*1 ALCALA, Appellant below), (Defendant Jess Appellee Wyoming,
The STATE below). (Plaintiff
No. 3873. Wyoming.
Supreme Court 29, 1971.
June Aug. 2,
Rehearing Denied *2 Stanfield, of & E. Smith Stan- John
field, Laramie, appellant. The block and had Gen., A. a cement block. Barrett, Atty. Richard E. James lake, Gen., part but a been in the central Reed, Attys. Asst. Stacy, Frederic C. caused the force current or some appellee.
Cheyenne, for dragging, to be moved body, block McINTYRE, J„ and PARK- C. Before it became of the lake where corner *3 GRAY, McEWAN, ER, and JJ. exposed discovered. partially and was proof recognize of defendant’s We the delivered McINTYRE Chief Justice operative crime as the connection with the opinion of the court. conviction, is agent, although for essential appealed to this court has Alcala Wharton, part corpus Jess not delicti. manslaughter a conviction Evidence, ed.) (12 Criminal 17§ wife, death of his connection with the However, Criminal in 23 as stated C.J.S. Alcala. Emma 916(4), p. 633: Law § concedes a for the Counsel defendant “ * ** and circumstances facts the ordinarily person accused of crime cannot proved corpus delicti from which the a He also concedes expect perfect trial. commis- may with the connect accused do many assignments of of his error most offense, the same evi- sion the and says, major how- error. He involve one also prove tends to dence which thing ever, if not find one even we do other, that the may to so tend error, we to constitute reversible sufficient guilt of of the crime and the existence of all should that an accumulation consider inseparable together accused stand up to a adds departures from fair standard evi- on foundation of circumstantial one in this prejudice sufficient for reversal ” * * * dence. case. facts some of the think this case We of the record convinces us Our review inseparable they are and circumstances that, whole, fair on had a together. will therefore be discussed ample trial and was circumstantial there and his There was that Alcala evidence kill- evidence for a unlawful conviction of troubles having wife had been domestic assignments ing. of error Although the night she argument and a considerable multitudinous, them are we need take his disappeared. morning before On point why out one one and we consider disappearance, a wife’s defendant visited them insufficient reversal. for Cortez, lady, neighbor testified Ofelia who stated: Alcala Corpus Ac- Delicti Connection cused with the Crime Now, going I am to show her. “Well Ofelia, you surprised if know don’t be begin contention I catch jail, when I am in because when properly state failed to establish the every up going to her I am break for delicti a homicide conviction. I body. her show her. bone in I will opportunity This will afford an for brief ago, long this a time would have done facts and will deal with what review the I got a of investment. but I have lot appellant’s we understand be one of ma cowboy friends.” will her and her show jor contentions. testimony rope that the which There was Undisputed facts in the Mrs. case reveal body of the deceased connected disappeared from her home in Lara- Alcala color, composi- block similar in cement thirty-six days her and about later mie tion, two construction diameter Sodergreen, body was Lake discovered ropes possession. found the defendant’s twenty approximately miles southwest relatively ropes These were described as tarp body wrapped Laramie. on type. ropes found unusual rope con- rope around. Another tied not unusual of the deceased were wrapped body of deceased to
nected were, however, police, to be he shown “tried” it out in They his back type. yard. posses- rope in defendant’s
similar to sion. Appellant rely seeks State v. Os mus, Wyo. that Alcala owned
There was where hauling proof was held used insufficient to garbage trailer show that a formerly tarp newborn had infant had not trailer trash. The died natural There, it, disappeared however, time tarp some causes. but the over mother was Al- Mrs. unmarried and pregnancy when her during the summer of had been family Thus, The defendant known her was last seen alive. cala friends. trips known to make defendant-mother had
owned a boat reason con ceal the child, birth of Sodergreen Lake. and under such *4 proof circumstances that the body had been days two after Mrs. Alcala’s Although disposed prove of did not that its death to oth- disappearance the defendant stated thing was the being concealed. Proof was situation, police notified of the ers he had held insufficient in Osmus because crimi days disappearance it be- was ten after her nal conduct be cannot attributed non- Also, reported after days fore he two it. feasant acts of a during mother the travail disappearance, riding in auto- when childbirth, though even the child should daughter, mobile Alcala stated he principle die. The has application no here. car, thought he saw his which also wife’s 634, In Bennett v. P.2d 377 missing. proved had The to be been car said, we corpus establish the delicti said, police where he but testified could he prosecution killing for the aof new- point seen it from he where born child these elements must concur: supposedly in- photograph saw it. A was (1) alive; That the and infant born troduced evidence to substantiate this (2) by death criminal was caused theory. agency of the accused. With A part substantial of the circumstantial homicide cases do which not involve against case the defendant nu- consists of infant, indi- death of a newborn court merous untrue statements which he made Lindsay, Wyo. State 317 cated 77 to investigating concerning officers his ac- corpus de- proof P.2d of the tions disap- around the time his wife’s proof licti consists of of death the fact pearance. In several police instances the agency the criminal of another. had learned neighbors facts other quite generally accepted It is indeed witnesses which made defendant’s first corpus ordinary criminal delicti explanations suspect. The result was homicide case two ele- consists of these changes story. in the defendant’s Death; (1) ments: criminal (2) the agency as a In state another cause.1 particularly damag- considers ing to evi- Alcala Bennett case we said questioned the fact when circumstantial shovel, about the cor- tests, may dence both apparently for soil he be used pus claimed he could delicti and the ac- Aft- the connection of not find his shovel. reported it was Lindsay
erwards he cused with a he had crime. found La- it. may ter proved be proof said delicti and defendant admitted evidence; he purchased any legal had best prof made erred shovel night inspection proof finding thereof before at a is the second-hand He store. body.
