Jenkins v. State

134 P. 260 | Wyo. | 1913

Lead Opinion

Scott, Chief Justice.

The plaintiff in error was charged, tried and found guilty of murder in the first degree. Motion for a new trial was made and overruled, judgment pronounced against him upon the verdict and he brings error.

1. The coroner testified as a witness on behalf of the state that on the evening of April 14, 1912, he was called to defendant’s dwelling house by the defendant, that being the scene of the homicide, the defendant saying that his wife was dead. The following question was propounded to him on cross-examination, viz: “Did you ask Mr. Jenkins (the defendant) that night immediately after you reached the scene where he had been that afternoon ? Plaintiff objects to that. Objection sustained. Defendant excepts.” There was no further offer of proof and nothing to indicate the materiality of this evidence. The witness had not been interrogated as to this matter on direct examination, and the question propounded was not proper cross-examination. Defendant would not be permitted to impeach himself nor would he be permitted to introduce a self serving statement to support his defense of the act charged. That the ground of the objection was not stated could not avail defendant unless he made it clear by offer of proof or otherwise that such evidence was material, and having failed to do so there is no affirmative showing of prejudicial error in that particular.

Obj ection was made, to the court’s refusal to permit the defendant to cross-examine Dr. Beard as follows: “Then you stated on a little further (referring to a typewritten statement made by the Doctor shortly after the homicide) right after what I have read. ‘Rater, however, Roach claims to have found, I think, a towel hid some place, but I am not sure whether that was the clothing they gave me to examine or not, I think it was. There was just a few stains of blood on it, not sufficient to have made a test of, however, just little stains.’ State whether or not you made that statement to me.” The object or purpose of this cross-examination was not apparent other than to test the memory of the witness. From the record it was not for impeachment. The extent of such cross-examination was within the sound discretion of the trial court and in view of the fact that both the State and defense were agreed that deceased came to' her death by violence we can see no prejudicial error in the court’s refusal to permit- the defendant to further pursue this line of cross-examination. Other objections of like nature were interposed and sustained to' questions propounded to this witness as to what defendant said and did at the time but the conclusion reached and for the same reasons the assignments need not be further noticed.

2. Norma K. Beard testified as to how defendant looked, acted, what he said and did when he called at her home to get the doctor on the night of the homicide. The defendant inquired of her as follows: “State whether or not his manner was such that he looked as if he did not know what he -was doing? Plaintiff objects to this question. Objection sustained.- Defendant excepts.” This ruling was not prejudicial for the witness had already testified to his appearance and manner and the jury could judge as to his degree of mentality or distress without the aid of her opinion upon that subject.

3. Objection upon the ground that the question called for a conclusion was interposed and overruled to the question propounded by the state to the witness Stevens, viz: “Could you tell the location of the body from which they (meaning the blood stains on the- ceiling) came?” To this question the witness answered: “Why, from the position of the wound upon the body it would be necessary for the body to be fairly close to the ceiling to get that blood up on the ceiling.” The first question was a preliminary question and could have been answered by “yes” or “no” and there was no motion to strike the answer as not responsive to the question. The defendant is not in position to predicate error upon this assignment. On the same ground as the foregoing question objection was made to the following question and answer of the same witness, viz: “I will ask you whether or not the blood stains upon the ceiling struck the ceiling in such a position that they must have gone perpendicularly from the body that produced the spattered blood.” Answer: “The blood stains were circular, showing that they would strike up instead of being dashed sideways.” The physical condition was thus described and from such description the conclusion to the mind of a juror, if they believed the witness at all, would be irresistibly the same as that expressed by the witness. (State v. Passeo, 19 Wyo. 344). We see no prejudicial error in the court’s ruling.

4. The sheriff of Laramie county was sworn and testified as a witness on behalf of the state that he made an examination of the premises where the homicide was committed as follows:

“Q. Did you make an'examination of the cellar ? •

A. I did.

O. What examination did you make of the cellar?

A. I went down the steps and hunted every place I could for blood stains or for foot prints.

Q. Were there any blood stains in the cellar?

A. No, sir.

Q. How is this cellar constructed?

A. It does not — . It is not a cellar all the way under the house, but the ground is dug down a few feet from the bottom of the floor in part of the cellar, but not enough so one could walk in it, just a small space where you can walk around.

Q. Did you examine all the openings to this cellar?

A. Yes, sir.

Q. What openings are there to the cellar?

A. There is some windows between the ground and the floor.

Q. Did you examine these windows?

A. I did.

Q. And what did you find the condition'of the windows to be ?

A. They were covered with dirt and leaves.

Q. What was the condition on the inside of the cellar of the window?

A. The inside was covered with dirt.

Q. Had this dirt — where was this dirt?

A. It was upon the window sill.

Q. Had this dirt upon the window sill been disturbed in any manner?

A. No, sir, it had not.

Q. Was it possible for any person to have entered the cellar through either of these windows on that day?

A. No, sir.

Q. Had any person entered the cellar through these windows ?

A. They had not.

Q. What further examination—

Defendant moves to strike that out because that is a conclusion of the witness. Motion denied. Defendant excepts.

Q. what further examination did you make of this cellar ?

A. I looked behind the steps leading down from the pantry into the basement and all around the cellar between the ground and .the floor where it was not deep enough for one to walk around.

