where a man, 64, was in prison on a seven-
year sentence for armed robbery, and hit a
guard with a metal bottle during an escape,
and was charged with violations of both
former law providing punishment for assault
committed on a correctional officer and
18-
2505, and plead guilty to a violation of the
former law, and was present with his attorney
prior to actual imposition of. sentence, at
which time his attorney asked that defen-
dant's sentence not be made consecutive due
to his advanced age and ill health, and the
prosecutor said he was not requesting a con-
secutive sentence, the defendant would not be
heard to assert that his guilty plea was invol-
untary because he was unaware of the possi-
bility of a consecutive sentence. State v.
Flummer, 99 Idaho 567, 585 P.2d 1278 (1978).
18-915A. Removing a firearm from a law enforcement officer.

(1) A person may not knowingly remove or attempt to remove a firearm
from the possession of another person if:
(a) The other person is lawfully acting within the course and scope of
employment; and
(b) The person knows or has reason to know that the other person is
employed as any of the following:
(i) Alaw enforcement officer who, in an official capacity, is authorized to
make arrests; or
(ii) An employee of the Idaho board of correction, the Idaho department
ofjuvenile corrections, any prison, jail, detention or booking facility or
private correctional facility within the state, or the commission of
pardons and parole.
(2)
A person who violates this section is guilty of a felony.
(3) A sentence imposed for a violation of this section may be imposed
separate from and consecutive to or concurrent with a sentence for any
offense based on the act or acts establishing the offense under this section.
[I.C.,

395, 1, p. 1239; am. 2000, ch. 272,
4, p. 786.1
18-2502. emergency. Approved April 12, 2000.
18-915B. Propelling bodily fluid or waste at certain persons.

Any person who is housed in a state, private or county correctional facility,
work release center or labor camp, or who is being transported or supervised
by a correctional officer or detention officer, irrespective of whether the
person is a sentencepl prisoner or a pretrial detainee, and who knowingly
propels any bodily fluid or bodily waste at any detention officer, correctional
officer, staff member, private contractor or employee of a county or state
correctional facility, or authorized visitor to a county or state correctional
facility, work release center or labor camp, or who knowingly introduces any
bodily fluid or bodily waste into the food or drink of such officer, staff
member, private contractor, employee or authorized visitor, shall be guilty of
a felony punishable by imprisonment in a correctional facility for not more
than five
(5) years, and such sentence shall be served consecutively to any
sentence currently served. [I.C.,
18-915B, as added by 2001, ch.
33, 1,
p.53.]
18-916. Abuse of school teachers.
Every parent, guardian or other

person who upbraids, insults or abuses any teacher of the public schools, in
the presence and hearing of a pupil thereof, is guilty of a misdemeanor. [I.C.,
18-916, as added by 1979, ch. 227, 2, p. 624.1

Sec. to sec. ref. This section is referred to Insulting words as criminal offense. 48
in

33-1222. A.L.R. 95.
31.
18-917. Hazing.
(1) No student or member of a fraternity, sorority or

other living or social student group or organization organized or operating
on or near a school or college or university campus, shall intentionally haze
or conspire to haze any member, potential member or person pledged to be
a member of the group or organization, as a condition or precondition of
attaining membership in the group or organization or of attaining any office
or status therein.
(2)
As used in this section, "haze" means to subject a person to bodily
danger or physical harm or a likelihood of bodily danger or physical harm,
or to require, encourage, authorize or permit that the person be subjected to
any of the following:
(a) Total or substantial nudity on the part of the person;
(b) Compelled ingestion of any substance by the person;
(c) Wearing or carrying of any obscene or physically burdensome article
by the person;
(d) Physical assaults upon or offensive physical contact with the person;
(e) Participation by the person in boxing matches, excessive number of
calisthenics, or other physical contests;
(f) Transportation and abandonment of the person;
(g)
Confinement of the person to unreasonably small, unventilated,
unsanitary or unlighted areas;
(h) Sleep deprivation; or
(i) Assignment of pranks to be performed by the person.
(3)
The term "hazing," as denned in this section, does not include
customary athletic events or similar contests or competitions, and is limited
to those actions taken and situations created in connection with initiation
into or affiliation with any group or organization. The term "hazing" does not
include corporal punishment administered by officials or employees of public
schools when in accordance with policies adopted by local boards of educa-
tion.
(4) A student or member of a fraternity, sorority or other student
organization, who personally violates any provision of this section shall be
guilty of a misdemeanor. [I.C.,

18-917, as added by 1991, ch. 338, 1, p.
874; am. 2002, ch. 268, 1, p. 798.]
18-918. Domestic violence.
(1) For the purpose of this section:

(a) "Household member" means a person who is a spouse, former spouse,
or a person who has a child in common regardless of whether they have
been married or a person with whom a person is cohabiting, whether or
not they have married or have held themselves out to be husband or wife.
(b) "Traumatic injury" means a condition of the body, such as a wound or
external or internal injury, whether of a minor or serious nature, caused
by physical force.
(2)(a) Any household member who commits a battery, as denned in
section 18-903, Idaho Code, and willfully and unlawfully inflicts a
traumatic injury upon any other household member is guilty of a felony.
(b) Aconviction of felony domestic battery is punishable by imprisonment
in the state prison for a term not to exceed ten (10) years or by a fine not
125 ASSAULT AND BATTERY 18-9 18
to exceed ten thousand dollars ($10,000) or by both fine and imprison-
ment.
(3)(a) Ahousehold member who commits an assault, as denned in section
18-901, Idaho Code, against another household member which does not
result in traumatic injury is guilty of a misdemeanor domestic assault.
(b) A household member who commits a battery, as denned in section
18-903, Idaho Code, against another household member which does not
result in traumatic injury is guilty of a misdemeanor domestic battery.
(c) A first conviction under this subsection (3) is punishable by a fine not
exceeding one thousand dollars ($1,000) or by imprisonment in a county
jail not to exceed six (6) months, or both. Any person who pleads guilty to
or is found guilty of a violation of this subsection (3) who previously has
pled guilty to or been found guilty of a violation of this subsection
(3),
or
of any substantially conforming foreign criminal violation, notwithstand-
ing the form of the judgment or withheld judgment, within ten (10) years
of the first conviction, shall be guilty of a misdemeanor and shall be
punished by imprisonment in the county jail for a term not to exceed one
(1) year or by a fine not exceeding two thousand dollars ($2,000) or by both
fine and imprisonment. Any person who pleads guilty to or is found guilty
of a violation of this subsection (3) who previously has pled guilty to or
been found guilty of two (2) violations of this subsection
(3),
or of any
substantially conforming foreign criminal violation or any combination
thereof, notwithstanding the form of the judgment or withheld judgment,
within fifteen (15) years of the first conviction, shall be guilty of a felony
and shall be punished by imprisonment in the state prison for a term not
to exceed five
(5) years or by a fine not to exceed five thousand dollars
($5,000) or by both fine and imprisonment.
(4) The maximum* penalties provided in this section shall be doubled
where the act of domestic assault or battery for which the person is
convicted or pleads guilty took place in the presence of a child. For purposes
of this section, "in the presence of a child" means in the physical presence of
a child or knowing that a child is present and may see or hear an act of
domestic assault or battery. For purposes of this section, "child" means a
person under sixteen (16) years of age.
(5) Notwithstanding any other provisions of this section, any person who
previously has pled guilty to or been found guilty of a felony violation of the
provisions of this section or of any substantially conforming foreign criminal
felony violation, notwithstanding the form of the judgment or withheld
judgment, and who within fifteen (15) years pleads guilty to or is found
guilty of any further violation of this section, shall be guilty of a felony and
shall be punished by imprisonment in the state prison for a term not to
exceed ten (10) years or by a fine not to exceed ten thousand dollars
($10,000), or by both such fine and imprisonment.
(6) For the purposes of this section, a substantially conforming foreign
criminal violation exists when a person has pled guilty to or been found
guilty of a violation of any federal law or law of another state, or any valid
county, city or town ordinance of another state, substantially conforming
with the provisions of this section. The determination of whether a foreign
criminal violation is substantially conforming is a question of law to be
determined by the court.
(7)(a) Any person who pleads guilty to or is found guilty of a violation of
this section shall undergo, at the person's own expense, an evaluation by
a person, agency or organization approved by the court in accordance with
subsection [(7)](c) of this section to determine whether the defendant
should be required to obtain aggression counseling or other appropriate
treatment. Such evaluation shall be completed prior to the sentencing
date if the court's list of approved evaluators, in accordance with subsec-
tion [(7)](c) of this section, contains evaluators who are able to perform the
evaluation prior to the sentencing dates. If the evaluation recommends
counseling or other treatment, the evaluation shall recommend the type of
counseling or treatment considered appropriate for the defendant, to-
gether with the estimated costs thereof, and shall recommend any other
suitable alternative counseling or treatment programs, together with the
estimated costs thereof. The defendant shall request that a copy of the
completed evaluation be forwarded to the court. The court shall take the
evaluation into consideration in determining an appropriate sentence. If
a copy of the completed evaluation has not been provided to the court, the
court may proceed to sentence the defendant; however, in such event, it
shall be presumed that counseling is required unless the defendant makes
a showing by a preponderance of evidence that counseling is not required.
If the defendant has not made a good faith effort to provide the completed
copy of the evaluation to the court, the court may consider the failure of
the defendant to provide the report as an aggravating circumstance in
determining an appropriate sentence. If counseling or other treatment is
ordered, in no event shall the person, agency or organization doing the
evaluation be the person, agency or organization that provides the
counseling or other treatment unless this requirement is waived by the
sentencing court, with the exception of federally recognized Indian tribes
or federal military installations, where diagnosis and treatment are
appropriate and available. Nothing herein contained shall preclude the
use of funds authorized for court-ordered counseling or treatment pursu-
ant to this section for indigent defendants as provided by law. In the event
that funding is provided for or on behalf of the defendant by a govern-
mental entity, the defendant shall be ordered to make restitution to such
governmental entity in accordance with the restitution procedure for
crime victims, as specified under chapter 53, title 19, Idaho Code.
(b) If the evaluation recommends counseling or other treatment, the
court shall order the person to complete the counseling or other treatment
in addition to any other sentence which may be imposed. If the court
determines that counseling or treatment would be inappropriate or
undesirable, the court shall enter findings articulating the reasons for
such determination on the record. The court shall order the defendant to
complete the preferred counseling or treatment program set forth in the
evaluation, or a comparable alternative, unless it appears that the
defendant cannot reasonably obtain adequate financial resources for such
counseling or treatment. In that event, the court may order the defendant
to complete a less costly alternative set forth in the evaluation or a
comparable program. Nothing contained in this subsection shall be
construed as requiring a court to order that counseling or treatment be
provided at government expense unless otherwise required by law.
(c) Each judicial district shall by rule establish a uniform system for the
qualification and approval of persons, agencies or organizations to per-
form the evaluations required in this subsection. Only qualified evalua-
tors approved by the court shall be authorized to perform such evalua-
tions. Funds to establish a system for approval of evaluators shall be
derived from moneys designated therefor and deposited in the district
court fund as provided in section 31-3201A(q), Idaho Code.
(d) Counseling or treatment ordered pursuant to this section shall be
conducted according to standards established or approved by the Idaho
council on domestic violence. [I.C.,

18-918, as added by 1993, ch. 344,
1, p. 1283; am. 1995, ch. 223, 1, p. 770; am. 1996, ch. 228, 1, p. 742;
am. 1998, ch. 309, 1, p. 1026; am. 1998, ch. 420, 1, p. 1323; am. 2000,
ch.358,
1, p. 1193; am. 2003, ch. 237, 1, p. 607; am. 2004, ch. 118, 1,
p. 392.]
amended by two 1998 acts

S.L. 1998, ch.
309, 1, effective July 1, 1998, and S.L. 1998,
ch. 420, 1, effective July 1, 1998, which do
not conflict and have been compiled together.
The amendment by ch. 309, 1, inserted
the (a) designation in subsection (7) and
added subsection (7)(b).
The amendment by ch. 420, 1, substi-
tuted "violence" for "assault or battery" in the
catchline of the section, substituted "a person
with whom a person is cohabiting, whether or
not they have married or have held them-
selves out to be husband or wife" for "have
lived together at any time" at the end of
subsection (1), added subsections (2) and
(3),
redesignated subsections (2) and (3) as sub-
sections (4) and (5), inserted "which does not
result in traumatic injury" and "a misde-
meanor" in subsections (4) and (5), added
subsection (6), redesignated subsection (4) as
subsection (7), inserted "misdemeanor" near
the beginning of subsection (7), redesignated
subsection (5) as subsection (8), in the first
sentence of subsection (8)(a) deleted "and
prior to the sentencing date" following "own
expense" and deleted "for anger control and
prevention" following "other appropriate
treatment", and added the second sentence in
subsection (8)(a).
as 31-3201A.
as 31-3201A.
Section 2 of S.L. 2003, ch. 235, is compiled
as 18-8314.
The bracketed insertions in subsection (7)
were made by the compiler.
in
18-310, 18-920, 19-603, 19-5506 and
31-3201A.
Analysis
Arrest.
Constitutionality.
Household members.
"Traumatic injury."
Arrest.
The fact that officers cited defendant for
domestic battery, addressed under
19-
603(6), did not render the other subsections of
the arrest statute facially inapplicable and
did not require that his arrest must have been
made at the scene of the domestic distur-
bance; objective assessment of the facts gave
deputies reasonable cause for warrantless fel-
ony arrest under 19-603(3). State v. Julian,
129 Idaho 133, 922 P.2d 1059 (1996).
Constitutionality.
Failure of the legislature to characterize
the conduct condemned by this section as
"unlawful" does not render this section vague,
because the terms of the statute clearly ren-
der a violator subject to penal liability
through the imposition of a fine and impris-
onment. State v. Larsen, 135 Idaho 754, 24
P.3d 702 (2001).
Defendant was not denied equal protection
of the laws because the provisions of para-
graphs (3) and (5) do not define identical
conduct resulting in different penalties. Con-
duct causing a traumatic injury differentiates
a felony domestic battery from a misde-
meanor domestic battery. State v. Larsen, 135
Idaho 754, 24 R3d 702 (2001).
This section is not unconstitutionally void
for vagueness because the statute provides
adequate notice of what behavior is prohib-
ited and what the punishment for that behav-
ior will be. State v. Hellickson, 135 Idaho 742,
24 P.3d 59 (2001); State v. Prather, 135 Idaho
770, 25 P.3d 83 (2001).
This section is not unconstitutionally over-
broad because the statute provides adequate
notice of what behavior is prohibited and
what the punishment for that behavior will
be. State v. Davis, 135 Idaho 747, 24 P.3d 64
(2001).
Defendant did not assert that the injuries
he caused the victim were inflicted while
engaged in a constitutionally protected activ-
ity, and when a statute can be applied to a
person's conduct without violating any consti-
tutional provision, he will not be heard to
assert that the statute might be unconstitu-
tional if applied to other types of behavior.
State v. Davis, 135 Idaho 747, 24 P.3d 64
(2001).
This section, as amended, clearly estab-
lishes the prosecutor's burden of proving a
"traumatic injury" for a felony conviction, and
does not violate due process by shifting the
burden of proof to the defense. State v.
Prather, 135 Idaho 770, 25 P.3d 83 (2001).
This section does not obviously and invidi-
ously discriminate and is, therefore, subject to
rational basis review under the equal protec-
tion clause of Idaho's constitution. State v.
Hart, 135 Idaho 827, 25 P3d 850 (2001).
Subsection (3) of this section is not uncon-
stitutional. State v. Keaveny, 136 Idaho 31, 28
P.3d 372 (2001).
The definition of "traumatic injury" in this
section is sufficiently defined and, thus, not
unconstitutionally vague. State v. Keaveny,
136 Idaho 31, 28 P.3d 372 (2001).
Statute gave defendant fair warning that
his conduct was prohibited; defendant's con-
tention that the statute was ambiguous as to
whether it applied to persons who were co-
habiting in other circumstances was unavail-
ing, for he had no standing to challenge the
vagueness of the statute as it might be hypo-
thetically applied to the conduct of others.
State v. Olson, 138 Idaho 438, 64 P.3d 967 (Ct.
App. 2003).
Household Members.
Statute, as it existed at the time of defen-
dant's offense, included cohabitants who had
never been married as a category of house-
hold members; defendant's battery of his
live-in girlfriend was thus enjoined by the
statute. State v. Olson, 138 Idaho 438, 64 P.3d
967 (Ct. App. 2003).
Charged.
P.2d 1059 (1996).
"Traumatic Injury."
By prefacing the list in paragraph (2) that
defines a traumatic injury with the words
"such as," the legislature clearly meant the
list to be non-exclusive, and where the district
judge treated the list as exclusive, he imper-
missibly narrowed the application of the stat-
ute. State v. Hart, 135 Idaho 827, 25 P.3d 850
(2001).
Idaho Code 18-918(3) requires that the
state show that the defendant willfully and
unlawfully inflicted a traumatic injury, not
that the defendant intended to inflict the
particular injury the victim actually suffered.
State v. Reyes,
Idaho , 80 P.3d 1103 (Ct.

App. 2003).
18-919. Sexual exploitation by a medical care provider.
(a) Any
person acting or holding himself out as a physician, surgeon, dentist,
psychotherapist, chiropractor, nurse or other medical care provider as
denned in this section, who engages in an act of sexual contact with a
patient or client, is guilty of sexual exploitation by a medical care provider.
For the purposes of this section, consent of the patient or client receiving
medical care or treatment shall not be a defense. This section does not apply
to sexual contact between a medical care provider and the provider's spouse,
or a person in a domestic relationship who is also a patient or client.
Violation of this section is punishable by a fine not exceeding one thousand
dollars
($1,000), or by imprisonment in the county jail not to exceed one (1)
year, or both.
(b) For the purposes of this section:
(1)
"Intimate part" means the sexual organ, anus, or groin of any person,
and the breast of a female.
(2)
"Medical care provider" means a person who gains the trust and
confidence of a patient or client for the examination and/or treatment of a
medical or psychological condition, and thereby gains the ability to treat,
examine and physically touch the patient or client.
(3)
"Sexual contact" means the touching of an intimate part of a patient
or client for the purpose of sexual arousal, gratification, or abuse, and/or
the touching of an intimate part of a patient or client outside the scope of
a medical examination or treatment.
(4) "Touching" means physical contact with another person, whether
accomplished directly, through the clothing of the person committing the
offense, or through the clothing of the victim. [I.C.,

18-919, as added by
1996, ch.
300, 1, p. 988.]
Compiler's notes. Section 2 of S.L. 1996, resulted from counsel's failure to pluralize the
19-406. word "charge" in the conditional plea agree-
Sec. to sec. ref. This section is referred to ment because defendant did not show that the
in

19-406.
elimination of the first three counts on appeal
would have had such a dramatic effect on his
defense of the remaining three counts that
Although defendants trial counsel admit- ,, , ,. ,. ,, , , , ,
j. j xT. i. 1
1
j. j -j irn -xT-- xt-
that strategy realistically would have been
ted that his assistance did not fall within the ,, , .
Jr , . , . . , , , .
range of competence regarding the wording of
the basis for his decision to have pleaded
defendant's guilty plea to six counts of sexual
f"
1
'^
on
V\
e
>
ast
*"*
~"n
<?
"cKeeth v.
exploitation by a medical care provider, defen-
State
-
Idaho -, 84
P.3d 575 (Ct. A
PP
.
dant had not demonstrated that prejudice
ÛU4;.
18-920. Violation of no contact order.

(1) When a person is
charged with or convicted of an offense under section 18-901, 18-903, 18-905,
18-907, 18-909, 18-911, 18-913, 18-915, 18-918, 18-919, 18-6710, 18-6711,
18-7905, 18-7906 or 39-6312, Idaho Code, or any other offense for which a
court finds that a no contact order is appropriate, an order forbidding
contact with another person may be issued. A no contact order may be
imposed by the court or by Idaho criminal rule.
(2) A violation of a no contact order is committed when:
(a) A person has been charged or convicted under any offense denned in
subsection (1) of this section; and
(b) A no contact order has been issued, either by a court or by an Idaho
criminal rule; and
(c) The person charged or convicted has had contact with the stated
person in violation of an order.
(3) Aviolation of a no contact order is punishable by a fine not exceeding
one thousand dollars ($1,000) or by imprisonment in the county jail not to
exceed one
(1) year, or both. No bond shall be set for this violation until the
person charged is brought before the court which will set bond. Further, any
such violation may result in the increase, revocation or modification of the
bond set in the underlying charge for which the no contact order was
imposed.
(4) A peace officer may arrest without a warrant and take into custody a
person whom the peace officer has probable cause to believe has violated a
no contact order issued under this section if the person restrained had notice
of the order. [I.C.,
18-920, as added by 1997, ch. 314, 1, p. 929; am. 1998,
ch. 353, 1, p. 1111; am. 2000, ch. 146, 1, p. 374; am. 2000, ch.
239, 1,
p. 669; am. 2004, ch. 337, 1, p. 1007.]
Compiler's notes. This section was inserted "or convicted" preceding "has had

ch. 146, 1, contact".
effective April
3, 2000 and ch. 239, 1,
effec-
tive April 12, 2000, which do not conflict and
have been compiled together.
The 2000 amendment by ch. 146,
1,
in
emergency Approved April 12, 2000.
subsection (1), inserted
"18-909"
preceding
gection 2 of g L 20Q4> ch 337 contained a
18-911 .
repeal.
in
19-603.
The 2000 amendment by ch. 239, 1, in
subsection (1), inserted "or convicted of" pre-
ceding "an offense under"; in subdivision
(2)(a), inserted "or convicted" preceding "un-
Cited in: State v
-
Jeppesen, 138 Idaho 71,
der any offense", and in subdivision (2)(c),
^7
P.3d 782 (2002).
18-921. Peace officers
Immunity.
No peace officer may be held

criminally or civilly liable for actions or omissions in the performance of the
duties of his office under this chapter, if the peace officer acts in good faith
and without malice. [I.C.,

18-921, as added by 1997, ch. 314, 2, p. 929.J
18-922. Order
Transmittal to law enforcement agency.
(1) A
no contact order may be imposed either by order of the court or by an Idaho
criminal rule, as a condition of bond.
(2)(a) Notice of a no contact order shall be forwarded by the clerk of the
court, or by the arresting agency where the defendant is given notice of
the bond condition under an Idaho court rule, on or before the next judicial
day, to the appropriate law enforcement agency.
(b) Upon receipt of such notice, the law enforcement agency shall forth-
with enter the order into the Idaho law enforcement telecommunications
system available in this state used by law enforcement agencies to list
outstanding warrants. Entry into the Idaho law enforcement telecommu-
nications system constitutes notice to all law enforcement agencies of the
existence of the order. The order is fully enforceable in any county in the
state.
(3) Law enforcement agencies shall establish procedures reasonably
adequate to assure that an officer approaching or actually at the scene of an
incident may be informed of the existence of such no contact order.
(4) A no contact order shall remain in effect for the term set by the court
or an Idaho criminal rule, or until terminated by the court. [I.C.,

18-922,
314, 3, p. 929.1
Compiler's notes. Section 4 of S.L. 1997, Cited in: State v. Jeppesen, 138 Idaho 71,
19-603. 57 P.3d 782 (2002).
131 BARRATRY AND ATTORNEYS AT LAW 18-1003
CHAPTER 10
BARRATRY AND ATTORNEYS AT LAW
SECTION.
18-1001. Common barratry.
18-1002. Proof of common barratry.
18-1003. Purchase of evidence of debt.
SECTION.
18-1004. Attorney defending when partner
prosecutes.
18-1005. Exception to preceding section.
18-1001. Common barratry.

Common barratry is the practice of
exciting groundless judicial proceedings, and is punishable by imprison-
ment in the county jail not exceeding six (6) months and by fine not
exceeding $500. [I.C.,
18-1001, as added by 1972, ch. 336, 1, p. 844.]
8189; I.C.A.,
1,
S.L. 1972, ch. 336,
1 in the same words as
143, 5.
Cited in: Barnes v. Hinton, 103 Idaho 619,
651 P.2d 553 (Ct. App. 1982).
Champerty and Maintenance,

16-18.
14 C.J.S., Champerty and Maintenance,
1 et seq.
Purchase of cause of action by attorney as
champertous. 4 A.L.R. 173.
Evidence, validity of employment to obtain.
16 A.L.R. 1433.
Quantum meruit or implied contract, right
of attorney to recover upon, for services ren-
dered under champertous contract. 85 A.L.R.
1365.
Attorney and layman, validity of agreement
between, to divide attorney's fees or compen-
sation for business of third person. 86 A.L.R.
195.
Solicitation, right of attorney to recover for
services performed under contract procured
by. 86 A.L.R. 517.
Government or agencies of government,
law as to champerty or maintenance or main-
tenance as applied to agreement with respect
to bringing and prosecution of claims against.
106 A.L.R. 1494.
Contract by one person to defend litigation
that has been or may be instituted against
another as champertous or maintenous. 121
A.L.R. 847.
Barratry; criminal aspects of champerty
and maintenance. 139 A.L.R. 620.
Validity of agreement by attorney to save
client harmless from costs and expenses. 8
A.L.R.3d 1155.
18-1002. Proof of common barratry.
No person can be convicted of

common barratry except upon proof that he has excited suits or proceedings
at law in at least three (3) instances, and with a corrupt or malicious intent
to vex and annoy. [I.C.,

18-1002, as added by 1972, ch. 336, 1, p. 844.]
8190; I.C.A.,
143, 5.
Cited in: Barnes v. Hinton, 103 Idaho 619,
651 P.2d 553 (Ct. App. 1982).
18-1003. Purchase of evidence of debt.

Every attorney, public
officer, or licensed collector, who, either directly or indirectly, buys or is
interested in buying any evidence of debt or thing in action, with intent to
bring suit thereon, is guilty of a misdemeanor. [I.C.,

18-1003, as added by
1972, ch.
336, 1, p. 844.]
8192; am. 1927, ch. 52, 1, p. 67; I.C.A.,

I.C.,
18-1003, as added by 1971, ch. 143,
1. However, the latter section was repealed
by S.L. 1972, ch. 109, 1, effective April 1,
section prior to its repeal by S.L. 1971, ch.
143, 5.
18-113.
Cited in: Bryan v. Montandon, 6 Idaho 352,
55 P. 650 (1898); Interstate Credit League v.
Widdison, 50 Idaho 493, 297 P. 1106 (1931).
Analysis
Attorneys.
Champerty and maintenance.
Collection agencies.
Public policy.
Attorneys.
An attorney has a right to purchase a tax
title from the county and to bring an action to
quiet his title thereto, without violating this
section. Griffith v. Anderson, 22 Idaho 323,
125 P. 218 (1912).
The common law rule of champerty and
maintenance not being in force in this state,
under
3-205 the measure and mode of at-
torneys' fees are left to agreement, expressed
or implied between attorney and client, and
will be enforceable unless contrary to good
morals or sound public policy. Merchants Pro-
tective Ass'n v. Jacobsen, 22 Idaho 636, 127 P.
315 (1912).
An attorney is prohibited from buying, ei-
ther directly or indirectly, any evidence of
debt or thing in action, with intent of suing
thereon. Merchants Protective Ass'n v.
Jacobsen, 22 Idaho 636, 127 P. 315 (1912).
Champerty and Maintenance.
Champerty at common law consisted in
supporting or maintaining a suit for another
on agreement to have a part of the thing or
some benefit or an agreement to divide the
receipts from the action. Merchants Protec-
tive Ass'n v. Jacobsen, 22 Idaho 636, 127 P.
315 (1912).
The common law doctrine of champerty and
maintenance is not in force in Idaho. It was
repudiated by the Supreme Court of Califor-
nia as being incompatible with our institu-
tions and form of government, the subject
being governed by the statute alone. The
Idaho statute was adopted from California
and the decisions of the California courts are
also presumed to have been adopted. Mer-
chants Protective Ass'n v. Jacobsen, 22 Idaho
636, 127 P. 315 (1912).
An assignment of a claim for collection with
the agreement that the assignor is to receive
one-half of the amount collected, together
with any expenses advanced by the assignor,
is not contrary to good morals or sound public
policy. Merchants Protective Ass'n v.
Jacobsen, 22 Idaho 636, 127 P. 315 (1912).
Collection Agencies.
Collection agency is not prohibited from
buying part interest in claim to compensate
itself for collecting same, even though suit is
instituted. Merchants Protective Ass'n v.
Jacobsen, 22 Idaho 636, 127 P. 315 (1912).
The taking of an interest in an obligation
for the purpose of collecting the same does not
constitute a violation of this section. Mer-
chants Protective Ass'n v. Jacobsen, 22 Idaho
636, 127 P. 315 (1912); Interstate Credit
League v. Widdison, 50 Idaho 493, 297 P. 1106
(1931).
Former Chapter 22, title 26 of the Idaho
Code (and the previous enactment of S.L.
1915, ch. 76, p. 187), by authorizing collection
of debts by licensed collection agencies, recog-
nized that lawful means for accomplishment
thereof may be employed, which impliedly
includes the right to invoke legal processes
afforded by court procedures notwithstanding
the provisions of the former section prohibit-
ing attorneys, public officers or licensed col-
lectors becoming interested in a debt with
intent to sue thereon; consequently, this did
not support respondent's argument that ap-
pellant could not have owned the debt as a
true assignee. Garren v. Saccomanno, 86
Idaho 268, 385 P.2d 396 (1963).
Public Policy.
Although the doctrine of champerty and
maintenance does not prevail in this state,
the courts will refuse to grant relief or enforce
contracts where they are contrary to good
morals or sound public policy. Merchants Pro-
tective Ass'n v. Jacobsen, 22 Idaho 636, 127 P.
315 (1912).
Champerty and Maintenance, 8.
14 C.J.S., Champerty and Maintenance,
8.
Purchase in good faith before institution of
action. 4 A.L.R. 167.
Purchase of cause of action by attorney as
champertous. 4 A.L.R. 173.
Evidence, validity of employment to obtain.
16 A.L.R. 1433.
Quantum meruit or implied contract, right
of attorney to recover upon, for services ren-
dered under champertous contract. 85 A.L.R.
1365.
Attorney and layman, validity of agreement
between, to divide attorney's fees or compen-
sation for business of third person. 86 A.L.R.
195.
133 BIGAMY AND POLYGAMY 18-1101
Solicitation, right of attorney to recover for Contract by one person to defend litigation
services performed under contract procured that has been or may be instituted against
by 86 A.L.R. 517. another as champertous or maintenance. 121
Government or agencies of government,
A.L.R. 847.
law as to champerty or maintenance or main-
Validity of agreement by attorney to save
tenance as applied to agreement with respect
ciient harmless from costs and expenses. 8
to bringing and prosecution of claims against.
A L R 3d 1155
106 A.L.R. 1494.
18-1004. Attorney defending when partner prosecutes.

Every
attorney who directly or indirectly advises in relation to, or aids, or
promotes the defense of, any action or proceeding in any court, the
prosecution of which is carried on, aided or promoted by any person as
prosecuting attorney, or other public prosecutor, with whom such person is
directly or indirectly connected as a partner, or who, having himself
prosecuted or in any manner aided or promoted any action or proceeding in
any court as prosecuting attorney or other public prosecutor, afterward,
directly or indirectly, advises in relation to, or takes any part in, the defense
thereof, as attorney or otherwise, or who takes or receives any valuable
consideration from, or on behalf of any defendant in any such action, upon
any understanding or agreement whatever having relation to the defense
thereof, is guilty of a misdemeanor, and in addition to the punishment
prescribed therefor, forfeits his license to practice law. [I.C.,

18-1004, as
added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which 1972, ch. 336, 1 in the same words as the
8193; I.C.A.,

S.L. 1971, ch. 143, 5,
18-113.
18-1005. Exception to preceding section.

The preceding section
does not prohibit an attorney from defending himself in person as attorney
or counsel, when prosecuted either civilly or criminally. [I.C.,

18-1005, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which 1972 and the present section added by S.L.
comprised R.S., R.C., & C.L., 6526; C.S., 1972, ch. 336, 1 in the same words as the
8194; I.C.A.,

CHAPTER 11
BIGAMY AND POLYGAMY
SECTION. SECTION.
18-1101. Bigamy denned. 18-1104. Marrying spouse of another.
18-1102. Exceptions to preceding section.
18-1105. [Repealed.]
18-1103. Punishment for bigamy.
18-1101. Bigamy defined.
Every person having a husband or wife

living, who marries any other person, except in the cases specified in the
next section, is guilty of bigamy. [I.C.,
18-1101, as added by 1972, ch. 336,
1, p. 844.1
comprised R.S., 6805; I.C.A.,
17-1802,
18-
1101, as added by 1971, ch. 143,
1. How-
ever, the latter section was repealed by S.L.
1972, ch. 109, 1, effective April 1, 1972 and
the present section added by S.L. 1972, ch.
Evidence.
Validity of a ceremonial marriage will be
presumed in absence of evidence tending to
show that it was not regular and in accor-
dance with law. State v. Martinez, 43 Idaho
180, 250 P. 239 (1926).
Testimony ofjustice of the peace of another
state that he performed a marriage ceremony
is a prima facie showing of his authority to
perform it. State v. Martinez, 43 Idaho 180,
250 P. 239 (1926).
Evidence that alleged first wife went under
defendant's name is competent, along with
other evidence, to establish identity. State v.
Martinez, 43 Idaho 180, 250 P. 239 (1926).
Bigamy,
15.
52 Am. Jur. 2d, Marriage,

6869.
10 C.J.S., Bigamy, 2.
Single person who marries one already
married, criminal responsibility of. 5 A.L.R.
783; 74 A.L.R. 1110; 131 A.L.R. 1323.
Religious belief as affecting crime of big-
amy. 24 A.L.R. 1237.
Aiding and abetting, reduction by appellate
court of punishment for. 29 A.L.R. 331; 89
A.L.R. 295.
Dissolution of former marriage, presump-
tion as to, in prosecution for bigamy. 34 A.L.R.
482; 77 A.L.R. 729.
Presumption and burden in prosecution for
bigamy as to dissolution of first marriage. 56
A.L.R. 1273.
Privileged communications and letters be-
tween husband and wife in prosecution for
bigamy. 63 A.L.R. 107.
Common-law marriage, prosecution based
on. 70 A.L.R. 1036.
Decree of annulment of marriage, admissi-
bility in prosecution for bigamy and polyg-
amy. 87 A.L.R. 1264.
Validation of marriage by death of former
spouse. 95 A.L.R. 1292.
Presumption from lapse of time of death of
former spouse, marriage in reliance on, while
former spouse is still living and undivorced,
as sustaining prosecution for bigamy. 144
A.L.R. 747.
Mistake as to validity or effect of divorce as
defense to. 56 A.L.R.2d 915.
Crimes against spouse within exception
permitting testimony by one spouse against
other in criminal prosecution modern state
cases. 74 A.L.R.4th 223.
18-1102. Exceptions to preceding section.

The last section does
not extend:
1. To any person by reason of any former marriage, whose husband or
wife by such marriage has been absent for five (5) successive years without
being known to such person within that time to be living; nor,
2. To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a competent
court. [I.C.,

18-1102, as added by 1972, ch.
336, 1, p. 844.]
comprised R.S., 6806; I.C.A., 17-1803,
18-
1102, as added by 1971, ch. 143, 1. How-
Marriage,

6869.
18-1103. Punishment for bigamy.
Bigamy is punishable by fine not

exceeding $2,000 and by imprisonment in the state prison not exceeding
three
(3) years. [I.C.,

18-1103, as added by 1972, ch. 336, 1, p. 844.]
135 BILLIARD, POOL AND CARD ROOMS AND CONFECTIONARIES 18-1105
comprised R.S., 6807; I.C.A., 17-1804,
18-
1103, as added by 1971, ch. 143, 1. How-
Punishment.
Where trial court imposed on defendant,
convicted of bigamy, a punishment prescribed
by former law, which provided for punishment
of polygamy, correction of error by Supreme
Court did not prejudice defendant's rights.
State v. Martinez, 43 Idaho 180, 250 R 239
(1926).
Bigamy, 63.
10 C.J.S., Bigamy,

9-20.
18-1104. Marrying spouse of another.

Every person who know-
ingly and wilfully marries the husband or wife of another, in any case in
which such husband or wife would be punishable under the provisions of
this chapter, is punishable by fine not less than $2,000, or by imprisonment
in the state prison not exceeding three
(3)
years. [I.C.,

18-1104, as added
by 1972, ch. 336, 1, p. 844.]
C.L., 6808; C.S., 8285; I.C.A., 17-1805,
Analysis
Application.
Elements of offense.
Proof of marriage.
Application.
Application of this section is to the offense
of bigamy, defined in
18-1101, and it is
doubtful if it applies to the polygamy, defined
in
18-1105 (now repealed). State v.
Martinez, 43 Idaho 180, 250 P. 239 (1926).
Elements of Offense.
Under this section, marriage with husband
or wife of another must be knowingly and
wilfully entered into before act of marriage
constitutes crime. State v. Sayko, 37 Idaho
430, 216 P. 1036 (1923).
Proof of Marriage.
Proof of marriage may be at least prima
facie shown by proof of fact that man or
woman lives together with person of opposite
sex as his or her spouse, with general recog-
nition in community of their being married to
each other; by proof of general repute in
family; or by proof of general repute in com-
munity. State v. Poulos, 36 Idaho 453, 212 P.
120 (1922); State v. Sayko, 37 Idaho 430, 216
P. 1036 (1923).
Marriage,

6869.
18-1105. Polygamy
Definition and punishment. [Repealed.]

18-1105,
Another former 18-1105, which com-
prised 1905, p. 293, 1; reen. R.C. & C.L.,
6806; C.S., 8283; I.C.A.,
17-1801, was
January 1, 1972.
CHAPTER 12
BILLIARD, POOL AND CARD ROOMS AND CONFECTIONARIES
SECTION.
18-1201 18-1203. [Repealed.
18-1201. Pool and billiard halls
Sunday rest and midnight clos-

ing. [Repealed.]
Compiler's notes. This section, which
comprised I.C.,
18-1201, as added by 1972,
ch. 336, 1, p. 844, was repealed by S.L.
1978, ch. 96, 1.
Aformer section on the same subject, which
comprised S.L. 1915, ch. 119, 1, 2, p. 264;
reen. C.L., 6829; C.S., 8297; I.C.A.,
17-
2601; am. 1965, ch. 24, 1, p. 37 was re-
18-1201, as
18-1202. Use of screens on pool and card rooms and
confectionaries. [Repealed.]
ch. 336, 1, p. 844, effective April 1, 1972 was
April 1, 1972.
comprised S.L. 1911, ch. 94; compiled and
reen. C.L., 6829a; C.S., 8298; I.C.A.,
18-1203. Minors

Loitering about pool halls prohibited,
pealed.]
[Re-
ch. 336, 1, p. 844, effective April 1, 1972,
comprised S.L. 1913, ch. 123, 1, p. 469;
reen. C.L., 6329b; C.S., 8299; I.C.A.,
17-2603; am. 1965, ch. 24, 2, p. 37, was
January 1, 1972.
CHAPTER 13
BRIBERY AND CORRUPTION
SECTION.
18-1301. Bribery of judicial officers.
18-1302. Receipt of bribe by officer.
18-1303. Acceptance of rewards.
18-1304. Attempt to influence jurors and ar-
bitrators.
18-1305. Misconduct of jurors and arbitra-
tors.
[Repealed.]
Forfeiture of office on conviction.
Offenses relating to bribery

In-
criminating testimony may be
required.
Bribery of municipal or county offic-
ers
Penalties.
18-1311. [Repealed.!
Bribery and corrupt practices

Definitions.
18-1352. Bribery in official and political mat-
ters.
18-1353. Threats and other improper influ-
ence in official and political
matters.
18-1353A. Threats against state officials of
18-1306.
18-1307.
18-1308.
18-1309.
18-1310,
18-1351.
the executive, legislative or ju-
dicial branch or elected offi-
cials of a county or city.
18-1354. Compensation for past official be-
havior.
18-1355. Retaliation for past official action.
18-1356. Gifts to public servants by persons
subject to their jurisdiction.
18-1357. Compensating public servant for as-
sisting private interests in re-
lation to matters before him.
18-1358. Selling political indorsement

Special influence.
18-1359. Using public position for personal
gain.
18-1360. Penalties.
18-1361. Self-interested contracts

Excep-
tion.
18-1361A. Noncompensated appointed public
servant
Relatives of public
servant
Exception.
18-1362. Cause of action.
137 BRIBERY AND CORRUPTION 18-1302
Compiler's notes. In 1972, Chapter 13,
Bribery and Corruption,
18-1301 18-
1309 were enacted by S.L. 1972, ch. 336, 1.
Also in 1972,
18-1351 18-1358 were
added by S.L. 1972, ch. 381, 20 which
amended S.L. 1972, ch. 336 "by the addition
thereto of a new chapter
* * *".
These sections
(
18-1351
18-1358) were added in a new

chapter, Chapter 13A, which was given the
heading "Bribery and Corrupt Influence"
since the catchline of
18-1351 read "Bribery
and Corrupt Influence
Definitions".
S.L. 1982, ch. 263, 1 amended Chapter 13
by the addition thereto of a new section,
18-1353A.
S.L. 1990, ch. 328, 2 amended Chapter
13A by the addition thereto of

18-1359
18-1362.
S.L. 1992, ch. 121, 1 amended Chapter 13
by the addition thereto of
18-1361A.
As a result of these amendments, Chapter
13 consisted of

18-1301
18-1309, 18-
1353A and 18-1361A and Chapter 13A con-
sisted of

18-1351
18-1362. In order to
clarify this situation these sections have been
placed in numerical order in Chapter 13,
Bribery and Corruption, so that this chapter
now consists of

18-1301
18-1309 and
18-1351

18-1362.
18-1301. Bribery of judicial officers.

Every person who gives or
offers to give a bribe to any judicial officer, juror, referee, arbitrator or
umpire, or to any person who may be authorized by law to hear or determine
any question or controversy, with intent to influence his vote, opinion or
decision upon any matter or question which is or may be brought before him
for decision, is guilty of a felony. [I.C.,
18-1301, as added by 1972, ch. 336,
1, p.
844.1
C.L., 6430; C.S., 8138; I.C.A.,
17-701,
18-
1301, as added by 1971, ch. 143, 1. How-
ever, the latter section vâs repealed by S.L.
Cross ref. "Bribe" denned,
18-101.
Bribery of electors,
18-2320.
Bribery of executive officers and others,
18-2701 and notes.

Penalty for felony when not otherwise pro-
vided,
18-112.
Multiple Offenses.
The fact that an officer or giver of a bribe
may be prosecuted under any one of a number
of sections does not militate against a prose-
cution under this section. State v. Emory, 55
Idaho 649, 46 P.2d 67 (1935).
Embracery,

1-4.
11 C.J.S., Bribery, 9.
29A C.J.S., Embracery,
1-5.
Co-conspirator, liability of one cooperating
in bribery which he was incapable of commit-
ting personally. 5 A.L.R. 783; 74 A.L.R. 1110;
131 A.L.R. 1322.
Charge of bribery or cognate offense predi-
cated upon an unaccepted offer by or to an
official. 52 A.L.R. 816.
Contempt by bribery, or attempting to bribe
jurors. 63 A.L.R. 1274.
Candidate, statement by, regarding salary
or fees of office as bribery. 106 A.L.R. 493.
Criminal offense of bribery as affected by
lack of legal qualification of person assuming
to be officer. 115 A.L.R. 1263.
Nonexistence of duty upon part of official to
do, or refrain from doing, the act in respect of
which it was sought to influence him, as
defense to prosecution for bribery or accep-
tance of bribe. 158 A.L.R. 323.
New trial, statements by witness after
criminal trial tending to show that his testi-
mony was the result of perjury, as ground for.
158 A.L.R. 1071.
lack of authority of state public officer or
employee. 73 A.L.R.3d 374.
18-1302. Receipt of bribe by officer.

Every judicial officer, juror,
referee, arbitrator or umpire, and every person authorized by law to hear or
determine any question or controversy, who asks, receives or agrees to
receive any bribe, upon any agreement or understanding that his vote,
opinion or decision upon any matters or question which is or may be brought
before him for decision, shall be influenced thereby, is guilty of a felony. [I.C.,
18-1302, as added by 1972, ch.

336, 1, p. 844.]
C.L., 6431; C.S., 8139; I.C.A.,
17-702,
18-
1302, as added by 1971, ch. 143, 1. How-
Cross ref. Penalty for felony when not
otherwise provided,
18-112.
Collateral References. 11 C.J.S., Bribery,
U.
18-1303. Acceptance of rewards.
Every judicial officer who asks or

receives any emolument, gratuity or reward, or any promise thereof, except
such as may be authorized by law, for doing any official act, is guilty of a
misdemeanor. [I.C.,

18-1303, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6432; C.S., 8140; I.C.A.,
17-703,
18-
1303, as added by 1971, ch. 143, 1. How-
18-113.
18-1304. Attempt to influence jurors and arbitrators.

Every
person who corruptly attempts to influence a juror, or any person summoned
or drawn as a juror, or chosen as an arbitrator or umpire, or appointed a
referee, in respect to his verdict in, or decision of, any cause pending, or
about to be brought before him, either:
1. By means of any communication, oral or written, had with him, except
in the regular course or proceedings;
2. By means of any book, paper or instrument exhibited, otherwise than
in the regular course of proceedings;
3. By means of any threat, intimidation, persuasion or entreaty; or,
4. By means of any promise or assurance of any pecuniary or other
advantage; is guilty of a felony. [I.C., 18-1304, as added by 1972, ch. 336,
1, p.
844.]
C.L., 6433; C.S., 8141; I.C.A., 17-704,
18-
1304, as added by 1971, ch. 143, 1. How-
otherwise provided,
18-112.
Trial, 1055.
18-1305. Misconduct of jurors and arbitrators.

Every juror or
person drawn or summoned as a juror, or chosen arbitrator or umpire, or
appointed referee, who either:
1. Makes any promise or agreement to give a verdict or decision for or
against any party; or,
2. Wilfully and corruptly permits any communication to be made to him,
or receive any book, paper, instrument or information relating to any cause
or matter pending before him, except according to the regular course of
proceedings, is guilty of a felony [I.C.,

18-1305, as added by 1972, ch. 336,
1, p.
844.]
Compiler's notes. A former section, which the present section added by S.L. 1972, ch.
comprised Cr. & P. 1864, 112; R.S., R.C., & 336, 1 in the same words as the section
C.L., 6434; C.S., 8142; I.C.A.,

17-1705, prior to its repeal by S.L. 1971, ch. 143, 5.
effective January
1, 1972, and substituted
otherwise provided,

18-112.

18-
1305, as added by 1971, ch. 143,
1. How-
Trial
993 998
QQ
'
n TC
rr.

T RR
"
77Q

Q1
89 CJb
'
1Yia1
' **
779-781.
18-1306. Theft of property lost, mislaid, or delivered by mistake.
[Repealed.]
Compiler's notes. This section, which and relating to theft of mislaid or lost prop-
comprised I.C.,
18-1306, as added by 1971, erty, was repealed by S.L. 1972, ch. 109, 1,
ch. 143, 1, p. 630, effective January 1, 1972 effective April 1, 1972.
18-1307. Forfeiture of office on conviction.

Every officer con-
victed of any crime denned in this chapter, in addition to the punishment
prescribed, forfeits his office. [I.C.,

18-1307, as added by 1972, ch. 336,
1, p.
844.]
Compiler's notes. A former section, which April 1, 1972 and the present section added by
comprised R.S., R.C., & C.L., 6436; C.S., S.L. 1972, ch. 336, 1 in the same words as
8144; I.C.A.,

17-707, was repealed by S.L. the section prior to its repeal by S.L. 1971, ch.
143, 5.
Collateral References. At common law, it
prising I.C.,

18-1307, as added by 1971, ch.
was embracery for one to attempt to influence
143,
a grand juror. 112 A.L.R. 319.
18-1308. Offenses relating to bribery
Incriminating testimony
may be required.

No person shall be excused from testifying or
producing documents, at the instance of the state, in any criminal cause or
proceeding touching any offense relating to bribery, on the ground that the
testimony required of him may incriminate him. But no person shall be
prosecuted or punished on account of any transaction, manner or thing
concerning which he may be so required to testify or produce evidence:
provided, that no person so testifying shall be exempt from prosecution and
punishment for perjury in so testifying. [I.C.,

18-1308, as added by 1972,
ch. 336, 1, p. 844.]
Compiler's notes. A former section, which therefor was a section comprising I.C.,

18-
comprised 1905, p. 416, 1; reen. R.C. & 1308, as added by 1971, ch. 143,
1. How-
C.L.,
6437; C.S., 8145; I.C.A.,
17-708, ever, the latter section was repealed by S.L.
was repealed by S.L. 1971, ch. 143, 5, 1972, ch. 109, 1, effective April 1, 1972 and
effective January 1, 1972, and substituted the present section added by S.L. 1972, ch.
18-1309. Bribery of municipal or county officers
Penalties.
Every person who gives or offers a bribe to any member of any common
council, board of county commissioners or board of trustees of any county,
city or corporation, with intent to corruptly influence such member in his
action on any matter or subject pending before a body of which he is a
member and every member of either of the bodies mentioned in this section
who receives or offers to receive any such bribe and every person who gives
or offers a bribe to any sheriff, deputy sheriff, policeman, constable,
prosecuting attorney, or other officer charged with the enforcement of the
laws of this state to receive or secure immunity from arrest, prosecution or
punishment for a violation or contemplated violation of the laws of this state
or any such officer who receives or offers to receive any such bribe is
punishable by imprisonment in the state prison for a term not less than one
(1) nor more than fourteen (14) years. [I.C.,

18-1309, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which section, since a prosecution under any section,
comprised Cr. & P. 1864, 93; R.S., R.C., & relating to receiving bribes, would be a bar to
C.L.,
6528; am. 1919, ch. 148, p. 443; C.S., prosecution under any other section. Emory v.
8196; I.C.A.,

State, 55 Idaho 649, 46 P.2d 67 (1935).
Prosecuting Attorney.
Addition of this section gives weight to
conclusion that prosecuting attorney is not
executive officer of state, whose bribery is
provided for under

18-2701. State v.
Wharfield, 41 Idaho 14, 236 P. 862 (1925).
the section prior to its repeal by S.L. 1971, ch. Collateral References. 12 Am. Jur. 2d,
143, 5. Bribery,

12
14.
18-101. 11 C.J.S., Bribery, 9.
Bribery of a de facto officer. 115 A.L.R. 1265.
Analysis
Criminal liability of corporation for bribery
Policemen
or conspiracv to bribe public official. 52
Prosecuting attorney.
A.L.R.3d 1274.
-.'*..*
,
,,
Furnishing public official with meals, lodg-
Policemen. ing, or travel, or receipt of such benefits, as
Police officer accepting bribe for protecting bribery. 67 A.L.R.3d 1231.
woman illegally operating a hotel in violation Criminal offense of bribery as affected by
of

18-5612 (repealed) could be indicted un- lack of authority of state public officer or
der this section or
18-2702. There is no employee. 73 A.L.R.3d 374.
conflict between these two sections. State v. Who is public official within meaning of
Emory, 55 Idaho 649, 46 P.2d 67 (1935). federal statute punishing bribery of public
It is immaterial whether a police officer is official (18 U.S.C.A. 201). 161 A.L.R. Fed.
prosecuted under this section or some other 491.
18-1310, 18-1311. Unauthorized use of automobiles and other vehi-
cles

Wilful concealment of goods, wares or mer-
chandise. [Repealed.]
Compiler's notes. These sections, which ary 1, 1972 were repealed by S.L. 1972, ch.
comprised I.C.,

18-1310, 18-1311, as added 109, 1, effective April 1, 1972.
by 1971, ch. 143, 1, p. 630, effective Janu-
18-1351. Bribery and corrupt practices
Definitions.
Unless a
different meaning plainly is required in this chapter:
(1)
"Benefit" means gain or advantage, or anything regarded by the
beneficiary as gain or advantage, including benefit to any other person or
entity in whose welfare he is interested, but not an advantage promised
generally to a group or class of voters as a consequence of public measures
which a candidate engages to support or oppose.
(2)
"Confidential information" means knowledge gained through a public
office, official duty or employment by a governmental entity which is not
subject to disclosure to the general public and which, if utilized in financial
transactions would provide the user with an advantage over those not
having such information or result in harm to the governmental entity from
which it was obtained.
(3)
"Government" includes any branch, subdivision or agency of the
government of the state or any locality within it and other political
subdivisions including, but not limited to, highway districts, planning and
zoning commissions and cemetery districts, and all other governmental
districts, commissions or governmental bodies not specifically mentioned in
this chapter.
(4) "Harm" means loss, disadvantage or injury, including loss, disadvan-
tage or injury to any other person or entity in whose welfare he is interested.
(5) "Official proceeding" means a proceeding heard or which may be heard
before any legislative, judicial, administrative or other governmental
agency or official authorized to take evidence under oath, including any
referee, hearing examiner, commissioner, notary or other person taking
testimony or deposition in connection with any such proceeding.
(6) "Party official" means a person who holds an elective or appointive
post in a political party in the United States by virtue of which he directs or
conducts, or participates in directing or conducting party affairs at any level
of responsibility.
(7)
"Pecuniary benefit" is any benefit to a public official or member of his
household in the form of money, property or commercial interests, the
primary significance of which is economic gain.
(8) "Public servant" means any officer or employee of government, includ-
ing legislators and judges, and any person participating as juror, advisor,
consultant or otherwise, in performing a governmental function; but the
term does not include witnesses.
(9)
"Administrative proceeding" means any proceeding, other than a
judicial proceeding, the outcome ofwhich is required to be based on a record
or documentation prescribed by law, or in which law or regulation is
particularized in application to individuals. [1972, ch. 381, 20, p. 1102;
am. 1990, ch. 328, 1, p. 899.]
Compiler's notes. The words "this chap- Section 18 of S.L. 1972, ch. 381 is compiled
ter" as used in this section refer to the code as
18-7401.
chapter enacted by S.L. 1972, ch. 381, 20, Section 2 of S.L. 1990, ch. 328 is compiled
compiled as

18-1351
18-1358. as
18-1359
18-1362.
Section 19 of S.L. 1972, ch. 381 was re- Sec. to sec. ref. This section is referred to
pealed. in
33-5204.
Private Right of Action. Collateral References. Who is public of-
A private right of action for insurance com- ficial within meaning of federal statute pun-
pany's alleged obstruction of justice and vio- ishing bribery of public official (18 U.S.C.A.
lations of the Idaho Bribery and Corrupt 201). 161 A.L.R. Fed. 491.
Influences Act was not available and district Defenses to state obstruction of justice
court's dismissal of these claims was proper. charge relating to interfering with criminal
Yoakum v. Hartford Fire Ins. Co., 129 Idaho investigation or judicial proceeding. 87
171, 923 P.2d 416 (1996). A.L.R.5th 597.
18-1352. Bribery in official and political matters.

A person is
guilty of bribery, a felony, if he offers, confers or agrees to confer upon
another, or solicits, accepts or agrees to accept from another:
(1) Any pecuniary benefit as consideration for the recipient's decision,
opinion, recommendation, vote or other exercise of discretion as a public
servant, party official or voter; or
(2) Any benefit as consideration for the recipient's decision, vote, recom-
mendation or other exercise of official discretion in a judicial or administra-
tive proceeding; or
(3) Any benefit as consideration for a violation of a known legal duty as
public servant or party official.
It is no defense to prosecution under this section that a person whom the
actor sought to influence was not qualified to act in the desired way whether
because he had not yet assumed office, or lacked jurisdiction, or for any other
reason. [1972, ch. 381, 20, p. 1102.]
in
18-7803 and 33-5204.
18-1353. Threats and other improper influence in official and
political matters.
(1) Offenses defined. A person commits an offense if

he:
(a) threatens unlawful harm to any person with purpose to influence his
decision, opinion, recommendation, vote or other exercise of discretion as
a public servant, party official or voter; or
(b) threatens harm to any public servant with purpose to influence his
decision, opinion, recommendation, vote or other exercise of discretion in
a judicial or administrative proceeding; or
(c) threatens harm to any public servant or party official with purpose to
influence him to violate his known legal duty; or
(d) privately addresses to any public servant who has or will have an
official discretion in a judicial or administrative proceeding any represen-
tation, entreaty, argument or other communication with purpose to
influence the outcome on the basis of considerations other than those
authorized by law.
It is no defense to prosecution under this section that a person whom the
actor sought to influence was not qualified to act in the desired way, whether
because he had not yet assumed office, or lacked jurisdiction, or for any other
reason.
(2) Grading. An offense under this section is a misdemeanor unless the
actor threatened to commit a crime or made a threat with purpose to
influence a judicial or administrative proceeding, in which cases the offense
is a felony. [1972, ch. 381, 20, p. 1102.]
Sec. to sec. ref. This section is referred to Cited in: Lamprecht v. Jordan, LLC,

in

18-7803, 33-5204 and 63-3076. Idaho , 75 R3d 743 (2003).
18-1353A. Threats against state officials of the executive, legisla-
tive or judicial branch or elected officials of a county or city.

Whoever knowingly and willfully deposits for conveyance in the mail or for
a delivery from any post office or by any letter carrier, any letter, paper,
writing, print, missive, or document containing any threat to take the life of
or to inflict bodily harm upon any state elected official of the executive or
legislative branch, or any justice, judge or magistrate of the judicial branch,
or person appointed to fill the vacancy of a state elected official of the
executive or legislative branch of the state of Idaho, or knowingly and
willfully otherwise makes any such threat against a state elected official of
the executive or legislative branch, or any justice, judge or magistrate of the
judicial branch, or person appointed to fill the vacancy of a state elected
official of the executive or legislative branch of the state of Idaho, or upon
any elected official of any county or city, is guilty of a misdemeanor and upon
conviction thereof shall be fined not to exceed one thousand dollars ($1,000)
and shall be sentenced to not to exceed one (1)
year in the county jail. If such
threat is made while the defendant exhibits a firearm or other dangerous or
deadly weapon, the defendant shall be guilty of a felony. Upon a second or
subsequent conviction of an offense under this section, the defendant shall
be guilty of a felony and shall be sentenced to a term of not to exceed five
(5)
years in the state penitentiary. [I.C.,

18-1353A, as added by 1982, ch. 263,
1, p. 674; am. 1992, ch. 113, 1, p. 342; am. 1996, ch. 401, 1, p. 1334;
am. 2000, ch. 131, 1, p. 308.]
Compiler's notes. Section 2 of S.L. 1982, Cross ref. Use of telephone to threaten or
ch. 263 declared an emergency. Approved harass,

18-6710, 18-6711.
March 31, 1982.
in 18-310, 33-5204 and 63-3076.
18-1354. Compensation for past official behavior.

A person
commits a misdemeanor if he solicits, accepts, or agrees to accept any
pecuniary benefit as compensation for having as public servant, given a
decision, opinion, recommendation or vote favorable to another, or for
having otherwise exercised a discretion in his favor, or for having violated
his duty. A person commits a misdemeanor if he offers, confers or agrees to
confer, compensation, acceptance of which is prohibited by this section.
[1972, ch. 381, 20, p. 1102.]
in

33-5204 and 63-3076.
18-1355. Retaliation for past official action.
A person commits a
misdemeanor if he harms another by any unlawful acts in retaliation for
anything lawfully done by the latter in the capacity of public servant. [1972,
ch. 381, 20, p. 1102.]
in 33-5204 and 63-3076.
18-1356. Gifts to public servants by persons subject to their
jurisdiction.

(1) Regulatory and law enforcement officials. No public
servant in any department or agency exercising regulatory functions, or
conducting inspections or investigations, or carrying on civil or criminal
litigation on behalf of the government, or having custody of prisoners, shall
solicit, accept or agree to accept any pecuniary benefit from a person known
to be subject to such regulation, inspection, investigation or custody, or
against whom such litigation is known to be pending or contemplated.
(2) Officials concerned with government contracts and pecuniary trans-
actions. No public servant having any discretionary function to perform in
connection with contracts, purchases, payments, claims or other pecuniary
transactions of the government shall solicit, accept or agree to accept any
pecuniary benefit from any person known to be interested in or likely to
become interested in any such contract, purchase, payment, claim or
transaction.
(3)
Judicial and administrative officials. No public servant having judi-
cial or administrative authority and no public servant employed by or in a
court or other tribunal having such authority, or participating in the
enforcement of its decisions, shall solicit, accept or agree to accept any
pecuniary benefit from a person known to be interested in or likely to
become interested in any matter before such public servant or a tribunal
with which he is associated.
(4) Legislative officials. No legislator or public servant employed by the
legislature or by any committee or agency thereof shall solicit, accept or
agree to accept any pecuniary benefit in return for action on a bill,
legislation, proceeding or official transaction from any person known to be
interested in a bill, legislation, official transaction or proceeding, pending or
contemplated before the legislature or any committee or agency thereof.
(5)
Exceptions. This section shall not apply to:
(a) fees prescribed by law to be received by a public servant, or any other
benefit for which the recipient gives legitimate consideration or to which
he is otherwise legally entitled; or
(b) gifts or other benefits conferred on account of kinship or other
personal, professional or business relationship independent of the official
status of the receiver; or
(c) trivial benefits not to exceed a value of fifty dollars ($50.00) incidental
to personal, professional or business contacts and involving no substantial
risk of undermining official impartiality.
(6) Offering benefits prohibited. No person shall knowingly confer, or
offer or agree to confer, any benefit prohibited by the foregoing subsections.
(7) Grade of offense. An offense under this section is a misdemeanor and
shall be punished as provided in this chapter. [1972, ch. 381, 20, p. 1102;
am. 1990, ch.
328, 3, p! 899.]

18-1359
in 18-1359 and 33-5204.
18-1362 and 59-208, respectively.
18-1357. Compensating public servant for assisting private in-
terests in relation to matters before him.

(1) Receiving compensa-
tion. A public servant commits a misdemeanor if he solicits, accepts or
agrees to accept compensation for advice or other assistance in preparing or
promoting a bill, contract, claim, or other transaction or proposal as to which
he knows that he has or is likely to have an official discretion to exercise.
(2) Paying compensation. A person commits a misdemeanor if he pays or
offers or agrees to pay compensation to a public servant with knowledge that
acceptance by the public servant is unlawful. [1972, ch.
381, 20, p. 1102.]
in
33-5204.
18-1358. Selling political indorsement

Special influence.

(1) Selling political indorsement. A person commits a misdemeanor if he
solicits, receives, agrees to receive, or agrees that any political party or other
person shall receive any pecuniary benefit as consideration for approval or
disapproval of an appointment or advancement in public service, or for
approval or disapproval of any person or transaction for any benefit
conferred by an official or agency of the government. "Approval" includes
recommendations, failure to disapprove, or any other manifestation of favor
or acquiescence. "Disapproval" includes failure to approve, or any other
manifestation of disfavor or nonacquiescence.
(2)
Other trading in special influence. A person commits a misdemeanor
if he solicits, receives or agrees to receive any pecuniary benefit as
consideration for exerting special influence upon a public servant or
procuring another to do so. "Special influence" means power to influence
through kinship, friendship, or other relationship apart from the merits of
the transaction.
(3) Paying for indorsement or special influence. A person commits a
misdemeanor if he offers, confers or agrees to confer any pecuniary benefit,
receipt of which is prohibited by this section. [1972, ch. 381, 20, p. 1102.1
Compiler's notes. Section 21 of S.L. 1972, Sec. to sec. ref. This section is referred to
ch. 381, provided the act should take effect in
33-5204.
from and after April 1, 1972.
18-1359. Using public position for personal gain.
(1) No public
servant shall:
(a) Without the specific authorization of the governmental entity for
which he serves, use public funds or property to obtain a pecuniary benefit
for himself.
(b) Solicit, accept or receive a pecuniary benefit as payment for services,
advice, assistance or conduct customarily exercised in the course of his
official duties. This prohibition shall not include trivial benefits not to
exceed a value of fifty dollars ($50.00) incidental to personal, professional
or business contacts and involving no substantial risk of undermining
official impartiality.
(c) Use or disclose confidential information gained in the course of or by
reason of his official position or activities in any manner with the intent
to obtain a pecuniary benefit for himself or any other person or entity in
whose welfare he is interested or with the intent to harm the governmen-
tal entity for which he serves.
(d) Be interested in any contract made by him in his official capacity, or
by any body or board of which he is a member, except as provided in
section 18-1361, Idaho Code.
(e) Appoint or vote for the appointment of any person related to him by
blood or marriage within the second degree, to any clerkship, office,
position, employment or duty, when the salary, wages, pay or compensa-
tion of such appointee is to be paid out of public funds or fees of office, or
appoint or furnish employment to any person whose salary, wages, pay or
compensation is to be paid out of public funds or fees of office, and who is
related by either blood or marriage within the second degree to any other
public servant when such appointment is made on the agreement or
promise of such other public servant or any other public servant to
appoint or furnish employment to anyone so related to the public servant
making or voting for such appointment. Any public servant who pays out
of any public funds under his control or who draws or authorizes the
drawing of any warrant or authority for the payment out of any public
fund of the salary, wages, pay, or compensation of any such ineligible
person, knowing him to be ineligible, is guilty of a misdemeanor and shall
be punished as provided in this chapter.
(2) No person related to any member of the legislature by blood or
marriage within the second degree shall be appointed to any clerkship,
office, position, employment or duty within the legislative branch of govern-
ment or otherwise be employed by the legislative branch of government
when the salary, wages, pay or compensation of such appointee or employee
is to be paid out of public funds.
(3) No person related to a mayor or member of a city council by blood or
marriage within the second degree shall be appointed to any clerkship,
office, position, employment or duty with the mayor's or city council's city
when the salary, wages, pay or compensation of such appointee or employee
is to be paid out of public funds.
(4) No person related to a county commissioner by blood or marriage
within the second degree shall be appointed to any clerkship, office, position,
employment or duty with the commissioner's county when the salary,
wages, pay or compensation of such appointee or employee is to be paid out
of public funds.
(5)(a) An employee of a governmental entity holding a position prior to
the election of a local government official, who is related within the second
degree, shall be entitled to retain his or her position and receive general
pay increases, step increases, cost of living increases, and/or other across
the board increases in salary or merit increases, benefits and bonuses or
promotions.
(b) Nothing in this section shall be construed as creating any property
rights in the position held by an employee subject to this section, and all
authority in regard to disciplinary action, transfer, dismissal, demotion or
termination shall continue to apply to the employee.
(6)
The prohibitions contained within this section shall not include
conduct denned by the provisions of section 59-703(4), Idaho Code.
(7) The prohibitions within this section and section 18-1356, Idaho Code,
as it applies to part-time public servants, do not include those actions or
conduct involving the public servant's business, profession or occupation
and unrelated to the public servant's official conduct, and do not apply to a
pecuniary benefit received in the normal course of a legislator's business,
profession or occupation and unrelated to any bill, legislation, proceeding or
official transaction. [I.C.,

18-1359, as added by 1990, ch.
328, 2, p. 899;
am. 1991, ch.
305, 1, p. 800; am. 2002, ch. 304, 1, p. 867; am. 2004, ch.
316, 1, p. 887.]
Compiler's notes. Sections 1 and 3 of S.L. emergency. Approved March 26, 2002.

18-1351 and Sec. to sec. ref. This section is referred to
18-1356, respectively. in

18-1361, 18-1361A, 33-5204 and 67-
Section 2 of S.L. 2002, ch. 304 declared an 455A.
18-1360. Penalties.
Any public servant who violates the provisions

of this chapter, unless otherwise provided, shall be guilty of a misdemeanor
and may be punished by a fine not exceeding one thousand dollars
($1,000),
or by incarceration in the county jail for a period not exceeding one (1) year,
or by both such fine and incarceration. In addition to any penalty imposed
in this chapter, any person who violates the provisions of this chapter may
be required to forfeit his office and may be ordered to make restitution of any
benefit received by* him to the governmental entity from which it was
obtained. [I.C.,
18-1360, as added by 1990, ch. 328, 2, p. 899.]
18-1351 and in
33-5204.
18-1361. Self-interested contracts
Exception.
Where there are

less than three (3) suppliers of a good or a service within a fifteen (15) mile
radius of where the good or service is to be provided, it shall not constitute
a violation of the provisions of subsection (l)(d) or (e) of section 18-1359,
Idaho Code, for a public servant or for his relative to contract with the public
body of which the public servant is a member if the contract is reasonably
necessary to respond to a disaster as defined in chapter 10, title 46, Idaho
Code, or if the procedures listed below are strictly observed. For purposes of
this section, "relative" shall mean any person related to the public servant
by blood or marriage within the second degree.
(1) The contract is competitively bid and the public servant or his relative
submits the low bid; and
(2) Neither the public servant nor his relative takes any part in the
preparation of the contract or bid specifications, and the public servant
18- 1361
A
CRIMES AND PUNISHMENTS 148
takes no part in voting on or approving the contract or bid specifications;
and
(3)
The public servant makes full disclosure, in writing, to all members of
the governing body, council or board of said public body ofhis interest or that
of his relative and ofhis or his relative's intention to bid on the contract; and
(4)
Neither the public servant nor his relative has violated any provision
of Idaho law pertaining to competitive bidding or improper solicitation of
business. [I.C.,
18-1361, as added by 1990, ch. 328, 2, p. 899; am. 1991,
ch.
34, 1, p. 71; am. 1996, ch. 193, 1, p. 601.]
18-1351 and in

18-1359, 33-507 and 33-5204.
18-1361A. Noncompensated appointed public servant

Rela-
tives of public servant

Exception.

When a person is a public
servant by reason of his appointment to a governmental entity board for
which the person receives no salary or fees for his service on said board, it
shall not constitute a violation of the provisions of subsection (l)(d) or (e) of
section 18-1359, Idaho Code, for a public servant or for his relative to
contract with the public body of which the public servant is a member if the
procedures listed below are strictly observed. For purposes of this section,
"relative" shall mean any person related to the public servant by blood or
marriage within the second degree.
(1) The contract is competitively bid and the public servant or his relative
submits the low bid; and
(2) Neither the public servant nor his relative takes any part in the
preparation of the contract or bid specifications, and the public servant
takes no part in voting on or approving the contract or bid specifications;
and
(3)
The public servant makes full disclosure, in writing, to all members of
the governing body, council or board of said public body ofhis interest or that
ofhis relative and of his or his relative's intention to bid on the contract; and
(4) Neither the public servant nor his relative has violated any provision
of Idaho law pertaining to competitive bidding or improper solicitation of
business. [I.C.,

18-1361A, as added by 1992, ch.
121, 1, p. 398; am. 1996,
ch. 193, 2, p. 601.]
59-209. emergency. Approved March 12, 1996.
Section 3 of S.L. 1996, ch. 193 is compiled Sec. to sec. ref. This section is referred to
as
33-507. in

33-507, 33-5204, 59-209 and 59-704A.
18-1362. Cause of action.

A prosecuting attorney or the attorney
general may bring an action in the district court of the county in which a
public servant resides to enjoin a violation of the provisions of this chapter
and to require the public servant to make restitution to the government of
any pecuniary gain obtained. The prevailing party shall be awarded his
costs and reasonable attorney fees. [I.C.,

18-1362, as added by 1990, ch.
328, 2, p. 899.]
149 BURGLARY 18-1401

18-1351 and
in 33-5204.
CHAPTER 13A
BRIBERY AND CORRUPT INFLUENCE
Compiler's notes. The sections previously
carried in this chapter,

18-1351 18-
1361, have been combined into Chapter 13,
Bribery and Corruption. See Compiler's note
following the Chapter 13, title 18, Idaho Code
heading.
CHAPTER 14
BURGLARY
SECTION.
18-1401. Burglary denned.
18-1403. Punishment for burglary.
SECTION.
18-1405. Burglary with explosives.
18-1406. Possession of burglarious instru-
ments.
18-1407
18-1401. Burglary defined.

Every person who enters any house,
room, apartment, tenement, shop, warehouse, store, mill, barn, stable,
outhouse, or other building, tent, vessel, vehicle, trailer, airplane or railroad
car, with intent to commit any theft or any felony, is guilty of burglary. [I.C.,
319; am. 1997, ch.
87, 1, p. 212.]
C.L., 7014; C.S., 8400; I.C.A.,
17-3401;
am. 1963, ch. 293, 1, was repealed by S.L.
143, 5.
as

18-2401
18-2409.
Cross ref. Theft, consolidation of offenses,
18-2401, 18-2402.
in
18-310, 18-7803, 19-2520 and 19-5506.
Cited in: State v. Wolfe, 99 Idaho 382, 582
P.2d 728 (1978); State v. Stewart, 100 Idaho
185, 595 P.2d 719 (1979); State v. Talmage,
104 Idaho 249, 658 P.2d 920 (1983); State v.
Pyne, 105 Idaho 427, 670 P.2d 528 (1983);
State v. Decker, 106 Idaho 434, 680 P.2d 255
(Ct. App. 1984); State v. Davis, 106 Idaho 563,
682 P.2d 104 (Ct. App. 1984); State v. Rendon,
107 Idaho 425, 690 P.2d 360 (Ct. App. 1984);
State v. Mathis, 107 Idaho 685, 691 P.2d 1300
(Ct. App. 1984); State v. Keller, 108 Idaho 643,
701 P.2d 263 (Ct. App. 1985); State v. Clayton,
112 Idaho 1110, 739 P.2d 409 (Ct. App. 1987);
State v. Staha, 114 Idaho 119, 753 P.2d 1265
(Ct. App. 1988); State v. Samuelson, 114 Idaho
550, 758 P.2d 709 (Ct. App. 1988); State v.
Chacon, 114 Idaho 789, 760 P.2d 1205 (Ct.
App. 1988); State v. Knapp, 120 Idaho 343,
815 P.2d 1083 (Ct. App. 1991); State v. Brower,
122 Idaho 450, 835 P.2d 685 (Ct. App. 1992);
State v. Laymon, 122 Idaho 452, 835 P.2d 687
(Ct. App. 1992); State v. Marsh, 122 Idaho
854, 840 P. 2d 398 (Ct. App. 1992); State v.
Bayles, 131 Idaho 624, 962 P.2d 395 (Ct. App.
1998); State v. Miller, 134 Idaho 458, 4 P.3d
570 (Ct. App. 2000); State v. Cheatham, 134
Idaho 565, 6 P.3d 815 (2000); State v.
Custodio, 136 Idaho 197, 30 P.3d 975 (Ct. App.
2001); Brown v. State, 137 Idaho 529, 50 P.3d
1024 (Ct. App. 2002); Goodwin v. State, 138
Idaho 269, 61 P.3d 626 (Ct. App. 2002);
Laughlin v. State,

Idaho , 85 P.3d 1125
(Ct. App. 2003).
Analysis
Breaking and entry.
Building.
Closed vehicle.
Conviction affirmed.
Disposing of stolen property.
Double jeopardy.
Evidence.
Confession.
Harmless error.
Firearms enhancement.
Guilty plea.
Acceptance.
Effect.
Harmless.
Instructions.
Intent.
Larceny.
Opinion testimony.
Outhouse or other buildings.
Ownership of building.
Persistent violator.
Punishment.
Rape.
"Room."
Sentence.
Shoplifting.
Time of entry.
Value of articles taken.
Breaking and Entry.
Breaking that was required at common law
is not essential element of crime in this state.
State v. Sullivan, 34 Idaho 68, 199 P. 647, 17
A.L.R. 902 (1921).
Entry made through front door of poolroom
during business hours might constitute bur-
glary, if with felonious intent. State v. Bull, 47
Idaho 336, 276 P. 528 (1929).
Defendant remaining on outside in capacity
of a lookout may be found guilty of burglary as
principal. State v. Bull, 47 Idaho 336, 276 P.
528 (1929).
To sustain conviction for burglary there
must be proof of breaking and entering. Evi-
dence that accused tore down a shed and took
it away without proof that they entered it was
insufficient. State v. Allen, 53 Idaho 603, 26
P.2d 177 (1933).
Breaking is not an essential element of the
crime of burglary under this section. State v.
Vanek, 59 Idaho 514, 84 P.2d 567 (1938).
The "breaking" required at common law to
constitute the crime of burglary is not an
essential element of the crime under this
section. Consequently, the information need
not allege an unlawful "breaking." State v.
Vanek, 59 Idaho 514, 84 P.2d 567 (1938).
Building.
An inn was a building within the meaning
of the former section. State v. Oldham, 92
Idaho 124, 438 P.2d 275 (1968).
Conviction under the former statute did not
require proof of ownership of building entered
or of personal property taken therein, but
only that accused entered with intent to com-
mit grand or petit larceny or any felony. State
v. Carver, 94 Idaho 677, 496 P2d 676 (1972).
Closed Vehicle.
Tested by its character and use, a truck
camper may properly be considered a closed
vehicle within the contemplation of the bur-
glary statute. State v. Martinez, 122 Idaho
158, 832 P.2d 331 (Ct. App. 1992).
District court properly granted defendant's
motion to dismiss, holding that no burglary
had been shown as the State had failed to
show that the truck was a "closed vehicle,"
within the meaning of this section in light of
testimony that thief had reached through an
open window of the truck to gain access to a
stolen tape player. State v. Martinez, 126
Idaho 801, 891 P.2d 1061 (Ct. App. 1995).
Where defendant reached through a narrow
opening in the top of a partially rolled down
window, unlocked the door, opened the door,
and entered the vehicle in furtherance of his
theft of a stereo, the act of opening the door
breached a barrier of the vehicle which had
been closed to public intrusion and consti-
tuted a breaking. State v. Ortega, 130 Idaho
637, 945 P2d 863 (Ct. App. 1997).
Conviction Affirmed.
As burglary statute proscribed the entry
into an office in a hospital with the intent to
commit a theft, and defendant was in posses-
sion of items taken from the office when
arrested, defendant's conviction for burglary
was affirmed. State v. Smith,

Idaho , 77
P3d 984 (Ct. App. 2003).
Disposing of Stolen Property.
Disposing of stolen property is not a lesser
included offense of the crime of burglary.
State v. Martin, 104 Idaho 195, 657 P.2d 492
(Ct. App. 1983).
Double Jeopardy.
In light of the purpose of the Major Crimes
Act (MCA) and uniform authority, defendant's
argument that the district court should have
applied Idaho's double jeopardy law failed,
because what Idaho courts might think about
the legality of defendant's federal prosecution
was irrelevant, and, the MCA's incorporation
of state law for burglary notwithstanding, the
offense for which defendant was prosecuted
was a federal offense, and whether defen-
dant's prosecution violated the Double Jeop-
ardy Clause is a federal issue to be deter-
mined by reference to federal constitutional
principles. United States v. Pluff, 253 F.3d
490 (9th Cir. 2001).
Evidence.
Possession of burglarious tools as evidence
in connection with charge of burglary can only
be considered where burglary is first shown to
have been committed. State v. Sullivan, 34
Idaho 68, 199 R 647, 17 A.L.R. 902 (1921).
Where burglarious entry has been proved,
it may be shown that property allegedly sto-
len was found in accused's possession. State v.
Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R.
902 (1921).
Want of consent to taking of property may
be shown by means other than testimony of
owner. State v. Bull, 47 Idaho 336, 276 P. 528
(1929).
The evidence must prove beyond a reason-
able doubt that there was an entry, and if the
evidence leaves this element to conjecture, it
falls short of the requirements of the law.
State v. Allen, 53 Idaho 603, 26 P.2d 177
(1933).
Petitioner was properly held on charge of
burglary where evidence at preliminary hear-
ing showed that he pried open a locked win-
dow and entered darkened house of people
away from home though police stationed in-
side arrested him before he could steal any-
thing. Ex parte Seyfried, 74 Idaho 467, 264
P2d 685 (1953).
There was sufficient evidence to convict
defendant of attempted burglary where the
evidence showed that night watchman discov-
ered that a person was attempting to break in
and fired through the door and defendant was
found eight to 12 feet from the door with
bullet wounds in his arm and leg, two screw-
drivers were found near the body of the de-
fendant, and the car of the defendant was
found parked close by. State v. Bedwell, 77
Idaho 57, 286 P.2d 641 (155).
It was reversible error for the trial court to
permit the prosecuting attorney upon a pros-
ecution for burglary in the first degree to
attempt to impeach the defendant by requir-
ing him to testify about prior convictions of
misdemeanors. State v. Cronk, 78 Idaho 585,
307 P.2d 1113 (1957).
Evidence showing the presence of appel-
lants in various stores, their identification
and their taking sundry articles from those
stores with thoroughly positive identification
of the merchandise, that such articles were
not sold to appellants and the finding of such
articles in appellants' possession, was suffi-
cient to warrant conviction. State v. Poison,
81 Idaho 147, 339 P.2d 510 (1959).
The surrounding circumstances and the
record as a whole indicate sufficient evidence
of appellant's intent upon entry into the de-
partment store to commit the crime of larceny.
State v. Peterson, 87 Idaho 147, 391 P2d 846
(1964).
Where the police found the door of a depart-
ment store forced open, the lock of another
door forced, and the defendant hiding behind
the air conditioner on an adjoining roof that
could be reached from the store's elevator
shaft, even though no burglar tools were
found and nothing was missing from the
store, such evidence was sufficient to conclude
that defendant entered the store with the
requisite intent to commit either grand or
petit larceny and was guilty of burglary. State
v. Liston, 95 Idaho 849, 521 P.2d 1028 (1974).
In a trial for theft of packages of meat from
a grocery store, evidence of other meat pack-
ages from other stores found in the defen-
dant's automobile without accompanying
sales receipts was admissible as the packages
were relevant to the defendant's intent and
common scheme or plan. State v. Matthews,
108 Idaho 482, 700 P.2d 104 (Ct. App. 1985).
Evidence was sufficient to support the con-
viction. State v. Kelling, 108 Idaho 716, 701
P2d 664 (Ct. App. 1985).
On appeal from a conviction for burglary in
the second degree, where the defendant was
found pounding on an electrical junction box
in a warehouse not in use, the trial court
properly admitted evidence of receipts from a
recycling business which showed that the
defendant had sold approximately two tons of
scrap metal to the recycler in the three
months preceding the arrest, since the re-
ceipts were relevant to show that the defen-
dant entered the warehouse with the intent to
steal materials. State v. Whitfield, 108 Idaho
877, 702 P2d 915 (Ct. App. 1985).
Evidence of a forced entry will support a
permissive inference of burglary with the
requisite intent to commit larceny or a felony.
State v. Hoffman, 109 Idaho 127, 705 P.2d
1082 (Ct. App. 1985).
It was not error for the trial court to allow
the police officer to testify about his observa-
tions of the defendant's shoe and his compar-
ison of the shoeprint at the scene of the
burglary with the tread pattern on the shoe;
there is no reasonable expectation of privacy
in the appearance of the soles of one's shoes.
State v. Hiassen, 110 Idaho 608, 716 P.2d 1380
(Ct. App. 1986).
The testimony of dog handlers whose dogs
were scented and placed on a trail within
three to five hours after the burglary, near
where witnesses observed a man running,
was admissible corroborating evidence of the
defendant's involvement in the burglary.
State v. Streeper, 113 Idaho 662, 747 P2d 71
(1987).
Where a reasonable juror could have in-
ferred that the crash, heard by the manager of
the grain and feed store prior to sunrise, was
caused by the burglar's escape from the build-
ing, the evidence supported a conviction in
the first degree. State v. Streeper, 113 Idaho
662, 747 P2d 71 (1987).
Evidence of a forced entry will support a
permissive inference of burglary with the
requisite intent to commit a theft and because
the record shows that defendant made a
forced entry into the home, the required in-
tent to commit a theft, at the time defendant
entered the home, was established by the
evidence. State v. Knutson, 121 Idaho 101,
822 P.2d 998 (Ct. App. 1991).
Confession.
The de facto father-son relationship be-
tween the defendant and the police officer did
not render the defendant's statements invol-
untary where the preponderance of the evi-
dence established the voluntariness of the
defendant's inculpatory statement. State v.
Hiassen, 110 Idaho 608, 716 P.2d 1380 (Ct.
App. 1986).
Harmless Error.
854 P.2d 290 (Ct. App. 1993).
Firearms Enhancement.
Where the evidence showed that a shot was
fired after defendant and another person at-
tempted to escape after entering a victim's
barn, there was sufficient evidence that de-
fendant displayed, used, threatened, or at-
tempted to use a firearm while committing or
attempting to commit a burglary. State v.
McLeskey, 138 Idaho 691, 69 P.3d 111 (2003).
Guilty Plea.
Acceptance.
Where the total record contained evidence
from which strong inferences arose that de-
fendant intended to commit theft when he
broke into restaurant, defendant's assertion
in presentence report of his lack of criminal
intent was not sufficient to raise an obvious
doubt as to his guilt, and the court did not err
in accepting defendant's guilty plea. Fowler v.
1985).
Effect.
A defendant's pleas of guilty to counts of
first-degree burglary, voluntarily and under-
standing^ given, barred his challenge in the
Supreme Court to the trial court's denial of
defendant's motion to suppress his oral con-
fession, for the question of whether the con-
fession would have been admissible at trial
was no longer relevant. State v. Tipton, 99
Idaho 670, 587 P.2d 305 (1978).
Given the defendant's voluntary entry of
pleas of guilty and express admission of guilt
to first degree burglary charges, the court was
not obliged to establish a further factual basis
for the charges and did not err in accepting
defendant's pleas of guilty to first degree
burglary charges at arraignment hearing.
State v. Coffin, 104 Idaho 543, 661 P.2d 328
(1983).
Where, at the sentencing hearing, the court
noted its concern that defendant pleaded
guilty to first degree burglary while maintain-
ing his innocence, i.e., that he had entered the
premises in the daytime, and the defendant
was given ample opportunity to withdraw his
plea but nevertheless made a reasoned deci-
sion to continue with his pleas of guilty con-
sistent with the terms of his plea bargain, this
was clearly a case in which the defendant
intelligently concluded that it was in his own
best interest to enter a plea of guilty to the
crimes charged. He chose to take his chances
that the trial court would exercise leniency in
sentencing, as opposed to facing the addi-
tional charges which were dismissed upon the
court's acceptance of his pleas, and, having
struck a plea bargain with the prosecutor and
insisting upon following that bargain when
given the opportunity to withdraw his plea,
defendant could not be heard to complain that
the district court's acceptance of his pleas of
guilty to the first degree burglary charges was
in error. State v. Coffin, 104 Idaho 543, 661
P.2d 328 (1983).
The defendant's plea of guilty to a burglary
charge waived any challenge to the order
denying his motion to suppress statements
made to the police following his arrest; once
his plea was accepted, the admissibility of his
statements became irrelevant. State v.
Fowler, 105 Idaho 642, 671 P.2d 1105 (Ct.
App. 1983).
A valid plea of guilty, voluntarily and un-
derstandingly given, waives all
nonjurisdictional defects and defenses,
whether constitutional or statutory, in prior
proceedings; accordingly, the defendant's plea
of guilty to a charge of burglary waived his
right to contest the preliminary hearing pro-
cedure. State v. Fowler, 105 Idaho 642, 671
P.2d 1105 (Ct. App. 1983).
Where the defendant did not in any manner
attempt to exercise his rights to silence and
counsel, his waiver of rights was valid and his
confession was voluntary and properly admit-
ted. State v. Hiassen, 110 Idaho 608, 716 P.2d
1380 (Ct. App. 1986).
Harmless.
854 P.2d 290 (Ct. App. 1993).
An information for burglary following in
substance language of the statute is suffi-
cient. State v. Bull, 47 Idaho 336, 276 P. 528
(1929).
Under the statute but a single act is re-
quired to constitute the crime of burglary,
to-wit, entry. Therefore, the entry of any
house, etc., "with intent to commit grand or
petit larceny or any felony," constitutes the
crime of burglary. Information charging the
commission of the act which constitutes the
offense charges the fact or circumstance of the
entry, and having charged the commission of
that act in ordinary and concise language,
and in such manner as to enable a person of
common understanding to know what was
intended, it follows that the information fully
complies with every requirement of the stat-
ute. State v. Vanek, 59 Idaho 514, 84 P.2d 567
(1938).
Information charged attempted burglary
where the information stated that the defen-
dant on or about specified date and place did
wilfully and feloniously attempt to break into
and enter in the nighttime an identified build-
ing with intent to commit larceny therein.
State v. Bedwell, 77 Idaho 57, 286 R2d 641
(1955).
A trial court did not err in permitting a
prosecuting attorney to amend an indictment
by changing the charging code section from
former
18-1402 (repealed), which distin-
guished first degree burglary from second
degree burglary, to this section which defines
the crime of burglary in general, and the
amendment did not have the effect of chang-
ing the offense with which the accused was
charged. State v. Bullis, 93 Idaho 749, 472
P.2d 315 (1970).
Instructions.
Instruction by court in prosecution of defen-
dant for burglary that the entry of the defen-
dant must have been made feloniously and
burglariously and with intent to commit lar-
ceny therein was sufficient, and the court was
not required to instruct the jury on the theory
of the defendant that he made the entry for a
good and sufficient reason. State v. Fedder, 76
Idaho 535, 285 P.2d 802 (1955).
Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).
Where the evidence linking a defendant to a
burglary is entirely circumstantial, it is not
sufficient that the court give instructions
which only distinguish between direct and
circumstantial evidence. It is error to refuse
to give an instruction requested by the defen-
dant informing the jury that a conviction
cannot be based solely on circumstantial evi-
dence, unless the circumstances are consis-
tent with guilt and inconsistent with inno-
cence, and incapable of explanation on any
other reasonable hypothesis than that of
guilt. State v. Curry, 103 Idaho 332, 647 P.2d
788 (Ct. App. 1982).
Where the record in a burglary prosecution
disclosed no special controversy about identi-
fication of the defendant, the district court did
not err by refusing the defendant's proposed
instruction focusing exclusively on identifica-
tion. State v. Williams, 103 Idaho 635, 651
P.2d 569 (Ct. App. 1982), overruled on other
grounds, State v. Pierce, 107 Idaho 96, 685
P2d 837 (Ct. App. 1984).
An appellate court, faced with a guilty
verdict, is required to accept all justifiable
inferences in support of the verdict, but it is
for the jury to decide, in the first instance,
whether to draw an inference, and how much
weight to give it. Therefore, even if a convic-
tion for burglary could be upheld on appeal,
based upon an inference from possession of
recently stolen property, it does not follow
that the jury should be instructed on the
sufficiency of the inference, by itself, to estab-
lish guilt since such language may distract
the jury from its basic function

to deter-
mine, from all the evidence, whether the state
has proven beyond a reasonable doubt each of
the elements of burglary. State v. Williams,
103 Idaho 635, 651 R2d 569 (Ct. App. 1982),
overruled on other grounds, State v. Pierce,
107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).
Intent.
Question of intent with which defendant
entered building is for jury. State v. Dwyer, 33
Idaho 224, 191 P. 203 (1920); State v. Bull, 47
Idaho 336, 276 P. 528 (1929).
Knowledge of any specific property within
building on part of accused is not necessary to
make act burglary. State v. Dwyer, 33 Idaho
224, 191 P. 203 (1920).
Where an intent to commit larceny or a
felony was formed after the entry, a prosecu-
tion for burglary will not lie; the entry and the
intent must be concomitant. State v. Sullivan,
34 Idaho 68, 199 P. 647, 17 A.L.R. 902 (1921).
One of the essential ingredients of bank
burglary is intent to commit larceny. One
entering a scheme to trap or help trap bank
burglars was not guilty. State v. Bigley, 53
Idaho 636, 26 P.2d 375 (1933).
If a dwelling house is broken and entered in
the nighttime, without lawful motive or pur-
pose, a presumption arises that the breaking
and entering is with the intent to commit
larceny. Ex parte Seyfried, 74 Idaho 467, 264
P.2d 685 (1953).
Having in mind the statutes pertaining to
the offense under consideration and to proof
of intent and those capable of committing
crimes, it becomes clear that burglary is a
crime malum in se, as differentiated from a
crime malum prohibitum. State v. Cronk, 78
Idaho 585, 307 P2d 1113 (1957).
The gravamen of the crime of burglary is
that entry be made with intent to commit
larceny. State v. Poison, 81 Idaho 147, 339
P.2d 510 (1959).
The key element of burglary is that intent
to commit larceny, or any felony, must coin-
cide with the entering. State v. Carver, 94
Idaho 677, 496 P.2d 676 (1972).
The crime of burglary is complete when
there is an entry with the intent to commit
grand or petit larceny or any felony; thus, if a
burglar enters with the intent to commit a
specific felony abandons or fails to perform
that felony, he will still be guilty of burglary.
State v. McCormick, 100 Idaho 111, 594 P. 2d
149 (1979).
State v. Roles, 100 Idaho 12, 592 R2d 68
(1979).
Burglary is a crime of specific intent and
the question of intent is for a jury to decide.
Actual commission of a larceny is evidence
from which a jury is entitled, but not re-
quired, to infer the requisite intent for bur-
glary. State v. Williams, 103 Idaho 635, 651
P.2d 569 (Ct. App. 1982), overruled on other
grounds, State v. Pierce, 107 Idaho 96, 685
P.2d 837 (Ct. App. 1984).
Larceny.
Since larceny is not in all cases a felony,
entry into house with intent to commit lar-
ceny is burglary whether it is intended to
commit either grand or petit larceny. People v.
Stapleton, 2 Idaho (Hasb.) 47, 3 P. 6 (1884).
See also State v. Sullivan, 34 Idaho 68, 199 P.
647, 17 A.L.R. 902 (1921).
Larceny from building will not constitute
crime of burglary unless entry was made with
such intent. State v. Sullivan, 34 Idaho 68,
199 P. 647, 17 A.L.R. 902 (1921).
The defendant's constitutional and statu-
tory protection against double jeopardy was
not violated when he was convicted of both
burglary in the second degree and grand
larceny, relating to the same general set of
events, because each crime required proof of
separate essential elements not required of
the other; burglary was completed upon entry
into a building with the intent to commit a
felony while larceny, on the other hand, as
defined at the time relevant to the prosecu-
tion of defendant, did not require entry into
any building, but was committed by taking
another's property with felonious intent.
Daugherty v. State, 102 Idaho 782, 640 P.2d
1183 (Ct. App. 1982).
Opinion Testimony.
Even assuming that the admission of the
opinion testimony of witness that two people
were involved in burglary was erroneous, no
sufficient prejudice resulted thereby so as to
require reversal, and the court's gratuitous
comment that the jury could give the testi-
mony what weight they felt it deserved was
no more than a premature statement of the
law that credibility is for the jury. In the
context in which given, it more likely would
have had a denigrating effect on the opinion
testimony and did not constitute reversible
error. State v. Pratt, 103 Idaho 816, 654 P.2d
909 (1982).
Outhouse or Other Buildings.
Under this section any outhouse or building
may be subject of burglary regardless of
whether it is subservient to dwelling. State v.
Marks, 45 Idaho 92, 260 P. 697 (1927).
Giving word "outhouse" its usual and ordi-
nary meaning which is usually smaller build-
ing subservient to and little distance from
dwelling house, yet "outhouse" may be subser-
vient and adjoining business building. State v.
Marks, 45 Idaho 92, 260 P. 697 (1927).
Meaning of words "house" and "outhouse"
as used in statute is generally understood and
it is not necessary to define or explain them.
State v. Marks, 45 Idaho 92, 260 P. 697 (1927).
Ownership of Building.
Statute does not require proof of ownership
of building entered. Ownership is immaterial
except for purpose of identification of build-
ing. State v. Wansgaard, 46 Idaho 20, 265 P.
671 (1928); State v. Bull, 47 Idaho 336, 276 P.
528 (1929).
Persistent Violator.
Where defendant was involved in a series of
home burglaries, he was properly convicted of
seven counts of burglary in violation of Idaho
Code 18-1401, and one count of grand theft
in violation of Idaho Code
18-2403(1),
-2407(l)(b). He was properly sentenced as a
persistent violator under Idaho Code
19-
2514 to concurrent life sentences with ten
years determinate on all of these charges.
State v. Dixon,

Idaho ,

P.3d , 2004
Ida. App. LEXIS 27 (Ct. App. Mar. 5, 2004).
Punishment.
A defendant who burglarizes a residence
with the intent to commit rape, and then does
in fact commit the rape, deserves to be pun-
ished more severely than a defendant who
does not commit the intended act after he has
entered the residence. State v. McCormick,
100 Idaho 111, 594 P.2d 149 (1979).
Rape.
Since neither rape nor burglary is a lesser
included offense of the other, a burglary was
complete when defendant entered the victim's
residence with the intent to commit rape,
whereas the rape was not committed until
there was an act of sexual intercourse, and
each of these crimes required proof of sepa-
rate essential elements not required of the
other and the conviction of one would not bar
conviction of the other. State v. McCormick,
100 Idaho 111, 594 P.2d 149 (1979).
"Room."
Appellate court has construed the term
"room" in this section as having a nature
similar to the other structures and objects
capable of being burglarized. State v. Smith,
Idaho
77 P.3d 984 (Ct. App. 2003).

Sentence.
Where defendant, on probation for conspir-
ing to deliver marijuana, was charged with
first degree burglary in connection with the
break-in at a bar, where he pled guilty and
was sentenced to 11 years in prison, with a
minimum term of three years, and where, in
addition, the court revoked his probation on
the conspiracy to deliver marijuana convic-
tion and ordered that the previously-imposed
sentence be executed and served concurrently
with the burglary sentence, the sentence was
not unduly severe. State v. Kern, 119 Idaho
295, 805 P.2d 501 (Ct. App. 1991).
Sentencing judge did not abuse his discre-
tion where he sentenced a defendant con-
victed of two counts of first degree burglary
and battery with intent to commit rape, to 25
years, with ten years indeterminate following
on each of the three felony counts; ordinarily,
each felony would carry a maximum penalty
of not more than 15 years, however, because
the jury found that the defendant was a
persistent violator, the maximum permissible
sentence for each of the<felonies was extended
to imprisonment for life. State v. Haggard,
119 Idaho 664, 809 P.2d 525 (Ct. App. 1991).
The court determined that a unified sen-
tence of 11 years, with a three-year minimum
period of confinement, should be imposed for
defendant's conviction of first degree burglary,
since defendant's criminal record included
prior convictions for first degree burglary and
he had been released from custody on the last
conviction just five months before committing
the instant burglary; therefore, not being a fit
candidate for probation, the sentence was
reasonable. State v. Gorham, 120 Idaho 576,
817 P.2d 1100 (Ct. App. 1991).
Two concurrent unified sentences of 15
years in the custody of the Board of Correc-
tions, with a minimum period of confinement
of six years for two counts of first degree
burglary, were not unreasonable where the
crimes charged were residential burglaries,
defendant had a misdemeanor and felony
criminal record, which was extensive and
included previous convictions for first degree
burglary and grand larceny and while incar-
cerated on these convictions, he was convicted
of felony possession of a controlled substance
by an inmate and received a concurrent inde-
terminate two-year sentence. State v.
Hoffman, 121 Idaho 131, 823 P.2d 165 (Ct,
App. 1991).
Afixed sentence of two years followed by an
indeterminate term of three years for second
degree burglary was not unreasonable where
defendant had a prior criminal record, includ-
ing two felony convictions as an adult, defen-
dant was on parole for an auto theft convic-
tion in California at the time he committed
the current offense and the presentence in-
vestigator stated that defendant appeared to
be a manipulative individual who showed no
remorse for his victims, and concluded that he
was not a suitable candidate for probation.
State v. Sands, 121 Idaho 1023, 829 P.2d 1372
(Ct. App. 1992).
Although the court was made aware,
through the presentence report, of the physi-
cal and emotional abuse suffered by defen-
dant as a child, the judge was concerned
about defendant's prior criminal record,
which included juvenile problems, convictions
for theft, a sexual abuse of a minor child,
probation and parole violations, and his fail-
ure to conform to the standards expected of a
twenty-year old man; therefore, an aggregate
of four years in the custody of the Board of
Correction, with a minimum term of nine
months, after pleading guilty to second-de-
gree burglary was not an abuse of sentencing
discretion. State v. Birky, 121 Idaho 527, 826
P.2d 488 (Ct. App. 1992).
District Court did not clearly abuse its discre-
838 P.2d 890 (Ct. App. 1992).
imposing a minimum of seven years with a
unified sentence of fifteen years for first de-
gree burglary, which was enhanced for the use
of a deadly weapon to a fixed twelve-year
sentence and an indeterminate sentence of
twenty-five years and the same sentence for
battery with intent to commit a serious felony,
with the same enhancement, on a burglary
charge where the presentence investigation
report revealed felony convictions for two pre-
vious robberies and one battery on a peace
officer along with a number of felony burglary
and robbery charges that were reduced or the
disposition was unknown. State v. Boman,
123 Idaho 947, 854 P.2d 290 (Ct. App. 1993).
Where minimum three-year sentences de-
fendant received were well below the maxi-
mum 25 years of incarceration the district
court could have imposed through consecutive
sentences, defendant's sentences were not
grossly disproportionate to the crimes com-
mitted and did not constitute cruel and un-
usual punishment under the Eighth Amend-
ment. Evans v. State, 127 Idaho 662, 904 P.2d
574 (Ct. App. 1995).
Vacation of the defendant's consecutive de-
terminate ten-year sentence for burglary was
required where the record suggested that the
district court went beyond its authority to
consider a spectrum of evidence bearing upon
the defendant's character and essentially im-
posed a sentence for offenses other than the
one before the court. State v. Findeisen, 133
Idaho 228, 984 P.2d 716 (Ct. App. 1999).
Shoplifting.
This section is not unduly harsh because it
authorizes felony convictions for entering
commercial establishments during business
hours with the intent to shoplift. Matthews v.
1987).
Time of Entry.
The crime of burglary is committed by the
entrance into a building with the intent de-
scribed in this section, regardless of the time
of day or night when the entry occurs, and the
time of the entry, as to whether day or night,
affects only the degree of the offense. State v.
Goodmiller, 86 Idaho 233, 386 P.2d 365
(1963); State v. Haggard, 89 Idaho 217, 404
P.2d 580 (1965).
Value of Articles Taken.
Value of slot machines taken by defendant
in burglary was immaterial as far as his guilt
of crime of burglary was concerned, since the
burglary was shown by the breaking and
entering, and the fact that the slot machines
could only be used for an illegal purpose had
nothing to do with the offense charged. State
v. Johnson, 77 Idaho 1, 287 P2d 425 (1955),
L. Ed. 869 (1956).
All that needed to be proved under the
former statute was the entry into one of
several named structures with intent to com-
mit grand or petit larceny or any felony and it
did not require the theft of any quantity or
quality of personal property and it was there-
fore not necessary to prove the value of the
items burglarized. State v. Bullis, 93 Idaho
749, 472 P.2d 315 (1970).
First-Degree Burglary.
Where the evidence as to the time of bur-
glary is such that it could have been commit-
ted between 4 p.m. and sunset on one day or
between sunrise and 7:45 of the following day
or during the night, the jury's verdict of guilty
must be limited to burglary of the second
degree. State v. Darrah, 92 Idaho 25, 435 P.2d
914 (1968).
It was not error for the court to refuse to
instruct the jury that second degree burglary
was an included offense in first degree bur-
glary where the evidence clearly showed that
the burglary took place between 9 p.m. and
11:30 p.m. or did not take place at all. State v.
Oldham, 92 Idaho 124, 438 P.2d 275 (1968).
Where two police officers identified defen-
dant as man they saw fleeing from bar which
had just been burglarized, there was substan-
tial evidence to sustain conviction of first-
degree burglary. State v. Sena, 106 Idaho 25,
674 P.2d 454 (Ct. App. 1983).
In a burglary prosecution where the trial
court's allowing the prosecution to amend the
information adding the words "in the night
time" did not add nor change the offense and
the accused was neither surprised nor preju-
diced by such amendment, the court did not
err. State v. Ranstrom, 94 Idaho 348, 487 P.2d
942 (1971).
Burglary, 1 et seq.
12AC.J.S., Burglary, 1 et seq.
155; 66 A.L.R. 478; 86 A.L.R. 263.
"Outhouse," what is, within the meaning of
the statute as to breaking and entering. 20
A.L.R. 236.
Opening closed but unlocked door as break-
ing which will sustain charge of burglary or
breaking and entering. 23 A.L.R. 112.
Burglary without breaking. 23 A.L.R. 288.
Reduction by appellate court of punishment
imposed by trial court. 29 A.L.R. 313; 89
A.L.R. 295.
Receiving or concealing the stolen property,
may participant in burglary be convicted of.
136 A.L.R. 1087.
Outbuilding or the like as part of "dwelling
house." 43 A.L.R.2d 831.
Gambling or lottery paraphernalia as sub-
ject of larceny, burglary, or robbery. 51
A.L.R.2d 1396.
Sufficiency of showing that burglary was
committed at night. 82 A.L.R.2d 643.
Breaking and entering of inner door of
building as burglary. 43 A.L.R.3d 1147.
Entry through partly opened door or win-
dow as burglary. 70 A.L.R.3d 881.
Occupant's absence from residential struc-
ture as affecting nature of offense as burglary
or breaking and entering. 20 A.L.R.4th 349.
What is "building" or "house" within bur-
glary or breaking and entering statute. 68
A.L.R.4th 425.
18-1402. Degrees of burglary. [Repealed.]
S.L. 1992, ch. 167, 1.
18-1403. Punishment for burglary.

Burglary is punishable by
imprisonment in the state prison for not less than one (1) nor more than ten
(10) years. [I.C.,

18-1403, as added by 1972, ch. 336, 1, p. 844; am. 1992,
ch. 167, 2, p. 531.]
comprised Cr. & P. 1864, 59; R.S., R.C. &
C.L., 7016; C.S., 8402; I.C.A.,
17-3403,
18-
1403, as added by 1971, ch. 143, 1. How-
as
18-1405.
Cited in: State v. Lovejoy, 60 Idaho 632, 95
P.2d 132 (1939); State v. Goodmiller, 86 Idaho
233, 386 P.2d 365 (1963); State v. Haggard, 89
Idaho 217, 404 P.2d 580 (1965); State v. Gibbs,
94 Idaho 908, 500 P2d 209 (1972); State v.
Wolfe, 99 Idaho 382, 582 P.2d 728 (1978);
State v. Sutton, 106 Idaho 403, 679 P2d 680
(Ct. App. 1984); State v. Lopez, 106 Idaho 447,
680 P.2d 869 (Ct. App. 1984); State v.
Spurgeon, 107 Idaho 173, 687 P.2d 17 (Ct.
App. 1984); State v. Keying, 108 Idaho 716,
701 P.2d 664 (Ct. App. 1985); State v. Russell,
109 Idaho 723, 710 P.2d 633 (Ct. App. 1985);
State v. Haggard, 110 Idaho 335, 715 P.2d
1005 (Ct. App. 1986); State v. Hassett, 110
Idaho 570, 716 P.2d 1342 (Ct. App. 1986);
State v. Clayton, 112 Idaho 1110, 739 P.2d 409
(Ct. App. 1987); State v. Thomas, 112 Idaho
1134, 739 P.2d 433 (Ct. App. 1987); State v.
Cline, 113 Idaho 90, 741 P.2d 377 (Ct. App.
1987); State v. Smith, 116 Idaho 553, 777 P.2d
1226 (Ct. App. 1989); State v. Beboer, 119
Idaho 1020, 812 P.2d 327 (Ct. App. 1991);
State v. Knapp, 120 Idaho 343, 815 P.2d 1083
(Ct. App. 1991); State v. Brower, 122 Idaho
450, 835 P.2d 685 (Ct. App. 1992); State v.
Marsh, 122 Idaho 854, 840 P.2d 398 (Ct. App.
1992); State v. Cagle, 126 Idaho 794, 891 P.2d
1054 (Ct. App. 1995); Goodwin v. State, 138
Idaho 269, 61 P3d 626 (Ct. App. 2002).
Analysis
Ameliorative sentencing amendment.
Conviction for felony.
Court inquiry into indigency.
Maximum penalty not imposed.
Offense charged by information.
Rehabilitative treatment considered.
Sentence.
Excessive.
Not excessive.
Upheld.
Ameliorative Sentencing Amendment.
A defendant is entitled to benefit from an
ameliorative sentencing amendment that
took effect between the time the crime was
committed and the time judgment of convic-
tion and sentence was entered. Therefore,
defendant was entitled to benefit from the
amendment to this section, effective July
1,
1992, which reduced the maximum sentence
for burglary from fifteen years to ten years.
Given this amendment, defendant's fifteen
year sentence was illegal. State v. Morris, 131
Idaho 681, 954 P.2d 681 (Ct. App. 1998).
Conviction for Felony.
When the court pursuant to plea of guilty or
verdict of a jury, adjudges the defendant
guilty of burglary, he has been convicted of a
felony within the meaning of
19-2514 and
18-111. State v. O'Dell, 71 Idaho 64, 225 P.2d
1020 (1950).
Court Inquiry into Indigency.
Where trial court judge in burglary prose-
cution expressed concern over defendant's
ability to post bond but inability to retain
private counsel and informed defendant that
he might subsequently be liable to the county
for reimbursement for the legal services of a
public defender, such statements did not indi-
cate the prejudice against the defendant be-
cause of his use of a public defender so as to
constitute an abuse of the court's sentencing
discretion. State v. Bowcutt, 101 Idaho 761,
620 P.2d 795 (1980).
Maximum Penalty Not Imposed.
Imposition of indeterminate and concurrent
sentences of 15 years for first degree burglary
and 14 years for grand theft were not the
maximum possible penalties; they were inde-
terminate rather than fixed, and concurrent
rather than consecutive. State v. Hawkins,
115 Idaho 719, 769 P.2d 596 (Ct. App. 1989),
aff'd, 117 Idaho 285, 787 P.2d 271 (1990).
Offense Charged by Information.
An information for burglary which did not
charge whether offense was committed in the
daytime or the nighttime charged the offense
of second degree burglary, and a special de-
murrer based on the ground that the charge
did not state whether offense was committed
in the daytime or the nighttime should not
have been sustained. State v. Eubanks, 77
Idaho 439, 294 P.2d 273 (1956).
Rehabilitative Treatment Considered.
Where co-defendants convicted of burglary
and grand theft, both claimed that the district
court abused its discretion by refusing to
retain jurisdiction to allow them to obtain
rehabilitative treatment for their respective
alcohol abuse problems, but where the district
court had before it the presentence investiga-
tion reports which indicated that both co-
defendants had extensive prior criminal
records, the court properly concluded that
both men would likely fail on any type of
probation program and noted the importance
of protecting society from them; the court also
expressed its concern for both defendants'
alcoholism and drug problems and recom-
mended that both defendants be afforded the
benefit of the alcohol and drug abuse counsel-
ing programs available in the penitentiary,
thereby properly considering the relevant
sentencing factors, and indicating no abuse of
discretion in refusing to retain jurisdiction.
State v. Smith, 119 Idaho 233, 804 P. 2d 1364
(Ct. App. 1991).
Sentence.
There is no alternate sentence for burglary,
and the punishment fixed by the former sec-
tion was exclusive. State v. O'Dell, 71 Idaho
64, 225 P.2d 1020 (1950).
Where the sentence imposed upon convic-
tion for burglary is within the statutory lim-
its, defendant has the burden of showing a
clear abuse of discretion, which is dependent
upon the circumstances of each case. State v.
Chapa, 98 Idaho 54, 558 P.2d 83 (1976).
A sentence of five years imposed on a defen-
dant convicted of second-degree burglary was
within the statutory limits and there was no
abuse of discretion where the court consid-
ered various alternatives before imposing
such sentence on one who was a first offender
in adult status but had a history of juvenile
offenses. State v. Harwood, 98 Idaho 793, 572
P.2d 1228 (1977).
Where defendant was sentenced by the dis-
trict court to a term not to exceed 15 years in
the custody of the Idaho board of corrections
on each of three counts, the sentences to run
concurrently, an examination of the defen-
dant's past history, his personal problems,
and the circumstances surrounding the of-
fenses involved do not support the defendant's
contentions that the trial court abused its
discretion in imposing the sentence. State v.
Tipton, 99 Idaho 670, 587 P2d 305 (1978).
Where at the time of the sentencing, defen-
dants were 21 and 20 years of age, respec-
tively, and where their presentence reports,
and earlier psychological reports portrayed
two young men with very low IQs, either or
both of the defendants should have been able
to benefit, if at all, from what rehabilitative
programs were available, within a 14 year
period; therefore under these circumstances,
to impose a sentence which was more than
double the length of their current natural
lives was excessive and unduly harsh. State v.
Dunnagan, 101 Idaho 125, 609 P2d 657
(1980).
Sentence of an indeterminate period not to
exceed nine years was not excessive or an
abuse of discretion where defendant pleaded
guilty to five first-degree burglaries and had
pleaded guilty to prior petit larceny which
had been reduced from a felony, and where
presentence report and testimony of wit-
nesses testifying on his behalf were generally
unfavorable. State v. Bowcutt, 101 Idaho 761,
620 P.2d 795 (1980).
Where trial court characterized defendant
as leader of codefendant in committing bur-
glaries based upon psychological evaluation
found in presentence investigation, there was
no abuse of discretion in sentencing defen-
dant to an indeterminate sentence not to
exceed nine years under this section. State v.
Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).
Where the sentencing court admitted the
testimony of the state's witnesses regarding
the value of merchandise taken during bur-
glary for which defendant was convicted,
there was no abuse of discretion in sentencing
defendant to an indeterminate sentence not
to exceed nine years under this section. State
v. Bowcutt, 101 Idaho 761, 620 P.2d 795
(1980).
Where in a burglary prosecution the evi-
dence showed that the defendant had commit-
ted the crime while on probation from a court
in Oregon, that the defendant had committed
two misdemeanors while the instant prosecu-
tion was pending, and that the defendant,
who was 20 years old at the time of sentenc-
ing, had a history of violations as a juvenile,
his five-year indeterminate sentence for sec-
ond-degree burglary was not excessive nor
unreasonable. State v. Toohill, 103 Idaho 565,
650 P.2d 707 (Ct. App. 1982).
A 15-year indeterminate sentence imposed
upon the defendant following his conviction of
first-degree burglary was not excessive, in
light of the defendant's prior criminal record,
which included numerous burglaries or other
theft-related offenses, and such a sentence
could be viewed as reasonably necessary to
protect society from the defendant's estab-
lished pattern of criminal conduct and to
deter others from such conduct. Heck v. State,
103 Idaho 648, 651 P2d 582 (Ct. App. 1982).
The trial court did not abuse its discretion
by imposing a ten-year indeterminate sen-
tence on the defendant following his plea of
guilty to first-degree burglary, where the
presentence report showed that the defendant
had recently been placed on probation in a
sister state after serving a sentence in that
state's correctional facility, and that the de-
fendant had a lengthy adult criminal record
including several felony convictions. State v.
Anderson, 103 Idaho 622, 651 R2d 556 (Ct.
App. 1982).
The court's imposition of a five-year sen-
tence upon conviction of second-degree bur-
glary did not violate the defendant's rights
under the Eighth and Fourteenth Amend-
ments to the U.S. Constitution where the
record showed that prior to his latest convic-
tion the defendant had been convicted of four
felonies and, as a persistent violator, the
defendant received the minimum sentence
available. State v. Angel, 103 Idaho 624, 651
P.2d 558 (Ct. App. 1982).
Where trial court reviewed defendant's
lengthy criminal record, his history of proba-
tion violation, the relative frequency of his
offenses, his pattern of living and demon-
strated disregard for legal authority and the
facts and circumstances surrounding the of-
fenses involved and then determined that
defendant and society would be best served by
incarcerating the defendant for ten-year inde-
terminate terms on each of two first-degree
burglary convictions, the sentences to run
concurrently, and to an indeterminate five-
year consecutive term for resisting arrest,
there was no abuse of the trial court's sen-
tencing discretion. State v. Coffin, 104 Idaho
543, 661 P.2d 328 (1983).
Where the transcript of the sentencing
hearing revealed that the trial judge consid-
ered the following in fixing the sentence on a
second-degree burglary conviction: (1) the
presentence report; (2) the defendant's char-
acter and criminal history; (3) the facts and
conditions surrounding the offense; (4) the
appropriateness of probation; (5) society's in-
terest in the case; and, (6) arguments by
counsel, the defendant failed to show that
there was a clear abuse of discretion by the
trial court and a five-year determinate sen-
tence on the second-degree burglary convic-
tion was affirmed. State v. Pyne, 105 Idaho
427, 670 P.2d 528 (1983).
when it sentenced the defendant to a fixed
term of 15 years for first-degree burglary
where his presentence report disclosed that
he was a violent and dangerous individual
who was incapable of adjusting to society, and
where the court determined that retribution,
deterrence, and rehabilitation were not feasi-
ble considerations in light of the defendant's
conduct and prior record. State v. Fowler, 105
Idaho 642, 671 P2d 1105 (Ct. App. 1983).
Indeterminate sentence of ten years in cus-
tody of the Board of Correction for first-degree
burglary was not an abuse of discretion where
defendant was already on probation for an-
other first-degree burglary conviction, his
prior record also included numerous misde-
meanors and he admitted a long history of
drug abuse and where the judge noted defen-
dant's prior record and the physical assault on
one of the victims and also considered, in
mitigation, defendant's youthful age. State v.
Ramsey, 105 Idaho 898, 673 P2d 1092 (Ct.
App. 1983).
Where defendant was found guilty of first-
degree burglary and of being a persistent
offender, sentence of a determinate term of
ten years in prison was well within the con-
fines of the sentencing options available to the
trial court and there was no abuse of discre-
tion on the part of the trial judge. State v.
Sena, 106 Idaho 25, 674 P2d 454 (Ct. App.
1983).
Where the defendant upon pleading guilty
to one count of burglary was sentenced for an
indeterminate term not to exceed four years,
the sentence was not unduly harsh nor exces-
sive since the defendant had prior convictions
for petit larceny, grand larceny and robbery.
State v. Decker, 106 Idaho 434, 680 P.2d 255
(Ct. App. 1984).
Where the defendant pled guilty to five
counts of first degree burglary and was sen-
on each count, in light of the defendant's prior
record and the nature of the present offenses,
the trial court did not abuse its discretion in
ordering that four of the sentences were to be
served concurrently with each other but con-
secutive to the first sentence imposed. State v.
Yarbrough, 106 Idaho 545, 681 P.2d 1020 (Ct.
App. 1984).
Where the presentence report showed that
the defendant had three prior felony convic-
tions, as well as numerous misdemeanor of-
fenses, the trial court did not abuse its discre-
tion in sentencing him to an indeterminate
15-year sentence upon his conviction for first-
degree burglary. State v. Davis, 106 Idaho
563, 682 P.2d 104 (Ct. App. 1984).
Concurrent indeterminate sentences of 20
years for rape, 15 years for burglary and five
years for crime against nature were not un-
duly harsh and were not an abuse of discre-
tion. State v. Mahoney, 107 Idaho 190, 687
P.2d 580 (Ct. App. 1984).
An indeterminate three-year sentence for
first-degree burglary was well within the stat-
utory maximum penalty and was not exces-
sive given the nature of the offense and the
character of the offender. State v. Chapel, 107
Idaho 193, 687 P.2d 583 (Ct. App. 1984).
Where court believed that defendant's drug
dependency would result in future criminal
conduct, that protecting society was the most
pressing consideration, and that in light of
defendant's conduct and prior record, retribu-
tion and deterrence would be furthered by a
fixed term of confinement, the court did not
abuse its discretion in sentencing defendant
to a fixed seven-year sentence for burglary
and a five-year indeterminate sentence for
grand theft. State v. Heistand, 107 Idaho 218,
687 P.2d 1001 (Ct. App. 1984).
will not be deemed excessive unless the ap-
pellant shows that under any reasonable view
of the facts the term of confinement is longer
than appears necessary at the time of sen-
tion or retribution; thus, where the defendant
had been convicted of two burglaries in Ore-
gon and was involved in five others in that
state during the 18 months preceding his
convictions in Idaho, and at the time of his
arrest in Idaho, was in violation of the terms
of probation he was serving for the state of
Oregon, and had been involved in ten burglar-
ies within a relatively short period of time
prior to his Idaho convictions, the trial court
did not abuse its discretion by making the
sentences consecutive. State v. Mathis, 107
Idaho 685, 691 P.2d 1300 (Ct. App. 1984).
A ten year indeterminate sentence for first
degree burglary was not excessive where de-
fendant had an eighth grade education, a
history of alcohol and substance abuse, no job
skills, and three prior convictions for first
degree burglary and the trial court noted that
defendant needed a structured environment
for a lengthy period of time. State v. Mason,
107 Idaho 904, 693 P.2d 1106 (Ct. App. 1984).
It is a well-established rule in Idaho that
the sentence to be imposed in a particular
case is within the discretion of the trial court;
a sentence within the statutory maximum
will not be disturbed unless a clear abuse of
discretion is shown. State v. Keller, 108 Idaho
643, 701 P2d 263 (Ct. App. 1985).
Where the defendant was party to a bur-
glary where a large amount of money (over
$20,000) was stolen from an aged, blind
woman on two separate occasions, and told
others of the location ofthe easy money, which
resulted in a further theft of over $22,000,
some of which was given to the defendant for
repayment of a debt, an indeterminate sen-
tence of 14 years for first-degree burglary, to
run consecutively with concurrent indetermi-
nate sentences for conspiracy to commit the
crime of burglary in the second degree,

18-
1401 and 18-1701, burglary in the second
degree,
18-1401, and preventing the atten-
dance of a witness, 18-2604, was not an
abuse of discretion. State v. Keller, 108 Idaho
643, 701 P.2d 263 (Ct. App. 1985).
A sentence of indeterminate 12-year terms
for each of two grand theft charges and an
indeterminate five-year term for a second-
degree burglary conviction, with all sentences
to run concurrently, was not excessive, where
the measure of confinement was treated as
four years, one-third of an indeterminate sen-
tence, and defendant had a long history of
alcohol and drug abuse, as well as prior con-
frontations with the law. State v. Brandt, 109
Idaho 728, 710 P.2d 638 (Ct. App. 1985);, 110
Idaho 341, 715 P.2d 1011 (Ct. App. 1986).
Where the defendant had committed a
number of offenses as a juvenile which would
have been felonies had he been an adult, he
allegedly committed a burglary while incar-
cerated for evaluation following a conviction
for grand theft, and his arrest for the present
burglary was only one and one-half months
after he was paroled, an indeterminate sen-
tence of five years for second-degree burglary,
deemed for purposes of review to be 20
months, was not an abuse of discretion. State
v. Jennings, 110 Idaho 334, 715 P.2d 1004 (Ct.
App. 1986).
Where the presentence report showed that
the defendant had been adjudicated under the
Youth Rehabilitation Act for burglary, and as
an adult, he was convicted of two first-degree
burglaries and one second-degree burglary,
all prior to the instant offense, a fixed sen-
tence of five years for first-degree burglary
was not excessive. State v. Bishop, 110 Idaho
689, 718 P.2d 602 (Ct. App. 1986).
tion in sentencing the defendant to a ten-year
indeterminate sentence for one of the burglar-
ies, a concurrent ten-year fixed sentence for
the battery, and a ten-year indeterminate
sentence for the other burglary, where the
court considered the criteria of protection of
society, deterrence of the defendant and of
others, retribution, rehabilitation, the defen-
dant's background, and the nature of the
crimes to which he had pled guilty. State v.
Reinke, 111 Idaho 968, 729 P.2d 443 (Ct. App.
1986).
The district court did not abuse its discre-
tion in sentencing the defendant to a five-year
indeterminate sentence for escape and a ten-
year indeterminate sentence for burglary,
where the record showed the judge's concern
that society be protected from the defendant's
criminal activities, and consideration was
given to the related objectives of deterrence,
rehabilitation and retribution. State v.
Briggs, 113 Idaho 71, 741 P.2d 358 (Ct. App.
1987).
A five-year period of confinement, without
possibility of parole, was reasonable when
viewed in light of the violent nature of the
offense, the defendant's use of a deadly
weapon, and the character of the offender,
who had previously committed other crimes
and responded poorly to parole and probation.
State v. Staha, 114 Idaho 119, 753 P.2d 1265
(Ct. App. 1988).
A five-year sentence with a two-year mini-
mum period of confinement for second degree
burglary was not excessive where the judge
was concerned about the defendant's prior
record and his disruptive behavior in jail.
State v. Koch, 116 Idaho 571, 777 P.2d 1244
(Ct. App. 1989).
District judge acted within his discretion in
rejecting probation and sentencing defendant
convicted of burglary to a three-year term
with a one-year minimum period of incarcer-
ation where the judge was unconvinced that
defendant comprehended the import of a fel-
ony conviction, though he had no significant
prior criminal record, and where the judge
was concerned with defendant's exhibited re-
calcitrant attitude, which belied his stated
interest in completing his formal education
and undergoing counseling. State v. Riley, 119
Idaho 216, 804 P.2d 945 (Ct. App. 1991).
In light of the fact that alcohol treatment
had, thus far, been unavailing and that defen-
dant's criminal behavior existed prior to his
indulgence in alcohol, the minimum period of
confinement imposed by the defendant's sen-
tences was not improper and did not consti-
tute an abuse of discretion. State v. Cagle, 126
Idaho 794, 891 P.2d 1054 (Ct. App. 1995).
Excessive.
Where the record did not show that the
defendant could never be safely returned to
society on parole, the fixed life sentence for
convictions of first degree burglary and sexual
abuse of a child was inappropriate. State v.
Eubank, 114 Idaho 635, 759 P.2d 926 (Ct. App.
1988).
Not Excessive.
The defendant's fixed five-year sentence for
theft and a consecutive indeterminate sen-
tence of five years for burglary were not
excessive where at the time of sentencing, the
defendant was 30-years-old, since the age of
16 he had engaged in a robbery, numerous
burglaries, several thefts, and two acts of
receiving stolen property, he had served time
and had violated parole in another state, and
was on parole when he came to this state and
committed the instant offenses. State v.
App. 1987).
A five-year fixed sentence for escape and a
15-year indeterminate sentence for burglary,
to be served concurrently with each other but
consecutively to the existing rape sentence,
were not excessive, where the defendant was
23 when he committed the offenses, and he
was an intelligent adult fully responsible for
his actions. State v. Maddock, 113 Idaho 182,
742 P2d 437 (Ct. App. 1987).
Indeterminate five-year sentence imposed
upon conviction for first degree burglary
where defendant had several prior felony con-
victions and a criminal record that began
when he was 15-years-old was not an abuse of
discretion. State v. Samuelson, 114 Idaho 550,
758 P.2d 709 (Ct. App. 1988).
Where the defendant entered guilty pleas
to three counts of grand theft, one count of
second degree burglary, two counts of petty
theft, and one count of escape from a county
jail and received a series of indeterminate
sentences, some concurrent and some consec-
utive, aggregating a total of 15 years, his
sentences were not excessive, even though he
portrayed his part in the criminal proceedings
after the escape as that of an unwilling par-
ticipant, where the sentences were well
within the maximum penalties which the
judge could have imposed, the judge took into
consideration the defendant's character, in-
cluding the testimony of witnesses who spoke
in his behalf, judge considered the serious-
ness of the crimes and the impact lesser
sentences would have on the defendant and
society, and the judge reasoned that although
the defendant may have been coerced into
escaping, he undertook the escape under his
own free will and could have departed from
his fellow escapees several times during their
flight. State v. Chacon, 114 Idaho 789, 760
P2d 1205 (Ct. App. 1988).
Defendant's 10-year sentence for first de-
gree burglary was not excessive and the dis-
trict court did not abuse its sentencing discre-
tion where the evidence showed that
defendant had a prior criminal record includ-
ing numerous burglary and larceny offenses,
had been incarcerated at least five previous
times, including substantial prison sentences;
at the time of his arrest, defendant was on
probation for grand theft and he was then 28
years old, with a longtime history of severe
drug and alcohol abuse. State v. Harwood, 115
Idaho 431, 767 R2d 274 (Ct. App. 1988).
Identical concurrent 14-year sentences
with a minimum period of confinement of ten
years for attempted robbery and for first de-
gree burglary were within the maximum pen-
alties allowed by statute and were not exces-
sive, even though no one was hurt and no
money taken. State v. Ellenwood, 115 Idaho
813, 770 P2d 822 (Ct. App. 1989).
Imposing a sentence of three years in
prison with a minimum one-year confinement
period for second-degree burglary, and
a
con-
current one-year sentence for petit theft for
shoplifting $42.00 worth of meat was not
excessive where defendant had a lengthy
record of shoplifting and other crimes, and
defendant had made a commitment to reha-
bilitation after one of her prior convictions,
yet no rehabilitation had occurred. State v.
Palacios, 115 Idaho 901, 771 P.2d 919 (Ct.
App. 1989).
Imposition of concurrent 14-year sentences
with three-year minimum periods of confine-
ment for two forgery counts, and a concurrent
five-year sentence with a three-year mini-
mum confinement period for burglary was not
excessive where the judge cited defendant's
continuing record of criminal conduct. State v.
Alexander, 115 Idaho 897, 771 P.2d 915 (Ct.
App. 1989).
A term of 15 years, with a five-year mini-
mum term of confinement, was not excessive
with regard to defendant's conviction for first
degree burglary and a life term with a ten-
year minimum confinement period was not
excessive with regard to his conviction for
rape, where defendant entered the victim's
home through a bedroom window, hid in a
closet, jumped out wielding a large hunting
knife, then proceeded to choke, strike and
rape the victim, and where following the rape,
he threatened and choked the victim again.
State v. Parker, 117 Idaho 527, 789 P.2d 523
(Ct. App. 1990).
The court determined that a unified sen-
tence of 11 years, with a three-year minimum
period of confinement, should be imposed for
defendant's conviction of first degree burglary
since defendant's criminal record included
prior convictions for first degree burglary and
he had been released from custody on the last
conviction just five months before committing
the instant burglary; therefore, not being a fit
candidate for probation, the sentence was
reasonable. State v. Gorham, 120 Idaho 576,
817 P2d 1100 (Ct. App. 1991).
Where the court imposed its sentence only
after noting that defendant had been con-
victed of three separate burglaries before sen-
tencing on the instant charge, and since 1988
defendant had been charged with eight bur-
glaries, only five of which had been prose-
cuted, and he had been released on bail and
was awaiting sentencing on another burglary
conviction when he committed the instant
offense there was no abuse of discretion in the
sentence, and no error. State v. Simmons, 120
Idaho 672, 818 P.2d 787 (Ct. App. 1991).
Defendant was sentenced to five years with
three years' minimum confinement on each
burglary charge and to eight years with four
years' minimum confinement on each grand
theft offense and where defendant had pled
guilty to avoid eight additional felony counts
and had a lengthy juvenile record, the sen-
tences imposed were reasonable, and the dis-
tion. State v. Rocklitz, 120 Idaho 703, 819 P.2d
121 (Ct. App. 1991).
Defendant's seven-year sentence with a
minimum period of confinement of two years,
was well within the maximum punishment of
15 years which could have been imposed for
first degree burglary, was not unduly severe,
and in the absence of any factual information
to support defendant's motion, the denial of
the motion to modify was not an abuse of
discretion. State v. McGonigal, 121 Idaho 123,
822 P2d 1020 (Ct. App. 1991).
years in the custody of the Board of Correc-
tions, with a minimum period of confinement
of six years for two counts of first degree
burglary, were not unreasonable where the
crimes charged were residential burglaries,
defendant had a misdemeanor and felony
criminal record, which was extensive and
included previous convictions for first degree
burglary and grand larceny and while incar-
cerated on these convictions, he was convicted
of felony possession of a controlled substance
by an inmate and received a concurrent inde-
terminate two-year sentence. State v.
Hoffman, 121 Idaho 131, 823 P.2d 165 (Ct.
App. 1991).
A sentence of a minimum period of confine-
ment of eight years for conviction of rape,
burglary, kidnapping and the infamous crime
against nature was not unreasonable where
defendant was on probation at the time he
committed the crimes, he violated a restrain-
ing order and had a prior criminal record.
State v. Lenwai, 122 Idaho 258, 833 P.2d 116
(Ct. App. 1992).
A sentence of a 20-year minimum period of
confinement for conviction of lewd conduct
with a child under 16, and of a determinate
period of 15 years without parole on each of
three counts of burglary, was not excessive;
psychologist opined that defendant's progno-
sis for establishing and maintaining non-of-
fending behavior was poor, defendant admit-
ted to previous conduct for sexual
gratification, and his prior record included
arrests for possession of controlled sub-
stances, probation violation, resisting arrest,
driving while under the influence, numerous
traffic violations, indecent exposure and pub-
lic nuisance. State v. Taylor, 122 Idaho 218,
832 P.2d 1153 (Ct. App. 1992).
Defendant's sentences of a three year min-
imum period of confinement for lewd conduct
with a minor child, and of three years mini-
mum confinement for first-degree burglary, to
be served concurrently, were not an abuse of
discretion; defendant was on probation for
grand theft and forgery convictions and
presentence investigation revealed prior lewd
and lascivious conduct with children. State v.
Harris, 122 Idaho 216, 832 P2d 1151 (Ct. App.
1992).
Defendant's unified sentence of 14 years
with a minimum three-year term of incarcer-
ation for burglary, grand theft, and malicious
injury to property was not excessive where
defendant, after breaking into his employer's
building and stealing a wrecker, led police on
a dangerous, high-speed chase that ended
only when he crashed the truck into a police
blockade. State v. Tucker, 123 Idaho 374, 848
P.2d 432 (Ct. App. 1993).
A five-year unified sentence, with four
years' minimum confinement for second de-
gree burglary, to be served concurrently with
a preexisting grand theft sentence was rea-
sonable, where defendant was on probation
for the preexisting grand theft charge at the
time the present burglary offense was com-
mitted. State v. Branning, 123 Idaho 977, 855
P.2d 62 (Ct. App. 1993) (decided prior to 1992
amendment).
Unified sentence of 15 years, with five years
minimum confinement for burglary, was rea-
sonable and was not an abuse of the court's
sentencing discretion where defendant re-
leased on to the ground of former employer's
building 13,000 gallons of a chemical mixture
hoping to "shut down" the company and
where defendant had a history of antisocial
behavior indicating a willingness to violate
the rights of others. State v. Morris, 123 Idaho
989, 855 P.2d 74 (Ct. App. 1993) (decided prior
to 1992 amendment).
Imposition of sentence with a minimum
period confinement of three years for second
degree burglary was not an abuse of court's
discretion considering defendant's past his-
tory of some twenty law violations dating
back to 1968, most of which dealt with theft
and burglary, and that based on this prior
record the court felt that defendant was likely
to re-offend. State v. Gomez, 124 Idaho 177,
857 P.2d 656 (1993).
Unified sentence of fifteen-year indetermi-
nate term with nine years minimum confine-
ment for burglary and grand theft was rea-
sonable, where defendant had an extensive
past history of burglary and theft. State v.
Gawron, 124 Idaho 625, 862 P.2d 317 (Ct.
App. 1993).
Where minimum three-year sentences de-
fendant received were well below the maxi-
mum 25 years of incarceration the district
court could have imposed through consecutive
sentences, defendant's sentences were not
grossly disproportionate to the crimes com-
mitted and did not constitute cruel and un-
usual punishment under the Eighth Amend-
ment. Evans v. State, 127 Idaho 662, 904 P.2d
574 (Ct. App. 1995).
Upheld.
tion by imposing two concurrent sentences,
consisting of two years fixed and six years
indeterminate, without retaining jurisdiction
for first degree burglary and grand theft
where defendant had recently turned 18
years old at the time of the burglary, and he
and his accomplice burglarized the home in-
volved, at night, on more than one occasion,
took many miscellaneous items from the
home and pawned some of them and "trashed"
others and the presentence report indicated
that defendant had committed various of-
fenses as a juvenile which were equivalent to
first degree burglary, grand theft, probation
violation and other crimes. State v.
Christensen, 121 Idaho 769, 828 P.2d 332 (Ct.
App. 1992).
Sentence of five years, with a two-year
minimum period of confinement, for second
degree burglary, was not an abuse of discre-
tion where burglary charge arose when defen-
dant broke into a woman's home to watch her
while she was taking a bath, defendant later
admitted to the police that he had removed
four pairs of panties and four brassieres from
the residence, he also admitted that he had
entered the home on other occasions also, to
watch the woman and her daughter while
they bathed or while they were asleep, he
related that he would sexually stimulate him-
self while watching the woman, desired to
develop a sexual relationship with her, and
"was on the verge of committing a rape." State
v. Saxton, 121 Idaho 781, 828 P.2d 344 (Ct.
App. 1992).
Afixed sentence of two years followed by an
indeterminate term of three years for second
degree burglary was not unreasonable where
defendant had a prior criminal record, includ-
ing two felony convictions as an adult, defen-
dant was on parole for an auto theft convic-
tion in California at the time he committed
the current offense and the presentence in-
vestigator stated that defendant appeared to
be a manipulative individual who snowed no
remorse for his victims, and concluded that he
was not a suitable candidate for probation.
State v. Sands, 121 Idaho 1023, 829 P.2d 1372
(Ct. App. 1992).
Where defendant's criminal record spanned
ten years, including his juvenile record, a
sentence of five years with two years' fixed for
first degree burglary, to be served concur-
rently with an identical sentence previously
imposed in a separate case, and a sentence of
ten years with three years' fixed for battery
with the intent to commit rape, to be served
consecutively to the sentence on the first
degree burglary conviction were reasonable
sentences under the circumstances. State v.
Acha, 122 Idaho 744, 838 P.2d 873 (Ct. App.
1992).
Collateral References. 12A C.J.S., Bur-
glary, 137.
18- 1404 CRIMES AND PUNISHMENTS 164
18-1404. Night time defined. [Repealed.]
Compiler's notes. Former 18-1404, I.C.A., 17-3404, was repealed by S.L. 1971,
18-1404, as added by ch. 143, 5, effective January 1, 1972. Athird
1972, ch. 336, 1, p. 844, was repealed by former section which comprised I.C.,
18-
S.L. 1992, ch. 167,
1. 1404, as added by 1971, ch. 143, 1 was
Another former section, which comprised repealed by S.L. 1972, ch. 109, 1, effective
R.S., R.C., & C.L., 7017; C.S., 8403; April 1, 1972.
18-1405. Burglary with explosives.
Any person who with intent to

commit crime breaks and enters any building whether inhabited or not, and
opens or attempts to open any vault, safe, or other secure place within said
building by use of nitroglycerin, dynamite, gunpowder or any other explo-
sive, shall be deemed guilty of burglary with explosives. Any person duly
convicted of burglary with explosives shall be sentenced to the penitentiary
for a period of not less than ten (10) years, nor more than twenty-five (25)
years. [I.C.,
18-1405, as added by 1972, ch.
336, 1, p. 844; am. 1992, ch.
167, 3, p. 531.]
Compiler's notes. A former section, which 1 in the same words as the section prior to
comprised 1909, p. 55, 1, 2; reen. C.L., its repeal by S.L. 1971, ch. 143, 5.
7018; C.S., 8404; I.C.A., 17-3405, was Section 2 of S.L. 1992, ch. 167 is compiled
repealed by S.L. 1971, ch. 143, 5, effective as
18-1403.
January 1, 1972, and substituted therefor Cross ref. Confiscation and disposition of
was a section comprising I.C., 18-1405, as explosives,
19-3807.
added by 1971, ch. 143, 1. However, the Sec. to sec. ref. This section is referred to
latter section was repealed by S.L. 1972, ch. in

18-7803 and 19-5506.
109, 1, effective April 1, 1972 and the Collateral References. 13 Am. Jur. 2d,
present section added by S.L. 1972, ch. 336, Burglary,
73, 74.
18-1406. Possession of burglarious instruments.

Every person
having upon him, or in his possession, a picklock, crow, key, bit, or other
instrument or tool, with intent feloniously to break or enter into any
building or who shall knowingly make or alter, or shall attempt to make or
alter any key or other instrument above named, so that the same will fit or
open the lock of a building, without being requested so to do by some person
having the right to open the same, or who shall make, alter, or repair, any
instrument or thing, knowing, or having reason to believe, that it is
intended to be used in committing a misdemeanor or felony, is guilty of a
misdemeanor. Any of the structures mentioned in this chapter shall be
deemed a building within the meaning of this section. [I.C.,

18-1406, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Cross ref. Concealed and dangerous weap-
comprised Cr. & P. 1864, 133; R.S., R.C., & ons,
18-3302.
C.L.,
7022; C.S., 8405; I.C.A., 17-3406, Possession of deadly weapon with intent to
was repealed by S.L. 1971, ch. 143, 5, commit assault,
18-3301.
effective January 1, 1972, and substituted Collateral References. 13 Am. Jur. 2d,
18- Burglary, 73 et seq.
1406, as added by 1971, ch. 143, 1. How- 12A C.J.S., Burglary,

43
48.
ever, the latter section was repealed by S.L. Burglary, admissibility in prosecution for,
1972, ch. 109, 1, effective April 1, 1972 and of evidence that defendant, after alleged bur-
the present section added by S.L. 1972, ch. glary, was in possession of burglarious tools
336, 1 in the same words as the section and implements. 143 A.L.R. 1199.
prior to its repeal by S.L. 1971, ch. 143, 5. Validity, construction and application of
165 CHILDREN AND VULNERABLE ADULTS 18-1501
statutes relating to burglars' tools. 33
A.L.R.3d 798.
18-1407
18-1415. Fraudulent business practices. [Repealed.]

Compiler's notes. These sections, which 1, 1972 were repealed by S.L. 1972, ch. 109,
comprised I.C.,
18-1407
18-1415, as 1, effective April 1, 1972.
added by 1971, ch. 143, 1, effective January
CHAPTER 15
CHILDREN AND VULNERABLE ADULTS
SECTION.
18-1501. Injury to children.
18-1502. Beer, wine or other alcohol age vio-
lations
Fines.
18-1502A. [Repealed.]
18-1502B. Possession of inhalants by minors.
18-1502C. Possession of marijuana or drug
paraphernalia by a minor

Use of controlled substances
Fines.
18-1503, 18-1504. [Repealed.]
18-1505. Abuse, exploitation or neglect of a
vulnerable adult.
18-1505A. Abandoning a vulnerable adult.
18-1506. Sexual abuse of a child under the
age of sixteen years.
18-1506A. Ritualized abuse of a child
Ex-
clusions

Penalties

Defi-
nition.
18-1507. Sexual exploitation of a child.
18-1507A. Possession of sexually exploitative
material for other than a com-
mercial purpose
Penalty.
18-1508. Lewd conduct with minor child un-
der sixteen.
18-1508A. Sexual battery of a minor child
sixteen or seventeen years of
age
Penalty.
18-1509. Enticing of children.
18-1509A. Enticing of children over the
internet
Penalties
Juris-
diction.
18-1510. Providing shelter to runaway chil-
dren.
SECTION.
18-1511. Sale or barter of child for adoption
or other purpose penalized

Allowed expenses.
18-1512. Medical bills payment for child to be
adopted or mother an excep-
tion.
18-1512A. Advertising for adoption

Pro-
hibited acts.
18-1513. Obscene materials

Dissemina-
tion to minors
Policy.
Definitions.
18-1515. Disseminating material harmful to
minors
Defined
Penalty.
18-1516. Misrepresentations

Parenthood
or age
Misdemeanor.
18-1517. Disseminating material harmful to
minors
Defenses.
18-1517A. Hiring, employing, etc., minor to
engage in certain acts
Pen-
alty.
18-1518. Tie-in sales of prohibited materials
Misdemeanor.
18-1519. Each prohibited item disseminated
constitutes separate offense.
18-1520. District courts

Injunctions

Trial
Orders of injunction.
18-1521. Uniform enforcement
Abrogation
of existing ordinances
Fur-
ther local ordinances banned.
18-1522. Unauthorized school bus entry

Notice.
18-1523. Tattooing, branding and body pierc-
ing of minors.
18-1501. Injury to children.

(1) Any person who, under circum-
stances or conditions likely to produce great bodily harm or death, willfully
causes or permits any child to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of such child to be injured,
or willfully causes or permits such child to be placed in such situation that
its person or health is endangered, is punishable by imprisonment in the
county jail not exceeding one (1) year, or in the state prison for not less than
one
(1) year nor more than ten (10) years.
(2) Any person who, under circumstances or conditions other than those
likely to produce great bodily harm or death, willfully causes or permits any
child to suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully causes or
permits the person or health of such child to be injured, or willfully causes
or permits such child to be placed in such situation that its person or health
may be endangered, is guilty of a misdemeanor.
(3) A person over the age of eighteen (18) commits the crime of injury to
a child if the person transports a minor in a motor vehicle or vessel as
defined in section 67-7003, Idaho Code, while under the influence of alcohol,
intoxicating liquor, a controlled substance, or any combination thereof, in
violation of section 18-8004 or 67-7034, Idaho Code. Any person convicted of
violating this subsection is guilty of a misdemeanor. If a child suffers bodily
injury or death due to a violation of this subsection, the violation will
constitute a felony punishable by imprisonment for not more than ten (10)
years, unless a more severe penalty is otherwise prescribed by law.
(4) The practice of a parent or guardian who chooses for his child
treatment by prayer or spiritual means alone shall not for that reason alone
be construed to have violated the duty of care to such child. [I.C.,

18-1501,
as added by 1977, ch. 304, 3, p. 852; am. 1996, ch. 167, 1, p. 552; am.
1997, ch. 306, 1, p. 910; am. 2001, ch.
49, 1, p. 91.]
comprised 1945, ch. 139, 1, p. 208, was
109, 1, effective April 1, 1972, and replaced
by I.C.,
18-1501, as added by 1972, ch. 336,
1, p. 844; am. 1972, ch. 381, 10, p. 1102,
which was repealed by S.L. 1977, ch. 304, 2.
as
16-1605.
18-113.
See subdivision "Minors" in table of cross
references to penal provisions in other vol-
umes at end of this volume.
in 18-7905.

6-1701,
16-1605, 18-310, 18-8001, 19-5307, 19-5506,
20-525A, 32-1208, 33-1208 and 39-1113.
Cited in: State v. Troy, 124 Idaho 211, 858
P.2d 750 (1993); State v. Gardiner, 127 Idaho
156, 898 P.2d 615 (Ct. App. 1995); Sweaney v.
Ada County, 119 F.3d 1385 (9th Cir. 1997);
State v. Doe, 133 Idaho 826, 992 P.2d 1226
(Ct. App. 1999); State v. Bower, 135 Idaho 554,
21 P.3d 491 (Ct. App. 2001); State v. Byington,
Idaho , 81 P.3d 421 (Ct. App. 2003).

Analysis
Cocaine during pregnancy.
Constitutionality.
Construction.
Evidence.
Expert testimony.
Federal crime.
Great bodily harm.
Sufficient evidence for jury.
Ultrahazardous conditions.
Improper testimony.
Jurisdiction.
Jury instructions.
Parent's duty.
Probation.
Sentence.
"Willfully permit."
Cocaine During Pregnancy.
The evidence adduced at trial, and the
inferences that could justifiably be drawn
from that evidence, supported the jury's con-
clusion that mother was criminally liable for
willfully causing or permitting the infusion of
cocaine into her infant son and thus, was
guilty of felony injury to a child. State v.
Reyes, 121 Idaho 570, 826 R2d 919 (Ct. App.
1992).
Constitutionality.
This section is not unconstitutionally vague
as it gives sufficient notice to parents that
they may be subject to criminal prosecution, if
they do not protect their children from unwar-
ranted injuries. State v. Peters, 116 Idaho
851, 780 R2d 602 (Ct. App. 1989).
Construction.
Subsection (1) of this section gives ample
notice that conduct which causes or permits a
child to suffer unjustifiable physical pain or
mental suffering, or wilfully causes the health
of a child to be injured, is proscribed conduct.
State v. Marek, 112 Idaho 860, 736 P.2d 1314
(1987), aff'd, 116 Idaho 580, 777 R2d 1253
(1989).
Evidence.
Where, once in custody, the defendant as-
serted his right to counsel and spoke to an
attorney, the police acted improperly when
they subsequently initiated an interrogation
of the defendant and administered a poly-
graph exam in the absence of the defendant's
counsel, and therefore, the statements made
by the defendant during such questioning
were inadmissible in the prosecution for in-
jury to a child. State v. Garner, 103 Idaho 468,
649 P.2d 1224 (Ct. App. 1982).
The trial court did not err by admitting into
evidence 8 x 10 photographs depicting the
results of alleged excessive corporal punish-
ment upon an eight-year-old girl, where, sub-
sequent to receiving these photographs into
evidence the court cautioned the jurors that
(1) the photos should not serve to inflame
them to such an extent that they failed to
consider all of the evidence in the case, and (2)
they were to make their decision based upon
all of the evidence presented to them. State v.
Peters, 116 Idaho 851, 780 P.2d 602 (Ct. App.
1989).
In proving the elements of felony injury to a
child, the state is required to show that the
parent wilfully permitted the child to suffer
under circumstances likely to produce great
bodily harm, and the introduction of 8 x 10
photographs of the victim's bruises were rel-
evant and admissible not only to show how
the injuries were inflicted, but also to show
that defendant could not help but be aware
that serious injuries were being inflicted by
her boyfriend's attempts to discipline her
daughter. State v. Peters, 116 Idaho 851, 780
P.2d 602 (Ct. App. 1989).
Where defendant was charged with violat-
ing this section for injuring a child, the ques-
tion of defendant's intent under this section
opened the door for introduction of evidence of
prior bad acts, where such evidence was log-
ically relevant to the crime charged, and
where evidence from approximately nine
years earlier was not too remote in time since
defendant had been incarcerated during part
of that nine years. State v. Hassett, 124 Idaho
357, 859 P.2d 955 (Ct. App. 1993).
In prosecution for felony injury to a child,
the district court did not err in refusing to
give defendant's requested jury instruction
regarding evidence that an abnormal mental
condition prevented him from forming the
mental state that is an element of the crime.
State v. Patterson, 126 Idaho 227, 880 P.2d
257 (Ct. App. 1994).
Admission of testimony by victim's mother,
in felony injury to child prosecution, about
defendant's alleged attempt to choke mother
or about defendant's temper was in error
where the only logical relevance of this evi-
dence was to show defendant's propensity for
violencethe very purpose for which use of
other misconduct evidence is prohibited by
I.R.E. 404. State v. Wood, 126 Idaho 241, 880
P2d 771 (Ct. App. 1994).
Where the evidence against defendant, who
was convicted of felony injury to child, was
wholly circumstantial, the improper testi-
mony about defendant's temper and his al-
leged choking of victim's mother was not
harmless error; this evidence may have led
the jury to a guilty verdict based upon an
impermissible inference that defendant had a
propensity to violence, rather than upon the
evidence as to his guilt or innocence of the
crime charged. State v. Wood, 126 Idaho 241,
880 P.2d 771 (Ct. App. 1994).
Expert Testimony.
Given the training and background of two
expert witnesses, the trial court did not abuse
its discretion in allowing them to give expert
testimony as to possible causes of the injuries
observed. State v. Merwin, 131 Idaho 1026,
962 P.2d 1026 (1998).
The studies used by the experts possessed
sufficient indicia of reliability to meet the
requirements under Rule 702 of the Rules of
Evidence and court properly admitted expert
testimony based on the studies. State v.
Merwin, 131 Idaho 1026, 962 P2d 1026
(1998).
Federal Crime.
The Indian Major Crimes Act, 18 U.S.C.
1153, did not preempt state prosecution of
an enrolled member of the Nez Perce Tribe
under this section for felony injury to his
infant daughter, an enrolled member of the
Thlingit Tribe. State v. Marek, 112 Idaho 860,
736 P.2d 1314 (1987), aff'd, 116 Idaho 580,
777 P.2d 1253 (1989).
Great Bodily Harm.
Sufficient Evidence for Jury.

The existence of a deep pond near outdoor
concert spectators when viewed in combina-
tion with defendant's LSD intoxication pre-
sented sufficient evidence for the jury to de-
cide if the combination created the likelihood
that his child could suffer great bodily harm.
State v. Enyeart, 123 Idaho 452, 849 P.2d 125
(Ct. App. 1993).
Ultrahazardous Conditions.
The circumstances or conditions likely to
produce great bodily harm or death need not
be "ultrahazardous." State v. Enyeart, 123
Idaho 452, 849 P.2d 125 (Ct. App. 1993).
Improper Testimony.
Where, in prosecution for injuring a child,
the mother of the victim voluntarily testified
that the defendant had previously pled guilty,
and the evidence at trial was conflicting on
the issue of guilt, the defendant's conviction
was reversed, even though the trial court
gave a cautionary instruction regarding such
voluntary testimony. State v. Simonson, 112
Idaho 451, 732 P.2d 689 (Ct. App. 1987).
Jurisdiction.
Felony injury to a child falls within the
criminal jurisdiction granted by Congress un-
der Public Law 280 and accepted by Idaho in
1963 through its enactment of

67-5101 to
67-5103. State v. Marek, 116 Idaho 580, 777
P2d 1253 (Ct. App. 1989).
Jury Instructions.
Where a prosecution is based on the endan-
germent clause of Idaho Code 18-1501(1),
the applicable pattern instruction, Idaho
Crim. Jury Instructions 1243, standing alone,
is inadequate to convey to the jury the re-
quirement that the State prove the defen-
dants' awareness of the risk of harm, as
actual injury or harm, is not an element of the
crime, and endangerment alone, is sufficient
for commission of the offense. State v.
Halbesleben,

Idaho , 75 P.3d 219 (Ct.
App. 2003).
When a defendant is prosecuted under the
endangerment clause of Idaho Code
18-
1501(1), some instruction on mens rea, be-
yond merely quoting the statute, is required
to ensure that the jury understands the scope
of the mental element, as otherwise, the
phrase "willfully causes or permits such child
to be placed in such situation that its person
or health is endangered" might be interpreted
by the jury as proscribing the act of willfully
placing a child in a situation that is appar-
ently safe, but that ultimately endangers the
child. State v. Halbesleben,

Idaho , 75
P.3d 219 (Ct. App. 2003).
Defendant's conviction for involuntary
manslaughter for killing her child in the per-
petration of an unlawful act was proper pur-
suant to Idaho Code 18-1501(1) because the
extrajudicial statements were corroborated
by the fact that the child died while under the
exclusive care of defendant and that state-
ments about how he died were consistent with
the autopsy results; further, the failure to
give a jury instruction was harmless error as
the verdict did not rest solely upon defendant
having committed a battery since it rested
upon the independent ground that she also
committed injury to a child. State v. Tiffany,
Idaho ,

P.3d

. 2004 Ida. LEXIS 44
(Mar. 25, 2004).
Parent's Duty.
Where a parent fails in the duty to protect
his or her child and the child is injured as a
result, the parent is deemed to be the cause of
those injuries and may face criminal sanc-
tions. State v. Peters, 116 Idaho 851, 780 P.2d
602 (Ct. App. 1989).
Generally, a person will not face criminal
liability for failing to aid another, however,
where there is a parent-child relationship, the
parent must come to the aid of the child. State
v. Peters, 116 Idaho 851, 780 P.2d 602 (Ct.
App. 1989).
Probation.
Where defendant pled guilty to violation of
causing injury to children, and his expressed
desire to change did not manifest itself into
positive steps toward treatment and rehabil-
itation, district court's decision to deny proba-
tion was proper. State v. Snow, 120 Idaho 277,
815 P.2d 475 (Ct. App. 1991).
Where 34 year old defendant pled guilty to
causing injury to a child under subsection (1)
of this section, and in the record, the
presentence investigation report and tran-
script of the sentencing hearing defendant
was shown to be a person who had rejected
discipline, had poor work habits, had been
involved in sexual misconduct prior to being
charged in this case, was reported in psycho-
logical evaluation to have a high risk of re-
offense, particularly because of his resistance
to treatment for his sexual misconduct, and to
be evasive and less than honest, and the
psychology staffvoted to recommend incarcer-
ation rather than probation, judge's denial of
probation was not erroneous. State v. Snow,
120 Idaho 277, 815 P.2d 475 (Ct. App. 1991).
Sentence.
refusing to suspend a six-month sentence for
violation of this section, where the violation
constituted neglect resulting in a child's
death, and due consideration was given to the
criteria of
19-2521 governing the criteria
for probation. State v. Staten, 114 Idaho 925,
762 P.2d 838 (Ct. App. 1988).
Where record of defendant who pled guilty
to violation to causing injury to a child re-
flected that defendant's inappropriate sexual
behavior toward children had escalated over
time, and there was no evidence that any
reformative treatment had ever been pursued
and under the sentence imposed, defendant
would be punished and would be forced to
contemplate the seriousness of his actions
with the end of deterring him in the future,
and society would be safe from his predation
on society's most innocent members, sentence
of a total often years with fixed term of seven
years sentence was not excessive. State v.
Snow, 120 Idaho 277, 815 P.2d 475 (Ct. App.
1991).
A unified sentence of three years fixed fol-
lowed by an indeterminate period of three
years for felony injury to a child was not an
abuse of discretion where defendant a mother
of four children and late into her third trimes-
ter of pregnancy, habitually used cocaine, her
son was born addicted to the drug, and, when
asked by the investigator why, on the partic-
ular day of the infant's death, she failed to
feed the baby or to pick him up for approxi-
mately a ten-hour span of time, defen-
dant/mother "belligerently answered, 'Well, I
just didn't.'" and defendant's statements re-
garding her use of cocaine and the events that
transpired surrounding the death of her son
varied significantly among the various re-
ports of the investigating officers. State v.
Reyes, 121 Idaho 570, 826 P.2d 919 (Ct. App.
1992).
Where defendant was convicted of permit-
ting injury to a child, a unified nine-year
sentence, with three years as the minimum
period of confinement, was reasonable. State
v. Hostetler, 124 Idaho 191, 858 P.2d 331 (Ct.
App. 1993).
Unified sentence of twenty years with a
ten-year minimum period of confinement for
felony injury to a child was not unreasonable,
where defendant had been previously found
guilty of child abuse of another child, and had
a criminal record beginning at age thirteen.
State v. Hassett, 124 Idaho 357, 859 P.2d 955
(Ct. App. 1993).
Although the sentencing court's reliance on
information outside the record may have been
improper, the procedure used did not rise to
the level of a deprivation of due process that
would call for examination on appeal despite
the lack of an objection below. State v.
Newsom, 135 Idaho 89, 14 P.3d 1083 (Ct. App.
2000).
"Willfully Permit.",
The term "willfully," as used in the context
of "willfully permit," has a broader meaning
than the standard language of 18-101;
therefore, the term "willfully," when describ-
ing the mens rea necessary for a conviction
under the "willfully permit" prong of this
section, requires more than a purpose or will-
ingness to commit the act or make the omis-
sion referred to. The state was required to
show that defendant had knowledge of the
consequences that his son would suffer "un-
justifiable physical pain or mental suffering"
as a result of his omission. State v. Young, 138
Idaho 370, 64 P.3d 296 (2002).
The "willfulness" element of the endanger-
ment offense, Idaho Code 18-1501(1), ap-
plies not merely to the act of placing a child in
a particular situation but also to the endan-
germent, and this does not require that defen-
dant intends to harm the child, but it does
require that defendant place the child in a
potentially harmful situation with knowledge
of the danger. State v. Halbesleben,

Idaho
, 75 P.3d 219 (Ct. App. 2003).
Collateral References. 43 C.J.S., Infants,
110124.
Constitutionality of anti-cigarette legisla-
tion. 20 A.L.R. 926.
Billiard rooms, regulations as to minors in.
20 A.L.R. 1487; 29 A.L.R. 41; 53 A.L.R. 149; 72
A.L.R. 1339.
School, prosecution under laws as to tru-
ants and delinquent or neglected children
where child is expelled from, for refusal to
take oath of allegiance, to salute flag, or to
participate in other ritual of a patriotic char-
acter. 141 A.L.R. 1034; 147 A.L.R. 698.
Divorce court's acquisition of jurisdiction
over custody and maintenance of child as
excluding jurisdiction of juvenile court. 146
A.L.R. 1171.
Records or evidence in juvenile court pro-
ceedings, constitutionality, construction and
application of statutory provision against use
in evidence in any other case. 147 A.L.R. 443.
Criminal neglect by failure to provide med-
ical attention. 12 A.L.R.2d 1047.
Criminal liability for excessive or improper
punishment inflicted on child by parent,
teacher, or one in loco parentis. 89 A.L.R.2d
396.
Ignorance or mistake regarding purchaser's
age as affecting criminal offense of selling
liquor to minor (or person under specified
age). 12 A.L.R.3d 991.
What constitutes violation of enactment
prohibiting sale of intoxicating liquor to mi-
nor. 89 A.L.R.3d 1256.
18-1502. Beer, wine or other alcohol age violations

Fines.

(a) Whenever a person is in violation, on the basis of his age, of any federal,
state, or municipal law or ordinance pertaining to the use, possession,
procurement, or attempted procurement, or dispensing of any beer, wine or
other alcoholic beverage product, the violation shall constitute a misde-
meanor.
(b) Every person convicted of a misdemeanor under this section shall be
punished by a fine of not more than one thousand dollars ($1,000). The
second conviction under this section shall be punished by a fine of not more
than two thousand dollars
($2,000),
or up to thirty (30) days in jail or both.
The third and subsequent conviction under this section shall be punished by
a fine of not more than three thousand dollars ($3,000), or up to sixty (60)
days in jail or both.
(c) A conviction under this section shall not be used or considered in any
manner for purposes of motor vehicle insurance.
(d) Whenever a person pleads guilty or is found guilty ofviolating any law
pertaining to the possession, use, procurement, attempted procurement or
dispensing of any beer, wine, or other alcoholic beverage, and such person
was under twenty-one (21) years of age at the time of such violation, then in
addition to the penalty provided in subsection (b) of this section:
(1)
The court shall suspend the person's driving privileges for a period of
not more than one (1) year. The person may request restricted driving
privileges during the period of suspension, which the court may allow, if
the person shows by a preponderance of the evidence that driving
privileges are necessary as deemed appropriate by the court.
(2) If the person's driving privileges have been previously suspended
under this section, the court shall suspend the person's driving privileges
for a period of not more than two (2) years. The person may request
restricted driving privileges during the period of suspension, which the
court may allow, if the person shows by a preponderance of the evidence
that driving privileges are necessary as deemed appropriate by the court.
(3)
The person shall surrender his license or permit to the court.
(4) The court shall notify the motor vehicle division of the Idaho trans-
portation department of all orders of suspension it issues pursuant to this
section.
(5) The court, in its discretion, may also order the person to undergo and
complete an alcohol evaluation and to complete an alcohol treatment or
education program in the same manner that persons sentenced pursuant
to section 18-8005, Idaho Code, are required to undergo and complete.
[I.C.,

18-1502, as added by 1981, ch.
222, 2, p. 412; am. 1982, ch. 110,
3, p. 311; am. 1983, ch. 266, 1, p. 697; am. 1987, ch. 212, 1, p. 448;
am. 1989, ch.
88, 65, p. 151; am. 1989, ch. 155, 10, p. 371; am. 1990,
ch. 280, 1, p. 785; am. 1994, ch. 133, 1, p. 305; am. 1998, ch. 312, 1,
p. 1033.]
Compiler's notes. Former 18-1502 Section 16 of S.L. 1987, ch. 212 declared an
(I.C.,
18-1502, as added by 1972, ch. 336, emergency. Approved March 31, 1987.
1, p. 844) was repealed by S.L. 1981, ch. Section 70 of S.L. 1989, ch. 88 as amended
222, 1. by 1 of S.L. 1990, ch. 45 provided that the
Sections 2 and 4 of S.L. 1982, ch. 110 are act would become effective July 1, 1990.
compiled as

16-1804 (now 20-506) and Section 21 of S.L. 1989, ch. 155 provided
23-612, respectively. that the act should be in full force and effect
Section 2 of S.L. 1987, ch. 212 is compiled on and after January 15, 1990.
as
23-312. Sec. to sec. ref. This section is referred to
Sections 64 and 66 of S.L. 1989, ch. 88 are in

23-604, 23-612, 23-949, 49-307 and
49-
compiled as

18-8007 and 31-2202, respec- 328.
tively Opinions of Attorney General. Because
Sections 9 and 11 of S.L. 1989, ch. 155 are of the lack of a rational relationship between
compiled as

16-1826 to 16-1850 (now 20- driving or driving privileges and the state's
504, 20-531, 20-532, 20-533, 16-1830 to 16- interests in prohibiting a minor's non-traffic
1835 (repealed), 20-534 to 20-539, 16-1842 to possession, procurement, or use of an alco-
16-1843 (repealed), 20-540 to 20-542, 16-1845 holic beverage, subsection (c) of this section
to 16-1846 (repealed), and 16-1850 (repealed)) requiring suspension of driving privileges for
and 18-1510, respectively. teenagers convicted of liquor offenses is un-
171 CHILDREN AND VULNERABLE ADULTS 18-1502C
constitutional on equal protection grounds
and probably on substantive due process
grounds as well. OAG 84-5.
18-1502A. Sale of tobacco to a minor
Possession by a minor

Fines. [Repealed.]
Compiler's notes. This section which com- pealed by S.L. 1997, ch. 278, 2, effective
prised I.C., 18-1502A, as added by 1981, ch. March 21, 1997. For present law see

39-
222, 3, p. 412; am. 1982, ch. 328, 1, p. 5701

39-5708.
833; am. 1994, ch. 133, 2, p. 305 was re-
18-1502B. Possession of inhalants by minors.
Whenever a person
under the age of eighteen (18) years is in possession and uses an aerosol
spray product or other inhalant, that is not used pursuant to the instruc-
tions or prescription of a licensed health care provider or that is not used
pursuant to the manufacturer's label instructions, for the purpose of
becoming under the influence of such substance; such person shall be guilty
of a misdemeanor, and upon conviction, may be punished by a fine not in
excess of three hundred dollars
($300), or by thirty (30) days in a juvenile
detention facility or by both or may be subject to the provisions of chapter
5,
For the purposes of this section, the term "inhalant" means any glue,
cement or other substance containing one (1) or more of the following
chemical compounds: acetone and acetate, amyl nitrite or amyl nitrate or
their isomers, benzene, butyl alcohol, butyl nitrite, butyl nitrate or their
isomers, ethyl alcohol, ethyl nitrite or ethyl nitrate, ethylene dichloride,
isobutyl alcohol, methyl alcohol, methyl ethyl ketone, n-propyl alcohol,
pentachlorophenol, petroleum ether, propyl nitrite or propyl nitrate or their
isomers, toluene<or xylene or other chemical substance capable of causing a
condition of intoxication, inebriation, excitement, stupefaction or the dulling
of the brain or nervous system as a result of the inhalation of the fumes or
vapors of such chemical substance. [I.C.,

18-1502B, as added by 1993, ch.
154, 1, p. 390; am. 2004, ch.
23, 4, p. 25.]
Compiler's notes. Section 2 of S.L. 1993, compiled as

18-216 and 33-207, respec-
20-505. tively.
18-1502C. Possession of marijuana or drug paraphernalia by a
minor

Use of controlled substances

Fines.

(1) Any person
under eighteen (18) years of age who shall have in his possession any
marijuana as denned in section 37-2701(s), Idaho Code, which would
constitute a misdemeanor for an adult so charged, or who shall have in his
possession any drug paraphernalia as denned in section 37-270l(n), Idaho
Code, or who shall unlawfully use or be under the influence of controlled
substances in violation of the provisions of section 37-2732C, Idaho Code,
shall be guilty of a misdemeanor, and upon conviction, may be punished by
a fine not in excess of one thousand dollars ($1,000) or by ninety (90) days
in a juvenile detention facility or by both or may be subject to the provisions
of chapter
5, title 20, Idaho Code. If the juvenile is adjudicated under the
18-1502C CRIMES AND PUNISHMENTS 172
provisions of chapter 5, title 20, Idaho Code, for a violation of this section he
shall be sentenced in accordance with the provisions of chapter 5, title
20,
Idaho Code. The juvenile shall be adjudicated under chapter 5, title 20,
Idaho Code, for a violation of section 37-2732C, Idaho Code, unless the court
finds that adjudication under chapter 5, title 20, Idaho Code, is not
appropriate in the circumstances.
(2)
A conviction under this section shall not be used as a factor or
considered in any manner for the purpose of establishing rates of motor
vehicle insurance charged by a casualty insurer, nor shall such conviction be
grounds for nonrenewal of any insurance policy as provided in section
41-2507, Idaho Code.
(3) Any person who pleads guilty or is found guilty of possession of
marijuana pursuant to this section, or any person under eighteen (18) years
of age who pleads guilty or is found guilty of a violation of section 37-2732C,
Idaho Code, then in addition to the penalty provided in subsection (1) of this
section:
(a) The court shall suspend the person's driving privileges for a period of
not more than one (1) year. The person may request restricted driving
privileges during the period of suspension, which the court may allow, if
the person shows by a preponderance of the evidence that driving
privileges are necessary as deemed appropriate by the court.
(b) If the person's driving privileges have been previously suspended
under this section, the court shall suspend the person's driving privileges
for a period of not more than two
(2)
years. The person may request
restricted driving privileges during the period of suspension, which the
court may allow, if the person shows by a preponderance of the evidence
that driving privileges are necessary as deemed appropriate by the court.
(c) The person shall surrender his license or permit to the court.
(d) The court shall notify the motor vehicle division of the Idaho trans-
portation department of all orders of suspension it issues pursuant to this
section.
(4) The court, in its discretion, may also order the person convicted of
possession of marijuana under subsection (1) of this section, or a person
under eighteen (18) years of age who has been convicted of using or being
under the influence of a controlled substance in violation of section
37-
2732C, Idaho Code, to undergo and complete a substance abuse evaluation
and to complete a drug treatment program, as provided in section 37-2738,
Idaho Code. [I.C.,
18-1502C, as added by 1994, ch. 414, 1, p. 1302; am.
1995, ch. 361, 1, p. 1264; am. 1996, ch. 261, 2, p. 857; am. 1999, ch. 388,
2, p. 1083; am. 2002, ch. 184, 1, p. 535; am. 2003, ch. 285, 2, p. 770.]
Compiler's notes. Section 2 of S.L. 1994, Section 1 of S.L. 2003, ch. 285 is compiled
20-505. as
37-2738.
compiled as

37-2732C and 20-505, respec-
i
_
4 f the act should become effective
tivel
y-
July 1, 1996 and that 5 should become
Section
1 of S.L. 1999, ch. 388 is compiled
effective March 28, 1997.
as
20-505.
173 CHILDREN AND VULNERABLE ADULTS 18-1505A
18-1503, 18-1504. Tobacco vending machine accessible to minors a
misdemeanor. [Repealed.]
Compiler's notes. These sections which I.C.A., 17-2003; S.L. 1943, ch. 41, 1, 2, p.
comprised I.C.,
18-1503 and 18-1504, as 83; am. S.L. 1963, ch. 38, 1, p. 186 were
added by 1972, ch. 336, 1, p. 844 were repealed by S.L. 1971, ch. 143, 5, effective
repealed by S.L. 1997, ch. 278, 2, effective January 1, 1972. Further

18-1503 18-
March 21, 1997. For present law see

39- 1505 which comprised

18-1503 18-1505
5701
39-5708. as added by 1971, ch. 143, 1, were repealed

Other former sections 18-1503
18-1505, by S.L. 1972/ch. 109, 1, effective April 1,
which comprised R.S., R.C. & C.L. 6875; 1972.
18-1505. Abuse, exploitation or neglect of a vulnerable adult.
(1) Any person who abuses, exploits or neglects a vulnerable adult is guilty
of a misdemeanor.
(a) "Abuse" means the intentional or negligent infliction of physical pain,
injury or mental injury.
(b) "Caretaker" means any individual or institution that is responsible by
relationship, contract or court order to provide food, shelter or clothing,
medical or other life-sustaining necessities to a vulnerable adult.
(c) "Exploitation" means an action which may include, but is not limited
to, the misuse of a vulnerable adult's funds, property or resources by
another person for profit or advantage.
(d) "Neglect" means failure of a caretaker to provide food, clothing,
shelter or medical care to a vulnerable adult, in such a manner as to
jeopardize the life, health and safety of the vulnerable adult.
(e) "Vulnerable adult" means a person eighteen (18) years of age or older
who is unable to protect himself from abuse, neglect or exploitation due to
physical or mental impairment which affects the person's judgment or
behavior to the extent that he lacks sufficient understanding or capacity
to make or communicate or implement decisions regarding his person.
(3) Nothing in this section shall be construed to mean a person is abused,
neglected or exploited for the sole reason he is relying upon treatment by
spiritual means through prayer alone in accordance with the tenets and
practices of a recognized church or religious denomination; nor shall the
provisions of this section be construed to require any medical care or
treatment in contravention of the stated or implied objection of such a
person. [I.C.,

18-1505, as added by 1994, ch. 136, 3, p. 308.]
Compiler's notes. Former 18-1505, A third former 18-1505, which comprised
which comprised R.S., R.C, & C.L., 6875; I.C., 18-1505, as added by 1972, ch. 336,
C.S., 8327; I.C.A.,

17-2003, was repealed
by S.L. 1971, ch. 143, 5, effective January
1, 136, 2, effective July 1, 1994.
1972.
Section 1 of S.L. 1994, ch. 136 amended the
A second former section which comprised
heading of Chapter 15, Title 18.
I.C.,

18-1505 as added by S.L. 1971, ch. 143,
Sec to sec ref This section is referred to
1 was repealed by S.L. 1972, ch. 109, 1,
in

9
_
M0B 18
.
1505A and 39-5310.
18-1505A. Abandoning a vulnerable adult.

Any person who
abandons a vulnerable adult, as that term is denned in section 18-1505,
Idaho Code, in deliberate disregard of the vulnerable adult's safety or
welfare, regardless of whether the vulnerable adult suffered physical harm
from the act of abandonment, shall be guilty of a felony and shall be
imprisoned in the state prison for a period not in excess of five
(5) years, or
by a fine not exceeding five thousand dollars
($5,000),
or by both such fine
and imprisonment. It shall not be a defense to prosecution under the
provisions of this section that the perpetrator lacked the financial ability or
means to provide food, clothing, shelter or medical care reasonably neces-
sary to sustain the life and health of a vulnerable adult.
As used in this section "abandon" means the desertion or willful forsaking
of a vulnerable adult by any individual, caretaker as denned by subsection
(2)(b) of section 18-1505, Idaho Code, or entity which has assumed respon-
sibility for the care of the vulnerable adult by contract, receipt of payment
of care, any relationship arising from blood or marriage wherein the
vulnerable adult has become the dependent of another or by order of a court
of competent jurisdiction; provided that abandon shall not mean the
termination of services to a vulnerable adult by a physician licensed under
chapter 18, title 54, Idaho Code, or anyone under his direct supervision,
where the physician determines, in the exercise of his professional judg-
ment, that termination of such services is in the best interests of the patient.
[I.C.,
18-1505A, as added by 1993, ch. 179, 1, p. 460; am. 1994, ch. 136,
4, p. 308.]
Abandonment Found. room and doctors found her to be in appalling
Trial court properly convicted defendant condition with bed sores and maggots, suffer-
son of abandoning a vulnerable adult where ing from dehydration and malnutrition. In-
defendant's aged and sick mother suffered a
vestigating officers found the residence to be
stroke at home, but he did not call the para-
in grave disrepair, with no running water,
medics for several days; when he did finally
State v. Folsom,
Idaho , 84 P.3d 563 (Ct.

call for medical assistance, his unresponsive
App. 2003).
mother was transported to the emergency
18-1506. Sexual abuse of a child under the age of sixteen years.
(1) It is a felony for any person eighteen (18) years of age or older, with the
intent to gratify the lust, passions, or sexual desire of the actor, minor child
or third party, to:
(a) solicit a minor child under the age of sixteen (16) years to participate
in a sexual act, or
(b) cause or have sexual contact with such minor child, not amounting to
lewd conduct as denned in section 18-1508, Idaho Code, or
(c) make any photographic or electronic recording of such minor child.
(2)
For the purposes of this section "solicit" means any written, verbal, or
physical act which is intended to communicate to such minor child the
desire of the actor or third party to participate in a sexual act or participate
in sexual foreplay, by the means of sexual contact, photographing or
observing such minor child engaged in sexual contact.
(3) For the purposes of this section "sexual contact" means any physical
contact between such minor child and any person, which is caused by the
actor, or the actor causing such minor child to have self contact.
(4) Any person guilty of a violation of the provisions of this section shall
be imprisoned in the state prison for a period not to exceed fifteen (15) years.
[I.C.,

63, 1,
p. 112; am. 1987, ch. 178, 1, p. 354; am. 1988, ch. 329, 1, p. 991; am.
1992, ch. 145, 1, p. 438.]
Compiler's notes. A former
18-1506
which comprised S.L. 1957, ch. 197, 1, p.
407 was repealed by S.L. 1969, ch. 325,
11.
Section 2 of S.L. 1984, ch. 63 is compiled as
18-1508.
Cross ref. Lewd conduct with minor,

18-
1508.

[19-5303] 19-5302.
Rape,
18-6101.
in

6-1701, 16-2002, 18-310, 18-8304, 18-
8314, 18-8323, 19-402, 19-2520G, 19-2604,
19-5307, 19-5506, 33-1208, 39-1113, and 72-
1025.
Cited in: State v. Snapp, 113 Idaho 350,
743 P.2d 1003 (Ct. App. 1987); Balla v. Idaho
State Bd. of Cors., 869 F.2d 461 (9th Cir.
1988); State v. Snow, 120 Idaho 277, 815 P.2d
475 (Ct. App. 1991); State v. Joyner, 121 Idaho
376, 825 P.2d 99 (Ct. App. 1992); State v.
Alberts, 121 Idaho 204, 824 P.2d 135 (Ct. App.
1991); State v. Hernandez, 122 Idaho 227, 832
P2d 1162 (Ct. App. 1992); State v. Acevedo,
131 Idaho 513, 960 P.2d 196 (Ct. App. 1998);
State v. Mowrey, 134 Idaho 751, 9 P.3d 1217
(2000); State v. Brooke, 134 Idaho 807, 10 P.3d
756 (Ct. App. 2000).
Analysis
Alibi defense.
Bail.
Construction.
Defenses.
Consent.
Evidence.
Age of defendant.
Testimony of prior victims.
Testimony of victim.
Guilty plea.
Included offenses.
Jury instructions.
Circumstantial evidence.
Other offense.
Psychological evaluation.
Search warrant.
Sentence.
Probation revocation.
"Sexual abuse."
Sufficiency of information.
Trial procedure.
Addressing child victim.
Alibi Defense.
Adefendant who has had a close association
with a minor over a protracted period of time
and who is charged with continuous conduct
of abuse will have no practical defense of alibi.
(Ct. App. 1990).
Bail.
In a lewd conduct and sexual abuse of a
minor case, where the judge based his deci-
sion to revoke the bail on: (1) the seriousness
of the two charges, (2) the fact that defendant
first denied guilt and intent at his arraign-
ment and then admitted the requisite intent,
thereby indicating to the judge some degree of
denial, and (3) the judge's "gut feeling" that
defendant might flee, the judge did not abuse
his discretion by disallowing bail when he
accepted defendant's guilty plea. State v.
Sabin, 120 Idaho 780, 820 P2d 375 (Ct. App.
1991).
Construction.
Unfortunately, this section and
18-1508
are poorly written and appear to prohibit
overlapping kinds of conduct. Sexual contact
that amounts to sexual abuse can conceivably
fall into the nebulous category of acts which,
under 18-1508, include but are not limited
to the enumerated acts of lewd conduct. State
v. Drennon, 126 Idaho 346, 883 P.2d 704 (Ct.
App. 1994).
In order to convict a defendant of a sexual
abuse charge, the State has to prove that the
defendant touches the victim's breast and
that he does so with the intent to gratify the
lust, passions, or sexual desire of the defen-
dant or the minor child. The State is required
to prove that a defendant's touching of the
victim is sexual, rather than accidental or
innocent. State v. Cannady, 137 Idaho 67, 44
P.3d 1122 (2002).
Defenses.
Consent.
Because the legislature stated it intended
to extend the protection offered in this section
and
18-1508 to minors aged sixteen and
seventeen when enacting 18-1508A, and
because consent is not a defense to
18-1508,
consent is also not a defense to 18-1508A.
State v. Oar, 129 Idaho 337, 924 P.2d 599
(1996).
Evidence.
On appeal from a conviction of sexual abuse
of a child under the age of sixteen, pursuant
to this section, the trial court properly al-
lowed testimony by the victim and her twin
sister, the defendant's stepdaughters, as to
numerous incidents of sexual advances to-
wards both girls, where such testimony was
limited to incidents occurring in the preceding
one-year period, and where such evidence was
relevant to show a common scheme and plan,
motive, intent, lustful disposition and oppor-
tunity to commit the crime charged. State v.
Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.
App. 1985).
At times, expert testimony will tend to
show that another witness either is or is not
telling the truth and this in and of itself will
not render the expert testimony inadmissible;
where the testimony of the clinical psycholo-
gist was that "a lot of times" children become
honest in the court room, and no reference
was made to any of the specific children who
had testified, his testimony was admissible
and relevant. State v. Snapp, 110 Idaho 269,
715 P.2d 939 (1986).
There was substantial evidence to support
the defendant's convictions on two counts of
sexual abuse where the evidence showed that
he had a trampoline in his backyard which
attracted numerous children, that he gave
treats and small amounts of money to chil-
dren, took some of them for drives in his car,
on sleds and in his four-wheeler, allowing
them to sit on his lap and steer, where he had
a large quantity of pornographic magazines,
books and catalogues, and where several chil-
dren testified that he had touched them inap-
propriately. State v. Byington, 132 Idaho 597,
977 P.2d 211 (Ct. App. 1998), aff'd, 132 Idaho
589, 977 P.2d 203 (Ct. App. 1999).
Age of Defendant.
In prosecution under this section where no
direct evidence of defendant's age was pre-
sented, judge's comments in ruling upon de-
fendant's motion for acquittal that defendant
appeared to be well over eighteen years old
led to the conclusion that defendant's outward
appearance constituted some evidence that
indicated that he appeared to be well above
eighteen years old and in addition where
victim testified that perpetrator had gray hair
together with his identification of defendant
constituted circumstantial evidence that de-
fendant was not a minor and such evidence
was sufficient to allow rational jurors to con-
clude beyond a reasonable doubt that defen-
dant was not less than eighteen years of age.
State v. Willard, 129 Idaho 827, 933 P.2d 116
(Ct. App. 1997).
A proper analysis of whether there was
sufficient circumstantial evidence of the de-
fendant's age entailed firstly a determination
of whether the record revealed that his phys-
ical appearance was such that a rational jury
could find that the age element was satisfied
solely from observation of the defendant and,
if not, whether there was other circumstantial
evidence adequate to support the jury's find-
ing that the defendant was of the requisite
age. State v. Espinoza, 133 Idaho 618, 990
P2d 1229 (Ct. App. 1999).
Where there was nothing in the record to
show that the defendant's physical appear-
ance, standing alone, could sustain a conclu-
sion that he was of age, but where there was
testimony by both the defendant and other
witnesses that he purchased beer, it was
permissible for the jury to take into account
the common knowledge of the legal age for the
purchase and consumption of alcohol. State v.
Espinoza, 133 Idaho 618, 990 P.2d 1229 (Ct.
App. 1999).
Testimony of Prior Victims.

The district court correctly applied the
Rules of Evidence when it allowed three
women, who were not victims in a case, to
testify regarding their accusations of defen-
dant's sexual misbehavior with them when
they were minors, where the trial court
weighed the proffered testimony and deter-
mined that it would be more helpful to the
jury in determining the credibility of the
victim's testimony than it would be prejudi-
cial to defendant. State v. Phillips, 123 Idaho
178, 845 P.2d 1211 (1993).
Because their testimony was relevant to
show that defendant had not complied with
the terms of probation requiring him to give a
comprehensive and accurate sexual history,
district court did not err in admitting testi-
mony at probation revocation hearing of mi-
nor children who were the subjects of dis-
missed charges pursuant to Rule 11 plea
agreement; order revoking withheld judg-
ment and imposing minimum fixed term of
five years for sexual abuse of a minor af-
firmed. State v. Jones, 129 Idaho 471, 926 P.2d
1318 (Ct. App. 1996).
Testimony of Victim.
In a criminal action for sexual abuse, in
which the victim testified that her uncle came
to her bed on three separate occasions, each
time fondling either her buttocks or her
breast, her testimony was corroborated by her
brother, and the defendant's statements to
investigating officers were inconsistent, a ra-
tional jury could infer from this evidence that
the defendant had sexual contact with his
niece or had physical contact with the intent
to gratify sexual desire. State v. Parkinson,
128 Idaho 29, 909 P2d 647 (Ct. App. 1996).
Where in prosecution under this section the
victim testified "Fourteen" in answer to the
question as to how old he was, there was
sufficient direct evidence that victim was a
"minor child under the age of sixteen years".
State v. Willard, 129 Idaho 827, 933 P.2d 116
(Ct. App. 1997).
Guilty Plea.
Where defendant in a lewd conduct and
sexual abuse of a minor case initially denied
the intent element of lewd conduct before the
court accepted his plea of guilty, and then
after a ten-minute recess, defendant admitted
to the intent alleged, the trial court did not
err in accepting defendant's guilty plea. State
v. Sabin, 120 Idaho 780, 820 R2d 375 (Ct. App.
1991).
Because of the grant of immunity accorded
defendant pursuant to his Rule 11 plea agree-
ment, defendant was not denied his Fifth
Amendment right against self-incrimination
by being required in treatment to admit to his
sexual activities with the minor children who
were victims of the charges that were dis-
missed pursuant to his Rule 11 plea agree-
ment; order revoking withheld judgment and
imposing minimum fixed term of five years for
sexual abuse of a minor affirmed. State v.
Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App.
1996).
Included Offenses.
Violation of this section is a lesser included
offense when an individual is charged with
violation of
18-1508. State v. O'Neill, 118
Idaho 244, 796 P.2d 121 (1990).
Jury Instructions.
Circumstantial Evidence.
The district court did not err when it re-
fused to give defendant's requested jury in-
struction regarding circumstantial evidence
susceptible of two constructions or interpre-
tations where the state's case alleging sexual
abuse of a minor did not rest entirely upon the
circumstantial evidence. State v. Phillips, 123
Idaho 178, 845 P.2d 1211 (1993).
Other Offense.
Where defendant was tried for lewd con-
duct based on penile penetration, but acquit-
ted, then he was retried on a different charge,
which was comprised, of different elements
and required different facts than the lewd
conduct charge, he failed to show that he was
retried on the lewd conduct offense. State v.
Colwell, 127 Idaho 854, 908 P.2d 156 (Ct. App.
1995).
Psychological Evaluation.
The judge erred in a case involving lewd
conduct and sexual abuse of a minor by not
ordering a psychological evaluation as part of
the presentence investigation or through re-
tained jurisdiction, because, although a psy-
chological evaluation is not required in every
case where the court orders a presentence
investigation, in this case, defendant had a
solid work history, was a family man, and had
no prior criminal record. State v. Sabin, 120
Idaho 780, 820 P.2d 375 (Ct. App. 1991).
Search Warrant.
A magistrate could have properly and rea-
sonably relied on a common-sense reading of
a police officer's affidavit, and had a substan-
tial basis for finding that, contained within
the items seized by the police, there was
evidence that the defendant made photo-
graphic recordings of a minor child with the
intent to gratify the lust, passions, or sexual
desire of the actor, minor child, or a third
party. State v. Weimer, 133 Idaho 442, 988
P.2d 216 (Ct. App. 1999).
Sentence.
Where the record indicated that the defen-
dant had damaged his family, perhaps beyond
repair, and the trial court considered the
likelihood of rehabilitation, the seriousness of
the crime, the
-
defendant's prior criminal
record, and the fact that the defendant had
consistently refused to admit the gravity of
his offense or even acknowledge that he had
sexually abused his three children, a ten-year
indeterminate sentence for three counts of
sexual abuse of a child under 16 was within
the statutory maximum, and there was no
abuse of discretion. State v. Snapp, 110 Idaho
269, 715 P.2d 939 (1986).
Where, in prosecution for sexual abuse of a
child, the presentence report disclosed that
the defendant sexually abused his daughter
on numerous occasions, that he had a long
history of antisocial behavior, including sub-
stance and alcohol abuse and indicated the
defendant had several prior misdemeanor
convictions and a felony conviction for which
he received probation, and the defendant con-
tinued to deny certain incidents of prior sex-
ual misconduct which had been admitted to
the police and to the psychologist, the district
judge did not err in finding the defendant to
be a continuing danger to society, and five-
year fixed term was strict, but not unreason-
able, in light of this finding. State v. Beebe,
113 Idaho 977, 751 P.2d 673 (Ct. App. 1988).
Where the record did not show that the
defendant could never be safely returned to
society on parole, the fixed life sentence for
convictions of first degree burglary and sexual
abuse of a child was inappropriate. State v.
Eubank, 114 Idaho 635, 759 P.2d 926 (Ct. App.
1988).
A sentence of 12 years, with a four-year
minimum period of confinement, for a defen-
dant convicted of sexual abuse of a child
under 16 years of age, was not excessive
where defendant had stated he touched his
stepdaughter's breasts because he disliked
her; the defendant lacked genuine remorse
and the district judge felt that the defendant
exhibited the tendency to use threats, intim-
idation, fear and terror to get his way or to
push people around. State v. Jones, 118 Idaho
720, 800 P2d 116 (Ct. App. 1990).
nor an abuse of discretion even though the
(Ct. App. 1990).
Where
21-year- old defendant who was con-
victed of two charges of lewd conduct with a
minor, and one charge of sexually abusing a
child under the age of 16, had a troubled past
as evidenced by (1) the fact that at an early
age he was exposed to alcohol and drugs in an
unstable family, (2) his admission to having a
drinking problem, which sometimes resulted
in violent behavior, (3)
prior charges which
included petit larceny, sodomy, and assault,
(4) prior unsuccessful sentences of probation
and (5) the fact that he had been given several
opportunities to attend treatment facilities
and all attempts to rehabilitate him had been
unsuccessful, sentences of a fixed term of 20
years, plus an indeterminate term of 10 years
on each of two charges of lewd conduct with a
minor and in addition, a fixed term of ten
years plus an indeterminate time term of five
years for one charge of sexually abusing a
child under the age of 16 were reasonable.
State v. Waddoups, 119 Idaho 363, 806 P.2d
456 (Ct. App. 1991).
The court did not abuse its discretion by
denying defendant's I.C.R. 35 motion for re-
duction of sentence because although defen-
dant does not have a prior criminal record, he
has a history of sexual misconduct with young
males. State v. Homeier, 120 Idaho 648, 818
P.2d 352 (Ct. App. 1991).
A unified sentence of ten years with a
minimum period of confinement of three
years for sexual abuse of a child under the age
of 16 was not an abuse of discretion where
defendant was charged with engaging in sex-
ual activity with his stepdaughter, age 13, by
fondling her breasts while she was sleeping.
This case was not defendant's first involve-
ment with the criminal justice system; in
1980, he purportedly engaged in sexual inter-
course with another teen-aged stepdaughter,
but formal charges were not filed and defen-
dant had been married six times and five of
these marriages were to teenage females.
State v. Patterson, 121 Idaho 789, 828 P2d
352 (Ct. App. 1992).
The district court's imposition of consecu-
tive terms of confinement on defendant, who
pled guilty to two counts of sexual abuse of a
minor under the age of sixteen did not consti-
tute an excessive sentence. State v. Spencer,
13 Idaho 728, 843 P.2d 163 (Ct. App. 1992).
years, with a minimum period of incarcera-
tion of five years for two counts of sexual
abuse of a child under 16 was not an abuse of
sentencing discretion even though the court
acknowledged that defendant had exhibited a
long-standing need for some form of sex of-
fender therapy. State v. Keller, 123 Idaho 187,
845 P.2d 1220 (Ct. App. 1993).
A unified sentence of five years' fixed and
five years' indeterminate for sexual abuse of a
child was reasonable; and, the district court's
decision to deny a motion for leniency did not
constitute an abuse of discretion where the
record revealed that the district court consid-
ered the pre-sentence investigation report,
the psychological report, and the court record.
State v. Lowells, 123 Idaho 171, 845 P.2d 589
(Ct. App. 1993).
Sentence of ten and one-half years, with a
minimum term of confinement of three and
one-half years for defendant's sexual abuse of
his daughter was affirmed, where defendant
admitted to fondling his daughter over a ten
year period, and had previously received a
withheld judgment for sexual abuse of his
step-daughter. State v. Hastings, 124 Idaho
404, 860 P.2d 20 (Ct. App. 1993).
Sentence of eight years' incarceration with
a three year determinate term was not an
abuse of discretion where defendant sexually
abused nine year old girl by touching and
fondling her chest and buttocks, made lewd
remarks to victim and exhibited movies de-
picting nude females in her presence. State v.
Beck, 128 Idaho 416, 913 P.2d 1186 (Ct. App.
1996).
Unified life sentence with a minimum term
of ten years' confinement for lewd and lasciv-
ious conduct with a minor conviction and a
determinate sentence of five years for sexual
abuse of a minor conviction were not unrea-
sonable and were affirmed where evidence
showed an undue risk that defendant would
commit other, similar crimes and lesser sen-
tences would depreciate the seriousness of the
crimes. State v. Roberts, 129 Idaho 325, 924
P.2d 226 (Ct. App. 1995). See also State v.
Roberts, 129 Idaho 194, 923 P.2d 439 (1996),
L. Ed. 2d 849 (1997).
Sentence of defendant on plea of guilty to
one count of sexual abuse of a minor of ten
years, with minimum period of confinement of
five years, was not an abuse of sentencing
court's discretion given defendant's adamant
denial of wrongdoing, failure to respond to
treatment and high risk to reoffend. State v.
Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App.
1996).
In prosecution for soliciting a minor under
the age of sixteen years to participate in
sexual acts, sentence of a unified five and
one-half years term of incarceration with two-
year minimum term where court retained
jurisdiction to allow a period for evaluation of
defendant's suitability for probation was not
an abuse of discretion where although defen-
dant had no prior criminal record there was
evidence that this was not the first instance of
defendant's inappropriate conduct with chil-
dren. State v. Willard, 129 Idaho 827, 933 P.2d
116 (Ct. App. 1997).
Probation Revocation.
Defendant's Alford plea to one count of
sexual abuse of a minor did not exempt him
from completing his probation, including com-
pliance with the requirement of full disclo-
sure of his sexual history deemed essential to
successful participation in sexual abuse coun-
seling and rehabilitation; district court did
not abuse its discretion in finding that he had
violated his probation as a basis for revoking
defendant's probation; order revoking with-
held judgment and imposing minimum fixed
term of five years for sexual abuse of a minor
affirmed. State v. Jones, 129 Idaho 471, 926
P.2d 1318 (Ct. App. 1996).
"Sexual Abuse."
Where charges of lewd conduct with a mi-
nor were dismissed upon conditions set out in
an agreement between defendant and victim's
mother and one of the conditions provided
that if defendant sexually abused victim
again, the state could take legal action "under
the Child Protective Act and/or appropriate
criminal statutes," the court properly applied
the definition of "sexual abuse" found in
16-
1602, rather than the definition contained in
this section, to the agreement. State v.
Claxton, 128 Idaho 782, 918 P.2d 1227 (Ct.
App. 1996).
Sufficiency of Information.
In child sexual abuse cases involving a
continuous course of sexual abuse, and evi-
dence of frequent, secretive offenses over a
period of time, credibility, not alibi, is the only
issue, and detailed specificity in the informa-
tion as to the times of the offenses is not
required. State v. Taylor, 118 Idaho 450, 797
P.2d 158 (Ct. App. 1990).
The state chose to charge defendant with
one count of sexual abuse that was alleged to
have occurred sometime between March and
September, 1988; therefore where there was
testimony that the adopted daughter and one
or more of her siblings were in defendant's
home frequently on weekend visits during
this period of time, the state could not have
pleaded the alleged acts with any more par-
ticularity, and the court held that the time
stated in the information provided defendant
with sufficient notice of the charges brought
against him. State v. Marks, 120 Idaho 727,
819 P.2d 581 (Cf. App. 1991).
Where state's evidence showed that
adopted daughter had been sexually abused
by defendant while she was seven years old,
and adopted daughter was seven years old
from January 29, 1988, to January 28, 1989,
but the information recited that the abuse
occurred between March and September,
1988, only the month of February 1988 was
excluded from the information, and omission
of only the month of February from the infor-
mation was not a material variance from the
proof offered at trial. State v. Marks, 120
Idaho 727, 819 P.2d 581 (Ct. App. 1991).
Where court's instructions allowed jury to
find defendant not guilty of lewd conduct with
a minor, but guilty of sexual abuse of a minor
based upon proof of facts different from those
alleged in the information for the lewd con-
duct charge, case was vacated and remanded.
State v. Colwell, 124 Idaho 560, 861 P.2d 1225
(Ct. App. 1993).
Trial Procedure.
Addressing Child Victim.
The trial court did not commit error by
addressing a child abuse victim by her first
name where counsel for defendant used the
victim's first name throughout the proceed-
ings, as did the state. State v. Larsen, 123
Idaho 456, 849 P.2d 129 (Ct. App. 1993).
18-1506A. Ritualized abuse of a child
Exclusions
Penalties
Definition.
(1) A person is guilty of a felony when he commits any of

the following acts with, upon, or in the presence of a child as part of a
ceremony, rite or any similar observance:
(a) Actually or in simulation, tortures, mutilates or sacrifices any warm-
blooded animal or human being;
(b) Forces ingestion, injection or other application of any narcotic, drug,
hallucinogen or anaesthetic for the purpose of dulling sensitivity, cogni-
tion, recollection of, or resistance to any criminal activity;
(c) Forces ingestion, or external application, of human or animal urine,
feces, flesh, blood, bones, body secretions, nonprescribed drugs or chemi-
cal compounds;
(d) Involves the child in a mock, unauthorized or unlawful marriage
ceremony with another person or representation of any force or diety
[deity], followed by sexual contact with the child;
(e) Places a living child into a coffin or open grave containing a human
corpse or remains;
(f) Threatens death or serious harm to a child, his parents, family, pets or
friends which instills a well-founded fear in the child that the threat will
be carried out; or
(g)
Unlawfully dissects, mutilates, or incinerates a human corpse.
(2)
The provisions of this section shall not be construed to apply to:
(a) Lawful agricultural, animal husbandry, food preparation or wild game
hunting and fishing practices and specifically the branding or identifica-
tion of livestock;
(b) The lawful medical practice of circumcision or any ceremony related
thereto; or
(c) Any state or federally approved, licensed or funded research project.
(3) The penalty upon conviction of a first offense shall be imprisonment in
the state prison for a term of not to exceed fifteen (15) years. Upon conviction
of a second or subsequent offense, the penalty shall be for a term not more
than life imprisonment.
(4) For the purposes of this section, "child" means any person under
eighteen (18) years of age. [I.C.,
18-1506A, as added by 1990, ch. 210, 1,
p. 467.]
Compiler's notes. The bracketed word Sec. to sec. ref. This section is referred to
"deity," contained in subdivision (l)(d), was in

18-310, 18-8304, 18-8314, 19-402, 19-
added by the compiler.
5307, 20-525A, 33-1208 and 39-1113.
as
18-5003.
18-1507. Sexual exploitation of a child.
( 1
) The legislature hereby
finds and declares that the commercial sexual exploitation of children
constitutes a wrongful invasion of the child's right of privacy and results in
social, developmental, and emotional injury to the child; that a child below
the age of eighteen (18) years is incapable of giving informed consent to the
use of his or her body for a commercial purpose; and that to protect children
from commercial sexual exploitation it is necessary to prohibit the produc-
tion for trade or commerce of material which involves or is derived from such
exploitation and to exclude all such material from the channels of trade and
commerce.
(2) As used in this section, unless the context otherwise requires:
(a) "Bestiality" means a sexual connection in any manner between a
human being and any animal.
(b) "Child" means a person who is less than eighteen (18) years of age.
(c) "Commercial purpose" means the intention, objective, anticipation, or
expectation of monetary gain or other material consideration, compensa-
tion, remuneration, or profit.
(d) "Erotic fondling" means touching a person's clothed or unclothed
genitals or pubic area, developing or undeveloped genitals or pubic area (if
the person is a child), buttocks, breasts (if the person is a female), or
developing or undeveloped breast area (if the person is a female child), for
the purpose of real or simulated overt sexual gratification or stimulation
of one or more of the persons involved. "Erotic fondling" shall not be
construed to include physical contact, even if affectionate, which is not for
the purpose of real or simulated overt sexual gratification or stimulation
of one or more of the persons involved.
(e) "Erotic nudity" means the display of the human male or female
genitals or pubic area, the undeveloped or developing genitals or pubic
area of the human male or female child, the human female breasts, or the
undeveloped or developing breast area of the human female child, for the
purpose of real or simulated overt sexual gratification or stimulation of
one or more of the persons involved.
(f) "Explicit sexual conduct" means sexual intercourse, erotic fondling,
erotic nudity, masturbation, sadomasochism, sexual excitement, or besti-
ality.
(g)
"Masturbation" means the real or simulated touching, rubbing, or
otherwise stimulating of a person's own clothed or unclothed genitals or
pubic area, developing or undeveloped genitals or pubic area (if the person
is a child), buttocks, breasts (if the person is a female), or developing or
undeveloped breast area (if the person is a female child), by manual
manipulation or self-induced or with an artificial instrument, for the
purpose of real or simulated overt sexual gratification or arousal of the
person.
(h) "Sadomasochism" means:
1. Real or simulated flagellation or torture for the purpose of real or
simulated sexual stimulation or gratification; or
2. The real or simulated condition of being fettered, bound, or other-
wise physically restrained for sexual stimulation or gratification of a
person.
(i) "Sexual excitement" means the real or simulated condition of human
male or female genitals when in a state of real or simulated overt sexual
stimulation or arousal.
(j)
"Sexual intercourse" means real or simulated intercourse, whether
genital-genital, oral-genital, anal-genital, or oral-anal, between persons of
the same or opposite sex, or between a human and an animal, or with an
artificial genital.
(k) "Sexually exploitative material" means any photograph, motion pic-
ture, videotape, print, negative, slide, or other mechanically, electroni-
cally, or chemically reproduced visual material which depicts a child
engaged in, participating in, observing, or being used for explicit sexual
conduct.
(3) A person commits sexual exploitation of a child if, for any commercial
purpose, he knowingly:
(a) Causes, induces, or permits a child to engage in, or be used for, any
explicit sexual conduct; or
(b) Prepares, arranges for, publishes, produces, promotes, makes, sells,
finances, offers, exhibits, advertises, deals in, possesses, or distributes
any sexually exploitative material.
(4) The possession by any person of three (3) or more identical copies of
18- 1507A CRIMES AND PUNISHMENTS 182
any sexually exploitative material shall create a presumption that such
possession is for a commercial purpose.
(5) The sexual exploitation of a child is a felony and shall be punishable
by imprisonment in the state prison for a period not to exceed fifteen (15)
years or by a fine not to exceed twenty-five thousand dollars ($25,000) or by
both such fine and imprisonment.
(6)
If any provision of this section or the application thereof to any person
or circumstances is held invalid, such invalidity shall not affect other
provisions or applications of this section which can be given effect without
the invalid provision or application, and to this end the provisions of this
section are declared to be severable. [I.C.,

18-1507, as added by 1983, ch.
256, 1, p. 678; am. 1987, ch. 177, 1, p. 352; am. 1992, ch. 145, 2, p.
438.]
Compiler's notes. A former 18-1507 make a subjective determination regarding
which comprised S.L. 1957, ch. 197, 2, p. the status of sexually exploitative materials
407; am. 1961, ch.
58, 1, p. 86 was repealed where it was immediately apparent to the
by S.L. 1969, ch. 325,
11. officers upon viewing the cover of the book
The words in parentheses so appeared in
that it contained sexually exploitative mate-
the law as enacted.
rial; therefore all three requirements for a
Cross ref. Medical examination of victim,
valid plain view seizure were met. State v.
cost paid by law enforcement agency,

[19-
Claiborne, 120 Idaho 581, 818 P.2d 285
5303] 19-5302.
(1991).
It was immediately apparent to the officers
^L^hâk^ô^^lt
searchin
g
defendant home that a book con-
l
5
oô
18
of^t
19
f
6
.o
4
;no
9
;
5307
'
2
"
525A
'
tained sexually exploitative material where
33
n.f2*
-
3
t f
ai
\
d
/
2
"
102
*
_, .
m Q
the words on the front cover and the words on
P.3d i
e
217
n
(2000)
e V'
^
the back C0Ver alerted
fficerS aS t0 the Cn
-
tents and clearly made it immediately appar-
Sexually Exploitative Material.
ent that sexually exploitative material in the
Because the statute narrowly and specifi-
form of "Pedophilia . . . Photo Illustrated"
cally defines sexually exploitative material,
would be found inside, and a cursory glance at
and because of the lesser constitutional pro-
the inner contents only served to confirm that
tections afforded this material, officers in- conviction. State v. Claiborne, 120 Idaho 581,
volved in the search were not required to 818 P.2d 285 (1991).
18-1507A. Possession of sexually exploitative material for other
than a commercial purpose

Penalty.

(1) It is the policy of the
legislature in enacting this section to protect children from the physical and
psychological damage caused by their being used in photographic represen-
tations of sexual conduct which involves children. It is, therefore, the intent
of the legislature to penalize possession of photographic representations of
sexual conduct which involves children in order to protect the identity of
children who are victimized by involvement in the photographic represen-
tations, and to protect children from future involvement in photographic
representations of sexual conduct.
(2) Every person who knowingly and willfully has in his possession any
sexually exploitative material as defined in section 18-1507, Idaho Code, for
other than a commercial purpose, is guilty of a felony, and shall be punished
by imprisonment in the state prison for a period not to exceed five (5)
years
and by a fine not to exceed five thousand dollars ($5,000). [I.C.,
18-1507A,
177, 2, p. 352.]
in
18-8304, 19-5506, 33-1208 and 39-1113.
Analysis
Prohibited material.
Search warrant.
Prohibited Material.
Because Idaho has chosen to criminalize
the possession of sexually exploitative mate-
rial, the book in this case achieved the status
of prohibited material, because although it
may have fallen under the broad definition of
"expressive materials," it was at the same
time evidence of the crime of possession of
sexually exploitative material, and this
changes the traditional obscenity seizure
analysis. State v. Claiborne, 120 Idaho 581,
818 P.2d 285 (1991).
Search Warrant.
A police officer's descriptions of amateur
photographs of young teenage girls which he
had observed were sufficient to provide prob-
able cause for the issuance of a search war-
rant. State v. Weimer, 133 Idaho 442, 988 P.2d
216 (Ct. App. 1999).
18-1508. Lewd conduct with minor child under sixteen.

Any
person who shall commit any lewd or lascivious act or acts upon or with the
body or any part or member thereof of a minor child under the age of sixteen
(16) years, including but not limited to, genital-genital contact, oral-genital
contact, anal-genital contact, oral-anal contact, manual-anal contact, or
manual-genital contact, whether between persons of the same or opposite
sex, or who shall involve such minor child in any act of bestiality or
sado-masochism as defined in section 18-1507, Idaho Code, when any of
such acts are done with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of such person, such minor child, or third
party, shall be guilty of a felony and shall be imprisoned in the state prison
for a term of not more than life. [I.C.,

18-6607, as added by 1973, ch.
1,
1, p. 3;
am. and redesig. 1984, ch.
63, 2, p. 112; am. 1992, ch. 145, 3,
p. 438.]
Compiler's notes. This section was for-
merly compiled as
18-6607.
Former 18-6607, "which comprised S.L.
1949, ch. 214, 1, p. 455 was repealed by S.L.
1971, ch. 143, 5, effective January 1, 1972.
A former
18-1508 which comprised S.L.
1969, ch. 325, 11.
compiled as
18-1506 and 19-2520C, re-
spectively.
emergency. Approved January 26, 1973.
Cross ref. Injury to children,
18-1501.

[19-5303] 19-5302.
Sexual abuse of child under 16,
18-1506.
in

6-1701, 16-2002, 18-310, 18-1506, 18-
8303, 18-8304, 18-8314, 19-402, 19-2520, 19-
2520C, 19-2520G, 19-2604, 19-5307, 19-5506,
33-1208, 39-1113 and 72-1025.
Cited in: Schwartzmiller v. Winters, 99
Idaho 18, 576 P.2d 1052 (1978); State v.
Rutherford, 107 Idaho 910, 693 P.2d 1112 (Ct.
App. 1985); Roberts v. State, 108 Idaho 183,
697 P.2d 1197 (Ct. App. 1985); State v. Kay,
108 Idaho 661, 701 P.2d 281 (Ct. App. 1985);
State v. Madrid, 108 Idaho 736, 702 P.2d 308
(Ct. App. 1985); State v. Anderson, 111 Idaho
121, 721 P.2d 221 (Ct. App. 1986); State v.
Stanfield, 112 Idaho 601, 733 P.2d 822 (Ct.
App. 1987); State v. Mader, 113 Idaho 409, 744
P.2d 137 (Ct. App. 1987); State v. Shaw, 115
Idaho 461, 767 P.2d 836 (Ct. App. 1989); Balla
v. Idaho State Bd. of Cors., 869 F.2d 461 (9th
Cir. 1988); State v. Wright, 116 Idaho 382, 775
P.2d 1224 (1989), aff'd, 497 U.S. 805, 110 S.
Ct. 3139, 111 1. Ed. 2d 638 (1990); State v.
Peltier, 119 Idaho 14, 803 P.2d 202 (Ct. App.
1990); State v. Young, 119 Idaho 430, 807 P.2d
648 (Ct. App. 1991); State v. Homeier, 120
v. Allen, 123 Idaho 880, 853 P2d 625 (Ct. App.
1993); State v. Saunders, 124 Idaho 334, 859
P2d 370 (Ct. App. 1993); Doe v. Garcia, 126
Idaho 1036, 895 P.2d 1229 (Ct. App. 1995);
State v. McAway, 127 Idaho 54, 896 P. 2d 962
(1995); Swisher v. State, 129 Idaho 467, 926
P.2d 1314 (Ct. App. 1996); State v. Jones, 129
Idaho 471, 926 P2d 1318 (Ct. App. 1996);
State v. Dewey, 131 Idaho 846, 965 P.2d 206
(Ct. App. 1998); Manning v. Foster, 224 F.3d
1129 (9th Cir. 2000); State v. Mowrey, 134
Idaho 751, 9 P. 3d 1217 (2000); State v. Button,
134 Idaho 864, 11 P3d 483 (Ct. App. 2000);
State v. Bello, 135 Idaho 442, 19 P.3d 66 (Ct.
App. 2001); Repp v. State, 136 Idaho 262, 32
P3d 156 (Ct. App. 2001).
Analysis
Bail.
Child Protective Act.
Effect of decree.
Competency as witness.
Constitutionality.
Construction.
Corroboration.
Defense of consent.
Defense of mistake of fact.
Double jeopardy.
Equal protection.
Evidence.
Child's statement.
Expert testimony.
Other acts.
Other offense.
Sufficient.
Guilty plea.
Included offenses.
Information.
Instruction.
Intent.
Joinder of counts of conduct.
Judge's comments.
Medical testimony.
Multiple offenses.
Physical examination.
Prior misconduct.
Prosecutor comments.
Psychological.
Evaluation.
Treatment.
Sentence.
Addressing child victim.
Bail.
In a lewd conduct and sexual abuse of a
minor case, where the judge based his deci-
sion to revoke the bail on: (1) the seriousness
of the two charges, (2) the fact that defendant
first denied guilt and intent at his arraign-
ment and then admitted the requisite intent,
thereby indicating to the judge some degree of
denial, and (3) the judge's "gut feeling" that
defendant might flee, the judge did not abuse
his discretion by disallowing bail when he
accepted defendant's guilty plea. State v.
Sabin, 120 Idaho 780, 820 P.2d 375 (Ct. App.
1991).
Child Protective Act.
Effect of Decree.
A collateral estoppel did not arise from the
circumstance that the very incident which
gave rise to the criminal charge for lewd
conduct with a minor had earlier been the
subject of a Child Protective Act (CPA) pro-
ceeding, notwithstanding that the State was a
party to the CPA proceedings which went to a
final "judgment," the findings in the CPA
hearing did not bar the criminal prosecution
on the charge of lewd and lascivious conduct
because a conclusion as to whether a particu-
lar incident of abuse took place is not essen-
tial to the determination of the child's best
interests under the CPA and, unlike a crimi-
nal prosecution, a CPA proceeding does not
have the effect of placing a defendant in
jeopardy. State v. Powell, 120 Idaho 707, 819
P.2d 561 (1991).
Competency as Witness.
Although the testimony of a nine year old
child revealed a fair measure of embarrass-
ment and lack of poise, and although with
respect to the sequence of events her testi-
mony was at times vague, she was unwaver-
ing in her testimony that the defendant took
the alleged liberties with her and her friend,
and thus the decision of the trial judge that
the nine year old's indecisiveness went to
weight as opposed to admissibility was not in
error. State v. McKenney, 101 Idaho 149, 609
P.2d 1140 (1980).
Constitutionality.
Because the United States Supreme Court
has upheld the language "crime against na-
ture," and because the Idaho court had previ-
ously held that "crime against nature" when
committed with a minor violates this section,
defendant had fair notice that copulation per
annum could expose him to criminal charges
under this section and the Idaho authorities
who charged him and the jury that convicted
him had sufficient legal guidelines to fairly
judge his acts against the proscriptions of the
statute; accordingly, as to two counts of copu-
lation per annum, defendant's imprisonment
violated no federal statute or constitutional
right. Schwartzmiller v. Gardner, 567 F. Supp.
1371 (D. Idaho 1983), modified on other
grounds, 752 F.2d 1341 (9th Cir. 1984) (deci-
sion prior to 1984 amendment).
The statutory scheme to protect minors by
precluding them from consenting to crimes of
their persons in no way denies due process of
law. Schwartzmiller v. Gardner, 567 F. Supp.
1371 (D. Idaho 1983), modified on other
grounds, 752 F.2d 1341 (9th Cir. 1984) (deci-
sion prior to 1984 amendment).
The phrases in this section concerning body
parts, lusts, passions, and sexual desires are
sufficiently definite, when used in combina-
tion, to pass constitutional muster.
Schwartzmiller v. Gardner, 567 F. Supp. 1371
(D. Idaho 1983), modified on other grounds,
752 F.2d 1341 (9th Cir. 1984) (decision prior to
1984 amendment).
This section does not violate the Eighth
Amendment prescription against cruel and
unusual punishment, merely because it al-
lows for a maximum punishment of life im-
prisonment. State v. Schwartzmiller, 107
Idaho 89, 685 P. 2d 830 (1984) (decision prior
to 1984 amendment).
This section does not impinge on or "chill"
any constitutionally protected conduct, sub-
stantial or otherwise; moreover, because this
section does not by nature fall into the disfa-
vored category of statutes like those regulat-
ing vagrancy, and because the Idaho Supreme
Court has previously applied the statute to
specific conduct, it is also not so vague as to
specify "no standard of conduct at all" in any
application. Schwartzmiller v. Gardner, 752
F.2d 1341 (9th Cir. 1984) (decision under
section prior to 1984 amendment).
Because of Idaho precedent holding that
the statute defining lewd and lascivious con-
duct is not unconstitutionally vague, defen-
dant's challenge to the constitutional validity
of this section was unavailing. State v.
Coleman, 128 Idaho 466, 915 P.2d 28 (Ct. App.
1996).
Construction.
This section did not incorporate the re-
quirement that the lewd or lascivious conduct
be done in an "unnatural manner," thus de-
fendant was subject to punishment under this
section where defendant engaged in single
"orthodox" act of sexual intercourse with a
child under 16. State v. Herr, 97 Idaho 783,
P2d 87 (1993).
The Idaho Supreme Court's analysis in
State v. Wall, 73 Idaho 142, 248 P.2d 222
(1952) insulates this section from a vagueness
attack by someone committing the same acts
for which Wall, supra, was convicted and thus
provides a sufficient legal basis for arresting,
trying, and convicting citizens for committing
the crime against nature with a minor.
1984 amendment).
While
18-6605 seeks to regulate the mo-
rality of an adult populace, this section seeks
to provide specific protection for minors.
Some, but not all, crimes of sodomy can be
charged under this section and similarly,
many acts which violate this section do not
constitute sodomy; thus,
18-6605 and this
section do not conflict and represent distinct
legislative choices in determining the reach of
the criminal law. Schwartzmiller v. Gardner,
1984) (decision prior to 1984 amendment).
Unfortunately,
18-1506 and this section
are poorly written and appear to prohibit
overlapping kinds of conduct. Sexual contact
that amounts to sexual abuse can conceivably
fall into the nebulous category of acts which,
under this section, include but are not limited
to the enumerated acts of lewd conduct. State
v. Drennon, 126 Idaho 346, 883 P. 2d 704 (Ct.
App. 1994).
The application of
19-404 operated to
extend the limitation period while defendant
was out of state even though defendant was
not out of state when he committed the of-
fenses of lewd conduct with a minor; it is
impermissible to interpret
19-404 as to re-
quire commission of the crime while defen-
dant was out of state, in conjunction with a
subsequent absence from the state. State v.
Coleman, 128 Idaho 466, 915 P.2d 28 (Ct. App.
1996).
In order to convict a defendant of a lewd
conduct charge, the State has to prove that
the defendant touches the victim's vaginal
area and that he does so with the intent of
arousing, appealing to, or gratifying the lust
or passions or sexual desires of the defendant
or such minor child. The State is required to
prove that a defendant's touching of the vic-
tim is sexual, rather than accidental or inno-
cent. State v. Cannady, 137 Idaho 67, 44 P.3d
1122 (2002).
Although this section provides a
nonexclusive list of prohibited sexual conduct,
the act of touching a minor's chest area did
not fall within the lewd or lascivious act or
acts specifically enumerated in this section
and is simply not of the same type of activity
as the enumerated acts in the statute; hence,
on retrial defendant could not be convicted for
violating this section for such contact with the
minor victim. State v. Kavajecz,

Idaho
,
80 P.3d 1083 (2003).
Corroboration.
In prosecution of defendant for committing
a lewd and lascivious act upon the body of his
minor female child, where the testimony of
the prosecutrix was not found to be contradic-
tory to admitted facts and where prosecutrix'
reputation for truth and chastity was not put
in issue, the testimony of prosecutrix' brother
and sister considered together with evidence
of defendant's conduct during the period of
time the alleged acts took place was sufficient
corroboration of prosecutrix' testimony to sus-
tain defendant's conviction. State v. Froelich,
96 Idaho 685, 535 P.2d 658 (1975).
Where defendant's mother testified to see-
ing defendant in bed with a young girl on the
date of the crime, there was sufficient corrob-
oration of prosecutrix' testimony by proof of
surrounding circumstances to convict defen-
dant of lewd conduct with a minor under 16.
State v. Herr, 97 Idaho 783, 554 P.2d 961
(1976), modified on other grounds, State v.
Tribe, 123 Idaho 721, 852 P.2d 87 (1993).
The direct eyewitness testimony of the vic-
tim's mother can supply the required corrob-
oration. State v. Tisdel, 101 Idaho 52, 607 P.2d
1326 (1980).
The requirement of corroboration in sex
crime cases is no longer the law in Idaho.
State v. Byers, 102 Idaho 159, 627 P.2d 788
(1981).
Because there exists no requirement of cor-
roboration at preliminary hearings, corrobo-
rative evidence beyond testimony of defen-
dant's daughters was not required at
preliminary hearing charging defendant with
lewd and lascivious conduct with a minor.
State v. Coleman, 128 Idaho 466, 915 P.2d 28
(Ct. App. 1996).
Defense of Consent.
to extend the protection offered in
18-1506
and this section to minors aged sixteen and
seventeen when enacting 18-1508A and be-
cause consent is not a defense to this section,
consent is also not a defense to 18-1508A.
(1996).
Defense of Mistake of Fact.
minor child under 16 where no evidence was
introduced to raise the defense of lack of
knowledge on defendant's part as to the vic-
tim's age, the trial court did not err in refus-
ing to instruct the jury on the defense of
mistake of fact. State v. Herr, 97 Idaho 783,
554 P.2d 961 (1976).
Double Jeopardy.
The district court did not err in ruling that
defendant's prosecution for the crime of lewd
conduct was not barred by double jeopardy
because of his previous prosecution for the
crime of transferring the HIV virus, 39-608,
which ended in a sua sponte mistrial, where
the essential elements of the lewd conduct
charge did not constitute a violation of the
HrV offense because the State did not produce
evidence of defendant's conduct as a knowing
carrier of HIV. State v. Lewis, 123 Idaho 336,
848 P.2d 394 (1993).
Equal Protection.
This section does not create an irrational
classification violative of equal protection by
determining as a matter of law that a minor
cannot consent, and yet holding that those
same minors can form the specific intent to
violate the statute; the statute constitutes a
valid legislative classification.
1984 amendment).
That defendant's conduct could have been
charged under either 18-6605 or this sec-
tion did not render his conviction for one a
denial of equal protection. Schwartzmiller v.
Gardner, 567 F. Supp. 1371 (D. Idaho 1983),
modified on other grounds, 752 F.2d 1341 (9th
Cir. 1984) (decision prior to 1984 amend-
ment).
Evidence.
The trial court in a prosecution for lewd and
lascivious conduct with a 14-year-old boy did
not err in excluding evidence that the boy had
at a previous time charged another person
with having committed similar sex acts, even
though that person was found not guilty since
the present defendant failed to demonstrate
to the trial court or to the appellate court that
the witness' previous allegations of sexual
misconduct against another were false. State
v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830
(1984).
Evidence of similar acts of sexual miscon-
duct between a defendant and the victim or
between the defendant and another witness is
admissible for corroboration of the victim's
testimony in sex crimes cases. State v.
Schwartzmiller, 107 Idaho 89, 685 P.2d 830
(1984).
Where, in a prosecution under this section,
the defendant's counsel attempted to impeach
the credibility of a child witness by emphasiz-
ing his failure to report promptly an incident
of sexual abuse, the trial court's admission of
expert testimony to show that victims of sex-
ual abuse sometimes delay reporting such
incidents due to feelings of fear or guilt was
not an abuse of discretion. State v. Lawrence,
112 Idaho 149, 730 P.2d 1069 (Ct. App. 1986).
The trial judge properly considered the fac-
tors of I.R.E. 803(24), and his ruling admit-
ting into evidence the alleged child molesta-
tion victim's out-of-court statements to his
mother under that exception was correct.
State v. Hester, 114 Idaho 688, 760 P.2d 27
(1988).
Since the judge found the victim to be
"unavailable," I.R.E. 804(b)(5) would be appli-
cable and would allow the admission of his
statements to his mother regarding incidents
of sexual molestation. State v. Hester, 114
Idaho 688, 760 P.2d 27 (1988).
In prosecution for rape and lewd and las-
civious conduct with a minor, expert opinion
regarding the social beliefs, characteristics
and mores of the local Hispanic people, par-
ticularly the females' desire to protect their
husbands or lovers, would not be relevant to
show that the victim and her mother might
have been trying to protect the actual perpe-
trator of the crimes charged against the de-
fendant, where the defendant did not produce
any evidence reasonably tending to show that
another person committed the crimes. State v.
Gong, 115 Idaho 86, 764 P.2d 453 (Ct. App.
1988).
Where, in a prosecution for rape and lewd
and lascivious conduct with a minor, a physi-
cian did not suggest how, when or by whom a
bruise could have been caused, but simply
opined that a bruise observable one day would
likely be visible a few da}'s later, there was no
error in allowing the testimony. State v. Gong,
115 Idaho 86, 764 R2d 453 (Ct. App. 1988).
Where the only evidence of contact between
the victim and the defendant went to anal-
genital and oral-genital contacts and there
was no testimony regarding any other type of
touching, evidence in prosecution for lewd
conduct with minor or child under age of 16
did not support proposed instructions on
lesser included offenses of sexual abuse of
child under age of 16 and injury to children
with potential of great bodily harm, and bat-
tery. The statute pursuant to which defendant
was convicted and the jury instruction
(
18-
1508) specifically includes oral-genital con-
tact and anal-genital contact as lewd and
lascivious acts. State v. Fodge, 121 Idaho 192,
824 P.2d 123 (1992).
Where the trial court found that the state-
ments were reliable because the five-year-old
victim of lewd and lascivious conduct made
the statements the next morning after return-
ing from visiting her father and concluded
that the short length of time between the
victim's visit to her father and her bath the
next morning indicated that there was not
enough time for the victim to fabricate the
story, the totality of the circumstances sup-
ported the finding of the trial court and the
trial court did not abuse its discretion in
admitting this evidence pursuant to I.R.E.
803(24). State v. Zimmerman, 121 Idaho 971,
829 P.2d 861 (1992).
In a prosecution for lewd conduct with a
minor, the district court did not err in admit-
ting into evidence certain photographs and a
document entitled "And Then There Was
James," where the photographs, which de-
picted scantily clad young men and homosex-
ual acts, fell within the provision of the war-
rant providing for the search of "memorabilia
of victims including photos, clothing, or other
personal items," and where the document,
which was written in the first person and
regarded homosexual acts between the writer
and a person who had the "unworried look of
a 15-year-old," was properly seized pursuant
to the "memorabilia" and "diary" provisions of
the warrant. State v. Lewis, 123 Idaho 336,
848 P. 2d 394 (1993).
Where the only evidence introduced to es-
tablish that the charged crime occurred was
provided by the victim who described a singu-
lar act of genital-genital contact which this
section enumerates as lewd conduct and de-
fendant did not describe any other type of act,
but denied that any sexual touching had
occurred, the issue presented at trial was
whether lewd conduct occurred or whether it
did not. State v. Drennon, 126 Idaho 346, 883
P.2d 704 (Ct. App. 1994).
Corroborated testimony of witnesses relat-
ing conversations they had had with minor
victim's grandmother, where grandmother re-
lated that her boyfriend was "interested in"
and "after" the victim, was properly admitted
in the trials of the grandmother and her
boyfriend for conspiracy to commit lewd con-
duct with a minor, as such evidence was
highly probative and clearly relevant and the
probative value was not substantially out-
weighed by the -danger of unfair prejudice,
particularly since it did not describe any ad-
ditional sexual acts. State v. Tapia, 127 Idaho
249, 899 P.2d 959 (1995); State v. Castillo, 127
Idaho 257, 899 P.2d 967 (1995).
Child's Statement.
There was a sufficient evidentiary founda-
tion upon which the trial court could reason-
ably determine that child sex abuse victim's
out-of-court statement was an excited utter-
ance where child's description of the abuse
was given to a family friend within a few
hours of the alleged molestation when the
child was still likely to be emotionally dis-
tressed by the troubling event. State v. Stover,
126 Idaho 258, 881 P.2d 553 (Ct. App. 1994).
tion in admitting minor victim's testimony in
the trials of her grandmother and grandmoth-
er's boyfriend, convicted of conspiracy to com-
mit lewd conduct with a minor, concerning
two subsequent acts of sexual intercourse by
the boyfriend which occurred in the grand-
mother's house because, pursuant to subsec-
tion (b) of IRE 404, the testimony was highly
probative, explained the victim's delay in re-
porting, and clearly reflected a common
scheme or plan to use the grandmother's
influence over the victim to compel her ac-
tions, and, pursuant to 18-1701, it was
evidence of the conspiracy itself. State v.
Tapia, 127 Idaho 249, 899 P.2d 959 (1995);
State v. Castillo, 127 Idaho 257, 899 P.2d 967
(1995).
Expert Testimony.
Conviction was reversed and a new trial
ordered where the jury may have been
swayed toward its finding of guilt by the
inadmissible testimony of the victim's counse-
lors and the court was unable to conclude
beyond a reasonable doubt that the jury
would have found defendant guilty had the
opinions of the counselors been excluded.
State v. Konechny, 134 Idaho 410, 3 P.3d 535
(Ct. App. 2000).
Although professionals appeared to be well
qualified, the art or science of divining
whether a child who has made allegations of
sexual touching has in fact been abused called
for additional expertise that was not shown to
be possessed by these witnesses; therefore, on
the foundation presented, the district court
erred in finding these counselors qualified to
testify as to their diagnoses of sexual abuse.
State v. Konechny, 134 Idaho 410, 3 P.3d 535
(Ct. App. 2000).
Other Acts.
In prosecution for three counts of lewd
conduct with a minor, evidence in the form of
testimony of defendant's daughter and step-
daughter that defendant had committed other
acts of molestation was relevant to show gen-
eral plan to exploit and sexually abuse an
identifiable group of young female victims.
State v. Labelle, 126 Idaho 564, 887 P.2d 1071
(1994).
conduct with a minor, district court did not
err in holding that other acts of lewd conduct
with a minor were not so remote that their
weighed by the danger of unfair prejudice
where evidence of defendant's engaging in
lewd conduct beginning in 1977 showed a
continuous chain of such conduct by defen-
dant. State v. Labelle, 126 Idaho 564, 887 P.2d
1071 (1994).
Other Offense.
In trial for lewd and lascivious conduct with
a 14-year-old boy, defendant's misdeed with
victim's mother was not relevant to prove the
conduct committed with the son. State v.
Roach, 109 Idaho 973, 712 P.2d 674 (Ct. App.
1985).
Where the evidence against defendant con-
sisted of the explicit testimony of the victim,
both as to the charged crime and as to previ-
ous uncharged acts, and the victim and his
mother both testified to conversation which
disclosed defendant's involvement with the
boy and his plan to move into the house, and
all of this testimony was uncontroverted and
the defendant did not testify, evidence of
defendant's misdeed with the victim's mother,
although irrelevant and improperly admitted,
did not weaken defendant's defense, and the
other evidence, standing alone, was sufficient
for the jury to convict defendant and to pro-
duce moral certainty and belief in an unprej-
udiced mind that the result would have been
the same without the other crime evidence.
State v. Roach, 109 Idaho 973, 712 P.2d 674
(Ct. App. 1985).
Where defendant was tried for lewd con-
duct based on penile penetration, but acquit-
ted, then he was retried on a different charge,
which was comprised of different elements
and required different facts than the lewd
conduct charge, he failed to show that he was
retried on the lewd conduct offense. State v.
Colwell, 127 Idaho 854, 908 P2d 156 (Ct. App.
1995).
District court did not err in admitting evi-
dence of defendant's prior uncharged sexual
misconduct in his trial for lewd conduct with
a minor; there was sufficient similarities be-
tween the two incidents to demonstrate a
general plan by defendant to exploit and
sexually abuse minor females who were
friends of his children and visited his home so
that the evidence was relevant and probative
value was not substantially outweigh the
danger of unfair prejudice. State v. Hoots, 131
Idaho 592, 961 P.2d 1195 (1998).
Sufficient.
Evidence was sufficient to allow a jury to
infer that defendant intended to commit lewd
and lascivious conduct with a child under the
age of sixteen; defendant initiated at least
three online conversations with the "girl" in
which he expressed his desire for a sexual
relationship with her, made arrangements to
meet with her for a sexual encounter, and
arrived at the appointed time and place with
a box of condoms in his car. State v. Glass,
Idaho ,

P.3d , 2003 Ida. App. LEXIS
126 (Ct. App. Nov. 17, 2003).
Guilty Plea.
The fact that the defendant may not specif-
ically recall or admit to committing the act did
not foreclose him from voluntarily pleading
guilty since the defendant agreed that the
evidence made a strong factual case against
him, and where the record of the hearing in
which the defendant pleaded guilty to a lewd
and lascivious act with a minor child disclosed
that he freely and voluntarily pleaded guilty
with full knowledge of all the consequences,
the district court properly denied the defen-
dant's motion to withdraw the guilty plea
after the sentence was imposed. State v.
Harmon, 107 Idaho 73, 685 P.2d 814 (1984).
Where defendant in a lewd conduct and
sexual abuse of a minor case initially denied
the intent element of lewd conduct before the
court accepted his plea of guilty, and then
after a ten-minute recess, defendant admitted
to the intent alleged, the trial court did not
err in accepting defendant's guilty plea. State
v. Sabin, 120 Idaho 780, 820 P2d 375 (Ct. App.
1991).
Included Offenses.
minor child under 16, it was not error for trial
court to refuse to instruct the jury on crime of
fornication, for a child under 16 could not as a
matter of law give her consent and, therefore,
fornication could not be a necessarily included
offense of lewd conduct with a minor. State v.
Herr, 97 Idaho 783, 554 P.2d 961 (1976),
modified on other grounds, State v. Tribe, 123
Idaho 721, 852 P.2d 87 (1993).
minor child under 16 where the trial court, at
the request of the prosecution, instructed the
jury that statutory rape was a necessarily
included offense, no prejudice resulted to de-
fendant who was not convicted of statutory
rape but was convicted of lewd conduct with a
minor child. State v. Herr, 97 Idaho 783, 554
P.2d 961 (1976), modified on other grounds,
State v. Tribe, 123 Idaho 721, 852 P.2d 87
(1993).
The trial court did not err in failing to
instruct the jury that the offense of contribut-
ing to delinquency of a minor was a lesser
included offense of crime of lewd conduct with
minor child under 16, where defendant failed
to request such instruction. State v. Herr, 97
Idaho 783, 554 P.2d 961 (1976), modified on
other grounds, State v. Tribe, 123 Idaho 721,
852 P.2d 87 (1993).
Acts leading to statutory rape

sexual
intercourse with a female child

would
evince an intent necessary to invoke the lewd
conduct statute and, accordingly, lewd con-
duct is an included offense of statutory rape.
State v. Gilman, 105 Idaho 891, 673 P2d 1085
(Ct. App. 1983).
Violation of
18-1506 is a lesser included
offense when an individual is charged with
violation of this section. State v. O'Neill, 118
Idaho 244, 796 P2d 121 (1990).
Information.
Where counts I-III of the information stated
that the alleged offenses of lewd and lascivi-
ous conduct with a child under the age of 16
occurred "on or about the months between
June and September, 1976," counts IV and V
stated that the alleged offenses occurred "on
or about the months of May, 1976," and "of
June, 1976," respectively, and where defen-
dant never suggested any defense of alibi at
trial, all of the counts were set forth with
sufficient specificity to allow him to prepare
his defense and to protect him from double
jeopardy. State v. Roberts, 101 Idaho 199, 610
P.2d 558 (1980).
Since time is not a material ingredient in
the offense of lewd and lascivious conduct
with a minor, the information need only be
specific enough to enable the defendant to
prepare his defense and to protect him from
being subsequently prosecuted for the same
offense. State v. Roberts, 101 Idaho 199, 610
P2d 558 (1980).
If an offense is "included" in the crime
charged, a defendant may be fairly said to
have constructive notice of the alleged con-
duct comprising it and such notice is not
defeated by the fact that the included offense
may carry a heavy penalty; accordingly, infor-
mation charging statutory rape of a 12-year-
old girl furnished constructive notice to defen-
dant that he might be convicted of lewd
conduct as an included offense. State v.
Gilman, 105 Idaho 891, 673 P2d 1085 (Ct.
App. 1983).
Where court's instructions allowed jury to
find defendant not guilty of lewd conduct with
a minor, but guilty of sexual abuse of a minor
based upon proof of facts different from those
alleged in the information for the lewd con-
duct charge, case was vacated and remanded.
State v. Colwell, 124 Idaho 560, 861 P2d 1225
(Ct. App. 1993).
Because time is not a material element of
the offense of lewd and lascivious conduct
with a minor, because child abuse cases in-
volve evidence of a number of secretive of-
fenses over a period of time, and because an
information need nly be specific enough to
enable a defendant to prepare a defense,
apprise him of the statute violated and pro-
tect him from subsequent prosecution for the
same offense, the information charging defen-
dant with lewd and lascivious act or acts with
each of this two daughters between 1976 and
1979 at which time his daughters were mi-
nors was sufficiently specific as to time and
not flawed. State v. Coleman, 128 Idaho 466,
915 P2d 28 (Ct. App. 1996).
While the statute criminalizes "act or acts,"
this language does not allow for a continuing
course of conduct element; rather, the legisla-
ture's use of the plural is a recognition that a
series of sexual contacts by different means
which occur as a part of a single incident, a
continuous transaction without significant
breaks, are to be charged as a single count of
lewd conduct. Miller v. State, 135 Idaho 261,
16 P3d 937 (Ct. App. 2000).
Instruction.
It is not error for the trial court to refuse to
define the words "lewd and lascivious" in a
jury instruction, because the words are in
common use and they indicate with reason-
able certainty the kind and character of acts
and conduct that the legislature intended to
prohibit. State v. Greensweig, 102 Idaho 794,
641 P.2d 340 (Ct. App. 1982).
Where in a prosecution for lewd conduct
with a minor, the court refused the defen-
dant's requested instruction that the testi-
mony of the minor's older sister, regarding
sexual misconduct between her and the de-
fendant, needed to be corroborated, the court
did not err as it was for the jury to assign the
proper weight to corroborating evidence in
their deliberations. State v. Toothe, 103 Idaho
187, 646 P.2d 429 (Ct. App. 1982).
minor, where witnesses testified that defen-
dant was intoxicated on the day the incident
took place and expert testimony established
that he was an alcoholic who suffered from
irreversible defuse chronic brain disease, trial
court did not err in refusing to give defen-
dant's requested instruction on the conse-
quences of a verdict of not guilty by reason of
mental disease or defect. State v. Gratiot, 104
Idaho 782, 663 P2d 1084 (1983).
In prosecution for statutory rape, where lay
persons unfamiliar with the underlying stat-
utes reasonably might have interpreted the
repeated references to "lesser" offenses injury
instructions, as signifying that each of the
offenses listed, including lewd conduct, was
less serious than the crime charged and,
moreover, reasonable jurors

noting the
sequence of the offenses listed and judge's
statement that the crimes were different in
"degree"
well could have believed that lewd

conduct was the least serious of the "lesser"
crimes, the jury instruction erroneously char-
acterized the seriousness of lewd conduct in
relation to the crime charged and to other
included offenses. However, the error in the
instruction, relating to the seriousness of the
offense, did not alter the jury's choice of the
crime committed and, therefore, it was harm-
less beyond a reasonable doubt. State v.
Gilman, 105 Idaho 891, 673 P.2d 1085 (Ct.
App. 1983).
civious conduct with a minor, the defendant's
proposed instruction that the charge made
against the defendant was easily made, hard
to prove, and harder to defend against was
improper. State v. Gong, 115 Idaho 86, 764
P.2d 453 (Ct. App. 1988).
Judged as a whole, a jury instruction was
not erroneous when it directed jurors that
they could find defendant guilty of lewd con-
duct with a child if they were convinced
beyond a doubt that would make an ordinary
person hesitant to act in the important affairs
of life; reference at another point in the in-
struction to "willingness to act" rather than
"hesitancy to act" was likewise not reversible
error. State v. Kuhn,
Idaho , 85 P.3d 1109

(Ct. App. 2003).
Intent.
This section does not require actual arousal
of either the victim or perpetrator; all that is
necessary to be shown is the intent to arouse
either the victim or the perpetrator. State v.
App. 1982).
In a prosecution of defendant for lewd con-
duct with a minor under 16, the trial court did
not err when it allowed three girls to testify
regarding subsequent similar events involv-
ing the defendant since the evidence of the
subsequent similar acts was probative of
whether the requisite intent was present.
State v. Greensweig, 102 Idaho 794, 641 P. 2d
340 (Ct. App. 1982).
Gratiot, 104 Idaho 782, 663 P.2d 1084 (1983).
This section does not create a conclusive
presumption of specific intent which denies
due process of law. Schwartzmiller v. Gardner,
1984).
The state met its burden of proving the
intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of the
defendant, where the defendant admitted the
acts necessary to a finding of guilt. State v.
Bronson, 112 Idaho 367, 732 P2d 336 (Ct.
App. 1987).
Joinder of Counts of Conduct.
Three counts of lewd and lascivious conduct
with two 14-year-old boys were properly
joined where the facts demonstrated a com-
mon scheme or plan, in that the defendant
frequented areas where young boys could be
found, befriended boys with no father figure
in the home, enticed them from their homes,
lowered their natural inhibitions through the
use of drugs and alcohol, and committed sex
acts upon them. State v. Schwartzmiller, 107
Idaho 89, 685 P.2d 830 (1984).
Defendant suffered no actual prejudice as a
result of the denial of his motion to sever
because evidence regarding each separate
count would be admissible to prove another
count where such evidence is probative of a
general plan to exploit and sexually abuse an
identifiable group of young female victims.
State v. Longoria, 133 Idaho 819, 992 P.2d
1219 (Ct. App. 1999).
Judge's Comments.
Where the defendant was convicted for
committing lewd conduct with his daughter,
and the trial court record showed that he had
committed similar offenses between the time
he was a teenager and the age of 35, the
judge's passing reference to the tenets of
Christianity in sentencing defendant to con-
current ten year sentences on each of two
counts was, although questionable, not an
abuse of discretion since the sentence im-
posed was less than the maximum allowed.
State v. Reimer, 102 Idaho 299, 629 P. 2d 695
(1981).
Medical Testimony.
In a case involving the alleged sexual abuse
of children, nonexpert physician should not
have been permitted to offer an opinion on the
children's credibility, that is, he believed they
were telling the truth; in a jury trial, it is for
the jury to determine the credibility of a
witness, not another witness, and statements
by a witness as to whether another witness is
telling the truth are prohibited. State v.
Johnson, 119 Idaho 852, 810 P.2d 1138 (Ct.
App. 1991).
Physician not qualified as expert in a child
sexual abuse prosecution should not have
been permitted to offer an opinion based on
the histories provided by the children and the
mother, as the opinion was not based upon his
own perception but instead was based on
what others had related to him. State v.
Johnson, 119 Idaho 852, 810 P.2d 1138 (Ct.
App. 1991).
Physician should not have been allowed to
offer his opinion that certain children had
been sexually molested where (1) he had little
if any experience with child sexual abuse; (2)
the only information available to support his
opinion was gleaned from one visit with the
children in which he found no physical evi-
dence of molestation; and (3) he relied solely
on the histories provided by the children and
the mother that the children had been mo-
lested. State v. Johnson, 119 Idaho 852, 810
P.2d 1138 (Ct. App. 1991).
Physician's opinion that children had been
molested embraced an ultimate issue, and
although such testimony is allowed if it will
assist the trier of fact, the testimony in this
case would not assist the jury because the
physician was not qualified as an expert in
the area of child sexual abuse and it should
not have been admitted. State v. Johnson, 119
Idaho 852, 810 P2d 1138 (Ct. App. 1991).
Multiple Offenses.
Defendant committed multiple offenses
rather than one continuing offense over a
period of time where each incident was a
separate, distinct and independent crime,
rather than a part of a continuing course of
conduct without end. Miller v. State, 135
Idaho 261, 16 P.3d 937
#
(Ct. App. 2000).
Physical Examination.
conduct with a minor, denial of defendant's
motion for physical examination of victims
where no physical examination of any of three
victims was ever conducted was not error
since defendant did not represent any evi-
dence tending to show that an examination of
the three children two to three years after the
last alleged incident of abuse would have
produced relevant evidence; argument of de-
fendant that such examination would show
evidence of scarring and damage to the hy-
men if intercourse had occurred unsupported
by evidence was insufficient especially since
corroboration or refutation of penetration was
not dispositive since penetration was not an
element of the charged offense. State v.
Labelle, 126 Idaho 564, 887 P.2d 1071 (1994).
Prior Misconduct.
in denying defendant's motion in limine to
suppress evidence of alleged prior uncharged
sexual misconduct, where, applying the two-
tiered analysis of I.R.E. 404 used to deter-
mine admissibility of evidence concerning
other crimes, the evidence was (a) relevant to:
Demonstrating a common criminal plan,
showing defendant's motives or lustful dispo-
sition, indicating specific intent, and was rel-
evant to the issue of credibility and corrobo-
ration of the victim's testimony, and (b)
evidence was not too remote in time to be
probative or relevant, despite gaps of 11 and
three years prior to the present charged of-
fense, because the opportunity for defendant
to enact his plan or scheme of sexual abuse
allegedly occurred only when there was a
minor female present in his household and
she reached the appropriate age for defen-
dant's design. State v. Moore, 120 Idaho 743,
819 P2d 1143 (1991).
Charging defendant with lewd conduct with
a minor under sixteen years of age instead of
incest did not constitute an abuse of
prosecutorial discretion where the facts legit-
imately invoked both offenses. LaBarge v.
1989).
Prosecutor Comments.
Where the prosecutor made several refer-
ences to the defendant's failure to inform
anyone in law enforcement about the alleged
conspiracy of his neighbors to falsely accuse
him of improper conduct with their sons, the
prosecution violated the proscription against
alluding to a defendant's post-arrest silence;
however, the error was harmless because a
reasonable jury would not have been per-
suaded by the defendant's theory of conspir-
acy, even absent the prosecutor's comments.
State v. Gooding, 110 Idaho 856, 719 P. 2d 405
(Ct. App. 1986).
Psychological.
Evaluation.
The judge erred in a case involving lewd
conduct and sexual abuse of a minor by not
ordering a psychological evaluation as part of
the presentence investigation or through re-
tained jurisdiction, because, although a psy-
chological evaluation is not required in every
case where the court orders a presentence
investigation, in this case, defendant had a
solid work history, was a family man, and had
no prior criminal record. State v. Sabin, 120
Idaho 780, 820 P2d 375 (Ct. App. 1991).
Although defendant lacked a history of sex-
ual criminal behavior, he did have a history of
other criminal acts; further, though he denied
at trial that he committed a lewd and lasciv-
ious act, he apparently made contrary state-
ments while in counselling sessions after be-
ing convicted and showed no remorse for his
act, and acted in a way that led correction
employees to conclude that he did not think
his actions were wrong. A psychological eval-
uation would have added little to these obser-
vations, or the court's ability to weigh the
conclusions of correction employees against
its own observations and other evidence in
the record; therefore, the court did not err in
refusing to continue the sentencing hearing a
second time to allow for a psychological eval-
uation. State v. Puente-Gomez, 121 Idaho
702, 827 P.2d 715 (Ct. App. 1992).
Treatment.
A failure by the Board of Correction to
provide psychological treatment for convicted
pedophiles or other sexual offenders would
not render either the conviction or the sen-
tence unlawful. If treatment is legally re-
quired, as the United States District Court for
this state has held, and if the treatment is
nonexistent or is inadequate, then the proper
remedy is to mandate reasonably adequate
treatment. Hays v. State, 113 Idaho 736, 747
P.2d 758 (Ct. App. 1987), aff'd, 115 Idaho 315,
766 P.2d 785 (1988), overruled on other
grounds, State v. Guzman, 122 Idaho 981, 842
P.2d 660 (1992).
Sentence.
Sentence of life imprisonment for 15 year
old defendant did not show an abuse of dis-
cretion where the record showed that after
commission of offense the defendant dragged
his victim across rough ground and threw her
into a 25 foot icy gorge. State v. Reese, 98
Idaho 347, 563 P.2d 405 (1977).
lewdly and lasciviously having intercourse
with a female child 14 years of age (his own
daughter) was determined to be extreme on
appeal and an abuse of discretion on the part
of the trial judge arising out of passion and
prejudice, upon a review of the record, show-
ing defendant to be a person in need of psy-
chiatric treatment rather than imprisonment.
State v. Ledbetter, 83 Idaho 451, 364 P.2d 171
(1961).
A 15-year sentence is well within the limits
of the maximum sentence provided for by this
section. State v. Reese, 98 Idaho 347, 563 P.2d
405 (1977).
Where the trial judge, in reaching his sen-
tencing decision, considered the presentence
report and its attachments, the serious effects
that the crime would have on the child, the
defendant's character and rehabilitation pros-
pects, the appropriateness of probation, the
societal interest in the case, and arguments
by counsel, he did not abuse his discretion in
sentencing defendant convicted of lewd and
lascivious behavior with his nine-year-old
stepdaughter. State v. Clark, 102 Idaho 693,
638 P.2d 890 (1981).
Where the defendant was sentenced to an
indeterminate term not to exceed ten years
for lewd and lascivious conduct With a minor
under the age of 16, the court abused its
discretion by not giving proper consideration
to the defendant's alcoholic problem, his hon-
orable air force discharge, his support of his
children and the fact that it was defendant's
first felony and that he had no prior history of
sexual violations. State v. Nice, 103 Idaho 89,
645 P.2d 323 (1982).
Where the oral pronouncement of sentence
could be considered illegal because it imposed
two concurrent life sentences on defendant,
one on a lewd conduct charge and one for
being a persistent violator, the subsequent
written judgment of conviction showing that
only one life term had been imposed would be
deemed a correction of the sentence pursuant
to I.C.R. 35. State v. Greensweig, 102 Idaho
794, 641 P.2d 340 (Ct. App. 1982).
In prosecution of alcoholic defendant for
lewd conduct with a minor, sentence of 15
years was well within the statutory limit;
however, since it appeared that the trial court
did not give proper consideration to defen-
dant's alcoholic problem, the trial court was
directed to determine, under a Rule 35 mo-
tion, whether a reduction of the sentence was
in order. State v. Gratiot, 104 Idaho 782, 663
P.2d 1084 (1983).
Minimum sentence of 11 years and eight
months was not disproportionate to the
crimes of anal intercourse with a minor and
did not constitute cruel and unusual punish-
ment. Schwartzmiller v. Gardner, 567 F.
Supp. 1371 (D. Idaho 1983), modified on other
grounds, 752 F.2d 1341 (9th Cir. 1984).
tion in sentencing the defendant to an inde-
terminate 10-year sentence for lewd conduct
with a minor, where the presentence report
showed several prior convictions, both for
misdemeanors and for felonies, where the
report also indicated that the defendant had a
history of abusing minors sexually, and where
the sentence was substantially less than the
statutory maximum of life imprisonment.
State v. Ward, 106 Idaho 544, 681 P.2d 1019
(Ct. App. 1984).
An act by an adult male attempting to
sexually penetrate an eight year old female
child cannot be said to be nonviolent; moles-
tation of such a young child is inherently
coercive and akin to violence. Thus, the dis-
trict court did not abuse its discretion in
imposing a 15 year indeterminate prison term
even though it was the defendant's first of-
fense. State v. Harmon, 107 Idaho 73, 685
P.2d 814 (1984).
The trial court did not err in sentencing
defendant to a fixed term of 15 years rather
than an indeterminate sentence upon connec-
tion of two counts of lewd conduct with a
minor under 16, considering the defendant's
prior conduct with minor girls, his psychiatric
prognosis, and his prior felony record. State v.
Lawrence, 107 Idaho 867, 693 P.2d 1069 (Ct.
App. 1984).
Two concurrent and indeterminate 25-year
sentences for lewd conduct were not excessive
in view of the length of time the misconduct
had gone on, the use of force and violence
upon the victim, the threats of violence to her,
the depravity of the acts performed and the
serious alcohol and drug abuse problems that
were demonstrated. State v. Glandon, 109
Idaho 755, 710 R2d 665 (Ct. App. 1985).
Where sexual molestation of a six-year-old
girl occurred during a period of approximately
seven months, defendant apparently threat-
ened to harm the child if she told her mother
of his conduct, defendant had a record of
criminal activity ranging from vagrancy and
burglary to a prior conviction for lewd con-
duct, and a psychological evaluation resulted
in a diagnosis that defendant was a pedophile
who had no internal conflict about taking
advantage of children, the imposition of a
fixed term sentence of 20 years was reason-
able in order to protect society. State v.
Rutherford, 109 Idaho 1016, 712 P.2d 717 (Ct.
App. 1985).
Where the defendant, who was mentally ill,
was sentenced to a 15-year indeterminate
sentence, his sentence was well within the
statutory maximum, the judge applied the
criteria provided by
19-2523 for situations
where the mental condition of a defendant is a
significant factor in sentencing, and the judge
also specifically made the findings required by
subsection (2) of
19-2523 that allowed him
to authorize continued medical treatment for
the defendant; therefore the district court did
not abuse its discretion. State v. Desjarlais,
110 Idaho 100, 714 P.2d 69 (Ct. App. 1986).
Where the defendant had been a successful
businessman, had served in the military, and
had no prior criminal record, the violations
were committed within a fairly short period of
time, and he suffered from emotional and
psychological problems, the district court did
not abuse its discretion in sentencing him to
consecutive indeterminate terms of 20 and 10
years for two counts of lewd and lascivious
conduct with children under sixteen years of
age in order to protect the public and provide
rehabilitation. State v. Freeman, 110 Idaho
117, 714 P.2d 86 (Ct. App. 1986).
Where, for at least seven years, the defen-
dant engaged in virtually every imaginable
form of sexual activity with his minor daugh-
ter before she reached the age of 12, and these
activities were not terminated voluntarily by
the defendant nor had he ever sought coun-
seling, medical, or psychological help for his
pedophilia, the trial court did not abuse its
discretion in sentencing him to an indetermi-
nate life sentence. State v. Van Newkirk, 110
Idaho 581, 716 P.2d 1353 (Ct. App. 1986).
Where the court reviewed possible pro-
grams available to both offenders and victims
involved in sexual abuse, reflected on the
rehabilitation and probation plan proposed by
the defendant to start a new life with a
woman the defendant had recently become
acquainted with and her two minor daugh-
ters, and reviewed the nature and extent of
the defendant's sexual involvement with his
own daughter, the court did not fail to take
into account all "of the objectives of criminal
punishment in sentencing the defendant to an
indeterminate life sentence. State v. Van
Newkirk, 110 Idaho 581, 716 P.2d 1353 (Ct.
App. 1986).
in sentencing the defendant to an indetermi-
nate life sentence for masturbating two 11-
year-old boys, where his presentence report
showed he was previously convicted of en-
couraging violation of the Youth Rehabilita-
tion Act (now Juvenile Corrections Act,
20-
501 et seq.), driving while under the
influence, and two counts of the infamous
crime against nature, and he had been dis-
charged from this state's penitentiary after
serving a sentence for the infamous crime
against nature approximately ten months be-
fore the offenses in the present case were
committed. State v. Gooding, 110 Idaho 856,
719 P.2d 405 (Ct. App. 1986).
25-year sentence for second-degree kidnap-
An indeterminate life sentence with parole
eligibility for the crime of lewd and lascivious
conduct with a minor under former
18-6607
(amended and redesignated as this section)
was not disproportionate and unconstitu-
tional. Hays v. State, 113 Idaho 736, 747 P2d
758 (Ct. App. 1987), aff'd, 115 Idaho 315, 766
P.2d 785 (1988), overruled on other grounds,
State v. Guzman, 122 Idaho 981, 842 P.2d 660
(1992).
imposing a ten-year sentence with a three-
year minimum period of confinement on a
defendant convicted of lewd conduct with her
minor daughter, where the maximum penalty
defendant could have received was life im-
prisonment and notwithstanding the fact that
the defendant lacked a serious criminal his-
tory and was a victim of both physical and
mental handicaps. State v. Arnold, 115 Idaho
736, 769 P.2d 613 (Ct. App. 1989).
District court did not abuse its sentencing
discretion by imposing a 15-year prison term
with a five-year minimum period of confine-
ment for a defendant convicted of lewd con-
duct with his 11-year-old stepdaughter where
defendant denied the full history of his sexual
contacts with the victim, despite substantial
evidence to the contrary, and where the judge
expressed that the case was one of the most
aggravated cases he had ever seen. State v.
Beamis, 115 Idaho 735, 769 P.2d 612 (Ct. App.
1989).
An order revoking probation and reinstat-
ing a five-year indeterminate sentence for a
defendant convicted of lewd conduct with a
minor was proper after defendant violated his
probation by being convicted of a misde-
meanor charge of lewdness in another state.
State v. Kerr, 115 Idaho 725, 769 P.2d 602 (Ct.
App. 1989).
Only if a sequence of events is established
that separates acts of lewd conduct from those
of rape may a defendant be sentenced sepa-
rately for lewd conduct. State v. Bingham, 116
Idaho 415, 776 P.2d 424 (1989).
The court did not abuse its discretion by
imposing an indeterminate sixteen-year sen-
tence on a defendant who pled guilty to lewd
conduct with a child under 16, where it was
apparent from the record that the court fo-
cused upon the defendant's mental impair-
ment, his condition and whether he posed a
risk to society; in sentencing, the court em-
phasized defendant's refusal to admit his in-
volvement in the offense. State v. Whitehawk,
116 Idaho 827, 780 P.2d 149 (Ct. App. 1989),
aff'd, 117 Idaho 1022, 793 P.2d 695 (1990).
A sentence of 15 years with a five-year
minimum period of confinement was reason-
able where: defendant was convicted of lewd
conduct with a minor; the lewd conduct con-
sisted of manual and oral contact with the
genitals of his six-year old stepdaughter; he
failed to cooperate with evaluators attempt-
ing to determine his propensity to commit
future sex offenses; defendant had a prior
felony record, including a forgery and two
controlled substance offenses, and he had a
long record of alcohol and drug abuse. State v.
Snelson, 117 Idaho 427, 788 P2d 242 (Ct. App.
1990).
Notwithstanding the dilemma posed where
little rehabilitation allegedly is available in
the penitentiary in which defendant is con-
fined, and where
20-223 places stringent
requirements for defendant's possible release
on parole, two-year minimum periods of con-
finement with regard to convictions on two
counts of lewd conduct with a minor were
reasonable sanctions for the crimes commit-
ted, and the aggregate 15-year maximum
terms were reasonable outside limits of cus-
tody if defendant fails to demonstrate that he
can be returned safely to the community at an
earlier time. State v. Smith, 117 Idaho 657,
791 P.2d 38 (Ct. App. 1990).
nor an abuse of discretion even though the
(Ct. App. 1990).
Where defendant was convicted of lewd
conduct with a minor, and was sentenced to
12 years in prison with a minimum period of
confinement of four years; where the district
court had before it the pre-sentence investi-
gation report which indicated that defendant
did not have a prior criminal record, but also
that he was unwilling to admit to or accept
responsibility for his actions; and where the
court showed concern about protecting society
from a man who was unwilling to accept
responsibility for molesting a child, and also
properly considered the sentencing goal of
rehabilitation, the appellate court was unable
to discern any abuse of discretion by the trial
court. State v. Ortiz-Valencia, 118 Idaho 850,
801 P2d 57 (Ct. App. 1990).
Where 21-year-old defendant who was con-
victed of two charges of lewd conduct with a
minor, and one charge of sexually abusing a
child under the age of 16, had a troubled past
as evidenced by (1) the fact that at an early
age he was exposed to alcohol and drugs in an
unstable family, (2) his admission to having a
drinking problem, which sometimes resulted
in violent behavior, (3) prior charges which
included petit larceny, sodomy, and assault,
(4) prior unsuccessful sentences of probation
and (5) the fact that he had been given several
opportunities to attend treatment facilities
and all attempts to rehabilitate him had been
unsuccessful, sentences of a fixed term of 20
years, plus an indeterminate term of 10 years
on each of two charges of lewd conduct with a
minor and in addition, a fixed term of ten
years plus an indeterminate term of five years
for one charge of sexually abusing a child
under the age of 16 were reasonable. State v.
Waddoups, 119 Idaho 363, 806 P.2d 456 (Ct.
App. 1991).
The imposition of a ten-year fixed term and
an additional ten-year indeterminate term for
a conviction of lewd conduct with a minor was
not an abuse of discretion. State v. Powell, 120
Idaho 707, 819 P.2d 561 (1991).
A unified sentence of ten years in the cus-
tody of the Board of Corrections with a mini-
mum period of confinement of 30 months for
lewd conduct with a child under the age of 16,
was not unreasonable, where defendant pled
guilty to a charge that he had engaged in
sexual activity with his daughter, age 15, and
had been molesting her including sexual in-
tercourse, since she was seven years old.
State v. Nelson, 121 Idaho 141, 823 P.2d 175
(Ct. App. 1991).
One can receive a maximum penalty of life
imprisonment pleading guilty to one count of
lewd conduct with a minor under the age of
16. State v. Browning, 121 Idaho 239, 824 R2d
170 (Ct. App. 1992).
Where defendant did not have an extensive
prior criminal record, but had engaged in
sexual abuse of his daughter over a long
period of time, a sentence of 15 years' impris-
onment with a four-year minimum period of
confinement was not an abuse of discretion
and sentence was reasonable. State v.
Kingston, 121 Idaho 879, 828 P.2d 908 (Ct.
App. 1992).
A unified sentence of ten years in the cus-
tody of the Board of Correction with a mini-
mum period of confinement of five years for
lewd conduct with a minor under the age of 16
was reasonable where defendant was charged
with four counts of lewd conduct with a minor,
allegedly occurring over a five-month period,
and involving two of his nieces between the
ages of eight and ten years old and pursuant
to a plea bargain, the State agreed to dismiss
three of the counts in exchange for defen-
dant's plea of guilty to the remaining count.
State v. Rosa, 121 Idaho 982, 829 P.2d 872 (Ct.
App. 1992).
Where defendant indicated that if the op-
portunity arose again to become involved with
a teenage girl, defendant would feel no com-
punction about pursuing such an activity and,
in the future, his aggressive nature might
result in a crime of greater violence, and
defendant had a history of other criminal
acts, a sentence of seven years determinate
followed by an additional indeterminate
seven year period, for lewd and lascivious
conduct with a minor under the age of sixteen,
was not an abuse of discretion. State v.
Puente-Gomez, 121 Idaho 702, 827 P.2d 715
(Ct. App. 1992).
Defendant's sentences of a three year min-
imum period of confinement for lewd conduct
with a minor child, and of three years mini-
mum confinement for first-degree burglary, to
be served concurrently, were not an abuse of
discretion; defendant was on probation for
grand theft and forgery convictions and
presentence investigation revealed prior lewd
and lascivious conduct with children. State v.
Harris, 122 Idaho 216, 832 P.2d 1151 (Ct. App.
1992).
A sentence of a 20-year minimum period of
confinement for conviction of lewd conduct
with a child under 16, and of a determinate
period of 15 years without parole on each of
three counts of burglary, was not excessive;
psychologist opined that defendant's progno-
sis for establishing and maintaining non-of-
fending behavior was poor, defendant admit-
ted to previous conduct for sexual
gratification, and his prior record included
arrests for possession of controlled sub-
stances, probation violation, resisting arrest,
driving while under the influence, numerous
traffic violations, indecent exposure and pub-
lic nuisance. State v. Taylor, 122 Idaho 218,
832 P.2d 1153 (Ct. App. 1992).
The district court commented at hearing on
motion to reduce defendant's sentence for
lewd conduct with a minor that defendant
had made inconsistent statements concerning
his guilt before and after sentencing and that
the time for defendant to express remorse and
exhibit a suitability for treatment should
have been between the time of the guilty
verdict and sentencing. In determining not to
grant leniency, the district court emphasized
that any lesser sentence would depreciate the
seriousness of the crime, the need to deter
others, and that society must be protected
from a person who was not amenable to
treatment at the time of sentencing. State v.
Fullerton, 122 Idaho 319, 834 P.2d 321 (Ct.
App. 1992).
tody of the Board of Correction, with a mini-
mum period of confinement of five years for
lewd conduct with a minor was not unreason-
able, where defendant had previously been
convicted on one count of assault, one count of
malicious injury to property, had had his
driving privileges suspended and had used
marijuana and cocaine although he had not
had other sexual incidents with minors. State
v. Fullerton, 122 Idaho 319, 834 P.2d 321 (Ct.
App. 1992).
Where defendant had a history of previous
convictions for lewd conduct with minors and
had violated probation on other occasions,
although counseling would not be available in
custody the district judge's ruling was consis-
tent with the often cited primary sentencing
goal of protection of society; the district judge
had sufficient information to decide that pro-
bation was not working and that continued
probationary status would endanger the pub-
lic, particularly young boys. State v. Beckett,
122 Idaho 324, 834 P.2d 326 (Ct. App. 1992).
in imposing a 15-year to life sentence for
conviction of lewd conduct with a minor, and a
concurrent indeterminate sentence of 20
years for another conviction of lewd conduct
with a minor where defendant had a long
history of homosexual pedophilia and defen-
dant denied he had a sexual abuse problem.
State v. Wavrick, 123 Idaho 83, 844 P.2d 712
(Ct. App. 1992).
Where the sentencing judge properly con-
sidered the sentencing criteria and expressed
a well-founded concern regarding the need to
protect society from defendant's pedophilic
tendencies, the sentences imposed on defen-
dant for two counts of lewd conduct with a
child under the age of sixteen were not unrea-
sonable. State v. Fluery, 123 Idaho 9, 843 P.2d
159 (Ct. App. 1992).
tion by sentencing defendant to a fixed term
of life in prison where the record revealed that
defendant had previously been convicted for a
sexual offense against a minor, where defen-
dant was HIV-positive at the time of the acts
for which he was convicted, and where there
was sexual misconduct between defendant
and minors during the sentencing proceed-
ings. State v. Lewis, 123 Idaho 336, 848 P.2d
394 (1993).
A unified twenty-five years to life sentence
imposed for a guilty plea to lewd and lascivi-
ous conduct with a minor was not excessive
where the nature of the offense was very
significant and severe and where defendant
had a severe and long-standing pattern of
sexual contact with his minor daughters.
State v. Reed, 123 Idaho 860, 853 P.2d 605 (Ct.
App. 1993).
The judgments of conviction for two counts
of rape and one count of lewd conduct with a
minor, including the imposition of three con-
current life sentences with a mandatory pe-
riod of fifteen years' incarceration was not
unreasonable where defendant, a forty-one
year old teacher, pled guilty to having sexual
intercourse with three female students, all of
whom became pregnant. State v. Campbell,
123 Idaho 922, 854 P.2d 265 (Ct. App. 1993).
Where defendant pled guilty to lewd con-
duct with a minor under sixteen, sentence of
an indeterminate life term, with a ten-year
period of minimum confinement, was not an
abuse of discretion. State v. Koho, 124 Idaho
194, 858 P.2d 334 (Ct. App. 1993).
In light of a psychological assessment that
defendant represented a risk to minor chil-
dren with whom he had unsupervised contact
and had an extremely high risk of
reoffending, as well as defendant's history of
sexual misconduct, defendant's sentence of
minimum term of incarceration of ten years,
to be followed by an indeterminate term of
thirty years, was not excessive. State v. Law,
124 Idaho 288, 858 P2d 827 (Ct. App. 1993).
Sentence of fixed term of five years, fol-
lowed by an indeterminate term of fifteen
years for lewd conduct with a minor was not
excessive, where defendant had a history of
mental problems and had previously been
convicted of making obscene phone calls.
State v. Adams, 124 Idaho 372, 859 P.2d 970
(Ct. App. 1993).
Where defendant's sentence of four years to
life was within the range provided by this
section, review by the Court of Appeals was
limited to determining whether a four-year
minimum confinement period represented as
abuse of discretion. State v. Drennon, 126
Idaho 346, 883 P.2d 704 (Ct. App. 1994).
Sentencing a defendant convicted of three
counts of lewd conduct with a minor to three
concurrent indeterminate sentences of twenty
years with a fixed ten-year sentence under
the Unified Sentencing Act was not an abuse
of discretion because defendant had no prior
felony conviction, had good employment his-
tory, the fact that the offenses for which he
was convicted did not involve violence, and
the availability of probation with comprehen-
sive terms as an alternative sentence, al-
though evidence was presented showing that
defendant had previously molested both his
daughter and step-daughter and a psycholog-
ical evaluation of defendant prepared as part
of the pre-sentence investigation concluded
that he was at risk to offend again. State v.
Labelle, 126 Idaho 564, 887 P.2d 1071 (1994).
Where defendant argued that the minimum
period of confinement under
19-2513 for his
conviction for lewd conduct with a minor of
less than sixteen years of age under this
section was an abuse of discretion, he must
establish his claim that it was an abuse of
discretion in light of any reasonable view of
the facts. State v. Bjorklund, 126 Idaho 656,
889 P.2d 90 (Ct. App. 1994).
The unified twenty-year sentence, with five
years as a minimum period of confinement,
for father convicted of lewd conduct with a
minor, who was his adopted child, was within
the limit provided by this section and was not
illegal. State v. Viehweg, 127 Idaho 87, 896
P.2d 995 (Ct. App. 1995).
Determinate life sentence imposed upon
defendant for guilty plea to one count of lewd
and lascivious conduct with a minor under
the age of 16 was not excessive nor an abuse
of discretion when the facts revealed a very
tragic scenario of defendant's long-term sex-
ual molestation of his 14-year-old daughter
and several aggravating factors, including the
finding that he would likely re-offend and
possibly kill his daughter. State v. Hibbert,
127 Idaho 277, 899 P.2d 987 (Ct. App. 1995).
Where a father was convicted of holding
down his six-year old daughter, taping her
mouth shut and raping her on several occa-
sions without showing any remorse for his
actions, his unified life sentence, with 20-
years' fixed, was not out of all proportion to
the gravity of the offense committed, nor was
the sentence so severe as to shock the con-
science of reasonable people. State, v. Coffelt,
127 Idaho 439, 901 P.2d 1340 (Ct. App. 1995).
Where charges were filed as a result of
defendant's sexual abuse of his nephew and
niece and the abuse of the nine-year-old
nephew included oral and anal sex over some
period of time while the 14-year-old niece
stated that she had been abused on approxi-
mately 30 occasions by defendant, and that at
times she was paid money by defendant for
acts of oral sex and vaginal and anal inter-
course, sentence of a unified term of 29 years
with 9 years fixed was not unreasonable un-
der any view of the facts. Chouinard v. State,
127 Idaho 836, 907 R2d 813 (Ct. App. 1995).
Upon review of the record of the proceed-
ings in which defendant was convicted of
performing lewd conduct on a minor, the court
determined that defendant's two concurrent
unified sentences of 10 years with three-year
minimum terms of confinement served to pro-
tect society and to achieve any or all of the
related goals of deterrence, rehabilitation,
and retribution and did not constitute an
abuse of discretion. State v. Valverde, 128
Idaho 237, 912 P.2d 124 (Ct. App. 1996).
Unified life sentence with a minimum term
of ten years' confinement for lewd and lasciv-
ious conduct with a minor conviction and a
determinate sentence of five years for sexual
abuse of a minor conviction were not unrea-
sonable and were affirmed where evidence
showed an undue risk that defendant would
commit other, similar crimes and lesser sen-
tences would depreciate the seriousness of the
crimes. State v. Roberts, 129 Idaho 325, 924
P.2d 226 (Ct. App. 1995). See also State v.
Roberts, 129 Idaho 194, 923 P.2d 439 (1996),
L. Ed. 2d 849 (1997).
In prosecution for two counts of lewd con-
duct with a minor under 16, a sentence to a
fixed term of life in prison without a retained
jurisdiction period was excessive, where de-
fendant who had a prior conviction for similar
behavior admitted that he had molested his
stepdaughters, since the behavior involved
did not involve penetration of any type, nor
were there any allegations of force, where
counseling that defendant underwent after
prior conviction was not part of a recognized
sex-offender treatment program, where he
has indicated that he wished to undergo
treatment and will cooperate in every way
necessary, and where he took full responsibil-
ity for his conduct and did not blame the
victims in anyway and has abstained from
drugs and alcohol and has worked fairly
steadily throughout his adult life. State v.
Jackson, 130 Idaho 293, 939 P.2d 1372 (1997).
Where the district court's comments ad-
dressed whether the defendant would be ame-
nable to rehabilitation in light of his contin-
ued denial of guilt, and where the court
considered the protection of society when it
stated the defendant posed a threat, the de-
fendant failed to demonstrate that his sen-
tence was the result of vindictive or punitive
actions by the court to punish his exercise of
his right to trial. State v. Murphy, 133 Idaho
489, 988 P.2d 715 (Ct. App. 1999).
defendant's offenses and his character and
history presented at the sentencing hearing,
the trial court did not abuse its discretion by
concluding that a three-year fixed term of
incarceration was necessary for the protection
of society. State v. Longoria, 133 Idaho 819,
992 P.2d 1219 (Ct. App. 1999).
Addressing Child Victim.