also then dead that, admitted taking before People 914; Fischer, Cullen, State v. Or. See 37 Cal.2d Corpus 6; 418, 419; People, Colo., Delicti Romero P.2d P.2d 173; Murder, Doyle, and VII 48 Va.L.Rev. P.2d 201 Kan. p. Wigmore, Evidence, 853; Section State v. Hamil ton, N.C.App. 1940). (3rd Ed. 160 S.E.2d Mayberry State, Okl.Cr., In that case case, us the cause of death. the Su- Alcala particular came In this no preme held reason- hearing, petition Court of California on a preliminary after his drawn than able could be cor- inference alternatively writs habeas seeking caused, accident, that death but denied pus, prohibition and certiorari. We It agency. a criminal “The petition stated: and stated: agency causing criminal death be probable prima facie shows “The file proved circumstantial evidence and the been that an offense has cause to believe be drawn reasonable inferences to there- has com- and that defendant committed from.” mitted it. necessity for the State is no “There and Seizure Search negate possible circumstances all conflicting Officers had and un- taken con- might explain accused’s excuse or true statements from the defendant con- present only obligated suf- duct but is Then, cerning disappearance. his wife’s in- support a reasonable ficient facts to body after viewing the of the deceased guilt. ference of accused’s home, its wrappings they at a funeral de- “It ha- purpose is not the writs of termined should arrested. Alcala corpus, prohibition, or beas certiorari in the was discov- evening, after interrupt orderly of crim- administration *5 ered, went, when without an arrest officers acting inal competent a court laws warrant, warrant to find or search and ar- jurisdiction.” within its rest the defendant. at adduced defendant’s Although appellate reject courts often
trial, circumstantial, suffi- although was a that his contentions of consti- de- cient to establish the delicti and violated, rights tutional been it does as fendant’s connection with the crime so not mean proce- shortcut and substandard to for the jury. make a case As stated prosecuting dures of- investigating and 678, State, Wyo., Murdock 351 v. P.2d Many ficials are recommended. times entirely even circum- where the evidence questions appeal be avoided if on would stantial, reasonably if it tends to more care these was exercised officials. guilt accused, a verdict there- based presumption on carries the cor- same particular case, hardly In this it can rectness as verdicts not probable should doubted there was to cause wholly be disturbed unless felony. unwarranted. a believe defendant had committed Indeed, legality of his arrest Sakai, Dr. body who examined the being brings us challenged. This then to a Alcala, opinion Mrs. was of the consideration of whether evidence obtained probable cause of death asphyxia. at the time of his arrest should have been by asphyxia necessarily While death is not excluded. caused by agency, criminal there where attempt
was a rather elaborate to conceal ar When two officers found and body by wrapping tying it and a ce- Alcala, standing rested he was outside of lake, ment depositing block to it and it in a home, driveway his and to the rear. case, as there was sufficient evi- made, When one of the of arrest was dence to warrant a conclusion that death ficers called the other officer’s attention agency. was caused criminal yellow a nylon rope a homemade hook Miller, People The facts in lying ground 71 Cal.2d which on the about were 449, 459, Cal.Rptr. According 78 455 P.2d three feet the defendant. 387, were similar to testimony, those in the case we to the rope uncom with, color, are dealing in that there type compo an at- mon rope but alike in tempt and, sition, body conceal because of construction and diameter decomposition, pathologist rope was unable which had been used to connect opinion reach a definite medical to cement the deceased a block. objects particularly consider it well settled that dence damaging. Appar- plain ently an officer falling into the view of it was all offered in evidence. right a is are sub through pieces rope. has to be where Exhibits 28 are
who he ject may seizure and None special signifi- be introduced of them seem to have City Casper, piece yellow nylon rope evidence. Belondon v. cance—like the Wyo., ground. Harris v. United found on the As we view States, record, 88 S.Ct. through only 390 U.S. Exhibits 28 were McMillan, 1067; cumulative in effect.3 206 Kan. L.Ed.2d State v.
3,476 P.2d 616.2 event, dif- important there is one California, Appellant relies on Chimel v. ference between Chimel case. and Alcala’s 2041-2043, 395 U.S. S.Ct. search the Chimel case inwas extent authority L.Ed.2d because limits defendant’s home. No is cited incident to a warrantless search which is show that to a limitations with Chimel, nothing apply lawful arrest. There is search incident to a lawful arrest however, which on with suggests open limitation the same force to a defendant’s plain coming the rule that evidence into boat. view of the officer can be used taken courts, Appellate including ours, have evidence, makes a when the officer long recognized person’s home is entitled right lawful arrest and is where has he sanctity greater protection, more Indeed, imply Chimel be. seems to when deciding it comes a rea what is plain evidence in time and view at search, sonable than one’s boat or automo place of a lawful arrest be seized. Wyo., bile. Gilkison
Thus, rope lying 757-758; were hook which Goddard 343, 344-345; ground, Blood, away, three when Kan. about feet arrested, properly Alcala was taken United States D.C.Pa., Coupe, 139 F. the officers and were evi- One 1951 Cadillac admissible *6 475, 477; Supp. City and Euclid dence. South Palladino, Mun., 560, Ohio 193 N.E.2d made, When the arrest was defend 564. ant’s boat was on a trailer ten feet about true, away. pointed It both open, It is as we out with the cover folded Goddard, in the and back of is al- officers Gilkison and more latitude boat. The searching looked They the boat. climbed into lowed in a vehicle or movable also it possession object quickly took out and of arti it can be moved of a number because making rope locality cles for piece jurisdiction, evidence. or (Ex One it, Except impractical hibit was in 26) a tool for to obtain a search warrant. box.
there is no indication the were That is not there is no other reason items seized plain not in view when the officers looked a distinction.