Q. How did you make that examination?

A. I turned on the electric light and used the flash light.

Q. Did you make a minute examination of all the ground underneath the building?

A. I did.

Q. Where it was cellar and where it wasn’t?

A. Yes, sir.”

The defendant assigns as error the refusal of the court to sustain his motion to strike. The motion is indefinite and uncertain and aside from that the witness testified as to the physical conditions as he had found them and his answer to the question as to whether any one had entered the cellar through these windows was predicated upon the physical conditions as he had found them and had theretofore detailed to the jury. While the ruling was error we do not think it prejudicial but at most harmless error. The sheriff also testified to a conversation with the defendant the night after the homicide, which was supposed to have been committed during the afternoon of that day. The state was permitted to ask the witness the following question over defendant’s objection that it was leading, viz: “Q. At that time did he make a statement as to the time when he left the house on that afternoon?” and to which-the witness answered: “He did.” The question was preliminary and leading up to the material fact, viz: the time when he left the house in the afternoon. We see no prejudicial error in the ruling of the court in this respect.

5. Thomas E. Holland was sworn and testified as a witness on behalf of the state that at about 5 :3o a. m. of the morning following the homicide he, in company with the sheriff and Chief of Police, went to the Jenkins’ home and made an examination of the house and its contents at that time, and that they first examined the stove. .Upon inquiry and dqring his examination in’chief he said: “I noticed the specks of blood about the room and over the stove, and the charred specks where the greatest heat of the stove had been, and looked in the stove. The highest point iu the stove was two buttons. Q. Where was these buttons ? A. ■ It was a round oak stove with a sort of a hump grate in it with a hole about two inches in diameter. Right on the highest point in that stove was two buttons.' There was one full button and one about three' quarters, sort of a crescent shape.

Q. What were these buttons resting on?

A. They were on the highest point in the stove on the cinders, the ashes.

Q. What kind of ashes were they?

A. They resembled burnt cloth.

Q. Did you examine to see whether they were burnt cloth or what they were?

A. Not at that time.

Q. Did you examine them later on to determine whether they were cloth or not?

A. Yes, sir.

Q. Had anything been put in the stove after these ashes had been burned there?

A. I would say that cloth was the last thing burnt in the stove.

Q. Would it have been possible for these ashes to have been, in the shape they were in this stove if anything had been put in there after the article which was burned which made these ashes was burned?

Defendant objects to that as a leading question. Objection overruled. Defendant excepts.

A. No, sir. No, sir, they couldn’t have been anything else burnt in the stove after the clothing.

Q. Now you say you didn’t disturb this at this time?

A. No, sir.

Q. Then what did you do?

A. Went from room to room, and from cellar to garret and examined everything very carefully, looking for evidence of the crime to see if we could find any of the clothing that had been worn by the one committing the deed.

Q. Did you make any further examination of the articles in the dining room ?

A. Why, there was a brown coat hung on the chair near the kitchen door. I seen blood specks on that.

Q. Did you examine 'any other articles in this dining room ?

A. Well, there was a pair of broken glasses lying there on the floor, I believe, or possibly had been picked up and laid on the table. ' ■

Q. Did you examine any other articles in the room?

A. Examined the writing desk, and two boxes of stationery lay on the top of the desk as it had opened down. I examined that to see if the desk was opened or closed at the time the crime was committed, and I found blood spattered on the under side of the desk, showing it had been closed at the time the deed was committed.

.Q. Did you make any examination of the Indian clubs in this room ?'

A. Yes.

Q. What was the result of that examination?

A. One of the Indian clubs was spattered with blood, and the other had very little indications of blood upon it. Mr. Stevens took the Indian club and held it up to the light in this manner (witness indicating), between him and the light and picked off a hair about two inches in length.

Q. What was done with that hair?

A. That was given to Mr. Schoels and he put it in his watch case the last time I ever seen it.

Q. Where was the blood that was upon the Indian club that you found the hair on?

A. As I remember it there was two or three small spots at the base of the club, and there was one-spot like a clot of blood up near the end of the handle, right at the ball part.

Q. Did you examine that club carefully yourself?

A. Yes, sir.

Q. Were you there at any time that morning when 'Jenkins was brought to the house?

A. Yes, sir, I was there.

Q. Who brought him over there ?

A. Sheriff Roach.

Q. Where did he take him?

A. He took him through the kitchen into the bath room and searched through there for clothing.

Q. What clothing ?

A. Why, for Mr. Jenkins’ underwear.

Q. What induced you to hunt for Jenkins’ underwear?

A. I suspected him of the crime.

Q. What hunt did you make for the underwear; that is, did Jenkins make?

A. He put in about fifteen minutes in tlie bed room and closet going through a couple of laundry sacks that were there and turning over the various articles that had been scattered on the floor.

Q. Did he find the underclothing?

A. He did not:

Q. What conversation took place with respect to the underclothing ?

A. Why, Sheriff Roach asked him where the clothing was he took off the night before, or the day before rather, and he said.-. He looked around and he finally got over in the corner where there is another little closet in the southwest corner of the room there, and picked up an olive drab government shirt and brown trousers and said: Here is the clothing that I took off.

