State v. Carroll

point. law. There is no merit this Cottonwood Sheep Wyo. 250, Murphy, (2d) Co. v. 44 Pac.

and authorities there cited. County order of the district court Sheridan

complained being correct, record, as we view the will be affirmed.

Affirmed. Blu,me, J., Kimball, J., Ch. concur.

STATE v. CARROLL (No. 2000; 1937; (2d) 542) June 69 Pac.

(Rehearing July 20, 1937, opinion) denied without an oral appellant, a brief and there was

For the Cheyenne. Lathrop argument by A. Carleton respondent, by Ray Lee, For the there was a brief E. Attorney Attorney General; Shea, Deputy Gen- T. F. General, Attorney eral; Snow, and Wm. C. Assistant argument Cheyenne, all Mr. and oral Shea.

Blume, Justice. Chief Carroll,

Paul H. herein called accused or the defendant, degree convicted murder in the first die, without recommendation and was sentenced killing one account C. C. Barnard on October pleaded guilty. not- 1935. defendant He contends at the He was insane time of has homicide. appealed give attempt to this court. We shall story connected of the salient shown somewhat facts facts, however, record, leaving some with the discus- and considered in connection stated assignments respective of error. sion of the in Louisiana on November was born The defendant woman, her ner- was a nervous 1899. His mother increasing grew older. as she Defendant’s vousness grandmother and was confined in an became insane period for a chronic maniac institution as grand- twenty-three years. A of defendant’s sister insane and was confined an mother also became According testimony asylum. to the of defendant’s father, poor appears that defendant’s health was infant; that he was treated for cholera he was an when infantum; severely with asthma that he was afflicted old; years he was three that when the time that from malaria; old, years had attack of he a severe ten drinking man; that he would become was a he never job; when that he despondent and nervous out of excitement, grief much and that could not endure mind; argument put him would out of his that he little education, go school, did not like had a limited grade. than finished fourth Accord- and little more Sholty, testimony psychologist, ing of Maude jail gave defendant while in him who examined test, capacity defendant’s mental Benet the so-called years age. of ten and six of a child months of was that saw-mill, worked in a 1917 defendant About awhile, George thereafter, was time-checker for Company. In 1918 he made Construction A. Fullen job a fireman on a railroad. He application for a accepted, of his limited education on account but pass his examination. required in order to assistance syphilis. afflicted with On account 1919 he was In Houston, asthma, went Texas. he soon thereafter fireman of a locomotive at 1922 to 1928 was From Cheyenne, Jacksonville, Texas. In 1929 he came to following years, Pa- five worked for Union in the although Company, cific Railroad off laid at intervals. During company Laramie, 1934 he worked for that Cheyenne, was transferred to and re-transferred in the early Laramie, part stayed of 1935 back to where he discharged, 1935, September 29, until he was about on drinking intoxicating liquor account of in violation of company. 28, 1935, September just Rule ofG that On. immediately prior discharge to his he took a number of intoxicating Laramie, engaged drinks at became in a bloody fight, put jail, and severe and was where he eight remained for about hours. Defendant claims that fight, happened he does remember the or what after drinks; '‘passed had a he had few that he out.” The police Laramie, City of chief of of and the sheriff Albany County, testified that while defendant was pretty abusive, attempted, drunk and he the next morn- get ing, up them to hush keep the matter so toas knowledge thereof from the railroad officials. Accord- ing Brubaker, Mr. the defendant on stated morning September 29, 1935, that if it were not for gun get his mother and would sister he a kill and him- self. The defendant himself testified that he became discouraged discharged; he when was that he started drinking gambling; Cheyenne, and that he came to Uchner; lived with his friend Brubaker and his friend during preceding got the week the homicide he night “passed out”; drunk one that it did not take whiskey drunk; much make him up that he made himself; going mind to kill that he felt that was he again, insane; go he City. decided to to Kansas had, fact, railroad, pass He on on issued Octo- 1935, 3, expired 28, ber October 1935. On Thursday homicide, preceding the he called on Ella C. friend, Smith, apparently a stated to her that he was going home, transportation, he had means but money had that he no wanted to borrow He $5.00. corroborated Ella C. Smith. She let him have it is not clear. What became of On October $5.00. letter, sent, apparently never intro- he wrote a defendant, to his sister and duced evidence brothers, telling them not to mother and father him; stating worry the railroad about officials authority, and that it was assumed too much none actually what he did when he was not their business Saturday night week, Friday and of that at work. On according testimony, bought gun. he to defendant’s not, stated, bought it, know where he what He did was, gun bought or the exact time when he kind of a bought it, money it. He with what he claims that he time; gambled away at the that he also was drunk however, overcoat, which, him, was returned to and with Mrs. was left him Smith. The witness Bru- corroborated the defendant to the effect that baker drunk, during week latter was and that Mrs. Smith defendant, when she had a talk that with him testified Thursday homicide, preceding very was on the signs great suffering, despondent, of mental showed jumped subject from incoherent and one was an- laughter other; spells weeping he had of and of that any- future did that his not seem to hold and stated During thing week, that for him. defendant called deceased, Superintendent Wyoming upon of the Railroad, of the Union Pacific Division to induce him The defendant him. was told “that he to reinstate was According Hanson, through.” witness the ac- leaving office, mean, cused, Barnard’s had when a vengeful look his face which caused the witness Sunday morning, day homicide, worry. of the On reasonably early and went the defendant arose “down- According to the witnesses Robitaille and E. P. town.” Peterson, depot at the Union he was Pacific between o’clock, m., reading a. 10:30 and 11:00 the Denver nothing indicating Post, they that and saw defendant day, per- that time. Later was sober at not Brooks, noon, an defendant met witness haps about acquaintance, Normandie Hotel. near the old Defend-. pint whiskey. half of Then consumed a ant and Brooks Brown, Hampton, Jim five they Morron. The met Brown, p. together m. were until about 3:30 men pint whiskey. Ac- and defendant drank Brooks Brooks, testimony cording Brown and wit- defendant, not the latter did drink his for the nesses share, drink them with three and refused to take appears It further from their testi- different times. that, Hampton mony while defendant was and that of drunk; whiskey, he the influence of under much, drink too talked of did not want to fear he fined, being 3:30 in the that about o’clock after- warehouse, noon, upon leaving he the Asher insisted at stated, get that, he he would not into so trouble them drinking; got out with the others get automobile; they attempted to him back into so, they do it, were unable to and that but separated. parties Sharp, R. H. thereafter One several defendant, claims to have for the seen the de- witness intoxicating liquor under the influence fendant m., alley p. Hotel 3:45 near the Normandie about an This is Brooks. inconsistent with the the witness with testimony himself of Brooks. defendant claims previous drinks time had two the when he he Hotel; Normandie that he drank Brooks at the the met mentioned; half-pint as above with Brooks brought pint a new and Brown additional of witness Eagles Hall, which, too, whiskey out of the con- was testimony with statement inconsistent of sumed —a that, Defendant further claims other witnesses. approximately in the three o’clock afternoon of from homicide, up days day to about six to seven amnesia, thereafter, remembering afflicted with he was nothing happened, of and that he first learned what through information received the homicide contradicted,

