THE STATE OF WYOMING v. JAMES V. ALEXANDER
No. 2799
THE STATE OF WYOMING
April 29th, 1958
324 Pac. 2d 831
For the plaintiff and respondent, the cause was submitted upon the brief of Thomas O. Miller, Attorney General, and William A. Riner, Deputy Attorney General, of Cheyenne, Wyoming, and oral argument by Mr. Riner and Mr. Raymond B. Whitaker, County and Prosecuting Attorney of Natrona County, Casper, Wyoming.
Heard before Blume, C.J., and Harnsberger and Parker, J.J.
Mr. Justice HARNSBERGER delivered the opinion of this court.
Defendant, who was informed against and tried for
In preamble to appellant‘s argument, it is stressed that “because of the sensational elements of the crime defendant was accused of committing, he was denied a fair and unbiased trial“. No supporting authority is offered. To recognize substance in such a claim would indicate that the more heinous the crime, the more certain it would be that there was error in trying an accused for its commission.
After the court had overruled defendant‘s Motion to Quash the Information herein, defendant filed his Plea in Abatement upon grounds that the transcript of testimony given before the justice of the peace at the preliminary hearing and attached to the plea failed to show defendant caused the death of the deceased; premeditated malice; that murder in the first degree had been committed; probable cause for holding defendant to answer to the charge and binding defendant over to the district court on the charge of murder in the first degree in consequence of which the justice of the peace was said to have exceeded her jurisdiction.
The court denied the plea, finding:
” * * * that such a plea does not permit the District Court to review the transcript of proceedings held before the Justice of Peace on the questions of whether or not the offense charged in the complaint had been committed and whether or not there was probable
cause to believe the defendant guilty of the offense.”
Counsel insists this was contrary to the rule set forth in State v. Baish, 32 Wyo. 136, 230 P. 678, where it was held that a copy of the transcript of the testimony given at a preliminary hearing could only be brought into the records by a plea in abatement. In so holding the court cited
In other decisions the United States courts, Alabama, Arkansas, California, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Miss-
While living in Casper and married to Rose Alexander, who bore him two children, defendant met and brought to live in his small home at Casper, with his wife, himself and their two children, one Barbara
Immediately following this divorce, defendant married Barbara, who by that time had also become divorced, but defendant, Barbara, Barbara‘s two children, Rose, and Rose‘s two children, a total of seven persons, all continued to live together in the same house, and defendant and Rose continued to sleep in the same room for about a week. About eight months after her marriage to defendant, Barbara gave birth to child and this made a total of eight persons in the home. Finally, Barbara objected to the living arrangements, and defendant sent Rose to her former home in Connecticut, but shortly thereafter she returned to Casper. Defendant gave Rose money while she was away and also sent her the money to enable her to come back to Casper. On her return, Rose went to live in a trailer house immediately behind defendant‘s home and she stayed there about a week before she went to live in another of defendant‘s trailer houses. This was situated near the edge of town and defendant, from time to time, brought her foodstuffs and supplies. After a month or so, Rose went to defendant‘s home and took her two children and kept them with her in the trailer, but later when school started they returned to live in defendant‘s home. When Barbara learned that defendant was going out to the trailer where Rose was living, the parties quarreled and Barbara threatened to leave defendant.
On Monday, July 20, 1953, defendant left Casper and did not return until the latter part of August, 1953. Defendant then proceeded to lay a concrete floor in the basement of his home over an area approximately seven feet wide by twenty-four feet long, which up to that time had not been covered with concrete as was all the rest of the basement. Defendant told various persons different stories about Barbara‘s absence. For instance, he said his wife was dead; she was lying in dry cement and lime; she had left him; she had threatened suicide; he had seen her on the street; he dreamed she had come to him; when he slept in the basement he felt close to her; the police or other authorities were searching for her and he made several other statements tending to account for her disappearance. In the fall of 1953, the de-
On September 3, 1954, the officers interrogated de-
On September 24, 1954, defendant made a statement to officers the highlights of which were that on July 18, 1953, he went to bed at 9:30 p.m. with everything normal between Barbara and himself, and that he awoke the following morning and found Barbara was not in the house so he thought she had gone to church. The investigation continued and on November 29, 1955, at Worland, Wyoming, where the defendant had moved, he gave a written signed statement to the officers in which, among other things, he said: that he had seen Barbara on the street in Casper around Thanksgiving, 1953, and that his children told him they saw her drive by the house after July 19, 1953; that at the time of her disappearance Barbara had anywhere from $800 to $1,000; that when he sold lots which were in his name “her signature was necessary for a clear title because of her being my wife“; and that he had reported Barbara missing to the sheriff‘s office about eight weeks after her disappearance which last statement was shown to be untrue.