Q. What other conversation took place respecting the clothing ?

A. Sheriff Roach asked him where his underclothing was, or asked him if he didn’t wear underclothing, something to that effect. Then he made a further search and couldn’t find them, and he said, I guess she must have burnt them up, they were uncomfortable and I was complaining of them.

Q. What other conversation took place about them ?

A. About that time Sheriff Roach asked him if he knew that they were burned up, or knew what became of them, something to that effect. He said she must have done something with them or they would be there somewhere.

Q. What else did he say about the clothing?

A. I don’t recall anything else just now.

Q. Would you know those pants if you should see them ?

A. Yes, sir.

O. I will ask you if these are the trousers?

A. Yes, sir, brown pants covered with specks.

.Q. You examined them that night did you to determine whether they are the ones or not?

A. Yes, sir, we examined them.”

The question as to the possibility of the ashes to have been in the shape they were in if anything had been put in the stove after the article was'burned which made the ashes called for answer of yes or no and was not for that reason suggestive of the answer desired. Mrs. Walker, a witness for the defendant, having testified that she was an inmate of the Jenkins’ home from Nov. 3 to Dec. 20, 1911, and to the generally pleasant relations between the Jenkins, was inquired of on direct examination, as follows: “Q. Do you know what Mrs. Jenkins and Mr. Jenkins did with any old clothes while you-were there? A. Yes, sir. Q. State what? By Mr. Rigdon, That question is objected to as incompetent and immaterial. Objection sustained. Defendant excepts.” It is contended by defendant in his brief that this ruling was error because “the plaintiff advanced the theory that Mrs. Jenkins would not have burned any old clothes with the buttons on, but would have taken all buttons off before burning the clothes. The defendant offered to prove by this witness just how Mrs. Jenkins did dispose of old clothes and this should have been permitted.” There was no offer to prove just how Mrs. Jenkins did dispose of old clothes other than that implied if at all in the question itself. Nothing was intimated or disclosed as to her habit with reference to the buttons which were a part of the garments, nor does the record disclose that the state advanced any such theory, ’ although such theory might have been used in argument to the jury. The ruling'was not error upon, defendant’s contention and no other is presented in the argument.

6. Wilfred O’Leary was called as a witness and testified in rebuttal for the state. He was permitted, over objection, to refresh his memory from the extension of a stenographic report of what the defendant said at a certain time and place, when the witness was present and heard all that the defendant said. He said that he saw and read the extension of the notes the day following, when the whole matter was fresh in his memory, and that the notes were the same and correctly and fully set forth what the defendant had said. The court upon this showing permitted the witness to refresh his memory and refer to the notes in giving his testimony over the following objection, viz: “By Mr. Ross. I want to object to that upon the ground that this witness can not refresh his memory from notes made by somebody else. He will have to rely upon what he knows about it himself, and not rely upon Mr. Wilcox’s testimony, and Mr. Wilcox’s testimony is not sworn to, and nobody can testify to Mr. Wilcox’s notes except himself.” It will be observed that the witness was testifying from his own recollection upon refreshing his memory from these notes. It was not nor did the State present it as Mr. Wilcox’s testimony, but it was the witness’ evidence as to what the defendant said at the time and place. It is said at §758, Wigmore on Ev., that “Any writing may be used to stimulate and revive a recollection.” The correctness of the notes was guaranteed by the witness (§747 id.) The trial court kept clearly within the rule in admitting the evidence and did not err in doing so. The further objection, if well taken, that this evidence was not proper rebuttal was a matter largely in the discretion of the court. The defendant neither requested to be permitted to reopen the case for the purpose of resisting this evidence nor does he show prejudicial error in admission of this testimony on rebuttal. The admissions tended to discredit the defendant’s evidence given in chief.

7. G. A. Garrard was sworn and testified as a witness for the State as to the source and amount of property owned by the deceased. The defendant objected to this evidence on the ground that it was immaterial. In so far as the source of deceased’s property is concerned such evidence may be deemed to have been immaterial and being so it was not prejudicial. Evidence of the amount of her property at the time defendant married her had a strong bearing upon and tended to show in connection with other evidence a motive upon his part to commit the homicide and was for that reason material.

8. There are sixty-four errors' assigned to the rulings of the court in the admission, rejection and refusal'to strike out evidence over the objection or motion of the defendant. To' discuss all of these questions would make this opinion unnecessarily long. We have, however, considered all of the questions and have selected as fair samples the foregoing assignments for discussion, and finding no substantial error in the other assignments deem it unnecessary to discuss them at length, except the assignment of error on the court’s refusal to admit a base ball bat found sometime after arid several blocks away from the scene of the homicide. It was the theory of the State that deceased came to her death by being struck on the right side of the head jrist above the ear with an Indian club, theretofore kept and found in the room, which crushed the skull and from which blow death occurred within a few seconds. The Indian club was produced in evidence. The defense offered evidence of a tough looking character being seen in the neighborhood the morning of the day of the homicide, and also offered in evidence the ball bat. Over objection the court rejected the ball bat as evidence and error is assigned on this ruling. There was no evidence connecting or tending to connect this club with the homicide. The evidence offered was merely speculative. No showing being made as to how it ever got to the place where it was found or its corinection with the homicide, it was so lacking in relevancy as to entitle it to no consideration, and the court properly refused its admission.