hospital. This claim is aside from the mentioned, testimony above a number of witnesses Betty Nesson, Hopkins for the state. Irene wait- dining resses at the room of the Union Pacific Railroad Company, they dining saw testified accused m., thereafter; p. shortly room about 5:30 that he deceased, meal; Barnard, ate a that the C. C. also was eating dining time; a inmeal room at that that the signs defendant no showed intoxication. The wit- Kenworthy walking along saw the defendant ness Cheyenne shortly previous streets of to that time. The Shuttleworth, witness Violet news stand attendant depot, Pacific the Union saw the defendant come into depot; m., p. him; about o’clock she talked with signs no showed intoxication at that time. He depot northwest, from past entered the walked stand, part news saw the deceased the northeast talking depot, Adamson, witness with his defendant, stopped, spread legs, pulled back toward his head, gun, his held over and shot the deceased thereupon shot himself three times in the breast. instantly. apparently fell, died Barnard Defendant severely so wounded was there was doubt for to whether or not some time as he would live. When being placed stretcher, the defendant on a Mr. agent Kenworthy, special for the Union Pacific Rail- road, pockets felt of defendant’s find out whether or any weapon upon not he had other him. The defendant stated, had, you. just “If I it would be for You are dirty statement, them.” as the rest of This with some variations, slight was testified number of wit- George hospital. nesses. The defendant was taken ato Carroll, County, Wyoming, J. Sheriff of Laramie called He on him soon thereafter. asked him his name and pain; any liquor he was in he could not whether detect time, although upon his breath at that he was within a body. The few inches of his sheriff testified that he suffering The if he was the defendant asked jnuch. was, want that he did not he “but that latter answered die; him, to he help he wanted anything as to done gun, came, finish everyone so he could a who asked being tramp and made a job; was tired of said he going put him in a box-car to was no son-of-a-bitch that any he one think that not want again; did that he just crazy; what he was that he knew was drunk do; just he what he intended to that doing, and he did any want any sympathy, and he did not want did not * * * any ‘insane-ity’ talk was that this to think one got but I the other son of bitch have he would that evening, long enough.” Later in the up not stand could guards. hospital with some to the returned sheriff talking, stating “that he had still was defendant The bum, that no son of a bitch of a and put on the been again; going put tramp him on the man was railroad discharged for Rule inG Laramie had been that he previously, and that he did not think it month about what a man did any damn business when of their was again laying The sheriff saw defendant off.” he was took the latter’s brother November at that time testified that accused hospital. sheriff things already heretofore men- repeated some days previously or four tioned; three related that asking a rein- the latter for office Barnard’s went to letter, satisfactory that service or a statement he, Carroll, up; was all washed that answered Barnard Barnard, he, superintendent of the long as Railroad, would not re-em- Carroll be Pacific Union he, accused, to Bar- company; that said by that ployed right you’ I knew because nard, T thank “I said going superintendent he was minute long”; very defendant damn Pacific Union personal effects about with his brother talked also pawned most of had sold or that he latter told the going need them I was not I knew “because them very longer.” much incident This is corroborated Dewey Homan, time, the witness undersheriff at that who further testified that he acted as defendant’s guard inclusive; from October to November that hospital he went to the about 8:20 in the forenoon of 27, 1935; that asleep; October the defendant then awoke, when that the latter he asked the witness what doing there; up he was that witness that answered he just keep company; him day, came to that later in the accused asked what had witness heard about Bar- nard; him that witness informed that Barnard was dead; right; that defendant said then “That is all anybody will son of a bitch never fire that else. That Later, my credit.” three to accused all is said of a according “Well, to I been have rail- sudden — Homan — roading quite up my a while and I made mind that guys going tramp were to make a those out of me * ** bought gun again. IHad a machine instead of got a little six-shooter and dozen of that those fellows good job myself a of one and then done instead on I * * * per a hundred cent going would have been I am * * * die, die; nothing for; I have I want to to live just job myself. that is not too bad It done * * * ago nights I four Three or could have done a job guts. I and didn’t have put than that I better my pocket little six-shooter and I went down get through of those I some birds. walked there platform depot depot, and went out on of the depot, and Mr. Williams and Mr. front Barnard standing together; gun right out there I had were thought my pocket good and I ‘that is a damned get right of them.” I chance to two walked around times, them, couple up I hesitated walked closer to them, something all a sudden came over me and position put my ‘that would a hell of a I said gun my my pocket, in.’ I left the mother sister it, depot, loose of walked around and hid turned gun Sunday evening, out. I went there down my right up I saw Mr. mind then Barnard and I made previously wit- and there.” The had told defendant office, ness about visit and stated: “I to Barnard’s just politely you, bowed and ‘thank Mr. Barnard’ said and turned around and walked As I walked out. through up my ‘you the door I made mind son ” bitch, you going pay are for this.’ Brown, E. witness B. undersheriff Laramie County, during also saw the defendant time hospital was in him and also heard make some statements. He testified the defendant at appeared time rational and seemed to know what he saying; night 27, 1935, was that on the of October good gone defendant talked a deal after the others had and while witness inwas the room alone with the de- testimony of fendant. Part “He is as follows: Carroll; me P. told that his name H. was that his home Beaumont, Texas; thirty-six years was in that he was 28th; old November that he had a mother and sister there; twenty-one, that his sister was and mother his seventy-one; crazy, that he not was and had had two drinks; purpose that he went down there on to kill fire, him; (Barnard) going that he was not another man; Kenworthy that he looked for and kill wanted to him, too; Sunday, he that talked to Barnard on October 20th, at time (accused) Barnard told him he was up; him, up all washed that he thanked and made right (Barnard) mind then that he would fire never man; (accused) planned that he another had this for twenty-eight days; people did that he not want think crazy, they fellow, was like he did the other because he just doing; drunk, what knew he was that he was not either; gun bought Cheyenne gave he that and pawn shop.” for it three dollars at a jail, After defendant was removed to about No- acted, according he vember to the witness During he was time Petry, prisoner. that as a normal above Sholty, psychologist, as by examined Maude acting Daniels, on behalf mentioned, by Dr. and also Young, defendant, by and Doctors Work also and that acting testified Dr. Daniels behalf of the State. concluded of the defendant from his examination mentally defi- simple-minded and that the latter was cient; emotions control his he was unable to that should; under stress impulses person that normal unbalanced; mentally apt he would be to become alcohol; that unduly susceptible of effects he was memory, which is effect on the alcohol has definite individuals; syphilis especially certain marked in insanity; defendant’s mental is one of causes of of the homicide'he at the time was such that condition taking whiskey, voluntarily resist the could Mylar Dr. also testified at the time. that he was insane him at the He attended of the defendant. on behalf hospital. that for He testified he was time when days from defendant was removed after a number any statements hospital, he not accountable for was him, of the homicide de- and that at the time made wrong. distinguish right from was not able to fendant by testimony testimony somewhat weakened His contradictory the witness soon statements made Young testimony Drs. homicide. The after the They testified hereafter. both will be mentioned Work of the homicide. was sane at the time the defendant Expert. 1. Cross-Examination of stand, witness was the Dr. Daniels When attorney prosecuting on cross-exam- was asked ination, whether, opinion, defendant in the doctor’s he, act, fully of his if seriousness aware of the was father, mother and sis- defendant, letters to his wrote defendant, he, did not want ter, effect that to the chance, trial; he had no to come to his them

47 going himself; that he was not to fool that his chances greater hell,” no were than a “snowball but that he ready was for it. The doctor answered that counsel evidently objection had him. understood No interposed question. Later the defendant made question ground a motion to have the “on stricken questions and for the reason improper that said were and that the letters referred to therein were written in county jail some three or four weeks after alleged homicide and said letters so referred to are prejudicial defendant, question to this and the was im- properly court, hesitation, asked.” after some n overruledthe motion. Counsel to think that seems erroneous, action of the court was because the letters mentioned were never introduced in evidence. How- ever, cross-examining some latitude must allowed in expert. Expert Evidence, Opinion an In Lawson on Ed., page 274, 2nd the rule is laid down as follows: pur- permissible, “On cross-examination is pose testing accuracy, his skill and to ask the witness hypothetical inquiry, questions pertinent assum- ing having facts no in the foundation evidence.” Spangler, 576, In the case of Bever Iowa N. 1072, W. the court said: “It insisted allowed that the court co-defendant’s great cross-examining propo- counsel too liberties witnesses, particularly experts

nent’s used them. understood, think, experts may The rule is well be cross-examined on we purely imaginary and abstract questions, assuming facts and theories which have or evidence, have not foundation in the lowance the al- questions of all such rests in the sound dis- cretion the court. fairly Where such discretion is exercised, we will not interfere.” Taylor Co., In the case of v. Star Coal 110 Iowa among things: N. said W. court other “The cross-examination of some of defendant’s ex- questions objected pert to was because witnesses not In cross- of facts in evidence. assumed state necessary examining that such it is not a witness in examiner case. He himself to the established confine facts facts, may any for almost state of assume testing purpose credibility, the witness’ ex- knowledge.”

tent of his See to same eifect Underhill on Criminal Evi- dence, Ed., page 4th that where it is stated an expert may questioned be assumed witness facts other than in In view of these authori- those evidence. ties, say it is not can court clear that we that the abused Particularly is its discretion in the case at bar. testimony Dr. true view of in the case. Work other objection part “I testified as follows: asked without thought going point-blank him what he was become him, thought what the outcome this would be. he * * * said, hung. going He said he be He ‘That was going (referring Caldwell) to see fellow Mr. it, get hung. nothing There is I can do about I might money they (his folks) keep as well their good any up them to come home because it won’t do * * * again if I asked he under- here and see me.’ him working attorney’s I with district that was stood ** * I asked him if he knew that. and he said office him, no, thought trying and he said I to frame gang working was. He said ‘You I was with a but go against get anywhere you up the state when don't ” Railroad this town.’ or the Union Pacific substantially testimony the same facts disclosed This referred to in the letters were mentioned attorney. court And the action of the above prosecuting accordingly, cannot, to have resulted held mentioned prejudice defendant. argues accused that evidence of for the 2. Counsel hospital accused at the should statements made that the defend- been reason have admitted Mylar Dr. testified that time. was not rational at ant being a rational human defendant was not during forty-eight thirty-six the first hours after he argued hospital, was taken to the and it is testimony defendant’s is the best evidence mental directly condition. Some of evidence shows the state’s defendant, that the when he made the statements ad- evidence, in mitted was rational. The statements them- they by on were selves their face show that made being, though rational human even made while the de- physical fendant was in a condition. serious Whether think, person appears may, or not a to be rational we by witness, though expert. be shown not an 32 C. J. Furthermore, Mylar’s testimony im- 759. Dr. was peached. testimony complained think We properly competent was admitted. The was to as to determine whether or the statements were being. those of a rational human just

3. It is further claimed that the statements voluntarily mentioned were not made because the de- custody not, fendant was in the of the sheriff. He was least, technically under he arrest when made the evidence, main statements were made at the hospital. point importance, is not of however. The clearly record indicates that statements were not any questions by response put made in to him an law, were made officer of the but because the defendant 629, talk. It is stated in 16 that “an wanted to C. J. voluntarily by may which was made admission accused against though received in evidence him even it was officer, or while was under made to an accused arrest custody.” approved by or in The rule was this court Rotolo, 181, Wyo. v. 39 270 Pac. 665. See also State State, 78, 1030, Clay Wyo. 252 Pac. and v. Strand State, Wyo. 86 Pac. 544. We think there admitting ground the statements on the was no error here under discussion. Petrie, jailer E. William Laramie