The trial court did not commit error by
addressing a child abuse victim by her first
name where counsel for defendant used the
victim's first name throughout the proceed-
ings, as did the state. State v. Larsen, 123
Idaho 456, 849 P.2d 129 (Ct. App. 1993).
Where defendant did not deny that he in-
tended to engage in sexual relations with a
minor girl for the purpose of gratifying his
sexual desires, which would have amounted
to a crime in violation of 18-1508, or that
his actions went beyond mere preparation,
the evidence was sufficient to support his
conviction for attempted lewd conduct with a
minor under 16 years of age; and the statute
provided no exception for one who intended to
commit a crime but failed because he was
unaware of some fact that would have pre-
vented him from completing the intended
crime, such as the fact that a police officer was
impersonating the teenage girl the defendant
thought he was chatting with online; there-
fore, it had eliminated impossibility as a de-
fense to attempt. State v. Curtiss, 138 Idaho
466, 65 P.3d 207 (Ct. App. 2002).
Analysis
Chastity of victim.
Competency as witness.
Constitutionality.
Construction.
Corroboration.
Effect on unemployment compensation.
Evidence.
Information.
Instruction.
Intent.
Right to counsel.
Sentence.
Testimony of spouses.
Chastity of Victim.
In a lewd or lascivious conduct case, the
victim's lack of chastity is not a ground for
impeachment. State v. Hall, 95 Idaho 110, 504
P.2d 383 (1972).
Competency as Witness.
of lewd and lascivious acts on daughter the
latter though only 12 years of age at the time
of trial was competent to testify where on voir
dire it was disclosed that she was capable of
receiving just impressions and relating them
truly to the jury. State v. Madrid, 74 Idaho
200, 259 P.2d 1044 (1953).
Constitutionality.
Use of terms "lewd" and "lascivious" did not
violate Const., Art.
1, 13, since acts thus
denned were further limited by the specific
intent required under former law regarding
lewd and lascivious conduct with a minor.
State v. Evans, 73 Idaho 50, 245 P.2d 788
(1952).
Construction.
Provision inflicting punishment of "a term
of not more than life" for wilful and lewd or
lascivious acts upon the body of a child under
the age of 16 though cruel and unusual pun-
ishment would be construed as permitting the
trial court to fix a maximum sentence of less
than life under the Indeterminate Sentence
Act,
19-2513. State v. Evans, 73 Idaho 50,
245 P.2d 788 (1952).
Use of terms "lewd" and "lascivious" in
defining acts punishable under former law did
not render language uncertain, since terms
used are words in common use understand-
able to a person of ordinary understanding.
State v. Evans, 73 Idaho 50, 245 P. 2d 788
(1952).
Corroboration.
The prosecutrix was only 10 years of age
and her character or reputation for truth and
chastity was in no respect impeached nor was
her testimony contradictory or inconsistent
with any admitted facts of the case; therefore,
her testimony might be corroborated by direct
evidence or evidence of surrounding circum-
stances. State v. Tope, 86 Idaho 462, 387 P2d
888 (1963).
In prosecution under former law regarding
law and lascivious conduct with a minor the
testimony of the prosecuting witness had to
be corroborated, either by direct evidence or
evidence of surrounding circumstances. State
v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953);
State v. Hall, 95 Idaho 110, 504 P2d 383
(1972).
There was corroboration of the testimony of
complaining witness both as to the commis-
sion of a lewd and lascivious act upon a minor
child under 16 but also as to the fact that it
was the defendant who had performed the
act. State v. Tope, 86 Idaho 462, 387 P.2d 888
(1963).
In prosecution for lewd or lascivious con-
duct, a prosecuting witness' testimony in re-
gard to lewd or lascivious acts performed
upon another prosecuting witness is entitled
to the same corroborative effect given to the
testimony of any other eyewitness. State v.
Hall, 95 Idaho 110, 504 P.2d 383 (1972).
In prosecution for lewd or lascivious con-
duct with a child under the age of 16 years,
testimony of accomplice may corroborate that
of the victim's testimony. State v. Hall, 95
Idaho 110, 504 P.2d 383 (1972).
of lewd and lascivious acts on 11 year old
daughter, trial court did not abuse its discre-
tion in refusing to exclude daughter and her
mother for crying while 14 year old son was
testifying on stand. State v. Madrid, 74 Idaho
200, 259 P.2d 1044 (1953).
Refusal of bail pending appeal of one con-
victed of lewd conduct with minor under 16
and sentenced for life as not an abuse of
discretion though defendant desired to un-
dergo treatment for mental condition. State v.
Iverson, 76 Idaho 117, 278 P.2d 205 (1954).
Effect on Unemployment Compensation.
An employee discharged from the postal
service because of conviction of violation of
former law regarding lewd and lascivious
conduct with a minor was "discharged for
misconduct in connection with his employ-
ment" within the meaning of
72-1366 of the
Employment Security Law, as an employer
has the right to expect his employees to re-
frain from acts which would bring dishonor on
the business name or the institution. O'Neal
v. Employment Sec. Agency, 89 Idaho 313, 404
P2d 600 (1965).
Evidence.
Evidence justified conviction of defendant,
age 15, of acts of lewd and lascivious conduct
on body of 13 year old girl, where the record
showed that the defendant seized girl, choked
her into unconsciousness, removed her cloth-
ing, and took indecent liberties with her, as
against his contention that he was only moti-
vated by curiosity to see her in the nude.
State v. Iverson, 77 Idaho 103, 289 P.2d 603
(1955).
Typewritten statement of prosecutrix made
out of the presence or hearing of defendant
was hearsay and inadmissible, and defen-
dant, by cross-examining as to the statement
did not waive his objection to its use, however
instruction of the court that jury should dis-
regard all references to the statement was
sufficient to cure any error. State v.
McConville, 82 Idaho 47, 349 P.2d 114 (1960).
Testimony of eye-witness to the crime, with
other evidence, was sufficient to support a
verdict of guilty when alleged newly discov-
ered evidence went only to the credibility of
the prosecutrix who in direct examination
gave only one answer directly tending to in-
criminate the defendant. State v. McConville,
82 Idaho 47, 349 P.2d 114 (1960).
Information.
Information which charged defendant with
committing a wilful and lewd act on the body
of a minor child under 16 with the intent of
arousing passion, setting forth the specific act
complained of, sufficiently alleged a crime
against nature. State v. Wall, 73 Idaho 142,
248 R2d 222 (1952).
In information, which charged defendant
with committing lewd and lascivious acts
committed on female under the age of 16 with
the intent of arousing, appealing to and grat-
ifying the lusts and passions of sexual desires
of said defendant and of said minor, and
which added "with the intent and purpose of
having sexual intercourse with the said minor
child," the last sentence was surplusage, since
state intended to charge defendant with lewd
and lascivious conduct. State v. Petty, 73
Idaho 136, 248 P.2d 218, appeal dismissed,
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1953).
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1953).
Information which charged commission of
offense in substantially the same wording as
used in former law regarding lewd lascivious
conduct with a minor child was sufficient.
State v. Johnson, 74 Idaho 269, 261 P. 2d 638
(1953).
The information should reflect the name of
the prosecutrix as such data is an essential
part of the charge against the defendant for
the crime of lewd and lascivious conduct.
State v. Thurlow, 85 Idaho 96, 375 P.2d 996
(1962).
Instruction.
In prosecution involving 11-year-old girl it
was error but not reversible error to instruct
jury that it was not necessary to touch the
skin of the victim where there was no evi-
dence in the record to which the instruction
could be applied. State v. Madrid, 74 Idaho
200, 259 P2d 1044 (1953).
Intent.
An intent to injure the victim was not
required by former law regarding lewd and
lascivious conduct with a minor child. State v.
Johnson, 74 Idaho 269, 261 P.2d 638 (1953).
While intent is an element of this crime, it
may be shown by the defendant's acts and the
surrounding circumstances. State v. Ross, 92
Idaho 709, 449 P.2d 369 (1968), overruled on
other grounds, State v. Hall, 95 Idaho 110, 504
P2d 383 (1972).
Right to Counsel.
It is incumbent upon the court upon an
arraignment for an offense such as lewd and
lascivious conduct to ascertain if the defen-
dant is financially capable of hiring counsel
and to advise the defendant in order that he
may intelligently respond to the court's inter-
rogation upon this subject. Unless informed of
these statutory rights it is conceivable that
defendant would not know if their existence
and his inability to employ counsel would
operate to deny him the opportunity to assert
defenses to the., charge in violation of his
rights of due process. State v. Thurlow, 85
Idaho 96, 375 P2d 996 (1962).
Where certain factors exist which may ren-
der state criminal proceedings without coun-
sel so apt to result in injustice as
-
to be
fundamentally unfair, the constitution re-
quires the accused must have legal assistance
at his trial, such factors being the age and
education of the defendant, the conduct of the
court, the complicated nature of the offense
charged and the possible defenses thereto.
State v. Thurlow, 85 Idaho 96, 375 P2d 996
(1962).
Sentence.
Sentence of life imprisonment for 15-year-
old defendant did not show an abuse of dis-
cretion where the record showed that after
commission of offense the defendant dragged
his victim across rough ground and threw her
into a 25 foot icy gorge. State v. Iverson, 77
Idaho 103, 289 P.2d 603 (1955).
State v. Ledbetter, 83 Idaho 451, 364 P. 2d 171
(1961).
Testimony of Spouses.
Objection to testimony of defendant's wife
in a prosecution under former law regarding
lewd and lascivious conduct with a minor
child was properly sustained. State v.
McGonigal, 89 Idaho 177, 403 P.2d 745 (1965).
The former law regarding lewd and lasciv-
ious conduct with a minor did not violate the
equal protection clause of the 14th Amend-
ment of the Federal Constitution on the
ground that punishment "for a term of not
more than life" was imposed, whereas a term
of only 14 years or less was inflicted for
assault with intent to commit rape in
18-
907, since acts enumerated in the former
section were not necessarily the same as
those described in
18-907. State v. Evans,
73 Idaho 50, 245 P.2d 788 (1952).
Defendant's assertion that the section un-
der which he was proceeded against was Collateral References. Assault with in-
unconstitutional was disregarded, its consti- tent to commit unnatural sex act upon minor
tutionality having been previously upheld in
as affected by latter's consent. 65 A.L.R.2d
State v. Evans, 73 Idaho 50, 245 P.2d 788
748.
(1952). State v. Thurlow, 85 Idaho 96, 375 P.2d
996 (1963).
18-1508A. Sexual battery of a minor child sixteen or seventeen
years of age
Penalty.
(1) It is a felony for any person at least five (5)

years of age older than a minor child who is sixteen (16) or seventeen (17)
years of age, who, with the intent of arousing, appealing to or gratifying the
lust, passion, or sexual desires of such person, minor child, or third party, to:
(a) Commit any lewd or lascivious act or acts upon or with the body or any
part or any member thereof of such minor child including, but not limited
to, genital-genital contact, oral-genital contact, anal-genital contact, oral-
anal contact, manual-anal contact or manual-genital contact, whether
between persons of the same or opposite sex, or who shall involve such
minor child in any act of explicit sexual conduct as defined in section
18-1507, Idaho Code; or
(b) Solicit such minor child to participate in a sexual act; or
(c) Cause or have sexual contact with such minor child, not amounting to
lewd conduct as defined in paragraph (a) of this subsection; or
(d) Make any photographic or electronic recording of such minor child.
(2) For the purpose of subsection (b) of this section, "solicit" means any
written, verbal or physical act which is intended to communicate to such
minor child the desire of the actor or third party to participate in a sexual
act or participate in sexual foreplay, by the means of sexual contact,
photographing or observing such minor child engaged in sexual contact.
(3) For the purpose of this section, "sexual contact" means any physical
contact between such minor child and any person or between such minor
children which is caused by the actor, or the actor causing such minor child
to have self contact.
(4) Any person guilty of a violation of the provisions of subsection (l)(a) of
this section shall be imprisoned in the state prison for a period not to exceed
life.
(5) Any person guilty of a violation of the provisions of subsections (1Kb),
(l)(c), or (l)(d) of this section shall be imprisoned in the state prison for a
period not to exceed fifteen (15) years. [I.C.,

18-1508A, as added by 1992,
ch. 249, 1, p. 733.]
Sec. to sec. ref. This section is referred to Sentence,
in

18-8304, 19-2520G, 19-5506, 33-1208
Testimony of witnesses,
and 72-1025.
Analysis
Constitutionality.
Because this section gives notice of what is
Constitutionality.
"sexual contact," it has guidelines and it im-
Defenses.
poses sufficient discretion and because the
Consent.
term "sexual act" is not so ambiguous that a
Mistake of fact.
person of common intelligence would have to
Information. guess at its meaning and differ with others as
Prior bad acts. to its application, this section is not unconsti-
Prior convictions. tutionally vague; conviction upheld. State v.
Search warrant. Oar, 129 Idaho 337, 924 P.2d 599 (1996).
Because
18-1508A(l)(d) regulates a vast
amount of expressive activity and is not nar-
row enough to avoid criminalizing constitu-
tionally protected conduct, the statute is un-
constitutional on its face. State v. Bonner, 138
Idaho 254, 61 P.3d 611 (Ct. App. 2002), review
denied,
Idaho , 61 P.3d 611 (2003).

Defenses.
Consent.
to extend the protection offered in

18-1506
and 18-1508 to minors aged sixteen and sev-
enteen when enacting this section and be-
cause consent is not a defense to
18-1508,
consent is also not a defense to this section.
(1996).
Mistake of Fact.
The legislature, in codifying the crime of
sexual battery of a minor child 16 or 17 years
of age under this section, intended to incorpo-
rate the immemorial tradition of the common
law that a mistake of fact as to the complain-
ant's age is no defense; trial court's instruc-
tions were correct, conviction affirmed. State
v. Oar, 129 Idaho 337, 924 P.2d 599 (1996).
Information.
There was no error in trial court's accep-
tance of defendant's guilty plea even though
there was an error in the information and
amended information filed against defendant,
where the information charged that the acts
occurred between July 2, 1990 and August 15,
1992, and where defendant made no objection
and did not attempt to withdraw the plea
before the trial court but appealed from the
judgment of conviction; there is no require-
ment that the trial court must establish a
factual basis for the crime charged prior to
accepting a guilty plea. State v. Peterson, 126
Idaho 522, 887 P.2d 67 (Ct. App. 1994).
Prior Bad Acts.
Evidence that defendant spoke to child sex-
ual battery victim about a prior sexual sce-
nario involving a stripper immediately before
he touched the victim's breast was relevant
and admissible to prove intent and because it
was interconnected with the charged offense.
State v. Avila, 137 Idaho 410, 49 P.3d 1260 (Ct.
App. 2002).
Prior Convictions.
The defendant's prior conviction for lewd
and lascivious conduct was relevant for im-
peachment purposes in his trial for sexual
battery of a minor, where the issue of credi-
bility was central to the case, and where the
probative value of the evidence outweighed
the prejudicial effect. State v. Thompson, 132
Idaho 628, 977 P.2d 890 (1999).
Search Warrant.
A magistrate could have properly and rea-
sonably relied on a common-sense reading of
a police officer's affidavit, and had a substan-
tial basis for finding that, contained within
the items seized by the police, there was
evidence that the defendant made photo-
graphic recordings of a minor child with the
intent to gratify the lust, passions, or sexual
desire of the actor, minor child, or a third
party. State v. Weimer, 133 Idaho 442, 988
P.2d 216 (Ct. App. 1999).
Sentence.
In order for defendant to show that his
sentence is excessive, he must establish that,
under any reasonable view of the facts, a
period of confinement of three years for his
conviction of sexual battery of a minor was an
abuse of discretion. Where reasonable minds
might differ, the court will not substitute its
own view for that of the sentencing judge.
State v. Peterson, 126 Idaho 522, 887 P.2d 67
(Ct. App. 1994).
Sentence of eight years with a minimum
period of confinement of three years for defen-
dant convicted of sexual battery of a minor
child 16 or 17 years old was not excessive nor
an abuse of trial court's discretion, where the
minor had been placed in defendant's home as
a foster child; although defendant had no
prior criminal record, had an excellent work
history, and had the continued support of his
wife, family and church, since the reason for
the minor's placement was her allegations of
sexual abuse perpetrated on her by her father,
and once in the defendant's home there were
approximately five acts of sexual battery over
a three-month period which included acts of
unprotected intercourse and the minor be-
came pregnant, and while there was support
in the record for the defendant's claim that
the sexual intercourse was consensual, defen-
dant's abuse of his position of trust as a foster
parent to a troubled adolescent was a very
serious aggravating factor. State v. Peterson,
126 Idaho 522, 887 P2d 67 (Ct. App. 1994).
District court's sentence of two consecutive
unified sentences of fifteen years with two
and one-half years fixed (total of 5 years
fixed), for conviction on two counts of sexual
battery of a minor child sixteen or seventeen
years of age was not unreasonable and was
affirmed where defendant had a considerable
criminal history, showed he would use his
intelligence to take advantage of others, had
committed similar acts, had failed at several
chances of rehabilitation, and had acted rep-
rehensibly. State v. Oar, 129 Idaho 337, 924
P.2d 599 (1996).
Testimony of Witnesses.
The probative value of testimony of three
adult massage clients that they believed the
defendant's contact with their vaginal areas
was not accidental was not substantially out- on a charge of sexual battery of a minor that
weighed by the prejudice to the defendant, his massages were not sexual in nature. State
where he had introduced evidence in his trial v. Cardell, 132 Idaho 217, 970 P.2d 10 (1998).
18-1509. Enticing of children.

(1) A person shall be guilty of a
misdemeanor if that person attempts to persuade, or persuades, whether by
words or actions or both, a minor child under the age of sixteen (16) years to
either:
(a) Leave the child's home or school; or
(b) Enter a vehicle or building; or
(c) Enter a structure or enclosed area, or alley, with the intent that the
child shall be concealed from public view;
while the person is acting without the authority of (i) the custodial parent of
the child, (ii) the state of Idaho or a political subdivision thereof or (iii) one
having legal custody of the minor child. Nothing contained in this section
shall be construed to prevent the lawful detention of a minor child or the
rendering of aid or assistance to a minor child.
(2) Every person who is convicted of a violation of the provisions of this
section shall be punished by imprisonment in the county or municipal jail
for not more than six (6) months or by a fine of not more than one thousand
dollars ($1,000) or by both such fine and imprisonment. A person convicted
a second or subsequent time of violating the provisions of this section shall
be guilty of a felony and shall be punished by imprisonment in the state
penitentiary for a period of time of not more than five
(5)
years. [I.C.,
18-1509, as added by 1985, ch.

81, 1, p. 156.]
Compiler's notes. A former 18-1509 travel trailer was considered a home within
which comprised S.L. 1957, ch. 197, 4, p. the context of this section, as the terms
407 was repealed by S.L. 1969, ch. 325,
11. "home" and "dwelling" are synonymous. State
v. Sindak, 116 Idaho 185, 774 P.2d 895 (1989),
emergency. Approved March 13, 1985.
cert, denied, 493 U.S. 1076, 110 S. Ct. 1125,
107 L Ed 2d 1032 (1990)
in 18-310.
Cited in: State v. Sindak, 113 Idaho 893,
Instructions.
749 P.2d 1018 (Ct. App. 1988).
Because the "enticing" instruction would
not have been justified upon a reasonable
Analysis
view of the evidence presented at defendant's
Definitions
trial, he was not prejudiced by the untimeli-
Home
"
ness of his counsel's request for the proposed
Instructions
instruction. Medrano v. State, 127 Idaho 639,
Validity of statute.
903 R2d 1336 < Ct
-
A
PP-
1995)-
Definitions.
Validity of Statute.
Subsection (1) of this section is not void for
Home. vagueness, nor overbroad as intruding upon

Where a child was spending the night in a constitutionally protected conduct. State v.
travel trailer, and where the trailer was in the Sindak, 116 Idaho 185, 774 P.2d 895 (1989),
yard of the family residence, approximately cert, denied, 493 U.S. 1076, 110 S. Ct. 1125,
ten to 12 feet from the parents' bedroom, the 107 L. Ed. 2d 1032 (1990).
18-1509A. Enticing of children over the internet
Penalties
Jurisdiction.

(1) A person aged eighteen (18) years or older shall be
guilty of a felony if he or she knowingly uses the internet to solicit, seduce,
lure, persuade or entice by words or actions, or both, a minor child under the
age of sixteen (16) years or a person the defendant believes to be a minor
child under the age of sixteen (16) years to engage in any sexual act with or
against the child where such act is a violation of chapter 15, 61 or 66, title
18, Idaho Code.
(2) Every person who is convicted of a violation of this section shall be
punished by imprisonment in the state prison for a period not to exceed
fifteen (15) years.
(3)
It shall not constitute a defense against any charge or violation of this
section that a law enforcement officer, peace officer, or other person working
at the direction of law enforcement was involved in the detection or
investigation of a violation of this section.
(4) The offense is committed in the state of Idaho for purposes of
determining jurisdiction if the transmission that constitutes the offense
either originates in or is received in the state of Idaho. [I.C.,

18-1509A, as
added by 2003, ch. 145, 1, p.418J
ch. 145, is compiled as
18-8304. in
18-8304.
18-1510. Providing shelter to runaway children.

(1) A person
who knowingly or intentionally provides housing or other accommodations
to a child seventeen (17) years of age or younger without the authority of: (a)
the custodial parent or guardian of the child; (b) the state of Idaho or a
political subdivision thereof; or (c) the one having legal custody of the child
shall be guilty of a misdemeanor. Nothing contained in this section shall be
construed to prevent the lawful detention of a minor child or the rendering
of emergency aid or assistance to a minor child. It shall be an affirmative
defense to the provisions of this section that the person providing housing or
other accommodations to the child has notified the custodial parent or
guardian or the County sheriff or city police of the child's whereabouts. It
shall also be an affirmative defense to the provisions of this section that the
person providing housing or other accommodations to the child notices
reasonable evidence that the child has been abused by the custodial parent
or guardian.
(2) A person convicted of a violation of the provisions of this section shall
be punished by imprisonment for a period not in excess of six (6) months, a
fine not in excess of five thousand dollars ($5,000) or by both such fine and
imprisonment. Additionally, any real property utilized in violation of the
provisions of this section may be declared a public nuisance pursuant to
chapter 1, title 52, Idaho Code. [I.C.,
18-1510, as added by 1989, ch. 155,
11, p.
371.]
Compiler's notes. A former 18-1510 Section 21 of S.L. 1989, ch. 155 provided
which comprised S.L. 1957, ch. 197, 5, p. that the act should take effect January 15,
407, was repealed by S.L. 1969, ch. 325, 11. 1990.
compiled as
18-1502 and 72-102, respec-
tively
18-1511. Sale or barter of child for adoption or other purpose
penalized
Allowed expenses.
Any person or persons who shall sell

or barter any child for adoption or for any other purpose, shall be guilty of
a felony, and upon conviction shall be punished by imprisonment in the state
penitentiary for not more than fourteen (14) years, or by a fine of not more
than five thousand dollars ($5,000),
or by both such fine and imprisonment.
Provided however, this section shall not prohibit any person, or adoption
agency from providing, in addition to legal and medical costs, reasonable
maternity and living expenses during the pregnancy and for a period not to
exceed six (6) weeks post partum based upon demonstrated financial need.
Any person or agency, seeking to provide financial assistance in excess of
five hundred dollars ($500) shall do so after informally submitting to a court
of competent jurisdiction, a verified financial plan outlining proposed
expenditures. The court may approve or amend such a proposal. Only after
court approval shall assistance totaling more than five hundred dollars
($500) become available to the birth parent. A prospective adoptive parent,
or another person acting on behalf of a prospective adoptive parent, shall
make payments for allowed expenses only to third party vendors, as is
reasonably practical. All actual expenditures shall be presented by verified
affidavit of counsel or the agency at the time of the adoption finalization.
No financial assistance to a birth parent shall exceed the sum of two
thousand dollars ($2,000) unless otherwise authorized by the court. The
financial assistance contemplated by this section shall be considered a
charitable gift, not subject to recovery under the terms of section 16-1515,
Idaho Code. [I.C.,

18-1511, as added by 1972, ch. 336, 1, p. 844; am.
2000, ch. 172, 1, p. 440.]
Compiler's notes. A former section, which words as the section prior to its repeal,
25, 1, p. 55, was
Cross ref. Adoption of children,
16-1501.
effective
gee. to sec. ref. This section is referred to
January
1, 1972 and the present section
in

16-1506, 33-1208 and 39-1113.
18-1512. Medical bills payment for child to be adopted or mother
an exception.
Paying of medical bills, either for a child to be adopted or

for the mother of such child, shall not be considered a violation of this act.
[I.C.,

18-1512, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1959, ch. 25, 2, p. 55, was The words "this act" refer to S.L. 1972, ch.
repealed by S.L. 1971, ch. 143, 5, effective 336, generally codified as title 18 but specifi-
January 1, 1972 and the present section cally here referring to
18-1511 and 18-
added by S.L. 1972, ch. 336, 1 in the same 1512.
18-1512A. Advertising for adoption
Prohibited acts.
(1) Un-
less the context clearly requires otherwise in this section, "advertisement"
means communication by newspaper, radio, television, handbills, placards
or other print, broadcast or the electronic medium.
(2) No person or entity shall cause to be published for circulation or
broadcast on a radio or television station within the geographic borders of
the state of Idaho an advertisement or notice of a child or children offered or
wanted for adoption or shall hold himselfout through such advertisement or
notice as having the ability to place, locate, dispose or receive a child or
children for adoption, unless the person or entity is a duly authorized agent,
contractee or employee of the department of health and welfare or an
authorized children's agency or institution licensed by the department of
health and welfare to care for and place children.
(3)
A violation of subsection (2) of this section is a matter affecting the
public interest for the purpose of applying chapter 6, title 48, Idaho Code. A
violation of subsection (2) of this section is not reasonable in relation to the
development and preservation of business. A violation of subsection (2) of
this section constitutes an unfair or deceptive act or practice in trade or
commerce for the purpose of applying chapter 6, title 48, Idaho Code.
(4) Nothing herein is intended to prohibit an attorney licensed to practice
in the state of Idaho from advertising his or her ability to practice or provide
services related to the adoption of children.
(5)
Nothing herein is intended to prohibit physicians and other health
care providers who are licensed to practice in the state of Idaho from
assisting or providing natural and adoptive parents with medical care
necessary to initiate and complete adoptive placements. [I.C.,

18-1512A,
as added by 1988, ch. 226, 1, p. 438; am. 2000, ch. 174, 1, p. 442.]
Dissemination to minors
Policy.
It is hereby declared to be the policy of the legislature to restrain the

distribution, promotion, or dissemination of obscene material, or of material
harmful to minors, or the performance of obscene performances, or perfor-
mances harmful to minors. It is found that such materials and performances
are a contributing factor to crime, to juvenile crime, and also a basic factor
in impairing the ethical and moral development of our youth. [I.C.,
18-
1513, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, com- children of a specified age with respect to a
prising S.L. 1969, ch. 325, 1, p. 1025, and child who is past the anniversary date of such
transferred to I.C.,
18-2104, effective Janu- age. 73 A.L.R.2d 874.
ary
1, 1972, was repealed by S.L. 1972, ch.
Entrapment to commit offense against ob-
109, 1,
effective April
1, 1972 and the
scenity laws. 77 A.L.R.2d 792.
Modern concept of obscenity. 5 A.L.R.3d
H58
i s repea
Validity of procedures designed to protect
ss i
r
Ti m ? /I?,
6 matenals
S
enera11
*
the public against obscenity. 5 A.L.R.Sd 1214;
i-4iui i
"
4
^>;
,..,.,. 93 A.L.R.3d 297.
Sec. to sec. ret. This section is referred to
TT
,. ,. ,. ,
nn A P
.
in 18-4106
Validity, construction, and effect of statutes
Collateral References. Applicability of
or ordinances prohibiting the sale of obscene
criminal statutes relating to offenses against
materials to minors. 93 A.L.R.3d 297.
Definitions.
The following defini-

tions are applicable to this act:
1. "Minor" means any person less than eighteen (18) years of age.
2. "Nudity" means the showing of the human male or female genitals,
pubic area or buttocks with less than a full opaque covering, or the showing
of the female breast with less than a full opaque covering of any portion
thereof below the top of the nipple, or the depiction of covered male genitals
in a discernibly turgid state.
3. "Sexual conduct" means any act of masturbation, homosexuality,
sexual intercourse, or physical contact with a person's clothed or unclothed
genitals, pubic area, buttocks or, if such person be a female, the breast.
4. "Sexual excitement" means the condition of human male or female
genitals when in a state of sexual stimulation or arousal.
5. "Sado-masochistic abuse" means flagellation or torture by or upon a
person who is nude or clad in undergarments, a mask or bizarre costume, or
the condition of being fettered, bound or otherwise physically restrained on
the part of one who is nude or so clothed.
6. "Harmful to minors" includes in its meaning one or both of the
following:
(a) The quality of any material or of any performance or of any descrip-
tion or representation, in whatever form, of nudity, sexual conduct, sexual
excitement, or sado-masochistic abuse, when it:
(1)
appeals to the prurient interest of minors as judged by the average
person, applying contemporary community standards; and
(2)
depicts or describes representations or descriptions of nudity, sexual
conduct, sexual excitement, or sado-masochistic abuse which are patently
offensive to prevailing standards in the adult community with respect to
what is suitable material for minors and includes, but is not limited to,
patently offensive representations or descriptions of:
(i) intimate sexual acts, normal or perverted, actual or simulated; or
(ii) masturbation, excretory functions or lewd exhibition of the genitals or
genital area. Nothing herein contained is intended to include or
proscribe any matter which, when considered as a whole, and in context
in which it is used, possesses serious literary, artistic, political or
scientific value for minors, according to prevailing standards in the
adult community, with respect to what is suitable for minors.
(b) The quality of any material or of any performance, or of any descrip-
tion or representation, in whatever form, which, as a whole, has the
dominant effect of substantially arousing sexual desires in persons under
the age of eighteen (18) years.
7. "Material" means anything tangible which is harmful to minors,
whether derived through the medium of reading, observation or sound.
8. "Performance" means any play, motion picture, dance or other exhibi-
tion performed before an audience.
9. "Promote" means to manufacture, issue, sell, give, provide, deliver,
publish, distribute, circulate, disseminate, present, exhibit or advertise, or
to offer or agree to do the same.
10. "Knowingly" means having general knowledge of, or reason to know,
or a belief or reasonable ground for belief which warrants further inspection
or inquiry. [I.C.,
18-1514, as added by 1972, ch. 336, 1, p. 844; am. 1976,
ch.
81, 15, p. 258.]
Compiler's notes. A former section, com- present section added by S.L. 1972, ch. 336,
prising S.L. 1969, ch. 325, 2, p. 55 and 1 restored the subject matter as contained
transferred to I.C., 18-2105, effective Janu- in the section prior to its repeal,
ary 1, 1972, was repealed by S.L.. 1972, ch. The words "this act" refer to S.L. 1972, ch.
336, generally codified as title 18 but specifi-
cally here referring to
18-1513
18-1521. this act which can be given effect without the
Section 14 of S.L. 1976, ch. 81 is compiled invalid phrase, clause, sentence, section, pro-
herein as
18-4114. vision, or application and to this end the
Section 16 of S.L. 1976, ch. 81, read: "If any provisions of this act are declared to be sev-
phrase, clause, sentence, section, or provision erable."
of this act or application thereof to any person Sec. to sec. ref. This section is referred to
or circumstance is held invalid, such invalid- in

18-4105 and 18-4106.
ity shall not affect any other phrase, clause, Collateral References. Modern concept of
sentence, section, provision, or application of obscenity. 5 A.L.R.3d 1158.
18-1515. Disseminating material harmful to minors
Denned
Penalty.
A person is guilty of disseminating material harmful to minors

when:
1. He knowingly gives or makes available to a minor or promotes or
possesses with intent to promote to minors, or he knowingly sells or loans to
a minor for monetary consideration:
(a) Any picture, photograph, drawing, sculpture, motion picture film, or
similar visual representation or image of a person or portion of the human
body which depicts nudity, sexual conduct or sado-masochistic abuse and
which is harmful to minors; or
(b) Any book, pamphlet, magazine, printed matter however reproduced,
or sound recording which contains any matter enumerated in paragraph
(a) hereof, or explicit and detailed verbal descriptions or narrative
accounts of sexual excitement, sexual conduct or sado-masochistic abuse
and which, taken as a whole, is harmful to minors; or
(c) Any other material harmful to minors.
2. With reference to a motion picture, show or other presentation which
depicts nudity, sexual conduct or sado-masochistic abuse, and which is
harmful to minors, he knowingly:
(a) Exhibits si^ch motion picture, show or other presentation to a minor
for a monetary consideration; or
(b) Sells to a minor an admission ticket or pass to premises whereon there
is exhibited or to be exhibited such motion picture, show or other
presentation; or
(c) Admits a minor for a monetary consideration to premises whereon
there is exhibited or to be exhibited such motion picture, show or other
presentation; or
(d) Exhibits such motion picture, show or other presentation to a minor
not for a monetary consideration; or
(e) Gives without monetary consideration to a minor an admission ticket
or pass to premises where there is exhibited or to be exhibited such motion
picture, show, or other presentation.
Disseminating material harmful to minors is a misdemeanor punishable
by confinement in the county jail not to exceed one (1) year, or by a fine not
to exceed one thousand dollars ($1,000), or by both such fine and jail
sentence. [I.C.,

18-1515, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, com- 109, 1, effective April 1, 1972 and the
prising S.L. 1969, ch. 325, 3, p. 1025, and present section added by S.L. 1972, ch. 336,
transferred to I.C., 18-2106, effective Janu- 1 in the same words as the section prior to
ary 1, 1972, was repealed by S.L. 1972, ch. its repeal.
Cross ref. Sale of obscene matter; penal- Sec. to sec. ref. This section is referred to
ties,
18-4103. in

18-4106, 18-7803 and 67-6533.
18-1516. Misrepresentations

Parenthood or age

Misde-
meanor.
A person is guilty of a misdemeanor when:

1. He knowingly misrepresents that he is a parent or guardian of a minor
for the purpose of obtaining admission of any minor to any motion picture,
show, or other presentation which is harmful to minors as defined in section
18-1515, subsection 2.
2. If he is a minor and misrepresents his age for the purpose of obtaining
admission to any motion picture, show, or other presentation which is
harmful to minors as defined in section 18-1515, subsection 2. [I.C.,
18-1516, as added by 1972, ch. 336, 1, p. 844.]

prising S.L. 1969, ch. 325, 4, p. 1025, and 1 in the same words as the section prior to
transferred to I.C. 18-2107, effective Janu- its repeal.
ary 1, 1972, was repealed by S.L. 1972, ch. Sec. to sec. ref. This section is referred to
109, 1, effective April 1, 1972 and the in
18-4106.
18-1517. Disseminating material harmful to minors
Defenses.
1. In any prosecution for disseminating material harmful to minors, it is

an affirmative defense that:
(a) The defendant had reasonable cause to believe that the minor
involved was eighteen (18) years old or more, or such minor exhibited to
the defendant a draft card, driver's license, birth certificate, or other
official or apparently official document purporting to establish that the
minor was eighteen (18) years of age or older.
(b) The minor involved was accompanied by his parent or legal guardian,
or by an adult and the adult represented that he was the minor's parent
or guardian or an adult and signed a written statement to that effect.
(c) The defendant was the parent or guardian of the minor involved.
(d) The defendant was a bona fide school, college, university, museum or
public library, or was acting in his capacity as an employee of such an
organization or a retail outlet affiliated with and serving the educational
purposes of such an organization. [I.C.,
18-1517, as added by 1972, ch.
336, 1, p. 844.]
transferred to I.C., 18-2108, effective Janu- its repeal.
18-4106.
18-1517A. Hiring, employing, etc., minor to engage in certain
acts

Penalty.
Every person who, with knowledge that a person is a

minor under eighteen
(18) years of age, or who, while in the possession of
such facts that he should reasonably know that such person is a minor
under eighteen (18) years of age, hires, employs, or uses such minor to do or
assist in doing any of the acts described in section 18-4103, Idaho Code, is
guilty of a misdemeanor. If such person has previously been convicted of a
violation of this section he shall be guilty of a felony. [I.C., 18-1517A, as
added by 1973, ch. 305, 18, p. 655.]
Compiler's notes. Sections 17 and 19 of Section 22 of S.L 1973, ch. 305 provided
S.L. 1973, ch. 305 are compiled as
18-4114 that the act should be in full force and effect
and
23-933A. on and after.July 1, 1973.
Section 21 of S.L. 1973, ch. 305 provided for
severability in the event of partial invalidity
and is compiled as
18-4115.
18-1518. Tie-in sales of prohibited materials
Misdemeanor.
No person shall as a condition to a sale or delivery for resale of any book,

paper, magazine, periodical, or other material require that the purchaser or
consignee receive for resale any article, the promotion of which is prohibited
by this act. Any violation hereofis a misdemeanor. [I.C.,

18-1518, as added
by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, com- 1 in the same words as the section prior to
prising S.L. 1969, ch. 325, 6, p. 1025, and its repeal.
transferred to I.C., 18-2109, effective Janu- For words "this act" see compiler's note,
ary 1, 1972, was repealed by S.L. 1972, ch.
18-1514.
109, 1, effective April 1, 1972 and the Sec. to sec. ref. This section is referred to
present section added by S.L. 1972, ch. 336, in

18-4106 and 18-7803.
18-1519. Each prohibited item disseminated constitutes separate
offense.
If more than one (1) article or item of material prohibited under

this statute, is sold, given, advertised for sale, distributed commercially or
promoted, in violation of the provisions of this act by the same person, each
such sale, gift, advertisement, distribution, or promotion shall constitute a
separate offense. [I.C.,

18-1519, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Â former section, com- 1 in the same words as the section prior to
prising S.L. 1969, ch. 325, 7, p. 1025, and its repeal.
transferred to I.C., 18-2110, effective Janu- For words "this act" see compiler's note,
ary 1, 1972, was repealed by S.L. 1972, ch.
18-1514.
109, 1, effective April 1, 1972 and the Sec. to sec. ref. This section is referred to
18-4106.
18-1520. District courts

Injunctions

Trial

Orders of in-
junction.

The district courts have jurisdiction to enjoin the sale or
distribution of material harmful to minors, and to direct the seizure and
destruction of the same, as hereinafter specified:
1. The prosecuting attorney of any county in which a person, firm, or
corporation sells, distributes or promotes, or is about to sell, distribute or
promote, or has in his possession with intent to sell, distribute or promote,
or is about to acquire possession with intent to sell, distribute or promote,
any material harmful to minors, may maintain an action in the name of the
state of Idaho for an injunction against such person, firm, or corporation in
the district court of that county to prevent the sale, distribution or
promotion, or further sale, distribution, or promotion, or the acquisition or
possession of any material harmful to minors.
2. The person, firm or corporation sought to be enjoined shall be entitled
to a trial of the issues within one (1) day after joinder of issue and a decision
shall be rendered by the court within two (2) days of the conclusion of the
trial.
3. In the event that a final order or judgment of injunction be entered in
favor of the state of Idaho and against the person, firm, or corporation
sought to be enjoined, such final order or judgment shall contain a provision
directing the person, firm or corporation to cease and desist from the sale of
all materials adjudged to be harmful to minors.
4. Such final order or judgment of injunction shall not enjoin or prohibit
a person, firm or corporation from sale, distribution or promotion of material
harmful to minors to persons other than minors, nor shall it order the
seizure and destruction of material harmful to minors unless the court finds
and concludes that the person, firm or corporation has been selling,
distributing or promoting, or intends to sell, distribute or promote such
material to minors.
5. In any action brought as herein provided the state of Idaho shall not be
required to file any undertaking before the issuance of an injunction order,
shall not be liable for costs, and shall not be liable for damages sustained by
reason of the injunction order in cases where judgment is rendered in favor
of the person, firm or corporation sought to be enjoined.
6. Every person, firm, or corporation who sells, distributes, or promotes,
or acquires possession with intent to sell, distribute, or promote any
material harmful to minors, after the service upon him of a summons and
complaint in an action brought pursuant to this section, is chargeable with
knowledge of the contents thereof. [I.C.,

18-1520, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, com- Sec. to sec. ref. This section is referred to
prising S.L. 1969, ch. 325, 8, p. 1025, and in
18-4106.

18-2111, effective Janu-
Collateral References. Porno shops or
ary
1, 1972, was repealed by S.L. 1972, ch.
similar places disseminating obscene materi-
109, 1,
effective April
1, 1972 and the
als as nuisance. 58 A.L.R.3d 1134.
its repeal.

Abrogation of existing ordi-
nances
Further local ordinances banned.

In order to make the
application and enforcement of this act uniform throughout the state, it is
the intent of the legislature to preempt, to the exclusion of city and county
governments, the regulation of the sale, loan, distribution, dissemination,
presentation or exhibition to a minor of material which is obscene or which
is harmful to minors and depicts in whole or in part nudity, sexual conduct
or sado-masochistic abuse. To that end, it is hereby declared that every city
or county ordinance adopted before the effective date of this act which deals
with the regulation of the sale, loan, distribution, dissemination, presenta-
tion or exhibition to a minor of material which is obscene or which is
harmful to minors and depicts in whole or in part nudity, sexual conduct or
sado-masochistic abuse, shall stand abrogated and unenforceable on or after
such effective date; and that no city or county government shall have the
power to adopt any ordinance relating to the regulation of the sale, loan,
distribution, dissemination, presentation or exhibition to a minor of mate-
rial which is obscene or which is harmful to minors and depicts in whole or
in part nudity, sexual conduct or sado-masochistic abuse, on or after such
effective date. [I.C.,
18-1521, as added by 1972, ch. 336, 1, p. 844.]
18-2112, effective Janu- its repeal.
18-4106.
18-1522. Unauthorized school bus entry
Notice.
(1) A person
shall be guilty of a misdemeanor if that person:
(a) Enters a school bus with intent to commit a crime;
(b) Enters a school bus and disrupts or interferes with the driver; or
(c) Enters a school bus and refuses to disembark after being ordered to do
so by the driver.
(2) School districts shall place notices at the entrance to school buses
which warn against unauthorized school bus entry. [I.C.,

18-1522, as
added by 1999, ch. 159, 1, p. 437.]
18-1523. Tattooing, branding and body piercing of minors.

(a) "Body piercing" means the perforation of any human body part other
than an earlobe for the purpose of inserting jewelry or other decoration or
for some other nonmedical purpose;
(b) "Branding" means a permanent mark made on human tissue by
burning with a hot iron or other instrument for the purpose of decoration
or for some other nonmedical purpose;
(c) "Minor" means a person under the age of eighteen (18) years but does
not include a person who is an emancipated minor; and
(d) "Tattoo" means one (1) or more of the following but does not include
any mark or design done for a medical purpose:
(i) An indelible mark made on the body of another person by the
insertion of a pigment under the skin; or
(ii) An indelible design made on the body of another person by produc-
tion of scars other than by branding.
(2) No person shall knowingly tattoo, brand or perform body piercing on
any minor under the age of fourteen (14) years.
(3) No person shall knowingly tattoo, brand or perform body piercing on
a minor between the ages of fourteen (14) and eighteen (18) years unless
such person obtains the prior written informed consent of the minor's parent
or legal guardian. The minor's parent or legal guardian shall execute the
written informed consent required pursuant to this subsection in the
presence of the person performing the tattooing, branding or body piercing
on the minor, or in the presence of an employee or agent of such person.
(4) Aperson who violates this section is guilty of a misdemeanor and shall
be fined not more than five hundred dollars ($500). If there is a subsequent
violation of this section within one (1)
year of the initial violation, such
person shall be fined not less than five hundred dollars ($500) and not more
than one thousand dollars ($1,000). [I.C.,
18-1523, as added by 2004, ch.
127, 1, p. 436.1
CHAPTER 16
COMPOUNDING CRIMES
SECTION. SECTION.
18-1601. Compounding felony or misde- 18-1602
meanor.
18-1601. Compounding felony or misdemeanor.

Every person
who, having knowledge of the actual commission of a crime, takes money or
property of another, or any gratuity or reward, or any engagement, or
promise thereof, upon any agreement or understanding to compound or
conceal, such crime, or to abstain from any prosecution thereof, or to
withhold any evidence thereof, except in the cases provided for by law, in
which crimes may be compromised by leave of court, is punishable as
follows:
1. By imprisonment in the state prison not exceeding five years, or in a
countyjail not exceeding one year, where the crime was punishable by death
or imprisonment in the state prison for life.
2. By imprisonment in the state prison not exceeding three years, or in
the county jail not exceeding six months where the crime was punishable by
imprisonment in the state prison for any other term than for life.
3. By imprisonment in the county jail not exceeding six months, or by fine
not exceeding $500, where the crime was a misdemeanor. [I.C.,
18-1601,
as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which prior to its repeal by S.L. 1971, ch. 143, 5.
C.L.,
6518; C.S.,
8186; I.C.A.,

17-1009,
effective January
1, 1972, and substituted
Cross ret Compromise of offenses, when

18-
auth rized,
19-3401 et seq.
1601 as added by 1971, ch. 143
1
How-
Collateral References. 15A Am. Jur. 2d,
n
,.
n
. o .. ,
1972, ch. 109, 1, effective April
1,
1972 and
Compounding Cnmes,
1
et seq.
15A CJS
-
Compounding Offenses,
1
et
se(
*'
18-1602
18-1608. Bribery and corrupt influence. [Repealed.]
Compiler's notes. These sections, which 1, 1972 were repealed by S.L. 1972, ch. 109,
comprised I.C.,
18-1602
18-1608, as 1, effective April 1, 1972. For present law
added by 1971, ch. 143, 1, effective January see
18-1351
18-1358.
213 CONSPIRACIES
CHAPTER 17
CONSPIRACIES
18-1701
SECTION. SECTION.
18-1701. Criminal conspiracy denned. 18-1703
18-1702. Mining claims Conspiracy to
usurp.
18-1710. [Repealed.
18-1701. Criminal conspiracy defined.
If two (2) or more persons

combine or conspire to commit any crime or offense prescribed by the laws
of the state of Idaho, and one (1) or more of such persons does any act to
effect the object of the combination or conspiracy, each shall be punishable
upon conviction in the same manner and to the same extent as is provided
under the laws of the state of Idaho for the punishment of the crime or
offenses that each combined to commit. [I.C.,

18-1701, as added by 1978,
ch. 117, 2, p. 268.]
which comprised with I.C.,
18-1701, as
added by 1972, ch. 336, 1, p. 844, was
repealed by S.L. 1978, ch. 117, 1.
Cross ref. Anti-trust law,
48-101 et seq.
Evidence necessary in conspiracy,
19-
2111.
Combination in restraint of trade, Const.,
Art. 11, 18;
48-101.
in 18-310.
Cited in: Dearing v. Hockersmith, 25 Idaho
140, 136 P. 994 (1930); State v. Spurgeon, 107
v. Keller, 108 Idaho 643, 701 P.2d 263 (Ct.
App. 1985); State v. Brown, 113 Idaho 480,
745 P.2d 1101 (Ct. App. 1987); State v.
Brennan, 117 Idaho 123, 785 P.2d 687 (Ct.
App. 1990); State v. Rodriguez, 118 Idaho 957,
801 P.2d 1308 (Ct. App. 1990); State v.
Weinmann, 122 Idaho 631, 836 P.2d 1092 (Ct.
App. 1992).
Evidence.
Corroborated testimony of witnesses relat-
ing conversations they had had with minor
victim's grandmother, where grandmother re-
lated that her boyfriend was "interested in"
and "after" the victim, was properly admitted
in the trials of the grandmother and her
boyfriend for conspiracy to commit lewd con-
duct with a minor, as such evidence was
highly probative and clearly relevant and the
weighed by the danger of unfair prejudice,
particularly since it did not describe any ad-
ditional sexual acts. State v. Tapia, 127 Idaho
249, 899 P.2d 959 (1995); State v. Castillo, 127
Idaho 257, 899 P.2d 967 (1995).
tion in admitting minor victim's testimony in
the trials of her grandmother and grandmoth-
er's boyfriend, convicted of conspiracy to com-
mit lewd conduct with a minor, concerning
two subsequent acts of sexual intercourse by
the boyfriend which occurred in the grand-
mother's house because, pursuant to subsec-
tion (b) of IRE 404, the testimony was highly
probative, explained the victim's delay in re-
porting, and clearly reflected a common
scheme or plan to use the grandmother's
influence over the victim to compel her ac-
tions, and, pursuant to this section, it was
evidence of the conspiracy itself. State v.
Tapia, 127 Idaho 249, 899 P.2d 959 (1995);
State v. Castillo, 127 Idaho 257, 899 P.2d 967
(1995).
Analysis
Bribery.
Evidence.
Fraudulent sales.
Witnesses.
Bribery.
Person incapable of receiving bribe because
not a public officer, may be guilty of conspir-
acy to commit offense of bribery with public
officer. State v. Myers, 36 Idaho 396, 211 P.
440 (1922).
Evidence.
Acts and declarations of co-conspirators,
done and made in furtherance of common
design, are admissible against all other par-
ties to conspiracy, whether done or made in
their presence or with their knowledge or not.
State v. Myers, 36 Idaho 396, 211 P. 440
(1922).
Where conspiracy relates to series of crimes
rather than to a single crime, evidence that
one of conspirators committed a crime similar
to that for which both defendants are on trial
is admissible. State v. Myers, 36 Idaho 396,
211 P. 440 (1922).
Conviction can not be had on uncorrobo-
rated testimony of accomplice. State v.
Gillum, 39 Idaho 457, 228 P. 334 (1924).
In preliminary hearing on charge of arson,
confession of witness of criminal conspiracy
between himself and defendant was admissi-
ble. In re Hollingsworth, 49 Idaho 455, 289 P.
607 (1930).
Fraudulent Sales.
Under
18-3702 (repealed) it is a crime for
debtor to sell or dispose of his property with
intent to defraud, hinder, or delay his credi-
tors, and under this section it is a crime for
other parties to conspire with him and to aid
and assist him in accomplishing such result.
Martin v. Steele, 7 Idaho 497, 63 P. 1040
(1901).
Witnesses.
Conspiracy to secure absence of a witness.
See State v. Roe, 19 Idaho 416, 113 P. 461
(1911).
Conspiracy, 1-3, 5.
15A C.J. S., Conspiracy, 1.
Wife's criminal responsibility for conspiracy
with husband. 4 A.L.R. 282; 71 A.L.R. 1116.
Incapacity to commit offense as affecting
responsibility for conspiracy to commit it. 5
A.L.R. 787; 74 A.L.R. 1110; 131 A.L.R. 1322.
Adultery or other offense which can only be
committed by concerted action of parties to it,
conspiracy to commit. 11 A.L.R. 196; 104
A.L.R. 1430.
Entrapment to commit crime of. 18 A.L.R.
158; 66 A.L.R. 478; 86 A.L.R. 263.
"Infamous offense," conspiracy as, within
constitutional or statutory provision in rela-
tion to presentment or indictment by grand
jury. 24 A.L.R. 1008.
Substitution or attempted substitution of
another for one under sentence as a criminal
offense. 28 A.L.R. 1381.
Married woman's liability for conspiracy
with husband. 71 A.L.R. 1126.
Prosecution or conviction of one party to
alleged conspiracy as affected by disposition
of case against other parties. 72 A.L.R. 1180;
91 A.L.R.2d 700.
Merger of conspiracy in completed offense.
75 A.L.R. 1411.
Woman who connives or consents to own
transportation for immoral purpose, respon-
sibility of, as a coconspirator. 84 A.L.R. 376.
Usury or excessive interest, taking of, as
subject of criminal conspiracy. 89 A.L.R. 830.
Market manipulation of securities, criminal
liability for. 115 A.L.R. 274.
Incapacity personally to commit the offense
as affecting responsibility as conspirator. 131
A.L.R. 1327.
Conspiring to violate rationing regulation
as merged in completed offense. 157 A.L.R.
1473; 158 A.L.R. 1489.
Right of accused to bill of particulars. 5
A.L.R.2d 444.
Criminal conspiracy between spouses. 46
A.L.R.2d 1275; 74 A.L.R.2d 838.
Conviction or acquittal of attempt to com-
mit particular crime as bar to prosecution for
conspiracy to commit same crime, or vice
versa. 53 A.L.R.2d 622.
When the statute oflimitations begin to run
against civil action or criminal prosecution for
conspiracy. 62 A.L.R.2d 1369.
Criminal conspiracy as to gambling. 91
A.L.R.2d 1148.
Admissibility of statements of coconspira-
tors made at the termination of conspiracy
and outside accused's presence. 4 A.L.R.3d
671.
Jurisdiction to prosecute conspirator who is
not in state at time of substantive criminal
act, for offense committed pursuant to con-
spiracy. 5 A.L.R.3d 887.
Actionability of conspiracy to give or to
procure false testimony or other evidence. 31
A.L.R.3d 1423.
Comment note on impossibility of consum-
mation of substance of crime as defense in
criminal prosecution for conspiracy or at-
tempt to commit crime. 37 A.L.R.3d 375.
Comment note on necessity and sufficiency
of independent evidence of conspiracy to allow
admission of extrajudicial statements of co-
conspirators. 46 A.L.R.3d 1148.
Criminal liability of corporation for bribery
or conspiracy to bribe public official. 52
A.L.R.3d 1274.
Criminal liability for wrongfully obtaining
unemployment benefits. 80 A.L.R.3d 1280.
Right of defendants in prosecution for crim-
inal conspiracy to separate trials. 82 A.L.R.3d
366.
Availability in state court of defense of
entrapment where accused denies commit-
ting acts which constitute offense charged. 5
A.L.R.4th 1128.
Criminal liability under state laws in con-
nection with application for, or receipt of,
public welfare payments. 22 A.L.R.4th 534.
18-1702. Mining claims

Conspiracy to usurp.

In all cases
where two (2) or more persons associate themselves together for the purpose
215 CONTEMPTS 18-1801
of obtaining the possession of any lode, gulch or placer claim, then in the
actual possession of another, by force and violence, or by stealth, and
proceed to carry out such purpose by making threats against the party or
parties in possession, or enter upon such lode or mining claim for the
purpose aforesaid, or enter upon or into any lode, gulch, placer claim, quartz
mill or other mining property, or, not being upon such property, make any
threats, or make use of any language, signs or gestures calculated to
intimidate any person or persons at work on said pfoperty from continuing
to work thereon or therein, or to intimidate others from engaging to work
thereon or therein, every such person so offending is guilty of [a] misde-
meanor. [I.C.,

18-1702, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. Aformer section, which The bracketed word "a" was inserted by the
comprised 1885, p. 30, 3; R.S., R.C., & C.L., compiler.
6541; C.S., 8205; I.C.A.,
17-1028, was Section 14 of S.L. 1972, ch. 336 declared an
repealed by S.L. 1971, ch. 143, 5, effective emergency and provided that the act should
January 1, 1972, and substituted therefor take effect on and after April 1, 1972.
was a section comprising I.C., 18-1702, as Cross ref. Penalty for misdemeanor when
added by 1971, ch. 143, 1. However, the not otherwise provided,
18-113.
latter section was repealed by S.L. 1972, ch. Cited in: Pettibone v. United States, 148
109, 1, effective April 1, 1972. U.S. 197, 13 S. Ct. 542, 37 L. Ed. 419 (1893).
18-1703
18-1710. Falsification in official matters. [Repealed.]

Compiler's notes. These sections, which January 1, 1972 were repealed by S.L. 1972,
comprised I.C,

18-1703
18-1710, as ch. 109, 1, effective April 1, 1972.
added by 1971, ch. 143, 1, p. 630, effective
CHAPTER 18
CONTEMPTS
SECTION.
18-1801. Criminal contempts.
18-1802
18-1801. Criminal contempts.
Every person guilty of any contempt

of court, of either of the following kinds, is guilty of a misdemeanor:
1. Disorderly, contemptuous or insolent behavior committed during the
sitting of any court ofjustice, in immediate view and presence of the court
and directly tending to interrupt its proceedings or to impair the respect due
to its authority.
2. Behavior of the like character committed in the presence of any
referee, while actually engaged in any trial or hearing, pursuant to the order
of any court, or in the presence of anyjury, while actually sitting for the trial
of a cause, or upon any inquest or other proceeding authorized by law.
3. Any breach of the peace, noise or other disturbance directly tending to
interrupt the proceedings of any court.
4. Wilful disobedience of any process or order lawfully issued by any
court.
5. Resistance wilfully offered by any person to the lawful order or process
of any court.
6. The contumacious and unlawful refusal of any person to be sworn as a
witness; or, when so sworn, the like refusal to answer any material question.
[I.C.,
18-1801, as added by 1972, ch.
336, 1, p. 844; am. 1994, ch. 131,
8, p. 296.1
143,
5.
Section 7 of S.L. 1994, ch. 131 contained
repeals and 9 is compiled as
25-3511.
Cross ref. Criminal acts punishable as
crimes though also punishable as contempts,
18-105, 18-302.
in I.C.R. 42.
Cited in: Dutton v. District Court, 95 Idaho
720, 518 P.2d 1182 (1974).
Analysis
Erroneous orders.
Inherent power of court.
Jurisdiction of probate court.
Review.
Void orders.
Erroneous Orders.
Where witness refused to produce his notes,
when ordered to by court, on the grounds that
they were not used during trial to refresh his
memory, he is guilty of contempt under this
section for wilful disobedience of an order
lawfully issued by the court, regardless of
whether the interpretation by the court of
former
9-1204 was correct or erroneous.
Barnett v. Reed, 93 Idaho 319, 460 P. 2d 744
(1969).
Inherent Power of Court.
Inherent power of court of record to punish
contempts can not be abridged by legislature.
McDougall v. Sheridan, 23 Idaho 191, 128 P.
954 (1913).
Jurisdiction of Probate Court.
Probate courts have jurisdiction of criminal
contempts, but jurisdiction must be exercised
in accordance with provisions of the statute.
Where alleged contempt is not committed in
the immediate view and presence of court or
judge, no jurisdiction is acquired until affida-
vit has been presented as required by
7-
603. Harkness v. Hyde, 31 Idaho 784, 176 P.
885 (1918).
Review.
While the order holding a person in con-
tempt under this section is not appealable
under 7-614, the writ of review is a proper
method by which actions of a court in a
contempt proceeding can be reviewed.
Barnett v. Reed, 93 Idaho 319, 460 P. 2d 744
(1969).
Void Orders.
Violation of an order which is void because
of lack ofjurisdiction of the court to make it, is
not a "contempt of court," and no one is under
compulsion to obey it. State v. McNichols, 62
Idaho 616, 115 P.2d 104 (1941).
Contempt, 1 et seq.
17 C.J.S., Contempt, 1 et seq.
Right to punish for contempt for failure to
obey court order or decree either beyond
power or jurisdiction of court or merely erro-
neous. 12 A.L.R.2d 1059.
Bail jumping after conviction, failure to
surrender or to appear for sentencing, and the
like, as contempt. 34 A.L.R.2d 1100.
Limitations statute applicable to criminal
contempt proceedings. 38 A.L.R.2d 1131.
Necessity of affidavit or sworn statement as
foundation for constructive contempt. 41
A.L.R.2d 1263.
Disqualification of judge in proceedings to
punish contempt against or involving himself
or court of which he is a member. 64 A.L.R.2d
600; 37 A.L.R.4th 1004.
Published article or broadcast as direct
contempt of court. 69 A.L.R.2d 676.
Right of state in criminal contempt cases to
obtain data from defendant by interrogatories
or pretrial discovery as permitted in civil
actions. 72 A.L.R.2d 431.
Accused's right to, and prosecution's privi-
lege against, disclosure of identity of in-
former. 76 A.L.R.2d 262.
Contempt proceedings against prosecution
witness for refusal to disclose identity of in-
former. 76 A.L.R.2d 306.
Court's power to punish for contempt a
child within the age group subject to jurisdic-
tion of juvenile court. 77 A.L.R.2d 1004.
Use of affidavits to establish contempt. 79
A.L.R.2d 657.
Admissibility, in contempt proceedings
against witness, of evidence of incriminating
nature of question as to which he invoked
privilege against self-incrimination. 88
A.L.R.2d 463.
217 CORPORATIONS 18-1901
Separate contempt punishments on succes-
sive refusals to respond to same or similar
questions. 94 A.L.R.2d 1246.
False or inaccurate report of judicial pro-
ceedings as contempt. 99 A.L.R.2d 440.
Circumstances under which one court can
punish a contempt against another court. 99
A.L.R.2d 1100.
Delay in adjudication of contempt commit-
ted in the actual presence of court as affecting
court's power to punish contemptor. 100
A.L.R.2d 439.
Interference with enforcement ofjudgment
in criminal or juvenile delinquent case as
contempt. 8 A.L.R.3d 657.
Appealability of acquittal from or dismissal
of charge of contempt of court. 24 A.L.R.3d
650.
Prejudicial effect of holding accused in con-
tempt of court in presence ofjury. 29 A.L.R.3d
1399.
Appealability of contempt adjudication or
conviction. 33 A.L.R.3d 448.
Contempt adjudication or conviction as sub-
ject to review other than by appeal or writ of
error. 33 A.L.R.3d 589.
Defense of entrapment in contempt pro-
ceedings. 41 A.L.R.3d 418.
Right to counsel in contempt proceedings.
52 A.L.R.3d 1002.
Mortgagor's interference with property
subject to order of foreclosure and sale as
contempt of court. 54 A.L.R.3d 1242.
Picketing court or judge as contempt. 58
A.L.R.3d 1297.
Assault on attorney as contempt. 61
A.L.R.3d 500.
Addressing allegedly insulting remarks to
court during course of trial as contempt, by
attorney. 68 A.L.R.3d 273.
Refusal to answer questions before state
grand jury as direct contempt of court. 69
A.L.R.3d 501.
Affidavit or motion for disqualification of
judge as contempt. 70 A.L.R.3d 797.
Power of court to impose standard of per-
sonal appearance or attire. 73 A.L.R.3d 353.
18-1802

18-1809. Obstructing governmental operations. [Re-
pealed.]
comprised I.C.,
18-1802
18-1809, as
added by 1971, ch. 143, 1, p. 630, effective
January 1, 1972 were repealed by S.L. 1972,
CHAPTER 19
CORPORATIONS
SECTION.
18-1901. Fictitious stock subscription.
18-1902. Exhibition of false papers to public
officers.
18-1903. Use of false name in prospectus.
18-1904. Illegal dividends and reductions of
capital.
18-1905. Falsification of corporate books.
18-1906. Fraudulent reports by officers.
18-1907. Refusal to permit stockholder to in-
spect records.
SECTION.
18-1908. Directors deemed to have knowl-
edge of affairs.
18-1909. Director present at meeting

As-
sent to illegal acts.
18-1910. Director not present at meeting
Assent to illegal acts.

18-1911. Foreign corporations subject to
chapter.
18-1912. Director defined.
18-1901. Fictitious stock subscription.

Every person who signs
the name of a fictitious person to any subscription for, or agreement to take,
stock in any corporation existing or proposed, and every person who signs to
any subscription or agreement the name of any person, knowing that such
person has not the means or does not intend in good faith to comply with all
the terms thereof, or under any understanding or agreement that the terms
of such subscription or agreement are not to be complied with or enforced, is
18-1901, as added by 1972, ch. 336, 1, p.
844.]
the section prior to its repeal.
18-113.
Proceedings against corporations,

19-
3601
19-3608.
in 18-7803.
Cited in: Smith v. Rader, 31 Idaho 423, 173
P. 970 (1918).
Collateral References. 18B Am. Jur. 2d,
Corporations,

1893
1896.
18 C.J.S., Corporations, 196 et seq.
What amounts to participation by corporate
officer or agent in the illegal issuance of
security, in order to impose liability upon him
under state securities regulations. 44
A.L.R.3d 588.
18-1902. Exhibition of false papers to public officers.

Every
officer, agent or clerk of any corporation, or of any persons proposing to
organize a corporation, or to increase the capital stock of any corporation,
who knowingly exhibits any false, forged or altered book, paper, voucher,
security or other instrument of evidence to any public officer or board, with
intent to deceive such officer or board in respect thereto, is guilty of a
misdemeanor. [I.C.,

18-1902, as added by 1972, ch. 336, 1, p. 844.]
18-113.
in 18-7803.
18-1903. Use of false name in prospectus.

Every person who,
without being authorized so to do, subscribes the name of another to, or
inserts the name of another in, any prospectus, circular or other advertise-
ment or announcement of any corporation or joint stock association, existing
or intended to be formed, within intent to permit the same to be published,
and thereby to lead persons to believe that the person whose name is so
subscribed is an officer, agent, member or promoter of such corporation or
association, is guilty of a misdemeanor. [I.C.,

18-1903, as added by 1972,
ch. 336, 1, p. 844.]
18-113.
in 18-7803.
18-1904. Illegal dividends and reductions of capital.

Every
director of any stock corporation who concurs in any vote or act of the
directors of such corporation, or any of them, by which it is intended, either:
1. To make any dividend, except from the surplus profits arising from the
business of the corporation, and in the cases and manner allowed by law; or,
2. To divide, withdraw or in any manner, except as provided by law, pay
to the stockholders, or any of them, any part of the capital stock of the
corporation; or,
3. To discount or receive any note or other evidence of debt in payment of
any instalment actually called in and required to be paid, or with the intent
to provide the means of making such payment; or,
4. To receive or discount any note or other evidence of debt, with the
intent to enable any stockholder to withdraw any part of the money paid in
by him or his stock; or,
5. To receive from any other stock corporation, in exchange for the shares,
notes, bonds or other evidences of debt of their own corporation, shares of
the capital stock of such other corporation, or notes, bonds or other
evidences of debt issued by such other corporation;
Is guilty of a misdemeanor. [I.C.,

18-1904, as added by 1972, ch. 336,
1, p.
844.]
Compiler's notes. A former section, which section prior to its repeal,
7117; C.S.,
8501; I.C.A.,

18-113.
Sec> to sec> ref> This section is referred to
m 18-7803
18-1905. Falsification of corporate books.
Every director, officer

or agent of any corporation or joint stock association who knowingly receives
or possesses himself of any property of such corporation or association
otherwise than in payment of a just demand, and who, with intent to
defraud, omits to make, or to cause or direct to be made, a full and true entry
thereofin the books or accounts of such corporation or association, and every
director, officer, agent or member of any corporation or joint stock associa-
tion who, with intent to defraud, destroys, alters, mutilates or falsifies any
of the books, papers, writings or securities belonging to such corporation or
association, or makes or concurs in making, any false entries, or omits or
concurs in omitting to make any material entry in any book of accounts, or
other record or document kept by such corporation or association, is
punishable by imprisonment in the state prison not less than three (3) nor
more than ten (10) years, or by imprisonment in a county jail not exceeding
one
(1) year or a fine not exceeding $500, or by both such fine and
imprisonment.
B.C.,
18-1905, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Cited in: Smith v. Rader, 31 Idaho 423, 173
comprised R.S., R.C., & C.L., 7120; C.S., P. 970 (1918).
1,
Analysis
Accurate entry of fraudulent transaction,
Constitutionality.
In general,
in
18-7803. Willful and malicious conversion.
Accurate Entry of Fraudulent Transac-
tion.
Granting of defendants' motion for an advi-
sory instruction of acquittal was proper,
where the evidence showed the injection of
capital consisting of real property into a cor-
poration, entry thereof in the corporate books
in an account entitled "Real Estate Owned,"
transfer of a portion of the injected capital
(not in fact income) to an account entitled
"Other Fees and Income" with the "purpose"
noted "To reflect injected capital taken into
income to offset dividends," and payment of
dividends to shareholders out of this trans-
ferred portion; and where the evidence fur-
ther showed that these entries did in fact
accurately reflect the transactions which oc-
curred. State v. Grow, 93 Idaho 588, 468 P.2d
320 (1970).
Constitutionality.
This section does not violate the Fourteenth
Amendment to the United States Constitu-
tion because it allows for sentencing discre-
tion and not charging discretion. State v.
Edmonson, 113 Idaho 230, 743 P.2d 459
(1987).
In General.
Where an entry reflects what has actually
taken place it is not false. State v. Grow, 93
Idaho 588, 468 P.2d 320 (1970).
Willful and Malicious Conversion.
Debtor was charged with and pleaded
guilty to a violation of this section. However,
claimants attempting to pierce the corporate
veil in bankruptcy proceedings accused
debtor of willful and malicious conversion of
property. The guilty plea for falsification of
corporate records was not inconsistent with
debtor's personal liability to the claimants for
willful and malicious conversion, and there-
fore, trustee failed to rebut the presumption
that claimants' claims were valid. In re
Hawkins, 144 Bankr. 481 (Bankr. D. Idaho
1992).
18-1906. Fraudulent reports by officers.
Every director, officer or

agent of any corporation or joint stock association who knowingly concurs in
making or publishing any written report, exhibit or statement of its affairs
or pecuniary condition, containing any material statement which is false, is
18-1906, as added by 1972, ch. 336, 1, p.
844.]
8505; I.C.A.,
17-4006 was repealed by
18-113.
in 18-7803.
Cited in: State v. Paulsen, 21 Idaho 686,
123 P. 588 (1912).
18-1907. Refusal to permit stockholder to inspect records.

Every officer or agent of any corporation having or keeping an office within
this state who has in his custody or control any book, paper or document of
such corporation and who refuses to give to a stockholder or member of such
corporation, lawfully demanding, during office hours, to inspect or take a
copy of the same, or any part thereof, a reasonable opportunity so to do, is

18-1907, as added by 1972, ch. 336, 1, p.
844.1
8506; I.C.A.,
1972, and the present section added by S.L.
18-113.
Analysis
Construction.
Copies of records.
Construction.
This section and C.S., 4758, 4759 (now
repealed), have adopted and extended the
common-law rule and make the right of in-
spection of books of corporation by members
absolute. Pfirman v. Success Mining Co., 30 denied stockholders. Pfirman v. Success Min-
Idaho 468, 166 P. 216 (1917). ing Co., 30 Idaho 468, 166 P. 216 (1917).
Copies of Records.
Right to make copies of records can not be
18-1908. Directors deemed to have knowledge of affairs.
Every
director of a corporation or joint stock association is deemed to possess such
a knowledge of the affairs of his corporation as to enable him to determine
whether any act, proceeding or omission of its directors is a violation of this
chapter. [I.C.,
18-1908, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Collateral References. What amounts to
comprised R.S., R.C., & C.L., 7123; C.S., participation by corporate officer or agent in
8507;I.C.A.
17-4008 was repealed by S.L. the illegal issuance of security, in order to
1971, ch. 143, 5, effective January 1, 1972, impose liability upon him under state securi-
ties regulations. 44 A.L.R.3d 588.
18-1909. Director present at meeting
Every director of a corporation or a joint stock association who is present at

a meeting of the directors at which any act, proceeding or omission of such
directors in violation of this chapter occurs, is deemed to have concurred
therein, unless he at the time causes, or in writing requires, his dissent
therefrom to be entered in the minutes of the directors. [I.C.,

18-1909, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which 1972, and the present section added by S.L.
8508; I.C.A.,

17-4009 was repealed by section prior to its repeal.
1,
18-1910. Director not present at meeting
Every director of a corporation or joint stock association, although not

present at a meeting of the directors at which any act, proceeding or
omission of such directors in violation of this chapter occurs, is deemed to
have concurred therein, if the facts constituting such violation appear on the
records or minutes of the proceedings of the board of directors, and he
remains a director of the same company for six months thereafter, and does
not within that time cause, or in writing require, his dissent from such
illegality to be entered in the minutes of the directors. [I.C.,
18-1910, as
added by 1972, ch.
336, 1, p. 844.]
8509; I.C.A.,

1,
18-1911. Foreign corporations subject to chapter.

It is no
defense to a prosecution for a violation of the provisions of this chapter that
the corporation was one created by the laws of another state, territory,
government or country, if it was one carrying on business or keeping an
office therefor within this state. [I.C.,

18-1911, as added by 1972, ch. 336,
1,
P.
844.]
8150; I.C.A.,
18-1912. Director defined.

The term "director" as used in this
chapter embraces any of the persons having by law the direction or
management of the affairs of a corporation, by whatever name such persons
are described in its charter or known by law. [I.C.,

1972, ch. 336, 1, p.
844.]
8511; I.C.A.,
1,
Collateral References. Construction of
policy or bond indemnifying directors or offic-
ers of corporations where expenses incurred
in defending actions run against them in their
capacity as such. 49 A.L.R.3d 1250.
CHAPTER 20
CRIMINAL SOLICITATION
SECTION.
18-2001. Definition of solicitation.
18-2002. Innocence or incapacity of person
solicited
No defense.
18-2003. Renunciation of criminal purpose.
18-2004. Punishment for criminal solicita-
tion.
SECTION.
18-2005. Solicitation to halt or impede lawful
forest, mining or agricultural
practices.
18-2001. Definition of solicitation.

A person is guilty of criminal
solicitation to commit a crime if with the purpose of promoting or facilitating
its commission he solicits, importunes, commands, encourages or requests
another person to engage in specific conduct which would constitute such
crime or an attempt to commit such crime or which would establish
complicity in its commission or attempted commission. [I.C.,

18-2001, as
added by 1982, ch. 270, 1, p. 701.]
Compiler's notes. A former chapter 20,
which comprised S.L. 1917, ch. 145, 1-4,
p.
459; C.L., 7179

7179c; S.L. 1919, ch.
136, 1, p. 432; C.S.,

8580

8583; S.L.
1925, ch. 51, 1, p. 75; I.C.A.,

17-4401
17-4404 was repealed by S.L. 1971, ch. 143,

5, effective January 1, 1972.
A second former chapter 20 which com-
prised I.C.,

18-2001
18-2013, as added
by 1971, ch. 143, 1 was repealed by S.L.
1972, ch. 109, 1, effective April 1, 1972.
A third former chapter 20 which comprised
18-2001 18-2004 as added by S.L. 1972,

Cross ref. Liability for crime, principals
and accessories,
18-201 18-216.
in 18-310.
Cited in: State v. Johnson, 120 Idaho 408,
816 P.2d 364 (Ct. App. 1991); State v. Thomp-
son, 136 Idaho 322, 33 P.3d 213 (Ct. App.
2001).
Criminal Law,

181-183, 185.
22 C.J.S., Criminal Law,

114-126.
223 CRIMINAL SOLICITATION 18-2005
18-2002. Innocence or incapacity of person solicited

No de-
fense.
It is no defense to a prosecution for criminal solicitation that the

person solicited could not be guilty of the crime solicited owing to criminal
irresponsibility or other legal incapacity or exemption, or to unawareness of
the criminal nature of the conduct solicited or of the defendant's criminal
purpose or to other factors precluding the mental state required for the
commission of the crime in question. [I.C.,

18-2002, as added by 1982, ch.
270, 1, p. 701.]
18-2002 was
repealed. See Compiler's notes,
18-2001.
18-2003. Renunciation of criminal purpose.
It is an affirmative
defense that the defendant, after soliciting another person to commit a
crime, persuaded him not to do so or otherwise prevented the commission of
the crime, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. [I.C.,

18-2003, as added by 1982, ch.
270, 1, p. 701.1
18-2003 was
18-2001.
18-2004. Punishment for criminal solicitation.
Every person who

is found guilty of criminal solicitation to commit a crime is punishable in the
same manner and to the same extent as for an attempt to commit such
crime. [I.C.,

18-2004, as added by 1982, ch.
270, 1, p. 701.1
18-2004 was
18-2001.
18-2005. Solicitation to halt or impede lawful forest, mining or
agricultural practices.

Any person who solicits any other person, or
conspires with any other person to commit any crime against property or
person with the specific intent to halt, impede, obstruct or interfere with the
lawful management, cultivation or harvesting of trees or timber or with the
lawful management or operations of agricultural or mining industries, if the
act is performed to effect the object of the solicitation or conspiracy, shall be
guilty of a felony; provided however, that any person who solicits any other
person or conspires with any other person to stage a peaceful demonstration
which is not designed, planned, or intended to involve the commission of any
crime against property or person shall not be guilty of any crime under the
provision of this section. [I.C.,

18-2005, as added by 1994, ch. 214, 1, p.
672; am. 1997, ch. 222, 1, p. 654.]
CHAPTER 21
CRUELTY TO ANIMALS
[AMENDED AND REDESIGNATED OR REPEALED]
SECTION.
18-2101
18-2111. [Amended and Redesig-
nated.]
18-2113, 18-2114. [Amended and Redesignat-
ed.]
SECTION.
18-2116. [Amended and Redesignated.
18-2101

18-2111. [Amended and Redesignated.]

18-2101

18-2111 were amended and redesignated as
25-3503

25-3513, respectively, by 3
13ofS.L. 1994, ch. 346.

Another former
18-2101, which com-
prised Cr. & P. 1864, 142; R.S., R.C., & C.L.,
7152; C.S., 8541; I.C.A.,
17-4201 was
109, 1, effective April 1, 1972 and another
version added by S.L. 1972, ch. 336, 1 in the
See
25-2503.
prised Cr. & P. 1864, 143; R.S. & R.C.,
7153; am. 1909, p. 175, 1; reen. C.L.,
7153; C.S., 8542; I.C.A.,
17-4202, was
18-2102, as
109, 1, effective April 1, 1972 and another
See
25-3504.
prised R.C., 7153a, as added by 1909, p.
175, 2; reen. C.L., 7153a; C.S., 8543;
I.C.A.,
17-4203 was repealed by S.L. 1971,
I.C., 18-2103, as added by 1971, ch. 143,
1. However, the latter section was repealed
by S.L. 1972, ch. 109, 1, effective April 1,
1972 and another version added by S.L. 1972,
prior to its repeal. See
25-3505.
prised R.C., 7153b, as added by 1909, p.
175, 2; reen. C.L., 7153b; C.S., 8544;
I.C.A.,

another version added by S.L. 1972, ch. 336,
its repeal. See 25-3506.
prised R.C., 7153c, as added by 1909, p.
175, 2; reen. C.L., 7153c; C.S., 8545;
I.C.A.,
ch. 143, 5, effective January 1, 1972, I.C.,
18-2105, as added by 1971, ch. 143, 1.

prior to its repeal. See
25-3507.
prised 1883, p. 63, 4; R.S., R.C., & C.L.,
6958; C.S., 8372; I.C.A.,
17-4206 was
January 1, 1972, and another version added
by S.L. 1972, ch. 336, 1 in the same words
as the section prior to its repeal. See
25-
3508 (now repealed).
prised R.C., 7153d, as added by 1909, p.
175, 2; reen. C.L., 7153d; C.S., 8546;
I.C.A.,
its repeal. See
25-3509.
prised R.C., 7153e, as added by 1909, p.
175, 2; reen. C.L., 7153e; C.S., 8547;
I.C.A.,
its repeal. See
25-3510.
Another former
18-2109, which com-
prised R.C., 7153f, as added by 1909, p. 175,
2; reen. C.L., 7153f; C.S., 8548; I.C.A.,

5, effective January 1, 1972, and another
See
25-3511.
Another former 18-2110, as added by
1972, ch. 336, 1 was repealed by S.L. 1972,
prised R.C., 7153h, as added by 1909, p.
175, 2; reen. C.L., 7153h; C.S., 8550;
225 COMPUTER CRIME 18-2201
I.C.A.,
its repeal. See 25-3513.
18-2112. Terms defined. [Repealed.]
Compiler's notes. Another former
18-
2112, which comprised R.C., 7153i, as
added by 1909, p. 175, 2; compiled and reen.
C.L., 7153i; C.S., 8551; I.C.A.,
17-4212
effective January 1, 1972, and another ver-
sion added by S.L. 1972, ch. 336, 1 in the
Another former
18-2112, which com-
prised I.C., 18
r
336, 1, p. 844, was amended by S.L. 1994,
ch. 131, 11, effective July 1, 1994 and was
July 1, 1994.
18-2113, 18-2114. [Amended and Redesignated.]
18-2113 and
18-2114 were amended and redesignated as
25-3515 and 25-3516, respectively, by
16 and 17 of S.L. 1994, ch. 346.

prised R.C., 7153j, as added by 1909, p. 175,
2; reen. C.L., 7153j; C.S., 8552; I.C.A.,

See
25-3515.
Another former
R.C., 7153k, as added by 1909, p. 175, 2;
reen. C.L., 7153k; C.S., 8553; I.C.A.,

Section 18-2114 as added by 1972, ch. 336,
1 which was identical to the section re-
pealed in 1971 was repealed by S.L. 1972, ch.
S.L. 1994, ch. 131, 12, effective July 1, 1994
and was amended and redesignated as
25-
3517 by S.L. 1994, ch. 346, 18, effective
July 1, 1994.
Another former
18-2115, which com-
prised R.S., 71311, as added by 1909, p. 175,
2; reen. C.L., 71531; C.S., 8554; I.C.A.,

18-2116 was
25-3518 by
19 of S.L. 1994, ch. 346.
prised 1883, p. 63, 3; R.S., R.C., & C.L.,
7155; C.S., 8555; I.C.A.,
17-4216 was
as the section prior to its repeal. See
25-
3518.
CHAPTER 22
COMPUTER CRIME
SECTION.
18-2202. Computer crime.
SECTION.
18-2203 18-2206. [Repealed.]
As use [used] in this chapter:

(1) To "access" means to instruct, communicate with, store data in,
retrieve data from or otherwise make use of any resources of a computer,
computer system, or computer network.
(2)
"Computer" means, but is not limited to, an electronic device which
performs logical, arithmetic, or memory functions by the manipulations of
electronic or magnetic impulses, and includes all input, output, processing,
storage, software, or communication facilities which are connected or
related to such a device in a system or network.
(3)
"Computer network" means, but is not limited to, the interconnection
of communication lines (including microwave or other means of electronic
communication) with a computer through remote terminals, or a complex
consisting of two (2) or more interconnected computers.
(4)
"Computer program" means, but is not limited to, a series of instruc-
tions or statements, in a form acceptable to a computer, which permits the
functioning of a computer system in a manner designed to provide appro-
priate products from such computer system.
(5)
"Computer software" means, but is not limited to, computer programs,
procedures, and associated documentation concerned with the operation of
a computer system.
(6)
"Computer system" means, but is not limited to, a set of related,
connected or unconnected, computer equipment, devices, and software.
(7) "Property" includes, but is not limited to, financial instruments,
information, including electronically produced data, and computer software
and programs in either machine or human readable form, and any other
tangible or intangible item of value.
(8)
"Services" include, but are not limited to, computer time, data pro-
cessing, and storage functions. [I.C.,
18-2201, as added by 1984, ch. 68,
1, p.
129.]

18-2201 and The words in parentheses so appeared in
18-2201

the law as enacted.
18-2202 as added by S.L. 1972, ch. 336,
1
The bracketed word "used" was inserted by
were repealed by S.L. 1972, ch. 381, 17,
the compiler,
18-2202. Computer crime.
(1) Any person who knowingly accesses,

attempts to access or uses, or attempts to use any computer, computer
system, computer network, or any part thereof for the purpose of: devising
or executing any scheme or artifice to defraud; obtaining money, property, or
services by means of false or fraudulent pretenses, representations, or
promises; or committing theft; commits computer crime.
(2) Any person who knowingly and without authorization alters, dam-
ages, or destroys any computer, computer system, or computer network
described in section 18-2201, Idaho Code, or any computer software,
program, documentation, or data contained in such computer, computer
system, or computer network commits computer crime.
(3) Any person who knowingly and without authorization uses, accesses,
or attempts to access any computer, computer system, or computer network
described in section 18-2201, Idaho Code, or any computer software,
227 ELECTIONS 18-2301
program, documentation or data contained in such computer, computer
system, or computer network, commits computer crime.
(4) A violation of the provisions of subsections (1) or (2) of this section
shall be a felony. Aviolation of the provisions of subsection (3) of this section
shall be a misdemeanor. [I.C.,
18-2202, as added by 1984, ch.
68, 1, p.
129.]
18-2202 was
18-2201.
Evidence.
State did not provide substantial evidence
proving each element of defendant's alleged
crime beyond a reasonable doubt; the evi-
dence on the computer database was avail-
able to defendant from other sources before
her departure from the insurance agency, and
the State's own evidence showed that defen-
dant likely had no ability to access the com-
puter database after she left the agency. State
v. Hargrove, 138 Idaho 632, 67 P.3d 111 (Ct.
App. 2003).
18-2203
18-2206. Duels. [Repealed.]


18-2203

18-2203
18-2206 as added by S.L. 1972, ch. 336, 1

were repealed by S.L. 1972, ch. 381,
17,
CHAPTER 23
ELECTIONS
SECTION. SECTION.
18-2301. Official neglect or malfeasance. 18-2312.
18-2302. False swearing as to qualifications
as voter. 18-2313.
18-2303. Refusal to be sworn or to answer
questions. 18-2314.
18-2304. Procuring illegal votes. 18-2315.
18-2305. Intimidation* corruption and
frauds. 18-2316.
18-2306. Illegal voting or interference with
election. 18-2317.
18-2307. Attempting to vote when not quali- 18-2318.
fied, or to repeat voting. 18-2319.
18-2308. Attempt of officer to ascertain vote. 18-2320.
18-2309. Officers attempting to change re- 18-2321.
suit.
18-2310. Forging or counterfeiting returns. 18-2322.
18-2311. Adding to or subtracting from votes. 18-2323.
Aiding and abetting election of-
fenses.
Riotous conduct and interference
with election.
Betting on elections.
Election offenses not otherwise pro-
vided for.
Tampering with certificates of nom-
ination or ballots.
Destroying or defacing supplies.
Electioneering at polls.
Attempt to influence votes.
Bribery of electors.
Fraudulent permission of registra-
tion.
Illegal registration by voter.
Placing placards in booths.
18-2301. Official neglect or malfeasance.

Every person charged
with the performance of any duty, under the provisions of any law of this
state relating to elections, who wilfully neglects or refuses to perform it, or
who, in his official capacity, knowingly and fraudulently acts in contraven-
tion or violation of any of the provisions of such laws, is, unless a different
punishment for such acts or omissions is prescribed by this Code, punish-
able by fine not exceeding one thousand dollars ($1,000),
or by imprisonment
in the state prison not exceeding five (5) years, or by both and shall in
addition thereto, and regardless of whether or not criminal prosecution is
undertaken, be subject to removal from office as provided in title 19, chapter
41, Idaho Code. [I.C., 18-2301, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1885, p. 106, 33; R.S., R.C.,
& C.L., 6354; C.S., 8096; I.C.A.,
17-401
18-
2301, as added by 1971, ch. 143, 1. How-
Cross ref. Arrest, electors privileged from
during attendance on elections,
34-401.
Campaign contributions and expenditures,
violation of law regarding, penalties,

67-
6625, 67-6625A.
Contested elections, refusal of witness to
attend and testify or produce books and doc-
uments, misdemeanor,

34-2110, 34-2111.
Initiative and referendum elections,

34-
1814
34-1822.
Placing election posters on property with-
out permission,
18-7029.
Recall elections,
34-1714.
Removal of civil officers,
19-4101 et seq.
Elections, 197 et seq.
26 Am. Jur. 2d, Elections, 469.
29 C.J.S., Elections, 323 et seq.
in

34-2001 and 34-2101.
18-2302. False swearing as to qualifications as voter.

Every
person who, upon his right to vote being challenged at any election held
under the laws of this state, wilfully, corruptly and falsely swears touching
his qualifications as a voter, is guilty of perjury. [I.C.,

1972, ch. 336, 1, p. 844.]
&C.L., 6489;C.S., 8171; I.C.A.,
17-917
18-
2302, as added by 1971, ch. 143, 1. How-
Cross ref. Penalty for perjury,
18-5409.
Collateral References. Incomplete, mis-
leading, or unresponsive but literally true
statement as perjury. 69 A.L.R.3d 993.
Perjury conviction as affected by notary's
nonobservance of formalities where adminis-
tration of oath to affiant. 80 A.L.R.3d 278.
18-2303. Refusal to be sworn or to answer questions.

Every
person who, after being required by the board of judges at any election,
refuses to be sworn, or who, after being sworn, refuses to answer any
pertinent question propounded by such board, touching his right, or the
right of any other person, to vote, is guilty of a misdemeanor. [I.C.,
18-2303, as added by 1972, ch.

336, 1, p. 844.]
8097; I.C.A.,
17-402 was repealed by S.L.
143, 5.
18-113.
Collateral References. Inferences arising
from refusal of witness other than accused to
answer question on the grounds that answer
would tend to incriminate him. 24 A.L.R.2d
895.
Sufficiency of witness' claim of privilege
against self-incrimination. 51 A.L.R.2d 1178.
18-2304. Procuring illegal votes.
Every person who procures, aids,

assists, counsels or advises another to give or offer his vote at any election,
knowing that the person is not qualified to vote, is guilty of a misdemeanor.
[I.C.,
18-2304, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which ever, the latter section was repealed by S.L.
comprised S.L. 1881, p. 257, 1; R.S., R.C., & 1972, ch. 109, 1, effective April 1, 1972 and
C.L., 6358; C.S., 8100; I.C.A.,
17-405 the present section added by S.L. 1972, ch.
was repealed by S.L. 1971, ch. 143, 5, 336, 1 in the same words as the section
effective January 1, 1972, and substituted prior to its repeal by S.L. 1971, ch. 143, 5.
18- Cross ref. Penalty for misdemeanor when
2304, as added by 1971, ch. 143, 1. How- not otherwise provided,
18-113.
18-2305. Intimidation, corruption and frauds.
Every person who,

by force, threats, menaces, bribery, or any corrupt means, either directly or
indirectly attempts to influence any elector in giving his vote, or to deter him
from giving the same, or attempts by any means whatever, to awe, restrain,
hinder or disturb any elector in the free exercise of the right of suffrage, or
furnishes any elector wishing to vote, who can not read, with a ticket,
informing or giving such elector to understand that it contains a name
written or printed thereon different from the name which is written or
printed thereon, or defrauds any elector at any such election, by deceiving
and causing such elector to vote for a different person, for any office, than he
intended or desired to vote for; or who, being officer, judge, or clerk of any
election, while acting as such, induces, or attempts to induce, any elector,
either by menace or reward, or promise thereof, to vote differently from
what such elector intended or desired to vote, is guilty of a misdemeanor.
[I.C.,

18-2305, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6364; C.S., 8106; I.C.A.,
18-113.
18-2306. Illegal voting or interference with election.

Every
person not entitled to vote, who fraudulently votes, and every person who
votes more than once at any one election, or knowingly hands in two (2) or
more tickets folded together, or changes any ballot after the same has been
deposited in the ballot box, or adds, or attempts to add, any ballot to those
legally polled at any election, either by fraudulently introducing the same
into the ballot box before or after the ballots therein have been counted, or
adds to or mixes with, or attempts to add to or mix with, the ballots lawfully
polled, other ballots, while the same are being counted or canvassed, or at
any other time, with intent to change the result of such election; or carries
away or destroys, or attempts to carry away or destroy, any poll list, or
ballots, or ballot box, for the purpose of breaking up or invalidating such
election, or wilfully detains, mutilates, or destroys any election returns, or
in any manner so interferes with the officers holding such election or
conducting such canvass, or with the voters lawfully exercising their rights
of voting at such election, as to prevent such election or canvass from being
fairly held and lawfully conducted, is guilty of a felony. [I.C.,

18-2306, as
added by 1972, ch. 336, 1, p. 844.]
C.L., 6356; C.S., 8098; I.C.A.,
18- Cross ref. Penalty for felony when not
2306, as added by 1971, ch. 143, 1. How- otherwise provided,

18-112.
18-2307. Attempting to vote when not qualified, or to repeat
voting.
Every person not entitled to vote, who fraudulently attempts to

vote, or who, after being entitled to vote, attempts to vote more than once at
any election, is guilty of a misdemeanor. [I.C.,

18-2307, as added by 1972,
ch. 336, 1, p. 844.]
C.L., 6357; C.S., 8099; I.C.A.,
18-113.
18-2308. Attempt of officer to ascertain vote.
Every officer, judge,

or clerk of an election, who, previous to putting the ballot of an elector in the
ballot box, attempts to find out any name on such ballot, or who opens, or
suffers the folded ballot of any elector which has been handed in, to be
opened or examined previous to putting the same into the ballot box, or who
makes, or places any mark or device on any folded ballot, with a view to
ascertain the name of any person for whom the elector has voted, or who,
without the consent of the elector, discloses the name of any person which
such officer, judge, or clerk has fraudulently or illegally discovered to have
been voted for by such elector, is punishable by fine of not less than fifty
dollars nor more than $500. [I.C.,

18-2308, as added by 1972, ch. 336, 1,
p. 844.]
Compiler's notes. A former section, which section added by S.L. 1972, ch. 336, 1 in the
comprised S.L. 1881, p. 257, 3; R.S., R.C., & same words as the section prior to its repeal.
C.L.,
6360; C.S.,
8102; I.C.A.,

17-407
in 18-2312.
effective January 1, 1972, and the present
18-2309. Officers attempting to change result.

Every officer or
clerk of election who aids in changing or destroying any poll list, or in
placing any ballots in the ballot box, or taking any therefrom, or adds, or
attempts to add, any ballots to those legally polled at such election, either by
fraudulently introducing the same into the ballot box before or after the
ballots therein have been counted or adds to or mixes with, or attempts to
add to or mix with the ballots polled any other ballots, while the same are
being counted or canvassed, or at any other time, with intent to change the
result of such election, or allows another to do so when in his power to
prevent it, or carries away or destroys, or knowingly allows another to carry
away or destroy, any poll list, ballot box or ballots lawfully polled, is guilty
of a felony. [I.C.,
18-2309, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which same words as the section prior to its repeal,
comprised S.L. 1881, p. 257, 4; R.S., R.C., &
C.L.,
6359; C.S.,
8101; I.C.A.,

17-406
otherwise provided,
18-112.
Sec. to sec. ref. Thig section is referred to
m 18-2312
18-2310. Forging or counterfeiting returns.

Every person who
forges or counterfeits returns of an election purporting to have been held at
a precinct, town, or ward where no election was in fact held, or wilfully
substitutes forged or counterfeit returns of election in the place of the true
returns for a precinct, town, or ward where an election was actually held, is
guilty of a felony. [I.C.,

18-2310, as added by 1972, ch.
336, 1, p. 844.1
C.L.,
6361; C.S.,
8103; I.C.A.,

17-408
otherwise provided,
18-112.
Sec# to sec> ref# This section is referred to
m
s
18-2312
18-2311. Adding to or subtracting from votes.
Every person who

wilfully adds to or subtracts from the votes actually cast at an election in
any returns, or who alters such returns, is guilty of a felony. [I.C.,

18-2311,
as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1881, p* 257, 4; R.S., R.C., & same words as the section prior to its repeal.
C.L.,
6362; C.S.,
8104; I.C.A.,

17-409
otherwise provided,
18-112.
18-2312. Aiding and abetting election offenses.

Every person
who aids or abets in the commission of any of the offenses mentioned in the
four preceding sections, is punishable by imprisonment in the county jail for
the period of six months, or in the state prison not exceeding two (2) years.
[I.C.,

18-2312, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Collateral References. Aiding and abet-
comprised R.S., R.C., & C.L., 6363; C.S., ting violation of election laws, criminal re-
8105; I.C.A.,

17-410 was repealed by S.L. sponsibility for. 5 A.L.R. 786; 74 A.L.R. 1110;
1971, ch. 143, 5, effective January 1, 1972, 131 A.L.R. 1322.
18-2313. Riotous conduct and interference with election.

Any
person who wilfully disturbs, or is guilty of any riotous conduct at or near,
any election place or voting precinct, with intent to disturb the same, or
interferes with the access of the electors to the polling place, or in any
manner, with the free exercise of the election franchise of the voters, or any
voter there assembled, or disturbs or interferes with the canvassing of the
votes, or with the making of the returns, is guilty of a misdemeanor. [I.C.,
18-2313, as added by 1972, ch. 336, 1, p. 844.]

C.L., 6365; C.S.,
8107; I.C.A.,

17-412
18-113.
18-2314. Betting on elections.
Every person who makes, offers, or

accepts any bet or wager upon the result of any election, or upon the success
or failure of any person or candidate, or upon the number of votes to be cast,
either in the aggregate or for any particular candidate, or upon the vote to
be cast by any person, is guilty of a misdemeanor. [I.C.,
18-2314, as added
by 1972, ch. 336, 1, p. 844.]
8108; I.C.A.,

1971, ch. 143, 5,
effective January 1, 1972,
18-113.
18-2315. Election offenses not otherwise provided for.

Every
person who wilfully violates any of the provisions of the laws of this state
relating to elections is, unless a different punishment for such violation is
prescribed by law, punishable by fine not exceeding $1,000, or by imprison-
ment in the state prison not exceeding five (5) years, or by both. [I.C.,
18-2315, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. A former section, which erence to, the offense in pronouncing sentence
comprised R.S., R.C., & C.L., 6367; C.S., or judgment for violation of election laws. 14
8109; I.C.A.,
17-414 was repealed by S.L. A.L.R. 998.
1971, ch. 143, 5,
effective January
1, 1972,
"Infamous offense," elective franchise as,
within constitutional or statutory provision in
ch. 336,
1 in the same words as the section
relation to presentment or indictment by
grand
j
ury 24 A.L.R. 1009.
Collateral References. Recital of, or ref-
18-2316. Tampering with certificates of nomination or ballots.
No person shall falsely make, or make oath to, or fraudulently deface, or

fraudulently destroy, any certificate of nomination, or any part thereof, or
file, or receive for filing, any certificate of nomination, or letter of with-
drawal, knowing the same or any part thereof to be falsely made, or
suppress any certificate of nomination which has been duly filed, or any part
thereof, or wilfully delay the delivery of any ballots, or forge or falsely make
the official indorsement on the ballot, or wilfully destroy any ballot. Every
person violating any of the provisions of this section shall be deemed guilty
of a felony, and, upon conviction thereof in any court of competent jurisdic-
tion, shall be punished by imprisonment in the penitentiary for a period of
not less than one year nor more than five years. [I.C.,
18-2316, as added
by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which S.L. 1971, ch. 143, 5, effective January
1,
comprised S.L. 1890-1891, p. 50, 2; reen. 1972, and the present section added by S.L.
1899, p. 27, 2; reen. R.C., & C.L., 6369; 1972, ch. 336, 1 in the same words as the
C.S. 8110; I.C.A.,
18-2317. Destroying or defacing supplies.
No person shall, during

the election, remove or destroy any of the supplies or conveniences placed in
the booths or compartments for the purpose of enabling the voter to prepare
his ballot, or prior to, or on the day of election, wilfully deface or destroy any
list of candidates posted in accordance with the provisions of title 34
concerning elections. No person shall, during an election, tear down or
deface the cards printed for the instruction of voters. Every person wilfully
violating any of the provisions of this section shall be deemed guilty of a
misdemeanor, and, upon conviction thereof in any court of competent
jurisdiction, shall be fined in any sum not exceeding $100.00. [I.C.,

18-
2317, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1890-1891, p. 50, 3; reen. 1972, ch. 336, 1 in the same words as the
1899, p. 27, 3; reen. R.C., & C.L.,
6370; section prior to its repeal.
C.S.,
8111; I.C.A.,

Cross ref. Elections,
34-101.
18-2318. Electioneering at polls.

(1) On the day of any primary,
general or special election, no person may, within a polling place, or any
building in which an election is being held, or on private property within one
hundred (100) feet thereof, or on public property within three hundred (300)
feet thereof:
(a) Do any electioneering;
(b) Circulate cards or handbills of any kind;
(c) Solicit signatures to any kind of petition; or
(d) Engage in any practice which interferes with the freedom of voters to
exercise their franchise or disrupts the administration of the polling place.
(2) No person may obstruct the doors or entries to a building in which a
polling place is located or prevent free access to and from any polling place.
(3) Any election officer, sheriff, constable or other peace officer is hereby
authorized, and it is hereby made the duty of such officer, to arrest any
person violating the provisions of subsections (1) and (2) of this section, and
such offender shall be punished by a fine of not less than twenty-five dollars
($25.00) nor exceeding one hundred dollars ($100). [I.C.,

18-2318, as
added by 1986, ch.
97, 2, p. 275; am. 1997, ch. 360, 1, p. 1061.]
which comprised I.C., 18-2318, as added by ch. 143, 5, effective January 1, 1972.
1972, ch. 336, 1, p. 844, was repealed by Section 3 of S.L. 1986, ch. 97 is compiled as
S.L. 1986, ch. 97, 1, effective March 22,
34-2309.
1986. Section 4 of S.L. 1986, ch. 97 declared an
Another former 18-2318, which com- emergency. Approved March 22, 1986.
prised 1890-1891, p. 50, 4; reen. 1899, p. 27, Sec. to sec. ref. This section is referred to
4; reen. R.C. C.L., 6371; C.S., 8112; in
34-1006.
18-2319. Attempt to influence votes.

No person shall attempt to
influence the vote of any elector by means of a promise or a favor, or by
means ofviolence or threats ofviolence, or threats of withdrawing custom or
dealing in business or trade, or enforcing the payment of a debt, or
discharging from employment, or bringing a suit or criminal prosecution, or
any other threat of injury to be inflicted by him, or by any other means. [I.C.,
18-2319, as added by 1972, ch. 336, 1, p. 844.]

1,
C.S., 8113; I.C.A.,
18-2320. Bribery of electors.

No person shall in any way offer a
bribe to an elector to influence his vote. [I.C.,

18-2320, as added by 1972,
ch.
336, 1, p. 844.]
C.S., 8114; I.C.A.,
18-2321. Fraudulent permission of registration.

Any registry
agent, or other person, who in any manner shall wilfully or corruptly permit
any person not entitled to registration or to a certificate of registration, to be
registered or have a certificate of registration, or who delays or fails to
deliver the certified copies of the official register and the check list to the
judges of election as required by law, or who permits any person to register
after the date on which the registration books close, or who shall otherwise
wilfully or corruptly violate any of the provisions of the law governing
elections, the penalty for which is not herein specially prescribed, shall be
punished for each and every offense by imprisonment in the penitentiary for
a term of not less than one
(1) year nor more than five (5)
years, or by a fine
of not less than $100 nor more than $2,000, or by both such fine and
imprisonment in the discretion of the court. [I.C.,
1972, ch. 336, 1, p. 844.]
1,
C.S.,
8115; I.C.A.,
18-2322. Illegal registration by voter.

Any person who shall
wilfully cause, or endeavor to cause, his name to be registered in any other
election district than that in which he resides, or will reside prior to the day
of the next ensuing election, except as herein otherwise provided, and any
person who shall cause, or endeavor to cause, his name to be registered,
knowing that he is not a qualified elector, and will not be a qualified elector
on or before the day of the next ensuing election, in the election district in
which he causes or endeavors to cause such registry to be made, and any
person who shall induce, aid or abet any one in the commission of either of
235 THEFT 18-2401
the acts in this section enumerated and described, shall be fined not less
than fifty dollars ($50.00) nor more than $500.00, or be confined in the
county jail for not less than one (1) month nor more than six (6) months, or
both. [I.C.,

18-2322, as added by 1972, ch.
336, 1, p. 844.]
1,
C.S., 8116; I.C.A.,
17-421 was repealed by section prior toJts repeal.
18-2323. Placing placards in booths.

Any person or officer of
election who shall put, or permit to be put, into a voting booth, any placard,
notice or device, except the sample ballots and cards of instruction as by law
provided, intended or likely to call the attention of the voter to any
candidate, or to urge the voter to vote for any particular candidate, or shall
put, or allow anything to be put, into such booths for the use or comfort of
the voter whereby the claims of any candidate are urged upon the voter,
either directly or indirectly, shall be imprisoned in the county jail not to
exceed three (3) months, or fined not to exceed $500.00, or both. [I.C.,
18-2323, as added by 1972, ch. 336, 1, p. 844.]

C.S., 8117; I.C.A.,
CHAPTER 24
THEFT
SECTION. SECTION.
18-2401. Consolidation of theft offenses. obliterating numbers
Sales
18-2402. Definitions. prohibited
Penalty.
18-2403. Theft. 18-2411. Unlawful use of theft detection
18-2403A. [Repealed.] shielding devices.
18-2404. Prima facie evidence

Theft by 18-2412, 18-2413. [Repealed.!
lessee. 18-2415. Scanning
Reencoding.
18-2405. Proof of fraudulent intent in procur- 18-2416. Short title.
ing food, lodging or other ac- 18-2417. Definitions.
commodations. 18-2418. Prohibited sales

Certain mer-
18-2406. Defenses. chandise.
18-2407. Grading of theft. 18-2419. Recordkeeping requirements

Vi-
18-2408. Punishment for theft. olations.
18-2409. Pleading and proof. 18-2420. Exemptions.
18-2410. Prohibiting defacing, altering or 18-2421. Penalties.
18-2401. Consolidation of theft offenses.

(1) Conduct denomi-
nated theft in this chapter constitutes a single offense superceding the
separate offenses previously known as embezzlement, extortion, false pre-
tenses, cheats, misrepresentations, larceny and receiving stolen goods.
(2) An accusation of theft may be supported by evidence that it was
committed in any manner that would be theft under this chapter, notwith-
standing the specification of a different manner in the indictment, informa-
tion or complaint, subject only to the power of the court to ensure fair trial
by granting a continuance or other appropriate relief where the conduct of
the defense would be prejudiced by lack of fair notice or by surprise. [I.C.,
18-2401, as added by 1981, ch. 183, 2, p. 319.1


18-2401

18-2403, 18-2404
18-2410 (I.C.,
18-2401
18-2403, 18-2404
18-2410 as added by
1972, ch. 336, 1, p. 844), were repealed by
S.L. 1981, ch. 183,
1.
Other former

18-2401 18-2403 and
18-2404
18-2410 which comprised Cr. & P.,

1864, 69, 74-76; R.S., R.C., & C.L.,
7065-7066; C.S., 8450, 8451 and

845 1A, as added by 1927, ch. 45, 1, p. 60,
8452, 8454-8458; I.C.A.,
17-3601
17-
3610, were repealed by S.L. 1971, ch. 143,
Cross ref. Drawing check without funds or
with insufficient funds,

1-2301A, 18-3106.
Misuse of financial transaction card,

18-
3122
18-3127.
See subdivision "embezzlement" in table of
cross references to penal provisions in other
volumes at end of this volume.
in

19-5506 and 33-2620.
18-7803,
19-5506 and 19-2520C.
Analysis
Evidence.
Grand larceny.
Evidence.
Possession of recently stolen property is
evidence from which a larceny may be permis-
sively inferred by the triers of fact. State v.
App. 1985).
Grand Larceny.
In deciding the propriety of aggregating
several small larcenous acts into one charge
of grand larceny, the test is whether the items
were possessed as a part of a single incident
or pursuant to a common scheme or plan
reflecting a single, continuing criminal im-
pulse or intent. State v. Major, 111 Idaho 410,
725 P.2d 115 (1986).
Where the property was stolen at the same
time from one individual, and, on the same
day, the defendant and her associates trans-
ported all of the stolen property to the city
outside of the Indian reservation, pawned one
item there, and proceeded to the reservation
where they were arrested, the defendant com-
mitted but one offense of possession of stolen
property; accordingly, she was properly
charged in the information with but one of-
fense, and the amendment to the information
adding the property recovered from the pawn
shop under the same offense was permissible.
State v. Major, 111 Idaho 410, 725 P.2d 115
(1986).
Analysis
Evidence proving corpus delicti.
Instructions.
Lack of specific intent.
Evidence Proving Corpus Delicti.
Where there was evidence that a cow's
owners had put it out to summer on their
land, that they were unable to find the cow
when they removed their animals from the
pasture and that they reported the cow as lost
shortly thereafter, where a youth who occa-
sionally worked for defendant testified that
defendant told him that she had found a cow
alongside the road and had loaded it into her
pickup and another witness testified he had
received the cow from defendant in exchange
for some work he had done for her and the bill
of sale that she gave him was admitted in
evidence, and where investigation revealed
that the cow the witness received bore a
lightly applied brand registered to the owners
and the owners identified pictures of the an-
imal that defendant gave to the witness as
being the animal they reported missing, such
evidence was sufficient to prove the corpus
delicti. State v. Owens, 101 Idaho 632, 619
P.2d 787 (1979), overruled on other grounds,
State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct.
App. 1984).
Instructions.
In action for theft of cow, once evidence was
submitted that would support a finding that
the cow was stolen it was not error for the
trial court to give an instruction that defen-
dant's unexplained possession of recently sto-
len property may raise an inference that the
defendant committed the larceny. State v.
Owens, 101 Idaho 632, 619 P.2d 787 (1979),
107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).
Lack of Specific Intent.
Where evidence showed that a rancher pur-
chased a mare and released it into his pasture
and that another mare which was similar in
237 THEFT 18-2401
size and appearance to his own apparently
strayed into the pasture, and where the
rancher sold the second mare when it became
barren, he could not be convicted for grand
larceny in the sale of such mare since the
circumstantial evidence adduced was consis-
tent with the rancher's assertion that sale
was a mistake, thus, there was necessarily
reasonable doubt as to the element of feloni-
ous intent. State v. Anderson, 102 Idaho 464,
631 P.2d 1223 (1981).
Embezzlement, 1 et seq.
31AAm. Jur. 2d, Extortion and Blackmail,
1 et seq.
32 Am. Jur. 2d False Pretenses, 1 et seq.
50 Am. Jur. 2d, Larceny, 1 et seq.
66 Am. Jur. 2d, Receiving and Transporting
Stolen Goods, 1 et seq.
29A C.J.S., Embezzlement, 1 et seq.
35 C.J.S., Extortion, 1 et seq.
35 C.J.S., False Pretenses, 1 et seq.
52B C.J.S., Larceny, 1 et seq.
76 C.J.S., Receiving Stolen Goods, 1 et
seq.
Should ownership of property be laid in the
husband or wife in an indictment for larceny.
2 A.L.R. 352.
Wife's criminal responsibility for receiving
stolen goods from husband. 4 A.L.R. 281; 71
A.L.R. 1116.
in offense of embezzlement which he is inca-
pable of committing personally. 5 A.L.R. 784;
74 A.L.R. 1110; 131 A.L.R. 1322.
Incapacity of one cooperating in offense of
larceny to commit j:he crime personally as
affecting his criminal responsibility. 5 A.L.R.
785; 74 A.L.R. 1110; 131 A.L.R. 1322.
Experimental evidence in prosecution for
larceny. 8 A.L.R. 40; 85 A.L.R. 479.
Telephone conversation as false pretense. 8
A.L.R. 656.
Business transaction, false representations
in, as within statute as to "confidence game."
9 A.L.R. 1527; 56 A.L.R. 727.
Variance between allegation and proof as to
the capacity in which one charged with em-
bezzlement received the property. 12 A.L.R.
603.
Intent to convert property to one's own use
or to the use of third person as element of
larceny. 12 A.L.R. 804.
Larceny as affected by purpose to take or
retain property in payment of, or as security
for, a claim. 13 A.L.R. 142; 19 A.L.R. 303; 116
A.L.R. 997.
Purpose to take or return property in pay-
ment of, or as security for, a debt or claim as
affecting embezzlement. 13 A.L.R. 142; 19
A.L.R. 303; 116 A.L.R. 997.
Distinction between larceny and embezzle-
ment. 13 A.L.R. 319; 146 A.L.R. 532.
Embezzlement by appropriating money or
proceeds of paper mistakenly delivered in
excess of the amount due or intended. 14
A.L.R. 894.
Recital of, or reference to, the offense in
pronouncing sentence or judgment. 14 A.L.R.
1001.
Effect of participation by spouse of owner in
or consent to, taking of property. 14 A.L.R.
1271.
Operating confidence game as vagrancy. 14
A.L.R. 1501.
Vagrancy, thieving as. 14 A.L.R. 1505.
Obtaining money for goods not intended to
be delivered as false pretenses. 17 A.L.R. 199.
Directing acquittal for insufficiency of the
evidence, duty of trial court as to. 17 A.L.R.
923.
Entrapment to commit crime with view to
prosecution therefor. 18 A.L.R. 146; 66 A.L.R.
478; 86 A.L.R. 263.
Pendency of charge of larceny as bar to
charge in another county of offense involving
both felonious breaking and felonious taking
of same property. 19 A.L.R. 636.
"Asportation" which will support charge of
larceny. 19 A.L.R. 724; 144 A.L.R. 1383.
Governmental agency, presentation of and
attempt to establish fraudulent claim
against. 21 A.L.R. 180.
Loans and renewals thereof, false pre-
tenses. 24 A.L.R. 397; 52 A.L.R. 1167.
Supernatural powers, obtaining loan by
claim of. 24 A.L.R. 401; 52 A.L.R. 1167.
"Infamous offense," embezzlement as,
within constitutional or statutory provision in
relation to presentment or indictment by
grand jury. 24 A.L.R. 1009.
Appropriation of property after obtaining
possession by fraud as larceny. 26 A.L.R. 381.
Gaming, larceny by appropriation of prop-
erty obtained by fraudulent gaming. 26 A.L.R.
386.
A.L.R. 295.
Assisting in transportation or disposal of
property known to have been stolen as ren-
dering one guilty of larceny. 29 A.L.R. 1031.
Individual criminal responsibility of officer
or employee for larceny or embezzlement,
through corporate act, of property of third
person. 33 A.L.R. 787.
Fraudulent misrepresentation or conceal-
ment by a contracting party concerning title
to property or other subjects which are mat-
ters of public record. 33 A.L.R. 853; 56 A.L.R.
1217.
False pretense or confidence game through
means of worthless check or draft. 35 A.L.R.
344; 174 A.L.R. 173.
Purchase of property on credit without in-
tending to pay for it as larceny. 35 A.L.R.
1336.
Retaking of money lost at gambling as
robbery or larceny. 35 A.L.R. 1458; 116 A.L.R.
997.
Finder of property, larceny by. 36 A.L.R.
372.
Lost property as subject of larceny. 36
A.L.R. 373.
Bees, larceny of. 39 A.L.R. 358.
Trustee of person acting in fiduciary capac-
ity, partner as within statute relating to em-
bezzlement by. 41 A.L.R. 474.
Independence of contract considered with
relation to embezzlement acts. 43 A.L.R. 356.
Misappropriation by officer or employee of
depository or bailee as sustaining a criminal
charge against him of embezzlement of prop-
erty of depositor or bailor. 45 A.L.R. 933.
Threats as criminal offense. 48 A.L.R. 90.
Criterion of value for purpose of fixing de-
gree of larceny of automobile license plates.
48 A.L.R. 1167.
Larceny or embezzlement by one spouse of
other's property. 55 A.L.R. 558.
War risk insurance, embezzlement of pro-
ceeds of. 55 A.L.R. 614; 73 A.L.R. 319; 81
A.L.R. 933.
"Embezzlement" within fidelity bond. 56
A.L.R. 967.
"Larceny" within fidelity bond. 56 A.L.R.
967.
Record, false statement as to matter of, as
false pretense within criminal statute. 56
A.L.R. 1217.
General owner, larceny by, of property in
which another has a special interest or right
in possession of bailee or pledgee. 58 A.L.R.
330.
Animals kept as pasture, larceny by gen-
eral owner. 58 A.L.R. 338.
Unauthorized use of another's property by
one lawfully in possession thereof as larceny.
62 A.L.R. 354.
Possession of recently stolen goods by one
charged with receiving them as evidence on
question of guilty knowledge. 68 A.L.R. 187.
Acceptance of defendant's note or other
contractual obligation as affecting charge of
embezzlement. 70 A.L.R. 208.
Acceptance of defendant's note or other
contractual obligation as affecting charge of
Married woman's criminal responsibility
for stealing from husband. 71 A.L.R. 1126.
Misappropriation of executor, administra-
tor, guardian, or trustee as embezzlement. 75
A.L.R. 299.
Outlawed liquor as subject of embezzle-
ment. 75 A.L.R. 1479.
Outlawed liquors as subject of larceny or
kindred offenses. 75 A.L.R. 1479.
Verdict on conviction of larceny, which fails
to state value of property, sufficiency of. 79
A.L.R. 1180.
Cash payment appropriation or removal
without payment of property delivered in ex-
pectation of. 83 A.L.R. 441.
Dog as subject of larceny. 92 A.L.R. 212.
Illegal or fraudulent intent of prosecuting
witness or person defrauded as defense. 95
A.L.R. 1249; 128 A.L.R. 1520.
Gas as subject of larceny. 113 A.L.R. 1282.
Electrical energy as subject of larceny. 113
A.L.R. 1283.
Water as subject of larceny. 113 A.L.R.
1284.
Oil as subject of larceny. 113 A.L.R. 1285.
Power as subject of larceny. 113 A.L.R.
1285.
Successive takings of electrical energy, gas,
water, heat and power as a single offense. 113
A.L.R. 1286.
Conditional sale, offense of obtaining prop-
erty by false pretenses predicated upon trans-
action involving. 134 A.L.R. 874.
Extortion predicated upon statements or
intimations regarding criminal liability in
connection with attempt to collect or settle a
claim which defendant believed to be valid.
135 A.L.R. 728.
Threats of criminal prosecution to collect
just debt. 135 A.L.R. 729.
False pretenses, attempt to obtain money
under, predicated upon receipt or claim of
benefits under insurance policy. 135 A.L.R.
1157.
Pension money, wrongful withholding of by
agent. 136 A.L.R. 809.
May participant in larceny or theft be con-
victed of offenses of receiving or concealing
the stolen property. 136 A.L.R. 1087.
Criminal charge predicated upon fraudu-
lently obtaining a check, note, etc., or signa-
ture thereon, from the person executing the
same. 141 A.L.R. 210.
False pretenses, variance between allega-
tion that defendant obtained "money" by, and
proof that he obtained and cashed a check,
note, etc. 141 A.L.R. 220.
Employee or subordinate, statutes relating
to embezzlement of public money by officer in
charge thereof as applicable to. 144 A.L.R.
590.
Criminal offense of obtaining property by
false pretenses predicated upon transactions
incident to raising of funds for benevolent or
charitable purpose. 145 A.L.R. 302.
Benevolent or charitable purpose, criminal
offense of obtaining property by false pre-
tenses predicated upon promissory represen-
tations incident to raising of funds for. 145
A.L.R. 307.
Fixed or controlled price as affecting value
of goods for purpose of determining degree of
Commencement of running of limitations
against prosecution for embezzlement. 158
A.L.R. 1158.
Right to bill of particulars. 5 A.L.R.2d 528.
Obtaining payment by debtor on valid in-
239 THEFT 18-2401
debtedness by false representation as crimi-
nal false pretenses. 20 A.L.R.2d 1266.
Gift or other voluntary transfer by husband
as fraud on wife. 49 A.L.R.2d 521; 64 A.L.R.3d
187.
ject of larceny. 51 A.L.R.2d 1396.
False pretense, false statement as to exist-
ing encumbrance on chattel in obtaining loan
or credit as. 53 A.L.R.2d 1215.
Embezzlement by independent collector or
collection agency working on commission or
percentage. 56 A.L.R.2d 1156.
Receiving property stolen in another state
or country as receiving stolen property. 67
A.L.R.2d 752.
Corporate name, criminal liability of corpo-
rate officer who issues worthless checks in. 68
A.L.R.2d 1269.
Cats, larceny of. 73 A.L.R.2d 1032.
Admissibility to establish fraudulent pur-
pose or intent, in prosecution for obtaining or
attempting to obtain money or property by
false pretenses, of evidence of similar at-
tempts on other occasions. 78 A.L.R.2d 1359.
Taking, and pledging or pawning, another's
property as larceny. 82 A.L.R.2d 863.
Attempts to receive stolen property. 85
A.L.R.2d 259.
Drawing of check on bank account of prin-
cipal or employer payable to accused's credi-
tor as constituting embezzlement. 88
A.L.R.2d 688.
Stolen money or property as subject of lar-
ceny. 89 A.L.R.2d 1435.
"Merger" clause in written contract as pre-
cluding conviction for false pretenses based
on earlier oral false representations. 94
A.L.R.2d 570.
Sufficiency of description of stolen property
in indictment or information for receiving it.
99 A.L.R.2d 813.
Criminal responsibility for fraud or false
pretenses in connection with home repairs or
installations. 99 A.L.R.2d 925.
Attempts to commit offenses of larceny by
trick, confidence game, false pretenses, and
the like. 6 A.L.R.3d 241.
Reasonable expectation of payment as af-
fecting offense under "worthless check" stat-
utes. 9A.L.R.3d719.
Admissibility, in prosecution for obtaining
money or property by fraud or false pretenses,
of evidence of subsequent payments made by
accused to victim. 10 A.L.R.3d 572.
Entrapment or consent. 10 A.L.R.3d 1121.
Cotenant taking cotenancy property. 17
A.L.R.3d 1394.
Single or separate larceny predicated upon
stealing property from different owners at the
same time. 37 A.L.R.3d 1407.
Criminal liability in connection with rental
of motor vehicles. 38 A.L.R.3d 949.
Imposition of constructive trust in property
bought with stolen or embezzled funds. 38
A.L.R.3d 1354.
Purse snatching as robbery or theft. 42
A.L.R.3d 1381.
Criminal prosecution based upon breaking
into or taking money or goods from vending
machine or other coin operated machine. 45
A.L.R.3d 1286.
Criminal liability of corporation for extor-
tion, false pretenses or similar offenses. 49
A.L.R.3d820.
What amounts to "exclusive" possession of
stolen goods to support inference of burglary
or other felonious taking. 51 A.L.R.3d 727.
Separate takings over a period of time,
aggregation of rendering the taking a grand
larceny. 53 A.L.R.3d 398.
Validity in construction of statutes or rules
setting up clients security fund. 53 A.L.R.3d
1298.
Receipt of public documents taken by an-
other without authorization as receipt of sto-
len property. 57 A.L.R.3d 1211.
Changing of price tags by patron in self-
service store as criminal offense. 60 A.L.R.3d
1293.
What constitutes "property" obtained
within extortion statute. 67 A.L.R.3d 1021.
Asportation of motor vehicle as necessary
element to support charge of larceny. 70
A.L.R.3d 1202.
Cashing check at bank at which account is
maintained as violation of bad check statutes.
75 A.L.R.3d 1080.
What conduct amounts to an overt act or
acts done toward commission of larceny so as
to sustain charge of attempt to commit lar-
ceny. 76 A.L.R.3d 842.
When statute of limitations begins to run
against criminal prosecution for embezzle-
ment, fraud, false pretenses, or similar
crimes. 77 A.L.R.3d 689.
Gaming, retaking of money lost at, as lar-
ceny. 77 A.L.R.3d 1363.
Where embezzlement is committed for pur-
poses of territorial jurisdiction or venue. 80
A.L.R.3d 514.
Criminal liability for wrongfully obtaining
unemployment benefits. 80 A.L.R.3d 1280.
Embezzlement, larceny, false pretenses, or
allied criminal fraud by a partner. 82
A.L.R.3d 822.
Criminal liability for misappropriation of
trade secret. 84 A.L.R.3d 967.
Measure, elements and amount of damages
for killing or injuring cat. 8 A.L.R.4th 1287.
Modern status of rule that crime of false
pretenses cannot be predicated upon present
intention not to comply with promise or state-
ment as to future act. 19 A.L.R.4th 959.
Criminal liability under state laws in con-
nection with application for or receipt of pub-
lic welfare payments. 22 A.L.R.4th 534.
Criminal liability for theft of, interface
with, or unauthorized use of, computer pro- Validity, construction, and effect of statutes
grams, files, or systems. 51 A.L.R.4th 971. establishing shoplifting or its equivalent as
Criminal liability for theft of, interference separate criminal offense. 64 A.L.R.4th 1088.
with, or unauthorized use of, computer pro-
Liability for injuries caused by cat. 68
grams, files, or systems. 51 A.L.R.4th 971.
A.L.R.4th 823.
Cat as subject of larceny. 55 A.L.R.4th 1080.
The following definitions are applicable to this

chapter:
(1)
"Appropriate." To "appropriate" property of another to oneself or a
third person means:
(a) To exercise control over it, or to aid a third person to exercise control
over it, permanently or for so extended a period or under such circum-
stances as to acquire the major portion of its economic value or benefit; or
(b) To dispose of the property for the benefit of oneself or a third person.
(2)
"Deception" means knowingly to:
(a) Create or confirm another's impression which is false and which the
offender does not believe to be true; or
(b) Fail to correct a false impression which the offender previously has
created or confirmed; or
(c) Prevent another from acquiring information pertinent to the disposi-
tion of the property involved; or
(d) Sell or otherwise transfer or encumber property, failing to disclose a
lien, adverse claim, or other legal impediment to the enjoyment of the
property whether such impediment is or is not valid, or is or is not a
matter of official record; or
(e) Promise performance which the offender does not intend to perform or
knows will not be performed. Failure to perform, standing alone, is not
evidence that the offender did not intend to perform.
(3) "Deprive." To "deprive" another of property means:
(a) To withhold it or cause it to be withheld from him permanently or for
so extended a period or under such circumstances that the major portion
of its economic value or benefit is lost to him; or
(b) To dispose of the property in such manner or under such circum-
stances as to render it unlikely that an owner will recover such property.
(4) "Obtain" means:
(a) In relation to property, to bring about a transfer of interest or
possession, whether to the offender or to another; and
(b) In relation to labor or services, to secure the performance thereof.
(5) "Obtains or exerts control" over property, includes, but is not limited
to, the taking, carrying away, or the sale, conveyance, or transfer of title to,
or interest in, or possession of property.
(6) "Owner." When property is taken, obtained or withheld by one (1)
person from another person, an owner thereof means any person who has a
right to possession thereof superior to that of the taker, obtainer or
withholder.
(7) "Person" means an individual, corporation, association, public or
private corporation, city or other municipality, county, state agency or the
state of Idaho.
241 THEFT 18-2402
(8)
"Property" means anything of value. Property includes real estate,
money, commercial instruments, admission or transportation tickets, writ-
ten instruments representing or embodying rights concerning anything of
value, labor or services, or otherwise of value to the owner; things growing
on, affixed to, or found on land, or part of or affixed to any building;
electricity, gas, steam, and water; birds, animals and fish, which ordinarily
are kept in a state of confinement; food and drink; samples, cultures,
microorganisms, specimens, records, recordings, documents, blueprints,
drawings, maps, and whole or partial copies, descriptions, photographs,
prototypes or models thereof, or any other articles, materials, devices,
substances and whole or partial copies, descriptions, photographs, proto-
types or models thereof which constitute, represent, evidence, reflect or
record a secret scientific, technical, merchandising, production or manage-
ment information, design, process, procedure, formula, invention, or im-
provement.
(9)
"Service" includes, but is not limited to, labor, professional service,
transportation service, the supplying of hotel accommodations, restaurant
services, entertainment, (a communication system) the supplying of equip-
ment for use, and the supplying of commodities of a public utility nature
such as gas, electricity, steam and water. A ticket or equivalent instrument
which evidences a right to receive a service is not in itself service but
constitutes property within the meaning of subsection (8) of this section.
(10) "Stolen property" means property over which control has been
obtained by theft.
(11) "Value." The value of property shall be ascertained as follows:
(a) Except as otherwise specified in this section, value means the market
value of the property at the time and place of the crime, or if such cannot
be satisfactorily ascertained, the cost of replacement of the property
within a reasonable time after the crime.
(b) Whether or not they have been issued or delivered, certain written
instruments, not including those having a readily ascertainable market
value such as some public and corporate bonds and securities, shall be
evaluated as follows:
1. The value of an instrument constituting an evidence of debt, such as
a check, draft or promissory note, shall be deemed the amount due or
collectible thereon or thereby, such figure ordinarily being the face
amount of the indebtedness less any portion thereof which has been
satisfied.
2. The value of a ticket or equivalent instrument which evidences a
right to receive a transportation, entertainment or other service shall be
deemed the price stated thereon, if any; and if no price is stated thereon
the value shall be deemed the price of such ticket or equivalent
instrument which the issuer charges the general public.
3. The value of any other instrument which creates, releases, dis-
charges or otherwise affects any valuable legal right, privilege or
obligation shall be deemed the greatest amount of economic loss which
the owner of the instrument might reasonably suffer by virtue of the
loss of the instrument.
(c) When the value of property cannot be satisfactorily ascertained
pursuant to the standards set forth in paragraphs (a) and (b) of this
subsection, its value shall be deemed to be one thousand dollars ($1,000)
or less.
(d) For the purpose of establishing value of any written instrument, the
interest of any owner or owners entitled to part or all of the property
represented by such instrument, by reason of such instrument, may be
shown, even if another owner may be named in the complaint, informa-
tion or indictment. [I.C.,

18-2402, as added by 1981, ch. 183, 2, p. 319;
am. 1994, ch. 132, 1, p. 301; am. 1999, ch. 147, 1, p. 417.]
18-2402 was Gums, 126 Idaho 930, 894 P.2d 163 (Ct. App.
repealed. See compiler's notes,
18-2401. 1995).
The words enclosed in parentheses so ap-
peared in the law as enacted
Evidence.
u
Evid&
T,
w*8
,
suffi
<f
n
*
to
f
u
PP
rt the
18 2407
charge that defendant attempted to take
$*?**
<***>** b
V
deception and evidence
in

6-210, 18-7803 and 19-5304.
*at the com
P
a
f
was the owner of the prop-
ss '
erty was properly admitted and supported the
Analysis
change; the jury could determine that the
value of the property defendant attempted to
"Carrying away" not required. obtain exceeded $300 and the license to bar-
Evidence, gain and puff did not encompass the license to
"Value" for restitution. falsify documents and make claims for inju-
ries and damages arising from another acti-
ve
arrying Away' Not Required.
dent State v Summer,
-
Idaho -, 76 P.3d
Nothing in

18-2403 or in the definition of
^Q3 (2003)
"obtain," as used in that section and defined in
subsection (4)(a) of this section, required that "Value" for Restitution.
the property be carried away from the owner's Under I.C. 19-5304(l)(a), restitution is
premises in order for the crime to be complete for economic loss which includes, but is not
and a transfer of possession with the intent to limited to, the market value of the stolen
deprive the owner of the property was sum- property at the time and place of the crime,
cient, and that asportation was not a required State v. Bybee, 115 Idaho 541, 768 P.2d 804
element of theft under 18-2403(3). State v. (Ct. App. 1989).
18-2403. Theft.

(1) A person steals property and commits theft
when, with intent to deprive another of property or to appropriate the same
to himself or to a third person, he wrongfully takes, obtains or withholds
such property from an owner thereof.
(2) Theft includes a wrongful taking, obtaining or withholding of anoth-
er's property, with the intent prescribed in subsection (1) of this section,
committed in any of the following ways:
(a) By deception obtains or exerts control over property of the owner;
(b) By conduct heretofore denned or known as larceny; common law
larceny by trick; embezzlement; extortion; obtaining property, money or
labor under false pretenses; or receiving stolen goods;
(c) By acquiring lost property. A person acquires lost property when he
exercises control over property of another which he knows to have been
lost or mislaid, or to have been delivered under a mistake as to the
identity of the recipient or the nature or amount of the property, without
taking reasonable measures to return such property to the owner; or a
person commits theft of lost or mislaid property when he:
243 THEFT 18-2403
1. Knows or learns the identity of the owner or knows, or is aware of,
or learns of a reasonable method of identifying the owner; and
2. Fails to take reasonable measures to restore the property to the
owner; and
3. Intends to deprive the owner permanently of the use or benefit of the
property.
(d) By false promise:
1. A person obtains property by false promise when pursuant to a
scheme to defraud, he obtains property of another by means of a
representation, express or implied, that he or a third person will in the
future engage in particular conduct, and when he does not intend to
engage in such conduct or, as the case may be, does not believe that the
third person intends to engage in such conduct.
2. In any prosecution for theft based upon a false promise, the defen-
dant's intention or belief that the promise would not be performed may
not be established by or inferred from the fact alone that such promise
was not performed. Such a finding may be based only upon evidence
establishing that the facts and circumstances of the case are consistent
with guilty intent or belief and inconsistent with innocent intent or
belief, and excluding to a moral certainty every reasonable hypothesis
except that of the defendant's intention or belief that the promise would
not be performed;
(e) By extortion. A person obtains property by extortion when he compels
or induces another person to deliver such property to himself or to a third
person by means of instilling in him a fear that, if the property is not so
delivered, the actor or another will:
1. Cause physical injury to some person in the future; or
2. Cause damage to property; or
3. Engage in other conduct constituting a crime; or
4. Accuse some person of a crime or cause criminal charges to be
instituted against him; or
5. Expose a secret or publicize an asserted fact, whether true or false,
tending to subject some person to hatred, contempt or ridicule; or
6. Cause a strike, boycott or other collective labor group action injuri-
ous to some person's business; except that such a threat shall not be
deemed extortion when the property is demanded or received for the
benefit of the group in whose interest the actor purports to act; or
7. Testify or provide information or withhold testimony or information
with respect to another's legal claim or defense; or
8. Use or abuse his position as a public servant by performing some act
within or related to his official duties, or by failing or refusing to
perform an official duty, in such manner as to affect some person
adversely; or
9. Perform any other act which would not in itself materially benefit
the actor but which is calculated to harm another person materially
with respect to his health, safety, business, calling, career, financial
condition, reputation or personal relationships.
(3) A person commits theft when he knowingly takes or exercises unau-
thorized control over, or makes an unauthorized transfer of an interest in,
the property of another person, with the intent of depriving the owner
thereof.
(4) Aperson commits theft when he knowingly receives, retains, conceals,
obtains control over, possesses, or disposes of stolen property, knowing the
property to have been stolen or under such circumstances as would
reasonably induce him to believe that the property was stolen, and
(a) Intends to deprive the owner permanently of the use or benefit of the
property; or
(b) Knowingly uses, conceals or abandons the property in such manner as
to deprive the owner permanently of such use or benefit; or
(c) Uses, conceals, or abandons the property knowing such use, conceal-
ment or abandonment probably will deprive the owner permanently of
such use or benefit.
(5)
Theft of labor or services or use of property.
(a) A person commits theft when he obtains the temporary use of
property, labor or services of another which are available only for hire, by
means of threat or deception or knowing that such use is without the
consent of the person providing the property, labor or services.
(b) A person commits theft when after renting or leasing a motor vehicle
under an agreement in writing which provides for the return of the vehicle
to a particular place at a particular time, he willfully or intentionally fails
to return the vehicle to that place within forty-eight (48) hours after the
time specified.
(c) A person commits theft if, having control over the disposition of
services of others, to which he is not entitled, he knowingly diverts such
services to his own benefit or to the benefit of another not entitled thereto.
[I.C.,

18-2403, as added by 1981, ch. 183, 2, p. 319; am. 1985, ch. 216,
1, p. 525; am. 2001, ch. 112, 1, p. 401.]
18-2403 was Hoffman, 116 Idaho 480, 776 P.2d 1199 (Ct.

18-2401.
App. 1989); State v. Marek, 116 Idaho 580,
777 P.2d 1253 (Ct. App. 1989); State v.
18-2408.
Woodman, 116 Idaho 716, 779 P.2d 30 (Ct.
App. 1989); State v. Tomes, 118 Idaho 952, 801
R2d 1303 (Ct. App. 1990); State v. Aubert, 119
Idaho 868> 811 P2d 44 (Ct. App. 1991); State
in

18-2409, 18-7803 and 72-1011.
v Weinmann, 122 Idaho 631, 836 P.2d 1092
Cited in: State v. Hellberg, 105 Idaho 261,
(Ct App 1992
)
;
state v. Johnston, 123 Idaho
668 P.2d 137 (Ct. App. 1983); State v. Mason,
222, 846 P2d 224 (Ct. App. 1993); State v.
107 Idaho 706 692 P.2d 350 (1984); Brown v.
^
mMaho 2?4 g99^2d 9g4 (Ct A
State 108 Idaho 655, 701JP.2d 275 (Ct App.
^95) State y w m Maho 2g8 ^
1985
, Stone v. State 108 Idaho 822 702 P.2d
R2d {96 (1995) gtate ; Th 133 Idaho
860 (Ct. App. 1985); State v. Griffith, 110
fifi9 qq
,
P
o
H
q
7o rrt Ann iQQcn
Idaho 613, 716 P.2d 1385 (Ct. App. 1986);
A
9yi K2d b
(Ct
-
ApP
'
iyy9)'
State v. Bias, 111 Idaho 129, 721 P.2d 728 (Ct.
Analysis
App. 1986); State v. James, 112 Idaho 239,
731 P.2d 234 (Ct. App. 1986); State v. Gawron, "Carrying away" not required.
112 Idaho 841, 736 P.2d 1295 (1987); State v. Constitutionality
Chapman, 112 Idaho 1011, 739 P.2d 310 Construction.
(1987); State v. Clayton, 112 Idaho 1110, 739 Evidence.
P.2d 409 (Ct. App. 1987); Matthews v. State, Guilty plea.
113 Idaho 83, 741 P.2d 370 (Ct. App. 1987); Probation violation.
State v. Chacon, 114 Idaho 789, 760 P.2d 1205 Indictment and information.
(Ct. App. 1988); State v. Cirelli, 115 Idaho 732, Instructions.
769 P.2d 609 (Ct. App. 1989); State v. Intent.
245 THEFT 18-2403
Jurisdiction of Indian tribe.
Legislative intent.
Possession of stolen property.
Sentence.
"Carrying Away" Not Required.
Nothing in this section or in the definition
of "obtain," as used in this section and defined
in 18-2402(4)(a), required that the property
be carried away from the owner's premises in
order for the crime to be complete and a
transfer of possession with the intent to de-
prive the owner of the property was sufficient,
and that asportation was not a required ele-
ment of theft under subsection (3) of this
section. State v. Gums, 126 Idaho 930, 894
P.2d 163 (Ct. App. 1995).
Constitutionality.
Since the elements oftheft by deception and
theft by false promise as defined in subsec-
tions (2)(a) and (d) of this section include a
component of dishonesty or falsehood, for the
former requires that the perpetrator engaged
in some deception in order to acquire property
and the latter requires a scheme to defraud or
an express or implied misrepresentation,
these subsections advance the state's interest
in preserving good morals and honest dealing
and are permissible criminal provisions that
do not run afoul of Const., Art.
1, 15. State
v. Owen, 129 Idaho 920, 935 P.2d 183 (Ct. App.
1997).
Construction.
The crime of grand theft by possession of
stolen property found in subsection (4) of this
section is not a mere recodification of former
18-4612 (now repeated). State v. Major, 111

Idaho 410, 725 P2d 115 (1986).
The statute does not define the possession
of property stolen from multiple victims as
multiple offenses where it is not shown that
the defendant acquired the property by sepa-
rate acts of possession or knew that it came
from more than one victim or more than one
act of stealing. Brown v. State, 137 Idaho 529,
50 P.3d 1024 (Ct. App. 2002).
Evidence.
On appeal from a conviction of grand theft,
where the state's evidence showed that the
defendant wanted to purchase a motor home
from the victim, but credit problems arose
which could not be resolved until the next day,
and the victim loaned the defendant a pickup
truck to be used overnight, and the defendant
did not return the truck but instead drove it
to Colorado, the jury could reasonably infer
that the defendant intended to deprive the
victim of the truck. State v. Decker, 108 Idaho
683, 701 P.2d 303 (Ct. App. 1985).
Appellate review of the sufficiency of the
evidence is limited in scope; a judgment of
conviction, entered upon a jury verdict, will
not be set aside where there is substantial
evidence upon which any rational trier of fact
could have found the essential elements of the
crime beyond a reasonable doubt. State v.
Decker, 108 Idaho 683, 701 P.2d 303 (Ct. App.
1985).
The act of stealing the property from its
owner is not an element of theft by possession
of stolen property under subsection (4) of this
section. Therefore, it was not necessary that
the employees observe the removal of items
from their employer's loading dock in order to
make a citizen's arrest. Under the circum-
stances, where the employees saw defendant
in possession of items that looked identical to
those stored on employer's loading dock and
when confronted defendant said he thought
the items had been discarded which was an
admission that the items had come from the
loading dock, the offense of theft by posses-
sion of stolen property was committed "in the
presence" of the employees, and the court
properly held that the employees had effectu-
ated a valid citizen's arrest in compliance
with this section. State v. Moore, 129 Idaho
776, 932 P.2d 899 (Ct. App. 1996).
Since defendant offered to admit he took
stereo from trailer, any error in court allowing
the introduction of evidence regarding results
of deputy's fingerprint search was harmless
since there were no fingerprints found. State
v. Vandenacre, 131 Idaho 507, 960 P.2d 190
(Ct. App. 1998).
Although defendant testified that the
money shortages on the dates the grand
thefts were alleged to have occurred were due
to him holding money from the deposit so he
could add it in to the proceeds of other days in
order to boost sales performance and meet his
cost budget on a daily basis in order to earn
bonuses, from the evidence presented, the
jury could properly infer that defendant ap-
propriated the funds for his own use rather
than to boost his sales on other dates. State v.
Stricklin, 136 Idaho 264, 32 P.3d 158 (Ct. App.
2001).
Indictment charging defendant with theft
was not defective where it indicated that
defendant attempted to take money by mak-
ing false statements to the claims adjuster
through the demand for settlement and it was
specific; indictment set forth sufficient facts to
make it clear that defendant was charged
with attempting to take property from the
owner of the property and there were suffi-
cient facts alleged to allow defendant to
mount a defense and to preclude further pros-
ecution arising out of the deception to the
claims adjuster. State v. Summer,
Idaho
,
76 P.3d 963 (2003).
Guilty Plea.
Where, when the guilty plea was entered,
the defendant had not been told that if the
case went to trial the state would have to
prove the specific intent and knowledge re-
quired for a conviction under this section, and
no prejudice to the state was shown, the
defendant was permitted to withdraw his
guilty plea. State v. Henderson, 113 Idaho
411, 744 P.2d 795 (Ct. App. 1987).
Where defendant made a plea agreement
and agreed to plead guilty to petit theft under
subsection (3) of this section and
18-2407(2)
and as part of his plea agreement the prose-
cutor agreed not to recommend incarceration,
State did not breach plea agreement when it
filed brief with appellate court urging affir-
mance of the sentence and of the magistrate's
denial of Rule 35 relief as at the appeal stage
the sentence was already pronounced and the
State's role was no longer that of making a
recommendation as to what would be an ap-
propriate sentence. State v. Stringer, 126
Idaho 867, 893 P.2d 814 (Ct. App. 1995).
Probation Violation.
Once defendant violated the terms of his
probation, the district court was not bound by
the plea agreement that stated defendant's
disposition was to be a withheld judgment
with five years on probation, and the court
was free to sentence defendant to a period of
incarceration within the statutory maximum
for grand theft. Short v. State, 135 Idaho 40,
13 P.3d 1253 (Ct. App. 2000).
(1986).
The trial court did not err in permitting
prosecutor to amend an information against
defendant to include the charge of grand theft
by obtaining control of stolen property where
he was originally charged with grand theft.
State v. Seiber, 117 Idaho 637, 791 P.2d 18 (Ct.
App. 1989).
Instructions.
In prosecution for embezzlement and forg-
ery, jury instructions which stated that to find
defendant guilty of charge of theft by embez-
zlement each of the elements in the charge
must be proven beyond a reasonable doubt
that defendant with fraudulent intent appro-
priated funds belonging to her employer and
applied these funds toward the purchase of
lots 3 and/or 4 of a certain subdivision, were
proper, even though defendant contended
that the instructions failed to address the
requirement that the jury unanimously find,
beyond a reasonable doubt, that defendant
applied the moneys either to purchase of lot
3,
lot four, or both, and since the court gave a
separate instruction defining "fraudulent in-
tent" as well as instructions as to how a
defense to embezzlement is shown and that
its verdict must be unanimous and the ele-
ments of the crime embezzlement as given in
the instructions were drawn from this section
and
18-2407, the trial court fully instructed
the jury on the elements which the state had
to prove in order for the jury to reach a
unanimous finding of guilt. State v. Hamilton,
129 Idaho 938, 935 P2d 201 (Ct. App. 1997).
Intent.
The element of intent to deprive another of
property need not be shown by direct evidence
but may be inferred from circumstantial evi-
dence. State v. Krommenhoek, 107 Idaho 188,
687 P.2d 578 (Ct. App. 1984).
Where the defendants each received stolen
property from a recent acquaintance and
claimed that the stolen goods were left with
the defendants by the acquaintance in pay-
ment of a debt, the disparities in value be-
tween the stolen goods and the debt were
sufficient for the jury to reasonably find that
each knew or should have known that the
property was stolen. State v. Ralls, 111 Idaho
485, 725 P.2d 190 (Ct. App. 1986).
There was substantial evidence on the issue
of fraudulent intent to support the jury's
guilty verdict where the defendant was told to
use the money in any way his mother would
use it, was told not to deplete the assets of his
mother's estate, and the jury could infer from
the enormity and nature of the defendant's
expenditures that he intended to appropriate
to himself the items purchased. State v. Boag,
118 Idaho 944, 801 P.2d 1295 (Ct. App. 1990).
Jurisdiction of Indian Tribe.
The state failed its burden to show that the
tribe's consent to jurisdiction over an Indian
who violated
18-4612 (now repealed) in
1965 constituted contemporary consent to ju-
risdiction over an Indian who violated subsec-
tion (4) of this section. State v. Major, 111
Idaho 410, 725 P.2d 115 (1986).
The tribal resolution which granted the
state concurrent jurisdiction over the of-
fenses, embezzlement, disturbing the peace,
simple assault, kidnapping, vagrancy and re-
ceiving stolen property did not grant consent
over a class of offenses which included grand
theft by possession of stolen property. State v.
Major, 111 Idaho 410, 725 P2d 115 (1986).
247 THEFT 18-2403
Legislative Intent.
The legislature did not intend the retention
of collateral after default on a secured obliga-
tion to constitute theft by unauthorized con-
trol based solely upon breach of a contractual
promise. Therefore, evidence was insufficient
to convict defendant, who neither paid the
promissory note he had signed as down pay-
ment or returned the vehicle, of grand theft
by unauthorized control. State v. Henninger,
130 Idaho 638, 945 P.2d 864 (Ct. App. 1997).
Possession of Stolen Property.
Subsection (4) of this section requires that
the defendant knew or under the circum-
stances would reasonably have been induced
to believe that the property was stolen. State
v. Ralls, 111 Idaho 485, 725 P.2d 190 (Ct. App.
1986).
Possession of recently stolen property is a
circumstance from which a trier of fact may
infer knowledge of its stolen character. State
v. Ralls, 111 Idaho 485, 725 P.2d 190 (Ct. App.
1986).
Where the crime occurred no later than
1987 when defendant came into possession of
truck with knowledge that it was stolen and
with the intent to deprive the owner thereof,
the statute of limitations had run by 1991
when the information against defendant was
filed. State v. Barnes, 124 Idaho 379, 859 P. 2d
1387 (1993).
The crime of grand theft by possession of
stolen property requires proof that the defen-
dant had knowledge that the property was
stolen or that he possessed the stolen items
under circumstances that would have reason-
ably induced him to believe that the property
was stolen. State v. Ashley, 126 Idaho 694, 889
P.2d 723 (Ct. App. 1994).
The act of stealing the property from its
owner is not an element of theft by possession
of stolen property under subsection (4) of this
section. Therefore, it was not necessary that
employees observe the removal of items from
their employer's loading dock in order to
make a citizen's arrest; under the circum-
stances where the employees saw defendant
in possession of items that looked identical to
those stored on employer's dock and when
confronted defendant said he thought the
items had been discarded which was an ad-
mission that the items had come from the
loading dock, the employees witnessed the
theft and could make a citizen's arrest. State
v. Moore, 129 Idaho 776, 932 P.2d 899 (Ct.
App. 1996).
Sentence.
Apreviously suspended, indeterminate sev-
en-year sentence for grand theft was not
excessive where the defendant pled guilty to
another grand theft, the presentence report
showed several misdemeanor violations and,
with the recent grand theft charge, three
felony convictions, and moreover, he poorly
performed in, and violated, both of the proba-
tion opportunities granted him. State v.
Sanchez, 114 Idaho 387, 757 P.2d 250 (Ct.
App. 1988), aff'd, 115 Idaho 776, 769 P.2d
1148 (1989).
The court properly denied a motion for a
reduction of sentence by defendant convicted
of possession of controlled substance with
intent to deliver and of theft by possession of
stolen property where defendant was sen-
tenced to concurrent, unified sentences of
seven years with three years minimum con-
finement and of five years with three years
minimum confinement, and where these sen-
tences were well within the statutorily per-
mitted maximum penalties. State v. Garcia,
115 Idaho 559, 768 P2d 822 (Ct. App. 1989).
Where defendant received two concurrent
unified ten-year sentences, each with a five-
year minimum term of confinement for grand
theft by false promise involving over 24 vic-
tims, the sentence was not an abuse of discre-
tion. State v. Bianchi, 121 Idaho 766, 828 P.2d
329 (Ct. App. 1992).
Although the sentence of 1 year in jail with
180 days suspended and 2 years probation
imposed by the magistrate under a plea
agreement to plead guilty to petit theft under
subsection (3) of this section and 18-2407(2)
was stringent for a first offense, neither the
sentence as imposed nor the denial of the
defendant's Rule 35 motion for reduction of
sentence was an abuse of discretion where the
magistrate concluded that defendant and his
wife had been engaged in a carefully orches-
trated scheme using their young son to assist
in the theft of store merchandise. State v.
Stringer, 126 Idaho 867, 893 P.2d 814 (Ct.
App. 1995).
Where district court in its sentencing re-
marks considered defendant's upbringing in
an emotionally and physically abusive home
and concluded that she suffered from a per-
sonality disorder resembling an addiction
which prevented her from acknowledging the
wrong she had committed and that she had
been involved in similar crimes, and after
reviewing the objectives of sentencing deter-
mined that a term of incarceration was nec-
essary to protect society and deter others,
district court acted within in its discretion of
imposing a sentence of ten years' incarcera-
tion, with a minimum term of 3 years, for the
crimes of embezzlement and forgery. State v.
Hamilton, 129 Idaho 938, 935 P.2d 201 (Ct.
App. 1997).
Analysis
Corporations.
Embezzlement.
Act of taking.
Property subject to.
Extortion.
Exposure of crime.
False pretenses.
Instructions.
Embezzlement.
False pretenses.
Receiving stolen property.
Intent.
Moral turpitude.
Property.
Rightful claim.
Right to fair trial.
Corporations.
An officer of a corporation may be guilty of
receiving money under false pretenses, where
he was an officer and stockholder and stood to
benefit therefrom, though he did not receive
the money personally. State v. Stratford, 55
Idaho 65, 37 P2d 681 (1934).
Embezzlement.
Since the reference to "feloniously stealing"
in the former larceny statute included both
felony and misdemeanor offenses, i.e. grand
and petit larceny, the same was true of that
language as used in the former embezzlement
statute and a defendant could properly plead
guilty to misdemeanor embezzlement. Spar-
row v. State, 102 Idaho 60, 625 P.2d 414
(1981).
Act of Taking.
Distinct act of taking was not necessary to
constitute embezzlement. State v. Sage, 22
Idaho 489, 126 P. 403, 1914B Ann. Cas. 251
(1912). But see State v. Jones, 25 Idaho 587,
138 P. 1116 (1914).
There can be no embezzlement unless
owner is deprived of money or property in-
volved in the transaction. State v. Jones, 25
Idaho 587, 138 P. 1116 (1914).
Bad loans made by state bank officers, in
absence of fraudulent intent, were not deduct-
ible from gross income under internal reve-
nue law as losses through embezzlement.
Porter v. United States, 20 F.2d 935 (D. Idaho
1927), aff'd, 27 F.2d 882 (9th Cir. 1928).
Demand and nonpayment were not ele-
ments of embezzlement, but were merely ev-
idence thereof. State v. Peters, 43 Idaho 564,
253 P. 842 (1927); State v. White, 46 Idaho
124, 266 P. 415 (1928).
Crime of embezzlement involved among
other things the following: 1. Existence of
fiduciary relations between accused and per-
son injured, of character mentioned in stat-
ute. 2. Receipt or acquisition by accused of
property of another by reason of that fiduciary
relation. State v. White, 46 Idaho 124, 266 P.
415 (1928).
Property Subject to.

Credit in the nature of an overdraft might
have been subject of embezzlement by officer
or agent of bank or trust company. State v.
Lottridge, 29 Idaho 53, 155 P. 487 (1916), sub
nom., 29 Idaho 822, 162 P. 672 (1917).
Deposit in bank might have embezzled by
servant or agent of depositor. State v. Lockie,
43 Idaho 580, 253 P. 618 (1927).
Property within care and control of party
was subject to embezzlement regardless of
any secret intent he may have entertained to
steal it. State v. Lockie, 43 Idaho 580, 253 P.
618 (1927).
Where defendant, lessor and independent
operator of oil company's gasoline station,
entrusted with oil company's gasoline for pur-
pose of sale, failed to turn over to oil company
its portion of proceeds for sale of gasoline,
defendant was guilty of embezzlement, not-
withstanding he was not required to make
remittance to company from specific moneys
collected from gasoline sales. State v.
Compton, 92 Idaho 739, 450 P.2d 79 (1969).
Extortion.
Although one party had committed a crime
in theft of property from another, party whose
property was thus taken was not justified and
could not be protected by courts in extorting
money from one who committed theft under
threats of arrest and imprisonment, where he
used such threats as means of procuring a
payment from the guilty party in excess of the
reasonable value of property taken. Wilbur v.
Blanchard, 22 Idaho 517, 126 P. 1069 (1912).
The obtaining of property of another by
threats to injure him and to destroy his prop-
erty is extortion. State v. Phillips, 62 Idaho
656, 115 P.2d 418 (1941).
Exposure of Crime.
Extortion is the obtaining of property from
another, with his consent induced by wrongful
force, fear or color of official right, and such
fear may be induced by a threat to accuse the
party of a crime. Wilbur v. Blanchard, 22
Idaho 517, 126 P. 1069 (1912).
It is a criminal offense for a creditor to
obtain money or property from a debtor by
means of a threat to accuse the latter of a
249 THEFT 18-2403
crime, although the creditor believes that the
money or property is actually due him, and
although he believes the debtor guilty of the
crime which he is threatening to expose; the
fact that the person threatened is guilty of the
crime ofwhich he is threatened with exposure
is unimportant so far as the guilt of the
person making the threat is concerned. State
v. Adjustment Dep't Credit Bureau, Inc., 94
Idaho 156, 483 P.2d 687 (1971).
False Pretenses.
"False pretense" has been defined to be
fraudulent representation of existing or past
fact by one who knows it is not true, adapted
to induce person to whom it is made to part
with something of value. State v. Whitney, 43
Idaho 745, 254 P. 525 (1927).
Essence of crime of obtaining money under
false pretenses lies in obtaining money with
intent to defraud. State v. Whitney, 43 Idaho
745, 254 P. 525 (1927).
The payment of a fraudulent invoice by
check, charged to account of complaining wit-
ness and credited to account of accused's
company, was sufficient passage of title to
money to sustain conviction for obtaining
money under false pretenses. State v.
Stratford, 55 Idaho 65, 37 P.2d 681 (1934).
Instructions.
Embezzlement.
In an embezzlement prosecution, refusing
instruction that restitution could not be con-
sidered as bearing on defendant's intent was
not error. State v. Claris, 47 Idaho 750, 278 P.
776 (1929).
A court's instruction defining embezzle-
ment which contained the elements of embez-
zlement as set out in former law regarding
embezzlement by public and corporate officers
together with other instructions setting out
the necessity for fraudulent intent justified
the court's refusal of defendant's requested
instruction setting out a series of six elements
of embezzlement. State v. Carpenter, 92 Idaho
12, 435 P.2d 789 (1967).
On retrial of a prosecution for embezzle-
ment, involving as it did an element of specific
intent, the instruction to the jury that "every
person of sound mind is presumed to intend
the natural and probable consequences of his
acts" should not be given. State v. McCoy, 100
Idaho 753, 605 P.2d 517 (1980).
False Pretenses.
Instruction that the false representation
must have been an effective cause in inducing
complaining witness to part with his money,
but that such representation need not be sole
cause, and to be effective cause it was neces-
sary to find that but for such representation
witness would not have parted with his
money was proper. State v. Stratford, 55
Idaho 65, 37 P2d 681 (1934).
Receiving Stolen Property.

Since scienter is necessary for conviction of
receiving stolen property and since the mere
possession of recently stolen property cannot
give rise to a legal presumption of guilty
knowledge and felonious intent, the trial
court's instruction in a prosecution for receiv-
ing stolen calves that a presumption of guilt
arises from the unsatisfactorily explained
possession of the recently stolen property con-
stituted reversible error as an unconstitu-
tional infringement upon the presumption of
defendant's innocence. State v. Trowbridge, 97
Idaho 93, 540 P2d 278 (1975).
Intent.
To constitute crime of larceny, felonious
intent must exist at time of taking property.
State v. Riggs, 8 Idaho 630, 70 P. 947 (1902).
Where one rightfully in possession of per-
sonal property subsequently conceives the in-
tent of appropriating it, he is not guilty of
larceny. State v. Riggs, 8 Idaho 630, 70 P. 947
(1902).
While it is true that one is presumed to
intend necessary or natural consequences of
his voluntary act and that generally, if it is
proved that accused knowingly committed
unlawful act, it will be presumed that it was
done with criminal intent, but this rule with-
out qualifications does not apply to crimes for
which specific intent is necessary. State v.
Peters, 43 Idaho 564, 253 P. 842 (1927).
Word "intentional" as used in penal laws is
held to import evil intent and unlawful pur-
pose. State v. Peters, 43 Idaho 564, 253 P. 842
(1927).
To constitute crime of larceny felonious in-
tent must exist at the time of the taking.
State v. Hopple, 83 Idaho 55, 357 P.2d 656
(1960).
The intent required is the intent to deprive
the owner of his property, which intent must
exist at the time of the wrongful taking or
stealing. State v. Bassett, 86 Idaho 277, 385
P.2d 246 (1963).
Larceny is a crime of specific intent and the
burden of proving the requisite mental state
beyond a reasonable doubt belongs to the
prosecution. State v. Erwin, 98 Idaho 736, 572
P.2d 170 (1977).
The crime of disposing of stolen property
under
18-4612 (repealed) was not a lesser
included offense of the crime of burglary.
(Ct. App. 1983).
Moral Turpitude.
Because fraud is an element of the crime, it
involves moral turpitude so as to justify dis-
barment. In re Mills, 71 Idaho 128, 227 P.2d
81 (1951).
Property.
The word property signifies all valuable
rights or interest which are protected by law,
and a materialman's lien right as provided for
by
45-501 is a valuable property right, the
waiver of which would also be "property."
State v. Davis, 81 Idaho 61, 336 P.2d 692
(1959).
Before defendant can be convicted for re-
ceiving stolen property, four things must be
established to the satisfaction of the jury
beyond a reasonable doubt: (1) That property
was stolen; (2) that either thief delivered it to
defendant, or to someone else who delivered it
to him; (3) that at time defendant received
possession of property he knew it was stolen,
or that it was received under such circum-
stances that any reasonable person of ordi-
nary observation would have known that it
was in fact stolen property; and (4) that he
received it for his own gain or to prevent
owner again possessing it. State v. Janks, 26
Idaho 567, 144 P. 779 (1914).
Rightful Claim.
The use of the word "wrongful" had no
reference to justness of ultimate results, but
related solely to the method used to obtain
such results. State v. Phillips, 62 Idaho 656,
115 P2d 418 (1941).
Right to Fair Trial.
Where, while the defendant was in jail
awaiting trial on a charge of possession of
stolen property, the sheriff monitored and
tape-recorded all the phone calls made by the
defendant, including one made to an attorney,
and photocopied all the mail both received
and sent by the defendant, the sheriff's prac-
tices were not to be condoned; however, since
none of the information gathered by the sher-
iff was used as evidence in the defendant's
trial and the attorney called was not the
defendant's trial counsel, the sheriff's conduct
did not prejudice the defendant's right to a
fair trial nor deny him the effective assistance
of counsel. State v. Martinez, 102 Idaho 875,
643 P.2d 555 (Ct. App. 1982).
Collateral References. Injury to reputa-
tion or mental well-being as within penal
extortion statutes requiring threat of "injury
to the person." 87 A.L.R.5th 715.
18-2403A. Prima facie intent of lessee or renter. [Repealed.]
comprised I.C., 18-2403A, as added by
1981, ch. 183, 1.
Another 18-2403A which comprised S.L.
1963, ch.
70, 1, p. 262, was repealed by S.L.
18-2404. Prima facie evidence

Theft by lessee.

It shall be
prima facie evidence that a person knowingly obtains or exerts unautho-
rized control over property of the owner when a lessee of the personal
property of another, leased or rented by written instrument:
(1) Fails or refuses to return such personal property to its owner after the
lease or rental agreement has expired:
(a) Within ten (10) days; and
(b) Within forty-eight (48) hours after written demand for return thereof
is personally served or given by registered mail delivered to the last
known address provided in such lease or rental agreement; or
(2) When the lease or rent of such personal property is obtained by
presentation of identification to the lessor or renter thereof which is false,
fictitious, or knowingly not current to name, address, place of employment,
or other identification. [I.C.,

18-2404, as added by 1981, ch. 183, 2, p.
319.]
18-2404 was
18-2401.
Cited in: State v. Boag, 118 Idaho 944, 801
P.2d 1295 (Ct. App. 1990).
251 THEFT 18-2406
Elements of Larceny. doubt that the crime charged had been com-
Under the former statute defining larceny, mitted established the corpus delicti. State v.
the elements in a larceny charge which had to Owens, 101 Idaho 632, 619 P.2d 787 (1979),
be proven included the taking, carrying, driv-
ing or leading away, without permission, of
107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).
the personal property of another, with intent
to permanently deprive the owner thereof,
Embezzlement

23 28.
and direct or circumstantial evidence which
29A GJjg Embezzlement,
20, 26.
satisfied the factfinder beyond a reasonable
18-2405. Proof of fraudulent intent in procuring food, lodging or
other accommodations.
Proof that lodging, food or other accommoda-

tion was obtained by any deception or false pretense, or by any false or
fictitious show or pretense of any baggage or other property, or that any
person absconded without paying or offering to pay for such food, lodging or
other accommodation, or that any such person surreptitiously removed, or
attempted to remove, his or her baggage, shall be prima facie proof of the
intent necessary for the theft of the same. [I.C.,

1981, ch.
183, 2, p. 319.]
18-2405 was Intent.
18-2401. Fraudulent intent was a necessary element
Another former 18-2405, which com- of the crime of fraudulent procurement of
food. State v. Wagenius, 99 Idaho 273, 581
7070; C.S., 8455; I.C.A.,

17-3607 was
R2d 319 (1978).
January
1,
1972.
Sufficiency of Proof.
Where defendant left restaurant without
in

39-1802.
paying but there was no evidence that he did
Cited in: State v. Boag, 118 Idaho 944, 801
so m a surreptitious manner and he testified
P.2d 1295 (Ct. App. 1990).
that he had merely forgotten to pay because
Analysis
ê was intoxicated, there was no prima facie
case of fraudulent intent and the evidence
Intent. would not support a conviction. State v.
Sufficiency of proof. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978).
18-2406. Defenses.

(1) It is no defense to a charge of theft of
property that the offender has an interest therein, when the owner also has
an interest to which the offender is not entitled.
(2) Where the property involved is that of the offender's spouse, no
prosecution for theft may be maintained unless the parties were not living
together as man and wife and were living in separate abodes at the time of
the alleged theft.
(3) In any prosecution for theft committed by trespassory taking or the
offense previously known as embezzlement, it is an affirmative defense that
the property was appropriated openly and avowedly, and under a claim of
right made in good faith. It is not a defense to a theft committed by such
conduct that the accused intended to restore the property taken, but may be
considered by the court to mitigate punishment if the property is voluntarily
and actually restored (or tendered) prior to the filing of any complaint or
indictment relating thereto, and this provision does not excuse the unlawful
retention of the property of another to offset or pay demands held against
the accused.
(4)
In any prosecution for theft by extortion committed by instilling in the
victim a fear that he or another person would be charged with a crime, it is
an affirmative defense that the defendant reasonably believed the threat-
ened charge to be true and that his sole purpose was to compel or induce the
victim to take reasonable action to make good the wrong which was the
subject of such threatened charge.
(5)
It is no defense to a prosecution for theft under a provision of this
chapter that the defendant, by reason of the same conduct, also committed
an act specified as a crime in another chapter of title 18, or another title of
the Idaho Code. [I.C,
18-2406, as added by 1981, ch. 183, 2, p. 319.]
18-2406 was
18-2401.
The words enclosed in parentheses so ap-
peared in the law as enacted.
Analysis
Acting under invalid law.
Instructions.
Intent.
Ownership.
Set-off.
Acting Under Invalid Law.
City clerk assuming to act on behalf of city
in collecting money under purported ordi-
nance, and who converts such money to his
own use, could not defeat prosecution for
embezzlement on ground that ordinance was
invalid. State v. Dawe, 31 Idaho 796, 177 P.
393 (1918).
Instructions.
Where a pickup truck was taken at night
and, although defendant mailed the owner
$2.00 allegedly as consideration for the truck,
no attempt was made to contact the owner
about working out arrangements to pay for it
even though defendant had been in posses-
sion of the vehicle for 12 days and had driven
through several states before he was appre-
hended, where defendant had placed a stolen
license plate on the vehicle and, when appre-
hended, told the police that his proof of pur-
chase was in the mail and where defendant
did not state that he had only intended to
"temporarily" deprive the owner of possession
but maintained simply that he had intended
to pay for the vehicle or for the use of it, the
trial court in a prosecution for grand larceny
did not err in refusing to give a requested
instruction on joy-riding. State v. Pulliam,
101 Idaho 482, 616 P2d 261 (1980).
Court did not err in refusing to instruct the
jury on affirmative defense where the defen-
dant's theory of the case was not that he made
an appropriation; he never claimed ownership
of the property at trial, but rather, he asserted
that he never sought to exercise permanent
control over the property. State v. Boag, 118
Idaho 944, 801 P2d 1295 (Ct. App. 1990).
The court adequately instructed the jury on
the defendant's theory of the case where the
jury was told it could take into consideration
whether or not the defendant honestly be-
lieved that he was entitled to spend and use
monies in the manner in which he did under
his authority and if there is a reasonable
doubt as to whether the defendant appropri-
ated the funds within the scope of his author-
ity as personal representative, a verdict of not
guilty should be returned. State v. Boag, 118
Idaho 944, 801 P.2d 1295 (Ct. App. 1990).
Intent.
Fact that there was coupled with misappro-
priation mere intention to restore embezzled
property did not purge act of its criminal
character or constitute defense to prosecu-
tion. State v. Smith, 48 Idaho 558, 283 P. 529
(1929).
Ownership.
That the property actually belonged to ac-
cused, was no defense to a prosecution for
extortion. In re Baum, 32 Idaho 676, 186 P.
927 (1920).
Set-off.
Items in nature of a set-off do not constitute
a defense to a charge of larceny or embezzle-
ment. State v. Cochrane, 51 Idaho 521, 6 P.2d
489 (1931).
18-2407. Grading of theft.

Theft is divided into two (2) degrees,
grand theft and petit theft.
(1) Grand theft.
253 THEFT 18-2407
(a) Aperson is guilty of grand theft when he commits a theft as defined in
this chapter and when the property, regardless of its nature and value, is
obtained by extortion committed by instilling in the victim a fear that the
actor or another person will:
1. Cause physical injury to some person in the future; or
2. Cause damage to property; or
3. Use or abuse his position as a public servant by engaging in conduct
within or related to his official duties, or by failing or refusing to
perform an official duty, in such manner as to affect some person
adversely.
(b) Aperson is guilty of grand theft when he commits a theft as defined in
this chapter and when:
1. The value of the property taken exceeds one thousand dollars
($1,000);
or
2. The property consists of a public record, writing or instrument kept,
filed or deposited according to law with or in the keeping of any public
office or public servant; or
3. The property consists of a check, draft or order for the payment of
money upon any bank, or a check, draft or order account number, or a
financial transaction card or financial transaction card account number
as those terms are defined in section 18-3122, Idaho Code; or
4. The property, regardless of its nature or value, is taken from the
person of another; or
5. The property, regardless of its nature and value, is obtained by
extortion; or
6. The property consists of one (1) or more firearms, rifles or shotguns;
or
7. The property taken or deliberately killed is livestock or any other
animal exceeding one hundred fifty dollars ($150) in value.
8. When any series of thefts, comprised of individual thefts having a
value of one thousand dollars ($1,000) or less, are part of a common
scheme or plan, the thefts may be aggregated in one (1) count and the
sum of the value of all of the thefts shall be the value considered in
determining whether the value exceeds one thousand dollars
($1,000);
or
9. The property has an aggregate value over fifty dollars ($50.00) and
is stolen during three (3) or more incidents of theft during a criminal
episode. For purposes of this subparagraph a "criminal episode" shall
mean a series of unlawful acts committed over a period of up to three (3)
days; or
10. The property is anhydrous ammonia.
(2) Petit theft. Aperson is guilty of petit theft when he commits a theft as
defined in this chapter and his actions do not constitute grand theft. [I.C.,
703; am. 1983, ch.
19, 1, p. 54; am. 1987, ch. 84, 1, p. 158; am. 1994, ch.
132, 2, p. 301; am. 1994, ch. 346, 21, p. 1089; am. 1998, ch. 326, 1, p.
1054; am. 2000, ch. 243, 1, p. 679; am. 2002, ch. 257, 1, p. 747; am. 2002,
ch.
326, 1, p. 916.]
18-2407 was
18-2401.
which appear to be compatible and have been
compiled together.
tive July 1, 2002, added subsection (l)(b)(10).
tive July 1, 2002, in subsection (l)(b)(3), sub-
stituted "check, draft or order for the payment
of money upon any bank, or a check, draft or
order account number, or a financial transac-
tion card or financial transaction card account
number as those terms are defined in section
18-3122, Idaho Code" for "credit card".
as 18-2409.
compiled as
18-2402 and 18-3128, respec-
tively.
as
25-3519
25-3520 and 25-3521.

Section 2 of S.L. 1998, ch. 326 provided:
"The provisions of this act [which amended
this section! shall apply to violations of sec-
tion 18-2407, Idaho Code, committed on and
after July 1,
1998."
in

18-7038 and 18-7803.
Cited in: State v. Anderson, 102 Idaho 464,
631 P.2d 1223 (1981); State v. Hellberg, 105
Idaho 261, 668 P.2d 137 (Ct. App. 1983);
Brown v. State, 108 Idaho 655, 701 P.2d 275
(Ct. App. 1985); State v. Bias, 111 Idaho 129,
721 P. 2d 728 (Ct. App. 1986); State v. Cowger,
111 Idaho 825, 727 P.2d 1253 (Ct. App. 1986);
State v. James, 112 Idaho 239, 731 P.2d 234
(Ct. App. 1986); State v. Gawron, 112 Idaho
841, 736 P.2d 1295 (1987); State v. Chapman,
112 Idaho 1011, 739 P.2d 310 (1987); State v.
Clayton, 112 Idaho 1110, 739 P.2d 409 (Ct.
App. 1987); Matthews v. State, 113 Idaho 83,
741 P.2d 370 (Ct. App. 1987); State v. Chacon,
114 Idaho 789, 760 P.2d 1205 (Ct. App. 1988);
State v. Cirelli, 115 Idaho 732, 769 P2d 609
(Ct. App. 1989); State v. Woodman, 116 Idaho
716, 779 P.2d 30 (Ct. App. 1989); State v.
Boag, 118 Idaho 944, 801 P.2d 1295 (Ct. App.
1990); State v. Tomes, 118 Idaho 952, 801 P.2d
1303 (Ct. App. 1990); State v. Aubert, 119
v. Weinmann, 122 Idaho 631, 836 P.2d 1092
(Ct. App. 1992); State v. Marsh, 122 Idaho
854, 840 P.2d 398 (Ct. App. 1992); State v.
Upton, 127 Idaho 274, 899 P.2d 984 (Ct. App.
1995); State v. Weaver, 127 Idaho 288, 900
P.2d 196 (1995); State v. Thomas, 133 Idaho
682, 991 P.2d 870 (Ct. App. 1999).
Analysis
Consolidation of offenses.
Evidence sufficient for conviction.
Grand larceny.
Guilty plea.
Instructions.
Jurisdiction of Indian tribe.
Sentence.
Value of property.
Sufficient evidence.
Consolidation of Offenses.
Where the amount of each welfare check
exceeded $150.00 (now $300.00), the statu-
tory minimum for classifying an offense as
felony grand theft under subsection (l)(b)l. of
this section, defendant was correctly charged
with 35 separate offenses of welfare fraud for
while a prosecutor may consolidate several
misdemeanors into a single felony, it does not
follow that he must consolidate several felo-
nies into one larger felony. State v. Gilbert,
112 Idaho 805, 736 P.2d 857 (Ct. App. 1987).
Evidence Sufficient for Conviction.
On appeal from a conviction of grand theft,
where the state's evidence showed that the
defendant wanted to purchase a motor home
from the victim, but credit problems arose
which could not be resolved until the next day,
and the victim loaned the defendant a pickup
truck to be used overnight, and the defendant
did not return the truck but instead drove it
to Colorado, the jury could reasonably infer
that the defendant intended to deprive the
victim of the truck. State v. Decker, 108 Idaho
683, 701 P.2d 303 (Ct. App. 1985).
On appeal from a conviction of first degree
burglary and grand theft, where the evidence
showed that the codefendants were stopped
by the police driving away from the scene of
the crime with the stolen property in the car,
and the defendants' defense was that a third
party forced them to commit the crimes, but
the defendants' version of the third party
theory varied over time and was rebutted by
the testimony of the third party, there was
substantial evidence to support the jury ver-
dict. State v. Kelling, 108 Idaho 716, 701 P.2d
664 (Ct. App. 1985).
Although defendant testified that the
money shortages on the dates the grand
thefts were alleged to have occurred were due
to him holding money from the deposit so he
could add it in to the proceeds of other days in
order to boost sales performance and meet his
cost budget on a daily basis in order to earn
bonuses, from the evidence presented, the
jury could properly infer that defendant ap-
propriated the funds for his own use rather
than to boost his sales on other dates. State v.
Stricklin, 136 Idaho 264, 32 P.3d 158 (Ct. App.
2001).
Grand Larceny.
Motive is not an element of the crime of
grand larceny. State v. Stoddard, 105 Idaho
533, 670 P2d 1318 (Ct. App. 1983).
In prosecution for grand larceny of automo-
255 THEFT 18-2407
bile, it was reversible error to admit evidence
that defendant had been charged with theft of
another car as evidence of that charge was not
relevant to question of his intent in the theft
at issue; nor was such evidence admissible to
show motive since issue of motive was not
raised by defendant's plea of not guilty and
was not otherwise raised in the case. State v.
Stoddard, 105 Idaho 533, 670 P.2d 1318 (Ct.
App. 1983).
Guilty Plea.
Where defendant made a plea agreement
and agreed to plead guilty to petit theft under
18-2403(3) and subsection (2) of this section

and as part of his plea agreement the prose-
cutor agreed not to recommend incarceration,
State did not breach plea agreement when it
filed brief with appellate court urging affir-
mance of the sentence and of the magistrate's
denial of Rule 35 relief as at the appeal stage
the sentence was already pronounced and the
State's role was no longer that of making a
recommendation as to what would be an ap-
propriate sentence. State v. Stringer, 126
Idaho 867, 893 P.2d 814 (Ct. App. 1995).
(1986).
The trial court did not err in permitting
prosecutor to amend an information against
defendant to include the charge of grand theft
by obtaining control of stolen property where
he was originally charged with grand theft.
State v. Seiber, 117 Idaho 637, 791 P.2d 18 (Ct.
App. 1989).
Instructions.
Where defendant was found guilty by a jury
of the crime of wilful concealment, and at
trial, the jury was instructed on the charged
offense of petit theft and also on the lesser
included offense of wilful concealment, the
instructions that were given adequately ad-
dressed the subject matter of the requested
instruction on the statutory definition of neg-
ligence as set forth in 18-101(2). State v.
Fetterly, 126 Idaho 475, 886 P.2d 780 (Ct.
App. 1994).
Where defendant was found guilty of crime
of wilful concealment an explanation of the
mental state, wilfulness, which is a requisite
for guilt of the crime of wilful concealment,
was given to the jury; the jury was instructed
that in order to find defendant guilty of wilful
concealment, they would have to find the
state had proven beyond a reasonable doubt
that defendant had wilfully concealed goods
or merchandise belonging to store while still
upon the premises of the store, and the jury
was given a definition of "wilfully" which was
drawn from, but did not recite in its entirety,
the definition in 18-101(1). These instruc-
tions were all that were required for the
statutory definition of negligence in
18-
101(2), and 18-101(2) was not the law that
governed defendant's guilt or innocence.
There was no need for an instruction giving
that definition of negligence to support her
defense that she did not act wilfully; her
contention that she was merely negligent was
properly a subject for closing argument, but
did not necessitate a separate jury instruc-
tion. State v. Fetterly, 126 Idaho 475, 886 P2d
780 (Ct. App. 1994).
In prosecution for embezzlement and forg-
ery, jury instructions which stated that to find
defendant guilty of charge of theft by embez-
zlement each of the elements in the charge
must be proven beyond a reasonable doubt
that defendant with fraudulent intent appro-
priated funds belonging to her employer and
applied these funds toward the purchase of
lots 3 and/or 4 of a certain subdivision, were
proper even though defendant contended that
the instruction failed to address the require-
ment that the jury unanimously find, beyond
a reasonable doubt, that defendant applied
the moneys either to purchase of lot 3, lot 4, or
both, and since the court gave a separate
instruction defining "fraudulent intent" as
well as instructions as to how a defense to
embezzlement is shown and that its verdict
must be unanimous and the elements of the
crime embezzlement as given in the instruc-
tions were drawn from 18-2403 and this
section, the trial court fully instructed the
jury on the elements which the state had to
prove in order for the jury to reach a unani-
mous finding of guilt. State v. Hamilton, 129
Idaho 938, 935 P.2d 201 (Ct. App. 1997).
Jurisdiction of Indian Tribe.
The tribal resolution which granted the
state concurrent jurisdiction over the of-
fenses, embezzlement, disturbing the peace,
simple assault, kidnapping, vagrancy and re-
ceiving stolen property did not grant consent
over a class of offenses which included grand
theft by possession of stolen property. State v.
Major, 111 Idaho 410, 725 P.2d 115 (1986).
Sentence.
Apreviously suspended, indeterminate sev-
en-year sentence for grand theft was not
excessive where the defendant pled guilty to
another grand theft, the presentence report
showed several misdemeanor violations and,
with the recent grand theft charge, three
felony convictions, and moreover, he poorly
performed in, and violated, both of the proba-
tion opportunities granted him. State v.
Sanchez, 114 Idaho 387, 757 P.2d 250 (Ct.
App. 1988), aff'd, 115 Idaho 776, 769 P.2d
1148 (1989).
hold that the district court initially abused its
discretion in ordering a grand theft sentence
to be served consecutively to one imposed for
issuing a check without sufficient funds. State
v. Teske, 123 Idaho 975, 855 P.2d 60 (Ct. App.
1993).
Sentence of five years with a two-year min-
imum period of confinement for welfare fraud
was reasonable, where defendant received
food stamps without reporting income re-
ceived from worker's compensation benefits,
and where defendant had a lengthy criminal
record. State v. Baxter, 124 Idaho 476, 860
P.2d 679 (Ct. App. 1993).
Although the sentence of 1 year in jail with
180 days suspended and 2 years probation
imposed by the magistrate under a plea
agreement to plead guilty to petit theft under
18-2403(3) and subsection (2) of this section
was stringent for a first offense, neither the
sentence as imposed nor the denial of the
defendant's Rule 35 motion for reduction of
sentence was an abuse of discretion where the
magistrate concluded that defendant and his
wife had been engaged in a carefully orches-
trated scheme using their young son to assist
in the theft of store merchandise. State v.
Stringer, 126 Idaho 867, 893 P.2d 814 (Ct.
App. 1995).
Value of Property.
Sufficient Evidence.
Where store owner testified that the value
of all of stolen property was approximately
$400, $150 worth ofwhich was recovered from
under defendant's porch, and where jury
could have reasonably inferred that defen-
dant had helped dispose of all of the property
that was not recovered, the evidence, and the
justifiable inferences which could be drawn
from it, supported a finding that the property
over which defendant admitted exercising un-
authorized control was of a value that ex-
ceeded the threshold value for grand theft.
State v. Fry, 124 Idaho 71, 856 P.2d 108 (Ct.
App. 1993).
Based on owner's testimony of value and
testimony of sheriff as to value, there was
substantial evidence upon which any rational
trier of fact could have found that the fair
market value of the stereo system exceeded
$300 at the time of the theft. State v.
Vandenacre, 131 Idaho 507, 960 P2d 190 (Ct.
App. 1998).
Analysis
Grand larceny.
Misdemeanor embezzlement.
Value of property taken.
Grand Larceny.
General rule regarding aggregation of val-
ues is that before the state can aggregate
amounts taken from the same person in sep-
arate incidents for the purpose of charging
grand larceny, it must show that the amounts
were obtained pursuant to a common scheme
or plan that reflected a single, continuing
larcenous impulse or intent. The ultimate
determination of whether a defendant is
guilty of grand larceny because items stolen
were in fact obtained in a single incident or
pursuant to a common scheme or plan reflect-
ing a single, continuing larcenous impulse or
intent is for the jury to make. State v. Lloyd,
103 Idaho 382, 647 P.2d 1254 (1982).
Where two eyewitnesses observed defen-
dant emptying parking meters, where the
money found in several places in the automo-
bile in which defendant was traveling was all
loose change of the type one would expect to
come from parking meters, and where an
officer testified that defendant himself con-
fessed that he obtained a key in Salt Lake and
came to Boise for the purpose of robbing
parking meters, the jury could properly con-
clude from the evidence that the money found
in the car came from parking meters in Boise
and was the fruit of a plan hatched by defen-
dant in Salt Lake, which would in turn sup-
port a conclusion that the money was ob-
tained pursuant to a common scheme or plan
reflecting a single, continuous larcenous im-
pulse or intent. State v. Lloyd, 103 Idaho 382,
647 P.2d 1254 (1982).
Where stolen recorder, together with its
price tag, was admitted on the basis of the
testimony of a management employee who
testified as to the authenticity of the tag and
that from the price tag code he could approx-
imate the market value of the article, the
price tag met the test of relevance in that it,
along with the verbal testimony, established
the value of the stolen item, which was an
essential element of the grand larceny charge.
State v. McPhie, 104 Idaho 652, 662 P2d 233
(1983).
257 THEFT 18-2408
Misdemeanor Embezzlement.
Since the reference to "feloniously stealing"
in the former larceny statute included both
felony and misdemeanor offenses, i.e. grand
and petit larceny, the same was true of that
language as used in the former embezzlement
statute and a defendant could properly plead
guilty to misdemeanor embezzlement. Spar-
row v. State, 102 Idaho 60, 625 P.2d 414
(1981).
Value of Property Taken.
Where a property invoice listing the items
which police recovered from defendant when
he was apprehended in connection with bur-
glary showed that business' money bag con-
tained $67.00 and that waitress' purse con-
tained $109.46, and where manager of
burglarized restaurant testified that $96.00
was missing while waitress testified that she
left purse, with money in it, at restaurant on
night of burglary, this evidence could have led
the jury to conclude, beyond a reasonable
doubt, that the value of the property taken
from the premises exceeded $150 and there
was substantial, competent evidence to sup-
port conviction of grand larceny. State v.
Regester, 106 Idaho 296, 678 P.2d 88 (Ct. App.
1984).
18-2408. Punishment for theft.

(1) Grand theft committed in a
manner prescribed in subsection (l)(a) of section 18-2407, Idaho Code, is a
felony punishable by fine not exceeding ten thousand dollars ($10,000) or
imprisonment in the state prison for not less than one (1) year nor more
than twenty (20) years, or by both such fine and imprisonment.
(2)(a) Grand theft committed in a manner prescribed in subsection
(l)(b)l., 2., 3., 4., 5., 6., 8., 9. or 10. of section 18-2407, Idaho Code, or a
felony committed in a manner prescribed in section 18-2415, Idaho Code,
is a felony punishable by a fine not exceeding five thousand dollars
($5,000),
or by imprisonment in the state prison for not less than one (1)
year nor more than fourteen (14) years, or by both such fine and
imprisonment.
(b) Grand theft committed in a manner prescribed in subsection (l)(b)7.
of section 18-2407, Idaho Code, is a felony punishable by a fine of not less
than one thousand dollars ($1,000) nor more than five thousand dollars
($5,000),
and the minimum fine shall not be suspended or withheld, or by
imprisonment in the state prison for not less than one
(1)
year nor more
than fourteen (14) years, or by both such fine and imprisonment. In
addition, the court shall assess civil damages as provided in section
(3) Petit theft is a misdemeanor punishable by a fine not exceeding one
thousand dollars
($1,000), or by imprisonment in the county jail not
exceeding one
(1)
year or by both. [I.C.,
18-2408, as added by 1981, ch. 183,
2, p. 319; am. 1983, ch.
19, 2, p. 54; am. 1987, ch.
84, 2, p. 158; am.
1995, ch. 216, 1, p. 754; am. 2001, ch. 112, 2, p. 401; am. 2002, ch. 257,
2, p. 747; am. 2002, ch. 289, 1, p. 837.]

18-2408 was

18-2401.
which appear to be compatible and have been
compiled together.
tive July 1, 2002, in subsection (2)(a), inserted
"or
10."
following
"9."
tive July 1, 2002, in subsection (2)(a), inserted
"is a felony committed in a manner prescribed
in section 18-2415, Idaho Code" following
"section 18-2407, Idaho Code."
25-1910.
18-2403.
in
18-2415 and 26-1206.
Cited in: State v. Sutton, 106 Idaho 403,
679 P.2d 680 (Ct. App. 1984); State v. Kelling,
108 Idaho 716, 701 P.2d 664 (Ct. App. 1985);
Stone v. State, 108 Idaho 822, 702 P. 2d 860
(Ct. App. 1985); State v. Russell, 109 Idaho
723, 710 P.2d 633 (Ct. App. 1985); State v.
Major, 111 Idaho 410, 725 P2d 115 (1986);
State v. Clayton, 112 Idaho 1110, 739 P.2d 409
(Ct. App. 1987); State v. Hall, 114 Idaho 887,
761 P.2d 1239 (Ct. App. 1988); State v. Cirelli,
115 Idaho 732, 769 P.2d 609 (Ct. App. 1989);
State v. Sanchez, 115 Idaho 776, 769 P2d
1148 (Ct. App. 1989); State v. Woodman, 116
v. Phillips, 121 Idaho 261, 824 P2d 192 (Ct.
App. 1992).
Analysis
Excessive sentence.
Reinstatement of sentence.
Sentence.
Hearing.
Maximum penalty not imposed.
Not excessive.
Proper.
Rehabilitative treatment considered.
Where the court concluded that defendant's
antisocial personality, as detailed in the psy-
chiatric report, aggravated by the tendency of
alcohol to further reduce inhibitions, com-
pelled the conclusion that defendant must be
regarded as a menace to society, and defen-
dant was therefore sentenced to an indeter-
minate term not to exceed 14 years in the
Idaho state penitentiary, the sentence for
grand larceny imposed by the trial court was
not excessive nor an abuse of discretion. State
v. Stroup, 101 Idaho 54, 607 P.2d 1328 (1980).
Ten years of probation given to defendants
for grand theft by defrauding an insurance
company was not an abuse of discretion by the
court where the term of probation was reason-
ably related to the time which might be re-
quired to perform the restitution obligation
and where the court provided for early dis-
charge of probation if restitution should be
earlier completed. State v. Cromer, 116 Idaho
925, 782 P.2d 48 (Ct. App. 1989).
tion by imposing two concurrent sentences,
consisting of two years fixed and six years
indeterminate, without retaining jurisdiction
for first-degree burglary and grand theft
where defendant had recently turned 18
years old at the time of the burglary, and he
and his accomplice burglarized the home in-
volved, at night, on more than one occasion,
took many miscellaneous items from the
home and pawned some of them and "trashed"
others and the presentence report indicated
that defendant had committed various of-
fenses as a juvenile which were equivalent to
first-degree burglary, grand theft, probation
violation and other crimes. State v.
Christensen, 121 Idaho 769, 828 P.2d 332 (Ct.
App. 1992).
Where defendant was an 18-year-old col-
lege student with no prior felony convictions
but the presentence report disclosed juvenile
offenses, including theft of radios from state
and county owned vehicles, as well as seven
probation violations and a commitment to the
custody of the Department of Health and
Welfare, the unified sentence of eight years,
with two years fixed, for conviction of first-
degree burglary and theft, was not an abuse
of discretion. State v. Auger, 121 Idaho 770,
828 P2d 333 (Ct. App. 1992).
Excessive Sentence.
Where at the time of the sentencing, defen-
dants were 21 and 20 years of age, respec-
tively, and where their presentence reports,
and earlier psychological reports portrayed
two young men with very low IQ's, either or
both of the defendants should have been able
to benefit, if at all, from what rehabilitative
programs were available, within a 14-year
period; therefore under these circumstances,
to impose a sentence which was more than
double the length of their current natural
lives was excessive and unduly harsh. State v.
Dunnagan, 101 Idaho 125, 609 P2d 657
(1980).
Reinstatement of Sentence.
Reinstatement of defendant's two-year sen-
tence for grand theft was not unreasonable
where defendant had a long prior record, and
had previously absconded from parole in Or-
egon. State v. New, 123 Idaho 168, 845 P. 2d
586 (Ct. App. 1993).
Sentence.
Hearing.
In prosecution for grand theft, evidence
implicating the defendant in other burglaries
in the area was relevant to the defendant's
sentencing and was admissible at the sen-
tencing hearing. State v. Cowger, 111 Idaho
825, 727 P.2d 1253 (Ct. App. 1986).
Maximum Penalty Not Imposed.

Imposition of indeterminate and concurrent
sentences of 15 years for first-degree burglary
and 14 years for grand theft were not the
maximum possible penalties; they were inde-
terminate rather than fixed, and concurrent
rather than consecutive. State v. Hawkins,
115 Idaho 719, 769 P.2d 596 (Ct. App. 1989),
aff'd, 117 Idaho 285, 787 P.2d 271 (1990),
aff'd, 117 Idaho 285, 787 P.2d 271 (1990).
Not Excessive.
The defendant's fixed five-year sentence for
theft and a consecutive indeterminate sen-
tence of five years for burglary were not
259 THEFT 18-2408
excessive where at the time of sentencing, the
defendant was 30 years old, since the age of
16 he had engaged in a robbery, numerous
burglaries, several thefts, and two acts of
receiving stolen property, he had served time
and had violated parole in another state, and
was on parole when he came to this state and
committed the instant offenses. State v.
App. 1987).
ness of the crimes, and the impact lesser
own free will, and could have departed from
P.2d 1205 (Ct. App. 1988).
A sentence of nine months confinement for
conviction of grand theft was not unreason-
able in light of defendant's prior felony con-
viction and revocation of a previous probation
along with the fact that the theft was commit-
ted while defendant was on probation. State v.
Birky, 122 Idaho 1170, 832 P.2d 1170 (Ct. App.
1992).
For grand theft, a sentence of five years
with a minimum confinement period of two
years was reasonable, where defendant was
involved in a "scam" which conned victims
into paying for nonfunctional pay phones, and
defendant had a prior record and a history of
being a fugitive from justice in other jurisdic-
tions. State v. Johnston, 123 Idaho 222, 846
P.2d 224 (Ct. App. 1993).
P.2d 432 (Ct. App. 1993).
Defendant's sentences for grand theft were
not unjust although his codefendants received
"lesser" sentences where defendant had a
prior felony record while his codefendants did
not. State v. Westmoreland, 123 Idaho 980,
855 P.2d 65 (Ct. App. 1993).
Proper.
The trial court did not err in sentencing the
defendant to a three-year indeterminate term
of imprisonment for each of eight counts of
drawing checks with insufficient funds and
one seven-year indeterminate term of impris-
onment on grand theft conviction to run con-
secutive to the other terms, where defendant
had prior criminal record and was out on bond
when grand theft occurred. State v. Brewster,
106 Idaho 145, 676 P.2d 720 (1984).
In an appeal from convictions of grand theft
under 18-2403(4) and acting as an acces-
sory to grand theft pursuant to 18-2403(4),
the trial court's imposition of a four-year
indeterminate sentence for the first count,
under this section, and a concurrent two-year
indeterminate sentence for the second count,
pursuant to
18-206, was not unduly harsh
where, although the defendant was only 18
years old, he had a record consisting of minor
traffic violations and a possession of mari-
juana charge, and where the presentence re-
port showed that the defendant was involved
with marijuana and cocaine, that the defen-
dant had sought to obtain $500 from the
rightful owners of stolen snowmobile for in-
formation leading to its return, had offered to
sell a stolen snowmobile to a neighbor, and
had engaged in a number of other criminal
activities. State v. Mason, 107 Idaho 706, 692
P.2d 350 (1984).
Three-year indeterminate sentence for
grand theft conviction did not represent an
abuse of discretion where the presentence
report showed that the defendant had been
convicted previously of four felonies and six
misdemeanors. State v. Bowman, 106 Idaho
446, 680 P.2d 868 (Ct. App. 1984).
Where court believed that defendant's drug
dependency would result in future criminal
conduct, that protecting society was the most
pressing consideration, and that in light of
defendant's conduct and prior record, retribu-
tion and deterrence would be furthered by a
fixed term of confinement, the court did not
abuse its discretion in sentencing defendant
to a fixed seven-year sentence for burglary
and to a five-year indeterminate sentence for
grand theft. State v. Heistand, 107 Idaho 218,
687 P2d 1001 (Ct. App. 1984).
A sentence of indeterminate 12-year terms
for each of two grand theft charges and an
indeterminate five-year term for second de-
gree burglary conviction, with all sentences to
run concurrently, was not excessive, where
the measure of confinement was treated as
four years, one-third of an indeterminate sen-
tence, and defendant had a long history of
alcohol and drug abuse, as well as prior con-
frontations with the law. State v. Brandt, 109
Idaho 728, 710 P.2d 638 (Ct. App. 1985).
Where the concurrent ten-year sentences
were well within the district court's authority,
defense counsel recommended such sen-
tences, and the record contained no sugges-
tion that counsel acted against his client's
interests or otherwise provided ineffective as-
sistance, the sentences were invited and
would not be disturbed on appeal. State v.
Griffith, 110 Idaho 613, 716 P.2d 1385 (Ct.
App. 1986).
nate ten-year sentence for grand theft where
the defendant had two prior felony convic-
tions for burglary and numerous misde-
meanor offenses, and at the time of the
present offense, the defendant was on proba-
tion for first-degree burglary. State v. Virgo,
110 Idaho 828, 718 P2d 1266 (Ct. App. 1986).
The 10-year indeterminate sentence for
grand theft did not represent an abuse of the
district judge's discretion, where the defen-
dant stole a pickup truck valued substantially
in excess of $150.00, he was under the influ-
ence of alcohol and marijuana at the time of
the theft, a presentence investigation dis-
closed that he was a chronic alcoholic and
substance abuser, and he had been convicted
in other jurisdictions of numerous felony of-
fenses, including burglary, forgery and em-
bezzlement. State v. Darnell, 111 Idaho 825,
725 P.2d 201 (Ct. App. 1986).
tion in imposing a 14-year indeterminate sen-
tence on the defendant who pleaded guilty to
one count of grand theft, where the defendant
had a long history of criminal activity, and at
the time of the sentencing, another burglary
charge was pending against him. State v.
Cowger, 111 Idaho 825, 727 P.2d 1253 (Ct.
App. 1986).
The court did not abuse its discretion where
the defendant was sentenced to a three-year
indeterminate sentence for grand theft. State
v. Hathaway, 111 Idaho 844, 727 P.2d 1272
(Ct. App. 1986).
An indeterminate sentence of five years for
grand theft was not improper where the de-
fendant failed to show an abuse of discretion.
State v. Nooner, 114 Idaho 654, 759 P2d 945
(Ct. App. 1988).
giving an indeterminate 14-year sentence to a
grand theft defendant where defendant had a
long history of crime, had been given many
opportunities for rehabilitation which had
been of little avail, and, while awaiting trial,
had tested positive for marijuana use. This
prior history and drug use problem warranted
incarceration for the protection of society.
State v. Ramsey, 115 Idaho 717, 769 P.2d 594
(Ct. App. 1989) (decision prior to enactment of
19-2513).
Imposing a sentence of three years in
prison with a minimum one-year confinement
period for second-degree burglary, and a con-
current one-year sentence for petit theft for
shoplifting $42.00 worth of meat was not
excessive where defendant had a lengthy
record of shoplifting and other crimes, and
defendant had made a commitment to reha-
bilitation after one of her prior convictions,
yet no rehabilitation had occurred. State v.
Palacios, 115 Idaho 901, 771 P.2d 919 (Ct.
App. 1989).
The court properly denied a motion for a
reduction of sentence by defendant convicted
of possession of controlled substance with
intent to deliver and of theft by possession of
stolen property where defendant was sen-
tenced to concurrent, unified sentences of
seven years with three years minimum con-
finement and of five years with three years
minimum confinement, and where these sen-
tences were well within the statutorily per-
mitted maximum penalties. State v. Garcia,
115 Idaho 559, 768 P.2d 822 (Ct. App. 1989).
Judge did not abuse his discretion in sen-
tencing defendant, convicted of grand theft
for shooting a cow and appropriating the two
hindquarters therefrom, to a term not to
exceed eight years with a three-year mini-
mum period of confinement; the judge took
defendant's crime, his past criminal activity
and his potential for rehabilitation, and bal-
anced them against the need to protect soci-
ety. State v. Johnson, 117 Idaho 650, 791 P.2d
31 (Ct. App. 1990).
Grand theft defendant, sentenced to three
years determinate followed by six years inde-
terminate, was not given an excessive sen-
tence where the sentence was within statu-
tory constraints and the defendant had a long
history of criminal violations, both as a juve-
nile and as an adult. State v. Pena, 117 Idaho
187, 786 P.2d 578 (Ct. App. 1990).
Defendant was sentenced to five years with
three years' minimum confinement on each
burglary charge and to eight years with four
years' minimum confinement on each grand
theft offense and where defendant had pled
guilty to avoid eight additional felony counts
and had a lengthy juvenile record, the sen-
tences imposed were reasonable, and the dis-
tion. State v. Rocklitz, 120 Idaho 703, 819 P.2d
121 (Ct. App. 1991).
Where the court determined that defendant
in a grand theft case was lying and imposed a
sentence of seven years indeterminate with
two and one-third years to be the probable
term of confinement to punish him for his
crime and to protect society, and the judge's
comments on defendant's itinerant lifestyle,
lack of employment, and lack of connection to
261 THEFT 18-2408
the area reflect the court's concern that defen-
dant would not be a good probation risk, the
sentence was reasonable under the circum-
stances of this case. Gonzales v. State, 120
Idaho 759, 819 R2d 1159 (Ct. App. 1991).
Unified fourteen-year sentence, with four
years minimum confinement for grand theft
charges was reasonable, where defendant had
a considerable criminal record including prior
convictions for assault and rape. State v.
Whitcher, 124 Idaho 478, 860 P.2d 681 (Ct.
App. 1993).
Unified sentence of fifteen-year indetermi-
nate term with nine years minimum confine-
ment for burglary and grand theft was rea-
sonable, where defendant had an extensive
past history of burglary and theft. State v.
Gawron, 124 Idaho 625, 862 P.2d 317 (Ct.
App. 1993).
Once defendant violated the terms of his
probation, the district court was not bound by
the plea agreement that stated defendant's
disposition was to be a withheld judgment
with five years on probation, and the court
was free to sentence defendant to a period of
incarceration within the statutory maximum
for grand theft. Short v. State, 135 Idaho 40,
13 P.3d 1253 (Ct. App. 2000).
Rehabilitative Treatment Considered.
Where co-defendants convicted of burglary
and grand theft both claimed that the district
court abused its discretion by refusing to
retain jurisdiction to allow them to obtain
rehabilitative treatment for their respective
alcohol abuse problems, but the district court
had before it the presentence investigation
reports which indicated that both co-defen-
dants had extensive prior criminal records,
the court properly concluded that both men
would likely fail on any type of probation
program and noted the importance of protect-
ing society from them; the court also ex-
pressed its concern for both defendants' alco-
holism and drug problems and recommended
that both defendants be afforded the benefit of
the alcohol and drug abuse counseling pro-
grams available in the penitentiary, thereby
properly considering the relevant sentencing
factors, and indicating no abuse of discretion
in refusing to retain jurisdiction. State v.
Smith, 119 Idaho 233, 804 P.2d 1364 (Ct. App.
1991).
Analysis
Sentence.
Excessive.
In general.
No abuse of discretion.
Sentence.
Sentencing court could properly consider
defendant's 33 arrests in the state of Wash-
ington in the 31 months prior to arrest in
Idaho, which arrests included arrest for a
felony reduced to a misdemeanor and 30 other
traffic offenses to which defendant pleaded
guilty, as well as pending charges for battery,
resisting arrest and possession of stolen prop-
erty; thus imposition of an indeterminate
term not to exceed seven years which was
one-half of the maximum sentence allowable
for grand larceny under former law providing
for punishment for grand larceny was proper.
State v. Ott, 102 Idaho 169, 627 P2d 798
(1981).
Excessive.
Upon appeal of conviction of receiving sto-
len property and sentence of five years in the
state prison, in view of the meagerness of the
testimony as to defendant's guilt and the
comparative value of the stolen property re-
ceived, the sentence was held excessive and
reduced the three months in the county jail
and a fine of $500. State v. Constanzo, 76
Idaho 19, 276 P.2d 959 (1954).
In General.
Where presentence report indicated two
prior felonies concerning grand larceny of
livestock and sentence imposed was indeter-
minate term of seven years, which was well
within statutory limit of former law dealing
with grand larceny, the sentencing court did
not abuse its discretion in sentencing. State v.
Bartholomew, 102 Idaho 106, 625 P.2d 1109
(1981).
No Abuse of Discretion.
Where the trial court considered appellant
as the person primarily responsible for the
commission of the offense involved, being
aided in its decision by a pre-sentence inves-
tigation, there was no abuse of discretion in a
sentence of no more than 10 years in the
Idaho State Penitentiary, where the maxi-
mum term was 14 years, such sentence being
neither extreme nor excessive. State v.
Bassett, 86 Idaho 277, 385 P.2d 246 (1963).
Trial court did not abuse its discretion in
sentencing defendant to five years' imprison-
ment for the grand larceny of 86 pigs. State v.
Cliett, 96 Idaho 646, 534 P.2d 476 (1975).
18-2409. Pleading and proof.

(1) Where it is an element of the
crime charged that property was taken from the person or obtained by
extortion, an indictment, complaint or information for theft must so specify.
In all other cases, an indictment, information or complaint for theft is
sufficient if it alleges that the defendant stole property of the nature or value
required for the commission of the crime charged without designating the
particular way or manner in which such property was stolen or the
particular theory of theft involved.
(2) Proof that the defendant engaged in any conduct constituting theft as
defined in section 18-2403, Idaho Code, is sufficient to support any indict-
ment, information or complaint for theft other than one charging theft by
extortion. An indictment, complaint or information charging theft by extor-
tion must be supported by proof establishing theft by extortion. [I.C.,
703.1
18-2409 was
18-2401.
repeal and 3 is compiled as
18-1401.
as 18-2407.
Cited in: State v. Henderson, 113 Idaho
411, 744 P.2d 795 (Ct. App. 1987).
Analysis
Evidence.
Drawing checks without funds.
Embezzlement.
Extortion.
False pretenses.
Fraudulent intent.
Larceny.
Embezzlement.
Extortion.
False pretenses.
Larceny.
Theft.
Variance.
Intent.
Presumption of value.
Larceny.
Proof.
False pretenses.
Search warrant.
Venue.
Larceny.
Wife as abettor.
Evidence.
Drawing Checks Without Funds.
Evidence of previous checks issued without
funds, shortly before check in issue, was ad-
missible as to his intent to defraud. State v.
Sedam, 62 Idaho 26, 107 P.2d 1065 (1940).
Where there was a conflict in evidence as to
date check was given, date merchandise was
purchased for which check was given, and as
to whether instructions had been given to
hold check a few days, such matters were
within exclusive province of the jury. State v.
Eikelberger, 72 Idaho 245, 239 P.2d 1069
(1951).
Embezzlement.
Intent of embezzlement might have been
established either by direct or circumstantial
evidence. Evidence of secretion was compe-
tent. State v. Sage, 22 Idaho 489, 126 P. 403,
1914BAnn. Cas. 251(1912).
The late disclosure of a document revealing
that money was missing from the clerk's office
which had not been handled by defendant was
prejudicial, where the premise of the state's
case against defendant was that he had re-
ceived money from the sheriff's office and
subsequently failed to deliver the money to
the clerk's office, where the evidence intro-
duced by the state showed that he had pur-
portedly signed for the money and that the
clerk's office had no record of receiving the
money from defendant, and where the state
asked the jury to infer from these facts that
since the money was missing from the clerk's
office, defendant was the responsible party.
State v. McCoy, 100 Idaho 753, 605 P.2d 517
(1980).
Evidence that the defendant sold a shotgun
intending to retain the proceeds, that he was
not authorized to sell it, that he had pur-
chased a second inoperative shotgun before
263 THEFT 18-2409
he sold the first gun and therefore could not
have intended the second gun to be a replace-
ment shotgun and that defendant's purchase
of a third shotgun over a year later was
prompted only by the mayor's demand that he
return the city's shotgun was sufficient to
sustain a conviction. State v. Burris, 101
Idaho 683, 619 P.2d 1136 (1980).
Evidence that a private citizen, purchased a
pearl-handled revolver from the defendant
and sold the gun to his father-in-law approx-
imately two days later and testimony which
firmly established that the revolver in ques-
tion belonged to the city police force was
sufficient to support a conviction of embezzle-
ment. State v. Burris, 101 Idaho 683, 619 P.2d
1136 (1980).
Evidence that defendant sold pistol which
was bought by a city police officer and turned
over to defendant police chief after officer's
death was sufficient to support conviction of
embezzlement regardless of whether pistol
belonged to officer or city. State v. Burris, 101
Idaho 683, 619 P.2d 1136 (1980).
Extortion.
In a prosecution for obtaining a check in
settlement of buyer's claim for breach of war-
ranty through threats of injury to person and
property of seller, evidence of an uncondi-
tional guarantee and that property sold was
defective, was inadmissible. State v. Phillips,
62 Idaho 656, 115 P.2d 418 (1941).
Where evidence showed that agent of defen-
dant corporation, which operated a bill collec-
tion service, used threat of prosecution for a
crime as a collection tactic, it was error to
instruct jury that defendant corporation could
be found guilty ifjury found agent was acting
within the scope of his authority; the corpora-
tion could not be bound by the actions of its
agent unless the agent's acts were authorized,
requested, commanded, performed or reck-
lessly tolerated by the board of directors or by
a high managerial agent acting in behalf of
the corporation within the scope of his office
or employment. State v. Adjustment Dep't
Credit Bureau, Inc., 94 Idaho 156, 483 P.2d
687 (1971).
False Pretenses.
Newspaper advertisements by the defen-
dant, which was the means of bringing the
parties together, and readings by defendant
or fortune-teller mailed to prosecuting wit-
ness and another, are admissible in evidence.
State v. Stevens, 48 Idaho 335, 282 P. 93
(1929).
False pretenses may be established by cir-
cumstantial evidence. State v. Stevens, 48
Idaho 335, 282 P. 93 (1929).
Acts, statements and conduct of coconspir-
ator were admissible against defendant,
though not occurring in his presence, where
parties were working together to accomplish a
common purpose, to-wit, the obtaining of
money by false pretenses. State v. So, 71
Idaho 324, 231 P.2d 734 (1951).
Package containing candy bars valued at $5
was properly admitted in evidence against
defendant charged with obtaining money un-
der false pretenses, where evidence showed
that other persons connected with crime and
acting in conjunction with defendant repre-
sented to prosecuting witness that package
contained articles valued at $5,000. State v.
So, 71 Idaho 324, 231 P2d 734 (1951).
Admission of proofof statements and acts of
coconspirators prior to proof of conspiracy is
discretionary with the court, since either the
acts or the conspiracy may be proved first, if
one on trial is subsequently shown to be
connected with crime and conspiracy. State v.
So, 71 Idaho 324, 231 P.2d 734 (1951).
Fraudulent Intent.
cluded beyond a reasonable doubt that defen-
dant had a fraudulent criminal intent, and
therefore the trial court erred in refusing to
grant defendant's motion for judgment of ac-
quittal. State v. Gowin, 97 Idaho 766, 554 P. 2d
944 (1976).
Larceny.
The proof that victim had possession of
money or property was in general sufficient
proof of ownership. State v. Brill, 21 Idaho
269, 121 P. 79 (1912).
In a prosecution for receiving stolen calves
where the sheriff as state's witness inter-
jected a response beyond the scope of defense
counsel's cross-examination which prejudi-
cially inferred that defendant was involved in
similar larcenous acts, the trial court erred in
overruling defendant's motion to strike that
portion of the sheriff's testimony and in over-
ruling defendant's objection to the state's re-
direct interrogation of the sheriff concerning
the unelicited answers. State v. Trowbridge,
97 Idaho 93, 540 P.2d 278 (1975).
Where the evidence was insufficient to es-
tablish the defendant's intent at the time of
the taking of several cattle or to rebut his
assertion that his shipment of the stray cattle
was other than an honest mistake, a jury
verdict of conviction could not be sustained.
State v. Erwin, 98 Idaho 736, 572 P.2d 170
(1977).
Information which charged sheriff of a
county with wilfully, unlawfully, fraudulently,
and feloniously appropriating to his own use
certain money to him in an official capacity
was sufficient. State v. Steers, 12 Idaho 174,
85 P. 104 (1906).
Series of conversions by one occupying fidu-
ciary position may constitute single continu-
ing offense of embezzlement, and in charging
them as such it is not necessary
7
to allege that
the series of acts was systematically insti-
tuted and carried on, or that the specific
separate peculations cannot be identified.
State v. Peters, 43 Idaho 564, 253 P. 842
(1927).
An information or indictment which did not
specifically list the property the defendant
was charged with taking, failed to meet the
statutory and constitutional requirements of
specificity. State v. Gumm, 99 Idaho 549, 585
P.2d 959 (1978).
Embezzlement.
Where one systematically instituted a con-
tinuous series of withholding of his principal's
money for purpose of acquiring for his own
use ultimately a large sum, the series of acts
constituted but one offense, namely, embez-
zlement of aggregate amount. State v. Dawe,
31 Idaho 796, 177 P. 393 (1918).
Allegations of demand and nonpayment
were not essential for crime of embezzlement.
State v. White, 46 Idaho 124, 266 P. 415
(1928).
Extortion.
Since the crime of extortion is in fact a
felony, there was no error in the use of the
word "feloniously" in the information charg-
ing such crime. State v. Adjustment Dep't
Credit Bureau, Inc., 94 Idaho 156, 483 P2d
687 (1971).
False Pretenses.
An information charging that prosecuting
witness paid $200.00 in consideration of re-
ceiving employment and believing false and
fraudulent pretense in connection therewith
he was deceived and induced to part with
such $200.00, stated an offense under former
law regarding obtaining labor under false
pretenses. State v. Stevens, 48 Idaho 335, 282
P. 93 (1929).
Where information charged several alleged
false pretenses, a conviction might be had on
proof of any one, provided it was material in
inducing the prosecuting witness to part with
his money. State v. Stevens, 48 Idaho 335, 282
P. 93 (1929).
Evidence justified conviction of defendant
for obtaining money under false pretenses
where evidence showed that defendant in
conjunction with others obtained $5,000 from
prosecuting witness on representation that
package contained valuable parcels when as a
matter of fact it only contained candy bars
valued at $5. State v. So, 71 Idaho 324, 231
P.2d 734(1951).
Larceny.
Information charging, in the language of
former statutes, felonious taking of two
mares, propert}' of B, from a range in a
certain county, was sufficient. State v.
Rathbone, 8 Idaho 161, 67 P. 186 (1901).
Whether it was necessary to allege in infor-
mation charging larceny from the person,
value of property taken, was a question of the
sufficiency of the information, and did not go
to jurisdiction of court. Only manner in which
such question could have been raised was by
demurrer to information, at trial under plea
of not guilty, or after trial in arrest of judg-
ment. In re Dawson, 20 Idaho 178, 117 P. 696,
35L.R.A. (n.s.) 1146(1911).
The charging part of information must
name person charged, state what was stolen
by that particular person, where, and when.
State v. Flower, 27 Idaho 223, 147 P. 786
(1915).
Word '"steal" has fixed and well-defined
meaning and in its common everyday use is
well understood. Use of such word in indict-
ment without addition of word "feloniously"
will not vitiate it. State v. Basinger, 46 Idaho
775, 271 P. 325 (1928).
Ownership of stolen property need not be
alleged with precision where the alleged
crime caused an injury to another. State v.
Kenworthy, 68 Idaho 312, 193 P.2d 838
(19481
An indictment for larceny which alleges
title to the articles stolen to be in P. I. Com-
pany was sufficient without alleging that the
company was a corporation or a partnership
or an entity capable of owning title to prop-
erty. State v. Kenworthy. 68 Idaho 312, 193
P2d 838 (1948).

Information did not charge more than one
offense, since it was not inconceivable or un-
reasonable that one who bought or received
property with the intent of his own gain may
have had at same time and as part of trans-
action an intent to prevent owner from again
possessing it. State v. Hagan, 47 Idaho 315,
274 P. 628 (1929).
It was unnecessary to allege that defendant
received stolen property for sake of his own
gain and to prevent owner from again pos-
sessing his property. Allegation of either in-
tent was sufficient. State v. Montgomery, 48
Idaho 760, 285 P. 467 (1930).
Information need only charge offense as
defined by statute or in language of equiva-
lent import. State v. Montgomery, 48 Idaho
760, 285 P. 467(1930).
Theft.
In prosecution for theft and grand theft
defendant was not prejudiced by state's reli-
ance on subsection (1) of this section, for
although the statute relieved the state from
265 THEFT
18-2409
alleging in the information the theories of
theft involved, the details of the crimes were
made available to defendant by way of the
preliminary hearings held on the charges.
State v. Owen, 129 Idaho 920, 935 P.2d 183
(Ct. App. 1997).
Variance.
Information charging C to be owner of the
stolen property was supported by proof that C
was in possession as agent of owner with
power of sale and disposition. State v. Farris,
5 Idaho 666, 51 P. 772 (1897).
An information alleging C. to be the owner
of the stolen property was supported by proof
showing that he was in possession of the
property as agent of the real owner with full
power to sell or otherwise dispose of the same.
State v. Farris, 5 Idaho 666, 51 P. 772 (1897).
Information charging larceny of two mares
from G.M.B. was supported by proof that
mares were property of G.M.B. and R.L.B.
State v. Rathbone, 8 Idaho 161, 67 P. 186
(1901).
Information for larceny which alleged title
to thing stolen to be in B was supported by
proof of property in the firm of B & J. State v.
Ireland, 9 Idaho 686, 75 P. 257 (1904).
There was no material variance where in-
formation charges that thing stolen was prop-
erty of C.W.D., when in fact, it belonged to
CD., and it was nowhere shown that C.W.D.
and CD. were not the same person. State v.
Rooke, 10 Idaho 388, 79 P. 82 (1904).
Where charge is that animals taken were
"geldings," it was not necessary to show that
horses stolen were actually "geldings." State
v. Brassfield, 40 Idaho 203, 232 P. 1 (1925).
Intent.
In cases of embezzlement by public and
corporate officers, circumstantial evidence is
often only means of establishing ultimate fact
of guilt; conclusion of guilt need not necessar-
ily follow from circumstances in proof but may
be obtained therefrom by probable deduc-
tions. State v. Jester, 46 Idaho 561, 270 P. 417
(1928); State v. Smith, 48 Idaho 558, 283 P.
529 (1929).
Since crime of embezzlement depended
upon existence of criminal intent, wide scope
was given to evidence which might have been
introduced by state to show fraudulent or
criminal intent or on behalf of defense to show
absence thereof. State v. Smith, 48 Idaho 558,
283 P. 529 (1929).
Presumption of Value.
Larceny.
Upon prosecution for larceny of check for a
certain amount of money, no proof of actual
value is required, as law presumes that the
face value of check is the actual value. State v.
Bogris, 26 Idaho 587, 144 P. 789 (1914).
Proof.
False Pretenses.
The prosecution did not have to prove that
the defendant received the exact amount of
money charged in the information; the
amount of money received was not descriptive
of any essential ingredient of the offense.
State v. Sheehan, 33 Idaho 553, 196 P. 532
(1921).
Where alleged false pretenses are oral they
must be proved by testimony of two witnesses
or one witness and corroborating circum-
stances. State v. Whitney, 43 Idaho 745, 254 P.
525 (1927).

In prosecution for receiving stolen wool
state must show beyond reasonable doubt
that the wool in possession of defendant was
the same wool or part of the wool allegedly
stolen. State v. Rankin, 56 Idaho 64, 50 P.2d 3
(1935).
Search Warrant.
Where search warrant described premises
to be searched as "the Club" not exclud-
ing any part thereof, trial court was justified
in considering the warrant good as to "a place
under the Club" where the search was
made only in the basement of such club, and
evidence, which resulted in a conviction for
receiving stolen property, was properly admit-
ted. State v. Constanzo, 76 Idaho 19, 276 P.2d
959 (1954).
Venue.
Larceny.
Evidence as to acts of appellant in aiding to
load a steer into a truck after the steer had
been killed, dressing the steer out, and trans-
porting it to the South Fork Lodge, with
intent to deprive the owner of his property,
was sufficient to establish appellant as a
principal within the meaning of
18-204,
and as principal he could be tried in either the
county in which the steer was stolen or that in
which the Lodge was located. State v. Bassett,
86 Idaho 277, 385 P.2d 246 (1963).
Wife as Abettor.
Finding stolen goods taken by husband at
the home was insufficient to convict wife as an
abettor. State v. Flower, 27 Idaho 223, 147 P.
786 (1915).
18-2410. Prohibiting defacing, altering or obliterating numbers
Sales prohibited

Penalty.

(1) Any person who, with intent to
deceive or defraud others, shall deface, alter, remove, cover, destroy or
obliterate the manufacturer's serial or identification number on any item of
property shall be guilty of a felony.
(2)
Any person or persons who, with intent to deceive or defraud others,
knowingly disposes of, sells, trades or barters, or offers to dispose of, sell,
trade or barter any item of property on which the manufacturer's serial or
identification number has been defaced, altered, removed, covered or
obliterated shall be guilty of a felony
(3) Any violation of the provisions of this act [this section] shall be
punishable by a fine not to exceed one thousand dollars ($1,000) or by
imprisonment of not more than five (5) years in the state penitentiary or
both. [I.C.,

18-2410, as added by 1982, ch. 214, 1, p. 588.1
18-2410 was Section 2 of S.L. 1982, ch. 214, declared an
18-2411. Unlawful use of theft detection shielding devices.

(1) A person commits unlawful use of a theft detection shielding device
when he knowingly manufacturers [manufactures], sells, offers for sale or
distributes any laminated, or coated bag or device peculiar to shielding and
intended to shield merchandise from detection by an electronic or magnetic
theft alarm sensor.
(2) A person commits unlawful possession of a theft detection shielding
device when he knowingly possesses any laminated or coated bag or device
peculiar to and designed for shielding and intended to shield merchandise
from detection by an electronic or magnetic theft alarm sensor, with the
intent to commit theft.
(3) A person commits unlawful possession of a theft detection device
remover when he knowingly possesses any tool or device designed to allow
the removal of any theft detection device from any merchandise without the
permission of the merchant or person owning or holding the merchandise.
(4) A person commits the offense of unlawful removal of a theft detection
device when he intentionally removes the device from a product prior to
purchase.
(5) A person who commits unlawful use of a theft detection shielding
device, unlawful possession of a theft detection shielding device, unlawful
possession of a theft detection device remover or unlawful removal of a theft
detection device shall be guilty of a misdemeanor for a first offense of a
violation of the provisions of this section. Any person who pleads guilty to or
is found guilty of a violation of the provisions of this section, or any
substantially conforming statute in another state or local jurisdiction for a
second time within five (5) years, notwithstanding the form of the judg-
ments) or withheld judgment(s), shall be guilty of a felony and shall be
punished by a fine not to exceed one thousand dollars ($1,000) or shall be
sentenced to the custody of the state board of correction for a term not to
exceed five
(5) years or both. [I.C.,

18-2411, as added by 2000, ch. 129, 1,
p. 304.]
267 THEFT 18-2415
Compiler's notes. Former 18-2411, The bracketed word "manufactures" in sub-
18-2411, as added by section (1) was inserted by the compiler.
1981, ch. 183, 1.
18-2412, 18-2413. Embezzlement, defense, mitigating circum-
stances, punishment. [Repealed.]
Compiler's notes. These sections, which added by 1972, ch. 336, 1, p. 844 were
comprised I.C.,

18-2412 and 18-2413, as repealed by S.L. 1981, ch. 183, 1.
18-2415. Scanning
Reencoding.
(1) As used in this section, the

term:
(a) "Scanning device" means a scanner, reader, or any other electronic
device that is used to access, read, scan, obtain, memorize, or store,
temporarily or permanently, information encoded on the magnetic strip or
stripe of a payment card.
(b) "Reencoder" means an electronic device that places encoded informa-
tion from the magnetic strip or stripe of a payment card onto the magnetic
strip or stripe of a different payment card.
(c) "Financial transaction card" or "FTC" means any instrument or device
known as a credit card, credit plate, bank services card, banking card,
check guarantee card, debit card, telephone credit card or by any other
name issued by the issuer for the use of the card holder in obtaining
money, goods, services, or anything else of value on credit, or in certifying
or guaranteeing to a person or business the availability to the card holder
of the funds on deposit that are equal to or greater than the amount
necessary to honor a draft or check payable to the order of such a person
or business; or any instrument or device used in providing the card holder
access to a demand deposit account or a time deposit account for the
purpose of making deposits of money or checks therein, or withdrawing
funds in the form of money, money orders, or traveler's checks or other
representative of value therefrom or transferring funds from any demand
account or time deposit account to any credit card account in full or partial
satisfaction of any outstanding balance existing therein.
(d) "Merchant" is defined as an owner or operator of any retail mercantile
establishment or any agent, employee, lessee, consignee, officer, director,
franchisee, or independent contractor of such owner or operator. A
"merchant" means a person who receives from an authorized user of a
payment card, or someone the person believes to be an authorized user, a
payment card or information from a payment card, or what the person
believes to be a payment card or information from a payment card, as the
instrument for obtaining, purchasing or receiving goods, services, money
or anything else of value from the person.
(2) It is a felony for a person to use or possess with intent to use:
(a) A scanning device to access, read, obtain, memorize, or store, tempo-
rarily or permanently, information encoded on the magnetic strip or stripe
of a payment card without the permission of the authorized user of the
payment card and with the intent to defraud the authorized user, the
issuer of the authorized user's payment card, or a merchant.
18-2416 . CRIMES AND PUNISHMENTS 268
(b) A reencoder to place information encoded on the magnetic strip or
stripe of a payment card onto the magnetic strip or stripe of a different
card without the permission of the authorized user of the card from which
the information is being reencoded and with the intent to defraud the
authorized user, the issuer of the authorized user's payment card, or a
merchant.
(3) Any person who commits a violation pursuant to this section shall be
punished pursuant to the provisions of section 18-2408(2)(a), Idaho Code.
[I.C.,
18-2415, as added by 2002, ch. 289, 2, p. 837.]
18-2408.
18-2416. Short title.

This act may be known and cited as the
"Unused Merchandise Ownership Protection Act." [I.C.,

18-2416, as added
by 2000, ch. 130, 1, p. 305.]
Compiler's notes. "This act," referred to in
this section, means S.L. 2000, ch. 130, which
is codified as

18-2416 to 18-2421.
As used in the unused merchandise ownership

protection act:
(1) "Open market" may include a "swap meet," an "indoor swap meet" or
a "flea market" and means an event at which two (2) or more persons offer
personal property for sale or exchange and either:
(a) A fee is charged for those persons selling or exchanging personal
property or a fee is charged to the public for admission to the event; or
(b) The event is held more than two (2) times in a twelve (12) month
period;
(2) "Unused merchandise" means tangible personal property that, since
its original production or manufacturing, has never been used or consumed
and, if placed in a package or container, is still in its original and unopened
package or container; and
(3) "Vendor of unused merchandise" means a person who offers unused
merchandise for sale or exchange at an open market. [I.C.,

18-2417, as
added by 2000, ch.
130, 1, p. 305.]
18-2418. Prohibited sales

Certain merchandise.

(1) It is a
violation of the unused merchandise ownership protection act for a vendor
of unused merchandise to sell or offer for sale any baby food or infant
formula, cosmetic, drug or medical device at an open market without
displaying a written valid authorization from the manufacturer or distrib-
utor of the merchandise. The authorization shall identify the vendor of
unused merchandise and shall specify the merchandise that the vendor is
authorized to sell.
(a) "Baby food or infant formula" means unused merchandise consisting
of a food product manufactured, packaged and labeled specifically for
consumption by a child less than two
(2)
years of age;
269 THEFT 18-2419
(b) "Cosmetic" means unused merchandise, other than soap, that is:
(i) Intended to be rubbed, poured, sprinkled or sprayed on, introduced
into or otherwise applied to the human body or any part thereof for
cleansing, beautifying, promoting attractiveness or altering the appear-
ance; or
(ii) Intended for use as a component of any articles enumerated in
subparagraph (i) of this paragraph;
(c) "Drug" means unused merchandise, other than food, that:
(i) Is recognized in an official compendium;
(ii) Affects the structure or any function of the body of man or other
animals; or
(hi) Is intended for use as a component of subparagraph (i) or (ii) of this
paragraph, but does not include medical devices or their component
parts or accessories;
(d) "Medical device" means unused merchandise that is an instrument,
apparatus, implement, machine, contrivance, implant, in vitro reagent or
other similar or related article, including any component, part or acces-
sory, and that is:
(i) Recognized in an official compendium;
(ii) Intended for use in the diagnosis of disease or other conditions, or
in the cure, mitigation, treatment or prevention of disease, in man or
other animals; or
(iii) Intended to affect the structure or function of the body of man or
other animals and which does not achieve its principal intended
purposes through chemical action within or on the body of man or other
animals and which is not dependent upon being metabolized for
achievement of its principal intended purposes; and
(e) "Official -compendium" means the official United States
pharmacopoeia national formulary or the official homeopathic
pharmacopoeia of the United States or any supplement to either of them.
[I.C.,
18-2418, as added by 2000, ch. 130, 1, p. 305.]
18-2419. Recordkeeping requirements
Violations.
(1) A ven-
dor ofunused merchandise shall maintain receipts for the vendor's purchase
of any unused merchandise sold or offered for sale by the vendor at an open
market. The receipts shall be kept at the open market in which the unused
merchandise is offered for sale and at the vendor's residence or principal
place ofbusiness for two (2)
years after the merchandise is sold. Each receipt
shall specify:
(a) The date of the purchase;
(b) The name and address of the person from whom the unused merchan-
dise was acquired;
(c) A description of the unused merchandise purchased, including any
specific lot numbers or other identifying characteristics;
(d) The amount paid for the unused merchandise; and
(e) The signature of the buyer and the seller of the unused merchandise.
(2) It is a violation of the unused merchandise ownership protection act
for a person to knowingly:
(a) Falsify, obliterate or destroy any receipt required to be kept pursuant
to this section;
(b) At the request of a police officer, fail or refuse to produce any receipt
required to be kept pursuant to this section; and
(c) Fail to maintain any receipt as required by this section. [I.C.,
18-2419, as added by 2000, ch.

130, 1, p. 305.]
18-2420. Exemptions.

(1) The following persons are exempt from
the provisions of the unused merchandise ownership protection act:
(a) Avendor at an event organized or operated for religious, educational,
charitable or other nonprofit purposes if no part of any admission fee or
parking fee charged vendors or prospective purchasers and no part of the
gross receipts or net earnings from the sale of merchandise at the event is
paid to a private person for participating in the organization or operation
of the event;
(b) A vendor at an industry or association trade show;
(c) A vendor at an event at which all of the merchandise offered for sale
is new and at which all vendors are manufacturers or authorized
representatives of manufacturers or distributors; and
(d) A vendor selling by sample, catalog or brochure for future delivery.
(2) The requirements of the unused merchandise ownership protection
act do not apply to sales or offers for sale of the following unused
merchandise:
(a) Firewood, sand, gravel, flagstone, building stone or other natural
product;
(b) Live animals;
(c) Vehicles subject to registration pursuant to title 49, Idaho Code;
(d) Food intended for human consumption at the open market immedi-
ately after sale;
(e) Merchandise offered for sale as an antique or otherwise historical item
and, although never used, the style, packaging, material or appearance of
which clearly indicates that the merchandise was not produced or
manufactured within recent times;
(f) Food offered for sale that was grown, harvested or produced by the
vendor or the vendor's principal; and
(g)
Art, crafts or handicrafts that were produced by the vendor or the
vendor's principal. [I.C.,

18-2420, as added by 2000, ch. 130, 1, p.
305.]
18-2421. Penalties.

A person who violates any provision of the
unused merchandise ownership protection act is guilty of a misdemeanor for
the first offense. Any person who pleads guilty to or is found guilty of a
violation of the unused merchandise ownership protection act, or any
substantially conforming statute in another state or any local jurisdiction,
for a second time within five
(5) years, notwithstanding the form of the
judgment(s) or withheld judgment(s), is guilty of a felony and shall be
sentenced to the custody of the state board of correction for a term not to
exceed five
(5) years, or shall be fined an amount not to exceed twenty-five
271 ESCAPE OR RESCUE OF PRISONERS 18-2501
thousand dollars ($25,000) or both. [I.C.,

18-2421, as added by 2000, ch.
130, 1, p. 305.]
CHAPTER 25
ESCAPE OR RESCUE OF PRISONERS
SECTION.
18-2501. Rescuing prisoners.
18-2502. Officers assisting in escape.
18-2503. Carrying prisoner things to aid es-
cape.
18-2504. Private persons assisting in escape.
18-2505. Escape by one charged with, con-
victed of, or on probation for a
felony
Escape by a juvenile
from custody.
18-2506. Escape by one charged with or con-
victed of a misdemeanor

Escape by a juvenile from cus-
tody.
SECTION.
18-2507. Expense of prosecution

How
paid.
18-2508. Inmates of public institutions

Enticing, aiding to escape,
harboring or employing un-
lawful.
18-2509. Punishment for violation of preced-
ing section.
18-2510. Illicit conveyance of articles into
correctional facilities.
18-2511. Possession of a controlled substance
or dangerous weapon.
18-2501. Rescuing prisoners.

Every person who rescues, or at-
tempts to rescue, or aids another person in rescuing or attempting to rescue,
any prisoner from any prison, or from any officer or person having him in
lawful custody, is punishable as follows:
1. If such prisoner was in custody upon a conviction of felony punishable
with death, by imprisonment in the state prison not less than one (1) or
more than fourteen (14) years.
2. If such prisoner was in custody upon a conviction of any other felony,
by imprisonment in the state prison not less than six (6) months nor more
than five
(5)
years.
3. If such prisoner was in custody upon a charge of felony, by a fine not
exceeding $1,000 and imprisonment in the county jail not exceeding one
(1)
year.
4. If such prisoner was in custody, otherwise than upon a charge or
conviction of felony, by fine not exceeding $500.00 and imprisonment in the
county jail not exceeding six (6) months. [I.C.,

18-2501, as added by 1972,
ch. 336, 1, p. 844.]
comprised Cr. & P. 1864, 101, 102; R.S.,
R.C., & C.L., 6446; C.S., 8146; I.C.A.,

5, effective January 1, 1972, and the
its repeal.
Cross ref. Rescues as contempts,
7-601.
Escapes, unlawful conveyance of articles
into and out of county jail, misdemeanor,
20-627.
in

18-310 and 19-2520.
Escape, Prison Breaking and Rescue, 1 et
seq.
30A C.J.S., Escapes and Related Offenses
Rescue, 1 et seq.
Escape or prison breach as affected by
means employed to effect it. 10 A.L.R. 148; 50
A.L.R. 989; 96 A.L.R.2d 520.
Homicide, responsibility of persons partici-
pating in jail delivery for homicide committed
by one of their number. 15 A.L.R. 456.
What justifies escape or attempt to escape,
or assistance in that regard. 70 A.L.R.2d
1430; 69 A.L.R.3d 678.
Liability of clerk of court, county clerk, or
prothonotary, or surety on bond, for negligent
or wrongful acts of deputies or assistants. 71
A.L.R.2d 1140.
Duress, necessity, or conditions of confine-
ment as justification for escape from prison.
69 A.L.R.3d 678.
Temporary unauthorized absence of pris-
oner as escape or attempted escape. 76
A.L.R.3d 695.
18-2502. Officers assisting in escape.
Any sheriff, deputy sheriff,

peace officer, correctional officer or other employee of a correctional facility,
as defined in section 18-101A, Idaho Code, including a private correctional
facility, who fraudulently contrives, procures, aids, connives at, or voluntar-
ily permits the escape of any prisoner in custody, is punishable by impris-
onment in the state prison not exceeding ten (10) years, and [a] fine not
exceeding ten thousand dollars ($10,000). Every such officer or person who
negligently suffers such escape is guilty of a misdemeanor. [I.C.,

18-2502,
336, 1, p. 844; am. 2000, ch. 272, 5, p. 786.]
comprised Cr. & P. 1864, 103, 107; R.S.,
R.C., & C.L., 6455; C.S., 8151; I.C.A.,

its repeal.
The bracketed word "a" was inserted by the
compiler.
compiled as
18-9 15A and 18-2505, respec-
tively.
Cross ref. Prisoner must be actually con-
fined,
20-614.
Punishment of misdemeanor not otherwise
provided,
18-113.
In General.
Sheriff who permits prisoner confined in
jail to go at large without legal order or
process is guilty of a felony. Cornell v. Mason,
46 Idaho 112, 268 P. 8 (1928).
Collateral References. Peace officer's lia-
bility for acts of assistant or deputy in permit-
ting escape. 102 A.L.R. 185; 116 A.L.R. 1064.
Liability of clerk of court, county clerk or
prothonotary, or surety or bond, for negligent
or wrongful acts of deputies or assistants. 71
A.L.R.2d 1140.
Liability of public officer or body for harm
done by prisoner permitted to escape. 44
A.L.R.3d 899.
18-2503. Carrying prisoner things to aid escape.

Every person
who carries or sends into a prison anything useful to aid a prisoner in
making his escape, with intent thereby to facilitate the escape of any
prisoner confined therein, is guilty of a felony. [I.C.,

1972, ch.
336, 1, p. 844.1
C.L.,
6457; C.S., 8153; I.C.A.,
17-807
effective January
1, 1972, and the present
otherwise provided,
18-112.
Cited in: State v. Carpenter, 67 Idaho 277,
176 P.2d 919 (1947).
18-2504. Private persons assisting in escape.
Every person who

wilfully assists any prisoner confined in any prison, or in the lawful custody
of any officer or person, to escape, or in an attempt to escape, from such
prison or custody, is guilty of a felony. [I.C.,

18-2504, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. Aformer section, which visual presence of his custodian, by giving
comprised Cr. & P. 1864, 106; R.S., R.C., & him money, is guilty of assisting in escape.
C.L., 6456; C.S.,
8152; I.C.A.,

17-806
State v. Jones, 54 Idaho 782, 36 P.2d 530
was repealed by S.L. 1971, ch. 143, 5, (1934).
Juvenile Delinquents.
This section is not applicable to one charged
with assisting a juvenile delinquent to escape
otherwise provided,

18-112.
from custody under juvenile delinquent law.
Anajysjs
In re Small, 19 Idaho
1, 116 P. 118 (1910).
Collateral References. Conspiring to
Aiding after escape. commit offense of aiding prisoner to escape. 5
Juvenile delinquents. A.L.R. 789; 74 A.L.R. 1110; 131 A.L.R. 1322.
Aiding After Escape.
One aiding prisoner after he has left the
18-2505. Escape by one charged with, convicted of, or on proba-
tion for a felony
Escape by a juvenile from custody.

(1) Every
prisoner charged with, convicted of, or on probation for a felony who is
confined in any correctional facility, as defined in section 18- 101A, Idaho
Code, including any private correctional facility, or who while outside the
walls of such correctional facility in the proper custody of any officer or
person, or while in any factory, farm or other place without the walls of such
correctional facility, who escapes or attempts to escape from such officer or
person, or from such correctional facility, or from such factory, farm or other
place without the walls of such correctional facility, shall be guilty of a
felony, and upon conviction thereof, any such second term of imprisonment
shall commence at the time he would otherwise have been discharged.
Escape shall be deemed to include abandonment of a job site or work
assignment without the permission of an employment supervisor or officer.
(2) Any person who is charged with, found to have committed, adjudi-
cated for or is on probation for an offense which would be a felony if
committed by an adult, and who is confined in a juvenile detention facility
or other secure or nonsecure facility for juveniles and who escapes or
attempts to escape from the facility or from the lawful custody of any officer
or person shall be subject to proceedings under chapter 5, title 20, Idaho
Code, for an offense which would be a felony if committed by an adult. If the
juvenile is or has been proceeded against as an adult, pursuant to section
20-508 or 20-509, Idaho Code, the person shall be guilty of a felony for a
violation of this section and shall be subject to adult criminal proceedings.
[I.C.,

1, p. 858; am. 1995, ch.
74, 1, p. 194; am. 1997, ch.
77, 1, p. 161; am.
1998, ch.
359, 1, p. 1123; am. 2000, ch. 106, 1, p. 234; am. 2000, ch. 151,
1, p. 387; am. 2000, ch. 272, 6, p. 786; am. 2004, ch.
50, 1, p.
236.]
comprised S.L. 1911, ch. 21, p. 46; S.L. 1911, its repeal.
ch.
61, 1, p. 171; compiled and reen. C.L., This section was amended by three 2000
6452; C.S., 8148; S.L. 1931, ch. 127, 1, acts

ch. 106, 1, ch. 151, 1, both effec-
p. 223; I.C.A., 17-803; S.L. 1969, ch. 205, tive July 1, 2000 and ch. 272, 6, effective
1, p. 600 was repealed by S.L. 1971, ch. 143, April 12, 2000, which do not conflict and have
5, effective January 1, 1972, and the been compiled together,
present section added by S.L. 1972, ch. 336, The 2000 amendment by ch. 106, 1, near
the beginning of subsection (2),
substituted
"who is" for "under the age of eighteen (18)",
inserted "adjudicated for" following "to have
committed", inserted "is" preceding "who is
confined", and near the end of the subsection,
substituted "person" for "juvenile".
subsection (1), added the last sentence; and in
subsection (2), inserted "years" following
"eighteen (18)".
subsection (1), substituted "correctional facil-
ity, as defined in section 18-101A, Idaho Code,
including any private correctional facility" for
"jail or prison including the state penitentiary
or any private prison", and substituted "cor-
rectional facility" for "jail or prison" in four
places; and in subsection (2), inserted "years"
following "eighteen (18)".
compiled as

18-2502 and 18-2507, respec-
tively.
20-504.
otherwise provided,
18-112.
in

18-310, 18-2507, 19-2520, 20-101C and
20-242.
Cited in: State v. Salazar, 95 Idaho 650,
516 P.2d 707 (1973); Balla v. State, 98 Idaho
344, 563 P.2d 402 (1977); Lake v. State, 124
v. Chavez, 134 Idaho 308, 1 P.3d 809 (Ct. App.
2000).
Analysis
Appellate remedies.
Application.
Constitutionality.
In general.
Intent.
Invalidity of conviction.
Legislative intent.
Misdemeanor escape.
Necessity defense.
Proving felony charge.
Sentence.
Commutation of sentencing.
Consecutive sentences mandatory.

Excessive.
Limits.
Not excessive.
Trial for escape.
Voluntariness of guilty plea.
Work-release probation.
Appellate Remedies.
Having failed to appeal to this court his
conviction and life sentence for robbery and
five-year term for escape from jail, though
given an adequate opportunity to do so, peti-
tioner could not subsequently employ habeas
corpus as an appellate remedy. Mahaffey v.
State, 87 Idaho 233, 392 P2d 423 (1964).
There could be no question but that the
sentencing judge had jurisdiction to impose
the particular sentences in this case, or that
the statutes clearly grant him the power to
issue life sentences for robbery and five-year
terms for escape from jail; moreover, peti-
tioner had an opportunity to appeal to the
Supreme Court and, having failed to do so,
can not now employ habeas corpus as an
appellate remedy. Mahaffey v. State, 87 Idaho
233, 392 P.2d 423 (1964).
Application.
This section applies not only to persons
incarcerated on Idaho charges but also to
those who may be incarcerated in Idaho pur-
suant to felony charges or convictions issued
in another jurisdiction. State v. Swisher, 125
Idaho 797, 874 P.2d 608 (Ct. App. 1994).
Trial court correctly dismissed a charge of
escape where defendant was not "outside the
walls of such correctional facility," because,
although he had been charged with a felony,
he had not yet been placed in a correctional
facility when he emerged from the patrol car
and fled. State v. Shanks,
Idaho , 75 P.3d
206 (Ct. App. 2003).
Constitutionality.
Punishment of escapee for a felony if con-
fined on charge or conviction of a felony, and
punishment of escapee for a misdemeanor if
confined on charge or conviction of a misde-
meanor does not constitute an unreasonable
or arbitrary classification, hence escape stat-
utes are not unconstitutional on the ground
that punishment constitutes a denial of equal
protection of the law. Ex parte Knapp, 73
Idaho 505, 254 P.2d 411 (1953).
The former section was not unconstitu-
tional because of discrimination between life
prisoners and those sentenced for less than
life (this distinction was abolished by amend-
ment of the former section). Mallory v. State,
91 Idaho 914, 435 P.2d 254 (1967).
There is no constitutional violation in al-
lowing the state department of corrections, a
department of the executive branch, to insert
an escape sentence between the fixed and
indeterminate portions of another sentence
imposed by the judiciary. Doan v. State, 132
Idaho 796, 979 P.2d 1154 (1999).
In General.
An arrest of an alleged escapee by Oregon
police pursuant to information from Idaho
police that he was wanted as an escapee on a
felony charge without information that the
Idaho police held a warrant for his arrest was
invalid. State v. Roderick, 243 Idaho 105, 412
P.2d 17 (1966).
Intent.
Intent to evade the due course of justice is
not an essential element of the crime of es-
cape. State v. Marks, 92 Idaho 368, 442 P.2d
778 (1968).
Invalidity of Conviction.
Invalidity of the conviction of an inmate of
the penitentiary was not a defense to prose-
cution for escape. State v. Handran, 92 Idaho
579, 448 P.2d 193 (1968).
Legislative Intent.
The legislative purpose underlying this sec-
tion is to preserve the integrity of Idaho's jails
and penal institutions, to deter escapes by
those who are lawfully confined in Idaho
correctional facilities and to prevent harm to
the public that may be effected by such per-
sons while at large. That purpose applies no
less to those charged with or convicted of
felonies in foreign jurisdictions than to de-
tainees held for commission of felonies in
Idaho. State v. Swisher, 125 Idaho 797, 874
P.2d 608 (Ct. App. 1994).
Misdemeanor Escape.
The former section had no application
where, prior to his escape, appellant was
neither convicted of, nor charged with, a fel-
ony. Lockard v. State, 92 Idaho 813, 451 P.2d
1014 (1969).
Necessity Defense.
In order to establish the necessity defense
with regard to a prosecution for escape, defen-
dant had to show (1) the threat of death or
danger of serious imminent harm; (2) the
futility of reporting the threat or danger to
custodial authorities;
t3)
avoidance ofviolence
during the escape; and (4) intent to contact
another law enforcement agency immediately
following the escape. State v. Mills, 117 Idaho
534, 789 P.2d 530 (Ct. App. 1990).
tion in concluding that defendant did not
present sufficient evidence to satisfy all ele-
ments of the necessity defense where: (1)
defendant failed to notify authorities of
threats from other inmates; (2) he never re-
ceived any medical treatment or sought pro-
tection for alleged beatings; (3) there was no
evidence of his intent to contact law enforce-
ment after escape; and (4) he presented no
evidence of intent to turn himself in. State v.
Bowers, 131 Idaho 639, 962 P.2d 1023 (1998).
Proving Felony Charge.
Where defendants were on trial for crime of
"escape by one charged with felony," warrants
showing that they were charged with robbery
at the time of their escape was admissible to
prove an essential element of the state's case
and hence the admission, not remitting in
prejudice, was a harmless error. State v.
Moen, 94 Idaho 477, 491 P.2d 858 (1971).
Sentence.
Since consecutive sentencing is mandatory
for a defendant convicted of an escape punish-
able under this section, the trial court prop-
erly sentenced a defendant, who had escaped
while awaiting a trial for assault with a
deadly weapon, to a four-year sentence run-
ning consecutively after two other consecutive
four-year sentences based on two convictions
for assault with a deadly weapon. State v.
Thomas, 98 Idaho 623, 570 P2d 860 (1977).
Two and one-half year, indeterminate sen-
tences were within the maximum penalty
authorized by statute for attempted escape
and were not excessive as the term of addi-
tional confinement did not exceed the mini-
mum period necessary to serve society's inter-
est in deterring escapes. State v. Urquhart,
105 Idaho 92, 665 P2d 1102 (Ct. App. 1983).
An escape sentence may, if it specifically so
provides, commence when the defendant oth-
erwise would be discharged on the other fel-
ony, even if a sentence for that felony has not
yet been pronounced since, so long as the
other felony is adequately identified, custo-
dial authorities can ascertain when the defen-
dant would be entitled to discharge from
custody on that felony and the escape sen-
tence can be administered accordingly; if the
escape sentence does not contain such a pro-
vision, the same result still might be obtained
indirectly by making the sentence for the
other felony consecutive to the escape sen-
tence and, in that event the two sentences,
taken together would satisfy the mandate of
this section. State v. Mendenhall, 106 Idaho
388, 679 P.2d 665 (Ct. App. 1984).
This section leaves no room for discretion in
deciding when the consecutive sentence for
escape will begin; it must begin when the
escapee "otherwise would have been dis-
charged." It does not allow for a time interval
between discharge of the sentence(s) being
served when the escape occurred and com-
mencement of the escape sentence; thus, the
trial court erred in making the escape sen-
tence consecutive to a sentence imposed in
another state for a crime committed after the
prisoner had escaped. State v. McKaughen,
108 Idaho 471, 700 P.2d 93 (Ct. App. 1985).
Where the defendant's presentence report
indicated that the defendant was too sophis-
ticated a criminal to be adequately monitored
by law enforcement or parole services and
was too significant a risk to remain at large in
the public, the consecutive sentences of 20
years for escape, two years for injury to jail
property, 90 days for assault and ten years for
robbery were not an abuse of discretion. State
v. Brandt, 110 Idaho 341, 715 P.2d 1011 (Ct.
App. 1986).
tion in sentencing the defendant to a five-year
indeterminate sentence for escape and a ten-
year indeterminate sentence for burglary,
where the record showed the judge's concern
that society be protected from the defendant's
criminal activities, and consideration was
given to the related objectives of deterrence,
rehabilitation and retribution. State v.
Briggs, 113 Idaho 71, 741 P.2d 358 (Ct. App.
1987).
tody of the Board of Corrections with a three
year minimum period of confinement was not
excessive for a conviction of felony escape
with persistent violator enhancement, even
though defendant had not been convicted of a
violent crime and the county sheriff had tes-
tified as to improvement in defendant's con-
duct while in custody. State v. Holton, 120
Idaho 112, 813 P.2d 923 (Ct. App. 1991).
Commutation of Sentencing.
The authority to commute a sentence im-
posed by the district court is vested in the
Commission of Pardons and Parole and defen-
dant's argument that commission's action in
commuting his escape sentence to run concur-
rently with his underlying sentence violated
this section fails because Const, art.
4, 7
which existed at the time of the commission's
action in this case, did not place a limitation
upon the commission's commutation power
through reference to statutory mandates.
State v. Beason, 119 Idaho 103, 803 P.2d 1009
(Ct. App. 1991).
Consecutive Sentences Mandatory.

If a person escapes from custody while
charged with or convicted of a felony, any
sentence of confinement for the escape must
be consecutive to the confinement imposed for
the underlying felony State v. Mendenhall,
106 Idaho 388, 679 P.2d 665 (Ct. App. 1984).
Any confinement under an escape sentence,
and any confinement upon the felony for
which the defendant was in custody when he
escaped, must be consecutive and it does not
matter, in light of this overriding principle,
which of the two sentences is pronounced
first. State v. Mendenhall, 106 Idaho 388, 679
P.2d 665 (Ct. App. 1984).
Terms of imprisonment for grand larceny
and for escape prior to sentencing for the
larceny were required to be consecutive and
original escape sentence was defective for
failure to so provide, which defect was not
remedied indirectly by any consecutive con-
finement provision in the grand larceny sen-
tence; therefore, it was appropriate for the
district judge, upon revoking defendant's pro-
bation, to consider modifying the sentences to
bring them into conformity with the mandate
of this section. State v. Mendenhall, 106 Idaho
388, 679 P2d 665 (Ct. App. 1984).
The phrase "second term of imprisonment"
means that the escape sentence and the sen-
tenced) being served when the escape oc-
curred must be consecutive. State v.
McKaughen, 108 Idaho 471, 700 P.2d 93 (Ct.
App. 1985).
Consecutive sentences for felony escape are
mandatory. Ramirez v. State, 113 Idaho 87,
741 P.2d 374 (Ct. App. 1987).
This statute requires that a sentence for
escape be consecutive to a sentence for the
felony during which the escape occurred.
Doan v. State, 132 Idaho 796, 979 P.2d 1154
(1999).
Excessive.
Although defendant's sentence for posses-
sion of methamphetamine was reasonable,
his fixed five-year sentence for escape was
excessive where the circumstances of defen-
dant's escape were not aggravated or egre-
gious. State v. Chavez, 134 Idaho 308, 1 P3d
809 (Ct. App. 2000).
Limits.
The principle of
19-2603 that sentence
may not be increased when probation is re-
voked limits but does not displace

and is
not displaced by

the principle of consecu-
tive imprisonment for escape established by
this section and the principles are not mutu-
ally exclusive; the court may impose consecu-
tive terms in cases outside the scope of
19-
2603 and may correct an illegal, concurrent
sentence by making it consecutive, in a
19-
2603 case, but the range of corrective sen-
tences is narrowed to those which will not
increase the aggregate penalty imposed.
State v. Mendenhall, 106 Idaho 388, 679 P.2d
665 (Ct. App. 1984).
Where defendant was incorrectly sentenced
to two five-year concurrent, rather than con-
secutive, sentences for larceny and escape
and trial judge who revoked defendant's pro-
bation then imposed two five-year consecutive
sentences, the trial judge exceeded his au-
thority by imposing an aggregate penalty
exceeding that in the original sentences.
State v. Mendenhall, 106 Idaho 388, 679 P.2d
665 (Ct. App. 1984).
Not Excessive.
A five-year fixed sentence for escape and a
15-year indeterminate sentence for burglary,
to be served concurrently with each other but
consecutively to the existing rape sentence,
were not excessive, where the defendant was
23 when he committed the offenses, and he
was an intelligent adult fully responsible for
his actions. State v. Maddock, 113 Idaho 182,
742 P.2d 437 (Ct. App. 1987).
ness of the crimes, and the impact lesser
own free will, and could have departed from
P.2d 1205 (Ct. App. 1988).
Trial court did not err in fixing the defen-
dant's sentence for escape as consecutive with
a sentence for lewd conduct where the defen-
dant was in jail for the lewd conduct charge
and also for breaking parole at the time of the
escape, as the sentence for lewd conduct had
already been set when the defendant escaped,
and the earliest the defendant would be dis-
charged was after the lewd conduct sentence
had run rather than the reimposed sentence
for the parole violation, even though the sen-
tence for parole violation was shorter. State v.
Dewey, 131 Idaho 846, 965 P2d 206 (Ct. App.
1998).
Trial for Escape.
Prisoner who escapes while serving a term
in the state prison may, before expiration of
his term, be tried for such escape and the trial
of defendant on the charge of such escape in
no way interferes with judgment of conviction
under which he is imprisoned. Hays v.
Stewart, 7 Idaho 193, 61 P. 591 (1900).
In a prosecution of an alleged recidivist
where the prior felony convictions relied upon
were committed in another state, the prose-
cution is required to establish the jurisdiction
of the court in the prior conviction, both of the
accused and subject matter. State v. Prince,
64 Idaho 343, 132 P.2d 146 (1942).
Voluntariness of Guilty Plea.
Where a man, 64, was in prison on a seven-
year sentence for armed robbery, and hit a
guard with a metal bottle during an escape,
and was charged with violation of this section,
and pleaded guilty to a violation of this sec-
tion, and was present with his attorney prior
to actual imposition of sentence, at which
time his attorney asked that defendant's sen-
tence not be made consecutive due to his
advanced age and ill health, and the prosecu-
tor said he was not requesting a consecutive
sentence, the defendant would not be heard to
assert that his guilty plea was involuntary
because he was unaware of the possibility of a
consecutive sentence. State v. Flummer, 99
Idaho 567, 585 P.2d 1278 (1978).
Work-Release Probation.
Evidence was insufficient to support convic-
tion for escape where defendant, who had
received suspended sentence and had been
placed on work-release probation, was con-
fined in jail only at night under the work-
release program and was released during the
day; his failure to return to jail was a breach
of the terms of his probation but was not an
"escape" from custody since he had not been
sentenced. State v. Rocque, 104 Idaho 445,
660 P2d 57 (1983).
Collateral References. Entry and search
of premises for purpose of rearrest of escaped
prisoner without warrant. 5 A.L.R. 273.
Recital of, or reference to, the offense on
pronouncing sentence or judgment for escape
or aiding escape. 14 A.L.R. 998.
Extradition of escaped convict. 78 A.L.R.
420.
What justifies escape or attempt to escape
or assistance in that regard. 70 A.L.R.2d
1430; 69 A.L.R.3d 678.
Escape or prison breach affected by means
employed. 96 A.L.R.2d 520.
Duress, necessity, or conditions of confine-
ment as justification for escape from prison.
69 A.L.R.3d 78.
Failure of prisoner to return at expiration
of work furlough or other permissive release
period as crime of escape. 76 A.L.R.3d 658.
Temporary unauthorized absence of pris-
oner as escape or attempted escape. 76
A.L.R.3d 695.
Loss of jurisdiction by delay in imposing
sentence. 98 A.L.R.3d 605.
18-2506. Escape by one charged with or convicted of a misde-
meanor
Escape by a juvenile from custody.
(l)(a) Every prisoner charged with or convicted of a misdemeanor who is

confined in any county jail or other place or who is engaged in any county
work outside of such jail or other place, or who is in the lawful custody of
any officer or person, who escapes or attempts to escape therefrom, is
guilty of a misdemeanor.
(b) In cases involving escape or attempted escape by use of threat,
intimidation, force, violence, injury to person or property other than that
of the prisoner, or wherein the escape or attempted escape was perpe-
trated by use or possession of any weapon, tool, instrument or other
substance, the prisoner shall be guilty of a felony.
(2) Any person who is charged with, found to have committed, adjudi-
cated for or is on probation for an offense which would be a misdemeanor if
committed by an adult, and who is confined in a juvenile detention facility
or other secure or nonsecure facility for juveniles and who escapes or
attempts to escape from the facility or from the lawful custody of an officer
or person, shall be subject to proceedings under the provisions of chapter
5,
title 20, Idaho Code, for an act which would be a misdemeanor if committed
by an adult, or, if the escape or attempted escape was undertaken as
provided in subsection (1) (b) of this section, for an offense which would be
a felony if committed by an adult. If the juvenile is or has been proceeded
against as an adult, pursuant to section 20-508 or 20-509, Idaho Code, the
person shall be guilty of a misdemeanor, or if subsection
(1) (b) of this section
applies, of a felony and, in either case, shall be subject to adult criminal
proceedings. B.C.,
18-2506, as added by 1972, ch. 336, 1, p. 844; am.
1995, ch.
74, 2, p. 194; am. 1997, ch.
77, 2, p. 161; am. 2000, ch. 106, 2,
p. 234.]
8150; S.L. 1931, ch. 127, 2, p. 223; I.C.A.,
17-804; S.L. 1963, ch. 287, 1, p. 754 was
January 1, 1972, and the present section
18-113.
in 19-2520.
Cited in: State v. Yancey, 47 Idaho 1, 272 P.
495 (1928); State v. Machen, 100 Idaho 167,
595 P.2d 316 (1979).
Analysis
Consecutive terms.
Constitutionality.
Construction.
Convicted of misdemeanor necessary.
In general.
Necessity defense.
Consecutive Terms.
Escape, even under circumstances where
such escape is a felony, did not in and of itself
require a sentence to run consecutively with
that which was being served, nor did the
former section prohibit such consecutive sen-
tencing. Lockard v. State, 92 Idaho 813, 451
P.2d 1014 (1969).
Constitutionality.
Punishment of escapee for a felony if con-
fined on charge or conviction of a felony, and
punishment of escapee for a misdemeanor if
confined on charge or conviction of a misde-
meanor does not constitute an unreasonable
or arbitrary classification; hence escape stat-
utes are not unconstitutional on the ground
that punishment constitutes a denial of equal
protection of the law. Ex parte Knapp, 73
Idaho 505, 254 P.2d 411 (1953).
Construction.
The trial court erred by instructing the jury
that having been charged and having been in
lawful custody were alternative elements of
this section. State v. Nab, 112 Idaho 1139, 739
P.2d 438 (Ct. App. 1987).
The meaning of this section is clear: the
prisoner must be (1) charged with or con-
victed of a misdemeanor, and (2) either con-
fined in any county jail or other place or
engaged in any county work outside of such
jail or other place or in lawful custody of any
officer or person. State v. Nab, 112 Idaho 1139,
739 P.2d 438 (Ct. App. 1987).
Convicted of Misdemeanor Necessary.
Because the state conceded that the defen-
dant had not been charged with a misde-
meanor prior to his flight, the defendant's
motion to dismiss should have been granted.
State v. Nab, 112 Idaho 1139, 739 P.2d 438
(Ct. App. 1987).
In General.
In accepting a plea of guilty, the court
should explain to the defendant the distinc-
tion between a misdemeanor and felony and
the better procedure would be to take evi-
dence at a recorded hearing regarding the
circumstances of the alleged offense. Bement
v. State, 91 Idaho 388, 422 P.2d 55 (1966).
Necessity Defense. custodial authorities; (3) avoidance ofviolence
In order to establish the necessity defense during the escape; and (4) intent to contact
with regard to a prosecution for escape, defen- another law enforcement agency immediately
dant had to show (1) the threat of death or
following the escape. State v. Mills, 117 Idaho
danger of serious imminent harm; (2) the
534, 789 P.2d 530 (Ct. App. 1990).
futility of reporting the threat or danger to
18-2507. Expense of prosecution

How paid.

Whenever a
person is prosecuted under any of the provisions of section 18-2505, Idaho
Code, and whenever a prisoner in the custody of the board of correction
housed in a state correctional facility, as denned in section 18-101A, Idaho
Code, shall be prosecuted for any crime committed therein, the clerk of the
district court shall make out a statement of all the costs incurred by the
county for the prosecution of such case, and for the guarding and keeping of
such prisoner, and when certified by the judge who tried the case, such
statement shall be audited by the board of examiners. If approved, the board
of examiners shall submit the claim, with a request for an appropriation, to
the legislature at its first session after the rendition of such claim. If the
legislature appropriates funds for such claim, the amount shall be paid by
the board of examiners to the treasurer of the county where the trial was
had. The provisions of this section shall apply to prosecution of a prisoner in
the custody of the board of correction and housed in a private correctional
facility unless otherwise provided for in any contract between the state of
Idaho and the private prison contractor entered into pursuant to chapter
2,
Costs of prosecution of all other prisoners housed in a private correctional
facility shall be recoverable from the private prison contractor, as provided
in section 20-809, Idaho Code. [I.C.,

18-2507, as added by 1972, ch. 336,
1, p. 844; am. 1984, ch.
79, 1, p. 146; am. 1985, ch.
80, 1, p. 155; am.
2000, ch. 272, 7, p. 786; am. 2001, ch. 335, 11, p. 1177.]
Compiler's notes. Aformer section, which Sections 6 and 8 of S.L. 2000, ch. 272 are
comprised R.S., 6458; reen. R.C. & C.L., compiled as
18-2505 and 18-2510, respec-
6458; C.S., 8154; I.C.A.,
17-808 was tively.
January
1, 1972, and the present section
compiled as
6-904B and 20-209, respec-
tively.
words as the section prior to its repeal
Section 14 of g L 2000> ch 272 declared an
* ffoofo
'
?9 1S compiled as
31-2219.
18-2508. Inmates of public institutions

Enticing, aiding to
escape, harboring or employing unlawful.

It shall be unlawful for
any person, firm, copartnership, corporation or association to knowingly
entice, harbor, employ, or aid, assist or abet in the escape, enticing,
harboring or employment of any delinquent, insane, feeble-minded or
incorrigible person committed to, or confined in any institution maintained
by the state for the treatment, education or welfare of delinquent or
feeble-minded, incorrigible or insane person. [I.C.,

1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which I.C.A.,
comprised S.L. 1931, ch. 73, 1, p. 130; ch. 143, 5, effective January 1, 1972, and
the present section added by S.L. 1972, ch. lie employee or institution other than correc-
336, 1 in the same words as the section tional or law enforcement employee or insti-
prior to its repeal. tution as criminal offense. 69 A.L.R.3d 625.
Collateral References. Escape from pub-
18-2509. Punishment for violation of preceding section.

Any
person violating the provisions of this act upon conviction, shall be punished
by a fine of not less than $25.00 nor more than $300.00, or imprisonment in
the county jail for not less than thirty (30) days nor more than ninety (90)
days, or both. [I.C.,

18-2509, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1931, ch. 73, 2, p. 130; 336, 1 in the same words as the section
I.C.A.,
17-810 was repealed by S.L. 1971, prior to its repeal.
18-2510. Illicit conveyance of articles into correctional facilities.
(1) If any person delivers or procures to be delivered, or has in his

possession with intent to be delivered in any manner, to a prisoner of any
state correctional facility, or deposits or conceals in or about the facility or
dependencies thereon, or upon any lands belonging or pertaining thereto, or
in any vehicle going into the premises belonging to the said facility, any
letter, article or thing with the intent that a prisoner confined in said facility
shall obtain or receive the same, or if any person receives from any prisoner
of said facility, any letter, article or thing with intent to convey the same out
of the facility contrary to the rules thereof, and without the knowledge and
permission of the warden of said facility, or if any person shall purchase,
exchange, take or receive from any prisoner thereof while he may be
working outside said facility, any letter, article or thing, whether state or
other property, manufactured or used in and about said facility, without the
knowledge and permission of the warden of said facility, such person shall be
guilty of a misdemeanor, and on conviction thereof shall be punished by a
fine not exceeding three hundred dollars ($300), or imprisonment in the
county jail for a period not exceeding six (6) months, or by both such fine and
imprisonment.
(2) As used in this section, a correctional facility is a facility for housing
persons committed or transferred to the custody of the board of correction,
or a private correctional facility housing prisoners under the custody of the
board of correction or housing out-of-state prisoners, as defined in section
18-101A, Idaho Code, but shall not include facilities operated by, or under
the control of, other agencies of state, county or municipal government. [I.C.,
18-2510, as added by 1972, ch.