9. Error is assigned on the overruling of the motion for a new trial on the alleged disqualification for cause of two of the jurors. The juror Van Zandt being examined on his voir dire said that he had formed at the time of the homicide from street talk and newspaper articles a “kind of opinion” as to the guilt or innocence of the accused and SUelr articles and street talk had prejudiced him to a certain extent at the time; that he had no prejudice in the case at the time of his examination, but had an opinion to a certain extent and that it would be necessary to have the law and the evidence to change it. Upon the motion for a new trial affidavits were filed setting forth- a time and ■ place when and where it was claimed he had said prior to the trial that he would not have to sit as a juror on the Jenkins case for the reason that he had expressed an opinion. He was inquired of by the defendant as follows; viz: “If you should be selected as a juror now you would enter upon the discharge of your duties as a juror with this opinion in your mind and it would be necessary'to have the law and the evidence to influence that opinion, would it not, change it?” Ans. “Yes, sir.” Juror Norcross upon his voir dire testified that he had formed and expressed an opinion as to the guilt or innocence of the accused which would take evidence to remove. The defendant passed these jurors for cause and accepted them without using all of his peremptory challenges. We do not think the disclosure made by these jurors was in any wise misleading to the defendant. There was sufficient predicate for a challenge for cause or the exercise of a peremptory challenge. The rule is well settled that where the juror fairly states facts which would disqualify him for cause and a party fails to challenge the juror on that ground that party will be deemed to have taken chances and waived his right to thereafter question the qualifications of such juror. The party in so far as that quesion is concerned has had his day in court, and can not thereafter predicate error upon the evidence of a full and fair disclosure of the juror’s attitude in the case, he having had the opportunity and having failed to challenge for cause at the proper time.

10. Alleged misconduct on the part of the prosecuting attorney is assigned as error in that exception was taken to the prosecuting attorney reading to the jury the following from the case of Commonwealth v. Webster, viz: “Perhaps strong circumstantial evidence in cases of crimes like this, committed for the most part in secret, is the most satisfactory of any form whence to draw the conclusion of guilt, for men may be seduced to perjury by many base motives to which the secret nature of the offense may afford a temptation, but it can scarcely happen that many circumstances forming together the links of a transaction should all unfortunately concur to fix the presumption of guilt on an individual and yet such a conclusion be erroneous.” We see no misconduct in the county and prosecuting attorney making use of such language from the opinion of the court 'in that case. Whether he read it from the book or not, it was argumentative and had reference to the reliability, and weight of circumstantial evidence. There, as here, a conviction was sought on such evidence and the language used cannot be considered as an' infringement upon the prerogative of the court to instruct or the juror’s duty to take the law from the court as embodied in the instructions.

11. The court was authorized under the provisions of Section 6238, Comp. Stat. 19T0, to permit the jury to view the place where the homicide occurred. That section is as follows: “Whenever, in the* opinion of the court, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under charge of the sheriff, to the place which shall be shown to them by some disinterested person appointed by the court; while the jury are thus absent, no person other than the sheriff, having them in charge arid •the person appointed to show them the place, shall speak to them on any subject connected with the trial.” From the record it appears that the sheriff, over defendant’s objection, was placed in charge of the jury for the purpose of conducting them to the premises. The objection was in the following language, viz: “By Mr. Ross. I object to any one making any statement or suggestions in the presence of the jury while they are viewing the premises where the killing occurred. I object to Mr. Roach especially making any statement or pointing out the premises to the jury for the reason that he is not an impartial or unprejudiced person, and for the further reason that he is not a disinterested person, and I object to any one at any time making any statement in the presence of the jury in regard to this case, or unless it is also in the presence of the court. Objection overruled. Defendant excepts.” It'will be observed that the section above quoted clearly contemplates within the limitations therein expressed that the sheriff or the person appointed may speak to them on a subject connected with the trial in this case, to point out the premises and articles viewed. No showing was made of prejudice or bias on the part of the sheriff nor that he was an interested person in the result of the trial. The mere assertion that he was did not make him so without proof offered or received showing such fact. The following instruction to the sheriff appears in the bill of exceptions: “By the court. You may see that they see the whole premises; anything they desire to they may have the chance to do, but hold as little conversation with them as can be. D'o not answer any questions that are asked you what the condition of affairs was at that time, or how they compare now with the time you were first there. Do not answer any questions of that kind, but just see that they have an opportunity to see everything and in general hold as little conversation as you can, and permit no one else to talk to them. Do not explain to them any difference between how things are now and what they were at that time, and point out to them any articles they ask especially to see. Give them ample time to see the whole premises that they want to. (Note) (The above is only part of the instructions given by the court to the sheriff before the jury were taken out to view the premises. Attorney Ross did not ask to have them reported until they were partially given).” While there was no request to have the instructions reported in full the part omitted by the reporter in substance, at least, could have been supplied. This was not done and it does not affirmatively appear that there was substantial error committed in the instruction's given. Following the above instructions the following appears in the bill:

“By Mr. Ross. I want to ask that the stenographer be present to take down everything that is said so as to com-píete the record. Request refused. Defendant excepts.” The statute does not require the presence of a stenographer with the jury upon viewing the premises. No evidence is given there. The object of such view is to enable the jury to reach a better and clearer understanding of the evidence given in court and the situation as explained by such evidence. It is presumed that the sheriff and other person appointed by the court, both being under oath to perform their duty, will follow the instructions of the court. As against such presumption there is no showing in this record either of bias, prejudice or interest on the part of the sheriff or a violation of the court’s instructions. That no person other than the sheriff was appointed to show them the place we think was not prejudicial in the absence of a showing of misconduct on the part of the sheriff.