4. One County jail, was as a witness and called state jail. he testified that he observed defendant while in permitted testify He also that the conduct appeared actions of the be that defendant of a nor- prisoner. mal It is contended was a that this conclusion testimony of the witness and that the should have been proper, We think excluded. evidence was >. objection that the is without merit. 22 C. J. 557. Question. Expert Testimony Hypothetical 5. — expert Dr. Work was called as an state testify sanity. He examined defendant’s jail 1, 1935, again accused while in on December 22, 1936, February and also saw and observed the de- during fendant on the witness stand the trial of this case, testified, testimony. heard He all of effect, during his examination of defendant he man; insanity found him .to be a normal of that importance; of relatives the accused is of no that nothing suggestive he found that the defendant was syphilitic syphilitic any symp- with disease afflicted or indicating any upon mentality; toms effects his that importance testing the Benet test is minor in of sanity insanity person; or of a that defendant was neat tidy; that grasp had as much the details of railroading switchmen; for a most that man of his position in life and education he had a rather remark- memory; “Speaking solely able at the moment upon demeanor the witness stand I came to the conclu- sion that he showed at time rather a remarkable life, grasp past and recollection of his the events itof interrelationship; and their that he had himself in quite well main under control.” doctor The testified drinking intoxicating detail as to the effect liquor might have had the defendant. He told symptoms existing insanity; alcoholic that such insanity deterioration, by characterized mental delusions, persecution, and that suspicions certain during very rarely; his examina- amnesia exists symptoms found none of these tion of the defendant he exist; contrary seemed to the defendant that on the going average in what was amount of interest have the strain; on; that his emo- that he was under no mental control; no delusions and that he had were under tions relating testimony no hallucinations. Part of the 1, 1935, is as follows: examination on December killing episode, the getting specific down to “On charged, him this I asked he now stands for which question: was member. Was shooting place? ItA. take did ‘When this Q. Sunday? I don’t re- Sunday. A. What time Q. morning A. It afternoon? or afternoon, Q. Early or afternoon some time. Q. Where afternoon. late in was the afternoon?. A. Late shooting? was. depot; where it that’s A. Q. Q. usually carry gun? How did A. No sir. You a bought day? you happen A. I one have it, Q. bought gun myself. it must kill A. I When? Q. Saturday. Friday A. I don’t been or Where? have Q. you remember; Cheyenne junk shop. How much did Q. gun pay for kind of a it? A. Three dollars. What Q. No; Thirty-two. pistol. A. was it? A. Automatic? Q. Q. bought Friday Saturday? A. sir. You Yes Q. A. You do not remember where? No sir? What yourself big trying ? idea in kill A. He wouldn’t is the give left. you? A. figured nothing me a I I had else service letter and Q. taken care of The Brotherhood would have Q. you you today? insane A. No. Do think are Q. No, you you I am think in- not insane. Do were Barnard, you last talked with Mr. sane the time week Q. happened? before this A. I was not. or so does What being you? you insane mean to A. I think are just off; sense; crazy; world is you have no fact 99% time, way my all of the in estimation. Q. agree Why? they you? No; with Because don’t A. Q. just way they long you act. How a time do suppose you going there was didn’t know what was on? hours; Q. say or four I Three would three hours. A. begin? three did that hours A. From When in the afternoon. When was the next anything somewhere Q. thing you knew days A. about? Three or four afterwards.” During examination, however, the second de- having any knowledge shooting fendant denied of the beginning at testimony all. Toward of the doctor’s might any he opinion stated: “I state that that I am give my asked to and do here will be based on examina- my knowledge subject reading my tion and room, I what have seen of the defendant in the court testimony bearing may on his condition that I have court; heard in the I think that I have heard it all. I mention that at this time I because think would sim- plify story.” Later he was asked whether or not opinion he had an mental state of the defendant 27, 1935, on October and he stated that he had. Asked on, what pri- it was based he answered: “It is based marily upon my patient my examination of the knowledge time, however, of mental diseases.” At that asked, state, he was not nor did he what that mental was, testimony state and after some further the follow- ing proceedings place: took Work, your “Dr. from examination of the defendant having testimony court, you and after heard the do opinion have an as to whether or not the defendant was feigning simulating insanity or the time of the crime ?” objected invading province This was to as jury. question The court then stated: “I think the should take into consideration the observation of the your defendant court also. You had better re-frame question.” question then was asked: Work, your “Dr. from examination of the defendant your court, and from observation of the defendant testimony court, you any and from as to simulating insanity opinion have whether or not feigning the defendant was 27, 1935, being October date that Carroll killed Mr. Barnard?” objection, Over opinion he stated that in his the ac- feigning, cused was objection and over further judgment stated that the defendant in his was sane objections were, of the time the homicide. testimony there awas conflict in the and for that opinion reason the witness could not what state was, upon testimony; if by based such his testi- mony province jury, he would invade the question put that whatever was to him should be in hypothetical obj overruled, form. The ections were assigned this is as error herein. Counsel states in his conflicting testimony brief that “There was toas how intoxicating liquor by much appel- had been consumed lant the afternoon of the homicide and toas his actions liquor. when under the influence of There was conflict- ing testimony acting pe- as whether or not he was culiarly prior conflicting to the homicide. There testimony Mylar as to what Dr. said with reference to his condition.” generally

The cases testimony hold that if the is con- flicting expert an witness cannot be opin- asked for his upon testimony. which is based ion such The cases on subject are collected in L. note A. E. 1478 to 1190; 1489; Wigmore Ed., L. Evidence, 98 A. E. 2nd assigned jury 681. The main reason Sec. is that premises upon know the basis or should which the founded, conclusion witness is if and that known, is not basis conclusion is is worthless. It undoubtedly prem- true that unless the know the ises, they appraise are not able to value Still, might give they weight an conclusion. undue conclusion, they when have such confidence in the all, But, expert. after we are here confronted with a practice, strange matter seems somewhat n solittle weight given by has been the courts to the by opportunity possessed the defendant as well as the state, premises find out what the conclusion is Furthermore, cases, opinion, though in some based. an upon conflicting evidence, apt based to disclose the testimony case thereof. Take the at bar. The

basis intoxicating- liquor con- which was amount conflicting, main the defendant was but the sumed brought about defendant’s own testi- conflict was mony. that more was consumed than He stated witnesses; by own he testified mentioned his amount nothing happened about that he knew of what after afternoon; in the inconsistent therewith three o’clock testimony his own witnesses. When Dr. Work is the of feigning gave opinion was am- his that the defendant knew, nesia, jury necessarily, that the did the doctor testimony of the the defendant. In other not believe basis, words, they premises, upon knew the the which opinion. incidentally It is true that he he his based credibility passed upon the of the defendant. That is jury, ordinarily the of the and not that of a function require many hypothetical the And of cases witness. testimony conflicting, question upon where the the ground usurp that the witness should additional jury. Wigmore, of Professor in his province Ed., 673, Evidence, 2nd Sec. believes this to be work on theory. expert,” states, he “The “could not a false would, jury may province usurp if because the that testimony accept opponent’s.” reject his his still hardly in this can believe that case And we right, duty ability pass deprived of their were credibility merely the' because upon defendant him. did not believe Dr. Work Evidence, Ed., Wigmore on 2nd Sec. states: go, require- question hypothetical must as a “The and nau- have become so Its abuses ment. seous obstructive remedy extirpation will suffice. no short of incubus; Law necessity, logical practical but a It ais all, (in logic Mr. After must here be sacrificed. logic. It phrase) is much more’ than Holmes’ Justice is question, strange hypothetical irony which truly features rules is one of the few scientific evidence, should have become that feature disgust does most to men of with science the .law of hypothetical by question, evidence. The misused clever, clumsy practice and abused has led to intolerable obstruction of truth.” suggests remedy any preju- author for might right dice which result lies in the of cross-exam- part opposing on the ination In counsel. the case of Riley, (2d) 1041, expert State Ore. P. an had had the defendant under observation as his sanity, testimony and had also heard the of the wit- opinion nesses the defendants. was He asked his sanity, as upon testimony to defendant’s based well as appear observations. It does not testimony conflicting, whether or not the so that say here, we point cannot case is but we mainly refer to it because the court calls attention to right of cross-examination mentioned Professor Wigmore. case, however, There is one which seems to opinion be in full accord with the eminent author in work his on Evidence. That is Commonwealth v. Russ, Mass. N. E. 176. The court stated as follows: practice “The correct the introduction of such competency to testimony witness knowledge expert well of an is settled. The testify upon opinion to to his rests unusual extraordinary experience, superior and to witness, ordinary persons. being qualified that of particular, may upon opinion in this then his base facts by knowledge himself observed or within his own and by himself, upon

testified to or in facts assumed questions put facts given partly supported by to him and either admitted by testimony or already of other witnesses given trial, upon or to be at the or facts derived partly from and one source from the other. It necessary is in all cases that the facts be stated in hypothetical question, although form of an this is generally .permissible. sought opinion an Where is upon substantially testimony by uncontradicted heard personal the witness with or without his observation on part, question may upon express be asked testimony reciting assumption without implied or in the conflicting testimony, is question. there Where it, heard witness, present in court who has been opinion as to a mate- an may rial formed if he has be asked gives requisite him respecting which his skill point, upon that opinion, express an based qualification to in the affirma- parts If his answer is testimony of it. given in may tive, testimony and state the facts he select then sig- true, opinion, if are most which in his of an formation pertinent as aids nificant led his mind is opinion and to what conclusion a criminal facts. In the trial of such consideration expert permissible case, to ask an witness it is or other opinion his observations and an he has from formed if testimony heard in court as to examination the evidence. from qualified give which he point in issue about answering Upon may affirmative opinion. The direct examination asked to state that be may stop, leaving develop the other side to then * ** may detail be desired. As to in whatever reasons the introduction of evidence and the order of form of questions much must be left to discretion of the judge.” presiding may specifically be that the court states that It noted expert may opinion an be asked his based witness observation, testimony examination and heard court, conflicting or not. That is the exact whether respect in the at bar. In that case the case situation just materially from most cited differs of the cases on subject. It is hard to reconcile it with other cases jurisdiction, unless the court the same meant from stated the rule therein to cases similar to that confine dealing not, however, we here. are which are We with think, adopt upon, we definite rule called mentioned, govern except here situations should reasonable, say it would seem to least in represented counsel, in which an accused is cases given right should be the of some consideration that cross-examination, general even in face of the rule guilt prove by the defendant’s must com- that state evidence, petent and that it would seem be incon-