into the boat. The Amendment of the federal Fourth
Although appellant “un- complains guarantees only against that eleven constitution Hence, seized, “including items from the boat searches and reasonable” seizures. 28,” home, through 25
Exhibits he does not at- a search in one’s as incident arrest, unreasonable, tempt might be any show wherein evi- lawful while Camper, objectionable 2. For other cases see State v. and evidence is harmless Mo., People thereby sought 353 S.W.2d the fact be error where Manzi, 738, fully clearly 38 Misc.2d is and established N.Y.S.2d shown 741; People Cal.App.2d Willard, competent. other evidence which is Under Cal.Rptr. support is and note a host cases cited Allred, principle appli- 16 Utah 2d The is 537. the statement. through Exhibits 25 cable insofar as Appeal It is stated in 5A Error trial are concerned. C.J.S. & in Alcala’s p. improper § the admission of open made in an boat a similar search Therefore, reject appellant’s we must might on a movable trailer mounted rights contention that under the Alcala’s necessarily adjudged unreasonable. Fourth Amendment were violated immediately following his arrest. search subsequent to the Chimel In a decision Maroney, decision, in U. Chambers Hearsay 1979-1981, 26 L.Ed.2d S. 90 S.Ct. Appellant contends he was denied due of an automo- held the search process hearsay of law because warrant, as incident to bile without a question This was admitted at his trial. arrest, un- unreasonable or lawful first raised in connection with the testimo- danger In that case there was no lawful. performed ny pathologist who being moved out of the lo- of the vehicle autopsy on Mrs. Alcala. arresting cality or because the jurisdiction custody. into The officers had taken it The testified he sent tissue doctor said, is to be court if an effective search samples laboratory “to check FBI time, the search must made at either any poison barbitu whether there was immediately a warrant be made without anything cause rates or which can be the seized and held with- the car itself must be about of death.” He asked at the trial out a warrant. the de result the examination had not objected fense because witness attorney suggests an officer Alcala’s and his performed himself the examination the boat here guard could have stood over hearsay. The knowledge was based on involved, while the other officer went stating, judge objection trial overruled the However, in obtained a search warrant. respect to exception are an doctors Chambers, said, for constitutional court rule; med hearsay experts use the purposes, it no between saw difference ical services of others.5 seizing holding hand the car one issue presenting probable before cause report which portion FBI magistrate hand Sakai, and on the other pathologist, related Dr. referred carrying search without e., out immediate only factual mat- findings, to routine i. Moreover,
a warrant. court concluded: “Given expressed opinion. ters. no search, probable either course cause to tests the FBI made the technician who Amend- reasonable under the Fourth prepared report subsequently testified. ment.” extensively He was cross-examined Thus, defendant *7 counsel for the defense. authority In the absence of confrontation, right was denied of something comparable open search of to an having the by prejudiced he was not unreasonable, boat on a trailer is when in opinion based express an pathologist arrest, such search is incident a lawful to part tests of the FBI. pretend scope we will not of to extend the ruling complained of has Another holding by applying in limi- Chimel its permitting, over the to do with the court tations to the in boat this case. readily disposed by mem- opinion quoted boat could be of
4. In Chambers the court family other bers of the defendant’s or v. from and followed Carroll United persons. 543, States, 132, 69 L.Ed. 267 U.S. Then, in 280. S.Ct. footnote may express expert stated, nothing 5. Oases which hold an Chambers said last it opinion California, testified to an based on facts 395 U.S. term Chimel v. expert upon 685, pur- 2034, tests made or another 23 L.Ed.2d 89 S.Ct. experts ported modify include: Christiansen affect the rationale to or 332, 112 Hollings, Cal.App.2d P.2d rationale of of Carroll. Of course the People, applicable 168 Colo. Pine v. Carroll Alcala’s boat be- to Coltharp, 870-871; proximity and State cause it was close arrest; 433 P.2d 199 Kan. it movable because trailer; of the and the contents on a defendant, testimony by Mrs. of objection expressly malice. was held in Rom- ero concerning People, Colo., conversation Cortez before during the afternoon marital homicide any Alcala cases
Mrs. fact cir- Cortez disappearance. Mrs. relating Mrs. Alcala’s cumstance ill-feeling, ill-treat- ment, assaults, jealously, prior personal testified: vi- “ threats, olence, * * * similar conduct or I mad con- told her how attitude the husband toward the wife that he was about her and cerned Jess are relevant show motive and malice her, ‘This is and she said had threatened such crimes. time; this for first he has done not the ” years.’ Kump, Wyo. case was like the case. Alcala in 22A general A rule stated C.J.S. There the court dealt with con- what was 1103-1104, to the pp. Law Criminal § hearsay sidered testimony concerning state- victim, effect declarations of ments made decedent her life- the truth proof not offered as which are time. The defendant was charged therein, contained but as evidence degree second murder and convicted made, exhibiting they thus fact that held, manslaughter. The court in view mind, to be ad- held condition have been missible. As observed in fact defendant was convicted Evi- Wigmore, only, manslaughter the admission of hear- per- of a dence, p. statements (3 ed.), hostility, evidence threats and all long mental been son’s own condition have malice, showing was not error. reversible hearsay subject exception of an rule.6 death certificate for Al- Mrs. concerning the cala was received in despite
The witness who testified objection by defendant exhibit declaration Mrs. Alcala is same wit- contained a number of ness had on conclusions which who testified that defendant jury. were for the day every hearsay There was no same threatened break objection, appellant but According bone in the now contends the body. victim’s witness, exhibit hearsay constituted obvious evid she told Mrs. Alcala about ence.7 threat, only and it proper for the court to receive evidence which tended show 35-48, W.S.1957, provides that Section the mental state or condition mind of properly filed death certificates “shall Mrs. Alcala when she learned of the prima evidence of therein facie the facts threat. Also, stated.” the coroner who made death certificate testified trial at Alcala’s have said
We statement attributed subject and was to cross-examination feeling Mrs. Alcala denotes ill and hostili- Thus, ty. counsel for the fail defense. damaging anything see right was not denied his to be confronted except to the defendant tend that it would by the witness and to cross-examine. malice, motive and which would be essential for a conviction of second de- State, Okl.Cr., Capes *8 gree murder. 845, the introduction of a death certificate error, prejudicial was not to be even as held
Inasmuch the state trying was Alcala- though person did not charge on who executed it murder, a degree second it testify autho- apparently entitled no statute was to offer of motive 459, 606, State, authority 6. v. 87 Tex.Cr.R. 223 S.W. Case for this includes: rule State, Wyo., 519, 468. Hutchins v. People, Bustamonte 157 Colo. v. Moore, Wyo., 7. 356 P.2d In State 601; People 401 P.2d v. Mat argument appeal 144, it was held an on lock, 51 Cal.2d may hearsay question called for that a 605; Lowrey A.L.R.2d objection 87 Okl. not when such not he heard interposed Sapp at the trial. Cr. case, Wy- determining