12. It is contended that the evidence does not support the verdict. The evidence tends' to show that defendant was a carpenter by trade, thirty-three years of age, and for some years prior and up to the time of the homicide lived and worked at his trade in Cheyenne, Wyo. That he met his wife through arrangements made by his cousin, Dr. Hess of Denver, and thereafter and on June 19, 1911, married her. The defendant testified that the Doctor wrote him that “there is an awful nice girl down here that I want you to meet and she has also got some property.” Defendant said: “I met the girl at the time. I said, I will go down and meet the girl, but I said her money will be no object to me.” The doctor wrote him time and again about the girl and in one letter the doctor said: “She was slow and stupid and not your kind.” That sometime before the marriage, during a strike'of the carpenters, defendant said that he was to be married soon and would quit work after he was married. That some time prior to his marriage he showed a picture of his intended wife (the deceased) to one of the witnesses for the state and said that he didn’t see how he could ever-learn to love her, because he didn’t like her shape or form and didn’t see how he could marry her, but his cousin seemed to want him to marry her on account of the money;, he said she wasn’t pretty and made further remarks about her form in language appearing in the record but too filthy for repetition here, and that after the marriage and two months prior to the death of deceased the defendant told the same witness that he had' things fixed up so in case of her death he would get her money. Two or three days after the marriage, the latter having occurred less than a year before the homicide, defendant and deceased went to a lawyer who drew a will for her, in which she willed all her property to the defendant, which will she executed and which was shown to be in existence after the homicide and was introduced in evidence. Defendant said prior to the preliminary examination that he did not go with his wife to the lawyer’s office to have the will drawn, but upon the trial admitted that he did go with her for that purpose. On the evening of the same day they came to Cheyenne, Wyo., where they rented a house in which they continued to live until Sunday, April 14, 1912, the day of the homicide. Defendant testified that they arose about 7 o’clock in the morning of that day and that he turned on the draft and replenished and banked the fire in the heating stove and built the fire in the kitchen stove. He didn’t think there was any fire in the heating stove after nine o’clock in the forenoon, that it was unnecessary, for when the fire was built in the morning, he banked it up, which would do until evening. That his wife burnt the underclothes and overshirt which he claims to have taken off the night before and probably the trousers of an old brown suit of clothes, which were-missing, in the heating stove between 9 and 10 o’clock that morning; that he did not know of any fire in the stove after he banked the fire as his wife was looking after the fire after that. That after breakfast he read the paper while she was doing up the work, then shaved, went down town and returned between twelve and one o’clock, had dinner at one o’clock, and after washing the dishes, he and his wife got a pillow and lay down on a cushion on the floor in the sitting room and went to sleep; about 3:3o o’clock in the afternoon • he awakened,'- left the house, and again went down into the business portion of the city to see different parties who were prospective buyers of motorcycles from a company of which he was agent. He traced his movements, giving a detailed statement of the different people he met, the time when and where, the subject of the conversation and what was said by himself and the different people he met, many of whom were not prospective purchasers; went to a picture show alone and remained a short time only and returned to the house at 9 o’clock p. m., and found the house dark; he went to the front door and opened it with his “dead latch key” and entered the house,' turned on the electric light and discovered the dead body of his wife lying on the floor in the dining rooom, where she had been sleeping before he left her; the clothes from the bureau in the bedroom scattered around and everything in disorder. Defendant immediately left the house and went to the house of Dr. Beard, who was the coroner, where he was observed to be much agitated, looked and acted strange, talked incoherently, and asked that the doctor come at once to his home that his wife was dead. The doctor took his automobile and the two returned to the house; the sheriff was notified and some of the neighbors called in. He testified that he was not home between the time of leaving the house at 3 :3o p. m. and that his wife was alive and well and that she accompanied him to and he kissed' her good bye at the side door when he left her. It was the theory of the State that the defendant murdered his wife prior to the time of his leaving the house; that is to say, prior to 3:30 in the afternoon, and that he wandered around the city under pretense of wanting to sell motorcycles for the company of which he was agent, seeking prospective buyers, but in reality for the purpose of manufacturing an alibi. He contended that his wife was murdered after 3:3o p. m., the time when he claims to have left her alive, and went down to the city. As already stated, the dead body was examined by Dr. Beard at 9 o’clock in the evening and he testified that she had been dead at least three hours, five or six hours and possibly longer. One witness testified to having seen a man come out of the side door of the house into the alley at 6:30 in the evening and that he (the witness) recognized this man as the defendant. It is impossible here to rehearse in detail the testimony. It may be said in a general way, that there was also evidence to the effect that, after the homicide, blood was found spattered around the room and on the ceiling; blood on the underwear and clothing of defendant and upon the towel in the bathroom; the defendant testified that his wife burnt the clothing between 9 and 10 o’clock in the forenoon of the day of the homicide. These clothes of the defendant were missing and could not be found and buttons were found on top of cinders in the stove, formed by burnt clothing. Aside from the buttons hereinbefore referred to there were four or five other buttons found in the stove, one of which was a steel trouser button, and lying on the top of the firm ashes defendant’s pocket knife was found, showing the effect of heat; there were blood stains on the sink in the kitchen; blood stains in the bowl in the bathroom and on the wall a rag was hanging with blood on it, where it- had dripped down; blood on the towel; the body of deceased had not been outraged; a diamond ring, four other rings, a pearl necklace, gold watch and pin on the bureau in the bedroom and a pair of opera glasses and a gold chain on the chiffonier lying in plain view in the same room; deceased’s eye glasses lying on the' floor at her side; a trunk in a closet in the bedroom about two-thirds pulled out with the lid up and some papers scattered on the floor and in the corner was an empty tin box; the cellar was examined and no indications found of any one having entered the house by way of the cellar; that the plaintiff was left handed and that the fatal blow was received on the right side of the head, and evidence that the blow must have been delivered by some one facing heir at the time, and hair and clotted blood on the Indian club found in the room. The evidence hereinbefore referred to in discussing the competency of the evidence in connection with the foregoing in our judgment supports the verdict. The question was peculiarly one for the jury whether the various circumstances detailed to them pointed so unerringly to the defendant as to remove all reasonable doubt from their minds as to his guilt.