57 case, lengthy reason to after sonant with reverse trial, premises of an expensive merely and because definitely expert’s opinion been shown has not before, oppor- when, State, the defendant’s as stated respect complete that of tunity full and in that is as the State. generally requirement of the rule think that

We stated, as above has been sub announced the courts stantially stated that case at bar. We have met sanity opinion of his as to the Dr. Work testified upon primarily his examina the defendant based knowledge upon mental and his tion of the accused agreed that an authorities seem to diseases. The upon expert may opinion an base his examination accused, particularly where he has stated to the an Evidence, Wigmore, he found. details what cited; Felter, 675, Ed., 2nd and cases State v. Sec. 8, 75; Roselair, 865; People v. 57 Or. Pac. Ia. State 256, 674, Faber, E. N. Y. 92 N. 20 Ann. Cas. v. State, Ross, 475; 879; (Mo.) S. Yates v. 178 W. State 9 Ann. 56 S. E. Cas. 620. While 127 Ga. doctor, objected put questions and the last case, herein, in the it is reason the evidence embodied nevertheless, doctor, opin ably based his clear upon examination of the accused “primarily his ion fact, knowledge mental In upon diseases.” his categorically expressed in answer to these opinion little, anything, questions if added to his categorical already insanity testimony. He had testified that case; bearing no relatives had of the defendant’s during nothing, examination that he found indicating insanity syphilis, defendant, on account of indicating symptoms alcoholic in found no mainly If the sanity, upon which the defendant relied. fact, had, slight bearing case in the some evidence opinion, upon details thereof doctor’s easily have been discovered cross-examina- could tion. that We conclude there is no in connection error point with the instant under discussion. Young

6. Dr. also was called the state an ex- as pert. your He was asked: “From examination and observing trial, prelim- from this at the defendant inary hearing trial, present you any and the have opinion gentleman of the mental state of this as of the Q. day date of the 27th last ? October A. I have. Doctor, your question opinion what is toas of the insanity sanity or of this defendant at that time? Mr. object question ground Lathrop: We on the improper; pass is it upon allows the witness to case, province, in the is the evidence an exclu- jury, province, calling of the and sive for the conclu- permitted sion of witness.” The doctor was and answer he stated that he believed the defendant following question: He was then asked the sane. “Doc- tor, your opinion what is based? A. It is based upon experience.” examination and also may, accordingly, It Young be noted that Dr. based opinion upon his observation and examination of knowledge subject gen- the defendant and his heretofore, erally. permissible. As Hence, stated that is permitting no error committed the doctor to conclusion. state his Insanity.

7. Cross-Examination of Accused — defendant, upon cross-examination, The was asked drinking, among things, to his reference other drinking during to whether he was 1922 to regular job; testified that he then had drinking not a he was man and did not drink much during following: that time. Then the record shows the “Q. drinking, then, you You were not when killed May 18, Mr. Stuart in Jacksonville on 1926? object Lathrop: Mr. I to that. brought

Mr. Dillon: It a matter of fact. He has what to know we want everything in his life and out he crime. question another It is not a did there. ask, question he can only Lathrop: There is one Mr. knows that. and he Disregard objection is sustained. The Court: jury. answer, gentlemen question only question he Lathrop: knows the Mr. Counsel ask. can right. All The Court: acquitted?- Q. indicted, tried and You were object question. Lathrop: to Mr. I Yes, already ruled on this court has The Court: objection questioning. The is sustained.” line asking questions assigns the of these The defendant crime, error, attempting not to show a collateral as as the defendant has for pertinent case. Counsel question. purport of the It misconstrued somewhat and was ac- killed Stuart the defendant is not whether trial, whether he was intoxicated quitted but after ques- part At the main least occasion. a certain relate, relates, may to the fact or be construed tion homi- intoxication. The defendant’s and incidents acquittal, 1926, and are trial followed cide time, place merely and circum- to state the mentioned naturally prosecu- will maintain Counsel stances. crime, bring subterfuge to in a collateral used but a tion true, question as a whole is not is if that case, it inquiry in the instant should germane for the C. J. 628. Counsel 70 asked. have been Jones, cases, among 48 cites, v. other State accused 442, 505, said: where is 139 Pac. Mont. questions so frame proper counsel to for never “It is are not ad- of facts which existence to assume as independent evidence.” if offered

missible broad, however, and is incon- statement, too That infra, Eads, cited v. case of State with the sistent attorney a state case, assumed prosecuting 60

of facts which could not have been admissible as inde- pendent evidence. hopeless permissible

Courts are in conflict as to the relating extent cross-examination of a defendant subject a collateral crime or act. The cases on the are 888, in 70 J. 882 to 6 L. collected C. in A. R. 1608 to 1648; 348, Wigmore, Evidence, R. 25 A. L. 389 to Ed., 987, separates 2nd Sec. where the author the cases dealing dealing with extrinsic evidence from cases with State, the extent cross-examination. In Eads v. 17 946, Wyo. 490, question 101 Pac. it was held put ordinary to an witness on cross-examination as to whether not he had been arrested and convicted of carrying weapon properly a concealed excluded. case, clearly State, In that and more v. Anderson 345, Wyo. 373, 1047, 27 196 Pac. and followed in State Vines, Wyo. (2d) 826, 54 P. it was held that extrinsic evidence to contradict a witness on a collateral improper. State, Wyo. matter is In Rosencrance v. 952, question ordinary Pac. was asked anof charged witness as whether or not had been with gambling in another case. That was held to be im State, proper. Wyo. 428, In Pinkston v. 240 Pac. 219, ordinary an witness was asked whether he did not question prostitution. run a house of The was held involving proper, turpitude. moral In v. State Sor rentino, 420, Wyo. 224 Pac. a defendant on for murder was asked it trial when he was that had paid moonshining. question a fine for was held to improper. case, In line with the Rosencrance but accused, applying notes, the rule to an it is said in 1611, 1616, 1624, 6 A. L. generally R. it is that held inquiries that of an accused on cross-examination as previous prior to arrests or indictments are not com petent credibility, tendency to affect his and that “the questions previous to be to exclude seems as to a trial resulting guilty.” not a verdict of In the case of People Cascone, 287, it was 185 Y. 78 N. E. N. improper held a cross- that it is defendant on to ask previously tried examination whether he has been convicted, for a appears crime unless that was by acquittal because a is but an triál followed accusa- met, successfully tion tend and does not to discredit witness, incompetent purpose. and that Hence merely question it would seem that a for the intended purpose disclosing acquittal the trial and in 1926 would proper, not have been it should not have and pertinent been asked unless the matter was for other reasons, legitimate scope within the cross- was examination, in view of And the direct examination. proceed phase we shall to consider that the case. against grudge

The defendant testified had no that he deceased; much; ordinarily that he did not drink intoxicating liquor that it did not take much make drunk; intoxicating liquor go him would to his stomach; brain instead of his “it turns me nuts every I time drink.” He related intoxication 28, 1935, September Laramie on and the and severe fight bloody time, engaged in which he and claimed that as result of his intoxication he became amnesia; say, afflicted with is to that he did not place. know what had taken related He other incidents place Cheyenne. a similar nature which took Among testimony, following questions other “Q. appear answers in the record: You must have happy faculty some liquor to take fewa drinks of you just wildly get somehow or other are drunk. A. I ** * crazy. Q. Crazy? Q. Absolutely you A. When go fight crazy, you Right.” and are abusive? A. In words, attempted give other the defendant question understand that the here homicide took place because, only because, of his con- intoxicated following dition and the amnesia it. attempted He general disposition, character, trait, show or fight, quarrel-