rized its admission. In Alcala’s in sonable discretion whether authorizing a ac- oming unnecessarily gruesome statute photographs does are quoted as evi- ceptance of the death certificate a inflammatory. We also dence, tes- maker of the certificate previous following: and the case the “ Hill, Wyo., 451 P.2d * * tified. See Claim * graphic some of these While 794, 796. upon, depictions pleasant to not look are and, fact, gruesome, are somewhat we hearsay as is con Finally, as far they proper and not cannot were cerned, appellant claims it error necessary placed jury in before the be testify concerning permit a detective prop- they get a order that be enabled investigation involved of his results understanding of perspective er and an individuals. We questioning various given the testimonies that were any record for fail find basis * * *”8 State connection with them. such a claim. Alexander, Wyo. argument this Specifically, under denied 363 U.S. certiorari point Mrs. had been involved is that Alcala 1630,4 L.Ed.2d S.Ct. 1733. David an individual identified with trial, appears it to Alcala’s With says there (although Clark counsel eight photographs had colored state uncertainty name), the last some as to which, body despite defendant’s decedent’s drinking an individual had been fact approved the trial objection, were alleged- night she was named “David” trial, at the judge, before for admission killed, ly not called that this individual was Only at trial. of these were offered five testimony improper as a witness and that trial, excluded and three of them were concerning from detective was elicited The state subject to further connection. talking Egman.” his “David any of made to introduce no further effort that he had contact- detective had testified Thus, only and 19 Exhibits 18 three. possi- Egman ed with the idea of the Mr. jury. went to obtaining bility information about July activities of Mrs. Alcala on no of discretion admit- We find abuse investigation re- Asked, your question. “And —did photographs in ting the two anything helpful veal significance necessary proper and appear it was would regard,” that this objection was made jury in order to the for them be shown hearsay. objection asked for get proper perspective and un- answered, “No, given overruled and witness derstanding of testimonies that agree did not.” do this constitut- body We in which the relative condition event, hearsay evidence; ed but in course, possible Of it was found. been, matter does not discussion since warrant If it had itself. show authority presented defendant has neither more have been result doubtless would cogent argument point. nor this gruesome. Photographs
Colored Instructions Appellant contends it was error to appeal he was Appellant claims on admit Exhibits 18 and which were col because process and fair trial (cid:127)denied due body; Emma photographs ored Alcala’s giv- which were of erroneous instructions rights under and that this violated Alcala’s instruc- en; a refusal of and because process due clauses the federal consider- tions defendant. requested state constitutions. claim, spe- ing confine ourselves we appel- listed in of error repeated Dickey assignments cific *9 points. We will 377-378, pre- lant’s statement of what had been search independent held, prosecute an pretend has viously trial a rea- a court pronouncements. Dickey opinion in made similar 8. tlie Oases are cited which pretending trial upon Without to advise courts error for some instructions all the of rely.9 being respect with to use the instruction of possibly appellant could considered, simply repeat that we are we assignment in connection first unpersuaded its is erroneous. still use the court erred is that with the instructions 5,No. as follows: giving Instruction in assignment of error The second that, respect to the instructions is every person ac- rule which clothes “The entirety, instruc considered in their the presumption with the cused with crime emphasized erroneously unfairly tions and innocence, imposes upon the State and and in principles stated of law to an extent be- establishing guilt, their the burden prosecution light highly a favorable to the doubt, is not intended yond a reasonable extremely defense. prejudicial and to the guilty of in fact any who is aid one provi- humane escape, but is a crime to course, pass upon assign- we Of cannot law, intended, human so far as sion of in ments of error which are stated such dan- can, against the agencies guard general language broad is. and as one un- any person being gers innocent will our review of the instructions We may well but the justly punished; they as a were fair and whole convinces us guilt of the that to establish remember impartial, prejudice favor or to ei- without is doubt all reasonable beyond ther side in the case. guilt estab- shall be that such not meant Except authority for the citation of certainty. Absolute to an absolute lished general propositions such as need the any fact certainty in establishment impartial instructions to be and not in required rarely and never attainable strongly theory present one side and justice.” courts side, appellant minimize that of approved This same instruction was authority support cites no his contention State, Kennedy Wyo., P.2d us partiality prosecution. pre- However, 372, 376, P.2d 127. reh. den. 474 authority sume counsel found no case or was served appellant’s at the time brief support his contention that instructions being considered rehearing unfairly emphasized on a principles whole being holding was Kennedy case. Our favorable to the state.10 light in a light of a decision reexamined Colo., Colorado, People, appellant does ridicule Counsel for Martinez complain bitterly against Instruction P.2d 26. pertaining No. 17 to circumstantial evi rehearing was denied Subsequently, the dence. The instruction reads: again on Kennedy, and we ruled State, Wyo., same instruction in Carrillo v. proper “Circumstantial evidence is stated: P.2d where we competent the commission of an say, though fully con- facts again offense. That is to sur-
“Even we have argu- reasoning rounding the of a crime sidered all commission views, proved divergent and if these facts are such underlying ments holding that our a nature and so with each unpersuaded we remain connected oth- er and Kennedy in view of defendant and with was incorrect it, authority alleged crime be ex- supporting can not abundance of thatfthey plained theory here consequence upon reasonable ex- contention defendant, cepting use of guilt made with that of * * * is re- phrase they under discussion then warrant are sufficient jected.” guilty. verdict of Spriggs Copenhaver, Wyo., presumption
9. See 10. This under warranted authority Wyo., P.2d 203. of Drummer Valerio v. *10 appeals “Circumstantial evidence explanation upon any ble of other rea- experience theory common sense and common guilt.” sonable than that of of mankind. These teach us that This our instruction would not be choice known existence some facts necessari- for an instruction evi- on circumstantial ly implies that other facts connected say it preju- dence. But that is not to you therewith exist. If awake after a any respect dicial in to the defendant. A night’s sleep shining, and find the sun jury average intelligence can understand you morning know the sun arose simple instruction on circumstantial evi- you though you did it not see rise. If necessary dence when one is deemed or de- find the whole earth drenched with wa- Examples sirable. of circumstantial evi- ter, fallen, you know that rain has dence, ones used in this instruc- like the though you did not see or hear it rain. tion, necessary. hardly How- would seem you if footprints Or find on the snow ever, speculate it would as be difficult you person know that animal some or side, either, if or hurt is benefited was, has been there also which examples. possibility We can see the you though nothing see but tracks. attorney pointing of a to this in- defense you If particu- find a in a tree shattered arguing: struction and is incumbent way, you lar know that it has been visit- upon point the state to its case to the ed lightning. Sometimes circumstan- guilt of the defendant is as clear tial convincing evidence is even more rising sky. in the of the sun evidence, than direct because direct evi- say appellant Suffice has not may dence depend upon memory any persuasive us shown reason or authori- observation and truthfulness of one wit- ty holding ness, prejudiced the defendant while circumstantial evidence particular Instruction supported by testimony No. of several instruction. witnesses to facts which concur and agree upon physical can facts which assignment The third of error falsely.