13. The defendant requested, and the court refused to give the following instructions:

“The Court instructs the jury that the burden of proving the presence of the defendant at the time and place of the alleged murder devolves upon the State, and the State must prove beyond a reasonable doubt that he was present at the time of the alleged commission of the offense. It does not devolve upon the defendant to prove that he was not present, so that if, after a full and fair consideration of all the facts and- circumstances in evidence or that adduced by the defendant, you have a reasonable doubt as to whether the defendant was at the place of the alleged crime at the time of its commission, or was at another place, you are bound to give the defendant the benefit of such doubt and acquit him.” The instruction offered was, we think, fully covered by instructions 12, 13 and 14 and to which there was no objection. Those instructions are as follows, viz:

“Instruction No. 12. It is not the duty of the defendant to prove himself innocent, nor is it necessary that he should show who killed Jesse Root Jenkins. On the contrary, it is incumbent upon the State to prove beyond a reasonable doubt that the defendant was the person who did the killing'; and unless the State has so shown by the evidence beyond a reasonable doubt, you must acquit the defendant.

“Instruction No. 13. It is the law that every one of these facts essential to the conclusion reached must be established to the same degree of certainty as the main fact. Also it is necessary that the proof should be not only consistent with the prisoner’s guilt, but inconsistent with his innocence, for-if a single material circumstance remains unproven or if proven, is inconsistent with the theory of guilt, the crime is not proven with that certainty which the law requires and which the law demands.

“Instruction No. 14. If from a consideration of all the evidence in this case the jury entertains a reasonable doubt as to whether the killing of Jessie Root Jenkins was done by the defendant, or by some other person or persons without the knowledge of the defendant, then it is the duty of the jury to acquit the defendant.”

By these instructions the question was fairly submitted to the jury as to whether defendant was present at the time of and committed the homicide. If he was present and committed the murder, then he was not somewhere else at that time. In substance the instructions given were clearer and stated the law of the case. If the jury found from the evidence that defendant was present at his home and committed the murder, then by the same measure of proof they found that he was not somewhere else at that time. (State v. Cameron, 40 Vt. 555.) It is unnecessary where there is evidence tending to prove an alibi to submit such question to the jury separately and apart from the main question, but, on the contrary, the trend of the courts in the later decisions is to submit the whole case to the jury in the absence of a specific instruction on that subject. (State v. Ward, 61 Vt. 153, 17 Atl. 483.) H|ere the jury were told by another instruction to consider all of the evidence in the case in reaching their verdict and to give the defendant the benefit of the doubt, if any, arising upon all the evidence. The instruction offered is also faulty in that if given the jury would be told that such doubt might arise from a consideration of all the evidence or from a consideration of that adduced by defendant. We do not think this states the law, for the verdict in a case must be predicated upon a consideration of all the evidence which is submitted to the jury, and not alone upon that adduced by the defendant. There was no error in refusing to give this instruction.

14. Error is assigned upon the refusal of the court to give at the request of the defendant the following instruction to the jury, viz: “The jury are instructed that greater care should be fexercised in weighing the testimony of witnesses, detectives and other persons especially employed to hunt 'up evidence against the defendant than in the case of witnesses who are wholly disinterested.” This instruction has sometimes been given and approved in cases where the prosecution relies upon evidence furnished for pay or reward by a detective agency. In the case here no such evidence is relied on, and the record is wholly lacking in evidence-tending to show that any informers, detectives or other persons especially employed to hunt up evidence testified in the case. The court very properly refused to give such an instruction.

