86 P. 17 | Wyo. | 1906
Lead Opinion
The plaintiff in error, defendant below, was charged, tried and found guilty of the crime of murder in the first degree and sentenced to suffer the extreme penalty of the law.
From the record it appears that George Gerber, the decedent, was and had been for some time prior to the homicide engaged in keeping a store on Front street in the City of
There were three rooms to the store — the front room, where the miscellaneous stock of goods were kept, the middle one, which was used as a bed room by deceased, and the rear room, which was used as a storage room.
About noon of January 20, 1905, the store not having been opened, people in the vicinity became suspicious that something was wrong and called an officer, who with others forced an entrance by the rear door, the front door being locked, and thence to the middle or bed room. Here they found the covers of the bed on the floor and the mattress torn open. Passing from this room to the front room, they found the dead body of George Gerber lying in the alley-waj' behind the counter, and the feet doubled under. The body lay in a large pool of blood, and blood was spattered about and on the partition wall. There was one mark, apparently made by a heavy instrument, over the right eye, two bruises on the back of the head and several scratches on the heck; and also a knife sticking in the throat almost directly in front and to one side of the trachea. About three or four feet from the body were found two bars of iron which were quite bloody. The papers of the deceased were scattered about, and the cigar box in which he was known to have kept his money was on the floor in front of the
On the afternoon of the 18th of January the defendant, then being at Hanna, asked one of the witnesses to go east with him, and the next day, that being the day on which the homicide was committed, again requested this witness to go, saying that they would “have some easy money in the morning.” This witness saw defendant leaving on the train for the east between twelve and one o’clock of that day. The same evening the defendant, together with the witness Dicey, were seen, recognized and talked with in a Chinese restaurant two blocks from the deceased’s place of business, by the city marshal of Daramie, and they then said they were not going to stop, but were going out, and that they left that night, reaching Cheyenne in the early morning. The witness Dicey or Burney was also seen and recognized in deceased’s store on the same evening, i. e., the evening of the 19th. Dicey or Burney testified as a witness on behalf of the State, that, after getting their supper at the Chinese restaurant, they went down the track to a point opposite the store of deceased, and prior to reaching that point the defendant and another man who was with him picked up two bars of iron, and that he, Dicey, went into the store and saw deceased was there, but there were customers there also, and he so reported to the defendant and the third man, whom he claims accompanied them in the box car, and who- with defendant got into the same box car the first station east of Rawlins. That after he returned from the store Dicey says they waited until the deceased, being alone, started to lock up the store for the night. Then he says his associates in crime went into the front door and he saw them grapple with deceased, saw and heard the blows struck. Then there was silence and in a few minutes his associates emerged from the store with a hat full of money, which was divided between them, and they took the first train east.
2. The court, over the objection of the defendant, instructed the jury that it was a question for them to determine from the evidence as to whether or not any witness who testified in the case was an accomplice. Prior to giving this instruction the court properly charged the jury as to what in law constituted an accomplice.
The question as to whether or not one is or is not an accomplice is one of fact and goes to the credibility of the witness and to the weight of his testimony. Plis attitude toward the case can only be shown by the evidence; and, though he may or may not be an accomplice, it is error in
3. Over the objection of the defendant the court instructed the jury that the uncorroborated testimony of an accomplice was sufficient upon which to base a verdict of guilt if they were satisfied beyond all reasonable doubt of its truth. This instruction must be considered in connection with the evidence and also that the corpus delicti of the crime charged consists of, first, criminal homicide, and, second, the. defendant’s agency in the commission of the same. The former was clearly shown in this case independent of any evidence of the witness Dicey, conceding him to have been an accomplice. The criminal agency of the defendant as testified to by Dicey was corroborated by the criminating statements made by the defendant himself when confronted by Dicey for the purposes of identification in the Albany County sheriff’s office. It thus appears that the State did not rely upon the uncorroborated evidence of an accomplice for a conviction. The instruction assumed that there was no corroborating evidence, when there was such evidence of á damaging nature, which the State was entitled to have go to the jury for their consideration, and
The instruction is further complained of in that it does not state to the jury what constitutes corroboration. It