not be speak mistaken or can not having to do with instructions set defendant was entitled to instructions “But to warrant a conviction on circum- theory and the ting forth his of the case stantial necessary evidence each fact evidence. proved conclusion of must be guilt beyond doubt, all reasonable agree We a defendant is indeed entitled proved facts so must be consistent with theory have the instructed on his each other and with the main fact Blakely of the case. so held in sought proved, to be and the circum- However, Wyo., 474 P.2d 129. stances, together, taken all must be of a competent there must first be conclusive producing nature and in ef- tending theory. to substantiate defendant’s certainty fect reasonable and moral implicit Blakely This is said in what we accused, person, and no other also what was said State v. Hick committed charged. the offense enbottom, Wyo. 127- mere union of a limited number of inde- pendent imper- each of an circumstances, Okl.Cr., Groom v. character, fect and inconclusive will not 291-292, it was stated: justify They must conviction. be such justify as to create and full belief ac- “Where the court has instructed trial cording to the of certain- within the law and evidence thus estab- standard rules ty. lished, they It is not duty sufficient that it is neither the court’s nor coincide probable guilt right speculative and render its to instruct theo- proved accused. The facts so ries of unsupported must be counsel either incompatible incapa- innocence evidence or the law.” *11 held, nothing more than of the means “the previously same court had
The plain English, relat- Okl.Cr., crime” which when Fennell v. charge of an un- burglary, a re- ed to a means give to
that it is not error refuse to entry. No error lawful was found. absence quested instruction in the giving support evidence substantial to Andrus, In State v. 250 La. 199 So. of the same. 867, 881-882, it set 2d was considered well Colorado, been pronouncements have In that a in a crimi tled to obtain conviction judge effect the trial made to the that corpus prove nal case state must by a de- give must an instruction tendered delicti, or the fact that a crime has been only case theory on his of the fendant However, appellate court committed. de- support the there is when judge general that the instruc observed Colo., theory. People, fendant’s Land v. jury it was in charged tions to that 124,125-126.11 prove on the state to the offense cumbent jury be charged to the satisfaction of the diligently have searched the record We yond a reasonable The conclusion doubt. no us, find the case before and we can jury a charge “This was to the was: “not theory plea a except defense delicti, prove corpus had to the State guilty” Alcala’s that “he didn’t claim is, theft had been offense of trial; testify doit.” He did not at the committed.” no on his behalf evidence was offered theory of
which would establish a different
adequate-
judge
Alcala’s case the trial
In
appear
given
defense.
instructions
jury
incumbent
ly charged the
that was
a
quite complete
to cover
adequate
prove
charged
state to
offense
on the
general
guilt.
denial of
beyond a
jury
satisfaction of the
necessarily means
reasonable doubt. This
Appellant
only casual and
makes
as a result of
state had to
death
effect
general statement in his brief to the
not
agency of another.
the criminal
rejected
court
tendered
that the
his various
necessary
“corpus
delicti.”
to use
term
proof,
instructions relative to burden of
it was
agree
judge
the trial
with
evidence,
the effect
the effect of
necessary
for the
to be burdened
not
evidence,
fact that
circumstantial
and the
the term.
with
any evi
present
defendant did not
have
adequately
dence. We find these matters
gen
has made a rather
Appellant
giv
covered
the instructions which were
trial court
assignment
saying
eral
specific
appellant
en and we assume
has no
many”
rejecting
instructions
erred
“the
complaint
assignment
correct
requested
were
which
such matters.
law,
applicable to
statements
case,
represented
facts in
be
specific complaint
There is
course, it
theory of the defense. Of
corpus
cause the court did not instruct on
give a
refuse
for the trial court
error
position
The court’s
that the
delicti.
instruction,
if it states
requested
even
jury ought not be
the term.
burdened with
case, if
applicable
principle
correct
Lawrence,
People
Cal.App.
properly
been
the matter has
covered
949, 950-951,
den. 350 U.S.
P.2d
cert.
given.
sufficiently by other instructions
S.Ct.
reh. den.
100 L.Ed.
in this
to be the situation
That seems
L.Ed.
351 U.S.
S.Ct.
indi-
pretend
discuss
will
case. We
that the
the court dealt with a contention
many” instructions
“the
vidually each of
failing
instruct the
trial court erred
the defendant
requested
behalf
jury on
element of
delicti.
was,
given. Suffice it to
we
expression
were not
comment
the court
4 some and 6. defined in leaving needs to be that reasonable doubt Before matter to do appel fundamental error not it is need to comment that structions we on so,12 said sev jurisdiction giving we have this lant’s claim that the court erred term be need not eral times These instructions Instructions 23 25.
defined,13 that a inclining the view toward stated: avoid well-advised to
trial court would be 23 “INSTRUCTION NO. doubt, as ob on reasonable but instructions Robinson, v. 235 Or. served State duty juryman, each while “It is attempts to define the ver- jury deliberating upon their merely a defini term are not error because dict, give careful consideration to necessary. tion is not may have to fellow-jurymen views his testimony in present upon the the case. concerned, appeal is Insofar as Alcala’s stub- He shut his ears and should not (1) considerations: we are left with these bornly upon position he first erroneous; stand are (2) Are the instructions takes, regardless of what be said they sufficiently prejudicial to defendant jurymen. the other It should be ob- ordered; (3) that a new trial must be ject you at a common of all of to arrive objections at the time of were the made you conclusion and to that end should point out wherein and trial sufficient together It is deliberate with calmness. erroneously preju- why the defendant was verdict, your duty upon to arrive if diced? possible. that is nothing find in either of the reason- instructed, however, are if “You
able doubt could be instructions which any having consid- one of the after Also, we prejudicial the defendant. case, ered all the evidence nothing at trial objections find in the made having his fellow- after consulted with point the trial which were sufficient jurymen, a reasonable should entertain prejudicial effects court to harmful or guilt, then the doubt of the defendant’s general of such instructions. There were guilty.” jury cannot find the defendant objections that the instructions were con- law, erroneous, trary to redundant and 25 “INSTRUCTION NO. misleading. merely says you
An
in-
objection
my duty
remind
“I believe it is
course,
contrary
has,
struction is
to law or erroneous
that this trial
as a matter
S., C.A.N.C.,
12. Williams v. U.
F.2d
271
reference to the whole
sonable doubt with
703;
Farst,
T.,
record;
appear
&
Com.