336, 1, p. 844; am. 1985, ch.
78, 1, p.
151; am. 2000, ch. 272, 8, p. 786.]
Compiler's notes. A former section, which Sections 7 and 9 of S.L. 2000, ch. 272 are
comprised S.L. 1907, p. 97, 1; reen. R.C. & compiled as
18-2507 and 18-6110, respec-
C.L., 7220; C.S., 8600; I.C.A.,
17-4611 tively.
effective January 1, 1972, and the present emergency. Approved April 12, 2000.
section added by S.L. 1972, ch. 336, 1 in the Cross ref. Similar provisions concerning
same words as the section prior to its repeal. county jails,
20-627.
281 EVIDENCE FALSIFIED OR CONCEALED 18-2602
Collateral References. Censorship of
convicted prisoners' "legal mail." 47 A.L.R.3d
1150.
Censorship of convicted prisoners' "nonle-
gal" mail. 47 A.L.R.3d 1192.
18-2511. Possession of a controlled substance or dangerous
weapon.
Any inmate of a penal institution or a jail who shall manufac-

ture, deliver or possess a controlled substance or a dangerous weapon is
18-2511, as added by 1974, ch.
90, 1, p. 1186; am.
1993, ch. 166, 1, p. 423.1
Cross ref. Controlled substances act,
37-
2701 et seq.
Dangerous weapons enumerated,
18-
3302.
Cited in: State v. Carper, 116 Idaho 77, 773
P.2d 1164 (Ct. App. 1989).
Sentence as Deterrent.
Denial of defendant's motion to modify sen-
tence was not an abuse of discretion where
sentence was for six months in the countyjail,
for misdemeanor possession of a controlled
substance by an inmate, to be served consec-
utively with defendant's existing felony
prison term; trial court concluded that defen-
dant's sentence may serve as a deterrent to
others. State v. Trent, 125 Idaho 251, 869 R2d
568 (Ct. App. 1994).
CHAPTER 26
EVIDENCE FALSIFIED OR CONCEALED AND WITNESSES
INTIMIDATED OR BRIBED
SECTION.
18-2601. Falsifying evidence

Offering
forged or fraudulent docu-
ments in evidence.
18-2602. Preparing false evidence.
18-2603. Destruction, alteration or conceal-
ment of evidence.
18-2604. Intimidating a witness.
18-2605. Bribing witnesses.
18-2606. Receiving of bribe by witness.
18-2601. Falsifying evidence

Offering forged or fraudulent
documents in evidence.
Every person who, upon any trial, proceeding,

inquiry or investigation whatever authorized or permitted by law, offers in
evidence as genuine or true, any book, paper, document, record, or other
instrument in writing, knowing the same to have been forged or fraudu-
lently altered or antedated, is guilty of felony. [I.C.,

1972, ch. 336, 1, p. 844.]
8172; I.C.A.,
otherwise provided,
18-112.
Tampering with public records,
18-3201
et seq.
Collateral References. 67 C.J.S., Ob-
structing Justice or Governmental Adminis-
tration, 1 et seq.
Admissibility in prosecution for bribery or
accepting bribes of evidence tending to show
commission of other bribery or acceptance of
bribe. 20 A.L.R.2d 1012.
Entrapment to commit bribery or offer to
bribe. 69 A.L.R.2d 1397.
Fabrication or suppression of evidence as
ground of disciplinary action against attorney.
40 A.L.R.3d 169.
18-2602. Preparing false evidence.
Every person guilty of prepar-

ing any false or antedated book, paper, record, instrument in writing, or
other matter or thing, with intent to produce it, or allow it to be produced,
for any fraudulent or deceitful purpose, as genuine or true, upon any trial,
proceeding or inquiry whatever, authorized by law, is guilty of felony. [I.C.,
18-2602, as added by 1972, ch. 336, 1, p. 844.]

8173;I.C.A.,
otherwise provided,
18-112.
18-2603. Destruction, alteration or concealment of evidence.

Every person who, knowing that any book, paper, record, instrument in
writing, or other object, matter or thing, is about to be produced, used or
discovered as evidence upon any trial, proceeding, inquiry, or investigation
whatever, authorized by law, wilfully destroys, alters or conceals the same,
with intent thereby to prevent it from being produced, used or discovered, is
guilty of a misdemeanor, unless the trial, proceeding, inquiry or investiga-
tion is criminal in nature and involves a felony offense, in which case said
person is guilty of a felony and subject to a maximum fine of ten thousand
dollars ($10,000) and a maximum sentence of five (5)
years in prison. [I.C.,
18-2603, as added by 1972, ch.

336, 1, p. 844; 1983, ch. 250, 1, p. 671;
am. 1990, ch. 309, 1, p. 849.]
8174; I.C.A.,
18-113.
Cited in: State v. Johnston, 62 Idaho 601,
113 P.2d 809 (1941).
Analysis
Amendment.
Destruction after illegal search.
Elements.
Jury instructions.
Purpose.
Amendment.
Former

18-2603 originally provided that
the destruction of evidence was punishable
only as a misdemeanor, then, in 1983, the
legislature enacted an amendment to
18-
2603 to establish the destruction of evidence
as a felony offense in certain cases. The state-
ment of purpose for the 1983 amendment
reflects the legislature's intent to make the
classification of the destruction of evidence
offense conform to the classification of the
offense for which the defendant attempted to
evade liability by way of that destruction, just
as it had brought into conformity the offense
classification for the crime of witness intimi-
dation under
18-2604 and the crime for
which the defendant attempted to evade lia-
bility by way of that intimidation. State v.
Peteja,

2003).
Destruction After Illegal Search.
Because the evidence had already been re-
duced to the sole custody of the police at the
time defendant flushed the suspected contra-
band down the toilet, defendant's actions
were her own and were independent of any
police coercion caused by the illegal arrest
and search for evidence; therefore, the inter-
vening circumstance factor strongly militated
against suppression of the evidence of the
destruction and the subsequent dismissal of
the destruction of evidence charge. State v.
Schrecengost, 134 Idaho 547, 6 P.3d 403 (Ct.
App. 2000).
Elements.
Parsing out the statute's text and linguistic
meaning, the elements of this misdemeanor
offense are as follows: (1) defendant knew
that an object was about to be produced, used,
or discovered as evidence in any legally au-
thorized trial, proceeding, inquiry, or investi-
gation; (2) defendant willfully destroyed, al-
tered, or concealed that object; and (3)
defendant in acting to destroy, alter, or con-
ceal that object intended to prevent the ob-
ject's production, use, or discovery. State v.
Peteja,

2003).
Jury Instructions.
Although the record disclosed sufficient ev-
idence to support the jury's verdict of guilty
283 EVIDENCE FALSIFIED OR CONCEALED 18-2604
on a conspiracy count, vacation and remand
for resentencing was required where the con-
spiracy charge contained in the indictment
and in the instructions to the jury denned a
misdemeanor offense and failed to include the
statutory language which would elevate the
crime to felony status. State v. Nunez, 133
Idaho 13, 981 P.2d 738 (1999).
Court of Appeals of Idaho gives proper
effect to the legislature's intent by interpret-
ing this section to mean that whether the
investigation "involves a felony offense" de-
pends upon on whether the evidence that was
destroyed, altered, or concealed would have
tended to demonstrate the commission of a
felony. State v. Peteja,
Idaho , 83 P. 3d 781
(Ct. App. 2003).
It was harmless error where, although a
jury instruction incorrectly articulated the
law applicable to the felony destruction of
evidence because it failed to require the jury
to find that the investigation was "criminal in
nature" and "involved a felony offense," the
evidence, undisputed and bolstered by defen-
dant's testimony, established that the officer's
investigation was a legally-authorized inves-
tigation and that, at the time of the destruc-
tion and concealment of the evidence, the
investigation involved a felony
the posses-
sion of methamphetamine. Furthermore, the
jury must have rejected defendant's testi-
mony that he did not swallow anything or
attempt to destroy evidence because, in find-
ing him guilty under the flawed instruction,
the jury necessarily found that he "destroyed
and/or concealed a clear baggy with white
powder." State v. Peteja,
Idaho , 83 P3d
781 (Ct. App. 2003).
Idaho has neither a pattern jury instruction
nor case law approving a jury instruction for a
felony offense under this section. State v.
Peteja,
2003).
Purpose.
Public policy underlying statutes
criminalizing the destruction of evidence is to
prevent the obstruction of justice, whether
permanent obstruction by the destruction of
evidence or temporary obstruction by the al-
teration or concealment of the evidence,
thereby causing the impediment, frustration,
or unnecessary prolongation of a lawful inves-
tigation. Prior to the 1983 amendment, an
individual destroying evidence of a felony
crime could incur only misdemeanor liability
for that destruction. With its 1983 amend-
ment, the Idaho legislature intended to close
this loophole. State v. Peteja,
Idaho , 83
P.3d 781 (Ct. App. 2003).
Statement of purpose for the amendment to
this section adopted language stating that a
felony destruction of evidence offense should
accrue if the evidence would tend to show a
defendant had committed a felony. Although
the legislature did not incorporate this "ten-
dency to show" language into the statute
itself, its inclusion of this language in the
statement of purpose clarifies its intent as to
the meaning of the statute's phrase, "involves
a felony." It is evident the legislature did not
intend to institute the restrictive limits
whereby the classification of the destruction
of evidence offense is fixed forever to the
classification of the offense targeted by the
investigation at its inception. State v. Peteja,
Idaho , 83 P.3d 781 (Ct. App. 2003).

Collateral References. Negligent spolia-
tion of evidence, interfering with prospective
civil action, as actionable. 101 A.L.R.5th 61.
Effect of spoliation of evidence in products
liability action. 102 A.L.R.5th 99.
18-2604. Intimidating a witness.
(1) Any person who, by direct or

indirect force, or by any threats to a person or property, or by any manner
wilfully intimidates, influences, impedes, deters, threatens, harasses, ob-
structs or prevents a witness, including a child witness, or any person who
may be called as a witness or any person he believes may be called as a
witness in any civil proceeding from testifying freely, fully and truthfully in
that civil proceeding is guilty of a misdemeanor.
(2) Any person who, by direct or indirect force, or by any threats to a
person or property, or by any manner wilfully intimidates, threatens or
harasses any person because such person has testified or because he
believes that such person has testified in any civil proceedings is guilty of a
misdemeanor.
(3) Any person who, by direct or indirect force, or by any threats to person
or property, or by any manner wilfully intimidates, influences, impedes,
deters, threatens, harasses, obstructs or prevents, a witness, including a
child witness, or any person who may be called as a witness or any person
he believes may be called as a witness in any criminal proceeding or juvenile
evidentiary hearing from testifying freely, fully and truthfully in that
criminal proceeding or juvenile evidentiary hearing is guilty of a felony.
(4)
Any person who, by direct or indirect force, or by any threats to a
person or property, or by any manner wilfully intimidates, threatens or
harasses any person because such person has testified or because he
believes that such person has testified in any criminal proceeding or juvenile
evidentiary hearing is guilty of a felony.
(5) The fact that a person was not actually prevented from testifying shall
not be a defense to a charge brought under subsection
(1), (2), (3) or (4) of
this section. [I.C.,

18-2604, as added by 1985, ch.
174, 2, p. 456; am.
1993, ch.
46, 1, p. 118; am. 1995, ch.
50, 1, p. 117; am. 1996, ch. 272,
18, p. 884.]
1972, ch. 336, 1, p. 844; am. 1980, ch. 153,
174, 1.
as 16-1632.
18-113.
in 18-310.
Cited in: State v. Keller, 108 Idaho 643,
701 P.2d 263 (Ct. App. 1985).
Analysis
Belief of Defendant.
This subsection permits the state to charge
a person when there is evidence that he
believes that the intimidated person has tes-
tified in a criminal proceeding. State v. Baer,
132 Idaho 416, 973 P.2d 768 (Ct. App. 1999).
Conspiracy.
For a case of conspiracy to secure absence of
a witness, see State v. Roe, 19 Idaho 416, 113
P. 461 (1911).
Collateral References. Construction and
application of federal witness tampering stat-
ute, 18U.S.C.A. 1512(b). 185 A.L.R. Fed. 1.
Belief of defendant.
Conspiracy.
18-2605. Bribing witnesses.

Every person who gives or offers, or
promises to give, to any witness or person about to be called as a witness,
any bribe, upon any understanding or agreement that the testimony of such
witness shall be thereby influenced, or who attempts by any other means
fraudulently to induce any witness to give false or to withhold true
testimony, is guilty of a misdemeanor. [I.C.,

18-2605, as added by 1972, ch.
336, 1, p. 844.]
8176; I.C.A., 922 was repealed by S.L.
18-101.
Incriminating testimony may be required
in bribery case,
18-1308.
wise provided,
18-113.
application of federal witness tampering stat-
ute, 18 U.S.C.A. 1512(b). 185 A.L.R. Fed. 1.
18-2606. Receiving of bribe by witness.

Every person who is a
witness, or is about to be called as such, who receives or offers to receive any
bribe, upon any understanding that his testimony shall be influenced
thereby, or that he will absent himself from the trial or proceeding upon
which his testimony is required, is guilty of a misdemeanor. [I.C.,
18-2606,
as added by 1972, ch. 336, 1, p. 844.]
285 EXECUTIVE POWER 18-2701
comprised R.S., & C.L., 6505; C.S., 8177;
I.C.A.,
18-113.
Collateral References. New trial, state-
ments after criminal trial tending to show
bribery of witness as ground for. 33 A.L.R.
556; 74 A.L.R. 757; 158 A.L.R. 1062.
Falsity of contemplated testimony as condi-
tion of offense of bribery of, attempt to bribe,
or acceptance of bribe or gift by, prospective
witness. 110 A.L.R. 582.
CHAPTER 27
EXECUTIVE POWER
SECTION.
18-2701. Bribery of executive officers.
18-2702. Asking or receiving bribes.
18-2704. Asking or receiving rewards.
18-2705. Officers not to purchase scrip.
18-2706. Presentation of fraudulent
counts.
ac-
SECTION.
18-2707. Buying appointments.
18-2708. Making appointments for reward.
18-2709. Intrusion into office
Holding over.
18-2710. Withholding books and records from
successor.
18-2711. Application of chapter.
18-2712. Disqualified person holding office.
18-2701. Bribery of executive officers.

offers any bribe to any executive officer of this state, with intent to influence
him in respect to any act, decision, vote, opinion or other proceeding as such
officer, is guilty of a felony. [I.C.,
18-2701, as added by 1972, ch. 336, 1,
p. 844.]
C.L., 6380; C.S., 8118; I.C.A.,
17-501
Cross ref. "Bribery" defined,
18-101.
Bribery of county and municipal officers,
18-1309.
Bribery of judicial officers,
18-1301 et
seq.
Bribery of legislators,

18-4703, 18-4704.
Bribery prosecution, incriminating testi-
mony required in, 18-1308.
Crimes against the revenue and property of
the state,
18-5701 et seq.
Penalty for felony when not otherwise pro-
vided,
18-112.
Prosecuting Attorney.
Prosecuting attorney is not executive officer
within meaning of this section. State v.
Wharfield, 41 Idaho 14, 236 P. 862 (1925).
Bribery, 1 et seq.
63A Am. Jur. 2d, Public Officers and Em-
ployees,
1 et seq.
11 C.J.S., Bribery, 1 et seq.
67 C.J.S., Officers, 1 et seq.
Coconspirator, liability as of one cooperat-
ing in bribery which he was incapable of
1110; 131 A.L.R. 1322.
152; 66 A.L.R. 478; 86 A.L.R. 263.
Charge of bribery or cognate offense predi-
cated upon an unaccepted offer by or to an
official. 52 A.L.R. 816.
Contempt by bribery, or attempting to
bribe, jurors. 63 A.L.R. 1274.
Candidate, statement by, regarding salary
or fees of office as bribery. 106 A.L.R. 493.
lack of legal qualification of person assuming
to be officer. 115 A.L.R. 1263.
Admissibility of evidence tending to show
commission of other bribery or acceptance of
bribe, and prosecution for bribery or accepting
bribes. 20 A.L.R.2d 1012.
Solicitation or receipt of funds by public
officer or employee for political campaign ex-
penses or similar purposes as bribery. 55
A.L.R.2d 1137.
Entrapment to commit bribery or offer to
bribe. 69 A.L.R.2d 1397.
Criminal liability of corporations for brib-
ery or conspiracy to bribe public official. 52
A.L.R.3d 1274.
Pardon as restoring public office or license
or eligibility therefor. 58 A.L.R.3d 1191.
Furnishing public official with meals, lodg-
ing, or travel, or receipt of such benefits, as
bribery. 67 A.L.R.3d 1231.
Officer's lack of authority as affecting of-
fense. 73 A.L.R.3d 374.
Who is public official within meaning of
federal statute punishing bribery of public
official (18 U.S.C.A. 201). 161 A.L.R. Fed.
491.
18-2702. Asking or receiving bribes.

Every executive officer or
person elected or appointed to an executive office who asks, receives or
agrees to receive, any bribe upon any agreement or understanding that his
vote, opinion or action upon any matter then pending, or which may be
brought before him in his official capacity, shall be influenced thereby, is
guilty of a felony and forfeits his office. [I.C.,

18-2702, as added by 1972,
ch. 336, 1, p. 844.]
C.L., 6381; C.S., 8119; I.C.A.,
17-502
otherwise provided,
18-112.
Analysis
Accomplices.
Conspiracy to commit bribery.
Evidence.
Instructions.
Jeopardy.
Police officer.
Accomplices.
The bribe giver is not an accomplice with
the bribe taker since he is guilty of a separate
and distinct offense. State v. Emory, 55 Idaho
649, 46 P.2d 67 (1935).
Conspiracy to Commit Bribery.
Person who is not capable of receiving bribe
because of not being an officer, may be guilty
of conspiring to commit bribery with person
who is an officer. State v. Myers, 36 Idaho 396.
211 P. 440 (1922).
Evidence.
In a prosecution for bribery, evidence tend-
ing to prove guilt will not be excluded because
it also tends to prove officer guilty of another
crime. State v. Emory, 55 Idaho 649, 46 P2d
67 (1935).
Instructions.
An instruction that evidence of receiving
other bribes had been admitted to show de-
sign and system on the theory that if defen-
dant practiced a general system of receiving
bribes, it would be more probable that he had
asked and received the bribe in issue, was not
prejudicial where other instructions clearly
stated all elements necessary for a conviction.
State v. Emory, 55 Idaho 649, 46 P.2d 67
(1935).
Jeopardy.
It is immaterial whether a police officer is
prosecuted under this section or some other
section for receiving a bribe, since a prosecu-
tion for receiving bribes under any section
would bar a prosecution under any other
section for bribery. State v. Emory, 55 Idaho
649, 46 P.2d 67 (1935).
Police Officer.
A police officer is an executive officer within
this section. An officer who is neither a judi-
cial nor legislative officer necessarily belongs
to the executive department of the govern-
ment, and is an executive or administrative
officer, whether it be state, county or precinct
office. State v. Emory, 55 Idaho 649, 46 P2d 67
(1935).
An indictment in the language of the stat-
ute that a police officer asked for and received
from a named person a bribe of $15.00 at a
specified time upon agreement that his action
as such officer would be influenced by such
bribe, and that such officer would protect the
giver in the illegal operation of a hotel as a
disorderly house, is sufficient. State v. Emory,
55 Idaho 649, 46 P.2d 67 (1935).
Collateral References. Conviction of de
facto officer. 115 A.L.R. 1263.
Bribery when act in contemplation is not
within officer's authority. 73 A.L.R.3d 374.
18-2703. Resisting officers. [Repealed.]
ch. 336, 1, p. 844 was repealed by S.L. 1981,
ch. 319, 1.
287 EXECUTIVE POWER 18-2706
18-2704. Asking or receiving rewards.
Every executive officer who

asks or receives any emolument, gratuity or reward, or any promise thereof,
excepting such as may be authorized by law, for doing any official act, is

18-2704, as added by 1972, ch.
336, 1, p.
844.]
C.L., 6383; C.S., 8121; I.C.A.,
17-504

18-113.
18-2705. Officers not to purchase scrip.

Every officer or person
prohibited by the laws of this state from becoming a purchaser at sales, or
from purchasing scrip, or other evidences of indebtedness, who violates any
of the provisions of such laws, is punishable by a fine of not more than
$1,000 or by imprisonment in the state prison not more than five years. [I.C.,
18-2705, as added by 1972, ch. 336, 1, p. 844.]

C.L., 6384; C.S., 8122; I.C.A.,
17-505
in 67-455A.
Cited in: Clark v. Utah Constr. Co., 51
Idaho 587, 8 P.2d 454 (1932); Hellerud v.
Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).
Application of Section.
County commissioner purchasing county
warrants as agent for wife comes under pro-
visions of this section. Libby v. Pelham, 30
Idaho 614, 166 P. 575 (1917).
18-2706. Presentation of fraudulent accounts.

Every person
who, with intent to defraud, presents for allowance or for payment to any
state board or officer, or to any county, town, city, ward or village board or
officer, authorized to allow or pay the same if genuine, any false or
fraudulent claim, bill, account, voucher or writing, is guilty of a felony. [I.C.,
18-2706, as added by 1972, ch. 336, 1, p. 844.]

8123; I.C.A.,
otherwise provided,
18-112.
in

18-7803, 36-1108, 36-1109 and 67-2017.
Analysis
Information.
Presenting false bounty claims.
When offense consummated.
Information.
Information under this section held suffi-
cient. State v. Adams, 9 Idaho 582, 75 P. 258
(1904); State v. Curtis, 29 Idaho 724, 161 P.
578 (1916).
Presenting False Bounty Claims.
Prosecution for presenting false bounty
claim to board of county commissioners may
be maintained under this section, although
accused might also be prosecuted for making
false affidavit to claim under 1901, p. 205,
4. State v. Adams, 10 Idaho 591, 79 P. 398
(1905).
When Offense Consummated.
Offense defined by this section is consum-
mated when a false or fraudulent claim is
presented with intent to defraud; it is not
necessary that fraudulent claim be allowed or
paid in order to procure a conviction. State v.
Adams, 10 Idaho 591, 79 P. 398 (1905).
18-2707. Buying appointments.

Every person who gives or offers
any gratuity or reward, in consideration that he or any other person shall be
appointed to any public office, or shall be permitted to exercise or discharge
the duties thereof, is guilty of a misdemeanor. [I.C.,

1972, ch. 336, 1, p. 844.]
6386; C.S., prior to its repeal.
8124; I.C.A.,

18-113.
18-2708. Making appointments for reward.

Every public officer
who for any gratuity or reward, appoints another person to a public office, or
permits another person to exercise or discharge any of the duties of his
office, is punishable by a fine not exceeding $5,000, and in addition thereto
forfeits his office. [I.C.,
18-2708, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which effective January 1, 1972, and the present
comprised Cr. & P. 1864, 115; R.S., R.C., & section added by S.L. 1972, ch. 336, 1 in the
C.L., 6387; C.S., 8125; I.C.A.,

17-508
same words as the section prior to its repeal,
18-2709. Intrusion into office
Holding over.
Every person who

wilfully and knowingly intrudes himself into any public office to which he
has not been elected or appointed, and every person who, having been an
executive officer, wilfully exercises any of the functions of his office after his
term has expired, and a successor has been elected or appointed and has
qualified, is guilty of a misdemeanor. [I.C.,

18-2709, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Cross ref. Penalty for misdemeanor when
comprised R.S., R.C., & C.L., 6388; C.S., not otherwise provided,
18-113.
8126; I.C.
A.,
Cited in: People ex rel. Gorman v. Havird,
1971, ch. 143, 5,
2 Idaho (Hasb.) 531, 25 P. 294 (1889).
18-2710. Withholding books and records from successor.
Every
officer whose office is abolished by law, or who, after the expiration of the
time for which he may be appointed or elected, or after he has resigned or
been legally removed from office, wilfully and unlawfully withholds or
detains from his successor, or other person entitled thereto, the records,
papers, documents or other writings appertaining or belonging to his office,
or mutilates, destroys or takes away the same, is guilty of a felony [I.C,
18-2710, as added by 1972, ch. 336, 1, p. 844.]

Compiler's notes. Aformer section, which same words as the section prior to its repeal,
C.L.,
6389; C.S.,
8127; I.C.A.,

17-510
otherwise provided,
18-112.
was repealed by S.L. 1971, ch.
143, 5,
Photographic or digital retention of records
effective January
and disposition of originals,
9-328.
289 FALSE IMPRISONMENT 18-2901

The various provisions of this
chapter apply to administrative and ministerial officers, in the same
manner as if they were mentioned therein. [I.C.,
1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which and the present section added by S.L. 1972,
comprised R.S., R.C., & C.L., 6390; C.S., ch. 336, 1 in the same words as the section
8128; I.C.A.,
17-511 was repealed by S.L. prior to its repeal.
18-2712. Disqualified person holding office.

Every person not a
legal voter and possessing all the qualifications prescribed for voters, or who
is under any disqualification created by the laws of this state, who holds or
exercises any office, is guilty of a misdemeanor. [I.C.,

1972, ch. 336, 1, p. 844.]
comprised S.L. 1885, p. 106, 44; R.S., R.C., same words as the section prior to its repeal.
& C.L.,
6391; C.S.,
8129; I.C.A.,

17-512

18-113.
CHAPTER 28
EXTORTION
SECTION.
18-2801
18-2801
18-2808. Extortion. [Repealed.]
Compiler's notes. ^These sections, which repealed by S.L. 1981, ch. 183,
1. For
comprised I.C.,

18*-2801
18-2808, as present law, see
18-2401
18-2409.
added by 1972, ch. 336, 1, p. 844 were
CHAPTER 29
FALSE IMPRISONMENT
SECTION.
18-2901. False imprisonment denned.
18-2902. Punishment.
18-2901. False imprisonment defined.
False imprisonment is the

unlawful violation of the personal liberty of another. [I.C.,

18-2901, as
added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Analysis
'.
., . ;
'
C.L.,
6721; C.S., 8245; I.C.A.,
17-1215
Civil actlns for false imprisonment,
*n
^
eneraL
lnstructl0ns-
Civil Actions for False Imprisonment.
In action for damages for false imprison-
Cited in: State v. Richardson, 95 Idaho ment, where it is alleged that the arrest is an
446, 511 P.2d 263 (1973). unlawful violation of the personal liberty of
another, and evidence is conflicting, it is error
for trial court to withdraw said cause from
jury and sustain a motion for nonsuit. Ludwig
v. Ellis, 22 Idaho 475, 126 P. 769 (1912).
Where magistrate who issues warrant of
arrest has no jurisdiction of person or subject-
matter, he is liable in action in damages for
false imprisonment. Harkness v. Hyde, 31
Idaho 784, 176 P. 885 (1918).
In General.
The essential elements of false imprison-
ment are set forth and enumerated. There
need be no force or threats, nor is it necessary
that the wrongful act be committed with mal-
ice or ill will, nor need it be under color of
legal or judicial proceeding. All that is neces-
sary is that the individual be restrained of his
liberty
compelled to remain or go where he

does not wish to

prevented from moving
from place to place as he may desire, without
authority and by any means whatever. Griffin
v. Clark, 55 Idaho 364, 42 P2d 297 (1935).
Instructions.
Trial court's refusal to give jury instruction
correctly requested by defendant that the
offense of false imprisonment is a lesser in-
cluded offense within the crime of kidnapping
was error. State v. Wilcott, 103 Idaho 766, 653
P2d 1178 (1982).
False Imprisonment, 1 et seq.
35 C.J.S., False Imprisonment, 1 et seq.
Liability, for false imprisonment or arrest,
of a private person answering call of known or
asserted peace or police officer to assist in
making arrest which turns out to be unlawful.
29 A.L.R.2d 825.
When statute of limitations begins to run
against action for false imprisonment or false
arrest. 49 A.L.R.2d 922.
Truant or attendance officer process liabil-
ity for false imprisonment. 62 A.L.R.2d 1328.
Principal process liability for false arrest or
imprisonment caused by agent or servant. 92
A.L.R.2d 15; 93 A.L.R.3d 826.
Right, without judicial proceeding, to arrest
and detain one who is, or is suspected of
being, mentally deranged. 92 A.L.R.2d 570.
Delay in taking before magistrate or denial
of opportunity to give bail, criminal liability
for. 98 A.L.R.2d 966; 3 A.L.R.4th 1057.
Entrapment as precluding justification of
arrest or imprisonment. 15 A.L.R.3d 963.
Liability for false imprisonment predicated
upon institution of, or conduct in connection
with, insanity proceedings. 30 A.L.R.3d 523.
Liability of one contracting for private po-
lice or security service for acts of personnel
supplied. 38 A.L.R.3d 1332.
Modern status of rules as to right to force-
fully resist illegal arrest. 44 A.L.R.3d 1078.
False imprisonment as included offense
with charge of kidnapping. 68 A.L.R.3d 828.
Immunity of prosecuting attorney or simi-
lar officer from action for false arrest or im-
prisonment. 79 A.L.R.3d 882.
Liability of parent for injury to
unemancipated child caused by parent's neg-
ligence
modern cases. 6 A.L.R.4th 1066.

Liability for false arrest or imprisonment
under warrant as affected by mistake as to
identity of person arrested. 39 A.L.R.4th 705.
ligence

18-2902. Punishment.
False imprisonment is punishable by fine not

exceeding $5000, or by imprisonment in the countyjail not more than one (1)
year, or both. [I.C.,

18-2902, as added by 1972, ch. 336, 1, p. 844.]
comprised Cr. & R 1864, 49; R.S., R.C., &
C.L., 6722; C.S., 8246; I.C.A.,
17-1216
CHAPTER 30
FALSE PERSONATION
FRAUDULENT MARRIAGES
SECTION.
18-3001. False personation.
18-3002. Receiving money or property under
false personation.
18-3003. Marriage under false personation.
SECTION.
18-3004. Solemnizing marriage without au-
thority.
18-3005. Intimidation by false assertion of
authority.
18-3001. False personation.

Every person who falsely personates
another, and in such assumed character, either:
291 FALSE PERSONATION
FRAUDULENT MARRIAGES 18-3004

1. Becomes bail or surety for any party in any proceeding whatever,
before any court or officer authorized to take such bail or surety; or
2. Verifies, publishes, acknowledges or proves in the name of another
person, any written instrument, with the intent that the same may be
recorded, delivered and used as true; or
3. Does any act whereby, if it were done by the person falsely personated,
he might in any event, become liable to any suit or prosecution, or to pay any
sum of money, or to incur any charge, forfeiture or penalty, or whereby any
benefit might accrue to the party personating, or to any other person;
Is punishable by imprisonment in the county jail not exceeding two
(2)
years, or by a fine not exceeding $5000. [I.C.,

18-3001, as added by 1972,
ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Cross ref. Illegal arrest, search or seizure,
18-703.
C.L.,
7093; C.S., 8471; I.C.A.,
17-3810 Collateral References. 32 Am. Jur. 2d,
False Personation, 1 et seq.
effective January 1, 1972, and the present 35 C.J.S., False Personation, 1 et seq.
section added by S.L. 1972, ch. 336, 1 in the Intent as affecting false personation. 97
same words as the section prior to its repeal. A.L.R. 1510.
18-3002. Receiving money or property under false personation.
Every person who falsely personates another, and in such assumed

character receives any money or property knowing that it is intended to be
delivered to the individual so personated, with intent to convert the same to
his own use, or that of another person, or to deprive the owner thereof, is
punishable in the same manner and to the same extent as for larceny of the
money or property so received. [I.C.,

18-3002, as added by 1972, ch. 336,
1, p. 844.]
Compiler's notes, it former section, which same words as the section prior to its repeal,
comprised Cr. & P. 1864,
99; R.S., R.C., &
C.L.,
7094; C.S.,
8472; I.C.A.,

17-3811
m 18-7803.
Cited in
.
State v Boyenger, 95 Idaho 396,
509 p2d 1317 (1973)
18-3003. Marriage under false personation.

Every person who
falsely personates another, and in such assumed character marries or
pretends to marry, or sustain the marriage relation towards another, with or
without the connivance of such other, is guilty of a felony. [I.C.,

18-3003,
336, 1, p. 844.]
comprised Cr. & P. 1864, 98; R.S., R.C., & same words as the section prior to its repeal.
C.L.,
7090; C.S.,
8469; I.C.A.,

17-3808
otherwise provided,
18-112.
18-3004. Solemnizing marriage without authority.
Every person
who undertakes or pretends to join others in marriage, knowing that he is
not by law authorized so to do, or knowing of any legal impediment to the
proposed marriage, is guilty of a misdemeanor. [I.C.,

1972, ch. 336, 1, p. 844.]
comprised S.L. 1877. p. 24. 18; R.S., R.C., & same words as the section prior to its repeal.
C.L.,
7092; C.S., 8470; I.C.A.,

17-3809
was repealed by S.L. 1971. ch. 143, 5,

18-113.
18-3005. Intimidation by false assertion of authority.

(1) Any
person who either:
(a) Deliberately impersonates or falsely acts as a public officer or tribu-
nal, public employee or any law enforcement authority in connection with
or relating to any actual or purported legal process affecting persons or
property; or
(b) Simulates legal process including, but not limited to, actions affecting
title to real or personal property, indictments, subpoenas, warrants,
injunctions, liens, orders, judgments, or any legal documents or proceed-
ings; knowing or having reason to know the contents of any such
documents or proceedings or the basis for any action to be fraudulent; or
(c) While acting falsely in asserting authority of law takes action against
persons or property; or
(d) While acting falsely in asserting authority of law attempts in any way
to influence, intimidate, or hinder a public official or law enforcement
officer in the discharge of his official duties by means of, but not limited to,
threats of or actual physical abuse, harassment, or through the use of
simulated legal process;
Is punishable by imprisonment in the county jail for a period not to exceed
one (1) year, or by a fine not to exceed one thousand dollars ($1,000) or both.
(2)(a) Nothing in this section shall make unlawful any act of any law
enforcement officer or legal tribunal which is performed under lawful
authority; and
(b) Nothing in this section shall prohibit individuals from assembling
freely to express opinions or designate group affiliation or association; and
(c) Nothing in this section shall prohibit or in any way limit a person's
lawful and legitimate access to the courts or prevent a person from
instituting or responding to legitimate and lawful legal process. [I.C.,
18-3005, as added by 1997, ch. 149, 1, p. 426.]

CHAPTER 31
FALSE PRETENSES, CHEATS AND MISREPRESENTATIONS
18-3101. Pyramid promotional schemes pro- 18-3106. Drawing check without funds

hibited
Penalties

Sale of Drawing check with insuffi-
interest voidable

Scope of cient funds

Prima facie ev-
remedy. idence of intent
Standing of
18-3102 18-3104. [Repealed.] person having acquired rights
18-3105. False statement by commission

Probation conditions,
merchant, broker, agent, fac- 18-3107. [Amended and Redesignated.]
tor or consignee to principal or 18-3108

consignor. 18-3122. Definitions.
293 FALSE PRETENSES, CHEATS AND MISREPRESENTATIONS 18-3101
SECTION. SECTION.
18-3123. Forgery of a financial transaction 18-3 125A. Unauthorized factoring of credit
card. card sales drafts.
18-3124. Fraudulent use of a financial trans- 18-3126. Misappropriation of personal iden-
action card or number. tifying information.
18-3125. Criminal possession of financial 18-3127. Receiving or possessing fraudu-
transaction card, financial lently obtained goods or ser-
transaction number and FTC vices.
forgery devices. 18-3128. Penalty for violation.
18-3101. Pyramid promotional schemes prohibited

Penalties
Sale of interest voidable
Scope of remedy.
(1) It is illegal and

prohibited for any person, or any agent or employee thereof, to establish,
promote, offer, operate, advertise or grant participation in any pyramid
promotional scheme.
(a) "Appropriate inventory repurchase program" means a program by
which a plan or operation repurchases, upon request at the termination of
a participant's business relationship with the plan or operation and based
upon commercially reasonable terms, current and marketable inventory
purchased and maintained by the participant for resale, use or consump-
tion, provided such plan or operation clearly describes the program in its
recruiting literature, sales manual, or contracts with participants, includ-
ing the manner in which the repurchase is exercised and disclosure of any
inventory that is not eligible for repurchase under the program.
(b) "Commercially reasonable terms" means the repurchase of current
and marketable inventory within twelve (12) months from the date of
original purchase at not less than ninety percent (90%) of the original net
cost to the participant, less appropriate set-offs and legal claims, if any In
the case of service products, the repurchase of such service products shall
be on a pro ratâ basis, unless clearly disclosed otherwise to the partici-
pant, in order to qualify as "commercially reasonable terms."
(c) "Compensation" means a payment of any money, thing of value, or
financial benefit.
(d) "Consideration" means a payment of any money, or the purchase of
goods, services, or intangible property but shall not include:
1. The purchase of goods or services furnished at cost to be used in
making sales and not for resale.
2. Time and effort spent in pursuit of sales or recruiting activities.
(e) "Current and marketable" includes inventory that, in the case of
consumable or durable goods, is unopened, unused and within its com-
mercially reasonable use of shelf-life period. In the case of services and
intangible property, including internet sites, "current and marketable"
means the unexpired portion of any contract or agreement. The term
"current and marketable" does not include inventory that has been clearly
described to the participant prior to purchase as a seasonal, discontinued,
or special promotion product not subject to the plan or operation's
inventory repurchase program.
(f) "Inventory" includes both goods and services, including company-
produced promotional materials, sales aids and sales kits that the plan or
operation requires independent salespersons to purchase.
(g)
"Inventory loading" means that the plan or operation requires or
encourages its independent salespersons to purchase inventory in an
amount that unreasonably exceeds that which the salesperson can expect
to resell for ultimate consumption, or to use or consume, in a reasonable
time period.
(h) "Participant" means a natural person who joins a plan or operation.
(i) "Person" means a natural person, partnership, corporation, trust,
estate, business trust, joint venture, unincorporated association, or any
other legal or commercial entity.
(j)
"Promote" means to contrive, prepare, establish, plan, operate, adver-
tise or otherwise induce or attempt to induce another person to be a
participant.
(k) "Pyramid promotional scheme" means any plan or operation in which
a participant gives consideration for the right to receive compensation
that is derived primarily from the recruitment of other persons as
participants in the plan or operation rather than from the sales of goods,
services or intangible property to participants or by participants to others.
(3)
A limitation as to the number of persons who may participate, or the
presence of additional conditions affecting eligibility, or upon payment of
anything of value by a person whereby the person obtains any other
property in addition to the right to receive consideration, does not change
the identity of the scheme as a pyramid promotional scheme.
(4) Any person, or any agent or employee thereof who willfully and
knowingly promotes, offers, advertises, or grants participation in a pyramid
promotional scheme shall be guilty of a felony.
(5)
All pyramid promotional schemes offered by the same person, or
agents or employees thereof, or any person controlled by or affiliated with
such person, for the same type of consideration, at substantially the same
period of time and for the same general purpose, shall be deemed to be one
(1) integrated pyramid promotional scheme, even though such pyramid
promotional schemes may be given different names or other designations.
(6)
Nothing in this section or in any rule promulgated pursuant to this
section shall be construed to prohibit a plan or operation, or to define such
plan or operation as a pyramid promotional scheme, based upon the fact
that participants in the plan or operation give consideration in return for
the right to receive compensation based upon purchases of goods, services or
intangible property by participants for personal use, consumption or resale,
provided the plan or operation implements an appropriate inventory repur-
chase program and does not promote inventory loading.
(7) Any violation of this section shall also be deemed an unfair and
deceptive practice in violation of the Idaho consumer protection act. Any
person aggrieved by a violation of this section can recover monetary
damages pursuant to the Idaho consumer protection act.
(8) The rights and remedies that are granted under the provisions of this
section to purchasers in pyramid promotional schemes are independent of
and in addition to any other right or remedy available to them in law or
equity, and nothing contained herein shall be construed to diminish or
abrogate any such right or remedy.
B.C.,
18-3101, as added by 1983, ch.
241, 1, p. 648; am. 2004, ch.
51, 1, p. 239.]
18-3101 repealed by S.L. 1971, ch. 143, 5, effective
18-3101, as added by January 1, 1972.
1972, ch. 336, 1, p.
844 was repealed by S.L. The Idaho consumer protection act referred
1981, ch. 183, 1. to in subsection (7) is compiled as
48-601

48-608, 48-610
48-619.
prised Cr. & P. 1864, 136, 137; R.S. & R.C., Cited in: Fremont-Madison Irrigation
7096; 1909, p. 20, H.B. 112; reen. C.L., Dist. v. United States Dep't of Interior, 763
7096; C.S., 8474; I.C.A.,
17-3902 was F.2d 1084 (9th Cir. 1985).
18-3102

18-3104. False statements to obtain money, cash or
credit
Obtaining real property by false pretenses
Selling land twice. [Repealed.]

Compiler's notes. These sections, which repealed by S.L. 1981, ch. 183,
1. For
comprised I.C.,

18-3102
18-3104, as present law see
18-2401
18-2409.
added by 1972, ch. 336, 1, p. 844 were
18-3105. False statement by commission merchant, broker,
agent, factor or consignee to principal or consignor.

Every com-
mission merchant, broker, agent, factor or consignee who shall wilfully and
corruptly make, or cause to be made, to the principal or consignor of such
commission merchant, agent, broker, factor or consignee, a false statement
concerning the price obtained for, or the quality or quantity of any property
consigned or entrusted to, such commission merchant, agent, broker, factor
or consignee, for sale, shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by fine not exceeding $300.00, or by
imprisonment in the county jail not exceeding six (6) months, or by both

18-3105, as added by 1972, ch. 336,
1, p.
844.]
comprised R.S., R.C.* & C.L.,
7099; C.S., 1972, ch. 336, 1 in the same words as the
8478; I.C.
A.,
18-3106. Drawing check without funds

Drawing check with
insufficient funds

Prima facie evidence of intent
Standing of
person having acquired rights

Probation conditions.

(a) Any
person who for himself or as the agent or representative of another or as an
officer of a corporation, willfully, with intent to defraud shall make or draw
or utter or deliver, or cause to be made, drawn, uttered or delivered, any
check, draft or order for the payment of money upon any bank or depositary,
or person, or firm, or corporation, knowing at the time of such making,
drawing, uttering or delivery that the maker or drawer has no funds in or
credit with such bank or depositary, or person, or firm, or corporation, for the
payment in full of such check, draft or order upon its presentation, although
no express representation is made with reference thereto, shall upon
conviction be punished by imprisonment in the state prison for a term not to
exceed three
(3) years or by a fine not to exceed fifty thousand dollars
($50,000) or by both such fine and imprisonment.
(b) Any person who for himself or as the agent or representative of
another or as an officer of a corporation, willfully, with intent to defraud
shall make, draw, utter or deliver, or cause to be made, drawn, uttered or
delivered, any check, draft or order for the payment of money in the sum of
two hundred fifty dollars ($250) or more, or any series of transactions as
denned in subsection (f) of this section, upon any bank or depositary, or
person, or firm, or corporation, knowing at the time of such making,
drawing, uttering or delivery that the maker or drawer has some but not
sufficient funds in or credit with such bank or depositary, or person, or firm,
or corporation, for the full payment of such check, draft or order or series of
transactions upon presentation, although no express representation is made
with reference thereto, shall upon conviction be punished by imprisonment
in the state prison for a term not to exceed three
(3)
years, or by a fine not
to exceed fifty thousand dollars ($50,000), or by both such fine and
imprisonment.
(c) Any person who for himself or as the agent or representative of
another or as an officer of a corporation, willfully, with intent to defraud,
shall make, draw, utter or deliver, or cause to be made, drawn, uttered, or
delivered, any check, draft or order for payment of money, in a sum less than
two hundred fifty dollars ($250), which is not part of a series of transactions
as defined in subsection (f) of this section, upon any bank or depositary, or
person, or firm, or corporation, knowing at the time of such making,
drawing, uttering or delivery that the maker or drawer has some but not
sufficient funds in or credit with such bank or depositary, or firm, or person,
or corporation, for the full payment of such check, draft or order upon its
presentation, although no express representation is made with reference
thereto, shall upon conviction for a first offense be punished by imprison-
ment in the county jail for a term not exceeding six (6) months, or by a fine
not exceeding one thousand dollars ($1,000) or by both such fine and
imprisonment; and upon a second conviction the person so convicted shall be
punished by imprisonment in the county jail for a term not exceeding one (1)
year, or by a fine not exceeding two thousand dollars ($2,000), or by both
such fine and imprisonment; provided, however, that upon a third or
subsequent conviction, the person so convicted shall be punished by impris-
onment in the state prison for a term not exceeding three (3)
years, or by a
fine not exceeding fifty thousand dollars ($50,000), or by both such fine and
imprisonment.
(d) As against the maker or drawer thereof, the making, drawing,
uttering or delivering of such check, draft or order as aforesaid shall be
prima facie evidence of intent to defraud and of knowledge of no funds or
insufficient funds, as the case may be, in or credit with such bank, or
depositary, or person, or firm, or corporation, for the payment in full of such
check, draft or order upon its presentation. This prima facie intent to
defraud and knowledge of no funds or insufficient funds, as the case may be,
shall not be negated by evidence that the check draft or order was for
payment of a preexisting debt, including open accounts. The word "credit" as
used herein shall be construed to mean an arrangement or understanding
with the bank or depositary, or person, or firm, or corporation upon whom
such check, draft or order is drawn for the payment of such check, draft or
order.
297 FALSE PRETENSES, CHEATS AND MISREPRESENTATIONS 18-3 106
(e) Any person having acquired rights with respect to a check which is not
paid because the drawer has no funds, no account or insufficient funds, shall
have standing to file a complaint under this section, regardless of whether
he is the payee, holder or bearer of the check.
(f) For purposes of this section a "series of transactions" means a series of
checks, drafts or orders for the payment of money which are less than two
hundred fifty dollars ($250.00) individually but in the aggregate total two
hundred fifty dollars ($250) or more, and which are made, uttered, drawn or
delivered in violation of this section as part of a common scheme or plan.
(g)
If a sentence of probation is ordered for violation of this section, the
court as a condition of probation may require the defendant to make
restitution on all checks issued and which are unpaid at the date of
commencement of the probation in addition to any other terms and
conditions appropriate for the treatment and rehabilitation of the defen-
dant. [I.C.,

214, 1, p. 597; am. 1994, ch. 184, 1, p. 601; am. 1996, ch. 306, 1, p.
1004; am. 1998, ch. 324, 1, p. 1048.]
comprised S.L. 1903, p. 41, 1; R.C., 7101;
1915, ch. 129, 1, p. 286; C.L., 7101; C.S.,
8480; I.C.A., 17-3908; 1949, ch. Ill, 1,
p. 201; 1959, ch. 115, 1, p. 250; 1961, ch.
241, 1, p. 394 was repealed by S.L. 1971, ch.
143, 5, effective January 1, 1972, and the
its repeal.
"The provisions of this act [which amended
this section] shall apply to violations of sec-
tion 18-3016 [18-3106], Idaho Code, commit-
ted on and after July 1,
1998."
Cited in: State v. Jennings, 95 Idaho 724,
518 P.2d 1186 (1974); State v. Slinger, 109
v. Douglas, 118 Idaho 622, 798 P.2d 467 (Ct.
App. 1990).
Analysis
Any bank.
Application.
Bankruptcy code.
Constitutionality.
Evidence.
Information.
Instructions.
Intent.
Judgment.
Moral turpitude.
Pleas.
Postdated checks.
Prima facie case.
Proof.
Proper charge.
Sentence.
Violations.
Any Bank.
The term "any bank" is general, and in-
cludes any bank whether located within or
without the state. State v. Campbell, 70 Idaho
408, 219 P.2d 956 (1950).
Application.
Completion of the offense under the former
section did not depend upon the success of the
enterprise or that there be a completed deliv-
ery, nor was the former section concerned
with the obtaining of money or property by
false pretenses; it was complete when the
maker, with intent to defraud, made or ut-
tered the check, knowing that he had no funds
or credit with the bank at that time. State v.
Campbell, 70 Idaho 408, 219 R2d 956 (1950).
In a case where the evidence available to
the prosecuting attorney justifies a belief on
his part that the accused obtained money or
property by means of a false check, he may
elect to prosecute under the provisions of
18-3101. State v. Roderick, 85 Idaho 80, 375

P.2d 1005 (1962).
Bankruptcy Code.
Where defendant admitted to the state
court in a prosecution under this section that
he delivered checks to plaintiff knowing that
he did not have the funds on deposit to cover
the checks and that he did so wilfully and
with the intent to defraud plaintiff, such
findings supported a claim in favor of plaintiff
over defendant under 1-2301A for the
amount of the checks and in addition sup-
ported a finding that the indebtedness cre-
ated thereby was exempted from defendant's
discharge Under the Bankruptcy Code. Itano
Farms, Inc. v. Currey, 154 Bankr. 977 (Bankr.
D. Idaho 1993).
Constitutionality.
The former section was not unconstitu-
tional on ground that it provided no satisfac-
tory standards by which to judge guilt, nor
was it unconstitutional as providing for im-
proper presumptions. State v. Campbell, 70
Idaho 408, 219 P.2d 956 (1950).
Under the provisions of the former section,
the crime was completed upon the drawing,
uttering or delivering of the check under the
circumstances herein stated and it was not
necessary in such case for the state to allege
or prove that the accused obtained any money
or property by means of the check. State v.
Roderick, 85 Idaho 80, 375 P.2d 1005 (1962).
Evidence.
Evidence of previous checks issued without
funds, shortly before check in issue, was ad-
missible as to his intent to defraud. State v.
Sedam, 62 Idaho 26, 107 P.2d 1065 (1940).
Where there was a conflict in evidence as to
date check was given, date merchandise was
purchased for which check was given, and as
to whether instructions had been given to
hold check a few days, such matters were
within exclusive province of the jury. State v.
(1951).
Where the parties, in an action for issuing a
check with insufficient funds, agreed that if
the defendant's bank statement had not been
lost it would have been admissible under the
business records exception, a hearsay objec-
tion concerning a reconstruction of that lost
statement was inapplicable; once the original
evidence had withstood a hearsay objection,
secondary evidence of that original was not
subject to a hearsay analysis. State v. White,
102 Idaho 924, 644 P.2d 318 (1982).
Information.
An information substantially in the lan-
guage of the statute is sufficient. State v.
Sedam, 62 Idaho 26, 107 P.2d 1065 (1940).
Instructions.
Where a worthless check is issued as the
false token to accomplish the fraudulent pur-
pose, an instruction in substance that if the
jury finds that on or before the delivery of the
check involved there was an agreement be-
tween the two that the check would be held
and not immediately cashed then the defen-
dant should be acquitted, on the other hand if
the jury finds there was no such agreement
then the delivery of said check would be
prima facie evidence of false intent and intent
to defraud, was proper. State v. Davis, 81
Idaho 61, 336 P.2d 692 (1959).
In a prosecution under this section a trial
court should instruct the jury regarding an
inference of fraudulent intent arising from
presentation of an insufficient funds check
rather than a presumption; the jury shall be
instructed that the burden of proof as to
intent is hot shifted to the defendant. Shifting
of the burden by means of a mandatory pre-
sumption is a violation of due process. State v.
Hebner, 108 Idaho 196, 697 P.2d 1210 (Ct.
App. 1985).
Intent.
Intent to defraud is question of fact for jury.
State v. Sedam, 62 Idaho 26, 107 P2d 1065
(1940).
In a prosecution for issuing an insufficient
funds check, in which it was shown that
defendant issued the check in payment of a
preexisting debt, the state was required to
prove beyond a reasonable doubt that defen-
dant had the requisite intent to defraud, since
the presumption of intent to defraud could not
constitutionally be applied. State v. Campbell,
97 Idaho 331, 543 P.2d 1171 (1975).
Where the record indicated that defendant
charged with issuing a check with insufficient
funds confessed to the police that he knew the
account did not contain sufficient funds at the
time he tendered the check, where defendant
also testified at trial that he knew the account
had insufficient funds when he tendered the
check, and where defendant never attempted
to make reparations prior to the filing of the
complaint against him, based on such evi-
dence a jury reasonably could infer that de-
fendant intended to defraud at the time he
tendered the check. State v. Steele, 118 Idaho
793, 800 P.2d 680 (Ct. App. 1990).
Judgment.
Where maximum sentence for conviction
for drawing a check without funds was six
months at the time the crime was committed,
judgment placing defendant on probation for
two years was excessive, but judgment of
probation was valid for period of six months.
696 (1951).
Moral Turpitude.
Because fraud is an element of the crime, it
involves moral turpitude so as to justify dis-
barment. In re Mills, 71 Idaho 128, 227 P.2d
81 (1951).
Pleas.
After pleading guilty to two counts of issu-
ing a check without funds, defendant was
sentenced pursuant to a plea agreement to a
determinate term of three years' confinement
on the first count and to a consecutive inde-
terminate term of three years on the second
count. The court would not set aside defen-
dant's plea without a showing of just cause.
State v. Akin,

Idaho , 75 P. 3d 214 (Ct.
App. 2003).
Postdated Checks.
A drawer who knowingly and intentionally
issues a postdated check in the regular course
of business without sufficient funds in or
credit with the drawee bank for the payment
thereof in full upon presentation and who
neither calls to the attention of the payee that
it is postdated nor makes any arrangements
with the payee to hold the check commits the
crime of drawing a check without funds. State
v. Ramsbottom, 89 Idaho 1, 402 P.2d 384
(1965).
Prima Facie Case.
Giving of check with knowledge that there
is not sufficient funds in designated bank to
cover check makes out a prima facie case of
intent to defraud. State v. Eikelberger, 72
Idaho 245, 239 P.2d 1069 (1951).
Where defendant was aware that his ac-
count had been regularly overdrawn but
made no inquiry to the bank regarding an
expected deposit, defendant failed to over-
come the prima facie case established by proof
of the drawing and uttering of insufficient
funds checks. State v. Cochran, 97 Idaho 71,
539 P.2d 999 (1975).
Proof.
In prosecution under former section, it is
not necessary for state to plead and prove that
the check was presented and payment refused
by the drawee bank. State v. Campbell, 70
Idaho 408, 219 P.2d 956 (1950).
Proper Charge.
Contention of defendant that information
was insufficient to tharge a public offense,
because it did not allege that he did not have
"credit" with the bank for the payment of
check was of no avail since the word "credit"
appears in the former section and the infor-
mation was not drawn under that statute but
rather under former law that provided that
obtaining money by false or fraudulent repre-
sentation defrauds another of money and in-
formation sufficiently charged the crime of
obtaining money by false pretenses as therein
defined. State v. Roderick, 85 Idaho 80, 375
P.2d 1005 (1962).
Sentence.
State Board of Correction did not have
power or authority to increase sentence of
defendant from one to five years for conviction
of the crime of issuing a check without funds
where district court sentenced the defendant
for one year instead of the statutory period of
five years, since the district court did not
correct the sentence, and the state did not file
a motion to correct the sentence or take an
appeal from said sentence. Spanton v. Clapp,
78 Idaho 234, 299 P.2d 1103 (1956).
Where defendant had been advised of a
possible three-year maximum sentence on
each count of uttering and delivering a check
with insufficient funds, the trial court did not
err in imposing three concurrent three-year
sentences and one consecutive three-year sen-
tence upon defendant's plea of guilty to each
count, even though defendant was not specif-
ically advised of the court's discretion to im-
pose consecutive sentences. State v. Morris,
97 Idaho 273, 543 P.2d 498 (1975).
imposing 30-day jail term in addition to two
years' probation even considering defendant's
prior record, her age and the fact that she was
the mother of a young child. State v.
Wagenius, 99 Idaho 273, 581 P.2d 319 (1978).
The trial court did not err in sentencing the
defendant to a three-year indeterminate term
of imprisonment for each of eight counts of
drawing checks with insufficient funds and
one seven-year indeterminate term of impris-
onment on grand theft conviction to run con-
secutive to the other terms, where defendant
had prior criminal record and was out on bond
when grand theft occurred. State v. Brewster,
106 Idaho 145, 676 P.2d 720 (1984).
Concurrent indeterminate sentences of two
years for the driving under the influence, two
years for the insufficient funds check and five
years for the malicious injury to property was
not an abuse of discretion where the defen-
dant had an extensive criminal record when
he committed the offenses, he suffered from
severe alcoholism superimposed over a diag-
nosed aggressive personality disorder, creat-
ing a distinct potential for future violent be-
havior, and the presentence investigator
concluded that he was a poor candidate for
probation. State v. Bolton, 114 Idaho 269, 755
P.2d 1307 (Ct. App. 1988).
Where defendant was charged with two
counts of issuing a check without funds, and
at that time was on parole for a previous
forgery conviction, defendant failed to show
that his sentence was unreasonable, or that
the District Court abused its discretion in
denying his motion to reconsider a three-year
unified sentence with one year fixed. State v.
Elliott, 121 Idaho 48, 822 P.2d 567 (Ct. App.
1991).
A unified sentence of three years with a
minimum period of confinement of two years
rather than probation, for one count of issuing
a closed account check, was not an abuse as
discretion where defendant had previously
been charged four times with issuing no-
account checks, once with the issuance of an
insufficient funds check and once for unautho-
rized use of a bank check. State v. Domine,
121 Idaho 887, 828 P.2d 916 (Ct. App. 1992).
hold that the district court initially abused its
discretion in ordering a grand theft sentence
to be served consecutively to one imposed for
issuing a check without sufficient funds. State
v. Teske, 123 Idaho 975, 855 P.2d 60 (Ct. App.
1993).
Although the district court failed to specify
a minimum period of confinement with regard
to a consecutive, three-year indeterminate
sentence imposed on defendant on count two
of issuing checks without funds, in addition to
a three-year fixed sentence on count one,
because the record showed that the court
intended to set the minimum period of con-
finement at zero, the sentence did not violate
the requirements of
19-2513 that the aggre-
gate sentence not exceed the maximum pro-
vided by law; yet case had to be remanded for
correction of the form of judgment to specify
no minimum period of confinement had been
ordered on the count two conviction. State v.
Martinsen, 128 Idaho 472, 915 P.2d 34 (Ct.
App. 1996).
Sentence of defendant, convicted on two
counts of issuing checks without funds, of a
fixed three-year sentence on count one and an
indeterminate three-year sentence with no
minimum term of confinement specified on
count two to be served consecutively, was
reasonable and neither excessive nor an
abuse of discretion in light of defendant's
prior record; in reviewing a sentence imposed
under the Unified Sentencing Act, the mini-
mum period specified by the sentencing judge
is treated as the probable duration of confine-
ment and thus three years in this instance.
State v. Martinsen, 128 Idaho 472, 915 P.2d
34 (Ct. App. 1996).
Based on the nature of defendant's offenses
and the absence of any prior serious criminal
record, the district court abused its discretion
in imposing the harshest possible penalty by
directing that the sentences for defendant's
two counts of drawing a check without funds
be served consecutively. State v. Hoskins, 131
Idaho 670, 962 P2d 1054 (Ct. App. 1998).
Violations.
There is no violation if drawer informs
payee at the time of tendering check that he
does not have funds on hand to meet check.
1069 (1951).
There is a violation, even though check is
postdated, if drawer fails to inform payee that
check is postdated, or fails to request payee to
hold the check a few days. State v.
(1951).
Collateral References. False representa-
tions in business transaction as within stat-
ute relating to "confidence game." 9 A.L.R.
1527; 56 A.L.R. 727.
Obtaining loan or renewal thereof as of-
fense of confidence game. 24 A.L.R. 397; 52
A.L.R. 1167.
False pretense or confidence game through
means of worthless check or draft. 35 A.L.R.
344; 174 A.L.R. 173.
Fraudulent or worthless check, false pre-
tenses. 35 A.L.R. 346, 355; 43 A.L.R. 49; 95
A.L.R. 488; 174 A.L.R. 173.
Fraudulent check, variance between charge
that check was given in payment of an obli-
gation, and evidence that it was delivered as a
cash payment, or vice versa. 143 A.L.R. 1076.
Constitutionality of "bad check" acts. 16
A.L.R.4th 631.
Compiler's notes. Former 18-3107, 192, 2, p. 521, was amended and redesig-
18-3701, as added by nated as l-2301Aby S.L. 1983, ch. 192, 2.
1982, ch. 156, 1, p. 422; redesig. 1983, ch.
18-3108. Proof of fraudulent intent in procuring food, lodging or
other accommodations. [Repealed.]
comprised I.C., 18-3108, as added by 1972, ch. 183, 1. For present law, see
18-2405.
18-3109. Proprietor of hotel, lodging house or eating house to post
copy of law. [Repealed.]
Compiler's notes. This section, which C.L., 7103b; C.S., 8484; I.C.A.,
17-3912
comprised S.L. 1903, p. 410, 3; reen. R.C. & was repealed by S.L. 1951, ch. 112, 13.
18-3110. Jurisdiction of offenses against hotels, lodging or eating
houses. [Repealed.]
Compiler's notes. This section, which 3913, was repealed by S.L. 1969, ch. Ill,
comprised S.L. 1903, p. 410, 4; reen. R.C. & 18, to be effective at 12:01 a.m. on January
C.L.,

7103c; C.S.,
8485; I.C.A.,

17- 11, 1971.
18-3111. Fraudulent procurement oflivery accommodations
Wil-
ful or malicious abuse of animals or property. [Re-
pealed.]
Compiler's notes. This section, which 1972, ch. 336, 1 was repealed by S.L. 1972,
comprised I.C.,
18-3111 as added by S.L. ch. 381, 17, effective April 1, 1972.
18-3112. False, deceptive or misleading advertising. [Repealed.]
Compiler's notes. This section, which January 1, 1972, and a
18-3112 identical to
23, p. 74; reen. C.L., the section repealed was added by S.L. 1972,
7104a; C.S., 8487; I.C.A.,
17-3915 was ch. 336, 1 and repealed by S.L. 1972, ch.
repealed by S.L. 1971, ch. 143, 5, effective 381, 17, effective April 1, 1972.
18-3113
18-3121. Fraudulent use of credit cards
Intent to use
telephone service to avoid payment

Possession of
forged or fictitious altered or stolen credit cards

Fraudulently obtaining telecommunication service
Evidence
Penalty. [Repealed.]
Compiler's notes. These sections, which added by 1972, ch. 336, 1, p. 844 were
comprised I.C.,

18-3113
18-3121, as repealed by S.L. 1981, ch. 164, 7.
The following words and phrases used in this

chapter mean:
*
(1) "Authorized credit card merchant" means a person or organization
who is authorized by an issuer to furnish money, goods, services or anything
of value upon presentation of a financial transaction card or a financial
transaction card account number by a card holder, and to present valid
credit card sales drafts to the issuer for payment.
(2) "Automated banking device" means any machine which, when prop-
erly activated by a financial transaction card and/or a personal identifica-
tion code, may be used for any of the purposes for which a financial
transaction card may be used.
(3) "Card holder" means any person or organization named on the face of
a financial transaction card to whom, or for whose benefit, a financial
transaction card is issued by an issuer.
(4) "Credit card sales draft" means:
(a) Any sales slip, draft, voucher or other written or electronic record of a
sale of goods, services or anything else of value made or purported to be
made to or at the request of a card holder with a financial transaction
card, financial transaction card account number or personal identification
code; or
(b) Any evidence, however manifested, of any right or purported right to
collect from a card holder funds due or purported to be due with respect to
any sale or purported sale.
(5)
"Expired financial transaction card" means any financial transaction
card which is no longer valid because the terms agreed to have been
cancelled or have elapsed.
(6)
"Financial transaction card" or "FTC" means any instrument or device
known as a credit card, credit plate, bank services card, banking card, check
guarantee card, debit card, telephone credit card or by any other name
issued by the issuer for the use of the card holder in obtaining money, goods,
services, or anything else of value on credit, or in certifying or guaranteeing
to a person or business the availability to the card holder of the funds on
deposit that are equal to or greater than the amount necessary to honor a
draft or check payable to the order of such a person or business; or any
instrument or device used in providing the card holder access to a demand
deposit account or a time deposit account for the purpose of making deposits
of money or checks therein, or withdrawing funds in the form of money,
money orders, or traveler's checks or other representative of value there-
from or transferring funds from any demand account or time deposit account
to any credit card account in full or partial satisfaction of any outstanding
balance existing therein.
(7) "Financial transaction card account number" means the account
number assigned by an issuer to a financial transaction card to identify and
account for transactions involving that financial transaction card.
(8) "Issuer" means a business organization or financial institution or its
duly authorized agent which issues a financial transaction card.
(9)
"Personal identification code" means any numerical and/or alphabet-
ical code assigned to the card holder of a financial transaction card by the
issuer to permit the authorized electronic use of that FTC.
(10) "Personal identifying information" means the name, address, tele-
phone number, driver's license number, social security number, place of
employment, employee identification number, mother's maiden name,
checking account number, savings account number, financial transaction
card number, or personal identification code of an individual person, or any
other numbers which can be used to access a person's financial resources.
(11) "Revoked financial transaction card" means an FTC which is no
longer valid because permission to use it has been suspended or terminated
by the issuer with actual notice having been made upon the card holder.
[I.C.,
1, p. 856; am. 1999, ch.
124, 1, p. 361.]
18-3124.
18-3123. Forgery of a financial transaction card.

Any person
who, with intent to defraud, counterfeits, falsely makes, embosses, or
encodes magnetically or electronically any FTC, or who with intent to
defraud, uses the financial transaction card account number or personal
identification code of a card holder in the creation of a fictitious or
counterfeit credit card sales draft, signs the name of another, or a fictitious
name to an FTC, sales slip, sales draft, credit card sales draft, or any
instrument for the payment of money which evidences an FTC transaction,
shall be guilty of forgery and shall be punished under the current forgery
statutes of the state of Idaho. [I.C.,

18-3123, as added by 1981, ch. 164,
2, p. 288; am. 1991, ch. 331, 2, p. 856.]
in
18-7803.
18-3124. Fraudulent use of a financial transaction card or num-
ber.
It is a violation of the provisions of this section for any person with

the intent to defraud:
(1)
To knowingly obtain or attempt to obtain credit or to purchase or
attempt to purchase any goods, property, or service, by the use of any false,
fictitious, counterfeit, revoked, expired or fraudulently obtained FTC, by
any FTC account number, or by the use of any FTC issued;
(2)
To use an FTC or FTC number to knowingly and willfully exceed the
actual balance of the demand deposit account or time deposit account;
(3) To use an FTC or FTC number to willfully exceed an authorized credit
line in the amount of one thousand dollars ($1,000) or more, or fifty percent
(50%) of such authorized credit line, whichever is greater;
(4) To willfully deposit into his account or any other account by means of
an automatic banking device, any false, forged, fictitious, altered or coun-
terfeit check draft, money order, or any other such document;
(5)
To make application for an FTC to an issuer, while knowingly making
or causing to be made a false statement or report relative to his name,
occupation, financial condition, assets, or to willfully and substantially
[undervalue] any indebtedness for the purposes of influencing the issuer to
issue an FTC; .
(6)
To knowingly sell or attempt to sell credit card sales drafts to an
authorized credit card merchant or any other person or organization, for any
consideration whether at a discount or otherwise, or present or cause to be
presented to the issuer or an authorized credit card merchant, for payment
or collection, any credit card sales draft, or purchase or attempt to purchase
any credit card sales draft for presentation to the issuer or an authorized
credit card merchant for payment or collection if:
(a) Such draft is counterfeit or fictitious;
(b) The purported sale evidenced by such credit card sales draft did not
take place;
(c) The purported sale was not authorized by the card holder;
(d) The items or services purported to be sold as evidenced by such credit
card sales draft are not delivered or rendered to the card holder or person
intended to receive them; or
(e) If purportedly delivered or rendered, such goods or services are of
materially lesser value or quality from that intended by the purchaser, or
are materially different from goods or services represented by the seller or
his agent to the purchaser, or have substantial discrepancies from goods
or services impliedly represented by the purchase price when compared
with the actual goods or services purportedly delivered or rendered.
18-3 125 CRIMES AND PUNISHMENTS 304
(7) To knowingly keep or maintain in any manner carbon or other
impressions or copies of credit card sales drafts, and to use such impressions
or copies for the purpose of creating any fictitious or counterfeit credit sales
draft, or to engage in any other activity prohibited in this section. [I.C.,
856; am. 1999, ch. 124, 2, p. 361; am. 2002, ch.
72, 1, p. 158.]
Compiler's notes. The bracketed word action card, apparently convinced that the
"undervalue" in subdivision (5) was inserted modest sentences imposed on the defendant
by the compiler. in the past had not deterred his criminal
behavior and that there was a need to protect
compiled as

18-3122 and 18-3126, respec-
society from this continued conduct; in light of
tively.
the sentencing criteria, the sentence of five
years was reasonable. State v. Morris, 120
in

18-3127, 18-3128 and 18-7803.
Idaho 571, 817 P.2d 1095 (Ct. App. 1991).
Sentence
Collateral References. Successful negoti-
The district court imposed a sentence which
ation of commercial transaction as element of
was more severe than the period of confine-
state offense of credlt card fraud or false
ment recommended by the state for the con-
pretense m use of credit card. 106 A.L.R.5th
viction of fraudulent use of a financial trans-
'
01.
18-3125. Criminal possession of financial transaction card, finan-
cial transaction number and FTC forgery devices.

It is a felony
punishable as provided in subsection (3) of section 18-3128, Idaho Code, for
any person:
(1) To acquire an FTC or FTC number from another without the consent
of the card holder or the issuer, or to, with the knowledge that it has been so
acquired, receive an FTC or FTC number with the intent to use to defraud,
or to sell, or to transfer the FTC or FTC number to another person with the
knowledge that it is to be used to defraud;
(2) To acquire an FTC or FTC number that he knows to have been lost,
mislaid, or delivered under a mistake as to the identity or address of the
card holder, and to retain possession with the intent to use to defraud or to
sell or transfer to another person with the knowledge that it is to be used to
defraud. [I.C.,

18-3125, as added by 1981, ch. 164, 4, p. 288; am. 2002,
ch.
72, 2, p. 158.]
18-3128. in
18-7803.
18-3125A. Unauthorized factoring of credit card sales drafts.
It
is unlawful for any person to knowingly and with intent to defraud, employ,
solicit or otherwise cause an authorized credit card merchant, or for the
authorized credit card merchant itself, to present to the issuer for payment
any credit card sales draft pertaining to any sale or purported sale of goods
or services which was not made by such authorized credit card merchant in
the ordinary course of business, except with the express authorization of the
issuer. [I.C.,
18-3125A, as added by 1991, ch. 331, 4, p. 856.]
in

18-3127 and 18-3128.
18-3126. Misappropriation of personal identifying information.
It is unlawful for any person to obtain or record personal identifying

information of another person without the authorization of that person, with
the intent that the information be used to obtain, or attempt to obtain,
credit, money, goods or services in the name of the other person without the
consent of that person. [I.C.,

18-3126, as added by 1999, ch. 124, 3, p.
361.]
18-3126 was Sec. to sec. ref. This section is referred to
18-3127 by in

18-3127, 18-3128, 18-7803 and 28-51-
4of S.L. 1999, ch. 124. 102.

as
18-3124.
18-3127. Receiving or possessing fraudulently obtained goods or
services.
It is unlawful for any person to receive, retain, conceal, possess

or dispose of personal property, cash or other representative of value, who
knows or has reason to believe the property, cash or other representative of
value has been obtained by fraud as set forth in sections 18-3123, 18-3124,
18-3125A and 18-3126, Idaho Code. [I.C,

18-3126, as added by 1981, ch.
164, 5, p. 288; am. 1991, ch. 331, 5, p. 856; am. and redesig. 1999, ch.
124, 4, p. 361.]
Compiler's notes. This section was for- Sec. to sec. ref. This section is referred to
merly compiled as
18-3126. in
18-3128.
Former
18-3127 was amended and redes-
ignated as
18-3128 by 5 of S.L. 1999, ch.
124.
18-3128. Penalty for violation.

(1) Any person found guilty of a
violation of sectiqn 18-3124, 18-3125A, 18-3126 or 18-3127, Idaho Code, is
guilty of a misdemeanor. In the event that the retail value of the goods
obtained or attempted to be obtained through any violation of the provisions
of section 18-3124, 18-3125A, 18-3126 or 18-3127, Idaho Code, exceeds three
hundred dollars ($300), any such violation will constitute a felony, and will
be punished as provided in this section.
(2) For purposes of this section, the punishment for a misdemeanor shall
be a fine of up to one thousand dollars ($1,000) or up to one (1) year in the
county jail, or both such fine and imprisonment.
(3) For purposes of this section, the punishment for a felony shall be a fine
of up to fifty thousand dollars ($50,000) or imprisonment in the state prison
not exceeding five
(5)
years, or both such fine and imprisonment. [I.C,
279; am. 1991, ch. 331, 6, p. 856; am. 1994, ch. 132, 3, p. 301; am. and
redesig. 1999, ch. 124, 5, p. 361; am. 2002, ch.
72, 3, p. 158.]
Compiler's notes. This section was for- Section 2 of S.L. 2002, ch. 72 is compiled as
merly compiled as
18-3127.
18-3125.
repeal. Sentence.
Section 2 of S.L. 1994, ch. 132 is compiled The district court imposed a sentence which
as
18-2407. was more severe than the period of confine-
ment recommended by the state for the con- behavior and that there was a need to protect
viction of fraudulent use of a financial trans- society from this continued conduct, in light of
action card, apparently convinced that the the sentencing criteria, the sentence of five
modest sentences imposed on the defendant years was reasonable. State v. Morris, 120
in the past had not deterred his criminal Idaho 571, 817 P.2d 1095 (Ct. App. 1991).
CHAPTER 32
FALSIFYING, MUTILATING OR CONCEALING PUBLIC RECORDS OR WRITTEN
INSTRUMENTS
SECTION. SECTION.
18-3201. Officer stealing, mutilating or falsi- 18-3204. False certificates or other instru-
fying public records. ments from officers.
18-3202. Private person stealing, mutilating
18-3205. Destroying legal notices.
or falsifying public records.
18-3206. Mutilating written instruments.
18-3203. Offering false or forged instrument
for record.
18-3201. Officer stealing, mutilating or falsifying public records.
Any public officer, law enforcement officer, or subordinate thereof, who

wilfully destroys, alters, falsifies or commits the theft of the whole or any
part of any police report or any record kept as part of the official govern-
mental records of the state or any county or municipality in the state, shall
be guilty of a felony and is punishable by imprisonment in the state prison
for not more than fourteen (14) years. [I.C.,

18-3201, as added by 1972, ch.
336, 1, p. 844; am. 1982, ch. 367, 1, p. 918.]
Compiler's notes. A former section, which terations, and deletions as affecting admissi-
comprised Cr. & P. 1864, 95; R.S., R.C., & bility in evidence of public records. 28
C.L., 6464; C.S., 8155; I.C.A.,
17-901
A.L.R.2d 1443.
What constitutes a public record or docu-
effective January
ment within statute making falsification,
forgery, mutilation, removal, or other misuse
thereof an offense. 75 A.L.R.4th 1067.
Collateral References. Mutilations, al-
18-3202. Private person stealing, mutilating or falsifying public
records.

Every person not an officer such as is referred to in the
preceding section, who is guilty of any of the acts specified in that section, is
punishable by imprisonment in the state prison not exceeding five (5)
years,
or in a county jail not exceeding one (1) year, or by a fine not exceeding
$100.00, or by both. [I.C.,

18-3202, as added by 1972, ch.
336, 1, p. 844.1
C.L.,
6465; C.S., 8156; I.C.A.,

17-902
18-3203. Offering false or forged instrument for record.
Every
person who knowingly procures or offers any false or forged instrument to be
filed, registered or recorded in any public office within this state, which
instrument, if genuine, might be filed, or registered, or recorded under any
law of this state, or of the United States, is guilty of a felony. [I.C.,
18-3203, as added by 1972, ch. 336, 1, p. 844.]

307 FIREAKMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-3206
6466; C.S., prior to its repeal.
8157; I.C.A.,

1971, ch. 143, 5,
effective January
1, 1972,
otherwise provided,

18-112.
18-3204. False certificates or other instruments from officers.
Every public officer authorized by law to make or give any certificate or

other writing, who makes and delivers as true any such certificate or
writing, containing statements which he knows to be false, is guilty of a
misdemeanor. [I.C.,

18-3204, as added by 1972, ch.
336, 1, p. 844.]
6530; C.S.,
8198; I.C.A.,

18-113.
S.L. 1971, ch. 143, 5,
effective January
1,
Cited in
.
Christensen v. Hollingsworth, 6
Idaho 94 53 P 271 (1898)
18-3205. Destroying legal notices.
Every person who intentionally

defaces, obliterates, tears down or destroys any copy or transcript, or extract
from or of any law of the United States or of this state, or any proclamation,
advertisement or notification set up at any place in this state, by authority
of any law of the United States or of this state, or by order of any court,
before the expiration of the time for which the same was to remain set up,
is guilty of a misdemeanor. [I.C.,

18-3205, as added by 1972, ch. 336, 1,
p. 844; am. 1994, ch. 131, 13, p. 296.]
C.L.,
7164; C.S.,
8565; I.C.A.,

17-4315
repeal and 14 is compiled as
18-3308.
effective January
1,*
1972, and the present
18-3206. Mutilating written instruments.

A person who mali-
ciously mutilates, tears, defaces, obliterates or destroys any written instru-
ment, the property of another, the false making of which would be forgery,
is punishable by imprisonment in the state prison for not less than one (1)
nor more than five
(5)
years. [I.C.,
18-3206, as added by 1972, ch. 336, 1,
p. 844.]
C.L., 7165; C.S.,
8566; I.C.A.,
17-4316
CHAPTER 33
FIREARMS, EXPLOSIVES AND OTHER DEADLY WEAPONS
SECTION. SECTION.
18-3301. Deadly weapon

Possession with
18-3302A. Sale of weapons to minors.
intent to assault.
18-3302B. Carrying concealed weapons un-
18-3302. Issuance of licenses to carry con-
<jer the influence of alcohol or
cealed weapons.
drugs.
SECTION.
18-3302C. Prohibited conduct.
18-3302D. Possessing weapons or firearms
on school property.
18-3302E. Possession of a weapon by a mi-
nor.
18-3302F. Prohibition of possession of certain
weapons by a minor.
18-3302G. Exceptions.
18-3303. Exhibition or use of deadly weapon.
18-3304. Aiming firearms at others.
18-3305. Discharge of arms aimed at an-
other.
18-3306. Injuring another by discharge of
aimed firearms.
18-3307. Civil liability for injury by firearm.
18-3308. Selling explosives, ammunition or
firearms to minors.
18-3310. Shipping loaded firearms.
18-3311. Keeping gunpowder or other explo-
sives in towns.
18-3312. Injuring another by careless han-
dling and discharge of fire-
arms.
18-3313. False reports of explosives in public
SECTION.
or private places a felony

Penalty.
18-3314. Resident's purchase of firearm in
contiguous state.
18-3315. Resident of contiguous state
Pur-
chase of firearm in Idaho.
18-3316. Unlawful possession of a firearm.
18-3317. Unlawful discharge of a firearm at a
dwelling house, occupied
building, vehicle or mobile
home.
18-3319. Unlawful possession of bombs or
destructive devices.
18-3320. Unlawful use of destructive device
or bomb.
18-3320A. Disposal of destructive devices or
bombs.
18-3321. Persons exempt.
18-3322. Use of weapons of mass destruction
Definition.
18-3323. Biological weapons
Definitions.
18-3324. Use of chemical weapons
Defini-
tions.
18-3301. Deadly weapon
Possession with intent to assault.
Every person having upon him any deadly weapon with intent to assault
another is guilty of a misdemeanor. [I.C.,

18-3301, as added by 1972, ch.
336, 1, p. 844.]
C.L., 7023; C.S., 8406; I.C.A.,
17-3101
18-113.
Weapons and Firearms, 1 et seq.
94 C.J.S., Weapons, 1 et seq.
Liability for injury by explosive or the like
found by, or left accessible to, a child. 10
A.L.R.2d 22.
Manufacturer or wholesaler, liability for
injury caused by a third person's use of explo-
sives or other dangerous articles sold to re-
tailer in violation of law. 11 A.L.R.2d 1028.
Criminal offense of bomb hoax or making
false report as to planting of explosive. 93
A.L.R.2d 304.
Validity and construction of gun control
laws. 28 A.L.R.3d 845; 86 A.L.R.4th 931.
Possession of bomb, Molotov cocktail, or
similar device as criminal offense. 42
A.L.R.3d 1230.
Who is entitled to permit to carry concealed
weapons. 51 A.L.R.3d 504.
Liability for injury or death of minor or
other incompetent inflicted upon himself by
gun made available by defendant. 75 A.L.R.3d
825.
What constitutes "constructive possession"
of unregistered or otherwise prohibited
weapon under state law. 88 A.L.R.5th 121.
18-3302. Issuance of licenses to carry concealed weapons.

(1) The sheriff of a county shall, within ninety (90) days after the filing of an
application by any person who is not disqualified from possessing or
receiving a firearm under state or federal law, issue a license to the person
to carry a weapon concealed on his person within this state for four (4) years
309 FIREARMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-3302
from the date of issue. The citizen's constitutional right to bear arms shall
not be denied to him, unless he:
(a) Is ineligible to own, possess or receive a firearm under the provisions
of state or federal law; or
(b) Is formally charged with a crime punishable by imprisonment for a
term exceeding one (1)
year; or
(c) Has been adjudicated guilty in any court of a crime punishable by
imprisonment for a term exceeding one
(1) year; or
(d) Is a fugitive from justice; or
(e) Is an unlawful user of, or addicted to, marijuana or any depressant,
stimulant, or narcotic drug, or any other controlled substance as defined
in 21 U.S.C. 802; or
(f) Is currently suffering or has been adjudicated as follows, based on
substantial evidence:
(i) Lacking mental capacity as defined in section 18-210, Idaho Code; or
(ii) Mentally ill as defined in section 66-317, Idaho Code; or
(iii) Gravely disabled as defined in section 66-317, Idaho Code; or
(iv) An incapacitated person as defined in section
15-5-
10 1(a), Idaho
Code; or
(g)
Is or has been discharged from the armed forces under dishonorable
conditions; or
(h) Is or has been adjudicated guilty of or received a withheld judgment
or suspended sentence for one (1) or more crimes of violence constituting
a misdemeanor, unless three (3) years has elapsed since disposition or
pardon has occurred prior to the date on which the application is
submitted; or
(i) Has had entry of a withheld judgment for a criminal offense which
would disqualify him from obtaining a concealed weapon license; or
(j)
Is an alien illegally in the United States; or
(k) Is a person who having been a citizen of the United States, has
renounced his or her citizenship; or
(I) Is under twenty-one (21) years of age; or
(m) Is free on bond or personal recognizance pending trial, appeal or
sentencing for a crime which would disqualify him from obtaining a
concealed weapon license; or
(n) Is subject to a protection order issued under chapter 63, title 39, Idaho
Code, that restrains the person from harassing, stalking or threatening
an intimate partner of the person or child of the intimate partner or
person, or engaging in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or child.
The license application shall be in triplicate, in a form to be prescribed
by the director of the Idaho state police, and shall ask the name, address,
description and signature of the licensee, date of birth, social security
number, military status, and the driver's license number or state identi-
fication card number of the licensee if used for identification in applying
for the license. The application shall indicate that provision of the social
security number is optional. The license application shall contain a
warning substantially as follows:
CAUTION: Federal law and state law on the possession of weapons and
firearms differ. If you are prohibited by federal law from possessing a
weapon or a firearm, you may be prosecuted in federal court. A state
permit is not a defense to a federal prosecution.
The sheriff shall require any person who is applying for original
issuance of a license to submit his fingerprints in addition to the other
information required in this subsection. Within five (5) days after the
filing of an application, the sheriff shall forward the application and
fingerprints to the Idaho state police for a records check of state and
national files. The Idaho state police shall conduct a national fingerprint-
based records check and return the results to the sheriff within seventy-
five (75) days. The sheriff shall not issue a license before receiving the
results of the records check and must deny a license if the applicant is
disqualified under any of the criteria listed in paragraphs (a) through (n)
of subsection (1) of this section.
The license will be in a form substantially similar to that of the Idaho
driver's license. It will bear the signature, name, address, date of birth,
picture of the licensee, expiration date and the driver's license number or
state identification card number of the licensee if used for identification in
applying for the license. Upon issuing a license under the provisions of
this section, the sheriff will notify the Idaho state police on a form or in a
manner prescribed by the state police. Information relating to an appli-
cant or licensee received or maintained pursuant to this section by the
sheriff or Idaho state police is confidential and exempt from disclosure
under section 9-338, Idaho Code.
(2)
The fee for original issuance of a four
(4) year license shall be twenty
dollars ($20.00) paid to the sheriff for the purpose of enforcing the provisions
of this chapter. The sheriff may collect any additional fees necessary to cover
the cost of processing fingerprints lawfully required by any state or federal
agency or department, and the cost of materials for the license lawfully
required by any state agency or department, which costs shall be paid to the
state.
(3)
The fee for renewal of the license shall be twelve dollars ($12.00). The
sheriff may collect any additional fees necessary to cover the processing
costs lawfully required by any state or federal agency or department, and
the cost of materials for the license lawfully required by any state agency or
department, which costs shall be paid to the state. If a licensee applying for
renewal has not previously been required to submit fingerprints, the sheriff
shall require the licensee to do so and may collect any additional fees
necessary to cover the cost of processing fingerprints lawfully required by
any state or federal agency or department.
(4) A licensee may renew a license if the licensee applies for renewal at
any time before or within ninety (90) days after the expiration date of the
license. The sheriff shall require the licensee applying for renewal to
complete an application. The sheriff shall submit the application to the
Idaho state police for a records check of state and national databases. The
Idaho state police shall conduct the records check and return the results to
the sheriff within thirty (30) days. The sheriff shall not issue a renewal
before receiving the results of the records check and must deny a license if
the applicant is disqualified under any of the criteria listed in subsection
(1),
paragraphs (a) through (n) of this section. A renewal license shall be valid
for a period of four (4)
years. A license so renewed shall take effect on the
expiration date of the prior license. A licensee renewing after the expiration
date of the license shall pay a late renewal penalty often dollars ($10.00) in
addition to the renewal fee. The fee shall be paid to the sheriff for the
purpose of enforcing the provisions of this chapter.
(5)
Notwithstanding the requirements of this section, the sheriff of the
county of the applicant's residence may issue a temporary emergency license
for good cause pending review under subsection (1) of this section.
(6) A city, county or other political subdivision of this state shall not
modify the requirements of this section, nor may a political subdivision ask
the applicant to voluntarily submit any information not required in this
section. A civil action may be brought to enjoin a wrongful refusal to issue a
license or a wrongful modification of the requirements of this section. The
civil action may be brought in the county in which the application was made
or in Ada county at the discretion of the petitioner. Any person who prevails
against a public agency in any action in the courts for a violation of
subsections (1) through (5) of this section, shall be awarded costs, including
reasonable attorney's fees incurred in connection with the legal action.
(7) Except in the person's place of abode or fixed place of business, a
person shall not carry a concealed weapon without a license to carry a
concealed weapon. For the purposes of this section, a concealed weapon
means any dirk, dirk knife, bowie knife, dagger, pistol, revolver, or any other
deadly or dangerous weapon. The provisions of this section shall not apply
to any lawfully possessed shotgun or rifle.
(8) A county sheriff, deputy sheriff, or county employee who issues a
license to carry a* concealed weapon under this section shall not incur any
civil or criminal liability as the result of the performance of his duties under
this section.
(9)
While in any motor vehicle, inside the limits or confines of any city or
inside any mining, lumbering, logging or railroad camp a person shall not
carry a concealed weapon on or about his person without a license to carry
a concealed weapon. This shall not apply to any pistol or revolver located in
plain view whether it is loaded or unloaded. A firearm may be concealed
legally in a motor vehicle so long as the weapon is disassembled or unloaded.
(10) In implementing the provisions of this section, the sheriff shall make
applications readily available at the office of the sheriff or at other public
offices in his jurisdiction.
(11) The sheriff of a county may issue a license to carry a concealed
weapon to those individuals between the ages of eighteen (18) and twenty-
one (21) years who in the judgment of the sheriff warrants the issuance of
the license to carry a concealed weapon. Such issuance shall be subject to
limitations which the issuing authority deems appropriate. Licenses issued
to individuals between the ages of eighteen (18) and twenty-one (21) shall be
easily distinguishable from regular licenses.
(12) The requirement to secure a license to carry a concealed weapon
under this section shall not apply to the following persons:
(a) Officials of a county, city, state of Idaho, the United States, peace
officers, guards of anyjail, court appointed attendants or any officer of any
express company on duty;
(b) Employees of the adjutant general and military division of the state
where military membership is a condition of employment when on duty;
(c) Criminal investigators of the attorney general's office, criminal inves-
tigators of a prosecuting attorney's office, prosecutors and their deputies;
(d) Any person outside the limits of or confines of any city, or outside any
mining, lumbering, logging or railroad camp, located outside any city,
while engaged in lawful hunting, fishing, trapping or other lawful outdoor
activity;
(e) Any publicly elected Idaho official;
(f) Retired peace officers with at least ten (10) years of service with the
state or a political subdivision as a peace officer and who have been
certified by the peace officer standards and training council;
(g)
Any person who has a valid permit from a state or local law
enforcement agency or court authorizing him to carry a concealed weapon.
Apermit issued in another state will only be considered valid if the permit
is in the licensee's physical possession.
(13) When issuing a license pursuant to this section, the sheriff may
require the applicant to demonstrate familiarity with a firearm by any of the
following, provided the applicant may select which one:
(a) Completion of any hunter education or hunter safety course approved
by the department of fish and game or a similar agency of another state;
or
(b) Completion of any national rifle association firearms safety or train-
ing course, or any national rifle association hunter education course; or
(c) Completion of any firearms safety or training course or class available
to the general public offered by a law enforcement agency, community
college, college, university, or private or public institution or organization
or firearms training school, utilizing instructors certified by the national
rifle association or the Idaho state police; or
(d) Completion of any law enforcement firearms safety or training course
or class offered for security guards, investigators, special deputies, or any
division or subdivision of a law enforcement agency or security enforce-
ment agency; or
(e) Presents evidence or equivalent experience with a firearm through
participation in organized shooting competition or military service; or
(f)
Is licensed or has been licensed to carry a firearm in this state or a
county or municipality, unless the license has been revoked for cause; or
(g)
Completion of any firearms training or training or safety course or
class conducted by a state certified or national rifle association certified
firearms instructor.
(14) A person carrying a concealed weapon in violation of the provisions
of this section shall be guilty of a misdemeanor.
(15) The sheriff of the county where the license was issued or the sheriff
of the county where the person resides shall have the power to revoke a
license subsequent to a hearing in accordance with the provisions of chapter
52, title 67, Idaho Code, for any of the following reasons:
(a) Fraud or intentional misrepresentation in the obtaining of a license;
or
(b) Misuse of a license, including lending or giving a license to another
person, or duplicating a license, or using a license with the intent to
unlawfully cause harm to a person or property; or
(c) The doing of an act or existence of a condition which would have been
grounds for the denial of the license by the sheriff; or
(d) The violation of any of the terms of this section; or
(e) The applicant is adjudicated guilty of or receives a withheld judgment
for a crime which would have disqualified him from initially receiving a
license.
(16) A person twenty-one (21) years of age or older issued a license to
carry a concealed weapon or a license renewal on or after July 1, 1995, is
exempt from any requirement to undergo a records check at the time of
purchase or transfer of a firearm from a federally licensed firearms dealer.
However, a temporary emergency license issued under subsection (5) of this
section shall not exempt the holder of the license from any records check
requirement. Temporary emergency licenses shall be easily distinguishable
from regular licenses.
(17) The provisions of this section are hereby declared to be severable and
if any provision of this section or the application of such provision to any
person or circumstance is declared invalid for any reason, such declaration
shall not affect the validity of remaining portions of this section. [I.C.,
507; am. 1991, ch. 262, 1, p. 647; am. 1994, ch. 431, 1, p. 1392; am. 1995,
ch.
356, 1, p. 1201; am. 1996, ch. 392, 1, p. 1316; am. 1998, ch.
90, 8,
p. 315; am. 2000, ch. 469, 22, p. 1450.]
Compiler's notes.
*
Former 18-3302, Cross ref. Assault with deadly weapon,
18-906.
1972, ch. 336, 1, p. 844; am. 1988, ch. 229, Confiscation of firearms found at time of
2, p. 441, was repealed by S.L. 1990, ch. arrest,
19-3807.
256, 1. Possession of burglarious instruments,
18-1406.
S.L. 1909, p. 6, 1; S.L. 1917, ch. 146, 1, p.
461; reen. C.L., 7024; C.S., 8407; I.C.A.,
in

9-340B, 18-3302C and 19-5403.
Cited in: State v. Rosencrantz, 110 Idaho
124, 714 P.2d 93 (Ct. App. 1986).
compiled as
1-907 and 31-2215.
Analysis
Burden of proof,
as

18-3302C.
Carrying weapon
Section 2 of S.L. 1995, ch. 356 was compiled
Carrying weapon about person,
as

9-340. Section 9-340 was repealed by
Concealment
section
1 of S.L. 1999, ch. 30. *
-Probable cause.
Defective judgment.
18-2H-
Evidence.
Instructions
compiled as

18-915 and 18-4508, respec-
Right to bear arms
tively.
Section 2 of S.L. 1991, ch. 213 declared an Burden of Proof.
emergency. Approved April 2, 1991. The phrase "without a license to carry a
Section 9 of S.L. 1998, ch. 90 provided that concealed weapon," is an integral part of the
this act shall be in full force and effect on and conduct proscribed by subsections (7) and (9)
after July 1, 1999. of this section and, it is so incorporated into
the description of the offense as to be a
material element of the crime; therefore, the
State bears the burden of proving that a
person charged with violating this section is
not licensed to carry a concealed weapon.
State v. Morales, 127 Idaho 951, 908 P.2d
1258 (Ct. App. 1996).
A gun's assembly is not an element of the
offense of carrying a concealed weapon with-
out a license which must be proved by the
state; it was unnecessary to determine
whether removal of firing pin constituted dis-
assembly. State v. Haley, 129 Idaho 333, 924
P.2d 234 (Ct. App. 1996).
Carrying Weapon.
Where officer observed defendant, con-
victed of carrying a concealed weapon without
a license, in his pickup and later found a
loaded weapon in the cab of his pickup, it was
in close proximity and readily accessible for
prompt use; fact that defendant exited pickup
when officer arrived did not remove defendant
from purview of the statute. State v. Haley,
129 Idaho 333, 924 P.2d 234 (Ct. App. 1996).
Carrying Weapon About Person.
One carries a weapon "upon or about his
person" not only when he physically is carry-
ing it in his clothing or in a handbag of some
sort, but also when he goes about with the
weapon in such close proximity to himself
that it is readily accessible for prompt use.
State v. McNary, 100 Idaho 244, 596 P.2d 417
(1979).
Concealment.
Defendant was not justified in carrying
concealed weapon in violation of city ordi-
nance even though he had received threaten-
ing calls and the sheriff was not available so
as to enable defendant to obtain a permit for
such weapon. State v. Hart, 66 Idaho 217, 157
P.2d 72 (1945).
The general test of concealment is whether
a weapon is so carried as not to be discernible
by ordinary observation. State v. McNary, 100
Idaho 244, 596 P.2d 417 (1979).
Under Idaho law, a weapon is concealed if
not discernible by ordinary observation.
United States v. Thornton, 710 F.2d 513 (9th
Cir. 1983).
Where an officer could only see a small
portion of a weapon in the defendant's car
from one particular vantage point, the
weapon was not discernible from ordinary
observation, and defendant was properly ar-
rested for carrying a concealed weapon. State
v. Button, 136 Idaho 526, 37 P.3d 23 (Ct. App.
2001).
Probable Cause.
Where a police officer, in checking a car
parked near an intersection partially in the
traffic lane with its lights on, observed about
eight inches of an altered gun stock protrud-
ing from under the front seat next to the
driver's right leg, the officer had probable
cause to believe that the concealed weapons
law was being violated. United States v.
Thornton, 710 F.2d 513 (9th Cir. 1983).
Where officer observed altered gun stock
protruding from under front seat of defen-
dant's car, he had probable cause to believe
this section was being violated and seizure of
the gun was the result of a lawful search
incident to arrest. United States v. Thornton,
710 F.2d 513 (9th Cir. 1983).
Defendant's arrest was lawful where the
facts showed that the police officer had prob-
able cause to believe defendant was unlaw-
fully carrying a concealed weapon; the knife
was not discernible by ordinary observation
where the positioning of the knife between
the seat and the console of the car concealed it
from casual observation. State v. Veneroso,
138 Idaho 925, 71 P.3d 1072 (Ct. App. 2003).
Defective Judgment.
When judgment of assault with deadly
weapon was not authorized by verdict, but all
proceedings up to that time were regular,
judgment may be reversed with directions to
trial court to pronounce judgment in confor-
mity with verdict. State v. Roby, 43 Idaho 724,
254 P. 210 (1927).
Evidence.
Where at the time that the state offered the
9 mm. pistol into evidence the state had laid
an adequate foundation to show that the 9
mm. pistol, located inside the zippered case,
had been removed by the defendant from
underneath the seat of his car and carried by
him as he attempted to avoid being arrested,
it was not necessary that every element of the
crime be established prior to admission of the
exhibit into evidence. State v. McNary, 100
Idaho 244, 596 P.2d 417 (1979).
Instructions.
Instruction as to right to bear arms not in
harmony with this section was properly re-
fused. State v. Fox, 52 Idaho 474, 16 P.2d 663
(1932).
Right to Bear Arms.
The right to bear arms may not be denied
by the legislature; it only has the power to
"regulate the exercise of this right"; that is,
among other things, it may prohibit carrying
concealed weapons, or prescribe the kind or
character of arms that may or may not be
kept, carried, or used, and various other
things of a regulatory character. State v.
Woodward, 58 Idaho 385, 74 P.2d 92, 114
A.L.R. 627 (1937).
The right to prohibit carrying of concealed
315 FIREAKMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-3302A
weapons falls within the police power of a
municipality and an ordinance enforcing
same is constitutional. State v. Hart, 66 Idaho
217, 157 P.2d 72 (1945).
Opinions of Attorney General. This sec-
tion is unconstitutional because it will force a
person of common intelligence to guess as to
whether or not he or she will be in violation of
the law. Further, it is unconstitutional be-
cause it does not provide proper standards for
the persons charged with applying the stat-
ute, in some cases forcing them to guess at its
meaning, and in other cases granting them
unfettered discretion as to its implementa-
tion. OAG 90-3.
The language in subdivision (1) of this
section, implying that one has a constitu-
tional right to carry concealed weapons, is
without foundation in the context it is used.
OAG 90-3.
It appears that the legislature intended
(despite its confusing use of the phrase ''right
to bear arms") that anyone who has ever been
convicted of a crime with a penalty exceeding
one year will not be eligible to receive a
concealed weapon license. OAG 90-3.
Subsection (l)(h) of this section states that
a license may be denied where a person has
been prosecuted for a misdemeanor "crime of
violence" within three years of the applica-
tion, and the term "violence" has been denned
as strength or energy actively displayed or
exerted, vehement or forcible action, or an
unjust exercise of force; while such misde-
meanors as assault and battery clearly meet
this definition, it is entirely unclear whether
the legislature intended to include such
crimes as resisting arrest, disturbing the
peace (which includes such acts as quarreling
and fighting), false imprisonment, discharge
of an aimed firearm, injuring another by the
careless use of a firearm, riotous conduct near
an election place, negligent vehicular man-
slaughter, or any other "nonproperty crime"
misdemeanor. OAG 90-3.
A statute that forbids or requires the doing
of an act in terms so vague that persons must
necessarily differ as to its application violates
the first essential of due process of law. In the
final analysis, this section produces this re-
sult in areas such as who may apply for a
license, who may be denied a license, who is
exempt from licensure, how a license may be
revoked, and whether a license may be re-
voked. When these vague portions of the
statute are severed from the rest, what re-
mains is a meaningless series of exceptions
and subparts having no independent value.
OAG 90-3.
Collateral References. Firearm used as
bludgeon as a deadly weapon. 8 A.L.R. 1319.
Cane as a deadly weapon. 30 A.L.R. 815.
Offense of carrying concealed weapons as
affected by manner of carrying or place of
concealment. 43 A.L.R. 492; 159 A.L.R. 319.
Offense of carrying weapon on person as
affected by place where defendant was at the
time. 73 A.L.R. 839.
Tear gas gun as dangerous or deadly
weapon. 92 A.L.R. 1098.
Liability of seller of firearms, explosive, or
highly inflammable substance to child. 20
A.L.R.2d 119; 75 A.L.R.3d 825; 95 A.L.R.3d
390; 4 A.L.R.4th 331.
Scope and effect of exception in statute
forbidding carrying of weapons, as to person
on his own premises. 57 A.L.R.3d 938.
Validity of state statutes restricting the
right of aliens to bear arms. 28 A.L.R.4th
1096.
Kicking as aggravated assault, or assault
with dangerous or deadly weapon. 19
A.L.R.5th 823.
18-3302A. Sale of weapons to minors.

It shall be unlawful to
directly or indirectly sell to any minor under the age of eighteen (18) years
any weapon without the written consent of the parent or guardian of the
minor. Any person violating the provisions of this section shall be guilty of
a misdemeanor and shall be punished by a fine not in excess of one thousand
dollars
($1,000), by imprisonment in the county jail for a term not in excess
of six (6) months, or by both such fine and imprisonment. As used in this
section, "weapon" shall mean any dirk, dirk knife, bowie knife, dagger,
pistol, revolver or gun. [I.C.,
18-3302A, as added by 1990, ch. 256, 3, p.
732; am. 1994, ch.
369, 1, p. 1186.]
ch. 369 is compiled as 18-3302E.
in 18-3302E.
18-3302B CRIMES AND PUNISHMENTS 316
Analysis F.3d 1456 (9th Cir.), cert, denied, 522 U.S.
836, 118 S. Ct. 108, 139 L. Ed. 2d 61 (1997).
Parent's consent.
Purchase by intermediary.
Purchase By Intermediary.
The fact that Idaho law permits a weapons
Parent's Consent.
transfer to a minor under 16 years of age with
Nothing in this section, the case law, or the
parental consent does not "empower" a juve-
niles of statutory construction suggests that a nile to purchase a firearm from a federal
parent can either (1) render an unlawful dealer through an intermediary who falsely
straw man purchase legal by consenting to it, identifies himself as the buyer. United States
or (2) override the clear prohibition against v. Moore, 109 F.3d 1456 (9th Cir.), cert, de-
making material false statements in a fire- nied, 522 U.S. 836, 118 S. Ct. 108, 139 L. Ed.
arms transaction. United States v. Moore, 109 2d 61 (1997).
18-3302B. Carrying concealed weapons under the influence of
alcohol or drugs.

It shall be unlawful for any person to carry a
concealed weapon on or about his person when intoxicated or under the
influence of an intoxicating drink or drug. Any violation of the provisions of
this section shall be a misdemeanor. [I.C.,

18-3302B, as added by 1990, ch.
256, 3, p. 732.]
18-3302C. Prohibited conduct.

Any person obtaining a license
under the provisions of section 18-3302, Idaho Code, shall not:
(1) Carry a concealed weapon in a courthouse, juvenile detention facility
or jail, public or private school, except as provided in subsection
(4)(f)
of
section 18-3302D, Idaho Code; or
(2) Provide information on the application for a permit to carry a
concealed weapon knowing the same to be untrue. Any person violating the
provisions of this section shall be guilty of a misdemeanor. [I.C.,

18-
3302C, as added by 1990, ch. 256, 3, p. 732; am. 1991, ch. 262, 2, p. 647;
am. 2000, ch. 420, 2, p. 1366.]
18-3302.
18-3302D. Possessing weapons or firearms on school property.
(l)(a) It shall be unlawful and is a misdemeanor for any person to possess

a firearm or other deadly or dangerous weapon while on the property of a
school or in those portions of any building, stadium or other structure on
school grounds which, at the time of the violation, were being used for an
activity sponsored by or through a school in this stete or while riding
school provided transportation.
(b) The provisions of this section regarding the possession of a firearm or
other deadly or dangerous weapon on school property shall also apply to
students of schools while attending or participating in any school spon-
sored activity, program or event regardless of location.
(a) "Deadly or dangerous weapon" means any weapon as defined in 18
U.S.C. section 930;
(b) "Firearm" means any firearm as defined in 18 U.S.C. section 921;
(c) "Minor" means a person under the age of eighteen (18) years;
(d) "Possess" means to bring an object, or to cause it to be brought, onto
the property of a public or private elementary or secondary school, or onto
317 FIREARMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-3302D
a vehicle being used for school provided transportation, or to exercise
dominion and control over an object located anywhere on such property or
vehicle. For purposes of subsection (l)(b) of this section, "possess" shall
also mean to bring an object onto the site of a school sponsored activity,
program or event, regardless of location, or to exercise dominion and
control over an object located anywhere on such a site;
(e) "School" means a private or public elementary or secondary school.
(3)
Right to search students or minors. For purposes of enforcing the
provisions of this section, employees of a school district shall have the right
to search all students or minors, including their belongings and lockers, that
are reasonably believed to be in violation of the provisions of this section, or
applicable school rule or district policy, regarding the possessing of a firearm
or other deadly or dangerous weapon.
(4) The provisions of this section shall not apply to the following persons:
(a) A peace officer;
(b) A person who lawfully possesses a firearm or deadly or dangerous
weapon as an appropriate part of a program, an event, activity or other
circumstance approved by the board of trustees or governing board;
(c) Aperson or persons complying with the provisions of section 19-202A,
Idaho Code;
(d) Any adult over eighteen (18) years of age and not enrolled in a public
or private elementary or secondary school who has lawful possession of a
firearm or other deadly or dangerous weapon, secured and locked in his
vehicle in an unobtrusive, nonthreatening manner;
(e) A person who lawfully possesses a firearm or other deadly or danger-
ous weapon in a private vehicle while delivering minor children, students
or school employees to and from school or a school activity;
(f) Notwithstanding the provisions of section 18-3302C, Idaho Code, a
person or an employee of the school or school district who is authorized to
carry a firearm with the permission of the board of trustees of the school
district or the governing board.
(5)
Penalties. Persons who are found guilty of violating the provisions of
this section may be sentenced to a jail term of not more than one (1) year or
fined an amount not in excess of one thousand dollars ($1,000) or both. If a
violator is a student and under the age of eighteen (18)
years, the court may
place the violator on probation and suspend the juvenile detention or fine or
both as long as the violator is enrolled in a program of study recognized by
the court that, upon successful completion, will grant the violator a general
equivalency diploma (GED) or a high school diploma or other educational
program authorized by the court. Upon successful completion of the terms
imposed by the court, the court shall discharge the offender from serving the
remainder of the sentence. If the violator does not complete, is suspended
from, or otherwise withdraws from the program of study imposed by the
court, the court, upon receiving such information, shall order the violator to
commence serving the sentence provided for in this section. [I.C.,

18-
3302D, as added by 1993, ch. 153, 1, p. 388; am. 1995, ch. 248, 1, p. 819;
am. 2000, ch. 420, 1, p. 1366.]
18-3302E CRIMES AND PUNISHMENTS 318
Compiler's notes. Section 2 of S.L. 1995, provided adequate notice, a hearing, and the
33-205. school board acted within the scope of its
Section 2 of S.L. 1993, ch. 153 declared an discretion under
33-205 in expelling the
emergency. Approved March 25, 1993. students. Rogers v. Gooding Pub. Joint Sch.
x. w-^ ^^ t
Dist. No. 231, 135 Idaho 480, 20 P.3d 16
Construction With Other Law.
(2001)
A writ of mandamus was improperly issued

'
. _ ___
to students who had been expelled from .
Collateral References. What constitutes
school for having a pellet gun on school prop-
constructive possession of unregistered or
erty in violation of the Gun Free Schools Act
th
f
wise Prohibited weapon under state law.
and district policy, where the students were
88 A.L.R.5th 121.
18-3302E. Possession of a weapon by a minor.

(1) It shall be
unlawful for any person under the age of eighteen (18) years to possess or
have in possession any weapon, as denned in section 18-3302A, Idaho Code,
unless he:
(a) Has the written permission of his parent or guardian to possess the
weapon; or
(b) Is accompanied by his parent or guardian while he has the weapon in
his possession.
(2)
Any minor under the age of twelve (12) years in possession of a
weapon shall be accompanied by an adult.
(3) Any person who violates the provisions of this section is guilty of a
misdemeanor. [I.C.,
18-3302E, as added by 1994, ch. 369, 2, p. 1186.]
Compiler's notes. Section 1 of S.L. 1994, "constructive possession" of unregistered or
ch. 369 is compiled as 18-3302A. otherwise prohibited weapon under state law.
Collateral References. What constitutes 88 A.L.R.5th 121.
18-3302F. Prohibition of possession of certain weapons by a
minor.
(1) It shall be unlawful for any person under the age of eighteen
(18) years to possess or have in possession any handgun.
(2) Except as provided by federal law, a minor under the age of eighteen
(18) years may not possess the following:
(a) A sawed-off rifle or sawed-off shotgun; or
(b) A full automatic weapon.
(3)
Any person who violates the provisions of subsection (2)(a) of this
section is guilty of a misdemeanor.
(4) Any person who violates the provisions of subsection (2)(b) of this
section is guilty of a felony.
(5)
For purposes of this section:
(a) "Full automatic weapon" means any firearm which fires, is designed to
fire, or can be readily restored to fire, automatically more than one (1)
bullet, or other missile without reloading, by a single function of the
trigger.
(b) "Handgun" means a pistol, revolver, or other firearm of any descrip-
tion, loaded or unloaded, from which any shot, bullet, or other missile can
be discharged, the length of the barrel of which, not including any
revolving, detachable, or magazine breech, does not exceed twelve (12)
inches. Excluded from this definition are handguns firing a metallic
projectile, such as a BB or pellet, through the force of air pressure, C0
2
pressure, or spring action or any spot marker gun.
(6) Any person who provides a handgun to a minor when the possession
of the handgun by the minor is a violation of the provisions of this section is
18-3302F, as added by 1994, ch.
369, 3,
p. 1186.]
Collateral References. What constitutes otherwise prohibited weapon under state law.
"constructive possession" of unregistered or 88 A.L.R.5th 121.
18-3302G. Exceptions.

The provisions of section 18-3302E, Idaho
Code, regarding the possession of a weapon by a minor or section 18-3302F,
Idaho Code, regarding possession of handguns by minors shall not apply to
any of the following:
(1) Patrons firing at lawfully operated target concessions at amusement
parks and similar locations provided that the firearms to be used are firmly
chained or affixed to the counters;
(2)
Any person in attendance at a hunter's safety course or a firearm's
safety course;
(3) Any person engaging in practice or any other lawful use of a firearm
at an established range or any other area where the discharge of a firearm
is not prohibited by state or local law;
(4)
Any person engaging in an organized competition involving the use of
a firearm, or participating in or practicing for such competition;
(5)
Any minor under eighteen (18) years of age who is on real property
with the permission of the owner, licensee, or lessee of the property and who
has the permission of a parent or legal guardian or the owner, licensee, or
lessee to possess a firearm not otherwise in violation of the law;
(6)
Any resident or nonresident hunters with a valid hunting license or
other persons who are lawfully engaged in hunting; and
(7)
Any person traveling to or from any activity described in subsection
(2), (3), (4), (5) or (6) of this section with an unloaded firearm in his
possession. [I.C., 18-3302G, as added by 1994, ch. 369, 4, p. 1186.]
18-3303. Exhibition or use of deadly weapon.
Every person who,

not in necessary self-defense, in the presence of two (2) or more persons,
draws or exhibits any deadly weapon in a rude, angry and threatening
manner, or who, in any manner, unlawfully uses the same, in any fight or
quarrel, is guilty of a misdemeanor. [I.C.,

18-3303, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Instructions.
comprised Cr. & P. 1864, 40; R.S., R.C., & In prosecution for aggravated assault, the
C.L.,
6961; C.S., 8375; I.C.A.,

17-3103
trial court erred in refusing to give the exhib-
was repealed by S.L. 1971, ch. 143, 5, iting a deadly weapon instruction requested
by the defendant, where the jury could have
concluded that the defendant
not acting in
self-defense
and in the presence of at least

four witnesses exhibited his revolver in a

18-113.
rude,
angry and threatening manner. State v.
^^
Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App.
1986).
Instructions. Trial court did not commit reversible error
Lesser included offenses. in refusing to give jury instruction on the
lesser included offense of exhibiting a danger-
ous weapon at trial of defendant convicted of
felony aggravated assault; court gave an in-
struction on the intermediate offense of exhib-
iting a deadly weapon and jury did not find
defendant guilty of the intermediate crime
and thus there was no indication that the
result would have been different had the
omitted instruction been given. State v.
Croasdale, 120 Idaho 18, 813 P.2d 357 (Ct.
App. 1991).
quirement of
Idaho 478, 927 P.2d 451 (Ct. App. 1996).
18-3304. Aiming firearms at others.
Any person who shall inten-

tionally, without malice, point or aim any firearm at or toward any other
person shall be guilty of a misdemeanor and shall be subject to a fine of not
more than $50.00 and not less than $5.00. [I.C.,

1972, ch.
336, 1, p. 844.]
comprised S.L. 1907, p. 29, 1; reen. R.C. &
C.L., 6707; C.S., 8235; I.C.A.,
17-1211
Cited in: Anderson v. City of Pocatello, 112
Idaho 176, 731 P.2d 171 (1986).
quirement of
Idaho 478, 927 P.2d 451 (Ct. App. 1996).
18-3305. Discharge of arms aimed at another.

Any person who
shall discharge, without injury to any person, any firearm, while intention-
ally, without malice, aimed at or toward any person, shall be guilty of a
misdemeanor, and shall be liable to a fine of not less than $100.00, or
imprisonment in the county jail not to exceed six (6) months, or both, at the
discretion of the court. [I.C.,
18-3305, as added by 1972, ch. 336, 1, p.
844.1
comprised S.L. 1907, p. 29, 2; reen. R.C. &
C.L., 6708; C.S., 8236; I.C.A.,
17-1212
quirement of 19-2132(c). Jury would not
Idaho 478, 927 P.2d 451 (Ct. App. 1996).
Collateral References. Reduction by ap-
pellate court of punishment imposed by trial
court for discharging firearms. 89 A.L.R. 303.
32
1
FIREARMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-3308
18-3306. Injuring another by discharge of aimed firearms.
Any
person who shall maim or injure any other person by the discharge of any
firearm pointed or aimed, intentionally but without malice, at any such
person, shall be guilty of a misdemeanor, and shall be punished by a fine of
not less than $50.00, or imprisonment in the county jail for a period of not
more than one (1)
year; and if death ensue from such wounding or maiming,
such person so offending shall be deemed guilty of the crime of manslaugh-
ter. [I.C.,
18-3306, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which included offense of injuring another by dis-
comprised S.L. 1907, p. 29, 3; reen. R.C., & charge of an aimed firearm, and also gave the
C.L., 6709; C.S., 8237; I.C.A.,
17-1213
was repealed by S.L. 1971, ch. 143, 5, unanimous verdict convicting the defendant
of aggravated battery foreclosed it from con-
sidering whether he was guilty of any lesser-
included offenses, and any potential error in
Cross ref. Penalty for manslaughter,

18-
the district court's failure to give requested
4007.
instructions on additional lesser-included of-
Cited in: State v. Silcox, 103 Idaho 438,
fenses was harmless. State v. Trejo, 132 Idaho
650 R2d 625 (1982).
872) 979 R2d 1230 (Ct. App. 1999).
18-3307. Civil liability for injury by firearm.
Any party maimed

or wounded by the discharge of any firearm aforesaid, or the heirs or
representatives of any person who may be killed by such discharge, may
have an action against the party offending, for damages, which shall be
found by a jury, and such damages, when found, may in the discretion of the
court before which such action is brought, be doubled. [I.C.,

18-3307, as
added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1907, p. 29, 4; reen. R.C., & section added by S.L. 1972, ch. 336, 1 in the
C.L.,
6710; C.S., 8238; I.C.A.,

17-1214
18-3308. Selling explosives, ammunition or firearms to minors.
No person, firm, association or corporation shall sell or give to any minor

under the age of sixteen (16) years any powder, commonly called gunpowder,
of any description, or any dynamite or other explosive, or any shells or fixed
ammunition of any kind, except shells loaded for use in shotguns and for use
in rifles of twenty-two (22) caliber or smaller, or any firearms of any
description, without the written consent of the parents or guardian of such
minor first had and obtained. Any person, firm, association or corporation
violating any of the provisions of this section shall be deemed guilty of a
misdemeanor. [I.C.,

18-3308, as added by 1972, ch. 336, 1, p. 844; am.
1994, ch. 131, 14, p. 296.]
Compiler's notes. A former section, which pealed by S.L. 1971, ch. 143, 5, effective
comprised S.L. 1913, ch. 177, 1, 2, p. 553; January 1, 1972, and the present section
reen. C.L.,
6930a; C.S.,

8357; I.C.A., added by S.L. 1972, ch. 336, 1 in the same
17-2715; 1935, ch. 23, 1, p. 40 was re- words as the section prior to its repeal.
Section 13 of S.L. 1994, ch. 131 is compiled mother of the boy learned of the boy's posses-
as
18-3205 and
15 contained a repeal. sion of the gun before the accident, but did not
w . , ... , . ,
order it taken away, consenting that he keep
Liability to Persons Injured
it untn hig father couM be consulted> consti
.
Seller of ammunition in violation of this
tuted an interveni efficient cause so as to
section is liable to parents of chiId killed in
d iye defendant
>
s act of selli the istol of
careless use of revolver in which it was used
Carron v. Guido, 54 Idaho 494, 33 P.2d 345
(1934).
being the proximate cause of the injury was a
genuine issue of a material fact and it was
Where plaintiff's thirteen-year-old son was
err for
^
e
<??
u
*
\
render summary
injured by a pistol sold to him by defendant
J
ud
f[
me
^ ^^^
^?
v
"
Hazen
'
90
without plaintiff's knowledge or consent,
whether the fact that plaintiff's wife and
Idaho 323, 411 P.2d 768 (1966).
18-3309. Selling firearms or ammunition to Indians. [Repealed.]
Compiler's notes. This section which com- C.S., 8356; I.C.A.,
17-2725 was repealed
prised 1879, p. 31; R.S., R.C., & C.L., 6930; by S.L. 1949, ch. 10, 1.
18-3310. Shipping loaded firearms.

Every person who ships, or
causes to be shipped, or delivers or causes to be delivered, to any railroad,
express or stage company, or to any other common carrier, for shipment as
baggage or otherwise, any loaded pistol, revolver, rifle, shotgun or other
firearm, is guilty of a misdemeanor. [I.C.,

18-3310, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1903, p. 345, 1; reen. R.C., & same words as the section prior to its repeal.
C.L.,
7219; C.S.,
8599; I.C.A.,

17-4610
18-113.
18-3311. Keeping gunpowder or other explosives in towns.

Every person who makes or keeps gunpowder, nitroglycerin, or other highly
explosive substance, within any city or town, or who carries the same
through the streets thereof, in any quantity or manner prohibited by law, or
by any ordinance of such city or town, is guilty of a misdemeanor. [I.C.,
18-3311, as added by 1972, ch. 336, 1, p. 844.]

8344; I.C.A.,

18-113.
18-3312. Injuring another by careless handling and discharge of
firearms.

Any person who handles, uses or operates any firearm in a
careless, reckless or negligent manner, or without due caution and circum-
spection, whereby the same is fired or discharged and maims, wounds or
injures any other person or persons, is guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not more than $300, or by
imprisonment in the county jail for not more than six (6) months, or by both

18-3312, as added by 1972, ch. 336,
1, p.
844.]
comprised S.L. 1949, ch. 70, 1, p. 45 was
in M.C.R., Rule 13.
Cited in: State v. Nastoff, 124 Idaho 667,
862 P.2d 1089 (Ct. App. 1993).
Homicide.
It was not error in a homicide case to refuse
to instruct the jury on the offense denned by
this section. State v. Chaffin, 92 Idaho 629,
448 P.2d 243 (1968), overruled on other
grounds, State v. Broadhead, 120 Idaho 141,
814 P2d 401 (1991).
18-3313. False reports of explosives in public or private places a
felony
Penalty.
Any person who reports to any police officer, sheriff,

employee of a fire department or fire service, prosecuting attorney, newspa-
per, radio station, television station, deputy sheriff, deputy prosecuting
attorney, member of the state police, employee of an airline, employee of an
airport, employee of a railroad or bus line, an employee of a telephone
company, occupants of a building, employee of a school district, or a news
reporter in the employ of a newspaper or radio or television station, that a
bomb or other explosive has been placed or secreted in a public or private
place knowing that such report is false, is guilty of a felony, and upon
conviction thereof, shall be sentenced to a term of not to exceed five
(5)
years
in the state penitentiary [I.C.,

18-3313, as added by 1972, ch. 336, 1, p.
844.]
Collateral References. Imposition of
state or local penalties,, for threatening to use
explosive devices at schools or other build-
ings. 79 A.L.R.5th 1.
Validity, construction, and application of 18
U.S.C.A. 844(e), prohibiting use of mail,
telephone, telegraph, or other instrument of
commerce to convey bomb threat. 160 A.L.R.
Fed. 625.
18-3314. Resident's purchase of firearm in contiguous state.

Residents of the state of Idaho may purchase rifles and shotguns in a state
contiguous to Idaho, provided that such residents conform to the applicable
provisions of the federal Gun Control Act of 1968, and regulations thereun-
der, as administered by the United States secretary of the treasury and
provided further, that such residents conform to the provisions of law
applicable to such a purchase in Idaho and in the contiguous state in which
the purchase is made. [I.C.,
18-3314, as added by 1972, ch. 336, 1, p.
844.]
The federal Gun Control Act of 1968 re-
ferred to in this section is compiled in 18
U.S.C.,
921928.
18-3315. Resident of contiguous state

Purchase of firearm in
Idaho.
Residents of a state contiguous to the state of Idaho may purchase

rifles and shotguns in Idaho, provided that such residents conform to the
applicable provisions of the federal Gun Control Act of 1968, and regulations
thereunder, as administered by the United States secretary of the treasury,
and provided further, that such residents conform to the provisions of law
applicable to such purchase in Idaho and in the state in which such persons
reside. [I.C.,
18-3315, as added by 1972, ch. 336, 1, p. 844.]
The federal Gun Control Act of 1968 re-
effective
ferred to in this section is compiled in 18
U.S.C.,

921 928.
18-3316. Unlawful possession of a firearm.

(1) A person who
previously has been convicted of a felony who purchases, owns, possesses, or
has under his custody or control any firearm shall be guilty of a felony and
shall be imprisoned in the state prison for a period of time not to exceed five
(5)
years and by a fine not to exceed five thousand dollars ($5,000).
(2) For the purpose of subsection (1) of this section, "convicted of a felony"
shall include a person who has entered a plea of guilty, nolo contendere or
has been found guilty of any of the crimes enumerated in section 18-310,
Idaho Code, or to a comparable felony crime in another state, territory,
commonwealth, or other jurisdiction of the United States.
(3) For the purpose of subsection (1) of this section, "firearm" shall include
any weapon from which a shot, projectile or other object may be discharged
by force of combustion, explosive, gas and/or mechanical means, whether
operable or inoperable.
(4) Subsection (1) of this section shall not apply to a person whose
conviction has been nullified by expungement, pardon, setting aside the
conviction or other comparable procedure by the jurisdiction where the
felony conviction occurred; or whose civil right to bear arms either specifi-
cally or in combination with other civil rights has been restored by any other
provision of Idaho law. [I.C.,

18-3316, as added by 1992, ch. 224, 1, p.
674; am. 2002, ch.
187, 1, p. 540.]
Sec. to sec. ref. This section is referred to 900 P.2d 196 (1995); State v. Dreier,
Idaho
in

18-310. , 76 P.3d 990 (Ct. App. 2003).
Cited in: State v. Weaver, 127 Idaho 288,
18-3317. Unlawful discharge of a firearm at a dwelling house,
occupied building, vehicle or mobile home.

any person to intentionally and unlawfully discharge a firearm at an
inhabited dwelling house, occupied building, occupied motor vehicle, inhab-
ited mobile home, inhabited travel trailer, or inhabited camper. Any person
violating the provisions of this section shall be guilty of a felony.
As used in this section, "inhabited" means currently being used for
dwelling purposes, whether occupied or not. [I.C.,
1993, ch. 254, 1, p. 879.]
Compiler's notes. Section 2 of S.L. 1993, Cited in: State v. Hudson, 129 Idaho 478,
ch. 254 declared an emergency. Approved 927 P.2d 451 (Ct. App. 1996).
March 29, 1993.
in 18-310.
325 FIREARMS, EXPLOSIVES AND OTHER DEADLY WEAPONS 18-33 19
-
Definitions as used in sections 18-3319, 18-
3320 and 18-3321, Idaho Code:
(1)
"Bomb" means any chemical or mixture of chemicals contained in such
a manner that it can be made to explode with fire or force, and combined
with the method or mechanism intended to cause its explosion. The term
includes components of a bomb only when the individual charged has taken
steps to place the components in proximity to each other, or has partially
assembled components from which a completed bomb can be readily
assembled. "Bomb" does not include: rifle, pistol or shotgun ammunition and
their components; fireworks; boating, railroad and other safety flares or
propellants used in model rockets or similar hobby activities.
(2)
"Destructive device" means:
(a) Any explosive, incendiary or poisonous gas:
(i) Bomb;
(ii) Grenade;
(iii) Rocket having a propellant charge of more than four (4) ounces;
(iv) Missile having an explosive or incendiary charge of more than
one-fourth i}A) ounce;
(v) Mine;
(vi) Similar device.
(b) Any type of weapon, by whatever name known, which will, or which
may be imminently converted to, expel a projectile by the action of an
explosive or other propellant, the barrel or barrels of which have a bore of
more than .700 inches in diameter, except rifled and unrifled shotguns or
shotgun shells.
(c) Components of a destructive device only when the individual charged
has taken steps to place the components in proximity to each other, or has
partially assembled components from which a completed destructive
device can be readily assembled.
(d) The term "destructive device" shall not include:
(i) Any device which is neither designed nor redesigned for use as a
weapon;
(ii) Any device which, although originally designed for use as a weapon,
has been redesigned for use as a signaling, pyrotechnic, line throwing,
safety or similar device;
(iii) Otherwise lawfully owned surplus military ordnance;
(iv) Antiques or reproductions thereof and rifles held for sporting,
recreational, investment or display purposes;
(v) Rifle, pistol or shotgun ammunition and their components.
(3)
"Shrapnel" means any metal, ceramic, glass, hard plastic or other
material of sufficient hardness to puncture human skin when propelled by
force of the bomb or destructive device to which it is attached or in which it
is contained. [I.C.,
18-3318, as added by 1997, ch. 272, 1, p. 796; am.
2001, ch. 256, 1, p. 922.]
18-3319. Unlawful possession of bombs or destructive devices.
(1) Any person who knowingly, intentionally, or recklessly possesses or

controls a bomb or destructive device for a purpose unlawful pursuant to
title 18, Idaho Code, is guilty of a felony, punishable by up to a five thousand
dollar ($5,000)
fine and five
(5)
years in prison.
(2)
Any person who knowingly possesses an assembled bomb or assem-
bled destructive device and who:
(a) Has been convicted of a felony; or
(b) Has been found guilty of any crime where such conviction results in
the person being prohibited from possessing or owning firearms; or
(c) Is in possession or control of any substance or paraphernalia in
violation of section 37-2732B, 37-2734A or 37-2734B, Idaho Code, or the
felony provisions of section 37-2732, Idaho Code;
is guilty of a felony, punishable by up to a five thousand dollar ($5,000) fine
and five
(5)
years in prison.
(3) Any person who possesses a bomb or destructive device which by its
design will propel shrapnel is guilty of a felony, punishable by up to a five
thousand dollar ($5,000) fine and five (5) years in prison. [I.C.,
18-3319, as
added by 1997, ch. 272, 1, p. 796; am. 2001, ch. 256, 2, p. 922.]
in
18-310 and 18-3321.
18-3320. Unlawful use of destructive device or bomb.

Any
person who knowingly, intentionally, or recklessly:
(1) Conspires to use, uses or causes to be used a destructive device or
bomb in the commission of or an attempt to commit a felony; or
(2) With the intent to injure the person or property of another, transports
a bomb or destructive device; or
(3) Injures another or conspires or attempts to injure another in his
person or property through the use of a destructive device or bomb is guilty
of a felony, punishable by up to a twenty-five thousand dollar ($25,000) fine
and life in prison. [I.C.,

18-3320, as added by 1997, ch. 272, 1, p. 796.]
in 18-310 and 20-525A.
18-3320A. Disposal of destructive devices or bombs.

Any de-
structive device or bomb that has been lawfully seized by a law enforcement
agency may be destroyed in a reasonable manner. An official record listing
the destructive device or bomb destroyed and the location of destruction
shall be kept on file at the office of the seizing agency. In the event of such
destruction, a photograph, videotape, or similar record of the device or bomb
shall be preserved for evidentiary purposes. The destruction of a destructive
device or bomb before a preliminary hearing, trial, or both shall not be a bar
to prosecution for any violation of law. [I.C.,

18-3320A, as added by 1999,
ch.
299, 1, p. 751.]
18-3321. Persons exempt.
Unless the intent to injure the person or

property of another has been established, the provisions in section 18-3319,
Idaho Code, shall not apply to:
(1) Any public safety officer or member of the armed forces of the United
States or national guard while acting in his official capacity;
(2) Any person possessing a valid permit issued under the provisions of
the international fire code, sections 41-253 and 41-254, Idaho Code, or any
employee of such permittee acting within the scope of his employment;
(3) Any person possessing a valid license as an importer, wholesaler, or
display operator under the provisions of the Idaho fireworks act, sections
39-2602, 39-2606, 39-2607, 39-2608, 39-2609, 39-2610, 39-2611 and 39-2612,
Idaho Code;
(4) A device which falls within the definition of-a bomb or destructive
device when used on property owned or otherwise in the control of the
person using the device;
(5)
Those licensed or permitted by the federal government to use or
possess a bomb or destructive device.
(6) Those persons who possess a destructive device properly registered
and taxed under the provisions of the national firearms act, as amended, as
to possession of destructive devices properly registered to such persons.
[I.C.,

86, 1,
p. 195.]
Compiler's notes. Section 2 of S.L. 1997 Sec. to sec. ref. This section is referred to
declared an emergency. Approved March 21, in

18-3318.
1997.
22-3426.
18-3322. Use of weapons of mass destruction

Definition.

(1) Any person who willfully and without lawful authority uses, threatens,
attempts or conspires to use a weapon of mass destruction, as denned in this
section and including a biological agent, toxin or vector, against any person
or property shall be guilty of a felony and shall be punished by a term of up
to and including life imprisonment or by a fine not exceeding fifty thousand
dollars ($50,000), or by both.
(2) As used in this section, the term "weapon of mass destruction" means:
(a) Any bomb or destructive device, as those terms are defined in section
18-3318, Idaho Code;
(b) Any weapon that is designed or intended to cause death or serious
bodily injury through the release, dissemination or impact of toxic or
poisonous chemicals or the precursors of such chemicals;
(c) Any weapon involving a disease organism; or
(d) Any weapon that is designed to release radiation or radioactivity at a
level dangerous to human life. [I.C.,

18-3322, as added by 2002, ch. 222,
1, p. 623.]
18-3323.
18-3323. Biological weapons
Definitions.
(1) Any person who

knowingly develops, produces, stockpiles, transfers, acquires, retains or
possesses any biological agent, toxin or delivery system for use as a weapon,
or who knowingly assists another person or group of persons in doing so, or
attempts, threatens or conspires to do so, shall be guilty of a felony and shall
be punished by imprisonment for a term of up to and including life
imprisonment or by a fine not exceeding fifty thousand dollars ($50,000), or
by both.
(2)
As used in this section, the term "for use as a weapon" does not include
the development, production, stockpiling, transfer, acquisition, retention or
possession of a biological agent, toxin or delivery system for prophylactic,
protective or other peaceful purposes if such biological agent, toxin or
delivery system is of a type and in a quantity that is reasonable for such
purposes.
(3) The attorney general of the state of Idaho may obtain in a civil action
an injunction against:
(a) The conduct prohibited under this section;
(b) The preparation, solicitation, attempt, threat or conspiracy to engage
in conduct prohibited under this section; or
(c) The development, production, stockpiling, acquisition, retention or
possession of any biological agent, toxin or delivery system of a type or in
a quantity that under the circumstances has no apparent justification for
prophylactic, protective or other peaceful purposes.
(a) "Biological agent" means any microorganism, virus, infectious sub-
stance or biological product that may be engineered as a result of
biotechnology, or any naturally occurring or bioengineered component of
any such microorganism, virus, infectious substance or biological product
that is capable of causing:
(i) Death, disease or other biological malfunction in any animal,
including humans, or any plant or other living organism;
(ii) Deterioration of food, water, equipment, supplies or material of any
kind; or
(hi) Deleterious alteration of the environment;
(b) "Toxin" means the toxic material of animals, plants, microorganisms,
viruses, fungi, infectious substances or a recombinant molecule, whatever
its origin or method of production including:
(i) Any poisonous substance or biological product that may be engi-
neered as a result of biotechnology produced from a living organism; or
(ii) Any poisonous isomer or biological product, homologue, or deriva-
tive of such substance;
(c) "Delivery system" means any apparatus, equipment, device, or means
of delivery specifically designed to deliver or disseminate a biological
agent, toxin or vector;
(d) "Vector" means a living organism or molecule, including a recombi-
nant molecule, or a biological product that may be engineered as a result
of biotechnology capable of carrying a biological agent to a host. [I.C.,
18-3323, as added by 2002, ch.

222, 2, p. 623.1
18-3324. Use of chemical weapons
Definitions.
(1) Except as
provided in subsection (2) of this section, it shall be unlawful for any person
to knowingly:
(a) Develop, produce or otherwise acquire, transfer directly or indirectly,
receive, stockpile, retain, own, possess, use or threaten to use any
chemical weapon; or
(b) Assist or induce in any way a person to violate, or attempt or conspire
to violate, subsection (1) (a) of this section.
(2) Subsection (1) of this section shall not apply to:
(a) The retention, ownership, possession, transfer or receipt of a chemical
weapon by a department, agency or other entity of the state of Idaho or
the United States; or
(b) Any person, including a member of the armed forces of the United
States, who is authorized by law or by an appropriate officer of the state
of Idaho or the United States to retain, possess, transfer or receive a
chemical weapon; or
(c) To an otherwise nonculpable person in an emergency situation if such
person is attempting to seize or destroy the weapon.
(3)(a) Any person who violates this section is guilty of a felony and shall
be punished by imprisonment for a term of up to and including life
imprisonment or by a fine not exceeding fifty thousand dollars
($50,000),
or by both.
(b) The attorney general of the state of Idaho may bring a civil action in
a state district court against any person who violates this section and,
upon proof of such violation by a preponderance of the evidence, such
person shall be required to pay a civil penalty in an amount not to exceed
one hundred thousand dollars ($100,000) for each violation. The imposi-
tion of a civil penalty under this subsection does not preclude any other
criminal or civil statutory, common law or administrative remedy which is
otherwise available by law to the state of Idaho or any other person.
(c) The court *shall order any person convicted of an offense under this
section to reimburse the state of Idaho for any expenses incurred by the
state incident to the seizure, storage, handling, transportation, destruc-
tion or other disposition of any property or material seized in connection
with an investigation of the commission of an offense by that person.
(d) The state of Idaho may obtain in a civil action an injunction against
any conduct prohibited in subsection (1) of this section or the preparation
or solicitation to engage in such conduct.
(4) Nothing in this section shall be construed to prohibit the possession or
use of any individual self-defense device, including devices which contain
pepper spray or chemical mace.
(a) "Chemical weapon" means the following, together or separately:
(i) A toxic chemical and its precursors, except where intended for a
purpose not prohibited by this section provided the type and quantity of
such chemical or precursors are consistent with such a purpose;
(ii) A munition or device that is specifically designed to cause death or
other harm through toxic properties of those toxic chemicals specified in
paragraph (5)(a)(i) of this section and that would be released as a result
of the employment of such munition or device;
18-3401 . CRIMES AND PUNISHMENTS 330
(iii) Any equipment specifically designed for use directly in connection
with the employment of munitions or devices specified in paragraph
(5)(a)(ii) of this section.
(b) Except as otherwise provided, "person" means any individual, corpo-
ration, partnership, firm, association, trust, estate, public or private
institution, the state of Idaho or any political subdivision thereof, or any
political entity within the state, any foreign government or nation or any
agency, instrumentality or political subdivision of such government or
nation located in the state of Idaho.
(c) "Precursor" means any chemical reactant that takes part at any stage
in the production, by whatever method, of a toxic chemical. The term
includes any key component of a binary or multicomponent chemical
system.
(d) "Purposes not prohibited by this section" means:
(i) Any peaceful purpose related to an industrial, agricultural, re-
search, medical or pharmaceutical activity or other activity;
(ii) Any purpose directly related to protection against toxic chemicals
or chemical weapons;
(iii) Any military purpose of the United States that is not connected
with the use of a chemical weapon or that is not dependent on the use
of the toxic or poisonous properties of the chemical weapon to cause
death or other harm; or
(iv) Any law enforcement purpose, including any domestic riot control
purpose and the imposition of capital punishment.
(e) "Toxic chemical" means any chemical that, through its chemical action
on life processes, can cause death, temporary incapacitation or permanent
harm to animals, including humans. The term includes all such chemi-
cals, regardless of their form or method of production, and regardless of
whether they are produced in facilities, munitions or elsewhere. [I.C.,
18-3324, as added by 2002, ch. 222, 3, p. 623.]

ch. 222 is compiled as 18-4003.
CHAPTER 34
FLAGS AND EMBLEMS
SECTION.
18-3401. Public mutilation of flag.
18-3402, 18-3403. [Repealed.]
18-3401. Public mutilation of flag.

Any person who publicly
mutilates, defaces, or tramples upon or burns, with intent to insult, the flag,
standard, colors or ensign of the United States or of the state of Idaho shall
be guilty of a misdemeanor. [I.C.,

18-3401, as added by 1981, ch. 323, 2,
p. 671.]

18-3401
1, p. 844) was repealed by S.L. 1981, ch.
(I.C.,
18-3401, as added by 1972, ch. 336, 323, 1.
33
1
FORGERY AND COUNTERFEITING 18-3502
Collateral References. 35 Am. Jur. 2d, What constitutes violation of flag desecra-
Flags,
1 et seq. tion statutes. 41 A.L.R.3d 502.
36A C.J.S., Flags, 1 et seq.
18-3402. Display of red flag or banner of disloyalty prohibited.
[Repealed.]
Compiler's notes. Former 18-3402, prised S.L. 1919, ch.
96, 1, p. 360; C.S.,
18-3402, as added by 8595; I.C.A
1972, ch. 336, 1, p. 844, was repealed by S.L. 1971, ch. 143, 5, effective January
1,
S.L. 1994, ch. 131, 15, effective July
1, 1972, and another version added by S.L. 1972,
1994. ch. 336, 1 in the same words as the section
Another former 18-3402, which com- prior to its repeal.
18-3403. Society or fraternal emblems

Fraudulent use. [Re-
pealed.]
comprised I.C., 18-3403, as added by 1972, ch. 323, 1.
CHAPTER 35
FORCIBLE ENTRY AND DETAINER
SECTION.
18-3502. Unlawful re-entry of land after
ouster.
18-3501. Forcible entry and detainer defined. [Repealed.]
comprised I.C.,
18-3501, as added by 1972, ch. 319, 1.
4
18-3502. Unlawful re-entry of land after ouster.

Every person
who has been removed from any lands by process of law, or who has removed
from any lands pursuant to the lawful adjudication or direction of any court,
tribunal or officer, and who afterward unlawfully returns to settle, reside
upon or take possession of such lands, is guilty of a misdemeanor. [I.C.,
18-3502, as added by 1972, ch. 336, 1, p. 844.]

6963; C.S.,
8377; I.C.A.,

18-113.
S.L. 1971, ch. 143,
5,
Reentry of dispossessed person on real
pr0perty a contempt,
7-602.
CHAPTER 36
FORGERY AND COUNTERFEITING
SECTION. SECTION.
18-3601. Forgery denned. 18-3604. Punishment for forgery.
18-3602. False entries in books of record. 18-3605. Possession of forged notes or bank
18-3603. Public seals

Forging or counter- bills or check or checks.
feiting. 18-3606. Fictitious bills, notes, and checks
18-360
1
CRIMES AND PUNISHMENTS 332
SECTION. SECTION.
Making, passing, uttering, or 18-3615. Sale of counterfeit goods.
publishing. 18-3616. Forged and counterfeit trade-marks
18-3607. Counterfeiting coin or bullion.
denned.
18-3608. Punishment for counterfeiting.
18-3617. Trademark denned.
18-3609. Possession of counterfeit coin.
18-3618 [Repealed 1
18-3610. P^session of counterfeiting appa-
18
_
3619; Slugg Qr counterfeited coins
_
Pen
.
-.o 0^11 ^ j. r -L- i j j.- i j
alty for use in vending ma-
18-3611. Counterfeiting railroad ticket. , / . .
b
18-3612. Restoring canceled railroad tickets.
, on 01
cnines or com-boxes.
18-3613. Simulation of switch and car keys.
18-3620. Slugs or counterfeited coins -Pen-
18-3614. Forging or counterfeiting trade-
alt
*
for manufacture or sale,
marks.
18-3601. Forgery defined.
Every person who, with intent to defraud

another, falsely makes, alters, forges or counterfeits, any charter, letters,
patent, deed lease, indenture, writing obligatory, will, testament, codicil,
annuity, bond, covenant, bank bill or note, federal reserve note, United
States currency or United States money, post note, check, draft, bill of
exchange, contract, promissory note, due bill for the payment of money or
property, receipt for money or property, passage ticket, power of attorney, or
any certificate of any share, right, or interest in the stock of any corporation
or association, or any state controller's warrant for the payment of money at
the treasury, county order or warrant, or request for the payment of money,
or the delivery of goods or chattels of any kind, or for the delivery of any
instrument of writing or acquittance, release, or receipt for money or goods,
or any acquittance, release, or discharge for any debt, account, suit action
demand, or other thing, real or personal, or any transfer or assurance of
money, certificates of shares of stock, goods, chattels, or other property
whatever, or any letter of attorney, or other power to receive money, or to
receive or transfer certificates of shares of stock or annuities, or to let, lease,
dispose of, alien, or convey any goods, chattels, lands or tenements, or other
estate, real or personal, or any acceptance or endorsement of any bill of
exchange, promissory note, draft, order, or assignment of any bond, writing
obligatory, or promissory note for money or other property, or counterfeits or
forges the seal or handwriting of another; or utters, publishes, passes, or
attempts to pass, as true and genuine any of the above named false, altered,
forged or counterfeited matters, as above specified and described, knowing
the same to be false, altered, forged, or counterfeited, with intent to
prejudice, damage, or defraud any person; or who, with intent to defraud,
alters, corrupts or falsifies any record of any will, codicil, conveyance, or
other instrument, the record of which is by law evidence, or any record of
any judgment of a court, or the return of any officer to any process of any
court, is guilty of forgery. [I.C.,

18-3601, as added by 1972, ch.
336, 1, p.
844; am. 1994, ch.
180, 10, p. 420; am. 2004, ch.
49, 1, p. 233.]
Compiler's notes. A former section, which Section 9 of S.L. 1994, ch. 180 is compiled
comprised Cr. & P. 1864, 77; R.S., R.C., & as
12-118.
C.L.,
7028; C.S., 8408; I.C.A.,
17-3701 Section 11 of S.L. 1994, ch. 180 was corn-
piled as
20-102 (now repealed). Section 12
effective January 1, 1972, and the present of S.L. 1994, ch. 180 is compiled as
20-235.
section added by S.L. 1972, ch. 336, 1 in the Section 241 of S.L. 1994, ch. 180 provided
same words as the section prior to its repeal. that such act should become effective on and
333 FORGERY AND COUNTERFEITING 18-3601
after the first Monday in January, 1995 [Jan-
uary 2, 1995] if the amendment to the Con-
stitution of Idaho changing the name of the
state auditor to state controller [1994 S.J.R.
No. 109, p. 14931 was adopted at the general
election held on November 8, 1994. Since such
amendment was adopted, the amendment to
this section by 10 of S.L. 1994, ch. 180
became effective January 2, 1995.
Section 2 of S.L. 2004, ch. 49 contains a
repeal.
Cross ref. Checks forged or raised,
28-4-
406.
Evidence, falsifying of,
18-2601 et seq.
Mutilating written instruments, a felony,
18-3206.
Penalty for forgery,
18-3604.
Public records and documents, tampering
with,
18-3201 et seq.
in 18-7803.
Cited in: State v. Hellberg, 105 Idaho 261,
668 P.2d 137 (Ct. App. 1983); State v. Bias. Ill
v. Elliott, 113 Idaho 858, 748 P.2d 1388 (Ct.
App. 1988); State v. Rambo, 121 Idaho 1, 822
P.2d 31 (Ct. App. 1991); State v. Beatey, 123
v. Bayles, 131 Idaho 624, 962 P.2d 395 (Ct.
App. 1998).
Analysis
Affidavit charging insanity.
Elements of forgery.
Evidence.
Instructions.
Intent.
Intoxication.
Sentence.
Uttering.
Venue.
Void instruments.
Affidavit Charging Insanity.
Affidavit or information before probate
judge charging insanity may be subject of
forgery. State v. Burtenshaw, 25 Idaho 607,
138 P. 1105 (1914).
Elements of Forgery.
The crime of forgery consists in doing one,
or more than one, of the acts set forth in the
statute, so that a general verdict finding de-
fendant guilty as charged in the information
is not insufficient because it fails to show of
what particular acts constituting said crime
the defendant was guilty. State v. McDermott,
52 Idaho 602, 17 P.2d 343 (1932).
Since the amendment of 1931 any and all of
the acts mentioned in
18-3606 as well as all
acts mentioned in this section, constitute
forgery. State v. Allen, 53 Idaho 737, 27 P.2d
482 (1933).
Where defendant signed another's name to
a check, had possession of it, cashed it on date
of issue and claimed title thereto, he was
conclusively presumed to have forged the
check in absence of satisfactory explanation.
State v. Allen, 53 Idaho 737, 27 P.2d 482
(1933).
Crime of forgery is committed by making
and altering with intent to defraud, as well as
by publishing or uttering with intent to de-
fraud, hence if state proves the commission of
either act, conviction for forgery will be sus-
tained. State v. Baldwin, 69 Idaho 459, 208
P.2d 161 (1949).
Essential elements of proof of the crime of
uttering a forged instrument were: 1. the
forged character of the instrument; 2. its
utterance as true and genuine by accused; 3.
his guilty knowledge of its spurious character;
and, 4. the accused's intent to defraud an-
other. State v. Booton, 85 Idaho 51, 375 P.2d
536 (1962).
"Intent to defraud" is simply a purpose to
use a false writing as if it were genuine in
order to gain some advantage, generally at
someone else's expense. State v. May, 93 Idaho
343, 461 P.2d 126 (1969).
Evidence.
Any writing either admitted or proved to be
genuine is admissible as an exemplar for the
purpose of comparison with a disputed writ-
ing. State v. Allen, 53 Idaho 737, 27 P.2d 482
(1933).
Conviction for forgery need not be reversed
because proof was responsive to offense of
signing fictitious name to check. State v.
Allen, 53 Idaho 737, 27 P.2d 482 (1933).
In forgery trial proof of the commission of
any one of the proscribed acts set out in the
former statute, with intent to defraud, is
sufficient to sustain conviction of forgery.
State v. Baldwin, 69 Idaho 459, 208 P. 2d 161
(1949).
Information for forgery must allege that the
wrongful act was done with intent to defraud
another. State v. Swensen, 13 Idaho 1, 81 P.
379 (1905).
Information charging that defendants did
wilfully, unlawfully, feloniously, and falsely
utter a bank check, and did then and there
utter said bank check as true and genuine,
with intent to defraud, is fatally defective, in
that the part charging making of the instru-
ment fails to allege intent to defraud, and the
part charging uttering of the same fails to
allege its utterance knowing same to be false,
altered, forged, or counterfeited. State v.
Swensen, 13 Idaho 1, 81 P. 379 (1905).
Information which merely charges forgery
of affidavit, but does not specify in what
manner or in what particular affidavit was
forged, is insufficient. State v. Burtenshaw, 25
Idaho 607, 138 P. 1105 (1914).
Instructions.
In prosecution for forgery, court properly
refused request of defendant for instruction
that state must prove that defendant forged
or counterfeited seal or handwriting of an-
other, that he did so knowing same to be
forgery and for purpose of defrauding another,
and that he uttered, published, passed, or
attempted to pass as genuine a forged check,
as requested instruction is not a correct state-
ment of the law for forgery. State v. Baldwin,
69 Idaho 459, 208 P.2d 161 (1949).
Where court instructed the jury that the
intent to defraud is a necessary element of the
crime of forgery, and that existence of that
intent must be established by the state be-
yond a reasonable doubt, it was not error by
the court to refuse instruction of the defen-
dant to the effect that in every crime there
must be a union of act and intent, since jury
had been sufficiently instructed on element of
intent in forgery. State v. Baldwin, 69 Idaho
459, 208 P.2d 161 (1949).
Intent.
Where specific intent is part of the crime
such as in forgery, intent must be alleged and
proved. State v. Baldwin, 69 Idaho 459, 208
P.2d 161 (1949).
As to the evidence pertaining to the neces-
sary specific intent the defendant had to de-
fraud the recipient of a check, this was a
question of fact for the jury. State v. Booton,
85 Idaho 51, 375 P.2d 536 (1962).
Evidence showing the forged nature of an
instrument and its possession and utterance
by the defendant would be sufficient to war-
rant an inference of knowledge of the forged
nature of the check in the absence of a satis-
factory explanation of its acquisition and pos-
session. State v. Booton, 85 Idaho 51, 375 P.2d
536 (1962).
From the fact of uttering and passing a
check itself and from the receipt of the pro-
ceeds of the check, the jury could properly find
the specific intent to defraud on the part of
the defendant. State v. Booton, 85 Idaho 51,
375 P.2d 536 (1962).
The jury can infer from the facts surround-
ing the commission of the crime itself the
charged, the allegation of "knowingly" and
Booton, 85 Idaho 51, 375 P.2d 536 (1962).
Intoxication.
Idaho 459, 208 P.2d 161 (1949).
Sentence.
Ten-year indeterminate sentence imposed
on a 71-year-old defendant who had been
convicted of at least four prior felonies, upon
his conviction of forging his name as payee on
a presigned check taken from an elderly dis-
abled woman, did not constitute an abuse of
the trial court's discretion. State v. Howard,
112 Idaho 110, 730 P.2d 1030 (Ct. App. 1986).
Where defendant's conviction was the re-
sult of a scheme to cash forged checks at
several banks and he had not been rehabili-
tated while serving a reduced sentence for a
prior felony offense but had persuaded a con-
spirator to join in the forgery scheme, and
that a checkwriting machine was found in his
possession at the time of his arrest, the dis-
trict court did not abuse its discretion in
denying defendant's Rule 35 motion and de-
fendant's sentence of 14 years with a required
five year minimum to be served was not
unduly harsh. State v. Townsend, 115 Idaho
460, 767 P.2d 835 (Ct. App. 1989).
Beyond arguing that he has made rehabil-
itative progress while incarcerated, defen-
dant presented no reasons to support his
contention that the court abused its discretion
in denying the motion to reduce his sentences;
therefore the district court did not abuse its
discretion by denying the Rule 35 motion on
the conviction for forgery. State v. Ricks, 120
Idaho 875, 820 P.2d 1232 (Ct. App. 1991).
The decision whether a sentence is to run
consecutively or concurrently with a previous
sentence is committed to the sound discretion
of the trial court; therefore, where defendant
would serve a total of eight years before he
again could be released on parole and the
court thought that this lengthy period was
necessary in order to protect society, the
length of this sentence when served consecu-
tively to the previous sentence did not amount
to an abuse of discretion. State v. Ricks, 120
Idaho 875, 820 P.2d 1232 (Ct. App. 1991).
Where defendant cashed two checks, each
made out to himself on the account of an
appliance store, at a grocery store and a bank
so that he could purchase cocaine, and defen-
dant had an extensive criminal record, includ-
ing convictions for burglary and grand theft,
two united concurrent sentences of 14 years
with a minimum period of confinement of six
years, to run consecutively with a two-year
period remaining on a previous sentence, was
a reasonable sentence. State v. Ricks, 120
Idaho 875, 820 R2d 1232 (Ct. App. 1991).
Uttering.
While uttering of instrument containing
forged endorsement does not raise a prima
facie presumption that person uttering same
forged the instrument, that fact constitutes a
circumstance against defendant which the
jury has a right to consider in connection with
other facts and circumstances of case in arriv-
ing at their verdict. State v. Miles, 22 Idaho
166, 124 P. 786 (1912).
Venue.
Defendant was tried on information that he
both forged and uttered a forged note, two
acts which constitute the same crime in
Idaho, one of the acts, that of uttering the
forged note occurred in Bingham County,
therefore said county had jurisdiction over
the entire crime under
19-304. State v. May,
93 Idaho 343, 461 P.2d 126 (1969).
Void Instruments.
Where original instrument claimed to have
been forged is void upon its face, indictment
for forgery will not lie. People v. Heed, 1 Idaho
531.
Forgery, 1 et seq.
37 C.J.S., Forgery, 1 et seq.
Experiments to show erasure of writing by
use of chemicals. 8 A.L.R. 40; 85 A.L.R. 479.
Appellate review of evidence as to genuine-
ness of handwriting. 12 A.L.R. 212; 27 A.L.R.
319.
Sentence of judgment, necessity and suffi-
ciency of recital of, or reference to the offense
in pronouncing. 14 A.L.R. 999.
Entrapment to commit offense of passing
forged instrument. 18 A.L.R. 179; 66 A.L.R.
478; 86 A.L.R. 263.
Altering receipt, canceled check, or other
voucher as forgery. 26 A.L.R. 1058.
Genuine making of instrument for purpose
of defrauding as constituting forgery. 41
A.L.R. 229; 46 A.L.R. 1529; 51 A.L.R. 568.
Promise by one whose name is forged to
take care of paper, effect of. 48 A.L.R. 1368.
Cloud on title, forged instrument as. 78
A.L.R. 182.
Blanks in paper, filling in, in terms other
than authorized. 87 A.L.R. 1169.
Alteration of written instrument in order to
conform to actual intention as forgery. 93
A.L.R. 864.
Admissibility, in forgery prosecution, of
other acts of forgery. 34 A.L.R.2d 777.
Fictitious or assumed name, forgery by use
of. 49 A.L.R.2d 852.
Alteration of figures indicating amount of
check, bill, or note, without change in written
words, as forgery. 64 A.L.R.2d 1029.
Amount of fees allowable to examiners of
questioned documents or handwriting experts
for serving and testifying. 86 A.L.R.2d 1283.
Credit charge or credit sales slip, signing of.
90 A.L.R.2d 822.
Procuring signature by fraud as forgery. 11
A.L.R.3d 1074.
Falsifying of money order as forgery. 65
A.L.R.3d 1307.
What constitutes a public record or docu-
ment within statute making falsification,
forgery, mutilation, removal, or other misuse
thereof an offense. 75 A.L.R.4th 1067.
Evidence of intent to defraud in state forg-
ery prosecution. 108 A.L.R.5th 593.
18-3602. False entries in books of record.
Every person who, with

intent to defraud another, makes, forges, or alters any entry in any book of
records, or any instrument purporting to be any record or return specified in
the preceding section, is guilty of forgery. [I.C.,

18-3602, as added by 1972,
ch.
336, 1, p. 844.]
C.L., 7029; C.S., 8409; I.C.A.,
17-3702
Cross ref. Penalty for forgery,
18-3604.
in 18-7803.
18-3603. Public seals
Forging or counterfeiting.
Every person
who, with intent to defraud another, forges, or counterfeits the seal of this
state, the seal of any public officer authorized by law, the seal of any court
of record, or the seal of any corporation, or any other public seal authorized
or recognized by the laws of this state, or of any other state, or territory,
government, or country, or who falsely makes, forges or counterfeits any
impression purporting to be an impression of any such seal, or who has in
his possession any such counterfeited seal or impression thereof, knowing it
to be counterfeited, and wilfully conceals the same, is guilty of forgery.
PLC,
18-3603, as added by 1972, ch. 336, 1, p. 844.]

C.L., 7030; C.S., 8410; I.C.A.,
17-3703
in 18-7803.
18-3604. Punishment for forgery.
Forgery is punishable by impris-

onment in the state prison for not less than one (1) nor more than fourteen
(14) years. [I.C.,

18-3604, as added by 1972, ch. 336, 1, p. 844.]
C.L., 7031; C.S., 8411; I.C.A.,
17-3704
Cross ref. Forgery of telegraphic mes-
sages,
18-6715.
in 18-3606.
Analysis
Application.
Sentence.
Application.
Offense denned in
18-3606 is punishable
as forgery as provided in this section. State v.
Allen, 53 Idaho 737, 27 P.2d 482 (1933).
The fact that a defendant received a
heavier sentence than his accomplice and
another defendant convicted on the same day
in the same court of the same offense did not
constitute an abuse of discretion. Davidson v.
State, 92 Idaho 104, 437 P.2d 620 (1968).
The imposition of a five-year sentence on a
convicted forger was well within the statutory
limits and was not an abuse of the court's
discretion or unduly harsh. State v. Lawrence,
98 Idaho 399, 565 P.2d 989 (1977).
Where defendant's criminal record included
prior convictions for theft and forgery and
disclosed numerous probative violations and
flight from Oregon just before a hearing on
another alleged violation, the trial judge was
justified in finding that the sentence of inde-
terminate term not to exceed seven years was
necessary to protect society from repetitions
of such prior conduct and there was no abuse
of discretion. State v. Hellberg, 105 Idaho 261,
668 P.2d 137 (Ct. App. 1983).
Sentence.
Ten-year indeterminate sentence imposed
on a
71-year-old defendant who had been
convicted of at least four prior felonies, upon
his conviction of forging his name as payee on
a presigned check taken from an elderly, dis-
abled woman, did not constitute an abuse of
the trial court's discretion. State v. Howard,
112 Idaho 110, 730 R2d 1030 (Ct. App. 1986).
Where the defendant had eight prior felony
convictions and one misdemeanor conviction
on charges of insufficient fund checks and
grand theft, and he was on probation under a
suspended seven-year sentence for grand
theft when he committed the forgery, the
district court did not abuse its discretion in
imposing a seven-year indeterminate sen-
tence for forgery. State v. Elliott, 113 Idaho
858, 748 P.2d 1388 (Ct. App. 1988).
Where, after revoking defendant's proba-
tion, district judge ordered original sentence
to be fully executed, district judge did not
abuse his discretion in declining to reduce the
sentence since defendant received a seven-
year sentence where he could have received a
14-year term for the offense of forgery because
defendant also was charged with possession
of stolen property, but that charge was
dropped when defendant pled guilty to the
forgery, and since defendant later violated the
terms of his probation under the forgery judg-
ment. State v. Adams, 115 Idaho 1053, 772
P.2d 260 (Ct. App. 1989).
Imposition of concurrent 14-year sentences
with three-year minimum periods of confine-
ment for two forgery counts, and a concurrent
five-year sentence with a three-year mini-
mum confinement period for burglary was not
excessive where the judge cited defendant's
continuing record of criminal conduct. State v.
Alexander, 115 Idaho 897, 771 P.2d 915 (Ct.
App. 1989).
Where, while on probation for forgery, de-
fendant committed grand theft and was sen-
tenced to prison where upon her release she
was again placed on probation, and where
defendant used cocaine during this period and
also fled the state to live in Nevada, upon
these facts the district court did not abuse its
discretion by revoking probation with regard
to the forgery conviction and by imposing a
two-year indeterminate sentence. State v.
Stone, 118 Idaho 205, 795 P.2d 910 (Ct. App.
1990).
In a forgery conviction, considering the non-
violent nature of the crime, the background
and character of the defendant and the pro-
tection of the public interest, the three years'
minimum incarceration was unreasonable as
the period of time necessary to temporarily
protect society from defendant or to accom-
plish any of the goals of deterrence, rehabili-
tation or punitive retribution as these pur-
poses reasonably could be served by a
minimum period of incarceration of less than
three years; a period of two years would be
sufficient. State v. Joslin, 120 Idaho 462, 816
P.2d 1019 (Ct. App. 1991).
The decision whether a sentence is to run
consecutively or concurrently with a previous
sentence is committed to the sound discretion
of the trial court; therefore, where defendant
would serve a total of eight years before he
again could be released on parole and the
court thought that this lengthy period was
necessary in order to protect society, the
length of this sentence when served consecu-
tively to the previous sentence did not amount
to an abuse of discretion. State v. Ricks, 120
Idaho 875, 820 P.2d 1232 (Ct. App. 1991).
Where defendant cashed two checks, each
made out to himself on the account of an
appliance store, at a grocery store and a bank
so that he could purchase cocaine, and defen-
dant had an extensive criminal record, includ-
ing convictions for burglary and grand theft,
two united concurrent sentences of 14 years
with a minimum period of confinement of six
years, to run consecutively with a two-year
period remaining on a previous sentence, was
a reasonable sentence. State v. Ricks, 120
Idaho 875, 820 P.2d 1232 (Ct. App. 1991).
Defendant's sentences of four years, with
two years fixed, were not unreasonable in
light of the nature of the crimes he committed
and his character as revealed by his past
criminal conduct and failures to comply with
the rules of probation. State v. Beatey, 123
Idaho 273, 846 P2d 924 (Ct. App. 1993).
A unified eight-year sentence, with four
years as the minimum period of confinement
for forgery, was reasonable where defendant
was already on probation in the State of
Minnesota and had several prior convictions.
State v. Lowery, 123 Idaho 983, 855 P.2d 68
(Ct. App. 1993).
Court did not abuse its discretion in sen-
tencing defendant to four concurrent terms of
seven to fourteen years in prison for forgery,
where defendant had a criminal record dating
back to 1967, which had touched six different
states. State v. Wallmuller, 125 Idaho 196,
868 P2d 524 (Ct. App. 1994).
18-3605. Possession of forged notes or bank bills or check or
checks.
Everyperson who has in his possession, or receives from another

person, any forged promissory note or bank bill, or bills, or check or checks,
for the payment of money or property, with the intention to pass the same,
or to permit, cause, or procure the same to be uttered or passed, with the
intention to defraud any person, knowing the same to be forged or counter-
feited, or has or keeps in his possession any blank or unfinished note or bank
bill or check made in the form or similitude of any promissory note or bill or
check for payment of money or property, made to be issued by any
incorporated bank or banking company, with intention to fill up and
complete such blank and unfinished note or bill or check, or to permit, or
cause, or procure the same to be filled up and completed in order to utter or
pass the same, or to permit, or cause, or procure the same to be uttered or
passed, to defraud any person, is punishable by imprisonment in the state
prison for not less than one (1) nor more than fourteen (14) years. [I.C.,
18-3605, as added by 1972, ch.

336, 1, p. 844.1
C.L., 7033; C.S., 8413; I.C.A., 17-3705;
S.L. 1969, ch. 206, 1 was repealed by S.L.
in 18-7803.
Analysis
Sentence.
Although some of the documents found in
forgery defendant's possession could not have
been passed as checks without more work, a
rational jury could have determined that de-
fendant intended to continue the process, and
the evidence was sufficient to convict defen-
dant of 14 counts of possession of a forged,
blank, or unfinished check. State v. Zaitseva,
135 Idaho 11, 13 P.3d 338 (2000).
Sentence.
sentencing defendant, who was a transient
passing through Idaho when he committed
the crime, to an indeterminate term not to
exceed three years for possession of forged
check since court considered likelihood of re-
habilitation, the seriousness of the crime and
defendant's prior involvement in similar ac-
tivities. State v. Delin, 102 Idaho 151, 627
P.2d 330 (1981).
Collateral References. Unexplained pos-
session or uttering of forged paper as suffi-
cient evidence of place of forging. 164 A.L.R.
649.
18-3606. Fictitious bills, notes, and checks

Making, passing,
uttering, or publishing.

Every person who makes, passes, utters, or
publishes, with intention to defraud any other person, or who, with the like
intention, attempts to pass, utter or publish, or who has in his possession,
with like intent to utter, pass, or publish, any fictitious bill, note or check,
purporting to be the bill, note, or check, or other instrument in writing for
the payment of money or property of some bank, corporation, copartnership,
or individual, when in fact, there is no such bank, corporation, copartner-
ship, or individual in existence, knowing the bill, note, check, or instrument
in writing to be fictitious, is guilty of forgery and punishable as provided by
section 18-3604. [I.C.,
18-3606, as added by 1972, ch.
336, 1, p. 844.]
C.L., 7034, C.S., 8414; S.L. 1931, ch. 171,
1; I.C.A.,
Cross ref. Unlawful circulation of bills,
checks, tickets, certificates, promissory notes,
or bank paper as money,
18-3618.
in 18-7803.
Analysis
Burden of proof
nonexistence of purported
signator.
Evic >nce.
Insti ^jtions.
Intent.
Sentence.
Burden of Proof
Nonexistence of Pur-
ported Signator.
In the prosecution of an accused for forgery,
the prosecution is not required to prove be-
yond a reasonable doubt the nonexistence of
the person who is supposed or pretended to be
indicated by the name signed on an alleged
forged instrument. State v. Raine, 93 Idaho
862, 477 P.2d 104 (1970).
Since the amendment of 1931 to this section
all of the acts mentioned herein, and in
18-
3601, constitute forgery. State v. Allen, 53
Idaho 737, 27 P.2d 482 (1933).
Crime of forgery is committed by making
and altering with intent to defraud, as well as
by publishing or uttering with intent to de-
fraud, hence if state proves the commission of
either act, conviction for forgery will be sus-
tained. State v. Baldwin, 69 Idaho 459, 208
P.2d 161 (1949).
Uttering a check consists in presenting it
for payment and the act is then done, even
though no money actually has been obtained.
State v. Eubanks, 86 Idaho 32, 383 P.2d 342
(1963).
One who passes a check purporting to be
the check of an existent corporation, signed on
behalf of said corporation with the name of a
nonexistent person is not guilty of forgery.
State v. Bishop, 89 Idaho 416, 405 P.2d 970
(1965).
Evidence.
Evidence of other forgeries is admissible in
a forgery prosecution for the purpose of prov-
ing intent, motive, scienter or guilty knowl-
edge, identity or for the purpose of showing
that the particular crime charged was a part
of a system. State v. Eubanks, 86 Idaho 32,
383 P.2d 342 (1963).
Instructions.
By the trial court's instruction the jury's
deliberation in a forgery action on the other
checks was limited to the specific fields: of
proving "knowledge" by evidence of the acts of
commission of similar offenses only prior to
the date of the alleged offense and of proving
"fraudulent intent" by all evidence, both prior
and subsequent to the date of the alleged
offense. State v. Eubanks, 86 Idaho 32, 383
P.2d 342 (1963).
Intent.
Where specific intent is part of the crime
such as in forgery, intent must be alleged and
proved. State v. Baldwin, 69 Idaho 459, 208
P.2d 161 (1949).
Sentence.
Indeterminate sentence act applied. In re
Setters, 23 Idaho 270, 128 P. 1111 (1913),
overruled to the point of conflict, Spanton v.
Clapp, 78 Idaho 239, 299 P.2d 1103 (1956).
Collateral References. Entrapment to
commit offensejof passing forged instrument.
18 A.L.R. 179; 66 A.L.R. 478; 86 A.L.R. 263.
Presumptions and inferences in criminal
cases from unexplained possession or uttering
of forged paper. 164 A.L.R. 621.
18-3607. Counterfeiting coin or bullion.
Every person who coun-

terfeits any of the species of gold or silver coin current in this state, or any
kind of species of gold dust, gold or silver bullion, or bars, lumps, pieces, or
nuggets, or who sells, passes, or gives in payment such counterfeit coin,
dust, bullion, bars, lumps, pieces, or nuggets, or permits, causes or procures
the same to be sold, uttered or passed, with intention to defraud any person,
knowing the same to be counterfeited, is guilty of counterfeiting. [I.C.,
18-3607, as added by 1972, ch. 336, 1, p. 844.]

comprised Cr. & P. 1864, 78, 88; R.S., R.C.,
& C.L., 7035; C.S., 8415; I.C.A.,
17-
in 18-7803.
Analysis
Extent of debasement.
Simply passing counterfeit gold dust is not
a criminal offense; uttering must be accompa-
nied with knowledge that article is counter-
feit, and must have been uttered with inten-
tion to defraud. People v. Sloper, 1 Idaho 158
(1867).
Crime of uttering or attempting to utter
counterfeit gold dust consists in possession of
counterfeit or spurious gold dust, knowing it
to be such, and passing it or attempting to
pass it with intent to defraud. People v. Page,
1 Idaho 189 (1868).
Extent of Debasement.
No definite amount of proportion or relative
difference in the actual value of genuine gold
dust and that which is counterfeit is required;
it is sufficient that it be debased and that
party uttering it knows this and passes it for
genuine. People v. Page, 1 Idaho 189 (1868).
Counterfeiting, 1 et seq.
20 C.J.S., Counterfeiting, 1 et seq.
160; 66 A.L.R. 478; 86 A.L.R. 263.
"Infamous offense," conspiracy to make
counterfeit coin as, within constitutional or
statutory provision in relation to presentment
or indictment by grand jury. 24 A.L.R. 1008.
imposed by trial court for counterfeiting. 29
A.L.R. 333; 89 A.L.R. 295.
18-3608. Punishment for counterfeiting.

Counterfeiting is pun-
ishable by imprisonment in the state prison for not less than one (1)
nor
more than fourteen (14) years. [I.C.,
18-3608, as added by 1972, ch. 336,
1, p.
844.]
C.L., 7036; C.S., 8416; I.C.A.,
17-3708
18-3609. Possession of counterfeit coin.
Every person who has in

his possession, or receives for any other person, any counterfeit gold or silver
coin of the species current in this state, or any counterfeit gold dust, gold or
silver bullion or bars, lumps, pieces, or nuggets, with the intention to sell,
utter, put off, or pass the same, or permits, causes, or procures the same to
be sold, uttered, or passed, with intention to defraud any person, knowing
the same to be counterfeit, is punishable by imprisonment in the state
prison not less than one (1) nor more than fourteen (14) years. [I.C.,
18-3609, as added by 1972, ch. 336, 1, p. 844.]

comprised Cr. & P. 1864, 79, 89; R.S., R.C., same words as the section prior to its repeal.
& C.L.,
7037; C.S.,
8417; I.C.A.,

17-
in 18-7803.
18-3610. Possession of counterfeiting apparatus.

Every person
who makes, or knowingly has in his possession any die, plate, or any
apparatus, metal, machine, or other thing whatever, made use of in
counterfeiting coin, current in this state, or in counterfeiting gold dust, gold
or silver bars, bullion, lump, pieces or nuggets, or in counterfeiting bank
notes, bank bills, financial transaction cards, cashier's checks, money
orders, travelers checks, or any check, draft or order for the payment of
money upon any bank or depository drawn on any person, firm or corpora-
tion, is punishable by imprisonment in the state prison not less than one (1)
nor more than fourteen (14) years; and all such dies, plates, apparatus,
paper, metal, or machine, intended for the purpose aforesaid, must be
destroyed. [I.C.,
18-3610, as added by 1972, ch.
336, 1, p. 844; am. 1982,
ch. 220, 1, p. 596.]
Compiler's notes. A former section, which Presumption from Possession.
comprised Cr. & P. 1864, 84, 88; R.S., R.C., Knowingly and secretly keeping instru-
& C.L., 7038; C.S., 8418; I.C.A.,

17-
ments adapted and intended for the unlawful
3710 was repealed by S.L. 1971, ch. 143, 5, business of counterfeiting is presumptive ev-
idence of intention to use them for that pur-
p0Se, which presumption defendant is called
up0n to rebut. People v. Page, 1 Idaho 102
(1868)
in 18-7803.
18-3611. Counterfeiting railroad ticket.
Every person who coun-

terfeits, forges, or alters, any ticket, check, order, coupon, receipt for fare, or
pass, issued by any railroad company, or by any lessee or manager thereof,
designed to entitle the holder to ride in the cars of such company, or who
utters, publishes, or puts into circulation, any such counterfeit or altered
ticket, check, or order, coupon, receipt for fare, or pass, with intent to
defraud any such railroad company, or any lessee thereof, or any other
person, is punishable by imprisonment in the state prison, or in the county
jail, not exceeding one (1) year, or by fine not exceeding $1000, or by both
such imprisonment and fine. [I.C.,

18-3611, as added by 1972, ch. 336, 1,
p. 844.]
Compiler's notes. Aformer section, which 1972, and the present section added by S.L.
7039; C.S., 1972, ch. 336, 1 in the same words as the
8419; I.C.A.,
18-3612. Restoring canceled railroad tickets.
Every person who,

for the purpose of restoring to its original appearance and nominal value in
whole or in part, removes, conceals, fills up, or obliterates, the cuts, marks,
punch holes, or other evidence of cancelation, from any ticket, check, order,
coupon, receipt for fare, or pass, issued by any railroad company, or by any
lessee or manager thereof, canceled in whole or in part, with intent to
dispose of by sale or gift, or to circulate the same, or with intent to defraud
the railroad company, or lessee thereof, or any other person, or who, with
like intent to defraud, offers for sale, or in payment of fare on the railroad
of the company, such ticket, check, order, coupon, or pass, knowing the same
to have been so restored, in whole or in part, is punishable by imprisonment
in the county jail not exceeding six (6) months, or by a fine not exceeding
$1000, or by both such imprisonment and fine. [I.C.,

1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which 1972, and the present section added by S.L.
8420; I.C.A.,
1,
18-3613. Simulation of switch and car keys.
It shall be unlawful
for any person by himself or another, without the written order or consent of
such common carrier, to make, simulate, sell or dispose of any key belonging
to or which might be used to open or unlock any switch, lock, car lock, or
locks, used upon or belonging to any switch or car of any kind owned,
controlled or operated by any common carrier in this state. Any person
violating the provisions of this section shall be deemed guilty of a misde-
meanor, and upon conviction thereof shall be punished by a fine of not less
than $100.00 nor more than $300.00, or by imprisonment in the county jail
not less than thirty (30) days nor more than six (6) months. [I.C.,

18-3613,
336, 1, p. 844.]
Compiler's notes. A former section, which repealed by S.L. 1971, ch. 143, 5, effective
comprised S.L. 1893, p. 70, 1, 2; reen. January 1, 1972, and the present section
1899, p. 182, 1, 2; reen. R.C., & C.L., added by S.L. 1972, ch. 336, 1 in the same
7041; C.S., 8421; I.C.A.,
17-3713 was words as the section prior to its repeal.
18-3614. Forging or counterfeiting trade-marks.

Every person
who wilfully forges or counterfeits or procures to be forged or counterfeited,
any trade-mark usually affixed by any person to his goods, with intent to
pass off any goods to which such forged or counterfeited trade-mark is
affixed or intended to be affixed, as the goods of such person, is guilty of a
misdemeanor. [I.C.,
18-3614, as added by 1972, ch. 336, 1, p.
844.]
Compiler's notes. A former section, which I.C.A.,
comprised Cr. & P. 1864, 80; R.S., & R.C., ch. 143, 5, effective January 1, 1972, and
6862; reen. C.L.,
7042; C.S.,
8422; the present section added by S.L. 1972, ch.
336, 1 in the same words as the section not otherwise provided,
18-113.
prior to its repeal. Sec. to sec. ref. This section is referred to
Cross ref. Penalty for misdemeanor when in

18-3617 and 18-7803.
18-3615. Sale of counterfeit goods.

Every person who sells or
keeps for sale any goods upon or to which any counterfeited trade-mark has
been affixed, intending to represent such goods as the genuine goods of
another, knowing the same to be counterfeited, is guilty of a misdemeanor.
[I.C.,
18-3615, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which 336, 1 in the same words as the section
comprised Cr. & P. 1864, 81; R.S., & R.C., prior to its repeal.
6863; reen. C.L.,
7043; C.S.,

8423; Cross ref. Penalty for misdemeanor when
I.C.A.,
17-3715 was repealed by S.L. 1971, not otherwise provided,
18-113.
ch. 143, 5, effective January 1, 1972, and Sec. to sec. ref. This section is referred to
the present section added by S.L. 1972, ch. in

18-3617 and 18-7803.
18-3616. Forged and counterfeit trade-marks defined.

The
phrases "forged trade-mark" and "counterfeited trade-marks," or their
equivalents, as used in this chapter include every alteration or imitation of
any trade-mark so resembling the original as to be likely to deceive. [I.C.,
18-3616, as added by 1972, ch. 336, 1,

p. 844.]
Compiler's notes. A former section, which January 1, 1972, and the present section
comprised R.S., 6864; reen. R.C., & C.L., added by S.L. 1972, ch. 336, 1 in the same
7044; C.S., 8424; I.C.A.,

17-3716 was words as the section prior to its repeal,
18-3617. Trademark defined.

The phrase "trademark" as used in
the three (3) preceding sections, includes every description of word, letter,
device, emblem, stamp, imprint, brand, printed ticket, label or wrapper
usually affixed by any mechanic, manufacturer, druggist, merchant or
tradesman, to denote any goods to be goods imported, manufactured,
produced, compounded or sold by him, other than any name, word, or
expression generally denoting any goods to be of some particular class or
description. [I.C.,

18-3617, as added by 1972, ch.
336, 1, p. 844.]
comprised R.S., 6865; reen. R.C. & C.L., added by S.L. 1972, ch. 336, 1 in the same
7044a; C.S., 8425; I.C.A.,
17-3717 was words as the section prior to its repeal,
18-3618. Circulating illegal money. [Repealed.]
Compiler's notes. This section, which C.S., 8588; I.C.A.,
comprised I.C.,
18-3618, as added by 1972, by S.L. 1971, ch. 143, 5, effective January
1,
ch. 336, 1, p. 844, was repealed by S.L.
2004, ch.
49,
2.
A former

18-3618, which comprised Cr. &
P. 1864, 149; R.S., R.C, & C.L., 7209;
18-3619. Slugs or counterfeited coins
Penalty for use in vend-

ing machines or coin-boxes.
Any person who, by means of any token,

slug, false or counterfeited coin, or by any other means, method, trick or
343 FRAUDULENT CONVEYANCES OR REMOVALS 18-3620
device whatsoever not lawfully authorized by the owner, lessee, or licensee
of any vending machine, coin-box telephone or other receptacle designed to
receive or be operated by lawful coin of the United States of America in
furtherance of or connection with the sale, use or enjoyment of property or
service, knowingly shall operate or cause to be operated, or shall attempt to
operate or attempt to cause to be operated, any vending machine, coin-box
telephone or other receptacle designed to receive or be operated by lawful
coin of the United States ofAmerica, or whoever shall take, obtain, accept or
receive, from or by means of any such machine, coin-box telephone or other
receptacle, any article of value or service or the use or enjoyment of any
telephone, telegraph or other facility or service, without depositing in,
delivering to and payment into such machine, coin-box telephone or recep-
tacle the amount of lawful coin of the United States of America required
therefor by the owner, lessee or licensee of such machine, coin-box telephone
or other receptacle, shall be fined not more than two hundred dollars
($200.00), or imprisoned not more than sixty (60) days, or both. [I.C.,
18-3619, as added by 1972, ch. 336, 1, p. 844.]

comprised S.L. 1939, ch. 68, 1, p. 120 was added by S.L. 1972, ch. 336, 1 in the same
repealed by S.L. 1971, ch. 143, 5, effective words as the section prior to its repeal.
18-3620. Slugs or counterfeited coins
Penalty for manufacture

or sale.
Any person who knowingly or having cause to believe that the

same is intended for fraudulent or unlawful use on the part of the purchaser,
donee or user thereof shall manufacture for sale, sell or give away any token,
slug, blank, disc, tag, planchet, false, mutilated, sweated or counterfeited
coin or any device or substance whatsoever intended or calculated to be
placed, deposited or used or which may be so placed, deposited or used in
any vending machine, coin-box telephone or other receptacle designed to
receive or be operated by lawful coin of the United States of America in
furtherance or connection with the sale, use or enjoyment of the property or
service or the use or enjoyment of any telephone, telegraph or other facilities
or service, shall be fined not more than two hundred dollars ($200.00), or
imprisoned not more than sixty (60) days, or both. [I.C.,
18-3620, as added
by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Collateral References. Vending ma-
68, 2, p. 120 was chines, validity and construction of statutes
repealed by S.L. 1971, ch. 143, 5, effective prohibiting or regulating. Ill A.L.R. 755; 151
A.L.R. 1195.
CHAPTER 37
FRAUDULENT CONVEYANCES OR REMOVALS
SECTION.
18-3701
18-3701 18-3704. Fraudulent conveyances or removals. [Re-
pealed.]
Compiler's notes. These sections, which by 1972, ch. 336, 1, p. 844 were repealed by
comprised
18-3701
18-3704, as added S.L. 1981, ch. 319, 2.
18-3705. Removal or sale of mortgaged chattels. [Repealed.]
Compiler's notes. This section, compris- garding removal or sale of mortgaged chattels
ing S.L. 1885, p. 74, 13; R.S., R.C. & C.L., was repealed by S.L. 1967, ch. 161, 10-102,
7100; C.S., 8479; I.C.A.,
17-3907 re- effective at midnight on December 31, 1967.
18-3706. Removal or sale of property subject to security agree-
ment. [Repealed.]
comprised I.C., 18-3706, as added by 1972, ch. 319,
2.
CHAPTER 38
GAMING
18-3801. Gambling defined.
18-3802. Gambling prohibited.
18-3803
18-3808. Officers to enforce law.
18-3809. Book making and pool selling.
18-3810. Slot machines
Possession unlaw-
ful
Exception.
18-3801. Gambling defined.
"Gambling" means risking any money,

credit, deposit or other thing of value for gain contingent in whole or in part
upon lot, chance, the operation of a gambling device or the happening or
outcome of an event, including a sporting event, the operation of casino
gambling including, but not limited to, blackjack, craps, roulette, poker,
bacarrat [baccarat] or keno, but does not include:
(1) Bona fide contests of skill, speed, strength or endurance in which
awards are made only to entrants or the owners of entrants; or
(2) Bona fide business transactions which are valid under the law of
contracts; or
(3) Games that award only additional play; or
(4) Merchant promotional contests and drawings conducted incidentally
to bona fide nongaming business operations, if prizes are awarded without
consideration being charged to participants; or
(5) Other acts or transactions now or hereafter expressly authorized by
law. [I.C.,

18-3801, as added by 1992, (1st Ex. Sess.), ch.
2, 3, p. 4.]
comprised S.L. 1972, ch. 336, 1, p. 844; am.
1972, ch. 381, 11, p. 1102; am. 1991, ch. 230,
1, p. 548 was repealed by S.L. 1992, ch.
2,
2, effective August 15, 1992.
S.L. 1897, p. 53, 1; S.L. 1899, p. 389, 1;
reen. R.C, C.L., 6850; C.S., 8307; S.L.
1921, ch. 116, 1, p. 292; I.C.A., 17-2301;
S.L. 1945, ch. 112, 3, p. 171; 1947, ch. 29,
4, p. 28; 1947, ch. 151, 7, p. 171; S.L.
1947, ch. 239, 9, p. 592; S.L. 1953, ch. 62,
2, p. 82 was repealed by S.L. 1971, ch. 143,
The bracketed word "baccarat" near the end
of the introductory paragraph was inserted by
the compiler.
S.L. 1992, (1st Ex. Sess.), Ch.
2, 5, read as
follows:
"An emergency existing therefor, which
345 GAMING 18-3801
emergency is hereby declared to exist, Sec-
tions 2, 3 and 4 of this act shall be in full force
and effect on and after August 15, 1992.
Section 1 of this act shall be in full force and
effect on and after the date of adoption of
House Joint Resolution No. 4, First Extraor-
dinary Session, Fifty-first Idaho Legislature,
amending Article III, Section 20 of the Con-
stitution of the State of Idaho by the elector-
ate of the State of Idaho at the 1992 general
election as required by law."
Cross ref. Gambling prohibited

excep-
tions, Const., Art.
3, 20.
Bingo and raffles,

67-7701 et seq.
in

67-7447, 67-7703 and 67-7706.

18-3810
and 18-7803.
Analysis
Application.
Devices prohibited.
Prohibited on reservations.
Application.
Regarding whether playing video machines
constitutes a lottery as defined by this section,
all that is required is the risking of any
money, credit, deposit, or other thing of value;
risking credits worth five cents each fits
within the statute. MDS Invs., LLC v. State,
138 Idaho 456, 65 P.3d 197 (2003).
Devices Prohibited.
Trial court did not err in concluding that a
corporation's video machines constituted ille-
gal gambling devices; the player would be
gambling (risking something of value for the
chance of winning a prize) regardless of
whether the player initiated play by paying a
dollar or presenting a voucher. MDS Invs.,
LLC v. State, 138 Idaho 456, 65 P.3d 197
(2003).
Although a corporation argued that its
video machines fit within an exception pro-
vided by subsection (4) of this section for
merchant promotional contests and drawings
conducted incidentally to bona fide
nongaming business operations, the ma-
chines did not fit within this exception be-
cause prizes were awarded with consideration
being charged to participants. MDS Invs.,
LLC v. State, 138 Idaho 456, 65 P.3d 197
(2003).
Prohibited on Reservations.
Neither the language of Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.), the
legislative history and statement of purpose
of the Act, nor the later federal cases inter-
preting the Act, can be read to allow tribes to
conduct casino-type gaming on reservations
in Idaho, when the laws and public policy of
Idaho are so clearly against such gaming.
Coeur D'Alene Tribe v. State, 842 F. Supp.
1268 (D. Idaho 1994), aff'd, 51 R3d 876, cert,
denied, 133 U.S. 209, 116 S. Ct. 305, 133 L.
Ed. 2d 209 (1995).
Analysis
Application.
Devices prohibited.
Mandamus.
Money seized.
Nuisance.
Pinball machines.
Punishment.
Application.
This general law prohibiting gambling re-
peals authority of Boise City under its charter
to license gambling. In re Ridenbaugh, 5
Idaho 371, 49 P. 12 (1897).
Payment of taxes or licensing of a gambling
machine or device, furnishes no justification
for its operation in violation of the anti-gam-
bling laws. Pepple v. Headrick, 64 Idaho 132,
128 P.2d 757 (1942).
Devices Prohibited.
In construing a statute making it a misde-
meanor to operate certain enumerated de-
vices or "any other device" employed in gam-
bling, the ejusdem generis doctrine was
inapplicable, and the prohibition of the stat-
ute was not limited to devices similar to those
enumerated. Pepple v. Headrick, 64 Idaho
132, 128 P.2d 757 (1942).
Mandamus.
District court acted in excess of its jurisdic-
tion in issuing an alternate writ of mandate to
compel a probate judge to hear, consider and
pass on a demurrer to complaint charging
commission of indictable misdemeanor, gam-
bling, since the legislature had made no pro-
vision for interposing a demurrer to a com-
plaint in such a preliminary examination.
Quinlan v. Glennon, 68 Idaho 282, 193 P. 2d
403 (1948).
Money Seized.
The court may not direct the return of
money seized in a raid on a gambling place.
State v. McNichols, 62 Idaho 616, 115 P.2d 104
(1941).
Nuisance.
Machines, instruments, and devices de-
signed and intended for carrying on gambling
operations are nuisances. Mullen & Co. v.
Moseley, 13 Idaho 457, 90 P. 986, 12 L.R.A.
(n.s.) 394, 121 Am. St. R. 277, 13 Ann. Cas.
450 (1907).
Pinball Machines.
Pinball machines which automatically re-
turned to the player a specific number of
nickels if he were successful in lodging the
ball in the proper hole, were gambling devices
and their seizure and confiscation would not
be restrained. Pepple v. Headrick, 64 Idaho
132, 128 P.2d 757 (1942).
Where pinball machine was so constructed
that in the event a certain knob was hit the
player would receive additional play, the ad-
ditional play was a representative of value
within purview of statute making the ma-
chine subject to seizure. Thamart v. Moline,
66 Idaho 110, 156 P.2d 187 (1945).
The right to additional play on a pinball
machine clearly falls within the meaning of
the word "credit" and is certainly a right of
"value" within the meaning of the statute.
Thamart v. Moline, 66 Idaho 110, 156 P.2d 187
(1945).
An "add-a-ball" type of pinball machine
which, upon attainment of a certain score,
automatically awarded the player an addi-
tional play, but gave no money or free games,
was not violative of the former section. State
v. Fitzpatrick, 89 Idaho 568, 407 P.2d 309
(1965).
Punishment.
This act declares violations thereof to con-
stitute a misdemeanor and fixes the mini-
mum penalty, but prescribes no maximum,
consequently 18-113, prescribing penalty
for misdemeanors generally, governs as to the
maximum penalty. State v. Mulkey, 6 Idaho
617, 59 P. 17 (1899); In re Rowland, 8 Idaho
595, 70 P. 610 (1902).
One convicted of gambling may be sen-
tenced to pay both a fine and to undergo
imprisonment. In re Burgess, 12 Idaho 143,
84 P. 1959 (1906).
Gambling,
1 et seq.
38 C.J.S., Gaming, 1 et seq.
Telegraph ticker service, obligation to fur-
nish for gambling purposes. 1 A.L.R. 1295; 45
A.L.R. 1379.
Witness, asking as to pursuing occupation
of gambling for purposes of impeachment. 1
A.L.R. 1402.
Married woman's criminal responsibility
for keeping gaming house. 4 A.L.R. 282; 71
A.L.R. 1116.
Disbarment or suspension of attorney for
gambling. 9 A.L.R. 203.
Sentence or judgment for gambling, neces-
sity and sufficiency of recital of, or reference
to, the offense. 14 A.L.R. 1000.
Vagrancy, gambling as. 14 A.L.R. 1491.
Connection with place where gaming is
carried on which will render one guilty as
keeper thereof. 15 A.L.R. 1202.
A.L.R. 295.
Each bet or play at gaming on a single
occasion, as constituting a distinct offense. 35
A.L.R. 89.
Slot and vending machines as gambling
devices. 38 A.L.R. 73; 81 A.L.R. 177; 135
A.L.R. 138.
Racing as game within statute. 45 A.L.R.
998.
Constitutionality of statute forbidding or
regulating dissemination of betting odds or
other gambling information. 47 A.L.R. 1135.
Constitutionality of statute making one act
prima facie evidence of another in prosecution
for gambling. 51 A.L.R. 1158; 86 A.L.R. 179;
162 A.L.R. 495.
Pari-mutuel and similar betting methods
on race as game of chance or gambling. 52
A.L.R. 74.
Telephone company's liability respecting
communications as to gambling transaction.
62 A.L.R. 182.
Money in gambling machine or other recep-
tacle, used in connection with gambling,
seized by public authorities, rights and rem-
edies in respect of. 79 A.L.R. 1007.
Constitutionality of statute which affirma-
tively permits pari-mutuel method of wager-
ing at race tracks. 85 A.L.R. 622.
Constitutionality of statute predicating
criminality upon reputation of premises being
used for gambling. 92 A.L.R. 1232.
Bequest of "money" as including money put
up on bets. 93 A.L.R. 543; 173 A.L.R. 656.
Statutes permitting specified forms of bet-
ting, construction and application of. 117
A.L.R. 828.
Prohibitory statute or ordinance, slot ma-
chine within, as limited to gambling device.
132 A.L.R. 1004.
What are games of chance, games of skill,
and mixed games of chance and skill. 135
A.L.R. 104.
Racing as game of chance. 135 A.L.R. 183.
Coin-operated or slot machine which may
be played for amusement only or which con-
fines winner's reward to privilege of addi-
tional play or other form of amusement, as
within antigambling statutes. 148 A.L.R. 879;
89 A.L.R.2d 815.
Possession of gambling device as offense
not requiring showing that device was used
for gambling or kept for gambling purposes.
162 A.L.R. 1188.
Winner's rights and remedies in respect of
pari-mutuel and similar legalized betting sys-
tems. 165 A.L.R. 838.
347 GAMING 18-3803
Forfeiture of money used in connection with
gambling or lottery, or seized by officers in
connection with an arrest or search on pre-
mises or if such activities took place. 19
A.L.R.2d 1228.
Entrapment to commit offense with respect
to gambling or lotteries. 31 A.L.R.2d 1212.
Admissibility, in prosecution for gambling
or gaming offense, of evidence of other acts of
gambling. 64 A.L.R.2d 823.
Criminal conspiracies as to gambling. 91
A.L.R.2d 1148.
Bridge as within gambling laws. 97
A.L.R.2d 1420.
Lawfulness of seizure of property used in
violation of law as prerequisite to forfeiture
action or proceeding. 8 A.L.R.3d 473.
Constitutionality of statutes providing for
destruction of gambling devices. 14 A.L.R.3d
366.
Promotion schemes of retail stores as crim-
inal offense under antigambling laws. 29
A.L.R.3d 888.
Validity and construction of statute ex-
empting gambling operations carried on by
religious, charitable, or other nonprofit orga-
nizations from general prohibitions against
gambling. 42 A.L.R.3d 663.
18-3802. Gambling prohibited.
(1) Aperson is guilty of gambling if

he:
(a) Participates in gambling; or
(b) Knowingly permits any gambling to be played, conducted or dealt
upon or in any real or personal property owned, rented, or under the
control of the actor, whether in whole or in part.
(2) Gambling is a misdemeanor. [I.C.,

18-3802, as added by 1992, (1st
Ex. Sess.), ch.
2, 4, p. 4.]
repealed by S.L. 1992, (1st Ex. Sess.), ch. 2,
2, effective August 15, 1992.
S.L. 1897, p. 53, 2; S.L. 1899, p. 389, 2;
reen. R.C., & C.L., 6851; C.S., 8308:
I.C.A.,
ch. 143, 5, effective January 1, 1972.
Section 5 of S.L. 1992, (1st Ex. Sess.), ch. 2,
5 declared an emergency and provided that
sections 2, 3, and 4 of the act should take
effect on and after August 15, 1992. See also
Compiler's note to
18-3801.
in 18-7803.
Analysis
Effect on common law.
Money.
Slot machines.
Effect on Common Law.
Common law relating to offense of keeping
a gaming house was superseded by act of
January 13, 1871, specifying certain inhibited
games. People v. Goldman, 1 Idaho 714
(1878).
Money.
Money found in gambling devices seized in
a raid on alleged gambling premises and used
as evidence, was an integral part of the de-
vices, and was to be paid to the state trea-
surer for benefit of the permanent school
fund, the owner of the device having no claim
to such money. State v. McNichols, 62 Idaho
616, 115 P.2d 104 (1941).
Slot Machines.
Replevin will not lie to recover gambling
device known as "slot machine." Mullen & Co.
v. Moseley, 13 Idaho 457, 90 P. 986, 12 L.R.A.
(n.s.) 394, 121 Am. St. R. 277, 13 Ann. Cas.
450 (1907).
Slot machines, like other gambling devices,
are not "property" but rather, "contraband,"
subject to seizure and summary destruction.
State v. McNichols, 62 Idaho 616, 115 P.2d 104
(1941).
Collateral References. Connection with
place where gaming is carried on which will
render one guilty as keeper thereof. 15 A.L.R.
1202.
18-3803. Cheating at games. [Repealed.]
comprised I.C.,
1972, ch. 336, 1 was repealed by S.L. 1972,
Another 18-3803, which comprised S.L. 17-2303 was repealed by S.L. 1971, ch. 143,
1897, p. 53, 3; S.L. 1899, p. 389, 3; reen. 5, effective January 1, 1972.
R.C., & C.L., 6852; C.S., 8309; I.C.A.,
18-3804
18-3807. Judge to issue warrant
Execution
Refusal
to testify
Self-incrimination. [Repealed.]
Compiler's notes. The following sections Another former 18-3805, which corn-
were repealed by S.L. 1994, ch. 167, 1, prised S.L. 1897, p. 53, 5; am. S.L. 1899, p.
effective July 1, 1994:
389, 5; reen. R.C., & C.L., 6854; C.S.,
18-3804, which comprised I.C.,

18-3804,
8311; I.C.A.,
as added by 1972, ch. 336, 1, p. 844; am.
1,
1986, ch.
8, 1, p.
48.
1972.

18-3805,
as added by 1972, ch. 336, 1, p.
844.
prised S L. i897)
p
. 53> 6; S.L. 1899, p. 389,

18-3806,
6;
reen R c & c L 6855; c s 8312;
as added by 1972, ch. 336,
1 p.
844.
lCA

17
_
2306 was repealed by S.L. 1971,
18-3807 which comprised I.C., 18-3807,
ch 143

5 effective Ja j 19?2
as added by 1972, ch. 336 1, p.
844^
^^ former ^^ whkh com
.
Another former 18-3804, which com- .
_, T 10rvn M s n o t no
jot lonn
r, o
A a t -i onn oon
prised S.L. 1897, p. 53, 7;
am. S.L., 1899, p.
prised S.L. 1897, p. 53, 4; S.L. 1899, p. 389,

'*
r
'*
'
'
'
4; reen. R.C., & C.L.,
6853; C.S.,
8310;
f
9
>\
7
t
!?f
*%'
*
-L
''

6856
j ?f
'
I.C.A.,
17-2304; S.L. 1947, ch. 151, 8, p.
|
^l**'
^*
1
^
01
re
?
ealed b
/
359; S.L. 1953, ch. 62, 3, p. 82 was repealed
?
QV
' '
' ^
'
1,
1972-
1972.
18-3808. Officers to enforce law.

Every prosecuting or county
attorney, sheriff, constable or police officer, must inform against and
diligently prosecute persons whom they have reasonable cause to believe
offenders against the provisions of this chapter, and every such officer
refusing or neglecting so to do is guilty of a misdemeanor. [I.C.,

18-3808,
as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1897, p. 53, 8; am. S.L. section prior to its repeal.
1899, p. 389, 8; reen. R.C., & C.L., 6857; Cross ref. Penalty for misdemeanor when
C.S., 8314; I.C.A.,
17-2308 was repealed not otherwise provided,
18-113.
by S.L. 1971, ch. 143, 5, effective January 1, Cited in: State v. Mulkey, 6 Idaho 617, 59
1972, and the present section added by S.L. P. 17 (1899).
18-3809. Book making and pool selling.
Any person who for gain,

hire or profit engages in pool selling or book making at any time or place
within this state; or any person who keeps or occupies any room, shed,
tenement, tent, booth or building, float or vessel, or any part thereof, or who
occupies any place or stand of any kind, upon any public or private grounds
within this state, with books, papers, paraphernalia, or mechanical device,
for the purpose of engaging in pool selling or book making, or recording or
registering bets or wagers; or who sells pools or makes books upon the result
of any trial or contest of skill, speed or power of endurance of man or beast
for gain, hire or reward; or any person who, for gain, hire or reward,
receives, registers, records and forwards to any other place, within or
without this state, any money, consideration or thing of value for the
purpose of having it there bet or wagered by or for any person, who at such
place sells pools or makes books upon any such event, or any person who,
being the owner, lessee or occupant of any such room, shed, tenement, tent,
349 GAMING
18-3810
booth or building, float or vessel, or part thereof, or any grounds within this
state, knowingly and wilfully permits the same to be occupied and used for
any of the purposes aforesaid, unless unable to legally prevent the same; or
any person who aids, assists or abets in any manner in any of said acts
which are hereby forbidden, is guilty of a misdemeanor, and upon conviction
is punishable by a fine of not more than $300 or by imprisonment in the
county jail for a period of not more than six (6) months or by both such fine
and imprisonment. [I.C.,

18-3809, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1913, ch. 76, 1, p. 327; reen.
C.L., 6858; C.S., 8315; I.C.A.,

17-2309
in 18-7803.
Cited in
.
State v Bird> 29 Idaho 47, 156 P.
-q4q
Qgig)
18-3810. Slot machines

Possession unlawful

Exception.

(1) Except as otherwise provided in this section, it shall be a misdemeanor
and punishable as provided in section 18-3801, Idaho Code, for any person
to use, possess, operate, keep, sell, or maintain for use or operation or
otherwise, anywhere within the state of Idaho, any slot machine of any sort
or kind whatsoever.
(2) The provisions of section 18-3804, Idaho Code, shall not apply to
antique slot machines. For the purpose of this section, an antique slot
machine is a slot machine manufactured prior to 1950, the operation of
which is exclusively mechanical in nature and is not aided in whole or in
part by any electronic means.
(3)
Antique slot machines may be sold, possessed or located for purposes
of display only and not for operation.
(4) An antique slt machine may not be operated for any purpose. [I.C.,
18-3810, as added by 1986, ch.

8, 2, p. 48.]
Compiler's notes. Section 18-3804, re- to receive something of value, with the out-
ferred to in subsection (2), was repealed. come being shown by spinning reels or by a
Section 1 of S.L. 1986, ch. 8 was repealed. video or other representation of reels. MDS
Invs., LLC v. State, 138 Idaho 456, 65 P.3d
Analysis
197 (2003).
Applicability.
Constitutionality.
Constitutionality.
The definition of "slot machine" is suffi-
Illegal devices.
ciently definite so that people of common
. ..
i.|..
intelligence do not have to guess at the mean-
pp
lcabi lty.

therefore, this section is not unconstitu-
Deyice is still a slot machine even though
tionaU e MDS ^ LLC v State> 13g
the player uses a token, bill, or credit account
Idaho 456 65 P 3d 197 (2003)
to place a bet, and the machine pays winnings
by dispensing a token or receipt or by adding Illegal Devices.
credits to the player's account. MDS Invs., Trial court did not err in concluding that a
LLC v. State, 138 Idaho 456, 65 P.3d 197 corporation's video machines constituted ille-
(2003). gal gambling devices; the player would be
Considering the technological changes, a gambling (risking something of value for the
slot machine is a gambling device which, upon chance of winning a prize) regardless of
payment by a player of required consideration whether the player initiated play by paying a
in any form, may be played or operated, and dollar or presenting a voucher. MDS Invs.,
which, upon being played or operated, may, LLC v. State, 138 Idaho 456, 65 P3d 197
solely by chance, deliver or entitle the player (2003).
CHAPTER 39
HIGHWAYS AND BRIDGES
SECTION. SECTION.
18-3901
18-3904. [Repealed.] way

Removal or transport
18-3905. Transportation of hazardous waste. illegal.
18-3906. Placing debris on highways. 18-3912. Prosecution of violators

Duty of
18-3907. Obstruction of highways. transportation department.
18-3908. Flooding highways. 18-3913. Wild flowers protected
Amended
18-3909. [Repealed.] list

Duty of department of
18-3910. Evasion of toll. fish and game.
18-3911. Wild flowers or shrubs along high- 18-3914. Violation a misdemeanor.
18-3901. Highway or bridge

Punishment for injuring. [Re-
pealed.]
comprised I.C.,
18-3901, as added by 1972, ch. 319, 1.
18-3902. Toll house or gate
Injuring, a misdemeanor. [Repealed.]

Compiler's notes. Former 18-3902, prised R.S., R.C., & C.L.,

7134; C.S.,
1972, ch. 336, 1, p. 844, was repealed by S.L. 1971, ch. 143, 5, effective January
1,
1972.
18-3903. Milestones and guideposts

Injuring, a misdemeanor.
[Repealed.]
Compiler's notes. This section, which 1885, p. 277, 29; R.S., R.C., & C.L., 7135;
comprised I.C., 18-3903, as added by 1972, C.S., 8519; I.C.A., 17-4109, was repealed
ch. 336, 1, p. 844 was repealed by S.L. 1981, by S.L. 1971, ch. 143, 5, effective January 1,
ch. 319,
1.
1972.
Another former

18-3904. Structures, landscaping or beautificatiou appurtenant to
state highways

Injuring a misdemeanor

Civil
liability. [Repealed.]
Compiler's notes. This section, which Another former 18-3904, which corn-
comprised I.C., 18-3904, as added by 1972, prised 1937, ch. 184, 1, p. 308, was repealed
ch. 336, 1, p. 844; am. 1974, ch. 12, 85, p.
by S.L. 1971, ch. 143, 5, effective January 1,
61, was repealed by S.L. 1981, ch. 319, 1. 1972.
18-3905. Transportation of hazardous waste.
(1) Whenever haz-

ardous waste, as denned in section 39-4403, Idaho Code, is being trans-
ported on highways or roads of this state, it shall be transported in a manner
which will not endanger the health, welfare or safety of the citizens of the
state of Idaho and it shall be transported in compliance with the laws of the
state of Idaho and rules and regulations promulgated thereto.
(2) Any person who transports hazardous waste or any generator of
hazardous waste or other person who causes hazardous waste to be
transported on highways or roads of this state in a manner which will
35
1
HIGHWAYS AND BRIDGES 18-3906
endanger the health, welfare or safety of the citizens of the state of Idaho,
or who transports or causes hazardous waste to be transported on highways
or roads of this state in a manner which is not in compliance with the laws
of the state of Idaho and any rules and regulations promulgated pursuant
thereto shall be guilty of a misdemeanor and shall be subject to a fine of not
more than ten thousand dollars ($10,000), imprisonment for a period of not
more than six (6) months, or by both such fine and imprisonment. This
penalty shall be in addition to any other civil or criminal penalties which
may be provided by law. [I.C.,

18-3905, as added by 1984, ch.
205, 13, p.
502.1
Compiler's notes. Former 18-3905, Section 12 of S.L. 1984, ch. 205 is compiled
which comprised I.C., 18-3905, as added by as
67-2918.
1981, ch. 319,
1.
Another former

18-3905, which com-
Cross ref< Penalty for misdemeanor when
prised 1937, ch. 220, 1, p. 395, was repealed
18-113.
1972.
18-3906. Placing debris on highways.

(1) If any person shall
wilfully or negligently throw from any vehicle, place, deposit or permit to be
deposited upon or alongside of any highway, street, alley or easement used
by the public for public travel, any debris, paper, litter, glass bottle, glass,
nails, tacks, hoops, cans, barbed wire, boards, trash or garbage, lighted
material, or other waste substance, such persons shall, upon conviction
thereof, be punished by a fine not exceeding three hundred dollars ($300) or
by imprisonment in the county jail not exceeding ten (10) days. For the
purposes of this section, the terms "highway," "street," "alley" or "easement"
shall be construed to include the entire right of way of such highway, street,
alley or easement. The Idaho transportation department is directed to post
along state highways, at convenient and appropriate places, notices of the
context of said law.
(2) Notwithstanding the provisions of section 19-4705, Idaho Code, the
court may order that fifty dollars ($50.00) of the fine imposed under the
provisions of this section be paid by the defendant to the person or persons,
other than the officer making the arrest, who, in the judgment of the court,
provided information that led directly to the arrest and conviction of the
defendant. [I.C.,

18-3906, as added by 1972, ch. 336, 1, p. 844; am. 1974,
ch.
12, 86, p. 61; am. 1986, ch.
298, 1, p. 747.]
Compiler's notes. Aformer section, which Section 85 of S.L. 1974, ch. 12 was codified
comprised S.L. 1911, ch. 116, 1, p. 374; reen. as
18-3904. Section 18-3904 was repealed
C.L., 7135a; C.S., 8520; I.C.A.,

17- in 1981. Present version of section 84 of S.L.
4110; am. S.L. 1953, ch. 37, 1, p. 56; am. 1974, ch. 12 is compiled as
49-1315. Section
S.L. 1957, ch. 39, 1, p. 73, was repealed by 87 of S.L. 1974, ch. 12 is compiled as
18-
3911.
1972, and the present section added by S.L. Cross ref. Placing debris on public or pri-
1972, ch. 336, 1 restored the subject matter vate property, misdemeanor,
18-7031.
contained in the section as it existed prior to Sec. to sec. ref. This section is referred to
its repeal. in
40-510.
18-3907. Obstruction of highways.

Any person who obstructs,
injures or damages any public road, street or highway, either by placing
obstruction therein or by digging in, deepening or deviating the water of any
stream, or by placing any obstruction in any ditch or stream within or along
any public road, street or highway, or by placing or constructing any
obstruction, ditch or embankments upon his own or other lands, so as to
make or cause any water to flow upon or impair any public road, street or
highway, or rides or drives upon and along the sidewalk of any road, street
or highway, whenever such sidewalk has been graded or graveled, located or
designated by any order of the board of commissioners or city council, or
prepared in any other manner dedicating and designating the same for and
to that particular use and purpose, either by the property owner or by the
public, or in any other manner injures or obstructs any public road, street or
highway, is guilty of a misdemeanor. [I.C.,

18-3907, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which of the jury to the effect that appellant knew or
comprised 1885, p. 162, 37; R.S., R.C., & should have known that the obstruction com-
C.L., 7138; C.S., 8522; I.C.A.,
17-4111, plained of was placed in a public highway, his
was repealed by S.L. 1971, ch. 143, 5, act wilfully and intentionally done cannot be
excused because he believed, if he did, that
the road was a private one. State v. Nesbitt,
79 Idaho 1, 310 P.2d 787 (1957).

18-113.
Intent.
Analysis
Wicked, wilful or criminal intent to violate
the statute under which appellant was pros-
Evidence,
ecuted for blocking a public road is not an
Intent
essential ingredient of the crime. State v.
Road by prescription.
Nesbitt, 79 Idaho
1, 310 P.2d 787 (1957).
Evidence. Road by Prescription.
A map prepared by the county surveyor Where landowner fences his land and
showing the roads and their classification in leaves a tract fifty feet wide outside of his
Gem County and the general geographical fence for a public road and public travels such
location of the road in question while not road for five years or more, public has ac-
recorded as a county road map of Gem County quired a prescriptive right thereto and owner
was properly admitted in evidence to estab- may not obstruct said road. State v. Berg, 28
lish the road which was obstructed by appel- Idaho 724, 155 P. 968 (1916).
lant as a prescriptive public road. State v. Collateral References. 39 Am. Jur. 2d,
Nesbitt, 79 Idaho 1, 310 P.2d 787 (1957). Highways, Streets and Bridges, 337 et seq.
Where the testimony sustained the finding 40 C.J.S., Highways,
222
231, 252.
18-3908. Flooding highways.
Any person who runs water either by

flooding or sprinkler irrigation across any public highway, road or street,
without first constructing a good and sufficient ditch or ditches to convey the
same, or who fails to bridge such ditch or ditches, or to keep such bridge or
ditches in good repair, or to ensure that the flow from the sprinkler does not
flood the public highway, road or street and all persons, companies or
corporations who suffer any water used by them for the purpose of
irrigation, or any other purposes, to flow into or upon any public highway,
road or street, in any other manner than that authorized by law, are guilty
of an infraction on the first offense, and shall be guilty of a misdemeanor for
each offense thereafter per calendar year, and upon conviction thereof must
be fined in any sum not less than one dollar ($1.00) nor more than fifty
353 HIGHWAYS AND BRIDGES 18-3911
dollars ($50.00), together with the costs of suit, and for a second offense,
double said fine and costs; and it is hereby made the duty of all road
supervisors, constables and marshals, to make complaint before the proper
court, for violations of this section, whenever notified or having knowledge
thereof. A person may not be charged under the provisions of this chapter if
the flooding from a sprinkler or other water conveyance system is a result of
mechanical failure, wind or other climatic condition, or other circumstances
outside of the control of the person. [I.C.,

18-3908, as added by 1972, ch.
336, 1, p. 844; am. 2001, ch. 289, 1, p. 1026.]
comprised 1885, p. 162, 42; R.S., R.C., & section prior to its repeal.
C.L., 7139; C.S., 8523; am. 1931, ch. 91, Section 2 of S.L. 2001, ch. 289 is compiled
1, p. 154; I.C.A., 17-4112, was repealed by as
18-3914.
1,
Cited in: Lewiston v. Booth, 3 Idaho 692,
1972, and the present section added by S.L. 34 R 809 (1893).
18-3909. Racing on highways. [Repealed.]
Compiler's notes. This section, which Another former
comprised I.C.,
18-3909, as added by 1972, R.S., R.C., & C.L.,
6928; C.S., 8354;
ch. 336, 1, p. 844, effective April 1, 1972 was I.C.A.,
17-2712, was repealed by S.L. 1971,
April 1, 1972.
18-3910. Evasion of toll.
Every person not exempt from paying tolls

who crosses on any ferry or toll bridge, or passes through any toll gate,
lawfully kept, without paying the toll therefor and with intent to avoid such
payment is punishable by fine not exceeding $20.00. [I.C.,
18-3910, as
added by 1972, ch. 336, 1, p. 844.1
8347; I.C.A.,

18-3911. Wild flowers or shrubs along highway

Removal or
transport illegal.
(1) It is the duty of all citizens of this state to protect

the wild flowers of this state referred to in this section from needless
destruction and waste.
(2) It shall be unlawful for any person in this state to wilfully and
negligently cut, dig up, trim, pick, or remove, any plant, flower, shrub, bush,
fruit or other vegetation growing upon the right of way of any public
highway within this state.
(3) It shall be unlawful for any person to export from this state, or to sell
or offer for sale or transport bulbs, corms, rhizomes, roots or plants of native
wild flowers or shrubs of the state of any of the following genera:
a. Tiger lily . . . Lilium Columbianum
b. Queen Cup . . . Clintonia uniflora
c. Trillium (both species)
d. Lady's Slipper . . . Cypripedium montanum
e. Stream orchis . . . Epipactis Gigantea
f. Coral root . . . Corallorhiza (all species)
g.
Columbine . . . Aquilegia formosa
h. Syringa or mock orange . . . Philadelphia lewisii
i. Dogwood . . . Cornus nuttallii and canadensis
j.
Indian Pipe Family (all members)
k. Rhododendron (all species)
1. Twin Flower . . . Linnaea americana
m. Mission bells or rive root . . . Fritillaria lanceolata
n. Bitter root . . . Lewisia rediviva
o. Angel slipper, fairy slipper . . . Calypso bulbosa
(4) It shall be unlawful for any person to sell or transport or offer for sale
the bulbs, corms, rhizomes, roots or parts of any of the plants or shrubs
mentioned in subsections (2) and (3) of this section which have been dug,
pulled up or gathered upon any highway
(5)
The provisions of this section shall not be construed to apply to any
employee of the federal government or of the state of Idaho or of any political
subdivision of the state engaged in work upon any state, county or public
road or highway while performing such work under the supervision of the
federal government, the state or any political subdivision thereof.
(6)
The provisions of this section shall not be construed to apply to the
owner of any tract or tracts of land, or to his agents or employee, as to such
tract or tracts, or to any shrub, plant or other vegetation which is declared
by law to be a public nuisance.
(7) Nothing in this section shall be construed as prohibiting the digging,
pulling, gathering or sending out of this state, at such times the Idaho
transportation department may approve, any propagated plants or shrubs
mentioned in subsections (2) and (3) of this section, in such quantity and at
such times as the agency or persons having control of the land, public or
private, may determine and approve. [I.C.,

18-3911, as added by 1972, ch.
336, 1, p. 844; am. 1974, ch.
12, 87, p. 61.]
Compiler's notes. A former section, which section as it existed prior to its repeal,
comprised S.L. 1967, ch. 430, 1, p. 1415,
as 18-3906.
Sec# to sec# ref> This section is referred to
section added by S.L. 1972, ch. 336, 1 re-
in
18-3913.
stored the subject matter contained in the
18-3912. Prosecution of violators

Duty of transportation de-
partment.
Insofar as the state highway system is concerned, it shall be

the duty of the Idaho transportation department and of all its employees to
present evidence of any violation of the provisions of this act to the
prosecuting attorney of the county in which any such violations occur. Such
prosecuting attorney shall prosecute any person guilty of a violation of the
provisions of this act. [I.C.,

18-3912, as added by 1972, ch.
336, 1, p. 844;
am. 1974, ch.
12, 88, p. 61.]
Compiler's notes. A former section, which was repealed by S.L. 1971, ch. 143, 5,
comprised S.L. 1967, ch. 430, .2, p. 1415, effective January 1, 1972, and the present
355 HOMICIDE 18-3914
section added by S.L. 1972, ch. 336, 1 re-
stored the subject matter contained in the
section as it existed prior to its repeal.
The words "this act" refer to
18-3911

18-3914.
herein as
62-301.
Section 124 of S.L. 1974, ch. 12 provided the
act should be in full force and effect on and
after July 1, 1974.
18-3913. Wild flowers protected

Amended list

Duty of de-
partment of fish and game.
(a) In order to further protect native wild

flowers and shrubs from needless destruction and waste, the department of
fish and game may, after investigation and public hearings and in accor-
dance with the provisions of this act, establish and amend a list of wild
flowers and shrubs in addition to those listed in section 18-3911(3), Idaho
Code. The provisions of this act will then apply to such "established" or
"amended" list.
(b) In determining additions to the list ofwild flowers set forth herein, the
department of fish and game may take into consideration:
(1) The laws and regulations of the United States and other states.
(2) The effect on the scenic beauty of public roads and public land.
(3)
The necessity to preserve and protect native plants whenever it
appears that they might possibly become extinct. [I.C.,

18-3913, as
added by 1972, ch.
336, 1, p. 844; am. 2003, ch.
129, 1, p. 379.]
comprised S.L. 1967, ch. 430, 3, p. 1415,
18-3911
18-3914.
as
36-2402.
18-3914. Violation a misdemeanor.
Aviolation of this chapter and

regulations authorized by this act is a misdemeanor unless the violation is
denned as an infraction. [I.C.,

18-3914, as added by 1972, ch. 336, 1, p.
844; am. 2001, ch. 289, 2, p. 1026.]
comprised S.L. 1967, ch. 430, 4, p. 1415,
18-3911

18-3914.
as
18-3908.
CHAPTER 40
HOMICIDE
18-4001. Murder denned.
18-4002. Express and implied malice.
18-4003. Degrees of murder.
18-4004. Punishment for murder.
18-4004A. Notice of intent to seek death pen-
alty.
18-4005. Petit treason abolished.
18-4006. Manslaughter denned.
18-4007. Punishment for manslaughter.
18-4009. Justifiable homicide by any person.
18-4010. Fear not sufficient justification.
18-4011. Justifiable homicide by officer.
18-4012. Excusable homicide.
18-4013. Discharge of defendant when homi-
cide justifiable or excusable.
18-4014. Administering poison with intent to
kill.
18-4015. Assault with intent to murder.
18-4016. Definition of human embryo and
fetus
Prohibiting the prose-

cution of certain persons.
18-4001. Murder defined.

Murder is the unlawful killing of a
human being including, but not limited to, a human embryo or fetus, with
malice aforethought or the intentional application of torture to a human
being, which results in the death of a human being. Torture is the
intentional infliction of extreme and prolonged pain with the intent to cause
suffering. It shall also be torture to inflict on a human being extreme and
prolonged acts of brutality irrespective of proof of intent to cause suffering.
The death of a human being caused by such torture is murder irrespective
of proof of specific intent to kill; torture causing death shall be deemed the
equivalent of intent to kill. [I.C.,
18-4001, as added by 1972, ch.
336, 1,
p. 844; am. 1977, ch. 154, 1, p. 390; am. 2002, ch.
330, 1, p. 935.]
C.L., 6560; C.S., 8209; I.C.A.,
17-1101,
as 18-4003.
Cross ref. Homicide caused by placing ob-
struction on railroad track is murder,
18-
6011.
Homicide caused by stealing of car parts is
murder,
18-6007.
Juvenile charged with murder, when pro-
ceeded against as adult,
20-509.
in

18-7803, 19-5307, 19-5506, 20-525A,
and 39-1113.
Cited in: State v. Foley, 95 Idaho 222, 506
P.2d 119 (1973); State v. Aragon, 107 Idaho
358, 690 P.2d 293 (1984); State v. Pennell, 108
v. Merrifield, 109 Idaho 11, 704 P.2d 343 (Ct.
App. 1985); Sivak v. State, 112 Idaho 197, 731
P.2d 192 (1986); State v. Simons, 112 Idaho
254, 731 P.2d 797 (Ct. App. 1987); State v.
App. 1992); State v. Pederson, 124 Idaho 179,
857 P.2d 658 (1993); State v. Espinoza, 127
Idaho 194, 898 P.2d 1105 (Ct. App. 1995);
State v. Contreras, 133 Idaho 862, 993 P2d
625 (Ct. App. 2000); State v. Thomas, 133
v. Santana, 135 Idaho 58, 14 P.3d 378 (Ct.
App. 2000); State v. Lundquist, 134 Idaho
831, 11 P3d 27 (2000); State v. Barcella, 135
Idaho 191, 16 P3d 288 (Ct. App. 2000);
Matthews v. State, 136 Idaho 46, 28 P3d 387
(Ct. App. 2001).
Analysis
Cross-examination.
Double jeopardy
Dual juries.
Evidence.
Confession.
Malice aforethought.
Photographs
.
Sufficiency of.
Included offense.
Intent.
Intoxication as defense.
Malice.
Sufficient evidence.
Opening statement.
Premeditation.
Prosecutor's comments.
Punishment.
Sanity of defendant.
Sentence.
Not excessive.
Solicitation of attempted murder.
Sufficiency of charge.
Sufficiency of indictment.
Torture murder.
Intent.
Jury instructions.
Cross-Examination.
Where the defense, on cross-examination,
attempted to elicit from police officer testi-
mony that his true motive in telling witness
not to discuss case with others was to prevent
disclosure of witness having failed polygraph
tests, the trial court properly limited the
cross-examination in order to prevent the
introduction of potentially prejudicial poly-
graph information; the court gave the defense
considerable latitude in its attempt to estab-
lish that the witness had changed his state-
ments because of police accusations that he
was lying, and no prejudice was shown. State
v. Wheeler, 109 Idaho 795, 711 P2d 741 (Ct.
App. 1985).
Double Jeopardy.
Giving the double jeopardy statute,
18-
301 (repealed), its broadest possible applica-
tion, it is not a bar to the present prosecution
for robbery because both the robbery and the
murder did not arise out of the same act or
omission; the act of taking property from the
deceased by means or force or fear was sepa-
rate from the act of firing the shots which
killed him, defendant's companion having
flagged the deceased to a stop, defendant was
handed deceased's wallet after parking their
car and, hearing a shot and inquiring, was
told to go home. State v. Hall, 86 Idaho 63, 383
P.2d 602 (1963).
It is clear from the former statutory defini-
tions that murder and robbery are separate,
distinct and independent crimes; neither is
the "same offense" as the other, within the
constitutional provision against double jeop-
ardy, and prosecution for one does not bar a
subsequent prosecution on the other on that
ground. State v. Hall, 86 Idaho 63, 383 P.2d
602 (1963).
It is obvious, from the definition of robbery
in 18-6501, that the murder information
did not purport to charge defendant with the
crime of robbery, and it was insufficient for
that purpose; therefore, defendant after ac-
quittal on the charge of murder was not
entitled to an instruction that the robbery
was the same offense as that for which he had
been previously charged. State v. Hall, 86
Idaho 63, 383 P.2d 602 (1963).
Dual Juries.
Where the trial judge was cautious and
meticulous in his conduct of trial before dual
juries and there was no indication whatsoever
that the dual jury procedure resulted in any
unfairness, prejudice or violation of defen-
dant's constitutional rights, there was no er-
ror in using a dual jury procedure in trying
two co-defendants for murder. State v. Beam,
109 Idaho 616, 710 P.2d 526 (1985), cert,
denied, 474 U.S. 1153, 106 S. Ct. 2260, 90 L.
Ed. 2d 704 (1986).
The trial court did not deprive the defen-
dant of due process by jointly trying him with
his codefendant and using separate juries
sitting in the same courtroom, where the
codefendant testified before the defendant's
jury, and the defendant had the opportunity
to cross-examine him as to any statements
presented through the testimony of other wit-
nesses. State v. Scroggins, 110 Idaho 380, 716
P.2d 1152 (1985), cert, denied, 479 U.S. 989,
107 S. Ct. 582, 93 L. Ed. 2d 585 (1986).
Where defendant was charged both with
first-degree murder and with conspiracy to
commit first-degree murder, which involve
differing elements of proof, and there existed
a reasonable doubt whether the state met its
burden of proof as to the distinguishing ele-
ment of causation, the jury's verdicts acquit-
ting defendant of first-degree murder, but
convicting her of conspiracy, were reconcilable
on a rational basis, and the trial court prop-
erly denied defendant's motion for a new trial.
State v. Garcia, 102 Idaho 378, 630 P.2d 665
(1981).
Where the record disclosed no statement by
the district judge informing the defendant of
the malice element, and there was nothing in
the record refuting the defendant's allegation
that his attorney also failed to advise him of
the essential elements necessary to the
charge of assault with intent to commit mur-
der, there existed at least a material issue of
fact whether the defendant understood the
nature of the charge against him; conse-
quently, summary dismissal of the defen-
dant's petition for post-conviction relief was
reversed. Noel v. State, 113 Idaho 92, 741 P.2d
728 (Ct. App. 1987).
The proof of a murder in the first degree
may be established in all of its elements by
proving (a) the unlawful killing of a human
being (b) in the course of a robbery; the
requirement of "malice aforethought" is satis-
fied by the fact the killing was committed in
the perpetration of a robbery. State v.
Lankford, 116 Idaho 860, 781 P.2d 197 (1989),
111 L. Ed. 2d 803 (1990).
Evidence.
Where evidence showed in trial of defen-
dant charged with attempt to commit murder
that defendant pointed a loaded gun at com-
plaining witness, who was within range of
bullet fired from gun, and said "give me my
cigarette lighter or I will kill you" and
promptly fired when complaining witness
said he didn't have the lighter, it was suffi-
cient to justify verdict of guilty. State v.
Buchanan, 73 Idaho 365, 252 P.2d 524 (1953).
Where the evidence showed that defendant
and his wife had contemplated divorce and
had separated, that defendant had picked up
his shotgun at his cabin outside of town, and
that on the fatal evening his truck was seen
outside the deceased's home amid loud de-
mands by a male voice for entry, and later a
voice, identified as his, reported the homicide
anonymously, the jury had sufficient circum-
stantial evidence from which to infer that the
defendant was guilty of the murder. State v.
Fenley, 103 Idaho 199, 646 P.2d 441 (Ct. App.
1982).
Where the defendant admitted that she
taped the victim with duct tape prior to his
murder by stabbing, the testimony of the
state's pathologist that the manner in which
the tape was affixed to the victim's face would
have prevented any breathing was relevant to
provide a complete description of the crime
and to show the defendant's state of mind and
intent. State v. Windsor, 110 Idaho 410, 716
P.2d 1182 (1985), cert, denied, 479 U.S. 964,
107 S. Ct. 463, 93 L. Ed. 408 (1986).
The destruction of the body of the murder
victim did not constitute a violation of the due
process right to have access to potentially
exculpatory evidence, since the body held ev-
idence allegedly relating to only the jurisdic-
tional question and not to questions of guilt or
excuse. Gibson v. State, 110 Idaho 631, 718
P.2d 283 (1986).
Confession.
Where the defendant was questioned for
five minutes about the location of the murder
victim's car and she then agreed to make a
confession, at which point she was read her
Miranda rights, the defendant was not co-
erced into giving a statement, and the confes-
sion was admissible. State v. Windsor, 110
479 U.S. 964, 107 S. Ct. 463, 93 L. Ed. 2d 408
(1986).
Malice Aforethought.
Element of malice aforethought required by
this section must be found to exist in order to
sustain conviction of murder in the first de-
gree accomplished by the administration of
poison. State v. Phinney, 13 Idaho 307, 89 P.
634, 12 L.R.A. (n.s.) 935, 12 Ann. Cas. 1079
(1907).
In a murder prosecution, because of the use
to which knife of defendant was put and
results of this use, it will be classified as a
deadly weapon and therefore it is to be con-
cluded that there was both express and im-
plied malice on behalf of defendant immedi-
ately prior to the time he took the life of the
deceased. State v. Snowden, 79 Idaho 266, 313
P.2d 706 (1957).
Inasmuch as the defendant took the life of
deceased and did so with malice aforethought,
it necessarily must follow that he is guilty of
murder. State v. Snowden, 79 Idaho 266, 313
P.2d 706 (1957).
Where a defendant uses a deadly weapon
against the person of another in a deadly and
dangerous manner, the element of malice may
be presumed; such a presumption may be
rebutted. State v. Rodriquez, 106 Idaho 30,
674 P.2d 1029 (Ct. App. 1983).
Where evidence in murder prosecution in-
dicated that defendant armed himself while
still in bar and was preparing for subsequent
violent confrontation outside bar, the evi-
dence of the crucial element of intent was not
so insubstantial that the jurors could not help
but have a reasonable doubt as to proof of that
element; to the contrary, the evidence, and the
inferences reasonably drawn from it, strongly
supported the conclusion that defendant
acted with malice and, accordingly, the court
did not err in denying motion for a judgment
of acquittal. State v. Rodriquez, 106 Idaho 30,
674 P.2d 1029 (Ct. App. 1983).
be presumed; it is the province of the jury to
determine whether the evidence in the record
only supports a conviction of voluntary man-
slaughter or whether there is sufficient proof
of malice to justify a conviction for first-
degree murder. Thus, where the evidence es-
tablished that the defendant placed a loaded
gun against the chest of the victim and pulled
the trigger, the jury could properly have pre-
sumed that the defendant acted with malice.
State v. Wolfe, 107 Idaho 676, 691 P.2d 1291
(Ct. App. 1984).
Where a defendant uses a deadly weapon in
a deadly manner, the element of malice can be
presumed. State v. Ziegler, 107 Idaho 1133,
695 P.2d 1272 (Ct. App. 1985).
Photographs.
The trial court has the discretion to admit
into evidence photographs of the victim in a
homicide case as an aid to the jury in arriving
at a fair understanding of the evidence, as
proof of the corpus delecti, the extent of the
injury, and the condition of the body, and for
their bearing on the question of the degree
and atrociousness of the crime. The fact that
the photographs depict the actual body of the
victim and the wounds inflicted and may tend
to excite the emotions of the jury is not a basis
for excluding them. State v. Beam, 109 Idaho
616, 710 P.2d 526 (1985), cert, denied, 476
U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704
(1986).
Although the prosecutor's purported reason
for admitting the photographs of the murder
victim's slit throat was to assist the expert
witness with his testimony, and in retrospect,
the photographs were not used for that pur-
pose, they were nonetheless relevant evidence
where, even though the cause of death was
drowning, it was clear that the victim had had
her throat slit and that the throat slitting had
either preceded the drowning or had hap-
pened at the same time. State v. Scroggins,
110 Idaho 380, 716 P.2d 1152 (1985), cert,
denied, 479 U.S. 989, 107 S. Ct. 582, 93 L. Ed.
2d 585 (1986).
Photographs of the victim in a prosecution
for homicide, duly verified and shown by
extrinsic evidence to be faithful representa-
tions of the victim at the time in question, are,
in the discretion of the trial court, admissible
in evidence as an aid to the jury in arriving at
a fair understanding of the evidence. State v.
Windsor, 110 Idaho 410, 716 P.2d 1182 (1985),
L. Ed. 2d 408 (1986).
Sufficiency of.
Where the evidence indicated that the vic-
tim suffered numerous injuries at the hands
of the defendant over a one year period, and
evidence presented as to the defendant's rela-
tionships with others close to him dispelled
any possible conclusion that the defendant's
treatment of the victim was solely for pur-
poses of discipline, there was more than
enough evidence presented to justify a mur-
der by torture instruction to the jury and
substantial competent evidence to support
the verdict. State v. Stuart, 110 Idaho 163,
715 P.2d 833 (1985). See State v. Tribe, 123
Idaho 721, 852 P.2d 87 (1993).
Evidence was sufficient to support the ver-
dict of first degree murder where defendant
had previously perpetrated several acts of
violence toward victim and he had also made
threats to kill her, where victim's daughter
heard shots and when she went to the barn to
investigate, daughter observed defendant
holding a rifle pointed at victim as victim sat
wounded on the ground, and where at the
time of his apprehension, defendant acknowl-
edged to the arresting officer that he had shot
the victim. State v. Charboneau, 116 Idaho
129, 774 P.2d 299, cert, denied, 493 U.S. 922,
110 S. Ct. 287, 107 L. Ed. 2d 267, 493 U.S.
923, 110 S. Ct. 290, 107 L. Ed. 2d 270 (1989),
overruled on other grounds, State v. Card, 121
506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241
(1992).
Included Offense.
The allegation that the homicide occurred
in the perpetration of a felony does not charge
the accused with the commission of the felony
referred to, nor make it an offense included in
the murder charge; it merely characterizes
the murder as to degree. State v. Hall, 86
Idaho 63, 383 P2d 602 (1963).
The murder charged in the information to
have been committedl)y means of a gun was
an allegation of robbery only as a condition or
circumstance characterizing the murder as
first degree but the robbery was not an "in-
cluded offense" in the murder charge. State v.
Hall, 86 Idaho 63, 383 P.2d 602 (1963).
included offense of murder because a jury
reasonably could conclude from the evidence
that the victim had suffered an aggravated
battery prior to the germination of the idea to
murder him. State v. Campbell, 114 Idaho
367, 757 P.2d 230 (Ct. App. 1988), cert, de-
nied, 490 U.S. 1070, 109 S. Ct. 2076, 104 L.
Ed. 2d 640 (1989).
Various instructions considered. State v.
Fleming, 17 Idaho 471, 106 P. 305 (1910).
Giving of additional instructions which in
no way modify the definitions contained in
this and following sections is not error. State
v. Willis, 24 Idaho 252, 132 P. 962 (1913).
Instructions quoting
18-4001
18-4006
upheld where defendant was charged with
murder in the first and second degree, a'nd
voluntary and involuntary manslaughter.
State v. Van Vlack, 57 Idaho 316, 65 P. 2d 736
(1937).
There was no prejudicial error in quoting
the language of the former section in an
instruction to the jury defining murder. State
v. Anstine, 91 Idaho 169, 418 P.2d 210 (1966).
An instruction defining murder substan-
tially in the language of the former section,
accompanied by other instructions defining
"malice aforethought" substantially in the
language of 18-4002, defining terms "felo-
niously," "wilfully," "premeditatedly," and "de-
liberately," and defining the degrees of mur-
der substantially in the language of
18-
4003, adequately distinguished between
murder in the first and second degree. State v.
Gonzales, 92 Idaho 152, 438 P.2d 897 (1968).
Where jury is fully instructed concerning
the frame of mind required by 18-4002, it
was harmless error for the court to also in-
struct as to the definition of malice as found in
18-101, even though that definition is not
applicable in a murder case. State v. Dillon,
93 Idaho 698, 471 P.2d 553 (1970), cert, de-
nied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d
223 (1971).
In a murder prosecution the use of the word
"malice" instead of "malice aforethought" in
jury instructions was not error where word
"malice" was used for the same purpose and in
same manner in

18-4002, 18-4006, which
used word "malice" to refer to "malice afore-
thought." State v. Dillon, 93 Idaho 698, 471
P.2d 553 (1970), cert, denied, 401 U.S. 942, 91
S. Ct. 947, 28 L. Ed. 2d 223 (1971).
Where, in prosecution for second-degree
murder and aggravated battery, the jury in-
structions required the jury to consider
whether the defendant had become so intoxi-
cated at the time of the shootings that he
could not act with malice aforethought, the
trial judge did not err in refusing to give
further instructions concerning the effect of
intoxication. State v. Hall, 111 Idaho 827, 727
P.2d 1255 (Ct. App. 1986).
tent, and where the instructions to the jury
repeatedly emphasized that before defendant
Enno, 119 Idaho 392, 807 P.2d 610 (1991).
District court did not abuse its discretion in
deciding not to give a jury instruction on
involuntary or voluntary manslaughter as
lesser offenses of first-degree murder where
evidence showed that a 12 gauge shotgun was
fired into an occupied room exhibiting a wan-
ton disregard for human life which might lead
a jury to infer "malice aforethought" which is
an element of both first and second-degree
murder but not to involuntary manslaughter;
additionally there was no evidence to indicate
the murder took place in the heat of passion.
State v. Grube, 126 Idaho 377, 883 P.2d 1069
1828, 131 L. Ed. 2d 749 (1995).
Where defendant objected to language in
jury instructions taken from this section,
18-4002 and 18-4006 defining murder,

malice and manslaughter, as incomprehensi-
ble and unnecessarily confusing, the Court of
Appeals noted that until the legislature chose
to amend the language of the statutes, the
court was bound by the words that the legis-
lature had chosen for the definition of various
crimes. State v. Carsner, 126 Idaho 911, 894
P.2d 144 (Ct. App. 1995).
Intent.
In trial of defendant charged with assault
with intent to commit murder the evidence
must be sufficient to convince jury that as-
sault was made with intent to commit mur-
der, and with malice aforethought. State v.
Intent of defendant to kill complaining wit-
ness was not negatived as a matter of law
where complaining witness was close enough
to defendant to be hit by bullet fired from
defendant's gun. State v. Buchanan, 73 Idaho
365, 252 P.2d 524 (1953).
Where defendant pointed his gun at the
victim with whom he had altercation and the
gun discharged causing death, the conviction
of second-degree murder was proper and the
circumstances of the shooting would not sup-
port a conviction of voluntary manslaughter.
State v. Gomez, 94 Idaho 323, 487 P.2d 686
(1971).
The jury's finding that defendant possessed
the intent necessary to commit murder was
not the finding as to the degree of his capacity
to appreciate and conform his conduct re-
quired by
19-2523. State v. Odiaga, 125
Idaho 384, 871 P.2d 801, cert, denied, 513 U.S.
952, 115 S. Ct. 369, 130 L. Ed. 2d 321 (1994).
980 P.2d 581 (Ct. App. 1999).
Intoxication as Defense.
Intoxication is no defense to murder charge
but the state of intoxication is competent in
determining the capacity of accused to form
the homicidal intent where there is no evi-
dence of malice, premeditation or motive. The
statute requires proof of malice aforethought
to convict. State v. Frank, 60 Idaho 774, 97
P.2d 410 (1939).
Voluntary intoxication is no excuse for a
felonious homicide, but may be considered in
determining existence or nonexistence of mal-
ice aforethought, which distinguishes murder
from voluntary manslaughter. State v.
Sprouse, 63 Idaho 166, 118 P.2d 378 (1941).
Evidence that defendant and deceased were
personal friends, that they drank liquor in
sufficient quantities to cause them to fight
over the ownership of a part of a bottle of beer,
and that in the sudden quarrel and heat of
passion, defendant shot and killed the de-
ceased, was sufficient to sustain a conviction
of manslaughter. State v. Sprouse, 63 Idaho
166, 118 P.2d 378 (1941).
From all the evidence in a murder prosecu-
tion it appears that the defendant must not be
so far intoxicated as would preclude him from
P.2d 706 (1957).
Malice.
Sufficient Evidence.
Where defendant not only fired a warning
shot into the air without regard to where the
bullet would stray, but also aimed his gun at
decedent and another man and pulled the
trigger, knowing that some of the chambers
were loaded, such use of a deadly weapon was
sufficient evidence of malice. State v. Jaco,
130 Idaho 870, 949 P.2d 1077 (Ct. App. 1997).
Opening Statement.
Where in opening statement in murder
prosecution, the prosecutor made no more
than an objective summary of evidence he
reasonably expected to produce, and any po-
tential for misleading the jury was dimin-
ished by the witness's repudiation of the tes-
timony he was expected to give and, in any
event, both general and specific limiting in-
structions were given by the trial judge to the
jury, the trial court did not err in denying
defendant's motion for a mistrial predicated
upon the prosecutor's opening statement and
the failure of witness to testify as outlined by
the prosecutor. State v. Brooks, 103 Idaho
892, 655 P.2d 99 (Ct. App. 1982).
Premeditation.
Premeditation is not an essential element
of crime of assault with intent to commit
murder. State v. Buchanan, 73 Idaho 365, 252
P.2d 524 (1953).
Prosecutor's Comments.
The prosecution's reference to the defen-
dant as "the man with the machete" or "ma-
chete man" was not prejudicial, especially
since the defense counsel objected to the use
of the defendant's name, and the defendant
361 HOMICIDE
18-4001
did not object to the use of those terms at
trial. State v. Buzzard, 110 Idaho 800, 718
P.2d 1238 (Ct. App. 1986).
Punishment.
Assault with intent to commit murder has
only one punishment and does not contain
two degrees. State v. Buchanan, 73 Idaho 365,
252 P.2d 524 (1953).
Trial court had no other alternative than to
find the defendant guilty of wilful, deliberate,
and premeditated killing with malice afore-
thought in view of the defendant's act of
deliberately opening up a pocket knife, next
cutting the victim's throat and then hacking
and cutting until he had killed the deceased
and expended himself and the imposition of
the death sentence under the circumstances
was not an abuse of discretion by the trial
court under such facts and circumstances.
State v. Snowden, 79 Idaho 266, 313 P.2d 706
(1957).
Sanity of Defendant.
Where state in murder prosecution intro-
duced testimony to show defendant knew the
difference between right and wrong at the
time of the homicide and no other witness
testified as to defendant's sanity, therefore, it
is concluded defendant has the mental ability
to reason and had the capacity to formulate
malice aforethought. State v. Snowden, 79
Idaho 266, 313 P.2d 706 (1957).
Sentence.
Where defendant, who was with three oth-
ers, allowed decedent to be beaten, humili-
ated and murdered; fired shots into the dead
body; after a night of rest, returned to scene of
the slaying and burned the body in a shallow
grave; and never reported the crime to the
authorities, five year fixed sentence for con-
viction of accessory to murder was not cruel
and unusual punishment. State v. Toney, 130
Idaho 858, 949 P.2d 1065 (Ct. App. 1997).
Not Excessive.
After considering defendant's age and the
nature and circumstance of his crime, 25-year
term of confinement was not grossly dispro-
portionate where he killed another human
being by shooting the victim four times at
point-blank range without any provocation,
as the utter disregard for human life demon-
strated in the commission of crime, coupled
with the fact that it was committed against a
law enforcement officer, might well have led
to imposition of the death penalty or a fixed
life sentence if the perpetrator had been an
adult, and under circumstances, even in view
of defendant's youth, court could not say that
the sentence was out of all proportion to the
gravity of the offense or such as to shock the
conscience of reasonable people. State v.
Moore, 127 Idaho 780, 906 P.2d 150 (Ct. App.
1995).
Where the district court considered defen-
dant's young age, lack of intellect and child-
hood abuse as mitigating factors, yet con-
cluded that the heinous nature of the crime
and poor prognosis for rehabilitation required
that court be attentive to the sentencing goals
of punishment and deterrence, conviction and
unified life sentence with minimum 29 years
for first degree murder of his two and one-half
year old stepgon was affirmed. State v.
Walker, 129 Idaho 409, 925 P.2d 413 (Ct. App.
1996).
Where, after binding victim (an acquain-
tance), beating and humiliating him, defen-
dant put his gun against victim's head and
shot him and then burned the body and bur-
ied him in a shallow grave and after being
arrested for first degree murder, defendant
pled guilty to second degree murder, sentence
of indeterminate life sentence, with a mini-
mum period of confinement of twenty-five
years under the facts of the case was not
disproportionate to the crime committed and
because of the particularly heinous nature of
the crime, and the fact that the minimum
period of confinement of 25 years was the
probable duration of confinement, such sen-
tence was not excessive. State v. Robertson,
130 Idaho 287, 939 P.2d 863 (Ct. App. 1997).
Solicitation of Attempted Murder.
Where defendant agreed to pay an under-
cover agent $1,000 to kill a police officer and
actually paid him $250 in "up front" money
before being arrested, he could not be con-
victed for attempted murder since his only
actions were those of solicitation by the pre-
paratory act of inciting another to commit the
crime and there was no actus reus in actually
committing the crime; moreover, the partial
payment made was a "slight act" only in
furtherance of the solicitation rather than a
preparatory act sufficiently proximate to es-
tablish an attempt. State v. Otto, 102 Idaho
250, 629 P2d 646 (1981).
Sufficiency of Charge.
In a charge of murder of the first degree,
the allegation that the homicide was commit-
ted in the perpetration of, or attempt to per-
petrate, one of the named felonies, may be
relied on by the judge in lieu of the otherwise
necessary allegation and proof of deliberation
and premeditation, in order to show that the
homicide was murder of the first degree. State
v. Hall, 86 Idaho 63, 383 P.2d 602 (1963).
The crime of murder may be committed
without the commission of any of the felonies
named in the former statute, and the allega-
tion that the homicide was committed while
its perpetrators were engaged in a robbery
does not charge that the robbery was the
manner or means upon which the murder was
accomplished. State v. Hall, 86 Idaho 63, 383
P.2d 602 (1963).
Sufficiency of Indictment.
For former rule, see State v. Walters, 1
Idaho 271 (1869); Perry v. State, 4 Idaho 224,
38 P. 655 (1894); State v. Ellington, 4 Idaho
529, 43 P. 60 (1895); State v. Shuff, 9 Idaho
115, 72 P. 664 (1903); State v. Sly, 11 Idaho
110, 80 P. 1125 (1905); State v. Squires, 15
Idaho 545, 98 P. 413 (1908); State v. Gruber,
19 Idaho 692, 115 P. 1 (1911); In re McLeod, 23
Idaho 257, 128 P. 1106, 43 L.R.A. (n.s.) 813
(1913); State v. Lundhigh, 30 Idaho 365, 164
P. 690 (1917); State v. Arnold, 39 Idaho 589,
229 P. 748 (1924).
For a number of years it was deemed suffi-
cient in this state to charge murder in general
terms, however, the present rule requires the
acts or facts of the killing to be alleged. State
v. McMahan, 57 Idaho 240, 65 P2d 156 (1937);
State v. Calkins, 63 Idaho 314, 120 P2d 253
(1941).
Information charging on a certain day in a
certain county that defendant murdered a
human being was not fatally defective for
failure to charge place of death. State v.
Walters, 61 Idaho 341, 102 P.2d 284 (1940).
If the means by and manner in which the
alleged crime was committed are unknown to
the prosecutor, he must so allege in the infor-
mation. State v. Calkins, 63 Idaho 314, 120
P.2d 253 (1941).
Manslaughter is an offense included in the
charge of murder. State v. Sprouse, 63 Idaho
166, 118 P.2d 378 (1941).
Torture Murder.
Intent.
This section provides that, irrespective of
proof of intent to cause suffering, the inflic-
tion of extreme and prolonged acts of brutal-
ity is torture, and torture causing death shall
be deemed the equivalent of intent to kill;
therefore, the infliction of extreme and pro-
longed acts of brutality not accompanied by
proof of intent to cause suffering, or by proof
of executing vengeance, or by proof of extor-
tion, or by proof of satisfying a sadistic incli-
nation, is second degree torture murder. State
v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993).
Attempted first degree murder by torture,
absent a specific showing of intent, is not a
crime in Idaho, because first degree murder
by torture does not require a specific showing
of intent to sustain a conviction, but the crime
of attempt does require a specific showing of
intent to commit the underlying crime. State
v. Luke, 134 Idaho 294, 1 P.3d 795 (2000).
Jury Instructions.
A jury instruction as to a charge of first
degree torture murder should state that first
degree murder by torture consists of death of
the victim caused by the intentional infliction
of extreme and prolonged pain with the intent
to cause suffering, or the death of the victim
caused by the infliction of extreme and pro-
longed acts of brutality with the intent to
cause suffering, to execute vengeance, to ex-
tort something from the victim, or to satisfy a
sadistic inclination. State v. Tribe, 123 Idaho
721, 852 P.2d 87 (1993).
Where victim's entire body had been se-
verely beaten, with multiple trauma to the
head, bruises too numerous to count,
subdural hemorrhaging, ventricular hemor-
rhaging, lacerations on the lips and chin, and
several areas ofthe scalp where hair had been
broken off, the condition of the body appeared
to support a murder by torture jury instruc-
tion. State v. Porter, 130 Idaho 772, 948 P.2d
127 (1997), cert, denied, 523 U.S. 1126, 118 S.
Ct. 1813, 140 L. Ed. 2d 951 (1998).

Second degree murder by torture, i.e., bru-
tality torture murder, without a demonstra-
tion of intent as provided in 18-4003(a), is a
lesser included offense of first degree torture
murder. State v. Tribe, 123 Idaho 721, 852
P.2d87(1993).
Homicide, 1 et seq.
40, 41 C.J.S., Homicide, 1 et seq.
Attempt to conceal or dispose of body as
evidence connecting accused with homicide. 2
A.L.R. 1227.
Intent to aid and abet perpetrator, or enter-
ing into his design, as necessary to make one
present at homicide without preconcert or
conspiracy, criminally responsible. 12 A.L.R.
277.
Admissibility of dying declaration with re-
spect to transaction prior to homicide. 14
A.L.R. 757.
Homicide by unlawful act aimed at another.
18 A.L.R. 917.
Instruction as to lesser degree of crime,
duty of court as to where statute fixes degree
of homicide in perpetration of felony. 21
A.L.R. 628; 27 A.L.R. 1097; 102 A.L.R. 1019.
Entrapment to attempt to commit murder.
66 A.L.R. 504; 86 A.L.R. 263.
Intoxication as affecting deliberation and
premeditation. 79 A.L.R. 904.
Instructions, applying rule of reasonable
doubt as to intent or malice as curing error in
instruction placing burden of proof upon de-
fendant in that regard. 120 A.L.R. 610.
Attorney's compensation in murder case,
amount of. 143 A.L.R. 672, 844.
Inference of intent to kill where killing is by
blow without weapon. 22 A.L.R.2d 854.
Criminal responsibility for injury or death
resulting from. 23 A.L.R.2d 1401.
Causing one, by threats or fright, to leap or
fall to his death. 25 A.L.R.2d 1186.
Instruction as to presumption of continuing
insanity in criminal case. 27 A.L.R.2d 121.
Right of prosecution, in homicide case, to
363 HOMICIDE
18-4001
introduce evidence in rebuttal to show good,
quiet, and peaceable character of deceased. 34
A.L.R.2d 451.
Right of accused in homicide case to cross-
examine prosecution's witness as to latter's
pending or completed civil action against ac-
cused arising out of same transaction. 41
A.L.R.2d 1205.
Pregnancy as element of abortion or homi-
cide based thereon. 46 A.L.R.2d 1393.
Fright or shock, homicide by. 47 A.L.R.2d
1072.
Juvenile court, homicide by juveniles
within jurisdiction of. 48 A.L.R.2d 663.
Extent of premises which may be defended
without retreat under right of self-defense. 52
A.L.R.2d 1458.
Druggist's criminal responsibility for death
or injury in consequence of mistake. 55
A.L.R.2d 714.
Duty of trial court to instruct on self-de-
fense, in absence of request by accused. 56
A.L.R.2d 1170.
Admissibility, in homicide prosecution, of
opinion evidence that death was or was not
self-inflicted. 56 A.L.R.2d 1447.
Necessity of materiality of statement of
place of death in indictment or information
charging homicide. 59 A.L.R.2d 901.
deceased's clothing worn at time of killing. 68
A.L.R.2d 903.
Admissibility on behalf of accused in homi-
cide case of evidence that the killing was
committed at victim's request. 71 A.L.R.2d
617.
Necessity of trial court charge upon motive
in homicide case. 71*A.L.R.2d 1025.
Admissibility of photograph of corpse in
prosecution of homicide or civil action for
causing death. 73 A.L.R.2d 769.
Presumption of deliberation or premedita-
tion from the act of killing. 86 A.L.R.2d 656.
Identification of victim as named in indict-
ment or information. 86 A.L.R.2d 722.
Criminal liability of parent, teacher, or one
in loco parentis for homicide by excessive or
improper punishment of delinquent child. 89
A.L.R.2d 396, 417.
"Lying in wait," what constitutes. 89
A.L.R.2d 1140.
Manslaughter, who other than actor is lia-
ble for. 95 A.L.R.2d 175.
Presumption of deliberation or premedita-
tion from the circumstances attending the
killing. 96 A.L.R.2d 1435.
Admissibility of evidence of
uncommunicated threats on issue of self-de-
fense in prosecution for homicide. 98 A.L.R.2d
6.
Liability where death immediately results
from treatment or mistreatment of injury
inflicted by defendant. 100 A.L.R.2d 769.
Admissibility of evidence as to other's char-
acter or reputation for turbulence in question
of self-defense by one charged with assault or
homicide. 1 A.L.R.3d 571.
Insulting words as provocation of homicide
or as reducing the degree thereof. 2 A.L.R.3d
1292.
Right of accused in city courts to inspection
or disclosure of evidence in possession of pros-
ecution. 7 A.L.R.3d 8.
Right of defendant in criminal case to in-
spection of statement of prosecution's witness
for purposes of cross-examination or impeach-
ment. 7 A.L.R.3d 181.
Modern status of the rules as to voluntary
intoxication as defense to criminal charge. 8
A.L.R.3d 1236.
Earlier prosecution for offense during
which homicide was committed as bar to
prosecution for homicide. 11 A.L.R.3d 834.
Prejudicial effect of statement or instruc-
tion of court as to possibility of parole or
pardon. 12 A.L.R.3d 832.
What amounts to negligence within mean-
ing of statutes penalizing negligent homicide
by operation of a motor vehicle. 20 A.L.R.3d
473.
Homicide by automobiles. 21 A.L.R.3d 116.
Homicide or assault as ground for disciplin-
ary measures against attorney. 21 A.L.R.3d
887.
Mental or emotional condition as diminish-
ing responsibility for crime. 22 A.L.R.3d 1228.
Duty to retreat where assailant and as-
sailed share the same living quarters. 26
A.L.R.3d 1296.
Admissibility of confession by one accused
of felonious homicide, as affected by its in-
ducement through compelling, or threatening
to compel, accused of victim's corpse. 27
A.L.R.3d 1185.
Criminal liability for death resulting from
unlawfully furnishing intoxicating liquor or
drugs to another. 32 A.L,R.3d 589.
Private person's authority, in making arrest
for felony, to shoot or kill alleged felon. 32
A.L.R.3d 1078.
Homicide based on killing of unborn child.
40 A.L.R.3d 444.
Duty to retreat as condition of self-defense
when one of the attacked is in office, or place
of business or employment. 41 A.L.R.3d 584.
Modern status of rules as to burden and
quantum of proof to show self-defense in ho-
micide. 43 A.L.R.3d 221.
Homicide predicated on improper treat-
ment of disease or injury. 45 A.L.R.3d 114.
Use of set gun, trap, or similar device on
defendant's own property. 47 A.L.R.3d 646.
What felonies are inherently or foreseeably
dangerous to human life for purposes of felo-
ny-murder doctrine. 50 A.L.R.3d 397.
What constitutes attempted murder. 54
A.L.R.3d 612.
Unintentional killing of or injury to third
party during attempted self-defense. 55
A.L.R.3d 620.
Withdrawal, after provocation of conflict,
with reviving right of self-defense. 55
A.L.R.3d 1000.
Criminal liability where act of killing is
done by one resisting felony or other unlawful
act committed by defendant. 56 A.L.R.3d 239.
Criminal liability where act of killing is
done by one resisting felony or other unlawful
act committed by defendant. 56 A.L.R.3d 279.
What constitutes termination of felony for
purposes of felony-murder rule. 58 A.L.R.3d
851.
Homicide as affected by time elapsing be-
tween wound and death. 60 A.L.R.3d 1316.
Burden of proof on defense that killing was
accidental. 63 A.L.R.3d 936.
Disinterment in criminal cases. 63 A.L.R.3d
1294.
Proof of live birth in prosecution for killing
newborn child. 65 A.L.R.3d 413.
What constitutes "imminently dangerous"
act within the homicide statute. 67 A.L.R.3d
900.
Admissibility of testimony of coroner or
mortician as to cause of death in homicide
prosecution. 71 A.L.R.3d 1265.
When intoxication being involuntary so as
to constitute a defense of criminal charge. 73
A.L.R.3d 195.
Venue in homicide cases where crime is
committed partly in one county and partly in
another. 73 A.L.R.3d 907.
Degree of homicide as affected by accused's
religious or occult belief in harmlessness of
ceremonial ritualistic act directly causing fa-
tal injury. 78 A.L.R.3d 1132.
What constitutes murder by torture. 83
A.L.R.3d 1222.
Propriety of predicating manslaughter con-
viction on violation of local ordinance or reg-
ulation not dealing with motor vehicle. 85
A.L.R.3d 1072.
Corporation's criminal liability for homi-
cide. 45 A.L.R.4th 1021.
evidence as to tests made to ascertain dis-
tance from gun to victim when gun was fired.
11 A.L.R.5th 497.
tion of criminal client-conduct occurring at
time of trial regarding issues of diminished
capacity, intoxication, and unconsciousness.
78 A.L.R.5th 197.
tion of criminal client-pretrial conduct or con-
duct at unspecified time regarding issues of
diminished capacity, intoxication, and uncon-
sciousness. 79 A.L.R.5th 419.
18-4002. Express and implied malice.
Such malice may be express

or implied. It is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is implied when no
considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart. [I.C.,

18-4002, as added
by 1972, ch.
336, 1, p. 844.1
comprised Cr. & P. 1864,
15

17; R.S.,
R.C., & C.L., 6561; C.S., 8210; I.C.A.,
17-1102, was repealed by S.L. 1971, ch. 143,

its repeal.
Cited in: State v. Gruber, 19 Idaho 692, 115
P. 1 (1911); State v. Arnold, 39 Idaho 589, 229
P. 748 (1924); State v. Foley, 95 Idaho 222, 506
P.2d 119 (1973); State v. Aragon, 107 Idaho
358, 690 P.2d 293 (1984); State v. Enno, 119
Idaho 392, 807 P.2d 610 (1991); State v.
App. 1992); State v. Espinoza, 127 Idaho 194,
898 P.2d 1105 (Ct. App. 1995); State v.
Contreras, 133 Idaho 862, 993 P.2d 625 (Ct.
App. 2000).
Analysis
Defendant's understanding of charge.
Differentiating between right and wrong.
Evidence.
Implied malice.
Intent.
Premeditation.
Proof.
Sentence.
Not excessive.
Use of deadly weapon.
Defendant's Understanding of Charge.
Where the record disclosed no statement by
the district judge informing the defendant of
the malice element, and there was nothing in
the record refuting the defendant's allegation
that his attorney also failed to advise him of
the essential elements necessary to the
charge of assault with intent to commit mur-
der, there existed at least a material issue of
fact whether the defendant understood the
nature of the charge against him; conse-
quently, summary dismissal of the defen-
dant's petition for post-conviction relief was
365 HOMICIDE
18-4002
reversed. Noel v. State, 113 Idaho 92, 741 P.2d
728 (Ct. App. 1987).
Differentiating Between Right and
Wrong.
From all the evidence in a murder prosecu-
tion it appears that the defendant must not be
so far intoxicated as would preclude him from
P.2d 706 (1957).
Where state in murder prosecution intro-
duced testimony to show defendant knew the
difference between right and wrong at the
time of the homicide and no other witness
testified as to defendant's sanity, it is con-
cluded that the defendant has the mental
ability to reason and had the capacity to
formulate malice aforethought. State v.
Snowden, 79 Idaho 266, 313 P.2d 706 (1957).
Evidence.
said he didn't have^the lighter was sufficient
to justify verdict of guilty. State v. Buchanan,
73 Idaho 365, 252 P.2d 524 (1953).
P.2d 706 (1957).
The fact that a murder victim was stabbed
33 times was sufficient to support the jury's
conclusion that the killing was done with
malice. State v. Olin, 103 Idaho 391, 648 P2d
203 (1982).
State v. Wolfe, 107 Idaho 676, 691 P2d 1291
(Ct. App. 1984).
Implied Malice.
Malice is implied for any deliberate and
cruel act against another, however sudden,
which shows an abandoned and malignant
heart. State v. Willis, 24 Idaho 252, 132 P. 962
(1913).
Threats made by accused are inadmissible
when they were made generally and not di-
rected against deceased. State v. Buster, 28
Idaho 110, 152 P. 196 (1915).
The element of malice may be express or
implied. State v. Kuzmichev, 132 Idaho 536,
976 P2d 462 (1999).
Instruction that malice is to be implied
when the circumstances show an abandoned
and malignant heart but failing to state "or
when no considerable provocation appears" is
erroneous. People v. McDonald, 2 Idaho
(Hasb.) 10, 1 P. 345 (1881).
Failure of court to follow the language of
the section so as to include the word "all"
before the words "circumstances of the killing
show an abandoned and malignant heart" is
not reversible error. People v. McDonald, 2
Idaho (Hasb.) 10, 1 P. 345 (1881).
Instruction that if jury believe from the
evidence beyond a reasonable doubt that de-
fendant killed deceased on account of a desire
for revenge for some real or imagined injury,
then defendant is guilty of murder is proper.
People v. Pierson, 2 Idaho (Hasb.) 76, 3 P. 688
(1884).
Instruction "that if, without such provoca-
tion as is apparently sufficient to excite irre-
sistible passion, a person shoots another, and
by such shooting occasions death, although he
had no previous malice or ill will toward the
person shot, yet he is presumed to have had
such malice at the time of the shooting, and
the person shooting will be guilty of murder,"
will sustain a verdict of murder in the second
degree. Territory v. Evans, 2 Idaho (Hasb.)
425, 17 P. 139 (1888); State v. Fleming, 17
Idaho 471, 106 P. 305 (1910).
Omission of term malice in instruction de-
fining a killing committed while engaged in
attempt to commit a felony as murder in the
first degree did not mislead jury as to neces-
sity of state to prove malice in first degree
murder where other instructions given by the
court defined "murder as the unlawful killing
of a human being with malice aforethought,"
defined terms express and implied malice,
and that in case of homicide committed by use
of a deadly weapon the law presumed malice.
State v. Owen, 73 Idaho 394, 253 P. 2d 203
(1953), overruled on other grounds, State v.
Shepard, 94 Idaho 227, 486 P. 2d 82 (1971).
The court did not err in submitting to the
jury the issue of first degree murder where
the evidence indicated clearly a deliberate,
premeditated purpose to take the life of the
deceased thus establishing death by criminal
means and not justifiable or excusable attack
upon deceased. State v. Burris, 80 Idaho 395,
331 P.2d 265 (1958).
instruction to the jury denning malice. State
v. Anstine, 91 Idaho 169, 418 P.2d 210 (1966).
An instruction denning murder substan-
tially in the language of 18-4001, accompa-
nied by other instructions denning "malice
aforethought" substantially in the language of
the former section and denning the terms
"feloniously," "wilfully," "premeditatedly," and
"deliberately," and denning the degrees of
murder substantially in the language of
18-
4003, adequately distinguished between mur-
der in the first and second degree. State v.
Gonzales, 92 Idaho 152, 438 P.2d 897 (1968).
Where jury is fully instructed concerning
the frame of mind required, it was harmless
error for the court to also instruct as to the
definition of malice as found in
18-101, even
though that definition is not applicable in a
murder case. State v. Dillon, 93 Idaho 698,
471 P.2d 553 (1970), cert, denied, 401 U.S.
942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).
same manner in 18-4006, which used word
"malice" to refer to "malice aforethought" as
that term was used in
18-4001. State v.
Dillon, 93 Idaho 698, 471 R2d 553 (1970),
Ed. 2d 223 (1971).
Instruction that malice is to be implied
"when no considerable provocation appears"
was not error and properly advised the jury as
to the elements from which malice could be
implied. State v. Beason, 95 Idaho 267, 506
P.2d 1340 (1973).
1828, 131 L. Ed. 2d 749 (1995).

