146 P. 596 | Wyo. | 1915
The plaintiff in error 'brings error to reverse a judgment upon a verdict convicting him of the crime of murder in the second degree. It appears from the evidence that Mel-drum was at the time of the homicide Marshal of the Town of Baggs in Carbon County in this State, an^ on the evening of January 12, 1912, was calle'd by phone from the supper table at his boarding house by the Mayor of the town to quiet a disturbance within the town limits and several blocks from his boarding house by some drunken oiv partially intoxicated men, among whom, he was informed, was the deceased, who was known as John or “Chick” Bow'en. The marshal investigated the disturbance and found Bowen and three companions in a saloon known as Davis’ saloon and then and there accused Bowen with “hollering” and making a disturbance and told him to quit hollering on the street. Bowen resented the accusation and said that anyone who said he was hollering was a liar. The marshal told Bowen he would investigate further and departed from the saloon. Shortly thereafter Bowen and his companions went out on the street again and continued the disturbance. The marshal then being directly across the street and within hearing of the disturbance started after the parties who went down the street and entered the Elkhorn Hotel and, when the marshal reached the hotel, they were seated at a table in the dining room preparatory to taking their supper. The parties were in the hotel from one-half to three-quarters of an houx-, when they came out of the hotel, after finishing their supper, and the defendant then placed Bowen and one Salisbury under arrest. The former resisted and did not go willlingly and the marshal used foixe to compel him to accompany him, while Salisbui-y followed at a short distance. In this manner they progressed about sixty feet diagonally across the street when Bowen and the marshal came to a standstill, and an altercation took place between them, during which several shots were fired by the marshal with his pistol and he and Bowen -fell to the ground, the marshal
1. The defendant assigns as error the overruling of his challenge to the array and which challenge is based upon the following grounds, to-wit: “x. Because said regular 'panel was not drawn in compliance with the provision of Chapter 80 of the Statutes of the State of Wyoming. 2. Because the said regular panel was not drawn from the body of the county. 3. Because the said regular panel was drawn almost entirely from Jury Box No. 3, and that said Jury Box No. 3 does not contain all the names of the qualified jurors residing within the fi-ve-mile limit, and that in addition to the names of the qualified jurors residing within the five-mile limit contained in said Jury Box No. 3, there reside within said five-mile limit about 100 per
“Í am the duly and regularly elected, qualified and acting Clerk of the District Court in and for the County of Carbon, State of Wyoming. That as such Clerk I was present at the time when the Jury Commissioners provided by statute made the list of jurors from the assessment list for the year 1912 for use during the year 1913, and have knowledge of the facts as to the method in which said list*32 was made. That in making said list said Jury Commissioners did not fail to put upon the list any names of any persons appearing upon the assessment roll whom they believed to be a qualified juror as their names and qualifications appeared thereon. That some of the names that appeared upon the assessment list did not have attached thereto, or in any way in connection with said names, the qualifications for a juror. That names were left off that appeared upon the said list when it appeared to the said Commissioners from information, or their own knewledge, that any of said names were those of persons who were not qualified by reason of non-citizenship or not possessed of sufficient knowledge of the English language, or being over-age, or having any physical disability, or for other cause, were exempt from jury duty, but in all other cases where it appeared that there was no reason to believe otherwise that the said names were those of persons who were qualified to serve as jurors, the names were put upon the said list. That I have examined and heard read the Challenge to the Array, and would say that as to the names put in Jury Box No. 3, some of those that did appear upon the list, with their residence as being Rawlins, were known to have their residence more than five miles from the Court House, and such names were not put in Jury Box No. 3; and in other cases it was known and believed that persons that were upon the said assessment roll had either died or left Rawlins and no longer resided within the said five-mile limits. That there may be some names that do not appear in said Exhibit ‘A’ attached to said Challenge to. the Array, the ballots for which, since being put in said box, have been destroyed by order of the court, or having served upon the jury at the last term of court are now in Box No. 2, and that the names now contained in Box No. 3 do contain all of the names of the qualified jurors whose qualifications were stated upon the assessment roll and who were believed to be qualified jurors and who are not exempt, and who resided within the five-mile limit, as a matter of fact, at least substantially.”