9
the effect
v.
Pa.O.
and if
should
330;
chuck,
defendant,
injury
v.
401 Pa.
Lebanon
Com.
S
to the
was not one
13;
Itterly,
the cause
164 A.2d
and Com.
the court would not
reverse
Pa.Quar.Sess.,
solely
agrees unpersuaded ruling areWe that our convictions, dict, his own result of wrong in charge to the Allen con- acquiescence in the a mere and not follows, fortiori, Elmer. therefore in order yet jurors, of his fellow clusion that we cannot condemn the two instruc- re- to a unanimous bring twelve minds case, tions in this which counsel claims *13 sult, question sub- examine you must charge. amount to an “Allen” and with with candor you mitted to opin- proper regard and deference Leading Questions consider should each other. You ions of charged appeal It is that the on decid- be at some time the case must right defendant’s to a fair trial was violat in the same ed; you are selected by leading, suggestive ed use consistent from the same source and from manner improper questions by prosecution; selected; be jury must future which that the trial affirma court failed take suppose that reason to is no and there regard; tive in there action this and that to twelve be this case will ever submitted many evidentiary' rulings were erroneous intelligent, more and women more men by the trial court. decide competent to impartial, more general find to be We this another it; more and clearer or that vague assignment appellant of error which side or produced on the one will be has not As we view the substantiated. view, it other, your in is and with record, it simply does not reflect unusual case, you can con- if duty to decide the prejudicial proce- irregularities in trial scientiously do so.” dures of the nature asserted. instruc- attorney claims two Alcala’s specifically is difficult to ascertain “Allen” an together tions amount appellant’s what in contentions are this as- Allen the so-called charge. considered We signment. authority support No cited State, Wyo., 463 in Elmer v. instruction any specific argument. Appellant, un- No. true Instruction 20-21. It is assignment, der this no affirmative makes portion of the lan- appears to contain error, showing attempted and he has not case. guage used in the Elmer which was pre- prejudice. to establish will not Instruction all of it. It does not contain independent inquiry tend to an make something of the same may have No. 23 possible own find some error in the our language. purpose but different suggested field for our search. instructions, as opinion our the two In Statements trial, definitely more are Defendant’s given in Alcala’s sin- was the defense than favorable for the to two statements reference With instruction, More- gle given Elmer. obtained the defend which had been over, case, instructions in Alcala’s both Alcala’s prior discovery ant Mrs. other instructions given along with arrest, argues that body and he defendant’s Whereas, time. and at the same case intro general as a rule where the State charge the Allen Elmer case ac of an duces in evidence the confession reported disa- given jury was after the exculpatory portions by cused it is bound greement. they the evi unless are shown therein untrue, insisting that the excul dence be charge Allen portion were not patory portions of statements his trial and omitted given in the Elmer false, citing carry proven an be has been said Alcala’s trial C.J.S. 842, p. may Criminal Law 293. He also It required that reversal could be § points errors, out that Texas and Oklahoma in a case where there is a series of prosecution has been held where the no sufficiently prejudicial one of which is However, uses a statement the accused which is only alone. that could occur inculpatory exculpatory both the trial when constitutes the accumulated effect judge obligated to instruct the prejudice and the conduct of the trial is acquittal the defendant is entitled to unless impartial. other than fair and Such a situ- exculpatory portions disproved. are analysis ation is not borne out position our view defendant’s is without record in this case. As we said at the out- since, authority set, merit as shown on our review of the record here con- relies, falsity exculpatory which he that, whole, vinces us had statements be shown circumstantial ample a fair trial and there was circum- evidence; and in the instant situation his stantial evidence for a of man- conviction general denial having anything do slaughter. with the death of his wife was discounted Affirmed. presentation of such evidence. GRAY, (dissenting). Justice holdings by
We are aware of the *14 court, all-important Oklahoma, question adopted Texas in and issue in as to this case is obligation the of the defendant’s a court to con contention that instruct the statements, prove by State failed to cerning exculpatory sufficient evi- which mat corpus dence the Annotation, ter subject has been the delicti. If there of is 116 merit in However, contention, that persuaded and I am A.L.R. 1459. that rule has such is, there the acceptance lacked conviction elsewhere. cannot stand. v. Ca State saus, 152, 246, 248; 73 N.M. general As a proposition, while we have Parker, 33 162 A.2d been less than respect N.J. consistent with to Moreover, 575. counsel’s reference to in the elements that must be established in or- this subject structions on to be seems prove der delicti, to corpus the agree I in merely emphasis thrown as a matter of majority with the that the almost univer- request since no was made for an instruc sally accepted rule is to the effect that it tion subject on the required as under Rule (1) consists of (2) death and the criminal 31, W.R.Cr.P. agency of another. We adhered that rule in early State, the case of Dalzell v. 7 Sufficiency Evidence of Wyo. 53 P. 298. It must also be argument final made on behalf of beyond proved a reasonable Ben- doubt. appellant judgment acquittal is that a of State, nett v. I 635. should have been entered because the evi- agree proof that also such be made dence was insufficient to sustain a convic- direct or circumstantial evidence or tion. combination of the two and in unusual cir- out, already pointed proof We have in corpus connec- cumstances of the delicti is tion proof with our discussion about of the often interwoven and considered with that delicti, corpus connecting that the the evidence was suffi- accused with the crime. corpus Wyo.