P.2d 144 (Ct. App. 1995).
Intent.
365, 252 P.2d 524 (1953).
gun discharged causing death, the conviction
(1971).
Where evidence in murder prosecution in-
dicated that defendant armed himself while
still in bar and was preparing for subsequent
violent confrontation outside bar, the evi-
dence of the crucial element of intent was not
so insubstantial that the jurors could not help
but have a reasonable doubt as to proof of that
element; to the contrary, the evidence, and the
inferences reasonably drawn from it, strongly
supported the conclusion that defendant
acted with malice and, accordingly, the court
did not err in denying motion for a judgment
of acquittal. State v. Rodriquez, 106 Idaho 30,
674 P.2d 1029 (Ct. App. 1983).
Attempted first degree murder by torture,
absent a specific showing of intent, is not a
crime in Idaho, because first degree murder
by torture does not require a specific showing
of intent to sustain a conviction, but the crime
of attempt does require a specific showing of
intent to commit the underlying crime. State
v. Luke, 134 Idaho 294, 1 P.3d 795 (2000).
Premeditation.
P.2d 524 (1953).
Proof.
111 L. Ed. 2d 803 (1990).
Sentence.
Not Excessive.
367 HOMICIDE
18-4003
term of confinement was not grossly dispro- plied malice on behalf of defendant immedi-
portionate where he killed another human ately prior to the time he took the life of the
being by shooting the victim four times at deceased. State v. Snowden, 79 Idaho 266, 313
R2d 706 (1957).
cutting the victim
>
s throat and then hacking
adult and under circumstances even in view
and cutting untn he had kiRed the deceased
of defendant s youth cour could not say that
the sentence was out of all proportion to he
the death gentence under ^ circumstances
wag not an abuge of discretion b the trial
+ j u
* j

at 1f)r,Tj
u
r7
0n nAeno/irA^ a
a
, ,
a
,
nCi TJ
,
nnn 010T)nJ
.
A
1QQf
-x
iyy5)-
(1957).
Use of Deadly Weapon. Where a defendant uses a deadly weapon
In a murder prosecution, because of the use against the person of another in a deadly and
to which knife of defendant was put and dangerous manner, the element of malice may
results of this use, it will be classified as a be presumed; such a presumption may be
deadly weapon and therefore it is to be con- rebutted. State v. Rodriquez, 106 Idaho 30,
eluded that there was both express and im- 674 P.2d 1029 (Ct. App. 1983).
18-4003. Degrees of murder.
(a) All murder which is perpetrated

by means of poison, or lying in wait, or torture, when torture is inflicted with
the intent to cause suffering, to execute vengeance, to extort something from
the victim, or to satisfy some sadistic inclination, or which is perpetrated by
any kind of willful, deliberate and premeditated killing is murder of the first
degree.
(b) Any murder of any peace officer, executive officer, officer of the court,
fireman, judicial officer or prosecuting attorney who was acting in the lawful
discharge of an official duty, and was known or should have been known by
the perpetrator of the murder to be an officer so acting, shall be murder of
the first degree.
(c) Any murder committed by a person under a sentence for murder of the
first or second degree, including such persons on parole or probation from
such sentence, shall be murder of the first degree.
(d) Any murder committed in the perpetration of, or attempt to perpe-
trate, aggravated battery on a child under twelve (12) years of age, arson,
rape, robbery, burglary, kidnapping or mayhem, or an act of terrorism, as
defined in section 18-8102, Idaho Code, or the use of a weapon of mass
destruction, biological weapon or chemical weapon, is murder of the first
degree.
(e) Any murder committed by a person incarcerated in a penal institution
upon a person employed by the penal institution, another inmate of the
penal institution or a visitor to the penal institution shall be murder of the
first degree.
(f) Any murder committed by a person while escaping or attempting to
escape from a penal institution is murder of the first degree.
(g)
All other kinds of murder are of the second degree. [I.C.,

18-4003, as
added by 1972, ch. 336, 1, p. 844; am. 1973, ch. 276, 1, p. 588; am. 1977,
ch. 154, 2, p. 390; am. 1991, ch. 227, 1, p. 546; am. 2002, ch. 222, 4,
p. 623.]
C.L., 6562; C.S., 8211; I.C.A.,
17-1103;
am. S.L. 1935, ch. 24, 1, p. 41; am. S.L.
1972, ch. 336, 1 restored the subject matter-
its repeal.
as 18-4001.
compiled as
18-3324 and 18-7803, respec-
tively.
Cross ref. Jury to find degree of crime,
19-2311.
in
18-310, 18-8303, 18-8304, 18-8314, 19-
2520, 19-5506, 20-525A, 33-1208, 39-1113 and
67-2916.
Cited in: State v. Fleming, 17 Idaho 471,
106 P. 305 (1910); State v. Willis, 24 Idaho
252, 132 P. 962 (1913); State v. Beason, 95
Idaho 267, 506 P.2d 1340 (1973); State v. Otto,
102 Idaho 250, 629 P.2d 646 (1981); State v.
Kaiser, 106 Idaho 501, 681 P.2d 594 (Ct. App.
1984); State v. Pennell, 108 Idaho 669, 701
P.2d 289 (Ct. App. 1985); State v. Caudill, 109
Idaho 222, 706 P.2d 456 (1985); State v.
Stuart, 110 Idaho 163, 715 P.2d 833 (1985).
See State v. Tribe, 123 Idaho 721, 852 P.2d 87
(1993); State v. Leavitt, 116 Idaho 285, 775
P.2d 599 (1989); State v. Brazzell, 118 Idaho
431, 797 P.2d 139 (Ct. App. 1990); State v.
Leavitt, 121 Idaho 4, 822 P.2d 523 (1991);
State v. Weinmann, 122 Idaho 631, 836 P.2d
1092 (Ct. App. 1992); State v. Pederson, 124
Idaho 179, 857 P.2d 658 (1993); State v.
Espinoza, 127 Idaho 194, 898 P.2d 1105 (Ct.
App. 1995); State v. Contreras, 133 Idaho 862,
993 P.2d 625 (Ct. App. 2000); State v. Thomas,
133 Idaho 682, 991 P.2d 870 (Ct. App. 1999);
State v. Jenkins, 133 Idaho 747, 992 P.2d 196
(Ct. App. 1999); Pratt v. State, 134 Idaho 581,
6 P.3d 831 (2000); State v. LePage, 138 Idaho
803, 69 P.3d 1064 (Ct. App. 2003), cert, de-
nied,
U.S. , 124 S. Ct. 444, 157 L. Ed. 2d

321 (2003).
Analysis
Appeal.
Erroneous admission of evidence.
Standard of review.
Assault with intent to commit.
Attempt.
Conviction.
Degrees undistinguished at common law.
Dual juries.
Evidence.
Confession.
Photographs.
Felony murder and firearm enhancement.
Felony murder rule.
First degree murder.
Guilty pleas.
Included offense.
Instruction to jury.
Killing during robbery.
Malice.
Motive.
Premeditation.
Officer.
Second degree murder.
Sentence.
Testimony.
Torture murder.
Intent.
Jury instruction.
Verdict.
Appeal.
Erroneous Admission of Evidence.
When a criminal trial has been tainted by
the erroneous admission of evidence, a convic-
tion will nonetheless be affirmed if the appel-
late court concludes, beyond a reasonable
doubt, that there is no reasonable possibility
that the error contributed to the conviction.
State v. Eby, 136 Idaho 534, 37 R3d 625 (Ct.
App. 2001).
Standard of Review.
A jury verdict supported by substantial,
competent evidence will not be disturbed on
appeal; the standard of review on appeal
requires a review of the record to determine if
sufficient evidence exists and the court is
precluded from substituting its judgment for
that of the jury as to the credibility of wit-
nesses, the weight of the testimony and the
reasonable inferences to be drawn from the
evidence. Furthermore, on appeal, where a
defendant stands convicted, the evidence is to
be viewed most favorably to the prosecution.
(Ct. App. 1984).
The reviewing court will not disturb a con-
viction for first-degree murder if its search of
the record convinces it, after viewing the
evidence in a light most favorable to the
prosecution, that the murder was willful, de-
liberate and premeditated, or that it was
committed during an attempted or a success-
ful robbery. State v. Merrifield, 109 Idaho 11,
704 P2d 343 (Ct. App. 1985), rev'd on other
grounds, 112 Idaho 365, 732 P.2d 334 (Ct.
App. 1987).
Assault with Intent to Commit.
369 HOMICIDE
18-4003
252 P.2d 524 (1953).
Attempt.
Because intent is not an element of felony
murder, but is an element of attempt to com-
mit a crime, there is no such crime as at-
tempted felony murder. State v. Pratt, 125
Idaho 546, 873 P.2d 800 (1993).
Conviction.
Where defendant was convicted of robbery,
kidnapping and the murder of a U.S. Forest
Service officer shot while in pursuit of defen-
dant, his conviction for first-degree murder
did not rest solely upon subsection (b) of this
section, and vacating his conviction under
subsection (b), upon determining that the
forest service officer was not a peace officer
within the meaning of the subsection, had
absolutely no effect on the jury's independent
finding that defendant was guilty of first-
degree murder under subsection (d) of this
section, thus the conviction of first-degree
murder was affirmed. State v. Pratt, 128
Idaho 207, 912 P.2d 94 (1996).
Degrees Undistinguished at Common
Law.
At common law all murder was of the first
degree and no such distinction was recognized
as that incorporated in this section, designat-
ing degrees. State v. Phinney, 13 Idaho 307,
89 P. 634, 12 L.R.A. (n.s.) 935, 12 Ann. Cas.
1079 (1907).
Dual Juries.
#
The trial court did not deprive the defen-
dant of due process by jointly trying him with
his codefendant and using separate juries
sitting in the same courtroom, where the
codefendant testified before the defendant's
jury, and the defendant had the opportunity
to cross-examine him as to any statements
presented through the testimony of other wit-
nesses. State v. Scroggins, 110 Idaho 380, 716
P.2d 1152 (1985), cert, denied, 479 U.S. 989,
107 S. Ct. 582, 93 L. Ed. 2d 585 (1986).
Evidence.
Where the co-defendant took the stand and
counsel for defendant had full opportunity to
cross-examine, defendant was not denied a
fair trial because his co-defendant's confes-
sion was admitted into evidence. State v.
Bean, 109 Idaho 231, 706 P.2d 1342 (1985).
Where the defendant admitted that she
taped the victim with duct tape prior to his
murder by stabbing, the testimony of the
state's pathologist that the manner in which
the tape was affixed to the victim's face would
have prevented any breathing was relevant to
provide a complete description of the crime
and to show the defendant's state of mind and
intent. State v. Windsor, 110 Idaho 410, 716
P.2d 1182 (1985), cert, denied, 479 U.S. 964,
107 S. Ct. 463, 93 L. Ed. 2d 408 (1986).
the jury finding of the existence of a deliber-
ate and premeditated killing beyond a reason-
able doubt, where upon his arrest, the defen-
dant told the arresting officer that he had
entered his ex-wife's home with a concealed
knife, before killing his ex-wife, the defendant
told her that he was going to kill her, and
additional testimony indicated that the defen-
dant had attempted to purchase a gun for the
purpose of killing his ex-wife. State v.
Kirkwood, 111 Idaho 623, 726 P.2d 735 (1986).
Confession.
Where the defendant was questioned for
five minutes about the location of the murder
victim's car and she then agreed to make a
confession, at which point she was read her
Miranda rights, the defendant was not co-
erced into giving a statement, and the confes-
sion was admissible. State v. Windsor, 110
479 U.S. 964, 107 S. Ct. 463, 93 L. Ed. 2d 408
(1986).
Under the totality of the circumstances,
defendant's confession was informed and vol-
untary, and the officer was not required to
terminate questioning or seek a clarification
of whether defendant did in fact wish to
invoke his right to remain silent when defen-
dant began to say "no more" in response to the
officer's questions. State v. Whipple, 134
Idaho 498, 5 P.3d 478 (Ct. App. 2000).
Photographs.
Although the prosecutor's purported reason
for admitting the photographs of the murder
victim's slit throat was to assist the expert
witness with his testimony, and in retrospect,
the photographs were not used for that pur-
pose, they were nonetheless relevant evidence
where even though the cause of death was
drowning, it was clear that the victim had had
her throat slit and that the throat slitting had
either preceded the drowning or had hap-
pened at the same time. State v. Scroggins,
110 Idaho 380, 716 P.2d 1152 (1985), cert,
denied, 479 U.S. 989, 107 S. Ct. 582, 93 L. Ed.
2d 585 (1986).
Photographs of the victim in a prosecution
for homicide, duly verified and shown by
extrinsic evidence to be faithful representa-
tions of the victim at the time in question, are,
in the discretion of the trial court, admissible
in evidence as an aid to the jury in arriving at
a fair understanding of the evidence. State v.
Windsor, 110 Idaho 410, 716 P2d 1182 (1985),
L. Ed. 2d 408 (1986).
Felony Murder and Firearm Enhance-
ment.
Phrase "in the perpetration of" a crime is
synonymous with the words "while commit-
ting" a crime in Idaho Code
19-2520. State
v. McLeskey, 138 Idaho 691, 69 P.3d 111
(2003).
Felony Murder Rule.
Where victim's death was part of a stream
of events which began on the evening on
which the defendants entered the victim's
home and ended the following day when the
victim's possessions were removed from the
home, the jury's instruction on the felony
murder rule was correct. State v. Fetterly, 109
479 U.S. 870, 107 S. Ct. 239, 93 L. Ed. 2d 164
(1986).
Subsection (d) of this section, the felony
murder rule, does not include any element of
intent; a defendant who participates in a
felony can be held liable for the death of any
person killed during the commission of the
felony, regardless of the individual defen-
dant's intent that a death occur. State v.
Windsor, 110 Idaho 410, 716 P.2d 1182 (1985),
L. Ed. 2d 408 (1986).
Circumstances of the shooting of a store
clerk during an attempted robbery in which
defendant claimed the shooting was acciden-
tal, provided the requisite "intent" for felony
murder. State v. Cambron, 118 Idaho 624, 798
P.2d 469 (Ct. App. 1990).
In order to permit a conviction for felony
murder for the aggravated battery of a child
under twelve years of age, a jury need only be
instructed that the state needs to prove, be-
yond a reasonable doubt, that the perpetrator
had the general intent to commit the under-
lying predicate felony of aggravated battery.
State v. Carlson, 134 Idaho 389, 3 P.3d 67 (Ct.
App. 2000).
The general rationale behind the felony
murder rule is that the intent to commit the
felony substitutes for the malice requirement,
and where the intent to commit the felony
does not arise until after the homicide has
occurred, the rationale behind the rule no
longer applies. State v. Cheatham, 134 Idaho
565, 6 P.3d 815 (2000).
Any murder committed during the perpe-
tration of certain felonies, including at-
tempted robbery, is murder in the first degree
under subsection (d), and any participant in
the predicate felony can be held accountable
for first degree murder for any death that
occurred during the commission of the felony,
regardless of whether that individual directly
participated in the killing or expected or in-
tended a death to occur. State v. Eby, 136
Idaho 534, 37 P.3d 625 (Ct. App. 2001).
First Degree Murder.
Construing this section with 18-4001,
murder committed by means of poison is not
murder in the first degree unless element of
malice aforethought is present; mere fact that
killing has been accomplished by means of
poison does not of itself establish "malice
aforethought." State v. Phinney, 13 Idaho 307,
89 R 634, 12 L.R.A. (n.s.) 935, 12 Ann. Cas.
1079 (1907).
Akilling in attempting to commit robbery is
murder in the first degree. People v. Mooney, 2
Idaho (Hasb.) 17, 2 P. 876 (1888); State v.
Arnold, 39 Idaho 589, 229 P. 748 (1924).
Proof that murder was committed in perpe-
tration of, or attempt to perpetrate, robbery
brings case within the definition of murder in
the first degree, and such proof supplies the
place of proof of deliberation and premedita-
tion. State v. Gruber, 19 Idaho 692, 115 P. 1
(1911).
Where the proof establishes that the killing
was committed in the perpetration or attempt
to perpetrate one of the felonies mentioned in
this section, deliberation and premeditation
are implied and need not be otherwise proven.
State v. Reding, 52 Idaho 260, 13 P.2d 253
(1932).
Evidence that two bedrooms had been
ramsacked, contents of dressing table and
bureau had been scattered about and purses
were open and empty was sufficient to go to
jury on question of whether or not the killing
had occurred in the perpetration or attempted
perpetration of a robbery. State v. Golden, 67
Idaho 497, 186 P.2d 485 (1947).
Where defendants entered store for purpose
of committing armed robbery, and one defen-
dant displayed a gun and stated it was a
holdup but retreated as proprietor advanced
with meat cleaver and after giving warning
shots fired again and killed proprietor the
defendants were guilty of first degree murder.
Shepherd, 94 Idaho 227, 486 P.2d 82 (1971).
Regardless of the existence or nonexistence
of any intent to fire a weapon, the killing of a
person during the commission of a felony
would trigger the felony-murder rule. Still v.
State, 97 Idaho 375, 544 P.2d 1145 (1976).
Where a review of the record indicated very
substantial evidence, direct and circumstan-
tial, connecting defendant to the victim, the
murder weapon and the murder scene and
pointing to the defendant's guilt of the crime
of premeditated first-degree murder in the
stabbing death of defendant's drug supplier,
defendant's allegations of insufficiency of evi-
dence were unfounded. State v. Major, 105
Idaho 4, 665 P.2d 703 (1983).
371 HOMICIDE
18-4003
111 L. Ed. 2d 803 (1990).
Statutory aggravating factor in Idaho Code
19-25 15(h)(9) is appropriate only to those

cases where a police officer is killed by reason
of the performance of an official duty; there-
fore, a district court did not err by imposing a
life sentence in a first-degree murder case
because the evidence showed that the officer
was not killed because of any interaction or
relationship with defendant. State v. Yager,
Idaho , 85 P.3d 656 (2004).

Guilty Pleas.
Where the defendant agreed to plead guilty
to the charge of first-degree murder in ex-
change for the prosecutor's agreement to dis-
miss pending charges of robbery, grand lar-
ceny, and illegal possession of a firearm and to
refrain from requesting the death penalty,
such guilty plea was properly accepted by the
court where the judge made a full record
concerning the matters governed by I.C.R.
11(c), pertaining to the acceptance of a guilty
plea and took special care to ensure that the
defendant understood the elements of first-
degree murder, including premeditation, even
though the defendant denied premeditation,
since there was a strong factual basis for
pleading guilty to the offense as charged, and
the plea was entered knowingly, voluntarily
and intelligently. State v. Hoffman, 108 Idaho
720, 701 P.2d 668 (Ct. App. 1985).
Where defendant entered plea of guilty
pursuant to written plea agreement to charge
of second degree murder and after
presentence report was received but prior to
sentencing she moved to withdraw her guilty
plea, where record showed that defendant
understood the nature of the charge and the
evidence against her, understood that the
possible penalty was an indeterminate ten
years to life, understood the nature of an
Alford plea, had been adequately informed
regarding the intent element of second degree
murder, and entered her guilty plea intelli-
gently and voluntarily, district court did not
err in concluding that defendant presented no
justifiable reason for granting motion to with-
draw guilty plea. State v. Hansen, 120 Idaho
286, 815 P.2d 484 (Ct. App. 1991).
Included Offense.
Where all the elements required to sustain
a conviction of robbery were also within the
elements needed to sustain a conviction of
felony murder, robbery was a lesser included
offense of felony-murder, and, therefore, the
robbery conviction merged as a lesser in-
cluded offense of the felony murder convic-
tion. Sivak v. State, 112 Idaho 197, 731 P.2d
192 (1986).
Premeditated killing must be charged in
order to sustain conviction of murder in the
first degree. People v. O'Callaghan, 2 Idaho
(Hasb.) 156, 9 P. 414 (1886).
Indictment charging a wounding done with
felonious intent, in consequence of which
death resulted, charges murder without
charging an intent to kill. Territory v. Evans,
2 Idaho (Hasb.) 425, 17 P. 139 (1888).
It is not requisite or essential that the
words defining degrees of murder should be
set forth in indictment to constitute a good
indictment for murder in first degree. State v.
Ellington, 4 Idaho 529, 43 P. 60 (1895).
Where information charges murder in lan-
guage of the statute only, person charged may
be found guilty of only murder in one of the
degrees specified in the statute. In re McLeod,
23 Idaho 257, 128 P. 1106, 43 L.R.A. (n.s.) 813
(1913).
The information was sufficient to charge
defendant with felony murder where, rather
than using the word murder, the information
charged that the victim died in the commis-
sion of a robbery, because the words used in
an information need not precisely track the
language of the statute defining an offense.
State v. Lundquist, 134 Idaho 831, 11 P3d 27
(2000).
Instruction to Jury.
On a trial for murder it is the duty of court
to give an instruction to jury, if requested,
that they can find defendant guilty of a less
grade of offense than murder in the first
degree, if warranted by the evidence; and
refusal to give such instruction is error. Peo-
ple v. Dunn, 1 Idaho 74 (1866).
Instruction that death caused by attempt to
cause unnatural abortion when not necessary
to save woman's life constitutes crime of mur-
der in the second degree, or manslaughter, is
erroneous. State v. Alcorn, 7 Idaho 599, 64 P.
1014, 97 Am. St. R. 252 (1901).
In prosecution for murder this instruction
was given: "It is claimed, that this is murder
in the first degree, as being unlawful, mali-
cious, wilful, deliberate, and premeditated.
There need be no appreciable space of time
between the intention to kill and the act of
killing; they may be as instantaneous as suc-
cessive thoughts of the mind. It is only neces-
sary that the act of killing be preceded by a
concurrence of will, deliberation and premed-
itation on the part of the slayer, and if such is
the case the killing is murder of the first
degree, no matter how rapidly these acts of
the mind may succeed each other or how
quickly they may be followed by the act of
killing." It was held that omission of the word
"malice" in the last sentence did not vitiate
instruction. State v. Snuff, 9 Idaho 115, 72 P.
664 (1903).
An instruction that the state contended
that a killing was wilful, deliberate and pre-
meditated murder, and that it was committed
in the perpetration of, or attempt to perpe-
trate, robbery, was not error, though the court
did not instruct that defendant denied the
robbery or attempted robbery, since the court
gave a general instruction that it was incum-
bent on the state to prove every material
allegation of the information and that defen-
dant was presumed to be innocent until the
contrary was proven beyond a reasonable
doubt. State v. Golden, 67 Idaho 497, 186 P.2d
485 (1947).
instruction to the jury stating the degrees of
murder, although there was no evidence of
"lying in wait, poison, torture, arson, rape,
robbery, burglary, kidnapping, or mayhem."
State v. Anstine, 91 Idaho 169, 418 P.2d 210
(1966).
tially in the language of 18-4001, accompa-
nied by other instructions defining "malice
aforethought" substantially in the language of
18-4002 and defining the terms "felonious-

ly," "wilfully," "premeditatedly," and "deliber-
ately," and defining the degrees of murder
substantially in the language of the former
section, adequately distinguished between
murder in the first and second degrees. State
v. Gonzales, 92 Idaho 152, 438 P.2d 897
(1968).
tially in the language of
18-4001, accompa-
nied by other instructions defining "malice"
substantially in the language of
18-4002
and defining "wilfulness," "deliberation," and
"premeditation," and defining the degrees of
murder, adequately distinguished between
murder in the first and second degrees. State
v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984).
The trial court was correct in refusing to
give the defendant's requested instruction
that a burglary and a murder must be part of
a continuous action closely related in time,
place, and causal relation before the murder
can be found to be in the perpetration of the
felony. State v. Windsor, 110 Idaho 410, 716
P.2d 1182 (1985), cert, denied, 479 U.S. 964,
107 S. Ct. 463, 93 L. Ed. 2d 408 (1986).
tions between each, including intent. State v.
Enno, 119 Idaho 392, 807 P.2d 610 (1991).
1828, 131 L. Ed. 2d 749 (1995).
Killing During Robbery.
Where, not only were the murders in ques-
tion committed in the course of a robbery, but
(1) there was substantial evidence showing
specific intent to cause both deaths, even if
the robbery had not occurred, and (2) there
was substantial evidence showing that the
murders were willful, deliberate and premed-
itated, the robbery did not provide the means
of convicting defendant of premeditated first
degree murder, and therefore, the robbery
was not a lesser included offense of that crime
and was not merged with that conviction.
State v. Pizzuto, 119 Idaho 742, 810 P.2d 680
1268, 117 L. Ed. 2d 495 (1992), overruled on
other grounds, State v. Card, 121 Idaho 425,
825 P.2d 1081 (1991), cert, denied, 506 U.S.
915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992),
117 L. Ed. 2d 495 (1992).
The Supreme Court reversed the district
judge's order reducing the felony murder
charges to second degree murder, because,
although the district judge correctly deter-
mined that the intent to commit the underly-
ing felony must exist prior to the homicide,
the state had presented sufficient evidence to
support submitting the issue of intent to a
jury. State v. Cheatham, 134 Idaho 565, 6 P3d
815 (2000).
Malice.
(Ct. App. 1984).
Where a defendant uses a deadly weapon in
a deadly manner, the element of malice can be
presumed. State v. Ziegler, 107 Idaho 1133,
695 P.2d 1272 (Ct. App. 1985).
Where the victim had ligature marks on her
neck and a plastic bag pulled and tied over
her head, the jury could reasonably conclude
that the evidence represented the requisite
malice aforethought to find the defendant
guilty of second degree murder. State v.
Kuzmichev, 132 Idaho 536, 976 P.2d 462
(1999).
Motive.
Although the former section made no men-
tion of "motive," it was the prerogative of the
prosecution to introduce evidence of "motive"
and once such evidence was introduced into
the case, it would have been proper for the
trial court to instruct the jury with respect to
that issue. State v. Radabaugh, 93 Idaho 727,
471 P.2d 582 (1970).
Premeditation.
P.2d 524 (1953).
Officer.
Premeditation does not require an appre-
ciable space of time between the intention to
kill and the killing, but they may be as
instantaneous as two successive thoughts of
the mind. Carey v. State, 91 Idaho 706, 429
P.2d 836 (1967).
To establish the crime of murder in the first
degree, direct evidence of the elements of
deliberation and premeditation is not re-
quired, those elements being capable of infer-
ence from the proof of such facts and circum-
stances as will furnish a reasonable
foundation for such inference where the evi-
dence is not in law insufficient, the determi-
nation of the matter rests within the exclu-
sive province of the trier of fact. State v. Foley,
95 Idaho 222, 506 P2d 119 (1973).
Direct evidence of a deliberate and premed-
itated purpose to kill is not required; such a
purpose may be inferred from the facts and
circumstances of the killing. Further, premed-
itation does not require an appreciable space
of time between the intention to kill and the
killing
they may be instantaneous as two

successive thoughts of the mind. State v.
Wolfe, 107 Idaho 676, 691 P.2d 1291 (Ct. App.
1984).
Neither
19-510 nor 19-5101(d) apply to
the relevant terms enumerated in subsection
(b) of this section. State v. Pratt, 125 Idaho
546, 873 P.2d 800 (1993).
A law enforcement officer of the United
States Forest Service, who was killed in a
shoot-out on private land, was not a peace
officer "acting in the lawful discharge of his
duty" as contemplated by subdivision (b) of
this section. State v. Pratt, 125 Idaho 594, 873
P.2d 848, cert, denied, 513 U.S. 1005, 115 S.
Ct. 521, 130 L. Ed. 2d 426 (1994).
Second Degree Murder.
Criminal operation resulting in death, an
abortion not being necessary to save life of the
woman, is murder in second degree. State v.
Alcorn, 7 Idaho 599, 64 P. 1014, 97 Am. St. R.
252 (1901).
Conviction of second degree murder. State
v. Marren, 17 Idaho 766, 107 P. 993 (1910).
Malice aforethought is necessary element of
murder whether it be first or second degree,
but premeditation, as used in this section, is
not included in murder of the second degree.
State v. Dong Sing, 35 Idaho 616, 208 P. 860
(1922).
Intent to take life or a mental state of
having an abandoned and malignant heart is
an essential ingredient of second degree mur-
der. State v. Van Vlack, 57 Idaho 316, 65 P.2d
736 (1937).
The elements of the crime of murder in the
second degree are: (a) an unlawful killing, (b)
the intent to kill, and (c) malice. State v.
Atwood, 105 Idaho 315, 669 P.2d 204 (Ct. App.
1983).
Sentence.
Fifteen-year sentence given defendant
upon plea of guilty to second degree murder
was not an abuse of court's discretion, being
well within the statutory limits and consis-
tent with the plea bargain. State v. Bradley,
98 Idaho 918, 575 P2d 1306 (1978).
Section 18-4004 requires, upon conviction
for first-degree murder, punishment of either
death or a life sentence. The trial judge may
not impose a lesser, fixed term sentence; thus,
the 25 year fixed sentence the defendant
received was illegal, and was therefore va-
cated and remanded to the district court to
impose a legal sentence. State v. Merrifield,
109 Idaho 11, 704 P.2d 343 (Ct. App. 1985),
rev'd on other grounds, 112 Idaho 365, 732
P.2d 334 (Ct. App. 1987).
A 15 year fixed term for attempted second
candidate for verbal psychotherapy and even
P.2d 456 (Ct. App. 1992).
sentence, with fifteen years determinate for
ter of the offense was vicious and unprovoked
Idaho 374, 859 P.2d 972 (Ct. App. 1993).
Sentence imposed upon co-defendant of two
life terms without possibility of parole for
guilty plea to two counts of murder in the first
degree was not excessive nor an abuse of
discretion where crimes of defendant were
particularly heinous and egregious and defen-
dant's attitudes, behaviors and characteris-
tics demonstrated a contempt for the law and
the order of society, as well as an utter disre-
gard for human life. State v. Johnson, 127
Idaho 279, 899 P.2d 989 (Ct. App. 1995).
1995).
Where the district court considered defen-
dant's young age, lack of intellect and child-
hood abuse as mitigating factors, yet con-
cluded that the heinous nature of the crime
and poor prognosis for rehabilitation required
that court be attentive to the sentencing goals
of punishment and deterrence, conviction and
unified life sentence with minimum 29 years
for first degree murder of his two and one-half
year old stepson was affirmed. State v.
Walker, 129 Idaho 409, 925 P.2d 413 (Ct. App.
1996).
Where, after binding victim (an acquain-
tance), beating and humiliating him, defen-
dant put his gun against victim's head and
shot him and then burned the body and bur-
ied him in a shallow grave and after being
arrested for first degree murder, defendant
pled guilty to second degree murder, sentence
of indeterminate life sentence, with a mini-
mum period of confinement of twenty-five
years under the facts of the case was not
disproportionate to the crime committed and
because of the particularly heinous nature of
the crime, and the fact that the minimum
period of confinement of 25 years was the
probable duration of confinement, such sen-
tence was not excessive. State v. Robertson,
130 Idaho 287, 939 P.2d 863 (Ct. App. 1997).
Where the district court concluded that
punishment, deterrence, and the protection of
society greatly outweighed any consideration
of rehabilitation, the gravity of the offense in
the instant case was sufficiently egregious to
justify the district court's conclusion, and the
district court did not abuse its discretion in
imposing a fixed life sentence for second de-
gree murder. State v. McKnight, 135 Idaho
440, 19 P.3d 64 (Ct. App. 2000).
Where the evidence showed that defendant
and his wife had contemplated divorce and
had separated, that defendant had picked up
his shotgun at his cabin outside of town, and
that on the fatal evening his truck was seen
outside the deceased's home amid loud de-
mands by a male voice for entry, and later a
voice, identified as his, reported the homicide
anonymously, the jury had sufficient circum-
stantial evidence from which to infer that the
defendant was guilty of the murder. State v.
Fenley, 103 Idaho 199, 646 P.2d 441 (Ct. App.
1982).
Where the evidence showed that the defen-
dant had previously threatened and mis-
treated the eight-month-old murder victim,
that the death could only have been caused by
several blows to the head of extraordinary
force, and that the defendant was at the scene
of the crime and refused to aid the victim, the
evidence was sufficient to uphold the jury's
finding that the killing was premeditated and
deliberate. State v. Aragon, 107 Idaho 358,
690 P.2d 293 (1984).
Where the defendant entered a bar armed
with a loaded revolver, confronted his wife
and the man she was speaking to at the bar,
and very few words were exchanged before
the defendant began firing his weapon, the
jury could easily have concluded that the
defendant entered the bar with the intent to
kill or that the intent was formed on his
finding his wife in the company of another
man; thus, there was sufficient evidence of
malice aforethought to sustain the verdict of
second degree murder. State v. Valdez-Abrejo,
108 Idaho 79, 696 P.2d 930 (Ct. App. 1985).
Given the totality of the evidence and the
overwhelming nature of the evidence properly
admitted, the admission into evidence of the
various physical items, such as a straight
edge razor, guns and knives, did not consti-
tute reversible error because it was harmless
beyond a reasonable doubt. State v. Bean, 109
Idaho 231, 706 P.2d 1342 (1985).
There was competent substantial evidence
to support defendant's conviction for the first
degree murder of a bail bondsman, because
the bondsman had been looking for defendant
for several months prior to the shooting, de-
fendant showed his desire to evade legal ac-
tion against him, the evidence showed that
defendant removed bags from his hands after
being taken into custody, and the jury could
find from the fact that the pipe lying next to
the bondsman's body had no fingerprints on it
that defendant had put it there to support his
claim of self-defense. State v. Sheahan,

Idaho , 77 P.3d 956 (2003).
Defendant's first-degree murder conviction
was proper where there was overwhelming
evidence against defendant and he failed to
show that the setting of the trial was inher-
ently prejudicial; further, the State asserted
no facts to show any prior interaction between
defendant and the victim that might have
explained defendant's actions which were di-
rected at the victim personally and the dis-
trict court's finding that the victim's mere
status as a police officer was the basis for her
murder was thus insufficient to support a
conclusion that the aggravating factor was
proven beyond a reasonable doubt. State v.
Yager,
Idaho , 85 P.3d 656 (2004).

Testimony.
In a prosecution for first-degree murder
which resulted in conviction for second-degree
murder, testimony of witness that photograph
of red pill looked similar to red pill which
defendant took in a bar shortly before leaving
and killing two men was insufficient predicate
to support answer to hypothetical question
posed to psychiatrist witness who identified
drug pictured in photograph. State v.
Birrueta, 101 Idaho 915, 623 P.2d 1292
(1981).
Torture Murder.
Intent.
Section 18-4001 provides that, irrespective
of proof of intent to cause suffering, the inflic-
tion of extreme and prolonged acts of brutal-
ity is torture, and torture causing death shall
be deemed the equivalent of intent to kill;
therefore, the infliction of extreme and pro-
longed acts of brutality not accompanied by
proof of intent to cause suffering, or by proof
of executing vengeance, or by proof of extor-
tion, or by proof of satisfying a sadistic incli-
nation, is second degree torture murder. State
v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993).
Second degree murder by torture, i.e., bru-
tality torture murder, without a demonstra-
tion of intent as provided in this section, is a
lesser included offense of first degree torture
murder. State v. Tribe, 123 Idaho 721, 852
P.2d 87 (1993).
"Pain torture murder" is always in the
category of first degree inasmuch as this sec-
tion includes "torture, when torture is in-
flicted with the intent to cause suffering," but
the intent to cause suffering need not be
established where the charge is that the de-
fendant possessed the intent to execute ven-
geance, to extort something from the victim,
or to satisfy a sadistic inclination. State v.
Tribe, 126 Idaho 610, 888 P2d 389 (Ct. App.
1994).
Jury Instruction.
A jury instruction as to a charge of first
degree torture murder should state that first
degree murder by torture consists of death of
the victim caused by the intentional infliction
of extreme and prolonged pain with the intent
to cause suffering, or the death of the victim
caused by the infliction of extreme and pro-
longed acts of brutality with the intent to
cause suffering, to execute vengeance, to ex-
tort something from the victim, or to satisfy a
sadistic inclination. State v. Tribe, 123 Idaho
721, 852 P.2d 87 (1993).
Verdict.
said he didn't have the lighter was sufficient
73 Idaho 365, 252 P.2d 524 (1953).
cutting the victim's throat and then hacking
and cutting until he had killed the deceased
the death sentence under the circumstances
was not an abuse of discretion by the trial
(1957).
P2d 706 (1957).
Collateral References. See
18-4001
Collateral References.
Intent to aid and abet perpetrator, or enter-
ing into his design, as necessary to make one
present at homicide without preconcert or
conspiracy, criminally responsible. 12 A.L.R.
277.
Admissibility of dying declaration with re-
spect to transaction prior to homicide. 14
A.L.R. 757.
Homicide by unlawful act aimed at another.
18 A.L.R. 917.
Criminal responsibility of peace officers for
killing one who they wished to investigate or
identify. 18 A.L.R. 1368; 61 A.L.R. 321.
Instruction as to lesser degree of crime,
duty of court as to, where statute fixes degree
of homicide in perpetration of felony. 21
A.L.R. 628; 27 A.L.R. 1097; 102 A.L.R. 1019.
Entrapment to attempt to commit murder.
66 A.L.R. 504; 86 A.L.R. 263.
Amendment of verdict to correct defect in
omitting to find degree or nature of crime,
reassembling jury after discharge for purpose
of. 66 A.L.R. 557.
Intoxication as affecting deliberation and
premeditation. 79 A.L.R. 904.
Arson, necessity of intent to kill to bring
death resulting from, within statute making
homicide in perpetration of felony murder in
first degree. 87 A.L.R. 414.
Escape from scene of crime, homicide by
companion of defendant while attempting to
make, as murder in first degree. 108 A.L.R.
847.
Instructions, applying rule of reasonable
doubt as to intent or malice as curing error in
instruction placing burden of proof upon de-
fendant in that regard. 120 A.L.R. 610.
Inference of intent to kill where killing is by
blow without weapon. 22 A.L.R.2d 854.
Pregnancy as element of offense of attempt
to procure a miscarriage or of homicide pred-
icated in such attempt. 46 A.L.R.2d 1393.
Homicide as affected by time elapsing be-
tween wound and death. 60 A.L.R.3d 1316.
Spouse's confession of adultery as affecting
degree of homicide involved in killing spouse
or his or her paramour. 93 A.L.R.3d 925.
18-4004. Punishment for murder.

Subject to the provisions of
sections 19-2515 and 19-2515A, Idaho Code, every person guilty of murder
of the first degree shall be punished by death or by imprisonment for life,
provided that a sentence of death shall not be imposed unless the prosecut-
ing attorney filed written notice of intent to seek the death penalty as
required under the provisions of section 18-4004A, Idaho Code, and pro-
vided further that whenever the death penalty is not imposed the court shall
impose a sentence. If a jury, or the court if a jury is waived, finds a statutory
aggravating circumstance beyond a reasonable doubt but finds that the
imposition of the death penalty would be unjust, the court shall impose a
fixed life sentence. If a jury, or the court if a jury is waived, does not find a
statutory aggravating circumstance beyond a reasonable doubt or if the
death penalty is not sought, the court shall impose a life sentence with a
minimum period of confinement of not less than ten (10) years during which
period of confinement the offender shall not be eligible for parole or
discharge or credit or reduction of sentence for good conduct, except for
meritorious service. Every person guilty of murder of the second degree is
punishable by imprisonment not less than ten (10) years and the imprison-
ment may extend to life. [I.C.,

18-4004, as added by 1972, ch. 336, 1, p.
844; am. 1973, ch. 276, 2, p. 588; am. 1977, ch. 154, 3, p. 390; am. 1986,
ch. 232, 2, p. 638; am. 1998, ch.
96, 1, p. 343; am. 2003, ch.
19, 1, p.
71; am. 2003, ch. 136, 1, p. 394.1
amended by two 2003 acts which appear to be
compatible and have been compiled together.
The 2003 amendment by Ch. 19, 1, re-
wrote the section to add language relating to
the jury or the court finding a statutory ag-
gravating circumstance beyond a reasonable
doubt.
inserted "and 19-2515A"near the beginning of
the section, and made a stylistic change.
A former section, which comprised Cr. & P.
1864, 17; R.S., & R.C., 6563; am. S.L.
1911, ch. 68, 1, p. 190; reen. C.L., 6563;
C.S., 8212; I.C.A., 17-1104, was repealed
1,
1972, ch. 336, 1 restored the subject matter
its repeal.
as
19-2513.
Section 2 of S.L. 2003, ch. 136, is compiled
as
19-2126.
act shall be in full force and effect on and after
February 1, 1987, and the amendments in
this act shall apply only to those persons who
shall commit an offense on or after February
1, 1987, and are not intended to repeal or
amend those provisions of the Code which
apply to persons committing an offense prior
to February 1, 1987, which provisions shall
continue to apply, and further that amend-
ments in this act are not intended to repeal or
amend sections 19-2520, 19-2520A, 19-2520B,
29-2520C or 29-2520D, Idaho Code."
Title of 1986 Act. Section 1 of S.L. 1986,
ch. 232 read: "This act shall be known as the
'Unified Sentencing Act of
1986.'"
emergency. Approved February 13, 2003.
Cited in: State v. De La Paz, 106 Idaho
924, 684 P.2d 326 (Ct. App. 1984); Lindquist v.
Gardner, 770 F.2d 876 (9th Cir. 1985); State v.
Nellsch, 110 Idaho 594, 716 P.2d 1366 (Ct.
App. 1986); State v. Martinez, 111 Idaho 281,
723 P.2d 825 (1986); State v. Sanders, 112
Idaho 599, 733 P.2d 820 (Ct. App. 1987); Hays
v. State, 113 Idaho 736, 747 P.2d 758 (Ct. App.
1987); State v. Flora, 115 Idaho 397, 766 P.2d
1278 (Ct. App. 1988); State v. Romero, 116
Idaho 391, 775 P.2d 1233 (1989); State v.
Jaggers, 117 Idaho 559, 789 P.2d 1150 (Ct.
App. 1990); Bean v. State, 119 Idaho 632, 809
P.2d 493 (1991); State v. Leavitt, 121 Idaho 4,
822 P.2d 523 (1991); State v. Kersey, 121
Idaho 636, 826 P.2d 1348 (Ct. App. 1992);
State v. Pratt, 125 Idaho 546, 873 P.2d 800
(1993); State v. Shanahan, 133 Idaho 896, 994
P.2d 1059 (Ct. App. 1999); State v. Maynard,
Idaho ,

P.3d , 2004 Ida. LEXIS 13
(Feb. 11, 2004).
Analysis
Certainty of verdict.
Constitutionality.
Death penalty.
Denial of guilt.
Discretion of trial court.
Due process.
Effect on capacity of jurors.
Guilty plea.
4
Breach.
Indeterminate life sentence.
Parole eligibility.
Right to jury.
Sentence.
Analysis of co-defendant's sentences.
Excessive.
Factors considered.
Fixed term.
Illegal lesser sentence.
Life term.
Life without parole.
Minimum.
Not excessive.
Prosecutor's recommendations.
Statement of reasons.
Unified Sentencing Act.
Unified term.
Validity.
Victim impact.
Who may fix.
Validity of sentence.
Certainty of Verdict.
Verdict of murder in first degree and fixing
penalty at "execution" is not uncertain, as
punishment indicated is death. State v.
Ramirez, 33 Idaho 803, 199 P. 376 (1921).
Constitutionality.
This section is constitutional. State v. Van
Vlack, 58 Idaho 248, 71 P.2d 1076 (1937).
This state's capital sentencing scheme does
not violate the state and federal Constitutions
because of its failure to require that a jury, not
the judge, impose a sentence of death. State v.
Scroggins, 110 Idaho 380, 716 P.2d 1152
582, 93 L. Ed. 2d 585 (1986); State v. Windsor,
110 Idaho 410, 716 P2d 1182 (1985), cert,
denied, 479 U.S. 964, 107 S. Ct. 463, 93 L. Ed.
2d 408 (1986).
Death Penalty.
The version of this section in effect at the
time defendant was sentenced to death in
February, 1976, which required that "every
person guilty of murder in the first degree . .
.
suffer death," was unconstitutional under
Woodson v. North Carolina, 428 U.S. 280, 96
S. Ct. 2978, 49 L, Ed. 2d 944 (1976). State v.
Lindquist, 99 Idaho 766, 589 P.2d 101 (1979)
(decision prior to 1977 amendment).
Where a defendant was found guilty of
first-degree murder, under the version of this
section in effect in 1976, which mandated the
death penalty, and that sentence could not be
constitutionally imposed, the case had to be
remanded to the district court for resentenc-
ing to any punishment permitted for the con-
viction of the lesser included offense of sec-
ond-degree murder, of which he was also
necessarily found guilty. State v. Lindquist,
99 Idaho 766, 589 P.2d 101 (1979) (decision
prior to 1977 amendment).
The death penalty is not an unduly severe
punishment for an aider and abettor to a
murder when that person intends that a kill-
ing take place; accordingly, where there was
no doubt from the evidence that defendant
intended that victim be killed in order to
conceal another murder, which she witnessed,
the death penalty was appropriate. State v.
Gibson, 106 Idaho 54, 675 P2d 33 (1983), cert,
denied, 468 U.S. 1220, 104 S. Ct. 3592, 82 L.
Ed. 2d 888 (1984).
Where according to the jury verdict, the
defendant did not personally commit the
crime of murder, but aided and abetted the
commission of a felony murder, the defendant
not only reported the crime to the police but
insisted upon taking them to the crime scene
even when they disbelieved his story, he did
not have a history of violent criminal conduct,
and at the time of the crime, he was 18 years
old and his mental age was 13.8 years, the
death sentence as applied to the defendant
was excessive. State v. Scroggins, 110 Idaho
380, 716 P.2d 1152 (1985), cert, denied, 479
U.S. 989, 107 S. Ct. 582, 93 L. Ed. 2d 585
(1986).
Where both the trial judge and the jury
found that the defendant intentionally partic-
ipated in a killing while perpetrating a felony,
there was no merit to the defendant's conten-
tion that the imposition of the death penalty
was constitutionally impermissible under the
mandate of Enmund v. Florida, 458 U.S. 782,
102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982),
which held that the Eighth Amendment of the
United States Constitution forbids the impo-
sition of the death penalty against one who
neither took life, attempted to take life, nor
intended to take life. State v. Windsor, 110
479 U.S. 964, 107 S. Ct. 463, 93 L. Ed. 2d 408
(1986).
In prosecution for first degree murder
where at arraignment court informed defen-
dant the maximum punishment he could re-
ceive would be imprisonment for life, or
death, and after he was found guilty, court
required state to provide notice whether it
would seek the death penalty and state filed a
negative response and there was no discus-
sion of the death penalty as a possible sen-
tence and both the state and defendant's
counsel argued the merits of concurrent, in-
determinate life sentences and consecutive
indeterminate life sentences, but made no
reference to the death penalty, and trial judge
at end of hearing stated that he considered
defendant's testimony unworthy of belief and
the seriousness of the crime warranted more
severe punishment than that which the state
had recommended and he described the op-
tions of punishment available to the court
including the indeterminate life sentence rec-
ommended by the state or a fixed life sen-
tence, and then sentenced defendant to death,
defendant did not have adequate notice that
judge might sentence him to death to satisfy
the requirements of the due process clause of
the 14th amendment. Lankford v. Idaho, 500
U.S. 110, 111 S. Ct. 1723, 114 L. Ed. 2d 173
(1991).
Where in sentencing defendant convicted of
murder and sentenced to death, judge found
defendant did not instigate fight with the
victim, but victim without provocation at-
tacked him, and while he was initially justi-
fied in protecting himself, after victim was
helpless, defendant killed him, by the murder
itself or the circumstances surrounding its
commission defendant did not demonstrate
that he was a cold-blooded pitiless killer and
thus such limited construction of
19-
2515(g)(6) (now (h) (6)) was unconstitution-
ally vague. Creech v. Arave, 928 F.2d 1481
(9th Cir. 1991).
Wherejudge, in trial of defendant convicted
of murder and sentenced to death, failed to
indicate that he found specific intent beyond a
reasonable doubt before applying
19-
2515(g)(7)(now (h)
(7)),
petitioner for habeas
corpus was entitled to release if judge at
resentencing applied the aggravating circum-
stances under this section without making a
finding of specific intent. Creech v. Arave, 928
F.2d 1481 (9th Cir. 1991).
Denial of Guilt.
A court may consider a denial of guilt in
determining whether a defendant has taken
the first necessary step towards rehabilita-
tion, although a refusal to admit guilt usually
should not be given much weight. State v.
Waddell, 119 Idaho 238, 804 P.2d 1369 (Ct.
App. 1991).
Discretion of Trial Court.
The trial court had no other alternative
than to find the defendant guilty of wilful,
deliberate, and premeditated killing with
malice aforethought in view of the defendant's
act of deliberately opening up a pocket knife,
next cutting the victim's throat and then
hacking and cutting until he had killed the
deceased and expended himself and the impo-
sition of the death sentence under the circum-
stances was not an abuse of discretion by the
trial court under such facts and circum-
stances. State v. Snowden, 79 Idaho 266, 313
P.2d 706 (1957).
Where the trial evidence supported the
findings that the defendant carefully planned
the killing, carried out the killing, and
bragged about committing the murder and
where the defendant acknowledged that no
additional information was presented to sup-
port his Rule 35 motion, the district court's
imposition of a fixed life sentence and the
subsequent denial of defendant's motion for
reduction of the sentence was not an abuse of
the court's discretion. State v. Priest, 128
Idaho 6, 909 P.2d 624 (Ct. App. 1995).
Court did not abuse its discretion in sen-
tencing defendant to 45 years where the de-
tails of the crime were shocking, he had a
lengthy criminal history, and testimony es-
tablished that he posed a threat to others.
State v. Johnson, 136 Idaho 701, 39 P.3d 641
(Ct. App. 2001).
Due Process.
A defendant in a first-degree murder trial
was not denied due process because the state
did not formally notify him that it was seek-
ing the death penalty or forewarn him as to
which aggravating circumstances it would
seek to prove beyond a reasonable doubt at
the sentencing hearing where, upon pleading
guilty to a charge of first-degree murder, the
defendant was informed that he could be
sentenced to death or to a determinate or
indeterminate sentence of life imprisonment
and the record reflected that the court made
the sentencing possibilities abundantly clear
to the defendant more than once during the
proceedings and at each point in the proceed-
ings where the plea of the defendant was
discussed. State v. Osborn, 102 Idaho 405, 631
P.2d 187 (1981).
Effect on Capacity of Jurors.
Person with conscientious scruples against
capital punishment is not qualified to sit as
juror where first degree murder is charged.
State v. Wilson, 41 Idaho 616, 243 P. 359
(1925).
Trial court did not err in permitting state to
challenge six veniremen for implied bias in
trial of defendants for first degree murder
where veniremen challenged stated they
could not vote for death penalty even though
they could and would determine guilt or inno-
cence of defendants. State v. Owen, 73 Idaho
394, 253 P. 2d 203 (1953), overruled on other
grounds, State v. Shepherd, 94 Idaho 227, 486
P.2d 82 (1971).
Although it was error for the district court
to have excluded veniremen opposed to capi-
tal punishment, because the jury returned a
verdict of murder in the second degree, which
at once precluded their recommending the
death penalty, such error was harmless. State
v. Dillon, 93 Idaho 698, 471 P2d 553 (1970),
Ed. 2d 223 (1971).
Imposition of sentence to life imprisonment
upon defendant who pleaded guilty to charge
of first degree murder even though his accom-
plice did the actual killing would not be set
aside absent an abuse of discretion by the
trial court. State v. Atwood, 95 Idaho 124, 504
P2d 397 (1972).
It was not error for the trial court to dismiss
jurors for cause when those jurors had de-
clared that due to their strong feelings
against the death penalty, they would vote not
to convict no matter what the evidence
showed. State v. Creech, 99 Idaho 779, 589
P.2d 114 (1979).
Guilty Plea.
Where defendant entered plea of guilty
pursuant to written plea agreement to charge
of second degree murder and after
presentence report was received but prior to
sentencing she moved to withdraw her guilty
plea, where record showed that defendant
understood the nature of the charge and the
evidence against her, understood that the
possible penalty was an indeterminate ten
years to life, understood the nature of an
Alford plea, had been adequately informed
regarding the intent element of second degree
murder, and entered her guilty plea intelli-
gently and voluntarily, district court did not
err in concluding that defendant presented no
justifiable reason for granting motion to with-
draw plea. State v. Hansen, 120 Idaho 286,
815 P.2d 484 (Ct. App. 1991).
Breach.
Where defendant entered a plea of guilty
pursuant to written plea agreement to a
charge of second degree murder of her hus-
band under 18-4003(g) and in such agree-
ment prosecutor agreed not to seek a sentence
in excess of 20 years and not to produce
aggravating evidence at sentencing except to
rebut any mitigating evidence put on by de-
fendant, prosecutor's action during sentenc-
ing hearing of reading portions of love letters
written by defendant to male inmate while
both were incarcerated in the county jail, did
not constitute a breach of the plea agreement
since the information was already a part of
the record, the prosecutor's comments were
argument and not necessarily fact and they
were presented as rebuttal to arguments
made by defendant's attorney regarding de-
fendant's remorse over the death of her hus-
band. State v. Hansen, 120 Idaho 286, 815
P2d 484 (Ct. App. 1991).
Indeterminate Life Sentence.
One convicted of first degree murder may
be sentenced to an indeterminate life sen-
tence and if the sentence is for indeterminate
life,

20-223, setting forth powers of the
state board of correction, prohibits release on
parole until ten years have been served; nev-
ertheless, a sentence for a fixed term of ten
years is in no sense of the phrase a life
sentence. State v. Wilson, 107 Idaho 506, 690
P2d 1338 (1984).
If, in light of the facts, the sentence is
reasonable, the court then considers whether
the period of confinement under the sentence
is reasonable. Where defendant was sen-
for manslaughter and to a consecutive inde-
terminate life term for first degree murder, a
period of confinement for at least 15 years
was not unreasonable. State v. Plumley, 109
Idaho 369, 707 P.2d 480 (Ct. App. 1985).
An indeterminate life sentence imposed for
second degree murder was not an abuse of
discretion where the defendant had one pre-
vious felony conviction for assault with a
deadly weapon involving the attempted
shooting of a police officer, and three misde-
meanor convictions, and had serious prob-
lems with alcohol abuse, and where although
he appeared to be stable, he was considered to
be a very dangerous person whose violent
behavior could be triggered by a single drink.
State v. Wheeler, 109 Idaho 795, 711 P.2d 741
(Ct. App. 1985).
In a conviction for second degree murder,
the district court was constrained to pro-
nounce an overall sentence that could not be
less than ten years. While the district court
had to pronounce some minimum period of
incarceration, the length of the mandatory
minimum component was properly deter-
mined solely by the exercise of the court's
sound discretion; thus an indeterminate life
sentence with a minimum confinement period
of 12 years was upheld upon appeal. State v.
Paul, 118 Idaho 717, 800 P.2d 113 (Ct. App.
1990).
An indeterminate life sentence, with a min-
imum period of confinement of 24 years, was
an appropriate sentence for a second degree
murder conviction where the court considered
the gravity of the offense, finding that the
circumstances of the crime were sufficiently
egregious to justify a severe measure of retri-
bution and deterrence. State v. Whiteley, 132
Idaho 678, 978 P.2d 238 (Ct. App. 1999).
Court may instruct jury concerning punish-
ment for first degree murder, but not for
second degree murder or manslaughter. State
v. Dong Sing, 35 Idaho 616, 208 P. 860 (1922).
Parole Eligibility.
Where defendant sentenced for 60 years for
second degree murder would be eligible for
parole after serving one-third of his sentence,
while those sentenced for life become eligible
after 10 years, any sentence of 30 years or
more for purposes of parole eligibility must be
treated as effective life sentence. King v.
State, 93 Idaho 87, 456 P.2d 254 (1969).
Right to Jury.
Neither the United States Constitution nor
Idaho Const., Art. I, 7 requires the partici-
pation of a jury in the sentencing process in a
capital case. State v. Sivak, 105 Idaho 900,
674 P.2d 396 (1983), cert, denied, 468 U.S.
1220, 104 S. Ct. 3591, 82 L. Ed. 2d 887 (1984).
Sentence.
If a sentence of imprisonment is imposed
for murder in the first degree, it must be for
life, although it may be either an indetermi-
nate life sentence or a fixed life sentence.
(Ct. App. 1984).
Analysis of Co-Defendant's Sentences.

A proportionality analysis comparing co-
defendants' sentences is applicable only in
cases involving the death penalty or allega-
tions of cruel and unusual punishment. State
v. Book, 127 Idaho 352, 900 P.2d 1363 (1995).
Excessive.
Where a sentence is within statutory limits
it will not be disturbed unless clear abuse of
discretion is shown; such an abuse of discre-
tion may be found if the sentence imposed is
shown to be unreasonable upon the facts of
the case. A sentence is reasonable to the
extent it appears necessary, at the time of the
sentencing, to accomplish the primary objec-
tive of protecting society and to achieve any or
all of the related goals of deterrence, rehabil-
itation or retribution applicable to a given
case. State v. Wolfe, 107 Idaho 676, 691 P.2d
1291 (Ct. App. 1984).
In deference to the discretionary authority
vested in the trial courts, an appellate court
will not substitute its view for that of the
sentencing judge where reasonable minds
might differ. The appellant must show that,
under any reasonable view of the facts, his
sentence was excessive in light of the criteria
of protection of society, retribution, deterrence
and rehabilitation. State v. Wolfe, 107 Idaho
676, 691 P.2d 1291 (Ct. App. 1984).
Defendant was sentenced to a unified term
of thirty-five years with seven years fixed for
second degree murder, and although reason-
able minds differed as to what punishment
defendant should have received, where rea-
sonable minds could differ whether a sen-
tence is excessive, the decision of the sentenc-
ing court will not be disturbed. State v. Varie,
135 Idaho 848, 26 P.3d 31 (2001).
Factors Considered.
A sentence need not serve all the sentenc-
ing goals; in appropriate cases, one may be
sufficient. State v. Waddell, 119 Idaho 238,
804 P.2d 1369 (Ct. App. 1991).
The district court's reliance upon retribu-
tion and deterrence in imposing a sentence for
defendant convicted of murder was sufficient
to justify the sentence, and because rehabili-
tation was properly considered, there was no
abuse of discretion in the sentencing. State v.
App. 1991).
Despite the fact that (Da forensic psychia-
trist testified that defendant, convicted of first
degree murder, suffered to a moderate degree
from an anti-social personality disorder that
would diminish with age causing a precipi-
tous drop in criminality after age 40, that (2)
the psychiatrist further testified that defen-
dant's severe alcoholism problem stemmed
from genetic overloading over which he had
no control and for which there was no treat-
ment, that (3) based upon his observations
the psychiatrist then opined that defendant's
history suggested that he was unlikely to be
involved in violent crimes in the future, and
that (4) a supervisor for the Department of
Probation and Parole testified that based
upon his experience he thought defendant
could be considered for parole sometime in the
future, it was clear that the trial court con-
sidered these factors, especially whether de-
fendant posed a continuing threat to society,
although the court imposed a fixed life sen-
tence with no possibility of parole, there was
no abuse in the trial court's decision. State v.
Enno, 119 Idaho 392, 807 P.2d 610 (1991).
Upon conviction of defendant for first de-
gree murder, court did not abuse its discretion
in sentencing defendant to a fixed life sen-
tence instead of death where judge balanced
mitigating factors that defendant did not
have a history of violence, that he possessed
job skills as a truck driver, and had been a
productive member of society, that drug and
alcohol dependency adversely affected his
thought process and some conduct on his part
was inconsistent with a desire to commit
murder and that defendant had exhibited
extreme remorse for the crime, with the ag-
gravating factors that the crime was atrocious
and cruel, manifesting exceptional depravity
and that the person murdered was a person
who was a potential witness for the state in a
criminal proceeding and who was murdered
to prevent her from testifying. State v. Wages,
119 Idaho 738, 810 P.2d 272 (Ct. App. 1991).
A life sentence with a minimum period of
confinement of 12 years for second degree
murder was not unreasonable, in spite of fact
that defendant had been subject to physical
violence and sexual abuse as a child, where
the exhibits and descriptions of the crime
revealed tremendous pain and suffering expe-
rienced by the victim. State v. Brady, 122
Idaho 225, 832 P.2d 1160 (Ct. App. 1992).
Where codefendant recanted his testimony
about defendant's role in a first-degree mur-
der, defendant's sentence was vacated in the
interest of justice and a new sentencing pro-
ceeding was directed. Bean v. State, 124 Idaho
187, 858 P.2d 327 (Ct. App. 1993).
with the fact that it was Committed against a
1995).
When imposing sentence in a criminal pro-
ceeding, the trial court applies the following
four criteria: (1) the protection of society; (2)
deterrence to the defendant and others; (3)
the possibility of rehabilitation; (4) punish-
ment or retribution; the general objectives in
the Supreme Court's review of a trial court's
sentencing are: (1) the correction of a sen-
tence which is excessive; (2) facilitation of
rehabilitation of offender; (3) promotion of
respect for law by correcting abuses; and (4)
promotion of criteria for sentencing that are
rational and just. State v. Book, 127 Idaho
352, 900 P.2d 1363 (1995).
In sentencing defendant for second degree
murder, the trial court did not err by failing to
consider defendant's young age because the
age of a defendant is not controlling in sen-
tencing. State v. Contreras, 133 Idaho 862,
993 P.2d 625 (Ct. App. 2000).
sentencing defendant to life with a 20 year
fixed term for the murder of a bail bondsman,
because the district court based its decision
on the goals of punishment and deterrence,
and the nature of the offense was egregious,
as defendant used lethal force to evade arrest
by a person authorized by law to arrest him.
State v. Sheahan,

Idaho , 77 P.3d 956
(2003).
Fixed Term.
Where intentional, senseless killing justi-
fied long-term confinement in retribution for
the irretrievable loss that defendant had
caused and defendant's history of behavioral
and drug-related problems showed that reha-
bilitation would be a problematic task, sen-
tence of fixed term of 25 years, imposed in
second-degree murder case, was not exces-
sive. State v. Miller, 105 Idaho 838, 673 P.2d
438 (Ct. App. 1983).
The defendant failed to show that the dis-
trict court abused its discretion in sentencing
him to a determinate life sentence for second
degree murder where the court's conclusions
that the circumstances surrounding the mur-
der were egregious and that his lack of ame-
nability to rehabilitation were supported by
substantial and competent evidence. State v.
Burdett, 134 Idaho 271, 1 P.3d 299 (Ct. App.
2000).
Illegal Lesser Sentence.

This section requires, upon conviction for
first-degree murder, punishment of either
death or a life sentence. The trial judge may
not impose a lesser, fixed term sentence; thus,
the 25 year fixed sentence the defendant
received was illegal, and was therefore va-
cated and remanded to the district court to
impose a legal sentence. State v. Merrifield,
109 Idaho 11, 704 P.2d 343 (Ct. App. 1985),
rev'd on other grounds, 112 Idaho 365, 732
P.2d 334 (Ct. App. 1987).
Life Term.
As punishment for first degree murder, the
accused may be sentenced to death or to a life
term in the custody of the Board of Correc-
tion. Where capital punishment was not pur-
sued by the state, the decision by the sentenc-
ing court as to whether the life sentence could
be indeterminate with the possibility of pa-
role after ten years, I.C.
20-233, or would be
served entirely in confinement as a fixed or
determinate sentence without the possibility
of parole, was a matter within the court's
discretion. State v. Tribe, 126 Idaho 610, 888
P2d 389 (Ct. App. 1994).
Life Without Parole.
Where defendant repeatedly raped and bat-
tered a drunken woman and then beat her to
death with a fire extinguisher, his fixed life
sentence without possibility of parole under
this section and
19-2513 for the vicious and
unprovoked attack, to which he pled guilty to
first degree murder, was not an extreme sen-
tence grossly disproportionate to the crime he
committed, and as such, did not constitute the
cruel and unusual punishment prohibited by
Const., Art. I, 6. State v. Schneider, 126
Idaho 624, 888 P.2d 798 (Ct. App. 1995).
Minimum.
At a minimum, a district court must impose
at least an indeterminate term of ten years
for a conviction on second degree murder.
State v. Whiteley, 132 Idaho 678, 978 P.2d 238
(Ct. App. 1999).
Not Excessive.
A 20-year indeterminate sentence imposed
for second-degree murder was not excessive
where the judge found that the killing was not
provoked or justified and the judge was
clearly concerned with retribution and deter-
rence. State v. Yon, 115 Idaho 907, 771 P.2d
925 (Ct. App. 1989).
Sentence for second-degree murder of life
imprisonment, with a ten-year minimum pe-
riod of confinement, is not too harsh. State v.
Brazzell, 118 Idaho 431, 797 P.2d 139 (Ct.
App. 1990).
Afixed life sentence for defendant convicted
of first degree murder was not excessive based
on the gruesome facts of the murder and on
the fact that the defendant had a prior con-
viction for second degree murder. State v.
Rodgers, 119 Idaho 1066, 812 P.2d 1227 (Ct.
App. 1990), aff'd, 119 Idaho 1047, 812 P.2d
1208 (1991).
A life sentence with a 35 year minimum
period of confinement for murder was reason-
able where defendant had stabbed victim 11
times in order to take his money, credit cards
and vehicle after the victim had offered defen-
dant and companion food and shelter, defen-
dant had a troubled background, and defen-
dant showed no remorse for taking victim's
life. State v. Brewer, 122 Idaho 213, 832 P2d
1148 (Ct. App. 1992).
A sentence of life in the custody of the
Board of Correction with a minimum period of
confinement of 25 years for murder in the first
degree was reasonable where victim offered
food and a place to stay to defendants, yet
defendant later stabbed victim to death with
a butcher knife and absconded with victim's
car and other valuables. State v. Weinmann,
122 Idaho 631, 836 P.2d 1092 (Ct. App. 1992).
Where the gravity of the offense, infanticide
through battery by striking of a six-week-old
child in a moment of rage, was sufficiently
egregious to justify an exceptionally severe
measure of retribution and deterrence, a sen-
tence of life with the entire sentence to be
served as a minimum term of confinement
was reasonable. State v. Pederson, 124 Idaho
179, 857 P2d 658 (1993).
The trial court properly denied defendant's
motion to correct an illegal sentence where:
the trial court found that for the crime of
attempted first-degree murder, the maximum
penalty defendant faced was one-half of a life
sentence; the trial court fixed a base maxi-
mum of forty-five years based upon defen-
dant's age and life expectancy; the trial court
advised defendant that the maximum penalty
he faced for attempted first-degree murder
was twenty-two years and six months, one
half of the base maximum; and the trial court
then offered defendant the opportunity to
withdraw his plea which he declined. State v.
Wood, 125 Idaho 911, 876 P.2d 1352 (1994).
Where defendant bought a gun the day
before the shooting, he violated a restraining
order and went to his wife's home, he shot all
six bullets from it at his wife, two to four of
which hit her, and it was "purely miraculous"
that she was not killed, given the sentencing
goals of protecting society along with deter-
rence, rehabilitation and retribution, a seven-
year fixed sentence is not longer than neces-
sary to achieve these goals and was not
unreasonable at the time imposed, even
though defendant had no previous criminal
involvement, and may not have posed a threat
to the general public. State v. Gomez, 126
513 U.S. 1005, 115 S. Ct. 522, 130 L. Ed. 2d
427 (1994).
A unified sentence under
19-2513 of 27
years, with a 12-year minimum period of
confinement, for second degree murder, and a
consecutive indeterminate term of five years
for the use of a firearm in the commission of
the crime, was within statutory limits for
second degree murder under this section.
State v. Sengthavisouk, 126 Idaho 881, 893
P.2d 828 (Ct. App. 1995).
The seriousness of a homicide offense man-
dates a punishment in the form of a substan-
tial prison sentence; thus, the district court
did not abuse its sentencing discretion by
imposing an indeterminate life sentence, with
for first degree murder by torture. State v.
Aeschliman, 128 Idaho 60, 910 P.2d 174 (Ct.
App. 1995).
A disparity in sentences between co-defen-
dants does not constitute excessiveness of
sentence as to any particular defendant. State
v. Book, 127 Idaho 352, 900 P.2d 1363 (1995).
Where the trial court considered the sen-
tence it imposed in light of the objectives of
sentencing, and focused mainly on retribu-
tion, it did not abuse its discretion in impos-
ing a term of life imprisonment with a mini-
mum term of confinement of twenty-one years
for a conviction of second degree murder,
since that is one of the most serious offenses
that a person can commit. State v. Kuzmichev,
132 Idaho 536, 976 P.2d 462 (1999).
Where the district court concluded that,
because of the depravity of the crime, the
defendant's lack of remorse, and his prior acts
of violence, he required correctional treat-
ment to protect society and to effect retribu-
tion and deterrence, it was not abuse of dis-
cretion to impose a life sentence with a
specified minimum period of 25 years, plus a
consecutive fixed term of eight years for the
use of a firearm. State v. Trevino, 132 Idaho
888, 980 P.2d 552 (1999).
Even in view of defendant's relatively lim-
ited level of participation in the planning of
the crimes, the unified life sentence, with
fifteen years fixed, for second degree murder,
and the concurrent unified life sentence, with
ten years fixed, for robbery were not out of
proportion to the gravity of the offenses, and
the district court carefully considered all the
appropriate sentencing factors and weighed
the evidence before it imposed the sentences.
State v. Jenkins, 133 Idaho 747, 992 P.2d 196
(Ct. App. 1999).
Life sentence with a minimum period of
confinement of thirty years was appropriate
for second degree murder, regardless of the
age of the defendant, where the gravity of the
offense was sufficiently egregious to justify a
severe measure of retribution and deterrence.
State v. Contreras, 133 Idaho 862, 993 R2d
625 (Ct. App. 2000).
The fact that defendant victimized a good
Samaritan who had stQpped to offer his help,
with the result that the victim lost his life.
The callousness of this behavior, its conse-
quences for the victim and his family, and
defendant's history of criminality before this
offense took place could not be overlooked in
evaluating the sentence imposed; therefore, a
unified life sentence with a twenty-year min-
imum term of imprisonment was not exces-
sive for the felony murder. State v. Shepherd,
135 Idaho 48, 13 P.3d 1261 (Ct. App. 2000).
Prosecutor's Recommendations.
A prosecuting attorney's sentencing recom-
mendations are just that, mere recommenda-
tions; a judge is free to exercise his own
judgment in carrying out his sentence respon-
sibilities. State v. Waddell, 119 Idaho 238, 804
P.2d 1369 (Ct. App. 1991).
Statement of Reasons.
While the setting forth of reasons for the
imposition of a particular sentence would be
helpful, and is encouraged, it is not manda-
tory. State v. Osborn, 104 Idaho 809, 663 P.2d
1111 (1983).
A sentencing judge is not required to check
off or recite the sentencing guidelines during
sentencing, nor is a judge required to give his
reasons for imposing a sentence. State v.
App. 1991).
Unified Sentencing Act.

Provisions of this section relative to second
degree murder are not "specific" provisions
which conflict with the Unified Sentencing
Act. State v. Paul, 118 Idaho 717, 800 P.2d 113
(Ct. App. 1990).
-
Unified Term.
Based upon a review of the complete record,
the district court did not abuse its discretion
in sentencing defendant to a unified term of
life imprisonment, with twenty-five years
fixed, for his conviction of first degree murder
and use of a deadly weapon. State v. Santana,
135 Idaho 58, 14 P.3d 378 (Ct. App. 2000).
Validity.
Where the punishment for second-degree
murder was in effect at the time of the vic-
tim's death as well as at the time of defen-
dant's trial and sentencing, the trial judge
was correct in sentencing her to life imprison-
ment under the lesser included offense of
second-degree murder. State v. Needs, 99
Idaho 883, 591 P.2d 130 (1979).
Where the defendant had no prior felony
convictions, had turned herself in to the sher-
iff immediately after shooting her husband,
showed remorse, had been drinking at the
time of the shooting, and had reason to fear
brutality from her husband, but had an un-
stable lifestyle and personality, could not con-
trol her jealousy to the point of murder, and
could be regarded as dangerous, a sentence of
18 years was not an abuse of discretion. State
v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).
Where record of the sentencing hearing
indicated a lifetime pattern ofviolent physical
behavior by defendant, and psychiatric re-
ports showed his lack of remorse about his
crime of murder and kidnapping and diag-
nosed him as having chronic, severe, explo-
sive personality with strong sociopathic char-
acteristics, as well as suffering from habitual,
chronic and severe alcoholism, sentence of
indeterminate period not to exceed 25 years,
which was within statutory limits of this
section, was not cruel and unusual punish-
ment. Watkins v. State, 101 Idaho 758, 620
P. 2d 792 (1980), overruled on other grounds,
State v. Broadhead, 120 Idaho 141, 814 P2d
401 (1991), overruled to the extent of conflict,
State v. Brown, 121 Idaho 385, 825 P.2d 482
(1992).
Where the defendant, in a state of extreme
frustration, jealousy, and inebriation, entered
a saloon and shot his wife three times thereby
killing her, a sentence of an indeterminate
prison term of not to exceed life imprisonment
was not excessive, despite the defendant's
exemplary military service record and evi-
dence showing him to be a good husband and
father, considering the particularly heinous
nature of the murder and the public interest
in retribution. State v. Stormoen, 103 Idaho
83, 645 P.2d 317 (1982).
An indeterminate sentence of 20 years was
within the limit prescribed by this section and
was not excessive even though the defendant
was only 17 years old at the time he partici-
pated in the murder. State v. Brooks, 103
Idaho 892, 655 P.2d 99 (Ct. App. 1982).
Indeterminate life sentence imposed on de-
fendant was within the maximum penalty
authorized by statute for second-degree mur-
der and was not excessive where defendant
would be eligible for parole after ten years
and a term of ten years' confinement would
not exceed the minimum period necessary to
protect society from defendant's conduct, or to
serve society's interests in deterrence and
retribution. State v. Wilde, 104 Idaho 461, 660
P.2d 73 (Ct. App. 1983).
Indeterminate sentence of 20 years, upon
conviction of second-degree murder based on
defendant's shooting of wife, was within stat-
utory maximum and was not excessive where
defendant would be eligible for parole within
five years, where sentence indicated that trial
judge took account of mitigating factors,
where society had an interest in retribution
for and deterrence of similar crimes, and
where rehabilitative programs would be
available to aid defendant with regard to
alcohol abuse and alleged post-traumatic
stress disorder. State v. Pettit, 104 Idaho 601,
661 R2d 767 (Ct. App. 1983).
imposing a fixed life term for conviction of
murder, where murder was especially hei-
nous, atrocious and cruel, manifesting excep-
tional depravity and where, by the murder
and the circumstances surrounding its com-
mission, the defendant exhibited utter disre-
gard for human life. State v. Osborn, 104
Idaho 809, 663 P.2d 1111 (1983).
Sentence of indeterminate period not ex-
ceeding 25 years, imposed after conviction of
second-degree murder, was not excessive
where the record disclosed a senseless killing
by a defendant with a long history of alcohol
and firearm-related offenses; defendant
would face confinement for a period of at least
eight years and four months, under 20-223,
which was warranted in order to protect soci-
ety from defendant and as retribution for the
senseless taking of human life. State v.
Jenkins, 105 Idaho 166, 667 P.2d 269 (Ct.
App. 1983).
Sentence of a fixed life term for the crime of
first-degree murder was well within the limits
defined by statute where the record disclosed
a heinous murder involving a brutal stabbing.
State v. Major, 105 Idaho 4, 665 P. 2d 703
(1983).
Sentences imposed on defendant convicted
of first-degree murder and use of firearm in
murder, totaling 30 years, were within the
statutory maximum that could have been
imposed and were not an abuse of discretion.
State v. Camarillo, 106 Idaho 310, 678 P.2d
102 (Ct. App. 1984).
A fixed term sentence of ten years or more
but less than life is not a sentencing alterna-
tive for the crime of first degree murder. State
v. Wilson, 107 Idaho 506, 690 P.2d 1338
(1984).
This section is not modified by
19-2513A
(repealed) so as to permit a sentence for first
degree murder for a determinate or fixed
period of years less than life. State v. Wilson,
107 Idaho 506, 690 P.2d 1338 (1984).
The 15-year indeterminate sentence for at-
tempted second degree murder was not exces-
sive, where the defendant wounded the night
watchman four times with a .22 caliber pistol
while burglarizing a convenience store, there
was evidence that the victim's final wound
was inflicted from close range while he was
disabled and lying on his stomach, and the
presentence investigation revealed several
nonviolent prior offenses, including a third-
degree theft conviction. State v. Bourgeois,
111 Idaho 479, 725 P.2d 184 (Ct. App. 1986)
Where the defendant went to the victim
intending at least to rob him and ended up
shooting him twice, first at close range in the
head and second through a door and into the
victim's heart, and the defendant had three
adult felony convictions and numerous juve-
nile offenses beginning when he was 11 years
old, the court did not abuse its discretion in
sentencing the defendant to a fixed life sen-
tence after he pled guilty to first-degree mur-
der. State v. Hoffman, 111 Idaho 966, 729 P.2d
441 (Ct. App. 1986).
Victim Impact.
It was not improper for the district judge to
consider letters from the victim's family and
testimony from the victim's mother prior to
sentencing defendant upon his convictions for
murder in the second degree, even though he
was originally charged with a capital offense.
State v. Waddell, 119 Idaho 238, 804 P.2d 1369
(Ct. App. 1991).
Who May Fix.
Appellate court may modify judgment
where jury has found defendant guilty of
murder in first degree and affixed death pen-
alty, when furtherance of justice requires
such modification. State v. Ramirez, 34 Idaho
623, 203 P. 279, 29 A.L.R. 297 (1921).
Where jury fails to fix punishment, under
this section, judge may do so, and if on appeal,
appellate court should become satisfied that
385 HOMICIDE 18-4004A
trial judge abused his discretion in fixing
death penalty it could modify punishment to
life imprisonment. State v. Ramirez, 34 Idaho
623, 203 P. 279, 29 A.L.R. 297 (1921).
Only effect of this section is that where
there is jury trial, on plea of not guilty, jury
may decide which punishment shall be in-
flicted. Even in such case, if jury does not
decide penalty, court must do so. State v.
Hoagland, 39 Idaho 405, 228 P. 314 (1924);
State v. Arnold, 39 Idaho 589, 229 P. 748
(1924).
Statute makes no distinction in respect to
punishment for first degree murder between
different acts which constitute that crime.
State v. Arnold, 39 Idaho 589, 229 P. 748
(1924).
The responsibility for fixing the penalty for
homicide, within the terms of the statute, is
that of the presiding judge, not of the jury or
the supreme court. By Morgan, J., dissenting
from decision reducing minimum sentence
from 20 to 10 years. State v. Boyatt, 59 Idaho
771, 87 P.2d 992 (1939).
That part of an instruction which informed
the jury that in the event they should find the
defendant guilty of murder in the first degree,
they may then determine whether the penalty
to be imposed shall be death or life, was in
conformity with the former section. State v.
Clokey, 83 Idaho 322, 364 P.2d 159 (1961).
Validity of Sentence.
It cannot be said as a matter of law that a
sentence for not to exceed sixty years for
second-degree murder is a sentence or im-
poses a penalty greater than does a sentence
for life, and hence the imposition of such a
sentence is within the statutory limitations.
King v. State, 91 Idaho 97, 416 P.2d 44 (1966).
The sentence of "not more than 21 years"
being clearly within the statutory limits for
the conviction of second-degree murder, is not
normally an abuse of discretion. State v.
Gomez, 94 Idaho 323, 487 P.2d 686 (1971);
State v. Beason, 95 Idaho 267, 506 P.2d 1340
(1973).
Sentence of 30 years for second degree
murder was not cruel and unusual punish-
ment nor an abuse of discretion by the trial
court where defendant had been previously
convicted of three felonies. State v. McClellan,
96 Idaho 569, 532 P.2d 574, overruled on other
grounds, State v. Tucker, 97 Idaho 4, 539 P.2d
556 (1975), overruled on other grounds, State
v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975).
Where there was no evidence of provoca-
tion, the trial court did not abuse its discre-
tion in sentencing a defendant convicted of
second-degree murder to life imprisonment,
and such sentence was within the statutory
limits. State v. Ward, 98 Idaho 571, 569 P.2d
916 (1977).
Collateral References. Recital of, or ref-
erence to, the offense in pronouncing sentence
or judgement. 14 A.L.R. 1000.
Reduction of punishment imposed by trial
court by appellate court. 89 A.L.R. 312.
Victim impact evidence in capital sentenc-
ing hearings

post-Payne v. Tennessee. 79
A.L.R.5th 33.
inserted "and 19-2515A" near the beginning of
the section, and made a stylistic change.
18-4004A. Notice of intent to seek death penalty.
(1) A sentence
of death shall not be imposed unless the prosecuting attorney filed written
notice of intent to seek the death penalty with the court and served the
notice upon the defendant or his attorney of record no later than thirty (30)
days after entry of a plea. Any notice of intent to seek the death penalty shall
include a listing of the statutory aggravating circumstances that the state
will rely on in seeking the death penalty The state may amend its notice
upon a showing of good cause at any time prior to trial. A notice of intent to
seek the death penalty may be withdrawn at any time prior to the
imposition of sentence.
(2) In the event that the prosecuting attorney does not file a notice of
intent to seek the death penalty or otherwise puts the court on notice that
the state does not intend to seek the death penalty, the court shall inform
potential jurors at the outset ofjury selection that the death penalty is not
a sentencing option for the court or the jury. [I.C.,

18-4004A, as added by
1998, ch.
96, 2, p. 343; am. 2003, ch.
19, 2, p. 71.]
19-2515.
19-2126.
Section 7 of S.L. 2003, ch. 19 declared an Sec. to sec. ref. This section is referred to
emergency. Approved February 13, 2003. in

18-4004, 19-2515 and 19-2515A.
18-4005. Petit treason abolished.

The rules of the common law,
distinguishing the killing of a master by his servant, and of a husband by his
wife, as petit treason, are abolished, and these offenses are homicides,
punishable in the manner prescribed by this chapter. [I.C.,

18-4005, as
added by 1972, ch. 336, 1, p. 844.]
8213; I.C.A.,

18-4006. Manslaughter defined.

Manslaughter is the unlawful
killing of a human being including, but not limited to, a human embryo or
fetus, without malice. It is of three (3) kinds:
1. Voluntary
upon a sudden quarrel or heat of passion.

2. Involuntary

in the perpetration of or attempt to perpetrate any
unlawful act, other than arson, rape, robbery, kidnapping, burglary, or
mayhem; or in the commission of a lawful act which might produce death, in
an unlawful manner, or without due caution and circumspection; or in the
operation of any firearm or deadly weapon in a reckless, careless or
negligent manner which produces death.
3. Vehicular
in which the operation of a motor vehicle is a significant

cause contributing to the death because of:
(a) the commission of an unlawful act, not amounting to a felony, with
gross negligence; or
(b) the commission of a violation of section 18-8004 or 18-8006, Idaho
Code; or
(c) the commission of an unlawful act, not amounting to a felony, without
gross negligence.
Notwithstanding any other provision of law, any evidence of conviction
under subsection 3.(b) shall be admissible in any civil action for damages
resulting from the occurrence. A conviction for the purposes of subsection
3.(b) means that the person has pled guilty or has been found guilty,
notwithstanding the form of the judgment(s) or withheld judgment(s). [I.C.,
18-4006, as added by 1972, ch. 336, 1, p. 844; am. 1983 (Ex. Sess.), ch.
3, 17, p. 8; am. 1984, ch.
22, 5, p. 25; am. 1997, ch. 103, 1, p. 244; am.
2002, ch.
330, 2, p. 935.]
Compiler's notes. A former section, which However, ch. 145 was repealed by 21 of S.L.
comprised Cr. & P. 1864, 18; R.S., R.C., & 1983 (Ex. Sess.), ch. 3, effective May 19, 1983.
C.L., 6565; C.S., 8214; am. S.L. 1921, ch. The "s" in parentheses so appeared in the
155, 1, p. 347; I.C.A.,
17-1106; am. S.L. law as enacted.
1949, ch. 126, 1, p. 221; am. S.L. 1965, ch. Present version of section 16 of S.L. 1983
136, 2, p. 268, was repealed by S.L. 1971, (Ex. Sess.), ch. 3 is compiled as
49-240.
ch. 143, 5, effective January 1, 1972, and Sections 4 and 6 of S.L. 1984, ch. 22 are
the present section added by S.L. 1972, ch. compiled as
former 49-326 and 1-2222,
336, 1 in the same words as the section respectively,
prior to its repeal. Sections 1 and 3 of S.L. 2002, ch. 330 are
This section was also amended by S.L. compiled as

18-4001 and 18-4016, respec-
1983, ch. 145, 17, effective July 1, 1983. tively
take effect on March 1, 1984. Approved Feb-
ruary 29, 1984.
in

18-310, 18-4007, 18-8001, 18-8002, 18-
8005, 19-2520, 19-5307, 19-5506, 20-525A,
33-1208, 39-1113 and 72-1003.
Cited in: State v. Phinney, 13 Idaho 307, 89
P. 634, 12 L.R.A. (n.s.) 935, 12 Ann. Cas. 1079
(1907); In re McLeod, 23 Idaho 257, 128 P.
1106, 43 L.R.A. (n.s.) 813 (1913); Maxfield v.
Thomas, 557 F. Supp. 1123 (D. Idaho 1983);
State v. Howerton, 105 Idaho 1, 665 P. 2d 700
(1983); State v. Vasquez, 107 Idaho 1052, 695
P.2d 437 (Ct. App. 1985); State v. Valdez-
Abrejo, 108 Idaho 79, 696 P.2d 930 (Ct. App.
1985); State v. Scroggie, 110 Idaho 103, 714
P.2d 72 (Ct. App. 1986); State v. Puga, 111
v. Simons, 112 Idaho 254, 731 P.2d 797 (Ct.
App. 1987); State v. Gunderson, 120 Idaho 97,
813 P.2d 908 (Ct. App. 1991); Idaho v.
Horiuchi, 215 F.3d 986 (9th Cir. 2000); State v.
Whipple, 134 Idaho 498, 5 P.3d 478 (Ct. App.
2000); Idaho v. Horiuchi, 253 F.3d 359 (9th
Cir. 2001); State v. Ransom, 137 Idaho 560, 50
P.3d 1055 (Ct. App. 2002).
Analysis
Admissibility.
Blood tests.
Constitutionality.
Construction.
Cross-examination by trial judge.
Due caution.
Firearm.
Intent.
Involuntary.
Elements.
Legislative intent.
Means of death.
Motor vehicle operation.
Negligence.
Partial repeal of section.
Proof of elements.
Sentencing.
Vehicular manslaughter.
Admissibility.
Although hypnotically refreshed testimony
may be admitted in some circumstances, the
district judge did not err in refusing to admit
testimony about the sodium amytal interview
where the court was not furnished any scien-
tific basis to conclude that hypnosis and the
use of sodium amytal produce comparable
results. State v. Rosencrantz, 110 Idaho 124,
714 P.2d 93 (Ct. App. 1986).
Blood Tests.
Evidence in involuntary manslaughter
prosecution of appellant's refusal to submit to
a blood test was competent and admissible
for, like any other act or statement voluntar-
ily made by him, it was competent for a jury to
consider and weigh, with the other evidence,
and to draw from it whether the inference as
to guilt or innocence may be justified thereby.
State v. Bock, 80 Idaho 296, 328 P.2d 1065
(1958).
Constitutionality.
The former provision relating to involun-
tary manslaughter in the use of firearms was
not unconstitutionally vague, but was suffi-
cient to apprise the users of firearms of the
conduct prohibited and so complied with all
the requirements guaranteed by the state and
U.S. constitutions. State v. Brinton, 91 Idaho
856, 433 P.2d 126 (1967).
The fact that subsection 3.(c) of this section
criminalizes an act of ordinary negligence, as
opposed to criminal negligence does not vio-
late the due process clause of the United
States Constitution. Haxforth v. State, 117
Idaho 189, 786 P.2d 580 (Ct. App. 1990).
Construction.
state prison or the county jail cannot be
homicide statute must govern since it is the
553, 309 P.2d 211 (1957).
Where the judgment of conviction of the
felony of involuntary manslaughter had been
given under a statute which was subse-
quently repealed by former 49-1101, a part
of S.L. 1953, ch. 273 repealing all inconsistent
laws, the cause would be remanded with
instructions to the trial court to enter judg-
ment of conviction for the misdemeanor of
negligent homicide under former
49-1101.
State v. Gummerson, 79 Idaho 30, 310 P.2d
362 (1957).
Section 18-114 prescribes a general require-
ment for the mental element of a crime; but
the legislature may vary this requirement in
defining a particular offense, subject to con-
stitutional limits. The legislature has varied
the requirement in subsection 3.(c) of this
section, and the two sections do not conflict.
Haxforth v. State, 117 Idaho 189, 786 P.2d 580
(Ct. App. 1990).
Cross-examination by Trial Judge.
Cross-examination of appellant by judge
tending to infer guilt of involuntary man-
slaughter from which jury probably inferred
he was trying to bring about his conviction
was ground for reversal. State v. Freitag, 53
Idaho 726, 27 P.2d 68 (1933).
Due Caution.
Fact that defendant was angry, excited, or
frightened does not necessarily raise pre-
sumption that he failed to use due caution
and circumspection when firing fatal shot.
State v. Voss, 34 Idaho 164, 199 P. 87 (1921).
While an instruction denning "without due
caution or circumspection" would not have
been improper, such terms are of common
usage and generally understood so that an
instruction denning them was unnecessary
and there was no error in refusing such a
requested instruction. State v. Gonzales, 92
Idaho 152, 438 P.2d 897 (1968).
Firearm.
The consideration of defendant's use of a
firearm both in arriving at the underlying
manslaughter sentence and in adding to that
sentence pursuant to
19-2520 did not pun-
ish defendant twice for the same behavior; in
effect, the legislature has elected to fix two
different penalties for the crime of man-
slaughter
a lesser penalty where the crime

was committed without the use of a deadly
weapon, and a greater one where a deadly
weapon was involved. State v. Dallas, 109
Idaho 670, 710 P.2d 580 (1985).
Information held sufficient. State v. Mickey,
27 Idaho 626, 150 P. 39 (1915).
Information charging that defendant wil-
fully, unlawfully, and feloniously killed de-
ceased held sufficient to support conviction for
involuntary manslaughter by running down a
pedestrian, where evidence showed that at
time of the accident defendant was intoxi-
cated and was driving his car over wet pave-
ments at an excessive speed. State v. Gee, 48
Idaho 688, 284 P. 845 (1930).
Information for involuntary manslaughter
by causing death with automobile need not
set forth details of commission of offense.
State v. Brooks, 49 Idaho 404, 288 P. 894
(1930).
Information held not duplicitous as charg-
ing manslaughter and driving motor vehicle
while intoxicated. State v. Frank, 51 Idaho 21,
1 P2d 181 (1931).
Manslaughter is an offense included in the
charge of murder. State v. Sprouse, 63 Idaho
166, 118 P.2d 378 (1941).
The allegations contained in the informa-
tion of the commission of unlawful acts in
violation of certain statutory law and ordi-
nances may be regarded as allegations of fact
out of which the reckless disregard and the
negligence interpreted as reckless disregard
arises which is the basis of the charge and
though they may be characteristic of the
charge of manslaughter, they cannot have the
effect of changing the charge from negligent
homicide to manslaughter further because
the proof thereof did not and could not in-
crease the penalty beyond that fixed by the
negligent homicide statute. State v. Davidson,
78 Idaho 553, 309 P2d 211 (1957).
It is error to instruct jury that one who kills
another while resisting attempt to commit a
serious injury on his person is guilty of man-
slaughter, such killing being justifiable under
18-4009. State v. Crea, 10 Idaho 88, 76 P.

1013 (1904).
Instructions in prosecution for involuntary
manslaughter by causing death with automo-
bile. State v. Brooks, 49 Idaho 404, 288 P. 894
(1930).
Where court instructed jury that if they
found defendant guilty of violating any one of
statutory rules governing operation of auto-
mobiles on public highways, then defendant
would be guilty of manslaughter, such in-
struction was prejudicial error since jury
could have found defendant guilty of an of-
fense not charged in the indictment. State v.
Taylor, 67 Idaho 313, 177 P.2d 468 (1947).
side of the road, the failure to charge on
criminal negligence in manslaughter in the
commission of a lawful act without due cau-
tion and circumspection was not prejudicial
error. State v. Salhus, 68 Idaho 75, 189 P.2d
372 (1948).
Instruction on criminal negligence was not
required in proceeding in which defendant
was charged with offense of involuntary man-
slaughter, where acts committed by defen-
dant were unlawful acts by virtue of former
49-502, 49-503. State v. Scott, 72 Idaho

202, 239 P.2d 258 (1951).
An instruction on criminal intent was not
necessary in proceeding where defendant was
charged with offense of involuntary man-
slaughter. State v. Scott, 72 Idaho 202, 239
P2d 258 (1951).
Instruction defining involuntary man-
slaughter was not erroneous where instruc-
tion followed the exact wording of the statute.
State v. Scott, 72 Idaho 202, 239 P.2d 258
(1951).
In involuntary manslaughter proceeding
where jury at its own request was brought
into presence of court and parties, and asked
the court if it was required to recommend
punishment of defendant, and court said no
since that was the duty of the court, it was not
error for court to fail to instruct jury on
matter of included offenses. State v. Scott, 72
Idaho 202, 239 P.2d 258 (1951).
In a prosecution for second degree murder
wherein the jury returned a verdict of guilty
of involuntary manslaughter, an instruction
on circumstantial evidence which included
the following statement "The accused's eva-
sions, denials, contradictions and falsities
may be considered as links in the chain of
circumstantial evidence showing his guilt"
was reversible error, since the statement sin-
gled out the accused, and instructed the jury
that the accused factually committed eva-
sions, denials, contradictions, and falsities,
and that same could be considered by the jury
as links in the chain of circumstantial evi-
dence showing his guilt. State v. Sundstrom,
77 Idaho 72, 286 P.2d 640 (1955).
Jury instruction denning manslaughter
which omitted the clause contained in 1949
amendment "or in the operation of any fire-
arm or deadly weapon in a reckless, careless
or negligent manner which produces death"
was not a correct definition of manslaughter.
State v. Sundstrom, 77 Idaho 72, 286 P.2d 640
(1955).
An instruction defining manslaughter in
the language of the former statute except for
the first sentence, reading, "Manslaughter is
the unlawful killing of a human being, with-
out deliberation, premeditation, or malice,"
was not erroneous or misleading where other
instructions correctly defined "deliberation"
and "premeditation." State v. Koho, 91 Idaho
450, 423 P.2d 1004 (1967).
same manner in 18-4002, which used word
"malice" to refer to "malice aforethought" as
that term was used in
18-4001. State v.
Dillon, 93 Idaho 698, 471 P.2d 553 (1970),
Ed. 2d 223 (1971).
Failure of trial court to give instruction as
to voluntary manslaughter was not error
where no evidence was introduced which
would indicate that the accused acted upon a
"sudden quarrel or heat of passion." State v.
Beason, 95 Idaho 267, 506 P.2d 1340 (1973).
Enno, 119 Idaho 392, 807 P.2d 610 (1991).
1828, 131 L. Ed. 2d 749 (1995).

P2d 144 (Ct. App. 1995).
Intent.
The basic distinction between voluntary
and involuntary manslaughter is that volun-
tary manslaughter requires an intent to kill
whereas involuntary manslaughter does not.
State v. Atwood, 105 Idaho 315, 669 P.2d 204
(Ct. App. 1983).
Judgment of acquittal was reversed where
the jury could reasonably have concluded that
defendant intended to promote or facilitate
the commission of the offense by his co-defen-
dant when defendant, failing to shoot the
victim on his own and undergoing a beating at
the victim's hands, asked for help from his
co-defendant, whom he knew to be armed
with a pistol. State v. Gonzalez, 134 Idaho
907, 12 P.3d 382 (Ct. App. 2000).
Involuntary.
Because all of the elements needed to sus-
tain a conviction of the crime of involuntary
manslaughter are included within the ele-
ments needed to sustain a conviction of sec-
ond-degree murder, the trial court in a sec-
ond-degree murder prosecution did not err
when it instructed the jury on the lesser
included offense of involuntary manslaughter,
where there was evidence presented to sup-
port all of the essential elements of involun-
tary manslaughter. State v. Atwood, 105
Idaho 315, 669 P.2d 204 (Ct. App. 1983).
Elements.
The elements of involuntary manslaughter
are: (a) an unlawful killing, without malice
and without an intent to kill. State v. Atwood,
105 Idaho 315, 669 P2d 204 (Ct. App. 1983).
The elements of voluntary manslaughter
are: (a) an unlawful killing, with (b) the intent
to kill, but without malice. State v. Atwood,
105 Idaho 315, 669 P.2d 204 (Ct. App. 1983).
Legislative Intent.
Read as a whole, this section clearly and
unambiguously indicates the legislature's in-
tent to protect individual victims and to
criminalize the unlawful killing of a human
being; it necessarily follows that multiple
deaths resulting from a single act of driving
can be charged as separate offenses under
this section. State v. Lee, 116 Idaho 515, 777
P.2d 737 (Ct. App. 1989).
Means of Death.
Statute does not circumscribe the means or
agency causing death. Prosecution for man-
slaughter may be had where death of human
being has been caused or accomplished
through fright, fear, terror, or nervous shock
produced by accused while in the commission
of an unlawful act, even though accused made
no hostile demonstration and directed no
overt act at person of deceased. In some
instances force or violence may be applied to
the mind or nervous system as effectually as
to the body. In re Heigho, 18 Idaho 566, 110 P.
1029, 32 L.R.A. (n.s.) 877, Ann. Cas. 1912A,
138 (1910).
gun discharged, causing death, the conviction
(1971).
Motor Vehicle Operation.
By the enactment of the negligent homicide
statute as a part of the Uniform Act Regulat-
ing Traffic on Highways, it would appear the
legislature intended to, and it did legislate
anew in the field of homicide resulting from
the improper operation of motor vehicles; that
by such legislation the legislature intended to
remove from the purview of the earlier invol-
untary statute, such classification of homi-
cide, and to place it within the purview of the
later negligent homicide statute. It appears
that the legislature thereupon repealed the
manslaughter statute insofar as it included
within its purview homicide resulting from
the improper operation of motor vehicles and
immediately thereupon enacted the negligent
homicide statute including thereunder the
subject matter of homicide so resulting, with
redefinition of penalty therefor. State v.
Davidson, 78 Idaho 553, 309 P.2d 211 (1957).
The information laid under the involuntary
manslaughter statute which included in its
charge the unlawful driving and operation of
a motor vehicle in a reckless manner but
without malice resulting in death, though
differing in phraseology from the charge if
laid under the negligent homicide statute
sufficiently charged the commission by the
appellant of the crime defined by former
49-
1101 and denominated as negligent homicide.
State v. Davidson, 78 Idaho 553, 309 P.2d 211
(1957).
Vehicular involuntary manslaughter under
this section is not subject to the restrictive
interpretation of "criminal negligence" in
18-114 under which it has been interpreted

to mean gross negligence; the legislature was
free to create a separate, lesser category of
crime for vehicular homicides lacking gross
P.2d 1383 (Ct. App. 1984).
Ajury finding that the defendant, who was
convicted of involuntary manslaughter in con-
nection with an automobile accident, was
guilty of gross negligence was adequately
supported by testimony that the defendant
had been drinking and by evidence from
which it could be inferred that the defendant's
vehicle had crossed the centerline of the high-
way. State v. Curtis, 106 Idaho 483, 680 P.2d
1383 (Ct. App. 1984).
By creating the statutory section labeled
"vehicular manslaughter," the legislature did
not intend to downgrade the culpability or
punishment of persons who intentionally use
motor vehicles to commit aggravated batter-
ies or other felonies ultimately resulting in
death; it would be an absurd result if a driver
who, although intoxicated, was capable of
intentionally committing a felony that pro-
duced deathand did socould be convicted
only of vehicular manslaughter and sen-
tenced to a seven-year term of imprisonment.
Simons v. State, 116 Idaho 69, 773 P.2d 1156
(Ct. App. 1989).
Where defendant got into a car, locked the
doors and began to drive away and victim's
hand became caught in the passenger door
between the window and frame, where defen-
dant did not stop the car and release victim
and dragged victim to his death, and where
defendant had a blood alcohol level of .26% at
the time of the incident, the crime committed
in the case was not a vehicular manslaughter
rather than an involuntary manslaughter;
defendant mischaracterized the conduct as
vehicular manslaughter since defendant was
charged with causing an unintended death
through an intentional acti.e., aggravated
battery, a felony, and this alleged conduct was
much more serious than causing an unin-
tended death through accidental conduct
while driving under the influence of alcohol.
Simons v. State, 116 Idaho 69, 773 P.2d 1156
(Ct. App. 1989).
The misdemeanor form of vehicular man-
slaughter has some relationship to the gen-
eral felony of manslaughter at common law,
nevertheless it resembles more closely a pub-
lic welfare offense, and as such need not
contain a criminal negligence requirement.
(Ct. App. 1990).
Defendant was convicted of vehicular homi-
cide and aggravated driving under the influ-
ence of alcohol because the death of the first
victim and the bodily injury inflicted upon the
second victim resulted from his single act of
driving under the influence. State v. Lowe,
120 Idaho 391, 816 P. 2d 347 (Ct. App. 1990).
A reading of the sentencing provisions set
forth in
18-4007 makes it clear that a
court-imposed license suspension for a viola-
tion of subdivision (3) of this section is unau-
thorized and hence "illegal." It should be
noted, however, that under the provisions of
I.C. 49-325(1), the Idaho Transportation
Department has the authority to revoke the
driving privileges of an individual convicted
of subdivision (3) of this section. State v.
Howard, 122 Idaho 9, 830 P.2d 520 (1992).
Negligence.
This section must be read and construed
with
18-114 and the term criminal negli-
gence as used in that section does not mean
the failure to exercise ordinary care, it means
gross negligence, such as amounts to reckless
disregard of consequences and the rights of
others. State v. McMahan, 57 Idaho 240, 65
P.2d 156 (1937).
This section must be read in connection
with
18-114 which requires the joint union
of act and intent or criminal negligence. State
v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937);
(1940).
Where truck driven by accused stopped on
highway because of engine trouble and ac-
cused did everything in his power to remove
the truck from the pavement but was unsuc-
cessful, he was not guilty of involuntary man-
slaughter when an automobile crashed into
the truck whereby oneof the occupants of the
automobile was killed. State v. Hintz, 61
Idaho 411, 102 P2d 639 (1940).
(1948).
Where a jury specifically found that the
defendant was grossly negligent in causing
the death of a person in an automobile acci-
dent and the jury convicted the defendant of
involuntary manslaughter, the defendant
failed to show how his right to due process
was infringed by his claim that this section
was void for vagueness insofar as it pro-
scribed conduct without gross negligence,
since the defendant was not charged with, nor
was he convicted of, conduct lacking gross
P.2d 1383 (Ct. App. 1984).
18-201 is simply a reiteration of the excus-

able homicide standard under
18-4012. It
does not preclude imposition of criminal re-
sponsibility for negligence under this section.
Haxforth v. State, 117 Idaho 189, 786 P2d 580
(Ct. App. 1990).
Partial Repeal of Section.
The Uniform Act Regulating Traffic on
Highways is a comprehensive statute, legis-
latively intended to cover the whole field and
subject matter of the operation of motor vehi-
cles, including definitions of the several of-
fenses growing out of the improper operation
of such vehicles, prescribing penalties for
those offenses, and repealing by implication
all acts and parts of acts inconsistent there-
with. State v. Davidson, 78 Idaho 553, 309
P.2d 211 (1957).
In a prosecution for involuntary man-
slaughter, in view of the holding of this court
in the case of State v. Davidson, 78 Idaho 553,
309 P.2d 211 (1957), former
49-1101 rela-
tive to negligent homicide, being a part of
chapter 273 of the 1953 Session Laws, was
held to repeal that part of the involuntary
manslaughter statute with reference to the
killing of a human being by the reckless and
negligent operation of an automobile. State v.
(1957).
Proof of Elements.
In homicide and related cases, proof of each
element of a crime beyond a reasonable doubt
means proving: (1) a death, and (2) the defen-
dant unlawfully caused that death. State v.
Maxfield, 106 Idaho 206, 677 P.2d 519 (Ct.
App. 1984).
Sentencing.
In sentencing defendant for involuntary
manslaughter, the court was entitled to con-
sider all relevant information regarding the
crime, including a defendant's lack of remorse
even though defendant had entered an Alford
plea. State v. Howry, 127 Idaho 94, 896 P. 2d
1002 (Ct. App. 1995).
Where "infliction of great bodily injury" was
an essential element of involuntary man-
slaughter, it could not also be used for sen-
tence enhancement, because the language
found in 19-2520B indicates that the legis-
lature did not intend for the elements consti-
tuting a crime to be used a second time to
impose a harsher sentence on a defendant.
State v. Elison, 135 Idaho 546, 21 P.3d 483
(2001).
There was error in imposing sentence en-
hancements for use of a deadly weapon in
defendant's convictions for involuntary man-
slaughter and aggravated battery because
three of defendant's crimes arose out of the
same indivisible course of conduct, and there-
fore, he was only subject to one enhanced
penalty. State v. Custodio, 136 Idaho 197, 30
P.3d 975 (Ct. App. 2001).
Where defendant continued to shoot at vic-
tim, who had threatened defendant's family
with a gun, even after victim had retreated,
there was substantial and competent evi-
dence to support jury's conclusion that defen-
dant was guilty of voluntary manslaughter.
State v. Carter, 103 Idaho 917, 655 P.2d 434
(1981).
Medical testimony that, to a reasonable
medical certainty, the enema treatment ad-
ministered by defendant in manslaughter
prosecution worsened victim's heart failure
which resulted in death was sufficient to
support a permissible inference of causation
by the jury; the mere fact that death may
have resulted from the combined effects of the
enema treatment and some other cause or
preexisting condition would not relieve defen-
dant of criminal responsibility. State v.
Maxfield, 106 Idaho 206, 677 P.2d 519 (Ct.
App. 1984).
Where the jury could have found that police
officers were alive when the final shots that
killed them were fired and there was nothing
in the jury verdict to suggest that the jury
found that defendant acted in self-defense at
any stage of the shooting, there was sufficient
evidence to support defendant's manslaugh-
ter convictions. State v. Dallas, 109 Idaho 670,
710 P.2d 580 (1985).
Where the defendant was driving in the
wrong direction on the freeway, his car was
stopped a few miles past, and a few minutes
after the fatal rollover, several witnesses at
the scene of the rollover gave descriptions
generally matching his car, an intoximeter
test revealed that his blood-alcohol content
was between .18 percent and .20 percent, and
the defendant himself admitted driving while
intoxicated and on the wrong side of the
freeway, there was abundant evidence linking
him to the fatal accident; accordingly, the trial
judge did not err in denying the motion for
judgment of acquittal. State v. Hinostroza,
114 Idaho 621, 759 P.2d 912 (Ct. App. 1988).
the verdict of voluntary manslaughter of two
game wardens, despite defendant's argument
that the jury found that he had acted in
self-defense when he initially shot them and
that there was insufficient evidence to sup-
port the voluntary manslaughter conviction
because the state did not prove beyond a
reasonable doubt that the victims were alive
when he fired the second set of shots. Dallas v.
Arave, 984 F.2d 292 (9th Cir. 1992).
Vehicular Manslaughter.
The district court properly exercised its
discretion in denying vehicular manslaughter
defendant's motion to strike from the
presentence report the statements of the two
girls who were injured in the auto accident
and their parents, and the court gave appro-
priate weight to such statements at sentenc-
ing. State v. Wersland, 125 Idaho 499, 873
P.2d 144 (1994).
Trial court properly admitted statements
defendant made to medical personnel and
police officers after he was transferred to
hospital for treatment of injuries suffered in
alcohol-related accident, and trial court did
not abuse its discretion by sentencing defen-
dant to unified sentence of six years, with a
minimum period of confinement of four years,
for vehicular manslaughter. State v.
Langford, 136 Idaho 334, 33 P.3d 567 (Ct.
App. 2001).
Defendant's action in running a stop sign,
resulting in a collision with another vehicle
which caused the death of a child riding in the
second vehicle, constituted gross negligence
within the meaning of 18-4006(3)(a) suffi-
cient to support defendant's conviction of fel-
ony vehicular homicide; trial court's use of
Idaho Crim. Jury Instruction 342 to define
"gross negligence" rather than defendant's
proposed instruction taken from a case in-
volving the Idaho Guest Statute was proper.
State v. Sibley, 138 Idaho 259, 61 P.3d 616 (Ct.
App. 2002).
Analysis
Abortion not manslaughter.
Constitutionality.
Construction.
Cross-examination by court.
Evidence.
Information.
Instructions.
Manslaughter.
Negligent homicide.
Proximate cause.
Question for jury.
Speed.
Abortion Not Manslaughter.
Criminal operation resulting in death, an
abortion not being necessary to save the wom-
an's life, is murder in the second degree.
Instruction that such act is murder in the
second degree or manslaughter is erroneous.
State v. Alcorn, 7 Idaho 599, 64 P. 1014, 97
Am. St. R. 252 (1901).
Constitutionality.
The former negligent homicide statute
which definitely made it a crime for the oper-
ator of an automobile to injure and cause the
death of another by driving an automobile in
reckless disregard of the safety of others was
not unconstitutional on the ground of uncer-
tainty. State v. Aims, 80 Idaho 146, 326 P.2d
998 (1958).
Construction.
state prison or the county jail could not be
homicide statute governed since it was the
553, 309 R2d 211 (1957).
Cross-examination by Court.
In a manslaughter prosecution for death,
caused while driving automobile, cross-exam-
ination by court of the accused leaving infer-
ence that the court believed the accused to be
guilty was reversible error. State v. Freitag,
53 Idaho 726, 27 P.2d 68 (1933).
Evidence.
(1948).
Evidence given that appellant stated he
had had a few drinks, that his companion was
as drunk as he was and other testimony, was
sufficient to sustain a finding by the jury that
appellant was driving his automobile at the
time of the accident while under the influence
of intoxicating liquor. State v. Aims, 80 Idaho
146, 326 P.2d 998 (1958).
Evidence to the effect that defendant was
intoxicated and driving on the wrong side of
the road, and as a result collided with auto-
mobile in which the deceased was riding,
thereby causing her to suffer injuries which
were the proximate cause of her death was
sufficient upon which to predicate a verdict of
guilty of negligent homicide. State v. Cox, 82
Idaho 150, 351 P.2d 472 (1960).
Evidence as to excessive speed and intoxi-
cation, although conflicting, was sufficient to
sustain conviction on charge of negligent ho-
micide. State v. Coburn, 82 Idaho 437, 354
P.2d 751 (1960).
Information.
The information laid under the involuntary
manslaughter statute which included in its
charge the unlawful driving and operation of
a motor vehicle in a reckless manner without
malice resulting in death, though differing in
phraseology from the charge if laid under the
negligent homicide statute sufficiently
charged the commission by the appellant of
the crime denominated as negligent homicide.
State v. Davidson, 78 Idaho 553, 309 P.2d 211
(1957).
The information charging that a defendant
drove his automobile "negligently, carelessly,
recklessly and heedlessly, in wanton and will-
ful disregard of the rights and safety of others
and without due caution and circumspection
and at an excessive rate of speed under the
circumstances and in a manner so as to en-
danger persons "and property," was sufficient
basis for conviction of the crime of negligent
homicide. State v. Gummerson, 79 Idaho 30,
310 P.2d 362 (1957).
Information charging that defendant "wil-
fully, unlawfully, negligently, recklessly and
in a careless manner, and while under the
influence of intoxicating liquor, and without
caution and circumspection or regard for the
safety of others, did drive his automobile
across the center line of said highway and on
the left side of the road and in front of"
approaching automobile as a proximate result
of which a passenger in such automobile re-
ceived mortal wounds and died was sufficient.
State v. Anderson, 82 Idaho 293, 352 P.2d 972
(1960).
Instructions.
In a prosecution of motorist for manslaugh-
ter, instruction that if defendant was not
guilty of manslaughter, jury might find him
guilty of reckless driving was properly re-
fused. State v. Monteith, 53 Idaho 30, 20 P. 2d
1023 (1933).
In a manslaughter prosecution, instruction
on necessity ofjury finding that negligence or
some other unlawful act of motorist was the
proximate cause of death was not erroneous
so far as affecting question on instruction on a
lesser offense was concerned. State v.
Monteith, 53 Idaho 30, 20 P2d 1023 (1933).
Where court instructed jury that if they
found defendant guilty of violating any one of
statutory rules governing operation of auto-
mobiles on public highways, then defendant
would be guilty of manslaughter, such in-
struction was prejudicial error since jury
could have found defendant guilty of an of-
fense not charged in the indictment. State v.
Taylor, 67 Idaho 313, 177 P.2d 468 (1947).
There was no error in giving instruction
reiterating allegations of information since
information charged but one offense, that of
negligent homicide, although the allegation
charged such offense committed by the use of
different means all in one count. State v.
Anderson, 82 Idaho 293, 352 P.2d 972 (1960).
While instruction that jury could find de-
fendant guilty if "you find that he did them in
a negligent, heedless, reckless and careless
manner and without due caution and circum-
spection" was erroneous it was not reversible
error where other instructions properly re-
quired the jury to find the defendant guilty of
criminal negligence. State v. Coburn, 82 Idaho
437, 354 P.2d 751 (1960).
An instruction omitting the statutory re-
quirement that the homicide must be the
result of reckless disregard on the part of the
accused was objectionable since the death
must be the "proximate result" of the injury
received by the driving and not merely "in-
volved" in the driving. State v. McGlochlin, 85
Idaho 459, 381 P.2d 435 (1963).
Manslaughter.
In a manslaughter prosecution, instruction
on necessity ofjury finding that negligence or
some other unlawful act of motorist was the
proximate cause of death was not erroneous
so far as affecting question on instruction on a
lesser offense was concerned. State v.
Monteith, 53 Idaho 30, 20 P.2d 1023 (1933).
side of road, the failure to charge on criminal
negligence in manslaughter in the commis-
sion of a lawful act without due caution and
circumspection was not prejudicial error.
(1948).
Negligent Homicide.
Davidson, 78 Idaho 553, 309 P.2d 211 (1957).
The legislature not having provided that
the more severe sentence be exacted as pun-
ishment for negligent homicide, i.e, imprison-
ment in the state prison, it thereby intended
the lesser penalty therefor, i.e., imprisonment
in the county jail. State v. Davidson, 78 Idaho
553, 309 P.2d 211 (1957).
It is clear that the legislature, by not clas-
sifying negligent homicide either as a felony
or as a misdemeanor, thereby intended to
classify such offense as a misdemeanor. State
v. Davidson, 78 Idaho 553, 309 P.2d 211
(1957).
Negligent homicide was a misdemeanor,
therefore a conviction thereunder does not
require proof of felonious conduct. State v.
Papse, 83 Idaho 358, 362 P.2d 1083 (1961).
The phrase "in reckless disregard of the
safety of others" imported the requirement
that criminal negligence and reckless disre-
gard of consequences and of the rights of
others were necessary ingredients in the
crime of negligent homicide. State v. Papse,
83 Idaho 358, 362 P2d 1083 (1961).
Proximate Cause.
In a manslaughter prosecution for death,
caused while driving automobile, cross-exam-
ination by court of the accused leaving infer-
ence that the court believed the accused to be
guilty was reversible error. State v. Freitag,
53 Idaho 726, 27 P.2d 68 (1933).
The facts and circumstances shown by the
evidence failed to reveal any conduct on the
part of deceased constituting an intervening
proximate cause of the accident which re-
sulted in her death where she was crossing an
intersection at which there was no control
signal and defendant motorist was shown to
be driving his car in a reckless manner in
disregard of the life of decedent, it further
being his duty to yield right of way to her and
to keep a lookout in the exercise of due care
for deceased's safety. State v. Davidson, 78
Idaho 553, 309 P.2d 211 (1957).
Question for Jury.
The evidence that defendant's view of a
through road to his right was obstructed, thus
imposing on him an additional burden of care
to stop at point near the stop sign where he
could make an effective observation of travel
on such road before entering the traveled
portion of that through highway, was suffi-
cient to present an issue for determination by
the jury as to whether the conduct of the
defendant constituted the driving of his auto-
mobile "in reckless disregard of the safety of
others" where death of two passengers in
automobile on through highway was caused
when car in which they were riding was
struck on the left side by the car driven by
defendant. State v. Papse, 83 Idaho 358, 362
P.2d 1083 (1961).
Speed.
In a prosecution of motorist for manslaugh-
ter, the testimony of drivers of automobiles
which defendant attempted to pass, and par-
ties working in fields and residing near the
scene of the accident, regarding speed, was
admissible. State v. Monteith, 53 Idaho 30, 20
P.2d 1023 (1933).
Collateral References. Wanton or reck-
less use of firearm without express intent to
inflict injury. 5 A.L.R. 603; 23 A.L.R. 1554.
Homicide in attempting to prevent elope- gence," or "gross negligence," appearing in
ment. 8 A.L.R. 660. statute denning or governing manslaughter.
Homicide in connection with use of automo- 161 A.L.R. 10.
bile for unlawful purpose or in violation of Sleep or drowsiness of operator of automo-
law. 16 A.L.R. 914; 21 A.L.R. 1504; 27 A.L.R. bile as affecting charge of negligent homicide.
1182; 30 A.L.R. 66; 41 A.L.R. 725; 42 A.L.R. 63 A.L.R.2d 983.
1120; 46 A.L.R. 1060; 49 A.L.R. 608; 53 A.L.R. Criminal homicide by excessive or improper
254; 59 A.L.R. 695; 99 A.L.R. 756. punishment inflicted upon child by parent or
Discharge of firearm without intent to in- one in loco parentis. 89 A.L.R.2d 396.
flict injury as proximate cause of homicide Failure to provide medical or surgical at-
resulting therefrom. 55 A.L.R. 921. tention. 100 A.L-R.2d 483.
Negligent homicide as affected by negli- Physician's or surgeon's negligence, mis-
gence or other misconduct of the decedent. 67 take, or lack of skill as affecting liability of
A.L.R. 922. one causing personal injury. 100 A.L.R.2d
Airplane, manslaughter by negligence in 769; 100 A.L.R.2d 808.
handling. 69 A.L.R. 337. Homicide: Improper treatment of disease.
Automobile, contributory negligence as de- 45 A.L.R.3d 114.
fense in prosecution for homicide in connec- Criminal liability for injury or death caused
tion with use of. 99 A.L.R. 833. by operation of pleasure boat. 8 A.L.R.4th
Test or criterion of term "culpable negli- 886.
18-4007. Punishment for manslaughter.
Manslaughter is punish-
able as follows:
1. Voluntary
by
a fine of not more than fifteen thousand dollars
($15,000), or by a sentence to the custody of the state board of correction not
exceeding fifteen (15) years, or by both such fine and imprisonment.
2. Involuntary
by
a fine of not more than ten thousand dollars
($10,000), or by a sentence to the custody of the state board of correction not
exceeding ten (10) years, or by both such fine and imprisonment.
3. Vehicularin the operation of a motor vehicle:
(a) For a violation of section 18-4006
3. (a), Idaho Code, by a fine of not
more than ten thousand dollars
($10,000), or by a sentence to the custody
of the state board of correction not exceeding ten (10) years, or by both
such fine and imprisonment.
(b) For a violation of section 18-4006 3.(b), Idaho Code, by a fine of not
more than fifteen thousand dollars ($15,000), or by a sentence to the
custody of the state board of correction not exceeding fifteen (15) years, or
by both such fine and imprisonment.
(c) For a violation of section 18-4006 3.(c), Idaho Code, by a fine of not
more than two thousand dollars
($2,000),
or by a jail sentence not
exceeding one
(1) year, or by both such fine and jail sentence.
(d) In addition to the foregoing, any person convicted of a violation of
section 18-4006
3., Idaho Code, which resulted in the death of the parent
or parents of minor children may be ordered by the court to pay support
for each such minor child until the child reaches the age of eighteen (18)
years. Support shall be established in accordance with the child support
guidelines then in effect, and the nonpayment of such support shall be
subject to enforcement and collection by the surviving parent or guardian
of the child in the same manner that other child support orders are
enforced as provided by law. In no event shall the child support judgment
or order imposed by the court under this section be paid or indemnified by
the proceeds of any liability insurance policy.
(e) In addition to the foregoing, the driver's license of any person
convicted of a violation of section 18-4006 3., Idaho Code, may be
suspended for a time determined by the court. [I.C.,

18-4007, as added
by 1983 (Ex. Sess.), ch.
3, 19, p. 8; am. 1992, ch.
33, 1, p. 97; am. 1994,
ch.413, l,p. 1301; am. 1997, ch. 311, 1, p. 922; am. 2002, ch.
356, 1,
p. 1013.]
Legislative Intent and Purpose. Section
1 of S.L. 1983 (Ex. Sess.), ch. 3 read: "The use
of the public highways of this state is a
privilege granted by the state for the enjoy-
ment and well being of all citizens. It is a
privilege, and not a right. In order to make
sure that this privilege is not abused, it is
necessary that such privilege be controlled or
restricted, and appropriate fines, jail terms
and evaluation of offenders be provided for. It
is the purpose of the several sections of law
contained within this act to provide the nec-
essary administrative and judicial procedures
to insure that the highways are safe for travel
by law-abiding citizens, to restrict or control
the use of the highways by those persons who
cannot or will not conform their actions to the
accepted standards of civilized behavior, and
to punish those malfeasors who, after due
process of law, are convicted of criminal acts.
In addition to the substantial amendments
provided for in this act, it is the intent of the
Idaho state legislature to provide:
"First, that those who abuse the privilege of
driving upon the highways while under the
influence of alcohol, drugs or other intoxi-
cating substances shall be viewed by the
judiciary as a serious threat to the health
and safety of law abiding users of the high-
ways.
"Second, that the mandatory evaluations
provided for in this act be used by the
sentencing judge to require those who have
been identified as abusers to receive coun-
seling and treatment at their own expense.
"Third, as an integral part of any sentence,
the legislature intends that the court con-
sider public service as a part of the overall
sentence. Public service is an important
consideration in the overall intent of this
legislature. It is also intent that this alter-
native be used totally at the expense of the
defendant.
"Fourth, where there has been damage to
other individuals, a loss of property, or
other financial consequence to victims of
those who abuse the use of alcohol, drugs,
or other intoxicating substances, it is the
intent of this legislature that any sentence
provide for restitution, as appropriate, to
make the victims whole.
"Fifth, a period of incarceration is appropri-
ate to deter the abuse of alcohol, drugs or
other intoxicating substances. This is true,
even with those that are first-time offend-
ers; however, it is recognized that in certain
special cases incarceration would not be
appropriate, so it is legislative intent to
leave incarceration of the first-time of-
fender to the discretion of the court, but to
mandate incarceration for repeat offenders.
"Sixth, the fines in all areas of this act have
been substantially increased to bring the
level of fines imposed to a more realistic
level. It is legislative intent that fines be
imposed as part of the sentence in an
amount that reflects the seriousness of the
crimes provided for in this act.
"And last, that loss of driving privileges be
vigorously enforced whenever indicated by
the provisions of this act, and additionally,
when the court deems appropriate. In all of
this, the legislature has tried to carefully
balance the rights of the individual who is
accused or convicted of wrongdoing against
the rights of all other citizens, who desire
nothing more than to be safe and secure in
their use of the public highways."
Section 20 of 1983 (Ex. Sess.), ch. 3 as
amended by 1 of S.L. 1985, ch. 36 read: "It
is legislative intent that any federal moneys
that come to the state of Idaho as a result of
the passage of this act, with its emphasis on
the increased penalties for conviction of driv-
ing while under the influence, pursuant to the
provisions of PL. 97-364, shall be transferred,
and distributed as follows, and any such
amounts are hereby appropriated:
"(1) One-third (V3) of all such moneys shall
be utilized by the department of law enforce-
ment for traffic safety programs;
be paid to the various counties, in the same
manner as moneys are distributed to counties
under the provisions of section 40-405A(2)(c)
(repealed), Idaho Code, for traffic safety pro-
grams; and
be paid to the various cities which maintain a
city police force, in the same manner as mon-
eys are distributed to cities under the provi-
sions of section 40-405A(l) (repealed), Idaho
Code, for traffic safety programs."
18-4007 was
repealed and a new
18-4007 enacted by S.L.
1983, ch. 145,
18 and 19, effective July 1,
1983. However, ch. 145 was repealed by 21
of S.L. 1983 (Ex. Sess.), ch. 3, effective May
19, 1983.
Another former
I.C., 18-4007, as added by 1972, ch. 336,
1, p. 844, was repealed by S.L. 1983 (Ex.
Sess.), ch.
3, 18, effective May 19, 1983.
Another former 18-4007, comprising Cr.
& P. 1864, 22; R.S., R.C., & C.L., 6566;
C.S., 8215; I.C.A.,
17-1107; am. S.L.
1949, ch. 126, 2, p. 221; am. S.L. 1957, ch.
114, 1, p. 193; am. S.L. 1965, ch. 136, 3, p.
268, was repealed by S.L. 1971, ch. 143, 5,
effective January 1, 1972.
Section 22 of S.L. 1983 (Ex. Sess.), ch. 3
declared an emergency and provided that the
act should be in full force and effect on and
after July 1, 1983. Approved May 19, 1983.
Cited in: State v. Sprouse, 63 Idaho 166,
118 P.2d 378 (1941); State v. Musquiz, 96
Idaho 105, 524 P.2d 1077 (1974); State v.
Padilla, 101 Idaho 713, 620 P.2d 286 (1980);
State v. Curtis, 106 Idaho 483, 680 P.2d 1383
(Ct. App. 1984); State v. Tisdale, 107 Idaho
481, 690 P.2d 936 (Ct. App. 1984); Simons v.
1989); State v. Romero, 116 Idaho 391, 775
P.2d 1233 (1989).
Analysis
Self-defense.
Sentence.
Reasonable.
Vehicular.
Self-Defense.
Even if the jury found that defendant acted,
at least initially, in self-defense, that finding
would not necessarily be inconsistent with the
trial judge's sentencing remarks that he did
not feel self-defense was an issue in the case;
thus, the trial judge did not abuse his sen-
tencing discretion by ignoring the jury's find-
ings on self-defense, and, instead, substitut-
ing his own contrary finding. State v. Dallas,
109 Idaho 670, 710*P.2d 580 (1985).
Sentence.
Reasonable.
An abuse of sentencing discretion occurs if
the sentence is unreasonable, but the sen-
tence is reasonable if it appears necessary, at
the time of sentencing, to accomplish the
primary objective of protecting society and to
achieve any or all of the related goals of
deterrence, rehabilitation or retribution ap-
plicable to a given case. State v. Flores, 108
Idaho 914, 702 P.2d 1374 (Ct. App. 1985).
tion in sentencing defendant, an illegal alien
who intentionally shot a coworker after alleg-
edly being threatened by the victim, to a
determinate sentence of 15 years upon a plea
of guilty to voluntary manslaughter. State v.
Beltran, 109 Idaho 196, 706 P.2d 85 (Ct. App.
1985).
If, in light of the facts, the sentence is
reasonable, the court then considers whether
the period of confinement under the sentence
is reasonable. Where defendant was sen-
for manslaughter and to a consecutive inde-
terminate life term for first degree murder, a
period of confinement for at least 15 years
was not unreasonable. State v. Plumley, 109
Idaho 369, 707 P.2d 480 (Ct. App. 1985).
Where the killings of two peace officers
were totally unjustified and were accom-
plished with little or no remorse, the imposi-
tion of two consecutive ten-year terms was
not unreasonable or an abuse of discretion.
State v. Dallas, 109 Idaho 670, 710 P. 2d 580
(1985).
Where the defendant had a propensity for
violence when intoxicated, two consecutive
fixed sentences of ten years for the killing of
two persons were not an abuse of discretion.
State v. Rosencrantz, 110 Idaho 124, 714 P. 2d
93 (Ct. App. 1986).
The defendant's ten-year indeterminate
sentence for involuntary manslaughter was
not an abuse of the district court's discretion,
where the crime involved a high degree of
negligence. State v. Simons, 112 Idaho 254,
731 P.2d 797 (Ct. App. 1987).
Where the defendant precipitated a fight
with the victim and as a result, while the
victim lay prone and defenseless on the
ground, the defendant rained multiple, sav-
age shoe and boot blows to the victim's face,
and the defendant had a long history of incor-
rigible antisocial behavior, the determinate
sentence of 15 years for voluntary man-
slaughter was reasonable. State v. Griffith,
114 Idaho 95, 753 P.2d 831 (Ct. App. 1988).
The defendant's seven-year indeterminate
sentence for vehicular manslaughter was not
an abuse of discretion where the presentence
investigation disclosed three prior misde-
meanor driving under the influence convic-
tions, yet he had made no effort to undergo
treatment. State v. Hinostroza, 114 Idaho
621, 759 P.2d 912 (Ct. App. 1988).
In view of defendant's past record of convic-
tions for alcohol-related offenses and the need
to protect society from future harm, relying
on the 20-year pattern of the defendant's
misuse of alcohol and the fact that a death
occurred in this instance, the judge deter-
mined that a period of confinement was re-
quired and the court acted within its statu-
tory discretion in sentencing the defendant to
an indeterminate term of seven years, with
four years fixed. State v. Howard, 119 Idaho
100, 803 P.2d 1006 (Ct. App. 1990).
Where defendant was sentenced to a two
year fixed sentence followed by an indetermi-
nate term of four years as the result of being
convicted of causing the death of an infant by
shaking the child, the public interest in pun-
ishing a serious offense, one involving unpro-
voked violence upon a human being causing
his death, amply justified the two-year mini-
mum sentence of confinement imposed in this
case. Additionally, the term of confinement
furthers the substantive goal of deter-
rencespecific deterrence, and as defendant's
wife was pregnant at the time of sentencing,
the sentence thus may be viewed as reflecting
society's interest in protecting other infants
from the type of dangerous acts which the
jury found to have been committed upon the
victim. State v. Ojeda, 119 Idaho 862, 810 P.2d
1148 (Ct. App. 1991).
Defendant's sentence of a ten-year term of
confinement followed by a five-year indeter-
minate term, for a conviction of voluntary
manslaughter, was reasonable where the de-
fendant deliberately shot into a house in
which he knew the victim was standing, had
been drinking, had a long history of alcohol
abuse, and had a series of other convictions.
State v. Gunderson, 120 Idaho 97, 813 P.2d
908 (Ct. App. 1991).
A 15-year fixed sentence for conviction of
voluntary manslaughter was not excessive,
even though it was the maximum term of
confinement possible and in spite of the de-
fendant's efforts of rehabilitation and lack of
prior felonies on his record. State v. Romero,
120 Idaho 261, 815 P.2d 459 (1991).
The district court acted within the bounds
of its discretion in imposing the maximum
sentences on defendant who pled guilty to two
counts of vehicular manslaughter and three
counts of aggravated driving while under the
influence of alcohol. State v. Tousingnant, 123
Idaho 22, 843 P.2d 172 (Ct. App. 1992).
P.2d 432 (Ct. App. 1993).
Where the defendant took no action to help
the victim or to deter others from inflicting
harm on him, and where he watched the
shooting and took part in transporting the
victim's body and in digging a grave, there
was no abuse of discretion in sentencing the
defendant to serve a ten-year .determinate
term. State v. Barnett, 133 Idaho 231, 985
P.2d 111 (1999).
Vehicular.
Where the defendant drove his pickup
truck into the wrong lane of a two-way high-
way and struck a vehicle containing three
occupants, two of whom died from the impact,
he was found to have a blood-alcohol level of
.19 percent, and he had a prior record of
driving under the influence, a fixed-term sen-
tence of seven years and a consecutive, inde-
terminate sentence of seven years for two
counts of vehicular manslaughter were not
excessive. State v. Lee, 111 Idaho 489, 725
P.2d 194 (Ct. App. 1986).
imposing a fixed seven-year sentence for ve-
hicular manslaughter, where the judge ex-
pressly stated that the maximum term was
being imposed to protect society for the max-
imum period, to deter the defendants and
others from similar acts, and as a reflection of
the seriousness of the crime. State v. Puga,
111 Idaho 874, 728 P2d 398 (Ct. App. 1986).
A reading of the sentencing provisions set
forth in this section makes it clear that a
court-imposed license suspension for a viola-
tion of 18-4006(3) is unauthorized and
hence "illegal." It should be noted, however,
that under the provisions of I.C. 49-325(1),
the Idaho Transportation Department has the
authority to revoke the driving privileges of
an individual convicted of 18-4006(3). State
v. Howard, 122 Idaho 9, 830 P.2d 520 (1992).
Defendant's sentence suspending his driv-
er's license for life was not illegal because
under this section there is no express limita-
tion on the period for which a defendant's
driver's license can be revoked. State v.
Edghill, 134 Idaho 218, 999 P.2d 255 (Ct. App.
2000).
This section permits a lifetime suspension
of driving privileges for a defendant convicted
of vehicular manslaughter. State v. Baker,
136 Idaho 576, 38 P.3d 614 (2001).
Analysis
Appeal.
Excessive penalty.
Motor vehicle operation.
Partial repeal of section.
Appeal.
Where defendant had been convicted, on
guilty plea, of assault with intent to murder
and subsequently, after death of the assault
victim, was convicted of voluntary man-
slaughter, the conviction for assault with in-
tent to murder would not be set aside on the
theory that there had been a merger into the
voluntary manslaughter conviction where de-
fendant appealed only the conviction and sen-
tence for voluntary manslaughter. State v.
Brusseau, 96 Idaho 558, 532 P.2d 563 (1975).
Excessive Penalty.
Trial court abused discretion in assessing
both maximum fine and maximum sentence
on conviction for involuntary manslaughter
arising out of death in traffic accident where
record did not present circumstances of ag-
gravation and fine should be remitted. State
v. Weise, 75 Idaho 404, 273 P.2d 97 (1954).
Maximum sentence often years was within
the statutory limits for involuntary man-
slaughter. State v. Sanchez, 94 Idaho 125, 483
P.2d 173 (1971).
A trial court did not abuse its discretion by
sentencing a man convicted of involuntary
manslaughter to a prison term not to exceed
ten years. State v. Thacker, 98 Idaho 369, 564
P.2d 1278 (1977).
Where the defendant pleaded guilty to vol-
untary manslaughter, the trial court did not
abuse its discretion in imposing the maxi-
mum sentence often years. State v. Allen, 98
Idaho 782, 572 P.2d 885 (1977).
Where the defendant, upon his conviction of
voluntary manslaughter, received a sentence
of an indeterminate period not exceeding six
years, for shooting to death his son-in-law
who had entered his home drunk and threat-
ened the father-in-law, the sentence was not
too harsh despite the defendants advanced
age, declining physical condition, and lack of
a prior criminal record, because probation
would not measure up to the severity of the
offense of intentionally taking another's life.
State v. Baker, 103 Idaho 43, 644 P.2d 365 (Ct.
App. 1982).
There was no prejudicial error in instruct-
ing the jury that the penalty for manslaugh-
ter was "proportionately lenient." State v.
Anstine, 91 Idaho 169, 418 P.2d 210 (1966).
Motor Vehicle Operation.
Davidson, 78 Idaho 553, 309 P2d 211 (1957)
Partial Repeal of Section.
state prison or the county jail cannot be
homicide statute must govern since it is the
553, 309 P.2d 211 (1957) (decision prior to
1965 amendment).
The Uniform Act Regulating Traffic on
Highways is a comprehensive statute, legis-
latively intended to cover the whole field and
subject matter of the operation of motor vehi-
cles, including definitions of the several of-
fenses growing out of the improper operation
of such vehicles, prescribing penalties for
those offenses, and repealing by implication
all acts and parts of acts inconsistent there-
with. State v. Davidson, 78 Idaho 553, 309
P.2d 211 (1957) (decision prior to 1965 amend-
ment).
18-4008. Death must occur when. [Repealed.]
S.L. 2000, ch. 276, 1, effective April 14,
2000.
A former section, which comprised Cr. & P.
1864, 23; R.S., R.C., & C.L., 6567; C.S.,
8216; I.C.A.,
18-4009. Justifiable homicide by any person.

Homicide is also
justifiable when committed by any person in either of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property or person, against
one who manifestly intends or endeavors, by violence or surprise, to commit
a felony, or against one who manifestly intends and endeavors, in a violent,
riotous or tumultuous manner, to enter the habitation of another for the
purpose of offering violence to any person therein; or,
3. When committed in the lawful defense of such person, or of a wife or
husband, parent, child, master, mistress or servant of such person, when
there is reasonable ground to apprehend a design to commit a felony or to do
some great bodily injury, and imminent danger of such design being
accomplished; but such person, or the person in whose behalf the defense
was made, if he was the assailant or engaged in mortal combat, must really
and in good faith have endeavored to decline any further struggle before the
homicide was committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in lawfully
suppressing any riot, or in lawfully keeping and preserving the peace. [I.C.,
18-4009, as added by 1972, ch. 336, 1, p. 844.]

C.L., 6570; C.S., 8219; I.C.A., 17-1111,
Cross ref. State prison guard killing or
wounding prisoner,
20-111.
Cited in: State v. Willis, 24 Idaho 252, 132
P. 962 (1913); State v. Jurko, 42 Idaho 319,
245 P. 685 (1926); State v. Baker, 103 Idaho
43, 644 P.2d 365 (Ct. App. 1982); Idaho v.
Horiuchi, 253 F.3d 359 (9th Cir. 2001); State v.
Turner, 136 Idaho 629, 38 P.3d 1285 (Ct. App.
2001).
Analysis
Attack after retreat.
Defense of wrong-doer.
Evidence.
First degree murder.
Instructions.
Protection of property.
Question for jury.
Self-defense in general.
Attack After Retreat.
Where defendant continued to shoot at vic-
tim, who had threatened defendant's family
with a gun, even after victim had retreated,
there was substantial and competent evi-
dence to support jury's conclusion that defen-
dant was guilty of voluntary manslaughter.
State v. Carter, 103 Idaho 917, 655 P2d 434
(1981).
Defense of Wrong-doer.
Private citizen can not interfere between
two persons, both of whom are in the wrong,
and slay one to save the other. Territory v.
Evans, 2 Idaho (Hasb.) 425, 17 P. 139 (1888).
Evidence.
Where defendant seeks to show the supe-
rior physical strength of deceased as com-
pared with his own, evidence should be con-
fined to the strength of each at time of the
homicide. State v. Crea, 10 Idaho 88, 76 P.
1013 (1904).
Evidence tending to show that defendant
was behind bar of saloon and could not retreat
was erroneously rejected. State v. Crea, 10
Idaho 88, 76 P. 1013 (1904).
Under plea of self-defense character evi-
dence for defendant is admissible bearing on
question of his honest and conscientious belief
that his acts were necessary to protect his life
or person. State v. McGreevey, 17 Idaho 453,
105 P. 1047 (1909).
First Degree Murder.
Where defendants entered store for purpose
of committing armed robbery, and one defen-
dant displayed a gun and stated it was a
holdup but retreated as proprietor advanced
with meat cleaver and after giving warning
shots fired again and killed proprietor the
defendants were guilty of first degree murder.
Shepherd, 94 Idaho 227, 486 P. 2d 82 (1971).
Instructions.
Part of instruction in homicide case was as
follows: "If you are satisfied from the evidence
beyond a reasonable doubt, that the defen-
dant killed the deceased in necessary self-
defense
* *
*, then you should return a verdict
of not guilty." So much of this as requires jury
to be satisfied beyond reasonable doubt is
erroneous. State v. Schieler, 4 Idaho 120, 37 P.
272 (1894).
Instruction on self-defense, that conditions
under which it may be asserted are "that the
party himself was not the first aggressor, or, if
the aggressor, that he had in good faith with-
drawn from the contest before he struck the
blow or fired the fatal shot; second, that the
striking or shooting was necessary to prevent
the infliction upon himself of a great bodily
injury by the party stricken or shot," correctly
states the law. State v. Lyons, 7 Idaho 530, 64
P. 236 (1901).
In prosecution for murder in which defen-
dant pleaded self-defense it was not error to
instruct jury that they could consider the fact
of defendant's flight after the killing in deter-
mining probabilities of his guilt or innocence.
State v. Lyons, 7 Idaho 530, 64 P. 236 (1901).
The following instruction is erroneous: "Be-
fore a party can justify the taking of life in
self-defense he must show that there was
reasonable ground for believing that he was
in great peril and that the killing was neces-
sary for his escape and that no other safe
means was open to him. When one believes
himself about to be attacked by another and
to receive great bodily injury, it is his duty to
avoid the attack if he can safely do so; and the
right of self-defense does not arise until he
has done everything in his power to avoid this
necessity." State v. McGreevey, 17 Idaho 453,
105 P. 1047 (1909).
State v. Fleming, 17 Idaho 471, 106 P. 305
(1910).
Where two instructions are given upon self-
defense, and such instructions together state
the law upon that subject, case will not be
reversed upon the assumed error that court
assumes and charges upon a theory not raised
or indicated by evidence. State v. Willis, 24
Idaho 252, 132 P. 962 (1913).
The following instruction substantially
states correct rule of law and should ordi-
narily be given in murder case where plea is
self-defense: "The court instructs the jury as
a matter of law that a person need not be in
actual, imminent peril of his life or of great
bodily harm before he may assault his assail-
ant; it is sufficient if in good faith he has a
good and reasonable belief from the facts as
they appear to him at the time that he is in
such imminent peril." State v. Fondren, 24
Idaho 663, 135 P. 265 (1913).
Instruction that defendant must first in
good faith decline further combat before he
can successfully plead self-defense, no matter
how savage, dangerous, and unprovoked at-
tack may be, is not in harmony with law of
self-defense as laid down in statutes. State v.
Grover, 35 Idaho 589, 207 P. 1080 (1922).
Instruction defining justifiable homicide in
language of this section with word "also"
omitted is proper. State v. Jurko, 42 Idaho
319, 245 P. 685 (1926).
The following instruction is properly
phrased: "A bare fear of being killed or of
receiving great bodily harm is not sufficient to
justify an assault with a deadly weapon. It
must appear that the circumstances were
sufficient to excite the fear of a reasonable
person, similarly situated, acting in good
faith, and viewing the situation and circum-
stances from his standpoint
***."
State v.
Bush, 50 Idaho 166, 295 P. 432 (1930).
An instruction in a homicide case is incor-
rect when based on

19-202 and 19-203,
which give the right to use resistance suffi-
cient to prevent the offense, since the law
relevant to a homicide case is 18-4009,
which permits self-defense with a deadly
weapon where accused has reasonable cause
to believe he is in danger of "great bodily
injury" or where the person being defended is
in similar danger. State v. Rodriguez, 93
Idaho 286, 460 P.2d 711 (1969).
Protection of Property.
Person has at least as much and possibly
more protection in law in defending his prop-
erty as he does in the protection of his person.
People v. Pierson, 2 Idaho (Hasb.) 76, 3 P. 688
(1884).
Mere civil trespass on land, unaccompanied
by any act amounting to a crime, or any
intention to commit a crime, will not justify
the shooting of trespasser. State v. Dixon, 7
Idaho 518, 63 P. 801 (1901).
Question for Jury.
Once the victim has retreated and the dan-
ger is abated, the privilege of self-defense
expires. However, whether a retreat by the
victim is sufficient to abate the danger, rea-
sonable apprehension, and necessity support-
ing the privilege of self-defense is a question
properly left to the jury. State v. Carter, 103
Idaho 917, 655 P.2d 434 (1981).
Self-defense in General.
Law of self-defense requires only that per-
son must act as a reasonable and prudent
man would be likely to act under similar
conditions and circumstances. State v.
McGreevey, 17 Idaho 453, 105 P. 1047 (1909).
Collateral References. Duty to retreat as
affected by illegal character of premises on
which homicide occurs. 2 A.L.R. 518.
Experiments to determine distance from
which pistol or gun was fired as bearing upon
issue of self-defense. 8 A.L.R. 47; 85 A.L.R.
479.
Right of self-defense as affected by defen-
dant's violation of law only casually related to
the encounter. 10 A.L.R. 861.
Third person, killing of, by shot or blow
aimed at another in self-defense. 18 A.L.R.
917.
Duty to retreat when not on one's premises.
18 A.L.R. 1279.
Homicide in defense of habitation or prop-
erty. 25 A.L.R. 508; 32 A.L.R. 1541; 34 A.L.R.
1488.
Humanitarian motives for homicide. 25
A.L.R. 1007.
Evidence of improper conduct by deceased
toward defendant's wife as admissible in sup-
port of plea of self-defense. 44 A.L.R. 860.
Evidence of experience with intruders on
other occasions as admissible on issue of jus-
tification in defending premises. 45 A.L.R.
1418.
Officer attempting illegal arrest, right of
self-defense by. 46 A.L.R. 904.
Husband and wife, right of self-defense as
affected by fact that defendant was in com-
pany with assailant's spouse. 9 A.L.R.3d 933.
when one is attacked at his office or place of
business or employment. 41 A.L.R.3d 584.
18-4010. Fear not sufficient justification.

A bare fear of the
commission of any of the offenses mentioned in subdivisions 2 and 3 of the
preceding section, to prevent which homicide may be lawfully committed, is
not sufficient to justify it. But the circumstances must be sufficient to excite
the fears of a reasonable person, and the party killing must have acted
under the influence of such fears alone. [I.C.,

18-4010, as added by 1972,
ch. 336, 1, p. 844.]
C.L., 6571; C.S., 8220; I.C.A., 17-1112,
Instructions.
Instruction that there must be danger of
personal injury or fear of personal injury to
that extent that the only means of avoiding
loss of life or great personal injury is to kill
assailant is proper. People v. Bernard, 2 Idaho
(Hasb.) 193, 10 P. 30 (1886).
Instruction setting out 18-4009, and
quoting this section except for words "of any"
following word "commission" in second line, is
not erroneous. State v. Jurko, 42 Idaho 319,
245 P. 685 (1926).
Collateral References. Duty to retreat as
affected by illegal character of premises on
which homicide occurs. 2 A.L.R. 518.
Third person, killing of, by shot or blow
aimed at another in self-defense. 18 A.L.R.
928.
Duty to retreat when not on one's premises.
18 A.L.R. 1279.
Homicide in defense of habitation or prop-
erty. 25 A.L.R. 508; 32 A.L.R. 1541; 34 A.L.R.
1488.
Humanitarian motives for homicide. 25
A.L.R. 1007.
Evidence of improper conduct by deceased
toward defendant's wife as admissible in sup-
port of plea of self-defense. 44 A.L.R. 860.
Evidence of experience with intruders on
other occasions as admissible on issue of jus-
tification in defending premises. 45 A.L.R.
1418.
Husband and wife, right of self-defense as
affected by fact that defendant was in com-
pany with assailant's spouse. 9 A.L.R.3d 933.
when one is attacked at his office or place of
business or employment. 41 A.L.R.3d 584.
18-4011. Justifiable homicide by officer.

Homicide is justifiable
when committed by public officers and those acting by their command in
their aid and assistance, either:
1. In obedience to any judgment of
a
competent court; or
2. When reasonably necessary in overcoming actual resistance to the
execution of some legal process, or in the discharge of any other legal duty
including suppression of riot or keeping and preserving the peace. Use of
deadly force shall not be justified in overcoming actual resistance unless the
officer has probable cause to believe that the resistance poses a threat of
death or serious physical injury to the officer or to other persons; or
3. When reasonably necessary in preventing rescue or escape or in
retaking inmates who have been rescued or have escaped from any jail, or
when reasonably necessary in order to prevent the escape of any person
charged with or suspected of having committed a felony, provided the officer
has probable cause to believe that the inmate, or persons assisting his
escape, or the person suspected of or charged with the commission of a
felony poses a threat of death or serious physical injury to the officer or other
persons. [I.C.,
18-4011, as added by 1972, ch. 336, 1, p. 844; am. 1986,
ch. 303, 2, p. 754.]
comprised Cr. & P. 1864, 28, 29; R.S., R.C.,
& C.L., 6569; C.S., 8218; I.C.A.,
17-
as
19-610.
Cross ref. Force permitted to be used in
effecting arrest,
19-610.
in 19-610.
Collateral References. Misdemeanor, de-
gree of force that may be employed in arrest-
ing one charged with. 3 A.L.R. 1170; 42 A.L.R.
1200.
Self-defense, carelessness in exercising
right of, which results in unintentional killing
of third person. 18 A.L.R. 928.
Peace officers' criminal responsibility for
killing or wounding one whom they wished to
investigate or identify. 18 A.L.R. 1368; 61
A.L.R. 321.
18-4012. Excusable homicide.
Homicide is excusable in the follow-

ing cases:
1. When committed by accident and misfortune in doing any lawful act by
lawful means, with usual and ordinary caution, and without any unlawful
intent.
2. When committed by accident and misfortune, in the heat of passion,
upon any sudden and sufficient provocation, or upon a sudden combat when
no undue advantage is taken nor any dangerous weapon used, and when the
killing is not done
5
in a cruel or unusual manner. [I.C.,
18-4012, as added
by 1972, ch. 336, 1, p. 844.]
C.L., 6568; C.S., 8217; I.C.A., 17-1109;
am. S.L. 1963, ch. 109, 1, p. 332, was
added by S.L. 1972, ch. 336,
1 in the same
Cited in: State v. Willis, 24 Idaho 252, 132
P. 962 (1913); State v. Jurko, 42 Idaho 319,
245 P. 685 (1926).
Analysis
Culpable negligence.
Instructions.
Culpable Negligence.
18-201 is simply a reiteration of the excus-

able homicide standard under this section. It
does not preclude imposition of criminal re-
sponsibility for negligence under
18-4006.
(Ct. App. 1990).
Instructions.
It was not error where the court failed to
instruct jury on excusable homicide in the
absence of request for same and evidence to
justify such instruction. State v. Miller, 65
Idaho 756, 154 P.2d 147 (1944).
Since defendant had burden to establish
mitigation in homicide prosecution, he also
had burden to request instruction on excus-
able homicide if such was desired. State v.
Miller, 65 Idaho 756, 154 P.2d 147 (1944).
Use of legislative words, usual and ordinary
caution, in charge by court where defendant
was prosecuted for involuntary manslaugh-
ter, as a result of an automobile collision, was
not error though it authorized a conviction
based on evidence of only ordinary negligence.
State v. Ayres, 70 Idaho 18, 211 P.2d 142
(1949).
Where undisputed evidence showed defen-
dant was driving at a high rate of speed while
under the influence of intoxicating liquor
when boy on bicycle was hit and killed, and
essence of the former section was urged as a
defense to manslaughter charge, an instruc-
tion embodying the principles of the former
section and former
19-2112 should have
been given but failure to do so was not preju-
dicial, since jury could have returned no other
verdict but guilty. State v. Deane, 75 Idaho
149, 268 P.2d 1114 (1954).
Instruction as to the conditions which must
be present before a homicide can be held to be
excusable is proper except where it contains a
sentence which relieves the state from estab-
lishing criminal negligence, required to sup-
port a conviction of negligent homicide. State
v. Cox, 82 Idaho 150, 351 P.2d 472 (1960).
Where instruction was favorable to defen-
dant consonant with his theory of defense,
excusable homicide, defendant had no cause
to complain. State v. Anderson, 82 Idaho 293,
352 P.2d 972 (1960).
An instruction that no appreciable space of
time between the intention to kill and the act
of killing was required to constitute premed-
itation where "sudden passion," "heat of
blood," "reasonable provocation," and "deliber-
ately" were correctly defined in other instruc-
tions was not erroneous. State v. Koho, 91
Idaho 450,.423 P.2d 1004 (1967).
Where there was no evidence to show that
the defendant had a sudden and sufficient
provocation for striking the victim, and the
evidence showed such striking was inten-
tional and continuous, rather than by acci-
dent or misfortune, the trial court did not err
in failing to give the excusable homicide in-
struction requested by the defendant. State v.
Pennell, 108 Idaho 669, 701 P.2d 289 (Ct. App.
1985).
Collateral References. Elopement, homi-
cide in attempting to prevent. 8 A.L.R. 660.
Homicide as affected by humanitarian mo-
tives. 25 A.L.R. 1007.
Discharge of firearm without intent to in-
flict injury as proximate cause of homicide
resulting therefrom. 55 A.L.R. 921.
Animal, criminal responsibility for shooting
one mistaken for. 23 A.L.R.2d 1401.
Child, criminal homicide by excessive or
improper punishment of. 89 A.L.R.2d 396.
Improper treatment of disease. 45 A.L.R.3d
114.
18-4013. Discharge of defendant when homicide justifiable or
excusable.

The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and discharged. [I.C.,
18-4013, as added by 1972, ch.

336, 1,
p. 844.]
C.L., 6572; C.S., 8221; I.C.A., 17-1113,
18-4014. Administering poison with intent to kill.
Every person
who, with intent to kill, administers or causes or procures to be adminis-
tered, to another, any poison or other noxious or destructive substance or
liquid, but by which death is not caused, is punishable by imprisonment in
the state prison not less than ten (10) years, and the imprisonment may be
extended to life. [I.C.,

18-4014, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6597; C.S., 8229; I.C.A.,
17-1114,
Cross ref. Poisoning food, drink, medi-
cines, springs, wells or reservoirs,
18-5501.
in

18-310, 19-5307 and 20-525A.
Cited in: Hays v. State, 113 Idaho 736, 747
P.2d 758 (Ct. App. 1987).
18-4015. Assault with intent to murder.

Every person who as-
saults another with intent to commit murder, is punishable by imprison-
ment in the state prison not less than one (1) nor more than fourteen (14)
years. [I.C.,

18-4015, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6598; C.S., 8230; I.C.A.,
17-1115,
in

18-310, 18-7803, 18-7905, 19-2520, 19-
5307 and 20-525A.
Cited in: Ex parte Cox, 3 Idaho 530, 32 P.
197, 95 Am. St. R. 29 (1893); In re Chase, 18
Idaho 561, 110 P. 1036 (1910).
Analysis
Degrees.
Evidence.
Included offense.
Indictment or information.
In general.
Instructions.
Intent.
Premeditation.
Sentence.
Degrees.
252 P2d 524 (1953).
Evidence.
said he didn't have the lighter was sufficient
73 Idaho 365, 252 P.2d 524 (1953).
Notwithstanding a contradictory diagram
of the scene, there was substantial and com-
petent evidence to sustain the jury's verdict,
where the state's case included testimony by
three witnesses, including the victim, which
supported the finding that defendant fired the
shot that struck the victim, and further, an
acquaintance of the defendant testified that
he admitted shooting the victim. State v.
Lopez, 100 Idaho 99, 593 P.2d 1003 (1979).
Where the evidence showed that a security
officer was patrolling his employer's property
when he observed a van parked on the com-
pany property, that he shined the patrol vehi-
cle's spotlight into a van on the property in
response to movement, that he exited his
patrol car and observed a man coming from
the back of the van to the front with gun in
hand, that officer tried to tell his assailant he
was unarmed, that the assailant fired from
inside the van, wounding the officer in the
neck and knocking him down, that the assail-
ant exited the van, walked over to the officer,
looked at him, returned to the van and drove
off, that the officer was able to describe defen-
dant to police and identify his picture, that
defendant was arrested shortly thereafter,
and that tests showed defendant had held a
handgun with both hands and fired it not
more than two hours previously, the evidence
was sufficient to sustain a conviction for as-
sault with intent to murder. State v. Warden,
100 Idaho 21, 592 P2d 836 (1979).
Included Offense.
murder" as considered in this case, is suffi-
cient to charge "assault with a deadly weap-
on," an included offense pursuant to
19-
2312; it clearly appears that the intent of
appellant to do what the jury found he did is
sufficiently established by the commission of
the acts and circumstances surrounding
them. State v. Missenberger, 86 Idaho 321,
386 P.2d 559 (1963).
An information alleging facts constituting
both assault with a deadly weapon and as-
sault with intent to commit murder and enti-
tled "Assault With a Deadly Weapon With
Intent to Murder" was sufficient to charge
assault with intent to commit murder and,
upon proof of such facts, to warrant a convic-
tion of such charge. State v. Poison, 92 Idaho
615, 448 P.2d 229 (1968), cert, denied, 395
U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765
(1969).
Indictment or Information.
Information held sufficient. State v. Dixon,
7 Idaho 518, 63 P. 801 (1901).
An information charging an assault with an
attempt to commit murder, does not necessar-
ily include an assault with a deadly weapon,
or instrument, or assault by means and force
likely to produce great bodily injury. State v.
Singh, 34 Idaho 742, 203 P. 1064 (1921).
In General.
Conviction sustained. State v. Grigg, 25
Idaho 405, 137 P. 371, 138 P. 506 (1914).
Instructions.
Where trial court instructed the jury that
the crime of assault with intent to commit
murder necessarily includes the following
lesser offenses: attempted manslaughter; as-
sault with a deadly weapon; assault; exhibi-
tion or use of a deadly weapon; discharging
firearms at another, and aiming firearms at
another, which six lesser included offenses
were set out separately in the instruction utive sentences for the maximum term of
with the elements of each offense being confinement on respective counts of second
clearly stated, the crimes listed as lesser degree kidnapping, assault with intent to
included offenses were not so numerous as to commit infamous crime against nature, at-
confuse or mislead the jury, nor was defen-
tempt to commit infamous crime against na-
dant's right to equal protection of the laws
ture, and assault with intent to commit mur-
violated by the trial court's instruction on
der were not excessive. State v. Drapeau, 97
grounds that the classifications were unrea-
Idaho 685, 551 P.2d 972 (1976).
sonable and without a rational basis. State v.
w^^ the evidence showed the defendant
Olsen, 103 Idaho 278, 647 P.2d 734 (1982).
had fired a two
.
hand shot with a pistol
Intent.
through the window of his van, which shot
struck an unarmed man in the neck and at
close range, then exited the van and exam-
ined the victim from as close as three feet
before returning to his van and driving ofT,
the violence involved in the commission of the
365, 252 P.2d 524 (1953).
crime alone would justify imposition of the
maximum sentence of 14 years under this
Premeditation.
section, notwithstanding his prior nonviolent
rec0rd, which showed only two prior misde-
meanor convictions, favorable psychological
report? the fact he had been honorably dis
.
P2a 524 (1953).
charged from the Army, was married with
Sentence.
seven children, aged eight to 18, and had
regularly worked from discharge from Army
until his arrest for the assault with intent to
commit murder. State v. Warden, 100 Idaho
21, 592 P.2d 836 (1979).
18-4016. Definition of human embryo and fetus

Prohibiting
the prosecution of certain persons.
(1) For purposes of this chapter

"embryo" or "fetus" shall mean any human in utero.
(2) Nothing in this chapter, arising from the killing of an embryo or fetus,
shall be construed to permit the prosecution:
(a) Of any person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by law;
(b) Of any person for any medical treatment of the pregnant woman or
her embryo or fetus; or
(c) Of any woman with respect to her embryo or fetus.
(3) Nothing in this chapter is intended to amend or nullify the provisions
of chapter
6, title 18, Idaho Code. [I.C.,

18-4016, as added by 2002, ch. 330,
3, p. 935; am. 2002, ch.
337, 1, p. 953.]
18-907.
CHAPTER 41
INDECENCY AND OBSCENITY
SECTION. SECTION.
18-4101. Definitions. 18-4103A. Advertisement, promotion of sale,
18-4102. Affirmative defense. etc., of matter represented to
18-4103. General sale or distribution, etc., of be obscene
Penalty.
obscene matter
Penalty. 18-4104. Participation in, or production or

407 INDECENCY AND OBSCENITY 18-4101
SECTION. SECTION.
presentation of, obscene live 18-4108. Special verdict.
conduct in public place
Pen- 18-4109. Punishment for violations.

alty. 18-4110. Expert witness testimony.
18-4105. Public display of offensive sexual 18-4111. Search warrant for seizure of ob-
material
Penalty. scene material.

18-4105A. Requiring purchaser or consignee 18-4112. Contraband.
to receive obscene matter as 18-4113. Uniform enforcement
Abrogation
condition to sale, etc.

Pen- of existing ordinances

Fur-
alty ther local ordinances banned.
18-4106. Distribution to minors

Law gov- 18-4114. Enforcement by injunction, etc.
erning. 18-4115. Partial invalidity
Severability.
18-4107. Conspiracy
Penalty. 18-4116. Indecent exposure.

The following definitions are applicable to this

act:
(A) "Obscene" material means any matter:
(1)
which the average person, applying contemporary community stan-
dards, would find, when considered as a whole, appeals to the prurient
interest; and
(2)
which depicts or describes patently offensive representations or
descriptions of:
(a) ultimate sexual acts, normal or perverted, actual or simulated;
or
(b) masturbation, excretory functions, or lewd exhibition of the
genitals or genital area.
Nothing herein contained is intended to include or proscribe any matter
which, when considered as a whole, and in the context in which it is used,
possesses serious literary, artistic, political or scientific value.
In prosecutions under this act, where circumstances of production,
presentation, sale, dissemination, or publicity indicate that the matter is
being commercially exploited by the defendant for the sake of its prurient
appeal, such evidence is probative with respect to the nature of the matter
and can justify the conclusion that, in the context in which it is used, the
matter has no serious literary, artistic, political, or scientific value.
(B) "Prurient interest" means a shameful or morbid interest in nudity,
sex, or excretion, which goes substantially beyond customary limits of
candor in description or representation of such matters. If it appears from
the character of the material or the circumstances of its dissemination that
the subject matter is designed for a specially susceptible audience or clearly
defined deviant sexual group, the appeal of the subject matter shall be
judged with reference to such audience or group.
(C) "Matter" or "material" means any book, magazine, newspaper, or
other printed or written material; or any picture, drawing, photograph,
motion picture, or other pictorial representation; or any statue or other
figure; or any recording, transcription, or mechanical, chemical, or electrical
reproduction; or any other articles, equipment, machines, or materials.
(D) "Person" means any individual, partnership, firm, association, corpo-
ration, or other legal entity; or any agent or servant thereof.
(E) "Distribute" means to transfer possession of, whether with or without
consideration, by any means.
(F) "Knowingly" means having actual or constructive knowledge of the
character of the subject matter or live conduct. A person shall be deemed to
have constructive knowledge of the character of the subject matter or live
conduct if he has knowledge of facts which would put a reasonable and
prudent man on notice as to the suspect nature of the matter, and the failure
to inspect the contents is either for the purpose of avoiding such disclosure
or is due to reckless conduct.
(G) "Reckless conduct" is conduct which consciously disregards a substan-
tial and unjustifiable risk that matter may be obscene. The risk must be of
such a nature and degree that, considering the nature and purpose of the
actor's conduct and the circumstances known to him, its disregard involves
a gross deviation from the standard of conduct that an average law-abiding
person would observe in the actor's situation under like circumstances.
(H) "Exhibit" means to show or display.
(I) "Obscene live conduct" means any physical human body activity,
whether performed or engaged in alone or with other persons, including but
not limited to singing, speaking, dancing, acting, simulating, or pantomim-
ing, where:
(1) the average person, applying contemporary community stan-
dards, would find such conduct, when considered as a whole,
appeals to the prurient interest; and
(2) the conduct is patently offensive because it consists of:
(a) ultimate sexual acts, normal or perverted, actual or simu-
lated; or
(b) masturbation, excretory functions, or lewd exhibition of
the genitals or genital area.
Nothing herein contained is intended to include or proscribe any conduct
which, when considered as a whole, and in the context in which it is used,
possesses serious literary, artistic, political or scientific value. In prosecu-
tions under this act, where circumstances of production, presentation,
advertising, or exhibition indicate that live conduct is being commercially
exploited by the defendant for the sake of its prurient appeal, such evidence
is probative with respect to the nature of the conduct and can justify the
conclusion that, in the context in which it is used, the matter has no serious
literary, artistic, political or scientific value. [I.C.,
1973, ch. 305, 2, p. 655; am. 1976, ch.
81, 1, p. 258.]
Compiler's notes. Former 18-4101, in

18-4109, 23-933A and 23-1037A.
which comprised I.C., 18-4101, as added by This section is referred to in
67-6533.
S.L. 1973, ch. 305, 1.
Analysis
Another former
18-4101 which comprised t
_,
?rk ^
1?'
L
'
684<
?
;
C
k
S
,
?o^
;
"Knowingly" applies to prosecution.
I.C.A.,

6 J PF v
ch. 143, 5, effective January 1, 1972. Jury Voir Dire.
The words "this act" refer to S.L. 1973, ch. Because the question of obscenity of expres-
305 compiled as 18-1517A, 18-4101

sive materials involves additional complexi-
18-4115, 23-933A, 23-1037A. ties affecting jury voir dire and because the
Cross ref. Liquor licenses, suspension or record indicated that the trial court did not go
revocation, conviction for violation of obscen- through the proper reasoning process when
ity law,
23-933A, 23-1037A. determining whether to grant defense request
Sec. to sec. ref. This chapter is referred to for additional time to complete jury voir dire,
but instead allowed the decision to be made 67 C.J.S., Obscenity, 1 et seq.
by the prosecutor, an abuse of discretion oc-
Modern concept of obscenity. 5 A.L.R.3d
curred when the additional time was denied
1158.
and conviction for sale of obscene matter was
Validity of procedures designed to protect
vacated and case remanded for new trial.
the public against obscenity. 5 A.L.R.3d 1214;
State v. Larsen, 129 Idaho 294, 923 P.2d 1001
93 A.L.R.3d 297.
(Ct. App. 1996).
Operation of nude-model photographic stu-
"Knowingly" Applies to Prosecution.
dio as offense. 48 A.L.R.3d 1313.
The definition of "knowingly" found in sub-
Topless or bottomless dancing or similar
section (F) of this section applies to a prose-
conduct is offense.. 49 A.L.R.3d 1084.
cution under
18-4105. State v. Paciorek,
Exhibition of obscene motion pictures as
137 Idaho 629, 51 P.3d 443 (Ct. App. 2002).
nuisance. 50 A.L.R.3d 969.
Collateral References. 50 Am. Jur. 2d, Porno shops or similar places disseminat-
Lewdness, Indecency and Obscenity, 1 et ing obscene materials as nuisance. 58
seq. A.L.R.3d 1134.
18-4102. Affirmative defense.

It is not innocent but calculated
purveyance which is prohibited. This act shall not apply to any persons who
may possess or distribute obscene matter or participate in conduct other-
wise proscribed by this act when such possession, distribution, or conduct
occurs:
(A) within the scope of employment of law enforcement and judicial
activities; or
(B) within the scope of employment of bona fide school, college, univer-
sity, museum or public library activities or within the scope of employment
of such an organization or a retail outlet affiliated with and serving the
educational purposes of such an organization; or
(C) within the scope of employment as a moving picture machine opera-
tor, assistant operator, usher, or ticket taker in a motion picture theater in
connection with a motion picture film or show exhibited in such theater, if
such operator or assistant operator has no financial interest in the motion
picture theater wherein he is so employed other than his wages received or
owed, and such person consents to give testimony regarding such employ-
ment in all judicial proceedings brought under this act, when granted
immunity by the trial judge; or
(D) under like circumstances ofjustification where the possession, distri-
bution or conduct possesses serious literary, artistic, political or scientific
value.
If this issue is not presented by the prosecution's evidence, the defendant
may raise the same as an affirmative defense by presenting some evidence
thereon. Where raised, the prosecution must sustain the burden of proving
the defendant guilty beyond a reasonable doubt as to that issue. [I.C.,
18-4102, as added by 1973, ch.

305, 4, p. 655; am. 1976, ch.
81, 2, p.
258.]
Compiler's notes. Former 18-4102, I.C.A.,
18-4102, as added by ch. 143, 5, effective January 1, 1972.
S.L. 1973, ch. 305,
3.
305 compiled as 18-1517A, 18-4101

Another former

18-4115 23-933A 23-1037A
R.S., R.C., & C.L.,
6841; C.S., 8304;
18-4103. General sale or distribution, etc., of obscene matter
Penalty.
Every person in this state who knowingly: brings or causes to be

brought into this state for sale or distribution; or in this state prepares for
distribution, publishes, prints, exhibits, distributes, or offers to distribute;
or has in his possession with intent to distribute, exhibit, or offer to
distribute, any obscene matter is guilty of a misdemeanor. Each sale,
distribution, etc., is a separate violation. [I.C.,

18-4103, as added by 1973,
ch. 305, 6, p. 655; am. 1976, ch.
81, 3, p. 258.]
Compiler's notes. Former 18-4103, Sec. to sec. ref. This section is referred to
18-4103, as added by in

18-1517A, 18-4109 and 18-7803.
Cited in: State v. Larsen, 129 Idaho 294,
S.L. 1973, ch. 305,
5.
923 P.2d 1001 (Ct. App. 1996).
Another former

Collateral References. Constitutionality
S.L. 1970, ch.
22, 1, p. 49 was repealed by
of state statutes banning distribution of sex-
S.L. 1971, ch. 143, 5,
ual devices. 94 A.L.R.5th 497.
1972.
18-4103A. Advertisement, promotion of sale, etc., of matter rep-
resented to be obscene
Penalty.
Every person who writes, creates,

or solicits the publication or distribution of advertising or other promotional
material for, or who otherwise advertises or promotes the sale, distribution,
or exhibition of matter represented or held out by him to be obscene,
whether or not such matter exists in fact, or is obscene, is guilty of a
misdemeanor. [I.C.,

18-4103A, as added by 1976, ch.
81, 4, p. 258.]
Sec. to sec. ref. This section is referred to of state statutes banning distribution of sex-
in

18-7803. ual devices. 94 A.L.R.5th 497.
18-4104. Participation in, or production or presentation of, ob-
scene live conduct in public place
Penalty.
(A) Every person who

knowingly engages or participates in, manages, produces, sponsors, pre-
sents, or exhibits obscene live conduct to or before an assembly or audience
consisting of at least one
(1) person or spectator in any public place, or in any
place exposed to public view, or in any place open to the public or to a
segment thereof, whether or not an admission fee is charged, or whether or
not attendance is conditioned upon the presentation of a membership card
or other token, is guilty of a misdemeanor.
(B) Every person who procures, counsels, or assists any person to engage
in such conduct, or who knowingly exhibits, or procures, counsels, or assists
in the exhibition of a motion picture, television production, or other
mechanical reproduction containing such conduct, is guilty of a misde-
meanor. [I.C,

18-4104, as added by 1973, ch.
305, 7, p. 655; am. 1976,
ch.
81, 5, p. 258.]
Sec. to sec. ref. This section is referred to or local ordinance prohibiting indecency or
in

18-4109 and 18-7803. commission of sexual act in public place. 95
Collateral References. What constitutes A.L.R.5th 229.
"public place" within meaning of state statute
18-4105. Public display of offensive sexual material
Penalty.
Any person who knowingly exhibits or displays or permits to be exhibited or

displayed any of the following in such a manner that such exhibit or display
is easily visible from any street, sidewalk, thoroughfare, or other public
area; or is visible from any transportation facility; or is visible from any
residence when the person knows that the owner or occupant of such
residence objects to such exhibit or display:
(a) Human genitals or pubic area without a full opaque covering, or any
graphic or pictorial depiction thereof, or any depiction of covered male
genitals in a discernibly erect state;
(b) An actual or simulated sex act, or sexual contact between humans and
animals, or masturbation, or any graphic or pictorial display thereof; or
(c) Any depiction of sado-masochistic abuse, as denned in section 18-
1514(5), Idaho Code, is guilty of a misdemeanor. [I.C.,

18-4105, as added
by 1973, ch.
305, 8, p. 655.]
Sec. to sec. ref. This section is referred to Intent Required.
in
18-4109 and 18-7803.
The definition of "knowingly" found in

18-
Cited in: State v. Paciorek, 137 Idaho 629,
4101(F) applies to a prosecution under this
section. State v. Paciorek, 137 Idaho 629, 51
51 P3d 443 (Ct. App. 2002).
P.3d 443 (Ct. App. 2002).
18-4105A. Requiring purchaser or consignee to receive obscene
matter as condition to sale, etc.

Penalty.

Every person, who,
knowingly, as a condition to a sale, allocation, consignment, or delivery for
resale of any paper, magazine, book, periodical, publication or other mer-
chandise, requires that the purchaser or consignee receive any matter
reasonably believed by the purchaser or consignee to be obscene, or who
denies or threatens to deny a franchise, revokes or threatens to revoke, or
imposes any penalty, financial or otherwise, by reason of the failure of any
person to accept such matter, or by reason of the return of such matter, is

18-4105A, as added by 1976, ch.
81, 6, p.
258.]
ch. 81 is compiled herein as
18-4107. in
18-7803.
18-4106. Distribution to minors

Law governing.

Notwith-
standing any of the provisions of this act, the distribution of obscene matter
to minors shall be governed by sections 18-1513 to 18-1521, Idaho Code.
[I.C,

18-4106, as added by 1973, ch. 305, 9, p. 655.]
Compiler's notes. The words "this act" 1517A, 18-4101
18-4115, 23-933A,
18- 23-1037A.
18-4107. Conspiracy

Penalty.

A conspiracy of two (2) or more
persons to commit any of the crimes proscribed by this act is punishable as
a felony. Any court having jurisdiction of the conspiracy crime has concur-
rent jurisdiction to try all misdemeanor crimes committed in furtherance of
the conspiracy. [I.C,

18-4107, as added by 1973, ch. 305, 10, p. 655; am.
1976, ch.
81, 7, p. 258.]
Compiler's notes. The words "this act" Sections 6 and 8 of S.L. 1976, ch. 81 are
18- compiled herein as

18-4105A and 18-4109.
1517A, 18-4101 18-4115, 23-933A, Sec. to sec. ref. This section is referred to
23-1037A. in 18-7803.
18-4108. Special verdict.

The jury, or the court if a jury trial is
waived, shall render a general verdict, and must also render a special
verdict as to whether the matter named in the charge is obscene. The special
verdict or findings on the issue of obscenity may be: "We find the
(title or description of matter or live conduct) to be obscene," or
"We find the (title or description of matter or live conduct) not to be
obscene." A special verdict shall not be admissible as evidence in any other
proceeding, nor shall it be res judicata of any question in any other
proceeding. [I.C.,

18-4108, as added by 1973, ch. 305, 11, p. 655.]
18-4109. Punishment for violations.

The following punishments
are applicable to this act:
Every person who violates sections 18-4103, 18-4104 or 18-4105, Idaho
Code, is punishable by a fine of not more than three hundred dollars
($300),
or by imprisonment in the county jail for not more than six (6) months, or by
both such fine and imprisonment for each separate violation. If such person
has twice been convicted within the immediately preceding two (2) years for
any offense contained in chapter 41, title 18, Idaho Code, and these
convictions were for offenses which occurred ten (10) or more days apart, a
third or subsequent violation of sections 18-4103, 18-4104 or 18-4105, Idaho
Code, within this two (2) year period is punishable as a felony. [I.C.,
81, 8, p.
258.]
Compiler's notes. The words "this act" Section 7 of S.L. 1976, ch. 81 is compiled
18- herein as
18-4107.
1517A, 18-4101 18-4115, 23-933A,
23-1037A.
18-4110. Expert witness testimony.

In any prosecution for a
violation ofthe provisions ofthis act, neither the prosecution nor the defense
shall be required to introduce expert witness testimony concerning the
obscene or harmful character of the matter which is the subject of any such
prosecution. [I.C.,

18-4110, as added by 1973, ch.
305, 13, p. 655; am.
1976, ch.
81, 9, p. 258.]
Compiler's notes. The words "this act" As enacted the section heading of this sec-

18-
tion read: "Expert witness testimony

Ad-
1517A, 18-4101 18-4115, 23-933A, missibility of evidence."
23-1037A.
18-4111. Search warrant for seizure of obscene material.

(A) An affidavit for a search warrant shall be filed with the magistrate
describing the matter sought to be seized in detail. Where practical, the
matter alleged to be obscene shall be attached to the affidavit for search
warrant so as to afford the magistrate the opportunity to examine such
material.
(B) Upon the filing of an affidavit for a search warrant, the magistrate
shall determine, by examination of the matter sought to be seized, if
attached, by an examination of the affidavit describing the matter, or by
such other manner or means that he deems necessary, if probable cause
exists to believe that the matter is obscene and that probable cause exists for
the immediate issuance of a search warrant. Upon making such determi-
nation, he shall issue a search warrant ordering the seizure of the matter
described in the affidavit for a search warrant according to the provisions of
Idaho criminal rules of procedure.
(C) In the event that a search warrant is issued and matter alleged to be
obscene is seized under the provisions of this section, any person alleged to
be in possession of the said matter or claiming ownership of the matter at
the time of its possession or seizure may file a notice in writing with the
magistrate within ten (10) days of the date of the seizure alleging that the
matter is not obscene and the magistrate shall set a hearing within one (1)
day after request therefore, or at such time as the requesting party might
agree, and at such hearing evidence may be presented as to the obscenity or
nonobscenity of the matter seized and at the conclusion of such hearing, the
magistrate shall make a further determination of whether probable cause
exists to believe that the matter is obscene or nonobscene. A decision as to
whether there is probable cause to believe the seized material to be obscene
shall be rendered by the court within two (2) days of the conclusion of said
hearing. If at such hearing the magistrate finds that no probable cause
exists to believe that the matter is obscene, then the matter shall be
returned to the person or persons from whom it was seized.
(D) If a motion to suppress the evidence is granted on the grounds of an
unlawful seizure, the property shall be restored unless it is subject to
confiscation as contraband, as provided for in section 18-4112, Idaho Code,
in which case it shall not be returned.
(E) When a search warrant is issued under the provisions of this section,
only that matter described in the complaint shall be seized by the executing
peace officer or officers.
(F) Procedures under this section for the seizure of allegedly obscene
matter shall be cumulative of all other lawful means of obtaining evidence
as provided by the laws of this state. Nothing contained in this section shall
prevent the obtaining of alleged obscene matter by purchase or under
injunction proceedings as authorized by this act or by any other statute of
the state of Idaho. [I.C.,

18-4111, as added by 1976, ch. 81, 11, p. 258.]
Compiler's notes. Former 18-4111, The words "this act" refer to S.L. 1976, ch.
which comprised I.C., 18-4111, as added by 81, compiled herein as
18-1514,18-4101
1973, ch. 305, 14, p. 655, was repealed by 18-4104, 18-4105A, 18-4107, 18-4109 18-
S.L. 1976, ch. 81, 10. 4112, 18-4114.
18-4112. Contraband.

Destruction of obscene matter or advertise-
ment of matter represented to be obscene:
(A) Obscene matter and advertisements for matter represented to be
obscene are contraband and shall be destroyed.
(B) Upon the conviction of the accused or rendition of a court order
declaring such matter to be contraband and subject to confiscation, the court
shall, when such judgments become final, and all appeal procedures have
terminated, order, upon five (5) days' notice to the defendant, any matter or
advertisement, in respect whereof the accused stands convicted, and which
remains in the possession or under the control of the prosecuting attorney or
any law enforcement agency, to be destroyed, and the court shall cause to be
destroyed any such material in its possession or under its control, retaining
only such copies as are necessary for law enforcement purposes. [I.C.,
18-4112, as added by 1976, ch.

81, 13, p. 258.]
Compiler's notes. A former 18-4112, 1973, ch. 305, 15, p. 655, was repealed by
which comprised I.C., 18-4112, as added by S.L. 1976, ch. 81, 12.

Abrogation of existing ordi-
nances

Further local ordinances banned.

In order to make the
application and enforcement of this act uniform throughout the state, it is
the intent of the legislature to preempt, to the exclusion of city and county
governments, the regulation of the sale, loan, distribution, dissemination,
presentation, or exhibition of material or live conduct which is obscene. To
that end, it is hereby declared that every city or county ordinance adopted
before the effective date of this act which deals with the sale, loan,
distribution, dissemination, presentation, or exhibition of material or live
conduct which is obscene shall stand abrogated and unenforceable on or
after such effective date; and that no city or county government shall have
the power to adopt any ordinance relating to the regulation of the sale, loan,
distribution, dissemination, presentation, or exhibition of material or live
conduct which is obscene on or after such effective date. [I.C.,

18-4113, as
added by 1973, ch.
305, 16, p. 655.]
Compiler's notes. The words "this act" 1517A, 18-4101
18-4115, 23-933A,

18- 23-1037A.
18-4114. Enforcement by injunction, etc.

The district courts of
this state and the judges thereof shall have full power, authority, and
jurisdiction, upon application by any county prosecutor or city attorney
within their respective jurisdictions, or the attorney general, to issue any
and all proper restraining orders, temporary and permanent injunctions,
and any other writs and processes appropriate to carry out and enforce the
provisions of this act. Such restraining orders or injunctions may issue to
prevent any person from violating any of the provisions of this act, in
addition to those powers provided under title 52 of tthe [the] Idaho Code.
However, no restraining order or injunction shall issue except upon notice to
the person sought to be enjoined. Such person shall be entitled to a trial of
the issues within one (1) day after filing of an answer to the complaint and
a decision shall be rendered by the court within two (2) days of the
conclusion of the trial. In the event that a final order or judgment of
injunction be entered against the person sought to be enjoined, such final
order or judgment shall contain a provision directing the person to surren-
415 INTOXICANTS AND INTOXICATION 18-4116
der to the sheriff of the county in which the action was brought any obscene
matter in his possession which is subject to such injunction and such sheriff
shall be directed to seize and destroy such matter. [I.C.,

18-4114, as added
by 1973, ch. 305, 17, p. 655; am. 1976, ch.
81, 14, p. 258.]

18-
herein as
18-15 17A.
1517A, 18-4101 18-4115, 23-933A,
23-1037A.
compiled herein as.
18-4112 and 18-1514.
The bracketed word "the" was inserted by
the compiler.
18-4115. Partial invalidity
Severability.
If any phrase, clause,

sentence, section, or provision of this act or application thereofto any person
or circumstance is held invalid, such invalidity shall not affect any other
phrase, clause, sentence, section, provision, or application of this act which
can be given effect without the invalid phrase, clause, sentence, section,
provision, or application and to this end the provisions of this act are
declared to be severable. [I.C.,

18-4115, as added by 1973, ch.
305, 21,
p. 655.]
Compiler's notes. The words "this act" Section 22 of S.L. 1973, ch. 305 provided
18-
that the act should be in full force and effect
1517A, 18-4101 18-4115, 23-933A, on and after July 1, 1973.
23-1037A.
as 23-1037A.
18-4116. Indecent exposure.

Every person who willfully and
lewdly, either:
(1) Exposes his or her genitals, in any public place, or in any place where
there is present another person or persons who are offended or annoyed
thereby; or,
(2) Procures, counsels, or assists any person so to expose his or her
genitals, where there is present another person or persons who are offended
or annoyed thereby is guilty of a misdemeanor.
Any person who pleads guilty to or is found guilty of a violation of
subsection (1) or (2) of this section or a similar statute in another state or
any local jurisdiction for a second time within five
(5)
years, notwithstand-
ing the form of the judgment(s) or withheld judgments
),
is guilty of a felony.
[I.C.,

18-4116, as added by 1996, ch. 241, 1, p. 771.]
in

18-310 and 18-8304.
CHAPTER 42
INTOXICANTS AND INTOXICATION
SECTION.
18-4202. Acting as physician while intoxi-
cated.
18-4201. Selling liquor to Indians. [Repealed.]
comprised S.L. 1879, p. 31; R.S., R.C., & C.L.,
6929; C.S., 8355; I.C.A.,
17-2724, was
repealed by S.L. 1955, ch. 262, 1, p. 630.
18-4202. Acting as physician while intoxicated.
Every physician
who, in a state of intoxication, does any act as such physician to another
person by which the life of such other person is endangered, is guilty of a
misdemeanor. [I.C.,
18-4202, as added by 1972, ch.
336, 1, p. 844.]
8325; I.C.A.,
18-113.
CHAPTER 43
IRRIGATION WORKS
SECTION.
18-4301. Interference with ditches, canals,
laterals, drains or reservoirs.
18-4302. Wasting water used for irrigation.
18-4303. Obstruction of overflow, gauge or
waterway in dam.
18-4304. Wrongful diversion of water.
18-4305. Interference with headgate
Cut-
ting banks of stream.
18-4306. Injuries to ditches, canals, laterals,
drains and appurtenances.
SECTION.
18-4307. Injury to measuring devices.
18-4308. Change of ditch, canal, lateral,
drain or buried irrigation con-
duit.
18-4309. Unauthorized tampering with mea-
suring devices.
18-4310. Neglect to deliver water
Interfer-
ence with delivery.
18-4301. Interference with ditches, canals, laterals, drains or
reservoirs.
Every person who shall, without authority of the owner or

managing agent, and with intent to defraud, take water from any canal,
ditch, lateral, drain, flume or reservoir, used for the purpose of holding,
draining or conveying water for manufacturing, agricultural, mining, or
domestic uses, or who shall, without like authority, raise, lower, or otherwise
disturb, any gate or other appurtenance thereof used for the control or
measurement of water, or who shall empty or place, or cause to be emptied
or placed, into any such canal, ditch, lateral, drain, flume, or reservoir, any
rubbish, filth, or obstruction to the free flow of water, is guilty of a
misdemeanor. [I.C.,

18-4301, as added by 1972, ch. 336, 1, p. 844; am.
2002, ch. 115, 1, p. 326.]
8528; am. 1921, ch. 131, 1, p. 314; am.
1929, ch. 89, 1, p. 143; I.C.A.,
17-4116,
18-4306.
Cross ref. Malicious injury to water con-
duit is a felony,
18-7019.
wise provided,
18-113.
Canals, 1 et seq.
45 Am. Jur. 2d, Irrigation, 1 et seq.
417 IRRIGATION WORKS 18-4302
78 Am. Jur. 2d, Waters, 1 et seq.
12A C.J.S., Canals, 1 et seq.
93, 94 C.J.S. Waters, 1 et seq.
18-4302. Wasting water used for irrigation.

Any person or per-
sons, who shall wilfully or wantonly waste any of the waters of any stream,
the waters of which are used for irrigation, to the detriment of any claimant
of such water for irrigation purposes, by diverting the same for an unnec-
essary use or purpose, or by allowing such water to waste by running into
depressions or dry channels so that the same cannot be used for irrigation,
nor reach the original channel of the stream from which it has been
diverted, are guilty of a misdemeanor. [I.C.,

18-4302, as added by 1972, ch.
336, 1, p. 844.]
comprised 1899, p. 336, 1; reen. R.C. &
C.L., 7144; C.S., 8529; am. 1921, ch. 131,
2, p. 314; am. 1929, ch. 89, 2, p. 143;
I.C.A.,
18-113.
Cited in: Walbridge v. Robinson, 22 Idaho
236, 125 P. 812, 43 L.R.A. (n.s.) 240 (1912).
Analysis
Appropriator permitting use by others.
In general.
Public policy.
Questions for jury.
Appropriator Permitting Use by Others.
It is the duty of the* prior appropriator to
allow the water, which he has the right to use,
to flow down the channel for the benefit of
junior appropriators at times when he has no
immediate need for the use thereof. To allow a
junior, or other, appropriator to establish an
adverse right to such water during times
when it is not required and not being used, by
the original appropriator, on the theory that
such adverse use was inconsistent with the
right of the prior appropriator, would subvert
the purpose of the law and encourage waste-
ful diversion and use of water in violation
thereof. Mountain Home Irrigation Dist. v.
Duffy, 79 Idaho 435, 319 P.2d 965 (1957).
In General.
Waters of all streams belong to the public,
and while right to use thereof for beneficial
purposes may be acquired and maintained,
yet the public is interested in the water and in
its beneficial use, and it is against the spirit
and policy of the constitution and laws, as
well as contrary to public policy, to permit
wasting of the waters. Stickney v. Hanrahan,
7 Idaho 424, 63 P. 189 (1900).
Where it is necessary to divert and apply
more water than soil will absorb, as on slop-
ing land, excess is not waste within the mean-
ing of this and
42-916. Beasley v. Engstrom,
31 Idaho 14, 168 P. 1145 (1917).
Waters of state belong to state and right to
beneficial use thereof is all that can be ac-
quired. Coulson v. Aberdeen-Springfield Ca-
nal Co., 39 Idaho 320, 227 P. 29 (1924).
Public Policy.
This section is declaratory of a well defined
public policy that existed before the enact-
ment of this statute. Stickney v. Hanrahan, 7
Idaho 424, 63 P. 189 (1900).
It is against public policy of state, as well as
against express enactments, for water user to
take from irrigation canal more water than is
necessary for his land. Coulson v. Aberdeen-
Springfield Canal Co., 39 Idaho 320, 227 P. 29
(1924).
The policy of the law of this state is to
secure the maximum use and benefit of its
water resources. To effectuate this policy, the
legislature has made it a misdemeanor to
waste water from a stream, the waters of
which are used for irrigation. Mountain Home
Irrigation Dist. v. Duffy, 79 Idaho 435, 319
P.2d 965 (1957); Poole v. Olaveson, 82 Idaho
496, 356 P.2d 61 (1960).
Where springs which arose in area of defen-
dant's land were tributary to a water course,
waste water in that area constituted a by-
product of the irrigation waters arising in the
area and reclaiming such water whether
waste or otherwise, by drainage into natural
channel of a stream, if without detriment or
damage to others was in keeping with the
expressed policy of the state to secure maxi-
mum beneficial and least wasteful use of its
water resources. Poole v. Olaveson, 82 Idaho
496, 356 P.2d 61 (1960).
Questions for Jury.
What constitutes waste depends upon the
circumstances of each case and is a question
of fact for the jury. Beasley v. Engstrom, 31
Idaho 14, 168 P. 1145 (1917).
18-4303. Obstruction of overflow, gauge or waterway in dam.
Any person or persons who shall obstruct any overflow, gauge or waterway,
placed in any dam by order of any water master, so as to impede the flow of
water over such dam as regulated by the water master, shall be guilty of a
misdemeanor. [I.C.,
18-4303, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which 336, 1 in the same words as the section
comprised 1899, p. 336, 2; reen. R.C. & prior to its repeal.
C.L.,

7144a; C.S.,
8530; am. 1921, ch.
131, 3, p. 314; am. 1929, ch. 89, 3, p. 143;

18-113.
I.C.A.,

Cited in
.
Walbridge v. Robinson, 22 Idaho
ch. 143,
5,
effective January
1, 1972, and
236, 125 P. 812, 43 L.R.A. (n.s.) 240 (1912).
18-4304. Wrongful diversion of water.

Any person who without
the consent of the water master of the district, diverts any water from a
ditch or channel where it has been placed, or caused or left to run by the
water master or his deputies, or who shuts or opens any ditch, gate or dam,
or in any way impedes or increases the flow of water in any stream or ditch
diverting water from a stream, while the same is under the charge of a water
master, or who cuts away any embankment of a stream, whereby the water
of such stream is diverted, or breaks, injures, or removes any gate, flume or
other device used for the equitable distribution of the water of such stream
by the water master, shall be guilty of a misdemeanor. [I.C.,

18-4304, as
added by 1972, ch. 336, 1, p. 844.]
comprised 1899, p. 336, 3; reen. R.C. & 336, 1 in the same words as the section
C.L.,

7144b; C.S., 8531; am. 1921, ch. prior to its repeal.
131, 4, p. 314; am. 1929, ch.
89, 4, p. 143;
I.C.A.,

18-113.
18-4305. Interference with headgate
Cutting banks of stream.
If any obstruction shall be wilfully and maliciously placed on any overflow

gauge in any stream of water which is used for irrigation and is under
control of a water master, and such obstruction retards or impedes the free
overflow of the water of such stream, thereby increasing the pressure
against a headgate through which water is diverted by means of such dam,
or if any headgate regulated by a water master shall be removed, broken,
injured or interfered with so as to disturb the distribution of the water as
regulated by the water master, or if any bank of the natural stream, the
water of which is being used for irrigation and is being distributed by a
water master, shall be cut away so as to increase the flow ofwater from such
stream, thereby interfering with the distribution of the water as regulated
by a water master, the person or persons so interrupting the flow of said
water as aforesaid, shall be guilty of a misdemeanor. [I.C.,
18-4305, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which 131, 5, p. 314; am. 1929, ch. 89, 5, p. 143;
comprised 1899, p. 336, 4; reen. R.C. & I.C.A.,
C.L.,
7144c; C.S., 8532; am. 1921, ch. ch. 143, 5, effective January 1, 1972, and
the present section added by S.L. 1972, ch. headgate regulated by water master, suffi-
336, 1 in the same words as the section ciently comprehensive and explicit to enable
prior to its repeal. person of common understanding to know
what is intended, satisfies requirements of

18-113.
this section. State v. George, 44 Idaho 173,
_ .
e
258 P. 551, cert, denied, 275 U.S. 544, 48 S.
Sufficiency of Information.
?2 Ed
Information charging interference with
18-4306. Injuries to ditches, canals, laterals, drains and appurte-
nances.
Any person or persons, who shall willfully cut, break, damage,

or in any way interfere with any ditch, canal, lateral, drain, headgate, or any
other works in or appurtenant thereto, the property of another person,
irrigation district, drainage district, canal company, corporation, or associ-
ation of persons, and whereby water is conducted to any place for beneficial
use or purposes, and when said canal, headgate, ditch, lateral, drain, dam,
or appurtenance is being used or is to be used for said conduct or drainage
of water, shall be guilty of a misdemeanor. [I.C.,

1972, ch. 336, 1, p. 844; am. 2002, ch. 115, 2, p. 326.]
Compiler's notes. A former section, which Cross ref. Penalty for misdemeanor when
comprised 1907, p. 237, 1; reen. R.C. & not otherwise provided,
18-113.
C.L.,
7145; C.S.,
8533; am. 1921, ch. 131,
Cited in: State v. Suiter, 138 Idaho 662, 67
6, p. 314; am. 1929, ch.
89, 6, p. 143;
R3d 1274 (Ct. App. 2003).
Application.
Breaking padlock which fastened headgate
an(j interfering with headgate was violation
of this section. Nettleton v. Cook, 30 Idaho 82,
-^53
p 3QQ Q917)
compiled as

18-4301 and 18-4308, respec-
tively.
18-4307. Injury to measuring devices.
Any person or persons who

shall cut, break, injure, destroy, enlarge, change, or alter any headgate,
sluiceway, weir, water box, or other measuring device, the property of any
irrigation district, corporation or association of persons, or in the possession
of, or in the use of, said irrigation district, corporation, or association, or the
property of another, shall be guilty of a misdemeanor.
Any person or persons who shall change, alter, destroy, disturb, enlarge,
or interfere with any headgate, dam, weir, water box, or other measuring
device, made, placed, used or regulated by any duly appointed, elected, or
authorized water master, deputy water master, ditch walker, ditch rider,
engineer, or other authorized agent of any irrigation company, corporation
or association or person, when said measuring device is being used or is to
be used for the measurement of water, shall be guilty of a misdemeanor.
[I.C.,

18-4307, as added by 1972, ch.
336, 1, p. 844.]
comprised 1907, p. 237, 2, 3; reen. R.C. & prior to its repeal.
C.L.,
7146; C.S.,
8534; am. 1921, ch. 131,
7, p. 314; am. 1929, ch.
89, 7, p. 143;
18-113.
I.C.A.,

Cited in: Nettleton v. Cook, 30 Idaho 82,
^(53 p 3QQ Q917)
18-4308. Change of ditch, canal, lateral, drain or buried irriga-
tion conduit.

Where any ditch, canal, lateral or drain has heretofore
been, or may hereafter be, constructed across or beneath the lands of
another, the person or persons owning or controlling the said land, shall
have the right at his own expense to change said ditch, canal, lateral, drain
or buried irrigation conduit to any other part of said land, but such change
must be made in such a manner as not to impede the flow of the water
therein, or to otherwise injure any person or persons using or interested in
such ditch, canal, lateral, drain or buried irrigation conduit. Any increased
operation and maintenance shall be the responsibility of the landowner who
makes the change.
A landowner shall also have the right to bury the ditch, canal, lateral or
drain of another in pipe on the landowner's property, provided that the pipe,
installation and backfill reasonably meet standard specifications for such
materials and construction, as set forth in the Idaho standards for public
works construction or other standards recognized by the city or county in
which the burying is to be done. The right and responsibility for operation
and maintenance shall remain with the owner of the ditch, canal, lateral or
drain, but the landowner shall be responsible for any increased operation
and maintenance costs, including rehabilitation and replacement, unless
otherwise agreed in writing with the owner.
The written permission of the owner of a ditch, canal, lateral, drain or
buried irrigation conduit must first be obtained before it is changed or
placed in buried pipe by the landowner.
While the owner of a ditch, canal, lateral, drain or buried irrigation
conduit shall have no right to relocate it on the property of another without
permission, a ditch, canal, lateral or drain owner shall have the right to
place it in a buried conduit within the easement or right-of-way on the
property of another in accordance with standard specifications for pipe,
materials, installation and backfill, as set forth in the Idaho standards for
public works construction or other standards recognized by the city or
county in which the burying is to be done, and so long as the pipe and the
construction is accomplished in a manner that the surface of the owner's
property and the owner's use thereof is not disrupted and is restored to the
condition of adjacent property as expeditiously as possible, but not to exceed
five (5) days after the start of construction. Alandowner shall have the right
to direct that the conduit be relocated to a different route than the route of
the ditch, canal, lateral or drain, provided that the landowner shall agree in
writing to be responsible for any increased construction or future mainte-
nance costs necessitated by said relocation. Maintenance of the buried
conduit shall be the responsibility of the conduit owner.
No more than five (5) days after the start of construction, a landowner or
ditch owner who buries a ditch, canal, lateral or drain in pipe shall record
the location and specifications of the buried irrigation or drainage conduit,
including primary and secondary easements, in the county in which the
burying is done, and shall provide the irrigation or drainage entity that
owns the ditch, canal, lateral, or drain, with a copy of such location and
specifications and the construction plans utilized. The irrigation or drainage
entity shall keep and maintain such records and have them available for the
public.
Any person or persons who relocate or bury a ditch, canal, lateral or drain
contrary to the provisions of this section shall be guilty of a misdemeanor.
[I.C.,
18-4308, as added by 1972, ch.
336, 1, p. 844; am. 1994, ch. 151,
2, p. 345; am. 2000, ch. 355, 1, p. 1190; am. 2002, ch. 115, 3, p. 326.]
comprised 1907, p. 237, 4; reen. R.C. &
C.L., 7147; C.S., 8535; I.C.A., 18-4123,
as
42-1207.
compiled as
18-4306 and 42-1207, respec-
tively.
Analysis
Burden of proof.
Impediment in flow.
In general.
Right to change location.
Burden of Proof.
Where servient estate cut off ditch used by
defendant for part of his water supply, but
constructed a new ditch for use of defendant,
burden of proof in proceeding to enjoin pros-
ecution for cutting off ditch was on plaintiff to
show that new ditch would convey same
amount of water as conveyed by old ditch
without impeding, the flow. Simonson v. Moon,
72 Idaho 39, 237 P.2d 93 (1951).
Impediment in Flow.
If change in location of ditch requires rota-
tion in use of water by users of ditch, there is
a substantial impediment in flow of water.
Simonson v. Moon, 72 Idaho 39, 237 P.2d 93
(1951).
In General.
Irrigation company can change place of
diversion in canal if water user is not injured,
even though he has established point of diver-
sion which he is entitled to use. Harsin v.
Pioneer Irrigation Dist., 45 Idaho 369, 263 P.
988 (1927).
Right to Change Location.
Servient estate seeking to change location
of ditch must comply with statutory require-
ment, since prior to enactment of statutory
law there was no right to change a ditch.
Simonson v. Moon, 72 Idaho 39, 237 P2d 93
(1951).
18-4309. Unauthorized tampering with measuring devices.

Every person whb shall wilfully waste water for irrigation, or who shall
wilfully open, close, change or disturb, or interfere with, any headgate or
water box or valve or measuring or regulating device, without authority,
shall be guilty of a misdemeanor. The water masters or their assistants,
within their district, shall have power to arrest any person or persons
offending, and turn them over to the sheriff or the nearest peace officer of
the county in which such offense is committed, and immediately upon
delivering such person so arrested into the custody of either of such officers,
it shall be the duty of the water master making such arrest to make
complaint, in writing and under oath, before the proper justice of the peace,
or the probate judge of such county, against the person so arrested. [I.C.,
18-4309, as added by 1972, ch.

336, 1, p. 844.]
comprised 1899, p. 380, 18; am. R.C. &C.L.,
7149; C.S., 8538; am. 1921, ch. 131, 9,
p. 314; am. 1929, ch. 89, 9, p. 143; I.C.A.,
17-4124; am. 1949, ch. 172, 1, p. 370, was
18-113.
Sufficiency of Complaint.
A complaint which charges defendant did
wilfully waste irrigation water by "interfering
with and disturbing a certain water-regulat-
ing device
* * *
in violation of former section
18-4309, Idaho Code" charges him with wast-
ing water for irrigation and not with wilfully latter offense. State v. Hall, 90 Idaho 478, 413
interfering with a water regulating device P.2d 685 (1966).
and is insufficient to support conviction of
18-4310. Neglect to deliver water
Interference with delivery.
Any superintendent or any person having control or charge of the said ditch,
canal or conduit, who shall wilfully neglect or refuse to deliver water as
provided in chapter 9, of title 42, or person or persons who shall prevent or
interfere with the proper delivery of water to the person or persons having
a right thereto, shall be guilty of a misdemeanor; and the owner or owners
of such ditch, canal or conduit shall be liable in damages to the person or
persons deprived of the use of water to which they were entitled as provided
in said chapter 9. [I.C.,

18-4310, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which not otherwise provided,
18-113.
comprised 1899, p. 380, 18; am. R.C. & C.L.,
7149; C.S., 8538; am. 1921, ch. 131, 9,
p. 314; am. 1929, ch.
89, 9, p. 143; I.C.A., A complaint which alleges that the defen-
17-4125, was repealed by S.L. 1971, ch. dant interfered with the proper delivery of
143, 5, effective January 1, 1972, and the irrigation water to a named person without
present section added by S.L. 1972, ch. 336, alleging that such person had a right to such
1 in the same words as the section prior to water is insufficient to charge a violation of
its repeal. the former section. State v. Hall, 90 Idaho
Cross ref. Penalty for misdemeanor when 478, 413 P.2d 685 (1966).
CHAPTER 44
JURIES AND JURORS
SECTION. SECTION.
18-4401. Grand juror acting after challenge 18-4403. Disclosing proceedings before grand
against him. jury.
18-4402. Disclosing indictment before arrest 18-4404. Tampering with jury list.
of defendant. 18-4405. Certifying to false jury lists.
18-4401. Grand juror acting after challenge against him.
Every
grand juror who, with knowledge that a challenge interposed against him by
a defendant has been allowed, is present at, or takes part, or attempts to
take part, in the consideration of the charge against the defendant who
interposed the challenge, or the deliberations of the grand jury thereon, is

18-4401, as added by 1972, ch. 336, 1, p.
844.]
Compiler's notes. A former section, which Cross ref. Bribery ofjudicial officers,
18-
comprised R.S., R.C, & C.L., 6527; C.S., 1301 et seq.
8195; I.C.A.,

1,
wise provided,
18-113.
Jury 1 et seq
So'c.J.S., Juries, 1 et seq.
A
,, ' .
,.
/ . ..
H
.
r
Accuseds right to inspection of minutes of
state
^
and
J
ur
^
20 AL
*^
?
18-4402. Disclosing indictment before arrest of defendant.

Every grand juror, prosecuting attorney, clerk, judge or other officer who,
423 JURIES AND JURORS 18-4405
except by issuing or in executing a warrant of arrest, wilfully discloses the
fact of a presentment or indictment having been made for a felony, until the
defendant has been arrested, is guilty of a misdemeanor. [I.C.,

18-4402, as
added by 1972, ch.
336, 1, p. 844.]
comprised Cr. Prac. 1864, 218; R.S., R.C., & same words as the section prior to its repeal.
C.L.,
6531; C.S.,
8199; I.C.A.,

17-1022,
18-113.
18-4403. Disclosing proceedings before grand jury.
Every grand
juror who, except when required by a court, wilfully discloses any evidence
adduced before the grand jury, or anything which he himself or any other
member of the grand jury may have said, or in what manner he or any other
grand juror may have voted on a matter before them, is guilty of a
misdemeanor. [I.C.,

18-4403, as added by 1972, ch.
336, 1, p. 844.]
6532; C.S.,
8200; I.C.A.,

18-113.
S.L. 1971, ch. 143, 5,
Cited in
.
State v Dutt,
Idaho , 73 P.3d
12 (Ct. App. 2003).
18-4404. Tampering with jury list.

Every person who adds any
names to the list of persons selected to serve as jurors, either by placing the
same in the jury box or otherwise, or extracts any name therefrom, or
destroys the jury box or any of the pieces of paper containing the names of
jurors, or mutilates or defaces such names so that the same cannot be read,
or changes such names on the pieces of paper, except in cases allowed by law,
is guilty of a felony. [I.C.,

18-4404, as added by 1972, ch.
336, 1, p. 844.]

1971, ch. 143, 5,
otherwise provided,
18-112.
18-4405. Certifying to false jury lists.

Every officer or person
required by law to certify to the list of persons selected as jurors, who
maliciously, corruptly or wilfully certifies to a false or incorrect list, or a list
containing other names than those selected, or who, being required by law
to write down the names placed on the certified lists on separate pieces of
paper, does not write down and place in the jury box the same names that
are on the certified list, and no more and no less than are on such list, is

18-4405, as added by 1972, ch. 336, 1, p. 844.]

1971, ch. 143, 5,
otherwise provided,
18-112.
CHAPTER 45
KIDNAPING
424
SECTION. SECTION.
18-4501. Kidnaping defined. 18-4506.
18-4502. First degree kidnapping
Ransom.
18-4503. Second degree kidnaping when not 18-4507.
for ransom. 18-4508.
18-4504. Punishment

Liberation of kid- 18-4509.
napped person.
18-4504A. Notice of intent to seek death pen- 18-4510.
alty.
18-4505. Inquiry into mitigating or aggravat- 18-4511.
ing circumstances
Sentence
in kidnapping cases

Statu-
tory aggravating circum-
stances

Judicial findings. 18-4512.
Child custody interference defined
Defenses
Punishment.
Short title.
Definitions.
Missing child reports

Law en-
forcement agencies
Duties.
Birth records of missing children
State registrar's duties.

School duties
Records of missing
child

Identification upon
enrollment
Transfer of stu-
dent records.
Missing persons clearinghouse.
18-4501. Kidnaping defined.
Every person who wilfully:

1. Seizes, confines, inveigles or kidnaps another, with intent to cause him,
without authority of law, to be secretly confined or imprisoned within this
state, or to be sent out of this state, or in any way held to service or kept or
detained against his will; or,
2. Leads, takes, entices away or detains a child under the age of sixteen
(16) years, with intent to keep or conceal it from its custodial parent,
guardian or other person having lawful care or control thereof, or with
intent to steal any article upon the person of the child; or,
3. Abducts, entices or by force or fraud unlawfully takes or carries away
another at or from a place without the state, or procures, advises, aids or
abets such an abduction, enticing, taking or carrying away, and afterwards
sends, brings, has or keeps such person, or causes him to be kept or secreted
within this state; or,
4. Seizes, confines, inveigles, leads, takes, entices away or kidnaps
another against his will to extort money, property or any other thing ofvalue
or obtain money, property or reward or any other thing of value for the
return or disposition of such person is guilty of kidnaping. [I.C.,

18-4501,
336, 1, p. 844; am. 1985, ch. 121, 1, p. 296.]
C.L., 6584; am. 1919, ch. 166, 1, p. 534;
C.S., 8224; I.C.A., 17-1303; am. 1937, ch.
17, 1, p. 27, was repealed by S.L. 1971, ch.
its repeal.
Cross ref. Enticing for prostitution or
other immoral purpose, white slave traffic,
18-5601 et seq.
in

18-310, 18-7803, 18-7905, 19-2520, 19-
2520C, 19-5506 and 20-525A.
Cited in: State v. Jackson, 96 Idaho 584,
532 P.2d 926 (1975); State v. Cochran, 97
Idaho 71, 539 P.2d 999 (1975); State v. Fink,
107 Idaho 1031, 695 P.2d 416 (Ct. App. 1985);
Almada v. State, 108 Idaho 221, 697 P.2d 1235
(Ct. App. 1985); Lopez v. State, 108 Idaho 394,
700 P.2d 16 (1985); State v. Major, 111 Idaho
410, 725 P.2d 115 (1986); State v. Chapman,
112 Idaho 1011, 739 P2d 310 (1987); State v.
App. 1989); State v. Korsen,

Idaho ,
P.3d , 2004 Ida. App. LEXIS 8 (Ct. App. Jan.

21, 2004).
425 KIDNAPING 18-4501
Analysis
Consent of minor.
Construction.
Double jeopardy.
Elements.
Evidence.
Intent.
Impeachment of complaining witness.
Included offense.
In general.
Inquiry into victim's sexual conduct.
Mistake as to age of minor.
Motive.
Refusal to give instruction.
Sentence.
Special counsel.
Sufficiency of allegations.
Consent of Minor.
Consent of minor is no defense to prosecu-
tion, if parents or guardians do not consent.
State v. Suennen, 36 Idaho 219, 209 P. 1072
(1922).
Construction.
Subdivision 2. of this section makes no
distinction between temporary or permanent
"lawful care or control thereof"; thus, where
the mother had the custodial right, the mere
fact that the custodial right was temporary
does not bar the charge of kidnapping against
anyone, including the other parent. State v.
Chapman, 108 Idaho 841, 702 P.2d 879 (Ct.
App. 1985), aff'd, 112 Idaho 1011, 739 P.2d
310 (1987).
Double Jeopardy.
Defendant's simultaneous convictions of
robbery and kidnapping violated neither the
double jeopardy clause of the United States
Constitution nor the Idaho multiple punish-
ment statute. State v. Horn, 101 Idaho 192,
610 P.2d 551 (1980).
The elements of enticement and conceal-
ment which afford the basis of a kidnapping
conviction are different from the requisite
elements of assault with intent to commit
rape; one crime could have occurred without
committing the other and there is no violation
of

18-301 (repealed) when a defendant is
convicted of both offenses. State v.
App. 1982).
Elements.
Statutory crime of kidnaping contains all of
the elements of false imprisonment. State v.
Evans, 72 Idaho 458, 243 P.2d 975 (1952).
Evidence.
Evidence that victim was grabbed by one
man and forced to enter a truck a half a block
away with the aid of two other men and then
driven to a remote area was sufficient to
sustain a conviction for kidnaping, so that the
trial court erred in dismissing the charges at
the close of the prosecution's presentation of
evidence. State v. Lewis, 96 Idaho 743, 536
P2d 738 (1975).
In a prosecution for second degree kidnap-
ing, where defense counsel attempted to
cross-examine the complaining witness as to
whether she had an opportunity to drive away
while defendant was out of the car and thus
escape the kidnaping, the trial judge's re-
mark, in ruling'On a prosecution objection to
the question, that in his opinion there was no
evidence that she had an opportunity to drive
away was a prejudicial comment on an issue
which was critical to the guilt or innocence of
defendant. State v. White, 97 Idaho 708, 551
P.2d 1344, cert, denied, 429 U.S. 842, 97 S. Ct.
118, 50 L. Ed. 2d 111 (1976). For further
proceedings see State v. White, 98 Idaho 781,
572 P.2d 884 (1977).
In a prosecution for robbery and kidnap-
ping the jury was at liberty to believe the
victim's version of the story or to reject it as
unreliable, and by convicting the defendant of
the crimes charged, the jury chose to accept
the victim's version; and where the victim
furnished competent and sufficient evidence
to support such a finding which was corrobo-
rated by the testimony of the witness and the
arresting police officers, the record contained
sufficient evidence to constitute a prima facie
case and the court did not err in refusing to
dismiss the case. State v. Cotton, 100 Idaho
573, 602 P.2d 71 (1979).
The evidence was sufficient to support de-
fendant's convictions for rape and first degree
kidnapping. State v. Whiteley, 124 Idaho 261,
858 P.2d 800 (Ct. App. 1993).
Intent.
Where the element of intent to keep or
conceal the child was committed within
Idaho, the defendant may be charged with
kidnapping in Idaho, even though the actual
concealment occurred outside the state; thus,
the defendant could be charged with kidnap-
ping where after he lost on the temporary
custody hearing, he began making plans and
preparations in Idaho to steal away the child,
wound up his business affairs, obtained pass-
ports for himself and the child, stored away
his property, and vacated his residence se-
cretly without notice. State v. Chapman, 108
Idaho 841, 702 P.2d 879 (Ct. App. 1985), aff'd,
112 Idaho 1011, 739 P.2d 310 (1987).
Where prosecutrix, age thirteen, met defen-
dant, age thirty-one, at a movie, accompanied
him to his home and later traveled with him
to Montana, the evidence was sufficient to
allow the jury to find the intent to keep or
conceal prosecutrix from her parents and to
sustain defendant's conviction for kidnaping
in the second degree. State v. Herr, 97 Idaho
783, 554 P.2d 961 (1976), modified on other
R2d 87 (1993).
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
18-207(1), the defendant may still use ex-
pert evidence on the issue of the defendant's
state of mind where it is an element of the
offense and such evidence is subject to the
rules of evidence. State v. Dragoman, 130
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
Impeachment of Complaining Witness.
ing where defendant sought to impeach the
credibility of the complaining witness' testi-
mony by showing that her motivation for
fabricating the kidnaping was to avoid a con-
frontation with her parents, the trial court
was in error in cutting off defense counsel's
cross-examination of the complaining witness
on the effect of a recent pregnancy and mis-
carriage on her relationship with her parents.
State v. White, 97 Idaho 708, 551 P.2d 1344,
Ed. 2d 111 (1976). For further proceedings see
State v. White, 98 Idaho 781, 572 P2d 884
(1977).
Included Offense.
included offense of the kidnaping because the
aggravated battery, although sequentially re-
lated to the kidnaping, was a separate and
beyond that required for the kidnaping. State
v. Campbell, 114 Idaho 367, 757 P.2d 230 (Ct.
Ct. 2076, 104 L. Ed. 2d 640 (1989).
In General.
Where defendant jumped on running board
of automobile and forced boy who was driving
it to drive him to such place or places as
defendant desired, his acts as a matter of law
constituted the felony of kidnaping. State v.
Autheman, 47 Idaho 328, 274 P. 805, 62
A.L.R. 195 (1929).
The court did not err in failing to require
the state to specify the subdivision of the
former section under which the defendants
were charged where the allegations of the
information sufficiently demonstrated that
the state could not have been relying on
former subsections 2, 3, or 4. State v. Oldham,
92 Idaho 124, 438 P.2d 275 (1968).
separate instruction defining intent was un-
944 P2d 134 (Ct. App. 1997).
Inquiry into Victim's Sexual Conduct.
In prosecution for kidnapping and rape of a
minor, inquiry into victim's past sexual con-
duct was impermissible since mere
unchastity does not support an inference of
consent to being kept or detained within the
meaning of the kidnapping statute and since
defendant did not offer to prove that the
victim had engaged in past conduct manifest-
ing a pattern of voluntary encounters with
men under similar circumstances. State v.
Palin, 106 Idaho 70, 675 P.2d 49 (Ct. App.
1983).
Where defendant, in prosecution for kid-
napping and statutory rape, made no offer to
prove a connection between victim's prior sex-
ual conduct and a motive or propensity to
fabricate, the victim's prior sexual conduct
was not relevant to her general credibility as
a witness and the district judge properly
refused to allow inquiry into the victim's sex-
ual history. State v. Palin, 106 Idaho 70, 675
P.2d 49 (Ct. App. 1983).
Mistake as to Age of Minor.
In prosecutions for offenses against minor
females and kindred offenses, it is generally
held that lack of knowledge of age of girl or
even belief that she is over statutory age is no
defense to prosecution. State v. Suennen, 36
Idaho 219, 209 P. 1072 (1922).
Motive.
One who entices away minor female under
this section is guilty even though motive for
act was marriage. State v. Suennen, 36 Idaho
219, 209 P. 1072 (1922).
Refusal to Give Instruction.
P.2d 1178(1982).
Sentence.
Where defendant convicted of aggravated
assault, second degree kidnaping, misde-
584, 808 P.2d 1329 (Ct. App. 1991).
The court did not impose an excessively
harsh sentence when it sentenced defendant
to concurrent life terms plus 15 years, with a
minimum of 25 years in prison on each charge
of rape, robbery, kidnapping, and the use of a
firearm. State v. Wolverton, 120 Idaho 559,
817 P.2d 1083 (Ct. App. 1991).
Where defendant picked up a five-year old
boy while he was walking to kindergarten and
transported him to a remote area in his
pickup truck, slapped the boy, took off all of
the boy's clothes and touched him by his legs
in a place the boy described as "nasty," a life
term with a minimum period of confinement
of 15 years was not an abuse of discretion.
State v. Estes, 120 Idaho 953, 821 P2d 1008
(Ct. App. 1991).
Special Counsel.
Objection to appointment of special counsel
in kidnaping case was waived where no objec-
tion was made at trial of case. State v. Evans,
72 Idaho 458, 243 P2d 975 (1952).
Sufficiency of Allegations.
Allegation "kept and detained against her
will" was held sufficient, since secrecy of de-
tention does not have to be alleged. State v.
Evans, 72 Idaho 458, 243 P.2d 975 (1952).
Abduction and Kidnaping, 1 et seq.
51 C.J.S., Kidnaping, 1 et seq.
Presumption of coercion of wife. 4 A.L.R.
279; 71 A.L.R. 1116.
Forcing another to transport one as consti-
tuting offense of kidnaping or of abduction. 62
A.L.R. 200.
Belief in legality of the act as affecting
offense of abduction or kidnaping. 114 A.L.R.
870.
Fraud or false pretenses, kidnaping by. 95
A.L.R.2d 450.
What is "harm" within provisions of stat-
utes increasing penalty for kidnaping where
victim suffers harm. 11 A.L.R.3d 1053.
Seizure or detention for purpose of commit-
ting rape, robbery, or other offense as consti-
tuting separate crime of kidnaping. 39
A.L.R.5th 283.
Seizure of prison by inmates as kidnaping.
59 A.L.R.3d 1306.
False imprisonment as included offense
with charge of kidnaping. 68 A.L.R.3d 828.
Necessity and sufficiency of showing in kid-
naping prosecution, that detention was with
intent to "secretly" confine victim. 98 A.L.R.3d
733.
Kidnaping or related offense by taking or
removing of child by or under authority of
parent or one in loco parentis. 20 A.L.R.4th
823.
18-4502. First degree kidnapping

Ransom.

Any kidnapping
committed for the purpose of obtaining money, property or any other thing
ofvalue for the return or disposition of such person kidnapped, or committed
for the purpose of raping, or committing the infamous crime against nature,
or committing serious bodily injury upon the person kidnapped, or commit-
ting any lewd and lascivious act upon any child under the age of sixteen (16)
years with the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of any person, shall be kidnapping in the first
degree. [I.C.,

18-4502, as added by 1972, ch.
336, 1, p. 844; am. 1978, ch.
254, 1, p. 555; am. 1981, ch. 321, 1, p. 670.]
comprised 1937, ch. 15, 1, p. 26, was re-
added by S.L. 1972, ch. 336, 1 restored the
subject matter contained in the law as it
existed prior to its repeal.
in

18-8304, 18-8314, 19-5307, 19-5506 and
33-1208.
Cited in: State v. Smith, 122 Idaho 560,
835 P.2d 1371 (Ct. App. 1992).
Analysis
Common scheme or plan.
Evidence.
Intent.
Included offense.
Refusal to give instruction.
Sentence.
Common Scheme or Plan.
The existence of facts that supported an
inference that defendant had a plan to pick up
young girls based on the testimony of two
girls was irrelevant to any issue in dispute.
Therefore, the court exceeded the bounds of
its discretion when it chose to apply the legal
standard of "common scheme or plan" to facts
that were not relevant to any disputed issue.
However, other evidence in the case was suf-
ficient for the jury to conclude that defendant
had committed first-degree kidnapping and
therefore the error of admitting the two girls'
testimony was harmless error. State v.
Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct.
App. 1992), aff'd, 127 Idaho 639, 903 P.2d
1336 (Ct. App. 1995).
Evidence.
858 P.2d 800 (Ct. App. 1993).
Intent.
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
Defendant's conviction of first degree kid-
napping was proper where there was substan-
tial competent evidence upon which the jury
could rely in determining that defendant pos-
sessed the intent to rape the victim at the
time he committed the kidnapping. State v.
Norton, 134 Idaho 875, 11 P.3d 494 (Ct. App.
2000).
Included Offense.
included offense of the kidnapping because
the aggravated battery, although sequentially
related to the kidnapping, was a separate and
beyond that required for the kidnapping.
State v. Campbell, 114 Idaho 367, 757 P.2d
230 (Ct. App. 1988), cert, denied, 490 U.S.
1070, 109 S. Ct. 2076, 104 L. Ed. 2d 640
(1989).
Because the use of a pistol was recited in
the elements of the aggravated assault and
also appeared in the kidnapping enhance-
ment as charged, the aggravated assault
charge was an included offense of the kidnap-
ping charge and the separate conviction for
aggravated assault must be vacated. State v.
Bryant, 127 Idaho 24, 896 P.2d 350 (Ct. App.
1995).
Refusal to Give Instruction.
P.2d 1178 (1982).
Sentence.
817 P.2d 1083 (Ct. App. 1991).
State v. Estes, 120 Idaho 953, 821 P.2d 1008
(Ct. App. 1991).
District Court did not clearly abuse its discre-
838 P.2d 890 (Ct. App. 1992).
Where defendant was an adult male who
had forcefully abducted a young girl who was
walking to school and molested her and de-
fendant was a prior sex offender, a sentence of
a fixed term of eighteen years for first-degree
kidnapping was reasonable. State v.
Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct.
App. 1992), aff'd, 127 Idaho 639, 903 P.2d
1336 (Ct. App. 1995).
18-4503. Second degree kidnaping when not for ransom.
Every
other kidnaping committed shall be kidnaping in the second degree. [I.C.,
18-4503, as added by 1972, ch.

336, 1, p. 844.]
comprised 1937, ch. 15, 2, p. 26, was re-
in
18-8304 and 33-1208.
Cited in: State v. Jackson, 96 Idaho 584,
532 P.2d 926 (1975); State v. Fink, 107 Idaho
1031, 695 P.2d 416 (Ct. App. 1985); State v.
Anderson, 111 Idaho 121, 721 P.2d 221 (Ct.
App. 1986); State v. Hoffman, 116 Idaho 480,
776 P.2d 1199 (Ct. App. 1989).
Analysis
Evidence.
Intent.
Impeachment of complaining witness.
Instructions.
Sentence.
Evidence.
ing, where defense counsel attempted to
cross-examine the complaining witness as to
whether she had an opportunity to drive away
while defendant was out of the car and thus
escape the kidnaping, the trial judge's re-
mark, in ruling on a prosecution objection to
the question, that in his opinion there was no
evidence that she had an opportunity to drive
away was a prejudicial comment on an issue
which was critical to the guilt or innocence of
defendant. State v. White, 97 Idaho 708, 551
P2d 1344, cert, denied, 429 U.S. 842, 97 S. Ct.
118, 50 L. Ed. 2d* 111 (1976). For further
proceedings see State v. White, 98 Idaho 781,
572 P.2d 884 (1977).
573, 602 P.2d 71 (1979).
Intent.
Where prosecutrix, age 13, met defendant,
age 31, at a movie, accompanied him to his
home and later traveled with him to Mon-
tana, the evidence was sufficient to allow the
jury to find the intent to keep or conceal
prosecutrix from her parents and to sustain
defendant's conviction for kidnaping in the
second degree. State v. Herr, 97 Idaho 783,
P.2d 87 (1993).
Idaho 537, 944 P.2d 134 (Ct. App. 1997).
Idaho 537, 944 P2d 134 (Ct. App. 1997).
Impeachment of Complaining Witness.
ing where defendant sought to impeach the
credibility of the complaining witness' testi-
mony by showing that her motivation for
fabricating the kidnaping was to avoid a con-
frontation with her parents, the trial court
was in error in cutting off defense counsel's
cross-examination of the complaining witness
on the effect of a recent pregnancy and mis-
carriage on her relationship with her parents.
State v. White, 97 Idaho 708, 551 P2d 1344,
Ed. 2d 111 (1976). For further proceedings see
State v. White, 98 Idaho 781, 572 P.2d 884
(1977).
Instructions.
separate instruction defining intent was un-
944 P.2d 134 (Ct. App. 1997).
Sentence.
25-year sentence for second degree kidnaping
were not an abuse of discretion. State v.
Martinez, 111 Idaho 281, 723 P2d 825 (1986).
in its imposition of a suspended indetermi-
nate ten-year sentence for the crime of second
degree kidnaping. State v. Chapman, 112
Idaho 1011, 739 P2d 310 (1987).
Where defendant had an extensive criminal
record, where it was apparent that some ofhis
previous criminal behavior involved violence
and he had before violated law regarding use
of firearms and demonstrated that he seemed
to be drawn toward criminal behavior and
where district judge noted that defendant had
almost no prospects for rehabilitation, that he
had violated probation in the past and it was,
in fact, only a day after his release from jail
that the present offenses occurred, it was
reasonable to conclude that serious risk of
harm to the public might result absent a
lengthy period of incarceration and, therefore,
sentence that would result in ten years incar-
ceration was not unreasonable in light of
sentencing goals which include: retribution,
rehabilitation, deterrence and the protection
of society. State v. Arledge, 119 Idaho 584, 808
P.2d 1329 (Ct. App. 1991).
gard to a charge of attempted kidnaping in
App. 1991).
Collateral References. Belief in legality
of the act as affecting offense. 114 A.L.R. 870.
Necessity and sufficiency of showing in kid-
naping prosecution, that detention was with
intent to "secretly" confine victim. 98 A.L.R.3d
733.
Kidnaping or related offense by taking or
removing of child by or under authority of
parent or one in loco parentis. 20 A.L.R.4th
823.
18-4504. Punishment
Liberation of kidnapped person.

1. Every person guilty of kidnapping in the first degree shall suffer death or
be punished by imprisonment in the state prison for life, provided a sentence
of death shall not be imposed unless the prosecuting attorney filed written
notice of intent to seek the death penalty as required under the provisions
of section 18-4504A, Idaho Code, and provided further that the sentence of
death shall not be imposed if prior to its imposition the kidnapped person
has been liberated unharmed.
2. Kidnapping in the second degree is punishable by imprisonment in the
state prison not less than one (1) nor more than twenty-five (25) years. [I.C.,
775; am. 2000, ch. 126, 1, p. 299.]
comprised Cr. & R 1864, 51; R.S., R.C., &
C.L., 6585; am. 1919, ch. 166, 2, p. 534;
C.S., 8225; I.C.A., 17-1304; am. 1937, ch.
16, 1, p. 26, was repealed by S.L. 1971, ch.
its repeal.
Cited in: State v. Lopez, 106 Idaho 447, 680
R2d 869 (Ct. App. 1984); State v. Spurgeon,
107 Idaho 173, 687 P.2d 17 (Ct. App. 1984);
State v. Grob, 107 Idaho 496, 690 P.2d 951 (Ct.
App. 1984); State v. Martinez, 111 Idaho 281,
723 P.2d 825 (1986); Hays v. State, 113 Idaho
736, 747 P.2d 758 (Ct. App. 1987); State v.
Smith, 122 Idaho 560, 835 P.2d 1371 (Ct. App.
1992).
Analysis
Sentence.
Not excessive.
Not unreasonable.
Sentence.
Fifteen year concurrent indeterminate sen-
tences with a five year indeterminate en-
hancement for use of a deadly weapon were
not excessive when imposed on a defendant
who pled guilty to second-degree kidnapping
and aggravated battery even though the de-
fendant had no prior record when considering
the brutal nature of the crimes. State v. Fink,
107 Idaho 1031, 695 P.2d 416 (Ct. App. 1985).
The defendant's sentence of 25-years for
first-degree kidnaping did not meet the man-
datory life imprisonment penalty prescribed
by the kidnaping statute; therefore, the Court
of Appeals remanded to the district court to
impose a life sentence for first-degree kidnap-
ing, which sentence may be either indetermi-
nate or fixed, in the discretion of the district
court. State v. Nellsch, 110 Idaho 594, 716
P.2d 1366 (Ct. App. 1986).
gard to a charge of attempted kidnaping in
App. 1991).
Not Excessive.
degree kidnaping, assault with intent to com-
mit infamous crime against nature, and as-
sault with intent to commit murder were not
excessive. State v. Drapeau, 97 Idaho 685, 551
P.2d 972 (1976) (decision prior to 1980 amend-
ment).
There was no abuse of discretion in sen-
tencing the defendant to the maximum inde-
terminate sentences available for the crimes
of second-degree kidnapping and aiding and
abetting in the commission of aggravated
battery, where the court considered the defen-
dant's active participation in the kidnap and
murder of the victim, the need for appropriate
retribution, and the mitigating factors, in-
cluding the unusually large number of favor-
able character attestations on the defendant's
behalf. State v. Hemenway, 111 Idaho 839,
727 P2d 1267 (Ct. App. 1986).
With regard to a sentence of lifetime proba-
tion for first degree kidnaping, where the trial
court found that the victim was harmed be-
fore she was released, not only was the sen-
tence not excessive, but the trial court dis-
played leniency by suspending the execution
of judgment on the sentence and placing the
defendant on probation. State v. Bingham,
116 Idaho 415, 776 P.2d 424 (1989).
Where attorney for defendant charged with
kidnaping and raping a 15-year-old girl stated
twice before the district judge that the recom-
mended sentences were appropriate given the
plea negotiations entered into by defendant,
where the district judge took time to question
defendant about the reasonableness of his
plea, where the plea of guilty was conditional
in the sense that the judge was bound not to
impose a sentence which exceeded the prose-
cutor's recommendation, where defendant
agreed to the recommendation, as shown by
the statements of his counsel, and where
defendant was told that if the court deter-
mined the recommended sentence to be inap-
propriate, the court would permit defendant
to withdraw his guilty plea, under these cir-
cumstances, defendant was in a poor situa-
tion to question the length of his negotiated
sentences for rape and kidnaping in the sec-
ond degree where he received concurrent uni-
fied sentences of 20 years, each with a five-
year minimum period of confinement. State v.
Leyva, 117 Idaho 462, 788 P2d 863 (Ct. App.
1990).
Where defendant convicted of aggravated
assault, second degree kidnaping, misde-
meanor batteryr and use of a firearm in the
584, 808 P.2d 1329 (Ct. App. 1991).
of rape, robbery, kidnaping, and the use of a
817 P.2d 1083 (Ct. App. 1991).
State v. Estes, 120 Idaho 953, 821 P.2d 1008
(Ct. App. 1991).
Where defendant was charged with kidnap-
ing and assaulting a nine-year-old girl, with
act, although defendant did not have a crim-
inal record and had a fairly stable family and
work history, a sentence of seven years fixed,
followed by an indeterminate period of con-
finement of 13 years on the kidnaping charge,
and a term of five years fixed, to be followed
by an indeterminate period of five years on
the assault charge was not an abuse of discre-
tion. State v. Soto, 121 Idaho 53, 822 P.2d 572
(Ct. App. 1991).
Where defendant pled guilty to second de-
gree kidnaping, sentence of twenty-five years
with a fifteen-year minimum period of con-
finement was not an abuse of discretion. State burglary, kidnapping and the infamous crime
v. Walker, 125 Idaho 11, 867 P.2d 244 (1993). against nature was not unreasonable where
Considering the nature of the crime (kid- defendant was on probation at the time he
napping and murder) and defendant's charac-
ter, as exemplified by his conduct (subsequent
ing order arid had a prior criminal record,
concealment of the murder) and the circum-
State v. Lenwai, 122 Idaho 258, 833 P.2d 116
stances surrounding the offense, the district
(Ct. App. 1992).
court did not abuse its discretion in imposing
Where defendant was an adult male who
a minimum fifteen year term of incarceration.
had forcefully abducted a young girl who was
State v. Olivera, 131 Idaho 628, 962 P.2d 399
walking to school and molested her and de-
(Ct App 1998)
fendant was a prior sex offender, a sentence of
There was no abuse of discretion in giving
a fixed term of eighteen years for first-degree
defendant the maximum sentence where the
kidnapping was reasonable. State v.
sentencing court was permitted to consider
Medrano
}
23
?
ho
}}
4
>
8
f
4
52? î^
the defendant's alleged criminal conduct for
App
1992),
aff'd
127
Idaho 639, 903 P.2d
which he had not been convicted or for which
13
^t. App. 1995).

charges had been dismissed, and the record
?he fact that the state was, at one time,
demonstrated that the district court took into
Wlllm
f
to êe to a fixed term of impnson-
account the overriding sentencing goal of the
ment less than that eventually recommended
protection of society and appropriately con-
at sentencing was not determinative on ap-
cluded that defendant presented a grave
?
eal
>
and
,
based on *he call
1
ous nature

f
threat of reoffense if he were not imprisoned.
defendants crime and its ultimate result,
State v. Thomas, 133 Idaho 800, 992 P.2d 795
defendants unified sentence for first degree
(Ct App 1999)
kidnapping of life imprisonment, with fifteen
years fixed, was reasonable and necessary to
Not Unreasonable. effectuate the goals of sentencing. State v.

A sentence of a minimum period of confine- Weaver, 135 Idaho 5, 13 P.3d 5 (Ct. App.
ment of eight years for conviction of rape, 2000).
18-4504A. Notice of intent to seek death penalty.
A sentence of
death shall not be imposed unless the prosecuting attorney filed written
notice of intent to seek the death penalty with the court and served the
notice upon the defendant or his attorney of record no later than thirty (30)
days after entry of a plea. A notice of intent to seek the death penalty may
be withdrawn at any time prior to the imposition of sentence. [I.C.,
18-4504A, as added by 2000, ch. 126, 2, p. 299.]

18-4505. Inquiry into mitigating or aggravating circumstances
Sentence in kidnapping cases

Statutory aggravating circum-
stances
Judicial findings.
1. After a plea or verdict of guilty, where

a discretion is conferred upon the court as to the extent of the punishment,
the court, upon the oral or written suggestion of either party that there are
circumstances which may be properly taken into view either in aggravation
or mitigation of the punishment, may, in its discretion, hear the same
summarily, at a specified time, and upon such notice to the adverse party as
it may direct.
2. Where a person is convicted of an offense which may be punishable by
death, a sentence of death shall not be imposed unless a notice of intent to
seek the death penalty was filed and served as provided in section 18-4504A,
Idaho Code, and the court finds at least one (1) statutory aggravating
circumstance. Where the court finds a statutory aggravating circumstance
the court shall sentence the defendant to death unless the court finds that
mitigating circumstances which may be presented outweigh the gravity of
any aggravating circumstance found and make imposition of death unjust.
3. In all cases in which the death penalty may be imposed, the court shall,
after conviction, order a presentence investigation to be conducted according
to such procedures as are prescribed by law and shall thereafter convene a
sentencing hearing for the purpose of hearing all relevant evidence and
arguments of counsel in aggravation and mitigation of the offense. At such
hearing, the state and the defendant shall be entitled to present all relevant
evidence in aggravation and mitigation. Should any party present aggra-
vating or mitigating evidence which has not previously been disclosed to the
opposing party or parties, the court shall, upon request, adjourn the hearing
until the party desiring to do so has had a reasonable opportunity to respond
to such evidence. Evidence admitted at trial shall be considered and need
not be repeated at the sentencing hearing. Evidence offered at trial but not
admitted may be repeated or amplified if necessary to complete the record.
4. Upon the conclusion of the evidence and arguments in mitigation and
aggravation the court shall make written findings setting forth any statu-
tory aggravating circumstance found. Further, the court shall set forth in
writing any mitigating factors considered and, if the court finds that
mitigating circumstances outweigh the gravity of any aggravating circum-
stance found so as to make unjust the imposition of the death penalty, the
court shall detail in writing its reasons for so finding.
5. Upon making the prescribed findings, the court shall impose sentence
within the limits fixed by law.
6. The following are statutory aggravating circumstances, at least one (1)
of which must be found to exist beyond a reasonable doubt before a sentence
of death can be imposed:
(a) The victim of the kidnapping was subjected by the kidnapper or those
acting in concert with him to torture, maiming or the intentional infliction
of grievous mental or physical injury.
(b) The defendant knowingly created a great risk of death to any person,
including the kidnapped.
(c) The kidnapping was committed for remuneration or the promise of
remuneration or the defendant employed another to commit the kidnap-
ping for remuneration or the promise of remuneration.
(d) The kidnapping was especially heinous, atrocious or cruel, manifest-
ing exceptional depravity.
(e) The kidnapping was committed for the purpose of murdering or
maiming a witness or potential witness in a judicial proceeding. [I.C.,
18-4505, as added by 1980, ch. 298, 2, p. 775; am. 2000, ch. 126, 3,
p. 299.]
Compiler's notes. Section 3 of S.L. 1980, Cited in: State v. Spurgeon, 107 Idaho 175,
ch. 298 declared an emergency. Approved 687 P.2d 19 (Ct. App. 1984).
April 1, 1980.
18-4506. Child custody interference defined
Defenses
Pun-
ishment.
1. A person commits child custody interference if the person,

whether a parent or other, or agent of that person, intentionally and without
lawful authority:
(a) Takes, entices away, keeps or withholds any minor child from a parent
or another person or institution having custody, joint custody, visitation or
other parental rights, whether such rights arise from temporary or
permanent custody order, or from the equal custodial rights of each parent
in the absence of a custody order; or
(b) Takes, entices away, keeps or withholds a minor child from a parent
after commencement of an action relating to child visitation or custody
but prior to the issuance of an order determining custody or visitation
rights.
2. It shall be an affirmative defense to a violation of the provisions of
subsection 1. of this section that:
(a) The action is taken to protect the child from imminent physical harm;
(b) The action is taken by a parent fleeing from imminent physical harm
to himself;
(c) The action is consented to by the lawful custodian of the child; or
(d) The child is returned within twenty-four (24) hours after expiration of
an authorized visitation privilege.
3. A violation of the provisions of subsection 1. of this section shall be a
felony, unless the defendant did not take the child outside the state, and the
child was voluntarily returned unharmed prior to the defendant's arrest in
which case the violation shall be reduced to a misdemeanor.
4. Any reasonable expenses incurred by a lawful custodian in locating or
attempting to locate a child taken in violation of the provisions of subsection
1. of this section may be assessed against the defendant at the court's
discretion in accordance with chapter 53, title 19, Idaho Code. [I.C.,
18-4506, as added by 1987, ch.

88, 1, p. 167.]
Cited in: State v. Smith, 122 Idaho 560, ing or withholding and the deprivation of the
835 P.2d 1371 (Ct. App. 1992). custodial rights, occurred in Idaho, under I.C.
18-202, 19-301 and 19-302, the state had

ALYSIS
jurisdiction over the crime. State v. Doyle, 121
Failure to return child.
Idaho 911, 828 P.2d 1316 (1992).
Jurisdiction.
Because the withholding of the child from
the custodial parent in violation of a court
Failure to Return Child.
order is no different than the withholding of
Where father under the temporary custody
support from a family in violation of a court
agreement, had a duty to return custody of
ordei
.
the keeping or withholding occurs, for
daughter to ex-wife, his failure to return
purposes fjurisdiction, where the defendant
daughter deprived ex-wife of her custodial
is ired to return the child to the custodial
rights and exposed him to criminal prosecu-
t State y D { mIdaho 9U 828 p 2d
tion under this section. State v. Doyle, 121
iQifinQQ9^
Idaho 911, 828 P.2d 1316 (1992).
ldi
Uyy l
Jurisdiction.
Where the second and third elements of the
crime of child custody interference, the keep-

Sections 18-4507, 18-4508, 18-4509, 18-4510
and 18-4511, Idaho Code, may be cited as the "Missing Child Reporting Act."
[I.C,

18-4507, as added by 1988, ch. 281, 1, p. 912.]
As used in sections 18-4507, 18-4508, 18-4509,

18-4510 and 18-4511, Idaho Code:
(1) "Law enforcement agency" means any law enforcement agency of the
state or any political subdivision of the state, including the Idaho state
police and any municipal or county sheriff department.
(2)
"Missing child" means an individual who is less than eighteen (18)
years of age who is reported to any law enforcement agency as abducted or
lost.
(3)
"Runaway child" means an individual who is less than eighteen (18)
years of age who is reported to any law enforcement agency as a runaway.
(4) "State registrar" means the employee so designated by the director of
the department of health and welfare. [I.C.,

18-4508, as added by 1988,
ch. 281, 1, p. 912; am. 1989, ch. 219, 1, p. 532; am. 2000, ch. 469, 23,
p. 1450.]
18-3302.
18-4509. Missing child reports

Law enforcement agencies

Duties.
(1) Upon receiving a report of a missing or runaway child, a law

enforcement agency shall immediately enter identifying and descriptive
information about the child into the national crime information center
computer. Law enforcement agencies having direct access to the national
crime information center computer shall enter and retrieve the data directly
and shall cooperate in the entry and retrieval of data on behalf of law
enforcement agencies which do not have direct access to the system.
(2)
If the local law enforcement agency has reason to believe that a
missing or runaway child is enrolled in an Idaho elementary or secondary
school, it shall notify that school of the report, at which time the school shall
flag the missing child's record pursuant to section 18-4511, Idaho Code.
(3) The Idaho state police shall report the entries made by local law
enforcement in the national crime information center to the state registrar.
Upon learning of the return of a missing or runaway child, the Idaho state
police shall so notify the state registrar of this state if the child was born in
Idaho, or the appropriate officer in the state where the child was born, and
the school informed under the provisions of subsection (2) of this section.
(4) The Idaho state police shall by rule determine the frequency, manner
and form of notices and reports required by this act.
(5)
Immediately after a missing or runaway child is returned, the law
enforcement agency having jurisdiction over the investigation shall clear
the entry from the national crime information center computer. [I.C.,
532; am. 1999, ch.
12, 1, p. 16; am. 2000, ch. 469, 24, p. 1450.]
refer to S.L. 1988, ch. 281, which is compiled as
18-4511.
as

18-4507 18-4511.
Section 2 of S.L. 1999, ch. 12, is compiled as
in 18-4507
18-4512.
18-4510. Birth records of missing children

State registrar's
duties.

1. Upon notification by a law enforcement agency that a child
born in the state is missing or has run away, the state registrar shall flag the
child's birth certificate record in such a manner that whenever a copy of the
birth certificate or information concerning the birth record is requested, the
state director shall be alerted to the fact that the certificate is that of a
missing or runaway child.
2. In response to any inquiry, the state registrar or any clerk appointed by
him or any employee of vital statistics shall not provide a copy of a birth
certificate or information concerning the birth record of any missing or
runaway child whose birth record has been flagged pursuant to this section,
and shall immediately notify the law enforcement agency having jurisdic-
tion over the investigation of the missing or runaway child. Inquiries shall
be handled in the following manner:
(a) When a copy of the birth certificate of a missing or runaway child
whose record has been flagged is requested in person, the employee
receiving the request shall immediately notify his supervisor or the state
registrar. The person making the request shall complete a form supplying
his name, address, telephone number and relationship to the missing or
runaway child and the name, address and birth date of the missing or
runaway child. The driver's license of the person making the request, if
available, shall be photocopied and returned to him. He shall be informed
that the birth certificate will be mailed to him when it is released. The
employee shall note the physical description of the person making the
request, and, upon that person's departure from the vital statistics office,
the supervisor or state registrar shall immediately notify the law enforce-
ment agency having jurisdiction of the request and provide it with the
information obtained pursuant to subsection 2(a) of this section. The state
registrar shall retain the form completed by the person making the
request.
(b) When a copy of the birth certificate of a missing or runaway child
whose birth record has been flagged is requested in writing, the state
registrar shall immediately notify the law enforcement agency having
jurisdiction of the request and shall provide a copy of the written request.
The state registrar shall retain the original written request.
3. Upon notification by a law enforcement agency that a missing or
runaway child has been returned or when the child reaches his eighteenth
birthday, the state registrar shall remove the flag from the child's birth
record. [I.C.,

219, 3, p. 532.]
in

18-4507 and 18-4508.
18-4511. School duties
Records of missing child
Identifica-
tion upon enrollment

Transfer of student records.

(1) Upon
notification by the Idaho state police of a missing or runaway child report,
the school in which the child is currently enrolled shall flag the record of
that child in such a manner that whenever a copy of or information
regarding the record is requested, the school shall be alerted to the fact that
the record is that of a missing or runaway child. The school shall immedi-
ately report to the local law enforcement agency any request concerning
flagged records or knowledge as to the whereabouts of the missing or
runaway child. Upon notification by the Idaho state police of the return of
the missing or runaway child, the school shall remove the flag from the
child's record.
(2) Upon enrollment of a student for the first time in a public or private
elementary or secondary school, the school shall notify in writing the person
enrolling the student that within thirty (30) days he must provide either a
certified copy of the student's birth certificate or other reliable proof of the
student's identity and birthdate, which proof shall be accompanied by an
affidavit explaining the inability to produce a copy of the birth certificate.
Other reliable proof of the student's identity and birthdate may include a
passport, visa or other governmental documentation of the child's identity.
(a) Upon the failure of a person enrolling a student to comply with the
provisions of this subsection, the school shall immediately notify the local
law enforcement agency of such failure, and shall notify the person
enrolling the student, in writing, that he has ten (10) additional days to
comply.
(b) The school shall immediately report to the local law enforcement
agency any documentation or affidavit received pursuant to this subsec-
tion which appears inaccurate or suspicious in form or content.
(3)
Within fourteen (14) days after enrolling a transfer student, the public
or private elementary or secondary school shall request directly from the
student's previous school a certified copy of his record. The requesting school
shall exercise due diligence in obtaining the copy of the record requested. A
student transferring schools within the same school district need not
provide proof of identity and birthdate if the student's record already
contains such verified information. Any public or private elementary or
secondary school which is requested to forward a copy of a transferred
student's record to the student's new school shall comply within ten (10)
days of receipt of the request, unless the record has been flagged pursuant
to subsection (1) *of this section, in which case the copy shall not be
forwarded and the school shall notify the local law enforcement agency of
the request for a flagged record; provided however, that any private school
accredited by the state board of education which has an agreement allowing
retention of a student's record when such student's tuition or fees have not
been paid may comply with the provisions of this subsection by notifying the
student's new school that the transferred student's records are being held
for nonpayment of tuition or fees. However, such private school shall be
required to notify the local law enforcement agency if the student's record
has been flagged pursuant to the provisions of subsection (1) of this section,
even if the student's tuition and fees have not been paid.
(4) It shall be the duty of the local law enforcement agency to immedi-
ately investigate each report received from a school of a failure to comply
with the provisions of subsection (2) or (3) of this section.
(5) Failure of a parent, or person in custody of a child, or a person
enrolling a student, to comply with the documentation requirements of this
section after a lawful request by a law enforcement agency, or to cooperate
with a law enforcement investigation lawfully conducted pursuant to this
section, shall constitute a misdemeanor. [I.C.,

18-4511, as added by 1988,
ch. 281, 1, p. 912; am. 1989, ch. 219, 4, p. 532; am. 1992, ch. 108, 1,
p. 337; am. 1993, ch. 188, 1,
p. 479; am. 1996, ch. 400, 1, p. 1332; am.
2000, ch. 469, 25, p. 1450.]
18-4509. in

18-4507
18-4509, 33-209.
18-4512. Missing persons clearinghouse.

(1) The Idaho state
police shall establish a missing persons clearinghouse as a resource center
of information and assistance regarding missing and unidentified persons.
(2) The director of the Idaho state police shall appoint a coordinator to
manage appropriate programs for addressing the problem of missing
persons, which may include the following:
(a) Collecting and maintaining computerized data and investigative
information on missing and unidentified persons in Idaho;
(b) Establishing access to the national crime information center and to
other sources of automated information;
(c) Distributing information to public and private nonprofit agencies that
will assist in the location and recovery of missing persons;
(d) Operating a toll-free telephone hotline for accepting reports relating
to missing persons;
(e) Publishing a directory of missing persons;
(f) Compiling statistics on missing persons cases handled and resolved
each year;
(g)
Developing and conducting training on issues relating to missing
persons;
(h) Developing and distributing educational and other information re-
garding the prevention of abduction and sexual exploitation of children.
(3) The Idaho state police may accept gifts and grants from governmental
agencies and private nonprofit organizations to achieve the purposes of the
clearinghouse.
(4) The Idaho state police shall publish an annual report on the activities
and achievements of the clearinghouse.
(5) The Idaho state police shall determine, by rule, the type and content
of information to be collected by the clearinghouse and the manner of
collecting and disseminating that information.
(6) The clearinghouse coordinator, in cooperation with the office of the
superintendent of public instruction, shall develop a coordinated plan for
the distribution of information to teachers and students in the school
districts of the state regarding missing and runaway children. The super-
intendent of public instruction shall encourage local school districts to
cooperate by providing the Idaho state police with information on any
missing and runaway children that may be identified within the district.
[I.C.,

18-4512, as added by 1996, ch.
367, 1, p. 1238; am. 1999, ch. 12,
2, p. 16; am. 2000, ch.
469, 26, p. 1450.]
18-4509. as 18-8002A.
439 LARCENY AND RECEIVING STOLEN GOODS 18-4617
CHAPTER 46
LARCENY AND RECEIVING STOLEN GOODS
SECTION.
18-4601
18-4616.
18-4617.
18-4618.
18-4619.
18-4620.
18-4621.
18-4622.
18-4623.
18-4624.
18-4625.
- 18-4615. [Repealed.]
Defacing marks on logs or lumber.
Stealing rides on trains.
Stealing rides on trains

Author-
ity of conductors and engi-
neers to arrest.
Stealing rides
Venue of action.
Stealing rides
Punishment.
Stealing electric current
Tamper-
ing with meters.
Accesso-
ries liable as principals.

Evi-
dence of guilt.
Taken or converted merchandise as
theft.
Taken or converted merchandise
Evidence.
SECTION.
18-4626. Wilful concealment of goods, wares
or merchandise
Defense for
detention.
18-4627. Transportation of coniferous trees
Proof of ownership re-

quired.
18-4628. Transportation of forest products
Proof of ownership required
Exceptions.
18-4628A. Penalty for purchase without
proof of ownership.
18-4629. Penalty for transportation of forest
products without a permit,
contract, bill of sale, or prod-
uct load receipt.
18-4630. Illegal use of documents.
18-4631. Forest sabotage
Penalty.
18-4601 18-4615. Larceny

Receiving stolen property. [Re-
pealed.]
comprised I.C.,

18-4601

18-4611, 18-
4613
18-4615 as added by 1972, ch. 336,
1, p. 844; I.C., 18-4612, as added by 1978,
ch. 284, 2, p. 691, were repealed by S.L.
1981, ch. 183, 1. For present law see
18-
2401
18-2409.
18-4616. Defacing marks on logs or lumber.

Every person who
cuts out, alters, mutilates, changes, disfigures, or defaces any legally
recorded mark or marks made upon any log, lumber, or wood, or re-marks or
puts a false mark thereon with intent to prevent the owner from discovering
its identity, or places any mark upon, or cuts, saws, manufactures, or in any
manner appropriates to his own use, or to the use of any other person, any
prize log or timber, is guilty of a misdemeanor and punishable by a fine not
exceeding $500, or imprisonment in the county jail not exceeding six
months, or by both such fine and imprisonment. In any prosecution for a
violation of the provisions of this section relating to prize logs it shall be
sufficient to prove that such logs are prize logs without further proof of
ownership. [I.C.,

18-4616, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1885, p. 177, 3; R.S. & R.C.,
6866; reen. C.L., 7060a; S.L. 1919, ch. 11,
3,p.74;C.S., 8442; I.C.A.,
17-3516 was
18-4617. Stealing rides on trains.
Every person who shall, at any

place within this state, ride or attempt to ride upon any locomotive engine,
railroad car, railroad train, or trains of any character, in or upon any part
thereof, for the purpose or with the intent of stealing a ride thereon, or who
shall at any place, within this state, climb upon, hold to, or in any manner
attach himself to, any locomotive engine or railroad car or railroad train or
trains of any character, while the same are in motion, shall be guilty of a
misdemeanor: provided, that this section shall not apply to any employee of
a railroad company operating such train, locomotive or car, nor to any
person operating such train, locomotive or car, nor to any person having
business with, or acting under legal authority of, such railroad company.
[I.C.,
18-4617, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1903, ch. 41, 1;
reen. R.C. &
C.L., 7061; C.S., 8443; I.C.A.,

17-3517
18-113.
Sec> to seCt ref< This section is referred to
m
ss
18-4619 and 18-4620
18-4618. Stealing rides on trains
Authority of conductors and

engineers to arrest.

Authority is hereby given to and conferred upon
railroad conductors and engineers of railroad trains, to immediately arrest,
without warrant or other process, any person or persons violating the
preceding section, and deliver such persons to any peace officer: provided,
that nothing in this section contained shall be construed to restrict the
authority or duty of the regular officer within the state of making arrests for
said offense. [I.C.,
18-4618, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which effective January 1, 1972, and the present
comprised S.L. 1903, p. 41, 2; reen. R.C. & section added by S.L. 1972, ch. 336, 1 in the
C.L., 7061a; C.S., 8444; I.C.A.,

17-3518
18-4619. Stealing rides

Venue of action.

Any person charged
with a violation of section 18-4617 may be tried in any county in this state
through which such train carrying such person may pass, or in the county in
which such violation may have occurred or may be discovered. [I.C.,
18-4619, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. Aformer section, which section added by S.L. 1972, ch. 336, 1 in the
comprised S.L. 1903, p. 41, 3; reen. R.C. & same words as the section prior to its repeal.
C.L.,

7016b; C.S., 8445; I.C.A.,

17-3519
Collateral References. Venue of action,
76 A.L.R. 1041.
18-4620. Stealing rides
Punishment.
Every person who shall be

convicted of a violation of any of the offenses mentioned in section 18-4617
shall be punished by imprisonment in the county jail for a period not
exceeding thirty days, or by a fine of not more than $60.00, or by both such
fine and imprisonment. [I.C.,

18-4620, as added by 1972, ch. 336, 1, p.
844.]
C.L., 7061c; C.S., 8446; I.C.A.,

17-3520
18-4621. Stealing electric current
Tampering with meters.

Whoever shall without permission or authority of any person, firm or
corporation engaged in the generation or distribution of electricity, make
connections, or cause connections to be made, by wire or wires or by any
other device, with the wires, cables or conductors, or any of them, of any
such person, firm or corporation, for the purpose of obtaining or diverting
electric current from such wires, cables or conductors; or whoever shall,
without permission or authority from any person, firm or corporation using
any meter or meters erected or set up for the purpose of registering or
recording the amount of electric current supplied to any customer of such
person, firm or corporation within this state, connect or cause to be
connected by wire or any other device, any such meter or meters, or change
or shunt the wiring leading to or from any such meter or meters, or by any
device or appliance or means whatsoever tamper with any such meter or
meters in such manner that such meter or meters do not measure or record
the full amount of electric current supplied to such customer, shall be guilty
of a misdemeanor, and upon conviction thereof shall be punished by a fine
not exceeding $300.00, or by imprisonment in the county jail for a term not
exceeding six (6) months, or by both such fine and imprisonment: provided,
that nothing herein contained shall be deemed to affect the right of any
person, firm or corporation to recover by action in any court of competent
jurisdiction damages for any injury done by such unlawful acts. [I.C.,
18-4621, as added by 1972, ch. 336, 1, p. 844.]

Compiler's notes. Aformer section, which tion with the power company's wires or ca-
comprised S.L. 1905, p. 72, 1; reen. R.C. & bles, and did in fact make this connection for
C.L.,
7062; C.S., 8447; I.C.A.,

17-3521
the purpose of obtaining electric current. The
was repealed by S.L. 1971, ch. 143, 5, statute does not require that the connection
allow one to successfully obtain or divert
power. Orthman v. Idaho Power Co., 134
Idaho 598, 7 P.3d 207 (2000).
in
18-4623.
Instructions.
The trial court erred in instructing the jury
Analysis
that diverting power from a power company's
Application
transmission lines was negligence per se, but
Instructions
ê error was harmless because it was clear
from the facts that the nonpaying customer
Application. was negligent. Orthman v. Idaho Power Co.,
Although the customer whose electric ser- 134 Idaho 598, 7 P.3d 207 (2000).
vice was suspended for nonpayment did not Collateral References. Larceny of gas. 19
succeed in restoring power through the meter, A.L.R. 729; 113 A.L.R. 1282; 144 A.L.R. 1383.
he did meet the elements of the statute where Electrical energy, gas, water, heat, power,
he did in fact use a device to make a connec- etc. as the subject of larceny. 113 A.L.R. 1282.
Accessories liable as princi-

pals.

Any person or persons aiding, abetting or counseling the acts, or
any of them, mentioned in the preceding section, shall, upon conviction
thereof, be equally guilty with the principals and subject to the same
penalties. [I.C.,

18-4622, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which was repealed by S.L. 1971, ch. 143, 5,
comprised S.L. 1905, p. 72, 2; reen. R.C. & effective January 1, 1972, and the present
C.L., 7062a; C.S., 8448; I.C.A.,
17-3522 section added by S.L. 1972, ch. 336, 1 in the
same words as the section prior to its repeal. gas, water, heat, power, etc. as the subject of
Collateral References. Electrical energy, larceny. 113 A.L.R. 1282.

Evidence of guilt.

In all
prosecutions under the two (2)
preceding sections, proof that any of the acts
herein forbidden were done on or about the premises owned or occupied by
the defendant charged with the commission of such offense, or that he
received the benefit of any such electric current on account of the commis-
sion of such acts, shall be prima facie evidence of the guilt of such defendant.
[I.C.,

18-4623, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1905, p. 72, 3; reen. R.C. & same words as the section prior to its repeal.
C.L., 7062b; C.S., 8449; I.C.A.,
17-3523 Collateral References. Electrical energy,
was repealed by S.L. 1971, ch. 143, 5, gas, water, heat, power, etc. as the subject of
effective January 1, 1972, and the present larceny. 113 A.L.R. 1282.
18-4624. Taken or converted merchandise as theft.

A person
steals property and commits theft by the alteration, transfer or removal of
any label, price tag, marking, indicia of value or any other markings which
aid in the determination ofvalue of any merchandise displayed, held, stored,
or offered for sale, in a retail mercantile establishment, for the purpose of
attempting to purchase such merchandise either personally or in consort
with another, at less than the retail price with the intention of depriving the
merchant of the value of such merchandise. [I.C.,

1980, ch. 336, 1, p. 870.]
Compiler's notes. A former
18-4624 175; I.C.A.,
which comprised S.L. 1927, ch. 132, 1, p. 1961, ch. 224, 1.
18-4625. Taken or converted merchandise
Evidence.
In any
prosecution for a violation of this chapter, photographs of the goods or
merchandise alleged to have been taken or converted shall be deemed
competent evidence of such goods or merchandise and shall be admissible in
any proceeding, hearing or trial to the same extent as if such goods and
merchandise had been introduced as evidence. Such photographs shall bear
a written description of the goods or merchandise alleged to have been taken
or converted, the name of the owner of such goods or merchandise, or the
store or establishment wherein the alleged offense occurred, the name of the
accused, the name of the arresting peace officer, the date of the photograph
and the name of the photographer. Such writing shall be made under oath
by the arresting peace officer, and the photographs identified by the
signature of the photographer. Upon the filing of such photograph and
writing with the authority or court holding such goods and merchandise as
evidence, such goods or merchandise shall be returned to their owner, or the
proprietor or manager of the store or establishment wherein the alleged
offense occurred. [I.C.,

18-4625, as added by 1980, ch. 336, 2, p. 870.]
Compiler's notes. Former 18-4625 A., 17-3525, was repealed by S. L. 1971, ch.
which comprised S. L. 1927, ch. 132, 2, p. 143, 5, effective January 1, 1972, was reen-
175; am. S. L. 1929, ch. 189, 1, p. 351; I. C. acted as I. C,
18-4625 by S. L. 1972, ch.
336, 1,
effective April 1, 1972 and repealed
by S. L. 1972, ch. 381, 17, effective April 1,
1972.
18-4626. Wilful concealment of goods, wares or merchandise

Defense for detention.

(a) Whoever, without authority, wilfully con-
ceals the goods, wares or merchandise of any store or merchant, while still
upon the premises of such store or merchant, shall be guilty of a misde-
meanor and, upon conviction thereof, shall be punished by a fine of not more
than three hundred dollars ($300) or by imprisonment in the county jail for
not more than six (6) months, or by both such fine and imprisonment. Goods,
wares or merchandise found concealed upon the person shall be prima facie
evidence of a wilful concealment.
(b) Any owner, his authorized employee or agent of any store or mer-
chant, apprehending or detaining a person on or in the immediate vicinity
of the premises of any store or merchant, for the purpose of investigation or
questioning as to the ownership of any goods, wares or merchandise, shall
have as a defense in any action, civil or criminal, that such detention of the
person or persons was in a reasonable manner and for not more than a
reasonable time to permit such investigation or questioning by a peace
officer or by the owner of the store or merchant, his authorized employee or
agent, and that such peace officer, owner, employee or agent had probable
cause to believe that the person so detained was committing or attempting
to commit an offense as set forth in subsection (a) of this section. "Reason-
able time" shall mean the time necessary to permit the person detained to
make a statement or to refuse to make a statement, and the time necessary
to examine employees and records of the store or merchant relative to
ownership of the merchandise. [I.C.,

18-4626, as added by 1972, ch. 336,
1, p. 844; am. 1973, ch. 258, 1, p. 510.]
Compiler's notes. A former section, which instructed that in order to find defendant
comprised I.C.,
18-4626, as added by S.L. guilty of wilful concealment they would have
1957, ch. 178, 1, p. 342 was repealed by S.L. to find the state had proven beyond a reason-
1971, ch. 143, 5, effective January 1, 1972, able doubt that defendant had wilfully con-
cealed goods or merchandise belonging to
store while still upon the premises of the
store, and the jury was given a definition of
j
, .
.
"wilfully" which was drawn from, the defini-
fcdefendant was found guilty by a jury
*J**
18-101(1). These instructions were
of the crime of wilful concealment, and at
all that were required for
c
the statutory defi-
trial, the jury was instructed on the charged
jon of negligence in

18-101(2), and

18-
offense of petit theft and also on the lesser
\
01
^
wa
f
not the law that governed defen-
included offense of wilful concealment, the
dants
^
llt or innocence. There was no need
instructions that were given adequately ad-
for an instruction giving that definition of
dressed the subject matter of the requested
negligence to support her defense that she did
instruction on the statutory definition of neg-
not act wilfully; her contention that she was
ligence as set forth in 18-101(2); an expla-
merely negligent was properly a subject for
nation of the mental state, wilfulness, which
closing argument, but did not necessitate a
is a requisite for guilt of the crime of wilful
separate jury instruction. State v. Fetterly,
concealment, was given to the jury which was
126 Idaho 475, 886 P.2d 780 (Ct. App. 1994).
18-4627. Transportation of coniferous trees

Proof of owner-
ship required.
It shall be unlawful for any person to transport on the

highways of this state, outside of incorporated cities, more than two (2)
coniferous trees without proof of ownership. Such proof of ownership shall
consist of one (1) or more of the following:
(1) A tag designating the grower or producer, and/or the vendor of the
tree; such tag shall be attached firmly to the branches or trunk of the tree;
(2) A permit issued by the proper state or federal agencies which shall
specify:
(a) The date of its execution;
(b) The name of the permittee;
(c) The location or area where the trees were harvested; and
(d) The amount or number of trees authorized to be cut.
(3)
A bill of sale showing title thereto, which shall specify:
(a) The date of its execution;
(b) The name and address of the vendor or donor of the trees;
(c) The name and address of the vendee or donee of the trees;
(d) The number of trees, by species, sold or transferred by the bill of sale;
and
(e) The property from which the trees were taken.
(4)
A United States department of agriculture and/or a state of Idaho
marketing service grade inspection tag shall be acceptable as proof of
ownership when such tags specify:
(a) The date of inspection;
(b) The name and address of the grower or producer; and
(c) The species and grade of the trees.
The foregoing provisions do not apply to:
(1) The transportation of trees in the course of transplantation, with their
roots intact.
(2)
The transportation of logs, poles, pilings or other forest products from
which substantially all the limbs and branches have been removed.
(3) The transportation of coniferous trees by the owner of the land from
which they were taken or his agent. [I.C.,
18-4627, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1961, ch. 232, 1, p. 373; prior to its repeal.
in 18-4630.
18-4628. Transportation of forest products
Proof of ownership
required

Exceptions.

(a) It shall be unlawful and constitute a
misdemeanor for any person, firm, company, or business to transport on the
public highways of this state any load of forest products, including conifer-
ous trees, Christmas trees, sawlogs, poles, cedar products, pulp logs,
fuelwood, etc., without proof of ownership. Such proof of ownership shall
consist of one or more of the following:
(1) Apermit, contract, or other legal instrument issued by the landowner
or proper state or federal agencies which shall specify:
(a) Date of execution;
(b) Name and address of permittee;
445 LARCENY AND RECEIVING STOLEN GOODS 18-4628A
(c) Location or area by legal description where forest products were
harvested;
(d) Estimated amount, volume, species, and class of forest products
authorized to be cut and removed;
(e) Delivery or scaling point;
(f) Name and address of purchaser of forest products if different than
permittee.
(2) A bill of sale showing title thereto, which shall specify:
(a) Date of execution;
(b) Name and address of the vendor or donor of the forest products;
(c) Name and address of the vendee or donee of the forest products;
(d) Number, volume, species, and class of forest products sold or
transferred by the bill of sale;
(e) Property, legal description, from which the forest products were cut
and removed.
(3)
A log or product load receipt or ticket issued by the seller (and) is a
contract or permit condition authorizing removal of forest products. After
scaling, load receipts or tickets shall be acceptable as proof of ownership
when such tickets or load receipts specify:
(a) Name of sale and purchaser;
(b) Date load removed;
(c) Name of truck driver;
(d) Sale contract/permit number;
(e) Number, volume, species and class of forest products covered by the
load receipts or tickets.
(b) The foregoing provisions shall not apply to:
(1) Transportation of wood chips, sawdust and bark;
(2) Transportation of forest products by the owner of the land from which
forest products were taken or his agent;
(3)
Transportation of two (2) or less coniferous trees; or
(4) Transportation of trees in the course of transplantation with their
roots intact. [I.C.,
18-4628, as added by 1975, ch. 243, 2, p. 653; am.
1978, ch. 252, 1, p. 551.1
Compiler's notes. Former section 18-4628 The word "and" in subsection (a)(3) was
which comprised S. L. 1961, ch. 232, 2, p. enclosed in parentheses by the compiler as
373, was repealed by S.L. 1971, ch. 143, 5, surplusage.
and was reenacted by S. L. 1972, ch. 336,
1
and as so reenacted was repealed by S.L.
jn 18-4630
1975, ch. 243, 1.
18-4628A. Penalty for purchase without proof of ownership.
It
is unlawful and a misdemeanor for any person, firm, company, or business
to purchase any load of forest products, including coniferous trees, Christ-
mas trees, sawlogs, poles, cedar products, pulp logs, fuelwood, etc., without
proof of ownership as specified in subsection (a) of section 18-4628, Idaho
Code, or to fail to retain a copy of that proof of ownership for a period of at
least one
(1) year from the date of purchase. [I.C.,
18-4628A, as added by
1978, ch. 252, 2, p. 551.]
18-4630. in

18-4630.
18-4629. Penalty for transportation of forest products without a
permit, contract, bill of sale, or product load receipt.

Violation of
the provisions of this act shall constitute a misdemeanor, and upon convic-
tion, be punishable by a fine of not to exceed three hundred dollars
($300),
or by imprisonment in the county jail not exceeding six (6) months, or both.
[I.C.,
18-4629, as added by S.L. 1975, ch. 243, 3, p. 653.]
refer to S.L. 1975, ch. 243 compiled herein as
18-4628, 18-4629.
18-4630. Illegal use of documents.

It is unlawful for any person,
firm, company, or business to use any of the following documents for
fraudulent or illegal purposes:
(a) Log or product load receipt or ticket, permit, contract, or other
instrument under the transportation of forest products act, sections 18-4627
through 18-4630, Idaho Code;
(b) Certificates of compliance under the Idaho forestry act, sections
38-101 through 38-133, Idaho Code;
(c) Certificate of notification under the Idaho forest practices act, sections
38-1301 through 38-1312, Idaho Code. Any person, firm, company, or
business which knowingly uses any of the above mentioned documents in a
fraudulent or illegal manner is guilty of a felony. [I.C.,

18-4630, as added
by 1978, ch. 252, 3, p. 551.]
ch. 252 is compiled as 18-4628A. in
18-7803.
18-4631. Forest sabotage
Penalty.
(1) Every person who mali-

ciously drives or places, in any tree, saw-log, shingle-bolt or other wood, any
iron, steel, ceramic, or other substance sufficiently hard to injure saws,
knowing that the tree is intended to be harvested or that the saw-log,
shingle-bolt, or other wood is intended to be manufactured into any kind of
lumber or other wood product, is guilty of a felony.
(2) Any person who violates the provisons [provisions] of subsection (1) of
this section and causes great bodily injury to another person other than an
accomplice shall be sentenced to an extended term of imprisonment pursu-
ant to section 19-2520B, Idaho Code. [I.C.,

18-4631, as added by 1988, ch.
322, 1, p. 981.]
Compiler's notes. The bracketed word
"provisions" in subsection (2) was inserted by
the compiler.
447 LEGISLATIVE POWER 18-4703
CHAPTER 47
LEGISLATIVE POWER
SECTION. SECTION.
18-4701. Alteration of bills. 18-4705. Refusal to testify before legislature.
18-4702. Alteration of enrolled copies. 18-4706. Disqualification to hold office on
18-4703. Offering bribes to legislators. conviction.
18-4704. Legislators receiving bribes. 18-4707. [Repealed.]
18-4701. Alteration of bills.
Every person who fraudulently alters

the draft of any bill or resolution which has been presented to either of the
houses composing the legislature, to be passed or adopted, with intent to
procure it to be passed or adopted by either house, or certified by the
presiding officer of either house, in language different from that intended by
such house, is guilty of [a] felony. [I.C.,

18-4701, as added by 1972, ch. 336,
1, p.
844.]
Compiler's notes. A former section, which The bracketed word "a" was inserted by the
comprised R.S., R.C., & C.L., 6410; C.S., compiler.
8131; I.C.A.,
17-601 was repealed by S.L. Section 14 of S.L. 1972, ch. 336 declared an
1971, ch. 143, 5, effective January 1, 1972, emergency and provided that the act should
and the present section added by S.L. 1972, take effect on and after April 1, 1972.
ch. 336,
1 in the same words as the section Cross ref. Penalty for felony when not
prior to its repeal. otherwise provided,
18-112.
18-4702. Alteration of enrolled copies.
Every person who fraud-

ulently alters the enrolled copy of any bill or resolution which has been
passed or adopted by the legislature with intent to procure it to be approved
by the governor, or certified by the secretary of state, or printed or published
by the printer of the statutes, in language different from that in which it was
passed or adopted,by the legislature, is guilty of [a] felony. [I.C.,

18-4702,
as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which The bracketed word "a" was inserted by the
comprised R.S., R.C., & C.L., 6411; C.S., compiler.
8132; I.C.A.,

1971, ch. 143, 5,
effective January
1, 1972,
otherwise provided,
18-112.
18-4703. Offering bribes to legislators.

offers to give a bribe to any member of the legislature, or to another person
for him, or attempts by menace, deceit, suppression of truth, or any corrupt
means, to influence a member in giving or withholding his vote, or in not
attending the house or any committee of which he is a member, is guilty of
a felony. [I.C.,

18-4703, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6412; C.S., 8133; I.C.A.,
17-603 same words as the section prior to its repeal,
18-101.
Bribery generally,
18-2701, and notes. Criminal liability of corporation for bribery
Incriminating testimony may be required, or conspiracy to bribe public official. 52
18-1308. A.L.R.3d 1274.