Applying that rule to the record of this case, and without deciding whether the Jury Commissioners may jprop-erly omit from the list the names of persons known to be exempt but believed to be otherwise competent and qualified, we do not think there was a sufficient showing of a failure of a substantial compliance by the Jury Commissioners with and we see no such departure from the law as would Warrant a reversal of the judgment on this ground.
It is the duty of the Clerk of the District Court, immediately after the jury list has been delivered to him, to prepare suitable ballots by writing the name of each person in the list with his place of residence and other additions, on a separate piece of paper of uniform size and properly folded and which he must deposit in “jury box number one.” (Sec. 987.) The regular panel for the term is drawn in open court from this box as provided by Section 992, and, after the adjournment of the term, the names of those who attended and served shall be placed in “jury box number two.” Section 996 is as follows: “The Clerk must keep, in addition to the two boxes specified, in the last section, a third box known as and marked “jury box number three”, in which he must deposit duplicate ballots containing the names with the proper additions of all persons selected and returned as jurors who reside within five miles of the city or town where a trial term or session of a court of record is held,. pursuant to law.” The duty of the Clerk of the District Court is ministerial. He deposes that jury box number three does contain all of the names of the qualified jurors whose qualifications were stated on the assessment rolls and who were believed to be qualified jurors and who are not exempt and who resided within the five-mile limits, as a matter of fact, at least substantially.” The affidavit of the Clerk is not very clear as to this matter. If it be subject to the interpretation that he assumed to reject or withhold from jury box number three the names of persons solely on the ground that they were exempt then he exceeded his power. A person otherwise
2. The State, over defendant’s objection, was permitted to introduce -in evidence and read to the jury from the transcript of the stenographer’s notes the testimony of three witnesses given in chief and upon cross-examination upon a former trial of this case. It was admitted that the transcripts were correct arid that one of the witnesses had died since that trial. As a foundation for the admission Of the evidence of the two other witnesses the affidavit of the Prosecuting Attorney was filed, setting forth that in ample time he had procured a subpoena to issue and placed it in the hands of the proper officer for service who had returned it with the officer’s return indorsed thereon “not found”; that these witnesses had lived at Baggs, the place of the homicide, and that deponent had made diligent search and inquiry to locate and discover their whereabouts and that he had been unable to do so and to the best of his information they were somewhere in the State of California, and that their absence from the State and the trial was without his knowledge, consent or connivance. Upon this ex parte affidavit the court held the foundation sufficiently laid for the admission of the evidence given by -the absent witnesses at the former trial. The evidence fairly supports the finding of the court as to the laying of the foundation and that being so the finding ought not to be disturbed. (Young v. People, (54
3. It is admittéd that defendant was the marshal o.f the Town of Baggs at the time of the homicide, which occurred within the limits of that town and he claimed to have been acting within the line of his duties as prescribed by the ordinances of the town in attempting to arrest Bowen. He sought to introduce certified copies of certain ordinances under the certificate of the Town Clerk and the corporate seal of the town. The purpose of this offer as stated at the time being to show the nature and extent of his powers as marshal in the matter of the arrest of Bowen and, also, as bearing upon the question of intent This evidence was objected to by counsel for the State as follows: “We object to this, anyway, because this ordi-nace in our judgment would be contrary to law as to the duties or privileges of officers. In addition thereto this ordinance should be offered from the original books if it is offered. This is not a true certificate as shown by the records. I ask leave to file a counter affidavit.” The court reserved its ruling until a later day during the trial, when the counsel having filed the counter affidavit which was objected to as incompetent and immaterial by the defend
We do not approve, or in any wise, assent to the method here adopted in attempting to vitiate the certificate. The certificate of the Clerk, under the seal of the town, made the ordinance admissible in all courts without further proof. (Section 1587, Comp. Stat.) If the question rested here there could be but one conclusion reached (Lindsay v. City of Chicago, 115 Ill. 120, 3 N. E. 443), but it was orally admitted in the course of the trial that the ‘‘yea’' and “nay” vote upon the adoption of the ordinance was not recorded on the journal as required by Section 1585, id. The Town Council was not inhibited from enacting such an ordinance, either by the Constitution or laws of the State. These ordinances had never been judicially determined to be invalid prior to the homicide nor is it shown that defendant had ever been informed or that he had any reason to believe that they were invalid, and the evidence shows that the)'- were given him as a guide in the performance of his duty by the Mayor of the town.