when he he would be became intoxicated abusive, would some and that at the same time he nothing put his character know of it. He thus in issue He at- for violence under the conditions mentioned. general dispo- tempted emphasize to illustrate or such sition, fight by or trait at Laramie character fights by Cheyenne. why not illustrate or abuses at But defense, it was basic for his further? It foundation jury. indulgence or The at least for at the hands of the character, disposition, existence of such or trait actual mainly important Upon his to him. rested was Jacksonville, incidents of the homicide at case. The n significance. accordingly, peculiar place, if it took had a general disposition, existed If such character trait time, fortify by it or it at that evidence to establish competent by incidents of that time was as as evidence fortify by incident establish or it which he tried to Myers place Laramie. As was said which took at State, (Tex. Appeals) 177 S. W. 1173: Crim ago years condition six or more evidence his “The issue of what his condition would be admissible on the homicide, any if there were was at the time of the tending introduced evidence facts or circumstances mental condition to be other than that of a show his immediately preceding the man at the time of or sane plea temporary aberration homicide.” The presented case bar at best but a mind made plea, as dis- under circumstances weak defense. Such things herein, very arouses sus- in the nature closed would, ordinarily, reject average picion. man By furnishing pretext. evidence of but a once as -at however, showing character, that under (cid:127)substantial previously mental condition circumstances similar ready probably same, would credence more Hence, of fact the given plea. if as a matter to his place of de- reason took at Jacksonville homicide other amnesia —in intoxication followed fendant’s words, question questions if or of counsel for prosecution had he been answered to the effect that time, was drunk that would at it would seem that this strengthened have would have had the defense and considerable influence on the in favor of the de- fendant, degree at least in as crime is so far concerned, notwithstanding the fact disclosure tendency prejudice. of the homicide would a to his have We do not know what the defendant’s answer would say ques- have been. Hence unable we to that the are and tion answer would not have been favorable to the defendant, prejudicial. instead of If this is conclusion correct, would, blush, least, then it at first seem follow if answered that defendant had occasion, on not drunk would weak- this have necessarily so, ened his defense. Not of course. The might reasons, homicide have been for other committed as,, instance, Simply for in self-defense. because de- general disposition fendant had a trait or character or to commit when acts violence intoxicated would not show that he would in not act self-defense when sober. may be, state, However that in of defendant’s view testimony, cross-examination, properly, inquired as to whether not or the character or trait men- above in tioned existed 1926. And view of the defendant’s testimony fight further as to his at Laramie and the Cheyenne, right, incidents in the state a in that had connection, inquire fights, to other if as too legitimate go remote. itWas fur- cross-examination to ther and make mention of the homicide 1926? The defendant, stated, trait, as claimed to a have certain disposition. opened character or He the door in- quiry subject. argument into that It is too clear for thereupon right that the inquire state had the into extent, strength, weakness, of that trait or fact, thing character. In very is which the testimony relating defendant did his to the incidents already Cheyenne He mentioned. Laramie go. merely go attempted state did not far as the There is mental limita- herein involved a trait —with tions, true, said in still mental trait. It is but put person 32 C. J. has issue 760 that: “Where time, person may sanity, particular at a other inquire into and after rebuttal his condition before Holmes, Fed. In U. S. v. Cliff. Cas. that time.” acts, conduct, 15,382, “Evidence No. it is said that: declarations, the time both before after committing tending state of the act to show an insane bearing having mind are some also admissible as controversy.” Adams, point v. the exact In Robinson 369, 413, court, insanity, speaking 62 Me. the states great parties liberality that: rule allows to both “The length the to as to kind of evidence and as time State, over extends.” also Anderson v. 209 which it See 36, 171; Bower, Ala. v. 142 Ind. 194. 95 So. Bower testify to himself chooses to inci- When the defendant trial, previous act which he on show- dents to the ing involved, particular hardly he can mental trait expect be to limit the State should confined its particular In the cross-examination to those incidents. 670, Wright Tatum, Finneley case of v. 5 Clark & English 575, question Reprint 559, as arose 7 many years prior to the whether or not letters received will, were relevant time deceased made when the insanity at the time to determine the of the deceased they were of his will. It held execution admissible, not fact it had been because of the any act reference to did with shown that the deceased held, effect, them, act of that if some but it was shown, they had reference to them been deceased with And in that connection would been admissible. have said: Justice Pattison insanity) (the in this embraced case “The issue deceased) (the state of Mr. Marston’s

consideration life, and, long during as seems of his mind to the whole might long me, every shown and life be of that act proper of that issue. determination was relevant to the * * * Every party’s is relevant life act of the therefore, anything course, he can be issue. Of shown document, regard any written done in to have being evidence, document it follows that such written received.” itself be must made,

Approving it is the statement thus stated Evidence, Ed., p. 16th 58: Greenleaf by “Sanity insanity course evidenced are of conduct; (in person’s Mr. in fact the words of Justice Pattison), every party’s act of life is relevant issue.” State, approved in Howard v. The statement was also State, 209 Ala. 172 Ala. 402. And in Anderson rule have become a maxim So. this is stated to court, in connection with facts similar of the law. The here, stated follows: to those testify, did not defendant “In instant case the objections were made and questions to which and sought examination of a insanity, porting cross- propounded were on the state testifying non-expert to his witness pur- and crimes and referred to other offenses All of committed defendant. to have been knowledge, information, opportunity of a non- the expert of the come maxim of upon which rested or which is basis witness on is insanity competent. were It has be- opinion of law, insanity where relied that is a as defense, every party’s act of the life a is rele- issue.”

vant State, 565, Hall 31 Tex. Crim. In the case of to commit mur- indicted for an assault defendant was part follows: court in as der. The said was, he that theory of this case “The defendant’s to form assault drunk at the time of the was too kill, the assault specific and that intent to entertain the To impulse, from malice. and not from a sudden arose meet malice, this, prove and well as to motive as permitted prove of ill-treatment State was acts wife, run and bad conduct defendant towards ning1 including through years, threats to back several times, life; they separated the last of take her four separations Arkansas, Springs, occurred at Hot 1892; they together April, in had not lived since separation; latter and that each reconciliation oc theory curred of his solicitation. To meet defendant’s temporary insanity produced from the recent use of intoxicating liquor, acts, previous all such ill-treat ment, mony, legitimate proper and threats were testi malice, part, show ill-will and motive on his explanatory purpose making and also as of his real alleged. objected the assault The assault to was so con with the other facts of nected as to case render it purposes admissible for indicated.” Hopps People, In the case of William v. The 31 Ill. 385, case upon a where the defendant was trial on the charge murder, held, sufficiently court as shown syllabi, by two as follows: general rule, party upon “As a on trial where a charge murder, prosecu- competent for the it is prove years previously tion to had committed offense, as, by smug- another gling. violation of revenue laws * ** insanity, But where the defense is and the person coolness unconcern of the at the time he justifying committed the homicide are relied as plea, competent inferences favorable that it is to show prisoner early years engaged had been calling smuggling, tending the the was to rebut perilous deportment inference that his on the fatal occasion sanity.” attributable to a want of State, 385, In Baker v. 190 Ind. 129 N. E. in- volving charge during robbery, for murder pleaded insanity, which the defendant evidence of admissible, former robberies held was and the court plea insanity, stated “on defendant’s whole investigation.” open life was thrown An instruc- tion, however, limiting purpose evidence, given. Wigmore (2nd Ed.) Evidence Sec.

67 discussing testimony admissible in connection with single plea such a states no of the defendant act hand, decisive; any “can of itself be while on the other significant may act whatever to some extent. The rule, then, any first fundamental will be that person all conduct of in evidence. is admissible There is no restriction as to the kind of conduct. There none; specific can be for if a act does not indicate insanity may sanity. certainly it It will indicate throw light way upon one or the other issue.” The author subject. has collected a number of cases on the And see Williams, 134, further Commonwealth v. 307 Pa. cited; Lane, 513, People

and cases also 101 Cal. rule, then, unmistakably clearly 16. Pac. This so authorities, certainly permitted attested numerous cross-examination, 1926, on the homicide of in view of testimony relating of the defendant to other inci- only reason, dents as above mentioned. The accord- ingly, why question which could be advanced under asked, discussion should not have been is that it was unfair on the whole to disclose the homicide auxiliary policy applying the so-called mentioned thus Wigmore Evidence, Ed., 2nd Sec. where the author states that cross-examination of misconduct legitimate enough ordinary for an wit- would be against prejudice ness would at times create unfair if accused his cross-examination. But even we Wigmore (which evidently should admit Professor question do) himself would not that the should not on altogether propounded, have been that account entirely different clear that we have here a situation ordinary presented in which in the cases from misconduct or which counsel have been condemned for relating questions a have been reversed because of effect, any, prejudicial if could collateral crime. The questions nearly great not have been as claimed. having jury in as to been answered left the doubt affirmatively whether he have or would answered them negatively. If he was drunk on he had answered that stated, probably the occasion have influenced it would jury knowing the favor. Not whether defendant’s it, indicated, answered, already have would thus jury doubt, but, the circum- left of course in under the stances, strong impression way no one or the other was, Again, probably, left minds. the on their court objection jury the and the to disre- sustained warned gard question, which, circumstances ex- under the isting case, greater probably had this would have might effect than Aside it have had other cases. that, testimony from must be remembered that defendant, hospital, shows that at the when told right; dead, “That is C. C. Barnard was said: all else; anybody that son of a bitch will never fire that is my credit,” meaning, shooting perhaps, three to shooting himself and the deceased herein and at testimony Jacksonville in 1926. The further shows that bought hospital: defendant said “Had I gun got machine instead little and of that six-shooter a dozen of those of one and then did a fellows instead good job myself per I would have been a hundred apparent testimony cent.” It if is this to be credited, of, error, complained the error now if it was cannot, comparative insignificance think, is of we case, prejudicial particularly held to be in the be testimony showing view of the fact that the of the state guilt strong convincing. is In defendant Vines, supra, court the case of State v. this said: guilt clear, or incidents of unfair “When errors may ignored, prosecution sometimes be conduct greater guilt likely doubt of but the more are rights the effect the substantial errors to of the ac- cused.” likely question jury whether it is that the would returned a different verdict than the verdict

have guilty degree must, think, of murder in the first we negative. answered, hesitation, without in the argue 8. Counsel for the defendant that Instruc- given by tions No. and No. the court are erroneous in that of these both instructions state that it is not necessary prove for the state to that the defendant was beyond jury sane reasonable doubt before the should guilty. nothing find him We find in either of these effect, instructions we find no merit in the instructions, contention. It is that neither true of these prove, make reference to what the state must any question sanity insanity, make mention fully point but No. 12 Instructions and No. 13 cover the correctly and proof informed the toas the burden of phase necessary case. It is not for every phase every to court mention of the case in given. assignment error, instruction which is This therefore, overruled. must be Instructions.