Penalty for felony when not otherwise pro- Furnishing public official with meals, lodg-
vided,
18-112. ing, or travel, or receipt of such benefits, as
Collateral References. Other bribery or bribery. 67 A.L.R.3d 1231.
acceptance of bribe, admissibility of evidence Who is public official within meaning of
tending to show commission of, in prosecution federal statute punishing bribery of public
for bribery or accepting bribes. 20 A.L.R.2d official (18 U.S.C.A. 201). 161 A.L.R. Fed.
1012. 491.
18-4704. Legislators receiving bribes.
Every member of either of

the houses composing the legislature of this state who asks, receives or
agrees to receive, any bribe, upon any understanding that his official vote,
opinion, judgment or action shall be influenced thereby, or shall be given in
any particular manner, or upon any particular side of any question or
matter upon which he may be required to act in his official capacity, or gives,
or offers, or promises to give, any official vote in consideration that another
member of the legislature shall give any such vote either upon the same or
another question, is guilty of a felony. [I.C.,

18-4704, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Cross ref. Penalty for felony when not
comprised Cr. & P. 1864, 92; R.S., R.C., & otherwise provided,
18-112.
C.L.,
6413; C.S.,
8134; I.C.A.,

17-604
Collateral References. Solicitation or re-
ceipt of funds by public officer or employee for
effective January
political campaign expenses or similar pur-
poses as bribery. 55 A.L.R.2d 1137.
18-4705. Refusal to testify before legislature.
Every person who,

being summoned to attend as witness before either house of the legislature
or any committee thereof, refuses or neglects, without lawful excuse, to
attend pursuant to such summons, and every person who, being present
before either house of the legislature or any committee thereof, wilfully
refuses to be sworn or to answer any material and proper question, or to
produce, upon reasonable notice, any material and proper books, papers or
documents in his possession or under his control, is guilty of a misdemeanor.
[I.C.,

18-4705, as added by 1972, ch.
336, 1, p. 844.]
8135; I.C.A.,

18-113.
18-4706. Disqualification to hold office on conviction.

Every
member of the legislature convicted of any crime denned in this chapter, in
addition to the punishment prescribed, forfeits his office, and is forever
disqualified from holding any office in this state. [I.C.,
18-4706, as added
by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which & C.L., 6415; C.S., 8136; I.C.A.,
17-606
comprised Cr. & P. 1864, 92, 93; R.S., R.C., was repealed by S.L. 1971, ch. 143, 5,
449 LIBEL 18-4801
18-4707. Lobbying. [Repealed.]
comprised I.C.,
1972, ch. 336, 1 was repealed by Init. Mea-
sure 1974, No.
1, p. 29. For present law see
67-6617 67-6628.
CHAPTER 48
LIBEL
SECTION.
18-4801. Libel defined.
18-4802. Punishment for libel.
18-4803. Truth may be proved

Malice

Jury to determine law and
fact.
18-4804. Malice presumed.
18-4805. Sufficiency of publication.
18-4806. Liability of authors, editors and
proprietors.
18-4807. Report of public proceeding.
18-4808. Limitation on privilege in reporting
public proceedings.
18-4809. Threats to publish libel

Extor-
tion.
18-4801. Libel defined.
A libel is a malicious defamation, expressed

either by writing, printing, or by signs or pictures, or the like, tending to
blacken the memory of one who is dead, or to impeach the honesty, integrity,
virtue or reputation, or publish the natural or alleged defects, of one who is
alive, and thereby to expose him to public hatred, contempt or ridicule. [I.C.,
18-4801, as added by 1972, ch.

336, 1, p. 844.]
C.L., 6737; C.S., 8253; I.C.A., 17-1501,
was repealed by S.L., 1971, ch. 143, 5,
Analysis
Civil action for libel.
Libelous matter denned.
Privilege.
Civil Action for Libel.
Complaint charging publication of matter
not libelous per se, but of such character that
it might expose person about whom it is
written to public hatred, contempt, or ridicule
and cause injury to his business, is good
against general demurrer. Jenness v. Co-Op-
erative Publishing Co., 36 Idaho 697, 213 P.
351 (1923).
Where publication is not libelous per se and
no malice or resulting damage is shown, ver-
dict for substantial damages will be set aside.
Jenness v. Co-Operative Publishing Co., 36
Idaho 697, 213 P. 351 (1923).
The Supreme Court of Idaho has applied
this statute to civil actions for libel brought
against newspapers and persons, and its de-
cisions defining civil libel thereunder are con-
trolling. Sweeney v. Capital News Publishing
Co., 37 F. Supp. 355 (D. Idaho 1941). In
connection with this case see Sweeney v.
Schenectady Union Publishing Co., 122 F.2d
288 (2d Cir. 1941), aff'd, 316 U.S. 642, 62 S.
Ct. 1031, 86 L. Ed. 1727 (1942); Sweeney v.
Patterson, 128 F.2d 457 (D.D.C. 1942), cert,
denied, 317 U.S. 678, 63 S. Ct. 160, 87 L. Ed.
544 (1942).
When one rests his case solely upon the
contention that a recovery is to be had be-
cause the article is libelous per se, the court
must look to the words in the article, and
their tendency, and cannot go beyond that and
apply other words by innuendo to support the
conclusion that the article is libelous per se.
Sweeney v. Capital News Publishing Co., 37 F.
Supp. 355 (D. Idaho 1941). In connection with
this case see Sweeney v. Schenectady Union
Publishing Co., 122 F.2d 288 (2d Cir. 1941),
aff'd, 316 U.S. 642, 62 S. Ct. 1031, 86 L. Ed.
1727 (1942); Sweeney v. Patterson, 128 F.2d
457 (D.D.C. 1942), cert, denied, 317 U.S. 678,
63 S. Ct. 160, 87 L. Ed. 544 (1942).
A newspaper article was not libelous per se
which charged that a congressman was oppos-
ing the appointment of a named person to a
federal judgeship on the ground that he was a
Jew and one not born in the United States,
and that the congressman was "irate" and was
endeavoring to call a caucus of Ohio congress-
man to protest the appointment, and that the
congressman was known as the chief congres-
sional spokesman of Father Coughlin.
Sweeney v. Capital News Publishing Co., 37 F.
Supp. 355 (D. Idaho 1941). In connection with
this case see Sweeney v. Schenectady Union
Publishing Co., 122 F.2d 288 (2d Cir. 1941),
aff'd, 316 U.S. 642, 62 S. Ct. 1031, 86 L. Ed.
1727 (1942); Sweeney v. Patterson, 128 F.2d
457 (D.D.C. 1942), cert, denied, 317 U.S. 678,
63 S. Ct. 160, 87 L. Ed. 544 (1942).
In libel action where the complaint alleged
that publication was maliciously intended to
injure plaintiff generally, the question of mal-
ice was for the jury. Browder v. Cook, 59 F.
Supp. 225 (D. Idaho 1944).
The injurious character of a published arti-
cle is presumed when the same violates the
rights of an individual, injures his good name
and holds him up to public ridicule, hatred
and scorn of his fellow men, and special
damages need not be pleaded or proved.
Browder v. Cook, 59 F. Supp. 225 (D. Idaho
1944).
In order to hold a publication libel per se it
must appear that same, standing alone with-
out aid of extrinsic evidence, would tend to
injure plaintiff in business, occupation, ruin
his name and expose him to public ridicule.
Browder v. Cook, 59 F. Supp. 225 (D. Idaho
1944).
In determining whether a certain publica-
tion was libel per se the question to be settled
is, what in fact was charged and what the
public, who reads the article, might reason-
ably suppose was intended. Browder v. Cook,
59 F. Supp. 225 (D. Idaho 1944).
Information which sets forth the libelous
matter in haec verba, prefacing with words
"that is to say," is good upon demurrer.
Bonney v. State, 3 Idaho 288, 29 P. 185 (1892).
Libelous Matter Denned.
Under this section it is not necessary that
alleged libelous matter charge person named
with a crime. Coupling public official's name
with the word "graft" is libelous per se. State
v. Sheridan, 14 Idaho 222, 93 P. 656, 15 L.R.A.
(n.s.) 497 (1908).
In libel case words will be construed accord-
ing to their plain, popular, natural, and ordi-
nary sense and as they would naturally be
understood by persons hearing or reading
them, unless it affirmatively appears that
they were used and understood in some other
sense. State v. Sheridan, 14 Idaho 222, 93 P.
656, 15 L.R.A. (n.s.) 497 (1908).
Written publication charging one with wil-
ful falsehood in the matter of a serious busi-
ness transaction must necessarily expose him
to contempt and lower him in the common
estimation of citizens and is therefore action-
able per se. Dwyer v. Libert, 30 Idaho 576, 167
P. 651, Ann. Cas. 1918B, 973 (1917).
In libel action where plaintiff was allegedly
referred to as a peeping torn, stool pigeon, as
a Jekyll and Hyde and as a New Deal Ge-
stapo, plaintiff's complaint could not be dis-
missed on the ground that it did not state a
cause of action and the objections to the
complaint were matters of defense to be left to
the jury under proper instructions. Browder v.
Cook, 59 F. Supp. 225 (D. Idaho 1944).
In a mortgage foreclosure action against an
attorney and his client, an allegation that the
client had made payments of $100 a month to
the attorney for application on the mortgage
accompanied by a prayer that the attorney be
required to account for such payments and to
pay same over toward the mortgage debt was
not libelous per se. Bistline v. Eberle, 88 Idaho
473, 401 R2d 555 (1965).
Privilege.
The expression of an opinion concerning
judicial proceedings is not privileged. State v.
Sheridan, 14 Idaho 222, 93 P. 656, 15 L.R.A.
(n.s.) 497 (1908).
Ends ofjustice and public good can be best
served by allowing litigants to freely plead
any pertinent or material matter in a judicial
proceeding to which they are parties, holding
them accountable only for defamatory matter
that is neither pertinent nor material to sub-
ject under inquiry. Carpenter v. Grimes Pass
Placer Mining Co., 19 Idaho 384, 114 P. 42
(1911).
Complaint against public officer filed with
the body having the right of his discharge is
conditionally privileged upon good faith and
in absence of malice. Dwyer v. Libert, 30
Idaho 576, 167 P. 651, Ann. Cas. 1918B, 973
(1917).
Where defendant who had replaced plain-
tiff as attorney in litigation pending in district
court wrote a letter to judge and mailed copies
of same to various attorneys in which he
requested that brief filed by plaintiff be with-
drawn since portions of brief were malicious,
scurrilous, definitely improper and unethical,
and that plaintiff had indulged in a profusion
of diabolical name calling, impertinent asser-
tions, false statements, and prejudicial half
truths the letter was libelous per se but since
it was privileged as a publication in the due
course of judicial proceeding there was no
liability. Richeson v. Kessler, 73 Idaho 548,
255 P.2d 707 (1953).
The assailed report classifying child as "fee-
ble-minded," also making another statement,
both of which were the basis for libel action,
was made by an experienced psychologist on
solicitation by a doctor to whom the youngster
451 LIBEL 18-4801
had been taken for treatment for claustropho-
bia and the court was convinced that such
report, though qualifiedly privileged, was pos-
itively free from any actionable malice what-
soever, further such report had been made by
the psychologist as a public official. Iverson v.
Frandsen, 237 F.2d 898 (10th Cir. 1956).
Libel and Slander, 1 et seq.
53 C.J.S. Libel and Slander, 1 et seq.
Privilege of communication in relation to
member, or prospective member, of society,
other than church. 3 A.L.R. 1654; 15 A.L.R.
453; 18 A.L.R. 293; 28 A.L.R. 1345; 35 A.L.R.
1414; 45 A.L.R. 1234; 59 A.L.R. 735; 82 A.L.R.
709; 90 A.L.R. 119.
Charging one with failure to keep his con-
tracts. 5 A.L.R. 1362.
Communications by employer to surety
company regarding employee. 11 A.L.R. 1014.
Charging one with being a "slacker." 11
A.L.R. 1017; 49 A.L.R. 260; 140 A.L.R. 1533;
141 A.L.R. 1526.
Reports or statements about school pupils.
12 A.L.R. 147.
Charging merchant with using false
weights or measures. 13 A.L.R. 1019.
160; 66 A.L.R. 478; 86 A.L.R. 263.
Character of libel or slander for which crim-
inal prosecution will lie. 19 A.L.R. 1470.
Candidates, criminal responsibility for li-
bel. 19 A.L.R. 1489.
"Infamous offense," libel as, within consti-
tutional or statutory provision in relation to
presentment or indictment by grand jury. 24
A.L.R. 1013.
Mistake in statement or publication as to
name or description of person to whom it
relates as affecting libel or slander. 26 A.L.R.
454; 41 A.L.R. 485.
Abusive words. 37 A.L.R. 883.
Libel or slander affecting bank. 37 A.L.R.
1348.
False imputation of matrimonial inten-
tions. 44 A.L.R. 1424.
Words as criminal offense other than libel
or slander. 48 A.L.R. 83.
Imputing disposition to avoid service in
war. 49 A.L.R. 260.
Imputation that property sold or offered for
sale is subject to an encumbrance. 50 A.L.R.
279.
Charging one with being a bastard or ille-
gitimate. 53 A.L.R. 548.
Defamation of one in his character as a
political leader or "boss." 55 A.L.R. 854.
Imputation of drunkenness. 58 A.L.R. 1159.
Publication or statement reflecting on
stockholder or officer as well as upon corpora-
tion. 58 A.L.R. 1233.
Qualified privilege of publications in news-
paper of general or restricted circulation. 92
A.L.R. 1029.
Necessity that words published involve im-
putation of crime, to constitute libel per se.
105 A.L.R. 932.
Publishing that lawyer solicits business.
112 A.L.R. 177; 46 A.L.R.4th 326.
Indebtedness of employee, privilege in re-
spect of communication to employer regard-
ing. 151 A.L.R. 1104.
Communication to defendant's employee or
business associate as privileged. 166 A.L.R.
114.
Police or other peace officer, liability of. 13
A.L.R.2d 897.
Labor relations or disputes, statements re-
garding. 19 A.L.R.2d 694.
Joinder in defamation action, of denial and
plea of truth of statement. 21 A.L.R.2d 813.
Briefs, statements in. 32 A.L.R.2d 423.
Religious and racial intolerance, imputa-
tion of. 33 A.L.R.2d 1219.
Liability for statement or publication rep-
resenting plaintiff as cruel to or killer of
animals. 39 A.L.R.2d 1388.
Statements or utterances by member of
municipal council, or of governing body of
other political subdivision, in course of official
proceedings. 40 A.L.R.2d 941.
Judges, findings, reports, or the like. 42
A.L.R.2d 825.
Administrative proceedings, privilege ap-
plicable to judicial proceedings as extending
to. 45 A.L.R.2d 1296.
Action for libel as remedy of workman
blacklisted by. 46 A.L.R.2d 1132.
Race, color, or nationality, statements re-
specting. 46 A.L.R.2d 1287.
Grand jury, proceedings, presentments, in-
vestigations, reports of. 48 A.L.R.2d 716.
Raising defense of privilege and defamation
action. 51 A.L.R.2d 552.
Statement or publication that plaintiff has
been indicted or is under indictment, as def-
amation. 52 A.L.R.2d 1178.
Actionability of statement imputing inca-
pacity, inefficiency, misconduct, fraud, dishon-
esty, or the like to public officer or employee.
53 A.L.R.2d 8.
Insurance company's liability for libel or
slander by its agents or employees. 55
A.L.R.2d 828.
Conditional or alternative form,
defamatory nature of charges or imputations
in. 59 A.L.R.2d 928.
Argument to jury, statements in. 61
A.L.R.2d 1300.
Literary or artistic works, criticism of. 64
A.L.R.2d 245.
Venue generally. 70 A.L.R.2d 1340.
Privilege in connection with proceedings to
disbar or discipline attorney. 77 A.L.R.2d 493.
Defamatory nature of statements reflecting
on plaintiff's religious beliefs, standing, or
activities. 87 A.L.R.2d 453.
Liability of parent or person in local parent-
age for defamation of minor child. 90 A.L.R.2d
462.
Accidental communication, publication by.
92 A.L.R.2d 219; 62 A.L.R.4th 616.
Constitutional aspects of libel or slander of
public officials. 95 A.L.R.2d 1450.
Liability of publisher of defamatory state-
ment for its repetition or republication by
others. 96 A.L.R.2d 373.
Imputing credit unworthiness to non-
trader. 99 A.L.R.2d 700.
Charge of being "crook." 1 A.L.R.3d 844.
False news reports as to birth, betrothals,
marriages, divorces, or similar marital mat-
ters. 9 A.L.R.3d 559.
Statements as to plaintiff's charging exces-
sive or exorbitant prices or fees. 11 A.L.R.3d
884.
Actionability of charge of being a "slut,"
"bitch," or "son of a bitch." 13 A.L.R.3d 1286.
Libel by will. 21 A.L.R.3d 754.
Actionability of imputing to private person
mental disorder or incapacity, or impairment
of mental faculties. 23 A.L.R.3d 652.
Actionability of accusation or imputation of
shoplifting. 29 A.L.R.3d 961.
Actionability of accusation or imputation of
tax evasion. 32 A.L.R.3d 1427.
Public officer's privilege in connection with
accusation that another has been guilty of
sedition, subversion, espionage, or similar be-
havior. 33 A.L.R.3d 1330.
Relevancy of matter contained in pleading
as affecting privilege within law of libel. 38
A.L.R.3d 272.
Actionability of statements imputing ineffi-
ciency or lack of qualification to public school
teacher. 40 A.L.R.3d 490.
Qualified privilege or reply to defamatory
publication. 41 A.L.R.3d 1083.
What constitutes "publication" in libel in
order to start running of period of limitations.
42 A.L.R.3d 807.
Privilege of reporting judicial proceedings
as extending to proceeding held in secret or as
to which record is sealed by court. 43 A.L.R.3d
634.
Right of governmental entity to maintain
action for defamation. 45 A.L.R.3d 1315.
Imputation of insolvency as defamation. 49
A.L.R.3d 163.
Charges of slumlordism or the like as ac-
tionable. 49 A.L.R.3d 1074.
Defamation by radio or television. 50
A.L.R.3d 1311.
Privileged nature of communications made
in course of agreements or arbitration proce-
dure provided for by collective bargaining
agreement. 60 A.L.R.3d 1041.
Dictation to defendant's secretary, typist, or
stenographer as publication. 62 A.L.R.3d
1207.
Privileged nature of statements or utter-
ances by member of school board in course of
official proceedings. 85 A.L.R.3d 1137.
Libel or slander: defamation by gestures or
acts. 46 A.L.R.4th 403.
Defamation of class or group as actionable
members. 52 A.L.R.4th 618.
Credit card issuer's liability, under state
laws, for wrongful billing, cancellation, dis-
honor, or disclosure. 53 A.L.R.4th 231.
Libel or slander: defamation by statement
made in jest. 57 A.L.R.4th 520.
Imputation of allegedly objectionable polit-
ical or social beliefs or principles as defama-
tion. 62 A.L.R.4th 314.
Publication of allegedly defamatory matter
by plaintiff ("self-publication") as sufficient to
support defamation action. 62 A.L.R.4th 616.
18-4802. Punishment for libel.
Every person who wilfully, and with

a malicious intent to injure another, publishes, or procures to be published,
any libel, is punishable by fine not exceeding $5000, or imprisonment in the
county jail not exceeding six (6) months. [I.C.,

18-4802, as added by 1972,
ch. 336, 1, p. 844.]
C.L., 6738; C.S., 8254; I.C.A., 17-1502,
18-4803. Truth may be proved
Malice
Jury to determine law

and fact.
In all criminal prosecutions for libel, the truth may be given in

evidence to the jury, and if it appears to the jury that the matter charged as
libelous is true, and was published with good motives and for justifiable
ends, the party shall be acquitted. The jury has the right to determine the
law and the fact. [I.C.,

18-4803, as added by 1972, ch.
336, 1, p. 844.]
453 LIBEL 18-4806
C.L., 6740; C.S., 8256; I.C.A., 17-1504,
Burden of Proof.
Where article is libelous per se, proof of
publication makes a prima facie case. Prose-
cution is not required to prove the untruth of
article or that same was published with bad
faith, truth or good faith of the publication
being matter of defense. State v. Sheridan, 14
Idaho 222, 93 P. 656, 15 L.R.A. (n.s.) 497
(1908).
Collateral References. May actual mal-
ice which will defeat conditional privilege in
libel or slander coexist with belief in truth of
imputation? 18 A.L.R. 1160.
Publication of truth as defense to criminal
prosecution for libel. 19 A.L.R. 1477.
Relative provinces of court and jury as to
privileged occasion and privileged communi-
cation in law of libel and slander. 26 A.L.R.
830.
18-4804. Malice presumed.
An injurious publication is presumed to

have been malicious if no justifiable motive for making it is shown. [I.C.,
18-4804, as added by 1972, ch. 336, 1, p. 844.]

Cross ref. See notes,
18-4801; under
heading "Civil Act for Libel": Browder v. Cook,
59 F. Supp. 225 (N.D. Idaho 1944).
Privilege in Judicial Proceeding.
Whatever litigant may properly plead he
may plead with or without malice, and in such
case intent with which he pleaded same can
not be inquired into or become an issue in
action for libel. Carpenter v. Grimes Pass
Placer Mining Co., 19 Idaho 384, 114 P. 42
(1911).
18-4805. Sufficiency of publication.

To sustain a charge of pub-
lishing a libel, it is not needful that the words or things complained of should
have been read or seen by another. It is enough that the accused knowingly
parted with the immediate custody of the libel under circumstances which
exposed it to be read or seen by any other person than himself. [I.C.,
18-4805, as added by 1972, ch.

336, 1, p. 844.]
Collateral References. Dictation of
defamatory matter as publication. 166 A.L.R.
117.
18-4806. Liability of authors, editors and proprietors.

Each
author, editor and proprietor of any book, newspaper or serial publication, is
chargeable with the publication of any words contained in any part of such
book, or number of such newspaper or serial. [I.C.,

1972, ch.
336, 1, p. 844.]
8258; I.C.A.,
Collateral References. Communications
between different offices of corporation. 5
A.L.R. 455.
Libel by newspaper headlines. 95 A.L.R.3d
660.
18-4807. Report of public proceeding.

No reporter, editor, or
proprietor of any newspaper is liable to any prosecution for a fair and true
report of any judicial, legislative, or other public official proceedings, or of
any statement, speech, argument, or debate in the course of the same,
except upon proof of malice in making such report, which shall not be
implied from the mere fact of publication. [I.C.,

1972, ch. 336, 1, p. 844.1
8259; I.C.A.,
Analysis
Judicial proceedings.
Newspaper account.
Opinion not privileged.
Public officer.
Judicial Proceedings.
This section seems to indicate that there
might be matters contained in reports of ju-
dicial proceedings which, if published out of
court, or by persons other than parties to
actions, might be libelous, which would not be
libelous when used by litigants in course of
judicial proceedings. Carpenter v. Grimes
Pass Placer Mining Co., 19 Idaho 384, 114 P.
42 (1911).
Newspaper Account.
A newspaper is entitled to publish an ac-
count of actions taken by public officials with-
out subjecting itself to libel. Gough v. Tribune-
Journal Co., 73 Idaho 173, 249 P.2d 192
(1952).
News article by newspaper describing ac-
tivities of individual commissioners in public
meeting concerned with proposed budget in
which it was stated that certain commission-
ers walked out of meeting was not libelous.
Gough v. Tribune-Journal Co., 73 Idaho 173,
249 P.2d 192 (1952).
Newspapers had a conditional privilege to
publish with accuracy the proceedings of a
public gathering called for the purpose of
inducing a district judge to call a grand jury.
Borg v. Boas, 231 F.2d 788 (9th Cir. 1956).
Opinion Not Privileged.
An article which gives the opinion of a
reporter as to proceedings of judicial, legisla-
tive, or other public official body, is not privi-
leged under this section. State v. Sheridan, 14
Idaho 222, 93 P. 656, 15 L.R.A. (n.s.) 497
(1908).
Public Officer.
A newspaper article regarding activities of
a postmaster in checking attendance of cer-
tain motion picture theatres was not a privi-
leged or quasi privileged communication un-
der either the common law rule or this
statute. Browder v. Cook, 59 F. Supp. 225 (D.
Idaho 1944).
Collateral References. Privilege of state-
ment or communication by official charged
with prosecution or detection of crime. 15
A.L.R. 249.
Criminal responsibility for libel of officer. 19
A.L.R. 1489.
Privilege of criminal libel in connection
with court proceedings. 19 A.L.R. 1497.
Libel by recall petition. 43 A.L.R. 1268.
Proceedings to obtain search warrant as
judicial proceeding within rule of privilege in
libel and slander. 58 A.L.R. 723.
Libel and slander: Statements in nature of
comment upon judicial, legislative, or admin-
istrative proceeding, or the decision therein,
as within privilege accorded to proceeding or
report thereof. 155 A.L.R. 1356.
Lack of jurisdiction as destroying privilege
of defamatory allegations or statements in
judicial proceedings. 158 A.L.R. 592.
Findings of judge or person acting in judi-
cial capacity as privileged within law of libel.
42 A.L.R.2d 825.
Relevancy of matter contained in pleading
as affecting privilege within law of libel. 38
A.L.R.3d 272.
Libel and slander: Reports of pleadings as
within privilege for reports of judicial pro-
ceedings. 20 A.L.R.4th 576.
18-4808. Limitation on privilege in reporting public proceedings.
Libelous remarks or comments connected with matter privileged by the

last section receive no privilege by reason of their being so connected. [I.C.,
18-4808, as added by 1972, ch. 336, 1, p. 844.]

455 LOTTERIES 18-4901
1,
18-4809. Threats to publish libel
Extortion.
Every person who

threatens another to publish a libel concerning him, or any parent, husband,
wife, or child of such person, or member of his family, and every person who
offers to prevent the publication of any libel upon another person, with
intent to extort any money or other valuable consideration from any person,
is guilty of a misdemeanor. [I.C.,

18-4809, as added by 1972, ch.
336, 1,
p. 844.]
1,
Cross ref. Extortion,

18-2401 18-
2409.
wise provided,
18-113.
SECTION.
18-4901.
18-4902.
18-4903.
18-4904.
18-4905.
Lottery denned.
Engaging in lottery.
Traffic in lottery tickets.
Assisting in lottery.
Maintaining lottery office.
CHAPTER 49
LOTTERIES
SECTION.
18-4906. Lottery insurance.
18-4907. Search, seizure, and confiscation.
18-4908. Permitting premises to be used for
lottery.
18-4909. Exceptions.
18-4901. Lottery defined.
Alottery is any scheme for the disposal or

distribution of property by chance among persons who have paid or
promised to pay any valuable consideration for the chance of obtaining such
property, or a portion of it, or for any share or interest in such property, upon
any agreement, understanding or expectation that it is to be distributed or
disposed of by lot or chance, whether called a lottery, raffle, or gift
enterprise, or by whatever name the same may be known. The pari-mutuel
system used in racing shall not constitute a lottery, so long as it is conducted
in conformity with the provisions of chapter 25, title 54, Idaho Code. [I.C.,
18-4901, as added by 1972, ch. 336, 1, p. 844; am. 1972, ch. 381, 12,
p. 1102; am. 1987, ch. 316, 6, p. 660.]
Compiler's notes. Initiative Measure No.
1 which provided for a state lottery,

63-
2601
63-2626 and which repealed

18-
4901

18-4909, was approved by the voters
at the November 4, 1986 General Election by
a vote of 226,816 to 151,132 and on November
17, 1986 the Governor signed a proclamation
declaring it to be in full force and effect.
However, prior to 1988 the Idaho Constitution
Article
3, 20 prohibited a lottery. In 1988
Article
3, 20 was amended to permit a state
lottery (S.L. 1987, p. 801, H.J.R. No. 3, rati-
fied November 8, 1988). S.L. 1988, ch. 233
which became effective upon the adoption of
H.J.R. No. 3, S.L. 1987, p. 801, November 8,
1988, repealed Chapter 26 of Title 63
(
63-
2601

63-2626) and enacted the present
Idaho State Lottery Law,

67-7401
67-
7452. Section 67-7447 provides that "Chap-
ters 38 and 49 of Title 18, Idaho Code, shall
not apply to the tickets or shares of the state
lottery established in this chapter" (67-7401
67-7452).
A former section, which comprised S.L.
1911, ch. 147, 1, p. 451; reen. C.L., 6859;
C.S., 8316; I.C.A., 17-2401, was repealed

compiled herein as
former 18-3801 and
compiled as
54-2513 and 54-2509, respec-
tively.
in 67-7447.
Cited in: Braddock v. Family Fin. Corp., 95
Idaho 256, 506 P.2d 824 (1973).
Analysis
Acts denned as lotteries.
Elements.
Pari-mutuel system.
Stolen slot machines.
Acts Defined as Lotteries.
Acts 1947, ch. 151 declaring coin operated
devices as gaming devices but not lotteries,
Acts 1947, ch. 239 denning punchboards,
chance spindles, and chance prize games vio-
late Const., Art. 3, . 20 since devices de-
scribed in designated acts are lotteries. State
v. Village of Garden City, 74 Idaho 513, 265
P.2d 328 (1953).
Lotteries have been denned as a species of
gambling wherein prizes are distributed by
chance among persons paying a consideration
for the chance to win; a game of hazard in
which sums are paid for the chance to obtain
a larger value in money or articles. Oneida
County Fair Bd. v. Smylie, 86 Idaho 341, 386
P.2d 374 (1963).
Elements.
A scheme is a lottery if elements of chance,
consideration, and prize are all present. State
v. Village of Garden City, 74 Idaho 513, 265
P.2d 328 (1953).
Pari-mutuel System.
A pari-mutuel system used in a horse rac-
ing meet is not a lottery, as the pari-mutuel
system is not one solely based on chance,
which constitutes an essential requisite of a
lottery. Oneida County Fair Bd. v. Smylie, 86
Idaho 341, 386 P.2d 374 (1963).
Stolen Slot Machines.
Value of slot machines taken by defendant
in burglary was immaterial as far as his guilt
of crime of burglary was concerned, since the
burglary was shown by the breaking and
entering, and the fact that the slot machines
could only be used for an illegal purpose had
nothing to do with the offense charged. State
v. Johnson, 77 Idaho 1, 287 P.2d 425, cert,
denied, 350 U.S. 1007, 76 S. Ct. 649, 100 L.
Ed. 869 (1956).
Gambling,
5
10, 61
95.
54 C.J.S., Lotteries, 1 et seq.
Loan or investment association as a lottery.
28A.L.R. 1311.
What transactions are within the purview
of statutes or ordinances in relation to gifts or
prizes or gift enterprises. 39 A.L.R. 1035.
Scheme by which award depends upon
votes as a lottery. 41 A.L.R. 1484.
Scheme for advertising or stimulating legit-
imate business as a lottery. 57 A.L.R. 424; 103
A.L.R. 866; 109 A.L.R. 709; 113 A.L.R. 1121.
Game of chance, lottery as. 135 A.L.R. 168.
Punchboard as a lottery. 163 A.L.R. 1279.
Forfeiture of money used in connection with
gambling or lottery, or seized by officers in
connection with an arrest or search on pre-
mises where such activities took place. 19
A.L.R.2d 1228.
Entrapment to commit offense with respect
to gambling or lotteries. 31 A.L.R.2d 1212.
Validity of criminal legislation making pos-
session of gambling or lottery devices or par-
aphernalia presumptive or prima facie evi-
dence of other incriminating facts. 17
A.L.R.3d 491.
Constitutionality, construction, and appli-
cation of statute exempting scheme for benefit
of public, religious, or charitable purposes
from statutes or constitutional provisions
against gambling. 42 A.L.R.3d 663.
18-4902. Engaging in lottery.

Every person who contrives, pre-
pares, sets up, proposes, or draws any lottery is guilty of a misdemeanor.
[I.C.,

18-4902, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1911, ch. 147, 2, p. 451;
reen. C.L., 6859b; C.S., 8318; I.C.A.,

its repeal.
18-113.
in 18-7803.
457 LOTTERIES 18-4906
18-4903. Traffic in lottery tickets.
Every person who sells, gives, or

in any manner whatever furnishes or transfers to or for any other person
any ticket, chance, share or interest, or any paper, certificate or instrument,
purporting, or understood to be, or to represent any ticket, chance, share or
interest in, or depending upon the event of any lottery, is guilty of a
misdemeanor. [I.C.,

18-4903, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1911, ch. 147, 3, p. 451; its repeal.
reen. C.L.,

6859c; C.S.,
8319; I.C.A., Cross ref. Penalty for misdemeanor when
17-2404, was repealed by S.L. 1971, ch. not otherwise provided,

18-113.
143, 5, effective January 1, 1972, and the Sec. to sec. ref. This section is referred to
18-7803.
18-4904. Assisting in lottery.

Every person who aids or assists,
either by printing, writing, publishing, or otherwise, in setting up, manag-
ing or drawing any lottery, or in selling or disposing of any ticket, chance, or
share therein, or in advertising an illegal lottery, is guilty of a misdemeanor.
[I.C.,

1, p. 1224.]
Compiler's notes. A former section, which Section 2 of S.L. 2000, ch. 370 declared an
comprised S.L. 1911, ch. 147, 4, p. 452; emergency. Approved April 14, 2000.
reen. C.L.,

6859d; C.S.,
8320; I.C.A.,

18-113.
143, 5,
effective January 1, 1972, and the
Sec# to sec# ret Tnis section is referred to
jn 18-7803
its repeal.
18-4905. Maintaining lottery office.
Every person who opens, sets

up, or keeps by himself or any other person, any office or other place for the
sale of, or for registering the number of any ticket in any lottery, or who, by
printing, writing or otherwise, advertises or publishes the setting up,
opening or using of any such office, is guilty of a misdemeanor. [I.C.,
18-4905, as added by 1972, ch. 336, 1, p. 844.]

reen. C.L.,

6859e; C.S.,

18-113.
18-7803.
18-4906. Lottery insurance.
Every person who insures or receives

consideration for insuring for or against the drawing of any ticket in any
lottery whatever, whether drawn, or to be drawn within this state or not, or
who receives any valuable consideration upon any agreement to pay any
sum, or deliver the same, or any other property, if any lottery ticket or
number of any ticket in any lottery shall prove fortunate or unfortunate, or
shall be drawn or not drawn, at any particular time, in any particular order,
or who promises or agrees to pay any sum of money, or deliver any goods,
things in action, or property, or forbear to do anything for the benefit of any
person, with or without consideration, upon any event or contingency
dependent on the drawing of any ticket in any lottery, or who publishes any
notice or proposal of any of the purposes aforesaid, is guilty of a misde-
meanor. [I.C.,
18-4906, as added by 1972, ch. 336, 1, p. 844.1
comprised S.L. 1911, ch. 147, 6, p. 452;
reen.C.L., 6859f; C.S.,
8322; I.C.A.,

17-
18-113.
Sec# to sec> ref< This section is referred to
m 18-7803
18-4907. Search, seizure, and confiscation.
All moneys and prop-

erty offered for sale or distribution in violation of any of the provisions of
this chapter are forfeited to the state. And whenever any judge or justice of
the peace shall have knowledge or receive satisfactory information of the
violation of any of the provisions of this chapter within his district or county,
it shall be his duty forthwith to issue his warrant, directed to the sheriff or
constable, to seize and bring before him such moneys and property offered
for sale or distribution. And, upon the conviction of any person or persons for
violation of any of the provisions of this chapter, any property so seized as
above provided in this section, shall be sold by the sheriff or constable at
public auction and the proceeds thereof paid over to the county treasurer of
said county for the county school fund. [I.C.,

18-4907, as added by 1972,
ch.
336, 1, p. 844.]
Compiler's notes. A former section, which 143, 5, effective January 1, 1972, and the
comprised S.L. 1911, ch. 147, 7, p. 452; present section added by S.L. 1972, ch. 336,
reen. C.L.,

6859h; C.S.,
8324; I.C.A., 1 in the same words as the section prior to
17-2409, was repealed by S.L. 1971, ch. its repeal.
18-4908. Permitting premises to be used for lottery.

Every
person who lets, or permits to be used, any building or vessel, or any portion
thereof, knowing that it is to be used for setting up, managing or drawing
any lottery, or for the purpose of selling or disposing of lottery tickets, is
18-4908, as added by 1972, ch. 336, 1, p.
844.]
reen. C.L.,
6859g; C.S.,
18-113.
18-7803.
The provisions of this chapter shall not apply

to government land drawings, or to Carey act land drawings, or to the
partitioning or division of real property and improvements thereon between
joint owners or tenants in common by lot or any other method that such joint
owners or tenants in common or their representative may agree upon. The
provisions of this chapter shall not apply to advertising and promotional
activities, whether or not conducted by mass media techniques, in which
459 MAYHEM 18-5003
prizes may be awarded. [I.C.,
18-4909, as added by 1972, ch. 336, 1, p.
844; am. 1976, ch. 174, 1, p. 636.]
Compiler's notes. A former section, which 143, 5, effective January 1, 1972, and the
comprised S.L. 1911, ch. 147, 9; p. 453; present section added by S.L. 1972, ch. 336,
reen. C.L.,

6859a; C.S.,
8317; I.C.A., 1 restored the subject matter contained in
17-2402, was repealed by S.L. 1971, ch. the section as it existed prior to its repeal.
CHAPTER 50
MAYHEM
SECTION. SECTION.
18-5001. Mayhem defined. 18-5003. Cannibalism defined Punish-
18-5002. Punishment for mayhem. ment.
18-5001. Mayhem defined.

Every person who unlawfully and ma-
liciously deprives a human being of a member of his body, or disables,
disfigures or renders it useless, or cuts out or disables the tongue, puts out
an eye, slits the nose, ear or lip, is guilty of mayhem. [I.C.,

18-5001, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which Teeth.
At common law, to knock out unlawfully
C.L., 6577; C.S.,
6577; C.S.,
8222;
one's front tooth constituted "mayhem." Olson
I.C.A.,
v. Union Pac. R.R., 62 Idaho 423, 112 R2d
1005 (1941).
Mayhem and Related Offenses,
1 et seq.
*J
C J.S., Mayhem
1
et seq.
-,
A lx
.., . , ., Mayhem as dependent on part of body in-
Cross ref. Assault with intent to commit . ,
J
, , .
r
-
i/-ATr>r>rcro
i. cio r,
jured and extent of injury. 16 A.L.R. 955; 58
mayhem,

18-907.
A L R 1320
Juvenile charged with mayhem, when pro-
Mayhem by use of poison or acid. 58 A.L.R.
ceeded against as an adult,

20-509.
^323
Consent as defense to charge of mayhem.
in

18-310, 19-2520, 19-5307 and 19-5506.
86 A.L.R.2d 268.
18-5002. Punishment for mayhem.

Mayhem is punishable by
imprisonment in the state prison not exceeding fourteen years. [I.C.,
18-5002, as added by 1972, ch.

336, 1, p. 844.]
C.L.,
6578; C.S., 8223; I.C.A.,

17-1302, same words as the section prior to its repeal.
18-5003. Cannibalism defined

Punishment.

(1) Any person
who wilfully ingests the flesh or blood of a human being is guilty of
cannibalism.
(2) It shall be an affirmative defense to a violation of the provisions of this
section that the action was taken under extreme life-threatening conditions
as the only apparent means of survival.
(3)
Cannibalism is punishable by imprisonment in the state prison not
exceeding fourteen
(14) years.
B.C.,
18-5003, as added by 1990, ch. 210,
2, p. 467.]
18-1506A in
18-310.
and 19-402, respectively.
CHAPTER 51
MILITARY PROPERTY
SECTION.
18-5101. Selling military supplies of state. [Repealed.]
comprised I.C., 18-5101, as added by 1972, ch. 319,
1.
CHAPTER 52
MONOPOLIES AND COMBINATIONS
SECTION,
18-5201. [Repealed.!
18-5201. Combinations in restraint of trade. [Repealed.]
Compiler's notes. Former 18-5201, 1909, p. 297,
1-3; reen. C.L., 7129; C.S.,
which comprised I.C., 18-5201, as added by 8512; I.C.A.,
1972, ch. 336, 1, p. 844., was repealed by S.L. 1971, ch. 143, 5, effective January 1,
1972.
A former section, which comprised S.L.
CHAPTER 53
OPIUM SMOKING
SECTION.
18-5301
18-5301

18-5303. Resorts for smoking and sale of opium

Purchasing opium for smoking

Frequenting re-
sorts. [Repealed.]
Compiler's notes. Former chapter 53, April 1, 1972. For present law see the Uni-

18-5301
18-5303 form Controlled Substances Act,

37-2701
as added by S.L. 1972, ch. 336,
1 was 37-2751.
CHAPTER 54
PERJURY AND SUBORNATION OF PERJURY
SECTION. SECTION.
18-5401. Perjury denned. 18-5405. Incompetency of witness no de-
18-5402. Oath denned. fense.
18-5403. Oath of office
Portion relating to 18-5406. Ignorance of materiality no defense.

future duties not included. 18-5407. Deposition, when complete.
18-5404. Irregularity in administering oath 18-5408. Unqualified statement of unknown
no defense. fact.
461 PERJURY AND SUBORNATION OF PERJURY 18-5401
SECTION.
18-5409. Punishment for perjury.
18-5410. Subornation of perjury.
18-5411. Perjury resulting in execution of in-
nocent person.
18-5412. Defendant's testimony may be used
to prove perjury.
18-5413. Providing false information to law
enforcement officers, govern-
ment agencies, or specified
professionals.
18-5414. Intentionally making false state-
ments.
18-5401. Perjury defined.
Every person who, having taken an oath

that he will testify, declare, depose, or certify truly, before any competent
tribunal, legislative committee, officer, or person in any of the cases in which
such an oath may by law be administered, wilfully and contrary to such
oath, states as true any material matter which he knows to be false, is guilty
of perjury. [I.C.,
18-5401, as added by 1972, ch.
336, 1, p. 844; am. 1995,
ch. 232, 5, p. 787.]
C.L., 6478; C.S., 8160; I.C.A.,
17-906
compiled as

67-410 and 67-411A, respec-
tively.
Cross ref. Electoral qualifications, swear-
ing falsely as to, after challenge,
18-2302.
Informer in bribery cases may be prose-
cuted for perjury,
48-1308.
Punishment for perjury, 18-5409.
Voters, swearing falsely as to electoral qual-
ifications after challenge,
18-2302.
See subdivision "perjury" in table of cross
references to penal provisions in other vol-
umes at the end of this volume.
in 19-2716, 67-411A.

18-5403,
18-7803 and 63-703.
Analysis
Consolidated actions.
Material matter.
Subornation of perjury.
Sufficiency of indictment.
Consolidated Actions.
Where, at the beginning of a civil contempt
proceeding based on the defendant father's
failure to pay child support, the magistrate
made it clear that he was going to treat a
companion reciprocal action as being consoli-
dated with the contempt action, and the de-
fendant father failed to object to the consoli-
dation, the father continued to be answerable
for the oath that he gave during the contempt
proceeding; thus, the father's conviction of
perjury based upon an untruthful answer
that he gave in the reciprocal action was valid
even though the oath was not readministered
to him prior to his testifying in the reciprocal
action. State v. Aguilar, 103 Idaho 578, 651
P.2d 512 (1982).
Material Matter.
Statements made in an examination under
oath of a defendant in a presentence hearing
after a plea of guilty are "material matters."
State v. Martinez, 89 Idaho 232, 404 P.2d 573
(1965).
That defendant was in Payette, Idaho, on
July 4, and not in Ft. Worth, Texas, as he had
testified, was material to the issue of his guilt
at his lewd conduct trial, even though Payette
was still miles away from the location of the
alleged crime. State v. McBride, 123 Idaho
263, 846 P2d 914 (Ct. App. 1993).
A false statement usually will support a
charge of perjury if it is material to any
proper point of inquiry, and if it is calculated
and intended to bolster the witness' testimony
on some material point or to support or attack
his credibility. State v. McBride, 123 Idaho
263, 846 P2d 914 (Ct. App. 1993).
Subornation of Perjury.
The offense of suborning perjury is com-
prised of a corrupt agreement to testify
falsely, followed by the willful giving of mate-
rial testimony which the witness and pro-
curer know to be false; thus, attempted sub-
ornation couples an intent to procure material
and false testimony with the act of soliciting
an agreement to testify falsely, although such
testimony ultimately is not given. State v.
1984).
Sufficiency of Indictment.
Indictment for perjury which states that
defendant on his oath "falsely, wickedly, and
feloniously did say, swear, etc." is sufficient
without the word "knowingly." Territory v.
Anderson, 2 Idaho (Hasb.) 573, 21 P. 417
(1911).
Perjury, 1 et seq.
70 C.J.S., Perjury, 1 et seq.
Fear or compulsion, false statement made
under, as perjury. 4 A.L.R. 1319.
Aliens, perjury as ground for collateral at-
tack on order admitting to citizenship. 6
A.L.R. 410.
Perjury in verifying pleadings. 7 A.L.R.
1283.
Attorneys, commission of perjury as ground
for disbarment or suspension of. 9 A.L.R. 200;
43 A.L.R. 110.
Privilege against self-incrimination as af-
fecting admissibility in prosecution for per-
jury of testimony given before grand jury. 27
A.L.R. 151.
Entrapment to commit offense. 66 A.L.R.
508; 86 A.L.R. 263.
Evidence, admissibility in prosecution for
perjury of judgment in civil case. 87 A.L.R.
1267.
Marriage license, perjury as predicated
upon statements upon application for. 101
A.L.R. 1263.
Administrative requirement, oath taken in
pursuance of, as predicate for criminal offense
of perjury. 108 A.L.R. 1240.
Procuring perjury as contempt. 29 A.L.R.2d
1157.
Materiality of testimony assigned as per-
jury as questioned for court or jury. 62
A.L.R.2d 227.
Subornation of perjury prosecution: Admis-
sibility of evidence of alleged perjurer's plea of
guilty to charge of perjury. 63 A.L.R.2d 825.
Correction of false testimony, effect of, or of
attempt to make. 64 A.L.R.2d 276.
Recantation as defense in perjury prosecu-
tion. 64 A.L.R.2d 276.
Statement of belief or opinion as perjury. 66
A.L.R.2d 791.
Circumstantial evidence, conviction of per-
jury where one or more of elements is estab-
lished solely by. 88 A.L.R.2d 852.
Perjury or false swearing as contempt. 89
A.L.R.2d 1258.
Actionability of conspiracy to give or to
procure false testimony or other evidence. 31
A.L.R.3d 1423.
Invalidity of statute, or ordinance giving
rise to proceedings in which false testimony
was received as defense for prosecution for
perjury. 34 A.L.R.3d 413.
Offense of perjury as affected by question
relating to jurisdiction of court before which
testimony was given. 36 A.L.R.3d 1038.
Incomplete, misleading, or unresponsive
but literally true statement is perjury. 69
A.L.R.3d 993.
What constitutes corruption, fraud, or un-
due means in obtaining arbitration award
justifying avoidance under state law. 22
A.L.R.4th 366.
18-5402. Oath defined.
The term "oath" as used in the last section

includes an affirmation, and every other mode authorized by law of attesting
the truth of that which is stated. [I.C.,
18-5402, as added by 1972, ch. 336,
1, p.
844.]
C.L., 6479; C.S., 8161; I.C.A.,
17-907
Informal Oath Sufficient.
Testimony of deputy that after he had
signed the complaint the justice asked him "if
that was the true facts as I knew it" and in
answering that it was he felt in conscience he
had taken on the obligation of the oath, was a
sufficient compliance with the former statute
even though there was no formal administra-
tion of the oath, the deputy not having raised
his hand or taken a verbal oath to the truth of
the statements made in the complaint. State
v. Parker, 81 Idaho 51, 336 P.2d 318 (1959).
18-5403. Oath of office

Portion relating to future duties not
included.

So much of an oath of office as relates to the future
performance of official duties is not such an oath as is intended by the two
(2) preceding sections. [I.C.,
18-5403, as added by 1972, ch. 336, 1, p.
844.]
8162; I.C.A.,
463 PERJURY AND SUBORNATION OF PERJURY 18-5408
18-5404. Irregularity in administering oath no defense.
It is no
defense to a prosecution for perjury that the oath was administered or taken
in an irregular manner. [I.C.,

18-5404, as added by 1972, ch. 336, 1, p.
844,]
8163; I.C.A.,
18-5405. Incompetency of witness no defense.
It is no defense to
a prosecution for perjury that the accused was not competent to give the
testimony, deposition or certificate of which falsehood is alleged. It is
sufficient that he did give such testimony or make such deposition or
certificate. [I.C.,

18-5405, as added by 1972, ch.
336, 1, p. 844.]
6482; C.S., ch. 336, 1 in the same words as the section
8164; I.C.A.,

18-5406. Ignorance of materiality no defense.
It is no defense to
a prosecution for perjury that the accused did not know the materiality of
the false statement made by him; or that it did not, in fact, affect the
proceeding in or for which it was made. It is sufficient that it was material,
and might have been used to affect such proceeding. [I.C.,

18-5406, as
added by 1972, ch,
336, 1, p. 844.]
8165; I.C.A.,

18-5407. Deposition, when complete.
The making of a deposition

or certificate is deemed to be complete, within the provisions of this chapter,
from the time when it is delivered by the accused to any other person, with
the intent that it be uttered or published as true. [I.C.,
18-5407, as added
by 1972, ch.
336, 1, p. 844.]
6484; C.S., ch. 336, 1 in the same words as the section
8166; I.C.A.,

18-5408. Unqualified statement of unknown fact.
An unqualified
statement of that which one does not know to be true is equivalent to a
statement of that which one knows to be false. [I.C.,

1972, ch.
336, 1, p. 844.]
comprised R.S., R.C. & C.L., 6485; C.S.,
8167; I.C.A.,
Jury Instructions.
A jury instruction which recited the lan-
guage of this section did not create a conclu-
sive presumption of criminal intent. State v.
McBride, 123 Idaho 263, 846 P.2d 914 (Ct.
App. 1993).
18-5409. Punishment for perjury.
Perjury is punishable by impris-

onment in the state prison not less than one (1) or more than fourteen (14)
years. [I.C.,
18-5409, as added by 1972, ch. 336, 1, p. 844.]
comprised Cr. & P. 1864; 90; R.S., R.C, &
C.L., 6486; C.S., 8168; I.C.A., 17-914 was
18-5410. Subornation of perjury.

Every person who wilfully pro-
cures another person to commit perjury is guilty of subornation of perjury,
and is punishable in the same manner as he would be if personally guilty of
the perjury so procured. [I.C.,
18-5410, as added by 1972, ch. 336, 1, p.
844.1
comprised Cr. & P. 1864, 90; R.S., R.C, &
C.L., 6487; C.S., 8169; I.C.A.,
17-915
in 18-7803.
Analysis
Discontinuance of attempt.
Discontinuance of Attempt.
Where the evidence did not establish when,
if ever, the subornation attempt actually was
discontinued, the jury permissibly could have
found that the defendant never withdrew his
offer to pay whatever the witness wanted for
favorable testimony, and discontinuing the
attempt after it had been made and had failed
would not take the case outside 18-306, the
general attempt statute. State v. Gibson, 106
Idaho 491, 681 P.2d 1 (Ct. App. 1984).
The offense of suborning perjury is com-
prised of a corrupt agreement to testify
falsely, followed by the willful giving of mate-
rial testimony which the witness and pro-
curer know to be false; thus, attempted sub-
ornation couples an intent to procure material
and false testimony with the act of soliciting
an agreement to testify falsely, although such
testimony ultimately is not given. State v.
Gibson, 106 Idaho 491, 681 P. 2d 1 (Ct. App.
1984).
Where the evidence in a prosecution for
attempted subornation of perjury showed
that the defendant had called a witness in a
pending felony case against him, had offered
the witness a sum of money, and had in-
structed the witness on how to testify at the
criminal trial, the defendant's actions consti-
tuted the perpetration of the crime of at-
tempted subornation, not merely the prepara-
tion or solicitation of the crime. State v.
1984).
Collateral References. Entrapment as
defense to prosecution for attempted suborna-
tion of perjury. 18A.L.R. 191.
18-5411. Perjury resulting in execution of innocent person.

Every person who, by wilful perjury or subornation of perjury procures the
conviction and execution of any innocent person, is punishable by death.
[I.C.,

18-5411, as added by 1972, ch. 336, 1, p. 844.]
465 POISONINGS
DENATURED ALCOHOL 18-5501

C.L.,
6488; C.S., 8170; I.C.A.,

17-916
18-5412. Defendant's testimony may be used to prove perjury.
The various sections of this code which declare that evidence obtained upon
the examination of a person as a witness cannot be received against him in
any criminal proceeding, do not forbid such evidence^, being proved against
such person upon any proceedings founded upon a charge of perjury
committed in such examination. [I.C.,

18-5412, as added by 1994, ch. 167,
2, p. 374.]
ch. 167 contained repeals and 3 is compiled
as
18-6405.
18-5413. Providing false information to law enforcement officers,
government agencies, or specified professionals.

(1) A person is
guilty of a misdemeanor if he knowingly gives or causes to be given false
information to any law enforcement officer, any state or local government
agency or personnel, or to any person licensed in this state to practice social
work, psychology or counseling, concerning the commission of an offense,
knowing that the offense did not occur or knowing that he has no informa-
tion relating to the offense or danger.
(2) Aperson is guilty of a misdemeanor if he knowingly gives or causes to
be given false information regarding his or another's identity to any law
enforcement officer investigating the commission of an offense. [I.C.,

18-
5413, as added by 1995, ch. 275, 2, p. 923; am. 1998, ch. 425, 1, p. 1342.]
ch. 275 is compiled as 32-717C.
18-5414. Intentionally making false statements.

A person is
guilty of a misdemeanor if he willfully and intentionally gives or causes to
be given false information to any court, court personnel, court clerk or any
state or local government agency or personnel in the application or request
for a domestic violence protective order pursuant to chapter 63, title 39,
Idaho Code. [I.C.,

18-5414, as added by 1996, ch. 173, 1, p. 557.]
CHAPTER 55
POISONINGS
DENATURED ALCOHOL
SECTION. SECTION.
18-5501. Poisoning food, medicine or wells. 18-5503. Punishment for violation of preced-
18-5502. Denatured alcohol

Regulation of ing section,
sale and transfer.
18-5501. Poisoning food, medicine or wells.

Every person who
wilfully mingles any poison with any food, drink or medicine, with intent
that the same shall be taken by any human being, to his injury, and every
person who wilfully poisons any spring, well, or reservoir of water, is
punishable by imprisonment in the state prison for a term of not less than
one (1) nor more than ten (10) years. [I.C.,

18-5501, as added by 1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which Collateral References. 72 C.J.S., Poi-
comprised Cr. & P. 1864, 56; R.S., R.C., & sons,
1 et seq.
C.L., 6861; I.C.A.,
17-2002 was repealed Seller ofarticle not inherently dangerous as
liable for poisoning of buyer. 13 A.L.R. 1176;
74 A.L.R. 343; 168 A.L.R. 1054.
Hospital's liability for injuries to, or death
of, patient from poison. 22 A.L.R. 352; 39
A.L.R. 1431; 124 A.L.R. 186.
Physician's competency to testify as expert
concerning effect of poison in food. 47 A.L.R.
Cross ref. Administering poison with in-
la-
tent to kill
18-4014
Admissibility, in prosecution for illegal sale
Sec. to sec. ref. This section is referred to /
{
^f^
e
liquor
'
of other sales
-
40
in
18-7803, 18-7905 and 19-5307.
A.L.R.2d 817.
Entrapment to commit offense against laws
Evidence. regulating sales of liquor. 55 A.L.R.2d 1322.
Poison record of drug store is admissible Qualifications of chemist or chemical engi-
after identification of accused, to show that he neer to testify as to effect of poison upon
made purchase on certain day. State v. human body. 70 A.L.R.2d 1029.
Healey, 45 Idaho 73, 260 P. 694 (1927). Criminal liability for death resulting from
State chemist with fifteen years' experience unlawfully furnishing intoxicating liquor or
who has made analysis of bottle is competent drugs to another. 32 A.L.R.3d 589.
witness as to its contents. State v. Healey, 45 Liability for injury caused by spraying or
Idaho 73, 260 P. 694 (1927). dusting of crops. 37 A.L.R.3d 833.
18-5502. Denatured alcohol
Regulation of sale and transfer.
Denatured alcohol may be sold, given away, or transferred, in this state by

any registered pharmacists, or other person. It shall be unlawful for any
person to sell, give away, or transfer, denatured alcohol, preparations or
compounds thereof, in any quantity, unless the container from which such
denatured alcohol, preparation or compound thereof, is taken and the
container in which it is delivered to the purchaser or transferee, has thereon
printed in red ink the words "Denatured Alcohol," "Caution," "Poison," the
name and address of the vendor or transferor, the percentage strength of
grain alcohol in the contents of the container, the names of at least two
readily obtainable antidotes, and the words "must not be used externally or
internally," and the following caution as required by the United States
government:
"Completely denatured alcohol is a violent poison. It can not be applied
externally to human or animal tissue without seriously injurious results. It
can not be taken internally without inducing blindness and general physical
decay, ultimately resulting in death."
Provided nothing herein contained shall prohibit the transfer of dena-
tured alcohol, preparation or compound thereof, direct from a container,
labeled as above provided, to the radiator of any motor vehicle for anti-freeze
purposes. [I.C.,

18-5502, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1925, ch. 11, 1, p. 12; I.C.A.,
467 PROSTITUTION 18-5601
its repeal.

Any
person or persons violating any of the provisions of this act shall be guilty of
a misdemeanor and, upon conviction thereof, shall be punished by a fine not
exceeding five hundred dollars ($500.00), or by imprisonment in the county
jail not exceeding six months
(6),
or by both such fine and imprisonment.
[I.C.,

18-5503, as added by 1972, ch. 336, 1, p. 844.1
comprised S.L. 1925, ch. 11, 2, p. 12; I.C.A.,

its repeal.
CHAPTER 56
PROSTITUTION
SECTION.
18-5601. Interstate trafficking in prostitu-
tion.
18-5602. Procurement
Definition and pen-

alty.
18-5603. Receiving pay for procurement.
18-5604. Paying for procurement.
18-5605. Detention for prostitution.
18-5606. Accepting earnings of prostitute.
18-5608. Harboring prostitutes.
SECTION.
18-5609.
18-5610.
18-5611.
18-5612.
18-5613.
18-5614.
Inducing person under eighteen
years of age into prostitution
Penalties.
[Repealed.]
years of age to patronize a
prostitute
Penalties.
[Repealed.]
Prostitution.
Patronizing a prostitute.
18-5601. Interstate trafficking in prostitution.

Any person who
imports persons into this state, or who exports persons from this state, for
the purpose of prostitution, or any person who induces, entices or procures
such activity, shall be guilty of a felony punishable by imprisonment for a
period of not less than two
(2)
years nor more than twenty (20) years, or by
a fine of not less than one thousand dollars ($1,000),
nor more than fifty
thousand dollars ($50,000), or by both such fine and imprisonment. [I.C.,
672; am. 1994, ch. 130, 1, p. 291.]
comprised S.L. 1911, ch. 205, 1, p. 673;
reen. C.L, 6773; C.S., 8270; I.C.A.,
17-
Cross ref. Kidnapping,

18-4501 et seq.
Sec. to sec. ref. Sections 18-5601 18-
5610 are referred to in
18-7803.
33-1208.
Prostitution, 1 et seq.
73 C.J.S., Prostitution, 1 et seq.
Validity and construction of statute or ordi-
nance proscribing solicitation for purposes of
prostitution, lewdness, or assignation
mod-
ern cases. 77 A.L.R.3d 519.
Availability in state court of defense of
entrapment where accused denies commit-
ting acts which constitute offense charged. 5
A.L.R.4th 1128.
Entrapment defense in sex prosecutions. 12
A.L.R.4th 413.
Validity, construction, and application of
state statute forbidding unfair trade practice rebates, commissions, discounts or the like,
or competition by discriminatory allowance of 41 A.L.R.4th 675.
18-5602. Procurement

Definition and penalty.

Any person
who induces, compels, entices, or procures another person to engage in acts
as a prostitute shall be guilty of a felony punishable by imprisonment for a
period of not less than two (2) years nor more than twenty (20) years, or by
a fine of not less than one thousand dollars ($1,000) nor more than fifty
thousand dollars ($50,000),
or by both such fine and imprisonment. [I.C.,
672; am. 1994, ch. 130, 2, p. 291.]
comprised S.L. 1911, ch. 205, 2, 3, p. 673;
reen. C.L., 6774; C.S., 8271; I.C.A.,
17-
Cited in: State v. Fong Wee, 47 Idaho 416,
275 P. 1112 (1929); State v. Clark, 102 Idaho
693, 638 P.2d 890 (1981).
Analysis
Consent of woman.
Corroboration.
Information.
Intent.
Moral turpitude.
Sentence.
Consent of Woman.
This section is not limited to acts against
the will or consent of woman, since voluntary
as well as involuntary acts are defined in the
section and coercion and intimidation are not
necessary to render accused guilty. State v.
Bowman, 40 Idaho 470, 235 P. 577 (1925).
Corroboration.
Corroboration is not required for conviction
under this section when the victim is married
and over the age of 18 years. State v.
Rassmussen, 92 Idaho 731, 449 P.2d 837
(1969).
Information.
All that is necessary under this section is
that information is sufficient to inform defen-
dant of nature of charge against him and
description of offense with such particularity
as will serve to shield accused in case of
second prosecution for same offense. State v.
Bowman, 40 Idaho 470, 235 P. 577 (1925).
Intent.
It is intent with which woman is induced,
enticed, or procured to enter house of prosti-
tution which is gravamen of crime. State v.
Bowman, 40 Idaho 470, 235 P. 577 (1925).
Moral Turpitude.
Violation of this section as showing lack of
good moral character necessary to entitle per-
son to license to practice law. In re Dampier,
46 Idaho 195, 267 P. 452 (1928); In re Downs,
46 Idaho 464, 268 P. 17 (1928).
Sentence.
Where a defendant was convicted on one
count of inducing a woman for the purpose of
prostitution and on five counts of accepting
the earnings of a prostitute, and he was
sentenced to indeterminate periods of up to
three years on each of the six counts, to run
concurrently, the trial court did not abuse its
discretion since the sentence fell well within
the statutory maximum of 20 years' confine-
ment for each offense, and the general rule is
that if a sentence is within the limits pre-
scribed by statute, it will not be disturbed
unless the defendant affirmatively shows a
"clear abuse" of discretion. State v. Wolf, 102
Idaho 789, 640 P.2d 1190 (Ct. App. 1982).
18-5603. Receiving pay for procurement.
Any person who know-

ingly receives money or any object of value to procure a prostitute shall be
guilty of a felony punishable by imprisonment for a period of not less than
two (2) years nor more than twenty (20) years, or by a fine of not less than
one thousand dollars ($1,000) nor more than fifty thousand dollars
($50,000), or by both such fine and imprisonment. [I.C.,

18-5603, as added
by 1972, ch.
336, 1, p. 844; am. 1981, ch. 324, 3, p. 672; am. 1994, ch.
130, 3, p. 291.]
comprised S.L. 1911, ch. 205, 4, 6, p. 673; same words as the section prior to its repeal.
C.L., 6775; C.S., 8272; I.C.A.,
17-1703 Cited in: State v. Clark, 102 Idaho 693, 638
P.2d 890 (1981).
18-5604. Paying for procurement.
Any person who pays another

money or any object of value to procure a third person to engage in
prostitution shall be guilty of a felony punishable by imprisonment for not
less than two (2)
years nor more than twenty (20) years, or by a fine of not
less than one thousand dollars ($1,000) nor more than fifty thousand dollars
($50,000),
or by both such fine and imprisonment. [I.C.,

18-5604, as added
by 1972, ch. 336, 1, p. 844; am. 1981, ch. 324, 4, p. 672; am. 1994, ch.
130, 4, p. 291.]
comprised S.L. 1911, ch. 205, 5, p. 673; section added by S.L. 1972, ch. 336, 1 in the
reen. C.L., 6776; C.S., 8273; I.C.A.,

17-
18-5605. Detention for prostitution.

Anyone who holds, detains,
or restrains, or who attempts to hold, detain or restrain another person for
the purpose of compelling such person to engage in prostitution shall be
guilty of a felony punishable by imprisonment for not less than two
(2)
years
nor more than twenty (20) years, or by a fine of not less than one thousand
dollars ($1,000) nor more than fifty thousand dollars ($50,000), or by both

18-5605, as added by 1972, ch. 336,
1, p. 844; am. 1981, ch. 324, 5, p. 672; am. 1994, ch. 130, 5, p.
291.]
comprised S.L. 1911, ch. 205, 7, p. 673; section added by S.L. 1972, ch. 336, 1 in the
reen. C.L., 6777; C.S* 8274; I.C.A.,

17-
18-5606. Accepting earnings of prostitute.

(1) Any person who
shall knowingly accept or appropriate any money or item of value from the
proceeds or earnings of any person engaged in prostitution as part of a joint
venture with such person shall be guilty of a felony punishable by impris-
onment for a period of not less than two (2)
years nor more than twenty (20)
years, or by a fine of not less than one thousand dollars ($1,000) nor more
than fifty thousand dollars ($50,000), or by both such fine and imprison-
ment.
(2) As defined in this section "joint venture" is an undertaking by two (2)
or more persons jointly to carry out a single business enterprise involving
one or more transactions for profit. Such joint venture can be created by oral
agreement or may be inferred from acts or conduct. [I.C.,

18-5606, as
added by 1972, ch. 336, 1, p. 844; am. 1981, ch. 324, 6, p. 672; am. 1994,
ch.
130, 6, p. 291.]
Compiler's notes. Aformer section, which reen. C.L., 6778; C.S., 8275; I.C.A.,
17-
comprised S.L. 1911, ch. 205, 8, p. 673; 1706 was repealed by S.L. 1971, ch. 143, 5,
Analysis
Consideration.
Validity of sentence.
Consideration.
The term "consideration" used in this sec-
tion prior to the 1981 amendment was not
meant to include services which were in-
tended to keep a woman in the business of
prostitution and which were proscribed as
felonious procurement by the legislature; ac-
cordingly, where the defendant maintained an
advertised place of business equipped with a
telephone from which to dispatch prostitutes,
maintained files and screened potential cus-
tomers and provided any necessary legal de-
fense for the prostitutes, he could not argue
that he knowingly accepted earnings of the
prostitutes as consideration for his services,
which would except him from the "without
consideration" language formerly contained
in this section. State v. Clark, 102 Idaho 693,
638 P. 2d 890 (1981) (decision prior to 1981
amendment).
Validity of Sentence.
Where a defendant was convicted on one
count of inducing a woman for the purpose of
prostitution and on five counts of accepting
the earnings of a prostitute, and he was
sentenced to indeterminate periods of up to
three years on each of the six counts, to run
concurrently, the trial court did not abuse its
discretion since the sentence fell well within
the statutory maximum of 20 years' confine-
ment for each offense, and the general rule is
that if a sentence is within the limits pre-
scribed by statute, it will not be disturbed
unless the defendant affirmatively shows a
"clear abuse" of discretion. State v. Wolf, 102
Idaho 789, 640 P2d 1190 (Ct. App. 1982).
18-5607. Living with, or on earnings of prostitute. [Repealed.]
18-5607,
1972, ch. 336, 1, p. 844; am. 1981, ch. 324,
prised S.L. 1911, ch. 205, 9, p. 673; compiled
and reen. C.L., 6779; C.S., 8276; I.C.A.,

18-5608. Harboring prostitutes.
Any person maintaining, control-

ling or supporting a house of prostitution as denned in this chapter, shall be
guilty of a felony punishable by imprisonment for not less than two (2)
years
nor more than twenty (20) years, or by a fine of not less than one thousand
dollars ($1,000) nor more than fifty thousand dollars ($50,000), or by both
18-5608, as added by 1972, ch. 336,
1, p. 844; am. 1981, ch. 324, 8, p. 672; am. 1994, ch. 130, 8, p. 291.1
comprised S.L. 1911, ch. 205, 10, p. 673;
reen. C.L., 6780; C.S., 8277; I.C.A.,
17-
18-5609. Inducing person under eighteen years of age into pros-
titution
Penalties.
Every person who induces or attempts to induce

a person under the age of eighteen (18) years to engage in prostitution shall
be guilty of a felony punishable by imprisonment in the state penitentiary
for a period of not less than two (2) years, which may be extended to life
imprisonment, or by a fine not exceeding fifty thousand dollars ($50,000),
or
by both such fine and imprisonment. [I.C.,

18-5609, as added by 1972, ch.
336, 1, p. 844; am. 1981, ch. 324, 9, p. 672; am. 1994, ch. 130, 9, p.
291.]
comprised R.S., R.C. & C.L., 6770; C.S.,
8267; I.C.A.,
1972, and the present section added by S.L. woman seduced must have been previously
1972, ch. 336, 1 in the same words as the chaste is inapplicable in civil action for dam-
section prior to its repeal. ages. Kralick v. Shuttleworth, 49 Idaho 424,
Cross ref. Interstate trafficking in prosti- 289 P. 74 (1930).
tution,

18-5601 18-5608.
Collateral References. Exhibition of
child in prosecution for seduction. 1 A.L.R.
622.
Analysis
Corroboration.
Reduction of appellate court of punishment
Seduction.
A.L.R. 295.
Corroboration.
For general discussion. 74 A.L.R. 311.
This section must be construed with

19-
Forgiveness or compromise as defense to
2115 and in a prosecution under this section
ecution for seduction. 80 A.L.R. 833.
the testimony of the prosecutrix must be
Qffer of marri as defense to prosecution
corroborated under the requirements of

19-
seduction. 80 A.L.R. 845.
2115. State v. Rassmussen, 92 Idaho 731, 449
XT
.. , . , , ,
P 2d 837 (1969)
Valid marriage between prosecutrix and
defendant, facts preventing, as defense. 85
Seduction.
A.L.R. 123.
The rule applied in criminal case that
18-5610. Abduction of person under eighteen years of age for
prostitution
Penalties. [Repealed.]
Compiler's notes. Former 18-5610, Another former 18-5610, which com-
which comprised I.C., 18-5610, as added by prised R.S., R.C., & C.L.,
6771; C.S.,
1972, ch. 336, 1, p. 844; am. 1981, ch. 324,
8268; I.C.A., 17-1607 was repealed by S.L.
18-5611. Inducing person under eighteen years of age to patron-
ize a prostitute
Penalties.
Any person who induces or attempts to

induce a person under the age of eighteen (18) years to patronize a
prostitute shall be guilty of a felony. [I.C.,

18-5611, as added by 1972, ch.
336, 1, p. 844; am. 1994, ch. 130, 11, p. 291.]
6772; C.S.,
8269; I.C.A.,

18-113.
S.L. 1971, ch. 143, 5,
f pandering statutes. 74 A.L.R. 312.
18-5612. Disorderly houses
Penalty for keeping. [Repealed.]

6842; C.S.,
1972, ch. 336, 1, p. 844, was repealed by 8305; I.C.A.,
1,
1994. 1972.
18-5613. Prostitution.
(1) Aperson is guilty of prostitution when he

or she: (a) engages in or offers or agrees to engage in sexual conduct, or
sexual contact with another person in return for a fee; or (b) is an inmate of
a house of prostitution; or (c) loiters in or within view of any public place for
the purpose of being hired to engage in sexual conduct or sexual contact.
(2) Prostitution is a misdemeanor, provided, however, that on a third or
subsequent conviction for prostitution, it shall be a felony.
(3)
Definitions:
(a) "Sexual conduct" means sexual intercourse or deviate sexual inter-
course.
(b) "Sexual contact" means any touching of the sexual organs or other
intimate parts of a person not married to the actor for the purpose of
arousing or gratifying the sexual desire of either party.
(c) "House of prostitution" means a place where prostitution or promotion
of prostitution is regularly carried on by one (1) or more persons under the
control, management or supervision of another.
(d) "Inmate" means a person who engages in prostitution in or through an
agency of a house of prostitution.
(e) "Public place" means any place to which the public or any substantial
group thereof has access. [I.C.,

18-5613, as added by 1977, ch. 175, 2,
p. 450.]
Compiler's notes. Former 18-5613 Cross ref. Penalty for misdemeanor not
which comprised 1972, ch. 381, 19, p. 1102; otherwise provided,
18-113.
am. 1973, ch. 15, 1, p. 31 was repealed by Penalty for felony not otherwise specified,
S.L. 1977, ch. 175, 1.
18-112.
Definitions. duct. State v. Lopez, 98 Idaho 581, 570 P.2d
There is no longer in Idaho a traditional 259 (1976).
definition of prostitution since the former law The former section concerning prostitution
regarding prostitution section clearly reflects failed to use clear, unambiguous language to
a legislative attempt to redefine prostitution define the term "prostitution" and, conse-
more expansively with application to male as quently, was void for vagueness under Idaho
well as female and to include a proscription Const., Art. I, 13. State v. Lopez, 98 Idaho
against homosexual and other deviate con- 581, 570 P.2d 259 (1976).
18-5614. Patronizing a prostitute.
(1) Aperson is guilty of patron-

izing a prostitute when he or she:
(a) Pays or offers or agrees to pay another person a fee for the purpose of
engaging in an act of sexual conduct or sexual contact;
(b) Enters or remains in a house of prostitution for the purpose of
engaging in sexual conduct or sexual contact.
(2) Patronizing a prostitute is a misdemeanor, provided that a third or
subsequent conviction therefor shall be a felony. [I.C.,
18-5614, as added
by 1977, ch. 175, 3, p. 450; am. 1994, ch. 130, 13, p. 291.]
Cross ref. Penalty for misdemeanor not
otherwise provided,
18-113.
CHAPTER 57
PUBLIC FUNDS AND SECURITIES
SECTION. SECTION.
18-5701. Misuse of public money by officers. 18-5704. Failure of officer to account for fines
18-5702. Failure to keep and pay over money. or costs.
18-5703. Public moneys defined.
473 PUBLIC FUNDS AND SECURITIES 18-5701
18-5701. Misuse of public money by officers.
Each officer of this

state, or of any county, city, town or district of this state, and every other
person charged with the receipt, safe keeping, transfer or disbursement of
public moneys, who either:
1. Without authority of law, appropriates the same or any portion thereof
to his own use, or to the use of another; or,
2. Loans the same or any portion thereof; or, having the possession or
control of any public money, makes a profit out of, oroises the same for any
purpose not authorized by law; or,
3. Fails to keep the same in his possession until disbursed or paid out by
authority of law; or,
4. Deposits the same or any portion thereof in any bank, or with any
banker or other person, otherwise than on special deposit, or as otherwise
authorized by law; or,
5. Changes or converts any portion thereof from coin into currency, or
from currency into coin or other currency, without authority of law; or,
6. Knowingly keeps any false account, or makes any false entry or
erasure in any account of or relating to the same; or,
7. Fraudulently alters, falsifies, conceals, destroys or obliterates any such
account; or,
8. Wilfully refuses or omits to pay over, on demand, any public moneys in
his hands, upon the presentation of a draft, order or warrant drawn upon
such moneys by competent authority; or,
9. Wilfully omits to transfer the same when such transfer is required by
law; or,
10. Wilfully omits or refuses to pay over to any officer or person autho-
rized by law to receive the same, any money received by him under any duty
imposed by law sc^to pay over the same;
Is punishable by imprisonment in the state prison for not less than one (1)
nor more than ten (10) years, and is disqualified from holding any office in
this state. [I.C.,

18-5701, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. Aformer section, which Idaho 284, 55 P. 662 (1898); Blaine County v.
comprised Cr. & P. 1864, 70; R.S., 6975; Fuld, 31 Idaho 358, 171 P. 1138 (1918); City of
R.C., & C.L., 6975; C.S., 8379; I.C.A., Pocatello v. Fargo, 41 Idaho 432, 242 P. 297

(1925); State v. Smith, 48 Idaho 558, 283 P.
529 (1929); City of St. Anthony v. Mason, 49
Idaho 717, 291 P. 1067 (1930); Bannock
County v. Citizens' Bank & Trust Co., 53
its repeal.
Idaho 159, 22 P2d 674 (1933); Fidelity &
Deposit Co. v. Mason, 55 Idaho 397, 42 P.2d
486 (1935); Independent Sch. Dist. No. 1
v.
Diefendorf, 57 Idaho 191, 64 P.2d 393 (1937);
Cross ref. Depositories for public funds,
State v
-
Ta
y
lor
>
59 Idaho 724
>
87 R2d 454
57-101 et seq.
(1939).
State voucher, making of a false certificate
Analysis
on, a felony,

18-2706, 67-2013.
See subdivision "public officers" in table of Auditor of state,
cross references to penal provisions in other Construction,
volumes at the end of this volume. Embezzlement.
Sec. to sec. ref. This section is referred to Intent,
in

18-5703. Liability of bank.
Cited in: Bingham County v. Woodin, 6 Treasurer of irrigation district.
Auditor of State.
State auditor in official capacity is not cus-
todian of public moneys within meaning of
this section. In re Huston, 27 Idaho 231, 147
P. 1064 (1915).
Construction.
The "public moneys" defined in
18-5703
include all of the moneys which came into the
hands of the defendant justice of the peace in
his official capacity and
31-3016 (repealed)
required all fees and costs received by defen-
dant in both civil and criminal cases to be
transmitted to the county treasurer and
19-
4701 likewise required fines, forfeitures and
costs to be remitted to the county treasurer.
State v. Bell, 84 Idaho 153, 370 P.2d 508
(1962).
Embezzlement.
This section was intended for punishment
of that particular class of public officers who,
being charged with custody of public funds,
embezzle same in violation of their trust. In re
Huston, 27 Idaho 231, 147 P. 1064 (1915).
Act of highway district treasurer in leaving
funds in bank, when he should have called
and paid warrants with it, is an appropriation
to his own use or use of another and for
purpose not authorized by law and in viola-
tion of provisions of this section. Buhl Hwy.
Dist. v. Allred, 41 Idaho 54, 238 P. 298 (1925).
Intent.
It is not necessary to establish guilt that
there be any intent on part of defendant in
making the prohibited deposit to cheat,
wrong, or defraud county. State v. Browne, 4
Idaho 723, 44 P. 552 (1896).
This section does not hold public officer
criminally responsible for an honest mistake
in drawing warrants on public money. In re
Huston, 27 Idaho 231, 147 P. 1064 (1915).
There was no conflict between the former
section and former
18-5704 and they were
not inconsistent. The former section defined a
felony and the word "wilfully" as used therein
meant "knowingly" or "intentionally" and did
not encompass inadvertence or mistake.
Former
18-5704 defined a misdemeanor
and included cases of inadvertence and mis-
take. State v. Bell, 84 Idaho 153, 370 P2d 508
(1962).
Liability of Bank.
Where money is deposited in bank gener-
ally by state treasurer in violation of this
section, the bank nevertheless receives the
money on special deposit as a trust fund and
can not commingle it with money of the bank,
nor have its creditors any interest therein in
case of insolvency of the bank. State v. Thum,
6 Idaho 323, 55 P. 858 (1898).
Subdivision 4 of this section was not re-
pealed by the legislation commonly known as
the state and county depository law. In re
Bank of Nampa, Ltd., 29 Idaho 166, 157 P.
1117 (1916).
Statutes of state as well as decisions of
court become part of contract of special de-
posit at time same is made. Fidelity State
Bank v. North Fork Hwy. Dist., 35 Idaho 797,
209 P. 449, 31 A.L.R. 781 (1922).
Both officer and bank hold public funds in
trust; there is no authority to commingle such
funds with general funds of bank, but deposit
of these funds is special deposit under statute.
Fidelity State Bank v. North Fork Hwy. Dist.,
35 Idaho 797, 209 P. 449, 31 A.L.R. 781 (1922).
Mere fact that officer attempted to make
general deposit and that bank undertook to
treat it as such does not operate to change
character of deposit. Fidelity State Bank v.
North Fork Hwy. Dist., 35 Idaho 797, 209 P.
449, 31A.L.R. 781(1922).
Those agencies of the government not au-
thorized by law to deposit their funds in a
bank violate this section and a deposit made
by them is a trust fund entitled to preference
in the liquidation of the assets of the bank.
Independent Sch. Dist. No. 1 v. Diefendorf, 57
Idaho 191, 64 P.2d 393 (1937).
Treasurer of Irrigation District.
A treasurer of an irrigation district is a
"public officer," within the meaning of this
section. In re Bank of Nampa, Ltd., 29 Idaho
166, 157 P. 1117 (1916).
Moneys deposited by treasurer of irrigation
district or other public official in a bank
become a trust fund, not part of the estate of
bank, and must be so treated in case of
insolvency of bank. In re Bank of Nampa,
Ltd., 29 Idaho 166, 157 P. 1117 (1916); Fidel-
ity State Bank v. North Fork Hwy. Dist., 35
Idaho 797, 209 P. 449, 31 A.L.R. 781 (1922).
Public Officers and Employees, 1 et seq.
67 C.J.S., Officers, 1 et seq.
Liability of public officer for interest or
other earnings received on public money in
his possession. 5 A.L.R.2d 257.
18-5702. Failure to keep and pay over money.

Every officer
charged with the receipt, safe keeping or disbursement of public moneys
who neglects or fails to keep and pay over the same in the manner
prescribed by law, is guilty of felony [I.C.,
18-5702, as added by 1972, ch.
336, 1, p. 844.]
475 PUBLIC FUNDS AND SECURITIES 18-5703
C.L., 6976; C.S., 8380; I.C.A.,
17-3202
otherwise provided,
18-112.
Cited in: State v. Thum, 6 Idaho 323, 55 P.
858 (1898); In re Bank of Nampa, Ltd., 29
Idaho 166, 157 P. 1117 (1916); Bannock
County v. Citizens' Bank & Trust Co., 53
Idaho 159, 22 P.2d 674 (1933).
Analysis
Intent.
Liability of public officials.
Warden of penitentiary.
Intent.
Those entrusted with the care and safe-
keeping of public funds are held to strict
accountability for the safeguarding of same
and in compliance with the statutes govern-
ing the same; to sustain a conviction in a
criminal case more must be proven in connec-
tion with it than will justify recovery in a civil
suit. Bonneville County v. Standard Accident
Ins. Co., 57 Idaho 657, 67 P.2d 904 (1937);
(1939).
On the question of intent the jury should be
instructed that the intent mentioned in
18-
114 is not an intent to commit a crime but is
merely the intent to knowingly perform the
failure to perform the required act, herein the
act of receiving either actually or construc-
tively and the act of knowingly or through
criminal negligence not turning over the
money involved herein, or knowingly or
through criminal negligence failing to see
that the money, though only constructively
and not actually in appellant's possession,
was turned over to the state treasurer in
compliance with the statute. State v. Taylor,
59 Idaho 724, 87 P.2d 454 (1939).
In prosecutions under this section, there
must be by
18-114, what the legislature has
declared an essential of every offense, "union
or joint operation of act and intent," knowl-
edge and intent to do the act (not necessarily
commit a crime or do wrong), or criminal
negligence as above denned, and State v.
Browne, 4 Idaho 723, 44 P. 552 (1896), though
discussing an offense under the original of
18-5701, and the later cases construing
State v. Browne, supra, and others, make this
clear. State v. Taylor, 59 Idaho 724, 87 P.2d
454 (1939).
Liability of Public Officials.
A specific intent such as is necessary in
embezzlement, larceny, making false report
with intent to deceive, etc., is not an ingredi-
ent of an offense under section 18-5702 re-
quiring officials to account for public moneys.
State v. Taylor, 59 Idaho 724, 87 P. 2d 454
(1939).
Warden of Penitentiary.
The evidence on the part of the prosecution
showed that while warden of the penitentiary,
certain sums of money received from the sale
of produce from the prison farm came into the
hands of the chief clerk of the penitentiary
and were never turned over to the state
treasurer in compliance with 59-1014, or
otherwise. The state contended these were so
in the warden's possession under
20-306
(I.C.A. 1932, now repealed), that though there
was no contention he had actual possession
nor personally withheld the money or in-
tended to profit by the transaction, he should
have known of the derelictions of the chief
clerk and was so criminally negligent in con-
nection therewith as to be guilty under
18-
5702. The trial court refused admission of two
bonds of the chief clerk of the penitentiary;
one covering the period from February 6, 1933
to February 6, 1935, and the other period
from February 6, 1935 to February 6, 1937.
The latter bond covering the major portion of
the time during which the alleged derelictions
took place was pertinent and admissible as
bearing on the degree of care appellant should
have used under the duty imposed on him by
20-306 (I.C.A. 1932, now repealed), in the

care of the property and funds of the peniten-
tiary, not as absolving appellant but to aid the
jury in determining whether his conduct con-
stituted criminal negligence as defined in
State v. McMahan, 57 Idaho 240, 65 P.2d 156
(1937), and its rejection was prejudicial error.
State v. Taylor, 59 Idaho 724, 87 P. 2d 454
(1939).
18-5703. Public moneys defined.

The phrase "public moneys" as
used in the two preceding sections includes all bonds and evidences of
indebtedness, and all moneys belonging to the state, or any city, county,
town or district therein, and all moneys, bonds and evidences of indebted-
ness received or held by state, county, district, city or town officers in their
official capacity. [I.C.,

18-5703, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6977; C.S., 8381; I.C.A.,
17-3203
Cited in: State v. Thum, 6 Idaho 323, 55 P.
858 (1898); Bannock County v. Citizens' Bank
& Trust Co., 53 Idaho 159, 22 P2d 674 (1933);
Independent Sch. Dist. No. 1 v. Diefendorf, 57
Idaho 191, 64 P.2d 393 (1937).
Analysis
Construction.
Irrigation districts.
Construction.
The "public moneys" referred to in
18-
5701 include all of the moneys which came
into the hands of the defendant justice of the
peace in his official capacity and
31-3016
(repealed) required all fees and costs received
by defendant in both civil and criminal cases
to be transmitted to the county treasurer and
19-4701 likewise required fines, forfeitures

and costs to be remitted to the county trea-
surer. State v. Bell, 84 Idaho 153, 370 P2d 508
(1962).
Irrigation Districts.
Irrigation district is a public corporation,
its treasurer is a public officer, and moneys of
such district received by him as treasurer are
public money. In re Bank of Nampa, Ltd., 29
Idaho 166, 157 P. 1117 (1916).
18-5704. Failure of officer to account for fines or costs.
If any
clerk, justice of the peace, sheriff or constable who receives any fine or
forfeiture or costs arising out of a judgment in a criminal action, refuses or
neglects to pay over the same according to law, and within thirty (30) days
after the receipt thereof, such officer is guilty of a misdemeanor. [I.C.,
18-5704, as added by 1972, ch. 336, 1, p. 844.]

comprised R.S., 6978; 1899, p. 379, 5;
reen. R.C. & C.L., 6978; C.S., 8382;
I.C.A.,
18-113.
Disposition of fines and forfeitures,
19-
4705.
Construction of Section.
There was no conflict between former
18-
5701 and the former
18-5704 and they were
not inconsistent; former
18-5701 defined a
felony and the word "wilfully" as used therein
meant "knowingly" or "intentionally" and did
not encompass inadvertence or mistake;
former
18-5704 defined a misdemeanor and
included cases of inadvertence and mistake.
State v. Bell, 84 Idaho 153, 370 P.2d 508
(1962).
Where justice of peace was charged with
wilfully failing to pay over public moneys it
was proper to prosecute him under former
18-5701 since "public moneys" as defined in
former
18-5703 includes all public moneys
coming into his hands. State v. Bell, 84 Idaho
153, 370 P.2d 508 (1962).
CHAPTER 58
PUBLIC HEALTH AND SAFETY
SECTION.
18-5801.
18-5802.
18-5803.
18-5804.
18-5805,
18-5807.
Use of a life jacket or flotation de-
vice in a swimming pool.
[Repealed.]
Exposure of animal carcasses.
Slaughter and sale of famished an-
imals.
Leaving carcasses near highways,
dwellings and streams, and
pollution of water used for do-
mestic purposes.
SECTION.
18-5808. Permitting mischievous animal at
large.
18-5810. Blind persons only may use white or
red and white canes.
18-5811. Action required to avoid accident or
injury to disabled person

Prohibited intentional actions
Penalties.
18-5811A. Unlawful use of assistance device
or dog.
477 PUBLIC HEALTH AND SAFETY 18-5804
SECTION. SECTION.
18-5812. Battery to disabled persons and as- 18-5813
sistance dogs Penalties.
18-5816. Abandonment of airtight containers
18-5812A. Disabled persons may be accom-
without removing door locks
panied by assistance dogs

prohibited.
Penalty for intentional viola-
18-5817. "Abandon" denned as leaving to at-
tlon-
tract children.
18-5812B. Person may be accompanied by an
lg
.
5818 violations a misdemeanor,
assistance dog-in-training

Liability.
18-5801. Use of a life jacket or flotation device in a swimming
pool.

No person shall prohibit the use of a life jacket or other flotation
device in a swimming pool by an individual who, as evidenced by a
statement signed by a licensed physician, suffers from a physical disability
or condition which necessitates the use of the life jacket or other flotation
device. Any person violating the provisions of this section shall be guilty of
a misdemeanor. [I.C.,
18-5801, as added by 1987, ch.
37, 1, p. 60.]
Compiler's notes. Former 18-5801 1972 was reenacted as
18-5801 by S.L.
which comprised R.S., R.C., & C.L., 6913; 1972, ch. 336, 1, effective April 1, 1972 and
C.S., 8342; I.C.A., 17-2704, was repealed repealed by S.L. 1972, ch. 381, 17, effective
by S.L. 1971, ch. 143, 5, effective January 1, April 1, 1972.
18-5802. Exposure of person with contagious disease. [Repealed.]
Compiler's notes. Former 18-5802, prised R.S., R.C., & C.L.,
6927; C.S.,

18-5802, as added by 8353; I.C.A.,
1972, ch. 336, 1, p. 844, was repealed by S.L. 1971, ch. 143, 5, effective January 1,
1972.
18-5803. Exposure of animal carcasses.

Every person who puts
the carcass of any dead animal, or the offal of any slaughter pen, corral or
butcher shop, into any river, creek, pond, street, alley, public highway or
road in common use, or who attempts to destroy the same by fire within
one-fourth (Va) of a mile of any city, town or village, is guilty of a
misdemeanor. [I.C.,

18-5803, as added by 1972, ch. 336, 1, p. 844.]
8343; I.C.A.,

S.L. 1971, ch. 143, 5,
18-113.
18-5804. Slaughter and sale of famished animals.
Every person
who slaughters, offers or exposes for sale to the public any animal or
animals that have been confined for forty-eight (48) hours or more without
proper food, or twenty (20) hours without water, is guilty of a misdemeanor.
[I.C.,

18-5804, as added by 1972, ch. 336, 1, p. 844.]
8345; I.C.A.,

1,
18-113.
18-5805, 18-5806. Sale of animal with glanders

Animal to be
killed. [Repealed.]
6933; C.S.,
1972, ch. 336, 1, p. 844, was repealed by 8360; I.C.A.,
S.L. 1994, ch. 167, 1, effective July 1, 1994. S.L. 1971, ch. 143, 5, effective January
1,
Another former 18-5805, which com- 1972.
prised R.S., R.C., & C.L.,
6932; C.S., Former
8359; I.C.A.,
17-2708 was repealed by 18-5805, as added by 1972, ch. 336, 1, p.
S.L. 1971, ch. 143, 5, effective January 1, 844, was repealed by S.L. 1994, ch. 167, 1,
1972. effective July 1, 1994.
18-5807. Leaving carcasses near highways, dwellings and
streams, and pollution of water used for domestic purposes.
Any
person who shall knowingly leave the carcass of any animal within a quarter
of a mile of any inhabited dwelling, or on, along or within a quarter of a mile
of any public highway or stream of water, for a longer period than
twenty-four hours, without burying the same, and by such exposure or
burial within 200 feet of any stream, canal, ditch, flume, or other irrigation
works shall pollute or contaminate, so as to render unfit for domestic use,
any natural stream ofwater, or the water in any canal, ditch, flume, or other
irrigation works, used by others for domestic purposes, shall be guilty of a
misdemeanor, and upon conviction shall be fined any sum not to exceed
$100.00. [I.C.,

18-5807, as added by 1972, ch.
336, 1, p. 844.1
1,
comprised S.L. 1905, p. 39, 33; reen. R.C., & 1972, and the present section added by S.L.
C.L., 8361; C.S., 8361; I.C.A., 17-2710; 1972, ch. 336, 1 in the same words as the
S.L. 1937, ch. 143, 1, p. 235 was repealed by section prior to its repeal.
18-5808. Permitting mischievous animal at large.
If the owner of
a mischievous animal, knowing its propensities, wilfully suffers it to go at
large, or keeps it without ordinary care, and such animal, while so at large,
or while not kept with ordinary care, kills any human being who has taken
all the precautions which circumstances permitted, or which a reasonable
person would ordinarily take in the same situation, is guilty of a felony. [I.C.,
18-5808, as added by 1972, ch.

336, 1, p. 844.]
comprised S.L. 1905, p. 39, 33; reen. R.C., & 1972, ch. 336, 1 in the same words as the
C.L.,
8361; C.S., 8361; I.C.A., 17-2710; section prior to its repeal.
S.L. 1937, ch. 143, 1, p. 235 was repealed by Cross ref. Penalty for felony when not
1,
otherwise provided,
18-112.
18-5809. Permitting explosion causing death. [Repealed.]
Compiler's notes. This section, which Another
18-5809 which comprised R.S.,
comprised I.C., 18-5809, as added by 1972, R.C., & C.L., 6908; C.S., 8337; I.C.A.,
ch. 336, l,p. 844 was repealed by S.L. 1981, 17-2713, was repealed by S.L. 1971, ch.
ch. 319,
1.
479 PUBLIC HEALTH AND SAFETY 18-58 11
A
18-5810. Blind persons only may use white or red and white
canes.
No person, except those wholly or partially blind, shall carry or

use on any street, highway, or in any other public place a cane or walking
stick which is white in color, or white tipped with red. [I.C.,
18-5810, as
added by 1972, ch. 336, 1, p. 844.]
18-5811. Action required to avoid accident or injury to disabled
person

Prohibited intentional actions

Penalties.

(1) Any
person, whether a pedestrian, operating a vehicle or otherwise, who ap-
proaches an individual appearing to be a disabled person or lawfully using
an assistance device or assistance dog, and who:
(a) Intentionally fails to stop, change course, speak or take such other
action as is necessary to avoid any accident or injury to the disabled
person, the assistance device or dog, is guilty of a misdemeanor, punish-
able by imprisonment in the countyjail not exceeding six (6) months, or by
a fine of not less than fifty dollars ($50.00) nor more than one thousand
dollars ($1,000), or by both.
(b) Intentionally startles or frightens such person's dog, is guilty of a
misdemeanor, punishable by imprisonment in the county jail not exceed-
ing six (6) months, or by a fine of not less than fifty dollars ($50.00) nor
more than one thousand dollars ($1,000), or by both.
(2) Any person who, without justification, intentionally interferes with
the use of an assistance dog or assistance device by obstructing, battering or
intimidating the user or the dog, is guilty of a misdemeanor punishable by
imprisonment in the county jail not exceeding six (6) months, or by a fine of
not less than fifty dollars ($50.00) nor more than one thousand five hundred
dollars
($1,500), or by both. [I.C.,

18-5811, as added by 1997, ch. 267, 2,
p. 763.]
Compiler's notes. Former 18-5811
151, 1, p. 290, was repealed by S.L. 1971,
18-5811, as added by ch. 143, 5, effective January 1, 1972.
1972, ch. 336, 1, p. 844; am. 1984, ch. 147, Cross ref. Driver's duty toward blind with
1, p. 342; am. 1992, ch.
58, 1, p. 168 was white cane,
56-705.
repealed by S.L. 1997, ch. 267, 1, effective Rights of blind and physically handicapped
July 1, 1997. persons,

56-701 56-707.
Another former
18-5811 which comprised Sec. to sec. ref. This section is referred to
S.L. 1937, ch. 46, 2, p. 62; am. S.L. 1965, ch. in
56-705.
18-5811A. Unlawful use of assistance device or dog.
Any person,
not being a disabled person or being trained to assist disabled persons, who
uses an assistance device or assistance dog in an attempt to gain treatment
or benefits as a disabled person, is guilty of a misdemeanor. [I.C.,

18-
5811A, as added by 1997, ch. 267, 3, p. 763.]
in 56-705.
18-5812. Battery to disabled persons and assistance dogs

Penalties.
(1) Any person who:

(a) Permits any animal which is owned, harbored or controlled by him to
cause injury to or the death of any assistance dog or dog-in-training, is
guilty of a misdemeanor.
(b) Intentionally causes injury to or the death of any assistance dog or
dog-in-training is guilty of a misdemeanor punishable by imprisonment in
the county jail not exceeding one
(1)
year, or by a fine not exceeding five
thousand dollars
($5,000),
or by both.
(2) In addition to any other criminal or civil penalties provided for
violation of this section, any person convicted under this section, regardless
of the form of judgment, shall be ordered to make full restitution to the
owner or custodian of such dog for all veterinary bills, replacement and
other costs resulting from the injury or death of the dog. [I.C.,

18-5812, as
added by 1997, ch. 267, 5, p. 763.1
Compiler's notes. Former 18-5812 S.L. 1937, ch. 46, 3, p. 62; am. S.L. 1965, ch.
which comprised I.C., 18-5812, as added by 151, 2, p. 290, was repealed by S.L. 1971,
1972, ch. 336, 1, p. 844; am. 1984, ch. 147, ch. 143, 5, effective January 1, 1972.
2, p. 342; am. 1992, ch.
58, 2, p. 168 was Cross ref. Penalty for misdemeanor when
repealed by S.L. 1997, ch. 267, 4, effective not otherwise provided,
18-113.
July 1, 1997. Sec. to sec. ref. This section is referred to
Another former
18-5812 which comprised in

56-705.
18-5812A. Disabled persons may be accompanied by assistance
dogs
Penalty for intentional violation.
(1) A disabled person shall

not be denied the use of any common carrier or public transportation facility
or admittance to any hotel, motel, cafe, elevator, housing for sale or rent, or
any other public place within the state of Idaho by reason of his being
accompanied by an assistance dog. A disabled person shall be entitled to
have an assistance dog with him in such places and while using such
facilities without being required to pay any additional charges for his
assistance dog, but shall be liable for any damage caused by his assistance
dog.
(2) Any person, firm, association or corporation or agent of any person,
firm, association or corporation intentionally violating the provisions of this
section shall be guilty of a misdemeanor. [I.C.,

18-58 12A, as added by
1972, ch.
336, 1, p. 844; am. 1984, ch. 147, 3, p. 342; am. 1992, ch. 58,
3, p. 168; am. 1997, ch. 267, 6, p. 763.]
Compiler's notes. Aformer section, which Section 13 of S.L. 1984, ch. 147 declared an
comprised I.C. 18-5812A as added by S.L. emergency. Approved March 31, 1984.
Cross ref. Blind persons' rights with guide
dog,
56-704.
Sec# to sec ref> This section is referred to
jn 56-705
as

56-701.
18-5812B. Person may be accompanied by an assistance dog-in-
training
Liability.
(1) A person shall not be denied the use of any

481 PUBLIC HEALTH AND SAFETY 18-5816
common carrier or public transportation facility or admittance to any hotel,
motel, cafe, elevator, or any other public place within the state of Idaho by
reason of being accompanied by a dog-in-training. Such dog-in-training
shall be properly leashed so that the person may maintain control of the dog.
(2) Access to public places for dogs-in-training may be temporarily denied
if the dog is poorly groomed so as to create a health hazard or the person
accompanying the dog cannot maintain control of the dog.
(3)
The person accompanying the dog-in-training" shall be liable for any
damages or injuries caused by the dog, and any third party owner, lessor or
manager of the public property shall in no way suffer liability for damages
or injuries caused by the dog-in-training. If the person accompanying a
dog-in-training is a minor, the parents of the child shall be liable. [I.C.,
18-5812B, as added by 1983, ch.

75, 1, p. 161; am. 1992, ch.
58, 4, p.
168; am. 1994, ch. 159, 1, p. 359; am. 1997, ch. 267, 7, p. 763.]
ch. 75 is compiled as 56-704A. as 56-701A.
Cross ref. Person training guide dogs for
56-701A.
the blind, rights and liabilities, 56-704A.
as 56-701A.
18-5813. Implantation of foreign materials into the scalp

Pen-
alty. [Repealed.]
which comprised I.C., 18-5813, as added by ch. 143, 5, effective January 1, 1972, was
1982, ch. 277, 1, p. 709, was repealed by reenacted as
18-5813 by S.L. 1972, ch. 336,
S.L. 1994, ch. 167, 1, effective July 1, 1994. 1, effective April 1, 1972 and repealed by
Another former
18-5813 which comprised S.L. 1972, ch. 381, 17, effective April
1,
S.L. 1919, ch. 162, 1, p. 530; C.S., 2333; 1972.
18-5814. Barber shop closing hours
Penalty. [Repealed.]
Compiler's notes. Former 18-5814, S.L. 1972, ch. 336, 1 was repealed by S.L.
18-5814 as added by 1972, ch. 381, 17, effective April 1, 1972.
18-5815. Conduct at pleasure resorts. [Repealed.]
Compiler's notes. Former 18-5815, prised S.L. 1917, ch. 26, 1, 2, p. 68; reen.
18-5815, as added by C.L., 6964; C.S., 8378; I.C.A.,
17-3013
1972, ch. 336, 1, p. 844, was repealed by was repealed by S.L. 1971, ch. 143, 5,
18-5816. Abandonment of airtight containers without removing
door locks prohibited.
It shall be unlawful for any person or persons to

abandon, or to permit to remain in an abandoned state on his premises or on
premises over which he exercises control, within the state of Idaho, any ice
box, refrigerator, deep freeze, or similar appliance having a door which
fastens automatically and which cannot be opened from the inside, without
having first removed the lock or the hinges by which said door is attached to
the body of the appliance. [I.C.,

18-5816, as added by 1972, ch. 336, 1,
p. 844.]
Compiler's notes. A former section, which Collateral References. Liability for in-
comprised S.L. 1957, ch. 46, 1, p. 81 was jury or death of child in refrigerator. 86
repealed by S.L. 1971, ch. 143, 5, effective A.L.R.2d 709.
18-5817. "Abandon" defined as leaving to attract children.

"Abandon" means leaving unattended and uninclosed such appliance, in
such manner and for such time that playing children may be attracted
thereto, whether left upon the premises of the owner of the appliance or
upon other premises. [I.C.,
18-5817, as added by 1972, ch.
336, 1, p.
844.]
18-5818. Violations a misdemeanor.
Any violation of this act shall

constitute a misdemeanor. [I.C.,

18-5818, as added by 1972, ch.
336, 1,
p. 844.]
Compiler's notes. Aformer section, which words as the section prior to its repeal,
46, 3, p. 81 was The words "this act" used herein refer to
18-5816 18-5818.
January 1, 1972, and the present section Cross ref. Penalty for misdemeanor not
added by S.L. 1972, ch. 336, 1 in the same otherwise provided,
18-113.
CHAPTER 59
PUBLIC NUISANCES
SECTION. SECTION.
18-5901. Public nuisance denned. 18-5904. No smoking during public meetings.
18-5902. Public nuisance Unequal dam-
18-5905. Signs to be displayed.
age.
18-5903. Punishment for nuisance.
18-5901. Public nuisance denned.
Anything which is injurious to

health, or is indecent, or offensive to the senses, or an obstruction to the free
use of property, so as to interfere with the comfortable enjoyment of life or
property by an entire community or neighborhood, or by any considerable
number of persons, or unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, stream, canal or basin, or
any public park, square, street, or highway, is a public nuisance. [I.C.,
18-5901, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. A former section, which Analysis
comprised Cr. & P. 1864, 130; R.S., R.C., & _ .
C.L., 6910; C.S., 8339; I.C.A.,
17-2701
Obstructions in street,
Removal of encroachments,
effective January
1, 1972.
Obstructions in Street.
Cross ref. Nuisances in general,

52-101 Warehouse and platform obstructing city
52-417. street was a public nuisance, even though city
483 PUBLIC NUISANCES 18-5901
had allowed construction of same pursuant to
a motion passed by city council and permit
duly issued. Boise City v. Sinsel, 72 Idaho 329,
241 P.2d 173 (1952).
Removal of Encroachments.
Sellers' contention that purchasers were
not bound to remove encroachments of tourist
site and equipment sold to them upon de-
mand by the city inasmuch as the city has
permitted the existence of such encroach-
ments for a considerable time was not well
taken, and it became the duty of the purchas-
ers to remove such encroachments, as failure
to do so would result in both civil and criminal
liability; such encroachments were a public
nuisance and subject to abatement. Galvin v.
Appleby, 78 Idaho 457, 305 P.2d 309 (1956).
Nuisances,

34-146, 210-217.
66 C.J.S., Nuisances, 1 et seq.
Attracting people in such numbers as to
obstruct access to the neighboring premises to
Coal yard, noise caused by operation of, as
Judicial determination of whether building
constitutes nuisance subject to destruction.
14 A.L.R.2d 82.
Animal rendering or bone-boiling plant for
business as nuisance. 17 A.L.R.2d 1269.
Stockyard as nuisance. 18 A.L.R.2d 1033.
Use of phonograph, loud-speaker, or other
mechanical or electrical device for broadcast-
ing music, advertising, or sales talk from
business premises, as nuisance. 23 A.L.R.2d
1289.
Dust as nuisance. 24 A.L.R.2d 194; 79
A.L.R.3d 253.
Tourist or trailer camp, motor court or mo-
tel as nuisance. 24 A.L.R.2d 571.
Private school or nuisance. 27 A.L.R.2d
1249.
House-to-house soliciting and peddling
without invitation a nuisance. 35 A.L.R.2d
355; 77 A.L.R.2d 1221.
Sewage disposal plant as nuisance. 40
A.L.R.2d 1177.
Public dances or dance halls as nuisances.
44 A.L.R.2d 1381.
Smoke and dust as rendering quarry, gravel
pit, or the like a nuisance. 47 A.L.R.2d 490.
Cemetery or burial ground as nuisance. 50
A.L.R.2d 1324.
Public dump as nuisance. 52 A.L.R.2d 1134.
Automobile sales lot or used car lot as
Fishing, boating, bathing, or the like in
inland lake, nuisance by. 57 A.L.R.2d 594.
Golf course or driving range as nuisance. 68
A.L.R.2d 1331.
Keeping of cats as enjoinable nuisance. 73
A.L.R.2d 1032.
Merry-go-round as nuisance. 75 A.L.R.2d
803.
Validity of regulation of smoke and other
air pollution. 78 A.L.R.2d 1305.
Water sports, amusements, or exhibitions
as nuisance. 80 A.L.R.2d 1124.
Double parking a motor vehicle as nui-
sance. 82 A.L.R.2d 732.
Practice of exacting usury as nuisance. 83
A.L.R.2d 848.
Automobile wrecking yard or place of busi-
ness as nuisance.
J34
A.L.R.2d 653.
Oil refinery as nuisance. 86 A.L.R.2d 1322.
Drive-in restaurant or cafe as nuisance. 91
A.L.R.2d 572.
Dairy, creamery, or milk distributing plant
as nuisance. 92 A.L.R.2d 974.
Private residential swimming pool as nui-
sance. 92 A.L.R.2d 1285.
Drive-in theatre of other outdoor dramatic
or musical entertainment as nuisance. 93
A.L.R.2d 1171.
Gas company's liability on theory of nui-
sance, for personal injury or property damage
caused by gas escaping from mains in street.
96 A.L.R.2d 1084.
Keeping pigs as a nuisance. 2 A.L.R.3d 931.
Keeping poultry as nuisance. 2 A.L.R.3d
965.
Motor bus or truck terminal as nuisance. 2
A.L.R.3d 1372.
Electric generating plant or transformer
station as nuisance. 4 A.L.R.3d 902.
Saloons or taverns as nuisance. 5 A.L.R.3d
989.
Keeping of dogs as enjoinable nuisance. 11
A.L.R.3d 1399.
Gun club, or shooting gallery or range, as
Keeping of horses as nuisances. 27 A.L.R.3d
627.
Billboards and other outdoor advertising
signs as civil nuisance. 38 A.L.R.3d 647.
Modern status of rules as to balance of
convenience or social utility as affecting relief
from nuisance. 40 A.L.R.3d 601.
Operation of incinerator as nuisance. 41
A.L.R.3d 1009.
Laundry or dry cleaning establishment as
Automobile race track or drag strip as nui-
sance. 41 A.L.R.3d 1273.
Gasoline or other fuel storage tanks as
Exhibition of obscene motion pictures as
Zoo as nuisance. 58 A.L.R.3d 1126.
Porno shops or similar places disseminat-
ing obscene materials as nuisance. 58
A.L.R.3d 1134.
Interference with radio or television recep-
tion as nuisance. 58 A.L.R.3d 1205.
Airport operations or flight of aircraft as
Fence as nuisance. 80 A.L.R.3d 962. Tort immunity of nongovernmental chari-
Massage parlor as nuisance. 80 A.L.R.3d ties
modern statutes. 25 A.L.R.4th 517.

1020.
Cat as subject of larceny. 55 A.L.R.4th 1080.
Operation of cement plant as nuisance. 82
Liability for injuries caused by cat. 68
A.L.R.3d 1004.
A.L.R.4th 823.
Measure, elements, and amount of dam-
ages for killing or injuring cat. 8 A.L.R.4th
1287.
18-5902. Public nuisance

Unequal damage.

An act which
affects an entire community or neighborhood, or any considerable number of
persons, as specified in the last section, is not less a nuisance because the
extent of the annoyance or damage inflicted upon individuals is unequal.
[I.C.,
18-5902, as added by 1972, ch. 336, 1, p. 844.]
1,
comprised R.S., R.C., & C.L., 6911; C.S., 1972.
8340; I.C.A.,
18-5903. Punishment for nuisance.
Every person who maintains

or commits any public nuisance, the punishment for which is not otherwise
prescribed, or who wilfully omits to perform any legal duty relating to the
removal of a public nuisance, is guilty of a misdemeanor. [I.C.,
18-5903, as
added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which ments for a considerable time was not well
comprised Cr. & P. 1864, 130; R.S., R.C., & taken, and it became the duty of the purchas-
C.L., 6912; C.S., 8341; I.C.A.,
17-2703 ers to remove such encroachments, as failure
to do so would result in both civil and criminal
liability. Such encroachments were a public
nuisance and subject to abatement. Galvin v.
Appleby, 78 Idaho 457, 305 P.2d 309 (1956).
Collateral References. Necessity of
18-113.
knowledge by owner of real estate of a nui-
sance maintained thereon by another to sub-
Removal of Encroachments.
ject him to the operation of a statute provid-
Sellers' contention that purchasers were ing for the abatement of nuisances or
not bound to remove encroachments of tourist prescribing a pecuniary penalty therefor. 12
site and equipment sold to them upon de- A.L.R. 431; 121 A.L.R. 642.
mand by the city inasmuch as the city has Private nuisance not punishable criminally,
permitted the existence of such encroach- 116 A.L.R. 1176.
18-5904. No smoking during public meetings.
For the purpose of

this act, any meeting or hearing of any board, commission, council, depart-
ment or agency of state, county, or local government, held within a building
owned, rented, or being used by a governmental agency, to which the public
is invited, or solicited, or legally entitled to attend is denned as a public
meeting. Cigarette, cigar, and pipe smoking are prohibited during all
periods when such public hearings or meetings are in progress. [I.C.,
18-5904, as added by 1975, ch. 121, 1, p. 252.]

Compiler's notes. The words "this act" Sec. to sec. ref. This section is referred to
refer to S.L. 1975, ch. 121,
1-3, compiled in

18-5906 and 39-5509.
herein as

18-5904
18-5906.
485 RAILROADS 18-6002
18-5905. Signs to be displayed.

No smoking signs shall be dis-
played in the place of any such public meeting and upon request an area
nearby, but outside the room in which the meeting is being held, shall be
designated as an area where smoking is permitted. [I.C.,

18-5905, as
added by 1975, ch. 121, 2, p. 252.]
in
39-5509.

A violation of section 18-5904,
Idaho Code, is punishable by a fine of not less than five dollars ($5.00) nor
more than ten dollars ($10.00). [I.C.,
18-5906, as added by 1975, ch. 121,
3, p. 252.]
in
39-5509.
CHAPTER 60
RAILROADS
SECTION.
18-6001. Permitting collision causing death.
18-6002. Neglect to sound bell or whistle.
18-6003 18-6005. [Repealed.]
18-6006. Injuring railroad property.
18-6007. Theft of car parts

Murder by
wrecking.
18-6008. Receiving stolen car parts.
18-6009. Placing obstructions on tracks.
18-6010. Obstruction or interference with
railroad.
SECTION.
18-6011.
18-6012.
18-6013,
18-6015.
Obstruction or interference with
railroad
Act causing death.

Offenses against railroads.
Prohibition on disposal of human
body waste from passenger
trains.
18-6001. Permitting collision causing death.

Every conductor,
engineer, brakeman, switchman, or other person having charge, wholly or in
part, of any railroad, car, locomotive or train, who wilfully or negligently
suffers or causes the same to collide with another car, locomotive or train, or
with any other object or thing whereby the death of a human being is
produced, is punishable by imprisonment in the state prison for not less
than one (1) nor more than ten (10) years. [I.C.,
1972, ch. 336, 1, p. 844.]
8338; I.C.A.,

1972.
862 P.2d 1089 (Ct. App. 1993).
Federal Law Not Affected.
Violation of this section by interstate em-
ployee has no bearing upon his right to re-
cover under federal employers' liability act of
April 22, 1908 (45 U.S.C. 51, 52). Spokane
& I.E.R.R. v. Campbell, 241 U.S. 497, 36 S. Ct.
683, 60 L. Ed. 1125 (1916).
Railroads, 1 et seq.
74, 75 C.J.S., Railroads,

423
426, 678
689, 741
864, 905
1284.
18-6002. Neglect to sound bell or whistle.
Every person in charge

of a locomotive engine who, before crossing any traveled public way, omits to
cause a bell to ring or steam, air, electric or other similar whistle to sound
at the distance of at least eighty (80) rods from the crossing, and up to it, is

18-6002, as added by 1972, ch.
336, 1, p.
844.]
Compiler's notes. A former section, which present section added by S.L. 1972, ch. 336,
comprised R.S., R.C., & C.L., 6923; C.S., 1 in the same words as the section prior to
8348; 1929, ch. 149, 1, p. 273; I.C.A., its repeal.
17-2717 was repealed by S.L. 1971, ch. 143, Cross ref. Penalty for misdemeanor when
5,
effective January 1, 1972, and the not otherwise provided,
18-113.
18-6003

18-6005. Intoxicated engineers or conductors

Viola-
tion of duty

Employment of illiterate trainmen.
[Repealed.]
Compiler's notes. Former 18-6003, 8351; I.C.A.,
which comprised I.C., 18-6003, as added by S.L. 1971, ch. 143, 5, effective January
1,
1972, ch. 336, 1, p. 844, was repealed by 1972, and another version added by S.L. 1972,
prior to its repeal,
prised R.S., R.C.,
&
C.L.,

6924; C.S.,
Former
8349; I.C.A.,

18-6005, as added by 1972, ch. 336, 1, p.
S.L. 1971, ch. 143, 5,
effective January
1,
^was repealed by S.L. 1994, ch. 263, 1,
1972, and another version added by S.L. 1972,
effective July 1 1994
Another former

lg
.
6005> which com
.
prior to its repeaL
iged g L mi ch 161
^
2 559 reen
ft ,*Z!a

"^
'k
W
iQ79 TTsfs \
C
"
C.L.,

6926a; C.S.,

8352; I.C.A.,

17-2721
18-6004, as added by 1972, ch. 336, 1, p.

i j u or 1071 v mo *. c
oaa i ju ot -innA u oco k 1
844, was repealed by S.L. 1994, ch. 263, 1, cr
..
^
J
., nrkr70
'
.i_
rr \-
t 1 1 ioo/<
effective January 1, 1972, and another ver-
eltective July 1, 1994. . , ,
,
C
J '
'
OQ
_ . ,
S10n adde
^
b
^
S.L. 1972,
ch.
336,
1
in the
prised R.S., R.C., & C.L.,
6926; C.S.,
same words as the sectlon
P
nor to lts re
P
eaL
18-6006. Injuring railroad property.

Every person who mali-
ciously removes, displaces, injures, or in any way interferes with, or
changes, or destroys, any part of any railroad property, whether for cars
propelled by steam or any other motive power, or any track of any railroad,
or any branch or branchway, switch, block or other signal or signaling
device, turnout, bridge, viaduct, culvert, embankment, station house or
other structure or fixture, or any part thereof attached to or connected with
any railroad, is punishable by imprisonment in the state prison not
exceeding ten (10) years, or by fine not exceeding fifty thousand dollars
($50,000), or by both fine and imprisonment, in the discretion of the court.
[I.C.,
18-6006, as added by 1972, ch.
336, 1, p. 844; am. 1994, ch. 263,
2, p. 812.]
C.L.,
7131; C.S., 8513; I.C.A.,

17-4101
18-6007. Theft of car parts
Murder by wrecking.
Any person
or persons who shall remove, take, steal, change, add to, take from, or in any
manner interfere with any journal bearings or brasses, or any parts or
attachments of any locomotive, tender or car, or any fixture or attachment
487 RAILROADS 18-6010
belonging thereto, connected with, or used in operating any locomotive,
tender or car, owned, leased or used by any railway or transportation
company in this state, is guilty of a felony, and upon conviction thereof shall
be subject to punishment by imprisonment in the penitentiary not less than
one (1) nor more than fourteen (14) years, or by a fine of up to fifty thousand
dollars ($50,000), or by both such fine and imprisonment, in the discretion
of the court: provided, that if the removal of such journal bearings or
brasses, fixtures or attachments, as aforesaid, shall be4he cause of wrecking
any train, locomotive or other car in this state, whereby the life or lives of
any person or persons shall be lost as the result of the felonious or malicious
stealing, interfering with or removal of the fixtures, as aforesaid, the person
or persons found guilty thereof shall be liable for murder as in other cases.
[I.C.,
3, p. 812.]
Compiler's notes. A former section, which added by S.L. 1972, ch. 336, 1 in the same
comprised S.L. 1909, p. 81, 1; reen. C.L., words as the section prior to its repeal.
7131a; C.S., 8514; I.C.A.,

17-4102 was
Cross ref. Simulation of switch and car
keys,
18-3613.
18-6008. Receiving stolen car parts.

Every person who buys or
receives any of the property described in section 18-6007, Idaho Code,
knowing the same to have been stolen, is guilty of a felony, and upon
conviction thereof shall be subject to the punishment provided in section
18-6007, Idaho Code. [I.C.,

18-6008, as added by 1972, ch. 336, 1, p. 844;
am. 1994, ch. 263, 4, p. 812.]
comprised S.L. 1909, p.
B. 224, 2; reen. same words as the section prior to its repeal.
C.L.,

7131b; C.S.,
8515; I.C.A.,

17-4103
as
18-6012.
18-6009. Placing obstructions on tracks.

Every person who ma-
liciously places any obstruction upon the rails or track of any railroad, or of
any switch, branch, branchway, or turnout connected with any railroad, is
punishable by imprisonment in the state prison not exceeding five years, or
in the county jail not less than six (6) months. [I.C.,

1972, ch.
336, 1, p. 844.]
Compiler's notes. A former section, which present section added by S.L. 1972, ch. 336,
comprised R.S., 7132, second part; reen. 1 in the same words as the section prior to
R.C. & C.L., 7132; C.S., 8516; I.C.A., its repeal.
17-4104 was repealed by S.L. 1971, ch. 143, Cited in: State v. Fife, 115 Idaho 879, 771
5, effective January 1, 1972, and the P.2d 543 (Ct. App. 1989).
18-6010. Obstruction or interference with railroad.
Any person
or persons who shall wilfully or maliciously place any obstruction on any
railroad track or roadbed, or street car track in this state, or who shall
loosen, tear up, remove or misplace any rail, switch, frog, guard rail, cattle
guard, or any part of such railroad track or roadbed or street car track, or
who shall tamper with or molest any such road, roadbed or track, or who
shall destroy or damage any locomotive, motor or car on said track, or who
shall otherwise interfere with the maintenance or operation of such road so
as to endanger the safety of any train, car, motor or engine, or so as to
endanger or injure any passenger or person riding thereon, or being about
the same, shall, upon conviction thereof, be punished by imprisonment in
the penitentiary for any term not exceeding twenty (20) years nor less than
five (5)
years. [I.C.,

18-6010, as added by 1972, ch. 336, 1, p. 844.]
1,
comprised S.L. 1893, P.
68, 1; reen. 1899, p. 1972, and the present section added by S.L.
182, 1; reen. R.C. & C.L., 7140; C.S., 1972, ch. 336, 1 in the same words as the
8524; I.C.A.,
18-6011. Obstruction or interference with railroad
Act causing
death.

Any person or persons who shall, within this state, wilfully or
maliciously place any obstruction upon any railroad track or roadbed or
street car track, or shall misplace, remove, obstruct, detach, damage or
destroy any rail, switch, frog, guard rail, cattle guard, or any other part of
such railroad track or roadbed or street car track, or who shall otherwise
interfere with the maintenance and operation of such road, thereby causing
the death of any person, whether passenger or employee of such railroad, or
street railway, or otherwise, shall, upon conviction thereof, be deemed guilty
of a felony and be punished by imprisonment in the penitentiary for a term
not less than five (5) years and which may extend to the natural life of such
person so found guilty, or may be tried and punished for murder. But this
section shall not in any way lessen the liability of the railroad company
where a wreck may hereafter occur in the state of Idaho. [I.C.,

18-6011, as
added by 1972, ch.
336, 1, p. 844.1
comprised S.L. 1893, P.
68, 2; reen. 1899, P. 1972, ch. 336, 1 in the same words as the
182, 2; reen. R.C. & C.L., 7141; C.S., section prior to its repeal.
8525; I.C.A.,
17-4106 was repealed by Cited in: State v. Martinez, 111 Idaho 281,
S.L. 1971, ch. 143, 5, effective January 1, 723 P.2d 825 (1986).
18-6012. Offenses against railroads.

Any person disturbing the
peace of any traveler on any railway train, or breaking the seal or forcibly
entering any car, or disturbing the contents of any car, or breaking any
package therein, or breaking any package left at any depot for transporta-
tion or delivery, shall be guilty of a misdemeanor, and on conviction thereof
shall be punished by a fine not exceeding one thousand dollars ($1,000), or
by imprisonment in the county jail not exceeding six (6) months, or by both

18-6012, as added by 1972, ch. 336,
1, p. 844; am. 1994, ch.
263, 5, p. 812.]
Compiler's notes. A former section, which Section 4 of S.L. 1994, ch. 263 is compiled
comprised R.S., R.C, & C.L., 7212; C.S., as
18-6008.
8591; I.C.A.,

Cross ref. Stealing rides on trains,

18-
1, 4617 18-4620
1972.
489 RAPE 18-6015
18-6013, 18-6014. Offenses against railroads

Trainmen may ar-
rest

Accused to be taken before magistrate. [Re-
pealed.]
Compiler's notes. Former 18-6013, Former 18-6014, which comprised I.C.,
which comprised I.C., 18-6013, as added by 18-6014, as added by 1972, ch. 336, 1, p.
1972, ch. 336, 1, p. 844, was repealed by 844, was repealed by S.L. 1994, ch. 263, 6,
S.L. 1994, ch. 263, 6, effective July 1, 1994. effective July 1, 1994.
Another former 18-6013, which com- Another former 18-6014, which com-
prised R.S., R.C., & C.L., 7213; C.S., prised R.S., R.C., & C.L., 7214; C.S.,
8592; I.C.A.,
17-4606 was repealed by 8593; I.C.A.,
S.L. 1971, ch. 143, 5, effective January 1, S.L. 1971, ch. 143, 5, effective January
1,
1972, and another version added by S.L. 1972, 1972, and another version added by S.L. 1972,
ch. 336, 1 in the same words as the section ch. 336, 1 in the same words as the section
prior to its repeal. prior to its repeal.
18-6015. Prohibition on disposal of human body waste from
passenger trains.

(a) "Human body waste" means excrement, feces or other waste material
discharged from the human body.
(b) "Passenger train" means any train operated by a railroad company or
corporation or operated by an entity created by federal law, for the
primary purpose of transporting passengers.
(c) "Person" means an individual, trust, firm, joint stock company, corpo-
ration, partnership, association, state, state or federal agency or entity,
city, commission, or political subdivision of a state.
(2) No person operating or controlling any passenger train through or
within this state may knowingly and openly place, throw, release, discharge,
or deposit human body waste from a passenger train upon the right-of-way
over which it operates.
(3) Any person *who violates any provision of this section is guilty of a
misdemeanor.
(4) The department of environmental quality and the public health
districts shall enforce the provisions of this section. [I.C.,

18-6015, as
added by 1990, ch.
189, 1, p. 419; am. 2001, ch. 103, 3, p. 253.1
Compiler's notes. Sections 2 and 4 of S.L. the act should be in full force and effect on
9-342A and and after August 1, 1990. Approved March 29,
22-3413, respectively. 1990.
CHAPTER 61
RAPE
SECTION. SECTION.
18-6101. Rape defined. 18-6106. Restitution to victim.
18-6102. Proof of physical ability.
18-6107. Rape of spouse.
18-6103. Penetration.
18-6108. Male rape.
1
f^
4
-
l
un
}
shmen
}
for ra
P
e-
18-6109. Punishment for male rape.
18-6105. Evidence of previous sexual conduct
18
.
6no gexual CQntact with a igoner
of prosecuting witness.
18-6101. Rape defined.
Rape is defined as the penetration, however

slight, of the oral, anal or vaginal opening with the perpetrator's penis
accomplished with a female under any one (1) of the following circum-
stances:
1. Where the female is under the age of eighteen (18) years.
2. Where she is incapable, through any unsoundness of mind, due to any
cause including, but not limited to, mental illness, mental deficiency or
developmental disability, whether temporary or permanent, of giving legal
consent.
3. Where she resists but her resistance is overcome by force or violence.
4. Where she is prevented from resistance by the infliction, attempted
infliction, or threatened infliction of bodily harm, accompanied by apparent
power of execution; or is unable to resist due to any intoxicating, narcotic, or
anaesthetic substance.
5. Where she is at the time unconscious of the nature of the act. As used
in this section, "unconscious of the nature of the act" means incapable of
resisting because the victim meets one (1) of the following conditions:
(a) Was unconscious or asleep;
(b) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
6. Where she submits under the belief that the person committing the act
is her husband, and the belief is induced by artifice, pretense or concealment
practiced by the accused, with intent to induce such belief.
7. Where she submits under the belief, instilled by the actor, that if she
does not submit, the actor will cause physical harm to some person in the
future; or cause damage to property; or engage in other conduct constituting
a crime; or accuse any person of a crime or cause criminal charges to be
instituted against her; or expose a secret or publicize an asserted fact,
whether true or false, tending to subject any person to hatred, contempt or
ridicule. [I.C.,

18-6101, as added by 1972, ch. 336, 1, p. 844; am. 1977,
ch. 208, 1, p. 573; am. 1994, ch.
83, 1, p. 197; am. 1994, ch. 135, 1, p.
307; am. 2000, ch. 218, 1, p. 606; am. 2003, ch. 280, 1, p. 756.]
Compiler's notes. A former section, which other unsoundness" in subdivision (2) and
comprised R.S., 6795; 1895, P. 19, 1; reen. added a comma following "intoxicating" in
1899, P. 167, 1; reen. R.C. & C.L., 6795; subdivision (4).
C.S., 8262; I.C.A.,
17-1601 was repealed Section 2 of S.L. 1977, ch. 208 is compiled
by S.L. 1971, ch. 143, 5, effective January 1, as
18-6105.
1972, and the present section added by S.L. Section 2 of S.L. 1994, ch. 135 is compiled
1972, ch. 336, 1 in the same words as the as 18-6108.
section prior to its repeal. Section 14 of S.L. 1972, ch. 336 declared an
This section was amended by two 1994 acts emergency and provided that the act should
ch. 83, 1, and ch. 135, 1, both effective take effect on and after April 1, 1972.
July 1, 1994
which do not appear to conflict Section 2 of S.L. 2003, ch. 280 is compiled
and have been compiled together. as
19-401.
The 1994 amendment by ch.
83, 1, in the Cross ref. Assault with intent to commit
introductory paragraph, substituted "defined rape,
18-907.
as the penetration, however slight, of the oral, Medical examination of victim, cost paid by
anal or vaginal opening with the perpetrator's law enforcement agency,

[19-5303] 19-5302.
penis" for "an act of sexual intercourse" and Sec. to sec. ref. This chapter is referred to
added a comma following "intoxicating" in in
18-7905.
subdivision (4). This section is referred to in

16-2002,
The 1994 amendment by ch. 135, 1, sub- 18-310, 18-6107, 18-8303, 18-8304, 18-8314,
stituted "any unsoundness" for "lunacy or any 19-401, 19-2520, 19-2520C, 19-5307, 19-5506,
491 RAPE 18-6101
20-525A, 33-1208, 39-1113 and 72-1025.
Cited in: State v. Irwin, 9 Idaho 35, 71 P.
608, 60 L.R.A. 716 (1903); State v. Simes, 12
Idaho 310, 85 P. 914 (1906); State v. Cornwall,
95 Idaho 680, 518 P2d 863 (1974); State v.
Elisondo, 97 Idaho 425, 546 P.2d 380 (1976);
State v. Swain, 105 Idaho 743, 672 P2d 1073
(Ct. App. 1983); State v. Winkler, 112 Idaho
917, 736 P.2d 1371 (Ct. App. 1987); State v.
Cheney, 116 Idaho 917, 782 P2d 40 (Ct. App.
1989); State v. Salter, 125 Idaho 418, 871 P2d
835 (Ct. App. 1994); State v. Oar, 129 Idaho
337, 924 P.2d 599 (1996); State v. Amerson,
129 Idaho 395, 925 P.2d 399 (Ct. App. 1996),
138 L. Ed. 2d 1020 (1997); State v. Mayer,
Idaho , 84 P.3d 579 (Ct. App. 2004).

Analysis
Age of female.
Alternative circumstances.
Appeal by state.
Assault with intent to rape.
Bastardy proceedings.
Burden of proving force.
Burglary.
Character of accused.
Character of female.
Consent.
Constitutionality.
Conviction on testimony of prosecutrix.
Corroboration of prosecutrix.
Chastity.
Counsel.
Deposition of prosecutrix.
Elements of attempt.
Evidence.
Force.
Harmless error.
Impeachment of prosecutrix.
Incest.
Included offense.
Information.
Amendment.
Instructions.
Intent.
Legislative purpose.
Marital status.
Prior offenses.
Prosecutional misconduct.
Purpose.
Question of fact.
Resistance.
Reversible error.
Search and seizure.
Sentence.
State's burden of proof.
Verdicts.
Victim's past sexual conduct.
Voluntariness of plea.
Age of Female.
It is generally held that lack of knowledge
on part of defendant as to the age of
prosecutrix, or even belief that she is over the
specified age, is not a defense. State v.
Suennen, 36 Idaho 219, 209 P. 1072 (1922).
In a prosecution for statutory rape on a
female under 18 years of age, the defendant
may be convicted of simple assault and the
refusal of the trial court to so instruct is
reversible error. State v. Garney, 45 Idaho
768, 265 P. 668 (1928).
A reasonable mistake of fact as to the vic-
tim's age is no defense to statutory rape. State
v. Stiffler, 114 Idaho 935, 763 P2d 308 (1988),
aff'd, 117 Idaho 405, 788 P2d 220 (1990).
Where factual circumstances warrant, the
sentencing court in a statutory rape case may
consider the reasonable belief of an accused
as to the victim's age as a mitigating factor
under

19-2515 and 19-2521. State v.
Stiffler, 114 Idaho 935, 763 P2d 308 (Ct. App.
1988), aff'd, 117 Idaho 405, 788 P.2d 220
(1990).
Four-year fixed sentence for rape was not
unreasonable and judge properly considered
that defendant's relationship with victim was
consensual, she was a very willing participant
in the sexual relationship, her parents knew
of the friendship, she had turned 16 years old
by the time defendant's probation was re-
voked and the sentences for assault and stat-
utory rape were ordered into effect, defendant
loved victim when the two were having inter-
course, that victim instigated a good share of
what happened, and that defendant was less
mature than an average man his age. State v.
Adams, 120 Idaho 350, 815 P2d 1090 (Ct.
App. 1991).
Because "unsoundness of mind" in
18-
6101(2) did not include the normal mental
capacity of a four-year-old child, the state was
not entitled to charge defendant, a minor,
with a violation of the statute where the
victim was a four-year-old child with normal
mental development; because the only crime
with which defendant could be charged, stat-
utory rape in violation of 18-6101(1), did
not provide for the waiver ofjuvenile jurisdic-
tion, defendant was not to be tried as an
adult. State v. Doe, 137 Idaho 691, 52 P.3d 335
(Ct. App. 2002).
Alternative Circumstances.
This section lists alternative "circumstanc-
es" under which a crime of rape may be
charged; it was meant to put beyond doubt
that proof of the various circumstances men-
tioned would establish the crime of rape. It
did not intend to create six different crimes.
(Ct. App. 1987).
Appeal by State.
The Supreme Court would not give I.A.R.
11(c)(6) a construction which would allow the
state an appeal when a rape prosecution was
dismissed subsequent to a guilty verdict but
prior to entry of judgment, nor would the
court exercise its plenary power to review
such a dismissal since nothing in the record or
historical Idaho jurisprudence suggested that
post guilty verdict dismissals have been fre-
quent or are likely to become frequent, and
thus, the case did not present a recurring
question, the resolution of which would be of
substantial importance in the administration
of justice in this state. State v. Dennard, 102
Idaho 824, 642 P.2d 61 (1982).
Assault With Intent to Rape.
Informations held sufficient: State v. Beard,
6 Idaho 614, 57 P. 867 (1899); State v. Neil, 13
Idaho 539, 90 P. 860 (1907).
commit rape, it is essential that the state
prove every fact necessary to constitute rape,
except penetration. State v. Neil, 13 Idaho
539, 90 P. 860 (1907).
Voluntary desistance by defendant is com-
plete defense. State v. Johnson, 26 Idaho 609,
144 P. 784 (1914).
Gravamen of offense of attempt to commit
rape is the specific intent with which assault
is made. State v. Andreason, 44 Idaho 396,
257 P. 370 (1927).
Assault with intent to commit rape is in-
cluded in crime of rape and there is no neces-
sity of charging commission of higher crime
with force and violence in case of statutory
rape, in order to permit verdict for lesser
offense. State v. Garney, 45 Idaho 768, 265 P.
668 (1928).
Where the defendant restrained the 11-
year-old girl by force, and touched her on the
thigh with his penis, before she escaped, the
jury did not unjustifiably infer an intent to
have sexual intercourse with the girl. State v.
App. 1982).
The crime of attempted rape is an included
offense in the crime of assault with intent to
commit rape; specific intent to commit the
rape is an element of both attempted rape and
assault with intent to rape where the rape
itself is not consummated. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).
Bastardy Proceedings.
Session Laws 1925, ch. 198, making it a
misdemeanor for a man, not being the hus-
band of a woman, to get her with child, and
providing for proceedings in bastardy cases, is
unconstitutional. State v. Wilmot, 51 Idaho
233, 4 P2d 363 (1931).
Burden of Proving Force.
In prosecution for rape against woman not
under legal disability to give consent, state
must prove force or violence; it is error for
court to charge that, the acts being commit-
ted, the burden is on defendant to prove
absence of force or violence. State v. Fowler,
13 Idaho 317, 89 P. 757 (1907).
Burglary.
Inasmuch as neither rape nor burglary is a
lesser included offense of the other, a burglary
was complete when defendant entered the
victim's residence with the intent to commit
rape, whereas the rape was not committed
until there was an act of sexual intercourse,
and each of these crimes required proof of
separate essential elements not required of
the other and the conviction of one would not
bar conviction of the other. State v.
McCormick, 100 Idaho 111, 594 P.2d 149
(1979).
Character of Accused.
Evil disposition of defendant may not be
shown by acts against a different girl, totally
dissociated and remote in time from act of
which he is accused. State v. Larsen, 42 Idaho
517, 246 P. 313 (1926), rev'd on other grounds,
44 Idaho 270, 256 P. 107 (1927).
Character of Female.
It is as much a crime to have sexual inter-
course with an unchaste female under age of
consent as with a chaste one. State v. An-
thony, 6 Idaho 383, 55 P. 884 (1899); State v.
Hammock, 18 Idaho 424, 110 P. 169 (1910);
State v. Henderson, 19 Idaho 524, 114 P. 30
(1911); State v. Dowell, 47 Idaho 457, 276 P.
39, 68 A.L.R. 1061 (1929).
Consent.
Ability to give legal consent is properly
defined in terms of (1) the ability to under-
stand and appreciate the possible conse-
quences of sexual intercourse, and (2) the
ability to make a knowing choice. State v.
Soura, 118 Idaho 232, 796 P2d 109 (1990).
The fact that a mentally disabled victim in
a sexual assault prosecution resisted an inva-
sion of her body could have been understood
by the jury to demonstrate that the victim,
like all humans, has volitional abilities; her
resistance and non-resistance did not conclu-
sively establish that she understood and ap-
preciated the physical, emotional and moral
consequences of sexual intercourse with the
defendant. State v. Soura, 118 Idaho 232, 796
P.2d 109 (1990).
A determination of capability for legal con-
sent depends in large part on the activity
involved and the purposes of the laws govern-
ing that activity, and it did not follow that the
victim in a sexual assault prosecution was
capable of legally consenting to sexual inter-
course with defendant by inference because
she had otherwise been deemed capable of
legally consenting to marriage, sexual rela-
tions within marriage, and termination of
parental rights to her infant daughter. State
v. Soura, 118 Idaho 232, 796 P.2d 109 (1990).
Section 18-6101(2) prohibits sexual inter-
493 RAPE 18-6101
course only with a female who can be deemed
of unsound mind due to mental illness, or-
ganic injury, mental retardation, or other
mental abnormality State v. Doe, 137 Idaho
691, 52 P.3d 335 (Ct. App. 2002).
Constitutionality.
Amendment of 1895 was constitutionally
passed. State v. McGraw, 6 Idaho 635, 59 P.
178 (1899).
This section does not violate the equal pro-
tection rights of males because rape, by defi-
nition, is an act of sexual intercourse, in
which the body of a female is penetrated; the
sexes are not similarly situated with respect
to the act of rape as nature has provided that
only a male can accomplish the penetration
by sexual intercourse. A female might aid or
abet a rape, or she might violate the body of
another person by means other than sexual
intercourse, but she is physiologically incapa-
ble of the act of rape and this dissimilarity
between the sexes constitutes an adequate
basis for classifying males as the only persons
subject to prosecution under the Idaho rape
law. State v. Greensweig, 103 Idaho 50, 644
P.2d 372 (Ct. App. 1982).
Protection of women from rape is a legiti-
mate, important state objective as rape is a
peculiarly degrading form of assault which
often results in a profound, enduring emo-
tional trauma that only its victims can fully
comprehend and, unlike any other crime that
might be committed against a victim of either
sex, rape forcibly imposes upon females the
unique risk of unwanted pregnancy. The con-
sequences of rape are not gender-neutral and
the gender classification embodied in the rape
law bears a substantial relationship to the
law's protective purpose. State v. Greensweig,
103 Idaho 50, 644 P.2d 372 (Ct. App. 1982).
In this section, the state is attempting to
protect women from sexual intercourse at an
age when the physical, emotional and psycho-
logical consequences of sexual activity are
particularly severe; because males alone can
physiologically cause the result which the law
properly seeks to avoid, a law punishing a
male for sexual intercourse with a teenager
under the age of 18 could certainly help deter
this conduct. Therefore, subdivision (1) of this
section is not unconstitutional as violative of
the equal protection clauses of the Idaho
State Constitution and the United States
Constitution. State v. LaMere, 103 Idaho 839,
655 P.2d 46 (1982).
Conviction on Testimony of Prosecutrix.
A defendant may be convicted of statutory
rape on the uncorroborated testimony of the
prosecutrix where the character of the
prosecutrix for truth remains unimpeached,
her character for chastity remains
unimpeached, and the circumstances sur-
rounding the offense are clearly corroborative
of the statements of the prosecutrix. State v.
Gee, 93 Idaho 636, 470 P.2d 296 (1970).
Corroboration of Prosecutrix.
Note: Many of the cases decided hereunder
were decided prior to State v. Byers, 102
Idaho 159, 627 P.2d 788 (1981) which held
that the requirement of corroboration in sex
Conviction for rape may be had upon uncor-
roborated evidence of prosecutrix, but when
the evidence of such prosecutrix is of contra-
dictory nature or her chastity or her reputa-
tion for truthfulness is impeached, her testi-
mony must be corroborated or judgment will
be set aside. State v. Anderson, 6 Idaho 706,
59 P. 180 (1899); State v. Trego, 25 Idaho 625,
138 P. 1124 (1914); State v. Short, 39 Idaho
446, 228 P. 274 (1924); State v. Bowker, 40
Idaho 74, 231 P. 706 (1924).
Evidence that accused and prosecutrix
were frequently together under circum-
stances in which he could have violated her,
and that she became pregnant during such
time and subsequently gave birth to child
whose paternity she charges to him, held
sufficient to corroborate her testimony of his
guilt. State v. Mason, 41 Idaho 506, 239 P. 733
(1925).
Evidence of defendant's attempt to procure
absence of prosecutrix along with other state-
ments of his, overheard and detailed by wit-
ness other than prosecutrix, was sufficient
corroboration of prosecutrix. State v. Smith,
46 Idaho 8, 265 P. 666 (1928).
Testimony of mother of prosecutrix in call-
ing for her children and finding that
prosecutrix alone was away with defendant,
and her relation of what followed, was suffi-
cient to corroborate testimony of prosecutrix.
State v. Haskins, 49 Idaho 384, 289 P. 609
(1930).
Judgment of conviction of rape based upon
testimony of prosecutrix alone can not be
sustained in any event unless circumstances
surrounding commission of offense are clearly
corroborative of her statements. State v.
Short, 39 Idaho 446, 228 P. 274 (1924); State
v. Bowker, 40 Idaho 74, 231 P. 706 (1924);
State v. Hines, 43 Idaho 713, 254 P. 217
(1927); State v. Larsen, 44 Idaho 270, 256 P.
107 (1927); State v. Elsen, 68 Idaho 50, 187
P.2d 976 (1947).
Evidence of opportunity alone is not suffi-
cient to furnish corroboration contemplated
by statute. State v. Short, 39 Idaho 446, 228 P.
274 (1924); State v. Bowker, 40 Idaho 74, 231
P. 706 (1924); State v. Elsen, 68 Idaho 50, 187
P.2d 976 (1947).
Uncorroborated testimony of prosecutrix is
generally considered insufficient where it is
inconsistent with admitted facts; where it
contains numerous and serious contradic-
tions; where it is inherently improbable or
incredible; or where it is obtained through
threats, coercion, or duress. State v. Bowker,
40 Idaho 74, 231 P. 706 (1947).
A defendant may be convicted of the crime
of rape upon the uncorroborated testimony of
the prosecutrix; but this is only so when the
character of the prosecutrix for chastity, as
well as for truth, is unimpeached, and where
the circumstances surrounding the commis-
sion of the offense are clearly corroborative of
the statements of the prosecutrix. State v.
Elsen, 68 Idaho 50, 187 P.2d 976 (1947).
What is meant by the rule of evidence that
the facts and circumstances surrounding the
commission of the offense are corroborative
and not contradictory of the statements of the
prosecutrix is that they must not only support
the testimony of the prosecutrix that her
person has been violated, but should also be of
such a character as to make it appear proba-
ble that the accused committed the offense.
State v. Elsen, 68 Idaho 50, 187 P2d 976
(1947).
No hard and fast rule can be laid down on
the subject of corroboration; each case must
depend upon its own merit and surrounding
circumstances. State v. Elsen, 68 Idaho 50,
187 P.2d 976 (1947).
State v. Byers, 102 Idaho 159, 627 P2d 788
(1981).
Where the conviction of a defendant in a
rape case was appealed to the supreme court
which struck down the requirement for cor-
roboration in rape cases, such decision altered
the legal rules of evidence so that less or
different testimony than the law required at
the time of the commission of the offense was
necessary in order to convict the offender;
accordingly, the conviction, which was not
supported by sufficient corroborating evi-
dence, was reversed since to have held defen-
dant to the new standard would have violated
the prohibition of Idaho Const., Art. I, 16
and U.S. Const., Art. I, 10 against ex post
facto laws. State v. Byers, 102 Idaho 159, 627
P.2d 788 (1981).
The new rule of the supreme court that
corroboration is unnecessary in rape cases
prosecuted under this section will only be
applied prospectively. State v. Byers, 102
Idaho 159, 627 P.2d 788 (1981).
Chastity.
Where the chastity and consent of the
prosecutrix are irrelevant for purposes of
proving the necessary elements of statutory
rape, the issue of her chastity is relevant with
respect to the amount of corroboration neces-
sary to support her testimony. State v. Gee, 93
Idaho 636, 470 P.2d 296 (1970).
In a prosecution for statutory rape, testi-
mony that prosecutrix did not date anyone
else but the defendant during the period
within which conception must have occurred
is corroborative of her direct testimony that
the defendant had unlawful relations with
her. State v. Gee, 93 Idaho 636, 470 P.2d 296
(1970).
Counsel.
An accused rapist was not entitled to have
counsel present at the photographic lineups
and showups at which he was identified by
the victims and eyewitnesses. State v.
Hoisington, 104 Idaho 153, 657 P.2d 17
(1983).
Upon retrial of the defendant for rape, the
defense attorney's decision not to interview
the victim was not clearly improper where he
had an opportunity to study her prior sworn
testimony. Estes v. State, 111 Idaho 430, 725
P2d 135 (1986).
In prosecution for rape, the defense attor-
ney's failure to investigate the victim's prior
sexual contacts did not constitute inadequacy
of counsel and the defendant failed to show
prejudice in the light of all the other evidence
corroborating the victim's testimony. Estes v.
State, 111 Idaho 430, 725 P.2d 135 (1986).
In prosecution for rape, the record sus-
tained the trial court's finding that the defen-
dant's conviction was not the result of any
alleged incompetent counsel, but resulted
from the strong identification testimony of the
victim, corroborated by other witnesses at the
scene, and the defendant's totally unbeliev-
able explanation for leaving the hotel right
after he had checked in and paid for his room,
only to be found sleeping in his car. Estes v.
State, 111 Idaho 430, 725 P.2d 135 (1986).
Deposition of Prosecutrix.
Where there was no showing whatsoever
that the prosecutrix would be unable to at-
tend the trial, there were no grounds upon
which to grant the motion to take the deposi-
tion of the prosecutrix and the court did not
err in refusing to allow it. State v. Filson, 101
Idaho 381, 613 P.2d 938 (1980).
Elements of Attempt.
An overt act is a required element of the
crime of attempted rape. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).
Evidence.
State may prove by prosecutrix and other
witnesses that she made complaint soon after
commission of alleged act, and show when,
where, and to whom and under what circum-
stances she made complaint, and her appear-
ance, demeanor, and physical condition at
time she made complaint; but details of the
conversations had and name of person ac-
cused by her may not be given by witness.
State v. Black, 36 Idaho 27, 208 P. 851 (1922);
State v. Garney, 45 Idaho 768, 265 P. 668
(1928).
495 RAPE 18-6101
Direct and positive evidence of absence of
marital relation is not necessary. State v.
Jeanoes, 36 Idaho 810, 213 P. 1017 (1923).
Leading questions are permitted where
prosecutrix is a young and unsophisticated
girl. State v. Larsen, 42 Idaho 517, 246 P. 313
(1926), rev'd on other grounds, 44 Idaho 270,
256 P. 107 (1927).
Asking leading questions is within discre-
tion of court. State v. Garney, 45 Idaho 768,
265 P. 668 (1928); State v. Alvord, 47 Idaho
162, 272 P. 1010 (1928).
Evidence of doctor as to result of his exam-
ination of prosecutrix nearly two months after
date of alleged offense held admissible, the
remoteness going to its weight. State v.
Smith, 46 Idaho 8, 265 P. 666 (1928).
Evidence that defendant had offered prose-
cuting witness and others intoxicating liquor
shortly before commission of alleged offense is
not admissible as part of res gestae, but it is
admissible as tending to show that defendant
planned by its use to accomplish his purpose.
State v. Alvord, 47 Idaho 162, 272 P. 1010
(1928).
Statements of accused made just before
alleged act of intercourse that he had some
"doctor instruments" and would help
prosecutrix if she were going to have a baby,
were admissible as tending to prove a plan or
design. State v. Alvord, 47 Idaho 162, 272 P.
1010 (1928).
Evidence of improper conduct between ac-
cused and a girl other than prosecutrix, in
presence of prosecutrix, was admissible. State
v. Dowell, 47 Idaho 457, 276 P. 39, 68 A.L.R.
1061 (1929).
Testimony of prosecutrix was not required
to be corroborated where testimony was not in
conflict with physical evidence and surround-
ing circumstances and character of
prosecutrix was not seriously impeached.
State v. Linebarger, 71 Idaho 255, 232 P2d
669(1951).
Admission of photograph showing scratches
on face of defendant taken by sheriff on day
following alleged assault did not violate con-
stitutional immunity of defendant against
self incrimination. State v. Linebarger, 71
Idaho 255, 232 P.2d 669 (1951).
Photographs showing condition of
prosecutrix' face on morning following alleged
assault, and photograph showing scene of
alleged assault were properly admitted in
evidence. State v. Linebarger, 71 Idaho 255,
232 P2d 669 (1951).
Objection by defendant charged with rape
to testimony of prosecutrix on redirect exam-
ination that she complained to mother and
showed her condition . of clothes on ground
that matter was not gone into on cross-exam-
ination, was properly overruled where
prosecutrix testified on cross-examination
that she did not complain to her companions.
State v. Linebarger, 71 Idaho 255, 232 P. 2d
669 (1951).
To permit medical testimony, in a trial for
rape, as to pain experienced by victim com-
pared with that of a new bride, is reversible
error. State v. Wilson, 93 Idaho 194, 457 P2d
433 (1969).
The mere fact that the testimony of wit-
nesses in a statutory rape case was sharply
conflicting only raised questions as to the
credibility of the Witnesses and the weight to
be given their testimony, and these were mat-
ters which were exclusively for the jury's
determination. State v. Gee, 93 Idaho 636, 470
P2d 296 (1970).
Trial court properly permitted the prosecut-
ing witness in a rape trial to testify that a
co-defendant had forced her to perform oral
sodomy upon him, since the jury was entitled
to base its decision upon a full and accurate
description of the events concerning the whole
criminal act, regardless of whether such a
description also implicates a defendant in
other criminal acts. State v. Izatt, 96 Idaho
667, 534 P.2d 1107 (1975).
Force or threats of bodily harm which pre-
vent a victim's resistance may be expressed
by acts and conduct of the accused as well as
by verbalized threats or displays of weaponry.
State v. Lewis, 96 Idaho 743, 536 P. 2d 738
(1975).
In a rape prosecution, evidence presented
by testimony of the investigating officer, the
doctor had examined the prosecutrix, and an
expert in conducting microscopic examina-
tions of hairs and fibers, when taken and
considered in its entirety was sufficient to
corroborate prosecutrix' account of the alleged
rape and sufficient to support defendant's
conviction. State v. Kraft, 96 Idaho 901, 539
P.2d 254 (1975), appeal dismissed, 99 Idaho
214, 579 P2d 1197 (1978).
In a prosecution for forcible rape where
prosecutrix had been in defendant's presence
for five and three-quarters hours, had looked
at his face in a well-lit gas station, and had
given a detailed description of her assailant to
police officers a short time after the incident,
the trial court's admission into evidence of
five photographs which were used in a pre-
trial photographic lineup that included defen-
dant was not error, even though prosecutrix
had gone to high school with three of the men
pictured and recognized them during the
lineup. State v. Cunningham, 97 Idaho 650,
551 P2d 605 (1976).
In a prosecution for rape, the admission
into evidence of a mugshot of defendant was
not error where the mugshot was offered to
prove an extrajudicial identification of defen-
dant and where the trial judge instructed the
jury that the photograph merely showed that
defendant had been arrested and that it was
not to be considered evidence that defendant
had any prior criminal record. State v.
Cunningham, 97 Idaho 650, 551 P.2d 605
(1976).
In rape prosecution, it was immaterial
whether hair samples matching defendant's
hair were located in the victim's bra or under-
pants; their presence in either place was
equally indicative of the defendant's involve-
ment with her. Moreover, where nurse testi-
fied to having sealed the envelope containing
four hairs and the criminalist testified that
these items were sealed when she received
them but also testified that when she opened
the envelope five hairs were found in it, con-
sidering the fragile nature of the hairs, it was
entirely possible that one could have broken
into two pieces and in all reasonable proba-
bility the article was not changed in any
material respect. Accordingly, the hairs were
properly admitted as evidence. State v.
LaMere, 103 Idaho 839, 655 P.2d 46 (1982).
Where officer observed a nurse bring a pair
of underpants out of the emergency room
where rape victim was being examined and
hand them to victim's mother who put the
underpants in her coat pocket and officer then
transported the victim and her mother to
second hospital, and while there he saw the
mother take the underpants out of her pocket
and hand them to the nurse, in all reasonable
probability the underpants were not changed
in any material respect. Therefore, no error
occurred in admitting the underpants into
evidence. State v. LaMere, 103 Idaho 839, 655
P.2d 46 (1982).
Where the victim, in a rape prosecution,
testified that the defendant had been wearing
"checkered pants with tan color," but the
arresting officer testified the pants the defen-
dant was wearing were blue, and blue pants
were admitted into evidence, the prosecutor's
comment concerning the color-blindness of
the victim could have been inferred from this
evidence and was not calculated to inflame
the minds of the jurors and arouse prejudice
or passion against the accused. The comment
was not so inherently prejudicial that an
objection, accompanied by an instruction by
the court to disregard the comment, would not
have cured the defect; accordingly, defen-
dant's failure to object precluded appellate
review. State v. LaMere, 103 Idaho 839, 655
P.2d 46 (1982).
The trial court in a rape prosecution did not
err in refusing to admit the expert testimony
of a psychiatrist concerning the reliability of
eyewitness identification, since the admissi-
bility of expert testimony is discretionary
with the trial court and absent an abuse of
discretion, a decision will not be disturbed on
appeal. State v. Hoisington, 104 Idaho 153,
657 P.2d 17 (1983).
Where the admissible evidence provided
beyond a reasonable doubt, overwhelming
and conclusive proof that the defendant was
guilty of rape, the admission of the court
reporter's testimony, regarding an incrimi-
nating statement which she heard defendant
make to his counsel at the preliminary hear-
ing, if erroneous, was harmless. State v.
(1983).
On appeal from a conviction of rape, where
the defendant had requested a disclosure of
the state's evidence, under I.C.R. 16, and in
response the state disclosed evidence of a torn
piece of panties found at the alleged scene of
the rape and also listed a criminalist as a
potential expert witness, the defendant was
not prejudiced by the state's late disclosure of
such criminalist's forensic laboratory report
identifying the torn piece of panties as belong-
ing to the victim, where the state delivered
such report to the defendant's counsel on the
day it was received by the state, although only
three days before trial, and where there was
no evidence that the expert misidentified the
piece of evidence. State v. Hansen, 108 Idaho
902, 702 P.2d 1362 (Ct. App. 1985).
The district court did not err when it stated
that the state laboratory found that the de-
fendant was a Type O secreter where the
forensic chemist for the state laboratory tes-
tified that the defendant had Type O blood,
she further testified that a blood test per-
formed on a sample of the defendant's blood
indicated that the defendant was a secreter
and she found the result of a saliva test which
showed that the defendant was not a secreter,
was at best anomalous. Estes v. State, 111
Idaho 430, 725 P.2d 135 (1986).
In prosecution for rape the evidence was
more than sufficient to corroborate the vic-
tim's testimony, where the defendant asked
the bartender what the victim's hotel room
number was, he then checked into the hotel,
bought a bottle of wine which he had been
advised was her favorite brand, and went
upstairs from the bar to where both his room
and the victim's room were located, approxi-
mately an hour later, the bartender heard the
victim's screams, heard someone running
down the stairs, and observed that the defen-
dant's automobile, which had been parked in
front of the hotel, was gone, and the defen-
dant was found in possession of a knife sub-
stantially identical to that described by the
victim shortly after the rape. State v. Estes,
111 Idaho 430, 725 P.2d 128 (1986).
Where, in prosecution for rape, the defen-
dant admitted engaging in intercourse with
the alleged victim, and the only material
issue was whether the intercourse had been
consensual or forced, the testimony concern-
ing "passes" made by the defendant toward
other women on the day of the alleged rape
had marginal relevancy and carried a high
risk of unfair prejudice. State v. Clay, 112
497 RAPE 18-6101
Idaho 261, 731 P.2d 804 (Ct. App. 1987).
Where, in a prosecution for rape and lewd
and lascivious conduct with a minor, a physi-
cian did not suggest how, when or by whom a
bruise could have been caused, but simply
opined that a bruise observable one day would
likely be visible a few days later, there was no
error in allowing the testimony. State v. Gong,
115 Idaho 86, 764 P.2d 453 (Ct. App. 1988).
civious conduct with a minor, expert opinion
regarding the social beliefs, characteristics
and mores of the local Hispanic people, par-
ticularly the females' desire to protect their
husbands or lovers, would not be relevant to
show that the victim and her mother might
have been trying to protect the actual perpe-
trator of the crimes charged against the de-
fendant, where the defendant did not produce
any evidence reasonably tending to show that
another person committed the crimes. State v.
Gong, 115 Idaho 86, 764 P.2d 453 (Ct. App.
1988).
Where testimony presented at trial estab-
lished to the satisfaction of the jury that
defendant had intercourse with the girl in the
bedroom, then left the bedroom and went to
the living room for an unspecified period of
time, and then returned to the bedroom and
again engaged in sexual intercourse with the
girl, the jury was properly instructed, and
there was substantial evidence in the record
supporting its findings that there were two
separate and distinct acts of rape. State v.
Grinolds, 121 Idaho 673, 827 P.2d 686 (1992).
858 P.2d 800 (Ct. App. 1993).
Force.
Evidence of force clearly is not required to
support a finding of rape under subdivision 4
of this section. State v. Gossett, 119 Idaho 581,
808 P.2d 1326 (Ct. App. 1991).
Evidence of physical injury is not necessary
to establish the use of force in a rape prose-
cution. It was relevant, however, where it
tended to corroborate the complaining wit-
ness' version of the events surrounding the
alleged rape and to contradict the defendant's
claim of consent. State v. Peite, 122 Idaho 809,
839 P.2d 1223 (Ct. App. 1992).
Harmless Error.
Where even if the prosecutor's statement
that defendant took victim's virginity away
from her had been properly excluded from the
trial, there was ample evidence to convince
appellate court beyond a reasonable doubt
that the jury would still have arrived at the
same verdict, the comment amounted to
harmless error. State v. LaMere, 103 Idaho
839, 655 P.2d 46 (1982).
The district court did not commit prejudi-
cial error when it admitted testimony from a
deputy sheriff that victim had identified de-
fendant in a photographic lineup. Although
defendant admitted to having sex with victim
on the night in question, admission of a con-
sistent statement by victim on the undisputed
facts did not contribute to the verdict of the
jury, where the sole issue before it was con-
sent. State v. Peite, 122 Idaho 809, 839 P2d
1223 (Ct. App. 1992).
Impeachment of Prosecutrix.
In prosecution for rape of female under age
of consent, evidence of acts of familiarity on
the part of prosecutrix with men other than
defendant is not admissible for purpose of
discrediting and impeaching her. State v.
Pettit, 33 Idaho 326, 193 P. 1015 (1920); State
v. Farmer, 34 Idaho 370, 201 P. 33 (1921);
State v. Black, 36 Idaho 27, 208 P. 851 (1922);
State v. Alvord, 47 Idaho 162, 272 P. 1010
(1928); State v. Dowell, 47 Idaho 457, 276 P.
39, 68A.L.R. 1061(1929).
Where state introduces expert medical tes-
timony tending to show that act of sexual
intercourse had been committed, accused may
introduce evidence tending to show that
prosecutrix had had sexual intercourse with
others, thus negativing inference of guilt
drawn from medical expert's testimony. State
v. Pettit, 33 Idaho 326, 193 P. 1015 (1920).
The reputation of the prosecutrix for chas-
tity remained unimpeached where the record
was devoid of evidence tending to show that
she was of unchaste character prior to engag-
ing in sexual relations with the defendant,
and the evidence of prior acts of intercourse
between the prosecutrix and the defendant
did not defeat her claim of chastity. State v.
Gee, 93 Idaho 636, 470 P.2d 296 (1970).
In prosecution for forcible rape where de-
fendant did not base his defense on consent
and offered no evidence to support such a
claim, neither the evidence of the general
reputation of the prosecutrix for unchastity,
nor specific acts of sexual intercourse between
her and others besides defendant were admis-
sible. State v. Cunningham, 97 Idaho 650, 551
P.2d 605 (1976).
In prosecution for forcible rape where de-
fendant sought to interrogate the prosecutrix
and the doctor who examined her as to
whether prosecutrix was a virgin prior to the
alleged attack, but where defendant made no
attempt to deal with specific acts of inter-
course during the time period of the attack,
the trial court was correct in finding such
questioning inadmissible. State v.
Cunningham, 97 Idaho 650, 551 P2d 605
(1976).
In prosecution for forcible rape, where no
foundation was laid for the purpose of im-
peaching testimony of prosecutrix, the ques-
tion of prosecutrix' virginity was not relevant
to her reputation for truth, honesty and ve-
racity. State v. Cunningham, 97 Idaho 650,
551 P.2d 605 (1976).
Incest.
Where the defendant was charged with the
rape of an 18-year-old woman under this
section, but the information made no refer-
ence to the fact that the victim was the
defendant's daughter, the defendant could not
be convicted of incest under 18-6602, since
incest is not a lesser included offense of rape
and since it would violate due process to
convict a defendant for a crime not charged;
however, upon the setting aside of the convic-
tion of incest, there was no constitutional
barrier to a subsequent prosecution for that
offense, since the defendant had never been
charged with and prosecuted for the crime of
incest. State v. Madrid, 108 Idaho 736, 702
P.2d 308 (Ct. App. 1985).
It is clear that incest, as denned by
18-
6602, includes the element of a familial rela-
tionship between the defendant and the vic-
tim, which element is not present in or
necessary to the commission of rape under
any subdivision of this section; since the
crime of incest contains an element which is
not necessary to the crime of rape, incest is
not a lesser included offense of rape under the
traditional statutory approach to lesser in-
cluded offenses. State v. Madrid, 108 Idaho
736, 702 P.2d 308 (Ct. App. 1985).
Included Offense.
Acts leading to statutory rape

sexual
intercourse with a female child

would
evince an intent necessary to invoke the lewd
conduct statute and, accordingly, lewd con-
duct is an included offense of statutory rape.
State v. Gilman, 105 Idaho 891, 673 P.2d 1085
(Ct. App. 1983).
Assault with a deadly weapon is not "nec-
essarily committed" in the commission of at-
tempted rape, because attempted rape is not
always committed with a deadly weapon nor
is attempted rape necessarily committed in
an assault with a deadly weapon, because
such an assault is not always committed with
an intent to rape; thus, where neither crime
was alleged in the prosecutor's information to
be the means or an element of the commission
of the other, assault with a deadly weapon
was not an included offense of the attempted
rape. Bates v. State, 106 Idaho 395, 679 P.2d
672 (Ct. App. 1984).
Information.
Information, which charged that act of rape
was committed "forcibly" and by threats of
great and immediate bodily harm accompa-
nied by the apparent power of execution and
against the consent of the prosecutrix, and
that she "did then and there resist the accom-
plishment of said act
***
but her resistance
was then and there overcome by force and
violence
***,"
charged but one offense. State v.
Linebarger, 71 Idaho 255, 232 P. 2d 669
(1951). ,
Information, which charged defendant with
committing lewd and lascivious acts on fe-
male under the age of 16 with the intent of
arousing, appealing to and gratifying the
lusts and passions of sexual desires of said
defendant and of said minor, and which added
"with the intent and purpose of having sexual
intercourse with the said minor child," the
last sentence was surplusage, since state in-
tended to charge defendant under former
18-6607 (now
18-1508), to wit, lewd and
136, 248 P2d 218 (1952), appeal dismissed,
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1953).
345 U.S. 938, 73 S. Ct. 834, 97 L. Ed. 1364
(1958).
If an offense is "included" in the crime
charged, a defendant may be fairly said to
have constructive notice of the alleged con-
duct comprising it and such notice is not
defeated by the fact that the included offense
may carry a heavy penalty; accordingly, infor-
mation charging statutory rape of a 12-year-
old girl furnished constructive notice to defen-
dant that he might be convicted of lewd
conduct as an included offense. State v.
Gilman, 105 Idaho 891, 673 P2d 1085 (Ct.
App. 1983).
Where an information charging rape in-
cluded the essential elements that defendant
accomplished an act of sexual intercourse
with the complaining witness, a female, that
was not his wife, and that he did so against
her will, and where it also set forth facts
indicating that the complaining witness at-
tempted to resist but that her attempt was
thwarted by fear that the defendant would
hurt her, under the liberal rules of interpre-
tation which are to be applied here, these
allegations give rise to an inference that de-
fendant used force or threats to overcome
resistance, and the element of "lack of con-
sent" necessary to allege a violation of this
section can be found in the language of the
information. State v. Robran, 119 Idaho 285,
805 P.2d 491 (Ct. App. 1991).
In prosecution for rape, although the one
count information was defective because it
did not expressly allege that the victim re-
sisted but her resistance was overcome by
force or violence, an element of the offense
defined by this section, even though a well-
499 RAPE 18-6101
drafted information charging a violation of
this section should include allegations that
the victim resisted, and that her resistance
was overcome by force or violence, the omis-
sion of the allegations was not fatal where
there was evidence that the act was accom-
plished with great force carrying an obvious
implication that the act was done without
victim's consent and over her resistance.
State v. Chapa, 127 Idaho 786, 906 P.2d 636
(Ct. App. 1995).
Amendment.
Where the defendant in a rape prosecution
had been aware of the victim's age before the
filing, one day prior to trial, of an amended
information alleging statutory rape and he
did not make a claim that he could have
disputed her age, the defendant's rights were
not prejudiced from the amendment, and
therefore, there was no abuse of discretion.
State v. LaMere, 103 Idaho 839, 655 P.2d 46
(1982).
Defendant charged with rape by means of
force was not unfairly prejudiced by amend-
ment of information to include the phrase "of
the age of
15"
following the victim's name
before the closing of the state's case-in-chief
where defendant had knowledge of the vic-
tim's age, where the court offered to permit
recall of the complaining witness, and where
defendant was unable to specify how the
amendment materially impaired his defense.
(Ct. App. 1987).
In trial for rape by means of force court did
not err in denying defendant's motion for
continuance made after amendment of infor-
mation by addition of the phrase "of the age of
15 years" following the victim's name before
the closing of state's case-in-chief since defen-
dant was not unfairly prejudiced by such
amendment since he had knowledge of vic-
tim's age and court offered to permit recall of
complaining witnesses. State v. Banks, 113
Idaho 54, 740 P.2d 1039 (Ct. App. 1987).
Since each circumstance in this section
merely describes an alternative element of
the crime of rape, or nonconsensual sexual
intercourse, for the purpose of subsection (e)
I.C.R. 7 amendment to information to include
the phrase "of the age of 15 years" following
the victim's name did not charge defendant
with an additional or different offense. State
v. Banks, 113 Idaho 54, 740 R2d 1039 (Ct.
App. 1987).
Giving the amended information a fair and
reasonable construction, and by construing
the document liberally in favor of its validity,
it was held that the language charging defen-
dant with attempted rape was not so defective
as to fail to inform him of the element of
intent to commit rape which was essential to
the crime charged; as a result, the decisions of
the district court denying defendant's motions
to dismiss the amended information were
upheld. State v. Leach, 126 Idaho 977, 895
P2d 578 (Ct. App. 1995).
Instructions.
The court's failure to instruct the jury in a
statutory rape prosecution that the testimony
of prosecutrix relating to previous acts of
intercourse between her and the defendant
was admissible for the limited purpose of
establishing relationship between the parties
could not be assigned as error where the
defendant had not requested such an instruc-
tion. State v. Gee, 93 Idaho 636, 470 P.2d 296
(1970).
In a rape prosecution the trial court was not
required to give an instruction on the duty of
the jury to judge the credibility of witnesses
or to give instructions on the included of-
fenses of simple assault and battery or as-
sault with intent to commit rape, in the ab-
sence of defendant's request for these
instructions at trial. State v. Kraft, 96 Idaho
901, 539 P.2d 254 (1975), appeal dismissed, 99
Idaho 214, 579 P.2d 1197 (1978).
In prosecution for statutory rape, where lay
persons unfamiliar with the underlying stat-
utes reasonably might have interpreted the
repeated references to "lesser" offenses, in-
jury instructions, as signifying that each of
the offenses listed, including lewd conduct,
was less serious than the crime charged and,
moreover, reasonable jurors

noting the
sequence of the offenses listed and judge's
statement that the crimes were different in
"degree"
well could have believed that lewd

conduct was the least serious of the "lesser"
crimes, the jury instruction erroneously char-
acterized the seriousness of lewd conduct in
relation to the crime charged and to other
included offenses. However, the error in the
instruction, relating to the seriousness of the
offense, did not alter the jury's choice of the
crime committed and, therefore, it was harm-
less beyond a reasonable doubt. State v.
Gilman, 105 Idaho 891, 673 P.2d 1085 (Ct.
App. 1983).
civious conduct with a minor, the defendant's
proposed instruction that the charge made
against the defendant was easily made, hard
to prove, and harder to defend against was
improper. State v. Gong, 115 Idaho 86, 764
P.2d 453 (Ct. App. 1988).
Where, with regard to the jury instructions
in a rape prosecution, where the definitions of
rape were taken verbatim from this section,
the additional instructions suggested by de-
fendant were not necessary, and the instruc-
tions given were sufficient to inform the jury
of the law applicable to their determination of
innocence or guilt. State v. Robran, 119 Idaho
285, 805 P.2d 491 (Ct. App. 1991).
In view of the jury instructions given, which
adequately apprised the jury of the elements
that must be proved in order to convict for
rape, the Court of Appeals concluded that the
inclusion of "fear" and "fearful" language in
the information, which did not relate to ele-
ments of the crime, was harmless. State v.
Headlee. 121 Idaho 979. S29 P.2d 869 Ct.
App. 1992 .
The court admitted the photographs of vic-
tim's bruises subject to a motion to strike if
state failed to later connect it up with
victim's testimony. Later, victim testified and
the state asked the court to instruct the jury
to consider the bruises as being caused by
defendant. The Idaho Court of Appeals found
the court's instruction on the admissibility of
the photographs entirely neutral. State v.
Peite. 122 Idaho 809, 839 P.2d 1223 Ct. App.
1992 .
Where defendant was convicted of rape and
:ed on appeal that the use of the acces-
sory liability instruction deprived him of due
process, for it allowed the jury to consider
whether he was guilty of either of two offenses
when only one offense had been charged by
the information, the court erred in giving
such instruction. State v. Chapa. 127 Idaho
7S6. 906 P.2d 636 'Ct. App. 1995 .
Where general verdict form was used, ask-
ing the jury only whether defendant was
guilt}" of "the charge of rape." the verdict did
not reveal whether all the jurors found him
guilty of the same act of rape or whether their
verdict was unanimous only in that each juror
found him guilty of one or the other of the two
rapes and defendant was thus deprived of due
process when the state, having charged the
commission of only one offense in the infor-
mation, advanced charges of two distinct
crimes through instructions given to the jury
State v. Chapa. 127 Idaho 786. 906 P2d 636
Ct. App. 1995 .
Intent.
Statutory rape requires only a general
criminal intent to prove a violation. State v.
Stiffler. 117 Idaho 405. 788 P2d 220
-
19,
Statutory rape is not a crime requiring
proof of specific intent to have intercourse
with a female under the age of 18 years. State
v. Stiffler, 117 Idaho 405, 788 P.2d"220 1 1990 >.
Although the jury found that defendant did
not commit rape, there was substantial evi-
dence from which the jury could have found
that he intended to commit rape. State v.
Bolton. 119 Idaho 846. 810 P.2d 1132 < Ct. App.
1991 .
Rape, performed by overcoming the resis-
tance of the victim by force or violence, is not
a specific intent crime, thus defendant was
not entitled to jury instruction that voluntary
intoxication may negate an element of specific
intent. State v. Lopez. 126 Idaho 831, 892 P.2d
89S Ct. App. 1995 -.
Defendant's conviction of first degree kid-
napping was proper where there was substan-
tial competent evidence upon which the jury
could rely in determining that defendant pos-
sessed the intent to rape the victim at the
time he committed the kidnapping. State v.
Norton. 134 Idaho 875, 11 P.3d 494 (Ct. App.
2000 1.
Legislative Purpose.
The prevention of illegitimate teenage preg-
nancies is one of the objectives behind this
section and the state has a strong interest in
furthering this important governmental ob-
jective. State v. LaMere. 103 Idaho 839, 655
P.2d 46 (1982).
Battery with intent to commit rape is a
lesser included offense of forcible rape. State
v. Bolton. 119 Idaho 846. 810 P2d 1132 (Ct.
App. 1991L
Marital Status.
Under Idaho's current statutory scheme
relating to rape, nonmarriage is not an essen-
tial element of the crime of rape; rather, the
existence of a marital status between the
victim and the accused is an affirmative de-
fense which must be placed in issue by the
accused. State v. Huggins, 105 Idaho 43, 665
P.2d 1053 I 1983 ...
Prior Offenses.
Testimony of prior assault by defendant
upon prosecutrix, in no way connected with
offense for which defendant is being tried,
was not admissible. State v. Garney, 45 Idaho
768, 265 P. 668 1 1928).
It was reversible error, in prosecution for
rape, to allow the state to prove that accused
was guilty of other offenses of a different
character in no way related to the crime
charged and it was equally erroneous to allow
proof that witnesses for accused were guilty of
offenses in no way associated with the crime
charged. State v. Machen, 56 Idaho 755, 58
P2d 1246 '1936i.
Prosecutional Misconduct.
It was not prosecutorial misconduct to
question the defendant as to the reasonable-
ness of his renting a room at the hotel where
rape victim was staying and leaving the room
unused, even though the state had said it
would not ask for a "flight instruction" for the
jury, where the focus of the prosecutor's ques-
tioning was not upon the defendant's at-
tempts to flee the scene of the crime, but upon
the absurdity of his alibi, and the defendant
failed to indicate any way in which this line of
questioning prejudiced his case. State v.
Estes. Ill Idaho 423, 725 P.2d 128 (1986).
Purpose.
The purpose of this section is to protect
women with mental disabilities from the
501 RAPE 18-6101
many potential difficulties resulting from
non-marital sexual relations. State v. Soura,
118 Idaho 232, 796 P.2d 109 (1990).
Question of Fact.
Penetration is an essential element of the
crime of rape. The evidence in this case cre-
ated a factual question regarding penetration,
and the district court usurped the function of
the jury and made a factual finding that
penetration had occurred, thereby removing
from the province of the jury a factual finding
beyond a reasonable doubt that penetration
had occurred, and as such, defendant's rights
at trial were violated. State v. Gittins, 129
Idaho 54, 921 P.2d 754 (Ct. App. 1996).
Resistance.
Where the complaining witness testified
that she did not resist advances of the defen-
dants because she feared for her life, it was
error for the court to dismiss rape charges on
defendants' motion for acquittal on the
ground that elements of the crime had not
been proven beyond a reasonable doubt. State
v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975).
Where defendant, uninvited and unan-
nounced, entered the home of a sleeping
woman at night, where he went into her
bedroom, and, in the dark, climbed naked into
bed with her, where the complaining witness
testified that she had never before met defen-
dant, and when she realized he was next to
her, she was scared to death and was unable
to determine just what he was capable of, and
where defendant had intercourse with victim,
the evidence adduced at the trial was suffi-
cient to support the conviction under either
subsection (3) or subsection (4) of this section.
State v. Robran, 119 Idaho 285, 805 P.2d 491
(Ct. App. 1991).
In prosecution for rape a reasonable jury
could find that the complaining witness was
prevented from resisting by threats of harm
where defendants made a late-night, unin-
vited, and unannounced entrance into home
while the occupants were asleep and the com-
plaining witness was unaware of their pres-
ence and awoke to discover them trying to
remove her underwear and she testified that
she couldn't think or function, that she was
just afraid and where there was great dispar-
ity between the size of the witness and the
defendants even though complaining witness
offered no physical resistance, and the defen-
dants made no spoken threats nor displayed
any weapons. State v. Gossett, 119 Idaho 581,
808 P.2d 1326 (Ct. App. 1991).
This section does not require evidence of a
spoken threat or a visible display of weaponry
to sustain a conviction under subsection (4).
State v. Gossett, 119 Idaho 581, 808 P.2d 1326
(Ct. App. 1991).
Reversible Error.
Unnecessary remarks of court while over-
ruling various motions and objections of de-
fendant were not prejudicial where remarks
were to a limited extent justified by surround-
ing circumstances. State v. Linebarger, 71
Idaho 255, 232 P.2d 669 (1951).
Cross-examination of defendant on rela-
tions between defendant and his first wife
prior to marriage was not reversible error.
State v. Linebarger, 71 Idaho 255, 232 P.2d
669 (1951).
Reference by sheriff on direct examination
that he had previously investigated another
charge of rape against defendant was not
reversible error. State v. Linebarger, 71 Idaho
255, 232 P.2d 669 (1951).
Search and Seizure.
Where in a rape prosecution the evidence
showed that the defendant's presence at the
police station was voluntary, and he in no way
limited or conditioned his voluntary appear-
ance, or protested the fingerprinting, and was
not forcefully or coercively intimidated from
doing so, it could not be said that the defen-
dant's fingerprinting was the result of an
illegal detention, and therefore violative of
the Fourth Amendment prohibition against
illegal searches and seizures. State v.
(1983).
Sentence.
Sentence of 20 years was excessive where
evidence did not show aggravation to the
extent present in other cases, hence sentence
was reduced to five years. State v. Linebarger,
71 Idaho 255, 232 P.2d 669 (1951).
A defendant who burglarizes a residence,
with the intent to commit rape, and then does
in fact commit the rape deserves to be pun-
ished more severely than a defendant who
does not commit the intended act after he has
entered the residence. State v. McCormick,
100 Idaho 111, 594 P.2d 149 (1979).
817 P.2d 1083 (Ct. App. 1991).
Where defendant, an orderly in a nursing
home, was convicted of raping a 77 year-old
woman diagnosed as suffering from
Alzheimer's disease and defendant stated he
saw nothing wrong with his actions, a unified
sentence of life with a minimum period of
confinement often years, was not an abuse of
discretion. State v. Grove, 120 Idaho 950, 821
P.2d 1005 (Ct. App. 1991).
A unified sentence of eight years in the
custody of the Board of Correction, with a
minimum period of confinement of forty-two
months for rape was reasonable where the
victim was a fifteen-year-old girl defendant
had met at a party and defendant's prior
record consisted of some misdemeanor
charges, two DUIs and a reckless driving
charge. State v. Anderson, 121 Idaho 534, 826
P.2d 495 (Ct. App. 1992).
Given defendant's prior record as a persis-
tent violator and the reprehensible nature of
the offense, the district court did not abuse its
discretion by imposing a sentence of thirty
years, with a minimum period of thirteen
years confinement, for statutory rape. State v.
Spor, 134 Idaho 315, 1 P.3d 816 (Ct. App.
2000).
State's Burden of Proof.
Even though there is no requirement of
corroboration in rape cases under this section,
the state must still show under I.C.R. 5 that a
crime has been committed and that there is
probable cause that defendant committed it,
and the court should grant a judgment of
acquittal under I.C.R. 29 where the evidence
is found insufficient to support a guilty ver-
dict. State v. Byers, 102 Idaho 159, 627 P2d
788 (1981).
Verdicts.
Jury verdicts of guilty on a rape charge and
not guilty as to an infamous crime against
nature charge are rationally reconcilable and
therefore were not impermissibly inconsis-
tent. State v. Lopez, 126 Idaho 831, 892 P. 2d
898 (Ct. App. 1995).
Victim's Past Sexual Conduct.
District Court did not err by prohibiting
inquiry at trial into statutory rape victim's
past sexual conduct where defendant sought
to show victim's consent since consent is not a
defense to statutory rape. State v. Palin, 106
Idaho 70, 675 P.2d 49 (Ct. App. 1983).
P.2d 49 (Ct. App. 1983).
The evidence of complaining witness' sex-
ual advances, over a period of several years,
toward some of the men she had met in a bar,
was not relevant, in itself, to establish that
she consented to have sex with defendant.
State v. Peite, 122 Idaho 809, 839 P.2d 1223
(Ct. App. 1992).
Voluntariness of Plea.
Where information specifically alleged that
defendant "intentionally" attempted to rape
the victim, where there was no assertion that
defendant was not conversant with the En-
glish language nor was he a stranger to the
charge of attempted rape, having been previ-
ously convicted of attempted rape and forcible
rape, and where details of assault were fully
explored at preliminary hearing, the defen-
dant was made aware, before pleading guilty,
of evidence the State could offer at trial to
prove both the acts and the intent comprising
the attempted rape, and the district court did
not err in determining that, under both the
federal and state standards, pleas of guilty to
attempted rape and assault with a deadly
weapon were voluntary. Bates v. State, 106
Idaho 395, 679 P.2d 672 (Ct. App. 1984).
Rape, 1 et seq.
75 C.J.S., Rape, 1 et seq.
Compulsory examination of one accused of
rape for venereal disease. 2 A.L.R. 1332; 22
A.L.R. 1189.
Presumption and burden of proof as to
chastity under statutes making chastity an
ingredient of rape. 3 A.L.R. 1462.
in offense of rape which he is incapable of
1110; 131 A.L.R. 1322.
Marriage subsequent to crime as bar to
prosecution for rape. 9 A.L.R. 339.
evidence. 17 A.L.R. 923.
"Infamous offense," rape as, within consti-
tutional or statutory provision in relation to
presentment or indictment by grand jury. 24
A.L.R. 1016.
Competency of prosecutrix as witness in
prosecution for rape of feeble-minded female.
26 A.L.R. 1502; 148 A.L.R. 1140.
Reduction of appellate court of punishment
A.L.R. 295.
Cross-examination of prosecuting witness
as to sexual morality. 65 A.L.R. 421.
Assault with intent to ravish consenting
female under age of consent. 81 A.L.R. 599.
Rape cases, admissibility in, of evidence of
previous acts of unchastity on part of
prosecutrix. 140 A.L.R. 364.
Complaint or details of complaint by al-
leged victim of rape, admissibility of evidence
of, as affected by fact that she is not a witness
or is incompetent to testify because of age or
other reason. 157 A.L.R. 1359.
Blood grouping tests on issue of identity in
rape prosecutions. 46 A.L.R.2d 1000.
Admissibility and propriety, in rape prose-
cution, of evidence that accused is married,
has children, and a wife. 62 A.L.R.2d 1067.
Pregnancy, admissibility, in non-statutory
rape prosecution, of evidence of. 62 A.L.R.2d
1083.
Applicability of rape statute covering chil-
dren of a specified age, with respect to a child
who is past the anniversary date of such age.
73 A.L.R.2d 874.
503 RAPE 18-6103
Incest as included within charge of rape. 76
A.L.R.2d 484.
Cautionary instructions as to evidence of
other similar offense. 77 A.L.R.2d 906; 2
A.L.R.4th 330.
Rape by fraud or impersonation. 91
A.L.R.2d 591.
Mistake or lack of information as to victim's
age as defense to statutory rape. 8 A.L.R.3d
1100.
Impotency as defense to charge of rape or
assault with intent to commit rape. 23
A.L.R.3d 1351.
Rape or similar offense based on inter-
course with woman who is allegedly mentally
deficient. 31 A.L.R.3d 1227.
When woman deemed to be within class
contemplated by statute denouncing offense
of carnal knowledge of female who is feeble-
minded or an imbecile. 31 A.L.R.3d 1227.
Statutory rape of female who is or has been
married. 32 A.L.R.3d 1030.
Admissibility of prosecution evidence on
issue of consent, that rape victim was a vir-
gin, absent defense attack on her chastity. 35
A.L.R.3d 1452.
Mistake or lack of information as to victim's
chastity as defense to statutory rape. 44
A.L.R.3d 1434.
Recantation by prosecuting witness in sex
crime as ground for new trial. 51 A.L.R.3d
907.
What constitutes penetration in prosecu-
tion for rape or statutory rape. 76 A.L.R.3d
163.
Fact that rape victim's complaint or state-
ment was made in response to questions as
affecting res gestae character. 80 A.L.R.3d
369.
Multiple instances of forcible intercourse
involving same defendant and same victim as
constituting multiple crimes of rape. 81
A.L.R.3d 1228.
Propriety of publishing identity of sexual
assault victim. 40 A.L.R.5th 787.
Criminal responsibility of husband as for
rape, or assault to commit rape, on wife. 24
A.L.R.4th 105.
ligence

Modern status of rule regarding necessity
for corroboration ofvictim's testimony in pros-
ecution for sexual offenses. 31 A.L.R.4th 120.
Necessity or permissibility of mental exam-
ination to determine competency or credibil-
ity of complainant in sexual offense prosecu-
tion. 45 A.L.R.4th 310.
Conviction of rape or related sexual of-
fenses on basis of intercourse accomplished
under the pretext of, or in the course of,
medical treatment. 64 A.L.R.4th 1064.
Defense of mistake of fact as to victim's
consent in rape prosecution. 102 A.L.R.5th
447.
18-6102. Proof of physical ability.

No conviction for rape can be
had against one who was under the age of fourteen (14) years at the time of
the act alleged, unless his physical ability to accomplish penetration is
proved as an independent fact, and beyond a reasonable doubt. [I.C.,
18-6102, as added by 1972, ch. 336, 1, p. 844.]

8263;I.C.A. 17-1602 was repealed by S.L.
18-6103. Penetration.

The essential guilt of rape consists in the
outrage to the person and feelings of the female. Any sexual penetration,
however slight, is sufficient to complete the crime. [I.C.,

18-6103, as added
by 1972, ch.
336, 1, p. 844.]
C.L.,
6767; C.S., 8267; I.C.A.,
17-1603
Cited in: State v. Greensweig, 103 Idaho
50, 644 P.2d 372 (Ct. App. 1982).
Analysis
Evidence.
Evidence.
To permit medical testimony, in a trial for
rape, as to pain experienced by victim com-
pared with that of a new bride, is reversible
error. State v. Wilson, 93 Idaho 194, 457 P.2d
433 (1969).
This section is not a statement of legislative
intent, but rather, refers to the quantum of
evidence necessary to establish that an act of
sexual intercourse has occurred. State v.
LaMere, 103 Idaho 839, 655 P.2d 46 (1982).
18-6104. Punishment for rape.

Rape is punishable by imprison-
ment in the state prison not less than one (1) year, and the imprisonment
may be extended to life in the discretion of the District Judge, who shall pass
sentence. PLC.,
18-6104, as added by 1972, ch. 336, 1, p. 844.1
C.L., 6768; C.S., 8265; I.C.A.,
17-1604;
Cited in: In re Chase, 18 Idaho 561, 110 P.
1036 (1910); In re Setters, 23 Idaho 270, 128
P. 1111 (1913); State v. Cornwall, 95 Idaho
680, 518 P.2d 863 (1974); State v. Gilman, 105
Idaho 891, 673 P.2d 1085 (Ct. App. 1983);
State v. Goodson, 112 Idaho 935, 736 P2d
1389 (Ct. App. 1987); Hays v. State, 113 Idaho
736, 747 P.2d 758 (Ct. App. 1987); State v.
Carman, 114 Idaho 791, 760 P.2d 1207 (Ct.
App. 1988); State v. Salter, 125 Idaho 418, 871
P.2d 835 (Ct. App. 1994); State v. Faught, 127
Idaho 873, 908 P.2d 566 (1995).
Analysis
Construction.
Resentencing.
Sentence.
Excessive.
Independent of other sentences.

Maximum.
Upheld.
Construction.
Provision of section providing for sentence
of not less than one year, and that imprison-
ment may be extended to life at the discretion
of the court did not conflict with 19-2513,
which provides that court in imposing sen-
tence for commission of a felony shall sen-
tence offender for an indeterminate period of
time, but fixing in such sentence the maxi-
mum period of imprisonment. Storseth v.
State, 72 Idaho 49, 236 P.2d 1004 (1951).
Though defendant had no previous felony
record, the trial court did not abuse its discre-
tion in committing defendant for a term of
twenty-five years on his plea of guilty to the
crime of forcible rape since the sentence was
within the statutory limits. State v. Hawk, 97
Idaho 1, 539 P.2d 553 (1975).
Where defendant, who had a prior convic-
tion for lewd and lascivious conduct, was
convicted after entering pleas of guilty to
three counts of statutory rape, the trial court
did not abuse its discretion in denying defen-
dant's application for probation and in impos-
ing three consecutive ten-year prison terms.
State v. Mansfield, 97 Idaho 138, 540 P. 2d 800
(1975).
in denying defendant probation and in impos-
ing a thirty-year sentence for rape conviction
and two five-year terms for each conviction of
infamous crimes against nature with all
terms to be served concurrently. State v.
(1976).
Where defendant had a prior criminal
record and where defendant made violent
threats in the course of the forcible rape, the
trial court did not abuse its discretion in
sentencing defendant to an indeterminate
term not to exceed twelve years. State v.
Lawrence, 97 Idaho 775, 554 P.2d 953 (1976).
Where the defendant in a statutory rape
prosecution had previously received a three-
year deferred sentence for possession of dan-
gerous drugs, had been committed to federal
authorities for almost two years, had been
charged with aggravated assault, robbery and
grand auto theft and had a history of assault
but no record of convictions, and where defen-
dant was a 27-year-old man and the jury had
found that he had intercourse with a 14-year-
old girl, the defendant's background as shown
in the presentence report was such that the
eight-year sentence imposed did not consti-
tute an abuse of discretion and there were no
"compelling circumstances" to justify a find-
ing of abuse. State v. LaMere, 103 Idaho 839,
655 P.2d 46 (1982).
Where the defendant was given an indeter-
minate sentence of 15 years following his plea
of guilty to a charge of rape, the sentence was
not excessive and did not represent an abuse
of discretion by the sentencing judge, given
the defendant's apparent lack of remorse and
given the fact that the defendant would first
become eligible for parole in five years. The
five years' incarceration was not excessive to
accomplish the primary objective of protect-
ing society and the secondary goals of deter-
505
RAPE 18-6104
rence and punishment mentioned by the sen-
tencing judge. State v. Moore, 104 Idaho 226,
657 P.2d 1094 (Ct. App. 1983).
An indeterminate sentence of 30 years im-
posed upon a defendant convicted of rape was
within the statutory limits and would not be
disturbed on appeal where the defendant
failed to show that the sentence was a clear
abuse of discretion. The test for showing a
clear abuse of discretion is whether a term of
actual confinement exceeds that necessary to
protect society, and to achieve the related
goals of deterrence, rehabilitation or retribu-
tion, under any reasonable view of the facts of
a given case. Holmes v. State, 104 Idaho 312,
658 P.2d 983 (Ct. App. 1983).
An indeterminate sentence of 30 years im-
posed upon defendant convicted of rape was
not unduly harsh and was not an abuse of the
court's discretion, where the defendant would
be eligible for review for parole after serving
five years of his sentence, and where the
record showed that the factors considered by
the sentencing judge included the defendant's
eligibility for parole before his thirtieth birth-
day; his apparent lack of remorse or repen-
tance for the crime; society's need for protec-
tion; the fact that probation was not feasible
or practical; the deterrence to others; the fact
that there was no provocation for the crime;
and the fact that, in undertaking the crime,
the defendant had impersonated a peace of-
ficer. Holmes v. State, 104 Idaho 312, 658 P.2d
983 (Ct. App. 1983).
In prosecution for attempted rape of a child,
where the investigation disclosed that defen-
dant, who was 22 years old when sentenced,
had prior convictions for a burglary and two
petit larcenies and also had a history of un-
lawful use and distribution of drugs and alco-
hol, the imposition of a ten-year indetermi-
nate sentence did not represent an abuse of
discretion and the district judge did not abuse
his discretion by refusing to retain jurisdic-
tion under
19-2601 4. State v. Nield, 105
Idaho 153, 666 P.2d 1164 (Ct. App. 1983),
aff'd, 106 Idaho 665, 682 P.2d 618 (1984).
Where the record showed that when fixed
term, 20-year sentence was imposed on the
defendant for rape, the district judge indi-
cated that he had considered the protection of
society his primary responsibility in the case,
but that he had also considered the circum-
stances surrounding the case, the defendant's
prior record (including rape and kidnapping)
and the possibility of the defendant's rehabil-
itation (before committing this rape he had
already undergone treatment as a sexual psy-
chopath), the sentence did not constitute an
abuse of discretion. State v. Swain, 105 Idaho
743, 672 P.2d 1073 (Ct. App. 1983).
P. 2d 580 (Ct. App. 1984).
An indeterminate life sentence was not an
abuse of the trial court's discretion where the
defendant entered the victim's home armed
with a knife and directed her to perform
fellatio and to have intercourse with him, and
although the defendant was only 17 years old
at the time of this offense, he had compiled a
substantial prior record, including auto theft,
burglary, and drug abuse, and had been con-
fined in the closed unit of a juvenile rehabili-
tation center in Alaska due to assaultive be-
havior. State v. Lute, 108 Idaho 905, 702 P.2d
1365 (Ct. App. 1985).
Absent a clear abuse of discretion, a sen-
tence within the statutory maximum will not
be disturbed. State v. Lute, 108 Idaho 905,
702 P.2d 1365 (Ct. App. 1985).
Resentencing.
The trial court did not violate the defen-
dant's due process rights in resentencing the
defendant to a 20-year indeterminate sen-
tence, after the court realized that the origi-
nal sentence of an eight-year fixed term that
it had earlier imposed was illegal, where the
record did not demonstrate any vindictive-
ness on the part of the court in resentencing
the defendant, and where considering the fact
that the defendant would be eligible for parole
after one-third of the sentence, the new sen-
tence of a 20-year indeterminate term was the
equivalent of the original eight-year fixed
term. State v. Hoisington, 105 Idaho 660, 671
P.2d 1362 (Ct. App. 1983).
Sentence.
Excessive.
Fact that sentence for conviction for rape
was excessive does not constitute ground for
motion for new trial. State v. Alvord, 47 Idaho
162, 272 P. 1010 (1928).
Sentence of 20 years was excessive where
evidence did not show aggravation to the
extent present in other cases, hence sentence
was reduced to five years. State v. Linebarger,
71 Idaho 255, 232 P2d 669 (1951).
State v. Ledbetter, 83 Idaho 451, 364 P. 2d 171
(1961).
Indeterminate sentence of 30 years for rape
would be reduced to 25 years where crime was
defendant's first felony and the lesser sen-
tence would serve the court's stated objectives
of protection of society and punishment of
defendant. State v. Martines, 105 Idaho 841,
673 P.2d 441 (Ct. App. 1983).
Ct. 2519, 138 L. Ed. 2d 1020 (1997).
Independent of Other Sentences.

Only if a sequence of events is established
that separates acts of lewd conduct from those
of rape may the defendant be sentenced sep-
arately for lewd conduct. State v. Bingham,
116 Idaho 415, 776 P.2d 424 (1989).
Maximum.
Warden could not hold prisoner for longer
than one year for conviction of rape, where
court in fixing maximum sentence set same
for a period of not more than one year, since
legislature in enacting this section, gave the
district court discretion in setting maximum
sentence by providing that sentence could be
extended for life at discretion of the trial
court. Storseth v. State, 72 Idaho 49, 236 P. 2d
1004 (1951).
Upheld.
Where the defendant was sentenced to in-
determinate, concurrent periods not to exceed
15 years for rape and five years for the infa-
mous crime against nature, the trial court did
not abuse its sentencing discretion, where the
court found that the positive qualities of the
offender were outweighed by the retribution
and general deterrence objectives of sentenc-
ing. State v. Hendricks, 110 Idaho 846, 718
P2d 1284 (Ct. App. 1986).
25-year sentence for second degree kidnap-
Where the defendant picked up his victim,
a young mother who needed a ride, and ab-
ducted her by force and took her to a remote
area where he then raped her, concurrent
sentences of 15 years for kidnapping in the
first degree, ten years for assault with intent
to commit a serious felony, five years for the
infamous crime against nature, and 18 years
for rape were not unduly harsh even in light
of the defendant's lack of criminal record.
State v. Talley, 114 Idaho 898, 761 P2d 1250
(Ct. App. 1988).
Where defendant entered the victim's home
through a bedroom window, hid in a closet,
jumped out wielding a large hunting knife,
then proceeded to choke, strike and rape the
victim, and following the rape, he threatened
and choked the victim again, a term of 15
years, with a five-year minimum term of
confinement, was not excessive with regard to
defendant's conviction for first degree bur-
glary and a life term with a ten-year mini-
mum confinement period was not excessive
with regard to his conviction for rape. State v.
Parker, 117 Idaho 527, 789 P.2d 523 (Ct. App.
1990).
Where attorney for defendant charged with
kidnapping and raping a 15-year-old girl
stated twice before the district judge that the
recommended sentences were appropriate
given the plea negotiations entered into by
defendant, where the district judge took time
to question defendant about the reasonable-
ness of his plea, where the plea of guilty was
conditional in the sense that the judge was
bound not to impose a sentence which ex-
ceeded the prosecutor's recommendation,
where defendant agreed to the recommenda-
tion, as shown by the statements of his coun-
sel, and where defendant was told that if the
court determined the recommended sentence
to be inappropriate, the court would permit
defendant to withdraw his guilty plea, defen-
dant was in a poor situation to question the
length of his negotiated sentences for rape
and kidnapping in the second degree where
he received concurrent unified sentences of 20
years, each with a five-year minimum period
of confinement. State v. Leyva, 117 Idaho 462,
788 P.2d 863 (Ct. App. 1990).
Four-year fixed sentence for rape was not
unreasonable and judge properly considered
that defendant's relationship with victim was
consensual, she was a very willing participant
in the sexual relationship, her parents knew
of the friendship, she had turned 16 years old
by the time defendant's probation was re-
voked and the sentences for assault and stat-
utory rape were ordered into effect, defendant
loved victim when the two were having inter-
course, that victim instigated a good share of
what happened, and that defendant was less
mature than an average man his age. State v.
Adams, 120 Idaho 350, 815 P2d 1090 (Ct.
App. 1991).
817 P2d 1083 (Ct. App. 1991).
Where defendant, an orderly in a nursing
home, was convicted of raping a 77 year-old
507 RAPE 18-6105
woman diagnosed as suffering from
Alzheimer's disease and defendant stated he
saw nothing wrong with his actions, a unified
sentence of life with a minimum period of
confinement often years, was not an abuse of
discretion. State v. Grove, 120 Idaho 950, 821
P.2d 1005 (Ct. App. 1991).
A unified sentence of eight years in the
custody of the Board of Correction, with a
minimum period of confinement of forty-two
months for rape was reasonable where the
victim was a fifteen-year-old girl defendant
had met at a party and defendant's prior
record consisted of some misdemeanor
charges, two DUIs and a reckless driving
charge. State v. Anderson, 121 Idaho 534, 826
P.2d 495 (Ct. App. 1992).
Concurrent unified sentences of life in
prison with a minimum period of confinement
of 20 years for rape and robbery was not an
abuse of court's discretion where defendant
had a long history of encounters with the law,
including four felony convictions, and was on
parole when he committed the latest offenses.
State v. Zacharias, 122 Idaho 227, 832 P.2d
1168 (Ct. App. 1992).
State v. Lenwai, 122 Idaho 258, 833 P2d 116
(Ct. App. 1992).
The judgments of conviction for two counts
of rape and one count of lewd conduct with a
minor, including the imposition of three con-
current life sentences with a mandatory pe-
riod of fifteen years' incarceration was not
unreasonable where defendant, a forty-one
year old teacher, pled guilty to having sexual
intercourse with three female students, all of
whom became pregnant. State v. Campbell,
123 Idaho 922, 854 P.2d 265 (Ct. App. 1993).
Aformer police officer's sentence of 32 years
with 12 years fixed was affirmed where the
sentencing court was aware of his age and
lack of a prior criminal record, but concluded
that the sentence was necessary to effectuate
the protection of society from a defendant who
had abused his position of trust, was in com-
plete denial of his violent actions, and who
was a high risk to reoffend. State v. Andrews,
133 Idaho 893, 994 P2d 636 (Ct. App. 2000).
18-6105. Evidence of previous sexual conduct of prosecuting
witness.
In prosecutions for the crime of rape, evidence of the prosecut-

ing witness' previous sexual conduct shall not be admitted nor reference
made thereto in the presence of the jury, except as provided hereinafter. The
defendant may make application to the court before or during the trial for
the admission of evidence concerning the previous sexual conduct of the
prosecuting witness. Upon such application the court shall conduct a
hearing out of the presence of the jury as to the relevancy of such evidence
of previous sexual conduct and shall limit the questioning and control the
admission and exclusion of evidence upon trial. Nothing in this section shall
limit the right of either the state or the accused to impeach credibility by the
showing of prior felony convictions. [I.C.,

18-6105, as added by 1977, ch.
208, 2, p. 573.]
18-6101.
Cited in: State v. Huggins, 103 Idaho 422,
648 P.2d 1135 (Ct. App. 1982).
Analysis
Admissibility.
Consent.
Construction.
Credibility of victim.
Counsel.
Kidnapping.
Statutory rape.
Admissibility.
Evidence of prior sexual conduct of the
prosecuting witness is admissible only if the
court conducts a relevancy hearing out of the
presence of the jury. State v. Winkler, 112
Idaho 917, 736 P.2d 1371 (Ct. App. 1987).
Consent.
In a rape case in which the defense was
consent, the 14-year-old victim's statement to
a third party of her belief that she was preg-
nant was relevant, as a matter of law, on the
charge of forcible rape and should not have
been summarily excluded. State v. Parker,
112 Idaho 1, 730 P.2d 921 (1986).
In rape cases where the defense is consent,
evidence of prior unchastity may be relevant
and material under this section on the issue of
consent. State v. Parker, 112 Idaho 1, 730 P.2d
921 (1986).
Construction.
This section was not intended to allow de-
fense counsel to conduct a "fishing expedition"
into the prior sexual conduct of the victim,
even outside the presence of a jury. State v.
Gabrielson, 109 Idaho 507, 708 P.2d 912 (Ct.
App. 1985).
The statutory requirement of a judicial in-
quiry into the relevancy of evidence of prior
sexual conduct is a legislative recognition
that where the defendant denies ever having
had intercourse with the prosecutrix, evi-
dence of her prior unchastity is immaterial
since it is relevant to consent, and consent
would not be in issue in such a case. State v.
Parker, 112 Idaho 1, 730 P2d 921 (1986).
Credibility of Victim.
P.2d 49 (Ct. App. 1983).
Counsel.
In prosecution for rape, the defense attor-
ney's failure to investigate the victim's prior
sexual contacts did not constitute inadequacy
of counsel and the defendant failed to show
prejudice in the light of all the other evidence
corroborating the victim's testimony. Estes v.
State, 111 Idaho 430, 725 P.2d 135 (1986).
Kidnapping.
In prosecution for kidnapping and rape of a
minor, inquiry into victim's past sexual con-
duct was impermissible since mere
unchastity does not support an inference of
consent to being kept or detained within the
meaning of the kidnapping statute and since
defendant did not offer to prove that the
victim had engaged in past conduct manifest-
ing a pattern of voluntary encounters with
men under similar circumstances. State v.
Palin, 106 Idaho 70, 675 P2d 49 (Ct. App.
1983).
Statutory Rape.
District Court did not err by prohibiting
inquiry at trial into statutory rape victim's
past sexual conduct where defendant sought
to show victim's consent since consent is not a
defense to statutory rape. State v. Palin, 106
Idaho 70, 675 P.2d 49 (Ct. App. 1983).
18-6106. Restitution to victim.

Persons convicted of offenses cov-
ered under this chapter may be ordered by the court to provide restitution
to the victim for specific costs incurred by the victim as a result of injury or
loss caused by the criminal act. [I.C.,
18-6106, as added by 1977, ch. 208,
3, p. 573.]
Cited in: State v. Huggins, 103 Idaho 422,
648 P.2d 1135 (Ct. App. 1982).
18-6107. Rape of spouse.
No person shall be convicted of rape for

any act or acts with that person's spouse, except under the circumstances
cited in paragraphs 3. and 4. of section 18-6101, Idaho Code. [I.C.,

18-
6107, as added by 1977, ch. 208, 4, p. 573; am. 1989, ch. 351, 1, p. 879.]
Analysis
Burden of proof.
Element of crime.
Burden of Proof.
The state in a prosecution for rape or as-
sault with intent to commit rape, has the
burden of alleging and proving either (a) the
absence of a marriage between the defendant
and the alleged victim or (b) the presence of
special circumstances delineated by statute
under which a husband may be prosecuted for
the actual or attempted rape of his wife. State
v. Huggins, 103 Idaho 422, 648 P.2d 1135 (Ct.
App. 1982), modified, 105 Idaho 43, 665 P.2d
1053 (1983).
Element of Crime.
The language "no person shall be convicted
of rape for any act or acts with that person's
spouse" is an integral part of the definition of
the crime of rape and the fact that the legis-
lature removed comparable language from
18-6101 and substituted the quoted lan-

guage in this section does not indicate any
legislative intent to shift the burden of proof
nor does it indicate an intent to eliminate an
element from the crime of rape. The element,
lack of marriage, is still present, with the two
509 RAPE 18-6110
enumerated exceptions. State v. Huggins, 103 existence of a marital status between the
Idaho 422, 648 P.2d 1135 (Ct. App. 1982), victim and the accused is an affirmative de-
modified, 105 Idaho 43, 665 P.2d 1053 (1983). fense which must be placed in issue by the
Under Idaho's current statutory scheme
accused. State v. Huggins, 105 Idaho 43, 665
relating to rape, nonmarriage is not an essen-
P.2d 1053 (1983).
tial element of the crime of rape; rather, the
18-6108. Male rape.

Male rape is defined as the penetration,
however slight, of the oral or anal opening of another male, with the
perpetrator's penis, for the purpose of sexual arousal, gratification or abuse,
under any of the following circumstances:
1. Where the victim is incapable, through any unsoundness of mind,
whether temporary or permanent, of giving consent.
2. Where the victim resists but his resistance is overcome by force or
violence.
3. Where the victim is prevented from resistance by threats of immediate
and great bodily harm, accompanied by apparent power of execution.
4. Where the victim is prevented from resistance by the use of any
intoxicating, narcotic, or anaesthetic substance administered by or with the
privity of the accused.
5. Where the victim is at the time unconscious of the nature of the act,
and this is known to the accused. [I.C.,

18-6108, as added by 1990, ch. 291,
2, p. 811; am. 1993, ch. 263, 1, p. 895; am. 1994, ch. 135, 2, p. 307.]
Compiler's notes. Former 18-6108, Admissibility.
18-6108, as added by A statement by defendant, who was
1989, ch. 46, 1, p. 60, was repealed by S.L. charged with male rape, regarding his release
1990, ch. 291,
1.
from prison was admissible because it was
probative of an element of male rape, and it
as

18-6101.
had the likely effect of intimidating and
threatening the victim so that he would not
in

18-310, 18-8303, 18-8304, 18-8314, 19-
resist. State v. Martinez, 128 Idaho 104, 910
401, 19-402, 19-5307, 20-525A, 33-1208, 39-
P2d776(Ct App 1995)
1113 and 72-1025.
Cited in: State v. Hayes, 123 Idaho 26, 843
P.2d 675 (Ct. App. 1992).
18-6109. Punishment for male rape.

Male rape is punishable by
imprisonment in the state prison for not less than one (1)
year, and the
imprisonment may be extended to life. [I.C.,
18-6109, as added by 1993,
ch.
263, 2, p. 895.1
ch. 263 declared an emergency. Approved
March 29, 1993.
18-6110. Sexual contact with a prisoner.

It is a felony for any
officer, employee or agent of a state, local or private correctional facility, as
those terms are denned in section 18-101A, Idaho Code, to have sexual
contact with a prisoner, whether an in-state or out-of-state prisoner, as those
terms are denned in section 18- 101A, Idaho Code, housed in such facility.
For the purposes of this section "sexual contact" means sexual intercourse,
genital-genital, manual-anal, manual-genital, oral-genital, anal-genital or
oral-anal, between persons of the same or opposite sex.
Any person found guilty of sexual contact with a prisoner is punishable by
imprisonment in the state prison for a term not to exceed life. [I.C.,
786; am. 2003, ch.
37, 1, p. 156.]
Compiler's notes. Sections 8 and 10 of

18-2510
CHAPTER 62
RELIGIOUS MEETINGS
SUNDAY REST
18-6201
18-6201, 18-6202. Disturbing religious meetings

Sunday rest.
[Repealed.]
6820; C.S., 8290; I.C.A.,
17-2501 was
January 1, 1972.
Former
18-6202, as added by 1972, ch. 336, 1, p.

prised S.L. 1907, p. 223, 1; reen. R.C. &
C.L., 6823; C.S., 8291; I.C.A.,
17-2502
18-6203. Public amusements

Local option procedure

Penal-
ties. [Repealed.]
18-6203
18-6203 as added by
S.L. 1972, ch. 336, 1 was repealed by S.L.
Another former
S.L. 1907, p. 223, 3; am. R.C, 6825; am.
S.L. 1911, ch.
99, p. 342; compiled and ren.
C.L., 6825; C.S., 8293; am. S.L. 1921, ch.
238, 1, p. 529; I.C.A., 17-2504; am. S.L.
1941, ch.
86, 1, p. 159; am. S.L. 1957, ch.
18-6204. Disposal of fines. [Repealed.]
prised S.L. 1907, p. 223, 6; R.C. & C.L.,
6828; C.S., 8296; I.C.A.,
17-2507; 1939,
ch.
7, 2, p. 21 was repealed by S.L. 1971, ch.
CHAPTER 63
REVENUE AND TAXATION
18-6301. Taxation
Refusal to give assessor

list of property.
18-6302. Use of illegal receipts.
18-6303. Unlawful possession of blank li-
censes or poll tax receipts.
SECTION.
18-6304. Refusal to give tax collector names
of employees.
18-6305. Doing business without license.
18-6306. Tax collector
Neglect of duty.
18-6307. Auditor
Neglect of duty.
511 REVENUE AND TAXATION 18-6304
SECTION.
18-6308. Violation of revenue laws.
18-6309. Impersonation of revenue officer.
18-6301. Taxation
Refusal to give assessor list of property.
Every person who unlawfully refuses upon demand to give to any county
assessor a list of his property subject to taxation, or to swear to such list, or
who gives a false name, or fraudulently refuses to give his true name, to any
assessor when demanded by such assessor in the discharge of his official
duties, is guilty of a misdemeanor. [I.C.,

18-6301, as added by 1972, ch.
336, 1, p. 844.1
Compiler's notes. A former section, which 84, 85 C.J.S., Taxation, 1 et seq.
comprised S.L. 1875, p. 475, 68; R.S., R.C., Practice of law, rendition of services in
& C.L., 6779; C.S., 8383; I.C.A.,
17- connection with tax matters as. 9 A.L.R.2d
797.
effective January 1, 1972, and the present Declaratory judgment, tax questions as
section added by S.L. 1972, ch. 336, 1 in the proper subject of action for. 11 A.L.R.2d 359.
same words as the section prior to its repeal. Property destined for removal from state as
Section 14 of S.L. 1972, ch. 336 declared an subject to taxation therein. 11 A.L.R.2d 938.
emergency and provided that the act should Validity of municipal ordinance imposing
take effect on and after April 1, 1972. income tax or license upon non-residents em-
Cross ref. Penalty for misdemeanor when ployed in taxingjurisdiction. 48 A.L.R.3d 343.

18-113. Situs of aircraft, rolling stock, and vessels
Collateral References. 71, 72 Am. Jur. for purposes of property taxation. 3 A.L.R.4th
2d, State and Local Taxation, 1 et seq. 837.
18-6302. Use of illegal receipts.

Every person who uses or gives
any receipt except that prescribed by law, as evidence of the payment of any
poll tax, road tax or license of any kind, or who receives payment of such tax
or license without delivering the receipt prescribed by law, or who inserts
the name of more than one (1) person therein, is guilty of a misdemeanor.
[I.C.,

18-6302, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1875, p. 475, 61, 65; R.S., its repeal.
R.C., & C.L., 6980; C.S., 8383a; I.C.A., Cross ref. Official receipts are prescribed
17-3206 was repealed by S.L. 1971, ch. 143, by the state auditor,
67-1004.
5, effective January 1, 1972, and the Penalty for misdemeanor when not other-
present section added by S.L. 1972, ch. 336, wise provided,
18-113.
18-6303. Unlawful possession of blank licenses or poll tax re-
ceipts.
Every person who has in his possession with intent to circulate or

sell, any blank licenses or poll tax receipts other than those furnished by the
proper officer, is guilty of felony. [I.C.,

18-6303, as added by 1972, ch. 336,
1, p. 844.]
comprised S.L. 1875, p. 475, 83; R.S., R.C., same words as the section prior to its repeal.
& C.L.,
6981; C.S.,
8383b, I.C.A.,

17-
otherwise provided,
18-112.
18-6304. Refusal to give tax collector names of employees.

Every person who, when requested by the collector of taxes or licenses,
refuses to give to such collector the name and residence of each man in his
employment, or to give such collector access to the building or place where
such men are employed, is guilty of a misdemeanor. [I.C.,

18-6304, as
added by 1972, ch. 336, 1, p. 844.]
& C.L., 6982; C.S., 8384; I.C.A.,
17-
18-113.
18-6305. Doing business without license.

Every person who
commences or carries on any business, trade, profession or calling, for the
transaction or carrying on of which a license is required by any law of this
state, without taking out or procuring the license prescribed by such law, is
18-6305, as added by 1972, ch.
336, 1, p.
844.]
& C.L., 6983; C.S., 8385; I.C.A.,
17-

18-113.
Cited in: Vermont Loan & Trust Co. v.
Hoffman, 5 Idaho 376, 49 P. 314, 37 L.R.A.
509, 95 Am. St. R. 186 (1897).
Analysis
Civil and criminal liability.
Validity of contracts.
Civil and Criminal Liability.
Where license must be procured before com-
mencement of business or occupation liable to
pay license tax, person operating without
license is not only liable for tax but may also
be prosecuted criminally. Bingham County v.
Fidelity & Deposit Co., 13 Idaho 34, 88 P. 829
(1907).
License tax is required to be paid before a
person commences business. Tax is not im-
posed as penalty, but is a debt due county or
state for doing or conducting the business.
Penalty for doing such business without a
license is made a misdemeanor. State v. Wall,
18 Idaho 300, 109 P. 724 (1910).
Validity of Contracts.
To the general rule that an act in violation
of a statute forbidding it is void, there is an
exception when statute is for protection of
public revenue, does not make the act itself
void, and the act is not malum in se nor
detrimental to good morals. Vermont Loan &
Trust Co. v. Hoffman, 5 Idaho 376, 49 P. 314,
37 L.R.A. 509, 95 Am. St. R. 186 (1897).
Where statute prescribes a license as req-
uisite to engaging in business, which is for
protection of public and not for revenue only, a
contract in violation thereof is invalid and
there can be no recovery thereon. Zimmerman
v. Brown, 30 Idaho 640, 166 P. 924 (1917).
18-6306. Tax collector
Neglect of duty.
If any tax collector or his

deputy wilfully neglects or refuses to perform any of the duties enjoined on
him by the provisions of title 63 of Idaho Code he is guilty of a misdemeanor
in office, and shall be punished by imprisonment in the county jail not more
than one
(1)
year, or by a fine of not less than $200 nor more than $1,000, or
by both such fine and imprisonment, and shall be forthwith removed from
office. [I.C.,
18-6306, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1864, p. 334, 26; R.S., R.C.
& C.L.,
6984; C.S., 8386; I.C.A.,
17-
513 RIOT, UNLAWFUL ASSEMBLY, DISTURBING PEACE 18-6309
18-6307. Auditor
Neglect of duty.
If any county auditor neglects

or refuses to perform the duties enjoined on him by the provisions of title 63
of the Idaho Code he is guilty of a felony, and shall be punished by
imprisonment in the state prison for not more than one
(1)
year, or by a fine
of not less than $200 nor more than $1,000, or by both such fine and
imprisonment, and shall be forthwith removed from office. [I.C.,

18-6307,
as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1864, p. 334, 74; R.S., R.C., section added by S.L. 1972, ch. 336, 1 in the
& C.L., 6985; C.S.,
8387; I.C.A.,

17-
18-6308. Violation of revenue laws.
Any officer who, at the same

time, performs the duties of any two officers, in any manner connected with
the public revenue, except in the manner expressly provided by law, or any
collecting or disbursing officer who refuses or neglects the performance of
the duties required of him by the title, Revenue, of the Idaho Code, is guilty
of a felony, and on conviction thereof must be punished by imprisonment in
the state prison for not more than one
(1) year, or by a fine of not less than
$200 nor more than $1,000, or by both such fine and imprisonment, and
must forthwith be removed from office. [I.C.,

18-6308, as added by 1972,
ch.
336, 1, p. 844.]
The reference in this section to "the title,
& C.L.,
6392; C.S.,
8130; I.C.A.,

17-513
Revenue, of the Idaho Code" refers to Title 63
of the Idaho Code which is entitled "Revenue
an(j Taxation"
18-6309. Impersonation of revenue officer.

in this state unlawfully exercise or attempt to exercise the functions of, or
hold himself out as, an officer, agent, deputy or employee of the state tax
commission or of any county assessor shall be guilty of a felony, and on
conviction thereof shall be punished by imprisonment in the state prison for
a period of not more than five
(5) years or by a fine of not more than five
thousand dollars ($5,000) or by both such fine and imprisonment. [I.C.,
18-6309, as added by 1981, ch.

72, 1, p. 104.]
CHAPTER 64
RIOT, ROUT, UNLAWFUL ASSEMBLY, PRIZE FIGHTING, DISTURBING PEACE
SECTION. SECTION.
18-6401. Riot defined.
18-6405. Punishment for unlawful assembly.
18-6402. Riot

Felony

Misdemeanor
18-6406 18-6408. [Repealed.!
Punishment.
18-6409. Disturbing the peace.
18-6410. Assembly to disturb peace

Re-
18-6404. Unlawful assembly denned.
fusal to disperse.
18-640
1
CRIMES AND PUNISHMENTS 5 14
18-6401. Riot defined.
Any action, use of force or violence, or threat

thereof, disturbing the public peace, or any threat to use such force or
violence, if accompanied by immediate power of execution, by two (2) or
more persons acting together, and without authority oflaw, which results in:
(a) physical injury to any person; or
(b) damage or destruction to public or private property; or
(c) a disturbance of the public peace;
is a riot. [I.C.,

18-6401, as added by 1972, ch.
336, 1, p. 844; am. 1981,
ch. 123, 1, p. 211.]
Compiler's notes. A former section, which Breach of Peace and Disorderly Conduct,
1
comprised Cr. & P. 1864, 122; R.S., R.C., & et seq.
C.L., 6950; C.S., 8364; I.C.A.,
17-3001 27 C.J.S., Disorderly Conduct, 1 et seq.
was repealed by S.L. 1971, ch. 143, 5, 77 C.J.S., Riot, 1 et seq.
effective January 1, 1972, and the present General discussion. 49 A.L.R. 1135.
section added by S.L. 1972, ch. 336, 1 in the Vagueness as invalidating statutes or ordi-
same words as the section prior to its repeal. nances dealing with disorderly persons or
Collateral References. 12 Am. Jur. 2d, conduct. 12 A.L.R.3d 1448.
18-6402. Riot
Felony
Misdemeanor
Punishment.
(1) A
riot is a felony if:
(a) It occurs on or about the state penitentiary, a county or city jail, or any
other penal facility in this state, or it involves the taking of one or more
hostages. Violation of the provisions of this subsection is punishable by
imprisonment in the state penitentiary for not less than five
(5) years, no
[nor] more than twenty (20) years or a fine not to exceed twenty-five
thousand dollars ($25,000), or both such fine and imprisonment.
(b) The destruction or damage to public or private property exceeds five
hundred dollars ($500). Violation of the provisions of this subsection is
punishable by imprisonment in the state penitentiary for not more than
five
(5)
years or a fine not to exceed ten thousand dollars ($10,000), or both
(2) A riot is a misdemeanor in all other circumstances punishable by
imprisonment in the city or county jail for not more than one (1)
year and a
fine not to exceed five thousand dollars ($5,000). [I.C.,

18-6402, as added
by 1981, ch. 123, 3, p. 211.]
Compiler's notes. Former 18-6402 repealed by S.L. 1971, ch. 143, 5, effective
which comprised I.C., 18-6402, as added by January 1, 1972.
The bracketed word "nor" in clause (a) was
1981, ch. 123,
2.
inserted by the compiler.
Another former

Cross ref> Penalty for misdemeanor when
Cr.
&
P^1864,

122; R.S., R.C.,
&
C.L.,
18-113.
6915; C.S., 8365; I.C.A.,
17-3002, was
F
18-6403. Rout denned. [Repealed.]
Compiler's notes. This section, which Another former

comprised I.C., 18-6403, as added by 1972, R.S., R.C., & C.L., 6952; C.S. 8336; I.C.A.,
ch. 123, 4.
515 RIOT, UNLAWFUL ASSEMBLY, DISTURBING PEACE 18-6408
18-6404. Unlawful assembly defined.

Whenever two or more
persons assemble together to do an unlawful act, and separate without
doing or advancing toward it, or do a lawful act in a violent, boisterous or
tumultuous manner, such assembly is an unlawful assembly. [I.C.,

18-
336, 1, p. 844.1
C.L., 6953; C.S., 8367; I.C.A.,
17-3004
Cross ref. Commanding rioters to dis-
perse,
19-224.
Collateral References. 91 C.J.S., Unlaw-
ful Assembly, 1 et seq.
Attorney, participation in unlawful assem-
bly as ground for disbarment or suspension. 9
A.L.R. 201; 43 A.L.R. 110.
Unlawful parade as riot. 9 A.L.R. 552.
Vagrancy, disorderly conduct in public place
as. 14 A.L.R. 1489.
Civil liability of member of mob. 27 A.L.R.
549.
Words as disorderly conduct. 48 A.L.R. 87.
What constitutes riot within criminal law.
49 A.L.R. 1135.
Police officer, failure of one on street to obey
order of, to move on, as disorderly conduct. 65
A.L.R.2d 1152.
What constitutes offense of unlawful as-
sembly. 71 A.L.R.2d 875.
Peaceful picketing of private residence. 42
A.L.R.3d 1353.
Validity, construction, and application of
state or local enactments regulating parades.
80 A.L.R.5th 255.
18-6405. Punishment for unlawful assembly.

Every person who
participates in any unlawful assembly is guilty of a misdemeanor. [I.C.,
374.]
C.L., 6954; C.S., 8368; I.C.A.,
17-3005
was repealed by S.L* 1971, ch. 143, 5,
compiled as
18-5412 and 18-6409, respec-
tively.
18-113.
18-6406, 18-6407. Persons present at riots and routs after warning
to disperse

Officers neglecting to suppress riots.
[Repealed.]
prised Cr. & P. 1864, 119, R.S., R.C., & C.L.,
6955; C.S., 8369; I.C.A.,
17-3006 was
as the section prior to its repeal.
Former 18-6407, which comprised I.C.,
18-6407, as added by 1972, ch. 336, 1, p.
Another former
18-6407, which com-
prised Cr. Prac. 1864, 41; R.S., R.C., & C.L.,
6956; C.S., 8370; I.C.A.,
17-3007 was
as the section prior to its repeal.
18-6408. Prize fights. [Repealed.]
Compiler's notes. This section which com-
prised I.C.,
18-6408 as added by S.L. 1972,
Another
18-6408 which comprised Cr. & S.L. 1971,
P. 1864, 39; R.S., R.C., & C.L., 6957; C.S., 1972.
8371; I.C.
A., 17-3008, was repealed by
ch. 143, 5, effective January 1,
18-6409. Disturbing the peace.
Every person who maliciously and

wilfully disturbs the peace or quiet of any neighborhood, family or person, by
loud or unusual noise, or by tumultuous or offensive conduct, or by
threatening, traducing, quarreling, challenging to fight or fighting, or fires
any gun or pistol, or uses any vulgar, profane or indecent language within
the presence or hearing of children, in a loud and boisterous manner, is
guilty of a misdemeanor. [I.C,
18-6409, as added by 1972, ch.
336, 1, p.
844; am. 1972, ch. 381, 14, p. 1102; am. 1994, ch. 167, 4, p. 374.]
8373; I.C.A.,
compiled herein as
18-4901 and 18-7032,
respectively.
compiled as
18-6405 and 18-6710, respec-
tively.
Cross ref. Any person disturbing the peace
on a railway train is guilty of a misdemeanor,
18-6012.
Indecency and obscenity,
18-4101 et seq.
wise provided,
18-113.
in M.C.R., Rule 13.
Cited in: Monske v. Klee, 38 Idaho 314, 221
P. 152 (1923); Stoneberg v. State, 106 Idaho
519, 681 P. 2d 994 (1984); State v. Major, 111
Idaho 410, 725 P.2d 115 (1986); State v.
Jeppesen, 138 Idaho 71, 57 P.3d 782 (2002);
State v. Rae,

2004).
Analysis
Constitutionality.
In general.
Constitutionality.
Defendant's loud, profane outburst, di-
rected at a 13-year-old friend of her daughter,
constituted "fighting words" and was not con-
stitutionally protected under either the First
Amendment of the U.S. Constitution or the
Idaho Constitution Article
1, 9. State v.
Hammersley, 134 Idaho 816, 10 P3d 1285
(2000).
This section is not overbroad or unconstitu-
tionally vague, and gives adequate notice of
the conduct proscribed as well as adequate
guidance to those charged with enforcing it.
State v. Hammersley, 134 Idaho 816, 10 P. 3d
1285 (2000).
Defendant's disturbing the peace conviction
for telling a detective in the courthouse to
"fuck off" was vacated as the statement was
protected speech and not subject to the fight-
ing words exception to the First Amendment.
State v. Suiter, 138 Idaho 13, 56 P.3d 775
(2002).
While the Supreme Court of Idaho struck
the third part of Idaho Code
18-6409 as
unconstitutional because it criminalized
speech that was protected by the First
Amendment, the court affirmed the judgment
of conviction because defendant did not allege
that the statute was unconstitutionally ap-
plied to his conduct or that he did not have
fair notice that his conduct was proscribed.
State v. Poe,
Idaho ,
P.3d , 2004 Ida.

LEXIS 38 (Mar. 4, 2004).
In General.
There is nothing in the context of Idaho
Code
18-6409 that indicates a legislative
intent for the word "wilfully" in that statute to
have a meaning different from that provided
by Idaho Code 18-101(1). The statutory
definition of "wilfully" provided by
18-101
applies to the word "wilfully" in

18-6409.
State v. Poe,
Idaho ,
P.3d , 2004 Ida.

LEXIS 38 (Mar. 4, 2004).
Collateral References. Conduct amount-
ing to offense of disturbing public meeting. 12
A.L.R. 650.
Abusive language addressed to trespasser
as breach of peace. 34 A.L.R. 575.
Abusive or insulting language addressed to
group as breach of peace. 34 A.L.R. 580.
Insulting words as criminal offense. 48
A.L.R. 95.
Public regulation and prohibition of sound
amplifiers or loudspeaker broadcasts in
streets and other public places as infringe-
ment of right of assembly. 10 A.L.R.2d 627.
Misuse of telephone as breach of peace. 97
A.L.R.2d 505.
Larceny as within disorderly conduct stat-
ute or ordinance. 71 A.L.R.3d 1156.
Insulting words addressed directly to police
517 ROBBERY 18-6501
officer as breach of peace or disorderly con-
duct. 14 A.L.R.4th 1252.
Validity, construction, and operation of Fed-
eral disorderly conduct regulation (36 C.F.R.
2.34). 180 A.L.R. Fed. 637.
18-6410. Assembly to disturb peace

Refusal to disperse.

If
two or more persons assemble for the purpose of disturbing the public peace,
or committing any unlawful act, and do not disperse on being desired or
commanded so to do by a public officer, the persons so^pffending are severally

18-6410, as added by 1972, ch.
336, 1, p.
844.]
C.L., 6960; C.S., 8374; I.C.A.,
17-3010
Cross ref. Exhibition or use of deadly
weapon,
18-3303.
wise provided,
18-113.
in M.C.R., Rule 13.
Collateral References. Failure or refusal
to obey police officer's order to move on, on
street, as disorderly conduct. 65 A.L.R.2d
1152.
Participation of student in demonstration
on or near campus as warranting imposition
of criminal liability for breach of peace, disor-
derly conduct, trespass, unlawful assembly, or
similar offense. 32 A.L.R.3d 551.
CHAPTER 65
ROBBERY
SECTION.
18-6501. Robbery denned.
18-6502. Fear which constitutes robbery.
SECTION.
18-6503. Punishment for robbery.
18-6501. Robbery defined.

Robbery is 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. [I.C.,
18-6501, as added by 1972, ch.

336, 1, p. 844.1
C.L., 6590; C.S., 8226; I.C.A.,
17-1305
Cross ref. Assault with intent to commit
robbery,

18-907.
Information generally,
19-1301 et seq.
Juvenile charged with robbery, when pro-
ceeded against as adult,
20-509.
in

18-310, 18-7803, 19-2520, 19-5307 and
19-5506.
Cited in: State v. Morris, 97 Idaho 420, 546
P.2d 375 (1976); State v. Ehrmantrout, 100
Idaho 202, 595 P.2d 1097 (1979); State v.
Smith, 103 Idaho 135, 645 P.2d 369 (1982);
State v. Reinke, 103 Idaho 771, 653 P.2d 1183
(Ct. App. 1982); State v. Tucker, 103 Idaho
885, 655 P.2d 92 (Ct. App. 1982); State v.
Mallery, 105 Idaho 352, 670 P2d 57 (Ct. App.
1983); Almada v. State, 108 Idaho 221, 697
P.2d 1235 (Ct. App. 1985); State v. Pearson,
108 Idaho 889, 702 P.2d 927 (Ct. App. 1985);
State v. Merrifield, 109 Idaho 11, 704 P.2d 343
(Ct. App. 1985); State v. Storey, 109 Idaho 993,
712 P2d 694 (Ct. App. 1985); State v. Langley,
110 Idaho 895, 719 P.2d 1155 (1986); State v.
Jaramillo, 113 Idaho 862, 749 P.2d 1 (Ct. App.
1987); State v. Marchant, 115 Idaho 403, 766
P.2d 1284 (Ct. App. 1989); State v. Shaffer,
123 Idaho 167, 845 P.2d 585 (Ct. App. 1993);
Smith v. State, 129 Idaho 162, 922 P. 2d 1088
(Ct. App. 1996); State v. Amerson, 129 Idaho
395, 925 P2d 399 (Ct. App. 1996), cert, de-
nied, 521 U.S. 1123, 117 S. Ct. 2519, 138 L.
Ed. 2d 1020 (1997); State v. Jenkins, 133
v. Shanahan, 133 Idaho 896, 994 P.2d 1059
(Ct. App. 1999).
Analysis
Comments by prosecutor.
Double jeopardy.
Evidence.
Intent.
Judgment.
Correction.
Larceny distinguished.
Preliminary hearing testimony.
Presentence report.
Sentence.
Venue.
Comments by Prosecutor.
Closing argument comments by the prose-
cutor emphasizing the lack of credibility of
defense accusations of a "frame-up" of defen-
dant by the police and the prosecution were
not so inherently prejudicial that a timely
objection, accompanied by an instruction by
the court to disregard the comments, would
not have cured the defect. State v. Sharp, 101
Idaho 498, 616 P.2d 1034 (1980).
Double Jeopardy.
Defendant's simultaneous convictions of
robbery and kidnapping violated neither the
double jeopardy clause of the United States
Constitution nor the Idaho multiple punish-
ment statute. State v. Horn, 101 Idaho 192,
610 P.2d 551 (1980).
offense in a charge of attempted robbery such
der the double jeopardy clause of the fifth
amendment of the United States Constitution
and the Idaho Constitution. State v. Thomp-
son, 101 Idaho 430, 614 P.2d 970 (1980).
Where all the elements required to sustain
a conviction of robbery were also within the
elements needed to sustain a conviction of
felony murder, robbery was a lesser included
offense of felony-murder, and, therefore, the
robbery conviction merged as a lesser in-
cluded offense of the felony murder convic-
tion. Sivak v. State, 112 Idaho 197, 731 P.2d
192 (1986).
Repossession by force of money lost gam-
bling does not constitute robbery. State v.
Price, 38 Idaho 149, 219 P. 1049, 35 A.L.R.
1458 (1923).
Secrecy or shielding identity is not an ele-
ment of the felonious intent essential to rob-
bery. State v. Huff, 56 Idaho 652, 57 P. 2d 1080
(1936).
It is unnecessary for the victim to actively
resist the robber in order to provoke a more
compelling display of force. State v. Knee, 101
Idaho 484, 616 P2d 263 (1980).
Fear and the force of fear may be created by
threatening circumstances. State v. Knee, 101
Idaho 484, 616 P2d 263 (1980).
Because one who is in the process of steal-
ing property and who uses force or fear in
removing that property from the owner's im-
mediate presence commits the crime of rob-
bery, the defendant was properly convicted of
that crime where he used a gun to force the
victim and other store employees to back
away so that he could grab a computer game
from a shopping cart. State v. Martinez, 133
Idaho 484, 988 P.2d 710 (Ct. App. 1999).
Employee was under a general obligation to
safeguard the restaurant premises and con-
tents, and he was therefore in possession of
the property as against anyone who might
attempt to steal it; the money would have
been within the employee's reach and obser-
vation but for defendant's act of forcing the
employee into the cooler; accordingly, the
money that was stolen was within the em-
ployee's immediate presence for purposes of
application of the robbery statute. State v.
Behrens, 138 Idaho 279, 61 P.3d 636 (Ct. App.
2003).
Evidence.
On prosecution for robbery, fact that money
taken was in the possession of prosecuting
witness was sufficient evidence of ownership
to sustain conviction. State v. Brill, 21 Idaho
269, 121 P. 79 (1912).
In a robbery prosecution where defendants
denied acting in concert but where the evi-
dence showed that two of the defendants took
the victim's wallet while the other two defen-
dants were beating victim, all four defendants
were properly convicted of robbery despite
defendants' contention that state did not
prove elements of robbery as to each defen-
dant. State v. Gerhardt, 97 Idaho 603, 549
P2d 262 (1976).
Although, in a prosecution for robbery,
there was a chance that the jury might infer
from the erroneously admitted evidence of a
chase and shootout that the defendant was an
outlaw and therefore predisposed to commit a
robbery, this risk was vastly outweighed by
other compelling evidence establishing the
defendant's involvement in the robbery; thus,
testimony regarding the chase did not con-
tribute to the verdict, and its admission was
harmless error. State v. Alger, 115 Idaho 42,
764 P.2d 119 (Ct. App. 1988).
Where, in a prosecution for robbery of a
store, the central issue at trial was the iden-
tity of persons who robbed the store, testi-
mony regarding the capture of the defendant,
yielding articles connected with the robbery,
519 ROBBERY 18-6501
was admissible as highly probative of the
defendant's identity as one of those persons
and relevant. State v. Alger, 115 Idaho 42, 764
P.2d 119 (Ct. App. 1988).
The fact that no threatening statements
were made to a guard by defendant during his
escape from a hospital at the time he de-
manded the guard's boots does not dissipate
the fear that the guard experienced at the
time his life was threatened with the metal
pipe and the record is replete with testimony
showing that the boots were taken from the
guard against his will by threat of force;
accordingly, there was sufficient evidence in
the record to support the robbery conviction.
State v. Knutson, 121 Idaho 101, 822 P.2d 998
(Ct. App. 1991).
Even though no weapon was seen during
the course of the robbery, where defendant
made a threat implying that a concealed
weapon was present, sawed-off shotgun found
in defendant's automobile was slightly rele-
vant and was admissible as its probative
value was not outweighed by its prejudicial
impact. State v. Waddle, 125 Idaho 526, 873
P.2d 171 (Ct. App. 1994).
Trial court properly convicted defendant of
bank robbery without considering alternative
perpetrators; there was no evidence linking
third parties to the crime. State v. Kerchusky,
138 Idaho 671, 67 P.3d 1283 (Ct. App. 2003).
In indictment for robbery the words "feloni-
ous" and "rob" carry with them the intent, and
are sufficient. People v. Butler, 1 Idaho 231
(1869).
Information for robbery is sufficient if it
charges the offense in words of this section.
Information for robbery is sufficient, though
not in the exact language of the statute, if
words used convey the same idea. State v.
Brill, 21 Idaho 269, 121 P. 79 (1912).
Information couched in the language of,
and containing all of the elements recited in
the statutes denning robbery is sufficient
though it omit to charge intent essential to
charge grand larceny. State v. Huff, 56 Idaho
652, 57 P.2d 1080 (1936).
A charge that an accused took money from
the person, or from the immediate presence of
the person, and that it was taken against his
will and by means of force or fear, constituted
the single charge of robbery and such a charge
afforded the accused proper means by which
to prepare a defense of the particular crime
charged. State v. Griffith, 94 Idaho 76, 481
P.2d 34 (1971).
573, 602 P.2d 71 (1979).
in allowing a witness to testify that a gun had
disappeared from his apartment about the
time of defendant's visit, where the probative
value of that evidence linking the defendant
to the commission of armed robbery out-
weighed the prejudicial effect ofthe testimony
in placing before the jury evidence of another
unrelated crime allegedly committed by the
defendant. State v. Sharp, 101 Idaho 498, 616
P2d 1034 (1980).
Where there was uncontradicted testimony
of victim and another witness that defendant
had taken money from the victim in her living
room, such testimony was sufficient to sustain
defendant's conviction for robbery. State v.
Crawford, 104 Idaho 840, 663 P.2d 1142 (Ct.
App. 1983).
Jury's failure to find defendant guilty of
murder while finding him guilty of robbery on
testimony arising out of the same incident
was not inconsistent and did not taint the
robbery conviction where testimony concern-
ing the murder was partially contradicted but
testimony concerning the robbery was not.
State v. Crawford, 104 Idaho 840, 663 P.2d
1142 (Ct. App. 1983).
In robbery prosecution, evidence that gun
found in defendant's car was stolen was
proper to rebut the testimony of defendant's
wife that she was the owner of the weapon
and to demonstrate the implausibility of her
story that she had inadvertently left the gun
in the car, and the prejudicial effect of the
evidence was outweighed by its value in test-
ing her credibility. State v. Cook, 106 Idaho
209, 677 P.2d 522 (Ct. App. 1984).
In an appeal from a conviction of robbery
under this section, where defendant's car was
spotted immediately prior to the robbery,
there was sufficient evidence to stop the car
after the robbery had been committed, and a
search of the passenger compartment by the
police was legal, and the evidence seized dur-
ing such warrantless search was admissible
at trial. State v. Baruth, 107 Idaho 651, 691
P.2d 1266 (Ct. App. 1984).
Where the alleged robbery occurred at
night in a grocery store with the use of a dark
blue .22 caliber pistol, and the defendant
threatened the night manager that he had
been to Vietnam and was not scared of killing
anyone, the trial court properly allowed evi-
dence of another robbery committed eight
days later, by the defendant, under identical
circumstances, i.e. a grocery store, at night,
with a dark blue .22 caliber pistol, and threats
referring to Vietnam, since such evidence was
relevant to establish a common identity of the
robbers in both robberies through a modus
operandi and a limiting instruction was given
to the jury to limit any prejudicial effect of
such evidence. State v. Stedtfeld, 108 Idaho
695, 701 P.2d 315 (Ct. App. 1985).
The trial court properly admitted the testi-
mony of the defendant's roommate concerning
the defendant's statements indicating his in-
volvement in an earlier aborted attempt to
commit robbery, where the testimony was
relevant to the question of identity, in that the
defendant was similarly dressed, armed with
a sawed-off shotgun, and had a female accom-
plice in both the aborted and committed rob-
beries, and where the probative value of the
evidence outweighed any prejudice to the de-
fendant. State v. Carlson, 108 Idaho 859, 702
P.2d 897 (Ct. App. 1985).
Instruction to jury "that if they believe from
the evidence that defendants feloniously took
possession of the United States mail, or any
part thereof, by force or intimidation of or
from a carrier of the mail, then offense of
robbery is complete," is not erroneous. United
States v. Mays, 1 Idaho 763 (1880).
Instruction that if a man stealthily filch the
pocket of another, force necessary to remove
the property is all the force that the statute
requires, is erroneous, as it ignores all distinc-
tion between robbery and larceny from the
person. Territory v. McKern, 3 Idaho 15, 26 P.
123 (1891).
Instruction as follows held reversible error:
"If a person losing at cards voluntarily deliv-
ers the money lost to the winner's actual
possession, the winner owns the money, so
that the forcible taking of it from his posses-
sion may constitute robbery." State v. Price, 38
Idaho 149, 219 P. 1049, 35 A.L.R. 1458 (1923).
Instruction in the language of this and the
following section sufficiently defines the of-
fense and the intent to commit larceny. State
v. Huff, 56 Idaho 652, 57 P.2d 1080 (1936).
It was not error to refuse to give an instruc-
tion containing the statutory definition of
robbery and the statutory definition of fear
with respect to robbery where one of the
court's instructions gave the statutory defini-
tion of robbery and another told the jury they
must find "that the defendants took said prop-
erty by force and violence or by intimidating
and putting said victims in fear of personal
harm." State v. Oldham, 92 Idaho 124, 438
P.2d 275 (1968).
A jury instruction which stated that the
defendant had been accused by information of
the crime of robbery and that defendant had a
preliminary examination before a magistrate
did not violate the defendant's right to a
presumption of innocence on the argument
that the instruction could give a jury the
impression that a magistrate had already
found defendant guilty of the crime charged,
where another instruction cautioned the jury
that the fact that defendant had been brought
before the court to stand trial on a robbery
charge was not evidence of his guilt. State v.
Sharp, 101 Idaho 498, 616 P2d 1034 (1980).
Where jury instructions clearly set out the
specific intent required for the crime of rob-
bery and the jury was instructed that they
could find that at the time the alleged crime
was committed defendant was suffering from
a mental condition which prevented him from
forming such specific intent, the court's in-
structions fairly and accurately presented the
issue of intent and stated the applicable law
correctly. State v. Potter, 109 Idaho 967, 712
P.2d 668 (Ct. App. 1985).
Intent.
The intent necessary to support a convic-
tion for robbery existed where the defendant's
intimidation or battery of the victim
prompted the victim to offer money and the
defendant took the money with knowledge
that the offer was provoked by the defendant's
threats or acts of violence and with intent to
permanently deprive the victim of the prop-
erty, and it was immaterial whether the de-
fendant harbored an intent to steal when the
violence or intimidation occurred if, when
taking the victim's possessions, the defendant
knew that his violence or threats motivated
the victim's surrender of the property. State v.
Belue, 127 Idaho 464, 902 P2d 489 (Ct. App.
1995).
Where testimony demonstrated that the
defendant committed acts in furtherance of
an intent to take property from a pawn shop
by force when he entered the shop and gave a
signal to another participant to start shoot-
ing, even though the defendant did not com-
plete the robbery by actually taking property,
his actions were sufficient to sustain a verdict
for attempted robbery. State v. Fabeny, 132
Idaho 917, 980 P.2d 581 (Ct. App. 1999).
Judgment.
Correction.
Where a trial court's judgment after refer-
ring both to the "armed robbery" and to per-
sistent violator status, contained a technical
error in that it sentenced the defendant to
custody of the Board of Correction for two
concurrent, indeterminate periods not exceed-
ing 30 years "on each count," the judgment
had to be corrected to state that the defen-
dant, having been adjudicated a persistent
violator, was given a single 30-year indeter-
minate sentence for the robbery. State v.
Pierce, 107 Idaho 96, 685 P2d 837 (Ct. App.
1984).
521 ROBBERY 18-6501
Where the trial court's judgment labeled an
"order of commitment," recited that the defen-
dant was convicted, upon a guilty plea, of
"armed robbery," when in reality, the defen-
dant was found guilty of robbery after a jury
trial, the judgment had to be corrected to
state simply that the defendant was con-
victed, upon a jury verdict, of robbery. State v.
Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App.
1984).
Larceny Distinguished.
Where the victim was confronted by a
masked man with a hand in one of his coat
pockets, the jury could have reasonably con-
cluded that the masked individual intended
to rob the store, that he was armed and
prepared to do so, that the victim feared for
her own safety and that such fear was suffi-
cient to meet the requirements for robbery;
accordingly, defendant who was identified as
the masked assailant was properly convicted
of robbery rather than larceny. State v. Knee,
101 Idaho 484, 616 P.2d 263 (1980).
Preliminary Hearing Testimony.
The admission of the preliminary hearing
testimony of a person identified as the robber
by the robbery victim during her testimony at
the preliminary hearing did not violate defen-
dant's right to confrontation, even though the
person could not be located at the time of
defendant's robbery trial, where there was
never any serious contention that the person
identified as the assailant had committed the
crime, and where the sole purpose of refer-
ence to the preliminary hearing testimony
was to impeach the testimony of the robbery
victim. State v. Sharp, 101 Idaho 498, 616
P.2d 1034 (1980).
Presentence Report.
Where a presentence report in a prosecu-
tion for robbery and assault with a deadly
weapon did not make clear the number of
felonies with which the defendant had previ-
ously been charged but did establish three
previous felony convictions, the error, if any,
was not prejudicial. State v. Jagers, 98 Idaho
779, 572 P.2d 882 (1977).
under this section, where the prosecutor per-
sonally attacked the defense counsel in his
closing arguments, such prosecutorial mis-
conduct, although improper, was not revers-
ible error since, given the overwhelming and
conclusive proof of the defendant's guilt, such
misconduct did not materially contribute to
the verdict of the jury. State v. Baruth, 107
Idaho 651, 691 P.2d 1266 (Ct. App. 1984).
Sentence.
under this section, where the defendant's
prior record included numerous felonies for
robbery and burglary, delineating a clear pat-
tern of criminal behavior since at least 1954,
by imposing a 30-year fixed sentence. State v.
Baruth, 107 Idaho 651, 691 P2d 1266 (Ct.
App. 1984).
Imposition of a ten-year unified sentence
with a four-year minimum period of confine-
ment for attempted robbery was not an abuse
of discretion in light of the defendant's previ-
ous record, his past unsuccessful attempts at
rehabilitation and his admitted use and sale
of drugs. State v. Sommerfeld, 116 Idaho 518,
777 P.2d 740 (Ct. App. 1989).
Where the district court considered the
defendant's 13 prior felonies, and took into
account the nature of the offense
a robbery
which placed many people at physical risk
and the fact that the defendant was in need of

drug treatment which could be provided as
deemed appropriate by the Department of
Correction, there was no abuse of discretion
by the trial court by sentencing defendant to a
unified sentence of thirty years in prison with
a minimum of fifteen years. State v. Brandt,
119 Idaho 60, 803 P.2d 561 (Ct. App. 1990).
817 P.2d 1083 (Ct. App. 1991).
A sentence of 30 years with a minimum
period of confinement of ten years for the
robbery of a guard's boots during defendant's
escape from a hospital, was not excessive.
(Ct. App. 1991).
Sentence of 10 to 30 years for robbery was
reasonable where defendant robbed a store
with a shotgun and shot a store clerk who was
permanently disfigured and could have been
killed. State v. Gonzales, 123 Idaho 92, 844
P.2d 721 (Ct. App. 1993).
sentence, with fifteen years determinate, for
ter of the offense was vicious and unprovoked,
Idaho 374, 859 P.2d 972 (Ct. App. 1993).
Trial court properly denied defendant's mo-
tion for a reduction in sentence under I.C.R.
35;
given defendant's past history and the fact
that a past rehabilitation attempt failed, the
trial court properly found that probation was
not appropriate, and defendant's sentence of a
unified term of 30 years in prison with 10
years determinate for defendant's convictions
of robbery and eluding a police officer in
violation of
18-6501, 49-1404 was not ex-
cessive in violation of Idaho Const. Art. I,
6
and no reduction was required. State v.
Hayes, 138 Idaho 761, 69 P.3d 181 (Ct. App.
2003).
Sentence of fifteen years with six years
determinate imposed on defendant convicted
of robbery was not excessive. The sentence
was supported by defendant's criminal record
that included prior felony convictions for
grand theft and theft by extortion as well as
eleven misdemeanor convictions. State v.
Kerchusky, 138 Idaho 671, 67 P.3d 1283 (Ct.
App. 2003).
Venue.
In prosecution for robbery, district court did
not abuse its discretion in denying motion for
change of venue because of pretrial publicity
where at the voir dire, three of the potential
jurors admitted that they had no knowledge
of defendant or of the crime he was alleged to
have committed, where of the remaining 52
potential jurors, counsel moved to strike only
two individuals for cause when they stated
that they had already formed an opinion in
the case based on news reports of the crime,
where one of defense counsel's challenges for
cause was overruled by the district court, but
that individual was not ultimately seated on
the jury, and both the prosecution and the
defense exercised all available peremptory
challenges and expressed no dissatisfaction
with the 12 jurors selected. State v. Hyde, 127
Idaho 140, 898 P.2d 71 (Ct. App. 1995).
Robbery, 1 et seq.
77 C.J.S., Robbery, 1 et seq.
Taking property from the person by stealth
as robbery. 8 A.L.R. 359.
Insufficient lighting as proximate cause of
robbery. 11 A.L.R. 1414.
evidence, duty of court as to. 17 A.L.R. 925.
"Infamous offense," robbery as, within con-
stitutional or statutory provision in relation
to presentment or indictment by grand jury.
24 A.L.R. 1016.
Threat to arrest or prosecute and acts in
connection therewith as force or putting in
fear for purposes of robbery. 27 A.L.R. 1299.
A.L.R. 295.
What constitutes attempt to commit rob-
bery. 55 A.L.R. 714.
Entrapment to commit robbery. 66 A.L.R.
506; 86 A.L.R. 263.
Robbing of contraband. 75 A.L.R. 1479.
Outlawed liquor as subject of robbery. 75
A.L.R. 1480.
May participant in larceny or theft be con-
victed of offenses of receiving or concealing
the stolen property. 136 A.L.R. 1087.
Criminal liability of soldiers, sailors and
militiamen. 158 A.L.R. 1462.
Admissibility, in robbery prosecution, of ev-
idence of other robberies. 42 A.L.R.2d 854.
ject of robbery. 51 A.L.R.2d 1396.
criminal responsibility for robbery. 79
A.L.R.2d 1426.
Stolen money or property as subject of rob-
bery. 89 A.L.R.2d 1435.
Purse snatching as robbery or theft. 42
A.L.R.3d 1381.
Prosecution for robbery of one person as bar
to subsequent prosecution for robbery com-
mitted of another person at the same time. 51
A.L.R.3d 693.
What amounts to "exclusive" possession of
stolen goods to support inference of burglary
or other felonious taking. 51 A.L.R.3d 727.
Gambling, retaking of money lost at, as
robbery. 77 A.L.R.3d 1363.
Robbery by means of toy or simulated gun
or pistol. 81 A.L.R.3d 1006.
Robbery, attempted robbery, or assault to
commit robbery, as affected by intent to collect
or secure debt or claim. 88 A.L.R.3d 1309.
Use of force or intimidation in retaining
property or in attempting to escape, rather
than taking property, as element of robbery.
93 A.L.R.3d 643.
"Intimidation" as element of bank robbery
under 18 U.S.C.A. 2113(a). 163 A.L.R. Fed.
225.
18-6502. Fear which constitutes robbery.
The fear which consti-

tutes robbery may be either:
1. The fear of an unlawful injury to the person or property of the person
robbed, or of any relative of his, or member of his family; or,
2. The fear of an immediate and unlawful injury to the person or property
of any one in the company of the person robbed at the time of the robbery
[I.C.,

18-6502, as added by 1972, ch.
336, 1, p. 844.]
comprised R.S., R.C., & C. L., 6591; C.S.,
8227; I.C.A.,
523 ROBBERY 18-6503
Cited in: State v. Pierce, 107 Idaho 96, 685
P.2d 837 (Ct. App. 1984).
Analysis
Resistance unnecessary.
Threatening circumstances.
It was not error to refuse to give an instruc-
tion containing the statutory definition of
robbery and the statutory definition of fear
with respect to robbery where one of the
court's instructions gave the statutory defini-
tion of robbery and another told the jury they
must find "that the defendants took said prop-
erty by force and violence or by intimidating
and putting said victims in fear of personal
harm." State v. Oldham, 92 Idaho 124, 438
P.2d 275 (1968).
Resistance Unnecessary.
It is unnecessary for the victim to actively
resist the robber in order to provoke a more
compelling display of force. State v. Knee, 101
Idaho 484, 616 P.2d 263 (1980).
Where the victim was confronted by a
masked man with a hand in one of his coat
pockets, the jury could have reasonably con-
cluded that the masked individual intended
to rob the store, that he was armed and
prepared to do so, that the victim feared for
her own safety and that such fear was suffi-
cient to meet the requirements for robbery;
accordingly, defendant who was identified as
the masked assailant was properly convicted
of robbery rather than larceny. State v. Knee,
101 Idaho 484,1316 P.2d 263 (1980).
The fact that no threatening statements
were made to a guard by defendant during his
escape from a hospital at the time he de-
manded the guard's boots does not dissipate
the fear that the guard experienced at the
time his life was threatened with the metal
pipe and the record is replete with testimony
showing that the boots were taken from the
guard against his will by threat of force;
accordingly, there was sufficient evidence in
the record to support the robbery conviction.
(Ct. App. 1991).
Threatening Circumstances.
Fear and the force of fear may be created by
threatening circumstances. State v. Knee, 101
Idaho 484, 616 P2d 263 (1980).
Collateral References. Fact that gun was
unloaded as affecting criminal responsibility.
68 A.L.R.4th 507.
18-6503. Punishment for robbery.