On the afternoon of December 5, 1955, Rose, the defendant and his attorney all went to the Casper police. The record does not reveal all that transpired there, but defendant gave his written consent to the authorities to dig up the basement of his house, and that evening about 10:45 p.m., in the presence of defendant, his attorney, law officers, doctors and a photographer,
An examination of these pictures, as well as of the skeletal remains, disclosed that an impact to the left side of the head with a flat object caused severe multiple fractures of the skull which expert witnesses ascribed as being the cause of death. The examination did not reveal any other injuries. On the left side of the skull the injuries were described as being a stellate fracture with radiating small fractures from it near the junction of the parietal and temporal bones representing a point of impact with rutting fracture. At the junction between the right parietal bone and the right portion of the frontal bone, the suture line had been split apart and the split extended downward
The only clothing found in the grave was a part of an undergarment, although there was also a small portion of what appeared to be a sheet. Underneath and around the remains, a quantity of neat or pure cement was found in an amount estimated to be approximately 200 to 250 pounds. The only jewelry was a small diamond ring of the type usually taken to be an engagement ring. This was on the finger bones of the ring finger of the left hand. Nothing else of a personal nature was found with the remains, such as money, a purse, etc. A small wood stake, a wooden cross, and a tin can were removed from the excavation and samples of the earth were taken and analyzed, but these items seemed of little if any evidentiary significance unless it was because defendant was shown to have made similar crosses. The hair of the deceased was removed and it was given laboratory examination.
At the coroner‘s inquest, held over the remains of Barbara, the defendant was present and represented
It would serve no good purpose to here recount at length these several testimonies of the defendant nor even to attempt to summarize their substance. We content ourselves with saying that they were so fraught with discrepancies and inconsistencies that the jury would have been justified in discrediting those portions which, if believed, would have been favorable to defendant, and in concluding that defendant was attempting to conceal the fact that he knew Barbara had been killed and interred in his basement. Rose also gave testimony at both the inquest and at defendant‘s trial to the effect that she had witnessed Barbara‘s death when she fainted and fell about four feet from a catwalk on defendant‘s premises and landed on a small concrete platform. Her evidence, like defendant‘s, was replete with discrepancies and inconsistencies, and furthermore the defendant‘s evidence and the evidence of Rose was in irreconcilable conflict on some points. This, of course, would have been given the jury additional grounds for concluding there was a studied attempt by both defendant and Rose to mislead them as to the facts surrounding Barbara‘s death and to persuade them to believe that her death was accidental rather than a homicide.
This recapitulation, although showing the evidence to be for the most part circumstantial, was, nevertheless, sufficient to support the jury‘s verdict that defendant was guilty of murder in the second degree.
There had been a quarrel between defendant and Barbara over the defendant‘s former wife, Rose, and defendant was accusing Barbara of “chippying” on him and had called her “a two-timing bitch“. The whole background of sordid conditions and relationships portrayed obvious additional reasons for the existence of ill feeling and provided motive for the defendant to rid himself of one of his women. His conduct in hastily leaving Casper after July 18, 1953, and returning only when there seemed to be no furor or official inquiry about Barbara‘s disappearance; his prompt laying of concrete over her grave upon his return; his failure to promptly report her disappearance to constituted authorities; his report of seeing her alive on the streets of Casper; his sly suggestion of her being a suicide; his misleading note to Barbara‘s parents—all tended to establish his definite purpose to conceal and to mislead. These and many other circumstances, intensified by defendant‘s convenient failure to recall certain important matters while displaying a remarkable memory for other details which defendant
We must next examine the record to ascertain if any evidence was improperly received to prejudice the defendant‘s rights. One of appellant‘s objections is that there were a number of photographs, introduced in evidence over his objection, which were unnecessarily inflammatory and which, therefore, prejudiced the jury against the defendant. These were some eleven photographs showing different views of exterior portions of defendant‘s house; eight photographs, showing progressively, the uncovering of the remains; a full-length picture of those remains after their removal from the grave; four close-up photographs of the skull, each taken from a different angle and showing some of the fractures about which the doctors gave testimony; a number of pictures showing interior views of defendant‘s basement, the concrete floor, its cracks and the excavations made; and x-ray plates showing the fractured skull and the intact condition of other parts of the deceased‘s body structure. While some of these graphic depictions are not pleasant to look upon, and, in fact, are somewhat gruesome, we cannot say that they were not proper and necessary to be placed before the jury in order that they be enabled to get a proper perspective and an understanding of the testimonies that were given in connection with them. This objection of the appellant must be overruled.