9. Modification of having jury, hours, after been out some returned open judge court, ask the to for additional informa- prosecu- tion, for both counsel the defense and for the being present. following tion proceedings: The record shows the you I THE understand COURT: that what desire is interpretation meaning an or definition of the of life imprisonment? May say something Yes, JUROR GNAM: sir. I fur- penalty that, not, ther on as to whether or where a given, any imprisonment pardons, can life be or com- paroles, sentence, mutations of can reduce that? your question, Now, THE COURT: in answer to gentlemen, Instruction No. 11 of course itself defines imprisonment.” “life what is meant It is defined imprisoned in these words: that instruction “be in the penitentiary at hard labor life.” That is a definí- Now, imprisonment Wyo- under the law. life

tion of first, being ming, say you this a case I will fixing power penalty, has the where possible verdicts that are here be to certain of the being fact, say rendered, will and that the Court Wyoming what called the State you have in is that we Reform; Board sometimes this Board of Charities to as the Board of Pardons and popularly referred is powers certain with refer- has Paroles. That Board cases, could, powers those if ex- criminal ence to put operation, apply impris- into to a life pressed or sentence, as well as to sentences other cases. onment judgment they and discretion They certain have a Paroles, Board of Pardons and as a State can exercise have, they they if powers as are ever exer- such cised, operative on a life sentence. be could any there definite time Is that this GNAM:

JUROR words, up? In other could it be done could taken now, now, years ten from years from or fifteen? five There is no set time. THE COURT: any It could be time ? done JUROR GNAM: Yes. That is a matter that rests in THE COURT: to; that I referred of this Board discretion absolutely their discretion. a matter of Does an- question? swer jurors. I will ask the

JUROR GNAM: ques- Does that seem answer THE COURT: fairly well? tion Yes, think I so. GNAM:

JUROR right. may again All You retire with THE COURT: instructions, course, of take the with and the bailiffs you. excepts Defense herewith The LATHROP:

MR. by giving instruction and definition of the above the Court.

THEREUPON, jury further then retired for deliberations.

It is contended that the of the court here statements attempted set out an modification of Instruction 11, 33-902, No. and therefore in violation Section Wyo. 1931, 6, Rev. St. which is as Subd. follows: argument begun, “Sixth —Before the of the case is immediately, proceeding the court shall and before business, charge jury, charge with other the the court, writing by party shall be reduced request if either it, charge charges, any or and such or other charge provided section, or instruction for in this when given, orally qualified, so written or shall in no case be modified, any explained jury or in by manner court, charges and instructions, all written by jury shall be taken in their retirement and re- court, turned with their verdict into and shall remain papers on file with the of the case.” do think that We by statements made properly court can be considered explanation to be an They modification Instruction No. 11. relate merely power Pardons, of the Board of power which cannot be and is not exercised until after con- viction, relates, therefore, to an extraneous matter. is, however, further, It contended that whatever state- by were ments made court should have been in writing, provisions under the of the law quoted. above objection We think that this is technical. No such ob- jection was made in the court below. It is at least doubtful statement can be considered as an evidence, instruction. It does not relate to the nor to applicable the law in the case. It matter, relates to a before, which as stated could be considered only of Pardons after a Board conviction. In the case Skinner, Va. 101 W. State E.S. court, objection, a similar stated as follows: questions “In answer to the the court following punishment earlier defined the the several guilty under the The indictment. verdicts and his counsel answers accused present, questions were and the reporter. were taken down court attacked, is not but of the court’s answers correctness alleged were not reduced because such answers error is bearing writing. whatsoever had no These answers to applicable the evidence. evidence the law the on We lation of Section instructions). in hold such answers were not vio- therefore 22, 131, (relating Code” to written Ch. Kennedy, 165, 82 Mont. In the case of v. State having jury, deliberated for some Pac. the after information, time, court to obtain some returned into the what was meant the use of wanted to know years years” five in the instructions of words “two penalty for the offense with reference the court court, judge open replied charged, whereupon, the person must be confined it meant that five than two nor more than prison for not less state Continuing, he said: years. sen- in law the indeterminate we call “It is what many fixed, Formerly but for sentence was

tence. indeterminate known as we have what is years fixing sentence, mum, and the maxi- the minimum the court more than one-half the minimum must not be meaning Now, provi- that is maximum. actually guilty found must that man The time sion. serve Board fix imum.” governor and the State hands Pardons, The as I understand. court does not all, time at but the minimum and max- actual objection made in that case as in this: The was have been reduced court should these statements objection writing. the court overruled the But committed. error was held that no relating purpose which statutes The main have been enacted is stated instructions written Conway, Rising 7 Ind. as follows: etc. Co. Sun severely difficulty, remedied “The evil to getting exceptions bar, a bill of felt charge. faulty fully embody the act should would receive such beneficial construction as therefore designed.” object effect should Brewer, subsequently a member of the Su- Justice States, preme the stated in Court of United State 302, 320, Potter, 15 as follows: Kans. * * * may purpose “It be remarked that the of this rulings secure defendant the exact

statute is to of the court in order that he to the may any avail himself of rulings; error in for it was not intended to cast those court, any unnecessary hamper burden nor to jury; or restrict communications between the court and fairly pur- that it should be construed as to secure that error; pose, weapon and not made a mere of technical questions, in reference to answers to there is nothing require questions to to be reduced to writ- ing they put, trifling compel before are it would seem to be so reduced when simply the answer the answer is responsive written depends meaning upon for its the un- question. that, by It seems to us tested this rule, the oral statement in this case must be held not ground a violation of the statute and not for reversal. used, all, Many words are but after it amounts to no negative reply question more than a to the asked.” So, too, bar, many in the case at while were words used, reply court was in but an affirma- effect proceedings mentioned, tive answer. The above con- taining court, the statements of the were taken down reporter, extended, in shorthand court were us; accordingly, now purpose are before the main mentioned, quoted for which the statute above above fully passed, seems to have been subserved. Per- purpose haps of the statute is another to enable the given by court, jury to read instructions so as compelled rely on their not to be recollection of the they But would thereof. not have been contents misled Moreover, it is stated in 17 the case at bar. C. J. 353: authority “Although contrary, there is some giving jurisdictions of oral instructions most in contrary not to a statute is reversible error if the in- injure proper and do Espe- structions are accused. cially is this where the true instructions were taken stenographer, down the official or were reduced to writing immediately they given.” after were opinion may among

Whatever differences of there be courts, just think we that what in the quoted text majority stated applied to be rule should be bar, the case at and that the instant contention should be overruled. Referring

10. Statements Board Pardons. 32-201, 1931, provides Rev. Section St. that an ac- guilty degree cused found of murder in the first shall death, may qualify suffer but ver- their by adding capital punishment,” dict thereto “without qualified, person and if so convicted shall imprisonment sentenced for life. It is contended the reference made in the that statement of the trial judge power above mentioned to the of the Board highly prejudicial defendant; the Pardons was to tendency jury bring it to the to had a cause in verdict a degree murder in the first without the above men- words, qualifying if such had tioned and that reference made, jury might the not been have returned verdict a resulting imprisonment. in life We have all examined by counsel, of the cited to us authorities as well as Many by those cited counsel others. for defendant instance, application herein. For have no he relies State, heavily upon Howell v. 102 O. S. E. 131 N. merely jury, fixing the That holds that 706. case in degree penalty murder first under should fix it in view statute ours of the facts similar by and circumstances shown the evidence in the case. bearing upon question us, before will It has no by clearly be cases from Ohio which will be seen Again presently. considered he relies State Dooley, (Iowa) which 57 N. W. holds that is not the trial court to refuse to instruct error for pardons applicable regard persons the law of degree. murder in first We think that convicted of proposition holding is a is correct. But alto- which gether from that confronts us here. different bearing by which counsel have a herein cases cited presently. referred will be determining us, point before we should take

In think, consideration, prose we cases which the into cuting attorney clemency reference has made to the extended, conviction, may be after to one sen imprisonment. life Such have tenced to statements an subject by on the same to statements effect similar They judge. call to the same attention trial ultimate following by counsel to the or similar end. Statements by courts : have been considered effect “Gentlemen knowledge jury, it matter of common is a penitentiary only eight for life means sentence give sentence, you life years; if the defendant a eight years will home in at the end will be back ready some to shoot other man.” Such time appeal (an wholly appeal involve an absent statements judge made the trial in the the statement case from bar), of death to inflict sentence because of the probable possible or reduction in sentence an government. department of the other Courts have though all, most, not in instances held such statements generally, improper, also but have and with but to be exceptions, ground held them not to be sufficient few for the reversal of a case. Underwood v. Common 467, (2d) wealth, (Ky.) Kentucky 99 S. W. other cited; 304, People Murphy, v. 276 Ill. 114 N. E. cases Junkins, 588, 689; 609; v. 147 Ia. 126 State N. W. 89, 183; People, 53 124 Pac. Hillon v. Colo. v. Wechter 280, 250; State, 149 People, 59 Pac. v. Colo. Jacobs 76 723; 622, Stratton, 60 v.