Robbery is punishable by im-
prisonment in the state prison not less than five
(5)
years, and the
imprisonment may be extended to life. [I.C.,
18-6503, as added by 1972,
ch.
336, 1, p. 844.]
C.L., 6592; C.S., 8228; I.C.A.,
17-1307
Cited in: State v. Gowin, 97 Idaho 146, 540
P.2d 808 (1975); State v. Thompson, 101 Idaho
440, 614 P.2d 970 (1980); Reeves v. State, 105
v. Ramsey, 105 Idaho 898, 673 P.2d 1092 (Ct.
App. 1983); State v. Lopez, 106 Idaho 447, 680
P.2d 869 (Ct. App. 1984); State v. Spurgeon,
107 Idaho 173, 687 P.2d 17 (Ct. App. 1984);
Volker v. State, 107 Idaho 1059, 695 P.2d 809
(Ct. App. 1985); State v. Pearson, 108 Idaho
889, 702 P.2d 927 (Ct. App. 1985); State v.
Araiza, 109 Idaho 188, 706 P.2d 77 (Ct. App.
1985); State v. Martinez, 111 Idaho 281, 723
P.2d 825 (1986); Hays v. State, 113 Idaho 736,
747 P.2d 758 (Ct. App. 1987); State v.
Jaramillo, 113 Idaho 862, 749 P.2d 1 (Ct. App.
1987); State v. Hoffman, 114 Idaho 139, 754
P.2d 452 (Ct. App. 1988); State v. Brennan,
117 Idaho 123, 785 P.2d 687 (Ct. App. 1990);
State v. Gillette, 121 Idaho 629, 826 P.2d 1341
(Ct. App. 1992); State v. Harrington, 133
v. Jenkins, 133 Idaho 747, 992 P.2d 196 (Ct.
App. 1999); State v. Shanahan, 133 Idaho 896,
994 P.2d 1059 (Ct. App. 1999).
Analysis
Appellate remedies.
Enhanced sentence for use of deadly weapon.
Excessive sentence.
Indeterminate life sentences.
Minimum sentence.
Recommendation by state.
Reduction of sentence.
Properly refused.
Sentence upheld.
Uniformity of sentences.
Appellate Remedies.
Having failed to appeal to this court his
conviction and life sentence for robbery and
five-year term for escape from jail, though
given an adequate opportunity to do so, peti-
tioner could not subsequently employ habeas
corpus as an appellate remedy Mahaffey v.
State, 87 Idaho 233, 392 P.2d 423 (1964).
Where defendant had criminal record iden-
tical to that of codefendant but evidence
showed defendant had also tried to suborn
perjury and bounced checks while awaiting
trial, trial court did not abuse discretion in
giving defendant a reduced sentence of 18
years on armed robbery conviction while sen-
tencing codefendant to only 10 years. State v.
Kohoutek, 101 Idaho 698, 619 P.2d 1151
(1980).
In view of defendant's status as a persistent
violator, which allows for enhancement of
sentences imposed for other crimes, and his
conviction for robbery, which is itself punish-
able by incarceration for life, and where
presentence reports demonstrated defen-
dant's anti-social and unstable behavior, trial
court did not abuse discretion in imposing
indeterminate life sentence. Nor would such
sentence be reduced on appeal despite defen-
dant's claim of "diminished responsibility"
demonstrated by a history of self-mutilation.
State v. Lloyd, 104 Idaho 397, 659 P.2d 151
(Ct. App. 1983).
Where defendant had a previous conviction
for armed robbery and used a firearm in the
commission of second armed robbery and
where the district court explained its reasons
for the total sentence, noting that it reflected
the severity of the crime while still allowing
appellant the opportunity to straighten out
his life, court did not err in sentencing defen-
dant to indeterminate terms of ten years for
robbery and three years for use of firearm.
State v. Mallery, 105 Idaho 352, 670 P.2d 57
(Ct. App. 1983).
Confinement for at least six years and eight
months would not exceed the period neces-
sary to protect society from defendant's pat-
tern of conduct nor to punish the crime of
robbery, and sentencing discretion was not
abused where trial court imposed indetermi-
nate term not exceeding 20 years. State v.
Adams, 106 Idaho 309, 678 P.2d 101 (Ct. App.
1984).
Where the presentence report in a robbery
prosecution showed that the defendant had
compiled an exceptionally long prior record,
nate, 30-year period of custody on the robbery
charge and as a persistent violator. State v.
Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App.
1984).
Enhanced Sentence for Use of Deadly
Weapon.
Section 19-2520 does not violate the consti-
tutional guarantee against double jeopardy
by providing for multiple penalties for the
same offense, but rather it provides for a
single more severe penalty when an offense is
committed with a deadly weapon; accordingly,
where the trial court sentenced the defendant
to two five-year concurrent terms for two
robberies and then imposed an additional
three-year term, to be served consecutively,
for the defendant's use of a firearm during the
crimes, the penalty actually imposed upon the
defendant did not violate the double jeopardy
prohibition and was well within the limits
intended by the legislature in
19-2520.
State v. Galaviz, 104 Idaho 328, 658 P.2d 999
(Ct. App. 1983).
Where the defendant was sentenced to an
indeterminate sentence of 20 years for rob-
bery under this section, enhanced by ten
consecutive years for use of a firearm under
19-2520, such sentencing was within the
statutory limits and did not constitute an
abuse of discretion where the defendant's
prior record consisted of misdemeanors, the
defendant subsequently pled guilty to a
charge of robbery, psychological evaluations
had shown an inability to perceive socially
appropriate behavior or the consequences of
his actions and one evaluation had diagnosed
him as psychopathic, and the defendant
showed no remorse for the robbery. State v.
Stedtfeld, 108 Idaho 695, 701 P.2d 315 (Ct.
App. 1985).
15 years, as permitted by
19-2520; for each
State v. Sanchez, 115 Idaho 394, 766 P.2d
1275 (Ct. App. 1988).
Excessive Sentence.
The imposition of a ten year sentence on a
robbery conviction was not an abuse of trial
court's discretion when the defendant had the
opportunity to be heard at a mitigation hear-
ing prior to sentence but failed to avail him-
self of the opportunity and when the defen-
dant perpetrated the crime by means of a
deadly weapon. State v. Izatt, 93 Idaho 864,
477 P.2d 106 (1970).
525 ROBBERY 18-6503
Ct. 2519, 138 L. Ed. 2d 1020 (1997).
Where a sentence is imposed within the
statutory limits, an appellant has the burden
of showing a clear abuse of discretion on the
part of the court which imposed the sentence;
this showing is dependent upon the circum-
stances of each particular case. State v.
Seifart, 100 Idaho 321, 597 P.2d 44 (1979).
It does not follow that disparity of sen-
tences between multiple defendants involved
in the same criminal activity, or between
different defendants for committing similar
crimes, constitutes excessiveness of sentence
as to any particular defendant. State v.
Seifart, 100 Idaho 321, 597 P.2d 44 (1979).
Where, in an armed robbery prosecution,
the defendant steadfastly concealed his true
identity, his family background, and personal
circumstances so that the trial court had
scant information upon which to base an
evaluation of the defendant's past history or
propensity to commit more crimes, the trial
court did not abuse its discretion in sentenc-
ing him for an indeterminate term not exceed-
ing 20 years because the sentence imposed
was within the statutory limits and was not
shown to be clearly excessive when applied to
the particular facts of the case. State v.
Bylama, 103 Idaho 472, 649 P.2d 1228 (Ct.
App. 1982).
Where defendant received five-year sen-
tence for robbery enhanced by three-year sen-
tence for use of firearm, which sentences were
within the statutory maximums, and where
such sentences were suspended and defen-
dant placed on probation, but defendant sub-
sequently violated probation, the reimposi-
tion of the balance of the sentence, including
the enhanced portion, was not excessive.
State v. Tucker, 103 Idaho 885, 655 P.2d 92
(Ct. App. 1982).
Indeterminate Life Sentences.
Where defendant was diagnosed as having
a schizophrenic illness presently in remission
and a personality disorder with predomi-
nantly antisocial features, and he had an
extensive record of prior convictions, includ-
ing one prior robbery, two indeterminate life
sentences for two robberies did not represent
an abuse of discretion. State v. Potter, 109
Idaho 967, 712 P.2d 668 (Ct. App. 1985).
Minimum Sentence.
Although this section indicates that the
minimum sentence for robbery is five years,
the minimum period of confinement under the
sentence, pursuant to the Unified Sentencing
Act, may be for a term less than five years.
State v. Haggard, 116 Idaho 276, 775 P.2d 168
(Ct. App. 1989).
Recommendation by State.
A trial court is not bound by a sentence
recommendation made by the state even
though that recommendation was offered in
conjunction with a negotiated plea; the state's
recommendation to the trial court is purely
advisory. Accordingly, the trial court did not
err in sentencing the defendant to an indeter-
minate 30-year term for robbery even though
the state had only recommended that a
15-
year indeterminate sentence be imposed.
State v. Rossi, 105 Idaho 681, 672 P.2d 249
(Ct. App. 1983).
Reduction of Sentence.
Where the evidence in an armed robbery
prosecution showed that it was the defen-
dant's first felony with no prior history of any
criminal activity, and where the presentence
report disclosed that, except for this particu-
lar incident, the defendant's character was
good and that since the incident and incarcer-
ation pending hearing, he had markedly
changed his dependency on prescription
drugs with a resulting great improvement in
his mental attitude and stability, the defen-
dant's character and the circumstances sur-
rounding the case sufficiently outweighed the
gravity of the crime so as to require the court
in the furtherance of justice to reduce the
sentence of imprisonment from an indetermi-
nate term not to exceed 20 years to an inde-
terminate term not to exceed 12 years. State
v. Shideler, 103 Idaho 593, 651 P.2d 527
(1982).
Properly Refused.
Where defendant received two concurrent,
indeterminate seven-year sentences for rob-
bery, the court acted within its sound discre-
tion by declining to reduce such sentences
further, even though defendant had no prior
felony record and there were mitigating cir-
cumstances. State v. Dusenbery, 109 Idaho
730, 710 P.2d 640 (Ct. App. 1985).
Sentence Upheld.
Considering that defendant's attack upon
victim was an unprovoked, execution-style
attempt to take a human life that only fortu-
itously was unsuccessful and that defendant
denied that he had any mental disease or
needed treatment, fixed life sentence for rob-
bery and fixed 15-year sentence for battery,
enhanced by an additional 15 years for use of
a firearm, was justified to protect society.
State v. Storey, 109 Idaho 993, 712 P.2d 694
(Ct. App. 1985).
Where the defendant broke into a private
home and robbed two occupants at gunpoint,
the defendant had been incarcerated in vari-
ous institutions beginning when he was 19-
years-old and had a prior record of at least
eight felonies, he was an escapee from a penal
facility at the time of the robbery, and he had
failed to respond to prior efforts at rehabilita-
tion, an indeterminate life sentence was not
an abuse of discretion. McNeeley v. State, 111
Idaho 200, 722 P.2d 1067 (Ct. App. 1986).
electing to sentence the defendant to the
custody of the Board of Corrections instead of
placing him on probation where the defen-
dant was a danger to society because of his
substance abuse and his inability to control
his actions as a result of that abuse. State v.
Rutter, 112 Idaho 1142, 739 P.2d 441 (Ct. App.
1987).
Where in addition to the serious and violent
nature of the robbery, the record disclosed
that defendant had five prior felony convic-
tions and had served several terms of impris-
onment, the district judge did not abuse his
discretion in imposing a ten-year indetermi-
nate sentence for robbery, enhanced by a
15-year indeterminate period for use of a
firearm during the robbery. State v. Alger, 115
Idaho 42, 764 P.2d 119 (Ct. App. 1988).
Where robbery defendant was sentenced to
four to ten years in prison for taking money
from restaurant employees by threatening
them with knives, where the record indicated
that although defendant was only 19 years
old when he committed the robbery, he had an
extensive criminal record consisting of other
felony and misdemeanor offenses, and where
defendant also pleaded guilty to assaulting a
law enforcement officer while in jail awaiting
disposition of the present case, the sentence
imposed was not excessive and the sentencing
court did not abuse its discretion by imposing
same, even though extensive testimony at the
sentencing hearing concerned defendant's
background, growing up in an abusive house-
hold, his present difficulty in obtaining em-
ployment and his psychological difficulties.
State v. Kysar, 116 Idaho 992, 783 P.2d 859
(1989).
A reduced sentence of a fixed term of five
years plus an indeterminate term often years
was not excessive for a conviction of robbing
an elderly man at gunpoint in his home where
the defendant had pressed the gun against
the victim's head and where the defendant
failed to complete the retained jurisdiction
program. State v. Boswell, 118 Idaho 725, 800
P.2d 121 (Ct. App. 1990).
Where the district court considered the
defendant's 13 prior felonies, and took into
account the nature of the offense, a robbery
which placed many people at physical risk,
and the fact that the defendant was in need of
drug treatment which could be provided as
deemed appropriate by the Department of
Correction, there was no abuse of discretion
by the trial court by sentencing defendant to a
unified sentence of thirty years in prison with
a minimum of fifteen years. State v. Brandt,
119 Idaho 60, 803 P.2d 561 (Ct. App. 1990).
An indeterminate life sentence with a
20-
year minimum term of confinement for rob-
bery conviction was not an abuse of discretion
where defendant had an extensive criminal
record as both a juvenile and adult, showed
little remorse for his victims and blamed his
actions on a substance abuse problem over
which he demonstrated no willingness or mo-
tivation to gain control. State v. Admyers, 122
Idaho 107, 831 P.2d 949 (Ct. App. 1992).
Concurrent unified sentences of life in
prison with a minimum period of confinement
of 20 years for rape and robbery was not an
abuse of court's discretion where defendant
had a long history of encounters with the law,
including four felony convictions, and was on
parole when he committed the latest offenses.
State v. Zacharias, 122 Idaho 227, 832 P.2d
1168 (Ct. App. 1992).
tion by denying a motion to modify defen-
dant's sentence of an indeterminate term of
life with a minimum period of confinement of
ten years for robbing a bank, where the de-
fendant had an extensive prior criminal
record and indicated she had committed the
crime so that she could reenter the peniten-
tiary where she felt more comfortable than
she did living outside a penal facility. State v.
Yates, 122 Idaho 625, 836 P.2d 571 (Ct. App.
1992).
There was no abuse of discretion on the
part of the district judge in imposing a 30-
year sentence on plaintiff, which required a
minimum of 15 years' incarceration. State v.
Galaviz, 123 Idaho 47, 844 P.2d 29 (Ct. App.
1992).
Sentence of 10 to 30 years for robbery was
reasonable where defendant robbed a store
with a shotgun and shot a store clerk who was
permanently disfigured and could have been
killed. State v. Gonzales, 123 Idaho 92, 844
P.2d 721 (Ct. App. 1993).
Three concurrent sentences of 15 years to
life for robbery was reasonable, where the
violent robberies constituted defendant's
sixth, seventh, and eighth felony convictions
as an adult. State v. Dunn, 123 Idaho 245, 846
P.2d 247 (Ct. App. 1993).
Sentence of two to ten years on one count of
robbery was reasonable where although de-
fendant spent 28 years as a successful educa-
tor in Idaho, defendant had robbed a bank
after planning the robbery for approximately
a month. State v. Shaffer, 123 Idaho 167, 845
P.2d 585 (Ct. App. 1993).
Having examined the probable duration of
527 SEX CRIMES 18-6601
confinement in light of the nature of the
crime, character of the offender, and objec-
tives of sentencing, unified 10 year sentence
imposed for crime of robbery was within
guidelines, and as defendant's prior history
involved felony contact with the law and the
potential seriousness of involvement in armed
robbery, it was proper for the district court to
deny relief under I.C.R. 35 and the sentence
imposed was reasonable and did not consti-
tute an abuse of discretion. State v. Roberts,
126 Idaho 920, 894 P.2d 153 (Ct. App. 1995).
There was no abuse of discretion where the
defendant's criminal history and the violent
nature of the crime led the trial court to
conclude that the defendant was an extremely
dangerous person and that the sentence im-
posed served the sentencing goals of protec-
tion of society and retribution. State v.
Martinez, 133 Idaho 484, 988 P. 2d 710 (Ct.
App. 1999).
Uniformity of Sentences.
There is no requirement under the due
process clause or any other clause of the
constitution which imposes a mandate upon
the court to render uniform sentences against
criminal defendants; otherwise the imposi-
tion of sentences-would be an inflexible me-
chanical operation without any humanitarian
or social consideration rather than an effort to
make the punishment fit not only the crime
but also the character and needs of the indi-
vidual and the requirements of the commu-
nity. State v. Seifart, 100 Idaho 321, 597 P.2d
44 (1979).
CHAPTER 66
SEX CRIMES
SECTION. SECTION.
18-6601. Adultery. 18-6606.
18-6602. Incest.
18-6603. Fornication. 18-6607.
18-6604. [Repealed.] 18-6608.
18-6605. Crime against
ment.
nature
-
-
Punish-
18-6609.
Crime against nature

Penetra-
tion.
[Amended and Redesignated.]
Forcible sexual penetration by use
of foreign object.
Crime of video voyeurism.
18-6601. Adultery.
A married man who has sexual intercourse with

a woman not his wife, an unmarried man who has sexual intercourse with
a married woman, a married woman who has sexual intercourse with a man
not her husband, and an unmarried woman who has sexual intercourse with
a married man, snail be guilty of adultery, and shall be punished by a fine
of not less than $100, or by imprisonment in the county jail for not less than
three months, or by imprisonment in the state penitentiary for a period not
exceeding three years, or in the county jail for a period not exceeding one
year, or by fine not exceeding $1000. [I.C.,
18-6601, as added by 1972, ch.
336, 1, p. 844.1
comprised S.L. 1905, p. 294, 1; reen. R.C., &
C.L., 6807; C.S., 8284; I.C.A.,
17-1806
Analysis
Corroboration.
Criminal conversation.
Evidence.
Indictment.
Corroboration.
(1981).
Criminal Conversation.
Section 32-901 and this section were not
grounds for wife's cause of action against
husband for criminal conversation based on
husband's adultery; the ill effects of a suit for
criminal conversation outweigh any benefit it
may have. Neal v. Neal, 125 Idaho 617, 873
P.2d 871 (1994).
Evidence.
Mere disposition and opportunity to commit
adultery are not alone sufficient to justify
conviction, but there must be circumstances
inconsistent with any other reasonable hy-
pothesis. State v. Sims, 35 Idaho 505, 206 P.
1045 (1922).
Indictment.
Sufficiency of indictment. See State v.
Andrus, 29 Idaho 1, 156 P. 421 (1916).
Adultery and Fornication, 1 et seq.
2 C.J.S., Adultery, 1 et seq.
Mistaken belief in existence, validity, or
effect of divorce or separation as defense to
prosecution for adultery. 56 A.L.R.2d 915.
Cohabitation under marriage contracted af-
ter divorce decree is adultery, or decree is
later reversed or set aside. 63 A.L.R.2d 816.
Admissibility, in prosecution for sexual of-
fense, of evidence of other similar offenses. 77
A.L.R.2d 841; 2 A.L.R.4th 330.
Validity of statute making adultery and
fornication criminal offense. 41 A.L.R.3d
1338.
18-6602. Incest.
Persons being within the degrees of consanguinity

within which marriages are declared by law to be incestuous and void, who
intermarry with each other, or who commit fornication or adultery with each
other, are punishable by imprisonment in the state prison not exceeding
twenty-five (25) years. [I.C.,

18-6602, as added by 1972, ch. 336, 1, p.
844; am. 2003, ch. 202, 1, p. 543.]
C.L., 6809; C.S., 8286; I.C.A.,
17-1807
19-
5303.
in
16-2002, 18-8304, 18-8314, 19-5506 and
39-1113.
Cited in: State v. Herr, 97 Idaho 783, 554
State v. Tribe, 123 Idaho 721, 852 P.2d 87
(1993); Balla v. Idaho State Bd. of Cors., 869
F.2d 461 (9th Cir. 1988).
Analysis
Consanguinity.
Consent of woman.
Corroboration.
Evidence.
Incest not included within rape.
Indictment.
Consanguinity.
"Degrees of consanguinity," mentioned
herein, are defined by
32-205. State v.
Andrus, 29 Idaho 1, 156 P. 421 (1916).
Consent of Woman.
Crime of incest is committed where other
elements exist, although the female is by
want of age incapable of consenting thereto.
People v. Barnes, 2 Idaho (Hasb.) 161, 9 P. 532
(1886).
Corroboration.
(1981).
Evidence.
Prosecutrix if over age is an accomplice,
and conviction cannot be had on her uncor-
roborated testimony. State v. Clark, 27 Idaho
48, 146 P. 1107 (1915).
Where evidence of prosecutrix is contradic-
tory or her truthfulness is impeached and
defendant denies her testimony and his testi-
mony is corroborated, the testimony of
prosecutrix, alone and without corroboration,
will not warrant conviction. State v. Clark, 27
Idaho 48, 146 P. 1107 (1915); State v. Andrus,
29 Idaho 1, 156 P. 421 (1916).
Incest Not Included Within Rape.
It is clear that incest, as defined by this
section, includes the element of a familial
relationship between the defendant and the
victim, which element is not present in or
necessary to the commission of rape under
any subdivision of 18-6101; because the
crime of incest contains an element which is
not necessary to the crime of rape, incest is
not a lesser included offense of rape under the
traditional statutory approach to lesser in-
cluded offenses. State v. Madrid, 108 Idaho
736, 702 P.2d 308 (Ct. App. 1985).
Where the defendant was charged with the
rape of an 18-year-old woman, under
18-
6101, but the information made no reference
to the fact that the victim was the defendant's
daughter, the defendant could not be con-
victed of incest under this section because
incest is not a lesser included offense of rape,
and because it would violate due process to
convict a defendant for a crime not charged;
however, upon the setting aside of the convic-
tion of incest, there was no constitutional
barrier to a subsequent prosecution for that
offense, since the defendant had never been
charged with and prosecuted for the crime of
incest. State v. Madrid, 108 Idaho 736, 702
P.2d 308 (Ct. App. 1985).
Indictment.
Sufficiency of indictment. See State v.
Andrus, 29 Idaho 1, 156 P. 421 (1916).
Charging defendant with lewd conduct with
a minor under sixteen years of age instead of
incest did not constitute an abuse of
prosecutorial discretion where the facts legit-
imately invoked both offenses. LaBarge v.
1989) (decided under former law).
Incest, 1 et seq.
42 C.J.S., Incest, 1 et seq.
Aiding and abetting offense by one not
related to parties. 5 A.L.R. 784; 74 A.L.R.
1110; 131 A.L.R. 1322.
Reduction of punishment by appellate
court. 29 A.L.R. 324; 89 A.L.R. 295.
Corroboration of confession of incest. 40
A.L.R. 469.
Dying declarations in prosecutions for in-
cest. 49 A.L.R. 1284; 91 A.L.R. 560.
Adoption, relationship created by, as within
statute regarding incest. 151 A.L.R. 1146.
Consent as element of incest. 36 A.L.R.2d
1299.
Prosecutrix in incest case as accomplice or
victim. 74 A.L.R.2d 705.
another in criminal prosecution
-
modern
state cases. 74 A.L.R.4th 223.
Sexual intercourse between persons related
by halfblood as incest. 34 A.L.R.5th 723.
18-6603. Fornication.
Any unmarried person who shall have sexual

intercourse with an unmarried person of the opposite sex shall be deemed
guilty of fornication, and, upon conviction thereof, shall be punished by a
fine of not more than $300 or by imprisonment for not more than six months
or by both such fine and imprisonment; provided, that the sentence imposed
or any part thereof may be suspended with or without probation in the
18-6603, as added by 1972, ch. 336, 1, p.
844.1
comprised S.L. 1921, ch. 209, 1, p. 420;
I.C.A.,
the present section adaed by S.L. 1972, ch.
Analysis
Corroboration.
Included offense.
Corroboration.
(1981).
Included Offense.
minor child under sixteen, it was not error for
trial court to refuse to instruct the jury on
crime of fornication, for a child under sixteen
could not as a matter of law give her consent
and, therefore, fornication could not be a
necessarily included offense of lewd conduct
with a minor. State v. Herr, 97 Idaho 783, 554
State v. Tribe, 123 Idaho 721, 852 P. 2d 87
(1993).
Collateral References. 37 C.J.S., Forni-
cation, 1 et seq.
Validity of statute making adultery and
fornication criminal offense. 41 A.L.R.3d
1338.
18-6604. Lewd cohabitation. [Repealed.]
prised Act Feb. 10, 1887; R.S., R.C., & C.L.,
6812; C.S., 8289; I.C.A.,
17-1809 was
January 1, 1972.
18-6605. Crime against nature
Punishment.
Every person who

is guilty of the infamous crime against nature, committed with mankind or
with any animal, is punishable by imprisonment in the state prison not less
than five years. [I.C.,
18-6605, as added by 1972, ch.
336, 1, p. 844.]
C.L., 6810; C.S., 8287; I.C.A.,
17-1812
Cross ref. Assault with intent to commit
crime against nature,
18-907.
in
18-310, 18-8304, 18-8314, 19-2520C,
19-5506, 20-525A and 72-1025.
Cited in: State v. Cotton, 100 Idaho 573,
602 P.2d 71 (1979); State v. Schwartzmiller,
107 Idaho 89, 685 P.2d 830 (1984); State v.
Hernandez, 107 Idaho 947, 694 P2d 1295
(1983); State v. Martinez, 111 Idaho 281, 723
P2d 825 (1986); Balla v. Idaho State Bd. of
Cors., 869 F.2d 461 (9th Cir. 1988); State v.
Soura, 118 Idaho 232, 796 P2d 109 (1990).
Analysis
Application.
Argument of prosecuting attorney.
Constitutionality.
Construction.
Corroboration.
Crime against nature.
Acts included.
Equal protection.
Evidence.
Information.
Instructions.
Sentence.
Standing.
Statements.
Defendant.
Prosecutor.
Application.
Where the evidence clearly showed that the
defendant used force and threats in his at-
tempt to coerce the pregnant victim to fellate
him, the defendant had no standing to assert
that this section could not constitutionally be
applied to consenting adults of the opposite
sex since it is a fundamental rule of constitu-
tional law that when a statute can be applied
to a person's conduct without violating any
constitutional provision, he will not be heard
to assert that the statute might be unconsti-
tutional if applied to other types of behavior.
State v. Goodrick, 102 Idaho 811, 641 P.2d 998
(1982).
Argument of Prosecuting Attorney.
The arguments of the prosecuting attorney,
described as inflammatory in effect by the
defense, urging the jurors to enforce the law
and to halt an outbreak of homosexual prac-
tices in the city was not improper and did not
constitute a ground for a new trial or a
reversal. State v. Larsen, 81 Idaho 90, 337
P.2d 1, cert denied, 361 U.S. 882, 80 S. Ct.
154, 4 L. Ed. 2d 119 (1959).
Constitutionality.
This section, which prohibits "infamous
crimes against nature," may not be constitu-
tionally enforced to prohibit private consen-
sual marital conduct, although this holding
does not affect in any way the validity of this
section with respect to forced sexual activity,
sexual acts with minors, nonprivate or com-
mercial conduct or bestiality. State v. Holden,
126 Idaho 755, 890 P.2d 341 (Ct. App. 1995).
Construction.
Not only the common-law crime of sodomy
is included but all unnatural carnal copula-
tions, whether with man or beast, committed
per os or per anum. State v. Altwatter, 29
Idaho 107, 157 P. 256 (1916).
The principle recognized in Idaho for more
than 40 years was that this section was suf-
ficiently broad to include not only the crime of
sodomy, but also all unnatural carnal copula-
tions whether with man or beast. State v.
Larsen, 81 Idaho 90, 337 P.2d 1, cert denied,
361 U.S. 882, 80 S. Ct. 154, 4 L. Ed. 2d 119
(1959).
This section is not void because of vague-
ness or ambiguity and the acts of defendants
in attacking a prison inmate and forcing him
to perform the act of fellatio upon several
inmates fall squarely within this section as
uniformly construed for 58 years. State v.
Carringer, 95 Idaho 929, 523 P.2d 532 (1974).
Even if the indeterminate sentence provi-
sion of I.C.,
19-2513 abolished the mini-
mum sentence, I.C., 18-112, which provides
a five-year sentence for all felonies where no
specific punishment is prescribed, would not
be applicable to a crime against nature as this
section in providing for a sentence of not less
than five years left the maximum sentence to
the discretion of the court. State v. Carringer,
95 Idaho 929, 523 P2d 532 (1974).
The act of fellatio is included within the
statutory definition of crimes against nature.
State v. Izatt, 96 Idaho 667, 534 P.2d 1107
(1975).
While this section seeks to regulate the
morality of an adult populace, former
18-
6607 (now
18-1508) seeks to provide spe-
cific protection for minors. Some, but not all,
crimes of sodomy can be charged under
former
18-6607 (now
18-5808) and simi-
larly, many acts which violate former
18-
6607 (now
18-5808) do not constitute sod-
omy; thus, this section and former
18-6607
(now
18-1508) do not conflict and represent
distinct legislative choices in determining the
reach of the criminal law. Schwartzmiller v.
Gardner, 567 F. Supp. 1371 (D. Idaho 1983),
modified on other grounds, 752 E2d 1341 (9th
Cir. 1984).
The infamous crime against nature in-
cludes anal intercourse, or in the language of
the common law, sodomy. State v. Hayes, 121
Idaho 232, 824 P.2d 163 (Ct. App. 1992).
Corroboration.
(1981).
Crime Against Nature.
Acts Included.
The term "infamous crime against nature"
includes the act of fellatio. State v. Brashier,
127 Idaho 730, 905 P.2d 1039 (Ct. App. 1995).
in denying defendant probation and in impos-
ing a thirty-year sentence for rape conviction
and two five-year terms for each conviction of
infamous crimes against nature with all
terms to be served concurrently. State v.
(1976).
Equal Protection.
That defendant's conduct could have been
charged under either this section or former
18-6607 (now
18-1508) did not render his
conviction for one a denial of equal protection.
752 F.2d 1341 (9th Cir. 1984).
Evidence.
Corroboration of the testimony of an accom-
plice is necessary in a case involving the
commission of the infamous crime against
nature to support conviction. State v. Larsen,
81 Idaho 90, 337 P.2d 1, cert, denied, 361 U.S.
882, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959).
In prosecution for rape, complaining wit-
ness' testimony that she had been forced to
engage in fellatio was admissible, even
though it implicated defendant in another
criminal act, where such act was inseparable
from the entire transaction of which the rape
was a part. State v. Izatt, 96 Idaho 667, 534
P.2d 1107 (1975).
Victim's testimony that defendant had put
his penis "in" her lips and "past" her lips
constituted substantial evidence of penetra-
tion. State v. Brashier, 127 Idaho 730, 905
P.2d 1039 (Ct. App. 1995).
Information.
Sufficiency of information. See State v.
Altwatter, 29 Idaho 107, 157 P. 256 (1916).
against nature, and a violation of former
18-6607 (now 18-1508). State v. Wall, 73

Idaho 142, 248 P.2d 222 (1952).
Instructions.
The jurors in a case involving the prosecu-
tion of the infamous crime against nature
were correctly instructed in substance that
the testimony of an accomplice alone would
not support a conviction, but there must be
other evidence connecting the defendant with
the crime, and this evidence might be fur-
nished by the statements, admissions, or con-
fession of the defendant. State v. Larsen, 81
Idaho 90, 337 P.2d 1, cert, denied, 361 U.S.
882, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959).
The jury in prosecution for alleged commis-
sion of infamous crime against nature was
given adequate instructions which stated in
substance that the confession might be con-
sidered only if the jury found it was made
voluntarily by the defendant, without threats
and without promise of reward or immunity,
and even if the jury so concluded, the confes-
sion alone would not support conviction, but it
should be considered along with all the other
evidence in the case. State v. Larsen, 81 Idaho
90, 337 P.2d 1, cert, denied, 361 U.S. 882, 80
S. Ct. 154, 4 L. Ed. 2d 119 (1959).
Sentence.
Length of imprisonment in excess of five
years is left to discretion of court. In re Miller,
23 Idaho 403, 129 P. 1075 (1913).
As this section prescribes the punishment,
18-112 has no application and does not fix

the maximum punishment. In re Miller, 23
Idaho 403, 129 P. 1075 (1913).
degree kidnapping, assault with intent to
commit infamous crime against nature, at-
tempt to commit infamous crime against na-
ture, and assault with intent to commit mur-
der were not excessive. State v. Drapeau, 97
Idaho 685, 551 P.2d 972 (1976).
Where defendant's convictions for assault
with intent to commit infamous crime against
nature and attempt to commit infamous
crime against nature arose out of the same
act, the sentences imposed would be served
concurrently. State v. Drapeau, 97 Idaho 685,
551 P.2d 972 (1976).
Where the defendant used force and threats
in his attempt to coerce the pregnant victim to
fellate him, the brutal circumstances of the
assault with intent to commit the infamous
crime against nature were sufficient to war-
rant his 14-year imprisonment sentence, and
the sentence did not constitute cruel and
unusual punishment even if one assumed
that assault with intent to commit the infa-
mous crime against nature was a lesser in-
cluded offense of the infamous crime against
nature, and that the maximum penalty for
the infamous crime against nature was five
years imprisonment. State v. Goodrick, 102
Idaho 811, 641 P.2d 998 (1982).
P.2d 580 (Ct. App. 1984).
Where the defendant was sentenced to in-
determinate, concurrent periods not to exceed
15 years for rape and five years for the infa-
mous crime against nature, the trial court did
not abuse its sentencing discretion, where the
court found that the positive qualities of the
offender were outweighed by the retribution
and general deterrence objectives of sentenc-
ing. State v. Hendricks, 110 Idaho 846, 718
P.2d 1284 (Ct. App. 1986).
Infamous crime against nature does not
require a minimum period of confinement of
five years, but rather requires a minimum
sentence of five years. State v. Hayes, 121
Idaho 232, 824 P.2d 163 (Ct. App. 1992).
State v. Lenwai, 122 Idaho 258, 833 P. 2d 116
(Ct. App. 1992).
Where the district court, on resentencing,
did consider the mitigating factors which
plaintiff relied upon for support that his sen-
tence was excessive but also delineated aggra-
vating factors and reemphasized the callous-
ness shown by plaintiff by participating in
throwing the victim, with his throat cut, down
an embankment in the snow and abandoning
him after the crime for which he had been
convicted was perpetrated, the district court
did not abuse its discretion in sentencing
plaintiff to a 12-year term, with five-years
fixed. State v. Hayes, 123 Idaho 26, 843 P.2d
675 (Ct. App. 1992).
Although defendant's prior criminal record
consisted of only a few convictions for minor
crimes and traffic offenses, since the crime
consisted of a violent, forced sexual act, there
was no abuse of discretion by the district
court in arriving at the two-year term of a
sentence of a five-year indeterminate term of
incarceration with a two-year minimum pe-
riod of confinement. State v. Birkla, 126 Idaho
498, 887 P.2d 43 (1994).
In prosecution for felony charge of infamous
crime against nature, sentence of an indeter-
minate life term with a twenty-year minimum
period of confinement was reasonable where
defendant had history of violent and serious
offenses, had convictions for robbery, assault
and weapons offenses, had not finished any
probationary supervision period without vio-
lation and revocation, admitted to the
presentence evaluator other uncharged inci-
dents, the psychological evaluation indicated
he had an antisocial personality compounded
by serious alcohol abuse and the evaluator
felt that he was a poor candidate for improve-
ment from rehabilitation. State v. Dushkin,
124 Idaho 184, 857 P.2d 663 (Ct. App. 1993).
The maximum sentence for the infamous
crime against nature is left to the discretion of
the trial court, and may extend to life impris-
onment. State v. Brashier, 127 Idaho 730, 905
P.2d 1039 (Ct. App. 1995).
Where the district court acted under an
erroneous belief that the maximum autho-
rized sentence for the infamous crime against
nature was five years, and thereby incorrectly
limited the scope of its discretion, case was
properly remanded for a new sentencing.
State v. Brashier, 127 Idaho 730, 905 P.2d
1039 (Ct. App. 1995).
Under the facts of this case, defendant's
incarceration was not attributable to the
charge of infamous crime against nature until
he was initially sentenced for that crime.
State v. Brashier, 130 Idaho 112, 937 P2d 424
(Ct. App. 1997).
Where trial court considered the violent
and sexual nature of the crime and defen-
dant's prior criminal conduct, and his history
of alcohol abuse which indicated that he
would be a risk to society, sentence of nine
years was not an abuse of the court's discre-
tion. State v. Brashier, 130 Idaho 112, 937
P.2d 424 (Ct. App. 1997).
Although five years is the minimum sen-
tence under this section, this section does not
require a minimum period of actual confine-
ment of five years. A sentence imposed under
this section may include a lesser minimum
period of confinement together with an inde-
terminate term, so that the determinate and
indeterminate terms together total five years
or more. State v. Hansen, 130 Idaho 845, 949
P.2d 593 (Ct. App. 1997).
Standing.
Defendant had standing to challenge the
constitutionality of this section, where his
conviction was predicated on sexual acts
which he engaged in with his wife and where
defendant argued that the application of this
section to his private, arguably consensual
relations with his wife violated his right of
privacy. State v. Holden, 126 Idaho 755, 890
P.2d 341 (Ct. App. 1995).
Statements.
Defendant.
In prosecution for infamous crime against
nature, where defendant was taken in a police
car without being handcuffed or placed in
restraints and was questioned in an interview
room in which interview he made certain
statements, where he voluntarily agreed to
submit to a medical examination, and al-
though hospital personnel noted he was re-
turned to protective custody after the exam,
there was nothing in the record to indicate the
basis for such conclusion, and where police
officers testified that defendant was always
free to leave, and that the door to the inter-
view room was not locked, the facts found by
the trial court as testified to by the police
officers were supported by substantial evi-
dence that defendant was not in custody;
thus, trial court correctly admitted state-
ments defendant had made even though he
had not been given proper Miranda warnings.
State v. Birkla, 126 Idaho 498, 887 P.2d 43
(1994).
Prosecutor.
nature, statements by prosecutor in closing
arguments were not impermissible and did
not deprive defendant of a fair trial where,
although such statements could have been
better framed in less personal terms, such
comments were not improper. State v. Birkla,
126 Idaho 498, 887 P.2d 43 (1994).
Collateral References. 70C Am. Jur. 2d,
Sodomy, 1 et seq.
81 C.J.S., Sodomy, 1 et seq.
Identity of accused, evidence of other of-
fenses to prove. 22 A.L.R. 1021; 27 A.L.R. 357;
63 A.L.R. 602.
A.L.R. 295.
Consent as defense in prosecution for sod-
omy. 58 A.L.R.3d 636.
Entrapment defense in sex prosecution. 12
A.L.R.4th 413.
18-6606. Crime against nature
Penetration.
Any sexual pen-

etration, however slight, is sufficient to complete the crime against nature.
[I.C.,

18-6606, as added by 1972, ch. 336, 1, p. 844.]
C.L., 6811; C.S., 8288; I.C.A.,
17-1813
Cited in: State v. Maland, 124 Idaho 830,
864 P.2d 668 (Ct. App. 1993).
Analysis
Application.
Corroboration.
Evidence.
Information.
Statements.
Defendant.
Prosecutor.
Verdicts.
Application.
The act of fellatio is included within the
statutory definition of crimes against nature.
(1975).
Corroboration.
(1981).
Evidence.
Where a rape victim was also forced to
engage in fellatio which was a separate crime
for which the defendant was not charged, the
evidence relating to fellatio was admissible.
(1975).
Information.
against nature, and a violation of
18-6607
(now 18-1508). State v. Wall, 73 Idaho 142,
248 P.2d 222 (1952).
Statements.
Defendant.
nature, where defendant was taken in a police
car without being handcuffed or placed in
restraints and was questioned in an interview
room in which interview he made certain
statements, where he voluntarily agreed to
submit to a medical examination, and al-
though hospital personnel noted he was re-
turned to protective custody after the exam,
there was nothing in the record to indicate the
basis for such conclusion, and where police
officers testified that defendant was always
free to leave, and that the door to the inter-
view room was not locked, the facts found by
the trial court as testified to by the police
officers were supported by substantial evi-
dence that defendant was not in custody.
Thus, trial court correctly admitted state-
ments defendant had made even though he
had not been given proper Miranda warnings.
State v. Birkla, 126 Idaho 498, 887 P.2d 43
(1994).
Prosecutor.
nature, statements by prosecutor in closing
arguments were not impermissible and did
not deprive defendant of a fair trial where,
although such statements could have been
better framed in less personal terms, such
comments were not improper. State v. Birkla,
126 Idaho 498, 887 P.2d 43 (1994).
Verdicts.
Jury verdicts of guilty on a rape charge and
not guilty as to an infamous crime against
nature charge are rationally reconcilable and
therefore were not impermissibly inconsis-
tent. State v. Lopez, 126 Idaho 831, 892 P.2d
898 (Ct. App. 1995).
18-1508 by
2ofS.L. 1984, ch. 63.
18-6608. Forcible sexual penetration by use of foreign object.
Every person who, for the purpose of sexual arousal, gratification or abuse,
causes the penetration, however slight, of the genital or anal opening of
another person, by any object, instrument or device, against the victim's will
by use of force or violence or by duress, or by threats of immediate and great
bodily harm, accompanied by apparent power of execution, or where the
victim is incapable, through any unsoundness of mind, whether temporary
or permanent, of giving legal consent, or where the victim is prevented from
resistance by any intoxicating, narcotic or anesthetic substance, shall be
guilty of a felony and shall be punished by imprisonment in the state prison
for not more than life. [I.C.,

18-6608, as added by 1983, ch. 176, 1, p.
484; am. 2002, ch. 360, 1, p. 1018.]

[19-
5303] 19-5302.
in

18-310, 18-7905, 18-8303, 18-8304, 18-
8314, 19-5506, 20-525A, 39-1113 and 72-1025.
Cited in: State v. Martinez, 111 Idaho 281,
723 P.2d 825 (1986); Hays v. State, 113 Idaho
736, 747 R2d 758 (Ct. App. 1987).
Analysis
"Any object" denned.
Sentence.
Excessive.
"Any Object" Denned.
The phrase "any object" contained in this
section is not ambiguous and includes such
human body parts as a finger. State v. Brown-
ing, 123 Idaho 748, 852 P.2d 500 (Ct. App.
1993).
Sentence.
Excessive.
Ct. 2519, 138 L. Ed. 2d 1020 (1997).
18-6609. Crime of video voyeurism.

(a) "Broadcast" means the electronic transmittal of a visual image with
the intent that it be viewed by a person or persons.
(b) "Disseminate" means to make available by any means to any person.
(c) "Imaging device" means any instrument capable of recording, storing,
viewing or transmitting visual images.
(d) "Intimate areas" means the buttocks, genitals or genital areas of
males or females, and the breast area of females.
(e) "Person" means any natural person, corporation, partnership, firm,
association, joint venture or any other recognized legal entity or any agent
or servant thereof.
(f) "Place where a person has a reasonable expectation of privacy" means:
(i) A place where a reasonable person would believe that he could
undress, be undressed or engage in sexual activity in privacy, without
concern that he is being viewed, photographed, filmed or otherwise
recorded by an imaging device; or
(ii) A place where a person might reasonably expect to be safe from
casual or hostile surveillance by an imaging device; or
(iii) Any public place where a person, by taking reasonable steps to
conceal intimate areas, should be free from the viewing, recording,
storing or transmitting of images obtained by imaging devices designed
to overcome the barriers created by a person's covering of intimate
areas.
(g)
"Publish" means to:
(i) Disseminate with the intent that such image or images be made
available by any means to any person; or
(ii) Disseminate with the intent that such images be sold by another
person; or
(iii) Post, present, display, exhibit, circulate, advertise or allow access
by any means so as to make an image or images available to the public;
or
(iv) Disseminate with the intent that an image or images be posted,
presented, displayed, exhibited, circulated, advertised or made accessi-
ble by any means and to make such image or images available to the
public.
(h) "Sell" means to disseminate to another person, or to publish, in
exchange for something of value.
(2) A person is guilty of video voyeurism when, with the intent of
arousing, appealing to or gratifying the lust or passions or sexual desires of
such person or another person, or for his own or another person's lascivious
entertainment or satisfaction of prurient interest, or for the purpose of
sexually degrading or abusing any other person:
(a) He uses, installs or permits the use or installation of an imaging
device at a place where a person would have a reasonable expectation of
privacy, without the knowledge or consent of the person using such place;
or
(b) He intentionally disseminates, publishes or sells any image or images
of the intimate areas of another person or persons without the consent of
such other person or persons and with knowledge that such image or
images were obtained with the intent set forth above.
(3) A violation of this section is a felony. [I.C.,

2004, ch. 122, 1, p. 410.]
18-8304.
in 18-8304.
CHAPTER 67
COMMUNICATIONS SECURITY
SECTION.
18-6702. Interception and disclosure of wire,
electronic or oral communica-
tions prohibited.
18-6703. Manufacture, distribution, posses-
sion, and advertising of wire,
tion intercepting devices pro-
hibited.
18-6704. Confiscation of wire, electronic or
oral communication intercept-
ing devices.
18-6705. Prohibition of use as evidence of
intercepted wire, electronic or
oral communications.
18-6706. Authorization for interception of
wire, electronic or oral com-
munications.
18-6707. Authorization for disclosure and
use of intercepted wire, elec-
tronic or oral communications.
18-6708. Procedure for interception of wire,
tions.
18-6709. Recovery of civil damages autho-
rized.
18-6710. Use of telephone to annoy, terrify,
threaten, intimidate, harass
or offend by lewd or profane
language, requests, sugges-
tions or proposals

Threats
of physical harm

Disturb-
ing the peace by repeated calls
Penalties.
SECTION.
18-6711.
18-6711A
18-6712.
18-6713.
18-6714.
18-6715.
18-6716.
18-6717.
18-6718.
18-6719.
18-6720.
18-6721.
18-6722.
18-6723.
18-6724.
18-6725.
Use of telephone to terrify, intimi-
date, harass or annoy by false
statements
Penalties.
. False alarms
Complaints
Re-
ports

Penalties

Civil
damages.
Place of offense.
Theft of telecommunication ser-
vices.
Aiding the avoidance of telecommu-
nications charges.
Forgery of telegraphic messages.
Opening telegrams.
Refusal to send or deliver telegraph
message.
Opening sealed mail or packages.
Definitions for pen registers and
trap and trace devices.
General prohibition on pen register
and trap and trace device use
Exception.
Application for an order for a pen
register or a trap and trace
device.
Issuance of an order for a pen reg-
ister or a trap and trace de-
vice.
Assistance in installation and use of
a pen register or a trap and
trace device.
[Repealed.]
Rule for prior interceptions.
Definitions as used in this chapter:

(1) "Wire communication" means any aural transfer made in whole or in
part through the use of facilities for the transmission of communications by
the aid of wire, cable, or other like connection between the point of origin
and the point of reception (including the use of such connection in a
switching station), furnished or operated by any person engaged in provid-
ing or operating such facilities for the transmission of intrastate, interstate
or foreign communications.
(2) "Oral communication" means any oral communication uttered by a
person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation but such term
does not include any electronic communication.
537 COMMUNICATIONS SECURITY 18-6701
(3)
"Intercept" means the aural or other acquisition of the contents of any
wire, electronic or oral communication through the use of any electronic,
mechanical, or other device.
(4)
"Electronic, mechanical, or other device" means any device or appa-
ratus which can be used to intercept a wire, electronic or oral communica-
tion other than:
(a) Any telephone or telegraph instrument, equipment or facility or any
component thereof:
(i) Furnished to the subscriber or user by a provider of wire or
electronic communication service in the ordinary course of its business
and being used by the subscriber or user in the ordinary course of its
business or furnished by such subscriber or user for connection to the
facilities of such service and used in the ordinary course of its business;
or
(ii) Being used by a provider of wire or electronic communication
service in the ordinary course of its business, or by an investigative or
law enforcement officer in the ordinary course of his duties;
(b) A hearing aid or similar device being used to correct subnormal
hearing to not better than normal;
(5)
"Person" means any employee or agent of the state or political
subdivision thereof and any individual, partnership, association, joint stock
company, trust, cooperative, or corporation.
(6)
"Investigative or law enforcement officer" means any officer of the
state of Idaho who is empowered by law to conduct investigations of, or to
make arrests for, offenses enumerated in this chapter and any attorney
authorized by law to prosecute or participate in the prosecution of such
offenses.
(7) "Contents" when used with respect to any wire, electronic or oral
communication includes any information concerning the identity of the
parties to such communication or the existence, substance, purport, or
meaning of that communication.
(8) "Judge of competent jurisdiction" means a justice of the supreme court
or a judge of a district court.
(9) "Aggrieved person" means a person who was a party to any illegally
intercepted wire, electronic or oral communication or a person against
whom the interception was illegally directed.
(10) "Electronic communication" means any transfer of signs, signals,
writing, images, sounds, data or intelligence of any nature transmitted in
whole or in part by a wire, radio, electromagnetic, photoelectronic or
photooptical system, but does not include:
(a) Any wire or oral communication;
(b) Any communication made through a tone-only paging device;
(c) Any communication from a tracking device, as defined in 18 U.S.C.
section 3117; or
(d) Electronic fund transfer information stored by a financial institution
in a communications system used for the electronic storage and transfer
of funds.
(11) "User" means any person or entity who:
(a) Uses an electronic communication service; and
(b) Is authorized by the provider of such service to engage in such use.
(12) "Electronic communications system" means any wire, radio, electro-
magnetic, photoelectronic or photooptical facilities for the transmission of
electronic communications, and any computer facilities or related electronic
equipment for the electronic storage of such communications.
(13) "Electronic communication service" means any service that provides
to the users thereof the ability to send or receive wire or electronic
communications.
(14) "Readily accessible to the general public" means, with respect to a
radio communication, that such communication is not:
(a) Scrambled or encrypted;
(b) Transmitted using modulation techniques, the essential parameters
of which have been withheld from the public with the intention of
preserving the privacy of such communication;
(c) Carried on a subcarrier or other signal subsidiary to a radio trans-
mission;
(d) Transmitted over a communication system provided by a common
carrier, unless the communication is a tone-only paging system commu-
nication; or
(e) Transmitted on frequencies set forth in 18 U.S.C. section 2510(16)(E).
(15) "Electronic storage" means:
(a) Any temporary, intermediate storage of a wire or electronic commu-
nication incidental to the electronic transmission thereof; and
(b) Any storage of such communication by an electronic communication
service for purposes of backup protection of such communication.
(16) "Aural transfer" means a transfer containing the human voice at any
point between and including the point of origin and the point of reception.
[I.C.,

1, p.
631.]

18-6701

Analysis

18-6701
A
. . .,
'
,
18-6712, as added by 1972, ch. 336, 1, p.
Conversation inside police department.
844, were repealed by S.L. 1980, ch. 326, 1.
Cordless telephones.
Other former

18-6701
18-6709, which Conversation Inside Police Department.
comprised Cr. & P. 1864, 117; 1893, p. 90, The trial court did not violate defendant's
1; reen. 1899, p. 190, 1; R.S., R.C., & C.L., constitutional or statutory rights by consider-
7205

7207, 7166

7169, 8412; reen.
ing evidence, during the sentencing proceed-
R.C. & C.L., 7173; C.S., 8412, 8567
ings, of a conversation between defendant and
8570, 8574, 8584
8586; I.C.A.,

17-4501
his parents recorded by an electronic monitor-
17-4508, 17-4317 were repealed by S.L.

in
S
system taping what was said in the police
department booking room. State v. Wilkins,
Other former

18-6710, 18-6711 and 18-
125 Idaho 215
>
868 R2d 1231
(
1994>-
6712 which comprised S.L. 1965, ch. 298,
Cordless Telephones.
1-3,
p. 787; am. S.L. 1969, ch. 154, 1, p.
Since the definition of wire communication
plainly includes "any communication made in
effective January
1,
1972.
whole or in part through the use" of the state's
Cited in: State v. Martin, 113 Idaho 461,
or nation's telecommunications system, exclu-
745 P.2d 1082 (Ct. App. 1987); State v. Brown,
sion of cordless telephone conversations from
113 Idaho 480, 745 P.2d 1101 (Ct. App. 1987); this definition would render the language
State v. Thompson, 113 Idaho 466, 745 P.2d meaningless. Hoskins v. Howard, 132 Idaho
1087 (Ct. App. 1987). 311, 971 P.2d 1135 (1998).
Cordless telephone communications are cations network. Hoskins v. Howard, 132
protected wire communications under the Idaho 311, 971 P.2d 1135 (1998).
Idaho Communications Security Act so long Collateral References. 86 C.J.S., Tele-
as some portion of the communications travel graphs, Telephones, Radio and Television,
1
through the state's or nation's telecommuni- et seq.
18-6702. Interception and disclosure of wire, electronic or oral
communications prohibited.

(1) Except as otherwise specifically
provided in this chapter, any person shall be guilty of a felony and is
punishable by imprisonment in the state prison for a term not to exceed five
(5)
years or by a fine not to exceed five thousand dollars
($5,000), or by both
fine and imprisonment if that person:
(a) Willfully intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept any wire, electronic or oral
communication; or
(b) Willfully uses, endeavors to use, or procures any other person to use
or endeavor to use any electronic, mechanical, or other device to intercept
any oral communication when:
1. Such device is affixed to, or otherwise transmits a signal through, a
wire, cable, or other like connection used in wire communication; or
2. Such device transmits communications by radio or interferes with
the transmission of such communication; or
(c) Willfully discloses, or endeavors to disclose, to any other person the
contents of any wire, electronic or oral communication, knowing or having
reason to know that the information was obtained through the intercep-
tion of a wire, electronic or oral communication in violation of this
subsection; or
(d) Willfully uses, or endeavors to use, the contents of any wire, electronic
or oral communication, knowing or having reason to know that the
information was obtained through the interception of a wire, electronic or
oral communication in violation of this subsection; or
(e) Intentionally discloses or endeavors to disclose to any other person the
contents of any wire, electronic or oral communication, intercepted by
means authorized by subsection (2)(b), (c), (f) or
(g)
of this section or by
section 18-6708, Idaho Code, if that person:
(i) Knows or has reason to know that the information was obtained
through the interception of such communication in connection with a
criminal investigation; and
(ii) Has obtained or received the information in connection with a
criminal investigation with the intent to improperly obstruct, impede or
interfere with a duly authorized criminal investigation.
(2)(a) It is lawful under this chapter for an operator of a switchboard, or
an officer, employee, or agent of a provider of wire or electronic commu-
nication service whose facilities are used in the transmission of a wire or
electronic communication to intercept, disclose, or use that communica-
tion in the normal course of his employment while engaged in any activity
which is a necessary incident to the rendition of his service or to the
protection of the rights or property of the provider of that service, except
that a provider of wire communication service to the public shall not
utilize service observing or random monitoring except for mechanical or
service quality control checks.
(b) It is lawful under this chapter for an officer, employee, or agent of the
federal communications commission, in the normal course of his employ-
ment and in discharge of the monitoring responsibilities exercised by the
commission in the enforcement of 47 U.S.C. ch. 5, to intercept a wire,
electronic or oral communication transmitted by radio or to disclose or use
the information thereby obtained.
(c) It is lawful under this chapter for a law enforcement officer or a person
acting under the direction of a law enforcement officer to intercept a wire,
electronic or oral communication when such person is a party to the
communication or one (1) of the parties to the communication has given
prior consent to such interception.
(d) It is lawful under this chapter for a person to intercept a wire,
electronic or oral communication when one (1) of the parties to the
communication has given prior consent to such interception.
(e) It is unlawful to intercept any communication for the purpose of
committing any criminal act.
(f) It is lawful under this chapter for an employee of a telephone company
to intercept a wire communication for the sole purpose of tracing the
origin of such communication when the interception is requested by an
appropriate law enforcement agency or the recipient of the communica-
tion and the recipient alleges that the communication is obscene, harass-
ing, or threatening in nature.
(g)
It is lawful under this chapter for an employee of a law enforcement
agency, fire department or ambulance service, while acting in the scope of
his employment, and while a party to the communication, to intercept and
record incoming wire or electronic communications.
(h) It shall not be unlawful under this chapter for any person:
(i) To intercept or access an electronic communication made through an
electronic communication system that is configured so that such elec-
tronic communication is readily accessible to the general public;
(ii) To intercept any radio communication that is transmitted:
(A) By any station for the use of the general public, or that relates to
ships, aircraft, vehicles or persons in distress;
(B) By any governmental, law enforcement, civil defense, private
land mobile or public safety communications system, including police
and fire, readily accessible to the public;
(C) By a station operating on an authorized frequency within the
bands allocated to the amateur, citizens band or general mobile radio
services; or
(D) By any marine or aeronautical communication system;
(iii) To engage in any conduct that:
(A) Is prohibited by 47 U.S.C. section 553 (federal communications
act of 1934); or
(B) Is excepted from the application of 47 U.S.C. section 605 (federal
communications act of 1934);
(iv) To intercept any wire or electronic communication, the transmis-
sion of which is causing harmful interference to any lawfully operating
station or consumer electronic equipment to the extent it is necessary to
identify the source of such interference; or
(v) For other users of the same frequency to intercept any radio
communication, if such communication is not scrambled or encrypted,
made through a system that utilizes frequencies monitored by individ-
uals engaged in the provision or the use of such system,
(i) It shall be lawful under this chapter for a provider of electronic
communication service to record the fact that a wire or electronic
communication was initiated or completed in order to protect such
provider, another provider furnishing service toward the completion of the
wire or electronic communication or a user of that service from the
fraudulent, unlawful or abusive use of such service.
(3)(a) Except as provided in subsection (3)(b) of this section, a person or
entity providing an electronic communication service to the public shall
not intentionally divulge the contents of any communication other than to
such person or entity or an agent thereof while in transmission on that
service, to any person or entity other than an addressee or intended
recipient of such communication or an agent of such addressee or intended
recipient.
(b) A person or entity providing electronic communication service to the
public may divulge the contents of any such communication:
(i) As otherwise authorized in section 18-6707, Idaho Code, or subsec-
tion (2)(a) of this section;
(ii) With the lawful consent of the originator or any addressee or
intended recipient of such communication;
(hi) To a person employed or authorized, or whose facilities are used, to
forward such communication to its destination; or
(iv) If such contents were inadvertently obtained by the service pro-
vider and appear to pertain to the commission of a crime, if such
divulgence is made to a law enforcement agency. [I.C.,

18-6702, as
added by 1980, ch. 326, 2, p. 832; am. 2002, ch. 223, 2, p. 631; am.
2004, ch. 303, 1, p. 849.]
18-6702 was 86 C.J.S., Telegraphs, Telephones, Radio
18-6701. and Television, 117, 122, 154.
Construction and application of provision of
Omnibus Crime Control and Safe Streets Act
Statute of Limitations.
Based on its determination that in the case
of wiretapping the damage is immediate, the
<>f 1968 (18 U.S.C.A.

2520) authorizing civil
Supreme Court of Idaho held that the statute
c
f
u
f
ofactlon by per
!
n whos
?
wire
'.
f
\
T
of limitations begins to run no later than the
electronic communication is intercepted, dis-
last day of wiretapping. Knudsen v. Agee, 128
close
d,
or used in violation of Act. 164 A.L.R.
Idaho 776, 918 P.2d 1221 (1996).
Fed
-
139'
Evidence,

589
608.
18-6703. Manufacture, distribution, possession, and advertising
of wire, electronic or oral communication intercepting devices
prohibited.
(1) Except as otherwise specifically provided in this chapter

any person who willfully:
(a) Sends through the mail or sends or carries any electronic, mechanical,
or other device, with the intention of rendering it primarily useful for the
purpose of the illegal interception of wire, electronic or oral communica-
tions as specifically defined by this chapter; or
(b) Manufactures, assembles, possesses, or sells any electronic, mechan-
ical, or other device with the intention of rendering it primarily useful for
the purpose of the illegal interception of wire, electronic or oral commu-
nications as specifically defined by this chapter, shall be guilty of a felony
and is punishable by imprisonment in the state penitentiary for a term of
five (5) years or by a fine of five thousand dollars
($5,000), or by both such
fine and imprisonment.
(2) It is lawful under this section for:
(a) A provider of wire or electronic communication service or an officer,
agent, or employee of, or a person under contract with, such a provider, in
the normal course of business; or
(b) An officer, agent, or employee of, or a person under contract with,
bidding upon contracts with, or in the course of doing business with, the
United States, a state, or a political subdivision thereof, in the normal
course of the activities of the United States, a state, or a political
subdivision thereof, to send through the mail, send or carry in interstate
or foreign commerce, or manufacture, assemble, possess, or sell any
electronic, mechanical, or other device, knowing or having reason to know
that the design of such device renders it primarily useful for the purpose
of the surreptitious interception of wire, electronic or oral communication.
(3) It shall not be unlawful under this section to advertise for sale a
device described in subsection (1) of this section if the advertisement is
mailed, sent or carried solely to a domestic provider of wire or electronic
communication service or to an agency of the United States, any state, or a
political subdivision thereof that is duly authorized to use such device. [I.C.,
631.]
18-6703 was legislation making wiretapping a criminal
18-6701. offense. 74 A.L.R.2d 855.
Cited in: State v. Jaggers, 117 Idaho 559, What constitutes an "interception" of a tele-
789 P.2d 1150 (Ct. App. 1990). phone or similar communication forbidden by
Collateral References. 29 Am. Jur. 2d, the federal communications act or similar
Evidence,

609625. state statutes. 9 A.L.R.3d 423.
74 Am. Jur. 2d, Telecommunications, Eavesdropping as violating right of privacy.
188, 194
195. 11 A.L.R.3d 1296.

86 C.J.S. Telegraphs, Telephones, Radio Sufficiency of identification of participants
and Television, 122. as prerequisite to admissibility of telephone
Validity, construction, and effect of state conversation in evidence. 79 A.L.R.3d 79.
18-6704. Confiscation of wire, electronic or oral communication
intercepting devices.
Any electronic, mechanical, or other device used,

sent, carried, manufactured, assembled, possessed, or sold in violation of
this chapter may be seized and forfeited to the state. [I.C.,
18-6704, as
added by 1980, ch.
326, 2, p. 832; am. 2002, ch. 223, 4, p. 631.]
18-6704 was
18-6701.
18-6705. Prohibition of use as evidence of intercepted wire,
electronic or oral communications.
Whenever any wire, electronic or

oral communication has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding in or before any court,
grand jury, department, officer, agency, regulatory body, legislative commit-
tee, or other authority of the state, or a political subdivision thereof, if the
disclosure of that information would be in violation of this chapter. [I.C.,
631.]
18-6705 was Cited in: State v. Brown, 113 Idaho 480,
18-6701. 745 P.2d 1101 (Ct. App. 1987).
Validity of Actions. sage intended for another person, the officer
Where an investigating officer attached a did not violate the terms of the former section
suction cup listening device to his phone to in recording such a conversation. State v.
record a conversation relating to his investi-
Couch, 103 Idaho 205, 646 P.2d 447 (Ct. App.
gation and did not make any contact with the
1982).
telephone wire, nor did he intercept a mes-
18-6706. Authorization for interception of wire, electronic or
oral communications.

The prosecuting attorney of any county is
authorized to make application to a judge of competent jurisdiction for an
order authorizing or approving the interception of wire, electronic or oral
communications and may apply to such judge for, and such judge may grant
in conformity with section 2581[2518] of chapter 119, title 18 U.S.C.A., and
in conformity with the provisions of this chapter, an order authorizing or
approving the interception of wire, electronic or oral communications by
investigative or law enforcement officers having responsibility for the
investigation of the offense as to which the application is made, when such
interception may provide or has provided evidence of the commission of the
offense of murder, kidnapping, gambling, robbery, bribery, extortion, or
dealing in narcotic drugs, marijuana or other dangerous drugs, or other
crime dangerous to life, limb, or property, and punishable by imprisonment
for more than one (1) year, or any conspiracy to commit any of the foregoing
offenses. [I.C.,

18-6706, as added by 1980, ch. 326, 2, p. 832; am. 2002,
ch.
223, 6, p. 631.]
Compiler's notes. Former 18-6706 was Collateral References. Admissibility of
18-6701. evidence obtained by government or other
The bracketed number
"2518"
was inserted public officer by intercepting letter or tele-
by the compiler.
gram or telephone message. 53 A.L.R. 1485;
Sec. to sec. ref. This section is referred to 66 A.L R 397; 134 A.L.R. 614.
in 18-6708.
Cited in: State v. Thompson, 113 Idaho
466, 745 P.2d 1087 (Ct. App. 1987).
18-6707. Authorization for disclosure and use of intercepted
wire, electronic or oral communications.

(1) Any investigative or
law enforcement officer who, by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, electronic or oral commu-
nication, or evidence derived therefrom, may disclose such contents to
another investigative or law enforcement officer to the extent that such
disclosure is appropriate to the proper performance of the official duties of
the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents of any
wire, electronic or oral communication or evidence derived therefrom may
use such contents to the extent such use is appropriate to the proper
performance of his official duties.
(3) Any person who has received, by any means authorized by this
chapter, any information concerning a wire, electronic or oral communica-
tion, or evidence derived therefrom intercepted in accordance with the
provisions of this chapter may disclose the contents of that communication
or such derivative evidence while giving testimony under oath or affirmation
in any criminal proceeding in any court of this state, of the United States or
of any state or in any political subdivision thereof.
(4)
No otherwise privileged wire, electronic or oral communication inter-
cepted in accordance with, or in violation of, the provisions of this chapter
shall lose its privileged character.
(5)
When an investigative or law enforcement officer, while engaged in
intercepting wire, electronic or oral communications in the manner autho-
rized herein, intercepts wire, electronic or oral communications relating to
offenses other than those specified in the order of authorization, the
contents thereof, and evidence derived therefrom, may be disclosed or used
as provided in subsections
(1), (2) and (3) of this section. [I.C.,

18-6707, as
18-6707 was
18-6701.
18-6708. Procedure for interception of wire, electronic or oral
communications.

(1) Each application for an order authorizing the
interception of a wire, electronic or oral communication shall be made in
writing upon oath or affirmation or by means of an oral affidavit as provided
for in the Idaho Rules of Criminal Practice & Procedure to a judge of
competent jurisdiction and shall state the applicant's authority to make
such application. Each application shall include the following information:
(a) The identity of the individual authorized to make application for said
order pursuant to section 18-6706, Idaho Code;
(b) A full and complete statement of the facts and circumstances relied
upon by the applicant, to justify his belief that an order should be issued
including (i) details as to the particular offense that has been, is being, or
is about to be committed, (ii) except as provided in subsection (11) of this
section, a particular description of the nature and location of the facilities
from which or the place where the communication is to be intercepted, (hi)
a particular description of the type of communications sought to be
intercepted, (iv) the identity of the person, if known, committing the
offense and whose communications are to be intercepted;
(c) Afull and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous;
(d) Astatement ofthe period oftime for which the interception is required
to be maintained. If the nature of the investigation is such that the
authorization for interception should not automatically terminate when
the described type of communication has been first obtained, a particular
description of facts establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(e) A full and complete statement of the facts concerning all previous
applications known to the individual making the applications, made to
any judge for authorization to intercept wire, electronic or oral commu-
nications involving any of the same persons, facilities or places specified
in the application, and the action taken by the judge on each such
application; and
(f) Where the application is for the extension of an order, a statement
setting forth the results thus far obtained from the interception, or a
reasonable explanation of the failure to obtain such results.
(2) The judge may require the applicant to furnish additional testimony
or documentary evidence in support of the application.
(3) Upon such application the judge may enter an ex parte order, as
requested or as modified, authorizing interception of wire, electronic or oral
communications within the state of Idaho if the judge determines on the
basis of the facts submitted by the applicant that:
(a) There is probable cause for belief that an individual is committing,
has committed, or is about to commit a particular offense enumerated in
section 18-6706
*
Idaho Code;
(b) There is probable cause for belief that particular communications
concerning that offense will be obtained through such interception;
(c) Normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) Except as provided in subsection (11) of this section, there is probable
cause for belief that the facilities from which, or the place where, the wire,
electronic or oral communications are to be intercepted are being used, or
are about to be used, in connection with the commission of such offense, or
are leased to, listed in the name of, or commonly used by such person.
(4) Each order authorizing the interception of any wire, electronic or oral
communication shall specify:
(a) The identity of the person, if known, whose communications are to be
intercepted;
(b) The nature and location of the communications facilities as to which,
or the place where, authority to intercept is granted;
(c) A particular description of the type of communication sought to be
intercepted, and a statement of the particular offense to which it relates;
(d) The identity of the agency authorized to intercept the communica-
tions, and of the person making the application; and
(e) The period of time during which such interception is authorized,
including a statement as to whether or not the interception shall auto-
matically terminate when the described communication has been first
obtained.
(5) An order authorizing the interception of a wire, electronic or oral
communication shall, upon request of the applicant, direct that a provider of
wire or electronic communication service, landlord, custodian, or other
person shall furnish the applicant forthwith all information, facilities and
technical assistance necessary to accomplish the interception unobtrusively
and with a minimum of interference with the services that such service
provider, landlord, custodian or person is providing the person whose
communications are to be intercepted. Any provider of wire or electronic
communication service, landlord, custodian or other person furnishing such
facilities or technical assistance shall be compensated therefor by the
applicant for reasonable expenses incurred in providing such facilities or
assistance.
(6)
No order entered under this section may authorize the interception of
any wire, electronic or oral communication for any period longer than is
necessary to achieve the objective of the authorization, nor in any event
longer than thirty (30) days. Such thirty (30) day period begins on the earlier
of the day on which the investigative or law enforcement officer begins to
conduct an interception under the order or ten (10) days after the order is
entered. Extensions of an order may be granted, but only upon application
for an extension made in accordance with subsection (1) of this section and
the court making the findings required by subsection (3) of this section. The
periods of extension shall be no longer than the authorizing court deems
necessary to achieve the purposes for which it was granted and in no event
for longer than thirty (30) days for each extension. Every order and
extension thereof shall contain a provision that the authorization to
intercept shall be executed as soon as practicable, shall be conducted in such
a way as to minimize the interception of communications not otherwise
subject to interception under this chapter, and must terminate upon
attainment of the authorized objective, or in any event in thirty (30) days. In
the event the intercepted communication is in a code or foreign language
and an expert in that foreign language or code is not reasonably available
during the interception period, minimization may be accomplished as soon
as practicable after such interception. An interception under this chapter
may be conducted in whole or in part by government personnel or by an
individual operating under a contract with federal, state or local govern-
ment and acting under the supervision of an investigative or law enforce-
ment officer authorized to conduct the interception.
(7) Whenever an order authorizing interception is entered pursuant to
this chapter, the order may require reports to be made to the judge who
issued the order showing what progress has been made toward achievement
of the authorized objective and the need for continued interception. Such
reports shall be made at such intervals as the judge may require.
(8)(a) The contents of any wire, electronic or oral communication inter-
cepted by any means authorized by this chapter shall, if possible, be
recorded on tape or wire or other comparable device. The recording of the
contents of any wire, electronic or oral communication under this subsec-
tion shall be done in such way as will protect the recording from editing
or other alterations. Immediately upon the expiration of the period of the
order, or extensions thereof, such recordings shall be made available to
the judge issuing such order and sealed under his directions. Custody of
the recordings shall be wherever the judge orders. They shall not be
destroyed except upon an order of the issuing or denying court and in any
event shall be kept for ten (10) years. Duplicate recordings may be made
for use or disclosure pursuant to the provisions of subsections (1) and (2)
of section 18-6707, Idaho Code, for investigations. The presence of the seal
provided for by this subsection, or a satisfactory explanation for the
absence thereof, shall be a prerequisite for the use or disclosure of the
contents of any wire, electronic or oral communication or evidence derived
therefrom under subsection (3) of section 18-6707, Idaho Code.
(b) Applications made and orders granted under this chapter shall be
sealed by the judge. Custody of the applications and orders shall be
wherever the judge directs. Such applications and orders shall be dis-
closed only upon a showing of good cause before a judge of competent
jurisdiction and shall not be destroyed except on order of the issuing or
denying judge and in any event shall be kept for ten (10) years.
(c) Any violation of the provisions of this subsection may be punished as
contempt of the issuing or denying judge.
(d) Within a reasonable time but not later than ninety (90) days after the
filing of an application for an order of approval under this section which
is denied or the termination of the period of an order or extensions thereof,
the issuing or denying judge shall cause to be served, on the persons
named in the order or the application, and such other parties to inter-
cepted communications as the judge may determine in his discretion that
is in the interest of justice, an inventory which shall include notice of:
(1) The fact of the entry of the order or the application;
(2)
The date of the entry and the period of authorized, approved or
disapproved interception, or the denial of the application; and
(3)
The fact that during the period wire, electronic or oral communica-
tions were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion make available
to such person or his counsel for inspection such portions of the intercepted
communications, applications and orders as the judge determines to be in
the interest of justice. On an ex parte showing of good cause to a judge of
competent jurisdiction the serving of the inventory required by this subsec-
tion may be postponed.
(9) The contents of any intercepted wire, electronic or oral communica-
tion or evidence derived therefrom shall not be received in evidence or
otherwise disclosed in any trial, hearing, or other proceeding in a federal or
state court unless each party, not less than ten (10) days before the trial,
hearing, or proceeding has been furnished with a copy of the court order and
accompanying application under which the interception was authorized.
This ten (10) day period may be waived by the court if it finds that it was not
possible to furnish the party with the above information ten (10) days before
the trial, hearing, or proceeding and that the party will not be prejudiced by
the delay in receiving such information.
(10)(a) Any aggrieved person in any trial, hearing, or proceeding in or
before any court, department, officer, agency, regulatory body, or other
authority of the United States, a state, or a political subdivision thereof,
may move to suppress the contents of any intercepted wire, electronic or
oral communication, or evidence derived therefrom, on the grounds that:
1. The communication was unlawfully intercepted;
2. The order of authorization under which it was intercepted is insuf-
ficient on its face; or
3. The interception was not made in conformity with the order of
authorization.
Such motion shall be made before the trial, hearing, or proceeding,
pursuant to the Idaho rules of criminal or civil procedure or the hearing
rules of the respective body, as applicable.
(b) In addition to any other right to appeal, the state of Idaho shall have
the right to appeal from an order granting a motion to suppress made
under paragraph (a) of this subsection. Such appeal shall be taken within
thirty (30) days after the date the order was entered.
(c) The remedies and sanctions described in this section with respect to
the interception of electronic communications are the only judicial reme-
dies and sanctions for nonconstitutional violations of this chapter involv-
ing such communications.
(11) The requirements of subsections (l)(b)(ii) and (3)(d) of this section
relating to the specification of the facilities from which, or the place where,
the communication is to be intercepted do not apply if:
(a) In the case of an application with respect to the interception of an oral
communication:
(i) The application contains a full and complete statement as to why
such specification is not practical and identifies the person committing
the offense and whose communications are to be intercepted; and
(ii) The judge finds that such specification is not practical; and
(b) In the case of an application with respect to a wire or electronic
communication:
(i) The application identifies the person believed to be committing the
offense and whose communications are to be intercepted and the
applicant makes a showing that there is probable cause to believe that
the person's actions could have the effect of thwarting interception from
a specified facility;
(ii) The judge finds that such showing has been adequately made; and
(iii) The order authorizing or approving the interception is limited to
interception only for such time as it is reasonable to presume that the
person identified in the application is or was reasonably proximate to
the instrument through which such communication will be or was
transmitted.
(12) An interception of a communication under an order with respect to
which the requirements of subsections (l)(b)(ii) and (3)(d) of this section do
not apply by reason of subsection (ll)(a) of this section shall not begin until
the place where the communication is to be intercepted is ascertained by the
person implementing the interception order. A provider of wire or electronic
communications service that has received an order as provided for in
subsection (ll)(b) of this section may move the court to modify or quash the
order on the ground that its assistance with respect to the interception
cannot be performed in a timely or reasonable fashion. The court, upon
notice to the state, shall decide such a motion expeditiously. [I.C.,

18-6708,
as added by 1980, ch. 326, 2, p. 832; am. 2002, cK 223, 8, p. 631.]
18-6708 was
18-6701.
Analysis
Appeal.
Application and affidavit.
Contents.
Sufficient.
Challenge of evidence.
Minimization.
Order.
Extension.
Probable cause.
Appeal.
The Court ofAppeals' standard of review of
the necessity for a wiretap is bifurcated. It
exercises free review over whether a full and
complete statement of necessity was submit-
ted to the issuing judge; however, it exercises
deferential review on the question whether an
adequate showing of necessity has been
made. State v. Martin, 113 Idaho 461, 745
P.2d 1082 (Ct. App. 1987); State v. Brown, 113
Idaho 480, 745 P.2d 1101 (Ct. App. 1987), cert,
denied, 116 Idaho 467, 776 P2d 829 (1988).
The proper task on appeal of a wiretap
order is to determine only whether the facts
set forth in the application were minimally
adequate to support the determination that
was made; "minimally" means that the issu-
ing judge must have had a substantial basis
to conclude that the statutory requirements
for a wiretap were satisfied. State v. Martin,
113 Idaho 461, 745 P.2d 1082 (Ct. App. 1987).
Application and Affidavit.
Contents.
Necessity must be readily apparent from
the affidavit in support of the wiretap appli-
cation. State v. Brown, 113 Idaho 480, 745
P.2d 1101 (Ct. App. 1987), cert, denied, 116
Idaho 467, 776 P.2d 829 (1988).
The affidavit for the wiretap need not dem-
onstrate that every conceivable alternative
has been exhausted, but neither may the
courts accept bald conclusory statements con-
cerning necessity. State v. Brown, 113 Idaho
480, 745 P.2d 1101 (Ct. App. 1987), cert,
denied, 116 Idaho 467, 776 P.2d 829 (1988).
The affidavit and application supported the
wiretap order, where they presented an ade-
quate statement as to which regular investi-
gative techniques had been tried and which
had failed, the affidavit indicated what
progress has been made prior to applying for
the wiretap, and the affidavit indicated the
areas in which the investigation, using ordi-
nary techniques, had not turned up the evi-
dence sought. State v. Martin, 113 Idaho 461,
745 P.2d 1082 (Ct. App. 1987).
Sufficient.
The affidavit in support of the wiretap com-
plied with the plain meaning of subdivision
(l)(c) of this section, and the facts set forth
were adequate to support the issuing judge's
determination under subdivision (3)(c) of this
section, where it presented a complete state-
ment as to why regular investigative tech-
niques, though minimally successful, had
largely failed, and the recitation of procedures
tried and failed was extensive. State v.
Brown, 113 Idaho 480, 745 P.2d 1101 (Ct. App.
1987), cert, denied, 116 Idaho 467, 776 P.2d
829 (1988).
Challenge of Evidence.
Where all of the defendants were parties, at
one time or another, to the conversations
intercepted by wiretap, they had standing to
challenge the wiretap evidence under subdi-
vision (10)(a) of this section. State v. Brown,
113 Idaho 480, 745 P.2d 1101 (Ct. App. 1987),
cert, denied, 116 Idaho 467, 776 P.2d 829
(1988).
Minimization.
Where roughly 700 completed calls were
made during the course of the wiretap, nearly
400 of those calls were of less than two
minutes' duration, and of the 300 calls exceed-
ing two minutes, the officers minimized in
two-thirds of them, the minimization efforts
were reasonable and adequate in light of the
circumstances. State v. Brown, 113 Idaho 480,
745 P.2d 1101 (Ct. App. 1987), cert, denied,
116 Idaho 467, 776 P.2d 829 (1988).
The police complied with the minimization
requirements of subsection (6) of this section,
where the order authorizing the wiretap in-
cluded a minimization provision which closely
tracked the language of this section, and
although there was no judicial supervision of
minimization procedures, the prosecutor in
charge of the investigation met with all par-
ticipating officers, provided them with de-
tailed written guidelines of procedures to be
followed, and received daily progress reports
from the officer in charge. State v. Brown, 113
Idaho 480, 745 P.2d 1101 (Ct. App. 1987), cert,
denied, 116 Idaho 467, 776 P.2d 829 (1988).
The purpose of the minimization require-
ment of subsection (6) of this section is to
prevent the improper invasion of a target's
privacy rights and to curtail the indiscrimi-
nate seizure of communications. State v.
Brown, 113 Idaho 480, 745 P.2d 1101 (Ct. App.
1987), cert, denied, 116 Idaho 467, 776 P.2d
829 (1988).
Among the factors to be considered in de-
termining whether a minimization provision
has been violated are the nature and use of
the telephone being tapped, the nature of the
crime, the scope of the investigation, and
whether patterns of non-criminal calls have
been established over the course of the sur-
veillance. State v. Brown, 113 Idaho 480, 745
Idaho 467, 776 P.2d 829 (1988).
The government, once challenged, bears the
initial burden of showing compliance with
minimization requirements of subsection (6)
of this section. State v. Brown, 113 Idaho 480,
745 P.2d 1101 (Ct. App. 1987), cert, denied,
116 Idaho 467, 776 P.2d 829 (1988).
Order.
Extension.
Where the authorized objective of the first
wiretap was to seek information about actual
places, dates and times of the drug transac-
tions, the officer in charge of the investigation
stated during the preliminary hearing that
such physical evidence had been lacking
throughout the initial period of surveillance,
and his testimony was not controverted, the
issuing judge acted appropriately in extend-
ing the wiretap for an additional thirty days.
State v. Brown, 113 Idaho 480, 745 P.2d 1101
(Ct. App. 1987), cert, denied, 116 Idaho 467,
776 P.2d 829 (1988).
Probable Cause.
The fact that an investigation has been
partially successful, using ordinary investiga-
tive techniques, does not preclude a finding of
necessity for a wiretap because there may be
other important investigative objectives
which are unattainable except by resort to
electronic surveillance. State v. Martin, 113
Idaho 461, 745 P.2d 1082 (Ct. App. 1987).
At minimum, the judge issuing a wiretap
order should address each of the elements
prescribed by subsection (3) of this section.
(Ct. App. 1987).
Excluding the information obtained
through the use of the pen register, there was
not a substantial basis for belief that partic-
ular communications concerning the offense
of dealing in marijuana would be obtained
through the wiretap or that the defendant's
phone was being used, or was about to be
used, in connection with the commission of
the offense, as required by subdivisions (3)(b)
and (3)(d) of this section. State v. Thompson,
114 Idaho 746, 760 P.2d 1162 (1988).
The "totality of circumstances" analysis is
appropriate for determining probable cause
under

18-6701 18-6708. State v. Thomp-
son, 114 Idaho 746, 760 P.2d 1162 (1988).
18-6709. Recovery of civil damages authorized.

Any person
whose wire, electronic or oral communication is intercepted, disclosed, or
used in violation of this chapter shall have a civil cause of action against any
person who intercepts, discloses, uses, or procures any other person to
intercept, disclose, or use such communications, and shall be entitled to
recover from any such person:
(a) Actual damages, but not less than liquidated damages computed at
the rate of one hundred dollars ($100) a day for each day of violation or one
thousand dollars
($1,000),
whichever is higher;
(b) Punitive damages; and
(c) A reasonable attorney's fee and other litigation costs reasonably
incurred.
A good faith reliance on a court order shall constitute a complete defense to
any civil or criminal action under the laws of this state. [I.C.,

18-6709, as
18-6709 was of limitations begins to run no later than the
18-6701. last day of wiretapping. Knudsen v. Agee, 128
Idaho 776, 918 P.2d 1221 (1996).
Analysis
Where employee brought an action against
Interception of cordless communication.
employer alleging violation of the Idaho Com-
cn..Li.rT -i. i.-
mumcations Security Act for secretly record-
Statute of limitations. .
Ui.1T- i-- J'i.-i. _i
ing her telephone conversations, district court
Interception of Cordless Communica-
correctly held that no discovery exception to
tion.
the statute of limitations was created by the
Where the defendants, by their own admis-
Idaho Communication Security Act; employee
sions, used a radio scanner to intercept a wire
brought the action more than three years
communication, namely a cordless telephone
aftei
\
the last da
y
of wiretapping occurred,
conversation, and where they willfully re-
Knudsen v. Agee, 128 Idaho 776, 918 P.2d
1991 MQQfi^
corded this communication and disclosed it to
1
.
others, the district judge erred in granting
summary judgment in their favor. Hoskins v.
application of provision of Omnibus Crime
Howard, 132 Idaho 311, 971 P.2d 1135 (1998).
Contro1 and Safe Streets Act
<*
1968 (18
U.S.C.A. 2520) authorizing civil cause of
Statute of Limitations. action by person whose wire, oral, or elec-
Based on its determination that in the case tronic communication is intercepted, dis-
of wiretapping the damage is immediate, the closed, or used in violation of Act. 164 A.L.R.
Supreme Court of Idaho held that the statute Fed. 139.
18-6710. Use of telephone to annoy, terrify, threaten, intimidate,
harass or offend by lewd or profane language, requests, suggestions
or proposals
Threats of physical harm
Disturbing the peace by

repeated calls

Penalties.

(1) Every person who, with intent to
annoy terrify, threaten, intimidate, harass or offend, telephones another
and (a) addresses to or about such person any obscene, lewd or profane
language, or makes any request, suggestion or proposal which is obscene,
lewd, lascivious or indecent; or (b) addresses to such other person any threat
to inflict injury or physical harm to the person or property of the person
addressed or any member of his family, or any other person; or (c) by
repeated anonymous or identified telephone calls whether or not conversa-
tion ensues, disturbs the peace or attempts to disturb the peace, quiet, or
right of privacy of any person at the place where the telephone call or calls
are received, is guilty of a misdemeanor and upon conviction thereof, shall
be sentenced to a term of not to exceed one (1) year in the county jail. Upon
a second or subsequent conviction, the defendant shall be guilty of a felony
and shall be sentenced to a term of not to exceed five (5)
years in the state
penitentiary
(2) The use of obscene, lewd or profane language or the making of a threat
or obscene proposal, or the making of repeated anonymous telephone calls
as set forth in this section may be prima facie evidence of intent to annoy,
terrify, threaten, intimidate, harass or offend.
(3) For the purposes of this section, the term "telephone" shall mean any
device which provides transmission of messages, signals, facsimiles, video
images or other communication between persons who are physically sepa-
rated from each other by means of telephone, telegraph, cable, wire or the
projection of energy without physical connection. [I.C.,

18-6710, as added
by 1980, ch.
326, 2, p. 832; am. 1994, ch. 167, 5, p. 374.1
18-6710 was Section 4 of S.L. 1994, ch. 167 is compiled
repealed. See compiler's notes, 18-6701. as
18-6409.
in 18-920 and 63-3076.
Analysis
Constitutionality.
Identification.
Constitutionality.
This section is neither facially overbroad
nor void for vagueness. State v. Richards, 127
Idaho 31, 896 P.2d 357 (Ct. App. 1995).
Identification.
In regard to adequately identifying the
party placing a call for purposes of introduc-
ing the import of the caller's conversation into
evidence against him, the most usual, if not
the most reliable mode of identification, is the
recognition of the caller's voice by the witness
receiving the call who intends to relate the
conversation. This same means of identifica-
tion is sufficient to identify the accused as the
caller for purposes of this section. State v.
Danson, 113 Idaho 746, 747 P.2d 768 (Ct. App.
1987).
Substantial and competent evidence sup-
ported the jury's verdict convicting defendant
of one count of misusing a telephone, where in
addition to the two identification witnesses,
the state offered a panoply of circumstantial
evidence linking the defendant to the alleged
crime. State v. Danson, 113 Idaho 746, 747
P.2d 768 (Ct. App. 1987).
Because the requisite intent under
18-
6710 had to exist at the time a telephone call
was initiated, and given that defendant called
a police officer a profane name 21 seconds into
the conversation, defendant had the requisite
intent and was properly convicted under the
statute; defendant's sentence of a one-year
jail term, with 315 days suspended, and pro-
bation for two years was not excessive or
unreasonable. State v. Adams, 138 Idaho 624,
67 P.3d 103 (Ct. App. 2003).
Collateral References. 86 C.J.S., Tele-
graphs, Telephones, Radio and Television,
121.
Admissibility of evidence of fact making or
receiving telephone calls. 13 A.L.R.2d 1409.
Misuse of telephone as minor criminal of-
fense. 97 A.L.R.2d 503; 95 A.L.R.3d 411.
Right of telephone or telegraph company to
refuse, or discontinue service because of use
of improper language. 32 A.L.R.3d 1041.
Unsolicited mailing, distribution, house
call, or telephone call as invasion of privacy.
56 A.L.R.3d 457.
Validity and construction of "terroristic
threat" statutes. 45 A.L.R.4th 949.
18-6711. Use of telephone to terrify, intimidate, harass or annoy
by false statements

Penalties.

(1) Every person who telephones
another and knowingly makes any false statements concerning injury,
death, disfigurement, indecent conduct or criminal conduct of the person
telephoned or any member of his family, with intent to terrify, intimidate,
harass or annoy the called person, is guilty of a misdemeanor. Upon a second
or subsequent conviction of the violation of the provisions of this section, the
defendant shall be guilty of a felony
(2) The making of a false statement as herein set out may be prima facie
evidence of intent to terrify, intimidate, harass or annoy
(3) For the purposes of this section, the term "telephone" shall mean any
device which provides transmission of messages, signals, facsimiles, video
images or other communication between persons who are physically sepa-
rated from each other by means of telephone, telegraph, cable, wire or the
projection of energy without physical connection. [I.C.,

18-6711, as added
by 1980, ch. 326, 2, p. 832; am. 1994, ch. 167, 6, p. 374.]
18-6711 was
18-6701.
as 18-6718.
18-6711A. False alarms
Complaints
Reports
Penalties
Civil damages.
(a) Any person calling the number

"911"
for the purpose
of making a false alarm or complaint and reporting false information which
could or does result in the emergency response of any firefighting, police,
medical or other emergency services shall be guilty of a misdemeanor and
upon conviction thereof shall be sentenced to a fine of not to exceed five
hundred dollars ($500) or to a term of not to exceed one (1) year in the county
jail, or to both such fine and imprisonment.
(b) In addition to the criminal penalties for violation of the provisions of
this section, civil damages may be recovered from the person so convicted in
an amount of three (3) times the amount necessary to compensate or
reimburse the complainant for costs incurred, losses sustained or other
damages suffered in receiving, acting upon or responding to the false alarm,
complaint or report. If the person so convicted is under the age of eighteen
(18) years of age, the parent or legal guardian having legal custody of the
minor may be jointly and severally liable with the minor for such civil
damages as are imposed. Recovery from the parents or legal guardian shall
not be limited by any other provision of law which limits the liability of a
parent or legal guardian for the tortious or criminal conduct of a minor. A
parent or guardian not having legal custody of the minor shall not be liable
for civil damages imposed hereunder. [I.C.,

18-67 11A, as added by 1990,
ch. 133, 1, p. 306.1
18-6712. Place of offense.

Any offense committed by use of a
telephone as provided by this chapter may be deemed to have been
committed at either the place at which the telephone call or calls were made
or at the place where the telephone call or calls were received. [I.C.,
18-6712, as added by 1980, ch. 326, 2, p. 832.]

18-6712 was
18-6701.
18-6713. Theft of telecommunication services.

(1) As used in
this section:
(a) "Clone cellular telephone" or "counterfeit cellular telephone" is a
cellular telephone whose electronic serial number has been altered from
the electronic serial number that was programmed in the telephone by the
manufacturer by someone other than the manufacturer.
(b) "Cloning paraphernalia" means materials that, when possessed in
combination, are capable of creating a cloned cellular telephone. These
materials include: scanners to intercept the electronic serial number and
mobile identification number, cellular telephones, cables, EPROM chips,
EPROM burners, software for programming the cloned phone with a false
electronic serial number and mobile identification number combination, a
computer containing such software and lists of electronic serial number
and mobile identification number combinations.
(c) "Electronic serial number" means the unique number that was pro-
grammed into a cellular telephone by its manufacturer which is trans-
mitted by the cellular phone and used by cellular telephone providers to
validate radio transmissions to the system as having been made by an
authorized device.
(d) "EPROM" or "erasable programmable read-only memory" means an
integrated circuit memory that can be programmed from an external
source and erased, for reprogramming, by exposure to ultra-violet light.
(e) "Illegal telecommunications equipment" means any instrument, ap-
paratus, equipment, or device which is designed or adapted, and other-
wise used or intended to be used for the theft of any telecommunication
service or for concealing from any supplier of telecommunication service
or lawful authority the existence, place of origin, use or destination of any
telecommunication.
(f) "Intercept" means to electronically capture, record, reveal or otherwise
access the signals emitted or received during the operation of a cellular
telephone without the consent of the sender or receiver of the signals, by
means of any instrument, device or equipment.
(g)
"Mobile identification number" means the cellular telephone number
assigned to the cellular telephone by the cellular telephone carrier.
(h) "Possess" means to have physical possession or otherwise to exercise
dominion or control over tangible property.
(i) "Telecommunication service" means a service which, in exchange for a
pecuniary consideration, provides or offers to provide transmission of
messages, signals, facsimiles, video images or other communication
between persons who are physically separated from each other by means
of telephone, telegraph, cable, wire, or the projection of energy without
physical connection.
(2) It is unlawful intentionally to:
(a) Make illegal telecommunications equipment; or
(b) Sell, give, or furnish to another or advertise or offer for sale illegal
telecommunications equipment; or
(c) Sell, give, or furnish to another or advertise or offer for sale any plans
or instructions for making, assembling, or using illegal telecommunica-
tions equipment; or
(d) Use or possess illegal telecommunications equipment.
(3) It is unlawful intentionally to:
(a) Make clone cellular telephones; or
(b) Sell, give or furnish to another or advertise or offer for sale clone
cellular telephones; or
(c) Sell, give or furnish to another or advertise or offer for sale any plans
or instructions for making, assembling, or using clone cellular telephones;
or
(d) Use or possess illegal cloning paraphernalia; or
(e) Use a clone cellular telephone or counterfeit telephone to facilitate the
commission of a felony.
(4) It is theft of telecommunications services to use, receive, or control
telecommunications services without paying the pecuniary consideration
regularly charged by the supplier of the telecommunication services used,
received or controlled.
(a) Actual knowledge by the supplier of the telecommunication services
that a person is or has been using, receiving or controlling the services
shall not be a defense to the crime of theft of telecommunication services.
(5)
Aperson who violates the provisions of subsection (2)(d) of this section
commits a crime and shall be punished as follows:
(a) The first conviction shall be a misdemeanor, which shall be punished
by a fine not to exceed three hundred dollars ($300) or by imprisonment in
the county jail for a term not to exceed six (6) months, or by both such fine
and imprisonment.
(b) Conviction of a second or subsequent violation shall be punished by a
fine not to exceed one thousand dollars ($1,000) or by imprisonment in the
county jail for a term not to exceed one
(1) year, or by both such fine and
imprisonment.
(6) Aperson who violates the provisions of either subsections
(2) (a), (b) or
(c) of this section commits a misdemeanor and shall be punished by a fine
not to exceed one thousand dollars
($1,000), or by imprisonment in the
county jail for a term not to exceed one
(1)
year, or by both such fine and
imprisonment.
(7)
A person who violates the provisions of subsection (3) of this section
commits a felony.
(8) In a prosecution for violation of the provisions of subsection
(2), (3) or
(4) of this section, the element of intent may be established by proof that the
defendant obtained such services by any of the following means:
(a) By use of a code, prearranged scheme, or other similar stratagem or
device whereby said person, in effect, sends or receives information;
(b) Without the consent of the supplier of the telecommunication services,
the installation, connection, or alteration of any equipment, cable, wire,
antenna or facilities capable of either physically, inductively, acoustically,
or electronically enabling a person to use, receive or control telecommu-
nication services without paying the regular pecuniary charge;
(c) By any other trick, stratagem, impersonation, false pretense, false
representation, false statement, contrivance, device, or means; or
(d) By making, assembling, or possessing any instrument, apparatus,
equipment, or device or the plans or instructions for the making or
assembling of any instrument, apparatus, equipment, or device which is
designed, adapted, or otherwise used or intended to be used to avoid the
lawful charge, in whole or in part, for any telecommunications service by
concealing the use, existence, place of origin, or destination of any
telecommunications
.
(9)
The supplier of telecommunication services which is directly affected
by the commission of any of the acts prohibited under subsections
(2), (3)
and (4) of this section shall, regardless of whether there was a criminal
conviction, have a civil cause of action against the person who commits any
of the prohibited acts. The prevailing party shall be awarded all reasonable
costs of litigation, including but not limited to, attorney's fees and court
costs. If the supplier prevails, he shall recover additionally:
(a) Actual damages; or
(b) Liquidated damages often dollars ($10.00) per day for each day of the
violation or five hundred dollars ($500),
whichever is greater; or
(c) If actual damages are greater than five hundred dollars ($500), and, if
proven, punitive damages.
(10) Nothing in this section shall be construed to make unlawful the
interception or receipt by any person or the assisting, including the
manufacture or sale, of such interception or receipt, of any satellite cable
programs for private viewing as denned and specifically permitted under the
Cable Communications Policy Act of 1984. [I.C.,
1980, ch. 326, 2, p. 832; am. 1985, ch.
32, 1, p. 64; am. 1988, ch. 354, 1,
p. 1055; am. 1997, ch. 144, 1, p. 417.]
Compiler's notes. The Cable Commis- 521,522,531-533,541-547,551-559,601-611,
sions Policy Act of 1984, referred to in subsec- 50 U.S.C. 1805.
tion (8) of this section, is compiled as 15
U.S.C. 21; 18 U.S.C. 2511; 46 U.S.C.
in 18-7803.
484-487; 47 U.S.C. 35, 152, 224, 309,

18-6714. Aiding the avoidance of telecommunications charges.
(1) A person commits the offense of aiding the avoidance of telecommuni-

cations charges when he:
(a) Publishes the number or code of an existing, canceled, revoked,
expired, or nonexistent credit card or the numbering or coding which is
employed in the issuance of credit cards with the purpose that it will be
used to avoid the payment of lawful telecommunications charges; or
(b) Publishes, advertises, sells, gives, or otherwise transfers to another
plans or instructions for the making or assembling of any apparatus,
instrument, equipment, or device described in section 18-6713, Idaho
Code, with the purpose that such will be used or with the knowledge or
reason to believe that such will be used to avoid the payment of lawful
telecommunications charges.
(2) A person convicted of the offense of aiding the avoidance of telecom-
munications charges shall be punished according to the provisions of section
(3) For the purposes of this section, the term "publish" means to commu-
nicate information to any one or more persons either orally; in person; by
telephone, radio, or television; or in a writing of any kind. [I.C.,
18-6714,
18-6715. Forgery of telegraphic messages.

Every person who
knowingly and willfully sends by telegraph to any person a false or forged
message purporting to be from such telegraph office, or from any other
person, or who willfully delivers or causes to be delivered to any person any
such message falsely purporting to have been received by telegraph, or who
furnishes or conspires to furnish, or causes to be furnished to any agent,
operator, or employee, to be sent by telegraph or to be delivered, any such
message, knowing the same to be false or forged with the intent to deceive,
injure, or defraud another, is punishable by imprisonment in the state
prison for a term not to exceed five
(5)
years, or by a fine not to exceed five
thousand dollars
18-6715, as added by 1980, ch. 326, 2, p. 832.]

18-6716. Opening telegrams.
Every person not connected with any

telegraphic office who without the authority or consent of the person to
whom the same may be directed, willfully opens any sealed envelope
enclosing a telegraphic message and addressed to any other person, with the
purpose of learning the contents of such message, or who fraudulently
represents any other person, and thereby procures to be delivered to himself
any telegraphic message addressed to such other person, with the intent to
use, destroy or detain the same from the person or persons entitled to
receive such message, is punishable as provided in section 18-6715, Idaho
Code. [I.C.,

18-6716, as added by 1980, ch. 326,
2, p. 832.]
18-6717. Refusal to send or deliver telegraph message.

Every
agent, operator or employee of any telegraph office who willfully refuses or
neglects to send any message received at such office for transmission, or
willfully postpones the same out of its order, or willfully refuses or neglects
to deliver any message received by telegraph, is guilty of a misdemeanor.
Nothing herein contained shall be construed to require any message to be
received, transmitted or delivered unless the charges thereon have been
paid or tendered. [I.C.,

18-6717, as added by 1980, ch. 326, 2, p. 832.]
18-6718. Opening sealed mail or packages.
(1) Every person who

willfully opens or breaks the seal, or reads, or causes to be read, any sealed
mail not addressed to such person without being authorized to do so either
by the writer or by the person to whom it is addressed, and every person
who, without the like authority, publishes any of the contents of such mail
knowing the same to have been unlawfully opened, is guilty of a misde-
meanor.
(2) For the purposes of this section, "mail" means any written communi-
cation or package that is designed to be carried by the United States postal
service or any other federally regulated carrier of packages, parcels or
letters. [I.C.,

167, 7, p. 374.]
Compiler's notes. Section 3 of S.L. 1980, tion shall not affect the validity of remaining
ch. 326 read: "The provisions of this act are portions of this act."
hereby declared to be severable and if any
provision of this act or the application of such
compiled as

18-6711 and 18-7029, respec-
provision to any person or circumstance is
tively
declared invalid for any reason, such declara-
18-6719. Definitions for pen registers and trap and trace devices.
(1) "Attorney general" means the attorney general of the state of Idaho;
(2) "Pen register" means a device which records or decodes electronic or
other impulses which identify the numbers dialed or otherwise transmitted
on the telephone line to which such device is attached, but such term does
not include any device used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident to billing, for
communications services provided by such provider or any device used by a
provider or customer of a wire communication service for cost accounting or
other like purposes in the ordinary course of its business;
(3) "Prosecuting attorney" means the prosecuting attorney of each county
of the state of Idaho;
(4) "Trap and trace device" means a device which captures the incoming
electronic or other impulses which identify the originating number of an
instrument or device from which a wire or electronic communication was
transmitted. [I.C.,
18-6719, as added by 1987, ch. 215, 1, p. 460.]
Cited in: State v. Thompson, 113 Idaho state officers acted in accordance with Idaho
466, 745 P. 2d 1087 (Ct. App. 1987). law as it then existed which did not require
that prosecutors show probable cause in their
applications. Suppression of application was
Probable cause.
nt required because the state officers relied
Good faith.
m gd faith on existing Idaho law when the
pen registers were ordered. United States v.
Probable Cause.
Butz, 982 F.2d 1378 (9th Cir.), cert, denied,
Analysis
Good Faith.
When pen registers were ordered on phones
of persons suspected of selling marijuana,
510 U.S. 891, 114 S. Ct. 250, 126 L. Ed. 2d 203
(1993).
18-6720. General prohibition on pen register and trap and trace
device use

Exception.

(1) Except as provided in section 18-6720,
Idaho Code, [this section] no person may install or use a pen register or a
trap and trace device without first obtaining a court order under section
(2)
The prohibition of subsection (1) of this section does not apply with
respect to the use of a pen register or a trap and trace device by a provider
of electronic or wire communication service:
(a) Relating to the operation, maintenance, and testing of a wire or
electronic communication service or to the protection of the rights or
property of such provider, or to the protection of users of that service from
abuse of service or unlawful use of service; or
(b) To record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider, another provider
furnishing service toward the completion of the wire communication, or a
user of that service, from fraudulent, unlawful or abusive use of service;
or
(c) Where the consent of the user of that service has been obtained.
(3)
Whoever knowingly violates the provisions of subsection (1) of this
section shall be guilty of a misdemeanor. [I.C.,

18-6720, as added by 1987,
ch. 215, 2, p. 460.]
Compiler's notes. The bracketed words
"this section" in subsection (1) were inserted
by the compiler.
18-6721. Application for an order for a pen register or a trap and
trace device.

(1) The prosecuting attorney or attorney general may
make application for an order or an extension of an order under section
18-6722, Idaho Code, authorizing or approving the installation and use of a
pen register or a trap and trace device under this chapter, in writing under
oath or equivalent affirmation to the district court.
(2) An application under subsection (1) of this section shall include:
(a) The identity of the prosecuting attorney or attorney general making
the application and the identity of the law enforcement agency conducting
the investigation; and
(b) A certification by the applicant that the information likely to be
obtained is relevant to an ongoing criminal investigation being conducted
by that agency. [I.C.,
18-6721, as added by 1987, ch. 215, 3, p. 460.]
18-6722. Issuance of an order for a pen register or a trap and
trace device.

(1) Upon an application made under section 18-6721,
Idaho Code, the court shall enter an ex parte order authorizing the
installation and use of a pen register or a trap and trace device within the
jurisdiction of the court if the court finds that the prosecuting attorney, the
attorney general, or the state law enforcement or investigative officer has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation.
(2)
An order issued under this section:
(a) Shall specify
1. The identity, if known, of the person to whom is leased or in whose

name is listed the telephone line to which the pen register or trap and
trace device is to be attached;
2. The identity, if known, of the person who is the subject of the
criminal investigation;
3. The number and, if known, physical location of the telephone line to
which the pen register or trap and trace device is to be attached and, in
the case of a trap and trace device, the geographic limits of the trap and
trace order; and
4. A statement of the offense to which the information likely to be
obtained by the pen register or trap and trace device relates; and
(b) Shall direct, upon the request of the applicant, the furnishing of
information, facilities, and technical assistance necessary to accomplish
the installation of the pen register or trap and trace device under section
(3) An order issued under this section shall authorize the installation and
use of a pen register or a trap and trace device for a period not to exceed sixty
(60) days. Extensions of such an order may be granted, but only upon an
application for an order under section 18-6721, Idaho Code, and upon the
judicial finding required by subsection (1) of this section. The period of
extension shall be for a period not to exceed sixty (60) days.
(4) An order authorizing or approving the installation and use of a pen
register or a trap and trace device shall direct that:
(a) The order be sealed until otherwise ordered by the court; and
(b) The person owning or leasing the line to which the pen register or a
trap and trace device is attached, or who has been ordered by the court to
provide assistance to the applicant, not disclose the existence of the pen
register or trap and trace device or the existence of the investigation to the
listed subscriber, or to any other person, unless or until otherwise ordered
by the court. [I.C.,

18-6722, as added by 1987, ch. 215, 4, p. 460.]
in
18-6720.
18-6723. Assistance in installation and use of a pen register or a
trap and trace device.
(1) Upon the request of the prosecuting attorney

or attorney general, or an officer of a law enforcement agency authorized to
install and use a pen register, a provider ofwire or electronic communication
service, landlord, custodian, or other person shall furnish the applicant,
investigative or law enforcement officer forthwith all information, facilities,
and technical assistance necessary to accomplish the installation of the pen
register unobtrusively and with a minimum of interference with the services
that the person so ordered by the court accords the party with respect to
whom the installation and use is to take place, if such assistance is directed
by a court order as provided in section 18-6722, Idaho Code.
(2) Upon the request of a prosecuting attorney or attorney general, or an
officer of a law enforcement agency authorized to receive the results of a trap
and trace device, a provider of a wire or electronic communication service,
landlord, custodian, or other person shall install such device forthwith on
the appropriate line and shall furnish such investigative or law enforcement
officer all additional information, facilities and technical assistance includ-
ing installation and operation of the device unobtrusively and with a
minimum of interference with the services that the person so ordered by the
court accords the party with respect to whom the installation and use is to
take place, if such installation and assistance is directed by a court order as
provided in section 18-6722(2)(b), Idaho Code. Unless otherwise ordered by
the court, the results of the trap and trace device shall be furnished to the
officer of a law enforcement agency, designated in the court, at reasonable
intervals during regular business hours for the duration of the order.
(3) A provider of a wire or electronic communication service, landlord,
custodian, or other person who furnishes facilities or technical assistance
pursuant to this section shall be reasonably compensated for such reason-
able expenses incurred in providing such facilities and assistance.
(4) No cause of action shall lie in any court against any provider of a wire
or electronic communication service, its officers, employees, agents, or other
specified persons for providing information, facilities, or assistance in
accordance with the terms of a court order under this chapter.
(5) A good faith reliance on a court order, a legislative authorization, or a
statutory authorization is a complete defense against any civil or criminal
action brought under this chapter or any other law. [I.C.,

18-6723, as
added by 1987, ch. 215, 5, p. 460.]
18-6724. Reports concerning pen registers and trap and trace
devices. [Repealed.]
Compiler's notes. Former 18-6724, 1987, ch. 215, 6, p. 460, was repealed by
which comprised I.C., 18-6724, as added by S.L. 1994, ch. 167, 1, effective July 1, 1994.
18-6725. Rule for prior interceptions.

Any pen register or trap
and trace device installed prior to the effective date of this act which would
561 TELEGRAPH, TELEPHONE AND ELECTRIC LINES 18-6802
be valid and lawful without regard to the amendments made by sections
18-6719 and 18-6724, Idaho Code, shall be valid and lawful. [I.C.,

18-
6725, as added by 1987, ch. 215, 7, p. 460.]
Compiler's notes. Section 18-6724, re- Section 8 of S.L. 1987, ch. 215 declared an
ferred to in this section, was repealed. emergency. Approved March 31, 1987.
CHAPTER 68
TELEGRAPH, TELEPHONE AND
ELECTRIC LINES
SECTION.
18-6801. Removal or obstruction of telephone
or telegraph lines or equip-
ment.
18-6802. Electric lines
Punishment for in-

juring.
18-6803. Removal or destruction of electric
transmission lines.
18-6804. Burning electric lines or plants.
18-6805. Punishment for removal, destruc-
tion or burning of electric lines
or plants.
SECTION.
18-6806. Relinquishment of telephone line
for emergency messages.
18-6807. Information required of person
making request.
18-6808. Emergency calls enumerated.
18-6809. Misdemeanor to fail to relinquish or
fraudulently procure use of
line.
18-6810. Intentional destruction of a tele-
communication line or tele-
communication instrument.
18-6801. Removal or obstruction of telephone or telegraph lines
or equipment.
Every person who maliciously displaces, removes, injures

or destroys any public telephone instrument or any part thereof or any
equipment or facilities associated therewith, or who enters or breaks into
any coin box associated therewith, or who wilfully displaces, removes,
injures or destroys any telegraph or telephone line, wire, cable, pole or
conduit belonging to another or the material or property appurtenant
thereto is guilty of a misdemeanor, and upon conviction thereof shall be
punished by a fine not exceeding three hundred dollars ($300), or by
imprisonment in the county jail for not more than six (6) months, or by both

18-6801, as added by 1972, ch. 336,
1, p.
844.]
8521;I.C.A., 17-4114; 1963, ch. 74, 1, p.
18-113.
Collateral References. 29 C.J.S., Elec-
tricity, 77.
18-6802. Electric lines
Punishment for injuring.
Any person
who shall wilfully cut down or burn, or otherwise materially injure, any
electric light pole, or shall shoot so as to materially injure any insulator, or
knock said insulator loose from the pole to which it is attached, or otherwise
materially injure such insulator, or who shall shoot any electric light wire,
thereby breaking said wire, or who shall otherwise wilfully cut, break, or
injure such wire, shall, upon conviction be guilty of a misdemeanor. [I.C.,

45, 1, p.
84.1
comprised S.L. 1888-1889, p. 58, 1; reen. The portion of this section regarding wilful
R.C., & C.L., 7143; C.S., 8527; I.C.A., burning may be superseded by

18-801

17-4115; 1963, ch. 74, 2, p.

268 was 18-805 which seem to completely cover the
repealed by S.L. 1971, ch. 143, 5, effective subject of unlawful burnings.
January 1, 1972, and the present section Cross ref. Unauthorized connection with
added by S.L. 1972, ch. 336, 1 in the same telegraph and telephone lines,
18-6702.
18-6803. Removal or destruction of electric transmission lines.
It shall be unlawful for anyone within the state of Idaho to take down,
remove, injure, obstruct, displace or destroy, wilfully or maliciously and
without the consent of the owner, any line erected or constructed for the
transmission of electrical current, or any poles, wires, conduits, cables,
insulators, or any support upon which wires or cables may be suspended, or
any part of any such line or appurtenances or apparatus connected there-
with, or to sever any wire or cable thereof, or in any manner to interrupt the
transmission of electrical current over and along any such line, or to take
down, remove, injure or destroy any house, shop, building or other struc-
ture, or appurtenances thereto, or any machinery connected therewith or
necessary to the use of any line erected or constructed for the transmission
of electrical current:
Provided, nothing in this section shall be construed to prevent any person,
after having given ten days' written notice, from removing or causing to be
removed from his premises, or premises occupied by him, any of the above
described line or lines, wires, conduits, cables, insulators or apparatus
connected therewith; provided further, any such removals must be made by
or under the direction of a skillful and competent electrician. [I.C.,

18-
336, 1, p. 844.]
comprised S.L. 1903, p. 341, 1;
reen. R.C., &
Cross ref. Stealing electric current,
18-
C.L.,
7175; C.S., 8576; I.C.A.,

17-4321
4621 et seq.
was repealed by S.L.
1971, ch.
143,
5,
jn
*
18-6805
18-6804. Burning electric lines or plants.

any person within the state of Idaho to set fire, wilfully or maliciously, that
shall result in the destruction or injury of any line erected or constructed for
the transmission of electrical current, or any poles, conduits, cables, wires,
insulators or any support upon which wires or cables may be suspended, or
any part of any such line or appurtenances or apparatus connected there-
with, or any house, shop, building or other structure, or appurtenances
thereto, or machinery connected therewith, or necessary to the use of, any
line erected or constructed for the transmission of electrical current, or to set
fire that shall in any manner interrupt the transmission of electrical current
along such line. [I.C.,
18-6804, as added by 1972, ch. 336, 1, p. 844.]
C.L.,
7176; C.S., 8577; I.C.A.,
17-4322 same words as the section prior to its repeal,
This section may be superseded by
18-
563 TELEGRAPH, TELEPHONE AND ELECTRIC LINES 18-6809
801

18-805, which were enacted in 1993
and seem to completely cover the subject of
unlawful burnings.
18-6805. Punishment for removal, destruction or burning of elec-
tric lines or plants.
Any person or persons violating any provision or

provisions of the two preceding sections or any part of said sections, shall,
upon conviction thereof, be punished by a fine not exceeding $500.00, or by
imprisonment in the penitentiary not to exceed ten years, or by both such
fine and imprisonment, in the discretion of the court. [I.C.,

18-6805, as
added by 1972, ch. 336, 1, p. 844.1
C.L., 7177; C.S., 8578; I.C.A.,

17-4323
18-6806. Relinquishment of telephone line for emergency mes-
sages.
Any person using a telephone line by which use restricts or denies

use of such line by other persons shall relinquish the use of such line to any
other person requesting the use of such line for emergency messages. [I.C.,
18-6806, as added by 1972, ch.

336, 1, p. 844.1
Compiler's notes. Aformer section, which January 1, 1972, and the present section
18-6807. Information required of person making request.
Any
person requesting that another person using a telephone line relinquish the
use of such line for the purpose of an emergency message shall inform such
person of the nature of the emergency, and their name and telephone
number upon request. [I.C.,
18-6807, as added by 1972, ch.
336, 1, p.
844.]
18-6808. Emergency calls enumerated.

Emergency telephone
calls for the purpose of this act are calls for police, medical and fire aid. [I.C.,
18-6808, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. The words "this act" 1971, ch. 143, 5, effective January 1, 1972,
refer to

18-6806 18-6809. and the present section added by S.L. 1972,
A former section, which comprised S.L. ch. 336, 1 in the same words as the section
1957, ch. 104, 3, p. 182 was repealed by S.L. prior to its repeal.
18-6809. Misdemeanor to fail to relinquish or fraudulently pro-
cure use of line.

Any person using such line, failing or refusing to
relinquish such line upon proper request, shall be guilty of a misdemeanor.
Any person fraudulently procuring use of such line for nonexisting emer-
gency shall be guilty of a misdemeanor. [I.C.,

18-6809, as added by 1972,
ch.
336, 1, p. 844.]
Compiler's notes. Aformer section, which January 1, 1972, and the present section
18-6810. Intentional destruction of a telecommunication line or
telecommunication instrument.

(1) Any person who intentionally
takes down, removes, injures or obstructs in any manner any telecommu-
nication line or, any part thereof, or appurtenances or apparatus connected
therewith, or severs any wire thereof or who intentionally takes, withholds,
takes down, removes, injures or obstructs any telephone instrument or other
instrument that is used or could be used to facilitate the transmission of
messages, signals, facsimiles, video images or other communication by
means of telephone, telegraph, cable, wire or the projection of energy or
waves without physical connection (such as wireless or cellular), with the
intent to prohibit, disrupt, inhibit, delay, disconnect or otherwise interfere
with a person's ability to make contact with or otherwise communicate with
an emergency service provider is guilty of a misdemeanor and shall be
punished by a fine of up to one thousand dollars ($1,000) or by imprisonment
in the county jail for up to one (1) year, or both.
(2) For purposes of this statute, a "telecommunication line" shall be
defined as any line used or that could be used for the transmission of any
type of message or information, regardless of form or content.
(3) For purposes of this statute, an "emergency service provider" includes
law enforcement, emergency medical service providers (including, but not
limited to, ambulance, EMS, or paramedic service providers), fire suppres-
sion service providers, dispatch centers, dispatch personnel, and any person,
entity, or security business (including private business) that has the
authority to dispatch such service providers or that otherwise makes
available the service of requesting a response, or providing notification of
the need for a response, by any of the foregoing emergency service providers.
The term "emergency service provider" shall also include any personnel,
service or entity that can be contacted, either directly or indirectly, by
dialing
"911."
[I.C.,

18-6810, as added by 2002, ch. 227, 1, p. 654; am.
2003, ch. 247, 1, p. 638.]
CHAPTER 69
OFFENSES INVOLVING MOTOR VEHICLES
SECTION.
18-6901 18-6917. [Repealed.]
18-6901
18-6917. Offenses involving motor vehicles. [Repealed.]
Compiler's notes. Sections 18-6901 18- 1981, ch. 223 was repealed by S.L. 1982, ch.
6917 were enacted by S.L. 1981, ch. 223, 3, 353, 3, effective April 2, 1982.
effective July 1, 1982; however, 3 of S.L.
565 TRESPASS AND MALICIOUS INJURIES TO PROPERTY
CHAPTER 70
18-7001
TRESPASS AND MALICIOUS INJURIES TO PROPERTY
SECTION.
18-7001.
18-7002.
18-7003.
18-7004.
18-7005.
18-7006.
18-7007.
18-7008.
18-7009.
18-7010.
18-7011.
18-7012.
18-7013.
18-7014.
18-7015.
18-7016.
18-7017.
18-7018.
18-7019.
18-7020.
18-7021.
18-7022.
18-7023.
Malicious injury to property.
Construction of sections enumerat-
ing acts of malicious mischief.
[Repealed.]
Firing timber or prairie lands.
Damage to forage on public lands
from throwing away or leaving
lighted substances.
Trespass of privacy.
[Repealed.]
Trespass
Acts constituting.
Destruction of timber on state
lands.
Cutting state timber for shipment.
Criminal trespass
Definition and
punishment.
Opening gates and destroying
fences.
Reservoirs and tanks

Pollution
when fenced or posted a mis-
demeanor.
Injuries to crops.
Trespass on inclosure for fur-bear-
ing animals.
Obliterating and defacing boundary
monuments.
Defacing natural scenic objects.
Injuring jails.
Injuring dams, canals, and other
structures
Penalty.
Destroying lumber, poles, rafts, and
vessels.
Injuring morfuments, ornaments,
and public improvements.
Injuring gas or water pipes.
Destroying mining and water right
notices.
SECTION.
18-7024.
18-7025.
18-7026.
18-7027.
18-7028.
18-7029.
18-7030.
18-7031.
18-7032.
18-7033.
18-7034.
18-7035.
18-7036.
18-7037.
18-7038.
18-7039.
18-7040.
18-7041.
Underground workings of mines

Setting fire to.
Punishment for violation of preced-
ing section.
Sabotage.
Desecration of grave, cemetery,
headstone or place of burial
prohibited.
Unlawful removal of human re-
mains

Malice

Intent to
sell.
Placing posters or promotional ma-
terial on public or private
property without permission.
[Repealed.]
Placing debris on public or private
property a misdemeanor.
Tampering with parking meters,
coin telephones or vending
machines

Possession of
keys.
Use of unauthorized vehicles on air-
ports.
Unlawful entry a misdemeanor.
Damaging caves or caverns unlaw-
ful
Penalty.
Injury by graffiti.
Unauthorized release of certain an-
imals, birds or aquatic species
Penalties.
Destroying livestock.
Killing and otherwise mistreating
police dogs, police horses,
search and rescue dogs and
accelerant detection dogs.
Interference with agricultural re-
search.
Damage to aquaculture operations.
18-7001. Malicious injury to property.

Every person who mali-
ciously injures or destroys any real or personal property not his own, or any
jointly owned property without permission of the joint owner, or any
property belonging to the community of the person's marriage, in cases
otherwise than such as are specified in this code, is guilty of a misdemeanor
and shall be punishable by imprisonment in the county jail for up to one (1)
year or a fine of not more than one thousand dollars
($1,000),
or both, unless
the damages caused by a violation of this section exceed one thousand
dollars ($1,000) in value, in which case such person is guilty of a felony, and
shall be punishable by imprisonment in the state prison for not less than one
(1)
year nor more than five
(5)
years, and may be fined not more than one
thousand dollars
432; am. 1998, ch. 354, 1, p. 1112.]
C.L., 7150; C.S., 8539; I.C.A.,
17-4301
Cross ref. Injuries to irrigation works,
18-4301 et seq.
Killing and otherwise mistreating animals,
25-3504.
Malicious injuries to railroads, highways,
bridges, and telegraphs,

18-6006 18-
6011, 18-3910, 18-6801
18-6805, 18-4301
18-4310.
wise provided,
18-113.
Cited in: State v. Porath, 113 Idaho 974,
751 P2d 670 (Ct. App. 1988); State v. Spurr,
114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988);
State v. Boehner, 114 Idaho 311, 756 P.2d
1075 (Ct. App. 1988); State v. McDonough,
120 Idaho 650, 818 P2d 354 (Ct. App. 1991);
State v. Marsh, 122 Idaho 854, 840 P.2d 398
(Ct. App. 1992); State v. Richmond, 137 Idaho
35, 43 P.3d 794 (Ct. App. 2002).
Analysis
Malice.
Relation to fixed term provision.
Sentence.
Value.
Insufficient evidence.
Malice.
The definition of "malice" in subdivision (4)
of
18-101 leaves no room for an interpreta-
tion of the term to include negligence. State v.
Nastoff, 124 Idaho 667, 862 P2d 1089 (Ct.
App. 1993).
"injures or destroys," in this section, indicates
intent is the injuring or destroying of prop-
erty; there is no implied legislative intent to
create criminal liability under this section
where the injury to property was an unin-
tended consequence of conduct that may have
violated some other statute. State v. Nastoff,
124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993).
When the state relies upon the "intent to do
a wrongful act" form of malice in a prosecu-
tion under this section, the malice element is
satisfied by evidence that defendant intended
to injure the property of another, and the
state is not required to prove that defendant
intended the particular degree or scope of
injury that ensued from his acts. State v.
Nunes, 131 Idaho 408, 958 P2d 34 (Ct. App.
1998).
Relation to Fixed Term Provision.
Where the evidence indicated that defen-
dant and two others stole a pickup truck and
tools and drove to a remote mining cabin
which they vandalized, that they destroyed
the pickup and stole some blasting materials
with which they attempted to destroy some
trees and that the total damage exceeded
$12,000, the sentencing court properly im-
posed a sentence of an indeterminate period
not to exceed five years; even though the
defendant was given the maximum number of
years under this section, he was not given the
maximum permissible sentence, because
19-25 13A (now repealed), when applied in

conjunction with this section, would permit
the sentencing court to impose a fixed term
sentence of up to five years and, thus, the trial
court did not abuse its discretion by failing to
grant the defendant either probation, a 120-
day rider or a lesser sentence. State v. West,
102 Idaho 562, 633 P2d 1140 (1981).
Sentence.
P2d 1307 (Ct. App. 1988).
P.2d 432 (Ct. App. 1993).
Value.
Either the diminution of the object's fair
market value or the reasonable cost of repair
is a fair means of measuring damage when
the offender has harmed but not destroyed
the property. State v. Hughes, 130 Idaho 698,
946 P.2d 1338 (Ct. App. 1997).
When the cost of repair is chosen as the
valuation standard, the measure may not
exceed the market value of the item. The
defendant may challenge the cost of repair
measure by presenting evidence of a lesser
fair market value. State v. Hughes, 130 Idaho
698, 946 P.2d 1338 (Ct. App. 1997).
Replacement cost evidence may be used as
an indicator of value only when the State has
567 TRESPASS AND MALICIOUS INJURIES TO PROPERTY 18-7004
demonstrated that the fair market value of
the destroyed item is not reasonably
ascertainable or that the item has no market
value. And when replacement cost is used, the
State must show that the replacement,
whether actually purchased by the victim or
not, is a reasonably close proximation of the
design and quality of the destroyed item.
State v. Hughes, 130 Idaho 698, 946 P.2d 1338
(Ct. App. 1997).
Insufficient Evidence.
Where State made no effort to prove the
market value of the destroyed door or to show
that its value was unascertainable, instead
relying upon the price of the new door and
ancillary equipment actually purchased by
victim as a replacement, without evidence
that the replacement was similar in quality or
value to the destroyed door, evidence was
insufficient that the property damage caused
exceeded $1,000. State v. Hughes, 130 Idaho
698, 946 P.2d 1338 (Ct. App. 1997).
Sentence.
A judge did not abuse his discretion in
imposing a 15-year sentence with a minimum
of six years confinement, or in later refusing
to reduce the sentence for a defendant con-
victed of bombing a public structure where
the judge explained the sentence in terms of
protecting society, retribution and deterrence
and also took rehabilitation into account.
State v. Langley, 115 Idaho 727, 769 P.2d 604
(Ct. App. 1989).
Malicious Mischief,

1
7.
54 C.J.S., Malicious, or Criminal Mischief
or Damage to Property,
1

11.
Vagrancy, trespassing as. 14 A.L.R. 1506.
Criminal offense of forcible detainer or tres-
pass, where entry was peaceable. 49 A.L.R.
597.
Mineral resources supposed to exist, recov-
ery for trespass which demonstrates lack of.
52 A.L.R. 104.
Air navigation over land of another as crim-
inal trespass. 69 A.L.R. 318.
Right to protect grave of relative from des-
ecration. 110 A.L.R. 384; 120 A.L.R. 655; 127
A.L.R. 1502; 141 A.L.R. 1030; 147 A.L.R. 698.
Criminal statute specifically denouncing of-
fenses affecting cemeteries, tombstones, and
the like. 132 A.L.R. 557.
18-7002. Construction of sections enumerating acts of malicious
mischief.

The specification of the acts enumerated in the following
sections of this chapter is not intended to restrict or qualify the interpreta-
tion of the preceding section. [I.C.,

18-7002, as added by 1972, ch. 336,
1, p. 844.]
8540; I.C.A.,
18-7003. Burning property not subject to arson. [Repealed.]
Cr.&P. 1864, 57;R.S., 7156; R.C., & C.L.,
7156; C.S., 8556; I.C.A.,
17-4303 was
January 1, 1972.
18-7004. Firing timber or prairie lands.

wilfully or carelessly set on fire, or cause to be set on fire, any timber or
prairie lands in this state, thereby destroying the timber, grass or grain on
any such lands, or any person who shall build a camp fire in any woods, or
on any prairie, and leave the same without totally extinguishing such fire,
or any railway company which shall permit any fire to spread from its
right-of-way to the adjoining lands, is guilty of a misdemeanor. [I.C.,
18-7004, as added by 1972, ch. 336, 1, p. 844.]

comprised Act Feb. 1887; R.S., R.C., & C.L.,
6921; C.S., 8346; I.C.A.,
17-2722 was
The section may be superseded by
18-
801
18-805, which seem to completely cover

the subject of unlawful burnings.
Cross ref. Civil action for waste and wilful
trespass on real property,
6-201 et seq.
wise provided,
18-113.
862 P.2d 1089 (Ct. App. 1993).
Analysis
Railroads.
Sentencing.
Railroads.
Railroad company unnecessarily leaving
combustible material on its right-of-way was
guilty of actionable negligence when fire
spread from it to contiguous property. Curoe v.
Spokane & I.E.R.R., 32 Idaho 643, 186 P.
1101, 37 A.L.R. 923(1920).
Sentencing.
Where defendant was sentenced to a five-
year unified sentence with two-years fixed
and three-years indeterminate for burning
property not subject to arson, and two one-
year terms for firing timber or prairie lands,
all to run concurrently, and during the period
of retained jurisdiction, the judge decided to
decrease the term of the fixed sentence to one
year with four-years indeterminate because of
defendant's performance in a special pro-
gram, although the one-year sentence for fir-
ing of timber appeared to be illegal, because
the sentence ran concurrently with the sen-
tence for burning property not subject to
arson, the issue of the illegal sentence was
moot, and the other sentence was found to be
reasonable in light of the potential danger to
property and human life caused by the fire.
State v. Goodson, 122 Idaho 553, 835 P.2d
1364 (Ct. App. 1992).
Collateral References. Liability for
spread of fire intentionally set for legitimate
purpose. 25 A.L.R.5th 391.
18-7005. Damage to forage on public lands from throwing away
or leaving lighted substances.
Any person who shall throw any lighted

cigarette, cigar, match, ashes, or other flaming or glowing substance or any
substance or thing which may cause a fire, from any vehicle, or who shall
throw, deposit, or leave any lighted cigarette, cigar, match, ashes or other
flaming or glowing substance or any substance or thing which may cause a
fire in any place where the same may directly or indirectly cause a fire
resulting in damage to forage on the lands of the United States or the state
of Idaho or to the property of any person, is guilty of a misdemeanor and
shall be punished accordingly. [I.C.,
18-7005, as added by 1972, ch. 336,
1, p. 844.]
comprised S.L. 1929, ch. 150, 1, p. 274;
I.C.A.,
18-113.
862 P.2d 1089 (Ct. App. 1993).
18-7006. Trespass of privacy.
It shall be unlawful for any person,

upon the private property of another, to intentionally look, peer or peek in
the door, window, or other transparent opening of any inhabited building or
other structure located thereon, without visible or lawful purpose. Any
person who violates the provisions of this section shall be guilty of a
misdemeanor. [I.C.,

18-7006, as added by 1999, ch. 209, 1, p. 558.]
Compiler's notes. Former 18-7006, Another third former 18-7006, which
18-7006, as added by comprised R.S., R.C., & C.L., 7157; C.S.,
8557; I.C.A.,
Another former 18-7006, which com- 1972.
prised I.C.,
18-7006, as added by 1972, ch.
ch. 347, 1.
18-7007. Destruction of property by means of explosives
Degrees
and penalties. [Repealed.]
Compiler's notes. Former 18-7007, A third former
which comprised (I.C.,
18-7007, as added by S.L. 1905, p. 220, 1; reen. R.C., & C.L.,
7174; C.S., 8575; I.C.A., 17-4305, was
S.L. 1993, ch. 107, 7, effective July 1, 1993. repealed by S.L. 1971, ch. 143, 5, effective
A second former 18-7007, which com-
January 1, 1972.
prised I.C.,
18-7007, as added by 1972, ch.
ch. 347, 1.
18-7008. Trespass

Acts constituting.

A. Every person who
willfully commits any trespass, by either:
1. Cutting down, destroying or injuring any kind of wood or timber
belonging to another, standing or growing upon the lands of another; or
2. Carrying away any kind of wood or timber lying on such lands; or
3. Maliciously injuring or severing from the freehold of another, anything
attached thereto, or the produce thereof; or
4. Digging, taking, or carrying away from any lot situated within the
limits of any incorporated city, without the license of the owner or legal
occupant thereof, any earth, soil, stone; or
5. Digging, taking, or carrying away from any land in any of the cities of
the state, laid cfown on the map or plan of such city, or otherwise
recognized or established as a street, alley, avenue, or park, without the
license of the proper authorities, any earth, soil or stone; or
6. Willfully opening, tearing down, or otherwise destroying any fence on
the enclosed land of another, or opening any gate, bar, or fence of another
and willfully leaving it open, or using the corral or corrals of another
without the permission of the owner; or
7. Willfully covering up or encumbering in any manner, the land or city
lot of another, without written permission from the owner or custodian
thereof; or
8. Every person, except under landlord-tenant relationship, who, being
first notified in writing, or verbally by the owner or authorized agent of
the owner of real property, to immediately depart from the same and who
refuses to so depart, or who, without permission or invitation, returns and
enters said property within a year, after being so notified; or
9. Entering without permission of the owner or the owner's agent, upon
the real property of another person which real property is posted with "No
Trespassing" signs, is posted with a minimum of one hundred (100) square
inches of fluorescent orange paint except that when metal fence posts are
used, the entire post must be painted fluorescent orange, or other notices
of like meaning, spaced at intervals of not less than one (1) sign, paint
area or notice per six hundred sixty (660) feet along such real property;
provided that where the geographical configuration of the real property is
such that entry can reasonably be made only at certain points of access,
such property is posted sufficiently for all purposes of this section if said
signs, paint or notices are posted at such points of access; or
10. Entering the property of another and, being unprovoked, intention-
ally and without the consent of the animal's owner, kills or injures a
domestic animal not his own:
Is guilty of a misdemeanor.
B. Every person who while committing any trespass, intentionally and
without consent of the animal's owner kills or injures a domestic animal of
another, not including upland game birds or birds of any species not
protected by law, shall be guilty of a misdemeanor. In addition to any other
sentence ofjail or a criminal fine imposed, a court may, for violation of this
subsection or subsection A. 10. of this section, impose a civil penalty in an
amount up to double the value of the animal or for injuries sustained and
payable to the owner of the animal. [I.C.,

18-7008, as added by 1972, ch.
336, 1, p. 844; am. 1976, ch. 154, 1, p. 550; am. 1992, ch. 283,
l,p.874;
am. 1999, ch. 106, 1, p. 333; am. 2000, ch. 147, 1, p. 375.]
comprised Cr. & P. 1864, 144; S.L. 1871, p.
21, 154;R.S.,&R.C., 7158; 1911, ch. 145,
p. 449; reen. C.L., 7158; C.S., 8558; 1931,
ch. 175, 1, p. 289; I.C.A., 17-4306; 1963,
herein as
18-7011.
as
36-1603.
Cross ref. Forcible entry and detainer,
18-3502.
wise provided,

18-113.
Waste, civil action for,
6-201.
in 18-7011.
Cited in: State v. Kelly, 106 Idaho 268, 678
P.2d 60 (Ct. App. 1984); Hughes v. Union Pac.
R.R., 114 Idaho 466, 757 P.2d 1185 (1988);
State v. Barton, 119 Idaho 114, 803 P.2d 1020
(Ct. App. 1991).
Analysis
Constitutionality.
Defense of premises.
Defenses.
Evidence.
Inference by jury.
Mental trespass.
Persons liable.
Reason for requested departure not required.
Retrial.
Tearing down fence.
Constitutionality.
There is no ambiguity in Idaho Code
18-
7008(A)(8), whose terms are to be given their
commonly understood, everyday meanings,
and the statute (1) makes no distinction be-
tween private and public property, (2) informs
the public of the prohibited conduct and thus
gives fair notice of the conduct that is made
criminal by the statute, and (3) does not allow
for unbridled discretion in police enforcement;
thus, the statute is not unconstitutional un-
der the void for vagueness doctrine. State v.
Korsen, 138 Idaho 706, 69 P.3d 126 (2003).
Reasonable reading of Idaho Code
18-
7008(A)(8) shows that the statute does not
reach a substantial amount of constitution-
ally protected conduct, and thus the statute is
not overbroad; the trial court erred in analyz-
ing the issue by combining the "facial" and "as
applied" analysis, and the trial court commit-
ted reversible error in determining that the
statutory language was overbroad. State v.
Korsen, 138 Idaho 706, 69 P.3d 126 (2003).
Defense of Premises.
When trespasser refuses to leave premises
after being asked to depart, or defiantly
stands his ground armed with a deadly
weapon, rightful occupant may at once resort
to a reasonable degree of force to remove him.
Tipsword v. Potter, 31 Idaho 509, 174 P. 133, 6
A.L.R. 527 (1918).
Defenses.
Trespass conviction was upheld where de-
fendant who rode his horse through a private
development could not prove he possessed an
easement and/or license to use the property
upon which he trespassed. State v. Camp, 134
Idaho 662, 8 P3d 657 (Ct. App. 2000).
Evidence.
Where it was clear from the evidence that
the rice harvested by defendants belonged to
the state of Idaho and was growing in an area
managed by the Fish and Game Department,
that one of the defendants was a former
employee of the department, with knowledge
that the rice was raised as cover, habitat and
feed for migratory waterfowl and that the
defendants did not have express permission
from any entity to harvest the rice, there was
substantial, competent evidence to support
the jury's verdicts finding defendants guilty of
criminal trespass. State v. Gissel, 105 Idaho
287, 668 P2d 1018 (Ct. App. 1983).
Inference by Jury.
Where it reasonably could be inferred from
the evidence that the defendants knew they
were committing a wrongful act i.e., taking,
without permission, property belonging to
someone other than themselves, the drawing
of such an inference properly would be within
the province of the jury, not the court, in
deciding whether, as a matter of fact, the
conduct of the defendants was "malicious"
under the trespass statutes and, by rendering
verdicts of guilty, in light of the inferences
which could be drawn from the evidence, the
jury could, and did, find the element of malice
was proven. State v. Gissel, 105 Idaho 287,
668 P.2d 1018 (Ct. App. 1983).
Mental Trespass.

There is no such thing as mental trespass.
Idaho Power Co. v. Buhl, 62 Idaho 351, 111
P.2d 1088 (1941).
Persons Liable.
Any person who is present at commission of
trespass, encouraging or inciting same, is
liable as principal. Duck Lee v. Boise Dev. Co.,
21 Idaho 461, 122 P. 851 (1912).
Reason for Requested Departure Not Re-
quired.
Because a property owner is not required to
have any reason for asking the trespasser to
depart the owner's land, under subsection
(A)(8) a prosecutor's question as to why prop-
erty owner asked defendant to get off his land
was irrelevant. State v. Missamore, 119 Idaho
27, 803 P.2d 528 (1990).
Retrial.
Magistrate erred in granting defendant's
motion for acquittal under Idaho Crim. R. 29
because the magistrate improperly found that
the state official who requested defendant to
leave the premises failed to express an ade-
quate reason for doing so, and such was not
an element in the trespass statute; because
the magistrate's dismissal was based on an
erroneous legal conclusion, double jeopardy
principles under Const., Art. I, 13 did not
bar a retrial of defendant on the trespass
charge. State v. Korsen, 138 Idaho 706, 69
P.3d 126 (2003).
Tearing Down Fence.
Defense of good faith, in tearing down a
fence based on the belief that the fence was on
his own land was for the jury where there was
substantial evidence that accused purposely
tore down fencing on land claimed and occu-
pied by another. State v. Jacobson, 55 Idaho
711, 47 P.2d 228 (1935).
Collateral References. Right to enter
land to remove timber cut before revocation of
license. 26 A.L.R.2d 1194.
Participation of student in demonstration
on or near campus as warranting imposition
of criminal liability for breach of peace, disor-
derly conduct, trespass, unlawful assembly, or
similar offense. 32 A.L.R.3d 551.
18-7009. Destruction of timber on state lands.
Every person who

wilfully and without authority enters upon the public lands of the state and
cuts down, destroys or injures any kind of wood or timber, standing or
growing upon such lands, or who wilfully and without authority carries
away any kind of wood or timber lying on such lands, is guilty of a
misdemeanor. [I.C.,

18-7009, as added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1893, p. 139, 26; reen. S.L.
1899, p. 73, 28; reen. R.C. & C.L., 6987;
C.S., 8389; I.C.A., 17-3213 was repealed
18-113.
For provisions compiled elsewhere in this
code relating to state lands, see the heading
"state lands" in the Table of Penal Provisions
In Other Volumes located at the end of this
volume.
Collateral References. Revocation of li-
cense to cut and remove timber as affecting Venue of action for the cutting, destruction,
rights in respect of timber but not removed. or damage of standing timber or trees. 65
26 A.L.R.2d 1194. A.L.R.2d 1268.
18-7010. Cutting state timber for shipment.

Every person who
wilfully and without authority enters upon the public lands of the state and
cuts down, destroys or injures any kind ofwood or timber growing upon such
lands, for the purpose of shipping, freighting, floating or otherwise trans-
porting such wood or timber out of the state, or who shall ship, freight or
float, or otherwise transport out of the state, any wood or timber cut upon
the public lands of the state, shall be guilty of a felony. [I.C.,

18-7010, as
added by 1972, ch.
336, 1, p. 844.1
Compiler's notes. A former section, which Cross ref. Penalty for felony when not
comprised S.L. 1893, p. 139, 27; reen. S.L. otherwise provided,
18-112.
1899, p. 72, 29; reen. R.C. & C.L.,

6988;
Collateral References. Validity, construc-
C.S.,

8390; I.C.A.,

tion, and application of statutes or ordinances
by S.L. 1971, ch. 143, 5,
penalizing one who enters or remains in
dwelling after having been forbidden to do so.
^45 A.L.R. 655.
18-7011. Criminal trespass

Definition and punishment.

1. Any person who, without consent of the owner or person in charge of any
lands which are inclosed by fences of any description sufficient to show the
boundaries of the land inclosed, shall go upon such lands and shall leave
open any gates on or about said premises, or who shall tear down or lay
down any fencing, or who shall wilfully remove, mutilate, damage or destroy
any "No Trespassing" signs or markers, or who shall go through cultivated
crops that have not been harvested, or who shall damage any property
thereon, or who without permission of the owner or the owner's agent enters
the real property of another person where such real property is posted with
"No Trespassing" signs or other notices of like meaning spaced at intervals
of not less than one (1) notice per six hundred sixty (660) feet along such real
property, is guilty of a misdemeanor and on conviction thereof shall be
punished by imprisonment in a county jail not exceeding six (6) months or
by a fine of not less than twenty-five dollars ($25.00) and not more than
three hundred dollars ($300) or by both such fine and imprisonment. Where
the geographical configuration of the real property is such that entry can
reasonably be made only at certain points of access, such property is posted
sufficiently for all purposes of this section if said signs or notices are posted
at such points of access.
As used in this subsection and in section 18-7008, Idaho Code: "enters,"
"entry" and "entering" mean going upon or over real property either in
person or by causing any object, substance or force to go upon or over real
property.
2. No motor vehicle shall be willfully or intentionally driven into, upon,
over or through any private land actively devoted to cultivated crops
without the consent of the owner of the land or the tenant, lessee or agent
of the owner of the land actively devoted to cultivated crops. Violation of the
provisions of this section shall be a misdemeanor. For the purpose of this
subsection, motor vehicle shall be denned as set forth in sections 49-114 and
49-123, Idaho Code. Land actively devoted to cultivated crops shall be
defined as land that is used to produce field crops including, but not limited
to, grains, feed crops, legumes, fruits and vegetables. [I.C.,

18-7011, as
added by 1972, ch.
336, 1, p. 844; am. 1976, ch. 154, 2, p. 550; am. 1984,
ch.
37, 1,
p. 63; am. 1984, ch.
55, 2, p. 94; am. 1988, ch. 265, 561, p.
549.]
Compiler's notes. A former section, which Sections 560 and 562 of S.L. 1988, ch. 265
comprised S.L. 1927, ch. 161, 1, p. 216; are compiled as
8-506A and 18-7803.
I.C.A.,

ch. 143, 5,
effective January
1, 1972, and
that the act should take effect on and after
January 1, 1989.
herein as
18-7008.
18-7012. Opening gates and destroying fences.

It shall be a
misdemeanor for any person to open and leave open any gate not belonging
to such person or rightfully under his control, or to cut, break, tear down, or
otherwise injure, any fence or wall or any obstruction used for a fence not
belonging to such person or rightfully under his control. [I.C.,

18-7012, as
added by 1972, ch. 336, 1, p. 844.]
comprised S.L. 1903, p. 427, 1; reen. R.C., & same words as the section prior to its repeal.
C.L.,
7142; C.S.,
8526; I.C.A.,

17-4113
18-113.
18-7013. Reservoirs and tanks

Pollution when fenced or
posted a misdemeanor.

Whenever any individual, individuals or
corporation, municipal, public or private, owning, operating or maintaining
any reservoir, pond, tank or any structure or place wherein or whereon
water is stored, either in whole or in part for domestic use, has the area or
ground on or wherein such reservoir, pond, tank, structure or place is
located, wholly inclosed by any fence or artificial barrier, and has posted or
caused to be posted, warning signs in conspicuous places on such fence or
artificial barrier forbidding entry, it shall be unlawful for any person to
enter, or to throw or place, or to cause to be thrown or placed, any substance
or thing whatsoever, within the area so inclosed by such fence or artificial
barrier, without the consent of such individual, individuals or corporation,
and any violation hereof shall constitute a misdemeanor and shall be
punishable accordingly. [I.C.,

18-7013, as added by 1972, ch. 336, 1, p.
844.]
comprised S.L. 1941, ch. 29, 1, p. 53 was words as the section prior to its repeal,
repealed by S.L. 1971, ch. 143, 5, effective Cross ref. Penalty for misdemeanor when
January 1, 1972, and the present section not otherwise provided,
18-113.
18-7014. Injuries to crops.
Every person who maliciously injures or

destroys any standing crops, grain, cultivated fruits or vegetables, the
property of another, in any case for which a punishment is not otherwise
prescribed by this code, is guilty of a misdemeanor. [I.C.,

18-7014, as
added by 1972, ch. 336, 1, p. 844.]
8559; I.C.A.,

S.L. 1971, ch. 143, 5,

18-113.
18-7015. Trespass on inclosure for fur-bearing animals.

When
the owner of any inclosure wherein foxes or other fur-bearing animals are
held in captivity, shall erect a fence or other barrier around the same and
within the boundaries of the premises under the exclusive dominion and
control of such owner, and shall post warning signs in conspicuous places
along such fence or barrier prohibiting trespass on the clear space between
such fence or barrier and the inclosure aforesaid, it shall be unlawful for any
person, without the permission of such owner, to cross such fence or barrier
or trespass upon such clear space.
Any person violating the provisions hereof shall be deemed guilty of a
misdemeanor. [I.C.,

18-7015, as added by 1972, ch.
336, 1, p. 844.]
comprised C.S.,
8559A, as added by S.L. same words as the section prior to its repeal.
1929, ch. 105, 1, p. 171; I.C.A.,

17-4309
18-113.
18-7016. Obliterating and defacing boundary monuments.
Ev-
ery person who either:
1. Maliciously removes any monument erected for the purpose of desig-
nating any point in the boundary of any lot or tract of land; or
2. Maliciously defaces or alters the marks upon any such monument; or
3. Maliciously cuts down or removes any tree upon which any such marks
have been made for such purpose, with intent to destroy such marks;
Is guilty of a misdemeanor. [I.C.,
18-7016, as added by 1972, ch. 336,
1, p.
844.]
C.L.,
7160; C.S.,
8560; I.C.A.,

17-4310
18-113.
18-7017. Defacing natural scenic objects.

any person to paint, sketch, or place in any manner or form or by any means,
upon any rock or rocks or similar natural object or objects, any place within
the state of Idaho, any sign, advertisement or picture or commercial or
business name, for business or commercial purposes. Any person who
violates the provisions of this section shall be deemed guilty of a misde-
meanor. [I.C.,

18-7017, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1911, ch. 132, p. 419; reen.
C.L.,
7160a; C.S.,
8561; I.C.A.,

17-4311
18-113.
Sec# to sec. ref# This section is referred to
m
40-1910
18-7018. Injuringjails.
Every person who wilfully and intentionally

breaks down, pulls down or otherwise destroys or injures any public jail or
other place of confinement, is punishable by fine not exceeding $10,000, and
by imprisonment in the state prison not exceeding five years. [I.C.,

18-
7018, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which this section (a felony) rather than a violation
comprised Cr. & P. 1864, 147; R.S., R.C., & of I.C.
18-7001 (a misdemeanor) since the
C.L., 7161; C.S., 8562; I.C.A.,
17-4312
felony-misdemeanor classification challenged
was repealed by S.L. 1971, ch. 143, 5, was reasonably related to the gravity of injury
to property and injury to public jails. State v.
Ash, 94 Idaho 542, 493 P.2d 701 (1972).
A
Evidence.
Fact that defendants escaped through hole
Equal protection.
made in a prison, and were the only prisoners
Evidence.
who did so, should receive same weight as an
incriminating circumstance as the fact of pos-
Equal Protection.
session of stolen property receives in larceny
Defendant, convicted for injury to a public
proSecutions. State v. Yancey, 47 Idaho 1, 272
jail, was not denied equal protection of the
p ^gg (1928)
laws where prosecutor alleged violation of
18-7019. Injurijng dams, canals, and other structures
Penalty.
Every person who wilfully and maliciously cuts, breaks, injures or

destroys any bridge, dam, canal, flume, aqueduct, levee, embankment,
reservoir or other structure erected to create hydraulic power, or to drain or
reclaim any swamp and overflowed or marsh land, or to conduct water for
mining, manufacturing, reclamation or agricultural purposes, or any em-
bankment necessary to the same, or either of them; or wilfully or maliciously
makes, or causes to be made, any aperture in such dam, canal, flume,
aqueduct, reservoir, embankment, levee or structure, with intent to injure
or destroy the same, is punishable by a fine not exceeding $1,000, or by
imprisonment in the state prison not exceeding two years, or by both. [I.C,
18-7019, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. A former section, which ish both those who succeed in willfully and
comprised Cr. & P. 1864, 146; R.S., R.C., & maliciously inflicting serious damage to a
C.L.,
7162; C.S., 8563; I.C.A.,

17-4313
structure and those who intend to inflict seri-
was repealed by S.L. 1971, ch. 143, 5, ous damage but willfully and maliciously cre-
ate damage less immediate in nature. State v.
Suiter, 138 Idaho 662, 67 P.3d 1274 (Ct. App.
2003).
Purpose.
Idaho Code
18-7019 was created to pun-
18-7020. Destroying lumber, poles, rafts, and vessels.

Every
person who wilfully and maliciously burns, injures, marks, brands or
defaces or destroys any pile, piling, telegraph pole, telephone pole or electric
transmission line pole, fence post, pile or raft of wood, plank, boards or other
lumber, or any part thereof, or cuts loose or sets adrift any such raft or part
thereof, or cuts, breaks, injures, sinks or sets adrift any vessel the property
of another, is punishable by a fine not exceeding $300.00, or by imprison-
ment in the county jail not exceeding six months, or by both such fine and
imprisonment. [I.C.,

18-7020, as added by 1972, ch. 336, 1, p. 844.]
Compiler's notes. A former section, which repealed by S.L. 1971, ch. 143, 5, effective
comprised Cr. & P. 1864, 145; R.S., & C.L., January 1, 1972, and the present section
7163; S.L. 1909, p. 26, H.B. 41; reen. C.L., added by S.L. 1972, ch. 336, 1 in the same
7163; C.S., 8564; I.C.A.,
17-4314 was words as the section prior to its repeal.
18-7021. Injuring monuments, ornaments, and public improve-
ments.
Every person, not the owner thereof, who wilfully mars, disfig-
ures, breaks or otherwise injures, or molests, removes or destroys, any work
of art, monument, landmark, historic structure, shade tree, shrub, orna-
mental plant, or useful or ornamental improvement, is guilty of a misde-
meanor. [I.C.,

18-7021, as added by 1972, ch. 336, 1, p. 844.]
comprised Cr. & P. 1864, 144; R.S., R.C., & 1972, ch. 336, 1 in the same words as the
C.L., 7170; C.S., 8571; S.L. 1929, ch. 61, section prior to its repeal.
1, p. 88; I.C.A.,
17-4318 was repealed by Cross ref. Penalty for misdemeanor when
S.L. 1971, ch. 143, 5, effective January 1, not otherwise provided,
18-113.
18-7022. Injuring gas or water pipes.
Every person who wilfully

breaks, digs up, obstructs or injures any pipe or main for conducting gas or
water, or any works erected for supplying buildings with gas or water or any
appurtenances or appendages therewith connected, is guilty of a misde-
meanor. [I.C.,

18-7022, as added by 1972, ch.
336, 1, p. 844.]
7171; C.S., section prior to its repeal.
8572; I.C.A.,

18-113.
18-7023. Destroying mining and water right notices.

Every
person who intentionally defaces, obliterates, tears down or destroys any
notice posted on any lode or placer mining claim, or ditch, or water right, or
location, or who removes, takes down or destroys any post or monument
erected or placed to mark or indicate any such claim, right or location, or any
part or boundary thereof, or part thereon, is guilty of a misdemeanor. [I.C.,
18-7023, as added by 1972, ch.

336, 1, p. 844.]
Compiler's notes. Aformer section, which 1972, ch. 336, 1 in the same words as the
8573; I.C.A.,

S.L. 1971, ch. 143, 5,
18-113.
18-7024. Underground workings of mines
Setting fire to.
It
shall be unlawful for any person or persons to set fire, wilfully or mali-
ciously, in or within any of the underground tunnels, shafts, or any of the
underground workings of any mine in the state of Idaho that shall result in
the burning of, destruction of, or injury to any of the timbering or workings
of any such mine or any part thereof. [I.C.,

18-7024, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1923, ch. 189, 1, p. 296; prior to its repeal.
I.C.A.,
17-4324 was repealed by S.L. 1971, This section may be superseded by
18-
ch. 143, 5, effective January 1, 1972, and 801
18-805, which seem to completely cover

the present section added by S.L. 1972, ch. the subject of unlawful burnings.

Any
person or persons violating any of the provisions of this act shall be guilty of
a felony and upon conviction thereof shall be punished by not less than five
(5) nor more than twenty (20) years imprisonment in the state penitentiary.
[I.C.,

18-7025, as added by 1972, ch.
336, 1, p. 844.]
comprised S.L. 1923, ch. 189, 2, p. 296; 336, 1 in the same words as the section
I.C.A.,
17-4325 was repealed by S.L. 1971, prior to its repeal,
18-7026. Sabotage.
Any person who wilfully, maliciously or mischie-

vously drives or causes to be driven or imbedded any nail, spike or piece of
iron, steel or other metallic substance, or any rock or stone, into any log or
timber intended to be manufactured into boards, lath, shingles or other
lumber, or to be marketed for such purpose, is punishable by imprisonment
in the state prison not more than five (5) years or by imprisonment in the
county jail not less than six (6) months, or by fine not to exceed $5000, in the

18-7026, as added by 1972, ch.
336, 1, p.
844.]
Compiler's notes. A former section, which ch. 143, 5, effective January 1, 1972, and
comprised R.C., 7178, enacted by 1917, ch. the present section added by S.L. 1972, ch.
136, p. 446, reen. C.L., 7178; C.S., 8579; 336, 1 in the same words as the section
I.C.A.,

17-4326 was repealed by S.L. 1971, prior to its repeal.
18-7027. Desecration of grave, cemetery, headstone or place of
burial prohibited.
It shall be unlawful for any person, not acting in full

compliance with all the terms of the law to desecrate or molest in any way
any portion of any grave, cemetery, headstone, grave marker, mausoleum,
crypt, or other place of burial, whether of whole bodies or ashes, or other
evidence of remains of a deceased human body. Any person convicted or
found guilty of violating the provisions of this section is guilty of a
misdemeanor. [I.C.,
18-7027, as added by 1984, ch.
73, 2, p. 135.]
Compiler's notes. Former 18-7027, S.L. 1984, ch. 73, 1, effective March 22,
18-7027, as added by 1984.
Cross ref. Protection of graves,

27-501 application of grave robbing statutes. 52
27-504. A.L.R.3d 701.
18-7028. Unlawful removal of human remains
Malice
Intent
to sell.
Every person who removes any part of any human remains from
any place where it has been interred, or from any place where it is deposited
while awaiting interment, with intent to sell it or to dissect it, without
authority of law, or from malice or wantonness is guilty of a felony
punishable by imprisonment in the state penitentiary for not more than five
(5) years, by a fine not greater than ten thousand dollars ($10,000) or by
both such fine and imprisonment. [I.C.,

18-7028, as added by 1984, ch. 73,
3, p. 135.]
Compiler's notes. Former 18-7028, Section 4 of S.L. 1984, ch. 73 is compiled as

27-501
27-504.
S.L. 1984, ch. 73, 1,
effective March 22,
1984.
18-7029. Placing posters or promotional material on public or
private property without permission.

It shall be unlawful for any
person to erect, install, attach or paint, or cause to be erected, installed,
attached or painted, election posters or signs upon public or private
property, real or personal, in the state of Idaho, without permission from the
owner or occupant of such property, and it shall be unlawful for any person
to place or leave any literature or other political, promotional or sales
materials upon public or private property, real or personal, in the state of
Idaho when the owner or occupant of such property, by a sign conspicuously
posted on the property, or by other written or audio communication to such
person, has forbidden the placing or leaving of literature or other political,
promotional or sales material upon that property. Provided, however, that
the granting of such permission by any public utility company on behalf of
any candidate for public office shall constitute the granting of like permis-
sion by such public utility company to all other candidates for the same
public office. Any violation of this section shall be a misdemeanor. [I.C.,
18-7029, as added by 1972, ch.

336, 1, p. 844; am. 1994, ch. 167, 8, p.
374.]
comprised S.L. 1961, ch. 196, 1, p. 303 was words as the section prior to its repeal,
repealed by S.L. 1971, ch. 143, 5, effective Section 7 of S.L. 1994, ch. 167 is compiled
January 1, 1972, and the present section as
18-6718.
18-7030. Violation of preceding section a misdemeanor. [Re-
pealed.]
which comprised I.C., 18-7030, as added by prised S.L. 1961, ch. 196, 2, p. 303 was
1972, ch. 336, 1, p. 844, was repealed by repealed by S.L. 1971, ch. 143, 5, effective
S.L. 1994, ch. 167, 1, effective July 1, 1994. January 1, 1972.
18-7031. Placing debris on public or private property a misde-
meanor.

It shall constitute a misdemeanor for any person, natural or
artificial, to deposit upon any public or private property within this state
any debris, paper, litter, glass bottles, glass, nails, tacks, hooks, cans, barbed
wire, boards, trash, garbage, lighted material or other waste substances on
any place not authorized by any county, city, village or the owner of such
property, and is punishable by imprisonment in a county jail not exceeding
six (6) months, or by a fine not exceeding three hundred dollars
($300), or
both. Additionally, a peace officer or state fish and game personnel super-
vised public service of not less than eight (8) hours and not more than forty
(40) hours may be imposed to clean up and to properly dispose of debris from
public property, or from private property with the written consent of the
private property owner, as ordered by the court. [I.C.,

18-7031, as added
by 1972, ch. 336, 1, p. 844; am. 1994, ch. 119, 1, p. 269.]
comprised S.L. 1963, ch. 220, 1, p. 629 was Cross ref. Penalty for misdemeanor not
repealed by S.L. 1971, ch. 143, 5, effective otherwise provided,

18-113.
January 1, 1972, and the present section Sec. to sec. ref. This section is referred to
added by S.L. 1972, ch. 336, 1 in the same in
36-1301.
18-7032. Tampering with parking meters, coin telephones or
vending machines

Possession of keys.

Any person who without
lawful authority, wilfully and wrongfully, opens, removes or damages any
parking meter, coin telephone or other vending machine dispensing goods or
services, or a part thereof; or possesses a key or device specifically designed
to open or break any parking meter, coin telephone or other vending
machine dispensing goods or services; or possesses a drawing, print or mold
of a key or device specifically designed to open or break any parking meter,
coin telephone or other vending machine dispensing goods or services, shall
be guilty of a misdemeanor. [I.C.,
18-7032, as added by 1972, ch. 381,
15, p. 1102.]
Compiler's notes. A former section, which Cross ref. Punishment for misdemeanor
comprised S.L. 1971, ch. 74, 1, p. 169 was when not provided,
18-113.
effective
Collateral References. Criminal prosecu-
January
1, 1972, and the present section
tion based upon breaking into or taking
added by S.L. 1972, ch. 381,
15 in the same
money or goods from vending machine or
other coin-operated machine. 45 A.L.R.3d
Sections 14 and 16 of S.L. 1972, ch. 381, are
^86
compiled as

18-6409 and 19-2601, respec-
tively.
18-7033. Use of unauthorized vehicles on airports.
It shall be a
misdemeanor offense for any unauthorized vehicle to drive upon, cross or
traverse any public or public use airport without the consent of the owner or
his designated representative. The owner, operator or lessee or any of them
guilty of operating a vehicle upon airport landing surfaces shall be liable for
damage caused to the airport surfaces and for any injuries or damages to
persons or property resulting from such damage. The operator, owner or
lessee of an unauthorized vehicle involved in a collision with an aircraft
while operating upon a public or public use airport shall be held liable for
damages to persons or property, both the owner and lessee shall be thus
liable, and may be sued jointly, or either or both of them may be sued
separately. [I.C.,
18-7033, as added by 1974, ch.
81, 1, p. 1171.]
Compiler's notes. Section 2 of S.L. 1974, Cross ref. Penalty for misdemeanor when
ch. 81 declared an emergency. Approved not specified,
18-113.
March 21, 1974.
18-7034. Unlawful entry a misdemeanor.

Every person, except
under landlord-tenant relationship, who enters any dwelling house, apart-
ment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or
other building, tent, vessel, closed vehicle, closed trailer, airplane, railroad
car or outbuilding without the consent of the owner of such property or his
agent or any person in lawful possession thereof, is guilty of a misdemeanor.
[I.C.,
1, p.
673.]
18-7035. Damaging caves or caverns unlawful

Penalty.

It
shall be unlawful for any person, without prior permission of the federal,
state or private landowner, to willfully or knowingly break, break off, crack,
carve upon, write or otherwise mark upon, or in any manner destroy,
multilate [mutilate], injure, deface, remove, displace, mar or harm any
natural material found in any cave or cavern, such as stalactites, stalag-
mites, helictites, anthodites, gypsum flowers or needles, flowstone, draper-
ies, columns, tufa dams, clay or mud formations or concretions, or other
similar crystalline mineral formations or otherwise; to kill, harm or in any
manner or degree disturb any plant or animal life found therein; to
otherwise disturb or alter the natural conditions of such cave or cavern
through the disposal therein of any solid or liquid materials such as refuse,
food, containers or fuel of any nature, whether or not malice is intended; to
disturb, excavate, remove, displace, mar or harm any archaeological arti-
facts found within a cave or cavern including petroglyphs, projectile points,
human remains, rock or wood carvings or otherwise, pottery, basketry or
any handwoven articles of any nature, or any pieces, fragments or parts of
any such articles; or to break, force, tamper with, remove of [or] otherwise
disturb a lock, gate, door, or other structure or obstruction designed to
prevent entrance to a cave or cavern, without the permission of the owner
thereof, whether or not entrance is gained. For purposes of this section,
"cave" means any natural geologically formed void or cavity beneath the
surface of the earth, not including any mine, tunnel, aqueduct or other
manmade excavation, which is large enough to permit a person to enter. Any
person violating the provisions of this section shall be guilty of a misde-
meanor. [I.C.,

18-7035, as added by 1982, ch. 283, 1, p. 717.]
"mutilate" and "or" in the first sentence were
inserted by the compiler.
18-7036. Injury by graffiti.
No person shall purposely or knowingly

vandalize, deface or otherwise damage the property of another by painting,
writing, drawing, or otherwise inscribing thereon in any fashion that which
is commonly known as graffiti. Graffiti includes any form of painting,
writing, or inscription regardless of the content or the nature of the
materials used which is applied to any public or private surface without the
consent of the owner of the property. Every person who is convicted of a
violation of the provisions of this section is guilty of a misdemeanor. [I.C.,
18-7036, as added by 1987, ch. 274, 1, p. 567.]

18-7037. Unauthorized release of certain animals, birds or
aquatic species
Penalties.

(1) Any person who without expressed
permission from the owner or agent releases an animal, a bird, or an aquatic
species which has been lawfully confined for agriculture, science, research,
commerce, public propagation, protective custody, or education is liable:
(a) to the owner or agent exercising possession of the animal, bird or aquatic
species for damages and replacement costs, including the costs of restoring
the animal, bird, or aquatic species to confinement and to its health
condition prior to release; and (b) for damage to personal and real property
caused by the release of the animal, bird or aquatic species. If the release
causes the failure of an experiment, the person is liable for all costs of
repeating the experiment, including replacement of the animal, bird or
aquatic species.
(2) Any person who intentionally and without permission releases an
animal, a bird, or an aquatic species which has been lawfully confined for
agriculture, science, research, commerce, public propagation, protective
custody, or education is guilty of a misdemeanor. [I.C.,
18-7037, as added
by 1990, ch.
38, 1, p. 58.]
Compiler's notes. Both S.L. 1990, ch. 38,
18-7037. Since
18-7037 as enacted by ch.
1, approved March 7. 1990, effective July 1, 38, 1 was approved first it was compiled as
1990 and S.L. 1990, ch. 126, 1, approved
18-7037 and the
18-7037 as enacted by
March 23, 1990, effective July 1, 1990, pur- ch. 126, 1 was compiled as

[18-7038]
ported to enact a new section of chapter 70,
18-7037 and was subsequently amended and
title 18 of the Idaho Code, designated as redesignated as
18-7038.
18-7038. Destroying livestock.
(1) Any person who shall, without

the permission of the owner:
(a) Wilfully and intentionally destroy; or
(b) Destroy and remove the body or any body parts of any livestock with
a value as set forth in subsection (1Kb) of section 18-2407, Idaho Code,
shall be guilty of a felony.
(2) If the value of the livestock is less than that set forth in subsection
(l)(b) of section 18-2407, Idaho Code, a violation of the provisions of this
section shall be a misdemeanor.
(3) The provisions of this section shall not apply to any peace officer,
veterinarian or officially designated animal control officer who, in the
discharge of his official duties is called upon the scene of injured livestock
and cannot contact the owner or caretaker of the injured animal within
thirty (30) minutes, and he reasonably determines that the injured animal
is suffering to such a degree that humane destruction is warranted, and he
humanely destroys or causes the animal to be humanely destroyed. [I.C.,
[18-7038] 18-7037, as added by 1990, ch. 126, 1, p. 297; am. and redesig.
1991, ch. 102, 1, p. 229.]
Compiler's notes. Both S.L. 1990, ch. 38, ch. 126, 1 was compiled as

[18-7038]
1, approved March 7, 1990, effective July 1, 18-7037 and was subsequently amended and
1990 and S.L. 1990, ch. 126, 1, approved redesignated as
18-7038 [this section] by S.
March 23, 1990, effective July 1, 1990, pur-
L. 1991, ch. 101, 1.
ported to enact a new section of chapter 70,
This section was formerly compiled as
title 18 of the Idaho Code, designated as
[18-7038] 18-7037.
18-7037. Since

18-7037 as enacted by ch.
38, 1
was approved first it was compiled as
25-1904 and 3 is compiled as

25-1910.
18-7037 and the

18-7037 as enacted by
F
18-7039. Killing and otherwise mistreating police dogs, police
horses, search and rescue dogs and accelerant detection dogs.

(1) Definitions:
(a) "Police dog" shall include:
(i) "Bomb detection dog"' means a dog trained to locate bombs or
explosives by scent;
(ii) "Narcotic detection dog" means a dog trained to locate narcotics by
scent;
(iii) "Patrol dog" means a dog trained to protect a peace officer and to
apprehend a person;
(iv) "Tracking dog" means a dog trained to track and find a missing
person, escaped inmate or fleeing felon.
(b) "Police horse" means any horse which is owned, or the service ofwhich
is employed, by a law enforcement agency for the principal purpose of
aiding in detection of criminal activity, enforcement of laws and appre-
hension of offenders.
(c) "Search and rescue dog" means a dog which is trained to locate lost or
missing persons, victims of natural or man-made disasters, and human
bodies.
(d) "Accelerant detection dog" means a dog which is used exclusively for
accelerant detection, commonly referred to as arson canines.
(2) The provisions of this section shall apply to police dogs and police
horses used by peace officers, including any used by a corrections officer in
the performance of the officer's duties, and to search and rescue dogs and
accelerant detection dogs used by peace officers or certified handlers under
the supervision of a peace officer. The provisions of this section shall apply
when the animals are on duty and when not on duty.
(3) Any person who willfully and maliciously and with no legal justifica-
tion, and with intent to inflict such injury or death, personally causes the
death, destruction, or serious physical injury including bone fracture, loss or
impairment of function of any bodily organ, wounds requiring extensive
suturing, or serious crippling, of any police dog, police horse, search and
rescue dog or accelerant detection dog, shall be guilty of a felony under this
section and shall be punished by imprisonment in the state penitentiary for
a period not to exceed five
(5) years, or by a fine not to exceed ten thousand
dollars
(4) Any person who willfully, maliciously and with no legal justification,
throws, hurls or projects at a police dog, police horse or search and rescue
dog, any rock, object or other substance which is used in such a manner as
to be capable of producing injury and likely to produce injury or kicks,
strikes, beats, or torments any police dog, police horse or search and rescue
dog is guilty of a misdemeanor and shall be punished by imprisonment for
not more than one (1)
year or by a fine not exceeding one thousand dollars
(5)
Any person who willfully and maliciously and with no legal justifica-
tion, interferes with or obstructs any police dog, police horse or search and
rescue dog being used by any peace officer in the discharge of the officer's
duties by teasing, agitating, harassing such animals, or who causes another
person or persons, animal or animals, to do likewise, is guilty of a
misdemeanbr and shall be punished by imprisonment for not more than one
(1)
year or by a fine not exceeding one thousand dollars ($1,000), or by both
(6)
In any case in which a defendant is convicted of a violation of the
provisions of this section, the defendant shall be ordered to make restitution
to the agency owning the animal and employing the peace officer for any
veterinary bills, replacement costs of the animal if it is disabled or killed,
and the salary of the peace officer for the period of time his or her services
are lost to the agency.
(7) The provisions of this subsection do not apply to peace officers or
veterinarians who terminate the life of such a police dog, police horse or
search and rescue dog for the purpose ofrelieving the police dog, police horse
or search and rescue dog of undue pain or suffering. [I.C.,

18-7039, as
added by 1994, ch. 157, 1, p. 356.]
18-7040. Interference with agricultural research.

(1) A person
commits the crime of interference with agricultural research if the person
knowingly:
(a) Damages any property at an agricultural research facility with the
intent to damage or hinder agricultural research or experimentation;
(b) Obtains any property of an agricultural research facility with the
intent to damage or hinder agricultural research or experimentation;
(c) Obtains access to an agricultural research facility by misrepresenta-
tion with the intent to perform acts that would damage or hinder
agricultural research or experimentation;
(d) Enter an agricultural research facility with the intent to damage,
alter, duplicate or obtain unauthorized possession of records, data, mate-
rials, equipment or specimens related to agricultural research or experi-
mentation;
(e) Without the authorization of the agricultural research facility, obtains
or exercises control over records, data, materials, equipment or specimens
of the agricultural research facility with the intent to destroy or conceal
the records, data, materials, equipment or specimens; or
(f) Releases or steals an animal from, or causes the death, injury or loss
of an animal at an agricultural research facility.
(2) A person found guilty of committing the crime of interference with
agricultural research shall be guilty of a felony and shall be punished by a
term of imprisonment of not more than twenty (20) years or by a fine not in
excess often thousand dollars ($10,000), or by both such fine and impris-
onment.
(3)
For purposes of this section:
(a) "Agricultural research facility" means any structure or land, whether
privately or publicly owned, leased or operated, that is being used for
agricultural research or experimentation.
(b) "Agricultural research or experimentation" means the lawful study,
analysis or testing of plants or animals, or the use of plants or animals to
conduct studies, analyses, testing or teaching, for the purpose of improv-
ing farming, forestry or animal husbandry.
(4) In addition to any other penalty imposed for a violation of this section,
the court shall require any person convicted, found guilty or who pleads
guilty to a violation of this section to make restitution to the victim of the
offense in accordance with the terms of section 19-5304, Idaho Code;
provided, that such award shall be in an amount equal to twice the value of
the crop, crop product, timber, timber product, livestock or equipment
damaged or destroyed. In ordering restitution under this section, the court
shall, in the determination of value, consider:
(a) The market value of the crop, crop product, timber, timber product,
livestock, or equipment that has been damaged or destroyed;
(b) Production, research, testing, replacement and development costs
directly related to the crop, crop product, timber, timber product, livestock
or equipment that has been damaged or destroyed;
(c) the costs of repeating an experiment, including the replacement of the
records, data, equipment, specimens, labor and materials, if acts consti-
tuting the violation cause the failure of an experiment in progress or
irreparably damage completed research or experimentation. [I.C.,
18-
7040, as added by 2002, ch. 263, 1, p. 785.]
18-7041. Damage to aquaculture operations.

(1) It is unlawful
for any person to knowingly transfer, damage, vandalize, poison, or know-
ingly attempt to transfer, damage, vandalize or poison the product or
facilities of a posted commercial aquaculture operation in Idaho, or to
knowingly release or knowingly allow another person to release any
poisonous or dangerous substance that comes in contact with any species in
production in an aquaculture operation and causes damage to either the
species in production or the aquaculture facility itself.
(2) Any person or persons violating any provision of this section when the
value of the damage to either the species in production or the aquaculture
facility itself is one thousand dollars ($1,000) or less shall be guilty of a
misdemeanor. Any person or persons violating any provisions of this section
when the value of the damage to either the species in production or the
aquaculture facility itself is in excess of one thousand dollars ($1,000) shall
be guilty of a felony and upon conviction thereof shall be punished by a term
585 WEIGHTS AND MEASURES 18-7206
ofimprisonment of not more than twenty (20) years or by a fine not in excess
often thousand dollars ($10,000), or by both such fine and imprisonment.
(3)
Nothing in this section shall be construed to limit the court's power to
order restitution equal to the extent of the damage suffered by the
aquaculture operation.
(4) Nothing in this section shall be construed to limit an aquaculture
operation from proceeding in a civil action to seek any lawful civil remedy.
[I.C.,
18-7041, as added by 2004, ch. 143, 1, p. 473.]
CHAPTER 71
VAGRANCY
SECTION.
18-7101. Vagrancy defined
Penalties. [Repealed.]
Compiler's notes. Former 18-7101 S.L. 1885, p. 200, 1; R.S., R.C., & C.L.,
18-7101 as added by
7208; C.S., 8587; I.C.A., 17-4601, was
S.L. 1972, ch. 336, 1 was repealed by S.L. repealed by S.L. 1971, ch. 143, 5, effective
January 1, 1972.
Another former
CHAPTER 72
WEIGHTS AND MEASURES
SECTION. SECTION.
18-7201
18-7205. [Repealed.] 18-7207. Alteration of ore values.

18-7206. Use of fraudulent scales for ore.
18-7201
18-7205. False weights
Use of and defrauding by false

weights and measures

Stamping false weight on
package
Sale by ton or pound. [Repealed.]

Compiler's notes. These sections, which offenses committed, liabilities incurred, and
comprised Cr. & P. 1864, 139; R.S., R.C., & claims that existed thereunder the sections
C.L.,
7105
7109; C.S.,
8491
8495; remained in full force and effect.

I.C.A.,

17-3920
17-3924, were repealed The present law concerning weights and
by S.L. 1969, ch. 43, 36, p. 108, insofar as measures is compiled in

71-108 71-120,
they might operate in the future; but as to 71-229 71-243 and 71-303 71-308.
18-7206. Use of fraudulent scales for ore.
Every person, associa-

tion or corporation, or the agent of any person, association or corporation,
engaged in the business of milling, sampling, concentrating, reducing,
shipping or purchasing ores, who keeps or uses any false or fraudulent
scales or weights for weighing ores, who keeps or uses any false or
fraudulent assay scales or weights for ascertaining the assay value of ore,
knowing them to be false, is guilty of a misdemeanor, and is punishable by
a fine in any sum not exceeding $1000, or by imprisonment in the county jail
for a term of not more than one year nor less than one month, or by both
18-7206, as added by 1972, ch. 336,
1, p.
844.]
comprised S.L. 1885, p. 30, 1; R.S., R.C., & Section 14 of S.L. 1972, ch. 336 declared an
C.L., 7110; C.S., 8496; I.C.A.,
17-3925 emergency and provided that the act should
was repealed by S.L. 1971, ch. 143, 5, take effect on and after April 1, 1972.
effective January 1, 1972, and the present Collateral References. 94 C.J.S., Weights
section added by S.L. 1972, ch. 336, 1 in the and Measures, 4.
18-7207. Alteration of ore values.

Every person, corporation or
association, or the agent of any person, corporation or association, engaged
in milling, sampling, concentrating, reducing, shipping or purchasing ores
in this state, who in any manner knowingly alters or changes the true value
of any ores delivered to him or them, so as to deprive the seller of the result
of the correct value of the same, or who issues any bill of sale or certificate
of purchase that does not exactly and truthfully state the actual weight,
assay value and total amount paid for any lot or lots of ore purchased, or
who, by any secret understanding or agreement with another, issues a bill
of sale or certificate of purchase that does not exactly and truthfully state
the actual weight, assay value and total amount paid for any lot or lots of ore
purchased, or who, by any secret understanding or agreement with another,
issues a bill of sale or certificate of purchase that does not truthfully and
correctly set forth the weight, assay value and total amount paid for any lot
or lots of ore purchased by him, is guilty of a misdemeanor, and shall be
punished as provided in the preceding section. [I.C.,

1972, ch.
336, 1, p. 844.]
C.L.,
7111; C.S.,
8497; I.C.A.,

17-3926
18-113.
CHAPTER 73
CIVIL RIGHTS
SECTION. SECTION.
18-7301. Freedom from discrimination con- 18-7302. Definitions.
stitutes a civil right. 18-7303. Denial of right to work or accommo-
18-7301A. Freedom of choice in treatment. dations a misdemeanor.
18-7301. Freedom from discrimination constitutes a civil right.
The right to be free from discrimination because of race, creed, color, sex,
or national origin is recognized as and declared to be a civil right. This right
shall include, but not be limited to:
(1) The right to obtain and hold employment without discrimination.
(2) The right to the full enjoyment of any of the accommodations, facilities
or privileges of any place of public resort, accommodation, assemblage or
amusement. [S.L. 1961, ch. 309, 1, p. 145; I.C.,

18-7301, as reenacted by
1972, ch.
336, 1, p. 844.]
587 CIVIL RIGHTS 18-7302
Cross ref. Commission on human rights,
powers and duties,

67-5901

5906,
67-
5909
5912.
Analysis
Construction.
Discrimination based on sex.
Construction.
Although this section merely classifies dis-
criminatory acts as misdemeanors under the
penal code, like
67-5901 of the Idaho Hu-
man Rights Act, it also aims to protect against
discrimination due to race, color, creed or
religion, sex, national origin in connection
with employment, public accommodations, or
education; however, unlike 67-5901, this
section provides no private cause of action.
Foster v. Shore Club Lodge, Inc., 127 Idaho
921, 908 P.2d 1228 (1995).
Discrimination Based on Sex.
The Idaho Civil Rights Act was not violated
by
15-314 (repealed) preferring males to
females in the appointment of administrators
of estates; the act was inapplicable thereto,
and the legislature could not have intended
by the act to prohibit all discrimination based
on sex. Reed v. Reed, 93 Idaho 511, 465 P.2d
635 (1970). However, this decision was over-
ruled in 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed.
2d 225 (1971), on other grounds, without any
reference to the Idaho Civil Rights Act.
Discrimination based upon the differences
between men and women which is not wholly
irrational or arbitrary and which is utilized to
accomplish a legitimate objective was not
condemned by the fawner Idaho Civil Rights
Act. Reed v. Reed, 93 Idaho 511, 465 P.2d 635
(1970). However, this decision was overruled
in 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225
(1971), on other grounds, without any refer-
ence to the Idaho Civil Rights Act.
Although the equal protection clause, 14th
Amendment to the United States Constitu-
tion does not deny to states the power to treat
different classes of persons in different ways,
mandatory provision of Idaho Probate Code
(
15-314, repealed) giving men preference
over women when persons of same class of
entitlement apply for appointment as admin-
istrator of decedent's estate affords different
treatment to persons placed by statute in
different classes on basis of criteria wholly
unrelated to the objective of the statute and
denies to female applicant the right to equal
protection of the law. Reed v. Reed, 404 U.S.
71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).
Civil Rights, 1 et seq.
14, 14A C.J.S., Civil Rights, 1 et seq.
Exclusion of person (for reason other than
color or race) from place of public entertain-
ment or amusement. 1 A.L.R.2d 1165.
Race or religious beliefs as permissible con-
sideration in choosing tenants or purchasers
of real estate. 14 A.L.R.2d 153.
Racial segregation. 38 A.L.R.2d 1188.
Fair employment statutes designed to elim-
inate racial, religious, or national origin dis-
crimination in private employment. 44
A.L.R.2d 1138; 37 A.L.R.5th 349.
Businesses or establishments falling within
state civil rights statute provisions prohibit-
ing discrimination. 87 A.L.R.2d 120.
Discrimination in provision of municipal
services or facilities as civil rights violation.
51 A.L.R.3d 950.
Application of state law to sex discrimina-
tion in employment advertising. 66 A.L.R.3d
1237.
tion in sports. 66 A.L.R.3d 1262.
Trailer park as place of public accommoda-
tion within meaning of state civil rights stat-
ute. 70 A.L.R.3d 1142.
tion in employment. 87 A.L.R.3d 93.
Judicial construction and application of
state legislation prohibiting religious discrim-
ination in employment. 37 A.L.R.5th 349.
What constitutes employment discrimina-
tion by public entity in violation ofAmericans
with Disabilities Act (ADA), 42 U.S.C.A.
12132. 164 A.L.R. Fed. 433.
18-7301A. Freedom of choice in treatment.

The right of any
person to use amygdalin (laetrile) as an adjunct in the treatment of any
physical condition of the human body shall not be denied, interfered with or
obstructed by any other person. [I.C.,
18-7301A, as added by 1978, ch. 129,
1, p. 290.]
Compiler's notes. The word enclosed in
parentheses so appeared in the law as en-
acted.

Terms used in this chapter shall have the
following definitions:
(a) "Every person" shall be construed to include any owner, lessee,
proprietor, manager, agent or employee whether one or more natural
persons, partnerships, associations, organizations, corporations, coopera-
tives, legal representatives, trustees, receivers, of this state and its political
subdivisions, boards and commissions, engaged in or exercising control over
the operation of any place of public resort, accommodation, assemblage or
amusement.
(b) "Deny" is hereby denned to include any act which directly or indi-
rectly, or by subterfuge, by a person or his agent or employee, results or is
intended or calculated to result in whole or in part in any discrimination,
distinction, restriction, or unequal treatment or the requiring of any person
to pay a larger sum than the uniform rates charged other persons, or the
refusing or withholding from any person the admission, patronage, custom,
presence, frequenting, dwelling, staying, or lodging in any place of public
resort, accommodation, assemblage, or amusement except for conditions
and limitations established by law and applicable alike to all persons,
regardless of race, creed or color.
(c) "Full enjoyment of" shall be construed to include the right to purchase
any service, commodity or article of personal property offered or sold on, or
by, any establishment to the public, and the admission of any person to
accommodations, advantages, facilities or privileges of any place of public
resort, accommodation, assemblage or amusement, without acts directly or
indirectly causing persons of any particular race, creed or color, to be treated
as not welcome, accepted, desired or solicited.
(d) "National origin" includes "ancestry."
(e) "Any place of public resort, accommodation, assemblage or amuse-
ment" is hereby defined to include, but not to be limited to any public place,
licensed or unlicensed, kept for gain, hire or reward, or where charges are
made for admission, service, occupancy or use of any property or facilities,
whether conducted for the entertainment, housing or lodging of transient
guests, or for the benefit, use or accommodation of those seeking health,
recreation or rest, or for the sale of goods and merchandise, or for the
rendering of personal services, or for public conveyance or transportation on
land, water or in the air, including the stations and terminals thereof and
the garaging of vehicles, or where food or beverages of any kind are sold for
consumption on the premises, or where public amusement, entertainment,
sports or recreation of any kind is offered with or without charge, or where
medical service or care is made available, or where the public gathers,
congregates, or assembles for amusement, recreation or public purposes, or
public halls, public elevators and public washrooms of buildings and
structures occupied by two or more tenants, or by the owner and one or more
tenants, or any public library or any educational institution wholly or
partially supported by public funds, or schools of special instruction, or
nursery schools, or day care centers or children's camps; nothing herein
contained shall be construed to include, or apply to, any institute, bona fide
club, or place of accommodation, which is by its nature distinctly private
589 BAIL JUMPING 18-7401
provided that where public use is permitted that use shall be covered by this
section; nor shall anything herein contained apply to any educational
facility operated or maintained by a bona fide religious or sectarian
institution; and the right of a natural parent in loco parentis to direct the
education and upbringing of a child under his control is hereby affirmed.
[S.L. 1961, ch. 309, 2, p. 573; I.C.,
18-7302, as reenacted by 1972, ch.
336, 1, p. 844.]
18-7303. Denial of right to work or accommodations a misde-
meanor.
Every person shall be guilty of a misdemeanor who denies to

any other person because of race, creed, color, sex, or national origin the
right to work: (a) by refusing to hire, (b) by discharging, (c) by barring from
employment, or (d) by discriminating against such person in compensation
or in other terms or conditions of employment; or who denies to any other
person because of race, creed, color, sex, or national origin, the full
enjoyment of any of the accommodations, advantages, facilities or privileges
of any place of public resort, accommodation, assemblage, or amusement,
provided, however, that denial of the right to work on the basis of sex shall
be permissible in situations where sex is a bona fide occupational qualifi-
cation reasonably necessary to the normal operation of the business. [S.L.
1961, ch. 309, 3, p. 573; am. S.L. 1967, ch.
64, 2, p. 145; I.C.,
18-7303,
as reenacted by 1972, ch.
336, 1, p. 844.]
Compiler's notes. Section 2 of S.L. 1972, of sex, and to effect this policy provided state
19-107. agencies with authority to seek to enjoin
discriminatory practices, and provided ag-
Construction.
grieved individuals with the right to seek
The enactment of

44-1702, 67-5909 and
reinstatement) restoration of wages and even
this section by the legislature expressed a
j tj iJ m_ *i n i_ a
>
t>
t
,. . ,
&
, , ii^j-
damages. Idaho Trailer Coach Ass n v. Brown,
clear, unambiguous intent to prohibit discrim-
ination in employment practices on the basis
95 Idaho 910, 523 P.2d 42 (1974).
CHAPTER 74
BAIL JUMPING
SECTION.
18-7401. Bail jumping
Default in required
appearance.
18-7401. Bail jumping

Default in required appearance.

A
person set at liberty by court order, with or without bail, upon condition that
he will subsequently appear at a specified time and place, commits a
misdemeanor if, without lawful excuse, he fails to appear at that time and
place. The offense constitutes a felony where the required appearance was
to answer to a charge of felony, or for disposition of any such charge, and the
actor took flight or went into hiding to avoid apprehension, trial or
punishment. This section does not apply to obligations to appear incident to
release under suspended sentence or on probation or parole. [1972, ch. 381,
18, p. 1102.1
Compiler's notes. Section 16 of S.L. 1972, failed to state facts sufficient to confer juris-
ch. 381 is compiled herein as
19-2601 and diction upon the district court of such county;
19 was repealed.
therefore, the judgment of conviction as to
two counts of felony bail jumping must be
18-113.
reversed and the information was dismissed
Cited in: Manning v. Foster, 224 F.3d 1129
for want of jurisdiction. State v. Pyne, 105
(9th Cir. 2000).
Idaho 427, 670 P2d 528 (1983).
Collateral References. Failure to appear,
Analysis
and the like, resulting in forfeiture or condi-
tional forfeiture of bail, as affecting right to
Information,
second admission to bail and same non-capi-
Insufficient.
tal criminai case. 29 A.L.R.2d 945.
Information.
Contempt, bail jumping after conviction,
failure to surrender or to appear for sentenc-
Insufficient. ing and the like as. 34 A.L.R.2d 1100.

Without allegations that the failures to State statutes making default on bail a
appear occurred in the county, an information separate criminal offense. 63 A.L.R.4th 1064.
CHAPTER 75
AIRCRAFT HIJACKING
SECTION. SECTION.
18-7501. Aircraft hijacking denned

Pen- 18-7504. Threats made against airline pas-
alty sengers, other persons, com-
18-7502. Assault with intent to commit air- mercial airline companies, or
craft hijacking denned
Pen-
aircraft
Penalty.
alty
18-7505. Indictment and trial jurisdiction.
18-7503. Weapons aboard aircraft
Penalty.
18-7501. Aircraft hijacking defined

Penalty.

The offense of
aircraft hijacking is denned as the seizure or exercise of control, by force or
violence or threat of force or violence, of any aircraft within the airspace
jurisdiction of the state of Idaho. Any person convicted of the offense of
aircraft hijacking shall suffer life imprisonment. [I.C.,

18-7501, as added
by 1973, ch. 267, 1, p. 561.]
Cited in: Hays v. State, 113 Idaho 736, 747 61 Am. Jur. 2d, Piracy,
5, 6.
P.2d 758 (Ct. App. 1987).
2A C.J.S., Aeronautics and Aerospace,
273, 274.
Aviation, 135, 136.
18-7502. Assault with intent to commit aircraft hijacking defined
Penalty.

The offense of assault with intent to commit aircraft
hijacking is defined as an intimidation, threat, assault or battery toward
any flight crew member, attendant or employee, as to lessen the ability of
such member, attendant, or employee to perform his duties, with the intent
to commit aircraft hijacking as defined in section 18-7501 of this act. Any
person convicted of the offense of assault with intent to commit aircraft
hijacking shall suffer life imprisonment. [I.C.,

18-7502, as added by 1973,
ch. 267, 1, p. 561.]
refer to S.L. 1973, ch. 267 compiled herein as
18-7501 18-7505.
591 AIRCRAFT HIJACKING 18-7503
18-7503. Weapons aboard aircraft

Penalty.

(1) No person,
while aboard an airplane being operated by a holder of a certificate issued by
the federal government or the state of Idaho, shall carry on or about his
person a deadly or dangerous weapon, either concealed or unconcealed; nor
shall any person enter or attempt to enter any sterile area of an airport,
which is a holder of a certificate issued by the federal government or the
state of Idaho, while knowingly carrying on or about his person, or in a bag,
case, pouch or other container, a deadly or dangerous weapon, either
concealed or unconcealed. Any person who pleads guilty or is found guilty of
this subsection shall be guilty of a misdemeanor. As used in this section
"sterile area" shall mean that area of a certificated airport to which access
is controlled as required by the federal aviation administration regulations.
(2) No person, while aboard an airplane being operated by a holder of a
certificate issued by the federal government or the state of Idaho, shall
willfully and intentionally conceal on or about his person, or in a bag, case,
pouch or other container any deadly or dangerous weapon; nor shall any
person enter or attempt to enter any sterile area of an airport which is a
holder of a certificate issued by the federal government or the state of Idaho,
while willfully and intentionally concealing on or about his person, or in a
bag, case, pouch or other container any deadly or dangerous weapon with
the intent to avoid its detection by security measures at the sterile area.
(3)
This section does not apply to:
(a) Law enforcement officials of a city, county or state, or of the United
States, who are authorized to carry arms and who have fulfilled the
requirements of federal aviation administration regulations 107 and 108
in effect on January 1, 2001, and as may be amended from time to time;
(b) Crew members and other persons authorized by the certificate holder
to carry arms;
,
(c) Parties chartering an aircraft for the purpose of hunting when a
weapon is properly stored and/or in the custody of the pilot in command of
the aircraft; or
(d) An aircraft owner and his invited guests when the weapon is properly
stored and/or in the custody of the pilot of the aircraft.
(4) Any person convicted of violating the provisions of subsection (2) of
this section shall be guilty of a felony, punishable by imprisonment in the
state prison not exceeding five
(5)
years or by fine not exceeding five
thousand dollars ($5,000) or by both such fine and imprisonment.
(5) Any person presenting a ticket to board any commercial or charter
aircraft shall by such presentation consent to a search or screening of his
person or personal belongings by the aircraft company boarding him, by
personnel of the airport from which the flight is originating, persons
authorized by federal aviation administration regulations or by law enforce-
ment officials. In case said person shall refuse to submit to a search or
screening of his person or personal belongings by said aircraft company
personnel, airport personnel, federal aviation administration regulation
authorized personnel, federal employees or law enforcement officials the
person refusing shall be denied the right to board said commercial or charter
aircraft.
(6) Any person entering or attempting to enter into the sterile area of an
airport shall be presumed to have fully consented to a search of their person,
clothing and belongings including, but not limited to, any bags, cases,
pouches or other containers with which they are associated. Such full
consent shall remain until the aircraft shall depart from the airport.
(7) No person in, near or attempting to enter a sterile area of a
certificated airport shall assault, obstruct or delay any aircraft company
personnel, airport personnel, federal aviation administration regulation
authorized personnel, federal employee or law enforcement official in the
performance of their assigned duties within the airport.
(8)
No action, either at law or equity, shall be brought against any
commercial or charter airline company or airport operating in this state for
the refusal of said company or airport to permit a person to board said
aircraft where said person has refused to be searched as set out in
subsections (5) and (6) of this section. [I.C.,
18-7503, as added by 1973, ch.
267, 1, p. 561; am. 2002, ch. 221, 1, p. 621.]
ch. 221 declared an emergency. Approved
March 22, 2002.
18-7504. Threats made against airline passengers, other persons,
commercial airline companies, or aircraft

Penalty.

(1) Every
person who knowingly and wilfully threatens the safety and well-being of
any passenger, flight crew member or flight attendant, aboard any aircraft
by making telephone, verbal, or written threats against any airline or
aircraft within the airspace jurisdiction of the state of Idaho shall be guilty
of a felony.
(2) Any person who seizes, confines, or kidnaps another person against
his will or without authority of law, or who threatens the safety and
well-being of any person, with the intent to hold such person hostage or use
such person for the purpose of aircraft hijacking shall be guilty of a felony.
[I.C.,

1, p. 903.]
Compiler's notes. Section 2 of S.L. 1988, Cross ref. Punishment for felony not oth-
ch. 273 declared an emergency. Approved erwise provided,
18-112.
March 31, 1988.
18-7505. Indictment and trial jurisdiction.
Any offense occurring

aboard an aircraft is declared to be a continuing offense from the point of
beginning to the point of termination of the flight, and jurisdiction to
prosecute a person accused of such an offense shall be in any county of Idaho
over which or in which the aircraft is being operated. [I.C.,
18-7505, as
ch. 267 declared an emergency. Approved emergency. Approved March 31, 1988.
March 17, 1973.
593 TAPE PIRACY ACT 18-7603
CHAPTER 76
TAPE PIRACY ACT
SECTION. SECTION.
18-7601. Short title. 18-7605. Confiscation of equipment.
18-7603. Unlawful transfer, sale, distribu-
18-7607. Act not an exclusive remedy.
tion, advertisement.
18-7604. Penalties.

This act shall be known as the "Idaho Tape
Piracy Act of
1976."
[I.C.,
18-7601, as added by 1976, ch. 112, 1, p. 440.]
contained herein refer to
18-7601
18-
7608.
As used in this chapter, the terms defined in

this section shall have the following meanings, unless the context clearly
indicates another meaning:
(1) "Person" means any individual, firm, partnership, corporation or
association of individuals.
(2) "Owner" means the person who owns the original fixation of sounds
embodied in the master phonograph record, master disc, master tape,
master film, or other device used for reproducing sounds on phonograph
records, discs, tapes, films, or other articles upon which sound is recorded,
and from which transferred recorded sounds are directly derived. [I.C.,
18-7602, as added by 1976, ch. 112, 1, p. 440.]

18-7603. Unlawful transfer, sale, distribution, advertisement.

It shall be unlawful and punishable:
(1) For any person to knowingly, and without the consent of the owner,
transfer or cause to be transferred or recorded any sounds previously
recorded on a phonograph record, disc, wire, tape, film or other article on
which sounds are recorded with the intent to sell such articles, or cause
them to be sold for profit or used to promote the sale of any product.
(2) For any person to knowingly, or with reasonable grounds to know,
advertise, or offer for sale or resale, or sell or resell, distribute or possess for
such purposes, any article that has been produced in violation of the
provisions of subsection (1) of this section.
(3) For any person to advertise, or offer for sale or resale, or sell or resell,
or possess for such purposes, any phonograph record, disc, wire, tape, film or
other article on which sounds are recorded, unless the outside cover, box,
jacket or container clearly and conspicuously discloses the actual name and
address of the manufacturer thereof, and the name of the actual performer
or group. [I.C.,

18-7603, as added by 1976, ch. 112, 1, p. 440.]
Compiler's notes. As enacted the section Sec. to sec. ref. This section is referred to
heading of this section read "Unlawful trans- in
18-7605.
fer
Sale, distribution, advertisement."
18-7604. Penalties.

(1) Any person who violates subsection (1) of
section 18-7603, Idaho Code, is guilty of a felony and upon conviction may be
fined not more than ten thousand dollars
($10,000), or imprisoned for not
more than four (4) years, or both such fine and imprisonment. Each
recording of the original fixation of sounds without consent of the owner
thereof shall constitute a separate offense.
(2) Any person who violates subsection (2) or (3) of section 18-7603, Idaho
Code, is guilty of a misdemeanor and upon conviction may be fined not more
than one thousand dollars ($1,000) or imprisoned for not more than six (6)
months, or both such fine and imprisonment. [I.C.,

1976, ch. 112, 1, p. 440.]
18-7605. Confiscation of equipment.

Any article produced in
violation of section 18-7603, Idaho Code, and any equipment used for such
purpose, shall be subject to confiscation and destruction by the appropriate
law enforcement agency. [I.C.,

18-7605, as added by 1976, ch. 112, 1, p.
440.]

The provisions of this act shall not apply to
any broadcaster, who, in connection with or as part of a radio, television, or
cable broadcast transmission, or for the purpose of archival preservation,
transfers any such sounds recorded on a sound recording. [I.C.,

18-7606,
as added by 1976, ch. 112, 1, p. 440.]
Compiler's notes. For words "this act",
see Compiler's notes,
18-7601.
18-7607. Act not an exclusive remedy.

This act shall not be
deemed an exclusive remedy for persons affected or injured by acts herein
proscribed. [I.C.,

18-7607, as added by 1976, ch. 112, 1, p. 440.]
Compiler's notes. For words "this act",
see Compiler's notes,
18-7601.
If any provisions of this act, or the application

thereofto any person or circumstances, is held invalid as unconstitutional or
ineffective for any reason, such invalidity shall not affect other provisions or
applications of the act, and to this end the provisions of this [act] are
severable. [I.C.,

18-7608, as added by 1976, ch. 112, 1, p. 440.]
Compiler's notes. The bracketed word For words "this act", see Compiler's notes,
"act" was inserted by the compiler.
18-7601.
595 MOTION PICTURE FAIR BIDDING ACT 18-7704
CHAPTER 77
MOTION PICTURE FAIR BIDDING ACT
SECTION. SECTION.
18-7701. Short title. 18-7706. Prohibition on requirement of ad-
18-7702. Definitions. vance payment as security.
18-7703. Prohibition on blind bidding.
18-7707. Unenforceability of waiver provi-
18-7704. Prohibition on minimum fee guar-
sion.
antee-
18-7708. Penalty.
18-7705. Availability of information on trade
screening.
This act shall be known and may be cited as the

"Motion Picture Fair Bidding Act." [1979, ch. 119, 1, p. 368.]
18-
7701
18-7708.
As used in this act:

(1) "Blind bidding" means bidding, negotiating, offering terms, making an
invitation to bid, or agreeing to terms for the purpose of entering into a
license agreement prior to a trade screening of the motion picture that is the
subject of the agreement.
(2) "Distributor" means any person engaged in the business of renting,
selling or licensing motion pictures to exhibitors.
(3) "Exhibitor" means any person engaged in the business of operating a
theatre in this state.
(4) "License agreement" means any contract between a distributor and an
exhibitor for the exhibition of a motion picture by the exhibitor of this state.
(5) "Theatre" means any establishment in which motion pictures are
exhibited regularly to the public for a charge.
(6) "Trade screening" means the showing of a motion picture by a
distributor, and such showing shall be open to any exhibitor interested in
exhibiting the motion picture. [1979, ch. 119, 2, p. 368.]
Compiler's notes. For words "this act," see
compiler's notes,
18-7701.
18-7703. Prohibition on blind bidding.

No distributor shall en-
gage in blind bidding. [1979, ch. 119, 3, p. 368.]
18-7704. Prohibition on minimum fee guarantee.
(1) It shall be
unlawful for any license agreement which provides for a fee or other
payment to the distributor based in whole or in part on the attendance or
the box office receipts at a theatre within the state to contain or be
conditioned upon a guarantee of a minimum payment to the distributor.
(2) Any provision, agreement or understanding which provides for such a
guarantee shall be void, and any purported waiver of the prohibition in
subsection (1) of section 4 [this section] of this act shall be void and
unenforceable. [1979, ch. 119, 4, p. 368.]
"this section" were inserted by the compiler.
18-7705. Availability of information on trade screening.
If bids
are solicited from exhibitors for the purpose of entering into a license
agreement, the bid shall include in the invitation to bid the date, time and
location of the trade screening of the motion picture that is the subject of the
invitation to bid. [1979, ch. 119, 5, p. 368.]
18-7706. Prohibition on requirement of advance payment as
security.

(1) It shall be unlawful for any license agreement for the
exhibition of a motion picture at a theatre within the state to contain or be
conditioned upon a provision, agreement or understanding that the exhib-
itor shall advance any funds prior to the exhibition of the picture as security
for the performance of the license agreement or to be applied to payments
under such agreement.
(2) Any provision, agreement or understanding which provides for such
an advance shall be void, and any purported waiver of the prohibition in
subsection (1) of section 6 [this section] of this act shall be void and
unenforceable. [1979, ch. 119, 6, p. 368.]
"this section" were inserted by the compiler.
18-7707. Unenforceability of waiver provision.
Any provision of
an invitation to bid or a license agreement that waives any of the prohibi-
tions of or fails to comply with this act is void and unenforceable. [1979, ch.
119, 7, p. 368.]
Compiler's notes. For words "this act," see
compiler's notes,
18-7701.
18-7708. Penalty.

It shall be unlawful for any person to willfully
violate any provision of this act. Any such violation shall constitute a
misdemeanor. [1979, ch. 119, 8, p. 368.]
Compiler's notes. For words "this act," see held invalid, the remainder of this act shall
compiler's notes,

18-7701. not be affected thereby."
Section 9 of S.L. 1979, ch. 119 read: "If any
Cross ref. Punishment for misdemeanor,
provision of this act, or the application of any
18-113.
provision to any person or circumstance is
CHAPTER 78
RACKETEERING ACT
SECTION. SECTION.
18-7801. Short title. 18-7803. Definitions. [Effective September 1,
18-7802. Purpose. 2004.]
18-7803. Definitions. [Effective until Septem- 18-7804. Prohibited activities
Penalties,
ber 1, 2004.] 18-7805. Racketeering
Civil remedies.
597 RACKETEERING ACT 18-7803
This act shall be known and may be cited as the

"Racketeering Act." [I.C.,
18-7801, as added by 1981, ch. 219, 1, p. 407.]
Compiler's notes. The words "this act" Validity, construction, and application of
refer to S.L. 1981, ch. 219, which is compiled Racketeer Influenced and Corrupt Organiza-
as
18-7801 18-7805.
tion Act, 18 U.S.C.A.
et seq.

Supreme
Collateral References. Criminal prosecu-
Court cases. 171 A.L.R. Fed. 1.
tions under state RICO statutes for engaging
in organized criminal activity. 89 A.L.R.5th
629.
18-7802. Purpose.

The purpose of this act is to eliminate the
infiltration and illegal acquisition of legitimate economic enterprise by
racketeering practices and to eliminate the use of legal and illegal enter-
prises to further criminal activities. [I.C.,

18-7802, as added by 1981, ch.
219, 1, p. 407.]
Compiler's notes. For sections in which
"this act" is compiled, see Compiler's notes to
18-7801.
18-7803. Definitions. [Effective until September 1, 2004.]

As
used in this chapter, (a) "Racketeering" means any act which is chargeable
or indictable under the following sections of the Idaho Code or which are
equivalent acts chargeable or indictable as equivalent crimes under the laws
of any other jurisdiction:
(1) Homicide (section 18-4001, Idaho Code);
(2) Robbery, burglary, theft, forgery, counterfeiting, and related crimes
(sections 18-1401, 18-1405, 18-2403, 18-2407, 18-3123, 18-3124, 18-3125,
18-3601, 18-3602, 18-3603, 18-3605, 18-3606, 18-3607, 18-3609, 18-3610,
18-3614, 18-3615, 18-4630, 18-6501 and 49-518, Idaho Code);
(3)
Kidnapping (section 18-4501, Idaho Code);
(4) Prostitution (sections 18-5601, 18-5602, 18-5603, 18-5604, 18-5605,
18-5606, 18-5608 and 18-5609, Idaho Code);
(5) Arson (sections 18-801, 18-802, 18-803, 18-804 and 18-805, Idaho
Code);
(6) Assault (sections 18-908 and 18-4015, Idaho Code);
(7) Lotteries and gambling (sections 18-3801, 18-3802, 18-3809, 18-4902,
18-4903, 18-4904, 18-4905, 18-4906 and 18-4908, Idaho Code);
(8) Indecency and obscenity (sections 18-1515, 18-1518, 18-4103,
18-
4103A, 18-4104, 18-4105, 18-4105A and 18-4107, Idaho Code);
(9) Poisoning (sections 18-4014 and 18-5501, Idaho Code);
(10) Fraudulent practices, false pretenses, insurance fraud, financial
transaction card crimes and fraud generally (sections 18-2403, 18-2706,
18-3002, 18-3101, 18-3124, 18-3125, 18-3126, 18-6713, 41-293, 41-294 and
41-1306, Idaho Code);
(11) Alcoholic beverages (sections 23-602, 23-606, 23-610, 23-703, 23-905,
23-914, 23-928, 23-934 and 23-938, Idaho Code);
(12) Cigarette taxes (sections 63-2505 and 63-2512(b), Idaho Code);
(13) Securities (sections 30-1403, 30-1403A, 30-1404, 30-1405, 30-1406,
30-1438 and 30-1439, Idaho Code);
(14) Horseracing (section 54-2512, Idaho Code);
(15) Interest and usurious practices (sections 28-45-401 and 28-45-402,
Idaho Code);
(16) Corporations (sections 18-1901, 18-1902, 18-1903, 18-1904, 18-1905,
18-1906 and 30-1510, Idaho Code);
(17) Perjury (sections 18-5401 and 18-5410, Idaho Code);
(18) Bribery and corrupt influence (sections 18-1352 and 18-1353, Idaho
Code);
(19) Controlled substances (sections 37-2732(a), (b), (c), (e) and (f),
37-2732B, 37-2734 and 37-2734B, Idaho Code);
(20) Motor vehicles (sections 49-228, 49-231, 49-232 and 49-518, Idaho
Code);
(21) Terrorism (section 18-8103, Idaho Code).
(b) "Person" means any individual or entity capable of holding a legal or
beneficial interest in property;
(c) "Enterprise" means any sole proprietorship, partnership, corporation,
business, labor union, association or other legal entity or any group of
individuals associated in fact although not a legal entity, and includes illicit
as well as licit entities; and
(d) "Pattern of racketeering activity" means engaging in at least two (2)
incidents of racketeering conduct that have the same or similar intents,
results, accomplices, victims or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated incidents,
provided at least one (1) of such incidents occurred after the effective date of
this act and that the last of such incidents occurred within five (5) years
after a prior incident of racketeering conduct. [I.C.,

1981, ch. 219, 1, p. 407; am. 1988, ch. 265, 562, p. 549; am. 1999, ch. 143,
3, p. 407; am. 2000, ch. 148, 4, p. 377; am. 2002, ch. 222, 5, p. 623; am.
2004, ch.
49, 3, p. 233.]
Compiler's notes. For this section effec- Enterprise.
tive as of September 1, 2004, see the following The language of subsection (c) of this sec-
section, also numbered
18-7803. tion explicitly rejects the proposition that the
Sections 561 and 563 of S.L. 1988, ch. 265
State must prove an absolute focus of intent
are compiled as
18-7011 and 18-8001. in order to prove that the participants shared
a common purpose in the pattern of racketeer-
as 37-2732B.
ing activity, by including sole proprietorships,
partnerships, corporations, businesses, labor
compiled as
18-4003 and 18-8102, respec-
unions, associations and other legal entities
tivelv
within the definition of enterprise. State v.
Ha
"f
n
>
Idaho 9
?
7
:
8
t
7
J
P
?
u
d 8
f
'
19
,
94)
:
ere the m
f
e fact
,
that
*
e defendant
Januarv 1 1989
money and drugs from the drug task
force of which he was a member did not
Section 2 of S.L. 2004, ch. 49 contains a
establish the requisite relationship between
re
P
ea
' '
. the criminal acts and the affairs of the enter-
tTK^nT'
SeCtln 1S referred t0
Prise, his illegal conduct was theft by an
in
18-8201.
employee and not racketeering activity. State
Cited in: Eliopulos v. Knox, 123 Idaho 400,
v Nunez, 133 Idaho 13, 981 P.2d 738 (1999).
848 P.2d 984 (Ct. App. 1992).
"Pattern of Activity."
Analysis Although a single scheme may be sufficient
to establish a pattern of activity, the plain-
Enterprise,
tiff's amended complaint which only alleged
"Pattern of activity."
one general scheme of racketeering, the pur-
Racketeering, pose of which was to defraud the plaintiffs out
of their ranch, failed to show that the predi- activity" existed under subsection (d) of this
cate acts themselves amounted to, or consti- section. State v. Gertsch, 17 Idaho 387, 49
tuted a threat of continuing racketeering ac- P.3d 392 (2002).
tivity, and therefore did not meet the
requirements of subsection (d) of this section.
Racketeering.
Spence v. Howell, 126 Idaho 763, 890 P.2d 714
Controlled substance violations are in-
(1995).
eluded in the definition of "racketeering"
Insurance company's single act of hiring of
through subsection (a)(20) of this section, and
police officer who was on administrative leave
where group with which defendant was in-
to investigate an accident in a wrongful death
volved committed at least two distinct, inter-
action did not constitute a "pattern of racke-
related controlled substance violations within
teering activity"; thus, claim against insur- five years, such conduct was facially prohib-
ance company for violation of bribery and ited by the plain meaning of subsections
corrupt influences statutes failed. Yoakum v. (a)(20) and (d) of this section. State v. Hansen,
Hartford Fire Ins. Co., 129 Idaho 171, 923 125 Idaho 927, 877 P.2d 898 (1994).
R2d 416 (1996). Scienter is not required for violations of the
Because defendant's securities convictions securities registration and licensing require-
under
30-1403 and 30-1406 were affirmed, ments found in

30-1406 through 30-1416;
she engaged in conduct that is "racketeering", therefore, because defendant's racketeering
under the definition contained in subsection charge was predicated on twenty-three counts
(a) of this section; additionally, because she of violating 30-1406, a strict liability provi-
engaged in such activity at least twice, be- sion, good faith reliance on legal counsel is not
cause the instances were all interrelated, and a defense to violations of the Idaho Securities
because the instances all occurred within five Act. State v. Montgomery, 135 Idaho 348, 17
years of each other, a "pattern of racketeering P.3d 292 (2001).
18-7803. Definitions. [Effective September 1, 2004.]

As used in
this chapter, (a) "Racketeering" means any act which is chargeable or
indictable under the following sections of the Idaho Code or which are
equivalent acts chargeable or indictable as equivalent crimes under the laws
of any other jurisdiction:
(1) Homicide (section 18-4001, Idaho Code);
(2) Robbery, burglary, theft, forgery, counterfeiting, and related crimes
(sections 18-1401, 18-1405, 18-2403, 18-2407, 18-3123, 18-3124, 18-3125,
18-3601, 18-3602, 18-3603, 18-3605, 18-3606, 18-3607, 18-3609, 18-3610,
18-3614, 18-3615, 18-4630, 18-6501 and 49-518, Idaho Code);
(3)
Kidnapping (section 18-4501, Idaho Code);
(4) Prostitution (sections 18-5601, 18-5602, 18-5603, 18-5604, 18-5605,
18-5606, 18-5608 and 18-5609, Idaho Code);
(5) Arson (sections 18-801, 18-802, 18-803, 18-804 and 18-805, Idaho
Code);
(6)
Assault (sections 18-908 and 18-4015, Idaho Code);
(7) Lotteries and gambling (sections 18-3801, 18-3802, 18-3809, 18-4902,
18-4903, 18-4904, 18-4905, 18-4906 and 18-4908, Idaho Code);
(8) Indecency and obscenity (sections 18-1515, 18-1518, 18-4103, 18-
4103A, 18-4104, 18-4105, 18-4105A and 18-4107, Idaho Code);
(9) Poisoning (sections 18-4014 and 18-5501, Idaho Code);
(10) Fraudulent practices, false pretenses, insurance fraud, financial
transaction card crimes and fraud generally (sections 18-2403, 18-2706,
18-3002, 18-3101, 18-3124, 18-3125, 18-3126, 18-6713, 41-293, 41-294 and
41-1306, Idaho Code);
(11) Alcoholic beverages (sections 23-602, 23-606, 23-610, 23-703, 23-905,
23-914, 23-928, 23-934 and 23-938, Idaho Code);
(12) Cigarette taxes (sections 63-2505 and 63-25 12(b), Idaho Code);
(13) Securities (sections 30-14-401, 30-14-402, 30-14-403, 30-14-404, 30-
14-501, 30-14-502, 30-14-505 and 30-14-506, Idaho Code);
(14) Horseracing (section 54-2512, Idaho Code);
(15) Interest and usurious practices (sections 28-45-401 and 28-45-402,
Idaho Code);
(16) Corporations (sections 18-1901, 18-1902, 18-1903, 18-1904, 18-1905,
18-1906 and 30-1510, Idaho Code);
(17) Perjury (sections 18-5401 and 18-5410, Idaho Code);
(18) Bribery and corrupt influence (sections 18-1352 and 18-1353, Idaho
Code);
(19) Controlled substances (sections 37-2732(a), (b), (c), (e) and (f),
37-2732B, 37-2734 and 37-2734B, Idaho Code);
(20) Motor vehicles (sections 49-228, 49-231, 49-232 and 49-518, Idaho
Code);
(21) Terrorism (section 18-8103, Idaho Code).
(b) "Person" means any individual or entity capable of holding a legal or
beneficial interest in property;
(c) "Enterprise" means any sole proprietorship, partnership, corporation,
business, labor union, association or other legal entity or any group of
individuals associated in fact although not a legal entity, and includes illicit
as well as licit entities; and
(d) "Pattern of racketeering activity" means engaging in at least two (2)
incidents of racketeering conduct that have the same or similar intents,
results, accomplices, victims or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated incidents,
provided at least one (1) of such incidents occurred after the effective date of
this act and that the last of such incidents occurred within B.we
(5)
years
after a prior incident of racketeering conduct. [I.C.,

1981, ch. 219, 1, p. 407; am. 1988, ch. 265, 562, p. 549; am. 1999, ch. 143,
3, p. 407; am. 2000, ch. 148, 4, p. 377; am. 2002, ch. 222, 5, p. 623; am.
2004, ch.
45, 4, p. 169; am. 2004, ch.
49, 3, p. 233.]
Compiler's notes. For this section as ef-
fective until September 1, 2004, see the pre-
ceding section, also numbered
18-7803.
18-7804. Prohibited activities
Penalties.
(a) It is unlawful for

any person who has received any proceeds derived directly or indirectly from
a pattern of racketeering activity in which the person has participated, to
use or invest, directly or indirectly, any part of the proceeds or the proceeds
derived from the investment or use thereof in the acquisition of any interest
in, or the establishment or operation of, any enterprise or real property.
Whoever violates this subsection is guilty of a felony.
(b) It is unlawful for any person to engage in a pattern of racketeering
activity in order to acquire or maintain, directly or indirectly, any interest in
or control of any enterprise or real property. Whoever violates this subsec-
tion is guilty of a felony.
(c) It is unlawful for any person employed by or associated with any
enterprise to conduct or participate, directly or indirectly, in the conduct of
the affairs of such enterprise by engaging in a pattern of racketeering
activity. Whoever violates the provisions of this subsection is guilty of a
felony.
(d) It is unlawful for any person to conspire to violate any of the
provisions of subsections (a) through (c) of this section. Whoever violates the
provisions of this subsection is guilty of a felony.
(e) Whoever violates the provisions of this act is punishable by a fine not
to exceed twenty-five thousand dollars ($25,000) and/or imprisonment not to
exceed a term of fourteen (14) years in the Idaho state penitentiary.
(f) Upon a conviction of a violation under the provisions of this chapter,
the court may order restitution for all costs and expenses of prosecution and
investigation, pursuant to the terms and conditions set forth in section
37-2732(k), Idaho Code.
(g)
In addition to any other penalties prescribed by law, whoever violates
any provisions of this act shall forfeit to the state of Idaho:
(1)
Any interest acquired or maintained in violation of the racketeering
act; and
(2) Any interest in, security of, claim against or property or contractual
right of any kind affording a source of influence over any enterprise which
he has established, operated, controlled, conducted or participated in the
conduct of in violation of the provisions of the racketeering act.
(h) In any action brought by the state under the racketeering act, the
district court shall have jurisdiction to enter such restraining orders or
prohibitions, or to take such other actions, including, but not limited to, the
acceptance of satisfactory performance bonds, in connection with any
property or other interest subject to forfeiture under the provisions of this
section, as it shall deem proper.
(i) Upon conviction of a person under the provisions of this section, the
court shall authorize the attorney general or the proper prosecuting
attorney to seize all property or other interest declared forfeited under the
provisions of this section upon such terms and conditions as the court shall
deem proper, making due provision for the rights of innocent persons. If a
property right or other interest is not exercisable or transferable for value by
the convicted person, it shall expire and shall not revert to the convicted
person. [I.C.,

105, 2, p. 266.]
Compiler's notes. For sections in which ijuana, to pay restitution to the county for
"this act" is compiled, see Compiler's notes to costs of investigating and prosecuting the
18-7801. action against him; as it existed during the

period relevant to defendant's appeal, this
compiled as
37-2732 and 18-8201, respec-
section was limited to a conviction of felony
tively.
violation under the controlled substance act.
State v
-
Hansen, 125 Idaho 927, 877 P.2d 898
in 19-5506 and 37-2732.
(1994).
o .?iS ô
!
.
E
p1
?
08 V
'
KnX
'
123 Idah
40
'
Theft b
y
an Employee Not Racketeering.
848 P.2d 984 (Ct. App. 1992).
Where the mere fact that the defendant
A
stole money and drugs from the drug task
force of which he was a member did not
Restitution.
establish the requisite relationship between
Theft by an employee not racketeering.
the criminal acts and the affairs of the enter-
prise, his illegal conduct was theft by an
Restitution. employee and not racketeering activity. State
Trial court abused its discretion in ordering v. Nunez, 133 Idaho 13, 981 P.2d 738 (1999).
a defendant, convicted of racketeering for his Collateral References. Criminal prosecu-
participation in growing and processing mar- tions under state RICO statutes for engaging
in organized criminal activity. 89 A.L.R.5th
629.
18-7805. Racketeering
Civil remedies.

(a) A person who sus-
tains injury to his person, business or property by a pattern of racketeering
activity may file an action in the district court for the recovery of three
(3)
times the actual damages proved and the cost of the suit, including
reasonable attorney's fees.
(b) The state, through the attorney general or the proper county prose-
cuting attorney, may file an action on behalf of those persons injured or to
prevent, restrain or remedy racketeering as defined by the racketeering act.
(c) The district court has jurisdiction to prevent, restrain and remedy
racketeering after making provisions for the rights of all innocent persons
affected by such violation and after hearing or trial, as appropriate, by
issuing appropriate orders. Prior to a determination of liability, such orders
may include, but are not limited to, entering restraining orders or prohibi-
tions or taking such other actions, including the acceptance of satisfactory
performance bonds, in connection with any property or other interest
subject to damages, forfeiture or other restraints pursuant to this section as
it deems proper.
(d) Following a determination of liability, such orders may include, but
are not limited to:
(1)
Ordering any person to divest himself of any interest, direct or
indirect, in any enterprise;
(2) Imposing reasonable restrictions on the future activities or invest-
ments of any person;
(3) Ordering dissolution or reorganization of any enterprise;
(4) Ordering the payment of three (3) times the damages proved to those
persons injured by racketeering;
(5)
Ordering the suspension or revocation of a license, permit or prior
approval granted to any enterprise by any agency of the state;
(6)
Ordering the forfeiture of the charter of a corporation organized under
the laws of the state or the revocation of a certificate authorizing a foreign
corporation to conduct business within this state; and
(7) Ordering the payment of all costs and expenses of the prosecution and
investigation of any offense included in the definition of racketeering
incurred by a municipal, county or state government agency to the agency
incurring the costs or expenses. [I.C.,

18-7805, as added by 1981, ch.
219, 1, p. 407; am. 1998, ch. Ill,
1, p. 415.]
CHAPTER 79
MALICIOUS HARASSMENT
SECTION. SECTION.
18-7901. Purpose. 18-7904. Effect of invalidity of part of this
18-7902. Malicious harassment defined

act.
Prohibited. 18-7905. Stalking in the first degree.
18-7903. Penalties
Criminal and civil. 18-7906. Stalking in the second degree.

603 MALICIOUS HARASSMENT 18-7903
18-7901. Purpose.

The legislature finds and declares that it is the
right of every person regardless of race, color, ancestry, religion or national
origin, to be secure and protected from fear, intimidation, harassment, and
physical harm caused by the activities of groups and individuals. It is not
the intent of this act to interfere with the exercise of rights protected by the
constitution of the United States. The legislature recognizes the constitu-
tional right of every citizen to harbor and express beliefs on any subject
whatsoever and to associate with others who share .similar beliefs. The
legislature further finds that the advocacy of unlawful acts by groups or
individuals against other persons or groups for the purpose of inciting and
provoking damage to property and bodily injury or death to persons is not
constitutionally protected, poses a threat to public order and safety, and
should be subject to criminal sanctions. [I.C.,

18-7901, as added by 1983,
ch. 110, 2, p. 236.]
Compiler's notes. Section 1 of S.L. 1983, icy extending constitutional free speech pro-
ch. 110 read: "It is not the intent of the tection to relationships between private em-
legislature that this chapter be construed or ployers and its employees; even had the trial
used to support ratification by the United
court specifically addressed the issue, which
States Senate of the United Nations Conven-
it did not, the facts alleged fell short of de-
tion on the Prevention and Punishment of the
scribing conduct that was harassing, intimi-
Crime of Genocide of 1948."
dating, or threatening and based upon the
descriptive list set forth in the statute.
110, which is compiled as

18-7901 18-
Edmondson v. Shearer Lumber Prods.,

7904-
Idaho , 75 P.3d 733 (2003), cert, denied,
Application.
-, 124 S. Ct. 1426, 158 L. Ed. 2d 88
Court rejected an employee's claim that
v^004).
Idaho Code
18-7901 expressed a public pol-
18-7902. Malicious harassment defined
Prohibited.
It shall be
unlawful for any person, maliciously and with the specific intent to intim-
idate or harass another person because of that person's race, color, religion,
ancestry, or national origin, to:
(a) Cause physical injury to another person; or
(b) Damage, destroy, or deface any real or personal property of another
person; or
(c) Threaten, by word or act, to do the acts prohibited if there is
reasonable cause to believe that any of the acts described in subsections (a)
and (b) of this section will occur.
For purposes of this section, "deface" shall include, but not be limited to,
cross-burnings or the placing of any word or symbol commonly associated
with racial, religious or ethnic terrorism on the property of another person
without his or her permission. [I.C.,

18-7902, as added by 1983, ch. 110,
2, p. 236.]
Sec. to sec. ref. This section is referred to Cited in: State v. Rae,
Idaho , 84 P.3d
in

18-7905. 586 (Ct. App. 2004).
18-7903. Penalties

Criminal and civil.

(a) Malicious harass-
ment is punishable by imprisonment in the state prison for a period not to
exceed five (5) years or by fine not exceeding five thousand dollars ($5,000)
or by both.
(b) In addition to the criminal penalty provided in subsection (a) of this
section, there is hereby created a civil cause of action for malicious
harassment. A person may be liable to the victim of malicious harassment
for both special and general damages, including but not limited to damages
for emotional distress, reasonable attorney fees and costs, and punitive
damages.
(c) The penalties provided in this section for malicious harassment do not
preclude victims from seeking any other remedies, criminal or civil, other-
wise available under law. [I.C.,

18-7903, as added by 1983, ch. 110, 2, p.
236; am. 1987, ch. 275, 1, p. 568.]
18-7904. Effect of invalidity of part of this act.

If a court of
competent jurisdiction shall adjudge to be invalid or unconstitutional any
clause, sentence, paragraph, section, or part of this act, such judgment or
decree shall not affect, impair, invalidate or nullify the remainder of this act,
but the effect thereof shall be confined to the clause, sentence, paragraph,
section or part of this act so adjudged to be invalid or unconstitutional. [I.C.,
18-7904, as added by 1983, ch. 110, 2, p. 236.]

Compiler's notes. For words "this act" see
Compiler's notes,
18-7901.
18-7905. Stalking in the first degree.

(1) A person commits the
crime of stalking in the first degree if the person violates section 18-7906,
Idaho Code, and:
(a) The actions constituting the offense are in violation of a temporary
restraining order, protection order, no contact order or injunction, or any
combination thereof; or
(b) The actions constituting the offense are in violation of a condition of
probation or parole; or
(c) The victim is under the age of sixteen (16) years; or
(d) At any time during the course of conduct constituting the offense, the
defendant possessed a deadly weapon or instrument; or
(e) The defendant has been previously convicted of a crime under this
section or section 18-7906, Idaho Code, or a substantially conforming
foreign criminal violation within seven
(7)
years, notwithstanding the
form of the judgment or withheld judgment; or
(f) The defendant has been previously convicted of a crime, or an attempt,
solicitation or conspiracy to commit a crime, involving the same victim as
the present offense under any of the following provisions of Idaho Code or
a substantially conforming foreign criminal violation within seven (7)
years, notwithstanding the form of the judgment or withheld judgment:
(i) Chapter 9, title 18;
(ii) Chapter 15, title 18;
(hi) Chapter 61, title 18;
(iv) Section 18-4014 (administering poison with intent to kill);
(v) Section 18-4015 (assault with intent to murder);
(vi) Section 18-4501 (kidnapping);
605 MALICIOUS HARASSMENT 18-7906
(vii) Section 18-5501 (poisoning);
(viii) Section 18-6608 (forcible sexual penetration by use of foreign
object);
(ix) Section 18-7902 (malicious harassment); or
(x) Section 18-8103 (act of terrorism).
(2)
In this section, "course of conduct" and "victim" have the meanings
given in section 18-7906(2), Idaho Code.
(3)
For the purpose of this section, a "substantially conforming foreign
criminal violation" exists when a person has pled guilty to or has been found
guilty of a violation of any federal law or law of another state, or any valid
county, city, or town ordinance of another state substantially conforming to
the provisions of this section or section 18-7906, Idaho Code. The determi-
nation of whether a foreign criminal violation is substantially conforming is
a question of law to be determined by the court.
(4) Stalking in the first degree is a felony punishable by a fine not
exceeding ten thousand dollars ($10,000) or imprisonment in the state
prison for not less than one
(1)
year nor more than five
(5)
years, or by both

18-7905, as added by 2004, ch. 337,
3, p. 1007.]
Compiler's notes. Former 18-7905 repeal, and section 4 is compiled as
18-
which comprised I.C., 18-7905, as added by 7906.
S.L. 2004, ch. 337,
2.
in
18-920 and 19-603.
18-7906. Stalking in the second degree.
(1) Aperson commits the

crime of stalking in the second degree if the person knowingly and
maliciously:
(a) Engages in a course of conduct that seriously alarms, annoys or
harasses the victim and is such as would cause a reasonable person
substantial emotional distress; or
(b) Engages in a course of conduct such as would cause a reasonable
person to be in fear of death or physical injury, or in fear of the death or
physical injury of a family or household member.
(a) "Course of conduct" means repeated acts of nonconsensual contact
involving the victim or a family or household member of the victim,
provided however, that constitutionally protected activity is not included
within the meaning of this definition.
(b) "Family or household member" means:
(i) A spouse or former spouse of the victim, a person who has a child in
common with the victim regardless of whether they have been married,
a person with whom the victim is cohabiting whether or not they have
married or have held themselves out to be husband or wife, and persons
related to the victim by blood, adoption or marriage; or
(ii) A person with whom the victim is or has been in a dating
relationship, as defined in section 39-6303, Idaho Code; or
(iii) A person living in the same residence as the victim.
(c) "Nonconsensual contact" means any contact with the victim that is
initiated or continued without the victim's consent, that is beyond the
scope of the consent provided by the victim, or that is in disregard of the
victim's expressed desire that the contact be avoided or discontinued.
"Nonconsensual contact" includes, but is not limited to:
(i) Following the victim or maintaining surveillance, including by
electronic means, on the victim;
(ii) Contacting the victim in a public place or on private property;
(hi) Appearing at the workplace or residence of the victim;
(iv) Entering onto or remaining on property owned, leased or occupied
by the victim;
(v) Contacting the victim by telephone or causing the victim's telephone
to ring repeatedly or continuously regardless of whether a conversation
ensues;
(vi) Sending mail or electronic communications to the victim; or
(vii) Placing an object on, or delivering an object to, property owned,
leased or occupied by the victim.
(d) "Victim" means a person who is the target of a course of conduct.
(3) Stalking in the second degree is punishable by imprisonment in the
county jail for not more than one
(1) year or by a fine of not more than one
thousand dollars ($1,000), or by both such fine and imprisonment. [I.C.,
18-7906, as added by 2004, ch. 337, 4, p. 1007.]

19-603.
in

18-920, 18-7905, and 19-603.
CHAPTER 80
MOTOR VEHICLES
SECTION. SECTION.
18-8001. Driving without privileges.
18-8002. Tests of driver for alcohol concentra-
tion, presence of drugs or 18-8004C
other intoxicating substances
Suspension upon refusal of 18-8005.

tests. 18-8006.
18-8002A. Tests of driver for alcohol concen-
tration, presence of drugs or
other intoxicating substances
Suspension upon failure of 18-8007.

tests.
18-8002B. [Repealed.] 18-8008.
18-8003. Persons authorized to withdraw
blood for the purposes of deter- 18-8009.
mining content of alcohol or
other intoxicating substances.
18-8004. Persons under the influence of alco- 18-8010.
hoi, drugs or any other intoxi- 18-8011.
eating substances.
18-8004A. Penalties Persons under 21
with less than 0.08 alcohol
concentration.
. Excessive alcohol concentration
Penalties.
Penalties.
Aggravated driving while under the
influence of alcohol, drugs or
any other intoxicating sub-
stances.
Leaving scene of accident resulting
in injury or death.
Ignition interlocks

Electronic
monitoring devices.
Ignition interlocks

Assisting an-
other in starting or operating
Penalty.
Surcharge added to all fines.
Stay of suspension of drivers' li-
censes or driving privileges
upon reincarceration.
18-8001. Driving without privileges.
(1) Any person who drives or

is in actual physical control of any motor vehicle upon the highways of this
state with knowledge or who has received legal notice pursuant to section
607 MOTOR VEHICLES 18-8001
49-320, Idaho Code, that his driver's license, driving privileges or permit to
drive is revoked, disqualified or suspended in this state or any other
jurisdiction is guilty of a misdemeanor.
(2)
A person has knowledge that his license, driving privileges or permit
to drive is revoked, disqualified or suspended when:
(a) He has actual knowledge of the revocation, disqualification or suspen-
sion of his license, driving privileges or permit to drive; or
(b) He has received oral or written notice from # verified, authorized
source, that his license, driving privileges or permit to drive was revoked,
disqualified or suspended; or
(c) Notice of the suspension, disqualification or revocation of his license,
driving privileges or permit to drive was mailed by first class mail to his
address pursuant to section 49-320, Idaho Code, as shown in the trans-
portation department records, and he failed to receive the notice or learn
of its contents as a result of his own unreasonable, intentional or
negligent conduct or his failure to keep the transportation department
apprised ofhis mailing address as required by section 49-320, Idaho Code;
or
(d) He has knowledge of, or a reasonable person in his situation exercis-
ing reasonable diligence would have knowledge of, the existence of facts or
circumstances which, under Idaho law, might have caused the revocation,
disqualification or suspension ofhis license, driving privileges or permit to
drive.
(3)
Any person who pleads guilty to or is found guilty of a violation of
subsection (1) for the first time:
(a) Shall be sentenced to jail for a mandatory minimum period of not less
than two (2) days, and may be sentenced to not more than six (6) months,
provided however, that in the discretion of the sentencing judge, the judge
may authorize the defendant to be assigned to a work release or work
detail program within the custody of the county sheriff during the period
of incarceration, or, if the underlying suspension that resulted in the
violation of this section is not a suspension resulting from an offense
identified in subsection (8) of this section, the judge may authorize an
equivalent amount of community service in lieu ofjail, or any equivalent
combination of these options;
(b) May be fined an amount not to exceed five hundred dollars ($500); and
(c) Shall have his driving privileges suspended by the court for an
additional six (6) months following the end of any period of suspension,
disqualification or revocation existing at the time of the violation; the
defendant may request restricted driving privileges during the period of
the suspension or disqualification, which the court may allow if the
defendant shows by a preponderance of the evidence that driving privi-
leges are necessary for his employment, education or for family health
needs.
(4) Any person who pleads guilty to or is found guilty of a violation of
subsection (1) for a second time within five
(5)
years, irrespective of the form
of the judgment(s) or withheld judgment(s):
than twenty (20) days, and may be sentenced to not more than one (1)
year, provided however, that in the discretion of the sentencing judge, the
judge may authorize the defendant to be assigned to a work release or
work detail program within the custody of the county sheriff during the
period of incarceration, or, if the underlying suspension that resulted in
the violation of this section is not a suspension resulting from an offense
identified in subsection (8) of this section, the judge may authorize an
equivalent amount of community service in lieu ofjail, or any equivalent
combination of these options;
(b) May be fined an amount not to exceed one thousand dollars
($1,000);
and
additional one
(1)
year following the end of any period of suspension,
disqualification or revocation existing at the time of the second violation,
during the first thirty (30) days of which time he shall have absolutely no
driving privileges of any kind. The defendant may request restricted
driving privileges during the period of the suspension or disqualification,
to begin after the period of absolute suspension, which the court may
allow if the defendant shows by a preponderance of the evidence that
driving privileges are necessary for his employment, education or for
family health needs.
(5)
Any person who has pled guilty to or been found guilty of more than
two (2) violations of the provisions of subsection (1) of this section within five
(5)
years, notwithstanding the form of the judgment(s) or withheld judg-
ments), is guilty of a misdemeanor; and
(a) Shall be sentenced to the county jail for a mandatory minimum period
of not less than thirty (30) days, and may be sentenced to not more than
one (1) year; provided, however, that in the discretion of the sentencing
judge, the judge may authorize the defendant to be assigned to a work
release or work detail program within the custody of the county sheriff
during the period of incarceration, or, if the underlying suspension that
resulted in the violation of this section is not a suspension resulting from
an offense identified in subsection (8) of this section, the judge may
authorize an equivalent amount of community service in lieu ofjail, or any
equivalent combination of these options;
(b) May be fined an amount not to exceed three thousand dollars
($3,000);
and
additional two (2) years following the end of any period of suspension,
disqualification or revocation existing at the time of the violation, during
the first ninety (90) days ofwhich time he shall have absolutely no driving
privileges of any kind. The defendant may request restricted driving
privileges during the period of the suspension or disqualification, to begin
after the period of absolute suspension, which the court may allow if the
leges are necessary for his employment, education or for family health
needs.
(6) A minor may be prosecuted for a violation of subsection (1) of this
section under chapter 5, title 20, Idaho Code.
(7) If a person is convicted for a violation of section 18-8004, 18-8004C or
18-8006, Idaho Code, and at the time of arrest had no driving privileges, the
penalties imposed by this section shall be in addition to any penalties
imposed under the provisions of section 18-8005, 18-8004A, 18-8004C or
18-8006, Idaho Code, and not in lieu thereof.
(8) For purposes of this section, the offenses referred to in subsections
(3)(a), (4)(a) and (5)(a) of this section are:
(a) Section 18-1501(3), Idaho Code, transporting, a minor in a motor
vehicle while under the influence;
(b) Section 18-4006(3), Idaho Code, vehicular manslaughter;
(c) Section 18-8001, Idaho Code, driving without privileges;
(d) Section 18-8004, Idaho Code, driving under the influence of alcohol,
drugs or other intoxicating substances;
(e) Section 18-8004C, Idaho Code, excessive alcohol concentration;
(f) Section 18-8006, Idaho Code, aggravated driving while under the
influence of alcohol, drugs or any other intoxicating substances;
(g)
Section 18-8007, Idaho Code, leaving the scene of an accident result-
ing in injury or death;
(h) Section 49-1229, Idaho Code, required motor vehicle insurance;
(i) Section 49-1232, Idaho Code, certificate or proof of liability insurance
to be carried in motor vehicle;
.
(j)
Section 49-1401, Idaho Code, reckless driving;
(k) Section 49-1404, Idaho Code, eluding a police officer;
(I) Section 49-1428, Idaho Code, operating a vehicle without liability
insurance; or any substantially conforming foreign criminal violation.
(9) In no event shall a person be granted restricted driving privileges
unless the person shows proof of liability insurance or other proof of
financial responsibility, as provided in chapter 12, title 49, Idaho Code. [I.C.,
18-8001, as added by 1984, ch.

22, 2, p. 25; am. 1988, ch. 265, 563, p.
549; am. 1989, ch.
88, 59, p. 151; am. 1990, ch.
45, 42, p. 71; am. 1990,
ch. 432, 9, p. 1198; am. 1992, ch. 115, 38, p. 345; am. 1994, ch. 148, 1,
p. 336; am. 1998, ch.
110, 1, p. 375; am. 1998, ch. 325, 1, p. 1050; am.
2003, ch.
157, 1, p. 442.]
Compiler's notes. This section was The 1998 amendment by ch. 325, 1, re-
amended by two 1998 acts, ch. 110, 1, wrote this section.
effective July 1, 1998, and ch. 325, 1, effec- Section 58 of S.L. 1989, ch. 88 is compiled
tive July 1, 1998, which do not conflict and as
11-607.
have been compiled together. Section 41 of S.L. 1990, ch. 45 is compiled
The 1998 amendment by ch. 110, 1, in- as
49-2446.
serted "or who has received legal notice pur- Section 8 of S.L. 1990, ch. 432 is compiled
suant to section 49-320, Idaho Code" in sub- as
49-1501.
section
(1), and, in subsection (2)(c), deleted Section 37 of S.L. 1992, ch. 115 is compiled
"to his address as shown on the citation which as
49-2444.
resulted in the suspension, disqualification or Section 2 of S.L. 1994, ch. 148 is compiled
revocation, and if such notice was returned it as
18-8005.
was remailed" following "certified mail", in- Section 2 of S.L. 1998, ch. 110 is compiled as
serted "pursuant to section 49-320, Idaho
31-2202.
Code," after "to his address", inserted "trans- Section 2 of S.L. 2003, ch. 157 is compiled
portation" after "shown in the", and inserted as
49-320.
"or his failure to keep the transportation Section 586 of S.L. 1988, ch. 265 provided
department apprised of his mailing address that the act should take effect on and after
as required by section 49-320, Idaho Code." January 1, 1989.
July 1, 1990, with the exception that the
provisions within each applicable section of
Idaho Code relating to classes of driver's
licenses shall take effect no later than Sep-
tember 1, 1990, as determined by the director
of the Idaho transportation department, and
until that time, existing laws shall remain in
effect." Approved March 12, 1990.
emergency and provided that this section be
in full force and effect on and after April 1,
1990.
"The provisions of this act shall apply to
violations of section 18-8001, Idaho Code,
committed on and after July 1,
1998."
in
49-326.

40-510 and
49-240.
Cited in: State v. Zamarripa, 120 Idaho
751, 819 P.2d 1151 (Ct. App. 1991); State v.
Resendiz-Fortanel, 131 Idaho 488, 959 P.2d
845 (Ct. App. 1998); State v. Chavez, 134
Idaho 308, 1 P.3d 809 (Ct. App. 2000); State v.
Anderson, 134 Idaho 552, 6 P.3d 408 (Ct. App.
2000).
Analysis
Acceptance of plea.
Applicability.
Instructions.
Knowledge of suspension.
Lesser-included offenses.
Notice.
Prior convictions.
Probable cause.
Proper charge.
Same act or omission.
Sentence.
Acceptance of Plea.
Where magistrate did not specifically in-
quire of defendant pleading guilty to driving
without privileges as to the existence of a plea
bargain, yet no such agreement existed and
defendant was informed of his right to seek a
continuance, plead not guilty or guilty and
was aware that he may receive the maximum
penalty, there was no reversible error in ac-
cepting defendant's plea; conviction affirmed.
State v. McCutcheon, 129 Idaho 168, 922 P.2d
1094 (Ct. App. 1996).
Applicability.
Where defendant's driving privileges were
suspended under
18- 1502(d), and he was
granted a restricted permit to operate a motor
vehicle during the suspension for work or
health purposes and later was charged with
driving without privileges when he drove for
purposes not covered by the restrictions, he
was properly cited for driving without privi-
leges and not under
49-301 for driving on
an invalid license. State v. Clifford, 130 Idaho
259, 939 P.2d 578 (Ct. App. 1997).
In prosecution for driving without privi-
leges where defendant's license had been sus-
pended and he was given a restricted permit
to operate a vehicle for work or health pur-
poses only, where defendant told the sheriff
that he was driving to the bowling alley but
testified that he was really on way to look for
work, where magistrate explained that al-
though the evidence was disputed as to
whether defendant told the sheriff he was
looking for work, he did not find credible
defendant's testimony that he was in fact
looking for work and even if he had been his
temporary permit did not allow it, and thus
there was substantial evidence upon which a
reasonable trier of fact could have found that
the state had proved the essential elements of
the crime of driving without privileges beyond
a reasonable doubt. State v. Clifford, 130
Idaho 259, 939 P.2d 578 (Ct. App. 1997).
Where the evidence demonstrated that the
defendant was stopped while driving a motor
vehicle, that he had a suspended driving
license, and that he had two prior convictions
for driving without privileges within five
years, there was sufficient evidence to find
that there was probable cause to believe that
the defendant had committed the crime of
felony driving without privileges. State v.
Hudson, 133 Idaho 543, 989 P.2d 285 (1999).
Instructions.
accident and in which she had been a passen-
(1992).
Knowledge of Suspension.
Defendant asserted that the state never
established that defendant knew his privi-
leges had been suspended, as required in this
section. But, the question before the magis-
trate was not whether there was sufficient
evidence to convict defendant, but whether
officer had probable cause to arrest. The mag-
istrate found that officer was able to infer at
the scene that defendant knew he was driving
without privileges. State v. Carr, 123 Idaho
127, 844 P.2d 1377 (Ct. App. 1992).
Lesser-Included Offenses.
Driving with an invalid license is a lesser-
included offense of driving without privileges
under both the statutory and the pleading
theories; therefore, where defendant's license
was suspended for failing to take care of a
citation, a conviction for driving with an in-
valid license was appropriate where the orig-
inal charge was driving without privileges.
State v. Matalamaki,
Idaho , 79 P.3d 162

(Ct. App. 2003).
Notice.
Where (1) at the request of a judgment
creditor the Idaho Department of Transporta-
tion sent by certified mail a letter to defen-
dant, stating that the department would sus-
pend his driving privileges 14 days from the
date of the letter, and that the suspension
would continue until an unsatisfied judgment
arising out of an automobile accident was
satisfied and he filed with the department
proof of financial responsibility, (2) the letter
was sent to the address shown on defendant's
driver's license, (3) the postman twice left a
notice at defendant's address, on two different
days, to inform him a certified letter was
being held at the post office, but where (4) due
to his mother's death, defendant was tempo-
rarily away from home and did not pick up his
mail, thus leading to the suspension of his
driving privileges, defendant overcame the
inference of notice created by the mailing
procedure employed by the department in
attempting to notify him of his license suspen-
sion, and there was not sufficient evidence to
support a conviction for driving without priv-
ileges. State v. Bird, 119 Idaho 196, 804 P.2d
925 (Ct. App. 1990).
Prior Convictions.
Where the state was unable to present
anything in the record to establish the exist-
ence of prior felonies, the state failed to meet
its burden of proving the existence of prior
convictions, upon which the state relied to
enhance a charge of DUI or DWP from a
misdemeanor to a felony. State v. Coby, 128
Idaho 90, 910 P.2d 762 (1996).
Probable Cause.
Merely because driving without privileges
is not included in the list of vehicular offenses
in
49-1405 does not negate an officer's abil-
ity to arrest, based on probable cause, for a
violation of this section. State v. Carr, 123
Idaho 127, 844 P.2d 1377 (Ct. App. 1992).
The fact that officer had not personally and
directly learned or been notified of defen-
dant's license suspension when he arrested
defendant was not dispositive. An officer in
the field may rely on information supplied by
other officers, and the collective knowledge of
police officers involved in the investiga-
tionincluding dispatch personnelmay
support a finding of probable cause. State v.
Carr, 123 Idaho 127, 844 P.2d 1377 (Ct. App.
1992).
Proper Charge.
Where driver's license has been suspended
and he had been granted a restricted permit
to operate a motor vehicle for certain pur-
poses only and he violates the restrictions, his
violation would be operating the vehicle with-
out privilege under this section, not for lack of
a valid license; however, when the suspension
period ends and the driver takes the neces-
sary steps to have his privileges restored he
would hold a valid license, but if his privileges
were not restored at the conclusion of the
suspension period then he could be cited for
violation of
49-301 for at this point his
privileges would not be suspended but he
would not have a valid license to drive. State
v. Clifford, 130 Idaho 259, 939 P. 2d 578 (Ct.
App. 1997).
Same Act or Omission.
Where the driving without privileges
(DWP) prosecution was not dependent upon
the nature, quality or manner of defendant's
driving, and defendant's status as a sus-
pended licensee driving a vehicle on an Idaho
highway was punishable without any require-
ment that she also be driving erratically, the
acts charged, failure to stop and DWP, were
separate in character and clear enough in
sequence to be distinguishable: therefore,
they did not constitute the same act or omis-
sion. State v. Betterton, 127 Idaho 562, 903
P.2d 151 (Ct. App. 1995).
Since the offense of driving without privi-
leges and the offense of driving without insur-
ance are composed of separate and distinct
components, where defendant paid penalty
relating to failure to carry proof of insurance,
he could still be subject to the punishment for
driving without privileges. State v.
Longstreet, 130 Idaho 202, 938 P.2d 1240
(1997).
Sentence.
Sentences of five years' imprisonment with-
out eligibility for parole for three years for
driving while under the influence, and three
years' concurrent imprisonment without pa-
role for two years, for driving without privi-
leges were not unduly severe, and the district
court did not abuse its discretion in not exer-
cising leniency by reducing the sentences,
where numerous attempts had been unsuc-
cessful in deterring defendant from driving
while intoxicated. State v. Garza, 115 Idaho
32, 764 P.2d 109 (Ct. App. 1988).
Defendant's three-year sentence for the fel-
ony of driving while his driving privileges
were suspended requiring him to serve the
first year in confinement was not excessive
where the evidence showed that he had al-
ready been convicted three times for the same
offense over a period of less than five years
and he had an alarming predilection to repeat
offenses for which he has often been sen-
tenced. State v. Scott, 115 Idaho 432, 767 P.2d Sentence of six months in jail with all but
275 (Ct. App. 1989). 90 days suspended, a $500 fine suspended
Defendant's unified sentence of one year except for court costs, and six months suspen-
determinate and two years indeterminate for
sion of license was not excessive for first
driving without privileges was not excessive
offense of driving without privileges; driver
in light of the defendant's prior convictions of
had more than 10 prior traffic violations, two
driving without privileges, and convictions for
pending charges for driving without privi-
driving under the influence of alcohol, theft,
ieges and had failed to appear eight times at
and writing bad checks; four unsuccessful
hearings on those pending charges. State v.
attempts at probation were also noted, with
Stewart, 122 Idaho 284, 833 P.2d 917 (Ct.
four violations reported in two years. State v.
^pp 1992)
Wilcox, 120 Idaho 139, 814 P.2d 39 (Ct. App.
1991).
18-8002. Tests of driver for alcohol concentration, presence of
drugs or other intoxicating substances
Suspension upon refusal

of tests.
(1) Any person who drives or is in actual physical control of a

motor vehicle in this state shall be deemed to have given his consent to
evidentiary testing for concentration of alcohol as denned in section
18-
8004, Idaho Code, and to have given his consent to evidentiary testing for
the presence of drugs or other intoxicating substances, provided that such
testing is administered at the request of a peace officer having reasonable
grounds to believe that person has been driving or in actual physical control
of a motor vehicle in violation of the provisions of section 18-8004, Idaho
Code, or section 18-8006, Idaho Code.
(2) Such person shall not have the right to consult with an attorney before
submitting to such evidentiary testing.
(3) At the time evidentiary testing for concentration of alcohol, or for the
presence of drugs or other intoxicating substances is requested, the person
shall be informed that if he refuses to submit to or if he fails to complete,
evidentiary testing:
(a) His driver's license will be seized by the peace officer and a temporary
permit will be issued; provided, however, that no peace officer shall issue
a temporary permit pursuant to this section to a driver whose driver's
license or permit has already been and is suspended or revoked because of
previous violations, and in no instance shall a temporary permit be issued
to a driver of a commercial vehicle who refuses to submit to or fails to
complete an evidentiary test;
(b) He has the right to request a hearing within seven (7) days to show
cause why he refused to submit to, or complete evidentiary testing;
(c) If he does not request a hearing or does not prevail at the hearing, his
driver's license will be suspended absolutely for one hundred eighty (180)
days if this is his first refusal and one (1) year if this is his second refusal
within five
(5)
years; and
(d) After submitting to evidentiary testing he may, when practicable, at
his own expense, have additional tests made by a person of his own
choosing.
(4) If the motorist refuses to submit to or complete evidentiary testing
after the information has been given in accordance with subsection
(3)
above:
(a) His driver's license or permit shall be seized by the peace officer and
forwarded to the court and a temporary permit shall be issued by the
peace officer which allows him to operate a motor vehicle until the date of
his hearing, if a hearing is requested, but in no event for more than thirty
(30) days; provided, however, that no peace officer shall issue a temporary
permit pursuant to this section to a driver whose driver's license or permit
has already been and is suspended or revoked because of previous
violations and in no instance shall a temporary permit be issued to a
driver of a commercial vehicle who refuses to submit to or fails to complete
an evidentiary test;
(b) A written request may be made within seven (7) calendar days for a
hearing before the court; if requested, the hearing must be held within
thirty (30) days of the seizure unless this period is, for good cause shown,
extended by the court for one (1) additional thirty (30) day period. The
court, in granting such an extension, may, for good cause shown, extend
the defendant's temporary driving privileges for one (1) additional thirty
(30) day period. The hearing shall be limited to the question of why the
defendant did not submit to, or complete, evidentiary testing, and the
burden of proof shall be upon the defendant; the court shall suspend all
his driving privileges immediately for one hundred eighty (180) days for a
first refusal and one (1) year for a second refusal within five
(5)
years
unless it finds that the peace officer did not have legal cause to stop and
request him to take the test or that the request violated his civil rights;
(c) If a hearing is not requested by written notice to the court concerned
within seven (7) calendar days, upon receipt of a sworn statement by the
peace officer of the circumstances of the refusal, the court shall suspend
his driving privileges for one hundred eighty (180) days for a first refusal
and one
(1)
year for a second refusal within five
(5)
years, during which
time he shall have absolutely no driving privileges of any kind; and
(d) After submitting to evidentiary testing at the request of the peace
officer, he may, when practicable, at his own expense, have additional
tests made by a person of his own choosing. The failure or inability to
obtain an additional test or tests by a person shall not preclude the
admission of results of evidentiary testing for alcohol concentration or for
the presence of drugs or other intoxicating substances taken at the
direction of the peace officer unless the additional test was denied by the
peace officer.
(5)
Any suspension of driving privileges under this section or section
18-8002A, Idaho Code, shall be a civil penalty separate and apart from any
other suspension imposed for a violation of other Idaho motor vehicle codes
or for a conviction of an offense pursuant to this chapter, and may be
appealed to the district court.
(6) No hospital, hospital officer, agent, or employee, or health care
professional licensed by the state of Idaho, whether or not such person has
privileges to practice in the hospital in which a body fluid sample is obtained
or an evidentiary test is made, shall incur any civil or criminal liability for
any act arising out of administering an evidentiary test for alcohol concen-
tration or for the presence of drugs or other intoxicating substances at the
request or order of a peace officer in the manner described in this section and
section 18-8002A, Idaho Code: provided, that nothing in this section shall
relieve any such person or legal entity from civil liability arising from the
failure to exercise the community standard of care.
(a) This immunity extends to any person who assists any individual to
withdraw a blood sample for evidentiary testing at the request or order of
a peace officer, which individual is authorized to withdraw a blood sample
under the provisions of section 18-8003, Idaho Code, regardless of the
location where the blood sample is actually withdrawn.
(b) A peace officer is empowered to order an individual authorized in
section 18-8003, Idaho Code, to withdraw a blood sample for evidentiary
testing when the peace officer has probable cause to believe that the
suspect has committed any of the following offenses:
(i) Aggravated driving under the influence of alcohol, drugs or other
intoxicating substance as provided in section 18-8006, Idaho Code;
(ii) Vehicular manslaughter as provided in subsections (3)(a), (b) and
(c) of section 18-4006, Idaho Code;
(hi) Aggravated operating of a vessel on the waters of the state while
under the influence of alcohol, drugs or other intoxicating substances as
provided in section 67-7035, Idaho Code; or
(iv) Any criminal homicide involving a vessel on the waters of the state
while under the influence of alcohol, drugs or other intoxicating
substances.
(c) Nothing herein shall limit the discretion of the hospital administra-
tion to designate the qualified hospital employee responsible to withdraw
the blood sample.
(d) The law enforcement agency that requests or orders withdrawal of the
blood sample shall pay the reasonable costs to withdraw such blood
sample, perform laboratory analysis, preserve evidentiary test results,
and testify in judicial proceedings.
(e) The withdrawal of the blood sample may be delayed or terminated if:
(i) In the reasonable judgment of the hospital personnel withdrawal of
the blood sample may result in serious bodily injury to hospital
personnel or other patients; or
(ii) The licensed health care professional treating the suspect believes
the withdrawal of the blood sample is contraindicated because of the
medical condition of the suspect or other patients.
(7) "Actual physical control" as used in this section and section 18-8002A,
Idaho Code, shall be defined as being in the driver's position of the motor
vehicle with the motor running or with the motor vehicle moving.
(8) Any written notice required by this section shall be effective upon
mailing.
(9) For the purposes of this section and section 18-8002A, Idaho Code,
"evidentiary testing" shall mean a procedure or test or series of procedures
or tests, including the additional test authorized in subsection (10) of this
section, utilized to determine the concentration of alcohol or the presence of
drugs or other intoxicating substances in a person.
(10) A person who submits to a breath test for alcohol concentration, as
defined in subsection (4) of section 18-8004, Idaho Code, may also be
requested to submit to a second evidentiary test of blood or urine for the
purpose of determining the presence of drugs or other intoxicating sub-
stances if the peace officer has reasonable cause to believe that a person was
driving under the influence of any drug or intoxicating substance or the
combined influence of alcohol and any drug or intoxicating substance. The
peace officer shall state in his or her report the facts upon which that belief
is based. [I.C.,
18-8002, as added by 1984, ch.
22, 2, p. 25; am. 1987, ch.
122, 1, p. 247; am. 1987, ch. 132, 1, p. 262; am. 1987, ch. 220, 2, p. 469;
am. 1989, ch.
88, 60, p. 151; am. 1989, ch.
366, 1, p. 915; am. 1989, ch.
367, 1, p. 920; am. 1990, ch.
45, 43, p. 67; am. 1992, ch. 115, 39, p. 345;
am. 1992, ch. 133, 1, p. 416; am. 1993, ch. 413, 1, p. 1515.1
ch. 220 read: "It is the intent of the Legisla-
ture that any suspension of a driver's license
under the provisions of section 18-8002, Idaho
Code, be separate and apart from any other
suspension of a driver's license imposed by a
conviction under the provisions of chapter 80,
title 18, Idaho Code, or any other Idaho motor
vehicle law. A suspension under section 18-
8002, Idaho Code, which is a civil penalty, is
for the refusal to take the test for blood-
alcohol concentration and not a portion of any
sentence for the underlying offense of driving
under the influence of alcohol, drugs or other
intoxicating substances."
18-8004.
as
18-8005.
as 18-8004.
as 18-8004.
as 18-8005.
Section 4 of S.L. 1993, ch. 413 read: "Sec-
tion 3 of this act shall be in full force and
effect on and after July 1, 1993. The remain-
ing sections of this act shall be in full force
and effect on and after July 1, 1994.
in

49-328, 49-335, 67-5101, 67-7034 and
67-7037.
Cited in: State v. Knoll, 110 Idaho 678, 718
P.2d 589 (Ct. App. 1986); State v. Kappelman,
114 Idaho 136, 754 P.2d 449 (Ct. App. 1988);
State v. Cheney, 116 Idaho 917, 782 P.2d 40
(Ct. App. 1989); State v. Bacon, 117 Idaho 679,
791 P.2d 429 (1990); State v. Madden, 127
Idaho 894, 908 P.2d 587 (Ct. App. 1995);
Quinlan v. Idaho Comm'n for Pardons & Pa-
role, 138 Idaho 726, 69 P.3d 146 (2003).
Analysis
Actual physical control.
Advisory form.
Applicability to Indian reservations.
Balancing of interests.
Constitutionality.
Construction with other statutes.
Consultation with counsel.
Delayed assent.
Double jeopardy.
Due process.
Equal protection.
Factual determination by magistrate.
Failure to advise of rights.
Failure to offer test.
Hearing.
Burden of proof.
Effect upon criminal prosecution.
Timeliness.
Implied consent.
Inability to complete test.
Independent test.
Failure to request.
Failure to request.
Instructions.
Intent.
Jurisdiction of court.
Legal cause.
Legislative intent.
Pleadings.
Police roadblock.
Probable cause.
Purpose.
Reasonable grounds.
Refusal to take test.
Burden of proof for showing cause.
Failure to offer affidavit of refusal.
Improperly informed of consequences.

No statutory right to refuse.
Properly informed of consequences.
Request for test by defendant.
Request for test by officer.
Revocation of probation.
Right to counsel.
Search and seizure.
Self-incrimination.
Test.
Purpose.
Suspension absolute.
Tribal consent to increased supervision pe-
riod.
Type of test.
Valid suspension.
Venue.
Waiver of objection.
Actual Physical Control.
Where defendant was found sitting in the
driver's seat behind the steering wheel with
the engine running and the lights on, he was
in "actual physical control" of the vehicle as
denned by subsection (7) of this section. State
v. Clayton, 113 Idaho 817, 748 P.2d 401
(1988).
Advisory Form.
This section makes no provision that each
individual be allowed the opportunity to per-
sonally read the advisory form. Claiborne v.
1994).
Two paragraphs of city's standard advisory
form were inconsistent with and did not prop-
erly advise motorist of his rights and duties
under this section. One paragraph was am-
biguous and could be reasonably read in man-
ner contradicting the statute, i.e., that per-
sons holding certain classes of commercial
driver's licenses will not have their licenses
seized or be granted temporary permits; the
other's use of the phrase "explain why" com-
municated a lower burden of proof than the
phrase "show cause" used in this section.
Virgil v. State, 126 Idaho 946, 895 P.2d 182
(Ct. App. 1995).
Defendant's license suspension could not be
upheld where defendant was read the correct
information listed in subsection (3) of this
section, but was incorrectly advised that if he
took and failed the test he would have his
license automatically suspended for a period
of ninety days or one year. This latter infor-
mation was part of 18-8002A, a statute that
was not in effect at the time defendant was
requested to submit to the BAC, and the
additional erroneous information caused the
advisory form read to defendant to not meet
the requirements of the law in effect at the
time. Head v. State, 136 Idaho 409, 34 P.3d
1092 (Ct. App. 2000).
Applicability to Indian Reservations.
The state, clearly having the jurisdiction
and responsibility for enforcement and pun-
ishment of criminal offenses relating to the
operation of motor vehicles upon the high-
ways and roads maintained by the state and
its political subdivisions within the bound-
aries of Indian reservations, also has jurisdic-
tion to enforce the provisions of this section
for the same reasons; the implied consent law
of this section is ancillary to, and in aid of, the
state's policy of enforcing its driving under
the influence laws, and is specifically in-
tended by the legislature to supplement the
enforcement of its policy to protect the driving
public and to enforce the safe operation of
motor vehicles upon the highways and roads
of the state, including those that are located
in or upon Indian reservations. State v.
McCormack, 117 Idaho 1009, 793 P2d 682
(1990).
Balancing of Interests.
Even though a licensee's interest in main-
taining his or her license for employment
purposes is substantial, it must be subordi-
nated to the state's interest in preventing
intoxicated persons from driving on Idaho's
highways, especially where the individual is
entitled to postsuspension review procedures.
McNeely v. State, 119 Idaho 182, 804 P.2d 911
(Ct. App. 1990).
Constitutionality.
This section was enacted to discourage the
intoxicated driver from attempting to operate
a motor vehicle and as such constitutes a
proper exercise of the police power. State v.
Clayton, 113 Idaho 817, 748 P.2d 401 (1988).
Construction With Other Statutes.
In the case of a failure of evidentiary test-
ing, rather than a refusal to take the test, the
legislature has chosen to provide that the
separate civil and criminal suspensions shall
run concurrently unless the criminal court
states otherwise; however, no such preference
for concurrent suspensions is afforded in the
event of a refusal to submit to evidentiary
testing, and where defendant refused to sub-
mit to a blood test, he was not eligible for any
benefit under
18-8002A. Halen v. State,

Idaho ,
P.3d , 2000 Ida. App. LEXIS 81

(Ct. App. Oct. 12, 2000).
Consultation with Counsel.
A licensee required to submit to a blood
alcohol concentration test under the implied
consent statute has no constitutional right to
consult with counsel prior to taking that test;
license suspension under the implied consent
statute is intended as a civil, rather than a
criminal, penalty for failure to submit to an
evidentiary BAC test, and under the implied
consent statute anyone who accepts the priv-
ilege of operating a motor vehicle upon Ida-
ho's highways has consented in advance to
submit to a BAC test without the right to
consult with counsel. McNeely v. State, 119
Idaho 182, 804 P.2d 911 (Ct. App. 1990).
Defendant had no right to counsel before
deciding to submit to a blood alcohol concen-
tration test. Section 19-515 provides a person
who is arrested with the right to visit with an
attorney upon request; however, nothing in
its language implies that the arrested per-
son's right to counsel should be extended
beyond any safeguard provided under the
sixth amendment securing an accused's right
to counsel during critical stages of a criminal
proceeding; this protection does not extend to
investigatory proceedings. McNeely v. State,
119 Idaho 182, 804 P.2d 911 (Ct. App. 1990).
The legislative scheme of subsection (2) of
this section

prohibiting a licensee from
consulting with counsel before submitting to a
blood alcohol concentration test

is ratio-
nally related to a legitimate government in-
terest, and although it might be advanta-
geous for a licensee to consult with an
attorney prior to submitting to a BAC test,
there appears to be no reason to abrogate the
legislature's authority to deny this right in
order to advance its objective to provide for
safer highways; accordingly, defendant's sub-
stantive due process rights were not violated
by refusing him the right to consult with
counsel at the time he was asked to submit to
a BAC test. McNeely v. State, 119 Idaho 182,
804 P.2d 911 (Ct. App. 1990).
An alcohol concentration test is outside the
scope of a "criminal prosecution" for the pur-
pose of Const., Article
1, 13. Triplett v.
1991).
A motorist does not have a right to consult
counsel before taking a blood-alcohol test.
State v. Burris, 125 Idaho 289, 869 P. 2d 1384
(Ct. App. 1994).
Delayed Assent.
If a motorist, having initially declined to
take a blood-alcohol test, reconsiders and
gives a timely and unequivocal assent, he
cannot be deemed to have "refused" the test
under this section. Smith v. State, 115 Idaho
808, 770 P.2d 817 (Ct. App. 1989).
Adelayed assent to take a blood-alcohol test
will be deemed timely only if it is given while
the motorist is still in police custody, if it is
given when testing equipment and personnel
are readily available, and if the delay pro-
duced by the initial declination would not
cause the outcome of the test to be materially
affected. Smith v. State, 115 Idaho 808, 770
P.2d 817 (Ct. App. 1989).
The burden of proving that a delayed assent
to a blood-alcohol test was timely rests upon
the motorist. Smith v. State, 115 Idaho 808,
770 P.2d 817 (Ct. App. 1989).
Motorist who initially refused to submit to
evidentiary test, but some forty minutes after
such refusal consented to such testing, had
the burden of proving that the delay in taking
the test did not cause the outcome of the test
to be materially affected. Pangburn v. State,
124 Idaho 139, 857 P.2d 618 (1993).
Double Jeopardy.
The prosecution for driving under the influ-
ence (DUD was not barred by the double
jeopardy component of the Fifth Amendment
of the United States Constitution or by
18-
301 (now repealed) as the administrative sus-
pension of defendant's license did not fore-
close subsequent punishment for the DUI
charge arising out of the same incident. State
v. Talavera, 127- Idaho 700, 905 P2d 633
(1995).
Due Process.
The destruction of the blood samples after
blood alcohol testing was done by trained
technicians at an independent hospital did
not result in a deprivation of due process
under the United States Constitution, where
there was no indication that the destruction
of the blood samples represented a calculated
effort by law enforcement personnel to cir-
cumvent disclosure requirements, the defen-
dants did not establish that the blood sam-
ples, if available, would have played a
significant role in their defense, and the de-
fendants could have had their own blood tests
run pursuant to subsection (2) of
18-8003.
State v. Albright, 110 Idaho 748, 718 P.2d
1186 (1986).
The implied consent statute did not violate
DUI suspect's due process rights by not spec-
ifying that he would be required to carry the
burden of proof at his show cause hearing.
McNeely v. State, 119 Idaho 182, 804 P.2d 911
(Ct. App. 1990).
There was no due process violation due to
the fact that individual suspected of DUI was
not offered the blood alcohol concentration
test of his choice; it is not the licensee who can
choose the BAC test to be given; however, the
licensee has the opportunity to test the suffi-
ciency of the original test results, and avoid
the consequences of an erroneous deprivation
of his or her driving privileges. McNeely v.
1990).
The police officers' denial of defendant's
request to phone her attorney, after having
been arrested for driving while under influ-
ence (DUI) and having been given an
evidentiary blood-alcohol content (BAC) test,
constituted a due process violation, in that
she was prevented from contacting someone
who could facilitate the administration of an
independent BAC test and other exculpatory
evidence which could be used to challenge the
State's evidence with minimal fiscal and ad-
ministrative burden upon the State. State v.
Carr, 128 Idaho 181, 911 P.2d 774 (Ct. App.
1995).
Where the police officers, who denied defen-
dant's request to phone her attorney after
having been arrested for driving while under
influence (DUD, contended that their impro-
priety was harmless since it was speculative
that the results of an independent blood test
would provide exculpatory evidence, consider-
ing that the initially administered breath test
revealed a blood-alcohol content (BAC) of .20
and .21, the appellate court concluded that
this section clearly contemplates the rights of
those who are arrested for DUI to obtain an
independent test, and denying their opportu-
nity to do so, is in violation of this section and
of their due process rights. State v. Carr, 128
Idaho 181, 911 R2d 774 (Ct. App. 1995).
Defendant's due process rights were not
infringed by police officer disposing of in-
formed consent advisory form, on which de-
fendant had indicated his initial refusal of the
test, but subsequent to which, defendant sub-
mitted to the test. State v. Harmon, 131 Idaho
80, 952 P.2d 402 (Ct. App. 1998).
Equal Protection.
This section's prohibition against licensee-
attorney contact prior to taking a blood alco-
hol concentration test is rationally related to
the legitimate government interest of obtain-
ing expedient and accurate blood alcohol con-
centration test results, thereby increasing the
likelihood of detecting drunk drivers; thus,
the rational basis test was satisfied, and that
none of licensee's equal protection rights were
violated where he was denied his right to
counsel at the time he refused a BAC test.
McNeely v. State, 119 Idaho 182, 804 P2d 911
(Ct. App. 1990).
With regard to those individuals deprived
of a right to counsel when asked to submit to
a blood alcohol concentration test under the
implied consent statute, this group does not
represent a suspect class, nor are there any
fundamental interests involved; the classes
and interests are those affected by social and
economic legislation, and under these circum-
stances, the standard to be employed is one of
rational basis, requiring only that the statu-
tory scheme be related to some legitimate
government purpose. McNeely v. State, 119
Idaho 182, 804 P.2d 911 (Ct. App. 1990).
Factual Determination by Magistrate.
Magistrate presiding over a driver's license
suspension hearing was entitled to make a
factual determination as to probable cause
from uncontradicted testimony of investigat-
ing officer, and to disregard other testimony
by the officer concerning the justification for
the stop. Justice v. State, 119 Idaho 158, 804
P2d 331 (Ct. App. 1990).
Failure to Advise of Rights.
Where probable cause existed for the taking
and testing of blood, and the evidentiary test
was conducted in a reasonable manner, the
results of the evidentiary test should be ad-
missible in a criminal prosecution regardless
of whether or not the investigating officer
complied with the provisions of subsection (3)
of this section. State v. Woolery, 116 Idaho
368, 775 R2d 1210 (1989).
Intermediate appellate decision of the dis-
trict court reversing an order of the magis-
trate granting the driver's motion to set aside
the magistrate's previous order suspending
his driver's license, was proper where, assum-
ing the general applicability of the Idaho
Rules of Civil Procedure to license suspension
proceedings by virtue of I.M.C.R. 9.2(e), a
conflict remained between I.M.C.R. 9.2(b) and
I.R.C.P. 60(b)(1); because I.M.C.R. 9.2(b) was
the more specific rule, it controlled over the
more general I.R.C.P. 60(b)(1) and therefore,
I.R.C.P. 60(b)(1) was not available to remedy
the driver's untimely request for a show cause
hearing. Hansen v. State (In re Hansen), 138
Idaho 865, 71 P.3d 464 (Ct. App. 2003).
Failure to Offer Test.
Due process requires only that the police
give a person accused of driving under the
influence a "reasonable opportunity to at-
tempt to procure a timely sample," through
his own efforts and at his own expense; where
the defendant offered to take a test if she
could be released, but did not request the
opportunity to obtain her own test. The re-
fusal of the police to give her a test on demand
did not infringe upon her right to due process.
State v. Hayes, 108 Idaho 556, 700 P.2d 959
(Ct. App. 1985).
Where the defendant failed an alphabet
test and physical dexterity test administered
by the arresting officers at the time and place
of the arrest; where she was not offered a
blood alcohol test at that time because on one
or two previous occasions she had been un-
able to blow up the balloon, which is an
indispensable requirement of the test; and
where finally, sometime after she was trans-
ported to jail, she indicated she would take a
test if she could be released from jail, the
failure or refusal to administer a test under
these circumstances was not "arbitrary" in
violation of the equal protection clause. State
v. Hayes, 108 Idaho 556, 700 P.2d 959 (Ct.
App. 1985).
Magistrate erred in concluding evidence of
defendant's blood alcohol test result should
have been suppressed because arresting of-
ficer did not provide defendant with an oppor-
tunity for an additional test since facts
showed defendant requested only an alterna-
tive test, not an additional test. State v.
(Ct. App.), cert, denied, 117 Idaho 523, 789
P.2d 519 (1989).
Subsection (4)(d) of this section does not
require the suppression of the results of the
state's BAC test whenever a police officer fails
to inform the licensee of his rights under
subsection (3)(d), it only requires such sup-
pression when the officer denies the addi-
tional test; thus, where defendant was ad-
vised by his attorney to request an additional
BAC test, officer's failure to inform defendant
of his rights under 18-8002(3)(d) did not con-
stitute a denial of his statutory right to an
additional BAC test. Magistrate did not err in
refusing to suppress the results of the state's
BAC test on that basis. State v. Rountree, 129
Idaho 146, 922 P.2d 1072 (Ct. App. 1996).
Where defendant simply told deputy who
was not qualified to administer a breath test
that he wanted a breathalyzer test and did
not request that the officers facilitate his own
arrangements for a second test, such conduct
did not constitute a denial of defendant's right
to a second test as this section does not
require the state to administer the second
BAC test when requested to do so; the state
must do more than simply fail to administer a
second test in order for that failure to consti-
tute a denial under subsection (4)(d) of this
section. State v. Rountree, 129 Idaho 146, 922
P.2d 1072 (Ct. App. 1996).
Hearing.
Where the defendant had already been
granted one continuance of the license sus-
pension hearing, the motion for a second
continuance was not made until the outset of
the hearing, and the defendant was unavail-
able because of business reasons, there was
no abuse of discretion in the magistrate's
decision to refuse a second continuance. Heth
v. State, 114 Idaho 893, 761 P.2d 1245 (Ct.
App. 1988) (decision prior to 1987 amend-
ment).
The only inquiry before the judge in a
driver's license suspension hearing under this
section is whether the person is in the "driv-
er's position" of a vehicle with the motor
running or with the vehicle moving. Vogt v.
State, 117 Idaho 545, 789 P.2d 1136 (1990).
From the State's perspective, a license sus-
pension (BAC) hearing is a minor matter
where one would not expect the State to
prosecute the action vigorously; thus collat-
eral estoppel should not apply to the issues
decided at the hearing. The State, although it
initiates the suspension, has little or no in-
centive to vigorously litigate the license sus-
pension because it is a civil matter pursued by
the driver. The driver's license can be sus-
pended without the State doing anything
more than filing the affidavit if the driver is
unable to convince the court there was cause
to refuse the evidentiary test. Allowing issues
decided at a BAC hearing to preclude issues
from being litigated at a criminal DUI trial
would effectively turn the hearing into a crim-
inal matter, as the state would be forced to
anticipate possible defenses and litigate ag-
gressively at the BAC hearing to prevent
issue preclusion in any future criminal mat-
ter. State v. Gusman, 125 Idaho 805, 874 P2d
1112 (1994).
Burden of Proof.
At a driver's license suspension hearing,
defendant had the burden of showing why he
did not submit to the breathalizer test. Jus-
tice v. State, 119 Idaho 158, 804 P2d 331 (Ct.
App. 1990).
Effect Upon Criminal Prosecution.