Appellant also complains that defendant did not receive a fair trial because of the prosecuting attorney‘s
Appellant says state‘s counsel made unwarranted and prejudicial remarks in front of the jury and our attention is invited to instances of these criticized remarks made in the jury‘s presence. Their general character is illustrated by the following: “Will the upper row step down and look“—“Would any of the members of the jury like to see any other cement in there? If they would we could open the whole thing up but to save time we thought we got a representative bag of it“—“Can the jury see certain portions of the Exhibit?“—“Is there anyone who would like to see?“—“Can the jurors see this?“—“Can you hear the witness?” With the exception of the last quote, we note there is nothing in the remark to indicate if it was addressed to the court or directly to the jury. In any event, while we disapprove of any counsel addressing the jury except at proper times when it is expected, none of the remarks nor the fact of their being made in the jury‘s presence was prejudicial to the defendant. While a few other remarks by state‘s counsel are objected to as improper, we consider those objections to be entirely without merit, except perhaps in one instance when defense counsel was cross-examining a state‘s witness who had testified that Barbara, while talking to the witness and the witness’ husband, had been uneasy. Defense counsel then asked, “What do you mean uneasy?” To this question the witness replied, “Well, while I was there she told my husband and I that he [the defendant] had threatened to kill
Other objections are made that certain evidence admitted was without relevance or materiality. We consider that evidence to have been relatively unimportant and its reception to be without prejudice to the defendant. In cases which altogether depend upon circumstantial evidence or which in large part rest upon circumstances, considerable latitude must be given and the admission or rejection of that type of evidence must be left largely to the sound discretion of the trial court. We do not find that discretion was at all abused and, consequently, overrule those objections.
The complaint that defendant was subpoenaed and required to testify at the preliminary hearing of Rose Alexander and then after a few preliminary questions was ruled to be a hostile witness is inaccurate, as the record shows it was only after defendant had given testimony represented by twenty-five pages of the transcript of evidence given at that hearing that the justice ruled defendant to be a hostile witness. The
Appellant further claims error because the state‘s evidence tending to show defendant‘s efforts to conceal true facts and mislead the jury concerning Barbara‘s disappearance incidentally involved references to the enclosure of the alleged catwalk. Because of this it is said the state anticipated the defense that Barbara died as a result of a fall from a catwalk, and, therefore, it was error to permit the state to give further evidence about the catwalk on rebuttal to show the alleged catwalk was not completely enclosed on July 18, 1953, but was exposed to view due to prior removal of one side of the enclosure. Our attention is called to Russell v. State, 19 Wyo. 272, 284, 116 P. 451, 454, where it is said:
“The general rule is that, if the plaintiff sees fit to call any evidence in anticipation of a defense, he should be required to then produce all of his evidence on that subject, and should not be allowed to split his evidence in two parts, and to give one part in chief and the other in rebuttal. Orderly procedure in the trial would require this. However, the rule is not an arbitrary one, and the trial court is allowed considerable latitude in the exercise of its discretion in that respect. * * * ”
There are two things which relieve the court‘s action from error. First, the evidence received was not given in anticipation of any defense, but, in connection with other evidence, was legitimate proof of an element material to the establishment of the state‘s theory. Second, as the final sentence of the above quote indicates, the court is allowed considerable latitude in admitting or rejecting rebuttal evidence. In 6 Wigmore on Evidence, 3d ed., § 1873, pp. 510-512, difficulty of discriminating between an occasion when rebuttal testimony may or may not be properly received is pointed
The additional claim of error in not allowing defendant surrebuttal evidence is also not well taken because it could only amount to adding further and cumulative evidence to facts already testified to by a defense witness and which it was his opportunity to emphasize when he offered his defense in chief. We, therefore, agree with Wigmore‘s summation of the manner when he wrote at page 517:
“In general, such discretionary variations should be liberally dealt with; for nothing can be more irrational or more unjust than to apply the judicial lash of a new trial to errors of trivial importance.”
The case here is not one where the prosecution sought to establish the existence of, or any fact relating to, the alleged catwalk. Such evidence was wholly unnecessary to the state‘s case. It was only when the defendant sought to account for Barbara‘s death as being an accident that the existence of the alleged catwalk‘s enclosure became important as an issue. Defendant‘s evidence was that the catwalk was
Anticipating the defense, or purposing to anticipate the defense, should not be taken to mean every introduction by the prosecution of evidence which merely touches some phase of a matter which is later disclosed as incident to the defense. To anticipate the defense has reference to the prosecution‘s introducing in its case in chief evidence calculated and intended to meet, contradict, explain, repel, counteract, disprove, modify or overcome evidence which is expected to be offered and relied upon as a defense to the crime charged. The references to the catwalk which occurred in presentation of the state‘s case was not evidence calculated or intended to meet, contradict or overcome any defense offered. See 23 C.J.S. Criminal Law, § 1049, p. 449.