cient establish the Markoff delicti and to 52 case, however, make a jury. case the 778. That is We see no rea- not as son more broad as the rule subject. on that There stated 23 Crimi- C.J.S. evidence, ample nal though 916(4), upon majority Law which the even circum- § nature, relies, which to me support because of the cir- stantial verdict jury. application cumstances here has no inas- much as the State’s own evidence which
Conclusion fixed probable the cause of death as as- unpersuaded We are that one short- phyxia brought separation about a in its coming here proof. constitutes reversible error. by any Evidence of death other point- threats, recognized well rule as shall be such foreclosed and that al cause was though competent upon which on the issue malice pieces of evidence ed out the or intent, probative competent val- are not of little admissible relies were State asphyxia making proof result- establishing corpus ue that the delicti. Deck Commonwealth, addition, Ky. 145, er v. agency." ed from a “criminal S. in the W.2d cases shown Homicide examination § C.J.S. p. rule almost supporting as footnotes where- dealt with cases exception without relating With to the evidence extrajudicial confessions
in there true, body, the concealment of the it is per- proof corroborate admissions to course, many cases are effect there agency. Here taining criminal a strong incriminating circumstance or admis- extrajudicial confession no along other facts in the case. See guilt sion defendant. Annotation A.L.R. 1227 and the later cases as disclosed the Later Case Serv- than the order of the limitation Other cases, however, A ice. review of those Konopisos laid proof down will disclose exceptions that with few extrajudi Wyo. P. corpus delicti was established other evi- or admissions “should not cial confessions dence and the issue reduced ultimate itself jury until other go allowed to identity crimi- accused as the on the go to evidence sufficient nal agency. Notwithstanding the rule been in question delicti has jurisdictions, we viewed such evi- state,” proof order of such troduced “suspicious dence as circumstance” discretionary with the trial court. largely Osmus, supra, case of State P.2d at however, here, relies State Where 477-478, held it did not entirely upon circumstantial *15 by agency. the death was caused criminal the “criminal it contends established which clear, convinc agency,” proof be such must fact the that defendant failed to exclude ing competent, sufficient notify days police several the of the dis- doubt. beyond a reasonable uncertainties appearance decedent, perhaps which by speculation, established It cannot be may regarded suspicious also be as a cir- or v. guess, surmise State Os suspicion, cumstance, any probative is val- of little if 484; 183, 469, mus, Wyo. P.2d 276 73 delay explained ue as the is inasmuch State, upon probabilities, even Smith by the evidence some extent State’s 1074, 1079; v. Ride Wyo. P. State upon imposed legal duty no the there was out, Wyo., 454-455. po- the report the matter to defendant lice. recognized the estab- It is also well that lishing of the delicti will po- That defendant have lied to presumed, Doyle, 201 Kan. concerning lice the incident 860-861; Criminal 441 P.2d C.J.S. a might the shovel well have had direct 626; 916(2), presumption p. Law § upon credibility bearing the defendant’s innocent, the death resulted from that had the stand. How- taken State, causes, Reyes v.
noncriminal 151 ever, the mat- probative it had value on no Neb. N.W.2d deter- ter far I can under discussion so not in- argument does mine and State’s mind, foregoing concepts I With enlighten me. form briefly upon will the evidence comment established the cor- which State asserts Reverting theory that now the State’s pus delicti. asphyxia, probable cause death Turning probative that its med- first value of its brief concedes State testimony ical criminal purported threat of violence the de did “the death,” by agency cedent made the defendant several associated with death, upon alleged the testi- consequently hours before time of I do not dwell mony except by presumption of Dr. Sakai that it the death resulted from innocent, no means excluded the admitted fact that noncriminal causes. many causes, asphyxia could result Cases dealing with death by caused as unnatural, natural and innocent or crimi- phyxia between, are few and far in but as nal, by placing and could result someone dicated above such cause of death was be decedent, pillow over the nose of case, fore us in the Osmus which I have proof;
there was no
or on the other hand
already mentioned, and in the three cases
person
rendered
unconscious
alco-
State,
Wyo.,
382;
Coca v.
Lu
hol or a combination
of barbiturates
State,
jan
Wyo.,
388;
and Bor
got
pillow
who somehow
alcohol
under
State,
rego
then an inference based infer- trary the to rules we have heretofore ob lake; placed ence that he the the prescribed. served and I this for the upon and then an inference those infer- support reason that in of its determination ences that the death resulted from criminal People Miller, it cites 71 Cal.2d agency by placing pillow the of a over the Cal.Rptr. 455 P.2d 387. Califor nose and Certainly mouth of the decedent. appears nia to be at least state that has one such wholly evidence was insufficient to departed requirement from the the agency criminal corpus “beyond and did not meet the delicti established a rea In all that sonable doubt.” that state is re to dismiss the information. State v. prima Doyle,
quired State to is for the make out Kan. 858; Azbill facie case “that the deceased met his death Nev. another," unlawful means an act People Ives, Cal.2d It may be that this case demonstrates a Small, People as stated 7 need for reexamination previous hold- Cal.Rptr. Cal.App.3d ings of this question court on the the probability establish that the a “reasonable proof necessary corpus the establish de- the criminal act another was cause of adoption licti and the concept of a broader death.” than has heretofore been taken. To so do upon however, is a prospectively,
Also this matter recital than bearing it seems majority from an entered in me injustice order results in a manifest for an original proceeding here wherein the reason strategy trial of counsel for sought defendant relief from determina- defendant in putting not the defendant peace that justice tion of the there stand presenting not evi- probable requiring predicated defendant dence upon cause his insistence charge defend the criminal that the answer and State had failed to meet its burden sig- the district court. I fail see the the corpus establishing delicti under le- 7(b), gal nificance Under principals of that. Rule W.R. to which we adhered. Cr.P., may require an ac- commissioner proof error with accusation cused to answer and defend an corpus compounded by delicti was the re- appears the district court if it “that fusal of the trial court to on cor- instruct probable there is that an cause to believe pus disagree majority’s delicti. I with the offense committed that the has been view unnecessary give that it such committed To me defendant has it.” there stated, previously instruction. As I is a substantial difference between the proof corpus State’s delicti was the produce State’s burden evidence suffi- all-important question and issue cient support “proba- determination proceeding. gave The trial court as its burden cast ble cause to believe” denying request- reason for the instruction upon prove beyond the trial to State only ed that it would confuse only a reasonable doubt death the jury to undertake to instruct on the identity criminal agency of the ac- but “technicalities associated with delic- event, agent. cused as the criminal passed ti.” have not heretofore While we