The jury were instructed correctly upon circumstantial evidence and as to the law of the case. The case was carefully tried and the learned judge who presided at the trial should be commended for his care in preserving the defendant’s rights both as to his rulings and the full and complete instructions which he gave to the jury which set forth with clearness and conciseness the law of the case and which need no further comment. We have considered all the errors assigned, though we have not referred to each individual assignment by itself, except as hereinbefore discussed, and find no prejudicial error in the record. There was sufficient evidence to support the verdict. We are of the opinion that the judgment should and the same will be affirmed.

And now this court appoints Friday, the 14th day of November, in the year of our Lord 1913, for the execution of the sentence pronounced by the court below.

Affirmed.

PoTTER, J., and BEARD, J., concur.

---

Rehearing

on petition eor rehearing.

Scott, Ch-íee Justice.

The plaintiff in error has filed an application for a rehearing. He urges that the question of the admissibility of the club discussed in the opinion was neither raised nor assigned as error and further that the club was admitted and received in evidence without objection. An examination of the record shows that this contention is correct. The writer speaking for himself desires to assume all responsibility for the oversight, he being under the impression from the oral argument that the club was rejected when offered in evidence. It seems, however, upon the record,- that the plaintiff in error had the full benefit of the evidence and what we said with reference thereto was dictum as not being based upon any question raised upon the record. It is apparent that the plaintiff in error was not prejudiced by what we said and we seize the opportunity to correct our opinion in this respect, which is accordingly done.

The alleged misconduct of the county and prosecuting attorney is here urged as a ground for a rehearing. The 85th assignment of error is the only one contained in the motion for a new trial touching that question, and is as follows : “That there was misconduct, on the trial of said cause, on the part of the prosecuting attorney, prejudicial to the defendant in that he read a passage taken from a law book in making his closing argument to the jury. To the reading of which passage the defendant at the time objected and excepted. Said statement so read is more fully shown by the affidavit hereto attached, marked Exhibit A.” That .exhibit is as follows:

“The State of Wyoming, County of Laramie,

Ethel A. Carpenter, being first duly sworn, according to law, upon her oath deposes and says that she was present at the trial of the case of The State of Wyoming vs. J. Warren Jenkins, and took down in shorthand the testimony .given in said trial, and also part of the first argument of Charles L- Rigdon, Esq., counsel- for the State, and the last argument of the said Charles L. Rigdon; that Charles L. Rigdon,-in his closing argument, made the following state■ment to the jury: 'I hope I may be pardoned for reading one very small fact. It is this, taken from. Commonwealth vs. Webster.’ And then the said Charles R.- Rigdon read from a paper the following:

“Perhaps strong circumstantial evidence in cases of crimes . like this, committed for the most part in secret, is the most satisfactory of any form whence to draw the conclusion of guilt, for men may be seduced to perjury by many base motives.to which the secret nature of the offense may afford a temptation, but it can scarcely happen that many circumstances forming together the links of a transaction should all unfortunately concur to fix the presumption of guilt on an individual and yet such a conclusion be erroneous.” That at the time the defendant objected to the said Charles L. Rigdon reading said passage, and that the Court, over the objection of the defendant, permitted the said Charles L- Rigdon to read said passage. To which ruling of the Court the defendant at the time excepted.

(Signed) 'Ethel A. CarpentéR-

Subscribed in my presence and sworn to before me this 2nd day of August, A. D. 1912.

(Seal)

(Signed) Clyde M. Watts,

Notary Public.”

The objection and exception do not appear in the bill of exceptions independent of this ex parte affidavit which was filed in support of the motion for a new trial. The bill does not state, nor does the judge who signed the bill certify that any objection was made at the time to the alleged misconduct of the county attorney, or that any ruling was made thereon, or any exception taken thereto at the time.The court or judge in signing the bill of exceptions certifies that the statements contained in the bill are true and that the objections, rulings and exceptions therein stated occurred on the trial; but he does not certify that the statements contained in an affidavit attached to a motion for a new trial are true or that the matters therein stated occurred on the trial. What occurred on the trial must appear by the bill and not by ex parte affidavits. (2 Ency. Pl. & Pr., 756-758; Wallace v. Skinner, 15 Wyo. 233, 261, 88 Pac. 221; Robb v. State, 144 Ind. 569, 43 N. E. 642; State v. Helm, 97 Ia. 378, 387, 66 N. W. 751; Alexander v. Menefee (Ky. 1901) 64 S. W. 855; Hacker v. Heiney, 111 Wis. 313, 320, 87 N. W. 249; Morris v. Whyte, 158 Mo. 20, 57 S. AV. 1037). Notwithstanding the failure to properly present the question by the bill it was discussed in the opinion and we need not further refer to it. Much of plaintiff’s brief in support of his petition is devoted to the question of alleged misconduct of counsel in other respects but this was not made a ground in the motion for a new trial. It is urged among other grounds for a rehearing that

“1 The trial court refused to permit a record of the statements made to the jury while viewing the premises to be kept by the official stenographer.”

“2. The judge failed to accompany the jury while viewing the premises.”

“3. The record does not show that the defendant was present at the view. The record shows that the stenographer failed to take down all of the instructions given to the jury before going to view the premises.”

These questions with the exception of the second, which was not raised in plaintiff in error’s brief nor in argument, were discussed in the opinion. The view authorized and permitted by the statute is by the jury upon order of the court. The view is not by the court and it seems almost a waste of words to say that the judge was not required to accompany the jury upon its view to the place where the homicide was committed.