In homicide, the defendant, when he submits himself as a witness, may be inquired of as to the motive or intent which actuated him when he fired the fatal shot or struck the fatal blow. When he answers that he believed he was acting in the line of his duty as a peace officer, as he did so answer here, what objection can there be in supplementing his evidence by proof of ordinances under which he claimed to have been acting whether the ordinances were properly enacted or not? Why should not the jury have this evidence to better judge of the surrounding conditions as to the intent or motive which actuated the defendant at the time of the homicide? It may be conceded that the ordinances were inadmissible for some purposes, but here they were offered as bearing on the question of good faith and intent of defendant in making the arrest and for
The defendant testified as a witness in his own behalf. He again produced and offered in evidence a copy of the ordinances given him by the Mayor when he was appointed and entered upon the discharge of his duties as Town Marshal. This offer was met with the objection which was sustained that the ordinances were incompetent, irrelevant and immaterial. In making this ruling the court said: “I will state find I wish it to go into the record, that the defendant may show what he regarded his duties to be in regard to making the arrest under the ordinances.” An exception was- reserved to this ruling.
It seems to have been the theory of the trial court that the defendant could justify under the general law, if at all, for making the arrest. The jury was instructed that the statute (Section 5902) provides that: “Whoever by any loud or unnecessary talking, hallooing, * * * * * interrupts or disturbs the peace of any community in this State or of any of the inhabitants thereof, shall be guilty of a breach of the peace and, upon conviction thereoi, shall be fined not more than fifty dollars, or confined in the county jail not more than thirty days, or both,” and if Bowen committed any such act in the marshal’s presence it then became the positive duty of the latter to make the arrest. There can be no doubt as to the correctness of this instruction. Section 1355, Comp. Stat. 1910, provides: “It shall be the duty of every sheriff, marshal, policeman, constable and other peace officer promptly, and at the time and without warrant, to arrest any person who in his presence shall be found violating any law of the State of Wyoming, and forthwith to take such person before the nearest magistrate having jurisdiction of such offense, and forthwith before such magistrate to make complaint on oath of such person concerning such offense.” By Section 1356 it is provided: “Any such sheriff, marshal, policeman, constable or other peace officer, who fails or refuses to arrest any person committing any offense
It may be conceded that the ordinance is no broader in its terms than the statute, but, as bearing on the question of intent, they were admissible. The marshal claimed to have made or attempted to arrest Bowen for violating an ordinance, yet he was not permitted to prove the ordinance.
It is- the general rule that a peace officer is not permitted to kill or maim one who is resisting or who does not peaceably submit to the arrest. The degree of force used by the officer is not permitted to go to that extent unless the culprit assaults the officer, when the right of self defense accrues to the officer. By Section 1355, however, it is made the duty' of the marshal to arrest anyone who in his presence is found violating any law of the State. It will be observed that the statute is mandatory in its terms and the marshal who refuses or fails to effect the arrest of an offender who commits or is committing an offense within his view subjects himself to the penalty of removal. This is trot a case where there was a peaceable submission to the arrest or where one who is running away from the officer is killed or maimed by the officer, but where there was evidence of resistance and assault and battery by-Bowen upon defendant sufficient to go to the jury on the question of self defense.