103 Miss. So. State 170 Wash. (2d) State, 666, P. 621. In the case Sullivan v. 17 of 312, 318, (2d) (Ariz.) 55 P. stated: the court alleg-ed objectionable argument “The other is that county fact, attorney so well referred to the known intelligent among all citizens that it would almost seem might average judicial thereof, notice taken be years by parole ‘life’ or is in a a sentence terminated few urged pardon, why a as one of the reasons such sentence should not a assessed that the defendant opportunity repeating the released an of would be crime. Similar ing with arguments prosecut- were made attorneys (citing them), in the cases of and held reversible not to constitute Arizona, error. Under the of law degree cases, the first murder fixes penalty imprisonment, at either death or life its prescribe jurors does discretion. statute not what shall not consider in the shall or cretion. exercise of dis- this probability think defendant, We that the of a punishment by jury been whose prisonment, fixed has a life at im- having actually penalty serve the so questions fixed, for one highly is is proper jury to discretion, consider exercise its Frady was said in the case of People, and as v. supra (2d) (40 606) under P. somewhat similar circum- fact, ‘It was a men, stances : statement known to all present jurors in the minds of the doubtless without being are opinion mentioned.’ We the re- objected to, under the case, mark was not circumstances of this require such error as reversal thereof.” Frady People, (2d) 606, 608, In Colo. P. people R. closing A. L. counsel for the in his argument asking your said: we are “While not at hands case, penalty you the death in this are aware from the reading daily press of our that life sentences are often frequently for life and that sentences one sentenced years.” liberty in a few for life is The court said: “Objection assigned error thereto and made ruling appear any It does not the court thereon. was asked given, request there was no disregard the statement. It was direction a state-

77 fact, men, present of all ment known to doubtless jurors being mentioned, of the minds the without likely argument creep most into under circum- Probably technically improper stances. it was still within the discretion.” court’s Glenday Commonwealth, Ky.

In case v. of 313, the counsel, court considered such a statement treating having it by as the same effect as a statement the court. It refers a former case had been which by reversed on account of similar made statement counsel, says but in that connection: “Furthermore, cases in was or- which a reversal why they because dered of such remarks and the reason regarded improper are upon are more or less bottomed theory making that counsel in them informs jury something possibly of advanced its members did know, theory day and which in this enlightenment, service and eligible jury those wherein now enlightened have opportunities had to become informed, unfounded, wholly arewe inclined to greater possibly the conclusion that effect has been given remarks, cases, to such than what some appellant was entitled to.”

Turning now to the cases deal with statements by court, appears made v. Postell Common- wealth, 39, (Ky.) jury, having 192 S. that the W. de- time, liberated for some came into if court and asked prisoner subject parole under a life sentence was to a from Board of Prison Commissioners. court gave jury an affirmative answer. The retired to its returned the room afterward death verdict. It was Appeals held the Court of if this occurred it error, jury’s because the verdict should not be department influenced what another of the state might government might point, not do. The how- court, nothing ever, was not before since in connec- exceptions, therewith was contained in the tion bill guid- only court the matter for the mentioned holding anee of the trial in the future. The courts Commonwealth, court, quoted, Glenday above v. supra, considerably in Postell weakened the statement Commonwealth, supra. In Coward v. Common- wealth, E. came into Va. 178 S. get court off and asked what the defendant would time jail, while the told them. he was confined in and court power pardon It was the to held that of the Governor upon argument, should in and that not be commented good jury the the trial have told the that court should given prisoner time a was no concern of theirs. for do A number of case was reversed failure to so. enough, subject Strangely cases on the are reviewed. in court while it said is error for the its was that it argument jury tell the or for counsel in to instructions confirmed, might sentence, imposed be set that its argument aside, also said instruction or it is that such the is death. is harmless in murder cases when sentence apparently arrived at This conclusion of the court was nothing upon theory that stated the the should be they give jury case would to understand that the they might duty, have shirk their and that when sentence, brought carrying they verdict the death a State, (Okl.) case of Bean v. have not done so. The theory. 675, proceeds upon (2d) 54 a different In P. jury voluntarily instructed the on that case the court relating provisions the the to commutations of of law error, good was time for That held behaviour. might ground induced the instruction have that greater jury punishment defendant impose on the a judgment it done. The of would otherwise have than accordingly imprisonment years was re- fifteen State, 372, years. Bryant Ind. v. 205 duced seven In 322, jury at some N. the court instructed the 186 E. right suspend length the sen- upon of the court guilty, and that in case of a verdict tence they guilty, event found the defendant would necessarily punished; might they safely trust right performance duty court of whatever responsibility imposed upon was It officer. held that instruction was error and that might jury of, past lure and wheedle the the obstacle of, jurors any hesitancy to disarm the doubts or severity penalty occasioned involved. People Sukdol, 540,

In the case v. 322 Ill. N. E. 727, voluntary it was held a instruction parole system court on error, of the state was but not one for which a would case be reversed. In Liska State, jury, 115 Oh. St. N. E. after having twenty-four hours, been out came into court judge them, and asked the trial to inform if there were any hopes pardon case verdict murder in the degree brought first were in. The court said subject: judge “The pardon trial told the board could pardon not in the recommend for one of murder convicted degree, showing except first on evidence inno- beyond doubt, could cence a reasonable and then to also said jury

the pardon, the disposed, that if Governor so any at time. Counsel for Liska insists that ‘this was prejudicial glaring error of the most kind.’ We cannot agree with counsel on this. The recommendation of mercy wholly jury. rests sound the discretion of the They may they extend or withhold as see fit. The trial might question court have to declined answer the asked by answer, jury, jury the but he did and then told the case, it was not an issue in the and that it was not a thing jury speculate upon.” for to the State, 532,

In App. 219, Massa 175 Ohio N. E. the jury they trial court instructed the the had right;, statute, the under to penalty transform the of imprisonment by recommending death to mercy, life provision but added that away “this take does not from the of Governor the his power state constitutional to

pardon.” by of this addi- Error was claimed reason objection, court, overruling tion. The stated: the plaintiffs in error by “It is contended counsel lodged charging within that minds so trial court mercy if jurors thought or idea that of the might some was extended the day pardon prevent might structed, of the State Governor error, in order to plaintiffs and that although they jurors, happenings such they differently been so in- have felt had mercy. This conten- refused to recommend merit; did was tion is the trial court without all that charge overwhelming Furthermore, by to the law. the weight planned a plaintiffs of evidence in error it, robbery, and, attempting shot while to consummate lawfully- Ralph down defending at a time when he was Wilcox property. himself and master’s Obvi- ously Massa, McCartney, did not show Wilcox and Sites any reading mercy, after a most careful any records in these fail to find evidence cases we tending jurors any why therein to reason show mercy should have recommended for them.” Rombolo, 89 L. In the of N. J. case State v. having appears jury, Atl. after delib- that the hours, and asked a erated came into court for some bar, namely, question to in the case similar imprisonment could be whether a man sentenced to life pardoned. judge The trial answered in the affirmative. discussing Appeals, the as- of Errors and Court connection, signment follows: error in stated as of complained judicial is “The now declaration objection question. was No in answer this deliverance, made, taken, and there- exception this error, assignment no or reason for reversal fore could, But, matter properly, it. as the be based legislation general importance in view of one referred to court, trial it seems to us advisable concerning express opinion it. we our should statute, this in a Prior the enactment except perform, case had no function homicide guilt of the and declaration inno- ascertainment defendant, and, guilty, in case was found cence degree punishment crime. The of his to declare the

81 matter with follow the was a which should conviction jury nothing By this to do. the force of had legislation, however, put is an additional burden jury, adjudge they in case the defendant shall guilty degree, of murder in the and that is to first determine, statute, by fixed what within limits punishment Naturally the elements that his to be considered shall be. one of by determining punish- in them whether, they by impose ment is verdict if shall their imprisonment, disregarded life it can be and set naught by why pardons. the court of see no reason We they power should not be of the informed court pardons desire, and, they necessary of quence, if so as a conse- court, impropriety we see no in the trial either request jury, request, at the of the or without such apprising body power with relation to the of su- pervision possessed by pardoning tribunal.” 268, Carrigan, In the case of L. State v. N. J. 316, voluntarily jury

Atl. the trial court instructed that one of the elements to be considered them in determining punishment person be that should might, imprisonment serving sentenced to life after years, parole. not less than 15 be released on was It instruction, held that no error was committed such though tendency jury it would have a to influence the determining in life im- whether or not to recommend prisonment instead of a sentence A of death. similar Martin, 139, v. 94 N. instruction State J. L. 109 Atl. “unfortunate,” 350, ground was held to be but not a Schilling, for reversal. In State 95 N. J. L.