Issues decided at a license suspension
(BAC) hearing were not entitled to preclusive
effect in criminal prosecution based upon ei-
ther the doctrine of res judicata or collateral
estoppel. State v. Gusman, 125 Idaho 805, 874
P.2d 1112 (1994).
Timeliness.
Magistrate did not lose jurisdiction over a
driver's license suspension hearing by her
failure to timely hold a hearing to determine
whether good cause existed for defendant's
refusal to submit to a blood alcohol test; the
issue of timeliness was not preserved as a
viable issue on appeal. See Von Krosigk v.
State, 116 Idaho 520, 777 P2d 742 (Ct. App.
1989).
Implied Consent.
Since defendant, convicted of aggravated
driving under the influence, had impliedly
consented to the blood alcohol test pursuant
to subdivision (1) of this section, the state was
not required to demonstrate that the search
was justified by exigent circumstances; lower
court's order denying defendant's motion to
suppress results of blood alcohol test was
affirmed. State v. Rodriguez, 128 Idaho 521,
915 P.2d 1379 (Ct. App. 1996).
Statement made by arresting officer to de-
fendant, who had refused to take
breathalyzer test, that it would be in defen-
dant's "best interest" to take the test, did not
render defendant's statutorily implied con-
sent to the test ineffective for Fourth Amend-
ment purposes. State v. Harmon, 131 Idaho
80, 952 P.2d 402 (Ct. App. 1998).
By implying consent, this statute removes
the right of a driver to refuse an evidentiary
test for blood alcohol concentration. State v.
Nickerson, 132 Idaho 406, 973 P.2d 758 (Ct.
App. 1999).
Inability to Complete Test.
By telling officer she was doing the best she
could and blowing all the air she had, appel-
lant sufficiently articulated a physical inabil-
ity to complete the task so as to put the officer
on notice that a different test should be uti-
lized. It was not essential that she give the
officer a medical diagnosis for her physical
condition. Helfrich v. State, 131 Idaho 349,
955 P.2d 1128 (Ct. App. 1998).
Independent Test.
Failure to Request.
Where defendant after submitting to the
BAC test and having the standard
18-8002
Advisory Form read to him failed to assert his
right to an independent BAC test, his consti-
tutional right to procedural process was not
violated by his not having been given access
to a phone, since such access at this point in
the detention is the mechanism through
which a DUI detainee executes his right to a
second test and once the request for the
second test is made the state may not inter-
fere with or deny access to a telephone to
arrange for such a test, but if no request is
made access to a phone is not necessary. State
v. Shelton, 129 Idaho 877, 934 P.2d 943 (Ct.
App. 1997).
Failure to Request.
Where defendant did not affirmatively ask
for an independent blood alcohol concentra-
tion test and refused an offer from the police
to use the phone after his arrest, a showing
that his son and attorney were at the jail to
bond him out and that there was an unex-
plained delay in his release was insufficient to
inform jail personnel that defendant wished
to exercise his right to obtain an independent
test. State v. Cantrell,
Idaho , 80 P.3d 345

(Ct. App. 2003).
Instructions.
Instruction informing the jury that defen-
dant had no right to refuse to submit to a
Blood Alcohol Concentration test was proper,
despite defendant's contention that this lan-
guage amounted to evidence of prior bad acts
prohibited by IRE 404(b) and that it raised an
inference that defendant was guilty of other
offenses, thereby prejudicing him. State v.
Tate, 122 Idaho 366, 834 P.2d 883 (Ct. App.
1992).
Intent.
The State is not required to prove that a
person had any intent to drive in the context
of a driver's license suspension hearing under
this section. Vogt v. State, 117 Idaho 545, 789
P.2d 1136 (1990).
Jurisdiction of Court.
The magistrate court erred in summarily
terminating a driver's license suspension pro-
ceeding and returning the license to a driver
on the ground that the court did not have
jurisdiction to proceed on the basis of fact that
the affidavit filed by the officer was invalid;
with both jurisdiction over the subject matter
and personal jurisdiction over the parties, the
magistrate court erred when it concluded that
"the court does not have jurisdiction to pro-
ceed." Hanson v. State, 121 Idaho 507, 826
P.2d 468 (1992).
Legal Cause.
Officer's observation that defendant acti-
vated her right-hand turn signal and then
failed to make a turn at three consecutive
intersections provided him with "legal cause"
to stop her based on his reasonable and
articulable suspicion she was engaged in in-
attentive driving. Deen v. State, 131 Idaho
958, 958 P2d 592 (1998).
Legislative Intent.
The legislature acknowledged that some
individuals refuse to comply with their previ-
ously granted consent to submit to an
evidentiary test, and rather than condone a
physical conflict, the legislature provided for
the administrative revocation of the license of
an individual who refuses to comply with his
previously given consent; such legislative ac-
knowledgment, however, was not meant to
hamstring the ability of law enforcement to
properly investigate and obtain evidence of
serious crimes committed by those individu-
als who have chosen to drink and then drive.
State v. Woolery, 116 Idaho 368, 775 P2d 1210
(1989).
The clear legislative intent behind the li-
cense suspension scheme is to determine the
status of driving privileges as swiftly as pos-
sible after a test is refused. Cummings v.
1990).
As a matter of law, a driver's consent to
take a required evidentiary test must be un-
conditional and based on the strong state
interest in protecting the public from drunk
drivers and from the plain language of the
statute, it is evident that the legislature pre-
sumed a driver's consent to take an
evidentiary test to be unconditional; there-
fore, even if the defendant's request is reason-
able, the defendant cannot condition submis-
sion to an evidentiary test on the jailer's
compliance with the request. Goerig v. State,
121 Idaho 26, 822 P.2d 545 (Ct. App. 1991).
Pleadings.
Since the suspension of driving privileges
under this section is a "civil penalty," the more
liberal pleading rules of the Idaho Rules of
Civil Procedure are applicable to the proceed-
ings; nothing in the Idaho Rules of Civil
Procedure or in subsection (4)(c) of this sec-
tion requires an affidavit as a statutory con-
dition precedent to the court conducting and
concluding a hearing where a written request
has been made by the driver whose license
has been seized. Hanson v. State, 121 Idaho
507, 826 P.2d 468 (1992).
Police Roadblock.
Because the evidence used to convict the
defendant of driving under the influence was
unconstitutionally obtained pursuant to a
warrantless search, prior to which the police
lacked individualized suspicion of criminal
wrongdoing and authority to establish a road-
block, the magistrate erred in denying the
defendant's motion to suppress. State v.
Henderson, 114 Idaho 293, 756 P.2d 1057
(1988).
A police roadblock designed to detect and
deter drunk driving is not constitutionally
permissible where the police have failed to
obtain a judicial warrant, have no probable
cause to believe the automobile driver is en-
gaged in criminal wrongdoing, and lack legis-
lative authority to establish a roadblock.
State v. Henderson, 114 Idaho 293, 756 P. 2d
1057 (1988).
Probable Cause.
Where police officer, after stopping defen-
dant's automobile, noticed that defendant's
eyes were glazed and bloodshot, his speech
was slightly slurred and his breath smelled of
alcohol, and where the officer also noted that
defendant had a tail light out, crossed the fog
line twice, and admitted to have had three
beers to drink, these facts established proba-
ble cause to arrest defendant and to request
that he submit to a blood-alcohol test. State v.
Armbruster, 117 Idaho 19, 784 P.2d 349 (Ct.
App. 1989).
Police officer had probable cause to request
driver to take a breath alcohol test after she
had admitted at the hospital to drinking some
wine before driving. State v. Cooper, 119
Idaho 654, 809 P2d 515 (Ct. App. 1991).
Officer had probable cause to request mo-
torist to submit to an alcohol test where
officer found motorist at the scene of an acci-
dent, where motorist, had a head injury that
matched damage to vehicle's windshield, and
where motorist was thick-tongued and had
trouble keeping his balance and admitted to
drinking but denied driving the vehicle.
Gifford v. State, 123 Idaho 558, 850 P.2d 207
(Ct. App. 1993).
Where defendant was not aware of officer's
overhead lights until defendant backed into
the patrol car, and where officer then smelled
alcohol on defendant's breath, administered
field sobriety tests, and defendant refused a
breath test, defendant was not "seized" at the
time overhead lights were turned on, and
probable cause existed for arrest after acci-
dent. Mackey v. Mackey, 124 Idaho 585, 861
P.2d 1250 (Ct. App. 1993).
Purpose.
The purpose of this section is to provide an
incentive for motorists to cooperate in deter-
mining levels of blood-alcohol content by a
reasonably precise scientific method. State v.
Breed, 111 Idaho 497, 725 P.2d 202 (Ct. App.
1986).
This section is devoted entirely to the ad-
ministrative, or civil, suspension of the li-
cense of a driver, and does not in any way
discuss criminal offenses related to driving
under the influence of alcohol; rather, it sets
forth the administrative procedures the legis-
lature established in its attempt to restrict or
control the use of the highways by those
persons who cannot or will not conform their
actions to the accepted standards of civilized
behavior. State v. Woolery, 116 Idaho 368, 775
P.2d 1210 (1989).
This section is a prophylactic rule which is
intended to discourage intoxicated persons
from entering motor vehicles except as pas-
sengers; it is no matter how unusual the
circumstances leading to the placement of an
intoxicated person in the driver's position of a
vehicle with the motor runningonce there,
this section is brought into operation. Vogt v.
State, 117 Idaho 545, 789 P.2d 1136 (1990).
Reasonable Grounds.
Defendant's own evidence that he had been
drinking and that he smelled of alcohol, to-
gether with the observations of the officer of
defendant's conduct, including the failure to
stop at the stop sign, provided the officer with
the requisite "reasonable grounds" to demand
that he take the alcohol concentration test;
defendant's explanation that he was on med-
ication which he felt might affect the test
results, and his other witnesses who testified
that he was not intoxicated could not remove
the "reasonable grounds." State v. Tierney,
109 Idaho 474, 708 P.2d 879 (1985).
Where the officer testified that he smelled
alcohol on defendant's breath, that defen-
dant's eyes were glassy, and that defendant
failed all of the field dexterity tests, and the
officer had the benefit of another officer's
observations and assessments regarding de-
fendant's driving and level of intoxication,
probable cause or reasonable grounds were
established under this section. State v.
Griffiths, 113 Idaho 364, 744 P.2d 92 (1987).
Where, in a show cause hearing for return
of an operator's license, the record showed
that the defendant's vehicle was traveling at
excessive speed on a public highway, upon
stopping the vehicle, the arresting officer
smelled alcohol on the defendant's breath, her
eyes were bloodshot, she failed all of the field
dexterity tests and she admitted to the officer
that she had been drinking, these facts estab-
lished probable cause or reasonable grounds
under this section for the officer to request
that the defendant take the blood-alcohol test.
Nowoj v. State, 115 Idaho 34, 764 P.2d 111 (Ct.
App. 1988).
Where the state placed in evidence at the
administrative hearing the incident report
prepared by the arresting officer and records
pertaining to the citizen's telephone call
which showed that the citizen identified her-
self and gave her address, that she com-
plained of an "unwanted" intoxicated person
at a specified address, and that the intoxi-
cated person had left in a described pickup
headed in a particular direction, the evidence
was sufficient to show reasonable suspicion
for the stop. Wilson v. Idaho Transp. Dep't,
136 Idaho 270, 32 P.3d 164 (Ct. App. 2001).
Refusal to Take Test.
A demonstrated physical inability to per-
form the requested test would be sufficient
cause for refusal of the test. State v. Griffiths,
113 Idaho 364, 744 P.2d 92 (1987).
A fear of needles may establish sufficient
cause for refusing to submit to a blood test
requested pursuant to this section if the fear
is of such a magnitude that as a practical
matter the defendant is psychologically un-
able to submit to the test, and if the fear is
sufficiently articulated to the police officer at
the time of refusal so that the officer is given
an opportunity to request a different test.
State v. Griffiths, 113 Idaho 364, 744 P.2d 92
(1987).
Adefendant may prevail at a hearing under
this section by showing "cause" for his or her
refusal of a sufficient magnitude that it may
be fairly said that a suspension of the license
would be unjust or inequitable. State v.
Where the defendant was requested to sub-
mit to a blood test and he refused, his conduct
was a refusal, regardless of whether he ex-
pressed a genuine desire to submit to a breath
or urine test. State v. Griffiths, 113 Idaho 364,
744 P.2d 92 (1987).
Although under subsection (3) of this sec-
tion a driver has the physical ability to refuse
to submit to an evidentiary test, that section
did not create a statutory right in a driver to
withdraw his implied consent or to refuse to
submit to an evidentiary test to determine his
blood alcohol level. State v. McCormack, 117
Idaho 1009, 793 P.2d 682 (1990).
Conduct of defendant stopped for driving
under the influence constituted a refusal to
submit to a test where, although he did not
trust the accuracy of the Intoximeter and
offered to have a blood alcohol test drawn at
his own expense if the investigating officer
would take him to the hospital, the choice of
which alcohol concentration test will be given
rests with the police officer, and defendant
could have taken the Intoximeter test as the
officer requested and still have had a blood
test administered at his own expense.
Cummings v. State, 118 Idaho 800, 800 P.2d
687 (Ct. App. 1990).
Where defendant agreed to take a
breathalyzer test only on the condition that
the police administering the test remove his
handcuffs and the police refused and defen-
dant did not take the test, defendant's condi-
tional consent to take a test to determine
blood alcohol content was considered to be a
refusal for the purpose of determining
whether his driver's license should be revoked
under subsection (4) of this section. Goerig v.
1991).
Burden of Proof for Showing Cause.

Defendant did not show that he was phys-
ically unable to take the test and the state
presented uncontroverted evidence that being
handcuffed does not render a person physi-
cally incapable of taking a breathalyzer test;
therefore, the burden of proof rested on the
defendant to prove physical inability to take
the test or to establish another cause of suffi-
cient magnitude to refuse to take the test.
Goerig v. State, 121 Idaho 26, 822 P2d 545
(Ct. App. 1991).
The burden of proving a cause of sufficient
magnitude for refusing to take a breathalyzer
is on the defendant; physical inability to take
the test is a sufficient "cause" under this
section. Goerig v. State, 121 Idaho 26, 822
P.2d 545 (Ct. App. 1991).
Failure to Offer Affidavit of Refusal.

Where the transcript of a "breath-alcohol
test refusal" hearing showed that the parties
and the court understood the issue in the case
to be whether the officer had probable cause
to stop defendant based on observations the
officer had made regarding defendant's driv-
ing, and where defendant's refusal to take the
test was never questioned, there was no re-
versible error, nor even a properly preserved
claim of error, flowing from the failure to put
affidavit of refusal into evidence. Clayton v.
1990).
Improperly Informed of Conse-

quences.
Driver suspected of driving under the influ-
ence had the right to be correctly advised by
the officer of the true consequences of refusing
to take the blood alcohol test, i.e., that his
license would be suspended for 180 days, and
where that advice was not given, the state
failed to comply with the statute governing
suspension of licenses for failure to submit to
a chemical test, and the district court cor-
rectly held that defendant's license could not
be suspended even though he refused to sub-
mit to a chemical test. Beem v. State, 119
Idaho 289, 805 P.2d 495 (Ct. App. 1991).
No Statutory Right to Refuse.

The legislature has not created a statutory
right to refuse to submit to an evidentiary test
to determine a driver's blood alcohol level.
State v. Woolery, 116 Idaho 368, 775 P.2d 1210
(1989).
The requirement contained in subsection
(3) that a motorist suspected of driving while
under the influence be advised of the conse-
quences of refusal did not create a right to
refuse the test or to withdraw consent. State
v. Burris, 125 Idaho 289, 869 P.2d 1384 (Ct.
App. 1994).
Court did not err in denying defendant's
motion to suppress blood alcohol test results
after he caused a fatal accident and where he
revoked his consent, because the state had a
compelling interest to protect citizens from
drunk drivers. State v. Cooper, 136 Idaho 697,
39 P.3d 637 (Ct. App. 2001).
Individual's expressed fear of needles was
not sufficient grounds for refusing to submit
to a police officer's request for a blood alcohol
concentration test where the individual failed
to articulate a psychological inability to sub-
mit to the test. Halen v. State, 136 Idaho 829,
41 P.3d 257 (2002).
Driver's driving privileges were properly
suspended where the driver refused to submit
to a blood test because the driver wanted an
attorney present, and the driver had no right
to have counsel present, or to consult counsel
before the test. Head v. State, 137 Idaho 1, 43
P.3d 760 (2002).
Properly Informed of Consequences.

Where the defendant was taken to the
police department and the officer read the
standard consent form to defendant which
included all of the information required by
subsection (3) of this section, and after hear-
ing this, defendant was asked whether he
would submit to an evidentiary test and de-
fendant refused, the defendant was properly
advised regarding the refusal to submit to a
requested blood-alcohol test. State v.
Section 18-8002 set forth a list of matters
about which a person had to be advised when
evidentiary testing was requested, including
the consequences of refusal of a breath test;
however, the legislature had not deemed it
necessary to include the consequences that
will follow if a person submitted to and passed
the breath test. Thompson v. State (In re
Thompson), 138 Idaho 512, 65 P.3d 534 (Ct.
App. 2003).
Request for Test by Defendant.
Where in prosecution for driving under the
influence defendant requested that he be al-
lowed to obtain a blood test and the police
officer told him that he would have to wait
until after the officer was finished booking
him, and when officer finished and offered to
take defendant for test, defendant declined
and indicated that he did not feel well and
wanted to go home, in essence defendant
withdrew his request for the test, and it was
because of this that no test was obtained and
thus magistrate properly concluded there was
no basis for suppressing the test results or
dismissing the charges. State v. Greathouse,
119 Idaho 732, 810 P.2d 266 (Ct. App. 1991).
Request For Test By Officer.
An officer's authority to require a defendant
to submit to a blood withdrawal does not turn
on whether aggravating factors are present.
Halen v. State, 136 Idaho 829, 41 P.3d 257
(2002).
Revocation of Probation.
Where the defendant's criminal history of
defendant charged with violating probation
granted in conjunction with a felony convic-
tion for driving under the influence was re-
plete with driving violations involving alco-
hol, and given the fact that although on more
than one occasion the defendant had at-
tempted to treat his alcohol problem, he had
failed to complete the treatment programs
ordered by the court, and since it is entirely
within the discretion of the trial court to
determine that if rehabilitation measures un-
dertaken during probation fail, and if such
measures should be shifted to the more struc-
tured setting of a custodial facility, the dis-
tion by revoking probation and imposing one
of incarceration. State v. Johnson, 119 Idaho
107, 803 P2d 1013 (Ct. App. 1991).
Right to Counsel.
Where a DUI defendant after submitting to
a BAC test and being advised of his right to
an independent test did not avail himself of
this right, since there is not a constitutional
right to counsel prior to or at the time of the
police's evidentiary BAC test and since
19-
853 does not enlarge this constitutional right
because the period of time at issue does not
constitute a "critical stage" in a criminal pro-
ceeding, defendant's right to counsel was not
violated inasmuch as he was advised of this
right at his arraignment. State v. Shelton, 129
Idaho 877, 934 P.2d 943 (Ct. App. 1997).
There is no constitutional right to counsel
prior to or at the time of the police's
evidentiary BAC test. State v. Shelton, 129
Idaho 877, 934 P.2d 943 (Ct. App. 1997).
Defendant had no Sixth Amendment right
to counsel during period between his initial
refusal of test and his ultimate decision to
submit to the procedure. State v. Harmon, 131
Idaho 80, 952 P.2d 402 (Ct. App. 1998).
Search and Seizure.
Because the temporary permit issued under
this section which defendant handed the of-
ficer was not official identification and would
not allow him to drive upon the public high-
ways because it was expired, the possession of
the expired permit by the officer did not
prevent defendant from leaving and no
Fourth Amendment seizure of defendant's
person occurred. State v. Nickel, 134 Idaho
610, 7 P.3d 219 (2000).
Self-incrimination.
Defendant's Fifth Amendment right
against self-incrimination was not infringed
by absence of Miranda warnings before he
took test. State v. Harmon, 131 Idaho 80, 952
P.2d 402 (Ct. App. 1998).
Test.
Purpose.
The purpose of the blood alcohol concentra-
tion test under the implied consent statute is
to gain evidence of a person's blood alcohol
level in order to determine whether he or she
was driving under the influence; the proce-
dure is investigatory in nature. McNeely v.
1990).
Suspension Absolute.
A defendant is not constitutionally entitled
to seek limited driving privileges at any time
during his or her suspension under this sec-
tion; the state has an interest in traffic safety,
and the detecting of alcohol-impaired drivers,
and this objective is served rationally by im-
posing a sanction of absolute suspension upon
motorists who refuse to be tested. State v.
Breed, 111 Idaho 497, 725 P.2d 202 (Ct. App.
1986).
An order of suspension for failure to take a
blood-alcohol test under this section remains
in effect despite a subsequent judgment con-
taining no period of suspension under
18-
8005. State v. Breed, 111 Idaho 497, 725 P.2d
202 (Ct. App. 1986).
Tribal Consent to Increased Supervision
Period.
Since prior to the enactment of
67-5101
the legislature enacted
49-352 (repealed)
which provided for a 90-day license suspen-
sion for failure to submit to a breath test, and
where in 1984, the legislature repealed
49-
352 and enacted this section which provided
for a 180-day suspension period, the in-
creased suspension period did not constitute a
substantial change in the law or new assump-
tion of jurisdiction requiring tribal consent;
the state had previously assumed jurisdiction
in this area of the law pursuant to Congress'
consent in 1963, and further permission or
consent from the Nez Perce Tribe under 25
U.S.C. 1321 is not required for enforcement
of this section. State v. McCormack, 117 Idaho
1009, 793 P.2d 682 (1990).
Type of Test.
The choice as to which type of evidentiary
test for concentration of alcohol, drugs or
other intoxicating substances will be re-
quested rests with the police officer, not the
defendant. State v. Griffiths, 113 Idaho 364,
744 P.2d 92 (1987).
Where, after officer erroneously informed
defendant that a second BAC test would have
to be a blood test rather than a breath test,
defendant and attorney repeatedly requested
a breath test while defendant was being pro-
cessed into jail, such misinformation did not
constitute a denial of defendant's right to
second BAC test of his own choosing; magis-
trate's refusal to suppress results of state's
BAC was upheld. State v. Rountree, 129 Idaho
146, 922 P.2d 1072 (Ct. App. 1996).
Valid Suspension.
Apolice officer must have probable cause to
stop a driver and probable cause to request
that the driver submit to a blood alcohol
content test before a valid suspension for a
refusal can occur. Brink v. State, 117 Idaho
55, 785 P.2d 619 (1990).
Venue.
The magistrate court had venue in action
regarding suspension of driving privileges in
the county where the defendant refused to
submit to a blood test to determine the alcohol
content of his blood. State v. Griffiths, 113
Idaho 364, 744 P.2d 92 (1987).
Waiver of Objection.
Where, in a prosecution for aggravated
driving under the influence of alcohol, the
court entered a specific order directing the
filing of all pretrial motions within the time
set by the rules, and the defendant was put on
adequate notice that he was required to file
his objection to the use by the state of the test
result obtained in possible violation of this
section; his failure to make such a motion,
absent a showing of cause, constituted waiver
of the objection. State v. Bell, 115 Idaho 36,
764 P.2d 113 (Ct. App. 1988).
By defendants' voluntary acts in submitting
to evidentiary tests pursuant to this section,
defendants have waived any suppression is-
sue that may have existed regarding the re-
sults of such tests. State v. McCormack, 117
Idaho 1009, 793 P.2d 682 (1990).
Analysis
Admissibility of test results.
Appellate review of refusal.
Chemical test.
Measurement of blood sample.
Police request.
Right to counsel.
Suspension of license.
Warrantless test reasonable.
Admissibility of Test Results.
The alleged failure of the police officer to
advise the accused of his constitutional rights
before requesting the accused to submit to a
blood test under former law did not render the
blood test results inadmissible and thus the
trial court did not err in refusing to suppress
the evidence. State v. Cutler, 94 Idaho 295,
486 P.2d 1008 (1971).
The lapse of time between an accident and
the extraction and testing of blood, breath, or
other bodily substance to determine the alco-
holic content in a defendant's system, affects
only the weight given to the test results and
does not affect the admissibility of the results.
State v. Sutliff, 97 Idaho 523, 547 P.2d 1128
(1976).
Where the defendant, who was involved in
an automobile accident in which a person
died, signed a consent form to allow a blood
alcohol test to be done after a police officer
had read the former similar statute aloud to
him concerning his right to refuse the test,
there was substantial evidence to support the
trial judge's finding the defendant had not
refused the test; consequently, the court prop-
erly admitted the result of the blood alcohol
test into evidence. State v. Curtis, 106 Idaho
483, 680 P.2d 1383 (Ct. App. 1984).
Appellate Review of Refusal.
A finding as to whether a person has re-
fused a blood alcohol test should be reviewed
under the standard of clear error customarily
applied to factual issues; under this standard,
a factual finding will not be deemed clearly
erroneous unless, after reviewing the record,
an appellate court is left with a definite and
firm conviction that a mistake has been com-
mitted. State v. Curtis, 106 Idaho 483, 680
P.2d 1383 (Ct. App. 1984).
Chemical Test.
The result obtained from the Intoximeter

3000, an instrument which tests the alcohol
content of a breath sampler by using infrared
light energy rather than chemicals, is the
product of a "chemical test" within the mean-
ing of
49-352 (repealed). State v. Nichols,
110 Idaho 823, 718 P.2d 1261 (Ct. App. 1986).
Measurement of Blood Sample.
Where there was no evidence in the record
to indicate the slightest inference of any ir-
regularity or tampering with the blood sam-
ple, the contention that there was an error in
the measurement of blood sample was with-
out merit. State v. Cutler, 94 Idaho 295, 486
P.2d 1008 (1971).
Police Request.
Where the testimony of police officer indi-
cated that he had seen beer, several beer caps
and bottle and can openers in the vehicle of
the accused during his investigation of acci-
dent scene, and the accused was conscious
and reasonably alert at the time of the re-
quest for the blood test, the officer had rea-
sonable grounds to request the test. State v.
Cutler, 94 Idaho 295, 486 P.2d 1008 (1971).
Evidence in involuntary manslaughter
prosecution of appellant's refusal to submit to
a blood test was competent and admissible
for, like any other act or statement voluntar-
ily made by him, it was competent for a jury to
consider and weigh, with the other evidence,
and to draw from it whether the inference as
to guilt or innocence may be justified thereby.
State v. Bock, 80 Jdaho 296, 328 P.2d 1065
(1958).
Where intoxication was an evidentiary ele-
ment of "reckless disregard" in a homicide
case arising out of the operation of a motor
vehicle, the accused had no constitutional
right to refuse to submit to a reasonable
search and examination of his person, includ-
ing an examination of his blood in the manner
authorized by law. State v. Bock, 80 Idaho
296, 328 P.2d 1065 (1958).
Where defendant, injured and in a dazed
state, has neither refused nor consented, and
for some reason within the discretion of the
officer, the test is not administered, it cannot
be said that there was an express refusal to
take the test. Mills v. Swanson, 93 Idaho 279,
460 P.2d 704 (1969).
Arefusal by a motorist to take a breath test
at the officer's request until she consulted
with counsel was a refusal within the mean-
ing of this section. Mills v. Bridges, 93 Idaho
679, 471 P.2d 66 (1970).
Where an administrative agency suspended
a motorist's driver's license for his failure to
submit to a blood-alcohol test after he was
arrested for driving while intoxicated, the
applicable standard for judicial review of the
agency's decision under
67-52
15(g)
(now
repealed) was the "clearly erroneous" stan-
dard of review, and a reviewing court would
not be allowed to independently weigh the
conflicting evidence to determine whether the
State had carried its burden to show, by a
preponderance of the evidence, that the chem-
ical test was offered and refused. Mason v.
State Dep't of Law Enforcement, 103 Idaho
748, 653 P.2d 803 (Ct. App. 1982).
Where the evidence snowed that despite
being advised of the consequences of refusing
to take a chemical blood-alcohol test, the
defendant motorist continued to refuse to
take the test, the evidence supported the
suspension of the motorist's license. Mason v.
748, 653 P.2d 803 (Ct. App. 1982).
Where a police officer observed the defen-
dant motorist's erratic driving, saw the mo-
torist exit his vehicle, stagger and walk un-
steadily, and detected the odor of alcohol on
the motorist's person, there was a sufficient
objective basis for the officer to detain the
motorist for further investigation; therefore,
the motorist's subsequent refusal to submit to
a blood-alcohol test supported the district
court's determination that the motorist's li-
cense was properly suspended. Mason v. State
Dep't of Law Enforcement, 103 Idaho 748, 653
P.2d 803 (Ct. App. 1982).
There is no general, constitutional right to
refuse a blood alcohol test; such a test

which produces real, rather than testimonial
or communicative, evidence

does not in-
fringe upon any privilege against self-incrim-
ination. Neither does a blood test, unless
performed with inappropriate force, offend
any basic values of fairness underlying the
constitutional guaranty of due process. State
v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct.
App. 1984).
Former section 49-352 (repealed) created a
statutory right

where no constitutional
right existed
to refuse a blood alcohol test;

a defendant's "implied consent" to the test
was revoked if he expressly declined to take
it. Ofcourse, if a defendant exercised his right
to refuse, after being arrested, his driving
privileges could have been suspended. State v.
Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App.
1984).
Right to Counsel.
An administrative proceeding for the sus-
pension of a driver's license is a civil proceed-
ing, and not a criminal prosecution, therefore
a motorist does not have a constitutional right
to consult with counsel before deciding
whether to take a breath test for determining
level of blood alcohol. Mills v. Bridges, 93
Idaho 679, 471 P.2d 66 (1970).
Suspension of License.
Where motorist refused officer's request to
take a breath test to determine the level of
blood alcohol until she consulted with counsel
and never affirmatively requested test, a
prima facie case justifying the suspension
order was established, since she failed to
establish that the right to take the test had
been withdrawn within an hour after the
officer first requested she take it. Mills v.
Bridges, 93 Idaho 679, 471 P.2d 66 (1970).
Warrantless Test Reasonable.
The administration of a blood alcohol test is
a seizure of the person, and a search of his
body for evidence, within the Fourth Amend-
ment of the United States Constitution; how-
ever, the constraints of time due to natural
destruction of the evidence, as alcohol is elim-
inated from the human body, make a warrant-
less blood test reasonable and appropriate.
State v. Curtis, 106 Idaho 483, 680 P.2d 1383
(Ct. App. 1984).
Collateral References. Mental incapacity
as justifying refusal to submit to tests for
driving while intoxicated. 76 A.L.R.5th 597.
18-8002A. Tests of driver for alcohol concentration, presence of
drugs or other intoxicating substances
Suspension upon failure

of tests.

(a) "Actual physical control" means being in the driver's position of a
motor vehicle with the motor running or with the vehicle moving.
(b) "Administrative hearing" means a hearing conducted by a hearing
officer to determine whether a suspension imposed by the provisions of
this section should be vacated or sustained.
(c) "Department" means the Idaho transportation department and, as the
context requires, shall be construed to include any agent of the depart-
ment designated by rule as hereinafter provided.
(d) "Director" means the director of the Idaho transportation department.
(e) "Evidentiary testing" means a procedure or test or series of procedures
or tests utilized to determine the concentration of alcohol or the presence
of drugs or other intoxicating substances in a person, including additional
testing authorized by subsection (6) of this section. An evidentiary test for
alcohol concentration shall be based on a formula of grams of alcohol per
one hundred (100) cubic centimeters of blood, per two hundred ten (210)
liters of breath, or sixty-seven (67) milliliters of urine. Analysis of blood,
breath or urine for the purpose of determining alcohol concentration shall
be performed by a laboratory operated by the Idaho state police or by a
laboratory approved by the Idaho state police under the provisions of
approval and certification standards to be set by the Idaho state police, or
by any other method approved by the Idaho state police. Notwithstanding
627 MOTOR VEHICLES 18-8002A
any other provision of law or rule of court, the results of any test for
alcohol concentration and records relating to calibration, approval, certi-
fication or quality control performed by a laboratory operated and
approved by the Idaho state police or by any other method approved by the
Idaho state police shall be admissible in any proceeding in this state
without the necessity of producing a witness to establish the reliability of
the testing procedure for examination.
(f) "Hearing officer" means a person designated by the department to
conduct administrative hearings. The hearing officer shall have authority
to administer oaths, examine witnesses and take testimony, receive
relevant evidence, issue subpoenas, regulate the course and conduct of the
hearing and make a final ruling on the issues before him.
(g)
"Hearing request" means a request for an administrative hearing on
the suspension imposed by the provisions of this section.
(2) Information to be given. At the time of evidentiary testing for
concentration of alcohol, or for the presence of drugs or other intoxicating
substances is requested, the person shall be informed that if the person
refuses to submit to or fails to complete evidentiary testing, or if the person
submits to and completes evidentiary testing and the test results indicate
an alcohol concentration or the presence of drugs or other intoxicating
substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code,
the person shall be informed substantially as follows (but need not be
informed verbatim):
If you refuse to submit to or if you fail to complete and pass evidentiary
testing for alcohol or other intoxicating substances:
(a) The peace officer will seize your driver's license and issue a notice of
suspension and a temporary driving permit to you, but no peace officer
will issue you a temporary driving permit if your driver's license or permit
has already been and is suspended or revoked. No peace officer shall issue
a temporary driving permit to a driver of a commercial vehicle who
refuses to submit to or fails to complete and pass an evidentiary test;
(b) You have the right to request a hearing within seven (7) days of the
notice of suspension ofyour driver's license to show cause why you refused
to submit to or to complete and pass evidentiary testing and why your
driver's license should not be suspended;
(c) If you refused or failed to complete evidentiary testing and do not
request a hearing before the court or do not prevail at the hearing, your
driver's license will be suspended. The suspension will be for one hundred
eighty (180) days if this is your first refusal. The suspension will be for one
(1) year if this is your second refusal within five
(5)
years. You will not be
able to obtain a temporary restricted license during that period; and
(d) If you complete evidentiary testing and fail the testing and do not
request a hearing before the department or do not prevail at the hearing,
your driver's license will be suspended. This suspension will be for ninety
(90) days if this is your first failure of evidentiary testing, but you may
request restricted driving privileges after the first thirty (30) days. The
suspension will be for one (1) year if this is your second failure of
evidentiary testing within five (5) years. You will not be able to obtain a
temporary restricted license during that period;
(e) After submitting to evidentiary testing you may, when practicable, at
your own expense, have additional tests made by a person of your own
choosing.
(3) Rulemaking authority of the Idaho state police. The Idaho state police
may, pursuant to chapter 52, title 67, Idaho Code, prescribe by rule:
(a) What testing is required to complete evidentiary testing under this
section; and
(b) What calibration or checking of testing equipment must be performed
to comply with the department's requirements. Any rules of the Idaho
state police shall be in accordance with the following: a test for alcohol
concentration in breath as denned in section 18-8004, Idaho Code, and
subsection (1) (e) of this section will be valid for the purposes of this
section if the breath alcohol testing instrument was approved for testing
by the Idaho state police in accordance with section 18-8004, Idaho Code,
at any time within ninety (90) days before the evidentiary testing. A test
for alcohol concentration in blood or urine as denned in section 18-8004,
Idaho Code, that is reported by the Idaho state police or by any laboratory
approved by the Idaho state police to perform this test will be valid for the
purposes of this section.
(4) Suspension.
(a) Upon receipt of the sworn statement of a peace officer that there
existed legal cause to believe a person had been driving or was in actual
physical control of a motor vehicle while under the influence of alcohol,
drugs or other intoxicating substances and that the person submitted to a
test and the test results indicated an alcohol concentration or the presence
of drugs or other intoxicating substances in violation of section 18-8004,
18-8004C or 18-8006, Idaho Code, the department shall suspend the
person's driver's license, driver's permit, driving privileges or nonresident
driving privileges:
(i) For a period of ninety (90) days for a first failure of evidentiary
testing under the provisions of this section. The first thirty (30) days of
the suspension shall be absolute and the person shall have absolutely
no driving privileges of any kind. Restricted driving privileges applica-
ble during the remaining sixty (60) days of the suspension may be
requested as provided in subsection (9) of this section,
(ii) For a period of one (1) year for a second and any subsequent failure
of evidentiary testing under the provisions of this section within the
immediately preceding five
(5)
years. No driving privileges of any kind
shall be granted during the suspension imposed pursuant to this
subsection.
The person may request an administrative hearing on the suspension as
provided in subsection (7) of this section. Any right to contest the
suspension shall be waived if a hearing is not requested as therein
provided.
(b) The suspension shall become effective thirty (30) days after service
upon the person of the notice of suspension. The notice shall be in a form
provided by the department and shall state:
(i) The reason and statutory grounds for the suspension;
(ii) The effective date of the suspension;
(hi) The suspension periods to which the person may be subject as
provided in subsection (4)(a) of this section;
(iv) The procedures for obtaining restricted driving privileges;
(v) The rights of the person to request an administrative hearing on the
suspension and that if an administrative hearing is not requested
within seven (7) days of service of the notice of suspension the right to
contest the suspension shall be waived;
(vi) The procedures for obtaining an administrative hearing on the
suspension;
(vii) The right to judicial review of the hearing officer's decision on the
suspension and the procedures for seeking such review.
(5) Service of suspension by peace officer or the department. If the driver
submits to evidentiary testing after the information in subsection (2) of this
section has been provided and the results of the test indicate an alcohol
concentration or the presence of drugs or other intoxicating substances in
violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho
Code:
(a) The peace officer shall take possession of the person's driver's license,
shall issue a temporary permit which shall be valid for a period not to
exceed thirty (30) days from the date of issuance, and, acting on behalf of
the department, will serve the person with a notice of suspension in the
form and containing the information required under subsection (4) of this
section. The department may serve the person with a notice of suspension
if the peace officer failed to issue the notice of suspension or failed to
include the date of service as provided in subsection (4)(b) of this section.
(b) Within five (5) business days following service of a notice of suspen-
sion the peace Qfficer shall forward to the department a copy of the
completed notice of suspension form upon which the date of service upon
the driver shall be clearly indicated, a copy of any completed temporary
permit form along with any confiscated driver's license, a certified copy or
duplicate original of the results of all tests for alcohol concentration, as
shown by analysis of breath administered at the direction of the peace
officer, and a sworn statement of the officer, which may incorporate any
arrest or incident reports relevant to the arrest and evidentiary testing
setting forth:
(i) The identity of the person;
(ii) Stating the officer's legal cause to stop the person;
(iii) Stating the officer's legal cause to believe that the person had been
driving or was in actual physical control of a motor vehicle while under
the influence of alcohol, drugs or other intoxicating substances in
violation of the provisions of section 18-8004, 18-8004C or 18-8006,
Idaho Code;
(iv) That the person was advised of the consequences of taking and
failing the evidentiary test as provided in subsection (2) of this section;
(v) That the person was lawfully arrested;
(vi) That the person was tested for alcohol concentration, drugs or
other intoxicating substances as provided in this chapter, and that the
results of the test indicated an alcohol concentration or the presence of
drugs or other intoxicating substances in violation of the provisions of
section 18-8004, 18-8004C or 18-8006, Idaho Code.
If an evidentiary test of blood or urine was administered rather than a
breath test, the peace officer or the department shall serve the notice of
suspension once the results are received. The sworn statement required in
this subsection shall be made on forms in accordance with rules adopted
by the department.
(c) The department may serve the person with a notice of suspension if
the peace officer failed to issue the notice of suspension or failed to include
the date of service as provided in subsection (4)(b) of this section.
(6)
Additional tests. After submitting to evidentiary testing at the request
of the peace officer, the person may, when practicable, at his own expense,
have additional tests for alcohol concentration or for the presence of drugs
or other intoxicating substances made by a person of his own choosing. The
person's failure or inability to obtain additional tests shall not preclude
admission of the results of evidentiary tests administered at the direction of
the peace officer unless additional testing was denied by the peace officer.
(7) Administrative hearing on suspension. A person who has been served
with a notice of suspension after submitting to an evidentiary test may
request an administrative hearing on the suspension before a hearing officer
designated by the department. The request for hearing shall be in writing
and must be received by the department within seven (7) calendar days of
the date of service upon the person of the notice of suspension, and shall
include what issue or issues shall be raised at the hearing. The date on
which the hearing request was received shall be noted on the face of the
request.
If a hearing is requested, the hearing shall be held within twenty (20)
days of the date the hearing request was received by the department unless
this period is, for good cause shown, extended by the hearing officer for one
ten (10) day period. Such extension shall not operate as a stay of the
suspension and any temporary permit shall expire thirty (30) days after
service of the notice of suspension, notwithstanding an extension of the
hearing date beyond such thirty (30) day period. Written notice of the date
and time of the hearing shall be sent to the party requesting the hearing at
least seven (7) days prior to the scheduled hearing date. The department
may conduct all hearings by telephone if each participant in the hearing has
an opportunity to participate in the entire proceeding while it is taking
place.
The hearing shall be recorded. The sworn statement of the arresting
officer, and the copy of the notice of suspension and any temporary permit
issued by the officer shall be admissible at the hearing without further
evidentiary foundation. The results of any tests for alcohol concentration or
the presence of drugs or other intoxicating substances by analysis of blood,
urine or breath administered at the direction of the peace officer and the
records relating to calibration, certification, approval or quality control
pertaining to equipment utilized to perform the tests shall be admissible as
provided in section 18-8004(4), Idaho Code. The arresting officer shall not be
required to participate unless directed to do so by a subpoena issued by the
hearing officer.
The burden of proof shall be on the person requesting the hearing. The
hearing officer shall not vacate the suspension unless he finds, by a
preponderance of the evidence, that:
(a) The peace officer did not have legal cause to stop the person; or
(b) The officer did not have legal cause to believe the person had been
driving or was in actual physical control of a vehicle while under the
influence of alcohol, drugs or other intoxicating substances in violation of
the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or
(c) The test results did not show an alcohol concentration or the presence
of drugs or other intoxicating substances in violation of section 18-8004,
18-8004C or 18-8006, Idaho Code; or
(d) The tests for alcohol concentration, drugs or other intoxicating sub-
stances administered at the direction of the peace officer were not
conducted in accordance with the requirements of section 18-8004(4),
Idaho Code, or the testing equipment was not functioning properly when
the test was administered; or
(e) The person was not informed of the consequences of submitting to
evidentiary testing as required in subsection (2) of this section.
If the hearing officer finds that the person has not met his burden of proof,
he shall sustain the suspension. The hearing officer shall make findings of
fact and conclusions of law on each issue and shall enter an order vacating
or sustaining the suspension. If the suspension is vacated, the person's
driver's license, unless unavailable by reason of an existing suspension,
revocation, cancellation, disqualification or denial shall be returned to him.
The findings of fact, conclusions of law and order entered by the hearing
officer shall be considered a final order pursuant to the provisions of chapter
52, title 67, Idaho Code, except that motions for reconsideration of such
order shall be allowed and new evidence can be submitted.
The facts as found by the hearing officer shall be independent of the
determination of the same or similar facts in the adjudication of any
criminal charges arising out of the same occurrence. The disposition of those
criminal charges shall not affect the suspension required to be imposed
under the provisions of this section. If a license is suspended under this
section and the person is also convicted on criminal charges arising out of
the same occurrence for a violation of the provisions of section 18-8004,
18-8004C or 18-8006, Idaho Code, both the suspension under this section
and the suspension imposed pursuant to the provisions of section 18-8005 or
18-8006, Idaho Code, shall be imposed, but the periods of suspension shall
run concurrently, with the total period of suspension not to exceed the longer
of the applicable suspension periods, unless the court ordering the suspen-
sion in the criminal case orders to the contrary.
(8) Judicial review. Aparty aggrieved by the decision ofthe hearing officer
may seek judicial review of the decision in the manner provided for judicial
review of final agency action provided in chapter 52, title 67, Idaho Code.
(9) Restricted driving privileges. A person served with a notice of suspen-
sion for ninety (90) days pursuant to this section may apply to the
department for restricted driving privileges, to become effective after the
thirty (30) day absolute suspension has been completed. The request may be
made at any time after service of the notice of suspension. Restricted driving
privileges will be issued for the person to travel to and from work and for
work purposes, to attend an alternative high school, work on a GED, for
postsecondary education, or to meet the medical needs of the person or his
family if the person is eligible for restricted driving privileges.
(10) Rules. The department may adopt rules under the provisions of
chapter 52, title 67, Idaho Code, deemed necessary to implement the
provisions of this section. [I.C.,
18-8002A, as added by 1993, ch. 413, 2,
p. 1515; am. 1994, ch.
357, 1, p. 1117; am. 1997, ch.
238, 1, p. 689; am.
1999, ch.
80, 1, p. 227; am. 2000, ch. 469, 27, p. 1450; am. 2004, ch. 126,
1, p.
422.]
49-328.
as
49-326.
18-8005.
compiled as
18-4512 and 18-8004, respec-
tively.
Section 4 of S.L. 1993, ch. 413 read: "Sec-
tion 3 of this act shall be in full force and
effect on and after July 1, 1993. The remain-
ing sections of this act shall be in full force
and effect on and after July 1, 1994.
as 18-8306.
in
49-328.
Cited in: Quinlan v. Idaho Comm'n for
Pardons & Parole, 138 Idaho 726, 69 P.3d 146
(2003).
Analysis
Advisory form.
Constitutionality.
Double jeopardy.
Construction.
Advisory Form.
Defendant's license suspension could not be
upheld where defendant was read the correct
information listed in 18-8002(3), but was
incorrectly advised that if he took and failed
the test he would have his license automati-
cally suspended for a period of ninety days or
one year. This latter information was part of
this section, a statute that was not in effect at
the time defendant was requested to submit
to the BAC, and the additional erroneous
information caused the advisory form read to
defendant to not meet the requirements of the
law in effect at the time. Head v. State, 136
Idaho 409, 34 P.3d 1092 (Ct. App. 2000).
Suspension advisory form adequately ad-
vised individual of the consequences of taking
and failing the evidentiary test under this
section even though the advisory form did not
match the information requirements in the
statute verbatim where individual was sub-
stantially informed of his rights and duties
under paragraph (2). Halen v. State, 136
Idaho 829, 41 P.3d 257 (2002).
Constitutionality.
Double Jeopardy.
Interpreting the Idaho Constitution's dou-
ble jeopardy provision in the same manner as
the U.S. Constitution, the license suspension
of defendant, following her failure to pass a
sobriety test, did not constitute punishment
for the purposes of the double jeopardy clause
of the U.S. Constitution and she could, in
addition to the license suspension under
18-8002A, be prosecuted for driving under
the influence of alcohol pursuant to
18-
8004. State v. Reichenberg, 128 Idaho 452,
915 P.2d 14 (1996).
Construction.
A suspension pursuant to this section is in
addition to any suspension imposed pursuant
to 18-8005, penalties. State v. Talavera, 127
Idaho 700, 905 P.2d 633 (1995).
The language of paragraph (9) does not
allow the Idaho Department of Transporta-
tion to differentiate between a resident's and
nonresident's ability to apply for restricted
driving privileges. Paragraph (4) clearly dis-
tinguishes between driver's licenses, driver's
privileges and nonresident driver's privileges,
where paragraph (9) does not. Paragraph (9)
states that a person served with a notice of
suspension may apply to the department for
restricted driving privileges rather than
breaking down each type of license or privi-
lege as in paragraph (4). Nonresidents can
apply for restricted driving privileges under
paragraph (9) so long as the nonresident
applicant meets one of the circumstances driver's license under 188002A (7); to the
listed in that paragraph. Druffel v. State, 136 contrary, it was the driver's burden to present
Idaho 853, 41 P.3d 739 (2002). evidence affirmatively showing one or more of
Hearing officer was not authorized to va-
the grounds for relief enumerated in
18-
cate a driver's license suspension based upon
8002A(7), that is, it was his burden to prove
technical flaws in the documents that were
that, in fact, the officer lacked legal cause to
delivered to the Idaho Transportation Depart-
stop his vehicle or that the blood test was, in
ment (ITD) by the initiating law enforcement
fact, not conducted in accordance with legal
officer; it was the driver's burden to present
requirements. Kane v. State (In re Kane),
evidence showing one or more grounds for

iâho , 83 R3d 130 (Ct. App. 2003).
relief enumerated in

18-8002A(7) and to
Even if a hearing officer's jurisdiction en-
prove that, in fact the blood test was not
compassed authority to reduce a driver's li-
conducted in accordance with legal require-
cenge suspension period> the hearing officer
>
s
ments. That burden was not met by merely
CQn conclusion did not prejudice the
showing that the documents in the hands of
driver where ^ driver
,
s chal] to the
the ITD were inadequate or inadmissible to
s sion enhancement failed for lack of
show whether legal cause existed or whether
.f Tr , , /T Tr s T
, ,
, , , , j , , j , j i rr evidence. Kane v. State (In re Kane),
Idaho
the blood test was conducted properly. Kane v.
v
State (In re Kane),
-
Idaho -, 83 P.3d 130
>'8S
J
6d 1
^
(C
^
t App
'
ZQ
\
. .
P
(Ct App 2003)
Collateral References. Authentication of
It was not the Idaho Transportation De-
blood sample taken from human body for
partment's (ITD) burden at an administrative
purposes of determining blood alcohol con-
hearing to prove legal cause for a traffic stop,
tent
- '& A.L.R.oth 1.
to prove the reliability of the blood alcohol
Authentication of organic nonblood speci-
tests, or to disprove any of the possible
men taken from human body for purposes of
grounds for challenging a suspension of a
analysis. 78A.L.R.5th 1.
18-8002B. Enforcement of 18-8002A, Idaho Code, stayed. [Re-
pealed.]
2, p. 689, was repealed by 3 of S.L. 1997,
comprised I.C.,

18-8002B, as added by ch. 238, effective January 1, 1998.
1995, ch. 190, 1, p. 681; am. 1997, ch. 238,
18-8003. Persons authorized to withdraw blood for the purposes
of determining content of alcohol or other intoxicating substances.
(1) Only a licensed physician, qualified medical technologist, registered

nurse, phlebotomist trained in a licensed hospital or educational institution
or other medical personnel trained in a licensed hospital or educational
institution to withdraw blood can, at the order or request of a peace officer,
withdraw blood for the purpose of determining the content of alcohol, drugs
or other intoxicating substances therein. This limitation shall not apply to
the taking of a urine, saliva or breath specimen. For purposes of this section:
(a) the term "qualified medical technologist" shall be deemed to mean a
person who meets the standards of a "clinical laboratory technologist" as set
forth by the then current rules and regulations of the social security
administration of the United States department of health and human
services pursuant to subpart M of part 405, chapter III, title 20, of the code
of federal regulation; and (b) the terms "phlebotomist" and "other medical
personnel" shall be deemed to mean persons who meet the standards for the
withdrawing of blood as designated and qualified by the employing medical
facility or other employing entity of those persons.
(2) The person tested may, at his own expense, have a person of his own
choosing, who is authorized to make a test, administer an evidentiary test
for alcohol concentration in addition to the one administered at the request
of a peace officer. [I.C.,

18-8003, as added by 1984, ch.
22, 2, p. 25; am.
1992, ch. 133, 2, p. 416.]
Compiler's notes. Section 3 of S.L. 1992, under the United States Constitution, where
67-7034. there was no indication that the destruction
Cited in: State v. Albright, 110 Idaho 748, of the blood samples represented a calculated
718 P.2d 1186 (1986); State v. Shanahan, 133
Idaho 896, 994 P.2d 1059 (Ct. App. 1999); cumvent disclosure requirements, the defen-
State v. Cooper, 136 Idaho 697, 39 P.3d 637
(Ct. App. 2001).
pies, if available, would have played a
y.
p
purau
A^
to *u
^
^^^^
U0 Idah
?48
'
?18 R2d
liy
"
(
iy)-
18-8004. Persons under the influence of alcohol, drugs or any
other intoxicating substances.
(l)(a) It is unlawful for any person who is under the influence of alcohol,
drugs or any other intoxicating substances, or any combination of alcohol,
drugs and/or any other intoxicating substances, or who has an alcohol
concentration of 0.08, as defined in subsection (4) of this section, or more,
as shown by analysis of his blood, urine, or breath, to drive or be in actual
physical control of a motor vehicle within this state, whether upon a
highway, street or bridge, or upon public or private property open to the
public.
(b) It is unlawful for any person who is under the influence of alcohol,
concentration of 0.04 or higher but less than 0.08, as defined in subsection
(4) of this section, as shown by analysis of his blood, urine, or breath, to
drive or be in actual physical control of a commercial motor vehicle within
this state, whether upon a highway, street or bridge, or upon public or
private property open to the public.
(c) It is unlawful for any person who is under the influence of alcohol,
concentration of 0.08 or higher, as defined in subsection (4) of this section,
as shown by analysis of his blood, urine, or breath, to drive or be in actual
physical control of a commercial motor vehicle within this state, whether
upon a highway, street or bridge, or upon public or private property open
to the public.
(d) It is unlawful for any person under the age of twenty-one (21) years
who has an alcohol concentration of at least 0.02 but less than 0.08, as
defined in subsection (4) of this section, to drive or be in actual physical
control of a motor vehicle within this state, whether upon a highway,
street or bridge, or upon public or private property open to the public. Any
person violating this subsection shall be subject to the penalties provided
in section 18-8004A, Idaho Code.
(2) Any person having an alcohol concentration of less than 0.08, as
defined in subsection (4) of this section, as shown by analysis of his blood,
urine, or breath, by a test requested by a police officer shall not be
prosecuted for driving under the influence of alcohol, except as provided in
subsection (3),
subsection (1Kb) or subsection (l)(d) of this section. Any
person who does not take a test to determine alcohol concentration or whose
test result is determined by the court to be unreliable or inadmissible
against him, may be prosecuted for driving or being in actual physical
control of a motor vehicle while under the influence of alcohol, drugs, or any
other intoxicating substances, on other competent evidence.
(3) If the results of the test requested by a police officer show a person's
alcohol concentration of less than 0.08, as defined in subsection (4) of this
section, such fact may be considered with other competent evidence of drug
use other than alcohol in determining the guilt or innocence of the
defendant.
(4) For purposes of this chapter, an evidentiary test for alcohol concen-
tration shall be based upon a formula of grams of alcohol per one hundred
(100) cubic centimeters of blood, per two hundred ten (210) liters of breath
or sixty-seven (67) milliliters of urine. Analysis of blood, urine or breath for
the purpose of determining the alcohol concentration shall be performed by
a laboratory operated by the Idaho state police or by a laboratory approved
by the Idaho state police under the provisions of approval and certification
standards to be set by that department, or by any other method approved by
the Idaho state police. Notwithstanding any other provision of law or rule of
court, the results of any test for alcohol concentration and records relating
to calibration, approval, certification or quality control performed by a
laboratory operated or approved by the Idaho state police or by any other
method approved by the Idaho state police shall be admissible in any
proceeding in this state without the necessity of producing a witness to
establish the reliability of the testing procedure for examination.
(5) "Actual physical control" as used in this section, shall be defined as
being in the driver's position of the motor vehicle with the motor running or
with the motor vehicle moving.
(6)
Notwithstanding any other provision of law, any evidence of convic-
tion under this section shall be admissible in any civil action for damages
resulting from the occurrence. A conviction for the purposes of this section
means that the person has pled guilty or has been found guilty, notwith-
standing the form of the judgment(s) or withheld judgment(s).
(7) The fact that any person charged with a violation of the provisions of
this chapter involving being under the influence of any drug, or any
combination of drugs with alcohol or any other intoxicating substance, is or
has been entitled to use such drug under the laws of this state or of any
other jurisdiction shall not constitute a defense against any charge of a
violation of the provisions ofthis chapter. [I.C.,
18-8004, as added by 1984,
ch.
22, 2, p. 25; am. 1985, ch. 142, 1, p. 386; am. 1987, ch. 122, 2, p.
247; am. 1988, ch. 47, 4, p. 54; am. 1989, ch.
88, 61, p. 151; am. 1990, ch.
45, 44, p. 71; am. 1994, ch. 422, 1, p. 1322; am. 1997, ch. 158, 1, p. 457;
am. 1997, ch.
307, 1, p. 911; am. 1998, ch.
70, 1, p. 263; am. 2000, ch.
469, 28, p. 1450; am. 2002, ch. 253, 1, p. 728.]
ch. 158, 1 and

ch. 307, 2, both effective July 1, 1997, which
appear to be compatible and have been com-
piled together.
The 1997 amendment by ch. 158, 1 in
subsections (l)(a), (c) and (d), (2) and (3)
substituted
"0.08"
for
"0.10"
and in subsection
(1Kb) substituted
"0.07"
for
"0.7".
The 1997 amendment by ch. 307, 1 in
subsection (5) in the first sentence substituted
"impairs the driver's ability to safely operate"
for "renders him incapable of safely driving"
following "to a degree which".
compiled as
37-2744 and former 49-1314,
respectively.
as 18-8002.
as 18-8002.
compiled as
18-8002A and 18-8102, re-
spectively.
in

18-1501, 18-4006, 18-8001, 18-8002, 18-
8002A, 18-8004C, 18-8005, 18-8006, 23-505,
49-240, 49-307, 49-325, 72-1003 and 72-1016.
in M.C.R., Rule 13.
Cited in: State v. Simpson, 112 Idaho 644,
734 P.2d 669 (Ct. App. 1987); Nowoj v. State,
115 Idaho 134, 764 P.2d 111 (Ct. App. 1988);
State v. Woolery, 116 Idaho 368, 775 P2d 1210
(1989); State v. Bacon, 117 Idaho 679, 791
P.2d 429 (1990); State v. Deitz, 120 Idaho 755,
819 P.2d 1155 (Ct. App. 1991); State v. Tate,
122 Idaho 366, 834 P2d 883 (Ct. App. 1992);
State v. Litz, 122 Idaho 387, 834 P.2d 904 (Ct.
App. 1992); State v. Waldie, 126 Idaho 864,
893 P.2d 811 (Ct. App. 1995); State v. Gleason,
130 Idaho 586, 944 P.2d 721 (Ct. App. 1997);
State v. Smith, 130 Idaho 759, 947 P.2d 1007
(Ct. App. 1997); State v. Anderson, 130 Idaho
765, 947 P.2d 1013 (Ct. App. 1997); State v.
Keetch, 134 Idaho 327, 1 P.3d 828 (Ct. App.
2000); State v. Shearer, 136 Idaho 217, 30 P.3d
995 (Ct. App. 2001).
Analysis
Adequately informed of charge.
Aggravated driving under the influence.
Arrest on Indian reservation.
Articulable suspicion.
Basis for further investigation.
Blood alcohol content.
Burden of proof.
Constitutionality.
Double jeopardy.
Due process.
Construction.
Construction with other statutes.
Contempt.
Corpus delicti.
Deficient breath samples.
Disqualification of magistrate.
Double jeopardy.
Driving on shoulder.
Due process.
Essential elements.
Evidence.
Admission.
Proper.
Exclusion.
Foundation.
Foundation.
Held sufficient.
Impeachment.
Measuring scientific reliability.
Relevance.
Felony DUI.
Field sobriety tests.
Fourth Amendment stop.
Indictments.
Instructions.
Harmless error.
Improper.
Per se standard.
Uncontradicted evidence.
Intoximeter.
Jurisdiction.
Jury trial.
Waiver.
Legislative intent.
Miranda warning.
Motor vehicle.
Nature of impairment.
No quantity requirement.
Nonforensic evidence of blood alcohol concen-
tration.
Observation of defendant.
Operation on Indian reservation.
Order of convictions.
Physical control.
Prescription drugs.
Private property open to the public.
Probable cause.
Reasonable suspicion.
Request for independent test.
Access to phone.
Request for test by defendant.
Rules and regulations.
Sentence.
Motion to reduce.
Timeliness.
Upheld.
Standards of proof.
Statutory percentages.
Test results.
Type of test.
HGN.
Adequately Informed of Charge.
The Idaho Uniform Citation which con-
tained a police officer's certification that he
had reasonable cause to believe defendant
committed the act of "driving under the influ-
ence" at a specified time and place adequately
informed defendant of the charge against
him. State v. Denton, 115 Idaho 402, 766 P.2d
1283 (Ct. App. 1989).
Aggravated Driving Under the Influ-
ence.
By cross-referencing to the provisions of
this section,
18-8006 allows for prosecu-
tions for aggravated driving without the ne-
cessity for the state to prove that the alcohol
or other substance-related impairment was
actually sufficient to have caused certain driv-
ing behavior, which in turn caused great
bodily injury to another. To interpret that
statute otherwise would be to disregard the
per se nature of the alcohol concentration
aspect of the definition of drunk driving. State
v. Nelson, 119 Idaho 444, 807 P.2d 1282 (Ct.
App. 1991).
Section 18-8006 provides as an element of
the offense that the defendant must have
"caused" great bodily harm to the victim. The
requirement of causation in the aggravated
driving statute is in accord with the concept
that strict liability crimes are disfavored in
Idaho. State v. Nelson, 119 Idaho 444, 807
P.2d 1282 (Ct. App. 1991).
To convict defendant of aggravated driving
while under the influence of intoxicating sub-
stances, the state need not prove that the
great bodily injury was proximately caused by
the driver's intoxicated state which in turn
caused certain driving conduct. The statute
requires that some causation, however, be
proved, but the phrase "in committing" should
be interpreted to mean that a defendant may
be found guilty of aggravated driving under
the influence if he or she causes that statuto-
rily-specified harm while in the course of
violating this section. This interpretation is in
keeping with a legislative intent to
criminalize driving conduct which would nor-
mally fall within the realm of negligence
when it is done while the person is in violation
of the provisions of this section. State v.
Nelson, 119 Idaho 444, 807 P.2d 1282 (Ct.
App. 1991).
Arrest on Indian Reservation.
The word "upon" in clause G of
67-5101
does not limit the jurisdiction of state officials
to enforce state traffic laws to the actual road
right-of-way; thus, a police officer had the
authority to arrest defendant in Indian coun-
try for the offense of driving under the influ-
ence on a public road. State v. Barros, 131
Idaho 379, 957 P2d 1095 (1998).
Articulable Suspicion.
An officer's observations that a motorist
paused for five orjsix seconds after a traffic
light turned green before moving through the
light, that the motorist's vehicle was very
close to parked cars on a narrow street, and
that it was approximately 2:45 a.m. on a
Sunday morning, did not give rise to a rea-
sonable and articulable suspicion that the
motorist was driving while under the influ-
ence. State v. Emory, 119 Idaho 661, 809 P.2d
522 (Ct. App. 1991).
Basis for Further Investigation.
Where police officer dispatched to investi-
gate "a possible DUI driver" first arrived at
the scene of the alleged violation and saw a
man sitting behind the wheel of a running
vehicle with his head slumped over, and
where the vehicle was parked in an isolated
area on a snowy night, under those circum-
stances it was reasonable for the officer to
investigate further to see if the driver was ill
and in need of help or was incapable of
driving. State v. Webb, 118 Idaho 99, 794 P.2d
1155 (Ct. App. 1990).
The initial approach of defendant in his
parked, but running car was a reasonable,
unintrusive inquiry by the police and did not
trigger Fourth Amendment protections. After
the encounter, the police possessed sufficient
articulable suspicion to detain defendant and
investigate whether he was under the influ-
ence when in the driver's position in his car.
State v. Zubizareta, 122 Idaho 823, 839 P.2d
1237 (Ct. App. 1992).
The appearance of the defendant's eyes, his
nervous behavior, and his apparent avoidance
of eye contact suggested the possibility that
he was driving under the influence of intoxi-
cants, justifying a brief questioning by a po-
lice officer. State v. Albaugh, 133 Idaho 587,
990 P2d 753 (Ct. App. 1999).
Blood Alcohol Content.
Abreath test showing an alcohol concentra-
tion of .10 percent or more is not conclusive
proof of guilt of the offense of driving while
under the influence; the state has the burden
of proving beyond a reasonable doubt that the
.10 percent reading is correct. State v.
Pressnall, 119 Idaho 207, 804 P.2d 936 (Ct.
App. 1991).
Defendant's proffered evidence of the vari-
ability of standard 2100:1 partition ratio was
irrelevant in DUI prosecution because breath
alcohol concentration above the prescribed
limit was a per se violation of the statute
regardless of the blood alcohol content. State
v. Hardesty, 136 Idaho 707, 39 P.3d 647 (Ct.
App. 2002).
Because 18-8004C gave importance to
blood alcohol concentration evidence even if
there was other overwhelming evidence that
a defendant was driving under the influence
of alcohol, and as it was not the prerogative of
the defendant to determine what evidence the
State could gather to support his prosecution,
defendant's argument that a forcible blood
draw was unreasonable because it was unnec-
essary for his prosecution lacked merit. State
v. Worthington, 138 Idaho 470, 65 P.3d 211
(Ct. App. 2002).
Burden of Proof.
Abreath test showing an alcohol concentra-
tion of .10 percent or more is not conclusive
proof that one is guilty of driving under the
influence; the state still has the burden of
proving beyond a reasonable doubt that the
.10 percent reading was correct. State v.
Barker, 123 Idaho 162, 845 P.2d 580 (Ct. App.
1992).
Idaho 90, 910 P.2d 762 (1996).
Constitutionality.
This section is not constitutionally defective
for failure to precisely define the term "motor
vehicle." State v. Carpenter, 113 Idaho 882,
749 P.2d 501 (Ct. App. 1988).
Double Jeopardy.
Interpreting the Idaho Constitution's dou-
ble jeopardy provision in the same manner as
the U.S. Constitution, the license suspension
of defendant, following her failure to pass a
sobriety test, did not constitute punishment
for the purposes of the double jeopardy clause
of the U.S. Constitution and she could, in
addition to the license suspension under
18-8002A, be prosecuted for driving under
the influence of alcohol pursuant to
18-
8004. State v. Reichenberg, 128 Idaho 452,
915 P.2d 14 (1996).
Due Process.
The requirements of due process were sat-
isfied because in 1990 defendant was only
required by statute to be given notice of the
then-current possible penalties for further
convictions and it was immaterial that the
law changed in 1992. Wilson v. State, 133
Idaho 814, 993 P.2d 1205 (Ct. App. 2000).
Construction.
This section provides for one crime with two
alternative methods of proof; the state may
establish the violation per se by proof of a
blood alcohol content of .10 percent or, alter-
natively, by proving with other circumstantial
evidence that the defendant was driving
while under the influence of alcohol. State v.
Hartwig, 112 Idaho 370, 732 P2d 339 (Ct.
App. 1987).
Construction with Other Statutes.
Because the defendant elected to operate
her snowmobile on a public roadway while
intoxicated, her actions came within the pur-
view of 67-7110(2) and this section, and the
prosecutor had the discretion to charge her
under either statute. State v. Barnes, 133
Idaho 378, 987 P.2d 290 (1999).
Contempt.
Where the primary purpose of the contempt
order against defendant, entered after she
pled guilty to driving under the influence, was
to coerce compliance with the court's order,
the contempt order was a civil contempt order
and no statute of limitations applied; con-
tempt order affirmed. State v. Schorzman, 129
Idaho 313, 924 P.2d 214 (1996).
Corpus Delicti.
Defendant's conviction of driving under the
influence, Idaho Code

18-8004(l)(a) and
18-8004C, was proper, as the State met its
burden of showing corpus delicti indepen-
dently from defendant's extrajudicial admis-
sions by providing sufficient evidence that
defendant was driving while intoxicated, and
because the convictions were supported by
sufficient evidence, based upon defendant's
statements and a blood alcohol test result.
State v. Roth, 138 Idaho 820, 69 P.3d 1081 (Ct.
App. 2003).
Deficient Breath Samples.
Where breathalyzer samples were deficient
because the defendant failed to blow continu-
ously into the instrument for a sufficient
period of time, and where he did not claim
that the testing officer deviated from the
required procedures or that the machine func-
tioned improperly, the defendant failed to
prove the state would be unable to lay proper
foundation for the breath test, and the mag-
istrate properly denied the defendant's mo-
tion in limine. State v. Mazzuca, 132 Idaho
868, 979 P.2d 1226 (Ct. App. 1999).
Disqualification of Magistrate.
In prosecution for driving under the influ-
ence, where defendant did not make any
particularized charge of bias or prejudice,
being content with generalized allegations
that magistrate was biased against him or
against accused "drunk drivers" in general,
there was nothing which would support de-
fendant's assertion against magistrate and
thus motion for disqualification was properly
denied. State v. Greathouse, 119 Idaho 732,
810 P.2d 266 (Ct. App. 1991).
Where defendant's evidence indicated de-
fendant drove with his headlights on high
beam, although several oncoming vehicles
flashed their lights at him, his vehicle
weaved, crossed the fog line and almost drove
onto the grass at the side ofthe road, was slow
in responding to the officer's flashing lights,
after getting out of the vehicle, he swayed as
he stood and had to use the vehicle to keep his
balance, he smelled of alcohol, and failed the
dexterity tests, and where he testified that he
had consumed six drinks prior to his arrest
and this was confirmed by the breath test
which indicated blood alcohol concentration of
.19 and .20, finding of guilty was supported by
substantial evidence and would not be dis-
turbed on appeal. State v. Greathouse, 119
Idaho 732, 810 P.2d 266 (Ct. App. 1991).
Double Jeopardy.
Defendant's previous conviction and sen-
tence for inattentive driving, arising from the
same driving incident, barred the prosecution
for DUI. State v. Smith, 121 Idaho 20, 822
P.2d 539 (Ct. App. 1991).
Where police stop a motorist who has been
driving while under the influence of alcohol, it
is clear that the more dangerous conduct
which the legislature sought to prevent has
already occurred and the motorist's continu-
ing control over his stopped vehicle is not an
additional event, but is merely incidental to
his act of driving; therefore, the state cannot
circumvent the mandate of I.C.
18-301 (now
repealed) by attempting to carve a defen-
dant's single course of conduct into separate
"temporal events" in order to charge the de-
fendant with both DUI and erratic driving.
State v. Smith, 121 Idaho 20, 822 P.2d 539 (Ct.
App. 1991).
Section 18-301 (now repealed) did not bar
prosecution of defendant for driving under the
influence when defendant had earlier been
convicted and sentenced for violating
49-
1404 for fleeing from the police officer who
attempted to stop him for DUI. State v.
Castaneda, 125 Idaho 234, 869 P.2d 234 (Ct.
App. 1994).
Defendant's assertion that when he was
arrested on the driving under the influence of
alcohol (DUI) charge, he was also cited for
driving without privileges (DWP) because his
license had been suspended as a result of
previous violations, and that his plea of guilty
and sentence on the DWP offense barred the
DUI prosecution was without merit, as such
circumstances did not constitute double jeop-
ardy. State v. Flynn, 127 Idaho 790, 906 P2d
640 (Ct. App. 1995).
Driving on Shoulder.
Where the deputy observed defendant drive
through a right turn lane and through a slow
vehicle turnout, the deputy possessed reason-
able suspicion that defendant was violating
49-630 for driving on the shoulder of the

highway, rather than on the roadway, when
the traffic stop was made. State v. Anderson,
134 Idaho 552, 6 P.3d 408 (Ct. App. 2000).
Due Process.
under the United States Constitution, where
there was no indication that the destruction
of the blood samples represented a calculated
cumvent disclosure requirements, the defen-
ples, if available, would have played a
run pursuant to subsection (2) of
18-8003.
State v. Albright, 110 Idaho 748, 718 P.2d
1186 (1986).
There was no due process violation due to
the fact that individual suspected of DUI was
not offered the blood alcohol concentration
test of his choice; it is not the licensee who can
choose the BAC test to be given; however, the
licensee has the opportunity to test the suffi-
ciency of the original test results, and avoid
the consequences of an erroneous deprivation
of his or her driving privileges. McNeely v.
1990).
Essential Elements.
The name of the highway upon which de-
fendant drove is not an essential element of
the driving under the influence statute and
need not be proved by the prosecution. All
that need be demonstrated by the prosecution
with regard to that element is that the offense
occurred upon a highway in the state. There-
fore, incorrect designation ofhighway number
on jury instruction was harmless error. State
v. Hanson, 130 Idaho 842, 949 P.2d 590 (Ct.
App. 1997).
Evidence.
The result of the blood-alcohol tests were
admissible, even though the testimony did not
establish what formula was used by the ma-
chine to calculate blood-alcohol content,
where the evidence sufficiently established
that the machine was approved by the depart-
ment of health and welfare, and that the
machine was properly calibrated and main-
tained. State v. Hartwig, 112 Idaho 370, 732
P.2d 339 (Ct. App. 1987).
ence of alcohol, the failure to admit evidence
that the police department recognized a .02
margin of error for the breathalyzer was
harmless, where the arresting officer testified
that when initially confronted by the police,
the defendant found it difficult to rise, was
unstable on his feet, suffered from slurred
speech, was belligerent, and smelled of alco-
hol, the defendant's condition prompted two
officers to advise him not to ride his motorcy-
cle, and the defendant was arrested approxi-
mately ten minutes later. State v. Carpenter,
113 Idaho 882, 749 P.2d 501 (Ct. App. 1988).
lb admit the blood alcohol test result, the
state must provide adequate foundation evi-
dence consisting either of expert testimony or
a showing that the test was administered in
conformity with the applicable test procedure.
State v. Bell, 115 Idaho 36, 764 P.2d 113 (Ct.
App. 1988).
In a prosecution for aggravated driving
while under the influence of alcohol, the la-
beling on the blood-alcohol test kit with its
manufacturer's certificate, satisfied for foun-
dational purposes the requisite showing of
authenticity required to establish the pres-
ence of the contested chemicals. State v. Bell,
115 Idaho 36, 764 P.2d 113 (Ct. App. 1988).
The state may establish guilt either by
evidence showing that the defendant was
driving with a blood alcohol level of .10 per-
cent or higher, or by showing

under a
totality of the evidence
that the defendant

was driving under the influence, and the jury
may infer from a blood alcohol test result
what the probable concentration was while
the defendant was driving. State v. Koch, 115
Idaho 176, 765 P.2d 687 (Ct. App. 1988).
In a prosecution for driving under the influ-
ence of alcohol, a letter from the Department
of Health and Welfare continuing its approval
for the hospital's laboratory, was sufficient to
demonstrate proper certification and ap-
proval in order to admit results of the hospi-
tal's analysis of blood for determination of
blood alcohol concentration. State v. Koch, 115
Idaho 176, 765 P.2d 687 (Ct. App. 1988).
Evidence supported a conviction under this
section where the defendant was found intox-
icated in the driver's seat of his automobile,
asleep, with the lights on and the motor
running; defendant admitted he had been
driving the automobile prior to his discovery
and fully intended to continue his journey
home. State v. Cheney, 116 Idaho 917, 782
P.2d 40 (Ct. App. 1989).
Subsection (4) of this section provides for an
expedient method for admitting blood alcohol
content test results into evidence when the
analysis is conducted pursuant to health and
welfare standards, however, establishing the
reliability and accuracy of such test results
can be accomplished alternatively through
expert testimony at trial. State v. Phillips, 117
Idaho 609, 790 P.2d 390 (Ct. App. 1990).
Evidence of scientific measurement of alco-
hol concentration is governed by statute. Such
evidence must be in the form of an acceptable
test of a subject's blood, breath or urine,
conducted in accordance with standards ap-
proved by the Department of Law Enforce-
ment. There is no provision for extrapolating
an individual's probable alcohol concentration
by the use of charts or graphs such as that
published in the Idaho Driver's Manual. State
v. Andrus, 118 Idaho 711, 800 P2d 107 (Ct.
App. 1990).
It is not necessary to prove that the defen-
dant could not drive safely or prudently; it is
sufficient to prove only that his ability to drive
was impaired by the influence of alcohol.
Further, it is not necessary that the state
prove impairment to any specified degree. As
a practical matter, however, the state must
prove the impairment by observations of some
type of ascertainable conduct or effect. State
v. Andrus, 118 Idaho 711, 800 P.2d 107 (Ct.
App. 1990).
Defendant's argument that the magistrate
erred with regard to the admission of the
results of the blood alcohol test administered
by officer in that first, magistrate "coached"
the deputy prosecutor by advising her how to
lay the foundation to have the test admitted
and second, an inadequate foundation was
laid for the admission of the test was without
merit; such statements made by the magis-
trate were nothing more than explanations of
her rulings and the mere expression of a legal
conclusion regarding the sufficiency of foun-
dational evidence is not error. State v.
Greathouse, 119 Idaho 732, 810 P.2d 266 (Ct.
App. 1991).
ence, foundation for admission of breath test
was proper where the record indicated that
where the Intoximeter 3000 was in proper
working order and the officer was certified as
an operator, instructor, and technician on the
machine, he followed all procedures on which
he had been instructed in administering the
test and the machine was certified by the
Idaho Department of Health and Welfare and
had been properly calibrated and tested.
State v. Greathouse, 119 Idaho 732, 810 P.2d
266 (Ct. App. 1991).
The horizontal gaze nystagmus (HGN) test
is reliable and was properly admitted by the
district court as evidence of DUI. State v.
Garrett, 119 Idaho 878, 811 P.2d 488 (1991).
As a matter of law, a driver's consent to
take a required evidentiary test must be un-
conditional and based on the strong state
interest in protecting the public from drunk
drivers and from the plain language of the
statute, it is evident that the legislature pre-
sumed a driver's consent to take an
evidentiary test to be unconditional; there-
fore, even if the defendant's request is reason-
able, the defendant cannot condition submis-
sion to an evidentiary test on the jailer's
compliance with the request. Goerig v. State,
121 Idaho 26, 822 P2d 545 (Ct. App. 1991).
Defendant did not show that he was phys-
ically unable to take the test and the state
presented uncontroverted evidence that being
handcuffed does not render a person physi-
cally incapable of taking a breathalyzer test;
therefore, the burden of proof rested on the
defendant to prove physical inability to take
the test or to establish another cause of suffi-
cient magnitude to refuse to take the test.
Goerig v. State, 121 Idaho 26, 822 P.2d 545
(Ct. App. 1991).
The state provided a sufficient foundation
to establish that defendant's blood-alcohol
content test was performed by a laboratory or
method approved by the Idaho Department of
Law Enforcement as required by subsection
(4) of this section. State v. Uhlry, 121 Idaho
1020, 829 P.2d 1369 (Ct. App. 1992).
Admission.
Proper.
In DUI prosecution, where deputy's testi-
mony relating to HGN test results was offered
not as independent scientifically sound evi-
dence of defendant's intoxication but rather
for the same purpose as any other field sobri-
ety test evidence
a physical act on the part

of defendant observed by the officer contrib-
uting to the cumulative portrait of defendant
intimating intoxication in the officer's opin-

ion, and thus such evidence was properly
admitted. State v. Gleason, 123 Idaho 62, 844
P.2d 691 (1992).
Exclusion.
Magistrate's exclusion of defense witnesses
as a discovery sanction Tor missing the discov-
ery deadline, which severely penalized defen-
dant convicted of DUI, was an abuse of dis-
cretion; conviction vacated and case
remanded for new trial. State v. Winson, 129
Idaho 298, 923 P.2d 1005 (Ct. App. 1996).
Foundation.
Where State elected to prove the charge of
DUI solely with evidence showing an exces-
sive alcohol concentration, defendant failed to
provide adequate foundation for evidence of
impairment he offered to challenge the alco-
hol concentration test. State v. Edmondson,
125 Idaho 132, 867 P.2d 1006 (Ct. App. 1994).
Expert, uncontroverted, testimony regard-
ing the reliability of a breath test provided an
adequate foundation for its admission into
evidence. State v. Charan, 132 Idaho 341, 971
P.2d 1165 (Ct. App. 1998).
Where compliance with approved proce-
dures for test administration is not shown, it
is necessary for trial courts to determine
whether foundational standards have been
met by alternative means based on the evi-
dence presented in each case. State v. Charan,
132 Idaho 341, 971 P.2d 1165 (Ct. App. 1998).
Subsection (4) of this section does not elim-
inate the foundation requirement for the ad-
mission of evidence, but merely specifies one
means by which the necessary foundation
may be established for alcohol concentration
tests, thus meeting foundational standards
under the state rules of evidence. State v.
App. 1999).
Foundation.
Defendant did not provide any evidence
demonstrating the unreliability of the Alco-
Sensor III and failed to show that the proper
foundation under Idaho R. Evid. 702 for ad-
mission of his blood-alcohol test results was
not established; the Alco-Sensor III was ap-
proved by the Idaho state police, additionally,
the arresting officer testified that the device
had been certified, that he followed the proce-
dures required for accurate use of the device,
including conducting a calibration check
within twenty-four hours of its use, and that
he was certified by the state as a specialist
and an instructor in its operation. State v.
Afford,

2004).
Held Sufficient.
Where arresting officer testified that he
detected the odor of alcohol when he stopped
defendant, and where defendant was unable
to successfully complete several field sobriety
tests, the evidence was sufficient, albeit cir-
cumstantial, to establish a discernible impair-
ment related to defendant's ability to drive,
and thus was sufficient to support a finding
that defendant had been driving under the
influence of alcohol. State v. Bronnenberg,
124 Idaho 67, 856 P.2d 104 (Ct. App. 1993).
Evidence of the defendant's driving behav-
ior and law enforcement testimony as to her
impairment and the results of a urinalysis
constituted substantial, competent evidence
to support the jury's guilty verdict. State v.
Lesley, 133 Idaho 23, 981 P2d 748 (Ct. App.
1999).
There was sufficient evidence from which
the jury could reasonably conclude that defen-
dant's ability to drive was impaired by the
influence of alcohol where two officers testi-
fied that defendant smelled of alcohol, exhib-
ited poor balance and slurred speech, had
watery and bloodshot eyes, and nearly col-
lided with the officers' car when he was back-
ing out of the parking lot of a bar. State v.
Mace, 133 Idaho 903, 994 P.2d 1066 (Ct. App.
2000).
Impeachment.
Adefendant charged with driving under the
influence by proof of excessive blood alcohol
content is entitled to offer any competent
evidence tending to impeach the results of the
evidentiary tests admitted against him; thus,
a defendant may introduce evidence of his
blood alcohol content, or other direct or cir-
cumstantial evidence, to show a disparity
between such evidence and the results pro-
duced by the chemical testing, so as to give
rise to an inference that the prosecution's test
results were defective. State v. Pressnall, 119
Idaho 207, 804 P.2d 936 (Ct. App. 1991).
Excluded evidence of DUI defendant's blood
alcohol level and its relationship to his breath
alcohol content specifically contradicted the
results of the tests admitted against him, and
assuming the jury believed defendant's testi-
mony regarding his alcohol consumption, the
excluded testimony would have demonstrated
that his alcohol concentration was lower than
that shown by the intoximeter, and conse-
quently would have permitted the jury to
doubt the accuracy of the state's evidence.
Consequently, the exclusion of this testimony
may have contributed to a jury finding that
defendant was driving while having an alco-
hol content of .10 percent or more, and the
error in excluding impeaching evidence, as it
related to the reliability of the breath test
results, reasonably could have affected the
ultimate outcome of this case; thus, the judg-
ment of conviction was vacated and the case
remanded for a new trial. State v. Pressnall,
119 Idaho 207, 804 P2d 936 (Ct. App. 1991).
In a prosecution for driving while under the
influence, where the state has alleged that
the defendant was driving while having an
alcohol content of .10 percent or more as
shown by analysis of his blood, breath or
urine, evidence of a contradictory alcohol con-
tent, otherwise proper, is admissible for the
purpose of impeaching the results of the
evidentiary tests submitted by the state. The
probative weight to be accorded to such testi-
mony is left to the jury as trier of the facts, as
is the weight to be accorded other evidence in
the case. State v. Pressnall, 119 Idaho 207,
804 P.2d 936 (Ct. App. 1991).
Where defendant sought to introduce evi-
dence of his blood alcohol concentration, and
its relationship to the level of alcohol in his
breath, showing an alcohol concentration of
less than . 10 percent, such evidence was "rel-
evant" within the meaning of IRE 401, and
admissible for the purpose of discrediting the
results of the state's breath test. State v.
Pressnall, 119 Idaho 207, 804 P2d 936 (Ct.
App. 1991).
The evidence of a prior DUI conviction was
relevant to directly impeach and contradict
defendant's testimony that he did not engage
in that type of behavior when he said in his
testimony, "I don't drink and drive." State v.
Mace, 133 Idaho 903, 994 P2d 1066 (Ct. App.
2000).
Measuring Scientific Reliability.

The appropriate test for measuring the sci-
entific reliability of evidence is I.R.E. 702.
State v. Gleason, 123 Idaho 62, 844 P.2d 691
(1992).
While State v. Garrett, 119 Idaho 878, 811
P.2d 488 (1991) is authoritative on the issue of
the scientific reliability of the horizontal gaze
nystagmus test (HGN) evidence, it is not
authority for the appropriate test against
which such scientific reliability is to be mea-
sured. State v. Gleason, 123 Idaho 62, 844
P2d 691 (1992).
Relevance.
Because evidence that is relevant to the
impairment method of proof under this sec-
tion is not necessarily relevant to the per se
method, the defendant's assertion that his
speech was not slurred and his clothes were
not disheveled when he was stopped for
speeding did not affect the police officer's
reasonable suspicion, based upon the detec-
tion of an odor of alcohol, that the defendant
was driving under the influence. State v.
Ferreir?, 133 Idaho 474, 988 P.2d 700 (Ct.
Ct. 1533, 146 L. Ed. 2d 348 (2000).
Felony DUI.
The elements of felony driving under the
influence are limited to whether defendant
drove or was in actual physical control of his
car, while under the influence of alcohol or
other intoxicating substances, and that he
had pled or been found guilty of at least two
violations of this section within the previous
five years. These facts were easily, clearly, and
honestly ascertained by the police in connec-
tion with defendant's arrest. State v.
Zubizareta, 122 Idaho 823, 839 P2d 1237 (Ct.
App. 1992).
A plain interpretation of the words chosen
by the legislature in 18-8005(7) evidences
an intent that a pre- 1992 felony DUI convic-
tion may properly be used to enhance a post-
1992 DUI charge to a felony. Wilson v. State,
133 Idaho 814, 993 P.2d 1205 (Ct. App. 2000).
Field Sobriety Tests.
Field sobriety tests are the least intrusive
means reasonably available to verify or dispel
in a short period of time a police officer's
suspicion that the driver is in violation of this
section. State v. Ferreira, 133 Idaho 474, 988
P2d 700 (Ct. App. 1999), cert, denied, 529
U.S. 1038, 120 S. Ct. 1533, 146 L. Ed. 2d 348
(2000).
Fourth Amendment Stop.
Substantial evidence was presented in the
record that when the officers approached the
car, it was already stopped on a public street.
There was no sign of authority or force to
restrict defendant's movement beyond the
uniforms the officers wore and the fact that
they wanted to talk to defendant. Thus, there
was no Fourth Amendment "stop" under the
United States Constitution. State v. Jordan,
122 Idaho 771, 839 P.2d 38 (Ct. App. 1992).
Motion to suppress evidence denied where
defendant had voluntarily pulled over and
stopped his car partially on the road and
police officer pulled behind to see if driver was
all right and saw open beer bottles inside
vehicle. State v. Mireles, 133 Idaho 690, 991
R2d 878 (Ct. App. 1999).
Indictments.
Idaho's driving under the influence (DUI)
statute, Idaho Code 18-8004(l)(a), estab-
lishes a crime that may be proved in two
distinct ways: (1) by evidence that the defen-
dant's ability to drive was actually impaired
by the influence of alcohol, or (2) by evidence
that the defendant was driving with an alco-
hol concentration of 0.08 or more as deter-
mined by analysis of blood, urine or breath.
The State, in its charging instrument, may
elect to proceed against the defendant under
either or both theories of proof. State v.
Robinett,

Idaho ,

P. 3d , 2004 Ida.
App. LEXIS 2 (Ct. App. Jan. 7, 2004).
Instructions.
The trial court did not err in giving an
instruction stating, in part, that one of the
elements of a driving under the influence
charge is that the act was committed while
the defendant had 0.10 percent or more, by
weight, of alcohol in his blood. State v.
Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.
App. 1987).
accident and in which she had been a passen-
(1992).
In prosecution for DUI, jury was properly
instructed on the elements of driving under
the influence where instruction clearly distin-
guished the "degree of intoxication" to inform
the jury that they need not discern some
magic number to represent defendant's state
and glean from it the conclusion of driving
under the influence, but rather the court's
reference to "degree if intoxication" denoted a
question of fact as to whether the defendant
consumed sufficient alcoholic beverage to
thrust him into the realm of the continuum
that represented persons whose ability to
drive was influenced or affected by alcohol.
State v. Gleason, 123 Idaho 62, 844 P.2d 691
(1992).
The proper jury instruction for the crime of
DUI is that the driver need not be shown to
have been in any particular degree or state of
intoxication, but only to have consumed intox-
icating liquor to such extent as to influence or
affect his ability to drive. State v. Gleason,
123 Idaho 62, 844 P.2d 691 (1992).
The term "judgment" should be avoided in
jury instructions in DUI prosecutions. State v.
Gleason, 123 Idaho 62, 844 P.2d 691 (1992).
Where jury instructions in case clearly re-
quired jury to find a causal relationship be-
tween alleged DUI- and the accident, jury
instructions adequately covered the
Glanzman requirement that defendant's con-
sumption of alcohol affected her driving and
although a more specific instruction would
have been preferable, the instructions, as a
whole, fairly and accurately reflected the ele-
ments of vehicular manslaughter. State v.
Thomas, 128 Idaho 907, 920 P.2d 927 (Ct.
App. 1996).
Harmless Error.
While plaintiff's alcohol consumption was
relevant in considering his comparative neg-
ligence, court's instruction improperly defined
"under the influence" suggesting to the jury
that if plaintiff's mental abilities were im-
paired he must have been "under the influ-
ence"; however, any error in giving the in-
struction was harmless because the trial
court did not instruct the jury that DUI was
negligence per se. Dabestani ex rel. Dabestani
v. Bellus, 131 Idaho 542, 961 P2d 633 (1998).
Improper.
Defendant's proposed jury instructions
which dealt with procedures under subsection
(4) of this section that must be followed prior
to the administration of the breathalyzer test
in order to meet the foundational require-
ments necessary to have the test results ad-
mitted at trial were improper because they
contained matters that are not so much legal
principles as factual information, and because
they attempted to instruct the jury on a legal
standard which was inapplicable to the jury's
function as the trier of fact. State v. Ward, 135
Idaho 400, 17 P.3d 901 (Ct. App. 2001).
Per Se Standard.
When the state introduced into evidence
two test results showing an alcohol concentra-
tion of .10 percent, those results satisfied the
requirement for prosecution under the per se
standard described in this section; therefore,
the jury instruction was an accurate state-
ment of the law as applied to the facts of the
case. State v. Barker, 123 Idaho 162, 845 P.2d
580 (Ct. App. 1992).
Uncontradicted Evidence.
Where defendant testified to disputed facts,
offered by defendant to contradict inference
raised by the state's evidence, that defendant
had been driving while under the influence of
alcohol, defendant's testimony did not consti-
tute "uncontradicted evidence" and a re-
quested instruction on uncontradicted evi-
dence was not warranted by the evidence.
State v. Bronnenberg, 124 Idaho 67, 856 P.2d
104 (Ct. App. 1993).
Intoximeter.
The Department of Health and Welfare has
approved the Intoximeter with the Taguchi
cell deactivated. Any deficiencies in the accu-
racy of the measurement of ethyl alcohol that
are occasioned by the lack of a Taguchi cell
may be attacked by cross-examination or by
independent evidence. State v. Wilson, 116
Idaho 771, 780 P.2d 93, rehearing denied, 117
Idaho 493, 788 P.2d 1316 (1989).
The Intoximeter #3000, with the Taguchi
cell deactivated, was approved by the Depart-
ment of Health and Welfare at the time a DUI
defendant was tested and was not required to
be "certified." State v. Wilson, 116 Idaho 771,
780 P.2d 93, rehearing denied, 117 Idaho 493,
788 P.2d 1316 (1989).
In criminal case where defendant was
charged with driving under the influence in
violation of this section and 18-8005(3),
expert opinion evidence as to the scientific
acceptance and reliability of the Intoximeter
3000 was properly admitted where adequate
foundation was laid to qualify the expert
witnesses and their opinions were properly
admitted into evidence. State v. Crea, 119
Idaho 352, 806 P.2d 445 (1991).
The Intoximeter 3000 with the Taguchi cell
deactivated was not required to be certified by
the Department of Health and Welfare, and
was approved by the Department for use as a
direct testing instrument; any deficiencies in
the accuracy of the measurement of ethyl
alcohol that are occasioned by the lack of a
Taguchi cell may be attacked by cross-exam-
ination or by independent evidence. State v.
Crea, 119 Idaho 352, 806 P.2d 445 (1991).
While scientific acceptance of the
Intoximeter 3000 is well established in Idaho,
use of test results from the Intoximeter 3000
in the courts of this state remains subject to
proper foundation and evidence being pre-
sented. State v. Crea, 119 Idaho 352, 806 P.2d
445 (1991).
In prosecution under this section where
magistrate ordered that defendant's expert
witness be given access to the Intoximeter
3000 to perform experiments in preparation
for his defense, but the expert was given
access to the equipment for only 30 minutes
on the morning of the trial, since defendant
made no objection to the trial court to pre-
serve this issue, thus limiting review to a
determination of whether there was funda-
mental error, and there was no such error
where review of the expert's testimony at trial
gave no indication that his limited access to
the equipment impaired his ability to testify
at trial. State v. Greathouse, 119 Idaho 732,
810 P.2d 266 (Ct. App. 1991).
Nothing in the operator's training manual
for using the Intoximeter 3000 expressly
mandates that only a certified officer can
observe the subject for the required 15 min-
utes before administration of the Intoximeter
test; therefore, observations of the arresting
officer for the 15-minute interval was suffi-
cient. State v. Bradley, 120 Idaho 566, 817
P.2d 1090 (Ct. App. 1991).
Magistrate erred by instructing jury that
the Intoxilyzer 5000 had been approved by
the State of Idaho. Such instruction com-
mented on the legal determination of ade-
quate foundation which is not properly an
issue before the jury and implied that test
was accurate. DUI conviction reversed and
case remanded for new trial. State v. Winson,
129 Idaho 298, 923 R2d 1005 (Ct. App. 1996).
Jurisdiction.
Where, in prosecution of an Indian arrested
within Indian country for driving under the
influence of alcohol, the defendant failed to
call to the court's attention any theory of
constitutional or federal law which would
deny Congress the power to regulate the op-
eration of motor vehicles by Indians while in
Indian country
or to pass such regulatory

power to the states, the magistrate properly
exercised jurisdiction over the action. State v.
Fanning, 114 Idaho 646, 759 P.2d 937 (Ct.
App. 1988).
Anon-Indian driving under the influence on
a road within the boundaries of a reservation
is not committing a crime against an Indian
or the general Indian populace. As such, the
State of Idaho has jurisdiction to prosecute
defendant. State v. Snyder, 119 Idaho 376, 807
P.2d 55 (1991).
State had jurisdiction over an enrolled
member of an Indian tribe for the offense of
driving while under the influence of alcohol
on public roads and highways within an In-
dian reservation located in the State and the
district court properly exercised jurisdiction
over the matter. State v. Warden, 127 Idaho
763, 906 P.2d 133 (1995).
Jury Trial.
Waiver.
Where any waiver of a jury trial by the
defendant's counsel in prosecution for driving
under the influence resulted from confusion
and misunderstanding, no waiver was in-
cluded in the court's minutes, and no waiver
was personally entered by the defendant, the
record did not demonstrate an express waiver
by the defendant of his right to a jury trial,
and absent an express waiver by the defen-
dant, the court erred in proceeding with the
trial. State v. Wheeler, 114 Idaho 97, 753 P.2d
833 (Ct. App. 1988).
Legislative Intent.
Aviolation of this section is committed by a
person when he or she is driving or is in
actual physical control of a motor vehicle and
is either (a) under the influence of alcohol,
drugs or any other intoxicating substances, or
(b) has an alcohol concentration of 0.10 or
more. The state need not prove that the
person was actually impaired by alcohol, but
merely that the analysis of blood, urine, or
breath had established an alcohol concentra-
tion of 0.10 or more. By so structuring the
drunk driving statute, the legislature was
expressing its intent that prosecutions for
drunk driving may be grounded in a per se
0.10 alcohol concentration test, rather than in
complicated proof over the level of impair-
ment of any particular individual. State v.
App. 1991).
Lesser Included offense.
An error will be considered harmless if the
appellate court finds beyond a reasonable
doubt that the jury would have reached the
same result in the absence of the error, and
where parties maintained that issue before
the court was whether inattentive driving
constituted a lesser included offense of misde-
meanor DUI, it was not necessary to address
the issue as it was clear that the result, a
conviction of defendant for DUI, would have
been the same regardless of whether or not
the requested instruction of inattentive driv-
ing had been given. State v. Curtis, 130 Idaho
525, 944 P.2d 122 (Ct. App. 1996).
Where defendant was charged with and
convicted of the crime* of operating a vehicle
while under the influence of an alcoholic bev-
erage, his argument that the magistrate
judge erred in refusing to instruct the jury on
the offense of inattentive driving as a lesser
included offense of the crime charged, was
without merit as under the statutory theory
and under the pleading theory inattentive
driving is not a lesser included offense of
driving under the influence. State v. Curtis,
130 Idaho 522, 944 P.2d 119 (1997).
Miranda Warning.
Where state trooper questioned defendant
with regard to DUI offense without first plac-
ing him under arrest, defendant was not
entitled to Miranda warnings. State v. Pilik,
129 Idaho 50, 921 P.2d 750 (Ct. App. 1996).
Motor Vehicle.
The term "motor vehicle" as used in this
section encompasses motorcycles. State v.
Carpenter, 113 Idaho 882, 749 P2d 501 (Ct.
App. 1988).
Since a snowmobile is a specific type of
motor vehicle, permitted under certain cir-
cumstances to be operated on highways or
roadways, it should be treated as a motor
vehicle for purposes of the application of this
section. State v. Barnes, 133 Idaho 378, 987
P2d 290 (1999).
Nature of Impairment.
Because the offense is "driving under the
influence," it is essential that the impairment
be of a physical or mental function that re-
lates to one's ability to drive. It is error to
instruct a jury that a defendant may be con-
victed upon evidence of an impairment which,
though noticeable and caused by the con-
sumption of alcohol, would not impair the
ability to drive. State v. Andrus, 118 Idaho
711, 800 P.2d 107 (Ct. App. 1990).
No Quantity Requirement.
This section does not require that a driver
have a certain quantity of drugs in his system
in order to be guilty of driving under the
influence. State v. Lesley, 133 Idaho 23, 981
P2d 748 (Ct. App. 1999).
Nonforensic Evidence of Blood Alcohol
Concentration.
The trial court erred in excluding
nonforensic evidence of defendant's blood al-
cohol concentration and its correlation to the
level of alcohol present in his breath; this
evidence was relevant and admissible for the
purpose of impeaching the accuracy of the
state's breath test results. State v. Pressnall,
119 Idaho 207, 804 P.2d 936 (Ct. App. 1991).
Observation of Defendant.
Where officer who administered a breath
test did not "closely observe" defendant for the
requisite fifteen-minute period, nor did the
state present evidence showing that defen-
dant had been observed by any officer for
fifteen minutes preceding the tests, the re-
sults of the breath test produced by the
Intoximeter 3000 machine were inadmissible.
State v. Utz, 125 Idaho 127, 867 P.2d 1001 (Ct.
App. 1993).
Where the evidence showed that numerous
sources of noise, the police officer's hearing
impairment, and his position facing away
from the defendant, would substantially have
impaired his ability to supplement his visual
observation with his other senses to insure
that nothing occurred that would affect the
validity of the breath tests, the magistrate
erred in denying defendant's motion to ex-
clude the tests. State v. Carson, 133 Idaho
451, 988 P2d 225 (Ct. App. 1999).
Operation on Indian Reservation.
With regard to the operation of motor vehi-
cles on an Indian reservation, the state's
interests in maintaining traffic safety and
protecting the traveling public, Indian and
nonlndian alike, controls regardless of
whether the motor vehicle is being operated
on a road maintained by the state or a polit-
ical subdivision. State v. Snyder, 119 Idaho
376, 807 P2d 55 (1991).
Order of Convictions.
As long as a defendant is found guilty of
three or more violations of the provisions of
this section, within five years, he has commit-
ted a felony, regardless of whether the third
violation preceded the second conviction.
State v. Craig, 117 Idaho 983, 793 P.2d 215
(1990).
Physical Control.
The legislative history of this section does
not recognize any distinction between driving
and exercising actual physical control of a
motor vehicle. State v. Cheney, 116 Idaho 917,
782 P2d 40 (Ct. App. 1989).
"Driving" and being in "actual physical con-
trol" of a motor vehicle are alternative "cir-
cumstances" under which the crime of driving
under the influence may be charged. State v.
Cheney, 116 Idaho 917, 782 P.2d 40 (1989).
Magistrate's finding that intoxicated driver
was in "actual physical control of his vehicle"
was not clearly erroneous where defendant
was found asleep in the vehicle which was
parked on the shoulder of the road, the brake
lights were on and the engine was running,
defendant's lower half of his body was on the
driver's side of the front seat and the upper
half of his body was resting on the passenger's
side of the seat, and his right foot was on the
brake. State v. Woolf, 120 Idaho 21, 813 P.2d
360 (Ct. App. 1991).
Prescription Drugs.
Lithium is a drug for the purposes of this
section and thus, the court did not err by
refusing to dismiss or strike the portion of the
complaint charging defendant with driving
under the influence of drugs; the fact that
defendant was legally entitled to take lithium
because it had been prescribed to him is not a
defense to a charge of driving under the
influence of intoxicants. State v. Goerig, 121
Idaho 108, 822 P.2d 1005 (Ct. App. 1991).
Private Property Open to the Public.
Parking lot of bar, where defendant was
cited for driving under the influence (DUI),
qualifies as "private property open to the
public," within the meaning of subdivision
(l)(a) of this section; parking lot of bar was
maintained for the use of any members of the
public who wanted to patronize the business
or for members of the public who did not want
to patronize the bar but, for example, wanted
to turn their vehicles around. State v. Gibson,
126 Idaho 256, 881 P.2d 551 (Ct. App. 1994).
Since there is a close interaction between
Title 49 statutes and similar statutory provi-
sions in Title 18, the definition in section
49-117(16) is applicable to the phrase "private
property open to the public" used in this
section. State v. Knott, 132 Idaho 476, 974
P.2d 1105 (1999).
Where the defendant was on a private res-
idential driveway at the time of his alleged
offense, the fact that social guests and per-
sons with business at the residence were
permitted to use the driveway did not make it
property available to the general public for
vehicular traffic or parking, and his convic-
versed. State v. Knott, 132 Idaho 476, 974
P.2d 1105 (1999).
Probable Cause.
Where police officer, after stopping defen-
dant's automobile, noticed that defendant's
eyes were glazed and bloodshot, his speech
was slightly slurred and his breath smelled of
alcohol, and where the officer also noted that
defendant had a tail light out, crossed the fog
line twice, and admitted to have had three
beers to drink, these facts established proba-
ble cause to arrest defendant and to request
that he submit to a blood-alcohol test. State v.
Armbruster, 117 Idaho 19, 784 P.2d 349 (Ct.
App. 1989).
In determining whether probable cause to
support an arrest existed, the inquiry turns
on whether an officer possessed facts which
would lead a person of ordinary prudence to
entertain an honest belief that the suspect
has committed a crime; the officer is entitled
to draw reasonable inferences from the facts
in his possession, and may base those infer-
ences upon his training and experience as a
law enforcement officer. State v. Webb, 118
Idaho 99, 794 P.2d 1155 (Ct. App. 1990).
The standards for probable cause are not
legal technicalities, but instead are the fac-
tual and practical considerations of everyday
life upon which reasonable and prudent peo-
ple act; probable cause deals with the proba-
ble consequences of all of the facts considered
as a whole, and the determination of probable
cause does not require certainty of guilt, but
rather the probability that the suspect has
committed the offense. State v. Webb, 118
Idaho 99, 794 P.2d 1155 (Ct. App. 1990).
Where defendant's car was parked with the
engine running, a short distance from a high-
way in a remote area, where defendant was
the sole occupant, and was slumped behind
the wheel, where the hour was late and an
investigating officer had unusual difficulty in
arousing defendant, where defendant demon-
strated prolonged confusion, and where de-
fendant was unable to perform sobriety tests,
such circumstances warranted the conclusion
of a reasonable and prudent person with the
officer's experience that defendant was driv-
ing while intoxicated. State v. Webb, 118
Idaho 99, 794 P.2d 1155 (Ct. App. 1990).
While the record showed deviation from
informant's description of the truck of an
intoxicated man she witnessed threatening
teenagers with a gun and the defendant's
truck, the description was reasonably compa-
rable to justify the stop of defendant's vehicle,
which lead to his DUI arrest, based on rea-
sonable and articulable suspicion; order deny-
ing motion to suppress affirmed. State v.
Etherington, 129 Idaho 463, 926 P.2d 1310
(Ct. App. 1996).
An officer may not arrest a person for driv-
ing after using a non-narcotic drug, such as
marijuana, without probable cause to believe
the person's ability to drive safely is impaired
and, therefore, an officer did not have proba-
ble cause to arrest the defendant where the
officer's responses and descriptions of the de-
fendant's behavior revealed that the defen-
dant's driving and comportment did not evi-
dence any impairment. United States v.
Patzer, 277 F. 3d 1080 (9th Cir. 2002).
Standard required for transporting an indi-
vidual to a law enforcement building or hos-
pital for breath, urine, or blood testing,
whether "probable cause" or "legal cause," was
satisfied where the officer observed defendant
driving ten miles per hour in excess of the
twenty-five-mile-per-hour speed limit, de-
tected a strong odor of alcohol on his breath,
observed that he had bloodshot eyes and
dilated pupils, and was aware that defendant
had refused to take field sobriety tests which
could have confirmed or dispelled the suspi-
cion of intoxication. Thompson v. State (In re
Thompson), 138 Idaho 512, 65 P.3d 534 (Ct.
App. 2003).
Reasonable Suspicion.
A police officer is only required to possess
reasonable suspicion that a person is driving
in violation of this section before field sobriety
tests may be administered. State v. Ferreira,
133 Idaho 474, 988 P.2d 700 (Ct. App. 1999),
146 L. Ed. 2d 348 (2000).
When an officer suspects that the driver of a
lawfully stopped vehicle is driving while un-
der the influence he may order him out of the
vehicle. State v. Ferreira, 133 Idaho 474, 988
U.S. 1038, 120 S. Ct. 1533, 146 L. Ed. 2d 348
(2000).
Because the deputy's observations provided
the reasonable suspicion necessary for a law-
ful traffic stop under 49-1401(3) and
49-
630(1), defendant's motion to suppress the
evidence of his intoxication was correctly de-
nied. State v. Anderson, 134 Idaho 552, 6 P.3d
408 (Ct. App. 2000).
When the officer saw that one of the head-
lights on the vehicle defendant was driving
was on while the other was not, he had
reasonable cause to believe defendant was
operating a vehicle in violation of
49-902( 1
),
which is an infraction pursuant to 49-905,
and an officer may stop a vehicle to investi-
gate possible criminal behavior if there is
articulable and reasonable suspicion that the
vehicle is being driven contrary to traffic laws.
State v. Evans, 134 Idaho 560, 6 P.3d 416 (Ct.
App. 2000).
Defendant's motion to suppress was prop-
erly denied where the officer's observations of
unusual activity sufficiently corroborated the
radio dispatch to provide the requisite reason-
able suspicion to make an investigatory stop.
State v. Hankey,
J34
Idaho 844, 11 P3d 40
(2000).
The odor of alcohol and defendant's admis-
sion that he had had three or four drinks was
sufficient evidence, based on the totality of
the circumstances, to support a reasonable,
articulable suspicion that defendant was in
violation of this section, and the officer was
justified in requiring defendant to exit his
vehicle and perform field sobriety tests. State
v. Nelson, 134 Idaho 675, 8 P.3d 670 (Ct. App.
2000).
Where defendant agreed to take a
breathalyzer test only on the condition that
the police administering the test remove his
handcuffs, and the police refused and defen-
dant did not take the test, defendant's condi-
tional consent to take a test to determine
blood alcohol content was considered to be a
refusal for the purpose of determining
whether his driver's license should be revoked
under I.C. 18-8002(4). Goerig v. State, 121
Idaho 26, 822 P2d 545 (Ct. App. 1991).
The requirement contained in subsection
(3) of
18-8002 that a motorist suspected of
driving while under the influence be advised
of the consequences of refusal did not create a
right to refuse the test or to withdraw con-
sent. State v. Burris, 125 Idaho 289, 869 P2d
1384 (Ct. App. 1994).
Intermediate appellate decision of the dis-
trict court reversing an order of the magis-
trate granting the driver's motion to set aside
the magistrate's previous order suspending
his driver's license, was proper where, assum-
ing the general applicability of the Idaho
Rules of Civil Procedure to license suspension
proceedings by virtue of I.M.C.R. 9.2(e), a
conflict remained between I.M.C.R. 9.2(b) and
I.R.C.P. 60(b)(1); because I.M.C.R. 9.2(b) was
the more specific rule, it controlled over the
more general I.R.C.P. 60(b)(1) and therefore,
I.R.C.P 60(b)(1) was not available to remedy
the driver's untimely request for a show cause
hearing. Hansen v. State (In re Hansen), 138
Idaho 865, 71 P.3d 464 (Ct. App. 2003).
Request for Independent Test.
Access to Phone.
Where defendant after submitting to the
BAC test and having the standard
18-8002
Advisory Form read to him failed to assert his
right to an independent BAC test his consti-
tutional right to procedural process was not
violated by his not having been given access
to a phone, since such access at this point in
the detention is the mechanism through
which a DUI detainee executes his right to a
second test and once the request for the
second test is made the state may not inter-
fere with or deny access to a telephone to
arrange for such a test, but if no request is
made access to a phone is not necessary. State
v. Shelton, 129 Idaho 877, 934 P.2d 943 (Ct.
App. 1997).
Request for Test by Defendant.
Where in prosecution for driving under the
influence defendant requested that he be al-
lowed to obtain a blood test and the police
officer told him that he would have to wait
until after the officer was finished booking
him, and when officer finished and offered to
take defendant for test, defendant declined
and indicated that he did not feel well and
wanted to go home, in essence, defendant
withdrew his request for the test, and it was
because of this that no test was obtained and
thus magistrate properly concluded there was
no basis for suppressing the test results or
dismissing the charges. State v. Greathouse,
119 Idaho 732, 810 P.2d 266 (Ct. App. 1991).
Rules and Regulations.
This section has provided a showing that
the department of law enforcement adopted
rules and regulations pertaining to the ad-
ministration of alcohol concentration tests
toward implementation of the statute; the
court is empowered to take judicial notice of
these rules and regulations. State v. Howell,
122 Idaho 209, 832 P.2d 1144 (Ct. App. 1992).
Sentence.
ing discretion where it considered defendant's
extensive criminal background of five felonies
and one misdemeanor, and emphasized the
court's concern for the protection of society
from the harm that could result from his
conduct, and the court considered defendant's
drug and alcohol problem. State v. Hoak, 120
Idaho 415, 816 P.2d 371 (Ct. App. 1991).
Idaho 573, 817 P.2d 1097 (Ct. App. 1991).
Hildreth, 120 Idaho 573, 817 P2d 1097 (Ct.
App. 1991).
Defendant had been convicted of driving
under the influence on seven occasions, three
of them charged as felonies; defendant's cur-
rent DUI was committed while he was still on
probation for a previous DUI conviction for
which the district court ordered a four-year
unified sentence with one year fixed where
the sentence was suspended and defendant
was placed on probation and ordered to serve
one year in jail; and defendant's criminal
record also included a conviction for delivery
of a controlled substance; therefore defen-
dant's sentence of one year's fixed confine-
ment and four years indeterminate is reason-
able in light of the nature of the crimes he
committed and his character as revealed by
his extensive criminal history of alcohol-and-
drug-related offenses and defendant failed to
establish that the district court abused its
discretion in denying his motion for reduction
of his sentence. State v. Jimenez, 120 Idaho
753, 819 P.2d 1153 (Ct. App. 1991).
Where defendant had a prior record of
seven DUI offenses, numerous traffic offenses
involving alcohol, assault and child endanger-
ment, and a perjury conviction in federal
court, the District Court did not abuse its
discretion in imposing a five-year term, with
two years fixed. State v. Smith, 120 Idaho 961,
821 P2d 1016 (Ct. App. 1991).
The district court did not err in imposing a
unified sentence of five years, including a two
year minimum term of confinement on defen-
dant's felony DUI conviction where the dis-
trict court was persuaded that defendant's
lengthy DUI record, the fact that he had
reoffended while released on his own recogni-
zance pending sentencing, and the recom-
mendation of the Jurisdictional Review Com-
mittee, all indicated that society would be
best protected by denying probation. State v.
Cardona, 123 Idaho 16, 843 P.2d 166 (Ct. App.
1992).
Motion to Reduce.
Timeliness.
Where defendant pled guilty to felony driv-
ing under the influence, was sentenced and
released on probation, violated his probation
and after revocation of probation and execu-
tion of sentence only then filed a motion to
reduce his sentence, motion was untimely
because motion should have been filed as part
of the hearing on parole revocation to be
considered as an alternative disposition to
revocation, and therefore the court lacked
jurisdiction to grant the motion. State v.
Zamarripa, 120 Idaho 751, 819 P.2d 1151 (Ct.
App. 1991).
Upheld.
At the time defendant was charged with
DUI, he was on probation under a suspended
sentence for a previous felony DUI and he
disclosed that he had been cited a total of 23
times for DUI in the past 22 years; therefore,
the court did not abuse its discretion in im-
posing a sentence of four years, with a two
year period of minimum confinement. State v.
Elliot, 121 Idaho 786, 828 P.2d 349 (Ct. App.
1992).
Where defendant had previously been con-
victed 24 times of driving while under the
influence, the court reasonably concluded
that the unified sentence of five years, with
four years' minimum period of confinement
was necessary in order to minimize the risk of
recurrence of the defendant's criminal con-
duct. State v. Wildcat, 123 Idaho 514, 849 P.2d
975 (Ct. App. 1993).
Standards of Proof.
There are two ways of proving a violation of
this section: first, by showing under a totality
of the evidence that a defendant was driving
under the influence, and second by requiring
the state to establish that the defendant
drove with an alcohol level tested to be .10
percent or more. The magistrate did not err
when he denied defendant's motion to force
the state to exclusivelyêlect which method of
proof the state would use, as such an order
would be contrary to the language of this
section which uses the disjunctive "or" in its
description of the methods of proof allowed to
establish the elements of the crime. State v.
Barker, 123 Idaho 162, 845 P.2d 580 (Ct. App.
1992).
Statutory Percentages.
The statutory percentage contained within
the definition of the crime of driving under
the influence is conclusive, not presumptive,
of guilt; driving a vehicle while one has an
alcohol concentration of .10% or more is
deemed per se to be a violation of the law.
State v. Andrus, 118 Idaho 711, 800 P.2d 107
(Ct. App. 1990).
Test Results.
This section does not allow for the test
result to be determined by the methods of
averaging or of arriving at a median. State v.
Mills, 128 Idaho 426, 913 P.2d 1196 (Ct. App.
1996).
One valid sample constitutes "a test" pur-
suant to this section and if the blood alcohol
content level of a valid sample is less than
0.10, the accused cannot be prosecuted for
driving under the influence under this sec-
tion. State v. Mills, 128 Idaho 426, 913 P.2d
1196 (Ct. App. 1996).
This section does not expressly condition
the validity or admissibility of test results on
compliance with the test regulations adopted
by the administrative agency. State v.
Charan, 132 Idaho 341, 971 P.2d 1165 (Ct.
App. 1998).
Type of Test.
The choice as to which type of evidentiary
test for concentration of alcohol, drugs or
other intoxicating substances will be re-
quested rests with the police officer, not the
defendant. State v. Griffiths, 113 Idaho 364,
744 P2d 92 (1987).
Although the blood alcohol test must yield a
result that can be expressed in terms of whole
blood, nothing in this section prohibits testing
the blood serum. State v. Koch, 115 Idaho 176,
765 P.2d 687 (Ct. App. 1988).
The state presented proof that the
Intoximeter 3000 was a test for alcohol con-
centration approved by the Idaho Department
of Health, administered in accordance with
its required procedures, thus meeting the
authentication condition of this section and
no expert testimony establishing the reliabil-
ity of the testing process was necessary. State
v. Van Sickle, 120 Idaho 99, 813 P.2d 910 (Ct.
App. 1991).
Defendant failed to demonstrate that any
state police policy was expressed, or that any
law or policy was interpreted, by the approval
of the Alco-Sensor III; the Idaho Administra-
tive Procedures Act (IAPA) did not apply
when the state police approved the methods
for determining an individual's alcohol con-
centration because the state police action ap-
proving the use of the Alco-Sensor III was not
rulemaking. State v. Alford,

Idaho , 83
P.3d 139 (Ct. App. 2004).
HGN.
Horizontal gaze nystagmus (HGN) test re-
sults are not admissible for all purposes;
HGN test results may not be used at trial to
establish the defendant's blood alcohol level
in the absence of the chemical analysis of the
defendant's blood, breath, or urine. State v.
Garrett, 119 Idaho 878, 811 P.2d 488 (1991).
The state may prove a violation of this
section two ways; by establishing blood alco-
hol content (BAG) of .10 percent or higher, or
by circumstantial evidence of impaired driv-
ing ability or other readily observable symp-
toms of intoxication, and a positive horizontal
gaze nystagmus (HGN) test in the absence of
some form of chemical analysis cannot be
used at trial to establish blood alcohol content
of .10 percent or above. The theory underlying
the HGN test is sound, but HGN test results
may only be used to draw certain inferences.
As circumstantial evidence of intoxication, a
positive HGN test result alone is not evidence
of a certain degree of blood alcohol content.
State v. Garrett, 119 Idaho 878, 811 P. 2d 488
(1991).
In prosecution for DUI, state satisfactorily
established police officer's qualifications re-
garding the administration of the HGN test
where such officer had extensive training in
traffic accident investigations, including DUI
detection and arrest and had attended semi-
nars conducted by doctor who had worked
with highway traffic and safety organization
to develop reliable field sobriety tests; there-
fore, officer was competent to testify as an
expert on the administration of the test. State
v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991).
The horizontal gaze nystagmus test (HGN)
satisfies the test of Frye v. United States, 293
F. 1013 for novel scientific evidence because
the test is based on a generally accepted
theory that persons who are intoxicated ex-
hibit nystagmus. State v. Garrett, 119 Idaho
878, 811 P.2d 488 (1991).
Introduction of evidence of a percentage
likelihood of intoxication based solely upon a
horizontal gaze nystagmus (HGN) test, ad-
missible because defendant neither objected
nor moved to strike this evidence, did not
constitute prosecutorial misconduct warrant-
ing declaration of mistrial or dismissal. State
v. Stevens, 126 Idaho 822, 892 P.2d 889
(1995).
Analysis
Blood-alcohol content.
Construction.
Evidence.
Reasonable grounds.
Sentence.
Termination of pending prosecution.
Blood-Alcohol Content.
In order to apply the per se provision of
1983 statute, the judge or jury need not de-
termine a defendant's blood-alcohol content
with precision; rather, the trier of fact need
only determine whether the state has proven,
beyond a reasonable doubt, that the blood-
alcohol content was at least .10%. State v.
Knoll, 110 Idaho 678, 718 P.2d 589 (Ct. App.
1986).
Construction.
By this section, the legislature sought to
prohibit driving while one is influenced by
alcohol or drugs; a blood alcohol content of at
least .10 percent is proof, according to the
legislature, of the influence of alcohol, where
the accuracy or reliability of the test is not
refuted. Therefore, this section does not cre-
ate two separate violationsone for driving
under the influence and the other for driving
with a .10 percent blood alcohol content. State
v. Brown, 109 Idaho 981, 712 P.2d 682 (Ct.
App. 1985).
This section, as enacted in 1983, does not
create two wholly separate offenses based
upon a purported distinction between blood-
alcohol content and the influence of alcohol;
rather, it defines a single offensedriving
under the influence of alcoholwhich may be
established per se by proving a blood-alcohol
level of .10% or higher, or which may be
established by proving the influence of alcohol
with circumstantial evidence of impaired
driving ability or other observable symptoms
of intoxication. State v. Knoll, 110 Idaho 678,
718 P2d 589 (Ct. App. 1986).
Evidence.
Where a police officer observed the defen-
dant motorist's erratic driving, saw the mo-
torist exit his vehicle, stagger and walk un-
steadily, and detected the odor of alcohol on
the motorist's person, there was a sufficient
objective basis for the officer to detain the
motorist for further investigation; therefore,
the motorist's subsequent refusal to submit to
a blood-alcohol test supported the district
court's determination that the motorist's li-
cense was properly suspended. Mason v. State
Dep't of Law Enforcement, 103 Idaho 748, 653
P.2d 803 (Ct. App. 1982).
The lapse of 47 minutes from commission of
the alleged offense until administration of the
blood-alcohol test did not trigger a founda-
tional requirement that the test result be
related back with supplementary evidence;
the test result clearly was relevant to deter-
mining guilt, and being relevant, the evidence
was admissible and was entitled to whatever
weight a judge or jury might have given it if
the case had been tried. State v. Knoll, 110
Idaho 678, 718 P.2d 589 (Ct. App. 1986).
Reasonable Grounds.
The lawfulness of the defendant's arrest for
operating a motor vehicle while under the
influence of intoxicating beverages depends
upon whether the arresting officer had rea-
sonable cause to believe that the defendant
had been driving or was in actual physical
control of a motor vehicle while under the
influence of intoxicating beverages. Mason v.
748, 653 P.2d 803 (Ct. App. 1982).
Sentence.
Where the defendant pleaded guilty to a
charge of driving while intoxicated (DWI),
and a magistrate sentenced him to jail for a
period not to exceed six months after consult-
ing a presentence investigation report which the crime and the permissible methods of
showed that defendant had a lengthy record proof under the old statute were substantially
of DWI and related offenses, the district court retained in the new version of 49-1102;
did not abuse its discretion in failing to mod-
consequently under the carry-forward theory,
ify the sentence despite some evidence to
this action was excepted from the common
support the defendant's contention that he
law rule requiring termination of the pending
had taken positive steps to solve his problems
prosecution, and the legislative events of 1983
with alcohol. State v. Hughes, 102 Idaho 703,
did not bar the defendant's conviction and
639 P2d 1 (1981)
punishment for driving under the influence.
State v. Nichols, 110 Idaho 823, 718 P.2d 1261
Termination of Pending Prosecution. (Ct. App. 1986).
m
Although the defendant was awaiting pros- Collateral References. Assimilation, un-
ecution in 1983 for driving under the influ- der Assimilative Crimes Act (18 U.S.C.A.
enceof alcohol when the legislature enacted a 13), of state statutes relating to driving
new version of
49-1102 (now repealed), and while intoxicated or under influence of alco-
repealed the old one, the essential elements of hoi. 175 A.L.R. Fed. 293.
18-8004A. Penalties

Persons under 21 with less than 0.08
alcohol concentration.

(1) Any person found guilty of a violation of
subsection (l)(d) of section 18-8004, Idaho Code, shall be guilty of a
misdemeanor; and, for a first offense:
(a) Shall be fined an amount not to exceed one thousand dollars
($1,000);
(b) Shall have his driving privileges suspended by the court for a period
of one
(1)
year, ninety (90) days of which shall not be reduced and during
which period absolutely no driving privileges of any kind may be granted.
After the period of absolute suspension of driving privileges has passed,
the defendant may request restricted driving privileges which the court
may allow, if the defendant shows by a preponderance of the evidence that
driving privileges are necessary as deemed appropriate by the court;
(c) Shall be advised by the court in writing at the time of sentencing of the
penalties that will be imposed for any subsequent violation of the
provisions of this section or any violation of section 18-8004, Idaho Code,
which advice shall be signed by the defendant, and a copy retained by the
court and another copy retained by the prosecuting attorney;
(d) Shall be required to undergo an alcohol evaluation and otherwise
comply with the requirements of sections 18-8005(9) and 18-8005(12),
Idaho Code, as ordered by the court.
(2) Any person who pleads guilty to or is found guilty of a violation of the
provisions of subsection (l)(d) of section 18-8004, Idaho Code, who previ-
ously has been found guilty of or has pled guilty to a violation of the
provisions of section 18-8004(l)(a), (b), (c) or (d), Idaho Code, or any
substantially conforming foreign criminal violation, as defined in section
18-8005(8), Idaho Code, notwithstanding the form of the judgment or
withheld judgment, is guilty of a misdemeanor; and:
(a) Shall be sentenced to jail for a mandatory minimum period of five (5)
days, as required by 23 U.S.C. section 164, not to exceed thirty (30) days;
(b) Shall be fined an amount of not less than five hundred dollars ($500)
nor more than two thousand dollars
($2,000);
(c) Shall have his driving privileges suspended by the court for a period
not to exceed two (2) years, one
(1)
year of which shall be absolute and
shall not be reduced and during which period absolutely no driving
privileges of any kind may be granted;
(d) Shall, while operating a motor vehicle, be required to drive only a
motor vehicle equipped with a functioning ignition interlock system, as
provided in section 18-8008, Idaho Code, following the mandatory one (1)
year license suspension period; and
(e) Shall be advised by the court in writing at the time of sentencing ofthe
penalties that will be imposed for subsequent violations of the provisions
of this section or section 18-8004, Idaho Code, which advice shall be signed
by the defendant, and a copy retained by the court and another copy
retained by the prosecuting attorney;
(f) Shall undergo an alcohol evaluation and comply with the other
requirements of subsections (9) and (12) of section 18-8005, Idaho Code.
provisions of subsection (l)(d) of section 18-8004, Idaho Code, who previ-
ously has been found guilty of or has pled guilty to two (2) or more violations
of the provisions of section 18-8004(l)(a), (b), (c) or (d), Idaho Code, or any
substantially conforming foreign criminal violation, within five
(5)
years,
notwithstanding the form of the judgment or withheld judgment, shall be
guilty of a misdemeanor; and:
(a) Shall be sentenced to jail for a mandatory minimum period often (10)
days, as required by 23 U.S.C. section 164, not to exceed six (6) months;
(b) Shall be fined an amount of not less than one thousand dollars
($1,000) nor more than two thousand dollars
($2,000);
(c) Shall surrender his driver's license or permit to the court;
(d) Shall have his driving privileges suspended by the court for a
mandatory minimum period of one
(1) year, during which period abso-
lutely no driving privileges of any kind may be granted, or until such
person reaches the age of twenty-one (21) years, whichever is greater; and
(e) Shall, while operating a motor vehicle, be required to drive only a
year license suspension period; and
(f) Shall undergo an alcohol evaluation and comply with all other require-
ments imposed by the court pursuant to sections 18-8005(9) and
18-
8005(12), Idaho Code.
(4) All provisions of section 18-8005, Idaho Code, not otherwise in conflict
with or provided for in this section shall apply to any sentencing imposed
under the provisions of this section.
(5) Aperson violating the provisions of section 18-8004(l)(d), Idaho Code,
may be prosecuted under title 20, Idaho Code. [I.C.,

18-8004A, as added
by 1994, ch. 422, 2, p. 1322; am. 1997, ch. 158, 2, p. 457; am. 1999, ch.
246, 1, p. 633; am. 2000, ch. 247, 1, p. 692; am. 2002, ch.
335, 1, p.
950.]
Compiler's notes. Section 3 of S.L. 1997 Collateral References. Validity, construc-
67-7034. tion, and application of statute permitting
Section 2 of S.L. 2000, ch. 247 is compiled forfeiture of motor vehicle for operating while
as
18-8004C.
intoxicated. 89 A.L.R.5th 539.
in

18-8001 and 18-8002A.
653 MOTOR VEHICLES 18-8004C
18-8004C. Excessive alcohol concentration

Penalties.

Not-
withstanding any provision of section 18-8005, Idaho Code, to the contrary:
provisions of section 18-8004(l)(a), Idaho Code, for the first time, but who
has an alcohol concentration of 0.20, as defined in section 18-8004(4), Idaho
Code, or more, as shown by an analysis of his blood, breath or urine by a test
requested by a police officer, shall be guilty of a misdemeanor; and:
than ten (10) days the first forty-eight (48) hours of which must be
consecutive, and may be sentenced to not more than one (1) year;
(b) May be fined an amount not to exceed two thousand dollars
($2,000);
(c) Shall be advised by the court in writing at the time of sentencing, of
the penalties that will be imposed for subsequent violations of the
provisions of this section and violations of section 18-8004, Idaho Code,
which advice shall be signed by the defendant, and a copy retained by the
court and another copy retained by the prosecuting attorney;
(d) Shall surrender his driver's license or permit to the court;
(e) Shall have his driving privileges suspended by the court for an
additional mandatory minimum period of one (1) year after release from
confinement, during which one (1) year period absolutely no driving
privileges of any kind may be granted; and
provisions of section 18-8004, Idaho Code, and who has an alcohol concen-
tration of 0.20, as defined in section 18-8004(4), Idaho Code, or more, as
shown by an analysis of his blood, breath or urine by a test requested by a
police officer, and who previously has been found guilty of or has pled guilty
to one (1) or more violations of section 18-8004, Idaho Code, in which the
person had an alcohol concentration of 0.20 or more, or any substantially
conforming foreign criminal violation wherein the defendant had an alcohol
concentration of 0.20 or more, or any combination thereof, within five
(5)
years, notwithstanding the form ofjudgment or withheld judgment shall be
guilty of a felony; and:
(a) Shall be sentenced to the custody of the state board of correction for
not to exceed five
(5)
years; provided that notwithstanding the provisions
of section 19-2601, Idaho Code, should the court impose any sentence
other than incarceration in the state penitentiary, the defendant shall be
sentenced to the county jail for a mandatory minimum period of not less
than thirty (30) days; and further provided that notwithstanding the
provisions of section 18-111, Idaho Code, a conviction under this section
shall be deemed a felony;
(b) May be fined an amount not to exceed five thousand dollars ($5,000);
(c) Shall surrender his driver's license or permit to the court; and
mandatory minimum period of one (1) year after release from imprison-
ment, and may have his driving privileges suspended by the court for not
to exceed five
(5) years after release from imprisonment, during which
provided in section 18-8008, Idaho Code, following the mandatory license
suspension period.
(3)
All the provisions of section 18-8005, Idaho Code, not in conflict with
or otherwise provided for in this section, shall apply to this section.
(4)
Notwithstanding any other provision of law, any evidence of convic-
standing the form of the judgment or withheld judgment. [I.C.,
18-8004C,
Compiler's notes. Section 1 of S.L. 2000, v. Worthington, 138 Idaho 470, 65 P.3d 211
ch. 247 is compiled as 18-8004A. (Ct. App. 2002).
in
18-8001 and 18-8002A.
Corpus Delicti.
Defendant's conviction of driving under the
Analysis
influence, Idaho Code 18-8004(l)(a) and
t-,,
, , , , , 18-8004C, was proper, as the State met its
Blood alcohol content. ,,
e u

jt4.-j
p
, ,. ,. burden of showing corpus delicti mdepen-
p
' dently from defendant's extrajudicial admis-
Blood Alcohol Content.
sions by providing sufficient evidence that
Because 18-8004C gave importance to
defendant was driving while intoxicated, and
blood alcohol concentration evidence even if because the convictions were supported by
there was other overwhelming evidence that sufficient evidence, based upon defendant's
a defendant was driving under the influence statements and a blood alcohol test result.
of alcohol, and as it was not the prerogative of State v. Roth, 138 Idaho 820, 69 P.3d 1081 (Ct.
the defendant to determine what evidence the App. 2003).
State could gather to support his prosecution, Collateral References. Validity, construc-
defendant's argument that a forcible blood tion, and application of statute permitting
draw was unreasonable because it was unnec- forfeiture of motor vehicle for operating while
essary for his prosecution lacked merit. State intoxicated. 89 A.L.R.5th 539.
18-8005. Penalties.
(1) Any person who pleads guilty to or is found

guilty of a violation of the provisions of section 18-8004(l)(a) or
(5),
Idaho
Code, for the first time is guilty of a misdemeanor; and, except as provided
in section 18-8004C, Idaho Code:
(a) May be sentenced to jail for not to exceed six (6) months;
(b) May be fined an amount not to exceed one thousand dollars
($1,000);
(c) Shall be advised by the court in writing at the time of sentencing of the
penalties that will be imposed for subsequent violations of the provisions
of section 18-8004, Idaho Code, which advice shall be signed by the
defendant, and a copy retained by the court and another copy retained by
the prosecuting attorney; and
(d) Shall have his driving privileges suspended by the court for a period
of thirty (30) days which shall not be reduced and during which thirty (30)
day period absolutely no driving privileges of any kind may be granted.
After the thirty (30) day period of absolute suspension of driving privi-
leges has passed, the defendant shall have driving privileges suspended
by the court for an additional period of at least sixty (60) days, not to
exceed one hundred fifty (150) days during which the defendant may
request restricted driving privileges which the court may allow, if the
leges are necessary for his employment or for family health needs.
provisions of section 18-8004(l)(b), Idaho Code, for the first time is guilty of
a misdemeanor and subject to:
(a) The provisions of section 18-8005(l)(a), (b) and (c), Idaho Code; and
(b) The provisions of section 49-335, Idaho Code.
(3)
Any person who pleads guilty to or is found guilty of a violation of the
provisions of section 18-8004(l)(c), Idaho Code, for the first time, is guilty of
a misdemeanor and is subject to:
(a) The provisions of section 18-8005(l)(a), (b) and (c), Idaho Code; and
(b) The provisions of section 49-335, Idaho Code.
(4)
Any person who pleads guilty to or is found guilty of a violation of the
provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who previously has
been found guilty of or has pled guilty to a violation of the provisions of
section 18-8004(l)(a), (b) or (c), Idaho Code, or any substantially conforming
foreign criminal violation within five
(5)
years, notwithstanding the form of
the judgment(s) or withheld judgment(s), and except as provided in section
18-8004C, Idaho Code, is guilty of a misdemeanor; and, except as provided
in section 18-8004C, Idaho Code:
than ten (10) days the first forty-eight (48) hours of which must be
consecutive, and five (5) days of which must be served in jail, as required
by 23 U.S.C. section 164, and may be sentenced to not more than one (1)
year, provided however, that in the discretion of the sentencing judge, the
judge may authorize the defendant to be assigned to a work detail
program within the custody of the county sheriff during the period of
incarceration;
(b) May be fined an amount not to exceed two thousand dollars ($2,000);
(c) Shall be advised by the court in writing at the time of sentencing, of
the penalties that will be imposed for subsequent violations of the
provisions of section 18-8004, Idaho Code, which advice shall be signed by
the defendant, and a copy retained by the court and another copy retained
by the prosecuting attorney;
(d) Shall surrender his driver's license or permit to the court;
(e) Shall have his driving privileges suspended by the court for an
additional mandatory minimum period of one (1)
year after release from
confinement, during which one (1) year period absolutely no driving
privileges of any kind may be granted; and
(f)
Shall, while operating a motor vehicle, be required to drive only a
provided in section 18-8008, Idaho Code, following the one (1) year
mandatory license suspension period.
(g)
If the person has pled guilty or was found guilty for the second time
within five
(5) years of a violation of the provisions of section 18-8004(l)(b)
or (c), Idaho Code, then the provisions of section 49-335, Idaho Code, shall
apply.
(5) Except as provided in section 18-8004C, Idaho Code, any person who
pleads guilty to or is found guilty of a violation of the provisions of section
18-8004(l)(a), (b) or (c), Idaho Code, who previously has been found guilty of
or has pled guilty to two (2) or more violations of the provisions of section
18-8004(l)(a), (b) or (c), Idaho Code, or any substantially conforming foreign
criminal violation, or any combination thereof, within five (5) years, not-
withstanding the form of the judgment(s) or withheld judgment(s), shall be
guilty of a felony; and
(a) Shall be sentenced to the custody of the state board of correction for
not to exceed five (5) years; provided that notwithstanding the provisions
of section 19-2601, Idaho Code, should the court impose any sentence
other than incarceration in the state penitentiary, the defendant shall be
sentenced to the county jail for a mandatory minimum period of not less
than thirty (30) days, the first forty-eight (48) hours of which must be
consecutive, and ten (10) days of which must be served in jail, as required
by 23 U.S.C. section 164; and further provided that notwithstanding the
provisions of section 18-111, Idaho Code, a conviction under this section
shall be deemed a felony;
(b) May be fined an amount not to exceed five thousand dollars
($5,000);
mandatory minimum period of one (1) year after release from imprison-
to exceed five (5) years after release from imprisonment, during which
year license suspension period.
(6) For the purpose of computation of the enhancement period in subsec-
tions
(4), (5) and (7) of this section, the time that elapses between the date
of commission of the offense and the date the defendant pleads guilty or is
found guilty for the pending offense shall be excluded. If the determination
of guilt against the defendant is reversed upon appeal, the time that elapsed
between the date of the commission of the offense and the date the
defendant pleads guilty or is found guilty following the appeal shall also be
excluded.
(7) Notwithstanding the provisions of subsections (4) and (5) of this
section, any person who has pled guilty or has been found guilty of a felony
violation of the provisions of section 18-8004, Idaho Code, a felony violation
of the provisions of section 18-8004C, Idaho Code, a violation of the
provisions of section 18-8006, Idaho Code, a violation of the provisions of
section 18-4006 3.(b), Idaho Code, or any substantially conforming foreign
criminal felony violation, and within ten (10) years pleads guilty or is found
guilty of a further violation of the provisions of section 18-8004, Idaho Code,
shall be guilty of a felony and shall be sentenced pursuant to subsection (5)
of this section.
(8) For the purpose of subsections
(4), (5) and (7) of this section and the
provisions of section 18-8004C, Idaho Code, a substantially conforming
foreign criminal violation exists when a person has pled guilty to or has been
found guilty of a violation of any federal law or law of another state, or any
valid county, city, or town ordinance of another state substantially conform-
ing to the provisions of section 18-8004, Idaho Code. The determination of
whether a foreign criminal violation is substantially conforming is a
question of law to be determined by the court.
provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, shall
undergo, at his own expense, (or at county expense through the procedures
set forth in chapters 34 and 35, title 31, Idaho Code,) and prior to the
sentencing date, an alcohol evaluation by an alcohol evaluation facility
approved by the Idaho department of health and welfare; provided however,
if the defendant has no prior or pending charges with respect to the
provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, and the
court has the records and information required under subsections (10)(a), (b)
and (c) of this section or possesses information from other reliable sources
relating to the defendant's use or non-use of alcohol or drugs which does not
give the court any reason to believe that the defendant regularly abuses
alcohol or drugs and is in need of treatment, the court may, in its discretion,
waive the evaluation with respect to sentencing for a violation of section
18-8004 or 18-8004C(1), Idaho Code, and proceed to sentence the defendant.
The court may also, in its discretion, waive the requirement of an alcohol
evaluation with respect to a defendant's violation of the provisions of section
18-8004, 18-8004C or 18-8006, Idaho Code, and proceed to sentence the
defendant if the court has a presentence investigation report, substance
abuse assessment, criminogenic risk assessment, or other assessment which
evaluates the defendant's degree of alcohol abuse and need for alcohol
treatment conducted within twelve (12) months preceding the date of the
defendant's sentencing. In the event an alcohol evaluation indicates the
need for alcohol treatment, the evaluation shall contain a recommendation
by the evaluator as to the most appropriate treatment program, together
with the estimated cost thereof, and recommendations for other suitable
alternative treatment programs, together with the estimated costs thereof.
The person shall request that a copy of the completed evaluation be
forwarded to the court. The court shall take the evaluation into consider-
ation in determining an appropriate sentence. If a copy of the completed
evaluation has not been provided to the court, the court may proceed to
sentence the defendant; however, in such event, it shall be presumed that
alcohol treatment is required unless the defendant makes a showing by a
preponderance of evidence that treatment is not required. If the defendant
has not made a good faith effort to provide the completed copy of the
evaluation to the court, the court may consider the failure of the defendant
to provide the report as an aggravating circumstance in determining an
appropriate sentence. If treatment is ordered, in no event shall the person
or facility doing the evaluation be the person or facility that provides the
treatment unless this requirement is waived by the sentencing court, with
the exception of federally recognized Indian tribes or federal military
installations, where diagnosis and treatment are appropriate and available.
Nothing herein contained shall preclude the use of funds authorized
pursuant to the provisions of chapter 3, title 39, Idaho Code, for court-
ordered alcohol treatment for indigent defendants.
(10) At the time of sentencing, the court shall be provided with the
following information:
(a) The results, if administered, of any evidentiary test for alcohol and/or
drugs;
(b) Acomputer or teletype or other acceptable copy of the person's driving
record;
(c) Information as to whether the defendant has pled guilty to or been
found guilty of violation of the provisions of section 18-8004, 18-8004C or
18-8006, Idaho Code, or a similar offense within the past five
(5) years,
notwithstanding the form of the judgments) or withheld judgment(s); and
(d) The alcohol evaluation required in subsection (9) of this section, if any.
(11) Aminor may be prosecuted for a violation of the provisions of section
18-8004 or 18-8004C, Idaho Code, under chapter 5, title 20, Idaho Code. In
addition to any other penalty, if a minor pleads guilty to or is found guilty of
a violation of the provisions of section 18-8004(l)(a), (b) or (c) or 18-8004C,
Idaho Code, he shall have his driving privileges suspended or denied for an
additional one (1) year following the end of any period of suspension or
revocation existing at the time of the violation, or until he reaches the age
of twenty-one (21) years, whichever period is greater. During the period of
additional suspension or denial, absolutely no driving privileges shall be
allowed.
(12) In the event that the alcohol evaluation required in subsection (9) of
this section recommends alcohol treatment, the court shall order the person
to complete a treatment program in addition to any other sentence which
may be imposed, unless the court determines that alcohol treatment would
be inappropriate or undesirable, in which event, the court shall enter
findings articulating the reasons for such determination on the record. The
court shall order the defendant to complete the preferred treatment pro-
gram set forth in the evaluation, or a comparable alternative, unless it
appears that the defendant cannot reasonably obtain adequate financial
resources for such treatment. In that event, the court may order the
defendant to complete a less costly alternative set forth in the evaluation, or
a comparable program. Such treatment shall, to the greatest extent possi-
ble, be at the expense of the defendant. In the event that funding is provided
for or on behalf of the defendant by an entity of state government,
restitution shall be ordered to such governmental entity in accordance with
the restitution procedure for crime victims, as specified under chapter 53,
title 19, Idaho Code. Nothing contained herein shall be construed as
requiring a court to order that a governmental entity shall provide alcohol
treatment at government expense unless otherwise required by law.
(13) Any person who is disqualified shall not be granted restricted driving
privileges to operate a commercial motor vehicle. [I.C.,

18-8005, as added
by 1984, ch.
22, 2, p. 25; am. 1986, ch. 201, 1, p. 501; am. 1988, ch. 265,
564, p. 549; am. 1989, ch.
88, 62, p. 151; am. 1989, ch. 175, 1, p. 424;
am. 1989, ch.
366, 2, p. 915; am. 1990, ch.
45, 45, p. 71; am. 1992, ch.
115, 40, p. 345; am. 1992, ch. 139, 1, p. 429; am. 1992, ch. 338, 1, p.
1011; am. 1993, ch. 272, 1, p. 909; am. 1994, ch. 148, 2, p. 336; am. 1994,
ch. 421, 2, p. 1316; am. 1994, ch. 422, 3, p. 1322; am. 1997, ch. 114, 1,
p. 284; am. 1999, ch.
80, 2, p. 227; am. 2000, ch.
240, 1, p. 670; am. 2000,
ch. 247, 3, p. 692; am. 2003, ch. 286, 1, p. 773.]
amended by three 1994 acts

ch. 148, 2,
ch. 421, 2, and ch. 422, 3, all effective
July 1, 1994
which do not appear to conflict

and have been compiled together.
The 1994 amendment by ch. 148, 2,
added ", provided however, that in the discre-
tion of the sentencing judge, the judge may
authorize the defendant to be assigned to a
work detail program within the custody of the
county sheriff during the period of incarcera-
tion" to the end of subdivision (4)(a).
The 1994 amendment by ch. 421, 2,
added "except as provided in section 18-
8004C, Idaho Code" at the end of the intro-
ductory paragraph of subsection (1), twice
near the end of subsection (4), and at the
beginning of subsection (5); near the middle of
subsection (7), inserted "a felony violation of
the provisions of section 18-8004C, Idaho
Code"; in the first sentence of subsection
(8),
inserted "and the provisions of section 18-
8004C, Idaho Code"; in the first sentence of
subsection (9), inserted "18-8004C"; in subdi-
vision (10)(c), inserted "18-8004C"; and in
subsection (11), inserted "or 18-8004C" in the
first and second sentence and substituted
"twenty one (21) years" for "eighteen (18)
years" in the second sentence.
The 1994 amendment by ch. 422, 3, sub-
stituted "18-8004(l)(a), (b) or (c)" for
"18-
8004" in subsections
(4), (5) and (11); and in
the second sentence of subsection (11), substi-
tuted "twenty-one (2l) years" for "eighteen
(18) years."
Sections 563 and 565 of S.L. 1988, ch. 265
are compiled as
18-8001 and 18-8007, re-
spectively.
as 18-8002.
compiled as
18-8005 and 18-8007, respec-
tively.
as 18-8001.
as 18-8004C.
18-8002A.
as 18-8008.
January 1, 1989.
in

18-1502, 18-8001, 18-8002A and 18-
8004A.
in M.C.R., Rule 9.4.
Cited in: State v. Henderson, 114 Idaho
773, 756 P.2d 1057 (1988); Holmes v. Union
Oil Co., 114 Idaho 773, 760 P.2d 1189 (Ct. App.
1988); State v. Allbee, 115 Idaho 845, 771 P.2d
66 (Ct. App. 1989); State v. Smith, 121 Idaho
20, 822 P.2d 539 (Ct. App. 1991); State v.
Garner, 122 Idaho 371, 834 P2d 888 (Ct. App.
1992); State v. Litz, 122 Idaho 387, 834 P2d
904 (Ct. App. 1992); State v. Waldie, 126 Idaho
864, 893 P.2d 811 (Ct. App. 1995); State v.
Shelton, 129 Idaho 877, 934 P2d 943 (Ct. App.
1997).
Analysis
Constitutionality.
Construction.
Double jeopardy.
Evidence.
Expert testimony.
Failure to prove prior convictions.
Felony.
Guilty plea.
Harmless error.
Instructions.
Erroneous.
Jury trial.
Informing jury of felony charge.
Waiver.
Legislative intent.
Miranda warning.
Order of convictions.
Penalty enhancement.
Prior convictions.
Revocation of probation.
Sentence.
Improper.
Proper.
Sufficiency of complaint.
Suspension.
Effect of 18-8002A.
Constitutionality.
The application of the Driving While Under
the Influence (DUI) statute enhancement pro-
vision did not violate constitutional prohibi-
tions against ex post facto laws, even though
the defendant's prior felony DUI conviction
was entered before the enactment of this
section. State v. Nickerson, 132 Idaho 406,
973 P2d 758 (Ct. App. 1999).
Construction.
Subsection (3)
(now (5)) of this section must
be read to proscribe three guilty pleas or
findings of guilt within a five year period.
State v. Bever, 188 Idaho 80, 794 P.2d 1136
(1990) (decided prior to 1990 amendment).
Subdivision (2)(c) (now (4)(c)) of this section
is not intended to provide the defendant with
notice, or to create in the defendant a right to
such notice, but to achieve the well-estab-
lished sentencing goal of deterrence. State v.
App. 1992).
In light of the contemporaneous changes to
the DUI statutes and the plain language of
the provision, subsection (6) of this section
must be interpreted to prevent a felony being
reduced to a misdemeanor due to the passage
of time in awaiting trial or plea. State v.
Pusey, 128 Idaho 647, 917 P.2d 804 (Ct. App.
1996).
Double Jeopardy.
Defendant's assertion that when he was
arrested on the driving under the influence of
alcohol (DUI) charge, he was also cited for
driving without privileges (DWP) because his
license had been suspended as a result of
previous violations, and that his plea of guilty
and sentence on the DWP offense barred the
DUI prosecution was without merit as such
circumstances did not constitute double jeop-
ardy. State v. Flynn, 127 Idaho 790, 906 P.2d
640 (Ct. App. 1995).
Evidence.
The state provided a sufficient foundation
to establish that defendant's blood-alcohol
content test was performed by a laboratory or
method approved by the Idaho Department of
Law Enforcement as required by subsection
(4) of
18-8004. State v. Uhlry, 121 Idaho
1020, 829 P.2d 1369 (Ct. App. 1992).
Motion to suppress evidence denied where
defendant had voluntarily pulled over and
stopped his car partially on the road and
police officer pulled behind to see if driver was
all right and saw open beer bottles inside
vehicle. State v. Mireles, 133 Idaho 690, 991
P.2d 878 (Ct. App. 1999).
Expert Testimony.
In criminal case where defendant was
charged with driving under the influence in
violation of
18-8004 and subsection (3) of
this section expert opinion evidence as to the
scientific acceptance and reliability of the
Intoximeter 3000 was properly admitted
where adequate foundation was laid to qual-
ify the expert witnesses and their opinions
were properly admitted into evidence. State v.
Crea, 119 Idaho 352, 806 P.2d 445 (1991).
Failure to Prove Prior Convictions.
Trial court correctly held that prosecution
failed to present necessary proof that defen-
dant had been validly convicted of two previ-
ous driving under the influence charges
within the previous five years; defendant's
prior judgment of conviction did not demon-
strate on its face that the defendant in that
proceeding was informed of his rights as re-
quired under I.C.R. 11 and the form of the
judgment entered failed to incorporate the
information mandated by I.M.C.R. 5. State v.
Mesenbrink, 115 Idaho 850, 771 P. 2d 514
(1989).
Idaho 90, 910 P2d 762 (1996).
Felony.
Although defendant was never charged
with a "DUI, Second Offense," he was prop-
erly charged with a DUI felony where the first
judgment of conviction was January 31, 1985,
the second judgment of conviction was De-
cember 13, 1985, and the third judgment of
conviction was October 28, 1988. With all
three convictions falling within a five year
span of time, the requirements of this section,
which states the conditions when a third
conviction raises the offense to the felony
level, are met. State v. Garrett, 119 Idaho 878,
811 P.2d 488 (1991).
Guilty Plea.
In State v. Carrasco, 117 Idaho 295, 787
P. 2d 281 (1990) the Supreme Court discussed
the constitutional requirements which must
be met before a court may accept a plea of
guilty in a felony case, but the court specifi-
cally noted that these requirements apply
only to felony cases and that the provisions of
I.C.
19-502 and Rule 6 of the Misdemeanor
Criminal Rules continue to be applicable in
accepting guilty pleas in misdemeanor cases;
therefore, since both of defendant's first and
second DUI violations were misdemeanors
under this section which prescribes the pen-
alties for driving under the influence,
Carrasco is not applicable in this case. State v.
Goerig, 121 Idaho 108, 822 P.2d 1005 (Ct.
App. 1991).
Harmless Error.
Where, in the first phase of a bifurcated
trial, the court erroneously disclosed to the
jury that the defendant's DUI offense was
charged as a felony, but where the defendant's
claim of prejudice was substantially under-
mined by the fact that evidence that he had a
prior criminal conviction came before the jury
during defense counsel's examination of a
defense witness, that testimony, together
with the relative strength of the remaining
evidence offered by both parties, supported a
finding that the verdict would have been the
same even if the error in the jury instructions
had not occurred. State v. Johnson, 132 Idaho
726, 979 P.2d 128 (Ct. App. 1999).
Instructions.
Erroneous.
Magistrate erred by instructing jury that
the Intoxilyzer 5000 had been approved by
the State of Idaho. Such instruction com-
mented on the legal determination of ade-
quate foundation which is not properly an
issue before the jury and implied that test
was accurate. DUI conviction reversed and
case remanded for new trial. State v. Winson,
129 Idaho 298, 923 P.2d 1005 (Ct. App. 1996).
Jury Trial.
ence, the defendant had a right to a jury trial.
State v. Wheeler, 114 Idaho 97, 753 P.2d 833
(Ct. App. 1988).
Informing jury of felony charge.

Although in a driving under the influence
(DUI) case where the charge is enhanced to a
felony under this section due to the existence
of prior convictions the jury should not be
informed during the first phase of the trial
that the defendant is charged with a felony,
and although the district judge erred in using
the terms "felony" and "feloniously" in the
jury instructions, because the jury was ad-
monished not to speculate as to punishment
and the State presented overwhelming evi-
dence that defendant committed the offense
charged, there was no'reasonable possibility
that such error contributed to the conviction
and conviction was upheld. State v. Roy, 127
Idaho 228, 899 P.2d 441 (1995).
Waiver.
Where any waiver of a jury trial by the
defendant's counsel in prosecution for driving
under the influence resulted from confusion
and misunderstanding, no waiver was in-
cluded in the court's minutes, and no waiver
was personally entered by the defendant, the
record did not demonstrate an express waiver
by the defendant of his right to a jury trial,
and absent an express waiver by the defen-
dant, the court erred in proceeding with the
trial. State v. Wheeler, 114 Idaho 97, 753 P.2d
833 (Ct. App. 1988).
Legislative Intent.
The legislature has clearly expressed its
intent that a determination of guilt which is
followed by an order withholding judgment,
although a judgment of conviction might
never be entered, is a determination of guilt
within the meaning of subsection (4) of this
section. State v. Deitz, 120 Idaho 755, 819
P.2d 1155 (Ct. App. 1991).
In enacting subsection (2)(c) (now (4)(c)),
the legislature did not intend to create the
right to written advice claimed by defendant,
nor did it intend the subsection to have the
exclusionary remedial effect. State v.
App. 1992).
A plain interpretation of the words chosen
by the legislature in subsection (7) of this
section evidences^, an intent that a pre-1992
felony DUI conviction may properly be used to
enhance a post-1992 DUI charge to a felony.
Wilson v. State, 133 Idaho 814, 993 P2d 1205
(Ct. App. 2000).
Miranda Warning.
Where state trooper questioned defendant
with regard to DUI offense without first plac-
ing him under arrest, defendant was not
entitled to Miranda warnings. State v. Pilik,
129 Idaho 50, 921 P2d 750 (Ct. App. 1996).
Order of Convictions.
As long as a defendant is found guilty of
three or more violations of the provisions of
18-8004, within five years, he has commit-
ted a felony regardless of whether the third
violation preceded the second conviction.
State v. Craig, 117 Idaho 983, 793 P.2d 215
(1990) (decided prior to 1990 amendment).
If a defendant is found guilty of two DUI's
within five years, that defendant is to be
sentenced under subsection (2) (now (4)) of
this section regardless of whether the second
violation comes before or after the first con-
viction. State v. Beach, 119 Idaho 837, 810
P.2d 1123 (1991).
Penalty Enhancement.
A person whose DUI charge is dismissed
pursuant to Idaho's expungement statute,
19-2604(1), is considered a person who pre-
viously has pled guilty or has been found
guilty of DUI for purposes of the penalty-
enhancing statute, subsection (4) of this sec-
tion, applicable to repeat DUI offenders. State
v. Deitz, 120 Idaho 755, 819 P.2d 1155 (Ct.
App. 1991).
Subsection (4) of this section makes the
operative event for an enhanced charge of
DUI the fact that the defendant has pled or
been found guilty of a prior violation of
18-
8004 within five years, and because defen-
dant's plea of guilty was within five years, and
it was not specifically set aside when the
district court dismissed the charges against
him, the dismissal of the prior charges did not
reverse or vacate the determination of defen-
dant's guilt for the purposes of subsection (4).
State v. Deitz, 120 Idaho 755, 819 P.2d 1155
(Ct. App. 1991).
The provisions of this section, which re-
quire sentencing courts to advise defendants
in writing of enhanced penalties for subse-
quent violations, do not make the written
advice a condition precedent to prosecution
under the enhanced penalty provisions. State
v. Nickerson, 121 Idaho 925, 828 P.2d 1330
(Ct. App. 1992).
The state met its burden of establishing
that plaintiff's prior DUI conviction was a
valid conviction which, together with his cur-
rent conviction, was sufficient to enhance the
current conviction to a felony. State v. Beloit,
123 Idaho 36, 844 P.2d 18 (1992).
The computation period set forth in subsec-
tion (5) of this section is tolled between the
commission of an offense and the time a plea
or finding of guilt is entered, pursuant to
subsection (6) of this section, and defendant's
objections to his conviction, based on the
premise that his 1990 DUI was improperly
used to enhance his 1995 DUI to a felony,
were without merit. State v. Pusey, 128 Idaho
647, 917 P.2d 804 (Ct. App. 1996).
As subsection (6) of this section provides, as
regarded defendant's enhancement of DUI
offense, the period between DUI incident
leading to instant charge, and the date defen-
dant entered his conditional plea of guilty,
was not to be considered in the computation of
the five-year period for felony DUI. State v.
Pusey, 128 Idaho 647, 917 P.2d 804 (Ct. App.
1996).
Nothing in subsection (7) of this section
gives offenders with prior DUI felony convic-
tions the opportunity to commit repeat viola-
tion without incurring statutorily enhanced
penalties. Wilson v. State, 133 Idaho 814, 993
P.2d 1205 (Ct. App. 2000).
Prior Convictions.
Where defendant's guilty pleas to two prior
misdemeanor DUI charges were made know-
ingly, intelligently, and voluntarily and where
the trial court complied with the require-
ments of I.C.R. 11(c) in both instances, prior
convictions could serve as the basis for a
felony DUI charge. State v. Maxey, 125 Idaho
505, 873 P.2d 150 (1994).
Revocation of Probation.
Where the defendant's criminal history of
defendant charged with violating probation
granted in conjunction with a felony convic-
plete with driving violations involving alco-
hol, and given the fact that although on more
than one occasion the defendant had at-
tempted to treat his alcohol problem, he had
failed to complete the treatment programs
ordered by the court, and since it is entirely
within the discretion of the trial court to
determine that if rehabilitation measures un-
dertaken during probation fail, and if such
measures should be shifted to the more struc-
tured setting of a custodial facility, the dis-
tion by revoking probation and imposing one
of incarceration. State v. Johnson, 119 Idaho
107, 803 P2d 1013 (Ct. App. 1991).
Sentence.
Improper.
Where, the magistrate noted that a fatality
occurred as a result of a collision involving
defendant's car and another vehicle but did
not find that defendant's conduct caused the
collision, without such a finding, statements
made by the magistrate before sentencing
suggest that he may have thought aggravat-
ing circumstances were shown by the death
alone once a defendant's punishment should
not be made more severe on account of cir-
cumstances that were not caused by his
wrongful conduct. State v. Detweiler, 115
Idaho 443, 767 P.2d 286 (Ct. App. 1989).
Where defendant entered his guilty plea to
an unenhanced misdemeanor DUI, but re-
ceived a sentence consistent with the penalty
for an enhanced offense DUI under this sec-
tion, to uphold the sentence would have been
contrary to law. State v. Halford, 124 Idaho
411, 860 P2d 27 (Ct. App. 1993).
Proper.
P.2d 1307 (Ct. App. 1988).
Sentences of five years' imprisonment with-
out eligibility for parole for three years for
driving while under the influence, and three
years' concurrent imprisonment without pa-
role for two years, for driving without privi-
leges were not unduly severe, and the district
court did not abuse its discretion in not exer-
cising leniency by reducing the sentences,
where numerous attempts had been unsuc-
cessful in deterring defendant from driving
while intoxicated. State v. Garza, 115 Idaho
32, 764 P2d 109 (Ct. App. 1988).
Idaho 573, 817 P.2d 1097 (Ct. App. 1991).
App. 1991).
Defendant had been convicted of driving
under the influence on seven occasions, three
of them charged as felonies; defendant's cur-
rent DUI was committed while he was still on
probation for a previous DUI conviction for
which the district court ordered a four-year
unified sentence with one year fixed where
the sentence was suspended and defendant
was placed on probation and ordered to serve
one year in jail, and defendant's criminal
record also included a conviction for delivery
of a controlled substance; therefore defen-
dant's sentence of one year's fixed confine-
ment and four years indeterminate is reason-
able in light of the nature of the crimes he
committed and his character as revealed by
his extensive criminal history of alcohol-and-
drug-related offenses and defendant failed to
establish that the district court abused its
discretion in denying his motion for reduction
of his sentence. State v. Jimenez, 120 Idaho
753, 819 P.2d 1153 (Ct. App. 1991).
Where defendant had a prior record of
seven DUI offenses, numerous traffic offenses
involving alcohol, assault and child endanger-
ment, and a perjury conviction in federal
court, the District Court did not abuse its
discretion in imposing a five-year term, with
two years fixed. State v. Smith, 120 Idaho 961,
821 P.2d 1016 (Ct. App. 1991).
At the time defendant was charged with
DUI, he was on probation under a suspended
sentence for a previous felony DUI and he
disclosed that he had been cited a total of 23
times for DUI in the past 22 years; therefore,
the court did not abuse its discretion in im-
posing a sentence of four years, with a two
year period of minimum confinement. State v.
Elliot, 121 Idaho 786, 828 P.2d 349 (Ct. App.
1992).
The district court did not err in imposing a
unified sentence of five years, including a two
year minimum term of confinement on defen-
dant's felony DUI conviction where the dis-
trict court was persuaded that defendant's
lengthy DUI record, the fact that he had
reoffended while released on his own recogni-
zance pending sentencing, and the recom-
mendation of the Jurisdictional Review Com-
mittee, all indicated that society would be
best protected by denying probation. State v.
Cardona, 123 Idaho 16, 843 P.2d 166 (Ct. App.
1992).
Where defendant had previously been con-
victed 24 times of driving while under the
influence, the court reasonably concluded
that the unified sentence of five years, with
four years' minimum period of confinement
was necessary in order to minimize the risk of
recurrence of the defendant's criminal con-
duct. State v. Wildcat, 123 Idaho 514, 849 P.2d
975 (Ct. App. 1993).
Sentence of two to five years' incarceration
imposed for felony DUI conviction was not
shown to be excessive or an abuse of the
sentencing court's discretion where the sen-
tence was imposed after the district court had
duly contemplated each of the sentencing
objectives and reasoned that the protection of
society was its paramount concern. State v.
Thomas, 123 Idaho 183, 845 P2d 1216 (Ct.
App. 1993).
Sentence of five years, with a one-year
period of minimum confinement for driving
under the influence was reasonable, where at
time defendant was charged, he was on pro-
bation under a suspended sentence for a pre-
vious felony DUI, and had six previous felony
convictions over the preceding eleven years.
State v. Smith, 124 Idaho 567, 861 P.2d 1232
(Ct. App. 1993).
Where defendant had two prior DUI convic-
tions and was driving with his license sus-
pended at the time of arrest, a sentence of six
months confinement was not an abuse of
discretion. State v. Croston, 124 Idaho 471,
860 P.2d 674 (Ct. App. 1993).
in imposing a six month sentence of incarcer-
ation, ninety days suspended for defendant's
DUI conviction where, defendant had a .14
blood alcohol concentration following his ar-
rest and he also had one prior DUI conviction.
A sentence of ninety days in jail for a second
DUI offense furthers the sentencing goals of
protection of society, deterrence, and retribu-
tion; further, the sentence advanced the goal
of rehabilitation because it conditioned the
suspension of ninety days' jail time upon
defendant's completion of outpatient treat-
ment for alcoholism. State v. Hunnel, 125
Idaho 623, 873 P2d 877 (1994).
Where the pleading gave at least general,
though imprecise notice of charge of second
offense DUI without alleging the time, place
and validity of prior conviction, and the de-
fendant did nothing to seek clarification of the
charge in the trial court, and the defendant
did not contend that he was actually misled or
prejudiced by the generality of the pleading, a
claim of a technical insufficiency of the com-
plaint was not a claim of fundamental error
which could be first introduced on appeal
following a guilty plea. State v. Tucker, 124 18-8002A is in addition to any suspension
Idaho 621, 862 P.2d 313 (Ct. App. 1993). imposed pursuant to this section. State v.
Talavera, 127 Idaho 700, 905 P.2d 633 (1995).
u
A
sp
j r
r r i
4.4.1
Collateral References. Validity, construc-
An order of suspension for failure to take a .
***.*.
-^-
blood-alcohol test under
18-8002 remains
^n and application of statute permitting
in effect despite a subsequent judgment con-
forfeiture of motor vehicle for operating while
taining no period of suspension under this
intoxicated.
89
A.L.R.Sth 539.
section. State v. Breed, 111 Idaho 497, 725
Pardoned or expunged conviction as "prior
P 2d 202 (Ct App 1986)
offense" under state statute or regulation en-
hancing punishment for subsequent convic-
Effect of 18-8002A.
tion. 97 A.L.R.5th 293.
Section 18-8002A expressly provides that
an administrative suspension pursuant to
18-8006. Aggravated driving while under the influence of alco-
hol, drugs or any other intoxicating substances.

(1) Any person
causing great bodily harm, permanent disability or permanent disfigure-
ment to any person other than himself in committing a violation of the
provisions of section 18-8004(l)(a) or (l)(c), Idaho Code, is guilty of a felony,
and upon conviction:
(a) Shall be sentenced to the state board of correction for not to exceed ten
(10) years, provided that notwithstanding the provisions of section
19-
2601, Idaho Code, should the court impose any sentence other than
incarceration in the state penitentiary, the defendant shall be sentenced
to the county jail for a mandatory minimum period of not less than thirty
(30) days, the first forty-eight (48) hours of which must be consecutive;
and further provided that notwithstanding the provisions of section
18-111, Idaho Code, a conviction under this section shall be deemed a
felony;
(b) May be fined an amount not to exceed five thousand dollars ($5,000);
mandatory minimum period of one (1)
year after release from imprison-
to exceed five
(5) years after release from imprisonment, during which
(e) Shall be ordered by the court to pay restitution in accordance with
chapter 53, title 19, Idaho Code.
(2) Notwithstanding any other provision of law, any evidence of convic-
standing the form of the judgments) or withheld judgment(s). [I.C.,

18-
22, 2, p. 25; am. 1986, ch. 201, 2, p. 501; am.
1989, ch.
88, 63, p. 151; am. 1990, ch.
45, 46, p. 71; am. 1997, ch. 114,
2, p. 284; am. 2000, ch. 356, 1, p. 1191.]
Compiler's notes. Section 8 of S.L. 1984, July 1, 1990, with the exception that the
ch. 22 declared an emergency and provided provisions within each applicable section of
that the act should take effect on March 1, Idaho Code relating to classes of driver's
1984. Approved February 29, 1984. licenses shall take effect no later than Sep-
Section 47 of S.L. 1990, ch. 45 read: "This tember 1, 1990, as determined by the director
act shall be in full force and effect on and after of the Idaho transportation department, and
in
18-4006, 18-8001, 18-8002, 18-8002A,
49-240, 49-325 and 72-1003.
Cited in: State v. Woolery, 116 Idaho 368,
775 P.2d 1210 (1989).
Analysis
Basis of violation.
Blood alcohol concentration.
Causation.
Constitutionality.
Evidence.
Implied consent.
Legislative intent.
Multiple charges.
Sentence upheld.
Basis of Violation.
A violation of
18-8004 is committed by a
person when he or she is driving or is in
actual physical control of a motor vehicle and
is either (a) under the influence of alcohol,
drugs or any other intoxicating substances, or
(b) has an alcohol concentration of 0.10 or
more. The state need not prove that the
person was actually impaired by alcohol, but
merely that the analysis of blood, urine, or
breath had established an alcohol concentra-
tion of 0.10 or more. By so structuring the
drunk driving statute, the legislature was
expressing its intent that prosecutions for
drunk driving may be grounded in a per se
0.10 alcohol concentration test, rather than in
complicated proof over the level of impair-
ment of any particular individual. State v.
App. 1991).
Blood Alcohol Concentration.
By cross-referencing to the provisions of
18-8004, this section allows for prosecu-
tions for aggravated driving without the ne-
cessity for the state to prove that the alcohol
or other substance-related impairment was
actually sufficient to have caused certain driv-
ing behavior, which in turn caused great
bodily injury to another. To interpret that
statute otherwise would be to disregard the
per se nature of the alcohol concentration
aspect of the definition of drunk driving. State
v. Nelson, 119 Idaho 444, 807 P.2d 1282 (Ct.
App. 1991).
In a criminal prosecution for vehicular
manslaughter and aggravated driving under
the influence (DUI,) the trial court reversibly
erred in admitting evidence of defendant's
blood alcohol level two hours after the acci-
dent; the blood tests were not accompanied by
any evidence that would reveal defendant's
alcohol concentration at the time of the acci-
dent; therefore, defendant's convictions were
vacated. State v. Robinett,
Idaho ,
P. 3d
, 2004 Ida. App. LEXIS 2 (Ct. App. Jan.
7,
2004).
Causation.
This section provides as an element of the
offense that the defendant must have
"caused" great bodily harm to the victim. The
requirement of causation in the aggravated
driving statute is in accord with the concept
that strict liability crimes are disfavored in
Idaho. State v. Nelson, 119 Idaho 444, 807
P.2d 1282 (Ct. App. 1991).
This section merely requires a causal con-
nection between defendant's driving under
the influence and victim's injuries rather than
requiring gross negligence of defendant pur-
suant to
18-114. State v. Johnson, 126
Idaho 892, 894 P.2d 125 (1995).
Constitutionality.
Since this section makes it a crime for an
intoxicated driver to cause severe injury to
another person, gives notice to those who are
subject to it, is not ambiguous, provides suf-
ficient guidelines to those who must enforce
it, gives adequate guidelines regarding
whether the intoxicated driver caused injury
to another person, and since the question of
whether an intoxicated driver's negligence
caused another person's injury will always be
a factual inquiry, such section is not unconsti-
tutionally vague. State v. Nelson, 119 Idaho
444, 807 P.2d 1282 (Ct. App. 1991).
Evidence.
Where, in a prosecution for aggravated
driving under the influence, involving a sin-
gle-vehicle collision, the jury's finding of the
defendant as the driver at the time of the
accident was supported by substantial evi-
dence that he was pinned in the driver's area
when the rescue personnel arrived, the extri-
cation team could not make passage from the
driver's side to the passenger's side, he made
statements that he was driving, the evidence
further demonstrated the degree of intoxica-
tion experienced by the defendant, and the
evidence showed that the defendant caused
the co-occupant to suffer serious and debili-
tating injuries, making the offense "aggravat-
ed" within the meaning of this section, the
evidence was sufficient to show beyond a
reasonable doubt that the defendant commit-
ted aggravated driving while under the influ-
ence. State v. Koch, 115 Idaho 176, 765 P.2d
687 (Ct. App. 1988).
In a prosecution for aggravated driving
under the influence, allegations, not specified
as grounds for objection at trial, that the state
failed to prove the blood sample was with-
drawn in the proper manner and properly
processed for testing, or that the hospital's
automatic chemical analyzer operated on the
basis of accepted scientific principles, did not
establish failure of authentication and identi-
fication, under I.R.E. 901, constituting plain
error in admitting evidence of the test result.
State v. Koch, 115 Idaho 176, 765 P.2d 687 (Ct.
App. 1988).
Implied Consent.
Since defendant, convicted of aggravated
driving under the influence, had impliedly
consented to the blood alcohol test pursuant
to 18-8002(1), the state was not required to
demonstrate that the search was justified by
exigent circumstances; lower court's order de-
nying defendant's motion to suppress results
of blood alcohol test was affirmed. State v.
Rodriguez, 128 Idaho 521, 915 P.2d 1379 (Ct.
App. 1996).
Legislative Intent.
To be convicted of aggravated driving while
under the influence of intoxicating substances
the state need not prove that the great bodily
injury was proximately caused by the driver's
intoxicated state which in turn caused certain
driving conduct. The statute requires that
some causation, however, be proved, but the
phrase "in committing" should be interpreted
to mean that a defendant may be found guilty
of aggravated driving under the influence if
he or she causes that statutorily-specified
harm while in the course of violating
18-
8004. This interpretation is in keeping with a
legislative intent to criminalize driving con-
duct which would normally fall within the
realm of negligence when it is done while the
person is in violation of the provisions of
18-8004. State v. Nelson, 119 Idaho 444,

807 P.2d 1282 (Ct. App. 1991).
Where the charges against defendant, set
forth in the information, did not contain any
language indicating that defendant's efforts
to elude an officer and recklessly drive his
vehicle were the manner by which defendant
violated this section, the offenses of fleeing or
attempting to elude a peace officer and reck-
less driving were not lesser included offenses
of aggravated driving while under the influ-
ence of alcohol. State v. Rosencrantz, 130
Idaho 666, 946 P.2d 628 (1997).
Multiple Charges.
Defendant was convicted of vehicular homi-
cide and aggravated driving under the influ-
ence of alcohol because the death of the first
victim and the bodily injury inflicted upon the
second victim resulted from his single act of
driving under the influence. State v. Lowe,
120 Idaho 391, 816 P.2d 347 (Ct. App. 1990).
Sentence Upheld.
Sentence of 60 days was within the statu-
tory maximum and was not unreasonable,
even though defendant had no previous crim-
inal record, was an exemplary citizen, was
employed, and had committed to a program of
alcohol abstinence. State v. Christensen, 109
Idaho 725, 710 P.2d 635 (Ct. App. 1985).
The district court acted within the bounds
of its discretion in imposing the maximum
sentences on defendant who pled guilty to two
counts of vehicular manslaughter and three
counts of aggravated driving while under the
influence of alcohol. State v. Tousingnant, 123
Idaho 22, 843 P.2d 172 (Ct. App. 1992).
Trial court did not abuse its discretion by
modifying defendant's sentence for aggra-
vated DUI from a unified term for four years,
with a minimum period of confinement of two
years, to an indeterminate term of four years
with no minimum period of confinement
where defendant had prior criminal record, he
refused to take responsibility for his actions,
and he failed to complete an alcohol treat-
ment program while an inpatient at a state
facility. State v. Langford, 136 Idaho 334, 33
P.3d 567 (Ct. App. 2001).
Collateral References. Assimilation, un-
der Assimilative Crimes Act (18 U.S.C.A.
13), of state statutes relating to driving
while intoxicated or under influence of alco-
hol. 175 A.L.R. Fed. 293.
18-8007. Leaving scene of accident resulting in injury or death.
(1) The driver of any vehicle that has been involved in an accident, either
upon public or private property open to the public, who knows or has reason
to know that said accident has resulted in injury to or death of any person
shall:
(a) Immediately stop the vehicle at the scene of the accident or as close
thereto as possible. Every stop required under this section shall be made
without obstructing traffic more than is necessary.
(b) Remain at the scene of the accident until the driver has fulfilled all the
requirements under this section.
(c) Give his name, address, the name of his insurance agent or company
if he has automobile liability insurance, and the motor vehicle registra-
tion number of the vehicle he is driving to the person struck, or to the
driver or occupant of or person attending any vehicle collided with.
(d) If available, exhibit his driver's license to the person struck, or to the
driver or occupant of or person attending any vehicle collided with.
(e) Render to any person injured in the accident reasonable assistance,
including the conveying or the making of arrangements for the conveying
of such person to a physician, surgeon, hospital or other medical facility,
for medical or surgical treatment, if it is apparent that such treatment is
necessary or if such conveying is requested by the injured person.
(2) Aviolation of any provision ofthis section shall constitute a felony and
be punished by a fine of not more than five thousand dollars ($5,000) or by
imprisonment in the state penitentiary for a period of not more than five (5)
years, or by both such fine and imprisonment.
(3) The director of the transportation department shall revoke for a
period of one (1) year the driver's license or permit to drive, or the
nonresident operating privilege, of any person convicted or found guilty of
violating any provision of this section. Such revocation shall preclude any
type of work permit or other form of limited driving privileges as provided
in section 49-326, Idaho Code. [I.C.,

18-8007, as added by 1987, ch. 208,
1, p. 440; am. 1988, ch. 265, 565, p. 549; am. 1989, ch.
88, 64, p. 151;
am. 1992, ch. 115, 41, p. 345.]

18-8005
and 28-9-302, respectively.
as
18-1502.
compiled as

18-8005 and 33-1701, respec-
tively.
January 1, 1989.
by 1 of S.L. 1990, ch. 45 provided that the
act would become effective July 1, 1990.
in

18-8001 and 72-1003.
Analysis
Construction.
Evidence.
Plea upheld.
Search and seizure.
Sentence.
Construction.
Defendant's contention that the offense of
leaving the scene of an injury accident oc-
curred after all operation of his motor vehicle
had ceased, and therefore, the offense did not
fall within the ambit of the state's jurisdiction
under I.C.
67-5 101(G) to enforce laws con-
cerning "operation and management of motor
vehicles," was unpersuasive, as wording of
this section makes it clear that it may be
invoked only against a motor vehicle operator
and only if the vehicle has been involved in an
accident. State v. Smith, 127 Idaho 771, 906
P.2d 141 (Ct. App. 1995).
Evidence.
Evidence supported the jury's finding that
defendant was the driver of the vehicle which
struck victim. Trapped in the broken wind-
shield of the car located by police the day after
the accident was hair resembling the victim's
and human blood. Both the VIN and the
receipt found in the back seat of the car
connected it to defendant. At trial, defen-
dant's employer identified defendant's car
from a photo and testified that he had seen
defendant driving the car, and nobody ever
reported that the car had been stolen. Boot
prints found around the vehicle exhibited the
same tread design as prints found at the
location where defendant was living. More-
over, defendant's boots were retrieved from
his home, and lab tests conducted on these
boots were inconclusive but showed that de-
fendant's boots could have made the impres-
sions at the accident scene. State v. Mendiola,
126 Idaho 575, 887 P.2d 1082 (Ct. App. 1994).
Plea Upheld.
The record showed that at the change of
plea hearing, defendant conceded that he did
hit the victims with his truck and that he
subsequently fled the scene. The judge did
ascertain that there was a strong factual
basis for the plea, and that defendant did
enter his plea knowingly and voluntarily.
State v. Ramirez, 122 Idaho 830, 839 R2d Fourth Amendment. State v. Rader, 135 Idaho
1244 (Ct. App. 1992). 273, 16 P.3d 949 (Ct. App. 2000).
Search and Seizure.
Sentence.
Given the nature of the sounds, and their
Where defendant drove his truck into a
close temporal proximity, the officer s conclu-
of le caugi serious injurieg [n
_
sion that a hit-and-run accident may have
dudi ^ logs of Qne victim
,
g arm and
occurred in the adiacent parking lot was rea-
j r j A i A ^ j v i_- t. j
,
!
j u u u j *u 4. i.1.
defendant later led police on a high speed
sonable, and where he observed that there , .
CJ /
,. ~ ,>
, .
, j

j -1 j
, chase, a unined sentence of five years with
were no vehicles driving down the adjacent _ ' _ , , ,
C
J
.
,
road or pulling out of the parking lot other
[
ur
f
ars fi
*?
d was reasonable for a plea to
than defendant's vehicle, the officer's stop of
the charge of leaving the scene of an accident
defendant's vehicle to investigate possible
r
f
"lta
?fA
"L
'TIJ ^V" ^T^/
22
criminal activity was justified under the
Idaho
830, 839 P.2d 1244 (Ct. App. 1992).
18-8008. Ignition interlocks
Electronic monitoring devices.
(1) If a person is convicted, is found guilty, pleads guilty or receives a

withheld judgment for violating any of the provisions of this chapter and has
had any or all of a sentence or fine suspended for the violation, the court, in
its discretion, may impose any, some, or all of the sanctions provided for in
this section in addition to any other penalty or fine imposed pursuant to this
chapter.
(2) The court shall order the person while operating a motor vehicle to
drive only a motor vehicle equipped with a functioning ignition interlock
device, and the restriction shall be for a period not in excess of the time the
person is on probation for the offense. The court shall establish a specific
calibration setting at which the ignition interlock device will prevent the
motor vehicle from being started and the period of time that the person shall
be subject to the restriction. As used in this section, the term "ignition
interlock device" means breath alcohol analyzed ignition equipment, certi-
fied by the transportation department, designed to prevent a motor vehicle
from being operated by a person who has consumed an alcoholic beverage.
The transportation department shall by rule provide standards for the
certification, installation, repair and removal of the devices. The court shall
notify the transportation department of its order imposing a sanction
pursuant to this subsection. The department shall attach or imprint a
notation on the driver's license or other document granting the person
restricted driving privileges of any person restricted under this subsection
that the person may operate only a motor vehicle equipped with an ignition
interlock device.
(3) The court may order the person to use electronic monitoring devices to
record the person's movements if as a condition of probation the person has
been given restricted driving privileges between certain times, has been
placed under a curfew or has been ordered confined to his residence during
times certain. Nothing in this subsection shall restrict the court's usage of
electronic monitoring devices to supervise a defendant on probation for
other offenses.
(4) If a court orders a defendant to use an ignition interlock device or
electronic monitoring device pursuant to this section, and the court, or its
probation department, furnishes the defendant with the device, the court
may order the defendant to pay a reasonable fee for utilizing the equipment.
All fees collected pursuant to this section shall be in addition to any other
fines or penalty provided by law and shall be deposited in the court interlock
device and electronic monitoring device fund created in section 18-8010,
Idaho Code. [I.C.,
18-8008, as added by 1988, ch.
339, 2, p. 1007; am.
2000, ch. 247, 4, p. 692.]
Legislative Intent. Section 1 of S.L. 1988, means of deterring the use of motor vehicles
ch. 339 read: "SECTION 1. LEGISLATIVE by persons who have consumed alcoholic bev-
INTENT. The legislature finds and declares: erages;
"(1) There is a need to reduce the incidence "(4) Ignition interlock devices are designed
of drivers on the highways and roads of this to supplement other methods of punishment
state who, because of their use or consump- that prevent drivers from using a motor vehi-
tion of alcohol, pose a danger to the health cle after using, possessing or consuming alco-
and safety of other drivers; hoi;
"(2) There are some innovative alterna- "(5) It is economically and technically fea-
tives adopted by other states in an attempt to sible to have an ignition interlock device in-
discourage the drinking driver from operating stalled in a motor vehicle in such a manner
a motor vehicle which include the use of that the vehicle will not start if the operator
interlock devices when the driver has been has recently consumed alcohol."
convicted, found guilty or received a withheld Compiler's notes. Section 3 of S.L. 2000,
judgment for driving under the influence of ch. 247 is compiled as
18-8005.
alcohol or drugs; Sec. to sec. ref. This section is referred to
"(3) The installation of an ignition inter- in

18-8004A, 18-8004C, 18-8005 and
18-
lock breath alcohol device will provide a 8010.
18-8009. Ignition interlocks

Assisting another in starting or
operating
Penalty.
A person who knowingly assists another person

who is restricted to the use of an ignition interlock device to start and
operate that vehicle in violation of a court order shall be guilty of a
misdemeanor. The provisions of this section do not apply if the starting of a
motor vehicle, or the request to start a motor vehicle, equipped with an
ignition interlock device is done for the purpose of safety or mechanical
repair of the device or the vehicle and person subject to the court order does
not operate the vehicle. [I.C.,

18-8009, as added by 1988, ch. 339, 3, p.
1007.]
18-8010. Surcharge added to all fines.

Every person who is
convicted, found guilty, pleads guilty or receives a withheld judgment for
violating the provisions of this chapter shall be required to pay an additional
fifteen dollars ($15.00) in addition to any other fine, penalty or costs the
court may assess. Moneys received pursuant to this section shall be remitted
to the county treasurer in the county where the person was adjudicated for
deposit in the "court interlock device and electronic monitoring device fund"
which is hereby created in each county. Moneys in this fund may be utilized
for the purchase of ignition interlock devices and electronic monitoring
devices required pursuant to section 18-8008, Idaho Code. Additionally, any
moneys a court charges a defendant for using an ignition interlock device or
electronic monitoring devices shall be placed in this fund. The court may
also utilize moneys in this fund to assist an indigent defendant to procure an
ignition interlock device or electronic monitoring devices. The court may
also utilize moneys in this fund for alcohol or drug abuse related probation,
treatment or prevention programs for adults or juveniles. [I.C.,

18-8010,
339, 4, p. 1007; am. 1996, ch. 417, 1, p. 1387; am.
1998, ch. 416, 1, p. 1314.]
in 18-8008.
18-8011. Stay of suspension of drivers' licenses or driving privi-
leges upon reincarceration.
A court-ordered suspension of an individ-

ual's driver's license or driving privileges issued pursuant to this chapter
that is to commence after that individual's release from confinement or
imprisonment, shall cease to run if the individual is reincarcerated. The
court-ordered suspension will be stayed for the entire period the individual
is reincarcerated and will recommence as of the date the individual is
rereleased from confinement or imprisonment. Upon the individual's release
from confinement or imprisonment, the suspension period will run for the
number of days remaining on the suspension as of the date of the individ-
ual's reincarceration. [I.C.,
18-8011, as added by 1998, ch. 152, 4, p.
523.1
49-326A.
CHAPTER 81
TERRORIST CONTROL ACT
SECTION. SECTION.
18-8101. Purpose. 18-8105. [Severability.]
18-8106. Providing material support to ter-
Penalties.
rorists.
18-8104. Exclusions.
18-8101. Purpose.

The legislature recognizes the constitutional
right of every citizen to harbor and express beliefs on any subject, to
associate with others who share similar beliefs, and to keep and bear arms.
It is not the intent, by the provisions of this chapter, to interfere with the
exercise of rights protected by the constitutions of the state of Idaho or the
United States. The legislature further recognizes and finds that conspira-
cies and training activities in furtherance of unlawful acts of violence
against persons and property is not constitutionally protected, poses a
threat to public order and safety, and should be subject to criminal
sanctions. [I.C.,

18-8101, as added by 1987, ch. 318, 1, p. 669.]
As used in this chapter:

(1) "Civil disorder" means any public disturbance involving acts of
violence by an assemblage of two (2) or more persons which acts cause an
immediate danger of or result in damage or injury to the property or person
of any other individual.
(2) "Governmental military force" means the national guard, as defined in
section 101(9) of title 10 [10 U.S.C.
101(c)(1)], United States Code; the
organized militia of any state or territory of the United States, the
Commonwealth of Puerto Rico, or the District of Columbia, not included
with the definition of national guard as defined by such section 101(9); and
the armed forces of the United States.
67
1
TERRORIST CONTROL ACT 18-8 103
(3)
"Law enforcement agency" means a governmental unit of one (1) or
more persons employed full time or part time by the state or federal
government, or a political subdivision thereof, for the purpose of preventing
and detecting crime and enforcing laws or local ordinances and the employ-
ees of which are authorized to make arrests for crimes while acting within
the scope of their authority
(4) "Peace officer" means any duly appointed officer of a law enforcement
agency as denned herein including, but not limited to,ân officer of the Idaho
state police, department of fish and game, a sheriff or deputy sheriff of a
county, or a marshal or police officer of a city
(5)
"Terrorism" means activities that:
(a) Are a violation of Idaho criminal law; and
(b) Involve acts dangerous to human life that are intended to:
(i) Intimidate or coerce a civilian population;
(ii) Influence the policy of a government by intimidation or coercion; or
(hi) Affect the conduct of a government by the use of weapons of mass
destruction, as defined in section 18-3322, Idaho Code. [I.C.,

18-8102,
as added by 1987, ch. 318, 1, p. 669; am. 1995, ch.
116, 22, p. 386;
am. 2000, ch. 469, 29, p. 1450; am. 2002, ch. 222, 6, p. 623.]
Compiler's notes. Subsection (2) refers to compiled as

6-610A and 37-2701, respec-
"national guard as defined in section 101(9) of tively.
title 10, United States Code." Section 101, Sections 28 and 30 of S.L. 2000, ch. 469 are
Title 10 of the United States Code was compiled as
18-8004 and 18-8303, respec-
amended in 1992. The national guard is now tively.
defined in 10 USC 101(c)(1). The bracketed Section 5 of S.L. 2002, ch. 222 is compiled
material in subsection (2) was added by the as
18-7803.
compiler. Section 30 of S.L. 1995, ch. 116 declared an
Sections 21 and 23 of S.L. 1995, ch. 116 are emergency. Approved March 14, 1995.
Penalties.
Any person who:

(1) Conspires with one (1) or more persons to injure, oppress, threaten or
intimidate any citizen in the free exercise or enjoyment of any right or
privilege secured to him by the constitutions or laws of the United States or
the state of Idaho, by the use of violence against the person or property of
such citizen; or
(2) Goes on the highway, or on the premises of any citizen, with one (1) or
more other persons, with the intent by use of violence against such citizen
or his property, to prevent or hinder his free exercise or enjoyment of any
right or privilege so secured; or
(3)
Assembles with one (1) or more persons for the purpose of training or
instructing in the use of, or practicing with, any technique or means capable
of causing property damage, bodily injury or death with the intent to employ
such training, instruction or practice in the commission of a civil disorder, as
denned herein; or
(4) Commits an act of terrorism, as defined in this chapter; or
(5) Conspires with one (1) or more persons to commit an act of terrorism,
as defined in this chapter;
shall be guilty of a felony A violation of subsection
(1), (2) or (3) of this
section shall be punished by imprisonment in the state prison for a period
not to exceed ten (10) years, by a fine not in excess of fifty thousand dollars
($50,000), or by both such fine and imprisonment. A violation of subsection
(4) or (5) shall be punished by imprisonment in the state prison for a period
of up to and including life imprisonment or by a fine not exceeding fifty
thousand dollars ($50,000), or by both. [I.C.,

18-8103, as added by 1987,
ch. 318, 1, p. 669; am. 2002, ch. 222, 7, p. 623.]
Sec. to sec. ref. This section is referred to Compiler's notes. Section 8 of S.L. 2002,
in
18-7905. ch. 222 is compiled as
18-8106.
18-8104. Exclusions.

Nothing contained in this chapter makes
unlawful any act protected pursuant to article I, section 11, of the Idaho
constitution, or any act of any peace officer which is performed in the lawful
performance of the law enforcement officer's official duties. Nothing con-
tained in this chapter makes unlawful any activity of the department offish
and game, any governmental military force, the department of correction,
any law enforcement agency, or any activity intended to teach or practice
self-defense or self-defense techniques, such as karate clubs or self-defense
clinics, and similar lawful activity, or any facility, program or lawful activity
related to firearms instruction and training intended to teach the safe
handling and use of firearms, or any other lawful sports or activities related
to the individual recreational use or possession of firearms, including but
not limited to, hunting activities, target shooting, self-defense, firearms
collection or any organized activity including, but not limited to, any
hunting club, rifle club, rifle range or shooting range which does not include
a conspiracy as defined under the laws of this state or the knowledge of or
the intent to cause or further a civil disorder. [I.C.,

1987, ch. 318, 1, p. 669.]
18-8105. [Severability.]

The provisions of this act are hereby
declared to be severable and if any provision of this act or the application of
such provision to any person or circumstance is declared invalid for any
reason, such declaration shall not affect the validity of remaining portions of
this act. [I.C.,

18-8105, as added by 1987, ch.
318, 1, p. 669.]
Compiler's notes. The bracketed The words "this act" refer to S.L. 1987, ch.
catchline "Severability" was inserted by the 318, which is compiled as

18-8101 to
18-
compiler. 8105.
18-8106. Providing material support to terrorists.
(1) A person
who provides material support or resources, or who conceals or disguises the
nature, location, source or ownership of material support or resources, with
the knowledge and intention that such support or resources are to be used
in the preparation or carrying out of a violation of this chapter, or in the
preparation or carrying out of the concealment of such support or resources,
or in the escape from the commission of any such violation, shall be guilty of
a felony and shall be punished by imprisonment in the state prison for a
period not to exceed fifteen
(15) years or by a fine not exceeding fifty
thousand dollars ($50,000), or by both.
673 MONEY LAUNDERING 18-8201
(2) As used in this section, the term "material support or resources"
means currency or other financial securities, financial services, lodging, safe
houses, training, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives, personnel,
transportation, and other physical assets. "Material support or resources"
does not include medical or religious material. [I.C.,

2002, ch. 222, 8, p. 623.1
18-8103 and
CHAPTER 82
MONEY LAUNDERING
SECTION.
18-8201. Money laundering and illegal in-
vestment
Penalty
Resti-
tution.
18-8201. Money laundering and illegal investment
Penalty
Restitution.
(1) It is unlawful for any person to knowingly or intention-

ally give, sell, transfer, trade, invest, conceal, transport, or make available
anything of value that the person knows is intended to be used to commit or
further a pattern of racketeering activity as denned in section 18-7803(d),
Idaho Code, or a violation of the provisions of chapter 27, title 37, Idaho
Code.
(2) It is unlawful for any person to knowingly or intentionally direct,
plan, organize, initiate, finance, manage, supervise, or facilitate the trans-
portation or transfer of proceeds known by that person to be derived from a
pattern of racketeering activity as defined in section 18-7803(d), Idaho Code,
or a violation of the provisions of chapter 27, title 37, Idaho Code.
(3) It is unlawful for any person to knowingly or intentionally conduct a
financial transaction involving proceeds known by that person to be derived
from a pattern of racketeering activity as defined in section 18-7803(d),
Idaho Code, or a violation of the provisions of chapter 27, title 37, Idaho
Code, if the transaction is designed in whole or in part to conceal or disguise
the nature, location, source, ownership, or control of the proceeds, or to
avoid a transaction reporting requirement under state or federal law.
(4) Aperson who violates the provisions of this section is guilty of a felony
and upon conviction may be fined not more than two hundred fifty thousand
dollars ($250,000) or twice the value of the property involved in the
transaction, whichever is greater, or be imprisoned for not more than ten
(10) years, or be both so fined and imprisoned.
(5) Upon a conviction of a violation under the provisions of this chapter,
the court may order restitution for all costs and expenses of prosecution and
investigation, pursuant to the terms and conditions set forth in section
37-2732(k), Idaho Code. [I.C.,
18-8201, as added by 1992, ch.
335, 1, p.
1004; am. 1993, ch. 105, 3, p. 266.]
18-7804.
in
37-2732.
Analysis
Forfeiture.
Pattern of racketeering activity.
Forfeiture.
Because the U.S. Supreme Court recently
determined that civil forfeitures in general,
and specifically in cases involving money
laundering and drug statutes, do not consti-
tute "punishment" for purposes of the Double
Jeopardy Clause, there was no double jeop-
ardy attached to defendant's convictions and
sentences for delivery of controlled substance,
money laundering, and failure to pay income
tax and the prior forfeiture of his property
under
37-2744. State v. Ross, 129 Idaho
380, 924 R2d 1224 (1996).
Pattern of Racketeering Activity.
Because defendant's securities convictions
under

30-1403 and 30-1406 were affirmed,
defendant engaged in racketeering conduct,
and she engaged in the activity at least twice
in a five-year period, and the instances were
interrelated, a pattern of racketeering activ-
ity existed under 18-7803(d); consequently,
defendant's money laundering conviction, un-
der subsection (2) of this section, was af-
firmed. State v. Gertsch, 17 Idaho 387, 49 P3d
392 (2002).
CHAPTER 83
SEXUAL OFFENDER REGISTRATION NOTIFICATION AND COMMUNITY RIGHT-TO-
KNOW ACT
SECTION.
18-8301.
18-8302.
18-8303.
18-8304.
18-8305.
18-8305A
18-8306.
18-8307.
18-8308.
18-8309.
18-8310.
18-8311.
18-8312.
18-8313.
18-8314.
18-8315.
Short title.
Findings.
Definitions.
Application of chapter.
Central registry
Notice to agen-
cies.
. [Repealed.]
Notice of duty to register and initial
registration.
Local and annual registration.
Verification of address of violent
sexual predator.
Change of address or name.
Release from registration require-
ments
Expungement.
Penalties.
Sexual offender classification board
Appointment

Terms

Vacancies

Chairman

Quorum

Qualifications of
members

Compensation of
members.
Removal of board members.
Powers and duties of the sexual
offender classification board.
Compliance with open meeting law
Executive sessions autho-

rized
Report required.
SECTION.
18-8316. Requirement for psychosexual eval-
uations upon conviction.
18-8317. Requirement for psychosexual eval-
uations upon release.
18-8318. Offender required to pay for psycho-
sexual evaluation.
18-8319. Notice of the board's determination.
18-8320. Exception to notice of board's clas-
sification determination to of-
fender.
18-8321. Judicial review.
18-8322. Violent sexual predators moving
from other states.
18-8323. Public access to sexual offender reg-
istry information.
18-8324. Dissemination of registry informa-
tion.
18-8325. Exemption from civil liability.
18-8326. Penalties for vigilantism or other
misuse of information ob-
tained under this chapter.
18-8327. Adult criminal sex offender
Pro-
hibited employment.
18-8328. Action for relief by offender or juve-
nile offender.
This chapter shall be known and may be cited

as the "Sexual Offender Registration Notification and Community Right-to-
Know Act." [I.C.,

18-8301, as added by 1998, ch. 411, 2, p. 1275.]
ch. 411 repealed former chapter 83, title 18,
Idaho Code.
The following sections were repealed by
1,
1998:
18-8301, which comprised I.C., 18-8301,
675 SEXUAL OFFENDER REGISTRATION ACT 18-8302
as added by 1993, ch. 155, 1, p. 391, was
July 1, 1998.
July 1, 1998.
18-8303, which comprised I.O.,
18-8303,
July 1, 1998.
July 1, 1998.
as added by 1993, ch. 155, 1, p. 391, am.
1996, Ch. 249, 1, p. was repealed by S.L.
1998, ch. 411, 1, effective July 1, 1998.
18-8305A, which comprised I.C.,
18-
8305A, as added by 1996, ch. 249, 2, p. 784,
was repealed by S.L. 1998, ch. 411, 1, effec-
tive July 1, 1998.
18-8306,
July 1, 1998.
July 1, 1998.
July 1, 1998.
July 1, 1998.
as added by 1993, ^ph. 155, 1, p. 391, was
July 1, 1998.
July 1, 1998.
in 18-8328.
Habeas Petitioners.
A habeas corpus petitioner is "in custody"
for the purposes of challenging an earlier
expired rape conviction when he is incarcer-
ated for failing to comply with a state sex
offender registration law, because the peti-
tioner is subject to the registration require-
ment only because of his initial rape convic-
tion. Zichko v. Idaho, 247 F.3d 1015 (9th Cir.
2001).
18-8302. Findings.

The legislature finds that sexual offenders
present a significant risk of reoffense and that efforts of law enforcement
agencies to protect their communities, conduct investigations and quickly
apprehend offenders who commit sexual offenses are impaired by the lack of
current information available about individuals who have been convicted of
sexual offenses who live within their jurisdiction. The legislature further
finds that providing public access to certain information about convicted
sexual offenders assists parents in the protection of their children. Such
access further provides a means for organizations that work with youth or
other vulnerable populations to prevent sexual offenders from threatening
those served by the organizations. Finally, public access assists the commu-
nity in being observant of convicted sexual offenders in order to prevent
them from recommitting sexual crimes. Therefore, this state's policy is to
assist efforts of local law enforcement agencies to protect communities by
requiring sexual offenders to register with local law enforcement agencies
and to make certain information about sexual offenders available to the
public as provided in this chapter. [I.C.,
18-8302, as added by 1998, ch.
411, 2, p. 1275.]
18-8302 was
repealed. See Compiler's note,
18-8301.
Purpose.
The purpose of the Sex Offender Registra-
tion Act is not punitive, but remedial, and
offenders are still afforded all due process and
constitutional protections other citizens enjoy.
Ray v. State, 133 Idaho 96, 982 P. 2d 931
(1999).
As used in this chapter:

(1)
"Aggravated offense" means any of the following crimes as set forth in
section 18-8304, Idaho Code: 18-1508 (lewd conduct, when the victim is less
than twelve (12) years of age); 18-4003(d) (murder committed in the
perpetration of rape); 18-6101 (rape, but excluding section 18-6101(1) where
the victim is at least twelve (12)
years of age or the defendant is eighteen
(18) years of age or younger); 18-6108 (male rape); and 18-6608 (forcible
sexual penetration by use of a foreign object).
(2)
"Board" means the sexual offender classification board described in
section 18-8312, Idaho Code.
(3)
"Central registry" means the registry of convicted sexual offenders
maintained by the Idaho state police pursuant to this chapter.
(4) "Certified evaluator" means either a psychiatrist licensed by this state
pursuant to chapter 18, title 54, Idaho Code, or a master's or doctoral level
mental health professional licensed by this state pursuant to chapter
23,
chapter 32, or chapter 34, title 54, Idaho Code. Such person shall have by
education, experience and training, expertise in the assessment and treat-
ment of sexual offenders, and such person shall meet the qualifications and
shall be approved by the board to perform psychosexual evaluations in this
state, as described in section 18-8314, Idaho Code.
(5)
"Department" means the Idaho state police.
(6) "Employed" means full-time or part-time employment exceeding ten
(10) consecutive working days or for an aggregate period exceeding thirty
(30) days in any calendar year, or any employment which involves counsel-
ing, coaching, teaching, supervising or working with minors in any way
regardless of the period of employment, whether such employment is
financially compensated, volunteered or performed for the purpose of any
government or education benefit.
(7) "Incarceration" means committed to the custody of the Idaho depart-
ment of correction, but excluding cases where the court has retained
jurisdiction.
(8) "Offender" means an individual convicted of an offense listed and
described in section 18-8304, Idaho Code, or a substantially similar offense
under the laws of another state or in a federal, tribal or military court or the
court of another country.
(9)
"Offense" means a sexual offense listed in section 18-8304, Idaho
Code.
(10) "Predatory" means actions directed at an individual who was se-
lected by the offender for the primary purpose of engaging in illegal sexual
behavior.
(11) "Psychosexual evaluation" means an evaluation which specifically
addresses sexual development, sexual deviancy, sexual history and risk of
reoffense as part of a comprehensive evaluation of an offender.
(12) "Recidivist" means an individual convicted two (2) or more times of
any offense requiring registration under this chapter.
(13) "Residence" means the offender's present place of abode.
(14) "Student" means a person who is enrolled on a full-time or part-time
basis, in any public or private educational institution, including any
secondary school, trade or professional institution or institution of higher
education.
(15) "Violent sexual predator" means a person who has been convicted of
an offense listed in section 18-8314, Idaho Code, and who has been
determined to pose a high risk of committing an offense or engaging in
predatory sexual conduct. [I.C.,
18-8303, as added by 1998, ch. 411, 2,
p. 1275; am. 1999, ch. 349, 1, p. 932; am. 2000, ch. 236, 1, p. 663; am.
2000, ch. 469, 30, p. 1450; am. 2001, ch. 194, 1, p. 659; am. 2002, ch. 183,
1, p. 532; am. 2003, ch. 235, 1, p. 602; am. 2004, ch. 125, 1, p. 416.]
18-8303 was Sections 29 and 31 of S.L. 2000, ch. 469 are

18-8301. compiled as
18-8102 and 18-8315, respec-
This section was amended by two 2000 acts tively.
ch. 236, 1 and ch. 469, 30, both effec-
tive July 1, 2000, which do not conflict and
as
18-8312.
have been compiled together.
The 2000 amendment by ch. 236, 1 added
as 18-8314
present subdivision (10); and redesignated
Section 2 Qf g L 20Q4 ch 125 ig iled
former subdivisions (10) through (12) as *
ig_qq-m
present subdivisions (11) through (13).
a
'
,
Sectlon 6
A
of SL
-
^
ch
125
declared an
subdivisions (2) and (3), substituted "Idaho
emergency Approved March
19,
2004.
state police" for "Idaho department of law
Sec- to sec
-
ref
-
Thls section is referred to
enforcement".
in

18-8316 and 18-8317.
as 18-8310.
(1) The provisions of this chapter

shall apply to any person who:
(a) On or after July 1, 1993, is convicted of the crime, or an attempt, a
solicitation, or a conspiracy to commit a crime provided for in section
18-909 (assault with attempt to commit rape, infamous crime against
nature, or lewd 'and lascivious conduct with a minor, but excluding
mayhem, murder or robbery), 18-911 (battery with attempt to commit
rape, infamous crime against nature, or lewd and lascivious conduct with
a minor, but excluding mayhem, murder or robbery), 18-1506 (sexual
abuse of a child under sixteen years of age), 18- 1506A (ritualized abuse of
a child), 18-1507 (sexual exploitation of a child), 18- 1507A (possession of
sexually exploitative material for other than a commercial purpose),
18-1508 (lewd conduct with a minor child), 18-1508A (sexual battery of a
minor child sixteen or seventeen years of age),
18- 1509A (enticing a child
over the internet), 18-4003(d) (murder committed in perpetration of rape),
18-4116 (indecent exposure, but excluding a misdemeanor conviction),
18-4502 (first degree kidnapping committed for the purpose of rape,
committing the infamous crime against nature or for committing any lewd
and lascivious act upon any child under the age of sixteen, or for purposes
of sexual gratification or arousal), 18-4503 (second degree kidnapping
where the victim is an unrelated minor child), 18-6101 (rape, but
excluding 18-6101(1) where the defendant is eighteen years of age or
younger), 18-6108 (male rape), 18-6602 (incest), 18-6605 (crime against
nature), 18-6608 (forcible sexual penetration by use of a foreign object), or
upon a second or subsequent conviction under 18-6609, Idaho Code (video
voyeurism);
(b) Enters the state on or after July
1, 1993, and who has been convicted
of any crime, an attempt, a solicitation or a conspiracy to commit a crime
in another state, territory, commonwealth, or other jurisdiction of the
United States, including tribal courts and military courts, that is sub-
stantially equivalent to the offenses listed in subsection (l)(a) of this
section.
(c) Pleads guilty to or has been found guilty of a crime covered in this
chapter prior to July 1, 1993, and the person, as a result of the offense, is
incarcerated in a county jail facility or a penal facility or is under
probation or parole supervision, on or after July 1, 1993.
(d) Is a nonresident regularly employed or working in Idaho or is a
student in the state of Idaho and was convicted, found guilty or pleaded
guilty to a crime covered by this chapter and, as a result of such
conviction, finding or plea, is required to register in his state of residence.
(2)
The provisions of this chapter shall not apply to any such person while
the person is incarcerated in a correctional institution of the department of
correction, a county jail facility or committed to a mental health institution
of the department of health and welfare.
(3)
A conviction for purposes of this chapter means that the person has
pled guilty or has been found guilty, notwithstanding the form of the
judgment or withheld judgment. [I.C.,

18-8304, as added by 1998, ch. 411,
2, p. 1275; am. 1999, ch. 302, 1, p. 753; am. 1999, ch.
349, 2, p. 932;
am. 2001, ch. 194, 2, p. 659; am. 2003, ch. 145, 2, p. 418; am. 2004, ch.
122, 2, p. 410.1
18-8304 was Section 3 of S.L. 2001, ch. 194 is compiled
18-8301. as
18-8310.
The words enclosed in parentheses so ap- Section 1 of S.L. 2003, ch. 145 is compiled
peared in the law as enacted.
as 18-1509A.
This section was amended by two 1999 acts,
ch. 302, 1 and ch. 349, 2, which appear to
as
18-6609.
be compatible and have been compiled to-
gether.
The 1999 amendment by ch. 302,
1,
in-
gee. to sec. ref. This section is referred to
serted "(assault with intent to commit" pre-
in 18-8303, 18-8306, 18-8307, 18-8310, 18-
ceding "rape," and inserted "(battery with
8316> i8-8403 and 19-5506.
intent to commit" preceding "rape," in subdi-
vision (l)(a). Constitutionality.
The 1999 amendment by ch. 349, 2 in- Because the language in
18-8302 encom-
serted "(assault with attempt to commit" pre- passing those who live within their local law
ceding "rape," inserted "(battery with attempt enforcement jurisdiction, read together with
to commit" preceding "rape," in subdivision the terms "resides" or "temporarily domiciled"
(l)(a) and added subdivision (l)(d). in this section is sufficient for those of ordi-
Section 2 of S.L. 1999, ch. 302 is compiled nary intelligence to understand the conduct
as
18-8306. that is required, this section is not unconsti-
Section 3 of S.L. 1999, ch. 349 is compiled tutionally vague. State v. Zichko, 129 Idaho
as

18-8307.
259, 923 P.2d 966 (1996).
18-8305. Central registry
Notice to agencies.
(1) The depart-

ment shall establish and maintain a central sexual offender registry
separate from other records maintained by the department. The registry
shall include, but is not limited to, fingerprints, photographs, and other
information collected from submitted forms and other communications
relating to notice of duty to register, sexual offender registration and notice
of address change.
(2)
Upon receipt of information pursuant to section 18-8307, Idaho Code,
the department shall notify the law enforcement agencies shaving jurisdic-
tion where the offender resides or will reside, enter information in the
central registry, and transmit the appropriate information as required by
the federal bureau of investigation for inclusion in the national sexual
offender registry. Upon receipt of a notice of an offender changing residence
to another state, the department shall notify the central registry of the state
to which the offender is moving. The department shall adopt rules relating
to providing notice of address changes to law enforcement agencies, devel-
oping forms, operating the central registry, reviewing and correcting
records, and expunging records of persons who are deceased, whose convic-
tions have been reversed or who have been pardoned, and those for whom an
order of expungement or relief from registration has been entered pursuant
to section 18-8310, Idaho Code.
(3)
The department shall develop and distribute to appropriate agencies
the standardized forms necessary for the administration of the registry and
shall provide appropriate agencies with instructions for completing and
submitting the forms. The attorney general shall approve the forms and
instructions prior to distribution. [I.C.,

18-8305, as added by 1998, ch.
411, 2, p. 1275.]
18-8301. in
18-8404.
18-8305A. Exemption from lifetime registration. [Repealed.]
Compiler's notes. This section, which 1996, ch. 249, 2, p. 784, was repealed by
comprised I.C.,

18-8305A, as added by S.L. 1998, ch. 411, 1, effective July 1, 1998.
18-8306. Notice of duty to register and initial registration.

(1) When a person is sentenced for an offense identified in section 18-8304,
Idaho Code, the prosecuting attorney shall seek and the court shall order a
designated law enforcement agency to immediately fingerprint that person
unless the person has been fingerprinted and photographed previously for
the same offense. Fingerprints and photographs may be taken at the jail or
correctional facility to which the person is remanded or sentenced. The
fingerprints and photographs taken pursuant to this subsection shall be
submitted to the department as provided in section 67-30Cj, Idaho Code.
(2) A person convicted of an offense identified in section 18-8304, Idaho
Code, and released on probation without a sentence of incarceration in a
county jail or correctional facility, including release pursuant to a withheld
judgment or release from any mental institution, shall be notified by the
sentencing court of the duty to register pursuant to the provisions of this
chapter. The written notification shall be a form provided by the department
and approved by the attorney general and shall be signed by the defendant.
The court shall retain one (1) copy, provide one (1) copy to the offender, and
submit one (1) copy to the central registry within three (3) working days of
release.
(3)
With respect to an offender convicted of a sexual offense identified in
section 18-8304, Idaho Code, and sentenced to a period of incarceration in a
jail or correctional facility and subsequently released, placed on probation,
or paroled, the department of correction or jail shall provide, prior to release
from confinement, written notification of the duty to register. The written
notification shall be a form provided by the department and approved by the
attorney general and shall be signed by the offender. The department of
correction or jail shall retain one (1) copy, provide one (1) copy to the
offender, and submit one (1) copy to the central registry within three
(3)
working days of release.
(4)
The sheriff of each county shall provide written notification, on a form
provided by the Idaho transportation department and approved by the
attorney general, of the registration requirements of this chapter to any
person who enters this state from another jurisdiction and makes an
application for an identification card or a license to operate a motor vehicle
in this state. The written notice shall be signed by the person and one (1)
copy shall be retained by the sheriff's office and one (1) copy shall be
provided to the person.
(5)
Notification of the duty to register as set forth in subsections (2) and
(3) of this section shall constitute an initial registration for the purpose of
establishing a record in the central registry.
(6)
The notification form provided by the department and approved by the
attorney general shall:
(a) Explain the duty to register, the procedure for registration and
penalty for failure to comply with registration requirements;
(b) Inform the offender of the requirement to provide notice of any change
of address within Idaho or to another state within five (5) working days of
such change;
(c) Inform the offender of the requirement to register in a new state
within ten (10) days of changing residence to that state; and
(d) Obtain from the offender and agency or court, information required
for initial registration in the central registry, as prescribed by rules
promulgated by the department.
(7) The official conducting the notice and initial registration shall ensure
that the notification form is complete, that the offender has read and signed
the form, and that a copy is forwarded to the central repository within the
required time period.
(8)
Information required for initial registration in the central registry
shall include, but is not limited to: name and aliases of the offender; social
security number; physical descriptors; current address or physical descrip-
tion of current residence; offense for which convicted, sentence and condi-
tions of release; treatment or counseling received; and risk assessment or
special category of offender.
(9) No person subject to registration shall willfully furnish false or
misleading information when complying with registration and notification
requirements of this chapter. [I.C.,

18-8306, as added by 1998, ch. 411,
2, p. 1275; am. 1999, ch. 249, 4, p. 638; am. 1999, ch. 302, 2, p. 753;
am. 2004, ch. 126, 2, p. 422.]
68
1
SEXUAL OFFENDER REGISTRATION ACT 18-8307
18-8306 was Sections 1 and 3 of S.L. 2004, ch. 126 are
18-8301. compiled as 18-8002A and 49-301, respec-
This section was amended by two 1999 acts, tively.
ch. 249, 4 and ch. 302, 2 which appear to
be compatible and have been compiled to-
Purpose.
gether.
The clear purpose of subsection (2) of this
The 1999 amendment by ch. 249, 4 sub-
section is to ensure that persons required to
stituted
"67-3005"
for
"67-2911"
in subsection
register as sex offenders under the Sex Of-
(1).
fenders Registration Act are made aware of
The 1999 amendment by ch. 302, 2 in-
their duty to register before being discharged
serted "working" preceding "days of such
from custody. As It was clear defendant con-
change" in subdivision (6)(b).
victed of failing to register had been notified
Section 3 of S.L. 1999, ch. 249 is compiled of this obligation in writing, failure to instruct
as 9-340B. on the requirements of subsection (2) of this
Section 1 of S.L. 1999, ch. 302 is compiled section was harmless. State v. Zichko, 129
as
18-8304. Idaho 259, 923 P.2d 966 (1996).
18-8307. Local and annual registration.

(l)(a) Within ten (10)
days of coming into any county to establish residence or temporary domicile,
an offender shall register with the sheriff of the county Individuals
registered under the prior sex offender registration act, including those who
registered within twelve (12) months of the effective date of this act, shall
register with the sheriff of the county of residence within ten (10) days of the
effective date of this act. The offender thereafter shall update the registra-
tion annually. If the offender intends to reside in another state, the offender
shall register in the other state within ten (10) days of moving to that state,
(b) Nonresidents required to register pursuant to subsection (l)(d) of
section 18-8304, Idaho Code, shall register with the sheriff of the county
where employed or enrolled as a student within ten (10) days of the
commencement of employment or enrollment as a student in an educa-
tional institution; provided that nonresidents employed in counseling,
coaching, teaching, supervising or working with minors in any way
regardless of the period of employment, must register prior to the
commencement of such employment.
(2) Annual registration shall be conducted as follows:
(a) On or about the first day of the month containing the anniversary date
of the initial registration, the department shall mail a non-forwardable
notice of annual registration to the offender's last reported address;
(b) Within ten (10) days of the mailing date of the notice, the offender
shall appear in person at the office of the sheriff with jurisdiction for the
purpose of completing the registration process;
(c) If the notice is returned to the department as not delivered, the
department shall inform the sheriff with whom the offender last regis-
tered of the returned notice.
(3)
Registration, whether initial or annual, shall consist of a form
provided by the department and approved by the attorney general, which
shall be signed by the offender and shall require the following information
about the offender:
(a) Name and all aliases which the person has used or under which the
person has been known;
(b) A complete description of the person including the date of birth and
social security number;
(c) Name of each offense enumerated in section 18-8304, Idaho Code, of
which the person was convicted, where each offense was committed,
where the person was convicted of each offense, and the name under
which the person was convicted of each offense;
(d) The name and location of each hospital, jail or penal institution to
which the person was committed for each offense covered under this
chapter;
(e) School or college enrollment; and
(f) Address or physical description of current residence and place of
employment.
(4) At the time of registration, the sheriff shall obtain a photograph and
fingerprints, in a manner approved by the department, and may require the
offender to provide full palm print impressions of each hand. An offender
shall pay a fee of ten dollars ($10.00) to the sheriff at the time of each
registration. The sheriff may waive the registration fee if the offender
demonstrates indigency. The fees collected under this section shall be used
by the sheriff to defray the costs of sexual offender registration.
(5)
The sheriff shall forward the completed and signed form, photograph
and fingerprints to the department within three (3) working days of the
registration.
(a) The official conducting the initial registration shall ensure that the
notification form is complete and that the offender has read and signed
the form.
(b) No person subject to registration shall furnish false or misleading
information when complying with registration and notification require-
ments of this chapter.
(6)
The sheriff, or appointed deputies, may visit the residence of a
registered sexual offender within the county at any reasonable time to verify
the address provided at the time of registration.
(7) All written notifications of duty to register as provided herein shall
include a warning that it is a felony as provided in section 18-8327, Idaho
Code, for an offender to accept employment in any day care center, group
day care facility or family day care home, as those terms are defined in
chapter 11, title 39, Idaho Code, or to be upon or to remain on the premises
of a day care center, group day care facility or family day care home while
children are present, other than to drop off or pick up the offender's child or
children. [I.C.,

18-8307, as added by 1998, ch.
411, 2, p. 1275; am. 1999,
ch. 302, 3, p. 753; am. 1999, ch. 349, 3, p. 932; am. 2004, ch. 270, 4,
p. 752.]
18-8307 was The 1999 amendment by ch. 349, 3 added
18-8301. the subdivision (a) designation, added the
The words "effective date of this act" in second sentence in subdivision (l)(a), and
subdivision (l)(a) refer to S.L. 1999, ch. 349, added subdivision (l)(b).
effective July 1, 1999. Section 4 of S.L. 1999, ch. 302 is compiled
This section was amended by two 1999 acts, as
18-8309.
ch. 302, 3 and ch. 349, 3, which appear to Section 2 of S.L. 1999, ch. 349 is compiled
be compatible and have been compiled to- as
18-8304.
gether. Sections 3 and 5 of S.L. 2004, ch. 270 are
The 1999 amendment by ch. 302, 3 added compiled as
20-505 and 18-8407, respec-
the second sentence in subsection (1). tively.
in

18-8305, 18-8324 and 18-8407.
Analysis
Evidence.
Relevant.
Excuse.
Instructions.
Registration period.
Sentence.
Not excessive.
Evidence.
Relevant.
The district court correctly ruled that wel-
fare worker's testimony, that defendant listed
that county as his residency on a welfare
application, was relevant on the issue of
where defendant resided for purposes proving
violation of the Sex Offender Registration Act.
State v. Zichko, 129 Idaho 259, 923 P.2d 966
(1996).
Excuse.
Although waived on appeal, defendant's
claim that a domestic violence protection or-
der prohibited him from registering at the
driver's license bureau due to its proximity to
his former wife's place of employment had no
factual support because deputy testified that
if necessary he would go to the location of the
person seeking registration on any day of the
week. State v. Zichko, 129 Idaho 259, 923 P.2d
966 (1996).
Instructions.
District court properly rejected defendant's
requested instructions defining residence and
domicile because they are terms of common
understanding and because the proposed in-
structions did not define the actual terms
used in the statute; jury was instructed in the
language of the statute and that was suffi-
cient. State v. Zichko, 129 Idaho 259, 923 P.2d
966 (1996).
Registration Period.
A reading of the Sex Offender Registration
Act indicates that the legislature specifically
intended to include Saturdays, Sundays, and
holidays within the five day registration pe-
riod of this section.
Sentence.
Not Excessive.
Where district court had the benefit of
presentence investigation report containing a
great deal of information about defendant's
background and character, defendant refused
to be interviewed by the presentence investi-
gator or otherwise cooperate in completing
the report, and defendant's prior criminal
history included the rape of his 15-year-old
daughter, five-year indeterminate sentence
for failing to register under Sex Offender
Registration Act was not excessive. State v.
Zichko, 129 Idaho 259, 923 P.2d 966 (1996).
18-8308. Verification of address of violent sexual predator.

(1) The address or physical residence of an offender designated as a violent
sexual predator shall be verified by the department every ninety (90) days
between annual registrations.
(2) The procedure for verification shall be as follows:
(a) The department shall mail a nonforwardable notice of address verifi-
cation quarterly, between annual registrations, to each offender desig-
nated as a violent sexual predator.
(b) Each offender designated as a violent sexual predator shall complete,
sign and return the notice of address verification form to the department
within ten (10) days of the mailing date of the notice.
(c) If the notice of address verification is returned to the department as
not delivered, the department shall notify the sheriff with whom the
offender designated as a violent sexual predator last registered. [I.C.,
18-8308, as added by 1998, ch. 411, 2, p. 1275.]


18-8308 was
18-8301.
in

18-8324 and 19-5506.
18-8309. Change of address or name.
(1) If an offender changes

address or actual residence, the offender shall provide written notice of the
new address within five (5) working days after the change to the sheriff of
the county where the offender is required to register. The notice shall be on
a form provided by the department. Within three (3) working days after
receipt of the notice, the sheriff shall forward a copy of the notice to the
department.
(2)
If an offender changes address to another state, the offender shall
provide written notice of the new address within five (5) working days after
the change to the department.
(3) An offender whose legal name is changed by marriage, judicial order
or any other means shall provide written notice of the name change to the
sheriff and the department within five (5) working days of the order, event
or other occurrence. [I.C.,
18-8309, as added by 1998, ch. 411, 2, p. 1275;
am. 1999, ch. 302, 4, p. 753.]
18-8301. in
18-8407.
compiled as
18-8307 and 18-8317, respec-
tively.
18-8310. Release from registration requirements

Expungement.
(1) Any person, other than a recidivist, an offender who

has been convicted of an aggravated offense, or an offender designated as a
violent sexual predator, may, after a period often (10) years from the date
the person was released from incarceration or placed on parole, supervised
release or probation, whichever is greater, petition the district court for a
show cause hearing to determine whether the person shall be exempted
from the duty to register as a sexual offender. In the petition the petitioner
shall:
(a) Provide clear and convincing evidence that the petitioner is not a risk
to commit a new violation for any violent crime or crime identified in
section 18-8304, Idaho Code;
(b) Provide an affidavit indicating that the petitioner does not have a
criminal charge pending nor is the petitioner knowingly under criminal
investigation for any violent crime or crime identified in section 18-8304,
Idaho Code;
(c) Provide proof of service of such petition upon the county prosecuting
attorney for the county in which the application is made; and
(d) Provide a certified copy of the judgment of conviction which caused the
petitioner to report as a sexual offender.
The district court may grant a hearing if it finds that the petition is
sufficient. The court shall provide at least sixty (60) days' prior notice of the
hearing to the petitioner and the county prosecuting attorney.
The court may exempt the petitioner from the reporting requirement only
after a hearing on the petition in open court and only upon proofby clear and
convincing evidence that the petitioner is not a risk to commit a new
violation for any violent crime or crime identified in section 18-8304, Idaho
Code.
(2) Concurrent with the entry of any order exempting the petitioner from
the reporting requirement, the court may further order that any informa-
tion regarding the petitioner be expunged from the central registry. [I.C.,
685 SEXUAL OFFENDER REGISTRATION ACT 18-83 12

236, 2,
p. 663; am. 2001, ch. 194, 3, p. 659.]
18-8310 was violation before releasing that petitioner from

18-8301. the sex offender registration requirement;
Section 1 of S.L. 2000, ch. 236 is compiled Idaho Code
18-8310 provided only a mech-
as

18-8303.
anism under which a sex offender could peti-
tion for relief from the sex offender registra-
as

18-8304.
tion requirement, but that it did not mandate
relief and the feacher did not carry his very
in

18-8305 and 18-8407.
heavy burden of proof of showing that he was
a
not a risk to re-offend. State v. Knapp,

Idaho , 79 P.3d 740 (Ct. App. 2003).
RemediafnaTure of requirement.
Re
,
me
^
al Mature of Requirement.
The fact that registrants can petition to be
Burden of Proof. released from the registration requirements
Idaho Code
18-8310 required the trial after ten years lessens the punitive aspect of
court to find by clear and convincing evidence the requirement. Ray v. State, 133 Idaho 96,
that a petitioner be not a risk to commit a new 982 P.2d 931 (1999).
18-8311. Penalties.
(1) An offender subject to registration who fails

to register or provide any notice as required by this chapter shall be guilty
of a felony and shall be punished by imprisonment in the state prison
system for a period not to exceed five
(5)
years and by a fine not to exceed five
thousand dollars ($5,000). If the offender is on probation or other supervised
release or suspension from incarceration at the time of the violation, the
probation or supervised release or suspension shall be revoked and the
penalty for violating this chapter shall be served consecutively to the
offender's original sentence.
(2) An offender subject to registration under this chapter, who willfully
provides false or misleading information in the registration required, shall
be guilty of a feldny and shall be punished by imprisonment in a state prison
for a period not to exceed five
(5)
years and a fine not to exceed five thousand
dollars ($5,000).
(3)
An offender subject to registration under this chapter, who willfully
evades service of the board's notice pursuant to section 18-8319, Idaho Code,
shall be guilty of a felony and shall be punished by imprisonment in a state
prison for a period not to exceed five (5)
years and a fine not to exceed five
thousand dollars ($5,000). [I.C.,
18-8311, as added by 1998, ch. 411, 2,
p. 1275; am. 2000, ch.
236, 3, p. 663.]
Compiler's notes. Former 18-8311 was Section 4 of S.L. 2000, ch. 236 is compiled
18-8301. as
18-8314.
18-8312. Sexual offender classification board
Appointment
Terms

Vacancies

Chairman

Quorum

Qualifications of
members
Compensation of members.
(1) A sexual offender clas-

sification board is hereby created within the Idaho department of correction.
The board shall consist of four (4) members appointed by the governor by
and with the advice and consent of the senate. The purpose of the board
shall be to assess the risk of reoffense of any offender convicted and
incarcerated for commission of a crime as set forth in section 18-8314, Idaho
Code, to determine whether the offender should be designated a violent
sexual predator. To the extent practicable, the board's determination shall
be made prior to the offender's release from incarceration.
(2)
The terms of the members shall expire as follows: one (1) member on
January 1, 2001; one (1) member on January 1, 2002; one (1) member on
January 1, 2003; and one (1) member on January 1, 2004. Thereafter, any
person appointed a member of the board shall hold office for six
(6) years.
(3)
Vacancies in the membership of the board shall be filled in the same
manner in which the original appointments are made. Members appointed
to a vacant position shall serve the remainder of the unexpired term.
(4)
Qualifications of members.
(a) At least one (1) member of the board shall have, by education,
experience and training, expertise in the assessment and treatment of
sexual offenders.
(b) At least one (1) member of the board shall be employed in the field of
law enforcement and have training in the field of the behavior and
treatment of sexual offenders.
(c) At least one (1) member of the board shall be an advocate for victims
of offenders.
(5)
The board shall elect a chairman from its members.
(6) A quorum shall exist when at least three (3) members of the board are
present, provided that one (1) member present has, by education, experience
and training, expertise in the assessment and treatment of sexual offenders.
(7)
Members shall be compensated as provided by section 59-509(o),
Idaho Code. [I.C.,
18-8312, as added by 1998, ch. 411, 2, p. 1275; am.
2002, ch. 183, 2, p. 532.]
Compiler's notes. Sections 1 and 3 of S.L. Cited in: State v. Knapp,

Idaho , 79

18-8303 and P.3d 740 (Ct. App. 2003).
in 18-8303.
18-8313. Removal of board members.

The governor may remove
members of the board for reasons of inefficiency, neglect of duty, malfeasance
in office, commission of a felony or inability to perform the duties of office.
[I.C.,

18-8313, as added by 1998, ch. 411, 2, p. 1275.]
18-8314. Powers and duties of the sexual offender classification
board.
(1) The board shall consider for review offenders scheduled for
release from incarceration who are referred by the department of correction
or parole commission to determine whether the offender should be desig-
nated as a violent sexual predator presenting a high risk of reoffense. Only
offenders who were sentenced and convicted for one (1) or more of the crimes
set forth in sections 18-1506, 18-1506A, 18-1508, 18-4003(d), 18-4502,
18-6101 (but excluding subsection 1. of such section when the offender is
eighteen (18) years of age or younger), 18-6108, 18-6602, 18-6605 and
18-6608, Idaho Code, or are recidivists as denned in this chapter, are eligible
for review by the board.
(2) The board shall consider for review offenders who were sentenced and
convicted for one (1) or more crimes enumerated in subsection (1) of this
section, who have been released under supervision, for the purpose of
determining whether the offender should be designated as a violent sexual
predator presenting a high risk of reoffense. Such review shall be under-
taken upon request of the district court having jurisdiction over the offender
on probation or of the parole commission if the offender has been released on
parole regardless of whether the offender has been reviewed by the board
prior to release from incarceration. For purposes of seeking a board review
pursuant to this subsection, the court or parole commission may consider all
relevant evidence including, but not limited to, the probation or parole
official's observations and opinions of these offenders while under supervi-
sion, in light of the circumstances of the underlying offense.
(3)
The board shall consider for review offenders living in Idaho who were
sentenced and convicted for one (1) or more crimes enumerated in subsec-
tion (1) of this section, or substantially equivalent to those enumerated in
subsection (1) of this section and committed in another state, territory,
commonwealth or other jurisdiction of the United States, including tribal
courts and military courts, and who have been released under federal or
tribal court supervision. Such review shall be for the purpose of determining
whether the offender should be designated as a violent sexual predator
presenting a high risk of reoffense, and shall be undertaken upon request of
the federal or tribal court havingjurisdiction over the offender. For purposes
of seeking a board review pursuant to this subsection, the federal or tribal
court may consider all relevant evidence including, but not limited to, the
probation official's observations and opinions of these offenders while under
supervision, in light of the circumstances of the underlying offense.
(4) The board shall by rule:
(a) Establish standards for psychosexual evaluations and the qualifica-
tions for certified evaluators performing evaluations pursuant to sections
18-8316 and 18-8317, Idaho Code.
(b) Set forth procedures for the approval, certification and quality assur-
ance of evaluators pursuant to this section.
(c) Establish a nonrefundable initial certification processing fee not to
exceed one hundred fifty dollars ($150) and a nonrefundable annual
recertification processing fee not to exceed one hundred fifty dollars
($150).
(5)
The board shall establish guidelines to determine whether an offender
who meets the criteria of this section is a violent sexual predator presenting
a high risk of reoffense. The guidelines shall be established with the
assistance of sexual offender treatment and law enforcement professionals
who have, by education, experience or training, expertise in the assessment
and treatment of sexual offenders.
(a) Factors to be used in establishment of the guidelines must be
supported in the sexual offender assessment field as criteria reasonably
related to the risk of reoffense and be objective criteria that can be
gathered in a consistent and reliable manner.
(b) The guidelines shall include, but are not limited to, the following
general categories for risk assessment: seriousness of the offense, offense
history, whether the offense was predatory, characteristics of the offender,
characteristics of the victim, the relationship of the offender to the victim,
the number of victims and the number of violations of each victim.
(6)
If the offender has indicated an intention to reoffend if released into
the community and the available record reveals credible evidence to support
this finding, then the offender shall be deemed a violent sexual predator
regardless of application of the guidelines.
(7)
Once the board has made its determination, it shall set forth written
findings which shall include:
(a) The board's risk assessment and the reasons upon which the risk
assessment was based; and
(b) The board's determination whether the offender should be designated
as a violent sexual predator and the reasons upon which the determina-
tion was based.
(8) The board shall have authority to promulgate rules to carry out the
provisions of this chapter. [I.C.,

18-8314, as added by 1998, ch. 411, 2,
p. 1275; am. 2000, ch. 235, 1, p. 661; am. 2000, ch. 236, 4, p. 663; am.
2002, ch. 183, 3, p. 532; am. 2003, ch. 235, 2, p. 602; am. 2004, ch. 125,
2, p. 416.]
Compiler's notes. This section was Sections 3 and 5 of S.L. 2000, ch. 236 are

ch. 235, 1, compiled as
18-8311 and 18-8319, respec-
effective April 12, 2000 and ch. 236, 4,
tively.
effective July 1, 2000, which do not conflict Section 2 of S.L. 2002, ch. 183 is compiled
and have been compiled together. as
18-8312.
The 2000 amendment by ch. 235, 1, in Sections 1 and 3 of S.L. 2003, ch. 235 are
subsection (1), substituted "review offenders" compiled as
18-8303 and 18-8316, respec-
for "evaluate offenders", inserted
",
or are tively.
recidivists as denned in this chapter" preced- Section 1 of S.L. 2004, ch. 125 is compiled
ing "for the purpose of determining"; added as 18-8303.
present subsection (2); and redesignated Section 2 of S.L. 2000, ch. 235 declared an
former subsections (2) through (5) as present emergency. Approved April 12, 2000.
subsections (3) through (6). Section 6 of S.L. 2004, ch. 125 declared an
The 2000 amendment by ch. 236, 4, in emergency. Approved March 19, 2004.
subsection (1), substituted "review offenders" Sec. to sec. ref. This section is referred to
for "evaluate offenders", and inserted
",
or are in 18-8303, 18-8312, 18-8316 and 18-8317.
recidivists as denned in this chapter" preced- Cited in: State v. Knapp,

Idaho , 79
ing "for the purpose of determining". P.3d 740 (Ct. App. 2003).
18-8315. Compliance with open meeting law

Executive ses-
sions authorized
Report required.

(1) All meetings of the board
shall be held in accordance with the open meeting law as provided in
chapter 23, title 67, Idaho Code, except:
(a) Consideration of and discussions pertaining to documents not subject
to public disclosure, such as the presentence investigation report, certain
medical or psychological reports and any reports, orders or other docu-
ments sealed by court order;
(b) Deliberations and decisions concerning the classification of violent
sexual predators; and
(c) Votes of individual members in arriving at the classification decisions
shall not be made public, provided that the board shall maintain a record
of the votes of the individual members as required in subsection (2) of this
section.
(2)
A written record of the vote to classify an offender as a violent sexual
predator by each board member in each case reviewed by that member shall
be produced by the board. In accordance with section 9-340B, Idaho Code,
the record produced by the board pursuant to this section shall be kept
confidential and privileged from disclosure, provided the record shall be
made available, upon request, to the governor and the chairman of the
senate judiciary and rules committee and the chairman of the house of
representatives judiciary, rules and administration committee, for all lawful
purposes. Distribution of the report by a board member or an employee of
the board to any person not specifically listed in this section shall be a
misdemeanor.
(3)
Nothing contained in this section shall prevent any person from
obtaining the results of any classification action by the board without
reference to the manner in which any member voted. This information can
be obtained through a public records request made to the board.
(4) Nothing contained herein shall prevent the governor and chairman of
the senate judiciary and rules committee and the chairman of the house of
representatives judiciary, rules and administration committee from attend-
ing any meeting including an executive session of the sexual offender
classification board. [I.C.,
18-8315, as added by 1998, ch. 411, 2, p. 1275;
am. 2000, ch. 469, 31, p. 1450; am. 2004, ch. 125, 3, p. 416.]
Compiler's notes. Sections 30 and 32 of Section 6 of S.L. 2004, ch. 125 declared an
18-8303 emergency. Approved March 19, 2004.
in 9-340B
as 18-8317.
18-8316. Requirement for psychosexual evaluations upon con-
viction.

If ordered by the court, an offender convicted of any offense
listed in section 18-8304, Idaho Code, shall submit to an evaluation to be
completed and submitted to the court in the form of a written report from a
certified evaluator as denned in section 18-8303, Idaho Code, for the court's
consideration prior to sentencing and incarceration or release on probation.
The court shall select the certified evaluator from a central roster of
evaluators compiled by the sexual offender classification board. A certified
evaluator performing such an evaluation shall be disqualified from provid-
ing any treatment ordered as a condition of any sentence, unless waived by
the court. For offenders convicted of an offense listed in section 18-8314,
Idaho Code, the evaluation shall state whether it is probable that the
offender is a violent sexual predator. An evaluation conducted pursuant to
this section shall be done in accordance with the standards established by
the board pursuant to section 18-8314, Idaho Code. [I.C.,

18-8316, as
added by 1998, ch. 411, 2, p. 1275; am. 1999, ch.
380, 1, p. 1044; am.
2003, ch. 235, 3, p. 602.]
18-8314. in

18-8314, 18-8317, 18-8318.
18-8317. Requirement for psychosexual evaluations upon re-
lease.
Every offender who meets the criteria set forth in section 18-8314,
Idaho Code, an# has been considered by the board and deemed appropriate
for review for violent sexual predator designation, shall submit to psycho-
sexual evaluation. Every incarcerated offender whose evaluation under
section 18-8316, Idaho Code, states that the offender is a probable violent
sexual predator, shall submit to a psychosexual evaluation and shall be
reviewed by the board. The purpose of the evaluation is for assessing risk of
reoffense and to determine whether the offender should be designated as a
violent sexual predator. If the offender is incarcerated, the evaluation is to
be performed prior to release from incarceration. These evaluations shall be
performed either by a certified evaluator as denned in section 18-8303,
Idaho Code, or a mental health professional employed by the department of
correction. The individual performing an evaluation under this section shall
not be a member of the sexual offender classification board at the time the
evaluation is performed. The individual performing the evaluation shall be
disqualified from providing any treatment ordered or attached as a condi-
tion of parole, unless waived by the department of correction. An evaluation
conducted pursuant to this section shall be done in accordance with the
standards established by rule of the board pursuant to section 18-8314,
Idaho Code. [I.g.,

18-8317, as added by 1998, ch. 411, 2, p. 1275; am.
1999, ch. 302, 5, p. 753; am. 2003, ch. 235, 4, p. 602; am. 2004, ch. 125,
4, p. 416.]
compiled as

83-8315 and 83-8319, respec-
in
18-8314 and 18-8318.
tively.
18-8318. Offender required to pay for psychosexual evaluation.
The offender shall be required to pay for the cost of the psychosexual
evaluations performed under this chapter, unless the offender demonstrates
indigency. In such case, the psychosexual evaluation performed pursuant to
section 18-8316, Idaho Code, shall be paid for by the county, and the
evaluation performed pursuant to section 18-8317, Idaho Code, shall be paid
for by the department of correction. As a condition of sentence, indigent
offenders for whom the county has paid the cost of evaluation performed
pursuant to section 18-8316, Idaho Code, shall be required to repay the
county for the c8st. [I.C.,

18-8318, as added by 1998, ch. 411, 2, p. 1275;
am. 1999, ch. 302, 6, p. 753.]
18-8323.
18-8319. Notice of the board's determination.
(1) Subject to the

exception identified in section 18-8320, Idaho Code, the offender and the
sheriff of the county in which the offender resides or intends to reside upon
release shall be notified by the board that an offender has been designated
as a violent sexual predator. This notice shall be in the form of the board's
written findings.
(2) The board shall serve a copy of its written findings to the offender
within ten (10) working days of the date that designation has been made.
Service of the written findings will be made upon the sheriff in accordance
with the offender's status.
(a) Notice shall be served upon the sheriff of the county in which the
offender resides within ten (10) working days of the date that designation
has been made, if the offender is not incarcerated.
(b) If the offender is awaiting release from incarceration, notice shall be
made upon the sheriff of the county in which the offender intends to reside
no less than seven (7) days prior to the offender's release.
(c) In the event the offender has not specified a residence plan prior to his
release, notice shall be made upon the sheriff of the county in which the
offender is released from incarceration, and upon the sheriff of the county
in which the offender initially resides and registers after release.
(3)
The board's notice to the offender shall also inform the offender:
(a) That the offender may challenge the designation as a violent sexual
predator by judicial review;
(b) That unless application is made to the applicable district court on or
before the date set forth in the notice, which shall be no more than
fourteen (14) calendar days after the notice is given, the offender shall be
deemed to have waived the right to challenge the designation;
(c) The applicable district court shall be determined as:
(i) The county in which the offender resides if the offender has been
released from incarceration; or
(ii) The county in which the offender intends to reside if the offender
has not been released from incarceration; or
(iii) If the offender intends to reside in another state, territory, com-
monwealth or other jurisdiction of the United States immediately upon
release from incarceration, the county in which the offender was most
recently convicted of an offense as listed in section 18-8314, Idaho Code;
(d) That the offender has the right to retain counsel and that counsel will
be provided by the court if the offender cannot afford counsel; and
(e) How such application should be made if counsel is not retained. If
counsel is not retained, notice filed with the district court in the applicable
county, which encloses a copy of the board's written findings and indicates
the offender's objection or disagreement with it, shall suffice.
(4) Upon determining that the offender has not received the board's
notice pursuant to this section, the board shall notify the sheriff of the
county in which the offender resides. This notice shall be in writing and
shall be delivered in a manner which will ensure receipt by the sheriff. Upon
request of the board, the sheriff may personally serve the offender with the
board's notice, or the sheriff may verify the offender's address and advise the
board in order that notice may once again be served. If, after the second
attempt to serve the offender, the board or sheriff determines that the
offender has evaded service or attempted to evade service, the matter shall
be referred for prosecution pursuant to section 18-8311(3), Idaho Code. [I.C.,

236, 5,
p. 663; am. 2000, ch. 237, 1, p. 667; am. 2001, ch.
200, 1, p. 680; am.
2001, ch. 286, 1, p. 1021; am. 2004, ch. 125, 5, p. 416.]
Compiler's notes. This section was released from incarceration," following "the
ch. 236, 5 and offender resides"; "the county where the of-
ch. 237, 1, both effective July 1, 2000, which fender" preceding "intends to reside"; "if the
do not conflict and have been compiled to- offender has not been released from incarcer-
gether. ation," preceding "on or before";
The 2000 amendment by ch. 236, 5, in The 2001 amendment by ch. 286, 1, re-
subdivision (3)(b), substituted "more than wrote subsection (2) and added subsections
fourteen" for "less than fourteen". (2)(a) through (2)(c).
The 2000 amendment by ch. 237, 1 added Section 4 of S.L. 2000, ch. 236 is compiled
subsection (4). as
18-8314.
This section was amended by two 2001 acts Section 4 of S.L. 2004, ch. 125 is compiled
which appear to be compatible and have been as
18-8317.
compiled together. Section 6 of S.L. 2004, ch. 125 declared an
The 2001 amendment by ch. 200, 1, in emergency. Approved March 19, 2004.
subsection (b), inserted "district" preceding Sec. to sec. ref. This section is referred to
"court"; inserted "if the offender has been in
18-8311.
18-8320. Exception to notice of board's classification determina-
tion to offender.
Beginning with the effective date [July 1, 1998] of this

chapter, if an offender avoids service of the notice of the board's designation
of the offender as a violent sexual predator, or if after a good faith effort to
serve the offender, service has not been completed within ten (10) working
days of the date that designation has been made, notice to the offender may
be dispensed with and the offender shall be deemed to have waived the right
to judicial review as otherwise provided in this chapter. [I.C.,

18-8320, as
added by 1998, ch. 411, 2, p. 1275.]
in 18-8319.
18-8321. Judicial review.
(1) Judicial review of an offender's chal-

lenge to the designation as a violent sexual predator is civil, not criminal,
and remedial, not adversarial.
(2) Immediately upon receipt of an offender's objection or challenge to the
designation as a violent sexual predator, the court shall set a date for a
summary hearing.
(3) Upon notification of a date for a summary hearing, the prosecutor
shall forthwith turn over all papers, documents and other relevant material
to the court. A written summarization of information relied upon by the
sexual offender classification board may be made available to the offender.
However the following documents produced by the sexual offender classifi-
cation board shall be withheld from disclosure and available only for in
camera review by the court:
(a) Records that contain names and addresses, identifying information or
any information that would lead to the identification of any victims or
witnesses;
(b) Written statements or testimony of victims, witnesses, guardians or
persons representing victims or witnesses;
(c) Reports prepared specifically for use by the commission for pardons
and parole in making parole determinations pursuant to section 20-223,
Idaho Code; and
(d) Other records to remain confidential consistent with rules of criminal
or civil procedure.
(4)
Judicial review under this chapter shall be conducted as a summary,
in camera review proceeding, in which the court decides only whether to
affirm or reverse the board's designation of the offender as a violent sexual
predator.
(5) The court shall have broad discretion over whether and to what extent
witnesses and cross-examination will be allowed.
(6)
The rules of evidence do not apply.
(7) The court may rely on documentary evidence, such as expert opinions,
for all issues.
(8)
Nonconviction offense, i.e., criminal activity that has not been the
subject of a conviction, shall be considered in review of the board's designa-
tion, provided that there is sufficient evidence that the nonconviction offense
occurred.
(9)
Where the proof, whether in the form of reliable hearsay, affidavits, or
offers of live testimony, creates a genuine issue of material fact as to
whether the offender is a violent sexual predator, the court should convene
a fact-finding hearing and permit live testimony.
(10) The state bears the burden of presenting a prima facie case that
justifies the designation as a violent sexual predator.
(11) The court shall affirm the board's determination unless persuaded by
a preponderance of the evidence that it does not conform to the law or the
guidelines.
(12) The offender is entitled to challenge the designation as a violent
sexual predator baged upon two (2) grounds:
(a) The offender may introduce evidence that the calculation that led to
the designation as a violent sexual predator was incorrectly performed
either because of a factual error, because the offender disputes a prior
offense, because the variable factors were improperly determined, or for
similar reasons; and
(b) The offender may introduce evidence at the hearing that the designa-
tion as a violent sexual predator does not properly encapsulate the specific
case, i.e., the offender may maintain that the case falls outside the typical
case of this kind and, therefore, that the offender should not be designated
as a violent sexual predator.
(13) Either party may appeal the decision of the court.
(14) Offenders who are not designated as violent sexual predators are not
entitled to judicial review under this section. [I.C.,

1998, ch. 411, 2, p. 1275; am. 2002, ch. 182, 1, p. 530.]
Compiler's notes. Section 2 of S.L. 2002, to January 1, 2002 and was approved March
ch. 182 declared an emergency retroactively 21, 2002.
18-8322. Violent sexual predators moving from other states.

Offenders moving to Idaho from other states who have been classified as
violent sexual offenders or given a substantially similar classification shall
be classified violent sexual offenders under this chapter. Any offender who is
so classified shall have the right to judicial review of the classification, but
the burden of proof in such proceedings shall be upon the offender. [I.C.,
18-8322, as added by 1998, ch. 411, 2, p. 1275.]

18-8323. Public access to sexual offender registry information.
Information within the sexual offender registry collected pursuant to this

chapter is subject to release only as provided by this section.
(1)
The department or sheriff shall provide public access to information
contained in the central sexual offender registry. The department shall
promulgate rules defining the processes for providing information to the
public and the requirements for retention of inquiry records by the depart-
ment and sheriff. The department may provide public access to the sex
offender registry by means of the internet.
(2) The department and sheriff will respond to requests for sexual
offender registry information within ten (10) working days of receipt of the
written request.
(a) Any person may inquire about a named individual by submitting an
information request form obtained from the department or sheriff. The
department shall promulgate rules outlining the methods and means of
submitting requests. Information required for inquiry shall include the
individual's full name and address, or full name and date of birth. The
requester shall provide his full name, street address and driver's license
or social security number.
(b) Any person may request a list of registered sexual offenders by
geographic area, such as by county or by zip code area, as determined by
rule, by submitting an information request form obtained from the
department or sheriff. The requester shall provide his full name, street
address and driver's license, social security number, or state identification
number.
(c) Schools, organizations working with youth, women or other vulnera-
ble populations may request a statewide list or lists by geographic area
within the state.
(d) The department and sheriff may collect a fee of five dollars ($5.00) for
each response to a written request.
(e) Information to be provided includes the offender's name, address, any
aliases or prior names, date of birth, the crime of conviction, and the place
of conviction. The information provided shall also state whether the
offender is a violent sexual predator.
(f) Identity of the offender's employer or educational institution currently
attended will not be provided for any registered sexual offender.
(g)
Where a crime category such as "incest" may serve to identify a victim,
that crime will be reported as section 18-1506, Idaho Code.
(h) Any information identifying any person related to, living with, work-
ing for, employing or otherwise associated with a registered sexual
offender shall be excluded from release.
(3) The department shall provide to any person, upon written request and
at a reasonable cost, determined by the department, a photograph of any
registered sexual offender which the department maintains in its central
sexual offender registry. The department shall respond to requests for
photographs within ten (10) working days of receipt.
(4) Fees received by the department pursuant to this section shall be
deposited in the department's miscellaneous revenue fund and used to
support the operation of the central registry. Fees received by the sheriff
pursuant to this section shall be used to defray the cost of sexual offender
registration.
(5) The department shall include a cautionary statement relating to
completeness, accuracy and use of registry information when releasing
information to the public or noncriminal justice agencies as well as a
statement concerning the penalties provided in section 18-8326, Idaho Code,
for misuse of registry information.
(6)
Information released pursuant to this section may be used only for the
protection of the public.
(7)
Further dissemination of registry information by any person or entity
shall include the cautionary statements required in subsection (5) of this
section. [I.C.,
18-8323, as added by 1998, ch. 411, 2, p. 1275; am. 1999,
ch. 302, 7, p. 753; am. 2001, ch. 195, 1, p. 662.]
Compiler's notes. Section 6 of S.L. 1999, statutes and administrative regulations reg-
18-8318. ulating internet communications under com-
Sec. to sec. ref. This section is referred to merce clause and First Amendment of federal
in

18-8404.
constitution. 98 A.L.R.5th 167.
Collateral References. Validity of state
18-8324. Dissemination of registry information.
(1) The depart-

ment shall disseminate any registration information collected under this
chapter, including change of address notification, to criminal justice agen-
cies through the telecommunications system established in section 19-5202,
Idaho Code. Registry information provided under this section shall be used
only for the administration of criminal justice or for the protection of the
public as permitted by this chapter.
(2) The department shall provide quarterly to the superintendent of
public instruction and to the director of the department of health and
welfare a list of all sexual offenders required to register with the central
registry together with the address, date of birth and crime of conviction for
each offender listed. The superintendent may further distribute the list or
portions thereof to school districts or to schools.
(3) The department shall release quarterly to the public a list of offenders
thirty (30) days or more delinquent in maintaining registration or address
verification. Offenders subject to being listed include those who have failed:
(a) To register with a sheriff after initial registration under section
18-8307, Idaho Code;
(b) To register annually as required in section 18-8307, Idaho Code; and
(c) To respond to an address verification notice as required in section
(4) The department shall include a cautionary statement relating to
completeness, accuracy and use of registry information when releasing
information to the public or noncriminal justice agencies as well as a
statement concerning the penalties provided in section 18-8326, Idaho Code,
for misuse of registry information.
(5)
Information released pursuant to this section may be used only for the
protection of the public.
(6) Further dissemination of registry information by any person or entity
shall include the cautionary statements required in subsection (4) of this
section.
(7) Upon registration in a county of a person classified as a violent sexual
predator presenting a high risk of reoffense by the Idaho sex offender
classification board, or an equivalent classification in another state, the
sheriff shall publish in a newspaper in general circulation within the county
once a week for three (3) consecutive weeks, the name, address, photograph
of said person and offense the offender has committed within thirty (30)
days of registration. The sheriff shall charge a fee of fifty dollars ($50.00) in
addition to any other fees authorized by this chapter to be paid by the sex
offender to offset the cost of publication. [I.C.,

18-8324, as added by 1998,
ch. 411, 2, p. 1275; am. 2003, ch.
28, 1, p. 100.]
(1) No person or govern-

mental entity, other than those specifically charged in this chapter with a
duty to collect information under this chapter regarding registered sexual
offenders, has a duty to inquire, investigate or disclose any information
regarding registered sexual offenders.
(2) No person or governmental entity, other than those specifically
charged in this chapter with an affirmative duty to provide public access to
information regarding registered sexual offenders, shall be held liable for
any failure to disclose any information regarding registered sexual offenders
to any other person or entity.
(3) Every person or governmental entity who, acting without malice or
criminal intent, obtains or disseminates information under this chapter
shall be immune from civil liability for any damages claimed as a result of
such disclosures made or received. [I.C.,

18-8325, as added by 1998, ch.
411, 2, p. 1275.]
18-8326. Penalties for vigilantism or other misuse of information
obtained under this chapter.

Any person who uses information
obtained pursuant to this chapter to commit a crime or to cause physical
harm to any person or damage to property shall be guilty of a misdemeanor
and, in addition to any other punishment, be subject to imprisonment in the
county jail for a period not to exceed one (1)
year, or by a fine not to exceed
one thousand dollars ($1,000) or both. [I.C.,

18-8326, as added by 1998, ch.
411, 2, p. 1275.]
7-805. in

18-8323 and 18-8324.
18-8327. Adult criminal sex offender
Prohibited employment.
(1) Except as provided in section 18-8328, Idaho Code, it is a felony for

any person to: apply for or to accept employment at a day care center, group
697 JUVENILE OFFENDER REGISTRATION ACT 18-8328
day care facility or family day care home; or to be upon or to remain on the
premises of a day care center, group day care facility or family day care home
while children are present, other than to drop off or pick up the person's
child or children if the person is currently registered or is required to
register under the sex offender registration act as provided in chapter 83,
(2) The owner or operator of any day care center, group day care facility
or family day care home who knowingly employs a person or who knowingly
accepts volunteer services from a person, which person is currently regis-
tered or is required to register under the sex offender registration act as
provided in chapter 83, title 18, Idaho Code, to work in the day care center,
group day care facility or family day care home is guilty of a misdemeanor
unless judicial relief has been granted pursuant to section 18-8328, Idaho
Code. [I.C.,
18-8327, as added by 2004, ch. 270, 1, p. 752.]
18-8414. in

18-8307 and 18-8328.
18-8328. Action for relief by offender or juvenile offender.
Any
person who is required to register pursuant to chapter 83, title 18, Idaho
Code, or chapter 84, title 18, Idaho Code, may file a petition in a district
court in the judicial district where the person resides, to have relief from the
provisions of section 18-8327 or 18-8414, Idaho Code, pertaining to employ-
ment in or being upon or remaining on the premises of a day care center,
group day care facility or family day care home while children are present,
other than to drop off or pick up the sex offender's or juvenile sex offender's
child or children. To be granted relief pursuant to this section, the person
shall show by clear and convincing evidence that the person required to
register pursuant to-chapter 83, title 18, Idaho Code, or chapter 84, title 18,
Idaho Code, does not pose a threat to children in a day care center, group day
care facility or family day care home, it has been at least ten (10) years since
the person's last conviction, finding of guilt or adjudication that required the
person to register pursuant to chapter 83, title 18, Idaho Code, or chapter
84, title 18, Idaho Code, and the petitioner presents testimony from a
licensed physician or psychologist about the petitioner's chance of success of
not committing an act against children. [I.C.,

18-8328, as added by 2004,
ch. 270, 6, p. 752.]
18-8407. in

18-8414 and 18-8327.
CHAPTER 84
JUVENILE SEX OFFENDER REGISTRATION NOTIFICATION AND COMMUNITY
RIGHT-TO-KNOW ACT
Notification of duty to register

Probation.
Notification of duty to register

Prior to release.
SECTION. SECTION.
18-8401. Short title. 18-8405.
18-8402. Findings.
18-8403. Definitions. 18-8406.
18-8404. Juvenile sex offender registry.
SECTION. SECTION.
18-8407. Annual registration. 18-8412. Exemption from civil liability.
18-8408. Providing list to superintendent of 18-8413. Penalties for vigilantism or other
public instruction. misuse of information ob-
18-8409. Failure to register, penalties. tained under this chapter.
18-8410. Transfer to adult registry. 18-8414. Juvenile sex offender
Prohibited
18-8411. Juveniles convicted as adults. employment.
This chapter shall be known and may be cited

as the "Juvenile Sex Offender Registration Notification and Community
Right-to-Know Act." [I.C.,

18-8401, as added by 1998, ch. 412, p. 1298.]
Sec. to sec. ref. This chapter is referred to tion, and application of state statutes autho-
in
18-8327, 18-8328 and 18-8414. rizing community notification of release of
Collateral References. Validity, construe- convicted sex offender. 78 A.L.R.5th 489.
18-8402. Findings.
The legislature finds that juvenile sex offenders

present a significant risk of reoffense and that efforts of law enforcement
agencies to protect communities, conduct investigations and quickly appre-
hend offenders who commit sex offenses are impaired by the lack of
information available about individuals who have been convicted or adjudi-
cated delinquent of sex offenses who live within their jurisdiction. The
legislature further finds that providing public access to certain information
about sex offenders assists parents in the protection of their children.
Further, such access provides a means for organizations that work with
youth or other vulnerable populations to prevent juvenile sex offenders from
threatening those served by the organizations. Finally, public access assists
the public to be observant of convicted juvenile sex offenders in order to
prevent the offenders from recommitting sex crimes. Therefore, this state's
policy is to assist efforts of local law enforcement agencies to protect
communities by requiring juvenile sex offenders to register with local law
enforcement agencies and to make certain information about juvenile sex
offenders available to the public as provided in this chapter. [I.C.,

18-
8402, as added by 1998, ch. 412, p. 1298.]
As used in this chapter, "juvenile sex offender"

means a person who was between fourteen (14) years of age to eighteen (18)
years of age at the time the qualifying sex offense was committed and who:
(1) On or after July 1, 1998, was adjudicated delinquent under the
juvenile corrections act for an action that would be an offense enumerated in
section 18-8304, Idaho Code, if committed by an adult; or
(2) As of July 1, 1998, is serving formal probation, a period of detention,
or commitment to the department of juvenile corrections as the result of
sentencing imposed under section 20-520, Idaho Code, for an action that
would be an offense enumerated in section 18-8304, Idaho Code, if commit-
ted by an adult; or
(3) Was adjudicated delinquent in another state for an action that is
substantially equivalent to the offenses enumerated in section 18-8304,
Idaho Code, and is subject on or after July 1, 1998, to Idaho court
jurisdiction under the interstate compact on juveniles; or
(4) Is required to register in another state for having committed a sex
offense in that state regardless of the date of the offense or its adjudication.
[I.C.,
18-8403, as added by 1998, ch. 412, p. 1298.]
18-8404. Juvenile sex offender registry.

The Idaho state police
shall establish and maintain within the central sex offender registry a
separate registry of juvenile sex offenders. The registry shall include
fingerprints, photographs, and information collected from submitted forms
and other communications relating to notice of duty to register, sex offender
registration, and notice of address change. Information in the registry of
juvenile sex offenders is subject to release to criminal justice agencies
pursuant to section 18-8305, Idaho Code, and to the public pursuant to
section 18-8323, Idaho Code. [I.C.,
18-8404, as added by 1998, ch. 412, p.
1298; am. 2000, ch. 469, 32, p. 1450.1
18-8315.
18-8405. Notification of duty to register

Probation.

With
respect to a juvenile sex offender sentenced to probation without a period of
detention, the court shall provide at the time of sentencing written notifi-
cation of the duty to register. The written notification shall be a form
provided by the Idaho state police and shall be signed by the juvenile and
the parents or guardian of the juvenile. One (1) copy shall be retained by the
court, one (1) copy shall be provided to the offender, and one (1) copy shall
be submitted within three (3) working days to the central registry. [I.C.,
18-8405, as added by 1998, ch. 412, p. 1298; am. 2000, ch. 469, 33, p.
1450.]
18-8406. Notification of duty to register

Prior to release.

With respect to a juvenile sex offender sentenced to a period of detention, the
county shall provide, prior to release, written notification of the duty to
register. With respect to a juvenile sex offender committed to the custody of
the department ofjuvenile corrections, the department shall provide, prior
to release, written notification of the duty to register. The written notifica-
tion shall be a form provided by the Idaho state police and shall be signed by
the juvenile and the parents or guardian of the juvenile. One (1) copy shall
be retained by the department of juvenile corrections, one (1) copy shall be
provided to the offender, and one (1) copy shall be submitted within three (3)
working days to the central registry. [I.C.,
18-8406, as added by 1998, ch.
412, p. 1298; am. 2000, ch.
469, 34, p. 1450.]
18-8408.
18-8407. Annual registration.

A juvenile sex offender, other than
one serving a period of detention or committed to the department ofjuvenile
corrections, shall be subject to annual registration and change of name or
address notification pursuant to sections 18-8307 and 18-8309, Idaho Code.
All written notifications of duty to register as provided herein shall
include a warning that it is a felony punishable as provided in section
18-8414, Idaho Code, for a juvenile sex offender to accept employment in any
day care center, group day care facility or family day care home, as those
terms are defined in chapter 11, title 39, Idaho Code, or to be upon or to
remain on the premises of a day care center, group day care facility or family
day care home while children are present, other than to drop off or pick up
the juvenile sex offender's child or children. [I.C.,

1998, ch. 412, p. 1298; am. 2004, ch. 270, 5, p. 752.]
18-8307 and
18-8408. Providing list to superintendent of public instruction.
The Idaho state police shall provide to the superintendent of public

instruction, quarterly and on request, a list of registered juvenile sex
offenders in the state. The superintendent of public instruction subse-
quently shall notify a school district or private school regarding the
enrollment of a registered juvenile sex offender. The superintendent shall
also notify the district or school of the offender's probationary status or
treatment status, if known. [I.C.,
18-8408, as added by 1998, ch. 412, p.
1298; am. 2000, ch. 469, 35, p. 1450.]
18-8406
18-8409. Failure to register, penalties.
(1) Ajuvenile sex offender

who fails to register or provide notification of a change of name or address
is guilty of a misdemeanor.
(2) A parent or guardian of a juvenile sex offender commits the misde-
meanor offense of failure to supervise a child if the offender fails to register
or provide notification of a change of name or address as required by this
section. Aperson convicted of this offense is subject to a fine of not more than
one thousand dollars ($1,000). [I.C.,

18-8409, as added by 1998, ch. 412, p.
1298.]
18-8410. Transfer to adult registry.
When a registered juvenile sex

offender reaches twenty-one (21) years of age, the prosecutor may petition
the court to transfer the offender to the adult registry, subject to the
registration and notification provisions of chapter 83, title 18, Idaho Code. If
the court determines at a hearing that the juvenile sex offender is likely to
pose a threat to the safety of others, the court shall order that the delinquent
act be deemed an adult criminal conviction for the purpose of registration,
notification, and public information access pursuant to chapter 83, title 18,
Idaho Code. If no petition is filed, or if the court determines the juvenile is
not likely to pose a threat to the safety of others, the juvenile shall be deleted
from the registry. [I.C.,
18-8410, as added by 1998, ch. 412, p. 1298.]
18-8411. Juveniles convicted as adults.

The provisions of this
section do not apply to a juvenile who is subject to registration and
notification requirements of chapter 83, title 18, Idaho Code, because the
offender was convicted of a sex offense as an adult. [I.C.,

18-8411, as
added by 1998, ch. 412, p. 1298.]
(1) No person or govern-

mental entity, other than those specifically charged in this chapter with a
duty to collect information under this chapter regarding registered sex
offenders, has a duty to inquire, investigate or disclose any information
regarding registered sex offenders.
(2) No person or governmental entity, other than those specifically
charged in this chapter with an affirmative duty to provide public access to
information regarding registered sex offenders, shall be held liable for any
failure to disclose any information regarding registered sex offenders to any
other person or entity.
(3)
Every person or governmental entity who, acting without malice or
criminal intent, obtains or disseminates information under this chapter
shall be immune from civil liability for any damages claimed as a result of
such disclosures made or received. [I.C.,

18-8412, as added by 1998, ch.
412, p. 1298.]
18-8413. Penalties for vigilantism or other misuse of information
obtained under this chapter.

Any person who uses information
obtained pursuant to this chapter to commit a crime or to cause physical
harm to any person or damage to property shall be guilty of a misdemeanor
and, in addition to any other punishment, shall be subject to imprisonment
in the county jail for a period not to exceed one (1)
year, or by a fine not to
exceed one thousand dollars ($1,000) or both. [I.C.,

1998, ch. 412, p. 1298.]
18-8414. Juvenile sex offender

Prohibited employment.