4. By the fifteenth and sixteenth instructions the court instructed the jury over the objection of the defendant that in any conversation proven by the State what the defendant said against himself the law presumed to be true, because against himself, but what he said for himself they were not bound to believe and they might treat the latter statements as true or false, just as they believed them to be, when considered with the other evidence in the case. The seventeenth instruction upon the same subject, also.objected to, is a little milder in language, for it tells the jury that they may believe that which charges the prisoner and reject that which is in his favor if they see sufficient ground in the evidence for so doing. The first two instructions are clearly erroneous as being upon the weight of the evidence, and the last instruction in connection with the former does not change, but accentuates rather than softens their effect. They are taken from State v. West, 69 Mo., 401, where the opinion expressly states that they are open to criticism. They were given and reluctantly approved in State v. Curtis, 70 Mo., 594, and later an instruction that if the jury believed that any statements of
It is seriously urged that, in view of the evidence, this court should assume that the correct result has been reached and decline to disturb the verdict and judgment. In support of this contention the Attorney General calls our attention to Miller v. State, 3 Wyo., 657. In that case there was practically a judicial confession. The defendant took the stand, at the close of the State’s case, and testified not only to taking the life of the deceased, but to all the attending circumstances and the motive therefor. Every element constituting the crime charged was substantiated by his evidence, thus in effect constituting a complete waiver of defects, if any, in the State’s proof; and, further, it was impossible for his testimony to be true and he be innocent. The applicability of the rule there laid down to this case in which the defendant did not testify before the jury is apparent, and further comment is unnecessary.
Concurrence Opinion
(concurring).
We are all agreed that the District Court erred in giving instructions 15 and 16; but differ in our opinion as to the effect of such error upon .the rights of the defendant, that is, whether or not it was error “affecting materially his substantial rights.” By. those instructions the jurors were told, in substance, that if they found from the evidence that the defendant had made any statements in relation to the commission of the homicide, that what he said against himself the law presumes to be true; but what he said for himself or in his own behalf they were not “bound” or “obliged” to believe; thus clearly and forcibly giving them to understand that they were bound and obliged to accept as true anything he said against himself. In other words, they were told, in effect, that if they found that defendant had said that he “was there” or “was in on the play,” they were to' take that as an established fact, whether they believed he was stating the truth or a falsehood. So far as this evidence was concerned, the defendant’s presence at the place of and his participation in the commission of the crime were made by these instructions to depend, not upon the truth or falsity of his statements, but solely upon whether or not he had made them. This evidence went to the very essence of the crime; and, aside from the evidence that the defendant was seen in a restaurant in Laramie about 7 o’clock on the evening before the homicide, it was the only evidence corroborating the testimony of the witness Burney as to defendant’s presence at the time and place of the homicide. The right to a trial by jury includes the right of the accused to have the weight of the evidence and the truth or falsity of any testimony
As to what has been considered by some of the courts to be or not to be prejudicial error, I cite, but without commenting upon, the following cases: Perry v. State, 9 Ala., 83; Kirby et al. v. People, 123 Ill., 436; Cox v. People, 109 Ill., 457; Reynolds v. City of Keokuk, 72 Ia., 371; McCormick H. M. Co. v. Jacobson, 73 Ia., 546; Hausman v. Hansling, 78 Cal., 283; Cahill v. Murphy, 94 Cal., 29; Thacher v. Jones, 31 Me., 528; Lane v. Crombie, 29 Mass. (12 Pick.), 176; DuBois v. Perkins, 21 Ore., 189; State v. Security Bk., 2 S. Dak., 538; State v. Patton, 35 N. C., 421; Atwood v. Welton, 57 Conn., 514; Livingston v. M. E. R. Co., 138 N. Y., 76; Graves v. Camp
For these reasons, in addition to those stated in the opinion of Mr. Justice Scott, I concur in that opinion and in reversing the judgment of the District Court.
Dissenting Opinion
(dissenting).
I regret that I am unable to give my assent to the conclusion reached by a majority of the court in this case. My dissent is based solely upon the proposition that instructions numbered 15 and 16, relative to the legal presumption as to statements made by the defendant against himself, were not prejudicial. I agree that the instructions, in the respect mentioned, were erroneous, and that under different circumstances they might have been highly prejudicial; but I can perceive no reasonable ground for holding, upon the record in the case at bar, that the defendant was in any degree prejudiced thereby, or that he was, in effect, denied as to any material fact in the case the right to a jury trial by reason of the giving of such instructions.