In this connection the court instructed the jury that if the offense was not a penitentiary offense and for which the marshal was attempting to arrest the deceased and if such offense had not been in the presence of the peace officer or within his view immediately before or at the time of such attempted arrest, then the officer was acting illegally in attempting to arrest or restrain the deceased, and he will not be protected in any way as-an officer would be in
4. The defendant offered to prove threats of Bowen against him uttered prior to the homicide, which offer was objected to and rejected on the ground that such threats were not shown to have been communicated to the defend-, ant. Much of the testimony was directed to the question as to whether the deceased or defendant was the aggressor. The defendant testified that he believed the killing was necessary in self defense. Owing to its being dark the bystanders could not see plainly as to their movements. The defendant emerged from the encounter with a broken nose and some bruises on the back of his head as evidence of a powerful blow having been delivered, whether directly delivered or received indirectly from falling is not clear from the evidence. There was at least evidence to go to the jury upon the question as to whether the shots were fired in necessary self defense and any evidence on the question as to who was the aggressor was material as bearing on that defense., This rule of evidence is uniformly adhered to by the courts. In our opinion the trial court erred in excluding the evidence. (Sec. no Wig. on Ev.)
5. The court rejected defendant’s offer to prove by several witnesses that he bore the reputation of being a prudent, discreet and cautious peace officer. This offer was rejected and the court limited the question of reputation to peace and' quietude. In speaking of the use of evidence as to reputation and the kind of character- that may be shown it is said in Section 59, Vol. 1, of Wigmore on Evidence, that the limitation of such use is imposed by the principle of relevancy, and to be admissible the character or disposition offered in evidence whether for or against the accused must involve the specific trait related to the act charged. In State v. Surry, 23 Wash. 655, 63 Pac. 557, the defendant was on trial on a charge, of assault and battery while making an arrest. He offered to prove that he bore the reputation of a careful, conservative and conscientious peace officer in the community in which he lived.
6. Over defendant’s objection the court instructed the jury, by a paragraph in the second instruction) as follows: “If the defendant, Meldrum, killed the deceased, Bowen, with a deadly weapon, such as a gun loaded with gunpowder and leaden balls, by shooting the gun at a vital part of Bowen, without such provocation as was apparently sufficient to excite in the defendant an irresistible passion and such killing was not in lawful self defense, then you may find, if you are satisfied beyond a reasonable doubt from all the evidence, the killing to have been malicious, the defendant guilty of murder, and if such killing was deliberate and premeditated it will be murder in the firsst degree.” The killing of a human being must be done purposely and maliciously to constitute murder in the second degree. Purposely as an element of the crime is not used which makes the instruction erroneous. The jury must find from the evidence beyond a reasonable doubt that all of the elements constituting the crime charged were present at the time of its commission before they are authorized to return a verdict of guilt, and anything less does not satisfy the law.
7. It is urged that the. court erred ha its definition of malice. The jury was told that, "Malice means ill-will, hatred, illnatured, wilfullness, a wilfull intention to do an unlawful act; a wilfull act done intentionally without just cause or excuse. It, also, denotes a state of mind from which acts are done regardless of others.” While this definition might have been better and more carefully worded we do not understand how it could have been prejudicial.
8. Over defendant’s objection the jury were told that, “Tn order to reduce a voluntary homicide to the grade of
This instruction in so far as quoted does not state the law. It is claimed that the word “not” is omitted after the word “was” in the last sentence, but we cannot assume that the jury read the word into the instruction. It was the duty of the court to correctly instruct as to the law of the case and of the jury to take the law from the court. The defendant was not guilty of murder in the second degree upon evidence of an adequate cause to produce in his mind a sudden heat of passion at the time of the commission of the homicide. That would be tending to establish the crime of manslaughter but not murder in the second degree. So much of the instruction as-quoted would have a tendency to impress the jury with the idea that the burden shifted to the defendant or, in other words, that it was his duty to prove himself not guilty when the truth is that in a criminal case in this jurisdiction the burden of proof never shifts. One who is on trial for a crime has a right to have the question of his guilt determined by the jury upon a fair and impartial examination, comparison and consideration of all of the evidence, both for the state and the defense. There was no presumption that the defendant was guilty of murder in the second degree upon proof if any that he committed the homicide upon a sudden heat of passion. The inherent vice of this instruction is apparent and it was error to give it; nor do we
9. Misconduct of the jury is assigned as error. It is unnecessary to discuss this question in view of our conclusion upon other grounds discussed as the acts alleged to be misconduct will in all probability not occur upon another trial.
For prejudicial error appearing on the face of the record and herein referred to the judgment will be reversed and a new trial granted. Reversed and remanded.