(1) Except as provided in section 18-8328, Idaho Code, it is a felony for any
person to: apply for or to accept employment at a day care center, group day
care facility or family day care home; or to be upon or to remain on the
premises of a day care center, group day care facility or family day care home
while children are present, other than to drop off or pick up the person's
child or children if the person is currently registered or is required to
register under the juvenile sex offender registration act as provided in
chapter 84, title 18, Idaho Code.
(2) The owner or operator of any day care center, group day care facility
or family day care home who knowingly employs a person or who knowingly
accepts volunteer services from a person, which person is currently regis-
tered or is required to register under the juvenile sex offender registration
act as provided in chapter 84, title 18, Idaho Code, to work in the day care
center, group day care facility or family day care home is guilty of a
misdemeanor unless judicial relief has been granted pursuant to section
18-8328, Idaho Code. [I.C.,

18-8414, as added by 2004, ch. 270, 2, p.
752.]
18-8327 and in

18-8328, 18-8407 and 20-505.
INDEX-TITLE 18
ABANDONMENT.
Airtight containers.
Abandon denned as leaving to attract
children, 18-5817.
Removal of door locks required prior
to abandonment, 18-5816,
18-5818.
Freezers.
Abandon defined as leaving to attract
children, 18-5817.
Removal of door locks.
Required prior to abandonment,
18-5816, 18-5818.
Nonsupport of wife or children,
18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Refrigerators.
Abandon denned as leaving to attract
children, 18-5817.
18-5816, 18-5818.
Vulnerable adults, 18-1505A.
ABDUCTION.
Kidnapping, 18-4501 to 18-4506.
See KIDNAPPING.
ABORTIONS.
Abortions permitted.
Conditions and guidelines, 18-608.
Accessories, 18-606.
Accomplices, 18-606.
Actions.
Partial-birth abortions.
Right to bring civil action, 18-613.
Advertising.
Abortifacients.
Unauthorized sales, 18-607.
Certain advertising for facilitating
abortion prohibited, 18-603.
Aggravated battery, 18-907.
Consent, 18-609.
Minors.
Required consent for abortions for,
18-609A.
Legislative findings and intent,
18-602.
ABORTIONS Cont'd
Consent Cont'd
Refusal to consent by pregnant
woman, 18-610.
Definitions, 18-604, 18-609A.
Partial-birth abortions, 18-613.
Felonies.
Advertising medicines or other
means for facilitating abortion,
18-603.
Soliciting abortion for another,
18-606.
Unlawful abortions, 18-605.
First trimester of pregnancy.
Defined, 18-604.
Permitted abortions, 18-608.
Hospitals.
Civil liability, 18-609, 18-612.
Defined, 18-604.
Identification required, 18-614.
Immunities.
Partial-birth abortion.
Woman upon whom performed,
18-613.
Minors.
Defenses to prosecution for
violations, 18-614.
Identification required to confirm
age, 18-614.
Positive identification.
violations, 18-614.
18-609A.
18-602.
Misdemeanors.
Sales of abortifacients, 18-607.
Notice.
Minor patients.
Required consent for abortions for
minors, 18-609A.
18-602.
Prohibited, 18-613.
Physicians and surgeons.
Civil liability, 18-609, 18-612.
Defined, 18-604.
703
INDEX-TITLE 18 704
ABORTIONS Cont'd
Physicians and surgeons Cont'd
Liability, 18-612.
Persons authorized to perform
abortions, 18-608A.
Policy of state, 18-601.
Positive pregnancy tests.
Tests required prior to performance
of abortion, 18-609.
Procurement of abortion, 18-605.
Prosecution prohibited.
Killing of embryo or fetus, 18-4016.
Refusal to consent, 18-610.
Refusal to perform abortion,
18-612.
Second trimester of pregnancy.
Denned, 18-604.
Severability of provisions, 18-615.
18-606.
Submitting to abortion, 18-606.
Third trimester of pregnancy,
18-604.
ABUSE AND NEGLECT OF
CHILDREN.
Ritualized abuse of child,
18-1506A.
Willfully causing or permitting
children to suffer physical pain
or mental suffering, 18-1501.
ABUSING OR INSULTING
SCHOOL TEACHERS, 18-916.
ACCIDENTS.
Airports.
Use of unauthorized vehicles on
airports.
Unauthorized vehicles involved in
collisions with aircraft,
18-7033.
Crimes and punishment.
crimes, 18-201.
Homicide.
Excusable homicide, 18-4012.
Railroads.
Permitting collision causing death,
18-6001.
ACCOMPLICES AND
ACCESSORIES.
Abortion, 18-606.
Definitions, 18-205.
Principals, 18-204.
ACCOMPLICES AND
ACCESSORIES Cont'd
Electric power.
Stealing electric current.
Accessories liable as principals,
18-4622.
Fugitives from justice.
Harboring person charged with or
convicted of felony, 18-205.
Harboring or protecting persons
charged with crimes, 18-205.
Principals.
Denned, 18-204.
Punishment of accessories, 18-206.
ACCOUNTS AND ACCOUNTING.
Counties.
Fraudulent accounts.
Presentation by officers, 18-2706.
Felonies.
Presentation of fraudulent accounts,
18-2706.
Fraud.
18-2706.
Municipal corporations.
Public officers and employees.
Keeping false accounts, 18-5701.
18-2706.
ACID.
Aggravated assault, 18-905,
18-906.
Aggravated battery, 18-907,
18-908.
ACKNOWLEDGMENTS.
False personation.
Elements of crime, 18-3001.
ACTIONS.
Abortions.
Attorneys at law.
Barratry.
Exciting groundless judicial
proceedings, 18-1001 to
18-1005.
See BARRATRY.
Barratry.
Exciting groundless judicial
proceedings, 18-1001 to
18-1005.
See BARRATRY.
Communications security.
Recovery of civil damages for acts in
violation of chapter, 18-6709.
705 INDEX-TITLE 18
ACTIONS Cont'd
Right to enforce civil remedies
preserved, 18-103.
Elections.
Influencing votes.
Attempting to influence vote by
bringing suit or criminal
prosecution, 18-2319.
Malicious harassment.
Civil cause of action, 18-7903.
Racketeering.
State may file action on behalf of
persons injured, 18-7805.
Weapons.
Firearms.
Civil liability for injury by firearm,
18-3307.
ADOPTION.
Advertising.
Restrictions, 18-1512A.
Advertising violations, 18-1512A.
Sale or barter of child for adoption or
other purposes, 18-1511.
Definitions.
Advertisement, 18-1512A.
Felonies.
Sale or barter of child for adoption,
18-1511.
Financial assistance to birth
parent, 18-1511:
Fines.
18-1511.
Medical bills.
Payment for child to be adopted,
18-1512.
Misdemeanors.
Sentencing.
18-1511.
ADULTERY.
Elements of adultery, 18-6601.
Fines, 18-6601.
Punishment for adultery, 18-6601.
ADVERTISING.
Abortion.
Abortifacients.
Certain advertising for facilitating
abortion prohibited, 18-603.
Adoption.
Restrictions, S18-1512A.
ADVERTISING Cont'd
Birth control.
means for preventing conception,
18-603.
Devices for wire, oral or electronic
communication interception.
Advertising prohibited, 18-6703.
Abortion.
18-603.
Destroying legal notices, 18-3205.
Defacing natural scenic objects,
18-7017.
Fines.
Lotteries.
Assisting in lotteries, 18-4904.
Miscarriages.
means for facilitating
miscarriages, 18-603.
Obscenity.
Advertising of matter represented to
be obscene, 18-4103A.
Destruction of obscene matter or
advertisements of matter
represented to be obscene,
18-4112.
Tape piracy act.
Unlawful advertisements, 18-7603.
Telecommunications services.
Theft of telecommunications services.
Advertising plants for illegal
telecommunications
equipment, 18-6713.
AERONAUTICS.
Aircraft.
Hijacking, 18-7501 to 18-7505. See
within this heading, "Hijacking."
Airline passengers.
Threats made against passengers,
18-7504.
Assault with intent to commit
aircraft hijacking, 18-7502.
Bomb threats.
False reports of explosives to
employees of airlines or airports,
18-3313.
Burglary.
Entering airplanes constitutes
burglary, 18-1401.
INDEX-TITLE 18 706
AERONAUTICS Cont'd
Damages.
Collisions between unauthorized
vehicles and aircraft.
Liability for damages, 18-7033.
Definitions.
Aircraft hijacking, 18-7501.
Explosives.
False reports of explosives made to
employees of airports or airline,
18-3313.
Felonies.
Threats made against airline
passengers, other persons,
commercial airline companies or
aircraft, 18-7504.
Weapons.
Bringing weapons aboard aircraft,
18-7503.
Fines.
Weapons.
18-7503.
Hijacking.
Aircraft hijacking.
Denned, 18-7501.
Elements of aircraft hijacking,
18-7501.
Indictments, 18-7505.
Kidnapping, 18-7504.
Penalties.
Trial jurisdiction, 18-7505.
Weapons.
Carrying weapons aboard aircraft,
18-7503.
Indictments.
Jurisdiction.
Aircraft hijacking.
Motor vehicles.
airports, 18-7033.
Penalties.
Searches and seizures.
Consent to search or screening,
18-7503.
Refusal to submit to search or
screening, 18-7503.
Telephones.
passengers, 18-7504.
AERONAUTICS Cont'd
Threats.
Trials.
Aircraft hijacking.
Weapons.
18-7503.
AEROSOL SPRAYS.
Possession of inhalants by minors,
18-1502B.
AFFIDAVITS.
Obscenity.
Search warrants.
Affidavit filed with magistrate,
18-4111.
AGE.
Alcoholic beverages.
Violations constitute misdemeanor,
18-1502.
Beer.
18-1502.
Criminal trial of juveniles barred,
18-216.
Rape.
Age of female, 18-6101.
Proof of physical ability, 18-6102.
AGENTS.
Corporations.
Falsification of corporate books,
18-1905.
False statements by agents as to
price or quality of property,
18-3105.
Fines.
price, quality or quantity of
property, 18-3105.
AGGRAVATED ARSON, 18-805.
AGGRAVATED ASSAULT, 18-905,
18-906.
AGGRAVATED BATTERY, 18-907,
18-908.
AGGRESSION COUNSELING.
Domestic violence.
Sentencing, 18-918.
AGRICULTURE.
Agricultural research.
Interference, 18-7040.
Solicitation to hold to impede lawful
agricultural practices, 18-2005.
707 INDEX-TITLE 18
AGRICULTURE Cont'd
Crops.
Injuries to crops, 18-7014.
Motor vehicles.
Driving vehicles onto private land
devoted to cultivated crops,
18-7011.
AIDING AND ABETTING.
Elections.
Aiding and abetting election offenses,
18-2312.
Electric power.
18-4622.
Jurisdiction.
persons, 18-202.
Mentally ill.
Encouraging lunatics or idiots to
commit crimes, 18-204.
Minors.
Encouraging children under age
fourteen, 18-204.
Misdemeanors, 18-304.
Persons outside state.
Aiding or encouraging to commit
crime within state, 18-202.
Principals.
Denned, 18-204.
Prostitution.
Harboring prostitutes, 18-5608.
AIRCRAFT.
Arson in second degree.
Burning of structure, 18-803.
Structure denned, 18-801.
Hijacking, 18-7501 to 18-7505.
See AERONAUTICS.
AIR PIRACY.
Aircraft hijacking, 18-7501 to
18-7505.
See AERONAUTICS.
AIRPORTS.
Accidents.
airports.
Unauthorized vehicles involved in
collisions with aircraft,
18-7033.
airport, 18-7033.
AIRPORTS Cont'd
Hijacking, 18-7501 to 18-7505.
See AERONAUTICS.
Liability.
Misdemeanors.
airports, 18-7033.
Motor vehicles.
airports, 18-7033.
AIRTIGHT CONTAINERS.
Abandonment.
"Abandon" defined as leaving to
attract children, 18-5817.
18-5816.
18-5818.
Misdemeanors.
Abandonment without removing door
locks.
18-5818.
ALCOHOL.
Sales.
Manufacture or sale of denatured
alcohol.
Regulation of sale and transfer,
18-5502.
ALCOHOLIC BEVERAGES.
Age.
18-1502.
Age violations, 18-1502.
Intoxication no excuse for crime,
18-116.
Persons occasioning the drunkenness
of another.
Definition of principal, 18-204.
Drivers' licenses.
Beer, wine or other alcohol age
violations.
Suspension of license, 18-1502.
Fines.
Ignition interlock devices,
18-8008 to 18-8010.
Intent.
When jury may take into
consideration intoxication of
accused, 18-116, 18-207.
INDEX-TITLE 18 708
s or
ALCOHOLIC BEVERAGES Cont'd
Intoxicated persons.
Voluntary intoxication no excuse for
crime, 18-116.
Minors.
Misdemeanors.
Motor vehicles.
Ignition interlock devices, 18-8008
to 18-8010.
Acting as physician while
intoxicated, 18-4202.
Weapons.
Concealed weapons.
Carrying under the influence of
alcohol, 18-3302B.
ALIENS.
Weapons.
Concealed weapons.
Licenses to carry.
Illegal aliens ineligible,
18-3302.
ALLEYS.
Littering.
Penalty for placing debris in alley
highways, 18-3906.
AMMUNITION.
Minors.
Selling ammunition to minors,
18-3308.
AMUSEMENT RESORTS.
Civil rights.
Right to full enjoyment of
accommodations constitutes civil
right, 18-7301.
AMYGDALIN.
Freedom of choice in treatment,
18-7301A.
ANAESTHETICS.
Felonious administering of drugs,
18-913, 18-914.
Rape by dentists.
Accomplishing rape by use of
anaesthetics, 18-6101.
ANCESTRY.
Discrimination.
Discrimination because of ancestry
prohibited, 18-7301.
ANIMALS.
Buildings.
Dead animals.
Leaving carcasses near dwellings,
18-5807.
ANIMALS Cont'd
Accelerant detection dogs.
Killing and otherwise mistreating,
18-7039.
Dead animals.
Exposure of animal carcasses,
18-5803.
dwellings and streams and
pollution of water used for
domestic purposes, 18-5807.
Destroying livestock, 18-7038.
Permitting mischievous animals to
run at large, 18-5808.
Police dogs and horses.
18-7039.
Search and rescue dogs.
18-7039.
Slaughter and sale of famished
animals, 18-5804.
Unauthorized release of certain
animals, birds or aquatic species,
18-7037.
Damages.
animals, birds or aquatic species.
Dead animals.
18-5803.
dwellings and streams, 18-5807.
Felonies.
Killing or seriously injuring,
18-7039.
Mischievous animals.
Permitting at large, 18-5808.
18-7039.
18-7039.
Fines.
Leaving carcasses near highway,
dwellings, streams, etc., and
polluting water used for domestic
purposes, 18-5807.
Food.
animals, 18-5804.
709 INDEX-TITLE 18
ANIMALS Cont'd
Highways.
Dead animals.
18-5807.
Putting dead animals on public
highways or roads, 18-5803.
Killing human beings.
Misdemeanors.
Injuring or interfering with,
18-7039.
18-5803.
purposes, 18-5807.
18-7039.
18-7039.
animals, 18-5804.
Rivers.
Dead animals.
Putting animal carcasses in rivers,
18-5803.
Running at large.
Sales.
Famished animals, 18-5804.
Slaughtering.
Famished animals.
Sale and slaughter of famished
animals, 18-5804.
Trespass.
Fur-bearing animals.
Trespass on enclosure, 18-7015.
Waters of the state.
Dead animals.
Pollution of water used for
creeks, etc., 18-5803.
ANNULMENT OF MARRIAGE.
Bigamy.
Exceptions to bigamy prohibition,
18-1102.
ANTI-GAMBLING ACT.
Gambling generally, 18-3801 to
18-3810.
See GAMBLING.
ANTIQUE SLOT MACHINES.
Operation prohibited, 18-3810.
Possession lawful, 18-3810.
APARTMENTS.
Burglary, 18-1401.
Unlawful entry, 18-7034.
APPEALS.
Sexual offender registration
notification and community
right-to-know.
Violent sexual predators.
Judicial review of offender's
challenge to designation,
18-8321.
APPEARANCES.
Default in required appearance,
18-7401.
Failure to appear.
Bail jumping, 18-7401.
AQUACULTURE.
Damage to operations, 18-7041.
ARCHAEOLOGY.
Disturbing artifacts found in caves
or caverns, 18-7035.
ARREST.
Constables.
Refusal to make arrest, 18-701.
Coroners.
Elections.
Duty of officers, sheriffs,
constables, etc., to make
arrest, 18-2318.
Illegal arrest, 18-703.
Jailers.
Refusal of jailkeepers to make arrest,
18-701.
Misdemeanors.
Illegal arrests, 18-703.
Police.
Posse comitatus.
Refusing assistance to officers,
18-707.
Illegal arrests and seizures, 18-703.
Railroads.
engineers to arrest, 18-4618.
INDEX-TITLE 18 710
ARREST Cont'd
Refusal of officer to make arrest,
18-701.
Resisting arrest, 18-705.
Sheriffs.
Warrantless arrest.
No contact order violations, 18-920.
ARSON, 18-801 to 18-805.
Aggravated arson, 18-805.
First degree arson.
structures where persons
normally present, 18-802.
Grain.
Firing timber or prairie lands,
18-7004.
Homicide.
Murder committed in perpetration of
or attempt to perpetrate arson,
18-4003.
Murder.
18-4003.
Prairie lands.
18-7004.
Second degree arson.
Third degree arson.
Burning of real or personal property
or forest land, 18-804.
Trees and timber.
18-7004.
ARSON CANINES.
Killing or otherwise mistreating
accelerant detection dogs,
18-7039.
ARTS AND HUMANITIES.
Art works.
Injuring or destroying, 18-7021.
Works of art.
Injuring or destroying, 18-7021.
ASSAULT AND BATTERY, 18-901
to 18-919.
18-906.
18-908.
Murder committed on child under
twelve years of age, 18-4003.
Assault, 18-901, 18-902.
ASSAULT AND BATTERY Cont'd
serious felony, 18-909, 18-910.
Battery, 18-903, 18-904.
Battery with intent to commit
Domestic violence, 18-918.
18-913, 18-914.
Guide dogs, 18-5812.
Handicapped persons, 18-5812.
Hazing, 18-917.
Hijacking.
Homicide.
Aggravated battery on child under
Juvenile corrections.
Detention facilities personnel,
18-915.
Minors.
Murder.
Sexual battery of minor child,
18-1508A.
Murder.
Assault with intent to murder,
18-4015.
No contact orders, 18-920 to
18-922.
Peace officers.
Assault or battery upon certain
personnel, 18-915.
Removing a firearm from a law
enforcement officer, 18-915A.
Unnecessary assaults by officers,
18-706.
Police.
18-706.
Pregnant victim.
Enhanced punishment for battery,
18-904.
18-706.
18-1508A.
Sexual exploitation by medical
care provider, 18-919.
18-706.
711 INDEX-TITLE 18
ASSAULT AND BATTERY Cont'd
Weapons.
Deadly weapons.
Possession with intent to assault,
18-3301.
ASSAULT WEAPONS.
Full automatic weapons.
Defined, 18-3302F.
Possession by minors, 18-3302F.
Exceptions, 18-3302G.
ASSEMBLY.
Disturbing the peace, 18-6410.
ATM'S.
Automatic banking device fraud,
18-3122 to 18-3128.
See CREDIT CARDS.
ATTEMPTS.
Attempt resulting in different
crime, 18-307.
Conviction of attempt when crime
is consummated, 18-305.
Prisons and prisoners.
Rescuing prisoners, 18-2501.
Punishment for attempts, 18-306.
Solicitation.
Punishment for criminal solicitation.
Punishment same extent as for
attempt to commit crime,
18-2004.
ATTORNEY GENERAL.
Bribery.
Actions.
Power to bring action, 18-1362.
Racketeering.

Seizure of property authorized by
court, 18-7804.
ATTORNEYS AT LAW.
Attorney defending himself in
person in either civil or
criminal action, 18-1005.
Attorney defending when partner
prosecutes, 18-1004.
Barratry, 18-1001 to 18-1005.
See BARRATRY.
Purchasing evidence of debt,
18-1003.
Barratry, 18-1001 to 18-1005.
See BARRATRY.
Test of driver for alcohol
concentration.
No right to consult with attorney
before submitting to test,
18-8002.
ATTORNEYS AT LAW Cont'd
Groundless judicial proceedings.
Barratry, 18-1001 to 18-1005.
See BARRATRY.
Misdemeanors.
Purchase of evidence of debt,
18-1003.
Motor vehicles.
concentration.
18-8002.
Partners.
18-1003.
ATTRACTIVE NUISANCES,
18-5816 to 18-5818.
AUDIO TAPES.
Tape piracy act, 18-7601 to
18-7608.
See TAPE PIRACY ACT.
AUDITS AND AUDITORS.
Escape.
Costs of prosecution.
Audit by board of examiners,
18-2507.
AUTOMATIC TELLER MACHINES.
Automated banking device fraud,
18-3122 to 18-3128.
See CREDIT CARDS.
AUTOMATIC WEAPONS.
Defined, 18-3302F.
AVIATION.
Aircraft.
Hijacking, 18-7501 to 18-7505.
See AERONAUTICS.
B
BABY FOOD OR INFANT
FORMULA.
Unused merchandise ownership
protection.
Prohibited sale of certain
merchandise, 18-2418.
INDEX-TITLE 18 712
BABY SELLING, 18-1511.
BAIL AND RECOGNIZANCE.
Bail jumping.
18-7401.
False personation.
Jumping bail, 18-7401.
Support and maintenance.
Disposition of proceeds of forfeited
recognizance, 18-404.
BAILIFFS.
Assault or battery upon, 18-915.
BAIL JUMPING.
18-7401.
BANK CARDS.
Fraud.
Automated banking devices,
18-3122 to 18-3128.
See CREDIT CARDS.
BANKS AND FINANCIAL
INSTITUTIONS.
Credit cards.
Fraud.
18-3122 to 18-3128.
See CREDIT CARDS.
Crimes and offenses.
Automated banking devices.
Fraud, 18-3122 to 18-3128.
See CREDIT CARDS.
Forgery and counterfeiting.
Credit card sales draft, 18-3123.
Financial transaction card, 18-3123.
Financial transaction card account
number, 18-3123.
Possession of forged bank bills or
checks, 18-3605.
Fraud.
Credit cards.
18-3122 to 18-3128.
See CREDIT CARDS.
BARNS.
Burglary, 18-1401.
BARRATRY.
Attorneys defending themselves in
person in either civil or
criminal actions, 18-1005.
Common barratry.
Denned, 18-1001.
Proof of common barratry, 18-1002.
BARRATRY Cont'd
Common barratry Cont'd
Punishment, 18-1001.
Debts.
18-1003.
Evidence.
18-1003.
Fines.
Common barratry, 18-1001.
Misdemeanors.
18-1003.
Proof of common barratry,
18-1002.
Prosecuting attorneys.
BATTERY.
Generally, 18-901 to 18-919.
See ASSAULT AND BATTERY.
BEER.
Age.
18-1502.
Minors.
BETTING ON ELECTIONS,
18-2314.
BIDS AND BIDDING.
Motion picture fair bidding act,
18-7701 to 18-7708.
See MOTION PICTURES.
BIGAMY.
Annulment of marriage.
18-1102.
Defined, 18-1101.
Exceptions, 18-1102.
Felonies, 18-1103.
Marrying spouse of another,
18-1104.
Fines, 18-1103.
18-1104.
18-1104.
Void, annulled or dissolved
marriages.
18-1102.
713 INDEX-TITLE 18
BILLS.
Alteration of bills, 18-4701.
Felonies.
BILLS OF SALE.
Forest products.
Transportation without bill of sale or
other documentation, 18-4629.
BIRDS.
18-7037.
Damages.
Misdemeanors.
18-7037.
BIRTH CONTROL.
Advertising.
means for preventing conception,
18-603.
Providing examinations,
prescriptions and informational
materials, 18-603.
BLACK MARKET BABIES, 18-1511.
BLIND PERSONS..
Assault and battery, 18-5812.
Avoiding accident or injury to
disabled person, 18-5811.
Canes.
Blind persons only may use white or
red and white canes, 18-5810.
Common carriers.
Guide dogs.
Persons may be accompanied by
dog being trained to become
guide dog, 18-5812B.
Elevators.
Denial of blind persons accompanied
by guide dogs, 18-5812A.
Guide dogs.
Guide dogs.
Intentional interference with,
18-5811.
Liability of damages caused by guide
dogs, 18-5812A.
BLIND PERSONS Cont'd
Guide dogs Cont'd
Persons may be accompanied by dog
being trained to become guide
dog, 18-5812B.
Unlawful use of assistance device or
dog, 18-5811A.
Highways.
Canes.
Color of canes, 18-5810.
Hotels, inns and other transient
lodging places.
Guide dogs.
Denying blind persons admission,
18-5812A.
Person may be accompanied by dog
dog, 18-5812B.
Intentional actions toward,
prohibitions, 18-5811.
Liability.
Damages caused by guide dogs,
18-5812A.
Misdemeanors.
Guide dogs.
Persons accompanied by dog being
trained to become guide dog.
Violations, 18-5812B.
Violations of section, 18-5812A.
Motor vehicles.
Color of canes used by blind persons,
18-5810.
BOARDS AND COMMISSIONS.
Smoking during public meetings.
Prohibited, 18-5904.
BOATS AND BOATING.
Building of structure, 18-803.
BODY PIERCING OF MINORS,
18-1523.
BOMBS AND DESTRUCTIVE
DEVICES, 18-3318 to 18-3321.
Disposal, 18-3320A.
Evidence.
Disposal.
Photograph, videotape, or similar
record, 18-3320A.
Exemptions, 18-3321.
Unlawful possession, 18-3319.
Unlawful use, 18-3320.
BOMB THREATS.
False reports of explosives in
public or private places,
18-3313.
INDEX-TITLE 18 714
BONDS, SURETY.
False personation.
BOOKMAKING, 18-3809.
BOUNDARIES.
Obliterating and defacing
monuments, 18-7016.
Destroying posts or monuments
indicating claims, 18-7023.
Misdemeanors.
monuments, 18-7016.
Monuments.
Obliterating and defacing,
18-7016.
monuments, 18-7016.
BOUNTY CLAIMS.
Presenting false bounty claims,
18-2706.
BOXING, SPARRING AND
WRESTLING.
Hazing, 18-917.
BRANDING OF MINORS, 18-1523.
BRANDS AND MARKS.
Trees and timber.
Defacing marks on logs or lumber,
18-4616.
BREAKING AND ENTERING.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
BREATH ALCOHOL ANALYZED
IGNITION EQUIPMENT.
18-8008 to 18-8010.
BRIBERY.
Administrative proceeding.
Denned, 18-1351.
Arbitrators or umpires, 18-1301.
Attempts to influence arbitrators,
18-1304.
Misconduct of arbitrators,
18-1305.
Receipt of bribe by officers,
18-1302.
Attorney general.
Actions.
Power to bring action, 18-1362.
Benefits.
Defined, 18-1351.
Bribery and corrupt influence.
Defined, 18-1351.
BRIBERY Cont'd
Bribery and corrupt influence
Cont'd
Benefits.
Defined, 18-1351.
Compensating public servants for
assisting private interests in
relationship to matters before
him, 18-1357.
Compensation for past official
behavior, 18-1354.
Gifts to public servants by persons
subject to their jurisdiction,
18-1356.
Government.
Defined, 18-1351.
Harm.
Defined, 18-1351.
Injunctions.
Actions for, 18-1362.
Official and political matters,
18-1352.
Official proceeding.
Defined, 18-1351.
Party official.
Defined, 18-1351.
Pecuniary benefit.
Defined, 18-1351.
Penalties.
Violations generally, 18-1360.
Personal gain.
Using public position for,
18-1359.
Public servant.
Defined, 18-1351.
Restitution.
Action to require restitution,
18-1362.
Violations generally,
18-1360.
Selling political indorsements,
18-1358.
Threats against state official,
18-1353A.
Threats and other improper influence
in official and political matters,
18-1353.
Using public position for personal
gain, 18-1359.
Authorization for interception of
communications
,
18-6706.
behavior, 18-1354.
715 INDEX-TITLE 18
BRIBERY Cont'd
Constables.
Bribery of municipal or county
officers, 18-1309.
Contracts.
Officials concerned with government
contracts and pecuniary
transactions.
18-1356.
Self-interested contracts, 18-1361.
Noncompensated appointed
public servant, 18- 136LA.
gain.
Interest in contracts, 18-1359.
Counties.
Bribery of county officers, 18-1309.
Definitions.
Administrative proceeding, 18-1351.
Benefits, 18-1351.
Bribery and corrupt influence,
18-1351.
Confidential information, 18-1351.
Government, 18-1351.
Harm, 18-1351.
Official proceeding, 18-1351.
Party official, 18-1351.
Pecuniary benefit, 18-1351.
Public servant, 18-1351.
Special influence, 18-1358.
Elections.
Influencing votes of electors,
18-2320.
Evidence.
Incriminating testimony, 18-1308.
Executive officers, 18-2701.
Application of chapter, 18-2711.
Asking for or receiving bribes,
18-2702.
Asking for or receiving rewards,
18-2704.
Buying appointments, 18-2707.
Presentation of fraudulent
accounts, 18-2706.
Making appointments for reward,
18-2708.
Officers not to purchase scrip,
18-2705.
Felonies.
Bribery in official and political
matters, 18-1352.
Bribery of judicial officers, 18-1301.
Asking or receiving bribes,
18-2702.
BRIBERY Cont'd
Felonies Cont'd
Influencing jurors and arbitrators,
18-1304.
Legislators receiving bribes,
18-4704.
Misconduct of jurors and arbitrators,
18-1305.
Municipal or county officers,
18-1309/
Offering bribes to legislators,
18-4704.
Officers purchasing scrip, 18-2705.
Receipt of bribe by officers, 18-1302.
Fines.
Executive officers.
Purchasing scrip, 18-2705.
18-2708.
Forfeitures.
Executive officers.
Asking for or receiving bribes.
Forfeiture of office, 18-2702.
Judicial officers convicted of crime,
18-1307.
Making appointments for reward.
Forfeiture of public office,
18-2708.
18-1356.
Government.
Defined, 18-1351.
Governor.
Asking for or receiving bribes,
18-2702.
18-2704.
Bribing executive officers, 18-2701.
Harm.
Defined, 18-1351.
Injunctions.
Actions to enjoin violations,
18-1362.
Judges, 18-1301.
18-1356.
Judicial officers, 18-1301.
Acceptance of rewards, 18-1303.
Forfeiture of office upon conviction,
18-1307.
Receipt of bribe by officer, 18-1303.
Jury.
Attempt to influence jurors,
18-1304.
INDEX-TITLE 18 716
BRIBERY Cont'd
Jury Cont'd
Misconduct of jurors, 18-1305.
Receipt of bribe by jurors, 18-1302.
Legislature.
Gifts to legislative officials by
persons subject to their
jurisdiction, 18-1356.
18-4703.
Receiving bribes by legislators,
18-4704.
Acceptance of rewards by judicial
officers, 18-1303.
behavior, 18-1354.
Executive officers.
18-2704.
18-2708.
Paying compensation to public
servants, 18-1357.
Retaliation for past official action,
18-1355.
Special influence.
Paying for indorsement or special
influence, 18-1358.
18-1353.
Witnesses.
Bribing witnesses, 18-2605.
Receiving of bribe by witness,
18-2606.
Bribery of municipal officers,
18-1309.
Offenses relating to bribery,
18-1308.
18-1352.
Defined, 18-1351.
Party official.
Defined, 18-1351.
Past official behavior.
Accepting or soliciting compensation
for past official behavior,
18-1354.
18-1355.
Pecuniary benefit.
Defined, 18-1351.
Police.
officers, 18-1309.
BRIBERY Cont'd
Political indorsements.
Sales, 18-1358.
officers, 18-1309.
Public servant.
Defined, 18-1351.
Receipt of bribe by officers,
18-1302.
Receiving compensation for
assisting private interests,
18-1357.
Referees, 18-1301.
Receipt of bribe by referee, 18-1302.
Restitution.
18-1362.
Violations of provisions, 18-1360.
Rewards.
Acceptance by judicial officers,
18-1303.
Executive officers.
Asking or receiving rewards,
18-2704.
Scrip.
Executive officers.
Purchasing scrip prohibited,
18-2705.
Self-incrimination.
Incriminating testimony may be
required, 18-1308.
Selling political indorsements,
18-1358.
Sheriffs.
officers, 18-1309.
Special influence.
Defined, 18-1358.
influence, 18-1358.
Witnesses.
Giving or offering bribes to
witnesses, 18-2605.
18-2606.
BRIDGES.
Structure defined, 18-801.
Injuring bridges, 18-7019.
Toll bridges.
Evasion of toll, 18-3910.
717 INDEX-TITLE 18
BROKERS.
False statements by brokers as to
18-3105.
Fines.
property, 18-3105.
Misdemeanors.
property, 18-3105.
BROTHELS.
Houses of prostitution.
Denned, 18-5613.
BUILDINGS.
Animals.
Dead animals.
Leaving carcasses near dwellings,
18-5807.
Arson, 18-801 to 18-805.
First degree arson, 18-802.
Second degree arson, 18-803.
Third degree arson, 18-804.
Breaking and entering.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
t
Firearms.
Unlawful discharge at occupied
building, 18-3317.
Lotteries.
Permitting premises to be used for
lottery, 18-4908.
Misdemeanors.
Weapons.
building, 18-3317.
BURDEN OF PROOF.
Obscenity.
Affirmative defenses.
Prosecution must sustain burden
where affirmative defense
raised, 18-4102.
Possession of marijuana or drug
paraphernalia by minor.
Suspension of driving privileges.
Request for restricted driving
privileges, 18-1502C.
BURDEN OF PROOF Cont'd
right-to-know.
18-8321.
Violent sexual predators moving
from other states, 18-8322.
BURGLARIOUS INSTRUMENTS
OR TOOLS.
Possession, 18-1406.
BURGLARY, 18-1401.
Explosives.
Use of explosives in burglary,
18-1405.
Felonies, 18-1403.
Burglary with explosives, 18-1405.
Homicide.
or attempt to perpetrate
burglary, 18-4003.
Murder.
burglary, 18-4003.
Possession of burglarious
instruments, 18-1406.
Sentencing.
Prison terms, 18-1403, 18-1405.
Tools or instruments.
Possession of, 18-1406.
BURIAL.
Disinterment.
Unlawful removal of human remains,
18-7028.
BURIED IRRIGATION CONDUITS.
Change, 18-4308.
BUSINESS CORPORATIONS.
Dividends.
Illegal dividends and reductions of
capital, 18-1904.
Names.
Use of false name in prospectus,
18-1903.
Stated capital.
Illegal reductions of capital,
18-1904.
Stock and stockholders.
Dividends.
capital, 18-1904.
INDEX-TITLE 18 718
BUSINESSES.
Arson in first degree.
Burning of business establishment,
18-802.
CALISTHENICS.
Hazing, 18-917.
CAMPERS.
Weapons.
Unlawful discharge of firearm at
inhabited camper, 18-3317.
CAMP FIRES.
Fire protection.
Permitting fire to spread, 18-7004.
CANALS.
Fines.
Injuring canals, 18-7019.
CANCER.
Laetrile.
18-7301A.
CANNIBALISM.
Defenses.
Affirmative defense, 18-5003.
Defined, 18-5003.
CAPITAL PUNISHMENT.
Kidnapping.
Finding of statutory aggravating
circumstances, 18-4505.
First degree kidnapping.
Notice of intent to seek death
penalty, 18-4504A.
Penalty for first degree
kidnapping, 18-4504.
Presentence investigations.
Duty of court to order
investigation, 18-4505.
Murder.
First degree murder, 18-4004.
penalty, 18-4004.
penalty, 18-4004, 18-4004A.
Perjury.
Perjury resulting in execution of
innocent person punishable by
death, 18-5411.
CARD GAMES.
18-3810.
See GAMBLING.
CAREY ACT LANDS.
Lotteries.
Carey Act land drawings.
Exceptions to lottery provisions,
18-4909.
CAR KEY SIMULATION, 18-3613.
CARPORTS.
CASH MACHINE FRAUD.
Generally, 18-3122 to 18-3128.
See CREDIT CARDS.
CASSETTE TAPE PIRACY.
Generally, 18-7601 to 18-7608.
CATTLE.
Railroads.
Obstructing or interfering with,
18-6010.
CAUSTIC CHEMICALS.
18-906.
18-908.
CAVERNS.
Damaging caves or caverns,
18-7035.
Penalties.
Damaging caverns, 18-7035.
Stalactites.
Damaging stalactites, 18-7035.
CD PIRACY.
Generally, 18-7601 to 18-7608.
CELLULAR TELEPHONES.
Theft of telecommunications
services, 18-6713.
CEMETERIES.
Crypts.
Desecration of crypts, 18-7027.
Desecration of graves, cemeteries,
headstones or burial places,
18-7027.
Dissection.
Removal of human remains for
purposes of dissection, 18-7028.
Felonies.
18-7028.
Fines.
Desecrating graves, cemeteries, etc.,
18-7028.
719 INDEX-TITLE 18
CEMETERIES Cont'd
Headstones.
Desecration of headstones, 18-7027.
Mausoleums.
Desecrating, 18-7027.
Misdemeanors.
Desecrating grave, cemetery,
headstone or burial places,
18-7027.
Penalties.
Desecrating graves or burial places,
18-7028.
Removal of human remains,
18-7028.
Sentencing.
18-7028.
CHAMPERTYAND
MAINTENANCE.
Attorneys at law.
18-1003.
Misdemeanors.
18-1003.
Buying evidence of debt or action,
18-1003.
Purchasing evidence of debt or
action, 18-1003.
CHANGE OF NAMES.
Sexual offenders.
Restrictions on name changes.
Registration notification and
community right-to-know,
18-8309.
CHECKS.
Bad checks.
Drawing checks without funds or
with insufficient funds, 18-3106.
Intent.
Prima facie evidence of intent,
18-3106.
Probation conditions, 18-3106.
Standing of person having acquired
rights, 18-3106.
Uttering, 18-3106.
with insufficient funds,
18-3106.
rights, 18-3106.
CHECKS Cont'd
Evidence.
with insufficient funds.
18-3106.
Fines.
insufficient funds, 18-3106.
Defined, 18-3601.
Fictitious checks, 18-3606.
Making, passing, uttering or
publishing fictitious checks,
18-3606.
Possession of forged checks,
18-3605.
Insufficient funds.
Drawing checks with insufficient
funds, 18-3106.
rights, 18-3106.
Intent.
18-3106.
Probation.
Conditions of probation, 18-3106.
Theft, 18-2407.
Uttering, 18-3106.
CHEMICAL TEST FOR
INTOXICATION OF DRIVERS
ACT, 18-8002.
CHILD ABUSE.
18-1506A.
CHILD CUSTODY.
Defenses, 18-4506.
Defined, 18-4506.
Definitions.
Child custody interference, 18-4506.
Interference with child custody.
Defenses, 18-4506.
Defined, 18-4506.
Kidnapping.
Defenses, 18-4506.
Defined, 18-4506.
INDEX-TITLE 18 720
CHILD CUSTODY Cont'd
Kidnapping Cont'd
Child custody interference Cont'd
CHILD CUSTODY
INTERFERENCE, 18-4506.
CHILD PORNOGRAPHY, 18-1506,
18-1507.
Possession of sexual exploitative
material for other than
commercial purposes,
18-1507A.
CHILDREN.
Abandonment or nonsupport of
children.
Child support, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Child support.
Abandonment and nonsupport,
18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
children, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Missing children reports, 18-4507
to 18-4512.
See MISSING CHILDREN.
Nonsupport of children, 18-401 to
18-405.
See SUPPORT AND
MAINTENANCE.
children, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
CHILD SELLING, 18-1511.
CHILD SUPPORT.
Abandonment or nonsupport,
18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Criminal nonsupport of children,
18-401.
CHIROPRACTORS.
CHLOROFORM.
18-913, 18-914.
CHURCHES.
Burning of structures in which
persons normally present,
18-802.
CIGARETTES.
Forests and forestry.
Throwing away lighted materials,
18-7005.
CIVIL RIGHTS.
Amusement resorts.
right, 18-7301.
Ancestry.
Imprisonment.
Effect on civil rights and offices,
18-310.
Deny.
Denned, 18-7302.
Discrimination.
Freedom from discrimination
constitutes civil right, 18-7301.
Employers and employees.
Right to obtain and hold employment
without discrimination
Every person.
Denned, 18-7302.
Firearms.
Suspension and restoration of civil
rights to, 18-310.
Forfeiture of public offices.
Effect of imprisonment on civil rights
and offices, 18-310.
Freedom of choice.
Use of laetrile, 18-7301A.
Full enjoyment of.
Denned, 18-7302.
Imprisonment.
18-310.
Labor.
Misdemeanors.
Denial of right to work or
accommodations constitutes
misdemeanor, 18-7303.
National origin.
Denned, 18-7302.
Parole.
Exercise of civil rights during period
of parole, 18-310.
721 INDEX-TITLE 18
CIVIL RIGHTS Cont'd
Effect of imprisonment on civil
rights, 18-310.
Restoration of full rights of
citizenship upon discharge,
18-310.
Probation.
of probation, 18-310.
Public accommodations.
right, 18-7301.
Sentence of imprisonment.
Forfeiture of public office, 18-310.
Restoration to full rights of
citizenship, 18-310.
Sexual discrimination.
When denial of right to work on
basis of sex permissible,
18-7303.
Suspension of civil rights.
18-310.
Weapons.
Suspension and restoration of rights
as to firearms, 18-310.
CLAIM JUMPING CONSPIRACIES,
18-1702.
CLERKS OF COURT.
Costs.
Failure to account for costs,
18-5704.
Failure to account for costs or fines,
18-5704.
Fines.
Failure to account for fines,
18-5704.
Indictments.
Disclosing indictment before arrest of
defendant, 18-4402.
COIN OPERATED PHONES.
Tampering with phones, 18-7032.
COINS.
Forgery and counterfeiting,
18-3607.
Manufacture or sale of slugs or
counterfeited coins, 18-3620.
Possession of counterfeit coin,
18-3609.
Slugs or counterfeited coins.
Penalty for use in vending
machines or coin boxes,
18-3619.
COLISEUMS.
COMMISSION MERCHANTS.
False statements concerning
prices, 18-3105.
Fines.
False statements by commission
merchants, 18-3105.
Misdemeanors.
False statements as to price, quality
or quantity of property,
18-3105.
Prices.
False statements concerning prices,
18-3105.
Sentencing.
merchants as to price, quality or
quantity, 18-3105.
COMMON CARRIERS.
Blind persons.
Guide dogs.
Communications common carrier.
Defined, 18-6701.
Deaf persons.
Denying deaf persons use of common
carriers, 18-5812A.
Guide dogs.
Denying deaf persons use of
common carriers,

18-5812A.
Dogs.
Guide dogs.
Denying blind persons use of
common carriers,
18-58 12A.
Firearms.
Shipping loaded firearms, 18-3310.
Handicapped persons.
Denying physically disabled persons
use of common carriers,
18-5812A.
Weapons.
COMMON LAW.
Punishment for common law
offenses, 18-303.
Homicide.
Petit treason abolished, 18-4005.
Offenses.
Punishment, 18-303.
INDEX-TITLE 18 722
COMMON LAW OFFENSES.
Punishment, 18-303.
COMMUNICATIONS SECURITY.
Actions.
Advertisements.
Devices for wire, oral or electronic
communication interception.
Advertising prohibited, 18-6703.
Aggrieved persons.
Denned, 18-6701.
Aural transfer.
Denned, 18-6701.
Authorization for interception,
18-6706.
Bribery.
communications, 18-6706.
Confiscation of devices, 18-6704.
Contents.
Denned, 18-6701.
Controlled substances.
Theft of communications services.
Avoiding telecommunications
charges, 18-6714.
Damages.
Recovery of civil damages authorized,
18-6709.
Defenses.
Good faith reliance on court orders,
etc.
Complete defense to civil or
Pen registers and trap and trace
devices.
Reliance on court order,
legislative authorization or
statutory authorization,
18-6723.
devices, 18-6719.
Devices for interception of wire,
oral or electronic
communications.
Confiscation, 18-6704.
Manufacture, distribution, possession
and advertising prohibited,
18-6703.
Disclosure of intercepted
Disturbing the peace.
Telephones.
Disturbing the peace by repeated
calls, 18-6710.
Cont'd
Electronic communications.
Confiscation of intercepting devices,
18-6704.
Defined, 18-6701.
Interception and disclosure
and advertising of interception
devices.
Procedure for interception, 18-6708.
Electronic communications system.
Defined, 18-6701.
Electronic, mechanical or other
device.
Defined, 18-6701.
Electronic storage.
Defined, 18-6701.
Evidence.
Prohibition of use as evidence of
intercepted communications,
18-6705.
Extortion.
Felonies.
Interception and disclosure of wire,
oral or electronic
Manufacturing, distributing, etc.,
intercepting devices, 18-6703.
Telephones.
Terrifying, intimidating, harassing
or annoying use of, 18-6711.
Use of telephone to annoy, terrify,
etc., 18-6710.
Forfeitures.
18-6704.
Forgery of telegraphic messages.
Generally, 18-6716.
Gambling.
certain communications,
18-6706.
Grand jury.
Use as evidence of intercepted wire,
oral or electronic
communications prohibited,
18-6705.
Homicide.
18-6706.
Intercept.
Defined, 18-6701.
723 INDEX-TITLE 18
Cont'd
Interception and disclosure of
wire, oral or electronic
communications.
Investigative or law enforcement
officers.
Denned, 18-6701.
Disclosure or use of intercepted
Judges.
Judge of competent jurisdiction.
Denned, 18-6701.
Kidnapping.
18-6706.
Lewd or profane language.
Threats of physical harm, 18-6710.
Use of telephones, 18-6710.
Misdemeanors.
device installation, 18-6720.
Telecommunications services theft,
18-6713.
Telephones.
Terrifying, intimidating, etc., use
of, 18-6711.
charges, 18-6714.
etc., 18-6710.
Opening sealed letters, 18-6718.
Opening telegrams, 18-6716.
Oral communications.
18-6704.
Defined, 18-6701.
devices.
Orders.
Application for interception of
devices, 18-6721 to 18-6723.
Penalties.
Forgery of telegraphic messages,
18-6715.
Cont'd
devices.
Assistance in installation and use,
18-6723.
Defenses.
Reliance on court order, legislative
authorization or statutory
authorization, 18-6723.
Order for.
Application, 18-6721.
Information to accompany,
18-6721.
Contents, 18-6722.
Issuance, 18-6722.
Reliance on.
Defense, 18-6723.
Prior interceptions.
Validation, 18-6725.
Exception, 18-6720.
Validation of prior interceptions,
18-6725.
Person.
Defined, 18-6701.
Place of offense, 18-6712.
Procedure for interception of
Application for authorization for
interception, 18-6706.
Readily accessible to the general
public.
Defined, 18-6701.
Refusal to send or deliver
telegraph message, 18-6717.
Robbery.
Sealed letters.
Opening, 18-6718.
Sealed telegrams.
Opening, 18-6716.
18-6704.
State departments and agencies.
Evidence of intercepted
18-6705.
Telephones.
False statements.
Use of telephone to terrify,
intimidate, harass or annoy by
false statements, 18-6711.
INDEX-TITLE 18 724
Cont'd
Telephones Cont'd
Use to annoy, terrify, threaten,
intimidate, harass or offend,
18-6710.
services.
charges, 18-6714.
Generally, 18-6713.
Threats.
Use of telephones to make threats of
physical harm, 18-6710.
Trap and trace devices.
Generally, 18-6719 to 18-6725. See
within this heading, "Pen
registers and trap and trace
devices."
User.
Denned, 18-6701.
Violations.
Wire communications.
18-6704.
Defined, 18-6701.
devices, 18-6703.
COMPACT DISC PIRACY.
Generally, 18-7601 to 18-7608.
COMPLAINTS.
Theft.
Sufficient complaints, 18-2409.
COMPOUNDING FELONY OR
MISDEMEANOR, 18-1601.
COMPUTER CRIME, 18-2201,
18-2202.
CONCEALED WEAPONS.
Carrying in courthouse, juvenile
detention facility, jail, etc.,
18-3302C.
Carrying under influence of
alcohol or drugs, 18-3302B.
Licenses to carry, 18-3302.
CONFIDENTIALITY OF
INFORMATION.
gain, 18-1359.
CONFLICTS OF INTEREST.
Executive sessions.
Personal gain from public position.
Confidential information used for
pecuniary benefit, 18-1359.
Nepotism, 18-1359.
18-1356.
gain, 18-1359.
CONSECUTIVE SENTENCES,
18-308.
CONSENT.
Abortion, 18-609.
Minors.
18-609A.
18-602.
Refusal to consent by pregnant
woman, 18-610.
Body piercing, branding or
tattooing of minors.
Consent of parent or guardian,
18-1523.
Rape.
Victims unable to give legal consent,
18-6101.
CONSIDERATION.
Pyramid promotional schemes.
Denned, 18-3101.
CONSIGNMENTS.
merchants, brokers, agents,
consignees, etc., to principal or
consignor, 18-3105.
Fines.
or quantity of property
consigned, 18-3105.
Obscenity.
Requiring consignee to receive
obscene matter as condition to
consignment, 18-4105A.
Penalties.
consigned, 18-3105.
Sentencing.
merchants, brokers, agents, etc.,
as to price, quality or quantity of
property consigned, 18-3105.
725 INDEX-TITLE 18
CONSPIRACY.
Criminal conspiracy.
Defined, 18-1701.
Definitions.
Criminal conspiracy, 18-1701.
Grand theft, 18-2407.
Hazing, 18-917.
Mines and mining.
Usurping mining claims, 18-1702.
Obscenity, 18-4107.
Racketeering, 18-7804.
CONSTABLES.
Arrest.
Bribery.
officers, 18-1309.
Costs.
18-5704.
Failure to account for fines or costs,
18-5704.
Elections.
Duty to make arrest, 18-2318.
Escape.
Officers assisting in escape, 18-2502.
Fines.
18-5704.
Gambling.
Officers to enforce law, 18-3808.
Unlawful exercise of functions,
18-711.
CONSTRUCTION AND
INTERPRETATION.
Effect of invalidity of part of act,
18-7904.
Obscenity.
Partial invalidity of sections or act,
18-4115.
Personal property.
Construction of sections
enumerating acts of malicious
mischief, 18-7002.
Property.
mischief, 18-7002.
Terrorism.
CONTEMPT.
Attempts.
consummated, 18-305.
Double jeopardy.
as contempt, 18-302.
Enumeration of criminal contempt,
18-1801.
Process.
Willful disobedience of process,
18-1801.
Punishment for acts also
punishable as contempt,
18-302.
Punishment for contempt.
Courts may punish, 18-105.
Reports.
Publication of false or inaccurate
reports of court proceedings.
Criminal contempt, 18-1801.
Witnesses.
Refusal to be sworn, 18-1801.
CONTRABAND.
Obscenity.
Destruction of obscene matter,
18-4112.
CONTRACTS.
Bribery.
Officials concerned with government
contracts and pecuniary
transactions.
18-1356.
Self-interested contracts, 18-1361.
Noncompensated appointed
public servant, 18-1361A.
gain.
Interest in contracts, 18-1359.
Mutilating written instruments,
18-3206.
Transportation of products without
contract, 18-4629.
Forgery.
Defined, 18-3601.
18-3206.
Penalties.
18-3206.
INDEX-TITLE 18 726
CONTROLLED SUBSTANCES.
Marijuana.
Possession by minor, 18-1502C.
paraphernalia by minor,
18-1502C.
Use by minor, 18-1502C.
Felonies.
Inmates of penal institutions or jails.
Manufacturing, delivering or
possessing, 18-2511.
Inmates of penal institutions or
jails.
Jails.
Inmates.
Minors.
18-1502C.
Use by minors, 18-1502C.
Misdemeanors.
18-1502C.
Paraphernalia.
Possession of drug paraphernalia by
minor, 18-1502C.
Possession.
Minors, 18-1502C.
Prisoners.
Weapons.
Concealed weapons.
Carrying under influence of drugs,
18-3302B.
Licenses to carry.
Persons ineligible, 18-3302.
CONVEYANCES.
18-3206.
18-3206.
Capacity to convey property, 18-312.
COPIES.
COPIES Cont'd
Fines.
Legislature.
Alteration of enrolled copies,
18-4702.
CORONERS.
Arrest.
CORPORATIONS.
Agents.
18-1905.
Books.
18-1905.
Defenses.
Foreign corporations subject to
chapter, 18-1911.
Directors.
Deemed to have knowledge of
affairs, 18-1908.
Defined, 18-1912.
Meetings in violation of chapter.
Assent to illegal acts, 18-1909.
Not present at meetings in
violation of chapter.
Dividends.
capital, 18-1904.
Exhibiting false papers to public
officers, 18-1902.
18-1905.
Fictitious stock subscriptions,
18-1901.
Foreign corporations.
Applicability of chapter, 18-1911.
Forgery.
Exhibition of forged papers to
public officers, 18-1902.
Misdemeanors.
18-1901.
Officers.
Fraudulent reports, 18-1906.
Prospectus.
Use of false name in prospectus,
18-1903.
Records.
Refusal to permit stockholder to
inspect records, 18-1907.
18-1901.
727 INDEX-TITLE 18
CORPORATIONS Cont'd
Crimes and punishment Cont'd
Stock and stockholders Cont'd
Defenses.
Criminal violations.
chapter, 18-1911.
Definitions.
Director, 18-1912.
Directors.
Assent to illegal act, 18-1909.
Deemed to have knowledge of affairs,
18-1908.
Defined, 18-1912.
18-1905.
capital, 18-1904.
Not present at meetings.
Dividends.
Illegal dividends, 18-1904.
18-1905.
Fines.
18-1905.
Foreign corporations.
Crimes and punishments.
chapter, 18-1911.
Exhibition of forged papers to public
officers, 18-1902.
Fraud.
18-1905.
Reports.
Fraudulent reports by officers,
18-1906.
Inspections.
Refusal to permit stockholders to
Misdemeanors.
Exhibition of false or forged papers
to public officers, 18-1902.
18-1905.
18-1901.
18-1906.
capital, 18-1904.
CORPORATIONS Cont'd
Misdemeanors Cont'd
Use of false names in prospectus,
18-1903.
Officers.
Exhibiting false papers, 18-1902.
18-1905.
Records.
Reports.
18-1906.
Exhibition of false papers to public
officers to increase capital stock,
18-1902.
18-1901.
Records.
Subscriptions.
18-1901.
CORRECTIONS.
Assault or battery upon
correctional officers or
employees of department,
18-915.
Bodily fluid or waste.
Propelling at correctional officer or
detention officer, 18-915B.
Fines.
Illicit conveyance of articles into
correctional facilities, 18-2510.
Penalties.
Sentencing.
CORROSIVE ACID.
18-906.
18-908.
CORRUPTION.
18-1351 to 18-1362.
See BRIBERY.
INDEX-TITLE 18 728
CORRUPT ORGANIZATIONS.
Racketeering, 18-7801 to 18-7805,
18-8201.
See RACKETEERING.
COSMETICS.
protection.
COSTS.
Clerks of court.
18-5704.
Constables.
18-5704.
Escape.
Prosecution for escape.
How costs paid, 18-2507.
Magistrates.
18-5704.
18-5704.
Rape.
Restitution of costs to victim,
18-6106.
Sheriffs.
18-5704.
COUNTERFEITING.
18-3601 to 18-3620.
See FORGERY AND
COUNTERFEITING.
COUNTIES.
Accounts and accounting.
Board of county commissioners.
Bribery.
Officers.
Misuse of public money by officers,
18-5701.
Fraud.
Presentation of fraudulent accounts
by officers, 18-2706.
Officers.
18-5701.
COUNTIES Cont'd
Officers Cont'd
Threats against elected officials of
county, 18- 1353A.
Public moneys.
Denned, 18-5703.
Failure to keep and pay over money
Misuse by officers, 18-5701.
Records.
Public officers stealing, mutilating or
falsifying public records,
18-3201.
county, 18-1353A.
COUNTY AUDITORS.
Felonies.
Neglect of duty, 18-6307.
Fines.
Neglect of duty.
Penalties, 18-6307.
Removal from office.
COUNTY TREASURER.
Escape of correctional inmates.
Costs of prosecution, 18-2507.
Ignition interlock or electronic
monitoring devices.
Surcharge on fines remitted to
county treasurers, 18-8010.
COURTS.
Contempt.
Power to punish for contempt,
18-105.
Determination of punishment by
court, 18-107.
Imposition of punishment.
Duty of court, 18-106.
Sentencing.
Imposition of punishment by court,
18-106.
Punishment for crime left
undetermined.
Determination by court, 18-107.
Weapons.
Concealed weapons.
Carrying in courthouse prohibited,
18-3302C.
CREDIT CARDS.
Financial transaction cards and
numbers.
Criminal possession, 18-3125.
Fines.
Credit card fraud.
Misdemeanor violation, 18-3128.
Punishment for felony, 18-3128.
729 INDEX-TITLE 18
CREDIT CARDS Cont'd
Forgery.
Credit card sales drafts.
Criminal penalties for violations,
18-3128.
Possessing or receiving
fraudulently obtained goods or
services, 18-3128.
numbers.
18-3128.
services, 18-3128.
Financial transaction cards.
18-3128.
services, 18-3128.
Possessing fraudulently obtained
goods or services, 18-3128.
Criminal penalties for possession,
18-3128.
Receiving fraudulently obtained
goods or services, 18-3128.
Criminal penalties for receipt,
18-3128.
Fraud.
Denned, 18-3122.
Card holders.
Denned, 18-3122*
Credit card sales draft.
Denned, 18-3122.
Forgery, 18-3123.
Fraudulent use of draft, 18-3124.
Unauthorized factoring of draft,
18-3125A.
Expired financial transaction cards.
Defined, 18-3122.
Felonies, 18-3128.
number.
Criminal possession of number and
forgery device, 18-3125.
Defined, 18-3122.
Forgery, 18-3123.
Fraudulent use of number,
18-3124.
Criminal possession of card and
FTC forgery devices, 18-3125.
Defined, 18-3122.
Forgery, 18-3123.
Fraudulent use of card, 18-3124.
CREDIT CARDS Cont'd
Fraud Cont'd
Fines.
Issuer.
Defined, 18-3122.
Misdemeanors.
When violation constitutes
Personal identification code.
Defined, 18-3122.
Revoked financial transaction card.
Defined, 18-3122.
Violations.
Penalty for violation, 18-3128.
Misdemeanors.
Credit card fraud, 18-3128.
Personal identifying information.
Defined, 18-3122.
Misappropriation, 18-3127.
Scanning devices.
Theft of payment card information,
18-2415.
Telephones.
Credit card numbers.
Aiding avoidance of
telecommunications charges,
18-6714.
Theft.
CRIME AGAINST NATURE,
18-6605.
Penetration, 18-6606.
CRIMES AND PUNISHMENT.
Abandoning vulnerable adult,
18-1505A.
Abandonment of airtight
containers without removing
door locks, 18-5818.
Abduction.
Kidnapping, 18-4501 to 18-4506.
See KIDNAPPING.
Abuse, exploitation or neglect of a
vulnerable adult, 18-1505.
Accidents.
crimes, 18-201.
Actions.
Right to enforce civil remedies
preserved, 18-103.
Adoption.
Advertising violations, 18- 1512A.
Adultery, 18-6601.
INDEX-TITLE 18 730
CRIMES AND PUNISHMENT
Cont'd
Advertising.
Abortion.
18-603.
Aeronautics.
18-7505.
Age.
18-216.
Agriculture.
Solicitation to hold to impede lawful
agricultural practices, 18-2005.
Air hijacking, 18-7501 to 18-7505.
Airports.
airport, 18-7033.
18-116.
Persons occasioning the drunkenness
of another.
Definition of principal, 18-204.
Animals.
18-7039.
Dead animals.
18-5803.
Permitting mischievous animal at
large, 18-5808.
18-7039.
18-7039.
animals, 18-5804.
18-7037.
Applicability of criminal code,
18-100.
Cont'd
Aquaculture.
Arson, 18-801 to 18-805.
Artifacts found in caves or caverns.
Disturbing, 18-7035.
Assault and battery, 18-901 to
18-919
Assessors.
Tax assessors.
Refusal to give assessor list of
property, 18-6301.
Attempts.
Attempt resulting in different crime,
18-307.
consummated, 18-305.
Punishment for attempts, 18-306.
Solicitation.
Punishment for criminal
solicitation.
18-2004.
Attorneys at law.
Barratry, 18-1001 to 18-1005.
See BARRATRY.
Baby selling, 18-1511.
Bad checks.
18-3106.
rights, 18-3106.
Bail and recognizance.
Banks and financial institutions.
Credit card fraud, 18-3122 to
18-3128.
See CREDIT CARDS.
Barratry, 18-1001 to 18-1005.
See BARRATRY.
Battery.
Generally, 18-901 to 18-919.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
Bills.
731 INDEX-TITLE 18
Cont'd
Birds.
18-7037.
tattooing of minors, 18-1523.
Bombs and destructive devices.
Bomb threats.
False reports of explosives in public
or private places, 18-3313.
Boundaries.
monuments, 18-7016.
Bribery.
18-1351 to 18-1362.
See BRIBERY.
Definition of bribe, 18-101.
Generally, 18-1301 to 18-1309.
See BRIBERY.
Bridges.
Injuring bridges, 18-7019.
Brokers.
False statements as to price, quality,
etc., 18-3105.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
Canals.
Interference with irrigation,
18-4301 to 18-4310.
See IRRIGATION AND WATER
RIGHTS.
Cannibalism, 18-5003.
Capacity.
Admissibility of statements by
examined persons, 18-215.
Determination of fitness of defendant
to proceed, 18-211, 18-212.
Escape by defendant from custody
during confinement, 18-212.
Lack of capacity to understand
proceedings, 18-210.
Examination of defendant, 18-211.
Release of defendant confined for
purposes of examination,
18-211.
Report of appointed psychiatrists
and psychologists, 18-211.
Postcommitment hearing, 18-212.
Checks.
Uttering, 18-3106.
Cont'd
Defenses, 18-4506.
Defined, 18-4506.
Child pornography, 18-1506,
18-1507.
Sexual exploitation of children,
18-1507.
Possession of sexually exploitative
material for other than a
commercial purpose,
18-1507A.
Children.
Enticing of children, 18-1509.
Internet, 18-1509A.
Injury to children, 18-1501.
Civil remedies.
Preservation, 18-103.
Civil rights.
Clerks of court.
Failure to account for costs or fines,
18-5704.
Commission merchants.
False statements, 18-3105.
Common law offenses.
Punishment, 18-303.
charges, 18-6714.
Compounding felony or
Computation of term of
imprisonment, 18-309.
Computer crime, 18-2201, 18-2202.
Conspiracies, 18-1701, 18-1702.
See CONSPIRACY.
Constables.
18-5704.
Contracts.
18-3206.
Marijuana.
18-1502C.
Use by minor, 18-1502C.
Conveyances.
18-3206.
INDEX-TITLE 18 732
Cont'd
Copies.
Corporations.
Generally, 18-1901 to 18-1912.
See CORPORATIONS.
Corruption.
Bribery, 18-1301 to 18-1309.
See BRIBERY.
Corruptly.
Denned, 18-101.
Counterfeiting, 18-3601 to 18-3620.
See FORGERY AND
COUNTERFEITING.
Counties.
Officers.
18-5701.
County auditors.
Courts.
Contempt.
Power to punish for contempt,
18-105.
court, 18-107.
Imposition of punishment.
Duty of court, 18-106.
18-3128.
See CREDIT CARDS.
Crime.
Denned, 18-109.
Crime against nature, 18-6605.
Criminal code.
Legislative intent, 18-100.
Title, 18-100.
Criminal solicitations, 18-2001 to
18-2005.
See SOLICITATION.
Criminal trespass, 18-7011.
Crops.
Injuries to, 18-7014.
Custodial interference.
Damages.
Civil remedies preserved, 18-103.
Data processing.
Computer crime, 18-2201, 18-2202.
Dead bodies.
Mayhem, 18-5001 to 18-5003.
See MAYHEM.
Deeds.
18-3206.
Cont'd
18-7017.
Defamation.
Libel, 18-4801 to 18-4809.
See LIBEL AND SLANDER.
Defenses.
Mental condition not defense,
18-207.
Definitions, 18-101, 18-101A.
Accessories, 18-205.
Arson, 18-1801.
Crime, 18-109.
Felonies, 18-111, 18-111A.
Final discharge, 18-310.
First degree arson.
structures where persons
Infractions, 18-111.
Misdemeanors, 18-111, 18-111B.
Principals, 18-204.
Public offenses, 18-109.
Second degree arson.
Third degree arson.
Burning of real or personal
property or forest land,
18-804.
Delaying or obstructing officer,
18-705.
Desertion and nonsupport.
children, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Disinterment.
18-7028.
Dismemberment.
Mayhem, 18-5001 to 18-5003.
See MAYHEM.
District courts.
Criminal trial of juveniles.
Transfer of defendant to district
court, 18-216.
Assembly to disturb the peace,
18-6410.
Ditches.
18-4301 to 18-4310.
RIGHTS.
733 INDEX-TITLE 18
Cont'd
Double jeopardy.
Election offenses, 18-2301 to
18-2323.
See ELECTIONS.
Electric power.
Burning electric lines or plants,
18-6804.
Injuring electric lines, 18-6802.
Punishment for removal, destruction
or burning of lines or plants,
18-6805.
Removal or destruction of
transmission lines, 18-6803.
Stealing electric current, 18-4621.
18-4622.
Evidence of guilt, 18-4623.
Tampering with meters, 18-4621.
Embezzlement.
Theft generally, 18-2401 to
18-2415.
See THEFT.
Encouraging the drunkenness of
another for the purpose of
commission of crime, 18-204.
Internet, 18-1509A.
Entry.
Evidence.
Destruction, alteration or
concealment of evidence,
18-2603.
to proceed.
Falsifying evidence, 18-2601.
Preparing false evidence, 18-2602.
State of mind.
Reception of evidence, 18-207.
Examinations.
proceedings.
Appointment of psychiatrists and
psychologists to examine
defendant, 18-211.
False impersonation.
Generally, 18-3001 to 18-3005.
See FALSE PERSONATION.
False imprisonment, 18-2901,
18-2902
See FALSE IMPRISONMENT.
Cont'd
False information to law
enforcement or social work
officials, 18-5413.
False pretenses.
18-2415.
See THEFT.
False statements in application or
request for domestic violence
protective order.
Intentionally making, 18-5414.
Fellatio.
Infamous crime against nature,
18-6605.
18-913, 18-914.
Final discharge.
Denned, 18-310.
18-310.
Fraud, 18-3122 to 18-3128.
See CREDIT CARDS.
Firearms, 18-3301 to 18-3317.
See WEAPONS.
Fire protection.
Damage to public lands from
throwing away or leaving lighted
substances, 18-7005.
18-7004.
Flags.
Public mutilation of United States
flag, 18-3401.
Forcible entry and unlawful
detainer.
Reentry of land after ouster,
18-3502.
of foreign object, 18-6608.
Illegal use of documentation,
18-4630.
Purchase of forest products without
proof of ownership, 18-4628A.
Sabotage of forest, 18-4631.
Solicitation to halt or impede lawful
forest practices, 18-2005.
Transportation of forest products,
18-4628.
Transportation of forest products
without permit, contract, bill
of sale, etc., 18-4629.
Forfeitures.
INDEX-TITLE 18 734
Cont'd
Forfeitures Cont'd
Proceedings for forfeiture of public
office.
18-3601 to 18-3620.
See FORGERY AND
COUNTERFEITING.
Fornication.
Elements of fornication, 18-6603.
Fraudulent accounts, presentation
by officer, 18-2706.
Funds.
18-5701.
Gambling.
Generally, 18-3801 to 18-3810.
See GAMBLING.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
Games of chance.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
Gaming, 18-3801 to 18-3810.
See GAMBLING.
Gas or water pipes.
Injuring, 18-7022.
Glue sniffing.
18-1502B.
Grades of crime, 18-110.
Graffiti, 18-7036.
Graves, cemeteries, headstones or
burial places.
Desecration, 18-7027.
Groundless judicial proceedings,
18-1001 to 18-1005.
See BARRATRY.
Guide dogs, 18-5812A, 18-5812B.
Interference with, 18-5811.
Prevention of accident or injury to,
18-5811.
Harassment.
Malicious harassment, 18-7901 to
18-7904.
See MALICIOUS HARASSMENT.
Hazardous waste management.
Transportation of hazardous waste.
Failure to comply with laws,
18-3905.
Hazing, 18-917.
Highways.
Flooding highways, 18-3908.
Obstruction of highways, 18-3907.
Cont'd
Highways Cont'd
Placing debris in highways,
18-3906.
Wild flowers or shrubs along
highway.
Removal or transport illegal,
18-3911.
Hijacking.
18-7505.
See AERONAUTICS.
Homicide, 18-4001 to 18-4016.
See HOMICIDE.
Housebreaking.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
Houses.
Human bodies.
Dismemberment.
Mayhem, 18-5001 to 18-5003.
See MAYHEM.
Human remains.
Unlawful removal, 18-7028.
Husband and wife.
Abandonment or nonsupport of wife
or children, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
Identification numbers.
Defacing, altering or obliterating
manufacturer's serial or
identification numbers, 18-2410.
Ignition interlock devices.
operating in violation of court
order, 18-8009.
Impersonation.
Revenue officer, 18-6309.
Incest, 18-6602.
Indecency and obscenity, 18-4101
to 18-4116.
See OBSCENITY.
Indecent exposure, 18-4116.
18-6605.
Infants.
Inhalants.
Possession by minors, 18-1502B.
Inhuman treatment of prisoners,
18-704.
735 INDEX-TITLE 18
Cont'd
Inmates of penal institutions or
jails possessing controlled
substances or dangerous
weapons, 18-2511.
Intent.
Intoxication.
accused, 18-116.
Manifestation of intent, 18-115.
Mens rea.
Reception of evidence on issues of
mens rea or state of mind,
18-207.
crimes, 18-201.
Sufficiency of intent to defraud,
18-102.
Union of act and intent, 18-114.
Internet.
Enticing children over the internet,
18-1509A.
Intoxication.
No excuse for crime, 18-116.
Investments.
Money laundering and illegal
investment, 18-8201.
Jurisdiction.
Juveniles.
Jurisdictional hearing, 18-216.
Juveniles.
18-216.
Juvenile sex offenders, 18-8401 to
18-8413.
Kidnapping, 18-4501 to 18-4506.
See KIDNAPPING.
Knowingly.
Denned, 18-101.
Larceny.
18-2415.
See THEFT.
Legislature.
Disqualification to hold office on
conviction, 18-4706.
Lewd conduct with minor child
under sixteen, 18-1508.
Liability.
Libel, 18-4801 to 18-4809.
See LIBEL AND SLANDER.
Cont'd
Licenses.
Professions, vocations and
businesses.
Doing business without license,
18-6305.
Unlawful possession of blank
licenses, 18-6303.
Littering.
property, 18-7031.
Livestock.
Magistrates.
18-5704.
Mail.
Opening sealed mail or packages,
18-6718.
Male rape, 18-6108, 18-6109.
Malice.
Defined, 18-101.
General provisions, 18-7901 to
18-7904.
Maliciously.
Defined, 18-101.
Marriage.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
Mayhem, 18-5001 to 18-5003.
See MAYHEM.
Mens rea.
Reception of evidence on mens rea or
state of mind, 18-207.
Mines and mining.
Alteration of ore values, 18-7207.
Conspiracy to usurp mining claims,
18-1702.
notices, 18-7023.
Setting fire to underground
workings, 18-7025.
Solicitation to hold or impede lawful
mining practices, 18-2005.
Use of fraudulent scales for ore,
18-7206.
Minors.
See SUPPORT AND
MAINTENANCE.
Body piercing, branding or tattooing,
18-1523.
18-1507.
INDEX-TITLE 18 736
Cont'd
Minors Cont'd
Counseling, advising, etc., children
under fourteen years to commit
crime, 18-204.
Criminal neglect by failure to provide
medical attention, 18-1501.
18-216.
Internet, 18-1509A.
Excessive or improper punishment
inflicted on child by parent,
teacher or guardian, 18-1501.
Hiring, employing, etc., minors to
engage in certain acts,
18-1517A.
Lewd conduct with minor child under
sixteen, 18-1508.
Motion picture admission.
Misrepresentation for purposes of
obtaining, 18-1516.
Ritualized abuse of child, 18-1506A.
Runaway children.
Providing shelter to, 18-1510.
Sexual abuse of child under age
sixteen, 18-1506.
Sexual battery of minor child sixteen
or seventeen years of age,
18-1508A.
Sexual exploitation of child,
18-1507.
Weapons.
Possession by minors, 18-3302E,
18-3302F.
Misappropriation of personal
identifying information,
18-3127.
Money laundering, 18-8201.
Motion pictures.
Fair bidding act violations, 18-7708.
obtaining admission of minor,
18-1516.
Officers.
18-5701.
Natural scenic objects.
Defacing, 18-7017.
Neglect.
Defined, 18-101.
Cont'd
Negligence.
Criminal negligence.
Defined, 18-101.
crimes, 18-201.
Negligent.
Defined, 18-101.
Negligently.
Defined, 18-101.
No contact orders, 18-920.
Notice.
Nuisances.
Public nuisances, 18-5901 to
18-5906.
See NUISANCES.
Oaths.
Perjury, 18-5401 to 18-5414.
See PERJURY.
Object rape, 18-6608.
Obscenity, 18-4101 to 18-4116.
See OBSCENITY.
Obstructing or delaying officer,
18-705.
Out-of-state prisoners.
Applicability of criminal laws to,
18-101B.
Definitions, 18-101A.
Parental kidnapping, 18-4506.
Parking meters.
Tampering with, 18-7032.
Parties.
Classification of parties, 18-203.
Pay phones.
Peace officer's refusal to make
arrest, 18-701.
Penalties.
Punishment of offenses for which no
penalty is fixed, 18-317.
Pending cases, 18-100.
Perjury.
Generally, 18-5401 to 18-5414.
See PERJURY.
Misappropriation, 18-3126,
18-3127.
Persons.
Capable of committing crimes,
18-201.
Defined, 18-101.
737 INDEX-TITLE 18
Cont'd
Pipelines.
Injuring gas or water pipes,
18-7022.
Piracy.
18-7505.
See AERONAUTICS.
18-7608.
Poison.
Administering poison with intent to
kill, 18-4014.
Mingling poison with medicine,
18-5501.
Political parties.
18-1351 to 18-1362.
See BRIBERY.
Polluting rivers when fenced or
posted, 18-7013.
Posse comitatus.
Refusal to assist officer, 18-707.
Pregnancy.
Abortion, 18-601 to 18-615.
See ABORTIONS.
Principals.
Defined, 18-204.
Prior law.
Effect of prior law, 18-100.
Private correctional facilities.
Applicability of criminal laws to
personnel of, 18-101B.
Property taxes.
property, 18-6301.
Prostitution, 18-5601 to 18-5614.
See PROSTITUTION.
Psychiatrists.
proceedings.
Appointment of psychiatrist to
examine defendant, 18-211.
Psychologists.
proceedings.
Appointment of psychologist to
Public nuisances, 18-5901 to
18-5906.
See NUISANCES.
Cont'd
Public offenses.
Defined, 18-109.
Knowingly keeping false account,
18-5701.
Bribery, 18-1301 to 18-1309.
See BRIBERY.
Delaying or obstructing officer,
18-705.
Disqualified person holding office,
18-2712.
Executive officers.
Bribing executive officers,
18-2701 to 18-2712.
See BRIBERY.
Failure to keep and pay over money,
18-5702.
False certificates or other
instruments from officers,
18-3204.
Fines.
Failure of officer to account for
fines or costs, 18-5704.
Holding over office, 18-2709.
Intrusion into office, 18-2709.
18-2708.
18-5701.
18-705.
Omission of public duty, 18-315.
Proceedings to remove officers
preserved, 18-104.
Public moneys.
Defined, 18-5703.
18-5701.
Public records.
Theft, mutilation or falsification of
public records, 18-3201.
Resisting and obstructing officers,
18-705.
Scrip purchased by executive officers,
18-2705.
18-706.
Withholding books and records from
successor, 18-2710.
INDEX-TITLE 18 738
Cont'd
Purpose of criminal code, 18-100.
Pyramid promotional schemes,
18-3101.
Racketeering, 18-7801 to 18-7805.
See RACKETEERING.
Raffles.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
Rape, 18-6101 to 18-6108.
See RAPE.
Recapture of goods from legal
custody, 18-708.
Receiving stolen goods.
18-2415.
See THEFT.
Recordation.
Offering false or forged instruments
for record, 18-3203.
Records.
Falsification.
Private persons falsifying public
records, 18-3202.
Registration of sex offenders.
Generally, 18-8301 to 18-8328.
Repeals.
Certain provisions of law not
repealed by inference or
implication, 18-100.
Reports.
Giving false report to peace officer,
18-705.
proceedings.
Report of court appointed
psychiatrists and
psychologists, 18-211.
Reservoirs.
18-4301 to 18-4310.
RIGHTS.
Resisting arrest, 18-705.
Revenue and taxation, 18-6301 to
18-6308.
See TAXATION.
Rewards accepted by judicial
officers, 18-1303.
Right to work denied, 18-7303.
Riots, 18-6401, 18-6402.
18-1506A.
Robbery, 18-6501 to 18-6503.
See ROBBERY.
Cont'd
Runaway children.
Providing shelter without authority,
18-1510.
Sabotaging lumber or timber,
18-7026.
Scanning devices.
18-2415.
School buses.
Unauthorized school bus entry,
18-1522.
School teachers, abusing or
insulting, 18-916.
Search warrants.
Malicious procurement, 18-709.
Securities.
18-3206.
Sentencing.
Concurrent terms, 18-308.
Consecutive sentences, 18-308.
Court to impose punishment,
18-106.
Credit for period of incarceration
prior to entry of judgment,
18-309.
Definition of crime, 18-109.
court, 18-107.
Punishment of offenses for which no
penalty is fixed, 18-317.
Successive terms of imprisonment,
18-308.
Sex offenders, employment
prohibited.
Juvenile sex offenders, 18-8414.
Petition for relief from provisions,
18-8328.
Positions included, 18-8327.
18-1508A.
Sexual contact with prisoner,
18-6110.
18-1507.
commercial purpose, 18-1507A.
Sexual offenses.
Adultery, 18-6601.
739 INDEX-TITLE 18
Cont'd
Sexual offenses Cont'd
Forcible sexual penetration by use of
foreign object, 18-6608.
Fornication.
Incest, 18-6602.
18-6605.
sixteen, 18-1508.
Minors.
Sexual battery of minor child
sixteen or seventeen years of
age, 18-1508A.
See PROSTITUTION.
Rape, 18-6101 to 18-6108.
See RAPE.
Sodomy.
18-6605.
Sheriffs.
18-5704.
Shoplifting.
Willful concealment of goods, wares
or merchandise, 18-4626.
Sodomy.
18-6605.
Solicitation.
Criminal solicitation, 18-2001 to
18-2005.
See SOLICITATION.
Stalking.
First degree, 18-7905.
Second degree, 18-7906.
Statutes.
18-4702.
Stealing.
Railroads.
Stealing rides on trains, 18-4617
to 18-4620.
See RAILROADS.
Robbery, 18-6501 to 18-6503.
See ROBBERY.
Theft.
18-2415.
See THEFT.
Cont'd
Subornation of perjury, 18-5401 to
18-5414.
See PERJURY.
Suspension of proceeding and
commitment of defendant,
18-212.
Swimming pools.
Life jackets or notation device used
improperly, 18-5801.
18-7608.
Tattooing of minors, 18-1523.
Taxation.
Blank licenses.
18-6305.
Impersonation of revenue officer,
18-6309.
Neglect of duty by county auditor,
18-6307.
Receipts.
Unlawful possession of poll tax
receipts, 18-6303.
Use of illegal receipts, 18-6302.
property, 18-6301.
Tax collectors.
Refusal to give collector names of
employees, 18-6304.
Violation of revenue laws, 18-6308.
Telegraphs.
Refusal to send or deliver message,
18-6717.
Removal or obstruction of telegraph
lines or equipment, 18-6801.
Telephones.
Communications security, 18-6701
to 18-6725.
See COMMUNICATIONS
SECURITY.
Failure to relinquish or fraudulently
procure use of line, 18-6809.
Removal or obstruction of lines or
equipment, 18-6801.
Tampering with coin telephones,
18-7032.
Terrifying, intimidating, harassing or
annoying use of telephone,
18-6711.
911 emergency telephone systems.
False alarms, complaints or
reports, 18-6711A.
INDEX-TITLE 18 740
Cont'd
Territorial jurisdiction over
accused persons, 18-202.
Terrorism.
18-8105.
See TERRORISM.
Theft.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
18-2415.
See THEFT.
18-3201.
Robbery, 18-6501 to 18-6503.
See ROBBERY.
Stolen property.
Bringing to state.
Territorial jurisdiction over
accused person, 18-202.
Theft detection shielding devices,
18-2411.
Threats.
Bomb threats.
18-3313.
Committing acts or omissions under
threat.
crimes, 18-201.
Principals.
Denned, 18-204.
Threats against state officials or
elected officials of city or county,
18-1353A.
Time.
Offenses committed prior to effective
date of code, 18-100.
Title of code, 18-100.
Transcripts.
Trees and timber.
18-4616.
Destruction of timber on state lands,
18-7009.
Injury to shade trees, 18-7021.
Trespass.
Acts constituting trespass, 18-7008.
Enclosures for fur-bearing animals,
18-7015.
Trespass of privacy, 18-7006.
Cont'd
Trusts and trustees.
Forfeiture of private trusts, 18-310.
Undetermined punishments.
Unlawful assembly, 18-6404,
18-6405.
See UNLAWFUL ASSEMBLY.
Unlawful exercise of functions of
peace officers, 18-711.
protection, 18-2421.
Uttering.
Vending machines.
Video voyeurism, 18-6609.
Voluntary intoxication.
Waters and watercourses.
Irrigation.
18-4301 to 18-4310.
RIGHTS.
White slave traffic.
Wilfully.
Denned, 18-101.
Wiretapping.
to 18-6725.
See COMMUNICATIONS
SECURITY.
Witnesses.
Perjury.
18-5414.
See PERJURY.
Receiving bribe, 18-2606.
Writings.
18-3206.
CRIMINAL IDENTIFICATION.
Sex offender registration.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
See JUVENILE SEX OFFENDER
REGISTRATION
NOTIFICATION.
741 INDEX-TITLE 18
CRIMINAL PROCEDURE.
Hearings.
to proceed.
Jurisdiction.
Internet.
18-1509A.
Juvenile proceedings.
18-211.
Report of psychiatrist and
psychologist, 18-211.
Mentally ill.
Defenses.
18-207.
to proceed, 18-212.
Escape from custody during
confinement, 18-212.
Determination of fitness to stand
trial, 18-212.
Evidence.
Reception of evidence on state of
mind, 18-207.
Expert examiner.
Appointment, 18-207.
Notice.
Notice of intent to raise issue,
18-207.
Police.
Principals.
Persons encouraging lunatics or
idiots to commit crime, 18-204.
Rape.
Impeachment of witnesses, 18-6105.
Generally, 18-8301 to 18-8328.
18-8413.
Supreme court.
18-212.
Transfer of proceedings from
county for plea and sentence.
Treatment during incarceration,
18-207.
CRIMINAL SOLICITATION,
18-2001 to 18-2005.
CRIMINAL TRESPASS, 18-7011.
CROPS.
Misdemeanors.
CULTS.
Ritualized abuse of a child,
18-1506A.
CUSTODIAL INTERFERENCE.
Child custody interference,
18-4506.
D
DAMAGES.
Abortions.
Civil actions, 18-613.
Airports.
Animals.
Birds.
Recovery of civil damages authorized,
18-6709.
Highways.
Civil action for damages, 18-7903.
Manslaughter.
Evidence of conviction.
Admissibility in civil action for
damages, 18-4006.
Nuisances.
Public nuisances.
Unequal damage, 18-5902.
Telephones.
reports.
Civil damages, 18-6711A.
INDEX-TITLE 18 742
DAMS.
Fines.
Injuring dams, 18-7019.
Injuring dams, 18-7019.
Irrigation and water rights.
Obstruction of overflow, gauge or
waterway in dam, 18-4303.
DATA PROCESSING.
Computer crime.
Access.
Defined, 18-2201.
Altering, damaging or destroying
computers, computer systems,
etc., 18-2202.
Computer network.
Defined, 18-2201.
Computer programs.
Defined, 18-2201.
Computers.
Defined, 18-2201.
Computer software.
Defined, 18-2201.
Computer system.
Defined, 18-2201.
Felonies, 18-2202.
Violations of certain provisions
felonies, 18-2202.
Violations of certain provisions
Property.
Defined, 18-2201.
Services.
Defined, 18-2201.
Theft.
Accessing computers, computer
systems, etc., 18-2202.
Computer crime, 18-2201, 18-2202.
Definitions.
Computer crime, 18-2201.
Theft.
DAY CARE.
prohibited.
18-8328.
DEAD BODIES.
purposes of dissection,
18-7028.
DEADLY WEAPONS, 18-3301 to
18-3317.
DEAF PERSONS.
Canes.
Common carriers.
Denying deaf persons use of common
carriers, 18-5812A.
Guide dogs.
Denying deaf persons use of
common carriers,

18-5812A.
Elevators.
Denial of deaf persons, 18-5812A.
Guide dogs.
Hearing impaired persons may be
accompanied by guide dogs,
18-5812A.
18-5811.
Training.
being trained, 18-5812B.
Unlawful use of assistance device or
dog, 18-5811A.
Misdemeanors.
Guide dogs, 18-5812A, 18-5812B.
18-5811.
DEATH.
Homicide, 18-4001 to 18-4016.
See HOMICIDE.
Perjury.
death, 18-5411.
Railroads.
Obstruction or interference causing
death, 18-6011.
18-6001.
DEBTORS AND CREDITORS.
Barratry.
18-1003.
Elections.
Influencing votes of debtor, 18-2319.
DEEDS.
18-3206.
Forgery.
Defined, 18-3601.
18-3206.
743 INDEX-TITLE 18
DEFACING NATURAL SCENIC
OBJECTS, 18-7018.
Advertising, 18-7017.
DEFENSES.
Cannibalism.
18-4506.
Good faith reliance on court orders.
Complete defense to civil or
devices.
Reliance on court order, legislative
authorization or statutory
authorization.
Good faith reliance, 18-6723.
Corporations.
Criminal violations.
chapter, 18-1911.
Criminal solicitation.
Innocence or incapacity of person
solicited, 18-2002.
Renunciation of criminal purpose,
18-2003.
Homicide.
Discharge of defendant when
homicide justifiable or excusable,
18-4013.
Discharge of defendant, 18-4013.
Justifiable homicide.
Defense of property or persons,
18-4009.
Fear not sufficient justification,
18-4010.
Justifiable homicide, 18-4009.
18-4010.
Obscenity.
Perjury.
Ignorance of materiality no defense,
18-5406.
Incompetency of witnesses no
defense, 18-5405.
Oaths.
Irregularity in administering oath
no defense, 18-5404.
care provider.
Consent by patient or clients not a
defense, 18-919.
DEFENSES Cont'd
Shoplifting.
or merchandise.
Employees detaining persons on
premises for purposes of
investigation.
Defense in civil action, 18-4626.
Solicitation.
solicited, 18-2002.
18-2003.
Theft.
Enumerated, 18-2406.
DEFINED TERMS.
Abandoned.
Abandoning vulnerable adults,
18-1505A.
Public health and safety, 18-5817.
Abortion, 18-604.
Abuse.
Vulnerable adults, 18-1505.
Accelerant detection dog, 18-7039.
Access.
Accessories.
Crimes and punishments, 18-205.
Actual notification.
Abortion, 18-609A.
Actual physical control.
Driving under the influence,
18-8002A.
Motor vehicles, 18-8004.
Administrative hearing.
Tests of driver for alcohol
concentration, presence of drugs,
etc.
Suspension upon failure of tests,
18-8002A.
18-1351.
Adult household member.
Advertisement.
Adoption, 18-1512A.
Aggravated assault, 18-905.
Aggravated offense.
right-to-know, 18-8303.
Aggrieved person.
Communications security, 18-6701.
Agricultural research facility,
18-7040.
INDEX-TITLE 18 744
DEFINED TERMS Cont'd
Agricultural research or
experimentation, 18-7040.
Alcohol concentration of 0.10.
Motor vehicles, 18-8004.
Ancestry.
Civil rights, 18-7302.
Any place of public resort,
accommodation or amusement.
Appropriate.
Theft, 18-2402.
Appropriate inventory repurchase
program.
Pyramid schemes, 18-3101.
Appropriate relief.
Partial-birth abortion, 18-613.
Approval.
18-1358.
Assault, 18-901.
Assault with intent to commit a
serious felony, 18-909.
Attorney general.
Aural transfer.
Authorized credit card merchant.
False pretenses and cheats,
18-3122.
Automated banking device.
18-3122.
Baby food or infant formula.
Battery, 18-903.
Battery with the intent to commit
a serious felony, 18-911.
Benefits.
18-1351.
Bestiality.
Children and lunatics, 18-1507.
Bigamy, 18-1101.
Biological agent.
Biological weapons, 18-3323.
Blind bidding.
Motion picture fair bidding,
18-7702.
Body piercing.
Body piercing, branding or tattooing
of minors, 18-1523.
Bomb, 18-3318.
Bomb detection dog, 18-7039.
Branding.
of minors, 18-1523.
Bribe.
Broadcast.
Burglary, 18-1401.
Cardholder.
18-3122.
Caretaker.
Cause or perform an abortion,
18-609A.
Central registry.
Chemical weapon, 18-3324.
Child.
Children and lunatics, 18-1506A,
18-1507.
Civil disorder.
Terrorist control, 18-8102.
Clone cellular telephone.
Communication security, 18-6713.
Cloning paraphernalia.
Commercially reasonable terms.
Commercial purposes.
Compensation.
Computer.
Computer network.
Computer program.
Computer software.
Computer system.
Confidential information.
18-1351.
Consideration.
Chain or pyramid schemes, 18-3101.
Contents.
Convicted of a felony.
Firearms and deadly weapons,
18-3303.
Correctional facility, 18- 101A.
745 INDEX-TITLE 18
Corruptly.
Cosmetics.
Counterfeit cellular telephone.
Counterfeited trademarks,
18-3616.
Course of conduct.
Stalking, 18-7905.
Credit card sales draft.
18-3122.
Crime, 18-109.
Criminal conspiracy, 18-1701.
Current and marketable.
Damages.
Arson, 18-801.
Deadly or dangerous weapon.
Possessing weapons or firearms on
school property, 18-3302D.
Deception.
Theft, 18-2402.
Deface.
Malicious harassment, 18-7902.
Delivery system.
Deny.
Deprive.
Theft, 18-2402.
*
Destructive device, 18-3318.
Disapproval.
18-1358.
Disseminate.
Disseminating material harmful to
minors.
Obscene materials, 18-1515.
Distribute.
Indecency and obscenity, 18-4101.
Distributors.
18-7702.
Drugs.
Dwelling.
Arson, 18-801.
Electronic communication.
Electronic communications system.
Electronic, mechanical or other
device.
Electronic serial number.
Electronic storage.
Emancipated.
Abortion, 18-609A.
Embryo.
Homicide, 18-4016.
Emergency service provider.
Telephones and telegraphs, 18-6810.
Employed.
Entering.
Trespass, 18-7011.
Enterprise.
Enters.
Trespass, 18-7011.
EPROM.
Erasable programmable read-only
memory.
Erotic fondling.
Erotic nudity.
Every person.
Evidentiary testing.
18-8002A.
Exhibit.
Exhibitor.
18-7702.
Expired financial transaction card.
18-3122.
Explicit sexual conduct.
Exploitation.
Facilities.
Principals and accessories, 18-212.
False imprisonment, 18-2901.
Family or household member.
Stalking, 18-7906.
18-913.
INDEX-TITLE 18 746
Felony, 18-111.
Crimes and punishments, 18-111A.
Fetus.
Homicide, 18-4016.
Financial transaction card.
18-3122.
number.
18-3122.
Financial transaction card or FTC.
Theft of bank card information,
18-2415.
Firearm.
Carrying concealed weapons on
Firearms and deadly weapons,
18-3316.
Firefighter.
Arson, 18-801.
Abortion and contraceptives, 18-604.
Forest land.
Arson, 18-801.
Forged trademark, 18-3616.
Forgery, 18-3601.
For use as a weapon.
FTC.
18-3122.
Full automatic weapon.
Prohibition of possession of certain
weapons by minors, 18-3302F.
Full enjoyment of.
Government.
18-1351.
Governmental military force.
Handgun.
Harm.
18-1351.
Harmful to minors.
Hazing.
Hearing officer.
Motor vehicle alcohol and drug
testing, 18-8002A.
Hearing request.
Motor vehicle alcohol and drug
testing, 18-8002A.
Hospitals.
House of prostitution, 18-5613.
Human body waste.
Railroads, 18-6015.
Ignition interlock device.
Breath alcohol analysis, 18-8008.
Illegal telecommunications
equipment.
Imaging device.
Incarceration.
Informed consent.
Abortion, 18-604.
Infraction.
Inhabited.
dwelling structure, 18-3317.
Inhalant.
Inmate.
Prostitution, 18-5613.
In-state prisoner, 18- 101A.
Intercept.
Communications security, 18-6701,
18-6713.
Intimate areas.
Intimate part.
Sexual exploitation by medical care
provider, 18-919.
Inventory.
Inventory loading.
Investigative or law enforcement
officer.
Issuer.
18-3122.
Joint venture.
Juvenile sex offender, 18-8403.
Knowingly.
747 INDEX-TITLE 18
Knowingly Cont'd
Indecency and obscenity, 18-1514,
18-4101.
Law enforcement agency.
Legal telecommunications
equipment.
Libel, 18-4801.
License agreement.
18-7702.
Local correctional facility,
18-101A.
Lottery, 18-4901.
Mail.
18-6718.
Male rape, 18-6108.
Malice and maliciously.
Manslaughter, 18-4006.
Masturbation.
Material.
Obscene materials, 18-1514,
18-4101.
Material support or resources.
Terrorism, 18-8106.
Matter.
Mayhem, 18-500L
Medical care provider.
provider, 18-919.
Medical device.
Medical emergency, 18-609A.
Merchant.
18-2415.
Minor, 18-609A.
of minors, 18-1523.
Carrying concealed firearms on
Obscene materials.
Misdemeanor, 18-111.
Crimes and punishments, 18-111B.
Missing child.
Mobile identification number.
Murder, 18-4001.
Narcotic detection dog, 18-7039.
National origin.
Neglect.
Neglect, negligence, negligent and
negligently.
Nonconsensual contact.
Stalking, 18-7906.
Nudity.
Oath.
Perjury, 18-5402.
Obscene, 18-4101.
Obscene live conduct, 18-4101.
Obtain.
Theft, 18-2402.
Obtains or exerts control.
Theft, 18-2402.
Offender.
Offense.
18-1353.
Official compendium.
18-1351.
Open market.
Oral communication.
Out-of-state prisoner, 18- 101A.
Owner.
Tape piracy, 18-7602.
Theft, 18-2402.
Parent, 18-609A.
Participant.
Party official.
18-1351.
Passenger train.
Railroads, 18-6015.
Patrol dog, 18-7039.
Pattern of racketeering activity,
18-7803.
INDEX-TITLE 18 748
Peace officer.
Pecuniary benefit.
18-1351.
Pen register.
Performance.
Obscene materials.
Perjury, 18-5401.
Person.
Chain or pyramid schemes, 18-3101.
Railroads, 18-6015.
Theft, 18-2402.
Personal identification code.
18-3122.
False pretenses and escheats,
18-3122.
Personal property.
Arson, 18-801.
Physician.
Place where a person has a
reasonable expectation of
privacy.
Police dog, 18-7039.
Police horse, 18-7039.
Abortion, 18-614.
Possess.
Weapons or firearms on school
property, 18-3302D.
Precursor.
Predatory.
Principals.
Prisoner, 18-101A.
Private correctional facility,
18-101A.
Private prison contractor, 18- 10LA.
Private prison facility, 18-101A.
Promote.
Property.
Theft, 18-2402.
Prosecuting attorney.
Prurient interest.
Psychosexual evaluation.
Public moneys.
Public funds and securities,
18-5703.
Public nuisance, 18-5901.
Public places.
Public servant.
18-1351.
Publish.
Purposes not prohibited by this
section.
Pyramid promotional scheme,
18-3101.
Rape, 18-6101.
Readily accessible to the general
public.
Real property.
Arson, 18-801.
Recidivist.
Reckless conduct.
Reencoder.
18-2415.
Residence.
Revoked financial transaction
card.
18-3122.
Riot, 18-6401.
Robbery, 18-6501.
749 INDEX-TITLE 18
Runaway child.
Sadomasochism.
Sado-masochistic abuse.
Scanning device.
18-2415.
School.
Search and rescue dog, 18-7039.
Sell.
Services.
Theft, 18-2402.
Sexual conduct.
Sexual contact.
Children and lunatics, 18-1506,
18-1508A.
18-6110.
provider, 18-919.
Sexual excitement.
18-1514.
Sexual exploitative material.
Sexual intercourse.
Shrapnel, 18-3318.
Solicit.
18-1508A.
Solicitation, 18-2001.
Special influence.
18-1358.
State correctional facility, 18-101A.
State registrar.
Sterile area.
Airport security, 18-7503.
Stolen property.
Theft, 18-2402.
Structure.
Arson, 18-801.
Student.
Tattoo.
of minors, 18-1523.
Telecommunication line.
Telephones and telegraphs, 18-6810.
Telephone.
threaten, etc., 18-6710,
18-6711.
Terrorism.
Theatre.
18-7702.
Third trimester of pregnancy.
Touching.
provider, 18-919.
Toxic chemical.
Toxin.
Tracking dog, 18-7039.
Track motor cars.
Forgery and counterfeiting, 18-3617.
Trade screening.
18-7702.
Trap and trace device.
Traumatic injury.
Unlawful assembly, 18-6404.
Unused merchandise, 18-2417.
User.
Vaginally delivers a living fetus
before killing the fetus.
Value.
Theft, 18-2402.
Vector.
Vendor of unused merchandise,
18-2417.
Victim.
Stalking, 18-7906.
Violent sexual predator.
INDEX-TITLE 18 750
Vulnerable adult, 18-1505.
Weapons of mass destruction,
18-3322.
Willfully.
Wire communication.
DELAYING OR OBSTRUCTING
OFFICER, 18-705.
DENATURED ALCOHOL.
Fines.
Punishment for violation, 18-5503.
Labels.
Requirements of label, 18-5502.
Misdemeanors.
Violation of regulation of sale and
transfer, 18-5503.
Motor vehicles.
Use of denatured alcohol for
anti-freeze purposes, 18-5502.
Sales.
18-5502.
Transfer.
18-5502.
Violations.
Punishment for violation of section,
18-5503.
DENTISTS.
Anaesthetics.
Rape.
DEPARTMENT STORES.
18-802.
DEPOSITIONS.
Perjury.
When making of deposition deemed
complete, 18-5407.
DESERTION.
18-1505A.
wife or children, 18-401 to
18-405.
See SUPPORT AND
MAINTENANCE.
DESTRUCTIVE DEVICES.
Bombs, 18-3318 to 18-3321.
DETENTION.
Prostitution.
Detention for prostitution, 18-5605.
DICE.
18-3810.
See GAMBLING.
DISCRIMINATION.
Ancestry.
Civil rights.
without discrimination declared
civil right, 18-7301.
18-7303.
DISENFRANCHISEMENT.
Voting rights of convicted felons,
18-310.
DISINTERMENT.
purposes of dissection,
18-7028.
DISMEMBERMENT.
Mayhem, 18-5001 to 18-5003.
DISORDERLY CONDUCT.
DISSECTION.
Cemeteries.
purposes of dissection, 18-7028.
DISTRICT COURTS.
Transfer of defendant to district
court, 18-216.
Obscenity.
minors.
Jurisdiction of district courts to
enjoin sale or distribution,
18-1520.
Jurisdiction to issue restraining
orders.
Injunctions, etc., 18-4114.
Racketeering.
Civil jurisdiction, 18-7805.
Jurisdiction over actions brought by
state, 18-7804.
751 INDEX-TITLE 18
DISTRICT COURTS Cont'd
Racketeering Cont'd
Orders, 18-7805.
Rape.
Punishment for rape.
Discretion of district court judge,
18-6104.
DISTURBING THE PEACE.
18-6410.
Refusal to disperse, 18-6410.
Telephones.
Disturbing the peace by repeated
calls, 18-6710.
Misdemeanors.
18-6410.
Punishment for disturbing the peace,
18-6409.
Railroads.
Persons disturbing the peace of
travelers, 18-6012.
Riots.
Denned, 18-6401.
Telephones.
Repeated calls, 18-6710.
DITCHES.
Injuries to ditches and
appurtenances, 18-4306.
Lateral ditches.
Change of lateral ditch, 18-4308.
Lateral ditch.
Taking water from ditches,
18-4301.
DIVERSION OF WATER.
Wrongful diversion, 18-4304.
DIVIDENDS.
Business corporations.
Illegal dividends and reduction of
capital, 18-1904.
Corporations.
DIVORCE.
Bigamy.
18-1102.
DOCUMENTS.
Withholding documents from
successor, 18-2710.
DOGS.
Denned, 18-7039.
Killing or otherwise mistreating,
18-7039.
Common carriers.
Guide dogs.
Denying blind persons use of
common carriers,
18-5812A.
Felonies.
Police dogs, search and rescue dogs
and accelerant detection dogs.
18-7039.
Misdemeanors.
18-7039.
Police dogs.
Denned, 18-7039.
18-7039.
Denned, 18-7039.
18-7039.
DOMESTIC ASSAULT OR
BATTERY.
18-922.
DOMESTIC RELATIONS.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
Husband and wife.
See SUPPORT AND
MAINTENANCE.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
DOMESTIC VIOLENCE, 18-918.
Assault or battery.
18-922.
Crime prevention.
Protection order.
Concealed weapons license,
18-3302.
False statements in application or
request.
Intentionally making, 18-5414.
DOUBLE JEOPARDY.
Contempt.
INDEX-TITLE 18 752
DRIVERS' LICENSES.
violations.
Insurance.
18-1502C.
Manslaughter.
Minors.
paraphernalia.
Effect on driving privileges,
18-1502C.
Restricted licenses.
Burden of proof necessary to obtain
restriction, 18-1502C.
Revocation.
Driving while license revoked,
18-8001.
in injury or death, 18-8007.
Surrender of license.
18-1502C.
Suspension.
Driving while suspended, 18-8001.
18-1502C.
DRIVING UNDER THE
INFLUENCE.
Aggravated driving under the
influence, 18-8006.
Alcohol evaluation by alcohol
evaluation facility, 18-8005.
Breath alcohol analyzed ignition
equipment.
Ignition interlock devices, 18-8008
to 18-8010.
Consent, 18-8002.
Evidence.
Excessive alcohol concentration.
Conviction admissible in civil
action for damages, 18-8004C.
Excessive alcohol concentration,
18-8004C.
Felonies, 18-8005.
influence, 18-8006.
Fines.
18-8004C.
DRIVING UNDER THE
INFLUENCE Cont'd
Fines Cont'd
Fines upon conviction, 18-8005.
Persons under twenty-one with less
than 0.08 alcohol concentration,
18-8004A.
Ignition interlock device.
Assisting in starting or operating in
violation of court order,
18-8009.
Court interlock device and electronic
monitoring device fund.
Surcharge added to fines,
18-8010.
Court order to equip motor vehicle
with, 18-8008.
Minors.
Injury to child, 18-1501.
18-8004A.
Prosecution, 18-8005.
18-8004C.
18-8004A.
Operators' and chauffeurs' licenses.
Conviction for violation.
Suspension of driving privileges,
18-8005.
Stay of suspension upon
reincarceration, 18-8011.
Restricted driving privileges,
18-8002A, 18-8005.
Stay of suspension of license upon
reincarceration, 18-8011.
Temporary driving permits, 18-8002.
Test of driver for blood alcohol.
Failure of tests.
Suspension upon, 18-8002A.
Refusal to submit to test.
18-8002.
Percentage of alcohol in blood,
18-8004.
Percentage of drugs or other
intoxicants in blood, 18-8004.
concentration.
Administrative suspension of driving
privileges.
Failure of tests, 18-8002A.
753 INDEX-TITLE 18
DRIVING UNDER THE
INFLUENCE Cont'd
concentration Cont'd
Attorneys at law.
18-8002.
Failure of tests.
18-8002A.
Immunity from liability for damages,
18-8002.
Persons authorized to withdraw
blood for purposes of
determining content, 18-8003.
Physicians.
blood, 18-8003.
Refusal to submit.
Person informed of consequences,
18-8002.
18-8002.
Treatment programs, 18-8005.
DRUGS.
Administering with intent to
commit felony, 18-913, 18-914.
Felonious administering, 18-913,
18-914.
Motor vehicles.
Drivers' licenses.
18-1502C.
Paraphernalia.
Treatment and rehabilitation.
Court ordered drug treatment
program.
18-1502C.
protection.
DWELLINGS.
Arson in first degree, 18-802.
Burglary generally, 18-1401 to
18-1406.
See BURGLARY.
Firearms.
Unlawful discharge at dwelling
house, 18-3317.
Unlawful entry.
Conduct constituting, 18-7034.
DYNAMITE.
Burglary.
Use of explosives in connection with
burglary, 18-1405.
E
EAVESDROPPING.
Communications security
generally, 18-6701 to 18-6725.
See COMMUNICATIONS
SECURITY.
ECO-TERRORISM.
Solicitation to halt or impede
lawful forest, agricultural or
EDUCATION.
Abusing or insulting school
teachers, 18-916.
Birthdate records of students
required on enrollment,
18-4511.
Bomb threats.
False reports of explosives, 18-3313.
Enrollment of first time students or
transfers.
Record of birthdate or identity
required, 18-4511.
Identification records of students
required on enrollment,
18-4511.
Missing children.
School duties, 18-4511.
Records.
Birthdate or identification records of
students on enrollment,
18-4511.
Weapons.
Concealed weapons.
Carrying in public or private
schools prohibited, 18-3302C.
ELECTIONS.
Actions.
Influencing votes.
Attempting to influence vote by
bringing suit or criminal
prosecution, 18-2319.
Aiding and abetting election
offenses, 18-2312.
Arrest.
Duty of officers, sheriffs,
constables, etc., to make
arrest, 18-2318.
INDEX-TITLE 18 754
ELECTIONS Cont'd
Ballots.
Attempt of officer to ascertain vote or
open ballot, 18-2308.
Casting more than one ballot,
18-2306.
Tampering with ballots, 18-2316.
Booths.
Placing placards in booths, 18-2323.
Bribery.
Influencing votes of electors,
18-2320.
Canvass of votes.
Interfering with canvassing of votes,
18-2313.
Constables.
Duty to make arrest, 18-2318.
Actions.
Influencing votes by bringing suit
or criminal prosecution,
18-2319.
Adding to or subtracting from votes,
18-2311.
18-2312.
Attempt of officer to ascertain vote,
18-2308.
Ballots.
Tampering with ballots, 18-2316.
Betting on elections, 18-2314.
Booths.
Placing placards in booths,
18-2323.
Bribery of electors, 18-2320.
Casting more than one vote,
18-2306.
Corruption, intimidation and fraud,
18-2305.
Debts.
Influencing votes by enforcing
payment of debt, 18-2319.
Electioneering at polls, 18-2318.
Election offenses not otherwise
provided for, 18-2315.
Failure to perform duty, 18-2301.
Fraud, 18-2305.
Illegal voting or interference with
election, 18-2306.
Procuring illegal votes, 18-2304.
Influencing votes, 18-2319.
Interference with election, 18-2306.
Intimidation, corruption and fraud,
18-2305.
Malfeasance.
Official neglect or malfeasance,
18-2301.
ELECTIONS Cont'd
Officers attempting to change results,
18-2309.
18-2301.
Perjury.
False swearing as to qualifications
as voter, 18-2302.
Posters or promotional materials
placed on public or private
property without permission,
18-7029.
Qualifications of voters.
False swearing, 18-2302.
Refusal to be sworn or to answer
questions, 18-2303.
Registration.
Fraudulent permission of
registration, 18-2321.
Illegal registration by voter,
18-2322.
Repeat voting, 18-2307.
Returns.
Forging or counterfeiting returns,
18-2310.
Riotous conduct, 18-2313.
Supplies.
Destroying or defacing, 18-2317.
Threats, 18-2305.
Voters.
False swearing as to qualifications
of voters, 18-2302.
Voting.
Attempting to vote when not
qualified, 18-2307.
Debtors and creditors.
Influencing votes of debtor, 18-2319.
Destroying or defacing supplies,
18-2317.
Felonies.
18-2311.
Illegal voting, 18-2306.
Offenses not otherwise provided for,
18-2315.
Officers attempting to change result
of election, 18-2309.
Returns.
18-2310.
755 INDEX-TITLE 18
ELECTIONS Cont'd
Felonies Cont'd
Tampering with certificates of
nomination or ballots, 18-2316.
Fines.
18-2308.
Ballots.
Officers attempting to ascertain
vote cast, 18-2308.
Booths.
18-2323.
18-2317.
18-2315.
18-2301.
Registration.
18-2322.
Returns, 18-2310.
Fraud, 18-2305.
qualified, 18-2307.
Fraudulently casting votes, 18-2306.
Registration.
Gambling.
Illegal votes.
Interference with election,
18-2306.
Interfering with free exercise of
election franchise, 18-2313.
Malfeasance.
18-2301.
Misdemeanors.
18-2312.
qualified, 18-2307.
18-2308.
18-2322.
ELECTIONS Cont'd
Misdemeanors Cont'd
18-2305.
18-2301.
Placing posters or promotional
material on public or private
Violation of section constitutes
questions, 18-2303.
Supplies.
Nomination.
Certificates of nomination.
Tampering with certificates,
18-2316.
Oaths.
False swearing as to qualifications as
voter, 18-2302.
questions, 18-2303.
Officers.
18-2308.
Attempts by officer to change result
Perjury.
voter, 18-2302.
Polling places.
Booths.
18-2323.
Voting rights restoration, 18-310.
Registration of voters.
18-2322.
Results.
Officers attempting to change result,
18-2309.
Returns.
Detaining, mutilating or destroying
election returns, 18-2306.
Forging or counterfeiting, 18-2310.
Interference with making of returns,
18-2313.
INDEX-TITLE 18 756
ELECTIONS Cont'd
Sentencing.
Official neglect or malfeasance.
Term of imprisonment for violation,
18-2301.
Sheriffs.
Signs.
18-7029.
Supplies.
Threats.
18-2305.
Voting.
Casting more than one ballot,
18-2306.
Wagering on elections, 18-2314.
ELECTRIC POWER.
Accessories.
18-4622.
Aiding and abetting.
18-4622.
18-6804.
18-6804.
or burning of lines or plants,
18-6805.
Removal or destruction of
transmission lines, 18-6803.
18-4622.
Evidence.
Felonies.
Removal, destruction or burning of
lines or plants, 18-6805.
Fines.
Injuring electric lines, 18^6802.
ELECTRIC POWER Cont'd
Fines Cont'd
. or burning of electric lines or
plants, 18-6805.
Fire protection.
18-6804.
Lines.
Injuries to electric lines, 18-6802.
Meters.
Misdemeanors.
18-4622.
Theft.
Evidence, 18-4623.
Liability of accessories, 18-4622.
Transmission lines.
Destroying poles, 18-7020.
Removal or destruction, 18-6803.
ELECTRONIC MONITORING
DEVICES.
Motor vehicles.
Court interlocal device and electronic
18-8010.
Court order to record person's
movements, 18-8008.
ELEVATORS.
Blind persons.
Denial of blind persons accompanied
by guide dogs, 18-5812A.
Guide dogs.
Deaf persons.
Denial of deaf persons, 18-5812A.
use, 18-5812A.
EMBEZZLEMENT.
Consolidation of theft offenses,
18-2401.
Defenses, 18-2406.
757 INDEX-TITLE 18
EMBEZZLEMENT Cont'd
Theft.
18-2415.
See THEFT.
EMERGENCIES.
Telephones.
Emergency calls enumerated,
18-6808.
Relinquishment of line for emergency
messages, 18-6806.
Information required of person
making request, 18-6807.
EMERGENCY MEDICAL
TECHNICIANS.
EMPLOYERS AND EMPLOYEES.
Civil rights.
without discrimination
Discrimination.
without discrimination declared
civil right, 18-7301.
Homicide.
Misdemeanors.
Denial of right to work constitutes
misdemeanor, ,18-7303.
Right to work.
Denial constitutes misdemeanor,
18-7303.
18-7303.
Taxation.
Refusal to give tax collector names of
employees, 18-6304.
EMPLOYMENT DISCRIMINATION.
Declaring civil right to hold job
without discrimination,
18-7301.
ENTICING OF CHILDREN.
Criminal offenses, 18-1509.
Internet, 18-1509A.
EROTIC FONDLING.
18-1507, 18-1507A.
ESCAPE.
Audits and auditors.
Audit by board of examiners,
18-2507.
Constables.
Costs.
Prosecution.
How paid, 18-2507.
County treasurers.
Costs of prosecution, 18-2507.
Determination of fitness of
defendant to proceed with
criminal trial.
Enticing, aiding, harboring or
employing escaped prisoners,
18-2508.
Felonies.
Carrying prisoner things to aid
escape, 18-2503.
Escape by prisoners charged with or
convicted of misdemeanor,
18-2506.
Juveniles charged with, convicted of
or on probation for felony,
18-2505.
or on probation for misdemeanor,
18-2506.
Persons charged with, convicted of or
on probation for felony,
18-2505.
Private persons assisting in escape,
18-2504.
Fines.
Enticing, aiding, harboring, etc.,
18-2509.
Harboring escaped prisoners,
18-2508.
Homicide.
Murder committed by person while
escaping, 18-4003.
Jails.
escape, 18-2503.
18-2508.
Misdemeanors.
Escape by prisoners charged with
or convicted of misdemeanor,
18-2506.
INDEX-TITLE 18 758
ESCAPE Cont'd
Jails Cont'd
18-2504.
Juvenile detention facilities.
18-2505.
Juveniles charged with or convicted
of misdemeanor, 18-2506.
Misdemeanors.
Harboring, enticing, aiding, etc.,
escaped prisoners, 18-2509.
Prisoners charged with or convicted
Murder.
escaping, 18-4003.
Officers assisting in escape,
18-2502.
escape, 18-2503.
18-2508.
18-2505.
Prisoners convicted of misdemeanor,
18-2506.
18-2504.
18-2504.
Probation.
Person on probation for felony,
18-2505.
Prosecution.
Payment of expenses, 18-2507.
Sheriffs.
State board of examiners.
Prosecution.
Audit of costs of prosecution,
18-2507.
ETHER.
18-913, 18-914.
EVIDENCE.
Alteration, destruction or
concealment, 18-2603.
EVIDENCE Cont'd
Barratry.
18-1003.
Disposal.
Photograph, videotape, or similar
record, 18-3320A.
Bribery.
Incriminating testimony, 18-1308.
Checks.
18-3106.
Prohibition of use as evidence of
intercepted communications,
18-6705.
Concealment, destruction or
alteration of evidence, 18-2603.
18-2603.
to proceed.
State of mind.
Reception of evidence, 18-207.
Excessive alcohol concentration.
Conviction admissible in civil
action for damages, 18-8004C.
Electric power.
Felonies.
Fines.
18-2603.
documents in evidence, 18-2601.
Fraud.
Documents.
Offering into evidence, 18-2601.
Grand jury.
Disclosing evidence before grand
jury, 18-4403.
759 INDEX-TITLE 18
EVIDENCE Cont'd
Homicide.
Manslaughter.
conviction in civil action for
damages, 18-4006.
Intent.
Mens rea.
18-207.
Manslaughter.
Conviction for manslaughter
admissible in civil action for
damages, 18-4006.
Mens rea.
18-207.
Misdemeanors.
18-2603.
Obscenity.
Expert witness testimony, 18-4110.
Motion to suppress evidence.
Unlawful seizure of property,
18-4111.
Special verdict.
Inadmissible as evidence,
18-4108.
Photographic copies of business
records.
Theft.
Removal of pricq tag or label.
Photographic evidence, 18-4625.
Privileged communications.
Libel and slander.
Public proceedings, 18-4808.
Support and maintenance, 18-405.
Rape.
Impeaching credibility of witnesses
by showing prior felony
convictions, 18-6105.
Penetration.
Proof of physical ability to
accomplish penetration,
18-6102.
Previous sexual conduct, 18-6105.
Rape shield law, 18-6105.
Records.
Sentencing.
18-2603.
EVIDENCE Cont'd
right-to-know.
18-8321.
Sexual offenses.
Spoliation of evidence, 18-2603.
State of mind.
18-207.
Prima facie evidence of abandonment
or nonsupport, 18-403.
Proof of marriage, 18-405.
Rules of evidence, 18-405.
Theft.
Prima facie evidence, 18-2404.
Proof and pleadings, 18-2409.
Removal, alteration, etc., of price
tags or labels.
Photographic evidence of violation,
18-4625.
Supporting evidence, 18-2401.
Writings.
18-2603.
EXAMINATIONS.
proceedings.
Appointment of psychiatrists and
psychologists to examine
defendant, 18-211.
EXCUSABLE HOMICIDE, 18-4012,
18-4013.
EXECUTIVE DEPARTMENT.
Threats.
Threats against state elected officials
of the executive branch,
18-1353A.
EXHIBITIONISM, 18-4116.
EXHIBITS.
Obscenity.
Definition of exhibit, 18-4101.
EXHUMATION.
Unlawful removal of human
remains, 18-7028.
INDEX-TITLE 18 760
EXPLOSIVES.
Aeronautics.
False reports of explosives made to
employees of airports or airline,
18-3313.
Arson, 18-801 to 18-805.
Bombs and destructive devices,
18-3318 to 18-3321.
Bomb threats.
Burglary.
Use of explosives in burglary,
18-1405.
Minors.
Sales to minors, 18-3308.
Misdemeanors.
Keeping gunpowder or other
explosives in towns, 18-3311.
Newspapers.
Penalties.
Railroads.
employees of railroads, 18-3313.
Reports.
Sales.
Minors.
Selling explosives to minors,
18-3308.
Schools.
EXPRESS COMPANIES.
Weapons.
Firearms.
Shipping loaded firearms,
18-3310.
EXPUNGEMENT OF RECORDS.
right-to-know.
Release from registration
requirements, 18-8310.
EXTORTION.
18-2401.
Defenses, 18-2406.
Libel and slander.
Threats to publish libel, 18-4809.
Theft.
18-2415.
See THEFT.
Theft by extortion, 18-2403.
EYES.
Mayhem.
Dismemberment of human bodies,
18-5001.
FACTORS.
False statements by factors as to
18-3105.
FAITH HEALING.
Treatment of injured or sick
children by prayer or spiritual
means, 18-1501.
FALSE ALARMS.
Telephones.
911 emergency telephone systems,
18-6711A.
FALSE IMPRISONMENT.
Denned, 18-2901.
Fines.
Punishment for false imprisonment,
18-2902.
Kidnapping, 18-4501 to 18-4506.
See KIDNAPPING.
FALSE INSTRUMENTS.
Filing, 18-3203.
FALSE PERSONATION.
Acknowledgments.
Bonds, surety.
Felonies.
Marriage under false personation,
18-3003.
761 INDEX-TITLE 18
FALSE PERSONATION Cont'd
Intimidation by false assertion of
authority, 18-3005.
Marriage.
18-3003.
Solemnizing marriage without
authority, 18-3004.
Property.
Receiving money or property under
false personation, 18-3002.
Taxation.
18-6309.
FALSE PRETENSES.
18-2401.
Theft.
18-2415.
See THEFT.
FALSE PROMISES.
Theft by false promises, 18-2403.
FALSE SWEARING.
Perjury, 18-5401 to 18-5414.
See PERJURY.
FALSIFYING EVIDENCE, 18-2601.
FAMILY DAY CARE HOMES.
prohibited.
18-8328.
FAMILY LAW.
18-405.
See SUPPORT AND
MAINTENANCE.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
FAMISHED ANIMALS.
Sales, 18-5804.
FARO.
18-3810.
See GAMBLING.
FEAR.
Homicide.
Insufficient justification, 18-4010.
FEES.
Motion pictures.
Fair bidding act.
Minimum fee guarantee.
Weapons.
Concealed weapons.
FELLATIO, 18-6605.
FELONIES.
18-1505A.
Abortions.
18-603.
18-606.
Accessories.
charged with felonies, 18-205.
Punishment, 18-206.
18-2706.
Adoption.
18-1511.
Aeronautics.
passengers, other persons,
commercial airline companies or
aircraft, 18-7504.
Weapons.
Carrying weapons aboard aircraft,
18-7503.
Animals.
18-7039.
Permitting at large, 18-5808.
18-7039.
18-7039.
INDEX-TITLE 18 762
FELONIES Cont'd
Aquaculture.
Arson, aggravated, 18-805.
Arson in second degree, 18-803.
Arson in third degree, 18-804.
Assault or battery upon peace
officers, officers of the court,
etc., 18-915.
18-4015.
Attempts to commit crime,
punishment, 18-306.
Bad checks, 18-3106.
Bigamy, 18-1103.
18-1104.
Bills.
Propelling at certain persons,
18-915B.
Bomb threats.
Bribery.
Bribery in official and political
matters, 18-1352.
Asking or receiving bribes,
18-2702.
Influencing jurors and arbitrators,
18-1304.
Legislature.
Legislators receiving bribes,
18-4704.
18-4703.
Misconduct of jurors and arbitrators,
18-1305.
Municipal of county officers,
18-1309.
Officers purchasing scrip, 18-2705.
Burglary, 18-1403.
Use of explosives, 18-1405.
FELONIES Cont'd
Cemeteries.
18-7028.
Taking child outside state, 18-4506.
18-1507.
Possession of material for other than
commercial purposes, 18-1507A.
Child sexual abuse, 18-1506.
Child sexual exploitation, 18-1507.
Civil rights suspension and
restoration, 18-310.
Common law offenses, 18-303.
oral or electronic
Manufacturing, distributing, etc.,
intercepting devices, 18-6703.
Telephones.
Terrifying, intimidating, harassing
or annoying use of, 18-6711.
etc., 18-6710.
Compounding felonies, 18-1601.
County auditors.
Crimes divided into felonies and
misdemeanors, 18-110.
Dams, canals and other structures.
Injuring, 18-7019.
Defined, 18-111, 18-111A.
Disenfranchisement.
Voting rights of convicted felons,
18-310.
Dogs.
18-7039.
Elections.
18-2311.
763 INDEX-TITLE 18
FELONIES Cont'd
Elections Cont'd
18-2315.
Officers attempting to change result
Returns.
18-2310.
Tampering with certificates of
nomination or ballots, 18-2316.
Electric power.
Removal, destruction or burning of
lines or plants, 18-6805.
Internet, 18-1509A.
Escape, 18-2505, 18-2506.
escape, 18-2503.
18-2504.
Evidence.
False instruments.
Filing, 18-3203.
False personation.
18-3003.
18-914.
Filing false instruments, 18-3203.
Fines.
Imprisonment for nonpayment of
fine, 18-303.
Authorization to impose, 18-112A.
First degree felony defined,
18-111A.
Forest sabotage, 18-4631.
Illegal use of documents, 18-4630.
18-3604, 18-3608.
Counterfeiting coin or bullion,
18-3607.
FELONIES Cont'd
Forgery and counterfeiting Cont'd
Fictitious bills, notes and checks,
18-3606.
18-3609.
Possession of counterfeiting
apparatus, 18-3610.
Possession of forged notes or bank
bills or checks, 18-3605.
Fraud.
18-2706.
Homicide.
18-4015.
Felony murder.
Homicide committed in
perpetration of certain crimes,
18-4003.
Apprehending persons for felonies,
18-4009.
Poison administered with intent to
kill, 18-4014.
Human remains.
Defacing, altering or obliterating,
18-2410.
fine, 18-303.
Imprisonment in state prison,
18-112.
Incest, 18-6602.
Indecent exposure.
Second offense, 18-4116.
18-6605.
Internet.
18-1509A.
Intimidating witness, 18-2604.
Investments.
Jails.
Injuring, 18-7018.
Person charged with, convicted of or
18-2505.
INDEX-TITLE 18 764
FELONIES Cont'd
Jury.
Attempts to influence jurors,
18-1304.
Jury lists.
Certifying to false jury lists,
18-4405.
Tampering with jury list, 18-4404.
Juveniles.
Incarceration of juveniles for felony
offenses, 18-113B.
Legislature.
Bribery.
18-4703.
Receiving bribes, 18-4704.
Livestock.
Male rape, 18-6109.
Malicious injury to property,
18-7001.
Marriage.
False personation.
18-3003.
Mayhem, 18-5002.
Minors.
Internet, 18-1509A.
offenses, 18-113B.
sixteen, 18-1508.
Obscenity.
18-1517A.
18-1508A.
Money laundering, 18-8201.
Murder, 18-4004.
18-4015.
Obscenity.
Conspiracy to commit crimes
prescribed by act, 18-4107.
FELONIES Cont'd
Obscenity Cont'd
Indecent exposure.
Minors.
18-1517A.
Third or subsequent violations,
18-4109.
Peace officers.
Unlawful importation of police
officers, 18-711.
Penitentiary.
Escape.
escape, 18-2503.
Escape by one charged with,
convicted of or on probation for
felony, 18-2505.
Perjury, 18-5409.
Subornation of perjury, 18-5410.
Personal property.
18-7001.
Poisons.
kill, 18-4014.
Poisoning food, medicine or wells,
18-5501.
Police.
Theft of police reports, 18-3201.
officers, 18-711.
Prior convictions.
Rape.
Impeachment of credibility,
18-6105.
Prisoners possessing controlled
substances or dangerous
weapons, 18-2511.
Property.
18-7001.
Accepting earnings of prostitute,
18-5606.
Interstate trafficking in prostitution,
18-5601.
Third or subsequent conviction,
18-5614.
Procurement, 18-5602.
Paying for procurement, 18-5604.
765 INDEX-TITLE 18
FELONIES Cont'd
Prostitution Cont'd
Procurement Cont'd
Receiving pay for procurement,
18-5603.
18-5702.
18-5701.
18-2705.
successor, 18-2710.
Pyramid promotional schemes.
Participation, 18-3101.
investments, 18-8201.
Railroads.
Injuring railroad property, 18-6006.
Larceny of car parts, 18-6007.
death, 18-6011.
railroad, 18-6010.
18-6001.
Receiving stolen car parts, 18-6008.
Rape.
Impeachment of credibility by
showing prior felony convictions,
18-6105.
Male rape, 18-6109.
Real property.
18-7001.
Recordation.
Records.
18-3201.
Reports.
Riots, 18-6402.
18-1506A.
Robbery, 18-6501, 18-6503.
Sale or barter of a child for
adoption or other purposes,
18-1511.
FELONIES Cont'd
Scanning devices.
18-2415.
Scrip purchased by executive
officers, 18-2705.
Second degree felony defined,
18-111A.
Sentencing.
Fines.
Imprisonment for nonpayment,
18-303.
Sexual abuse of children, 18-1506.
18-1508A.
18-6110.
18-1507.
right-to-know.
Evasion of service of notice of
designation of offender as violent
sexual predator, 18-8311.
Failure to register or provide notice,
18-8311.
Sexual offenses.
Forcible sexual penetration by use of
foreign object, 18-6608.
18-6110.
Stalking.
Statutes.
18-4702.
Subornation of perjury, 18-5410.
Desertion and nonsupport of wife,
18-401.
Tape piracy act, 18-7604.
Taxation.
Blank licenses.
18-6309.
Officers.
Neglect of duty or failure to
perform, 18-6308.
Receipts.
Poll tax receipts.
Telegraphs.
Forging telegraphic messages,
18-6715.
INDEX-TITLE 18 766
FELONIES Cont'd
Telegraphs Cont'd
Telephones.
False statements.
intimidate, etc., by false
statement, 18-6711.
threaten, etc., 18-6710.
Term of imprisonment, 18-112.
Terrorism.
Material support of terrorists,
18-8106.
Prohibited acts, 18-8103.
Theft.
Theft detection shielding devices.
Second offenses, 18-2411.
Third degree felony defined,
18-111A.
Threats.
elected officials of city or county.
Second or subsequent conviction,
18-1353A.
Trees and timber.
Cutting state timber for shipment,
18-7010.
Underground workings of mines.
Setting fire to, 18-7025.
protection.
Weapons.
Biological, 18-3323.
Chemical, 18-3324.
Firearms.
Civil rights suspension upon
conviction, 18-310.
Dwelling houses, occupied
buildings, vehicles or mobile
homes.
Unlawful discharge of firearm at,
18-3317.
Removing from a law enforcement
officer, 18-915A.
Possessing dangerous weapon,
18-2511.
Mass destruction, 18-3322.
Witnesses.
Intimidating, 18-2604.
Written instruments.
Mutilating, 18-3206.
FELONIOUS ADMINISTERING OF
DRUGS, 18-913, 18-914.
FELONY MURDER.
18-4003.
FENCES.
Destroying fence posts, 18-7020.
Gates.
Opening gates and destroying fences,
18-7012.
Opening gates and destroying
fences, 18-7012.
Trespass.
FERRIES.
Toll ferries.
FETUS.
Prosecution prohibited.
Killing of embryo or fetus, 18-4016.
FILMS.
18-7608.
FINANCIAL TRANSACTION
CARDS.
Fraud, 18-3122 to 18-3128.
See CREDIT CARDS.
FINES.
18-1505A.
Adoption.
18-1511.
Adultery, 18-6601.
Advertisements.
Aeronautics.
Weapons.
18-7503.
Agents.
property, 18-3105.
Animals.
dwellings and streams, and
767 INDEX-TITLE 18
FINES Cont'd
Aquaculture.
Assault, 18-902.
punishment, 18-306.
Barratry.
Battery, 18-904.
Bigamy, 18-1103.
18-1104.
Book making, 18-3809.
Bribery.
Executive officers.
Purchasing scrip, 18-2705.
18-2708.
Brokers.
property, 18-3105.
Canals.
Cemeteries.
18-7028.
Checks.
insufficient funds, 18-3106.
Clerks of court.
18-5704.
merchants, 18-3105.
Compounding crimes, 18-1601.
Consignments.
consigned, 18-3105.
Constables.
18-5704.
Copies.
Corporations.
18-1905.
Corrections.
FINES Cont'd
County auditors.
Credit card fraud.
Misdemeanor violation, 18-3128.
Compounding crimes, 18-1601.
Dams.
Injuring dams,* 18-7019.
Denatured alcohol.
Elections.
18-2308.
Ballots.
Officers attempting to ascertain
vote cast, 18-2308.
Booths.
18-2323.
18-2317.
18-2315.
18-2301.
Registration.
18-2322.
Electric power.
or burning of electric lines or
plants, 18-6805.
Escape.
Enticing, aiding, harboring, etc.,
18-2509.
Evidence.
18-2603.
False imprisonment.
Punishment for false imprisonment,
18-2902.
False personation.
Punishment for false personation,
18-3001.
Felonies.
fine, 18-303.
INDEX-TITLE 18 768
FINES Cont'd
Felonies Cont'd
Authorization to impose, 18-112A.
18-914.
Firearms.
Aiming firearms at others, 18-3304.
Discharge of firearms aimed at
another, 18-3305.
Injuring another by careless
handling and discharge,
18-3312.
Injuring another by discharge of
aimed firearms, 18-3306.
Minors.
Selling to minors, 18-3308.
without permit, contract, bill of
sale or product load receipt,
18-4629.
Car keys.
Simulation of switch and car keys,
18-3613.
Counterfeiting railroad tickets,
18-3611.
Railroad tickets.
Restoring cancelled tickets,
18-3612.
18-3619.
Fornication.
Punishment for fornication,
18-6603.
Gambling.
Book making and pool selling,
18-3809.
Highways.
Placing debris on highways,
18-3906.
Tolls.
Ignition interlock devices or
electronic monitoring devices.
18-8010.
Inhalants.
FINES Cont'd
Injuring dams, canals and other
structures, 18-7019.
Jails.
Injuring jails, 18-7018.
Juvenile sex offender registration
right-to-know.
Parent or guardian of juvenile sex
offender.
Failure of offender to register or
provide notification, 18-8409.
Vigilantism or other misuse of
information obtained under
provisions, 18-8413.
Libel and slander.
Punishment for libel, 18-4802.
Littering.
18-3906.
Lumber.
18-4616.
Magistrates.
Criminal proceedings.
18-5704.
Penalty for malicious harassment,
18-7903.
Manslaughter.
Involuntary manslaughter, 18-4007.
Voluntary manslaughter, 18-4007.
Minors.
Body piercing, branding or tattooing,
18-1523.
Misdemeanors.
fine, 18-303.
Penalty for misdemeanor, 18-113.
Motor vehicles.
Driving without privileges, 18-8001.
monitoring devices.
Court interlock device and
electronic monitoring device
fund.
18-8010.
No contact orders, violation,
18-920.
Notice.
769 INDEX-TITLE 18
FINES Cont'd
Obscenity.
minors, 18-1515.
Punishment for violations, 18-4109.
Penitentiary.
Escape.
18-2502.
Personal property.
18-7001.
Pool selling, 18-3809.
Proclamations.
Prostitution.
18-5606.
Enticing persons under eighteen
years of age into prostitution,
18-5609.
18-5601.
18-5603.
18-5704.
18-2708.
Racketeering.
Punishment for racketeering,
18-7804.
Railroads.
Punishment for stealing rides,
18-4620.
Real property.
18-7001.
Records.
Private persons stealing, mutilating
or falsifying public records,
18-3202.
FINES Cont'd
right-to-know.
18-8311,
Sheriffs.
18-5704.
Smoking.
Stalking.
Tape piracy act.
Tattooing of minors, 18-1523.
Taxation.
18-6309.
Officers.
Neglect or failure to perform duty,
18-6308.
Tax collectors.
Theft of services, 18-6713.
Voidance of telecommunications
charges, 18-6714.
Telegraphs.
18-6715.
Intentional destruction of
telecommunication lines and
Telephones.
Removal or obstruction of telephone
Terrorism.
Material support or resources,
18-8106.
Theft, 18-2408.
INDEX-TITLE 18 770
FINES Cont'd
Tolls.
Evasion of toll on ferries or toll
bridges, 18-3910.
Transcripts.
Trees and timber.
18-4616.
Destroying lumber, 18-7020.
18-7026.
Trespass.
protection.
Water supply and waterworks.
Weapons.
Chemical, 18-3324.
Firearms.
Aiming firearms at others,
18-3304.
another, 18-3305.
18-3312.
Minors.
Sale to minors.
Firearms, 18-3308.
Prohibited acts, 18-3302A.
Possessing on school property,
18-3302D.
Weights and measures.
Scales.
18-7206.
FINGERPRINTS.
Concealed weapons.
Licenses to carry.
Submission of fingerprints with
application, 18-3302.
FIREARMS.
18-906.
18-908.
FIREARMS Cont'd
18-3317.
See WEAPONS.
FIRE PROTECTION.
Arson, 18-801 to 18-805.
Camp fires.
Permitting fire to spread, 18-7004.
Cigarettes.
Throwing away or leaving lighted
cigarettes, 18-7005.
Damage to public lands from
throwing away or leaving lighted
Electric power.
18-6804.
Firefighters.
Aggravated arson.
Causing harm or death of
firefighter, 18-805.
Mines and mining.
workings, 18-7024.
Punishment for violation,
18-7025.
Misdemeanors.
Damages to forage on public lands
lighted substances, 18-7005.
Prairie lands.
Firing prairie lands, 18-7004.
Telephones.
18-6808.
Throwing away or leaving lighted
Trees and timber.
18-7004.
United States.
FIRING TIMBER OR PRAIRIE
LANDS, 18-7004.
771 INDEX-TITLE 18
FISH AND GAME.
Department of fish and game.
Protection of wild flowers and shrubs
along highways.
Duty of department, 18-3913.
Foxes.
Trespass on enclosure of fur-bearing
animal, 18-7015.
Trespass on enclosures, 18-7015.
FLAGS.
Misdemeanors.
Public mutilation of flag, 18-3401.
FLOOD PREVENTION.
Highways, 18-3908.
FONDLING.
18-1507, 18-1507A.
FOOD.
Animals.
animals, 18-5804.
Poison.
Mixing poison with food with intent
to injure, 18-5501.
Theft.
Proof of fraudulent intent in
procuring food, lodging or other
accommodations, 18-2405.
FORCIBLE ENTRY AND
UNLAWFUL DETAINER.
Misdemeanors.
Unlawful reentry of land after
ouster, 18-3502.
Reentry of land after ouster.
ouster, 18-3502.
FORCIBLE SEXUAL
PENETRATION BY USE OF
FOREIGN OBJECT, 18-6608.
FORESTS AND FORESTRY.
Arson in third degree.
Burning of forest land, 18-804.
Certificate of notification.
Certificates of compliance.
Contracts.
Transportation of products without
contract, 18-4629.
FORESTS AND FORESTRY Cont'd
18-4628.
Without permit, contract, bill of
sale, etc., 18-4629.
Felonies.
Sabotage, 18-4631.
Fines.
sale or product load receipt,
18-4629.
Fire protection.
18-7004.
Misdemeanors.
18-4628.
Without permit, contract, bill of
sale, etc., 18-4629.
Permits.
without permit.
Penalty, 18-4629.
Product load receipts.
Purchase of forest products
without proof of ownership,
18-4628A.
Sabotage, 18-4631.
Sales.
without bill of sale.
Penalty, 18-4629.
lawful forest practices,
18-2005.
18-4628.
Penalty for transportation without
permit, contract, bill of sale or
product load receipt, 18-4629.
FORFEITURES.
Bribery.
Executive officers.
Asking or receiving bribes.
Judicial officers convicted of crime,
18-1307.
INDEX-TITLE 18 772
FORFEITURES Cont'd
Bribery Cont'd
Forfeiture of public office,
18-2708.
18-6704.
Proceedings for forfeiture of public
office.
Legislature.
Property.
Forfeiture of property prohibited,
18-314.
Failure to account for forfeitures,
18-5704.
Racketeering.
Penalties for racketeering, 18-7804.
FORGERY AND
COUNTERFEITING.
Bank bills or checks.
Possession of forged bills or checks,
18-3605.
Banks and financial institutions.
Credit card sales draft, 18-3123.
Financial transaction card, 18-3123.
Account number, 18-3123.
Possession of forged bank bills or
checks, 18-3605.
Bullion.
Counterfeiting bullion, 18-3607.
Car keys.
18-3613.
Checks.
Defined, 18-3601.
Fictitious checks, 18-3606.
publishing fictitious checks,
18-3606.
Possession of forged checks,
18-3605.
Coins.
Counterfeiting coins, 18-3607.
Penalty for manufacture or sale,
18-3620.
18-3619.
FORGERY AND
COUNTERFEITING Cont'd
Coins
Cont'd
18-3609.
18-3620.
18-3619.
Corporations.
Exhibition of forged papers to public
officers, 18-1902.
Counterfeiting apparatus.
Credit card sales drafts, 18-3123.
18-3128.
Fraudulent use of draft, 18-3124.
Possessing or receiving fraudulently
obtained goods or services,
18-3128.
Unauthorized factoring of draft,
18-3125A.
Deeds.
Forgery defined, 18-3601.
Definitions.
Deeds, 18-3601.
Forged and counterfeit trademarks,
18-3616.
Trademarks, 18-3617.
Dies and plates.
apparatus, 18-3610.
Elections.
Returns, 18-2310.
Evidence.
False instruments, filing, 18-3203.
Felonies, 18-3604, 18-3608.
18-3607.
18-3606.
18-3609.
apparatus, 18-3610.
18-3606.
account numbers, 18-3123.
18-3128.
773 INDEX-TITLE 18
FORGERY AND
account numbers Cont'd
Criminal possession of card and FTC
forgery devices, 18-3125.
Fraudulent use, 18-3124.
Possessing or receiving fraudulently
obtained goods or services,
18-3128.
Fines.
Car keys.
18-3613.
18-3611.
Railroad tickets.
Restoring canceled tickets,
18-3612.
Use in vending machines or coin
boxes, 18-3619.
Forgery.
Denned, 18-3601.
Imprisonment.
Misdemeanors.
Counterfeiting railroad ticket,
18-3611.
Restoring canceled railroad tickets,
18-3612.
Sale of counterfeit goods, 18-3615.
18-3613.
Slug manufacture or sale, 18-3620.
Slugs in vending machines, 18-3619.
Trademarks.
Forging or counterfeiting
trademarks, 18-3614.
Motor vehicles.
Switch and car keys.
Simulation, 18-3613.
Notes.
publishing fictitious notes,
18-3606.
Possession of forged notes, 18-3605.
documents in evidence,
18-2601.
Powers of attorney.
Precious metals.
18-3607.
FORGERY AND
Punishment for counterfeiting,
18-3608.
Punishment for forgery, 18-3604.
Railroads.
Restoring cancelled railroad tickets,
18-3612.
Tickets.
18-3611.
Recordation.
False entries in books of record,
18-3602.
Records.
18-3602.
Sales.
Counterfeit goods, 18-3615.
Seals.
Public seals, 18-3603.
Seal of the state, 18-3603.
Defined, 18-3601.
Telegraphs.
18-6715.
Trademarks.
Defined, 18-3617.
Forged and counterfeit trademarks,
18-3614.
Defined, 18-3616.
Uttering.
Notes, 18-3606.
Vending machines.
18-3619.
Wills.
Defined, 18-3601.
FORMS.
Obscenity.
Special verdict, 18-4108.
FORNICATION.
Fines.
Punishment for fornication,
18-6603.
Probation.
Suspension of sentence with or
without probation, 18-6603.
INDEX-TITLE 18 774
FOXES.
Trespass.
Trespass on enclosure for fur-bearing
animals, 18-7015.
FRATERNITIES AND
SORORITIES.
Hazing, 18-917.
FRAUD.
18-2706.
merchants as to price, quality or
quantity, 18-3105.
Corporations.
18-1905.
Reports.
18-1906.
Counties.
Presentation of fraudulent accounts
18-3128.
See CREDIT CARDS.
Elections, 18-2305.
qualified, 18-2307.
Fraudulently casting votes, 18-2306.
Registration.
Evidence.
Documents.
Offering into evidence, 18-2601.
Felonies.
18-2706.
Guardians.
obtaining admission of minors to
motion pictures, 18-1516.
Intent.
18-102.
Marriage.
Fraudulent marriage, 18-3003.
Mines and mining.
Scales.
18-7206.
Minors.
Obtaining admission of minors to
FRAUD Cont'd
Misdemeanors.
Motion pictures.
Misrepresenting for purposes of
motion picture shows, 18-1516.
Accounts.
accounts by officers, 18-2706.
Parent and guardian.
Misrepresentation for purpose of
obtaining admission to motion
pictures for minors, 18-1516.
Penalties.
False statements as to price,
quality or quantity of property,
18-3105.
18-2706.
18-102.
Telephones.
Credit card fraud.
Aiding avoidance of charges,
18-6714.
Emergency messages.
Fraudulently procuring use of
telephone line, 18-6809.
procuring use of line, 18-6809.
18-7206.
FREEDOM OF CHOICE.
Civil rights.
Use of laetrile, 18-7301A.
FREEZERS.
Abandonment.
children, 18-5817.
18-5816.
18-5818.
FRUITS.
FUGITIVES FROM JUSTICE.
Accessories.
charged with or convicted of
felonies, 18-205.
775 INDEX-TITLE 18
FUGITIVES FROM JUSTICE
Cont'd
Jumping bail, 18-7401.
Weapons.
Concealed weapons.
Licenses to carry.
FUNDS.
fund.
Surcharge added to fines, 18-8010.
18-5701.
Interlock devices or electronic
monitoring devices.
18-8010.
Motor vehicles.
18-8010.
G
GAMBLING.
Antique slot machines.
Bookmaking, 18-3809.
Authorization for interception for
18-6706.
Constables.
Denned, 18-3801.
Elections.
Elements of offense, 18-3802.
Enforcement of law, 18-3808.
Fines.
Bookmaking and pool selling,
18-3809.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
Bookmaking and pool selling,
18-3809.
Enforcement of law by officers.
Refusal by officer to enforce law,
18-3808.
GAMBLING Cont'd
Misdemeanors Cont'd
Slot machine possession, 18-3810.
Police.
Possession lawful, 18-3810.
Sheriffs.
Slot machines.
Possession unlawful, 18-3810.
Exception, 18-3810.
GAMING.
18-3810.
See GAMBLING.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
GARBAGE AND TRASH.
Highways.
18-3906.
Placing rubbish, filth, etc., in canals,
ditches, etc., 18-4301.
Littering.
18-3906.
$
property, 18-7031.
property, 18-7031.
GATES.
Misdemeanors.
18-7012.
GIFTS.
Bribery.
18-1356.
Prohibition, 18-1356.
Public servants, gifts by persons
18-1356.
GLASS.
Bottles.
property, 18-7031.
GLUE SNIFFING.
18-1502B.
INDEX-TITLE 18 776
GOVERNMENT LAND DRAWINGS.
Lotteries.
Exceptions to chapter, 18-4909.
GOVERNOR.
Bribery.
Asking or receiving bribes, 18-2702.
18-2704.
Bribing executive officers, 18-2701.
Threats.
18-1353A.
GRAFFITI.
Injury by graffiti, 18-7036.
GRAIN.
Arson.
18-7004.
GRAND JURY.
Challenges.
Grand juror acting after challenge
against him, 18-4401.
Intercepted wire, oral or electronic
communications excluded as
evidence, 18-6705.
Disclosing indictment before arrest
of defendant, 18-4402.
Disclosing proceedings before
grand jury, 18-4403.
Evidence.
Disclosing evidence before grand
jury, 18-4403.
Evidence receivable by grand jury.
communications excluded,
18-6705.
Indictments.
defendant, 18-4402.
Jurors.
Acting after challenge against them,
18-4401.
Misdemeanors.
defendant, 18-4402.
Disclosing proceedings or evidence
before grand jury, 18-4403.
Juror acting after challenge against
him, 18-4401.
Wiretapping.
communications excluded as
evidence, 18-6705.
GRAND THEFT, 18-2407, 18-2408.
GRATUITIES.
Public servants, gifts by persons
18-1356.
GROUNDLESS JUDICIAL
PROCEEDINGS, 18-1001 to
18-1005.
GROUP DAY CARE FACILITIES.
prohibited.
18-8328.
GUARDIANS.
teachers, 18-916.
Faith healing.
Treatment of injured child by prayer
or spiritual means, 18-1501.
Fraud.
Injury to children.
Religion.
Treatment of injured child by prayer
or spiritual means, 18-1501.
insulting, 18-916.
Treatment of injured child by
prayer or spiritual means,
18-1501.
GUIDE DOGS.
18-5811.
Liability of damages caused by
guide dogs, 18-5812A.
Unlawful use of assistive device or
dog, 18-5811A.
GUN CONTROL.
Federal gun control act of 1968.
Purchase of firearms in contiguous
states, 18-3314.
Resident of contiguous state
purchasing in Idaho, 18-3315.
GUNPOWDER.
Burglary.
Use of explosives in connection with
burglary, 18-1405.
777 INDEX-TITLE 18
GUNPOWDER Cont'd
Keeping gunpowder in towns,
18-3311.
H
HABITUAL CRIMINALS.
Mental illness as defense, 18-207.
HANDICAPPED PERSONS.
Common carriers.
use of common carriers,
18-5812A.
Elevators.
use, 18-5812A.
Guide dogs.
Dog in training to become guide dog
for physically impaired.
Person may be accompanied by,
18-5812B.
Physically disabled person may be
accompanied by guide dog,
18-5812A.
Hotels, inns and other transient
lodging places.
use,
18-58 12A.
18-5811.
HARASSMENT.
Malicious harassment, 18-7901 to
18-7904.
Telephone used to harass by false
statement, 18-6711.
Witnesses, 18-2604.
HARBORING PERSONS CHARGED
WITH CRIME.
Accomplices and accessories
generally, 18-205.
Escapees, 18-2508.
HARBORING PROSTITUTES,
18-5608.
HAZARDOUS WASTE
MANAGEMENT.
18-3905.
Highways.
Failure to comply with laws
governing transportation,
18-3905.
HAZARDOUS WASTE
MANAGEMENT Cont'd
Transportation.
governing, 18-3905.
HAZING, 18-917.
HEALING BY FAITH.
means, 18-1501.
HEALTH FACILITIES.
18-802.
HEARINGS.
Criminal procedure.
to proceed.
Post-commitment hearing, 18-212.
Smoking during public hearings.
HIGHWAYS.
Animals.
Dead animals.
18-5807.
Putting dead animals on public
highways or roads, 18-5803.
Blind persons.
Canes.
Bottles.
18-3906.
Damages.
Department.
Prosecution of violators, 18-3912.
Violations.
Duties as to, 18-3912.
Fines.
18-3906.
Tolls.
Flooded roads, 18-3908.
Garbage and trash.
18-3906.
governing transportation,
18-3905.
INDEX-TITLE 18 778
HIGHWAYS Cont'd
Littering.
18-3906.
Misdemeanors.
Violations of chapter constitute
Obstructions and injuries to
highways, 18-3907.
Penalties.
18-3906.
Shrubs.
Removal or transport of shrubs along
highways, 18-3911.
Violations.
Transportation department.
Duties as to, 18-3912.
Obstructing of highways by deviating
water of streams, 18-3907.
Wildflowers.
Protection of wildflowers.
Establishment and amendment of
list of wildflowers and shrubs,
18-3913.
Removal or transport of wildflowers
or shrubs along highway,
18-3911.
HIJACKING.
18-7505.
See AERONAUTICS.
HOBOES.
Railroads.
Stealing rides on trains, 18-4618 to
18-4620.
HOMICIDE.
Abortion.
Prosecution prohibited, 18-4016.
Accidents.
Aggravated battery.
Murder committed on child under
Arson.
18-4003.
Burglary.
burglary, 18-4003.
HOMICIDE Cont'd
Common law.
18-6706.
Defenses.
Defense of property or persons,
18-4009.
18-4010.
Definitions.
Murder, 18-4001.
Escape.
escaping, 18-4003.
Evidence.
Manslaughter.
conviction in civil action for
damages, 18-4006.
Fear.
18-4010.
Felonies.
18-4015.
Felony murder.
18-4003.
Apprehending persons for felonies,
18-4009.
Poison administered with intent to
kill, 18-4014.
Felony murder.
Homicide committed in perpetration
of certain crimes, 18-4003.
Fines.
Manslaughter.
Involuntary manslaughter,
18-4007.
Husband and wife.
779 INDEX-TITLE 18
HOMICIDE Cont'd
Husband and wife Cont'd
Petit treason.
Abolished, 18-4005.
Intent.
Express and implied malice,
18-4002.
Murder.
Torture causing death deemed
equivalent of intent to kill,
18-4001.
Jails.
Murder committed by persons
incarcerated in penal
institutions, 18-4003.
Judges.
Murder of court officers.
18-4010.
Public officers, 18-4011.
Kidnapping.
Lying in wait.
Malice.
18-4002.
Manslaughter.
Actions.
convictions in civil action for
damages, 18-4006.
Damages.
Admissibility of evidence in civil
action for damages, 18-4006.
Defined, 18-4006.
Elements of manslaughter, 18-4006.
Embryos and fetuses, 18-4006.
Evidence.
Admissibility in civil action for
damages, 18-4006.
Involuntary manslaughter.
Defined, 18-4006.
Punishment for manslaughter,
18-4007.
Defined, 18-4006.
Voluntary manslaughter.
Defined, 18-4006.
HOMICIDE Cont'd
Master and servant.
Petit treason.
Abolished, 18-4005.
Mayhem.
mayhem, 18-4003.
Minors.
Motor vehicles, 18-4006, 18-4007.
Murder.
Arson.
Murder committed in perpetration
of arson, 18-4003.
Assault and battery.
Assault with intent to murder.
Burglary.
of or attempt to perpetrate
burglary, 18-4003.
Degrees of murder, 18-4003.
Elements of murder, 18-4001.
Escapes.
Murder during escape, 18-4003.
Felony murder.
18-4003.
Firemen.
Murder of firemen.
Peace officers.
Murder of peace officers,
executive officers, etc.,
18-4003.
Kidnapping.
of kidnapping, 18-4003.
Lying in wait.
Mayhem.
mayhem, 18-4003.
INDEX-TITLE 18 780
HOMICIDE Cont'd
Murder Cont'd
Parole.
Persons on parole, 18-4003.
Restrictions, 18-4004.
Premeditated killing.
Punishment for murder, 18-4004.
Rape.
rape, 18-4003.
Robbery.
robbery, 18-4003.
Second degree murder, 18-4003.
Torture.
Negligent homicide.
Vehicular manslaughter, 18-4006,
18-4007.
Parent and child.
Justifiable homicide in lawful defense
of parent or child, 18-4009.
Parole.
Murder committed by person on
parole, 18-4003.
Peace officers.
Justifiable homicide by officer,
18-4011.
Penalties.
Manslaughter.
Punishment for manslaughter,
18-4007.
Penitentiary.
Poison.
kill, 18-4014.
Degrees of murder.
Mixing poison with medicine,
18-5501.
Police.
18-4011.
Murder of peace officers.
HOMICIDE Cont'd
Probation.
Murder by person on probation,
18-4003.
Railroads.
Murder by wrecking, 18-6007.
Rape.
Murder committed in perpetration or
attempt of rape, 18-4003.
Riots.
Lawfully suppressing riots,
18-4009.
Robbery.
robbery, 18-4003.
Self-defense.
18-4010.
Sentencing.
Manslaughter.
Involuntary manslaughter,
18-4007.
Vehicular manslaughter, 18-4007.
Murder.
18-4015.
Torture.
Death of a human being caused by
torture constitutes murder,
18-4001.
Treason.
HORSES.
Police horses.
Defined, 18-7039.
18-7039.
HOSPITALS.
Abortion.
Civil liability, 18-609.
Defined, 18-604.
Burning of structures where persons
HOTELS, INNS AND OTHER
TRANSIENT LODGING
PLACES.
Blind persons.
Guide dogs.
Denying blind persons admission,
18-5812A.
781 INDEX-TITLE 18
HOTELS, INNS AND OTHER
TRANSIENT LODGING
PLACES Cont'd
Blind persons Cont'd
Guide dogs Cont'd
dog, 18-5812B.
use, 18-5812A.
Theft.
HOUSEBREAKING.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
HOUSES OF PROSTITUTION.
Defined, 18-5613.
HOUSING.
Burning of dwelling or structure
where persons normally present,
18-802.
Unlawful entry of houses, 18-7034.
HUSBAND AND WIFE.
18-405.
See SUPPORT AND
MAINTENANCE.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
See SUPPORT AND
MAINTENANCE.
Bigamy, 18-1101 to 18-1104.
See BIGAMY.
Homicide.
Petit treason.
Abolished, 18-4005.
Nonsupport of wife, 18-401 to
18-405.
See SUPPORT AND
MAINTENANCE.
Privileged communications.
or children, 18-405.
Rape.
Rape of spouse, 18-6107.
HUSBAND AND WIFE Cont'd
Rape Cont'd
Wife submitting under belief that
person committing act is
husband.
Definition of rape, 18-6101.
Theft.
Theft of spouse's property.
Defenses to charge of theft,
18-2406.
I
ICEBOXES.
Abandonment.
Automatic door locks.
Penalty, 18-5816 to 18-5818.
IDENTIFICATION NUMBERS.
identification numbers,
18-2410.
IGNITION INTERLOCK DEVICES.
order, 18-8009.
fund.
Surcharge added to fines, 18-8010.
Court order to equip motor
vehicle, 18-8008.
IMMUNITIES.
Abortions.
Partial-birth abortion.
Woman upon whom performed,
18-613.
notification.
Persons or governmental entities
acting under provisions,
18-8412.
No contact orders.
Peace officers, 18-921.
right-to-know.
18-8325.
IMPLIED CONSENT LAW.
Drivers alcohol test, 18-8002.
IMPRISONMENT.
Misdemeanors.
Penalty for misdemeanor, 18-113.
INDEX-TITLE 18 782
INCEST.
Elements of incest, 18-6602.
Felonies, 18-6602.
INDECENCY.
18-4116.
See OBSCENITY.
INDECENT EXPOSURE, 18-4116.
INDIAN STICK GAME.
18-3810.
See GAMBLING.
INDICTMENTS.
Aeronautics.
Clerks of court.
defendant, 18-4402.
Grand jury.
defendant, 18-4402.
Judgments.
defendant, 18-4402.
Misdemeanors.
defendant, 18-4402.
defendant, 18-4402.
Theft.
Evidence supporting indictment,
18-2401.
Sufficient indictments, 18-2409.
INFAMOUS CRIME AGAINST
NATURE, 18-6605.
Kidnapping.
Committed for purpose of committing
infamous crime against nature,
18-4502.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
REGISTRATION
NOTIFICATION.
INFANTS.
Abandonment.
Generally, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Child support.
18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Nonsupport, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
INFLUENCING VOTES, 18-2319.
INFLUENCING WITNESS, 18-2604.
INFORMATIONS.
Theft.
Evidence supporting information,
18-2401.
Sufficient information, 18-2409.
INFRACTIONS.
Denned, 18-111.
Fines.
Punishment for infraction, 18-113A.
Punishment for infraction,
18-113A.
Smoking.
Violation of no smoking during public
meetings, 18-5906.
INHALANTS.
INHUMANE TREATMENT OF
PRISONERS, 18-704.
INJUNCTIONS.
Bribery.
Actions to enjoin violations,
18-1362.
18-922.
Obscenity.
minors.
18-1520.
District courts.
Jurisdiction of courts, 18-4114.
Enforcement by injunction, 18-4114.
783 INDEX-TITLE 18
INJUNCTIONS Cont'd
Weapons.
INJURIES.
Parent and child.
Injury to children.
18-1501.
Protection of person of convict,
18-313.
INSPECTIONS.
Corporations.
INSULTING SCHOOL TEACHERS,
18-916.
INSURANCE.
Burning of dwelling or structure
where persons normally present,
18-802.
Lotteries.
Insuring against the drawing of
lottery tickets, 18-4906.
INTENT.
When jury may take intoxication of
accused into consideration,
18-116.
Checks.

18-3106.
Crimes and punishment, 18-116.
Intoxication.
accused, 18-116.
Manifestation of intent, 18-115.
Mens rea.
18-207.
crimes, 18-201.
18-102.
Evidence.
Mens rea.
18-207.
INTENT Cont'd
Fraud.
18-102.
Homicide.
18-4002.
Murder.
18-4001.
Intoxication.
accused, 18-116.
Manifestation of criminal intent,
18-115.
Establishment element of intent and
prosecution for theft of services,
18-6713.
Theft.
Weapons.
Deadly weapons.
18-3301.
INTERCEPTION OF
COMMUNICATIONS.
Communications security
generally, 18-6701 to 18-6725.
See COMMUNICATIONS
SECURITY.
INTERNET.
Enticing children over the
internet, 18-1509A.
INTIMIDATION.
Telephone used to intimidate by
false statement, 18-6711.
Witnesses, 18-2604.
INTOXICATING AGENTS.
18-913, 18-914.
18-1502B.
INTOXICATION.
18-116.
18-8008 to 18-8010.
Inhalants possessed by minors,
18-1502B.
INDEX-TITLE 18 784
INTOXICATION Cont'd
INVESTMENTS.
IRRIGATION AND WATER
RIGHTS.
Buried irrigation conduit.
Change, 18-4308.
Cutting banks of stream, 18-4305.
Dams.
Delivery of water.
Interference with delivery, 18-4310.
Neglect to deliver water, 18-4310.
Department of water resources.
Assault or battery upon employees,
18-915.
Ditches.
Lateral ditches.
Diversion of water wrongfully,
18-4304.
Drains.
Change of drain, 18-4308.
Injuries to drains, 18-4306.
Fines.
Garbage and trash.
Gates.
Raising, lowering or disturbing gates,
18-4301.
Headgates and measuring devices.
Injuring measuring devices,
18-4307.
Interference with headgates,
18-4305.
Unauthorized tampering, 18-4309.
Lateral ditches.
Injuries to laterals, 18-4306.
IRRIGATION AND WATER RIGHTS
Cont'd
Lateral ditches Cont'd
Misdemeanors.
Change of lateral ditch or buried
irrigation conduit, 18-4308.
Delivery of water.
Injury to measuring devices,
18-4307.
Interference with ditches, canals or
reservoirs, 18-4301.
18-4305.
Measuring devices.
Wasting water used for irrigation,
18-4302.
Wrongful diversion of water,
18-4304.
Notice.
notices, 18-7023.
Obstructing free flow of water,
18-4301.
Taking water from canals, ditches,
flumes or reservoirs, 18-4301.
Waste.
Unauthorized tampering with
measuring devices, 18-4309.
18-4302.
18-4304.
JAILS.
Arrest.
Refusal of keeper to make arrest,
18-701.
Assault or battery upon jailers,
18-915.
Inmates manufacturing, delivering or
785 INDEX-TITLE 18
JAILS Cont'd
18-309.
Dangerous weapons possessed by
inmates, 18-2511.
Escape.
escape, 18-2503.
Escape by one charged with,
convicted of, or on probation for
felony, 18-2505.
Escape by prisoners charged with or
convicted of misdemeanor,
18-2506.
18-2508.
18-2504.
Felony to injure jails, 18-7018.
Fines.
Fires and fire protection.
Damages to forage on public lands,
18-7005.
Homicide.
18-704.
Murder.
Penalties.
Escape.
18-2502.
Prisoners.
Escape, 18-2502 to 18-2506,
18-2508.
Rescuing, 18-2501.
Riots.
Riots occurring in county or city jail,
18-6402.
Sentencing.
Escape.
18-2502.
18-6110.
JAILS Cont'd
Weapons.
Concealed weapons.
Carrying in jails prohibited,
18-3302C.
Inmates possessing, 18-2511.
JUDGES.
Assault or battery upon judges,
18-915.
Bribery, 18-1301.
18-1356.
Denned, 18-6701.
Homicide.
Murder of court officers.
Rewards.
Threats against state officials of
the judicial branch, 18-1353A.
JUDGMENTS.
Indictments.
defendant, 18-4402.
JURISDICTION.
Aeronautics.
Aircraft hijacking.
persons, 18-202.
Juveniles.
Internet.
18-1509A.
Larceny.
persons, 18-202.
Obscenity.
Conspiracy, 18-4107.
Racketeering.
District court to have jurisdiction
over actions, 18-7804.
Robbery.
persons liable to punishment,
18-202.
JURY.
Attempts to influence jury,
18-1304.
INDEX-TITLE 18 786
JURY Cont'd
Bribery.
Attempt to influence jurors,
18-1304.
Receipt of bribe by jurors, 18-1302.
Felonies.
Attempts to influence jurors,
18-1304.
Jury lists.
18-4405.
Influencing jurors, 18-1304.
Libel and slander.
Criminal prosecutions for libel.
Jury to determine law and fact,
18-4803.
Master list.
18-4405.
Misconduct, 18-1305.
Obscenity.
JUSTIFIABLE HOMICIDE,
18-4009.
By peace officer, 18-4011.
Fear, 18-4010.
JUVENILE DETENTION
CENTERS/FACILITIES.
Assault or battery.
Upon employees or teachers, 18-915.
Escape.
18-2505.
Weapons.
Concealed weapons.
Carrying in juvenile detention
facilities prohibited,
18-3302C.
JUVENILE PROCEEDINGS.
Escape.
18-2505.
Evidentiary hearing.
Intimidating, threatening or
harassing witnesses, 18-2604.
JUVENILE PROCEEDINGS
Cont'd
Probation.
Assault or battery upon juvenile
probation officer, 18-915.
Witnesses.
JUVENILE SEX OFFENDER
REGISTRATION
NOTIFICATION, 18-8401 to
18-8413.
Annual registration, 18-8407.
Central sex offender registry.
Separate registry for juvenile sex
offenders, 18-8404.
Transfer to adult registry, 18-8410.
Citation of act, 18-8401.
Definition of "juvenile sex
offender," 18-8403.
Employment warning, 18-8407.
Exceptions to provisions.
Juveniles convicted as adults,
18-8411.
Failure to register.
Penalties, 18-8409.
Findings of legislature, 18-8402.
Fines.
offender.
information, 18-8413.
Immunities.
18-8412.
Juveniles convicted as adults.
Exception to provisions, 18-8411.
Legislative findings, 18-8402.
List of registered juvenile sex
offenders.
Providing to superintendent of public
instruction, 18-8408.
Misdemeanors.
Failure to register or provide
notification, 18-8409.
offender.
information, 18-8413.
Notification of duty to register,
18-8405, 18-8406.
Probation.
18-8405.
787 INDEX-TITLE 18
JUVENILE SEX OFFENDER
REGISTRATION
NOTIFICATION Cont'd
Prohibited employment, 18-8414.
Release of juvenile sex offender.
18-8406.
Title of act, 18-8401.
information.
Penalties, 18-8413.
K
KEYS.
Making or altering keys to be used
in commission of crime,
18-1406.
KIDDIE PORN, 18-1506, 18-1507,
18-1507A.
KIDNAPPING.
Capital punishment.
Finding of statutory aggravating
circumstances, 18-4505.
First degree kidnapping.
penalty, 18-4504A.
Penalty for first degree
Duty of court to order
investigation, 18-4505.
Defenses, 18-4506.
Defined, 18-4506.
18-6706.
Elements of kidnapping, 18-4501.
False imprisonment, 18-2901,
18-2902.
Felonies, 18-4504.
First degree kidnapping, 18-4502,
18-4504, 18-4504A.
Homicide.
Infamous crime against nature.
Kidnapping committed for purpose of
committing infamous crime
against nature, 18-4502.
KIDNAPPING Cont'd
Inquiry into mitigating or
aggravating circumstances,
18-4505.
Liberation of kidnapped person,
18-4504.
Murder.
Parental kidnapping, 18-4506.
Cases where death penalty imposed,
18-4505.
Ransoms.
First degree kidnapping, 18-4502.
Second degree kidnapping when not
for ransom, 18-4503.
Rape.
rape, 18-4502.
Second degree kidnapping,
18-4503, 18-4504.
Sentencing.
Presentence investigations, 18-4505.
Serious bodily injury to person
kidnapped.
Kidnapping committed with serious
bodily injury, 18-4502.
Sexual offenses.
committing sexual offense,
18-4502.
Statutory aggravating
circumstances.
Judicial finding where sentence of
death imposed, 18-4505.
LABELS.
Denatured alcohol.
Requirements of label, 18-5502.
Theft.
Removal, alteration, etc., of labels or
price tags, 18-4624.
Evidence of violation, 18-4625.
LABOR.
Civil rights.
Misdemeanors.
18-7303.
INDEX-TITLE 18 788
LABOR Cont'd
Theft.
Theft of labor or services, 18-2403.
LAETRILE.
18-7301A.
LANSQUENET.
18-3810.
See GAMBLING.
LARCENY.
18-2401.
Jurisdiction.
persons, 18-202.
Labels.
Removal, alteration, etc., of labels or
price tags, 18-4624.
Railroads.
Car parts, 18-6007.
Theft.
18-2415.
See THEFT.
Willful concealment of goods,
wares or merchandise, 18-4626.
LAUDANUM.
18-913, 18-914.
LEASES.
Motor vehicles.
Theft after leasing motor vehicle,
18-2403.
Theft.
Failure or refusal to return personal
property after lease or rental
agreement has expired,
18-2404.
Motor vehicle leases, 18-2403.
LEGISLATURE.
Bribery.
Gifts to legislative officials by
persons subject to their
18-4703.
Receiving bribes by legislators,
18-4704.
Committees.
Perjury before, 18-5401.
Witnesses.
Perjury, 18-5401.
LEGISLATURE Cont'd
Copies.
18-4702.
Felonies.
Bribery.
18-4703.
Forfeitures.
Misdemeanors.
Witnesses.
Refusal to testify before
legislature, 18-4705.
Resolutions.
Alteration of bills or resolutions,
18-4701.
Threats against state elected
officials, 18-1353A.
Witnesses.
Committees.
Perjury, 18-5401.
Perjury before committees, 18-5401.
Refusal to testify before legislature,
18-4705.
LEWD AND LASCIVIOUS
CONDUCT WITH MINOR
CHILD.
Child under sixteen, 18-1508.
LIABILITY.
Abortion.
Physicians and hospitals, 18-612.
Airports.
Blind persons.
Damages caused by guide dogs,
18-5812A.
Firearms.
18-3307.
Libel and slander.
Authors, editors and proprietors,
18-4806.
789 INDEX-TITLE 18
LIABILITY Cont'd
Police.
Importing police officers or armed
men into state.
Sheriffs.
Weapons.
Concealed weapons.
License to carry.
Immunity from liability for
issuance, 18-3302.
Weapons.
Concealed weapons.
Licenses to carry.
Immunity of sheriff who issues,
18-3302.
Firearms.
18-3307.
LIBEL AND SLANDER.
Criminal libel.
Truth may be proven, 18-4803.
Extortion.
Fines.
Punishment for libel, 18-4802.
Jury.
Jury to determine law and fact,
18-4803.
Liability.
Authors, editors and proprietors,
18-4806.
Libel defined, 18-4801.
Malice.
Malice presumed, 18-4804.
Report of public proceedings.
No liability except upon proof of
malice, 18-4807.
Newspapers.
Liability of editors, 18-4806.
Presumptions.
Privileges.
Public proceedings.
Limitation on privilege in
reporting, 18-4808.
Publication.
Sufficiency of publication, 18-4805.
Punishment for criminal libel,
18-4802.
Reports.
Public proceedings.
Limitation on privilege, 18-4808.
LIBEL AND SLANDER Cont'd
Reports Cont'd
Public proceedings Cont'd
malice, 18-4807.
Threats.
Truth.
Truth may be proven, 18-4803.
LICENSES.
Blank licenses.
Concealed weapons.
18-6305.
licenses, 18-6303.
Misdemeanors.
businesses.
18-6305.
Weapons.
Concealed weapons.
LIEUTENANT GOVERNOR.
Threats.
18-1353A.
LIFE IMPRISONMENT.
Murder in first degree, 18-4004.
LIPS.
Mayhem.
Dismembering human bodies,
18-5001.
LITTERING.
Alleys.
Penalty for placing debris in alleys or
highways, 18-3906.
Fines.
18-3906.
Highways.
18-3906.
Misdemeanors.
property, 18-7031.
LIVE SEX SHOWS IN PUBLIC
PLACES, 18-4101.
INDEX-TITLE 18 790
LIVESTOCK.
Theft.
Grand theft.
Value of livestock stolen, 18-2407.
LOCOMOTIVES.
Destroying or damaging
locomotives, 18-6010.
LOST AND UNCLAIMED
PROPERTY.
Theft.
Ways of committing theft, 18-2403.
LOTTERIES.
Advertisements.
Assisting in lotteries, 18-4904.
Assisting in lottery, 18-4904.
Buildings.
lottery, 18-4908.
Carey Act lands.
Carey Act land drawings.
Exceptions to lottery provisions,
18-4909.
Denned, 18-4901.
Engaging in lottery, 18-4902.
Exceptions to provisions of
chapter, 18-4909.
Government land drawings.
Insurance.
Insuring against the drawing of
lottery tickets, 18-4906.
Misdemeanors.
Lottery insurance, 18-4906.
Maintaining lottery office, 18-4905.
lottery, 18-4908.
Tickets.
Traffic in lottery tickets, 18-4903.
Offices.
Pari-mutuel racing.
When system not to constitute
lottery, 18-4901.
Partitioning or division of real
property.
lottery, 18-4908.
Issuance of warrant for confiscation
of moneys and property,
18-4907.
LOTTERIES Cont'd
Tickets.
M
MACHINE GUNS.
Defined, 18-3302F.
MAGISTRATES.
Costs.
18-5704.
18-5704.
Fines.
18-5704.
Obscenity.
Search warrants.
Filing of affidavit with magistrate,
18-4111.
MAIL.
18-6718.
Threats.
18-1353A.
MALE RAPE, 18-6108, 18-6109.
MALICE.
Homicide.
18-4002.
Libel and slander.
Report of public proceedings.
malice, 18-4807.
MALICIOUS HARASSMENT.
Actions.
Civil cause of action, 18-7903.
Construction and interpretation.
Effect of invalidity of part of act,
18-7904.
Damages.
Civil action for damages, 18-7903.
Deface.
Defined, 18-7902.
Felony, 18-7903.
Fines.
Penalty for malicious harassment,
18-7903.
791 INDEX-TITLE 18
MALICIOUS HARASSMENT
Cont'd
Invalidity of part of act, 18-7904.
Legislative purpose, 18-7901.
Purpose of act, 18-7901.
Sentencing.
Punishment for malicious
harassment, 18-7903.
MALICIOUS INJURIES TO
PROPERTY, 18-7001.
Animals, birds or aquatic species.
Unauthorized release, 18-7037.
Aquaculture.
Boundary markers.
Obliterating or defacing, 18-7016.
Caves or caverns.
Unlawful damage, 18-7035.
mischief, 18-7002.
Dams, canals or other structures.
Injuring, 18-7019.
Debris, placing on public or
private property, 18-7031.
Fence destruction, 18-7012.
18-7004.
Forage on public lands.
Damage from throwing away or
leaving lighted substances,
18-7005.
Gas or water pipes.
Injuring, 18-7022.
Gate opening, 18-7012.
Graffiti, 18-7036.
Graves, cemeteries, headstones,
etc.
Desecration, 18-7027.
Human remains.
Jails.
Injuring, 18-7019.
Livestock destruction, 18-7038.
Lumber, poles, rafts and vessels.
Destroying, 18-7020.
Mining and water right notices.
Monuments, ornaments and public
improvements.
Injuring, 18-7021.
Defacing, 18-7017.
Parking meters, coin telephones or
vending machines.
MALICIOUS INJURIES TO
PROPERTY Cont'd
Posters or promotional material.
Placed on public or private property
without permission, 18-7029.
Punishment for violations,
18-7025.
Reservoirs and tanks.
Pollution when fenced or posted,
18-7013:
Sabotage of forest, 18-7026.
Timber on state lands.
Destruction or cutting, 18-7009,
18-7010.
Setting fire to, 18-7024.
MALICIOUS MISCHIEF.
Personal property.
Construction of sections enumerating
acts of malicious mischief,
18-7002.
MANIFESTATION OF CRIMINAL
INTENT, 18-115.
MARRIAGE.
Bigamy, 18-1101 to 18-1104.
False personation.
18-3003.
authority, 18-3004.
Felonies.
False personation.
18-3003.
Fraud.
Fraudulent marriage, 18-3003.
Misdemeanors.
authority, 18-3004.
authority, 18-3004.
MARSHALS.
MASTER AND SERVANT.
Homicide.
Petit treason.
Abolished, 18-4005.
MASTURBATION.
Indecency and obscenity generally,
18-4101 to 18-4116.
See OBSCENITY.
Obscene material defined, 18-4101.
Public display of offensive sexual
materials, 18-4105.
18-1507, 18-1507A.
INDEX-TITLE 18 792
MAUSOLEUMS.
Desecrating, 18-7027.
MAYHEM.
Cannibalism.
Generally, 18-5003.
Denned, 18-5001.
Homicide.
mayhem, 18-4003.
Murder.
mayhem, 18-4003.
Punishment for mayhem, 18-5002.
MEDICINE.
Poisons.
18-5501.
MEETINGS.
Open meetings.
Executive sessions.
Personal gain from public position.
Confidential information used
pecuniary benefits, 18-1359.
MENS REA.
Evidence on issues of mens rea or
state of mind, 18-207.
MENTALLY ILL.
Encouraging lunatics or idiots to
commit crimes, 18-204.
Criminal procedure.
Defenses.
18-207.
to proceed, 18-212.
Evidence.
Reception of evidence on state of
mind, 18-207.
Expert examiner.
Appointment, 18-207.
MENTALLY ILL Cont'd
Criminal procedure Cont'd
proceedings Cont'd
18-211.
Report of psychiatrist and
psychologist, 18-211.
Notice of intent to raise issue,
18-207.
Principals.
Persons encouraging lunatics or
idiots to commit crime,
18-204.
18-212.
Treatment during incarceration,
18-207.
Notice.
Criminal procedure.
Intent to raise issue, 18-207.
Rape.
Victims incapable of giving legal
consent, 18-6101.
Weapons.
Concealed weapons.
Licenses to carry.
MILITARY AFFAIRS.
Terrorism.
Defined, 18-8102.
Exclusions from provisions,
18-8104.
Weapons.
Concealed weapons.
Licenses to carry.
Exemptions from provisions,
18-3302.
MILLS.
Burglary, 18-1401.
MINES AND MINING.
Claim jumping.
Conspiracy to usurp claims,
18-1702.
Conspiracies.
Usurping mining claims, 18-1702.
18-1702.
notices, 18-7023.
793 INDEX-TITLE 18
MINES AND MINING Cont'd
workings, 18-7025.
Solicitation to hold or impede lawful
18-7206.
Fire protection.
workings, 18-7024.
Punishment for violation,
18-7025.
Fraud.
Scales.
18-7206.
Intimidation for purposes of
usurping mining claims,
18-1702.
Misdemeanors.
18-1702.
notices, 18-7023.
18-7206.
Notice.
Destroying mining notices, 18-7023.
Ore values.
Alteration, 18-7207.
Scales.
18-7206.
Threats.
18-1702.
Timbering.
timbering, 18-7024.
workings, 18-7024.
Scales.
18-7206.
MINORITIES.
Civil rights, 18-7301 to 18-7303.
See CIVIL RIGHTS.
MINORS.
Abandonment.
Generally, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
MINORS Cont'd
Abortion.
violations, 18-614.
Identification required to confirm
age, 18-614.
Medical consent required, 18-609A.
18-602.
violations, 18-614.
Encouraging children under age
fourteen to commit crime,
18-204.
locks.
"Abandon" defined as leaving to
attract children, 18-5817.
Age violations.
Penalties, 18-1502.
Ammunition.
Selling ammunition to minors,
18-3308.
Murder.
18-1508A.
Beer.
tattooing, 18-1523.
18-1507.
18-1502C.
Use by minors, 18-1502C.
See SUPPORT AND
MAINTENANCE.
18-1507.
Counseling, advising, etc., children
under fourteen years to commit
crime, 18-204.
Criminal neglect by failure to provide
medical attention, 18-1501.
INDEX-TITLE 18 794
MINORS Cont'd
18-216.
Enticing of children.
Internet, 18-1509A.
18-1517A.
Homicide.
Aggravated battery of child under
twelve years.
Murder, 18-4003.
sixteen, 18-1508.
Motion picture admission.
obtaining, 18-1516.
Runaway children.
sixteen, 18-1506.
18-1508A.
Sexual exploitation of child,
18-1507.
Weapons.
18-3302F.
Custodial interference.
Enticing of children.
Internet, 18-1509A.
Explosives.
Faith healing.
Treatment of injured or sick children
by prayer or spiritual means,
18-1501.
Felonies.
Internet, 18-1509A.
MINORS Cont'd
Felonies Cont'd
offenses, 18-113B.
sixteen, 18-1508.
Obscenity.
18-1517A.
sixteen, 18-1506.
18-1508A.
18-1507.
Possession of material for other
than commercial purposes,
18-1507A.
Firearms.
Selling firearms to minors, 18-3308.
Fraud.
Glue sniffing.
18-1502B.
Homicide.
Inhalants.
Possession, 18-1502B.
Injury to children.
Driving under the influence with
child in car, 18-1501.
injuries to children, 18-1501.
Willfully permitting or causing pain
or mental suffering to children,
18-1501.
Kiddie porn, 18-1506, 18-1507.
Lewd and lascivious conduct with
minor child.
Medical hills.
Payment for child to be adopted,
18-1512.
Misdemeanors.
Failure to provide medical attention,
18-1501.
795 INDEX-TITLE 18
MINORS Cont'd
Misdemeanors Cont'd
Incarceration of juveniles for
misdemeanor offenses, 18-113B.
Missing children reports, 18-4507
to 18-4512.
Motion pictures.
Murder.
Neglect of children.
Nonsupport, 18-401 to 18-405.
See SUPPORT AND
MAINTENANCE.
Obscenity.
Denned, 18-1514.
minors, 18-1513.
Abrogation of existing ordinances,
18-1521.
Each prohibited item constitutes
separate offense, 18-1519.
Jurisdiction of district court to
18-1520.
Local ordinances banned, 18-1521.
Uniform enforcement of acts,
18-1521.
-
Distribution to minors.
Laws governing, 18-4106.
Harmful to minors.
Denned, 18-1514.
Hiring, employing, etc., minor to
18-1517A.
Penalties.
Pornography.
18-1507.
Prostitution.
Enticing person under eighteen years
of age into prostitution,
18-5609.
prostitute, 18-5611.
MINORS Cont'd
Refrigerators.
locks, 18-5817.
18-1506A.
Runaway children.
18-1507.
*
Sexual offenses.
right-to-know, 18-8401 to
18-8413.
REGISTRATION
NOTIFICATION.
sixteen, 18-1508.
Sexual abuse.
Children under age sixteen,
18-1506.
Soliciting minors under 16 to
participate in sexual acts,
18-1506.
18-1508A.
18-1507.
materials for other than a
commercial purpose,
18-1507A.
Solicitation.
Soliciting minors under age sixteen
to participate in sexual acts,
18-1506.
means, 18-1501.
Parent or guardians duty of care,
18-1501.
Weapons.
Concealed weapons.
Licenses to carry.
Firearms.
Possession of certain weapons by
minors prohibited, 18-3302F.
Selling firearms, ammunition and
explosives to minors, 18-3308.
INDEX-TITLE 18 796
MINORS Cont'd
Weapons Cont'd
18-3302F.
Sale to minors.
MISCARRIAGES.
Advertisements.
means for facilitating
miscarriages, 18-603.
MISDEMEANORS.
Abortion.
Sales of abortifacients, 18-607.
Abuse of school teachers, 18-916.
Adoption.
Adult, 18-6601.
Adult abuse.
Exploitation or neglect of vulnerable
adult, 18-1505.
Aeronautics.
Weapons.
Carrying weapons aboard aircraft
and in airports, 18-7503.
Aiding and abetting, 18-304.
Airports.
airports, 18-7033.
locks, 18-5818.
Animals.
18-7039.
18-5803.
purposes, 18-5807.
18-7039.
18-7039.
animals, 18-5804.
MISDEMEANORS Cont'd
Animals Cont'd
18-7037.
Aquaculture.
Archaeology.
Disturbing artifacts found in caves or
caverns, 18-7035.
Arrest.
Illegal arrests, 18-703.
Assault, 18-902.
18-706.
punishment, 18-306.
Attorneys at law.
18-1003.
Bad checks, 18-3106.
Barratry.
18-1003.
Battery, 18-904.
Birds.
18-7037.
Blind persons.
Guide dogs, 18-5812A.
Persons accompanied by dog being
trained to become guide dog,
18-5812B.
Book making, 18-3809.
Boundaries.
monuments, 18-7016.
Bribery, 18-1360.
Acceptance of rewards by judicial
officers, 18-1303.
behavior, 18-1354.
Executive officers.
18-2704.
18-2708.
797 INDEX-TITLE 18
MISDEMEANORS Cont'd
Bribery Cont'd
Paying compensation to public
servants, 18-1357.
18-1355.
Special influence.
influence, 18-1358.
18-1353.
Witnesses.
18-2606.
Brokers.
property, 18-3105.
Buildings.
Burglarious instruments.
Cemeteries.
Desecrating grave, cemetery,
headstone or burial places,
18-7027.
18-1003.
18-4506.
Children.

18-1501.
Civil rights.
Denial of right to work or
accommodations constitutes
or quantity of property,
18-3105.
Common law offenses.
Punishment, 18-303.
Telecommunications services theft,
18-6713.
Telephones.
Terrifying, intimidating, etc., use
of, 18-6711.
Charges, 18-6714.
MISDEMEANORS Cont'd
Communications security Cont'd
etc., 18-6710.
Compounding misdemeanors,
18-1601.
Contempt.
18-1502C.
Corporations.
Exhibition of false or forged papers
to public officers, 18-1902.
18-1905.
18-1901.
18-1906.
capital, 18-1904.
Use of false names in prospectus,
18-1903.
Credit card fraud.
When violation constitutes
Crimes divided into felonies and
misdemeanors, 18-110.
Crops.
Deaf persons.
Guide dogs, 18-5812A, 18-5812B.
18-7017.
Denned, 18-111, 18-111B.
Denatured alcohol.
Violation of regulation of sale and
transfer, 18-5503.
18-6410.
Dogs.
18-7039.
Protection orders.
Intentionally making false
statements in application or
request, 18-5414.
INDEX-TITLE 18 798
MISDEMEANORS Cont'd
Elder abuse.
Exploitation or neglect of vulnerable
adults, 18-1505.
Election offenses.
18-2301.
Elections.
18-2312.
qualified, 18-2307.
18-2308.
18-2322.
18-2305.
Violation of section constitutes
questions, 18-2303.
Supplies.
Electric power.
Escape.
Harboring, enticing, aiding, etc.,
escaped prisoners, 18-2509.
Prisoners charged with or convicted
Evidence.
18-2603.
Explosives.
Failure to account for fines or
costs.
Clerks, justices of the peace, sheriffs,
etc., 18-5704.
MISDEMEANORS Cont'd
False imprisonment, 18-2902.
False information to law
enforcement or social work
officials, 18-5413.
False personation, 18-3001.
Fences.
18-7012.
Fines.
fine, 18-303.
Officers failure to account for,
18-5704.
Punishment for misdemeanor,
18-113.
Firearms.
Discharge of arms aimed at another,
18-3305.
18-3312.
Minors.
Fire protection.
18-7004.
Flags.
Public mutilation of flag, 18-3401.
Forcible entry and unlawful
detainer.
ouster, 18-3502.
18-4628.
sale, etc., 18-4629.
Counterfeiting railroad ticket,
18-3611.
18-3612.
18-3613.
Slug manufacture or sale, 18-3620.
Slugs in vending machines, 18-3619.
799 INDEX-TITLE 18
MISDEMEANORS Cont'd
Forgery and counterfeiting Cont'd
Trademarks.
Forging or counterfeiting
trademarks, 18-3614.
Fornication, 18-6603.
Fraud.
Freezers.
locks.
18-5818.
Fur-bearing animal enclosures.
Trespass, 18-7015.
Gambling, 18-3802.
18-3809.
Enforcement of law by officers.
Refusal by officer to enforce law,
18-3808.
Gas or water pipes.
Injuring, 18-7022.
Gates.
18-7012.
Graffiti.
Injury by graffiti, 18-7036.
Grand jury.
defendant, 18-4402.
Disclosing proceedings or evidence
before grand jury, 18-4403.
Juror acting after challenge against
him, 18-4401.
Guide dogs.
Unlawful use, 18-5811A.
Violations, 18-5812A.
18-5811.
18-3905.
Hazing, 18-917.
Highways.
Violations of chapter constitute
MISDEMEANORS Cont'd
order, 18-8009.
Imprisonment.
18-113.
Indictments.
defendant, 18-4402.
Infants.
18-1501.
Inhalants.
18-704.
Intimidating witnesses, 18-2604.
Change of lateral ditch or buried
irrigation conduit, 18-4308.
Delivery of water.
Injury to measuring devices,
18-4307.
Interference with ditches, canals or
18-4305.
Measuring devices.
18-4302.
18-4304.
Juveniles.
Incarceration for misdemeanor or
felony offenses, 18-113B.
right-to-know.
notification, 18-8409.
Labor.
Larceny.
Wilful concealment of goods, wares or
INDEX-TITLE 18 800
MISDEMEANORS Cont'd
Legal notices.
Legislature.
Witnesses.
Libel and slander, 18-4802.
Licenses.
businesses.
18-6305.
Littering.
18-3906.
property, 18-7031.
Livestock.
Lotteries.
Lottery insurance, 18-4906.
lottery, 18-4908.
Tickets.
Lumber.
18-4616.
Mail.
18-6718.
18-7001.
Marriage.
Solemnization without license or
authority, 18-3004.
Mines and mining.
18-1702.
notices, 18-7023.
18-7206.
Minors.
18-1501.
Incarceration of juveniles for
misdemeanor offenses, 18-113B.
MISDEMEANORS Cont'd
Minors Cont'd
Prostitution.
Missing children.
Failure to cooperate with law
enforcement investigation,
18-4511.
Motion pictures.
18-1516.
Defacing, 18-7017.
Nuisances.
Public nuisances.
Punishment for nuisance,
18-5903.
Obscenity.
Advertising, promoting, etc., of
matter represented to be
obscene, 18-4103A.
minors, 18-1515.
General sale or distribution of
obscene matter, 18-4103.
Live conduct in public place.
Participation in or production or
presentation, 18-4104.
Minors.
18-1517A.
materials, 18-4105.
Sales.
Requiring purchasers to receive
sale, 18-4105A.
Tie-in sales of prohibited materials,
18-1518.
Parking meters.
18-7032.
Peace officers.
Unnecessary assaults by officer,
18-706.
Penitentiary.
Persons charged with or convicted of
Petit theft, 18-2408.
801 INDEX-TITLE 18
MISDEMEANORS Cont'd
Pipelines.
18-7022.
Poles.
Police.
18-706.
Polluting when fenced or posted,
18-7013.
Posse comitatus.
Refusal to assist officer, 18-707.
businesses.
18-6305.
Property.
18-7001.
property, 18-7031.
Property taxes.
property, 18-6301.
18-5609.
Minors.
Patronizing a prostitute, 18-5614.
Public accommodations.
Denial of accommodations constitutes
Public nuisances, 18-5903.
Appointing or voting for person
related by blood or marriage,
18-1359.
18-2712.
18-5704.
18-3204.
MISDEMEANORS Cont'd
Public officers and employees
Cont'd
18-2708.
18-113.
Punishment of offenses for which
no penalty is fixed, 18-317.
Rafts.
Railroads.
Counterfeiting ticket, 18-3611.
Failure to sound bell or whistle at
crossing, 18-6002.
Human body waste.
Disposal from passenger train,
18-6015.
Obstruction on tracks, 18-6009.
Offenses against railroads, 18-6012.
18-3612.
Stealing rides on trains, 18-4617,
18-4620.
Real property.
18-7001.
custody, 18-708.
Records.
18-3202.
Refrigerators.
locks, 18-5818.
Reservoirs.
18-7013.
18-705.
Rewards.
18-1303.
Runaway children.
Providing shelter without authority,
18-1510.
18-7026.
School buses.
18-1522.
School teacher abuse, 18-916.
Illegal seizures, 18-703.
INDEX-TITLE 18 802
MISDEMEANORS Cont'd
Searches and seizures Cont'd
Search warrants.
Maliciously procuring warrant,
18-709.
Search warrants.
18-709.
prohibited.
right-to-know.
Shoplifting.
or merchandise, 18-4626.
Slugs in vending machines,
18-3619.
Slugs, manufacture or sale,
18-3620.
Stalking.
Swimming pools.
Life jacket or floatation device.
Prohibiting use, 18-5801.
Taxation.
Property taxes.
property, 18-6301.
Receipts.
property, 18-6301.
Tax collectors.
employees, 18-6304.
Telecommunications.
18-6714.
Telegraphs.
Refusal to send or deliver messages,
18-6717.
Telephones.
Credit card fraud.
18-6714.
MISDEMEANORS Cont'd
Telephones Cont'd
reports, 18-6711A.
18-7032.
Terrifying, intimidating, etc., use of,
18-6711.
Use to annoy, terrify, threaten, etc.,
18-6710.
Theft.
Theft detection shielding devices,
18-2411.
Threats.
18-1353A.
Trees and timber.
18-4616.
Firing timber, 18-7004.
Injuring shade trees, 18-7021.
State lands.
lands, 18-7009.
Trespass, 18-7008.
18-7015.
Unlawful assembly.
Punishment for unlawful assembly,
18-6405.
Vandalism.
18-7001.
Vending machines.
Tampering with vending machines,
18-7032.
Vessels.
Vulnerable adults.
Abuse, exploitation or neglect,
18-1505.
18-4302.
803 INDEX-TITLE 18
MISDEMEANORS Cont'd
Weapons.
Concealed weapons.
facility or jail, 18-3302C.
Carrying under influence of alcohol
or drugs, 18-3302B.
Licenses to carry.
Carrying in violation of
Deadly weapons.
Exhibition or use of deadly
weapon, 18-3303.
18-3301.
Firearms.
18-3304.
Discharge of arms aimed at
another, 18-3305.
18-3312.
18-3310.
Minors.
Possession of weapons by minors,
18-3302E, 18-3302F.
Sale to minors, 18-3302A.
Scales.
18-7206.
Witnesses.
Legislature.
18-2606.
MISSING CHILDREN.
Missing persons clearinghouse,
18-4512.
Reports.
Birth records.
Duties of state registrar, 18-4510.
Citation of provisions, 18-4507.
Duties of law enforcement agency,
18-4509.
Law enforcement agencies.
Duty, 18-4509.
MISSING CHILDREN Cont'd
Reports Cont'd
Schools.
Duties, 18-4511.
Short title, 18-4507.
State registrar.
Birth records.
Duties of state registrar,
18-4510.
Schools.
Duties, 18-4511.
Records.
Transfer of student records,
18-4511.
MISSING PERSONS
CLEARINGHOUSE, 18-4512.
MOBILE HOMES.
Firearms.
mobile home, 18-3317.
Weapons.
occupied mobile home, 18-3317.
MOBILE PHONES.
services, 18-6713.
MONEY LAUNDERING, 18-8201.
MONEY MACHINES.
Fraud.
18-3122 to 18-3128.
See CREDIT CARDS.
MONTE.
18-3810.
See GAMBLING.
MONUMENTS.
Claims.
Destroying monuments indicating
mining claims, 18-7023.
Injuring monuments, 18-7021.
boundary monuments, 18-7016.
MOTION PICTURE FAIR BIDDING
ACT, 18-7701 to 18-7708.
MOTION PICTURES.
18-1516.
Definitions.
Fair bidding act, 18-7702.
Fair bidding act.
Advance payment as security.
INDEX-TITLE 18 804
MOTION PICTURES Cont'd
Fair bidding act Cont'd
Blind bidding.
Denned, 18-7702.
Citation, 18-7701.
Distributors.
Defined, 18-7702.
Engaging in blind bidding,
18-7703.
Exhibitors.
Defined, 18-7702.
Fees.
License agreements.
Advance payment as security
Defined, 18-7702.
Minimum fee guarantee prohibited,
18-7704.
Misdemeanors
.
Violation of act constitutes
Penalties.
Violations of act, 18-7708.
Short title, 18-7701.
Solicitation of bids from exhibitors.
Availability of information on trade
screening, 18-7705.
Theatres.
Defined, 18-7702.
Trade screening.
Availability of information on trade
screening, 18-7705.
Defined, 18-7702.
Unenforceability of waiver provision,
18-7707.
Violations, 18-7708.
Waiver.
Unenforceability of waiver
provision, 18-7707.
Fees.
Fair bidding act.
Fraud.
Misrepresenting for purposes of
motion picture shows, 18-1516.
Minors.
Misdemeanors.
MOTION PICTURES Cont'd
Obscenity.
Affirmative defenses of operators,
18-4102.
18-7608.
Waiver.
Fair bidding act.
provision, 18-7707.
MOTOR VEHICLE ACCIDENTS.
Death.
in death, 18-8007.
Ignition interlocks.
Electronic monitoring devices,
18-8006.
Personal injuries.
MOTOR VEHICLE INSURANCE.
Minors.
paraphernalia.
Effect on rates and policy renewal,
18-1502C.
MOTOR VEHICLES.
Aeronautics.
airports, 18-7033.
Agriculture.
devoted to cultivated crops,
18-7011.
Airports.
airports, 18-7033.
Operators' and chauffeurs' licenses.
violations.
Attorneys at law.
concentration.
18-8002.
Blind persons.
Color of canes used by blind persons,
18-5810.
805 INDEX-TITLE 18
MOTOR VEHICLES Cont'd
Breath alcohol analyzed ignition
equipment, 18-8008 to 18-8010.
Burglary of closed vehicle,
18-1401.
Car keys.
18-3613.
18-3613.
Crops.
devoted to cultivation of crops,
18-7011.
Denatured alcohol.
Use of denatured alcohol for
anti-freeze purposes, 18-5502.
Driving without privileges,
18-8001.
Drugs.
Effect on insurance and driving
Electronic monitoring devices.
Court interlock and electronic
18-8010.
Court order to record persons
movements, 18-8008.
Felonies.
18-8005.
influence, 18-8006.
Fines.
monitoring devices.
fund.
18-8010.
Firearms.
motor vehicle, 18-3317.
Switch and car keys.
Simulation, 18-3613.
Funds.
18-8010.
Homicide.
Elements, 18-4006.
Sentence for violation, 18-4007.
Defacement, alteration or
obliteration.
order, 18-8009.
18-8010.
Court order to equip vehicle with,
18-8008.
Leases.
Theft after leasing motor vehicle,
18-2403.
Licenses.
Driving without license, 18-8001.
Manslaughter.
Defined, 18-4006.
Fine, 18-4007.
Minors.
Persons under twenty-one with
less than 0.08 alcohol
concentration, 18-8004A.
Effect on insurance and driving
Misdemeanors.
18-8005.
18-8004C.
Persons under twenty-one with
less than 0.08 alcohol
concentration, 18-8004A.
order, 18-8009.
18-3613.
INDEX-TITLE 18 806
Negligent homicide.
Elements of vehicular manslaughter
enumerated, 18-4006.
Punishment for vehicular
manslaughter, 18-4007.
Nurses.
concentration.
blood, 18-8003.
Parking meters.
18-7032.
concentration.
blood, 18-8003.
Rental vehicles.
Theft, 18-2403.
Stolen vehicles.
Rental vehicles.
Committing theft after leasing or
renting vehicle, 18-2403.
Theft.
Committing theft after renting or
leasing motor vehicles, 18-2403.
Weapons.
occupied motor vehicle, 18-3317.
MUNICIPAL CORPORATIONS.
Bribery.
Municipal officers, 18-1309.
Officers.
18-5701.
Explosives.
Fraud.
Accounts.
accounts by officers, 18-2706.
Gunpowder.
Officers.
Bribery of municipal officers,
18-1309.
Presentation by officer, 18-2706.
MUNICIPAL CORPORATIONS
Cont'd
Officers Cont'd
18-5701.
city, 18-1353A.
Public moneys.
Defined, 18-5703.
18-5702.
Misuse by officers, 18-5701.
Records.
18-3201.
city, 18-1353A.
MUTILATION.
18-1506A.
Written instruments, 18-3206.
N
NARCOTICS.
18-913, 18-914.
NATURAL SCENIC OBJECTS.
Defacing, 18-7017.
NEGLIGENCE.
Defined, 18-101.
crimes, 18-201.
Homicide.
Elements of vehicular manslaughter.
Punishment for vehicular
manslaughter, 18-4006.
Weapons.
Firearms.
18-3312.
NEPOTISM.
Personal gain from public position,
18-1359.
NEWSPAPERS.
Bomb threats.
Explosives.
807 INDEX-TITLE 18
NEWSPAPERS Cont'd
Libel and slander.
Liability of editors, 18-4806.
NITROGLYCERIN.
Burglary.
Use of explosives in commission of
burglary, 18-1405.
Keeping explosives in towns,
18-3311.
NO CONTACT ORDERS, 18-920 to
18-922.
Peace officer immunity, 18-921.
Transmittal to law enforcement
agency, 18-922.
Violation, 18-920.
NONSUPPORT.
18-405.
See SUPPORT AND
MAINTENANCE.
NOSES.
Mayhem.
Slitting the nose, 18-5001.
NOTES.
18-3605, 18-3606.
NOTICE.
Abortion.
Minor patients.
minors, 18-609A.
18-602.
Capital punishment.
penalty, 18-4004, 18-4004A
Fines.
Destroying mining and water rights
notices, 18-7023.
Mentally ill.
Criminal procedure.
Intent to raise issue, 18-207.
Mines and mining.
Destroying mining notices,
18-7023.
School buses.
Unauthorized school bus entry.
Warning against, 18-1522.
NOTICE Cont'd
Sex offender registration
right-to-know.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
REGISTRATION
NOTIFICATION.
NUISANCES.
Attractive nuisances.
Abandonment without removing
door locks prohibited,
18-5816.
"Abandoned" defined as "leaving
to attract children,"
18-5817.
Violations constitute
Damages.
Public nuisances, 18-5901.
Definitions.
Misdemeanors.
Public nuisances.
18-5903.
Public nuisances.
Damages.
Defined, 18-5901.
Misdemeanors.
18-5903.
18-5903.
Rivers.
Public nuisances.
Obstructions to rivers, 18-5901.
Smoking.
Display of no smoking signs,
18-5905.
No smoking during public meetings,
18-5904.
Waters and watercourses.
Obstructions in use of navigable
lakes, rivers, streams, etc.
INDEX-TITLE 18 808
NURSES.
Motor vehicles.
concentration.
blood, 18-8003.
NURSING HOMES.
O
OATHS.
Perjury, 18-5401 to 18-5414.
See PERJURY.
OBJECT RAPE, 18-6608.
OBSCENE TELEPHONE CALLS,
18-6710.
OBSCENITY.
Advertisements.
Advertising of matter represented to
be obscene, 18-4103A.
Destruction of obscene matter or
advertisements of matter
represented to be obscene,
18-4112.
Affidavits.
Search warrants.
Affidavit filed with magistrate,
18-4111.
Applicability of act, 18-4102.
Burden of proof.
Affirmative defenses.
Prosecution must sustain burden
where affirmative defense
raised, 18-4102.
Calculated purveyance prohibited,
18-4102.
Consignments.
Requiring consignee to receive
consignment, 18-4105A.
Partial invalidity of sections or act,
18-4115.
Contraband.
18-4112.
Defenses.
OBSCENITY Cont'd
Harmful to minors, 18-1514.
Knowingly, 18-1514.
Material, 18-1514.
Minors, 18-1514.
Nudity, 18-1514.
Performance, 18-1514.
Promote, 18-1514.
Sado-masochistic abuse, 18-1514.
Sexual conduct, 18-1514.
18-4112.
minors, 18-1513.
18-1521.
Each prohibited item disseminated
constitutes separate offense,
18-1519.
18-1520.
18-1521.
Distribute.
Defined, 18-4101.
District courts.
minors.
18-1520.
Jurisdiction to issue restraining
orders.
Injunctions, etc., 18-4114.
Each prohibited item disseminated
constitutes separate offense,
18-1519.
Enforcement of act.
Uniform enforcement, 18-4113.
Evidence.
Motion to suppress evidence.
Unlawful seizure of property,
18-4111.
Special verdict.
Inadmissible as evidence,
18-4108.
Exhibit.
Defined, 18-4101.
Existing ordinances.
Abrogation, 18-1521.
809 INDEX-TITLE 18
OBSCENITY Cont'd
Felonies.
Conspiracy to commit crimes
prescribed by act, 18-4107.
Indecent exposure.
Minors.
18-1517A.
18-4109.
Fines.
minors, 18-1515.
Forms.
Harmful to minors.
Denned, 18-1514.
Hazing, 18-917.
18-1517A.
Injunctions.
minors.
18-1520.
District courts.
Jurisdiction of Courts, 18-4114.
Enforcement by injunction, 18-4114.
Jurisdiction.
Jury.
Knowingly.
Denned, 18-1514, 18-4101.
Live conduct in public places.
Participation in, or production or
presentation of, 18-4104.
Local ordinances.
Further local ordinances banned,
18-1521.
Magistrates.
Search warrants.
Filing of affidavit with magistrate,
18-4111.
Material.
Denned, 18-1514, 18-4101.
Matter.
Denned, 18-4101.
Minors.
Denned, 18-1514.
OBSCENITY Cont'd
Minors Cont'd
minors, 18-1513.
18^1521.
Each prohibited item constitutes
separate offense, 18-1519.
Jurisdiction of district court to
18-1520.
18-1521.
Distribution to minors.
Laws governing, 18-4106.
Harmful to minors.
Denned, 18-1514.
18-1517A.
Misdemeanors.
Advertising, promoting, etc., of
matter represented to be
obscene, 18-4103A.
minors, 18-1515.
General sale or distribution of
Live conduct in public place.
Participation in or production or
presentation, 18-4104.
Minors.
18-1517A.
materials, 18-4105.
Sales.
sale, 18-4105A.
18-1518.
Motion pictures.
Affirmative defenses of operators,
18-4102.
Motion to suppress evidence on
grounds of unlawful seizure,
18-4111.
Nudity.
Denned, 18-1514.
Hazing, 18-917.
INDEX-TITLE 18 810
OBSCENITY Cont'd
Nudity Cont'd
18-1507, 18-1507A.
Obscene live conduct.
Defined, 18-4101.
Obscene materials.
Definitions, 18-1514, 18-4101.
Dissemination to minors, 18-1513.
Offenses.
minors.
Orders.
Destruction of contraband, 18-4112.
Ordinances.
18-4113.
Local ordinances.
18-4113.
Partial invalidity, 18-4115.
Penalties.
Minors.
18-1517A.
Performance.
Defined, 18-1514.
Promote.
Defined, 18-1514.
Prosecution for violations.
Prurient interest.
Defined, 18-4101.
material, 18-4105.
Reckless conduct.
Defined, 18-4101.
Res judicata.
Sado-masochistic abuse.
Defined, 18-1514.
Sales.
Each sale constitutes separate
violation, 18-4103.
General sale or distribution, etc., of
sale, 18-4105A.
18-1518.
18-4111.
OBSCENITY Cont'd
Searches and seizures Cont'd
Procedure for seizure of allegedly
Search warrant for seizure of obscene
material, 18-4111.
Severability of act, 18-4115.
Sexual conduct.
Defined, 18-1514.
Sexual excitement.
Defined, 18-1514.
Solicitation.
Advertising, soliciting, promoting,
etc., of matter represented to be
obscene, 18-4103A.
Telephones.
Use of telephone to harass or offend
by lewd or profane language,
18-6710.
Tie-in sales, 18-1518.
Uniform enforcement of act,
18-4113.
Verdicts.
Admissibility as evidence,
18-4108.
Res judicata, 18-4108.
Violations.
18-4109.
Witnesses.
OBSTRUCTING FREE FLOW OF
WATER, 18-4301.
Dam overflow, gauge or waterway,
18-4303.
OBSTRUCTING OR DELAYING
OFFICER, 18-705.
OFFICE BUILDINGS.
18-802.
OIL AND GAS.
Pipelines.
18-7022.
ORDERS.
Application for interception of
811 INDEX-TITLE 18
ORDERS Cont'd
Communications security Cont'd
devices, 18-6721 to 18-6723.
Obscenity.
Destruction of contraband, 18-4112.
Racketeering.
District court orders, 18-7805.
or children.
Orders providing for children and
wife upon violation, 18-402.
Proceedings upon violation of
provisional order, 18-404.
ORDINANCES.
Obscenity.
18-4113.
Local ordinances.
18-4113.
OUT-HOUSES.
Burglary, 18-1401.
PARAMEDICS.
PARENTAL KIDNAPPING,
18-4506.
PARENTAL NOTICE OF
ABORTION, 18-609.
minors, 18-609A.
18-602.
PARENT AND CHILD.
children, 18-401 to 18-405.
Abuse or insulting school teachers
by parents, 18-916.
18-4506.
18-1501.
Fraud.
Misrepresentation for purpose of
obtaining admission to motion
pictures for minors, 18-1516.
Homicide.
Justifiable homicide in lawful defense
of parent or child, 18-4009.
PARENT AND CHILD Cont'd
Injuries.
Religion.
Treatment of child by prayer or
spiritual means, 18-1501.
insulting, 18-916.
Treatment of child by prayer or
spiritual means, 18-1501.
PARKING METERS.
18-7032.
PAROLE.
Assault or battery upon parole
officers, 18-915.
Civil rights.
of parole, 18-310.
Exercise of civil rights during
period of parole, 18-310.
Homicide.
Imprisonment for murder.
Restrictions on parole, 18-4004.
Murder committed by person on
parole, 18-4003.
right-to-know.
Notice of duty to register, 18-8306.
PARTIAL-BIRTH ABORTIONS.
Prohibited, 18-613.
PARTIES.
Crime and punishment.
PATENTS.
Forgery.
Defined, 18-3601.
PAY PHONES.
18-7032.
PEACE OFFICERS.
18-706.
False information as to commission
of crime, 18-5413.
False information as to identity.
Giving to law enforcement officer
investigating commission of
offense, 18-5413.
authority, 18-3005.
INDEX-TITLE 18 812
PEACE OFFICERS Cont'd
Felonies.
officers, 18-711.
Homicide.
18-4011.
Impersonation.
authority, 18-3005.
Liability.
Civil liability for importing police
officers or armed men into state,
18-712.
Misdemeanors.
Unnecessary assaults by officer,
18-706.
No contact orders.
Immunity, 18-921.
Warrantless arrest, 18-920.
Personal property.
custody, 18-708.
Posse comitatus.
18-707.
custody, 18-708.
18-707.
Terrorism.
Denned, 18-8102.
Exclusions from provisions, 18-8104.
18-711.
officers.
Weapons.
Concealed weapons.
Licenses to carry.
Exemptions from requirement,
18-3302.
PEEPING TOMS.
PENALTIES.
Aeronautics.
Weapons.
Carrying weapons aboard aircraft
and in airports, 18-7503.
PENALTIES Cont'd
Aquaculture.
oral or electronic
Guide dogs.
18-5811.
No contact orders, violation,
18-920.
Obscenity.
Minors.
18-1517A.
Perjury.
Rape.
Punishment for rape, 18-6104.
Scanning devices.
18-2415.
prohibited.
Stalking.
Terrorism.
18-8106.
Theft, 18-2408.
Weapons.
Chemical, 18-3324.
813 INDEX-TITLE 18
PENALTIES Cont'd
Weapons Cont'd
PENETRATION.
Rape.
18-6102.
Sufficiency to complete crime,
18-6103.
PENITENTIARY.
escape, 18-2503.
Controlled substances possessed by
inmates, 18-2511.
18-309.
inmates, 18-2511.
Escape.
escape, 18-2503.
18-2505.
18-2504.
Felonies.
Escape.
escape, 18-2503.
One charged with, convicted of or
18-2505.
Fines.
Escape.
18-2502.
Homicide.
Misdemeanors.
Persons charged with or convicted of
Murder.
PENITENTIARY Cont'd
Penalties.
Escape.
18-2502.
Riots.
Riots occurring in state penitentiary,
18-6402.
18-6110.
Weapons possessed by inmates,
18-2511.
PEN REGISTERS.
18-6725.
See COMMUNICATIONS
SECURITY.
PERJURY.
Capital punishment.
death, 18-5411.
Death.
death, 18-5411.
Defenses.
Ignorance of materiality no defense,
18-5406.
Incompetency of witnesses no
defense, 18-5405.
Oaths.
Irregularity in administering oath
no defense, 18-5404.
Denned, 18-5401.
Depositions.
When making of deposition deemed
complete, 18-5407.
Elections.
voter, 18-2302.
Execution of innocent persons.
Perjury resulting in execution
punishable by death, 18-5411.
Ignorance of materiality no
defense, 18-5406.
Oaths.
Defined, 18-5402.
Future performance of official duties.
Portion of oath relating to future
duties not included, 18-5403.
Irregularity in administering oath no
defense, 18-5404.
Procuring another person to
commit perjury.
Subordination of perjury, 18-5410.
INDEX-TITLE 18 814
PERJURY Cont'd
Proof.
Defendant's testimony, 18-5412.
Subordination of perjury.
Procuring another person to commit
perjury, 18-5410.
Unknown facts.
Unqualified statement of unknown
fact, 18-5408.
Unqualified statement of unknown
fact, 18-5408.
Witnesses.
Defendant's testimony may be used
to prove perjury, 18-5412.
Incompetency no defense, 18-5405.
PERMITS.
without permit.
Penalty, 18-4629.
PERSISTENT VIOLATORS.
Habitual criminals.
Mental illness as defense, 18-207.
PERSONAL IDENTIFYING
INFORMATION.
Misappropriation, 18-3126.
PERSONAL PROPERTY.
Arson.
Generally, 18-801 to 18-805.
See ARSON.
mischief, 18-7002.
Felonies.
18-7001.
Fines.
18-7001.
18-7001.
18-7002.
Misdemeanors.
18-7001.
Peace officers.
custody, 18-708.
Sentencing.
18-7001.
PERSONAL PROPERTY Cont'd
Theft.
Theft by lessee, 18-2404.
PETITIONS.
notification.
Employment of offenders prohibited.
18-8328.
PETIT THEFT.
PHONOGRAPH PIRACY.
18-7608.
PHOTOGRAPHS AND
PHOTOGRAPHY.
Theft by alteration or removal of
price tags or labels.
PHYSICIANS AND SURGEONS.
Abortion.
Defined, 18-604.
Liability, 18-612.
Persons authorized to perform
abortions, 18-608A.
Birth control.
Providing examinations,
prescriptions and informational
materials, 18-603.
Intoxication.
Motor vehicles.
concentration.
blood, 18-8003.
Rape.
Anaesthetics.
Telephones.
18-6808.
PICKLOCKS.
Possession of burglarious
815 INDEX-TITLE 18
PIPELINES.
18-7022.
18-7022.
Misdemeanors.
18-7022.
Oil and gas.
18-7022.
18-7022.
PIRACY.
18-7505.
See AERONAUTICS.
18-7608.
PLEADINGS.
Theft.
Required specified information,
18-2409.
POISONS.
Administering poison with intent
to kill.
18-908.
Denatured alcohol.
18-5502.
Felonies.
kill, 18-4014.
18-5501.
Food.
Mixing poison with food with intent
to injure, 18-5501.
Homicide.
kill, 18-4014.
Degrees of murder.
Mixing poison with medicine,
18-5501.
Medicine.
18-5501.
Sentencing.
18-5501.
POISONS Cont'd
Willfully poisoning springs, wells or
Poisoning springs, wells or
Wells.
POLICE.
Arrest.
18-706.
Assault or battery upon police,
18-915.
Bribery.
officers, 18-1309.
Bribing executive officers, 18-2701
to 18-2712.
See BRIBERY.
Bringing police into state, 18-711.
Felonies.
officers, 18-711.
Gambling.
Homicide.
18-4011.
Murder of peace officers.
Importation of police officers,
18-711.
Liability.
Importing police officers or armed
men into state.
Misdemeanors.
18-706.
custody, 18-708.
18-707.
Reports.
Giving false reports to police,
18-705.
Telephones.
Emergency calls, 18-6808.
INDEX-TITLE 18 816
POLICE Cont'd
Theft.
Reports.
18-711.
officers.
POLITICAL PARTIES.
18-1351 to 18-1362.
See BRIBERY.
POLL TAX.
Receipts.
Unlawful possession of blank licenses
or poll tax receipts, 18-6303.
POLLUTION.
Water pollution.
Polluting rivers and tanks when
fenced or posted, 18-7013.
POOL SELLING, 18-3809.
PORNOGRAPHY.
18-1507.
material for other than
POSSE COMITATUS.
Refusal to assist officers, 18-707.
POWER OF ATTORNEY.
Defined, 18-3601.
PRAIRIE LANDS.
Arson.
18-7004.
PRANKS.
Hazing, 18-917.
PRECIOUS METALS.
18-3607.
PREGNANCY.
Abortion, 18-601 to 18-615.
See ABORTIONS.
Battery.
Enhanced punishment if victim
pregnant, 18-904.
Denned, 18-604.
PREGNANCY Cont'd
Positive pregnancy test.
Required prior to performance of
abortion, 18-609.
Denned, 18-604.
Solicitation of abortion, 18-606,
18-612.
Third trimester of pregnancy.
Denned, 18-604.
PRESUMPTIONS.
Libel and slander.
PRICES.
False statements concerning prices,
18-3105.
PRICE TAGS.
Theft.
Removal, alteration or transfer,
18-4624.
Photographic evidence, 18-4625.
PRIOR CONVICTIONS.
Rape.
PRISONS AND PRISONERS.
Assault or battery upon
correctional officers, 18-915.
Attempts.
Propelling at correctional officer or
detention officer, 18-915B.
Civil rights.
rights, 18-310.
18-310.
Inmates manufacturing, delivering or
Conveyances.
18-309.
inmates, 18-2511.
817 INDEX-TITLE 18
PRISONS AND PRISONERS
Cont'd
Definitions.
Final discharge, 18-310.
Final discharge.
Defined, 18-310.
Fines.
Forfeitures.
Forfeiture of property.
Prohibited, 18-314.
Guards.
Escape.
18-2502.
Homicide.
18-704.
Injuries.
18-313.
Misdemeanors.
Murder.
Out-of-state prisoners.
Applicability of criminal laws to,
18-101B.
Penalties.
Escape.
18-2502.
Property.
Convict's property not forfeited,
18-314.
18-313.
Real property.
Riots.
Riots occurring in state penitentiary
or other penal facility of state,
18-6402.
Sentencing.
Escape.
18-2502.
PRISONS AND PRISONERS
Cont'd
18-6110.
Voting rights restoration, 18-310.
Weapons.
Witnesses.
Capacity of convicts as witnesses,
18-312.
PRIVACY.
PRIVATE PRISON FACILITIES.
Assault or battery upon employees,
18-915.
Criminal laws.
Applicability of criminal laws to
personnel of private correctional
facilities, 18-101B.
Definitions, 18- 101A.
Definitions.
Criminal laws, 18-101A.
Weapons and firearms.
Removing a firearm from employee,
18-915A.
PRIVILEGED COMMUNICATIONS.
Libel and slander.
Public proceedings.
Limitation on privilege in
reporting, 18-4808.
Support and maintenance, 18-405.
PROBATION.
Checks.
Conditions of probation, 18-3106.
Civil rights.
of probation, 18-310.
Escape.
Person on probation for felony,
18-2505.
Fornication.
Suspension of sentence with or
without probation, 18-6603.
Homicide.
Murder by person on probation,
18-4003.
Juvenile probate officer.
notification.
18-8405.
INDEX-TITLE 18 818
PROBATION Cont'd
right-to-know.
PROCESS.
Contempt.
Willful disobedience of process,
18-1801.
Willful disobedience of process.
PROCLAMATIONS.
Destroying legal proclamations,
18-3205.
PROFANITY.
Obscenity.
18-4116.
See OBSCENITY.
PROFESSIONS, VOCATIONS AND
BUSINESSES.
Licenses.
18-6305.
PROPERTY.
Arson, 18-801 to 18-805.
See ARSON.
mischief, 18-7002.
False personation.
Receiving money or property under
false personation, 18-3002.
Felonies.
18-7001.
18-7001.
18-7002.
Manufacturer's serial or
identification numbers.
18-2410.
Misdemeanors.
18-7001.
property, 18-7031.
property a misdemeanor,
18-7031.
PROPERTY Cont'd
Convict's property not forfeited,
18-314.
Railroads.
Robbery.
Fear of unlawful injury to property,
18-6502.
PROSECUTING ATTORNEYS.
Attorneys defending themselves in
civil or criminal actions,
18-1005.
Barratry.
Bribery.
officers, 18-1309.
Application for authorization for
interception, 18-6706.
Gambling.
Indictments.
defendant, 18-4402.
PROSTITUTION.
Detention for prostitution,
18-5605.
Felonies, 18-5613.
18-5601.
Third or subsequent conviction,
18-5614.
18-5603.
Fines.
Enticing persons under eighteen
years of age into prostitution,
18-5609.
819 INDEX-TITLE 18
PROSTITUTION Cont'd
Fines Cont'd
18-5601.
18-5603.
Houses of prostitution.
Denned, 18-5613.
Importation of persons into state
for purpose of prostitution,
18-5601.
Inmates.
Denned, 18-5613.
Interstate trafficking in
prostitution, 18-5601.
Minors.
18-5609.
Patronizing a prostitute, 18-5614.
Procurement.
18-5606.
Denned, 18-5602.
Penalty, 18-5602.
18-5603.
Public places.
Denned, 18-5613.
Sexual conduct.
Defined, 18-5613.
PSYCHIATRISTS.
Criminal procedure.
proceedings.
Appointment of psychiatrists to
PSYCHOLOGISTS.
Criminal procedure.
proceedings.
Appointment of psychologist to
PUBLIC ACCOMMODATIONS.
Civil rights.
right, 18-7301.
Misdemeanors.
Denial of accommodations constitutes
PUBLICATION.
Libel and slander.
Sufficiency of publication, 18-4805.
PUBLIC DEFENDERS.
PUBLIC OFFICERS AND
EMPLOYEES.
Keeping false accounts, 18-5701.
18-2706.
Appointments.
18-2708.
Arrest.
Illegal arrests and seizures, 18-703.
18-706.
Assault or battery upon certain
personnel, 18-915.
Bribery.
18-1351 to 18-1362.
See BRIBERY.
Generally, 18-1301 to 18-1309.
See BRIBERY.
Personal gain from public position,
18-1359.
Certificates.
False certificates from officers,
18-3204.
Buying evidence of debt or action,
18-1003.
Civil rights.
Confidentiality of information.
gain, 18-1359.
Conflicts of interest.
18-1356.
INDEX-TITLE 18 820
PUBLIC OFFICERS AND
EMPLOYEES Cont'd
Conflicts of interest Cont'd
gain, 18-1359.
Corrupt influence.
18-1301 to 18-1309, 18-1351 to
18-1362.
See BRIBERY.
Costs.
18-5704.
Knowingly keeping false account,
18-5701.
Bribery, 18-1301 to 18-1309,
18-1351 to 18-1362.
See BRIBERY.
18-2712.
18-5702.
18-3204.
Fines.
Imprisonment.
Effect on civil rights, 18-310.
18-2708.
18-5701.
Omission of public duty.
preserved, 18-104.
Public moneys.
Defined, 18-5703.
18-5701.
Public records.
18-705.
PUBLIC OFFICERS AND
EMPLOYEES Cont'd
Crimes and offenses Cont'd
18-2705.
18-706.
successor, 18-2710.
18-705.
18-2712.
Documents.
Withholding documents from
successor, 18-2710.
Failure to keep and pay over
money, 18-5702.
False personation.
authority, 18-3005.
Felonies.
18-5702.
18-5701.
18-2705.
successor, 18-2710.
Fines.
18-5704.
18-2708.
Forfeitures.
Failure to account for forfeitures,
18-5704.
Fraud.
18-2706.
Funds.
18-5701.
18-1356.
Gratuities.
18-1356.
Holding office after expiration of
term, 18-2709.
821 INDEX-TITLE 18
PUBLIC OFFICERS AND
EMPLOYEES Cont'd
Misdemeanors.
Appointing or voting for person
related by blood or marriage,
18-1359.
18-2712.
18-5704.
18-3204.
18-2708.
18-5701.
Obstructing officers, 18-705.
Public moneys.
Defined, 18-5703.
Failure of officer to account for fines
or costs, 18-5704.
18-5702.
Records.
successor, 18-2710.
Removal from office.
Criminal code.
preserved, 18-104.
18-705.
Rewards.
18-2708.
Scrip.
Executive officers purchasing scrip
Sentencing.
Imprisonment.
Term of office.
Holding over, 18-2709.
successor, 18-2710.
Theft.
PUBLIC OFFICERS AND
EMPLOYEES Cont'd
Withholding books and records
from successor, 18-2710.
PYRAMID PROMOTIONAL
SCHEMES.
Consideration.
Defined, 18-3101.
Felonies.
Participation constitutes felony,
18-3101.
Penalties, 18-3101.
Violations of act deemed unfair
and deceptive practice,
18-3101.
R
RACING.
Pari-mutuel system.
Lotteries.
When pari-mutuel system not to
constitute lottery, 18-4901.
RACKETEERING.
Actions.
State may file action on behalf of
persons injured, 18-7805.
Attorney general.
court, 18-7804.
Civil remedies, 18-7805.
District courts.
Jurisdiction, 18-7805.
Over actions brought by state,
18-7804.
Orders, 18-7805.
Enterprise.
Defined, 18-7803.
Felonies, 18-7804.
investments, 18-8201.
Fines.
Punishment for racketeering,
18-7804.
Forfeitures.
Penalties for racketeering, 18-7804.
Jurisdiction.
District court to have jurisdiction
over actions, 18-7804.
Legislative purpose, 18-7802.
INDEX-TITLE 18 822
RACKETEERING Cont'd
Orders.
District court orders, 18-7805.
Pattern of racketeering activity.
Denned, 18-7803.
Prohibited activities, 18-7804.
Purpose of act, 18-7802.
Remedies.
court, 18-7804.
Short title of act, 18-7801.
Use of proceeds derived from
racketeering activity, 18-7804.
RAFFLES.
Lotteries, 18-4901 to 18-4909.
See LOTTERIES.
RAFTS.
Destroying rafts, 18-7020.
RAILROADS.
Accidents.
18-6001.
Arrest.
Bells.
Failure to sound bell or whistle,
18-6002.
Bomb threats.
Burglary of railroad car, 18-1401.
Cattle guards.
Obstructing or interfering with cattle
guards, 18-6010.
Conductors.
18-6001.
Authority of conductors to arrest,
18-4618.
18-3611.
Bells.
18-6002.
Breaking seals and forcibly entering
cars, 18-6012.
Canceled railroad tickets.
Restoring, 18-3612.
Car parts.
Receiving stolen car parts,
18-6008.
RAILROADS Cont'd
Cattle guards.
railroad, 18-6010.
Collisions.
18-6001.
Counterfeiting tickets, 18-3611.
Crossings.
18-6002.
Death.
Act causing death, 18-6011.
travelers, 18-6012.
Endangering or injuring passengers.
railroad, 18-6010.
Human body waste.
18-6015.
Locomotives.
Damages to locomotives, 18-6010.
Neglect to sound bell or whistle,
18-6002.
railroad, 18-6010.
18-6001.
Placing obstructions on tracks,
18-6009.
Property.
Injuring railroad property,
18-6006.
Roadbeds.
Placing obstructions on roadbeds
causing death, 18-6011.
Tampering with roadbed, 18-6010.
Stealing rides on trains, 18-4620.
Tearing up, removing or misplacing
rails, 18-6010.
Tracks.
railroad, 18-6010.
18-6009.
Obstructions causing death,
18-6011.
Crossings.
crossing, 18-6002.
823 INDEX-TITLE 18
RAILROADS Cont'd
Death.
death, 18-6011.
18-6001.
Definitions.
Human body waste.
Disposal from passenger trains,
18-6015.
travelers, 18-6012.
Engineers.
18-6001.
Authority of engineers to arrest,
18-4618.
Explosives.
employees of railroads, 18-3313.
Felonies.
Car parts.
Receiving stolen car parts,
18-6008.
Injury railroad property, 18-6006.
death, 18-6011.
railroad, 18-6010.
18-6001.
Fines.
Punishment for stealing rides,
18-4620.
Firearms.
Restoring cancelled railroad tickets,
18-3612.
Tickets.
18-3611.
Homicide.
Human body waste.
18-6015.
Journal bearings.
Larceny.
Car parts, 18-6007.
RAILROADS Cont'd
Locomotives.
Destroying or damaging locomotives,
18-6010.
Misdemeanors.
Counterfeiting ticket, 18-3611.
crossing, 18-6002.
Human body..waste.
18-6015.
Obstruction on tracks, 18-6009.
Offenses against railroads, 18-6012.
18-3612.
Stealing rides on trains, 18-4617,
18-4620.
Obstructions.
18-6009, 18-6010.
Packages.
Breaking packages left at depots for
transportation, 18-6012.
Property.
Seals.
Breaking seals and forcibly entering
cars, 18-6012.
Stealing rides on trains, 18-4617.
Venue of action, 18-4619.
Theft.
Car parts, 18-6007.
Tickets.
Cancelled tickets.
Restoration, 18-3612.
Counterfeiting tickets, 18-3611.
Tracks.
Obstructions or interference causing
death, 18-6011.
18-6009, 18-6010.
Venue.
Waste.
Human body waste.
18-6015.
Weapons.
Firearms.
18-3310.
INDEX-TITLE 18 824
RAILROADS Cont'd
Whistles.
Neglect to sound whistle, 18-6002.
RANSOMS.
Kidnapping.
First degree kidnapping, 18-4502.
RAPE.
Acre.
Age of female, 18-6101.
Anaesthetics.
Accomplishing rape by use of,
18-6101.
Consent.
Victims unable to give legal consent,
18-6101.
Costs.
Restitution of costs to victim,
18-6106.
Defined, 18-6101.
Dentists.
Anaesthetics.
anaesthetic, 18-6101.
District courts.
Punishment for rape.
Discretion of district court judge,
18-6104.
Elements of rape, 18-6101.
Essential guilt of rape, 18-6103.
Evidence.
Impeaching credibility of witnesses
by showing prior felony
convictions, 18-6105.
Penetration.
18-6102.
Previous sexual conduct, 18-6105.
Felonies.
Impeachment of credibility by
showing prior felony convictions,
18-6105.
Male rape, 18-6109.
Homicide.
Murder committed in perpetration or
attempt of rape, 18-4003.
Husband and wife.
RAPE Cont'd
Husband and wife Cont'd
husband.
Impeachment of witnesses.
Showing prior felonv convictions,
18-6105.
Kidnapping.
rape, 18-4502.
Male rape, 18-6108, 18-6109.
Mentally ill.
Victims incapable of giving legal
consent, 18-6101.
Murder.
or attempt to perpetrate rape,
18-4003.
Penalties.
Penetration.
18-6102.
Sufficiency of penetration to complete
crime, 18-6103.
Physical ability.
Anaesthetics.
Previous sexual conduct of victim.
Admission of evidence, 18-6105.
Prior convictions.
Prisoners.
18-6110.
Restitution.
Order by court to provide restitution,
18-6106.
Sentencing.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
REGISTRATION
NOTIFICATION.
825 INDEX-TITLE 18
RAPE Cont'd
Spousal rape.
husband, 18-6101.
Threats.
Victim prevented from resistance by
threats.
Victims of crime.
Restitution to victim, 18-6106.
Witnesses.
Previous sexual conduct of
prosecuting witness, 18-6105.
RAPE SHIELD LAW, 18-6105.
REAL PROPERTY.
Arson.
Generally, 18-801 to 18-805.
See ARSON.
Felonies.
18-7001.
Fines.
18-7001.
18-7001.
18-7002.
Misdemeanors.
18-7001.
Partition of real estate.
Lotteries.
Exceptions to lottery chapter,
18-4909.
RECEIPTS.
Taxation.
RECEIVING STOLEN GOODS.
Theft.
18-2415.
See THEFT.
RECORD ALBUMS.
18-7608.
RECORDATION.
RECORDATION Cont'd
Felonies.
18-3602.
RECORDS.
Business corporations.
Inspection of records by
shareholders.
Corporations.
records, 18-3202.
Education.
Birthdate or identification records of
students on enrollment,
18-4511.
Evidence.
Falsification of public records,
18-3201.
records, 18-3202.
Felonies.
18-3201.
Fines.
18-3202.
18-3602.
Misdemeanors.
18-3202.
Mutilation.
Officers mutilating public records,
18-3201.
Private persons mutilating public
records, 18-3202.
Private persons.
Stealing, mutilating or falsifying
INDEX-TITLE 18 826
RECORDS Cont'd
successor, 18-2710.
Theft.
Private persons, 18-3202.
Public officers, 18-3201.
protection.
Vendors of unused merchandise,
18-2419.
REFRIGERATORS.
Abandonment.
children, 18-5817.
18-5816.
18-5818.
REGISTRATION.
Elections.
18-2322.
Sex offenders.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
REGISTRATION
NOTIFICATION.
RELIGION.
Faith healers.
Treatment of injured or sick children
by spiritual means, 18-1501.
REMEDIES.
Racketeering.
Tape piracy act.
Act not exclusive remedy, 18-7607.
RENTAL VEHICLES.
Theft, 18-2403.
REPORTS.
Contempt.
Publication of false or inaccurate
reports of court proceedings.
Corporations.
18-1906.
REPORTS Cont'd
Giving false report to peace officer,
18-705.
proceedings.
Report of court appointed
psychiatrists and
psychologists, 18-211.
Explosives.
Felonies.
Libel and slander.
Public proceedings.
Limitation on privilege, 18-4808.
malice, 18-4807.
Missing children, 18-4507 to
18-4512.
Police.
Giving false reports to police,
18-705.
RESCUING PRISONERS, 18-2501.
RESERVOIRS.
18-4301 to 18-4310.
RIGHTS.
Injuring reservoirs.
Penalties, 18-7019.
Misdemeanors.
18-7013.
Penalties.
Injuring reservoirs, 18-7019.
RESISTING ARREST, 18-705.
RES JUDICATA.
Obscenity.
RESTITUTION.
Bribery.
18-1362.
Violations of provisions, 18-1360.
investments.
Costs and expenses of prosecution
and investigation, 18-8201.
827 INDEX-TITLE 18
RESTITUTION Cont'd
Racketeering activities, 18-7804.
Rape.
Order by court to provide restitution,
18-6106.
RESTORATION OF CIVIL RIGHTS,
18-310.
RESTRICTED DRIVERS'
LICENSES, 18-1502C.
RETALIATION.
Past official conduct, 18-1355.
REWARDS.
18-2704.
Bribery.
18-1303.
Executive officers.
18-2704.
Judges.
Misdemeanors.
18-1303.
18-2708.
RIFLES.
Purchase of rifles in contiguous
state, 18-3314.
States.
purchasing firearms in Idaho,
18-3315.
RIGHT TO WORK, 18-7301 to
18-7303.
Discrimination.
Civil rights.
Freedom from discrimination,
18-7301.
When denial on basis of sex
permissible, 18-7303.
Misdemeanors.
Denial of right to work, 18-7303.
When permissible, 18-7303.
RIOTS.
Defined, 18-6401.
Elections.
RIOTS Cont'd
Felonies.
Punishment for riot, 18-6402.
Homicide.
Lawfully suppressing riots,
18-4009.
Jails.
Riots occurring in county or city jail,
18-6402.
Misdemeanors.
Penalties.
Penitentiary.
Riots occurring in state penitentiary,
18-6402.
Riots occurring in state penitentiary
or other penal facility of state,
18-6402.
Sentencing.
Value of property destroyed,
18-6402.
RITUALIZED ABUSE OF A CHILD,
18-1506A.
RIVERS.
Animals.
Dead animals.
Putting animals carcasses in
rivers, 18-5803.
18-4301 to 18-4310.
RIGHTS.
Nuisances.
Public nuisances.
Obstructions to rivers, 18-5901.
Polluting rivers when fenced or
posted, 18-7013.
ROBBERY.
Denned, 18-6501.
Elements of robbery, 18-6501.
Fear which constitutes robbery,
18-6502.
Felony murder.
Homicide committed in perpetration
of robbery, 18-4003.
INDEX-TITLE 18 828
ROBBERY Cont'd
Homicide.
robbery, 18-4003.
Injuries to person.
Fear of unlawful injury, 18-6502.
Jurisdiction.
persons liable to punishment,
18-202.
Murder.
or attempt to perpetrate robbery,
18-4003.
Property.
Fear of unlawful injury to property,
18-6502.
Punishment for robbery, 18-6503.
RONDO.
18-3810.
See GAMBLING.
ROUGE ET NOIR.
18-3810.
See GAMBLING.
ROULETTE.
18-3810.
See GAMBLING.
RUNAWAY CHILDREN.
Reports.
Definition, 18-4508.
Schools.
Duties, 18-4511.
S
SABOTAGE.
Forest sabotage, 18-4631.
Trees and timber.
Driving nails, etc., into logs or timber
intended to be manufactured
into boards, etc., 18-7026.
SACRIFICE OF ANIMAL OR
HUMAN BEING.
18-1506A.
SADOMASOCHISM.
materials, 18-4105.
18-1507, 18-1507A.
SAFES.
SALES.
Alcohol.
Denatured alcohol.
18-5502.
Animals.
Famished animals, 18-5804.
Denatured alcohol.
18-5502.
Explosives.
Minors.
Selling explosives to minors,
18-3308.
without bill of sale.
Penalty, 18-4629.
Counterfeit goods, 18-3615.
Obscenity.
Each sale constitutes separate
violation, 18-4103.
General sale or distribution, etc., of
sale, 18-4105A.
18-1518.
Signs.
Slugs.
18-3620.
Tape piracy act.
Unlawful sale, 18-7603.
Weapons.
Minors.
Selling explosives, ammunition or
firearms to minors, 18-3308.
SATANISM.
Ritualized abuse of child.
Generally, 18-1506A.
SAWED-OFF RIFLES OR
SHOTGUNS.
SCANNING DEVICES.
18-2415.
829 INDEX-TITLE 18
SCHOOL BUSES.
Notice.
Unauthorized school bus entry.
Warning against, 18-1522.
18-1522.
SCHOOLS.
teachers, 18-916.
Burning of structure in which
18-802.
Bomb threats.
Concealed weapons.
Carrying into school or on school
property, 18-3302C.
Explosives.
Weapons.
Concealed weapons.
Carrying into school or on school
property, 18-3302C.
SCRIP.
Bribery.
Executive officers.
Purchasing scrip prohibited,
18-2705.
Executive officers purchasing scrip
SEALS AND SEALED
INSTRUMENTS.
Public seals, 18-3603.
Great seal of state.
Forgery and counterfeiting, 18-3603.
SEARCH AND RESCUE.
Dogs.
18-7039.
SEARCHES AND SEIZURES.
Aeronautics.
Refusal to submit to search or
screening, 18-7503.
18-6704.
Lotteries.
Issuance of warrant for confiscation
of moneys and property,
18-4907.
SEARCHES AND SEIZURES
Cont'd
Misdemeanors.
Search warrants.
18-709.
Obscenity.
18-4111.
Procedure for seizure of allegedly
Search warrant for seizure of obscene
material, 18-4111.
Racketeering.
court, 18-7804.
Schools.
Weapons.
school property.
Right to search students or
minors, 18-3302D.
Search warrants.
Lotteries.
Confiscation of moneys and
property, 18-4907.
18-709.
Probable cause.
Obtaining warrant without
probable cause, 18-709.
Tape piracy act.
Confiscation of equipment, 18-7605.
Weapons.
school property.
Right to search students or minors,
18-3302D.
SECURITIES.
18-3206.
SELF-DEFENSE.
Homicide.
18-4010.
SELF-INCRIMINATION.
Bribery.
Incriminating testimony may be
required, 18-1308.
SENTENCING.
18-4015.
INDEX-TITLE 18 830
SENTENCING Cont'd
Burglary.
Prison terms, 18-1403, 18-1405.
Civil rights.
Life imprisonment.
Effect on civil rights, 18-310.
Concurrent sentences, 18-308.
Consecutive sentences, 18-308.
Courts.
Imposition of punishment by court,
18-106.
Punishment for crime left
undetermined.
18-309.
court, 18-107.
Domestic violence.
Aggression counseling, 18-918.
rights and offices, 18-310.
Felonies.
Fines.
Imprisonment for nonpayment,
18-303.
Firearms.
Homicide.
Murder.
18-4015.
Kidnapping.
First degree kidnapping, 18-4504,
18-4504A.
Presentence investigations, 18-4505.
Second degree kidnapping, 18-4504.
Murder.
Homicide.
18-4015.
Punishment of offenses for which
no penalty is fixed, 18-317.
Rape.
Successive terms of imprisonment,
18-308.
SENTENCING Cont'd
Theft.
18-2410.
Punishment for theft, 18-2408.
Weapons.
Chemical, 18-3324.
SEX DISCRIMINATION.
18-7303.
SEX OFFENDER REGISTRATION
NOTIFICATION, 18-8301 to
18-8328.
Annual registration, 18-8307.
Appeals.
18-8321.
Applicability of provisions,
18-8304.
Burden of proof.
18-8321.
Central registry, 18-8305.
Defined, 18-8303.
Dissemination of information,
18-8323, 18-8324.
Immunity from civil liability,
18-8325.
Juvenile sex offenders.
Separate registry, 18-8404.
Transfer to adult registry,
18-8410.
Public access to information,
18-8323.
Change of address or name,
18-8309.
Dissemination of registry
information, 18-8323, 18-8324.
Immunity from civil liability,
18-8325.
Effective date, 18-8304.
831 INDEX-TITLE 18
NOTIFICATION Cont'd
Employment of offenders
prohibited.
18-8328.
Evidence.
18-8321.
Expungement of records.
notice.
Penalties, 18-8311.
False or misleading information.
Penalties, 18-8311.
Felonies.
18-8311.
False or misleading information,
18-8311.
Findings of legislature, 18-8302.
Fines.
18-8311.
False or misleading information,
18-8311.
Immunities.
18-8325.
Initial registration, 18-8306.
18-8413.
REGISTRATION
NOTIFICATION.
Legislative findings, 18-8302.
List of offenders.
Release quarterly to public, 18-8324.
Local registration, 18-8307.
Misdemeanors.
NOTIFICATION Cont'd
Notice of address verification.
Violent sexual predators, 18-8308.
Notice of annual registration,
18-8307.
Notice of change of address or
name, 18-8309.
Notice of designation of offender as
violent sexual predator,
18-8319, 18-8320.
Penalty for evasion of service of
notice, 18-8311.
Notice of hearing on release from
registration requirements,
18-8310.
Notice to law enforcement
agencies, 18-8305.
Parole.
Penalties for violations, 18-8311.
Probation.
Psychosexual evaluations.
Defined, 18-8303.
Offender required to pay for,
18-8318.
Requirement upon conviction,
18-8316.
Requirement upon release, 18-8317.
Public access to public offender
registry information, 18-8323.
Sexual offender classification
board.
Creation, 18-8312.
Duties, 18-8314.
Meetings.
Compliance with open meeting
law, 18-8315.
Members, 18-8312, 18-8313.
Powers, 18-8314.
Removal of members, 18-8313.
Reports, 18-8315.
provisions.
Penalties, 18-8326.
Defined, 18-8303.
18-8321.
INDEX-TITLE 18 832
NOTIFICATION Cont'd
Violent sexual predators Cont'd
Moving from other states to Idaho,
18-8322.
Notice of board's determination,
18-8319, 18-8320.
Penalty for evasion of service of
notice, 18-8311.
Verification of address, 18-8308.
SEXUAL BATTERY OF MINOR
CHILD, 18-1508A.
SEXUAL CONTACT WITH
PRISONER, 18-6110.
SEXUAL EXPLOITATION BY
MEDICAL CARE PROVIDER,
18-919.
SEXUAL OFFENSES.
18-1507.
Evidence.
Exploitation of children, 18-1507.
Fornication.
Incest, 18-6602.
18-6605.
Kidnapping.
committing sexual offense,
18-4502.
Medical care providers.
Sexual exploitation by, 18-919.
Minors.
right-to-know, 18-8401 to
18-8413.
REGISTRATION
NOTIFICATION.
sixteen, 18-1508.
sixteen, 18-1506.
18-1508A.
SEXUAL OFFENSES Cont'd
Minors Cont'd
18-1507.
commercial purpose,
18-1507A.
Prisoners.
18-6110.
See PROSTITUTION.
Rape, 18-6101 to 18-6108.
See RAPE.
right-to-know.
Generally, 18-8301 to 18-8328.
See SEX OFFENDER
REGISTRATION
NOTIFICATION.
18-8413.
REGISTRATION
NOTIFICATION.
18-1508A.
Sodomy.
SHADE TREES.
Injuring, 18-7021.
SHERIFFS.
Arrest.
Bribery.
Executive officers, 18-2701 to
18-2712.
See BRIBERY.
Municipal or county officers,
18-1309.
Concealed weapons applications or
licenses.
Issuance of license generally,
18-3302.
Costs.
18-5704.
18-5704.
Elections.
833 INDEX-TITLE 18
SHERIFFS Cont'd
Escape.
Fines.
18-5704.
Gambling.
18-711.
Weapons.
Concealed weapons.
Licenses to carry.
Exemption from disclosure,
18-3302.
Issuance generally, 18-3302.
SHIELD LAW.
SHOPLIFTING.
Defenses.
or merchandise.
Employees detaining persons on
premises for purposes of
investigation.
Defense in civil action, 18-4626.
SHOPS.
Burglary, 18-1401.
SHOTGUNS.
Resident's purchase in contiguous
state, 18-3314.
States.
18-3315.
SIGNS.
18-7017.
Elections.
18-7029.
Sales.
Smoking.
18-5905.
Trespass.
SIMULATION OF LEGAL
PROCESS.
authority, 18-3005.
SLEEP DEPRIVATION.
Hazing, 18-917.
SLOT MACHINES.
Possession allowed, 18-3810.
Gambling.
Possession of slot machines unlawful,
18-3810.
Antique slot machines excepted
from provisions, 18-3810.
SLUGS.
Manufacture or sale, 18-3620.
Use in vending machines, 18-3619.
SMOKING.
Fines.
Infractions.
Violation of no smoking during public
meetings, 18-5906.
Public meetings.
No smoking during public meetings,
18-5904.
Signs.
18-5905.
SNAKE RIVER IMPROVEMENTS.
Public meetings, 18-5904.
SOCIAL WORKERS.
False information as to commission
of crime, 18-5413.
SODOMY.
SOLICITATION.
Abortion.
18-606.
Attempts.
Punishment for criminal solicitation.
18-2004.
Attempts.
Punishment for criminal
solicitation to same extent as
for attempt to commit crime,
18-2004.
INDEX-TITLE 18 834
SOLICITATION Cont'd
Criminal solicitation Cont'd
Defenses.
solicited, 18-2002.
Renunciation of criminal purpose.
Definition of solicitation, 18-2001.
Forest practices.
lawful forest practices,
18-2005.
solicited no defense, 18-2002.
Renunciation of criminal purpose.
Defenses.
solicited, 18-2002.
18-2003.
Definitions.
Criminal solicitation, 18-2001.
Forest practices.
Minors.
Soliciting minors to participate in
sexual acts, 18-1506.
Obscenity.
Advertising, soliciting, promoting,
etc., of matter represented to be
obscene, 18-4103A.
SPOLIATION OF EVIDENCE,
18-2603.
STABLES.
Burglary, 18-1401.
STALKING.
STANDING.
Bad checks.
Persons having acquired rights with
respect to.
Standing to file complaint under
section, 18-3106.
STATE BOARD OF EXAMINERS.
Escape.
Prosecution.
Audit of costs of prosecution,
18-2507.
STATE DEPARTMENTS AND
AGENCIES.
Evidence of intercepted
18-6705.
False information to, 18-5413.
Smoking during public meetings.
STATE LANDS.
Trees and timber.
18-7010.
18-7009.
STATE OF IDAHO.
18-1351 to 18-1362.
See BRIBERY.
Threats.
Threats against state officials,
18-1353A.
STATE OF MIND.
Evidence.
Reception of evidence on issue,
18-116, 18-207.
STATE POLICE.
Missing persons clearing house,
18-4512.
STATES.
Firearms.
Resident's purchase of firearms in
contiguous state, 18-3314.
Rifles.
18-3315.
Shotguns.
18-3315.
Weapons.
Firearms.
18-3315.
STATUTES.
18-4702.
Felonies.
18-4702.
835 INDEX-TITLE 18
STAYS.
Suspension of drivers' licenses or
driving privileges.
Stay upon reincarceration,
18-8011.
STEALING.
Electric power, 18-4621 to 18-4623.
See ELECTRIC POWER.
Railroads.
Authority of conductors to arrest,
18-4618.
Robbery, 18-6501 to 18-6503.
See ROBBERY.
Theft.
18-2415.
See THEFT.
STOCK AND STOCKHOLDERS.
Forgery.
Denned, 18-3601.
Subscriptions.
Corporations.
18-1901.
STOLEN PROPERTY.
Receiving stolen goods, 18-2401 to
18-2415.
STORES.
Burglary, 18-1401.
STUDENT ORGANIZATIONS.
Hazing, 18-917.
SUBORNATION OF PERJURY,
18-5410.
SUPPORT AND MAINTENANCE.
wife or children.
Evidence, 18-405.
Forfeited recognizance.
Disposition, 18-404.
Punishment, 18-401.
Disposition of proceeds of forfeited
recognizance, 18-404.
Criminal nonsupport of children or
wife, 18-401.
Desertion and nonsupport of
children or wife.
Penalty, 18-401.
SUPPORT AND MAINTENANCE
Cont'd
Evidence.
Proof of marriage, 18-405.
Proof of parentage, 18-405.
Rules of evidence, 18-405.
Felonies.
Desertion and nonsupport of child,
18-401.
Desertion and nonsupport of wife,
18-401.
Orders.
or children.
Proceedings upon violation of
provisional order, 18-404.
Privileged communications,
18-405.
SUSPENSION OF CIVIL RIGHTS,
18-310.
SWIMMING POOLS.
Life jacket or floatation device.
Prohibiting use, 18-5801.
TAPE PIRACY ACT, 18-7601 to
18-7608.
Advertisements.
Unlawful advertisements, 18-7603.
Applicability of act.
Severability, 18-7608.
Confiscation of equipment,
18-7605.
Each recording of original fixation
of sounds constitutes separate
offense, 18-7604.
Exceptions to provisions of act,
18-7606.
Felonies.
Violations constitute felony,
18-7604.
Fines.
Owners.
Defined, 18-7602.
Persons.
Defined, 18-7602.
INDEX-TITLE 18 836
TAPE PIRACY ACT Cont'd
Remedies.
Sales.
Unlawful sale, 18-7603.
Confiscation of equipment, 18-7605.
Severability of act, 18-7608.
Short title of act, 18-7601.
Unlawful transfer, sale,
distribution and
advertisements, 18-7603.
TATTOOING OF MINORS, 18-1523.
TAXATION.
Assessors.
Lists.
property, 18-6301.
Blank licenses.
Assessors.
property, 18-6301.
Blank licenses.
18-6305.
18-6309.
Neglect of duty by county auditor,
18-6307.
Receipts.
Unlawful possession of poll tax
receipts, 18-6303.
Tax collectors.
Refusal to give tax collector names
of employees, 18-6304.
Violation of revenue laws, 18-6308.
Refusal to give tax collector names of
employees, 18-6304.
False personation.
18-6309.
Felonies.
Blank licenses.
18-6309.
Officers.
Neglect of duty or failure to
perform, 18-6308.
Receipts.
Poll tax receipts.
TAXATION Cont'd
Fines.
18-6309.
Officers.
Neglect or failure to perform duty,
18-6308.
Tax collectors.
18-6309.
Misdemeanors.
Property taxes.
property, 18-6301.
Receipts.
property, 18-6301.
Tax collectors.
employees, 18-6304.
Officers.
18-6309.
Neglect of duty or failure to perform,
18-6308.
Poll tax.
Receipts.
licenses or poll tax receipts,
18-6303.
Receipts.
Tax collectors.
Refusal to give names of employees,
18-6304.
Violation of revenue laws.
Neglect or refusal to perform duties,
18-6308.
TEACHERS.
Abuse of school teachers, 18-916.
Assault or battery upon teachers at
juvenile detention facilities,
18-915.
Assault or battery upon teachers.
Juvenile detention facilities, 18-915.
Insulting or abusing, 18-916.
TELECOMMUNICATIONS.
Advertisements.
Theft of telecommunications services.
Advertising plants for illegal
telecommunications
equipment, 18-6713.
837 INDEX-TITLE 18
TELECOMMUNICATIONS Cont'd
to 18-6725.
See COMMUNICATIONS
SECURITY.
Definitions.
Fines.
Voidance of telecommunications
charges, 18-6714.
Intent.
Establishment element of intent and
prosecution for theft of services,
18-6713.
Misdemeanors.
18-6714.
Penalties.
Sentencing.
Theft.
charges.
Aiding avoidance, 18-6714.
Fines.
Penalties for violation, 18-6713.
Illegal telecommunications
equipment.
Defined, 18-6713.
Manufacture, possession or use
illegal, 18-6713.
Sale or advertising, 18-6713.
Intent.
Establishment of element of intent,
18-6713.
Penalties.
Violations, 18-6713.
Sentencing.
Violations of section, 18-6713.
Violations.
Penalties, 18-6713.
TELEGRAPHS.
18-6717.
Equipment.
Telecommunication lines and
instruments.
Intentional destruction, 18-6810.
TELEGRAPHS Cont'd
Felonies.
18-6715.
Fines.
18-6715.
Forgery.
18-6715.
Messages.
Opening sealed telegrams, 18-6716.
18-6717.
Misdemeanors.
Refusal to send or deliver messages,
18-6717.
Penalties.
18-6715.
Poles.
Destroying telegraph poles, 18-7020.
Refusal to send or deliver
telegraph message, 18-6717.
Sentencing.
instruments.
TELEPHONES.
Aeronautics.
Coin telephones.
18-7032.
Credit card numbers.
Aiding avoidance of
telecommunications charges,
18-6714.
Credit card fraud.
18-6714.
reports, 18-6711A.
INDEX-TITLE 18 838
TELEPHONES Cont'd
18-7032.
Terrifying, intimidating, harassing or
annoying by use of telephone,
18-6711.
Damages.
reports.
Civil damages, 18-6711A.
Denned.
18-6710, 18-6711.
Destroying telephone poles,
18-7020.
Repeated calls, 18-6710.
Emergencies.
18-6808.
Relinquishment of line for emergency
messages, 18-6806.
Equipment.
Removal or obstruction, 18-6801.
instruments.
False alarms.
911 emergency telephone systems,
18-6711A.
False statements.
Use of telephones to terrify,
intimidate, harass or annoy by
Felonies.
False statements.
intimidate, etc., by false
statements, 18-6711.
threaten, etc., 18-6710.
Fines.
Fire protection.
18-6808.
Fraud.
Credit card fraud.
18-6714.
TELEPHONES Cont'd
Fraud Cont'd
Emergency messages.
Fraudulently procuring use of
telephone line, 18-6809.
Harassment by telephone, 18-6710.
Lines.
Misdemeanors.
Credit card fraud.
18-6714.
reports,

18-67 11A.
18-7032.
18-6710, 18-6711.
False alarms, complaints or reports,
18-6711A.
Obscenity.
Use of telephone to harass or offend
by lewd or profane language,
18-6710.
Penalties.
reports, 18-6711A.
18-6808.
Place of offense committed by use
of telephone, 18-6712.
Police.
Emergency calls, 18-6808.
Relinquishment of line for
emergency messages, 18-6806.
Sentencing.
False statements.
intimidate, harass, etc., by
instruments.
Threats.
Use of telephone to threaten,
18-6710.
839 INDEX-TITLE 18
TELEPHONES Cont'd
Wiretapping.
to 18-6725.
See COMMUNICATIONS
SECURITY.
TENTS.
Burglary, 18-1401.
TERRORISM.
18-8104.
Felonies.
18-8106.
Legislative declaration, 18-8101.
18-8106.
Military affairs.
Defined, 18-8102.
18-8104.
Murder.
Terrorism committed on child under
Peace officers.
Defined, 18-8102.
Exclusions from provisions, 18-8104.
Penalties.
Purpose of provisions, 18-8101.
THEFT.
Appropriate.
Defined, 18-2402.
Burglary, 18-1401 to 18-1406.
See BURGLARY.
Complaints.
Sufficient complaints, 18-2409.
18-2401.
Credit cards.
Data processing.
Deception.
Defined, 18-2402.
THEFT Cont'd
Defenses.
Deprive.
Defined, 18-2402.
Electric power.
Evidence.
Prima facie evidence, 18-2404.
Proof and pleadings, 18-2409.
Supporting evidence, 18-2401.
Extortion.
Defenses, 18-2406.
False promises.
Felonies.
Fines, 18-2408.
Food.
Grading of theft, 18-2407.
Grand theft.
Elements, 18-2407.
Penalties, 18-2408.
Value of property stolen, 18-2407.
Hotels.
Husband and wife.
Theft of spouse's property.
Defenses to charge of theft,
18-2406.
18-2410.
Indictments.
Evidence supporting indictment,
18-2401.
Sufficient indictments, 18-2409.
Informations.
Evidence supporting information,
18-2401.
Sufficient information, 18-2409.
Intent.
INDEX-TITLE 18 840
THEFT Cont'd
Labels.
Alteration, removal, etc., of price tags
or labels, 18-4624.
Labor.
Theft of labor or services, 18-2403.
Leases.
Failure or refusal to return personal
property after lease or rental
agreement has expired,
18-2404.
Motor vehicle leases, 18-2403.
Livestock.
Grand theft.
Value of livestock stolen, 18-2407.
Lost and unclaimed property.
Manufacturers.
18-2410.
Misdemeanors.
Motor vehicles.
Committing theft after renting or
leasing motor vehicles, 18-2403.
Obtained.
Defined, 18-2402.
Owners.
Defined, 18-2402.
Penalties, 18-2408.
Person.
Defined, 18-2402.
Personal property.
Petit theft.
Pleadings.
Required specified information,
18-2409.
Police.
Reports.
Price tags.
Alteration, removal, etc., 18-4624.
Property.
Defined, 18-2402.
Public records.
Railroads.
Car parts, 18-6007.
THEFT Cont'd
Records.
Private persons stealing public
records, 18-3202.
18-3201.
Rentals.
Robbery, 18-6501 to 18-6503.
See ROBBERY.
Sentencing.
18-2410.
Services.
Defined, 18-2402.
Stolen property.
Bringing into state.
person, 18-202.
Defined, 18-2402.
Trespass.
Defenses to prosecution for theft
committed by trespassory taking,
18-2406.
Value of property.
Defined, 18-2402.
Indictments, informations and
complaints, 18-2409.
THEFT DETECTION SHIELDING
DEVICES.
THREATENING TELEPHONE
CALLS, 18-6710.
THREATS.
Aeronautics.
Assault, 18-901, 18-902.
Bomb threats.
Use of telephones to make threats of
physical harm, 18-6710.
Bomb threats.
18-3313.
841 INDEX-TITLE 18
THREATS Cont'd
Crimes and punishments Cont'd
Committing acts or omissions under
threat.
crimes, 18-201.
Principals.
Denned, 18-204.
18-1353A.
Elections.
18-2305.
Executive department.
18-1353A.
Governor.
18-1353A.
Intimidating witness, 18-2604.
Judges.
Threats against state officials of the
judicial branch, 18-1353A.
Legislature.
of the legislative branch,
18-1353A.
Libel and slander.
Lieutenant governor.
Threats against'state elected officials
18-1353A.
Mail.
18-1353A.
Mines and mining.
18-1702.
18-1353.
18-1353A.
Rape.
Victim prevented from resistance by
threats.
State of Idaho.
Threats against state officials,
18-1353A.
Telephones.
Use of telephone to threaten,
18-6710.
THREATS Cont'd
Weapons.
Deadly weapons.
Exhibition or use, 18-3303.
TICKETS.
Lotteries.
Railroads.
Canceled tickets, 18-3612.
Counterfeit tickets, 18-3611.
TIE-IN SALES.
Obscenity, 18-1518.
TIMBER SPIKING.
18-7026.
TIME.
Offenses committed prior to effective
date of code, 18-100.
TIPS.
Public servants.
Gifts by persons subject to their
TOLL BRIDGES.
TORTURE.
Murder, 18-4001, 18-4003.
18-1506A.
18-4001.
TRADEMARKS.
18-3614.
Definitions, 18-3616, 18-3617.
TRAFFICKING IN
PROSTITUTION.
Interstate trafficking, 18-5601.
TRAILERS.
Burglary of closed trailer, 18-1401.
TRANSCRIPTS.
Fines.
TRANSPORTATION.
Forest products, 18-4628.
Penalty, 18-4629.
governing, 18-3905.
INDEX-TITLE 18 842
TRAP AND TRACE DEVICES.
devices, 18-6719 to 18-6725.
See COMMUNICATIONS
SECURITY.
TRAVEL TRAILERS.
Weapons.
occupied travel trailer, 18-3317.
TREASON.
Homicide.
TREES AND TIMBER.
Arson.
18-7004.
Boundary monuments.
Obliterating and defacing, 18-7016.
Brands and marks.
18-4616.
Coniferous trees.
Purchase without proof of ownership,
18-4628A.
Transportation, 18-4627.
18-4616.
18-7009.
Injury to shade trees, 18-7021.
18-7010.
Cutting trees, etc., of another.
State timber for shipment, 18-7010.
18-4616.
lands, 18-7009.
Felonies.
18-7010.
Fines.
18-4616.
18-7026.
18-7004.
Lumber.
Defacing marks on logs, 18-4616.
Sabotaging lumber, 18-7026.
TREES AND TIMBER Cont'd
Misdemeanors.
18-4616.
Firing timber, 18-7004.
State lands.
lands, 18-7009.
Product load receipts.
Sabotage.
Driving nails, etc., into logs or timber
intended to be manufactured
into boards, etc., 18-7026.
Sentencing.
18-4616.
Sabotaging, 18-7026.
Shade trees.
State lands.
18-7010.
18-7009.
Transportation of coniferous trees,
18-4627.
Trespass.
TRESPASS.
Criminal trespass.
Definition, 18-7011.
Fine and imprisonment, 18-7011.
Definitions.
Entering land without permission.
Fences.
Fines.
Foxes.
Trespass on enclosure for fur-bearing
animals, 18-7015.
Trespass on enclosure, 18-7015.
18-7015.
Privacy.
Signs.
843 INDEX-TITLE 18
TRESPASS Cont'd
Theft.
Defenses to prosecution for theft
committed by trespassory taking,
18-2406.
Trees and timber.
TRIAL.
Aeronautics.
Aircraft hijacking.
Disorderly conduct during trial.
TRUSTS AND TRUSTEES.
Forfeiture of private trusts, 18-310.
TWENTY-FOUR HOUR BANKING.
Fraud.
18-3122 to 18-3128.
See CREDIT CARDS.
U
UNFAIR TRADE PRACTICES.
Pyramid promotional scheme,
18-3101.
UNITED STATES.
Fire protection.
Flags.
Public mutilation of United States
flag, 18-3401.
Weapons.
state, 18-3314.
Purchase of firearms in Idaho by
residents of contiguous state,
18-3315.
UNITED STATES MARSHALS.
UNIVERSITIES AND COLLEGES.
Concealed weapons.
Carrying in public or private schools
prohibited, 18-3302C.
Hazing, 18-917.
Weapons.
Concealed weapons.
UNLAWFUL ASSEMBLY.
Denned, 18-6405.
UNLAWFUL ENTRY.
UNUSED MERCHANDISE
OWNERSHIP PROTECTION,
18-2416 to 18-2421.
Definitions, 18-2417, 18-2418.
Exemptions, 18-2420.
Penalties for violations, 18-2421.
Prohibited acts, 18-2418, 18-2419.
Records.
Vendors, 18-2419.
Sales.
UTTERING.
Bad checks.
Forged or counterfeited notes,
18-3606.
VAULTS.
VEHICLES.
Burglary, 18-1401.
VEHICULAR MANSLAUGHTER,
18-4006, 18-4007.
VENDING MACHINES.
18-3619.
Misdemeanors.
18-7032.
Penalty for use, 18-3619.
18-7032.
VENUE.
Railroads.
INDEX-TITLE 18 844
VERDICT.
Obscenity.
Admissibility as evidence,
18-4108.
Res judicata, 18-4108.
Special verdicts.
Obscenity, 18-4108.
VESSELS.
Burglary, 18-1401.
VICTIMS OF CRIME.
Rape.
Restitution to victim, 18-6106.
Restitution.
Rape, 18-6106.
VIDEO TAPES.
18-7608.
VIDEO VOYEURISM, 18-6609.
VIGILANTISM.
right-to-know.
Penalties for vigilantism or other
misuse of information obtained
under provisions, 18-8413.
right-to-know.
Penalties for vigilantism or other
misuse of information obtained
under provisions, 18-8326.
VITRIOL.
18-906.
18-908.
VOLUNTARY INTOXICATION.
VOTE INFLUENCING, 18-2319.
VULNERABLE ADULTS.
Abandoning, 18-1505A.
Abuse, exploitation or neglect,
18-1505.
W
WAGERING.
18-3809.
WAGERING Cont'd
18-3810.
See GAMBLING.
WAIVER.
Motion pictures.
Fair bidding act.
provision, 18-7707.
WAREHOUSES.
Burglary, 18-1401.
WASTE.
Correctional officers or detention
officers.
Propelling bodily fluid or waste at,
18-3318.
Unauthorized tampering with
measuring devices, 18-4309.
18-4302.
Railroads.
Human body waste.
18-6015.
18-4302.
WATERCRAFT.
WATER QUALITY.
Definitions.
WATERS OF THE STATE.
Animals.
Dead animals.
Pollution of water used for
creeks, etc., 18-5803.
Irrigation.
18-4301 to 18-4310.
RIGHTS.
Highways.
Obstructing of highways by deviating
water of streams, 18-3907.
Misdemeanors.
18-4302.
845 INDEX-TITLE 18
WATERS OF THE STATE Cont'd
Nuisances.
Obstructions in use of navigable
lakes, rivers, streams, etc.
Poison.
Waste.
18-4302.
WATER SUPPLY AND
WATERWORKS.
Fines.
structures.
Penalties, 18-7019.
Penalties.
Pipelines.
18-7022.
Poison.
Poisoning springs, wells or
WEAPONS.
Actions.
Firearms.
18-3307.
Aeronautics.
18-7503.
18-906.
18-908.
Aircraft.
Bringing weapons abroad, 18-7503.
Concealed weapons.
Carrying under influence of
alcohol, 18-3302B.
Aliens.
Concealed weapons.
Licenses to carry.
Illegal aliens ineligible,
18-3302.
Deadly weapons.
18-3301.
WEAPONS Cont'd
18-4015.
Bombs and destructive devices,
18-3318 to 18-3321.
Campers.
inhabited camper, 18-3317.
Chemical, 18-3324.
Common carriers.
Concealed weapons.
detention facility or jail, etc.,
18-3302C.
or drugs, 18-3302B.
Concealed weapons.
Carrying under influence of drugs,
18-3302B.
Licenses to carry.
Courts.
Concealed weapons.
Carrying in courthouse prohibited,
18-3302C.
detention facility or jail, etc.,
18-3302C.
Minors.
Possession of weapons,
18-3302E, 18-3302F.
Possessing concealed weapon on
Deadly weapons.
18-4015.
Concealment prohibited, 18-3302B
to 18-3302C.
Licenses to carry concealed
weapon, 18-3302.
18-3302D.
18-3301.
Dwelling houses or occupied
buildings.
18-3317.
Education.
Concealed weapons.
INDEX-TITLE 18 846
WEAPONS Cont'd
Education Cont'd
Express companies.
Firearms.
18-3310.
Fees.
Concealed weapons.
Felonies.
Dwelling houses, occupied buildings,
vehicles or mobile homes.
18-3317.
Possessing dangerous weapon,
18-2511.
18-3316.
Fines.
Firearms.
18-3304.
another, 18-3305.
18-3312.
Minors.
Sale to minors.
18-3302D.
Firearms.
Ammunition.
Discharge of arms aimed at another,
18-3305.
Dwelling houses, occupied buildings,
vehicles or mobile homes.
Unlawful discharge at, 18-3317.
state, 18-3314.
18-3315.
Injuring another by discharge,
18-3306, 18-3312.
WEAPONS Cont'd
Firearms Cont'd
Liability.
Civil liability for injury, 18-3307.
Minors.
Possession of certain weapons by
minors prohibited, 18-3302F.
Selling firearms to minors,
18-3308.
Possession.
Minors.
Possession of certain weapons
prohibited, 18-3302F.
18-3316.
Purchases.
School property, possessing firearm
on, 18-3302D.
Selling firearms to minors, 18-3308.
States.
18-3315.
18-3316.
Concealed weapons.
Licenses to carry.
Gun control.
state, 18-3314.
purchasing in Idaho, 18-3315.
Intent.
Deadly weapons.
18-3301.
Jails.
Concealed weapons.
Carrying in jails prohibited,
18-3302C.
Concealed weapons.
Carrying in juvenile detention
facilities prohibited,
18-3302C.
847 INDEX-TITLE 18
WEAPONS Cont'd
Liability.
Concealed weapons.
Licenses to carry.
Immunity of sheriff who issues,
18-3302.
Firearms.
18-3307.
Licenses.
Concealed weapons.
Mentally ill.
Concealed weapons.
Licenses to carry.
Military affairs.
Concealed weapons.
Licenses to carry.
Exemptions from provisions,
18-3302.
Minors.
Concealed weapons.
Licenses to carry.
Firearms.
Selling firearms, ammunition and
explosives to minors, 18-3308.
18-3302F.
Sale to minors.
Misdemeanors.
Concealed weapons.
facility or jail, 18-3302C.
or drugs, 18-3302B.
Licenses to carry.
Carrying in violation of
Deadly weapons.
Exhibition or use of deadly
weapon, 18-3303.
18-3301.
Firearms.
18-3304.
another, 18-3305.
18-3312.
WEAPONS Cont'd
Misdemeanors Cont'd
Firearms Cont'd
18-3310.
Minors.
Possession of weapons by minors,
18-3302E, 18-3302F.
Sale to minors, 18-3302A.
Mobile homes.
occupied mobile home, 18-3317.
Motor vehicles.
occupied motor vehicle, 18-3317.
Murder.
Use of weapon on child under 12
years of age, 18-4003.
Negligence.
Firearms.
18-3312.
Peace officers.
Concealed weapons.
Licenses to carry.
Exemptions from requirement,
18-3302.

Penalties.
Firearms.
Railroads.
Firearms.
18-3310.
Robbery.
18-6503.
See ROBBERY.
Sales.
Minors.
Selling explosives, ammunition or
firearms to minors, 18-3308.
Schools.
Concealed weapons.
INDEX-TITLE 18 848
WEAPONS Cont'd
school property.
Right to search students or minors,
18-3302D.
Sentencing.
Firearms.
another, 18-3305.
handling and discharge of
firearms, 18-3306, 18-3312.
Robbery.
Punishment for robbery, 18-6503.
Sheriffs.
Concealed weapons.
Licenses to carry.
Issuance generally, 18-3302.
States.
Firearms.
18-3315.
Threats.
Deadly weapons.
Travel trailers.
occupied travel trailer, 18-3317.
United States.
state, 18-3314.
Firearms.
Purchase of firearms in Idaho by
residents of contiguous state,
18-3315.
Universities and colleges.
Concealed weapons.
Wrongful death.
Firearms.
18-3307.
WEIGHTS AND MEASURES.
Fines.
Scales.
18-7206.
Fraud.
18-7206.
WEIGHTS AND MEASURES
Cont'd
Mines and mining.
Scales.
18-7206.
Misdemeanors.
Scales.
18-7206.
Scales.
18-7206.
WELLS.
Poison.
WHISTLES.
Railroads.
Neglecting to sound, 18-6002.
WHITE CANE LAW.
Blind persons only may use white
or red and white canes,
18-5810.
WHITE SLAVE TRAFFIC.
See PROSTITUTION.
WILD FLOWERS.
Highways.
Protection of wild flowers.
Establishment and amendment of
list of wild flowers and shrubs,
18-3913.
Removal or transport of wild flowers
or shrubs along highways,
18-3911.
WILLS.
Forgery.
Defined, 18-3601.
WIRETAPPING.
to 18-6725.
See COMMUNICATIONS
SECURITY.
WITNESSES.
Bribery.
Giving or offering bribes to
witnesses, 18-2605.
18-2606.
Competency.
Convicts.
Capacity as witnesses, 18-312.
849
INDEX-TITLE 18
WITNESSES Cont'd
Contempt.
Refusal to be sworn, 18-1801.
False swearing, 18-5401 to 18-5414.
See PERJURY.
Felonies.
Impeding, 18-2604.
Influencing, 18-2604.
Juvenile proceedings.
Misdemeanors.
Legislature.
18-2606.
Oaths.
Perjury, 18-5401 to 18-5414.
See PERJURY.
Obscenity.
Perjury, 18-5401 to 18-5414.
See PERJURY.
Preventing attendance, 18-2604.
Capacity of convicts as witnesses,
18-312.
WITNESSES Cont'd
Rape.
Previous sexual conduct of
prosecuting witness, 18-6105.
Refusal to be sworn as witness.
WOMEN.
Denial of right to work.
When denial on basis of sex
permissible, 18-7303.
WRITINGS.
18-3206.
Evidence.
18-2603.
18-3206.
Offering falsified writings as
evidence, 18-2601.
WRONGFUL DEATH.
Weapons.
Firearms.
18-3307.
WRONGFUL DIVERSION OF
WATER, 18-4304.

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MAX M. SHEILS, JR.

Sunday Rest [Repealed.]

(1) This title is called the Criminal Code.

18-100, as added by 1972, ch. 381, 1, p. 1102.]

The following words have in this code

Whenever, by any of the

The omission to specify or affirm

8078;I.C.A., 17-105, was repealed by S.L.

The several sections of this

Crimes are divided into:

(1) Except in cases where

Every offense declared to be

(1) Juveniles committing offenses which lie outside the scope

18-115 was not erroneous merely because

18-114 to inform the jury of the required

18-115 and 18-207. Finally, those "pro-

18-4006 is not subject to the restrictive

Intent or intention is manifested

Idaho , 80 P.3d 1103 (Ct.

18-114. State v. Robinson, 71 Idaho 290,

18-114, was not erroneous merely because

18-114 and 18-207. Finally, those "pro-

18-116, as added by 1972, ch. 336, 1, p. 844; am. 1997, ch.

Issue for jury.

Issue for Jury.

1 in the same words as the section prior to

18-4012 is not inconsistent with involun-

The following persons are liable to punishment under the

19-301 requiring that the crime must occur

The parties to crimes are classi-

17-204, was repealed by S.L. 1971, ch. 143,

(1) Mental condition shall not be

18-114 and 18-115. Finally, those "pro-

No person who as a result of mental disease or defect lacks capacity

P.3d , 2004 Ida. LEXIS 62 (Apr. 22, 2004).

(1) When the defendant's fitness to proceed

Transfer of defendant to district court.

Idaho , 80 R3d 1083 (2003).

20-549) had not

Imprisonment for nonpay-

Capacity to convey property.

All offenses recognized by the common law as

Robbery and Assault.

19-2513 that the aggre-

Effect on civil rights and offices.

which do not appear to conflict

Effect on civil rights. [Repealed.]

The provisions of the last two (2)

Every wilful omission to perform

When an act or omission is declared by a statute to be a public offense and

In any case enumerated in the previous section, the

17-1902, was repealed by S.L. 1971, ch.

17-1903, was repealed by S.L. 1971, ch.

18-410. Responsibility of persons for criminal conduct