The only statement of the defendant which could be’ affected by the instructions referred to was that he was there, or “was in on the play,” which was made, if at all, when he was suddenly and unexpectedly confronted in the sheriff’s office by the alleged accomplice, Burney, and with the latter’s accusation that the defendant was the person who had killed the “old man.” It was left to the jury to determine whether the defendant’s statement so made had reference to the homicide charged in this case, or whether he made, the statement at all or not, since those questions were not taken from the jury by the instructions complained ■of or any other instruction given in the cause.
Assuming that the jury may have found the statement to have been made, and that it had reference to the homi
Taking the statement as made, and as admitting the defendant’s presence at the time and place of the homicide, ór his connection with it to the extent mentioned in the statement, as it is related by'one or more of the witnesses, the fact so stated was not contradicted by any testimony, nor is it improbable, nor inconsistent with any other circumstance brought out in the evidence. Burney testified that the defendant was not only present when the homicide was committed, but that he actively participated in its commission, and the other facts are consistent with that testimony, though their tendency for the purpose of corroboration is perhaps slight. I cannot conceive, therefore', of any reasonable ground upon which the jury could have been persuaded to disbelieve the-undisputed statement aforesaid of the defendant; and I am not convinced that this appellate court should assume that the jury would or might have found the defendant’s statement to be untrue, in disregard of the other uncontradicted evidence, and in the absence of any contradiction or attempted contradiction of the truth of the statement itself, merely because a jury has the legal, though not the moral, right to disregard all
In Bressler v. The People, 117 Ill., 422, Mr. Justice Schofield, delivering the opinion of the court, said: “It has often been said by this court, and its correctness is obvious, although it might never have been said, that whether, in a given case, there should be a reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied, as upon the abstract accuracy of the language of the instruction; and so, if it is apparent that the' language of the instruction, though inaccurate, yet, when applied to the evidence before the jury, it could not have misled the jury to believe that their duty was different from what it actually was, the inaccuracy can afford no reason for reversal.”
In the case of Dent v. State, 65 S. W., 677, the appellant was charged and had been convicted with being an accessary to the crime of murder; and the Texas Court of Criminal Appeals declined to reverse for error in instructing the jury that certain record evidence was conclusive proof of the conviction and guilt of the principal instead of prima facie proof. The court said in the opinion: “But in view of the fact that appellant introduced no evidence, we are then confronted with the proposition as to whether the error of the court was calculated to injure the rights of
The charge in the Missouri case of State v. Hudspeth, referred to in the opinion of the court in this case, was not the same as in the case at bar. There the charge complained of was that if the jury believe any statements of the defendant have been proven by the State, and not denied by defendant, they are taken as true. The distinction I think is apparent. That instruction made it incumbent upon the defendant to personally deny the statements attributed to him; and other proof tending to show their falsity would not be sufficient; and it would seem that the defendant would be required under that instruction to personally deny making the statements, or the fact that he made them could not be disputed, or disbelieved, however improbable or inconsistent with the other evidence, the fact might be. That the Missouri court did not regard the instruction considered in the Hudspeth case as upon the same footing with the instructions in the case now before us is apparent from the absence in the opinion of any reference to the several previous cases in the same court refusing to reverse for the giving of the identical instructions here complained of. I shall briefly refer to a few of them.
In State v. Van Sant, 80 Mo., 67, though the case was reversed on other grounds, an instruction like that in .the case at bar was held to be unobjectionable. In State v.
“Conceding that there was no evidence upon which to base the instruction, we are not inclined to think the judgment should be reversed on that ground. Certainly this could not be done unless the error was prejudicial to defendant, and while the presumption is that an error made against a defendant when on trial for crime is prejudicial, this presumption may be overcome by the facts and circumstances in evidence if sufficient, and we can but conclude from the facts disclosed by the record that the error was not prejudicial. In fact, we are unable to see in what way defendant was prejudiced, and we are of the opinion that he was not; hence the error was not prejudicial.”
Rehearing
This case was decided June 26, 1906, and plaintiff in error has filed a petition for rehearing. There is but one point presented by the petition, and that point was fully presented and argued at the hearing, and was considered and determined in the opinion handed down. The brief filed in support of the petition is but a reargument and presents nothing which was not considered. A rehearing is denied. Rehearing denied.