the order that the matter was also recites upon precise question, prevailing para- “in depth” considered contrary. rule is to the summarily denying mount reason for Homicide, 322, pp. 23-24 Warren on § petition within a impending trial says: (Perm.Ed.), very days. few *17 jury that charge “The court should the course, of Additionally, function the of proof corpus essential delicti is to of the assessing sufficiency the trial court in the defendant, and that the of conviction probative and at the value evidence beyond any reason- proved this must be entirely trial is different the function doubt, is the rule able and that this preliminary of the commissioner at the posi- and whether the evidence is direct stage hearing. At the trial the State must ” ** * merely tive or circumstantial. corpus meet proving its burden of de- the 355, p. Homicide also 41 See § beyond licti C.J.S. a reasonable doubt and if the Monroe, Territory early of In the case proof evidence in offered thereof is not Ariz. 6 P. said: it was by affirmatively sufficient to establish “ * * * folly argue to convincing clear and death It would be could be agency resulted from the criminal of an- for murder that a conviction delicti n corpus other it is trial is not duty the court’s to so hold the sustained when respect to I it With Instruction would proven. question which was was It paragraph if that had the second full pass upon, agree and duty jury the to the appear given not it would not duty acquit, thereof been their to proven, not it was the court so to have been harmful to the defendant. duty it the to and was However, point to them, re- the State fails out the and refusal of the charge the it manifest and take cannot so. charge source thereof I do quest to such make clearly It seems erroneous to me. error.” , course, possible, majority says as be Pumpkin Okl.Cr. argu- it could benefit an accused in 825, flatly have says, “The court should jury to defendant’s criticism ment but corpus meaning de- clearly defined well have might just that “The Court as here, Where, the trial court and as licti.” you example: a fifth ‘If find added fully of the defend court aware tarpaulin, wrapped in a woman’s proceed throughout contentions ant’s floating in weighted a cinder block and corpus proof ings and the State’s lake, you know was murdered her she the least questionable, was indeed delicti you see the blow though did not husband if case was have been done that should and hor- pain struck or hear her scream go jury give to a careful and to ” just ror’ would seem to be as reasonable the cor specific respect to instruction with at probable. and more There is least a general pus instructions did delicti. The not prejudi- as it was doubt to whether or purport cover this critical issue. In not and doubt should resolved cial be say quite I it might this connection seems defendant. favor majority me for the ac inconsistent to Also, proposition that to the term with cept the use connection circumstantial “corpus in an instruction would evidence the trial delicti” court Instruction No.
only jury stating and then condone the after confuse that such evidence should separate every instruc giving hypothesis of at least “exclude con- three reasonable doubt, innocence,” meaning tions on the reasonable sistent went on to unequivocally unnecessary which we denounced that it was have “that should dis- sipate conjectures 13 of the speculative four cases cited footnote mere doubts, opinion tending metaphysical for as to confuse the majority demonstrative certainty reason that the term carries proof is not essential to cir- previous followed, our its own definition. Under cumstances.” From what pronouncement prejudicial error for might of that language thrust give court on volition the trial its own been harmful but under circumstances all prejudi- those instructions. of the case it seems me it was cially erroneous for court not to have Perhaps opinion need I not extend this given request at defendant’s the instruction further but I do concur in the intima- Osmus, 483-484, set forth 276 P.2d at use tion that Sakai was free to Dr. peculiar- “highly said report opinion a basis for his FBI with- ly appropriate in a case such as that at evidence, Lujan being out its keeping was in bar.” instruction supra, 423 P.2d at and which was not particularly pertinent defendant’s prepared his supervision under and direc- defense that the had State failed I Neither do concur the discussion tion. delicti. concerning admissibility of a statement assertedly made I decedent Mrs. Cortez With to Instructions 23 *18 day disappearance. agree, Mrs. if it the errors Alcala’s would were not for before above, giving It of contrary concerning is what was discussed that these said Kump, Wyo. prejudicial such instructions was not so as statements two Although it and in necessitate reversal. is true fact double Lew, hearsay, People of 69 that these instructions eliminated some Cal.2d Instruction, Cal.Rptr. Allen language hereof, us Elmer v. of six months from which was before the date given and which was as Supreme until the United has States Court instruction, hardly supplemental unfavorably regard can acted appellant’s questioned purpose petition certiorari, and tenor for writ of in the event get before the Nos. 23 and was to such action before six months from hereof, Allen ingredients of the Instruction date upon appellant’s conditioned mounting appearance authorities condemn $15,000 bond in the amount of erroneous. being being kept coercive and seems to through- full force and effect gave caveat we in Elmer stay me that out such of execution. instructions, against future use of such GRAY, J., original opin- dissented original supplemental, was
whether grant petition ion and would for re- apparently clear but it has not been made hearing. it clear so understood. I would now make beyond question that henceforth instruc- though
tions such as Nos. and even subject
containing language some
criticism, given should not be and will
be condoned. foregoing
For the reasons I hold would the trial denying court erred in de- COMPANY, Inc., Appellant judgment acquittal for fendant’s motion CHAPMAN (Plaintiff below), judgment. reverse the INC., KBBS, Maxwell, and Jeannette ON PETITION FOR REHEARING Appellees below). (Defendants BY THE COURT. No. 3912. Petition for rehearing filed having been Supreme Wyoming. Court
by appellant, petition stay for of exe- Aug. 6, 1971. cution having also been filed appellant, request that, with a in the a rehear- event
ing denied, is then stay and in that event granted execution be for sufficient time Davis, Richard Jr., Burgess, M. Ken- appellant for to petition the United States Davis, nedy Sheridan, & appellant. for Supreme Court, in pauperis, grant forma Hill, William Kirven and Robert A. certiorari; a writ petitions having such J. Buffalo, appellees. for duly considered; been having been determined petition that the rehearing for McINTYRE, Before J.,C. and PARK- is without merit in points that the raised ER, McEWAN, GRAY, JJ. carefully fully considered court in disposition made; heretofore PER CURIAM. but appellant’s request stay of exe-
cution should be granted: judgment below affirmed It is ordered that petition for rehear- equally divided court.
ing be and the is hereby same denied. It ordered, however, further PARKER, ap- J., opinions believes that
pellant, Alcala, hereby be and he is should be expressing divergent filed Jess granted stay period of execution for a justices. views