The record is silent as to whether the defendant was present at the view, but we do not think that for that reason he was deprived of a constitutional right and was therefore entitled to a new trial. This was not assigned as a ground in the motion for a new trial but even had it been so assigned it was a right which the defendant - could have waived (2 Bish. New Cr. Proc., §965, sub-division 3) and in thé absence of a request of the court that the defendant be permitted to accompany the jury and a denial by the court he will be deemed to have waived such right: (Elias v. Terr. 9 Ariz. 1, 76 Pac. 605, 11 Ann. Cas. 1153; State v. McGinnis, 12 Idaho 336, 85 Pac. 1089; People v. Thom. 50 N. E. 947, 156 N. Y. 286, 42 L. R. A. 368; Commonwealth v. Van Horn, 41 Atl. 469, 188 Pa. St. 143; State v. Mortensen, 73 Pac. 562, 26 Utah, 312).

It is contended as in the original brief that the court erred in not permitting the defendant to cross-examine Dr. Beard as to whether he had stated “Eater, however, Roach claims to have found I think, a towel in some place, but I am not sure whether that was with the clothing they gave to me to examine or not, I think it was. There was just a few stains of blood on it, not sufficient to have made a test of, however, just little stains. State whether or not you made that statement to me?” This question was discussed in the opinión. It was not pointed out in the brief what statement made by the witness in his evidence would conflict with this statement, although defendant’s counsel now say: “If the court will but read the testimony of Dr. Beard upon his redirect examination by the prosecuting attorney, it will find that this witness was minutely examined as to the statements which he made in the office of Mr. Ross and was asked whether or not this statement was contradictory of what he had testified to on direct examination.” We have read the redirect examination of the witness, all of which was made after the ruling complained of and without objection or exception by defendant. The defendant complains that the ruling upon this objection is not in harmony with that made by the court in overruling a similar objection made by defendant to the evidence offered by the prosecuting attorney in laying the foundation for the impeachment of the witnesses Brennan and Stapleton. The rule is elementary that the foundation must be laid for the impeachment of the witness upon a material and not a collateral fact. The fact was not what the witness said .that he, Roach, claimed or said to the witness except for the impeachment of Roach (and for which no foundation was laid) but when and where he, Roach, found the towel which the Doctor examined for blood spots. Proof of when and where he found the towel was competent from the lips of Roach who was a witness in the case and no contradictory statements by him are pointed out or foundation laid for his impeachment.

We do not, as stated in the opinion filed, deem it necessary to discuss the other alleged errors. Some of those not discussed raise but elementary questions or involve the application of rules of evidence in their simplest form and some of them are based upon no objection or exception taken at the-time. We have been patient and we think painstaking in the consideration of the case. This court is ever ready to correct an error into which it may have fallen. The unfortunate defendant has had a trial, the .record of which has been presented and here reviewed in the light of the assistance of his able counsel but we can see no reason for changing our conclusions upon the whole record as announced in our former opinion.

In pronouncing judgment the court below sentenced the defendant to suffer the penalty of death as provided by law for murder in the first degree, and imposed a fine of $1,000, and. rendered judgment therefor and for costs in favor of Laramie county and directed that execution issue therefor. The' fine was authorized under section 6256, Comp. Stat. 1910, which is as follows: “The minimum term of imprisonment in the penitentiary shall in no case be less than one year; and the court, in its discretion may impose a fine of not more than one thousand dollars as a part of the punishment for any felony.” It does not appear that any application was made to the court below to modify the judgment with respect to imposing the fine or awarding costs nor do we think the third assignment of error raises either of these questions. That assignment is as follows: “3. Because the judgment of the court in imposing sentence upon the plaintiff in' error upon the verdict of the jury is contrary to law.” We may say, however, that it was not permissible at common law to render judgment for costs against a defendant in a felony but such costs may be taxed when expressly authorized by statute and which statutes are uniformly held to be constitutional. (11 Cyc. 267, 268). It is provided by Sec. 6034, Comp. Stat., 1910, that in all cases of a conviption of an offense, the court. shall render judgment against the defendant for the costs of prosecution. As to the fine, it was authorized by the statute and its imposition within the limits authorized was discretionary with the court. It was suggested in the brief that the judgment provided cruel and unusual punishment. The statute applies uniformly throughout the state to all in like condition as tlie defendant and the punishment provided does not fall within any class forbidden by the constitution as cruel or unusual, but as commensurate with the crime of which defendant was found guilty. The legal punishment consists of two separate and distinct things and the imposition of the fine in addition to the death penalty was not cruel nor unusual. Riñe and imprisonment as to other felonies is uniformly upheld. (Page 408 Cooley’s Const. Lim.). We see no reason why the imposition of the fine was not proper, for homicide of whatever degree is a felony as defined by Section 6029, Comp. Stat. id., which is as follows: “Offenses which may be punished by death, or by imprisonment in the penitentiary, are felonies; all other offenses' are misdemeanors.” We see no reason why the fine should not be imposed as a part of the punishment and the costs taxed as provided by the statute. A rehearing is denied.

Rehearing denied.

Potter, J., and Beard, J., concur.