Appellant claims error because of the denial of his offer of proof which was to be made by propounding a hypothetical question to a medical expert and based upon testimony given by Rose as to the manner in which Barbara met her death. During his examination of the witness, defense counsel stated:
“We wish to present a hypothetical question to the witness to this effect: That the deceased was standing on a catwalk or platform 4 feet above the ground and fell from this catwalk and dislodged bricks from a rock pile adjacent to the catwalk—*** brick pile, yes; after falling, the bricks—one or three or more—no, one or three of weights from 7 pounds to 11 pounds struck the decedent on the left side of the skull of the deceased—whether or not this fall together with the bricks falling from a height of approximately 4 feet could have caused the fracture and the multiple fractures appearing in Exhibits 32, 33, 34 and 35?” [The exhibits referred to being photographs of deceased‘s skull.]
“I think it is speculation by reason of assuming into the picture that which isn‘t supported; that is the striking of bricks on the head of this girl.”
The defense then inquired, “The offer of proof is rejected?” to which the court replied, “That is right“. It is evident that the court‘s use of the phrase “into the picture” was not a reference to either or any of the photographic exhibits, but rather referred to the premise assumed by the question. As no evidence, either circumstantial or direct, had been given which even tended to prove that the bricks did strike the head of the deceased, the court‘s ruling was correct inasmuch as the hypothetical question assumed facts not in evidence.
Error is claimed because the court rejected a defense offer to prove defendant had adequate funds to make a loan of money. We fail to recognize any probative value in such evidence. Although counsel suggested its relation to the $800 to $1,000, which evidence had shown the deceased to possess at the time of her disappearance, the offered evidence would not in the least account for those monies.
During the cross-examination of a state‘s witness testifying on rebuttal in connection with an exhibit purporting to show the alleged catwalk area as described by the defendant to officers, defendant offered to prove the biggest part of the area involved had been excavated so that defendant was left without land marks to guide him when he gave the description. Such proof, if received, would have been valueless to prove there was any inaccuracy in the description given and would have been of no probative value. The refusal of the offer was, therefore, without prejudice to defendant.
“You are instructed that where the sole witness of a transaction charged as a crime has testified, that testimony cannot be arbitrarily rejected and, if the credibility of the witness has not been impeached and her testimony is not improbable and is not inconsistent with circumstances shown but is reasonably consistent therewith, then her testimony should be accepted.”
Appellant says that in Eagan v. State, 58 Wyo. 167, 128 P.2d 215, this court adopted the rule:
“The defendant being the sole witness to the transaction charged as a crime, her testimony must be accepted as true, as it *** is not improbable, and is not inconsistent with the facts and circumstances as shown, but is reasonably consistent therewith * * * ”
and reiterated the same in State v. Helton, 73 Wyo. 92, 276 P.2d 434. The above quote is not taken from the Eagan case, but does appear in the Helton opinion at page 114 in 73 Wyo. 92, and at page 442 in 276 P.2d 434, where reference is made to the consideration which should be given statements made by an accused explaining testimony relied on by the state to prove a necessary element of the crime charged. When taken out of context, as counsel now attempts to do, it is misleading and inaccurate. The full statement in the Helton case was:
” * * * It [the state] did, however, elect to rely upon the testimony of the defendant to prove necessary elements of its charge and, under the law of this state, as announced in Eagan v. State, 58 Wyo. 167, 198, 128 P.2d 215, 226, the defendant being the sole witness to the transaction charged as a crime, her testimony must be accepted as true, as it ’ * * * is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith * * * ,’ ”
In the case before us, the witness was not the accused and the state had not relied upon the witness to prove any necessary element of the crime charged. In fact, the state‘s evidence in the case at bar was opposed to the testimony of the witness who was claiming to have witnessed the death of Barbara. The offered instruction was, therefore, completely misleading, did not state the law and was properly refused.
Another alleged error is that the court refused to give some six instructions which defendant offered. It is unnecessary to set these forth at length or recite their substance. Examination satisfies us that the matter dealt with in the refused instructions is sufficiently covered by instructions given. Similarly, defendant complains of certain instructions given. A major criticism is that two of the instructions conclude with statements “you should find him guilty” and “you should find the defendant guilty“. While care must be taken not to overemphasize either guilt or innocence in the instructions, we must hold that defendant‘s criticism is not warranted in this case because we must assume the jury did as they were directed, and in considering all of the instructions as a whole, they gave proper weight to other instructions relating to innocence.
Appellant also says the court failed to provide a competent court reporter. Although appellant confesses there are no apparent prejudicial defects in the record, counsel insists there are evidences of an incomplete record. The statement is ambiguous and we do not agree.
Finally, it is advanced that the costs have been improperly assessed. The schedule of costs was made
MODIFIED AND AFFIRMED.
ON REHEARING
On June 10, 1958, the Court denied a rehearing without a written opinion.