Atl. the court said connection with a similar power jury “the to commute instruction that imprisonment statutory for life is the sentence of evidence, power pardons of the court of and the knowledge, of common and its one constitutional jury court’s) of a to the sound (the statement defendant, legal proposition not harmful nor case, law, when, applied it was this error might return.” In the case any verdict 82 Mosley, 94, court, 297,

State v. 102 N. J. L. Atl. 131 voluntarily, following: embodied in its instructions the “Naturally, by one the elements to be considered determining you, whether, punishment, in if is you your impose imprisonment, shall verdict life disregarded naught by can be set the court of pardons, provision also statute which every provides prisoner convicted confined in the prison life, State for term of natural whose record of conduct shows that he had observed rules of the institution and who has served less not than years, may good parole, plus fifteen off.” be released on time though upheld,

This instruction was a divided court. Barth,

In 112, the case of State v. L. 114 N. J. 176 182, proceedings Atl. were had similar to those in the jury case at bar. The wanted to know whether life imprisonment really imprisonment; life meant whether by any authority. it could be modified The trial court pardons power told them court had modify, change, any reduce or set aside sentence which jury might impose. It was held that this no error, previous in accordance with the decisions on subject. analyze

We need not By the cases further. the clear weight authority, given jury information to the clemency might reference to which be extended after ordinarily verdict is at preju- least held not to be so ground dicial as to be a sufficient for the reversal of a necessary go case. It for us to as far in our holding cases, as some of the and we are not inclined to go gives right jury as far. The statute to fix penalty in right like that at cases bar. That should possible. be left as untrammeled trial court any way attempt should not to influence the bringing increasing decreasing a verdict either or might penalty which otherwise be inflicted. That

83 Smith, See, People example, v. has often been held. State, 235, 789, 790; 84 Pittman v. 273 Pac. Cal. 297, State, 874; Ark. Ark. Bird v. S. W. principle 242 S. 72. That is the W. State, supra; Commonwealth, supra; Bean

Coward v. voluntary State, supra, A Brown v. decided. were referring to the part court statement on the of the trial pardoning Pardons, power of the Board of Governor, might jury believe power of the make the pur express has been made for the that the statement calling power attention and thus pose of such to their might tendency in ver influence them their have a to accordingly, should, voluntary statement dict. Such shown, made, although, already the of as some be however, not, objectionable. are cases do not find it We good any purpose perceive can be sub- how able jury. refusing inquiry by of the to answer an served doubt, which confusion and leave them in would It against in just likely accused as react the would courts, in in cases find that at some least favor. We judge not the trial point whether or passing the jury, pointed have have made a statement should inquiry, response evi in an made that it was out deeming importance. Freeman v. dently that of some State, 242. 592; 161 Ark. While State, v. 156 Ark. Jones par reprieves, jury may details of not know the the along ordinarily they, in paroles, with all dons and knowledge subject. general men, of the have a formed (Ky.) (2d) Commonwealth, 46 S. W. In v. Gaines life whether or not a jury know as to wanted to give judge refused to The reduced. could be sentence They promptly returned a verdict the information. That, penalty. of the carrying account the death mentioned, knowledge would not un general above under the same likely in other cases the verdict circumstances, in the evidence particularly cases where given argued court that the should have It is is clear. information; fuller they have been told should that the reprieve defendant could obtain a even from argu- a death part sentence. That fact was dissenting opinion Mosley, ment made in the State supra. argument. We cannot see force If jury given information, they had been would hesitancy returning have had even less the verdict carrying penalty Furthermore, death. the trial judge jury power informed the board extends to life sentences as well as to sentences in other eases, embracing thus sentences of death. The infor- given by court, strictly mation speaking while cor- rect, standing itself, conveyed considered doubtless jury thought that the Board of Pardons has power to reduce That sentences. is not true. It power has but power to recommend. The ultimate rests with the But Governor. we not think that do fuller explanation have would had a different result. The apparent they It were not misled. did not any want the defendant to receive the benefit of reduc- sentence, tion of a life no matter from what source it might judge come. statement made the trial voluntary; merely was not response it was made inquiry fair, jury. extremely an It was limited scope, indicating suggesting in not in the least what jury the should or The power should not do. ultimate They try still rested with them. were sworn to the case according to the the law and evidence in the case. We say fully they perform cannot that failed to duty. their speculation the they might It is merest whether or not have returned a different verdict. We have no reason they so, believe have that would done even if the them, court had told the court did in State, Liska v. supra, they speculate that should not on what the might do, although Board anxiety of Pardons our capital extend to an accused ain case the fullest meas- legal protection ure would have been more com- pletely given. allayed if such had instruction been therefore, Reluctant, and hesitant as we affirm a are to being, verdict which the life human we takes of a find nothing justify in the record case would disturbing us in it. think the We defendant had a fair impartial trial, judgment and that the should be should, however, per- It ordered. affirmed. is so We add, haps judges may in order that the trial know what they cases, that, upon should do in future in the similar inquiry case, made as in this and which is answered fairly suggestion penalty without of what should imposed, they they tell should that should speculate might happen what after ver- dict, ground possible may so that no be left for claim protection measure of that fullest has not ex- been accused, though tended even such instruction may not turn more in out effective defendant’s favor State, supra. it did in Liska v. than appoints Friday, And day now this court the 13th August, pro- for execution the sentence in the below. nounced court

Affirmed. Riner, J., concurs.

Kimball, Justice. agree the other

I with members of the court foregoing opinion ques- conclusions stated on relating to the trial tions of the issue of defendant’s guilt or innocence. however, opinion,

I am of there was error that may prejudiced question pun- have defendant on the point is raised ishment. record defend- objection jury’s answer ant’s court’s to the regard inquiry possibility of a life sentence being by pardon agree affected or commutation. I proper inquiry, it was court to answer the prejudiced by was not defendant fact writing. the answer was not gone the have All

But I think court should further. subject by imposed sentences courts are consti- pardoning power tutional sen- of the Governor. The sentencing power tence should be what the believes punishment will be for the a sufficient crime and should by the power be influenced the fact that executive may prisoner pardon the or commute the sentence. jury ques- inquiry case made the

When the this tion, suggested probability they, the that or some of them, thought imprisonment life punish- a sufficient ment, argument but confronted the were that a carrying might penalty sentence that com- soon be muted, unqualified and therefore an verdict would carry penalty the death be should returned. I think jury they should have been told that should return carry punishment they the verdict that would thought suffer, defendant they should and that might speculate upon happen should not what after My agree the verdict. associates this caution given under like should circumstances in future give be said cases. Can it that the failure to it in this prejudicial might case was not to defendant? I answer question in this the affirmative if it were clear there were other no errors that could have affected the jury’s question punishment. on the decision acting jury’s inquiry

In the court’s answer question required, gave went than further impression pardons granted by erroneous are Board, Board of Pardons. The majority as stated in the opinion, power. granted by no such has Pardons are merely investigates The Board Governor. inaccuracy. I do not recommends. dwell on this It probably was harmless. But I think de- information question sired for consideration on a life or death be correct. should importance

Of much more instruction on subject punishment. jury by in- the written of struction told: were person state, the who is found “Under the laws of degree guilty suffer of murder in the first shall death penitentiary imprisoned be in the at hard labor for or trying jury life, in of the the case. the discretion There- you beyond fore, case, evidence, the in if find from this guilty doubt, reasonable that the defendant is of degree, your duty the will first then murder be' penalty determine the which he shall to suffer. How- you arbitrarily penalty ever, death State the will not fix at either imprisonment or for life at at hard labor in the Penitentiary, your duty in that case be but it will weigh carefully all evidence, and consider of the to for determining purpose aggravate of matters

the mitigate you punishment offense,and will fix or at the the penitentiary hard for life in the death or labor ac- aggravation cording mitiga- the circumstances or by you offense the as shown the tion evidence. If guilty degree of murder find the defendant and in the first penalty, determine that he shall suffer death your duty finding it will be then return a verdict guilty degree of murder defendant in the first qualifying you If, however, words. without he should suffer hard find that imprisonment it will penitentiary in the at your duty life, for labor to find him guilty degree, your murder in first but insert in” capital punishment.’ ‘without the words verdict prescribing penalty In 1915 statute our the death degree by providing murder in the first was amended jury may qualify by adding “the their verdict punishment’ capital ‘without thereto and whenever the jury qualified shall return a aforesaid, verdict as person imprisonment, convicted shall be sentenced to labor, 1981, § hard for life.” R. S. 32-201. The language quoted appears of the amendment to have copied Congress word for word been from act (29 January 456) 15, Stat. at L. considered by Supreme Court United States Winston (and cases) two other v. United States 172 U. S. 303. judge of those cases the each instructions of the In “clearly gave jury to understand that the act of Congress qualify did not intend or authorize by their verdict the addition of words 'without mitigating capital punishment,’ palliating unless judgments proved,” circumstances were on un- qualified verdicts were reversed because the “instruc- law, undertaking tions were erroneous matter of discretionary power by Congress to control the vested jury, attributing Congress in the and as an intention express either unwarranted words or apparent purpose of the statute.” In the course of its Supreme opinion the said: Court adding right guilty, by qualify of “The a verdict capital punishment,’ thus con- is the words ‘without jury murder. The act the in all cases of ferred prescribe, nor the court not itself authorize does defining circumscribing any ex- or prescribe, rule right; the whole matter of ercise of this but commits judgment consciences of the the exercise its authority jury jury. The to decide that punished capitally shall not be is not limited accused court, jury, opinion in which the or the is of to cases that mitigating palliating there are or circumstances. every which, upon it extends to case in But a view of evidence, jury opinion the whole is of that it would just impose capital punishment. wise not be or How age, sex, ignorance, far considerations of illness or intoxication, pathy cuted sentence of planatory passion weakness, of human sym- or clemency, or or the irrevocableness of an exe- death, apprehension or an that ex- may brought facts exist which have not been light, allowed any whatever, or other consideration should weight deciding question be whether the capitally or punished, accused should committed should not be Congress by the act of to the sound discre- jury, jury tion and of alone.” language quoted It seems to me above from clearly applicable Winston decision is so to our given similar statute and to the instruction in the case bar, attempt that I shall anything to add to it.

89 subject may Further discussion of the be found following 573, State, later cases: Cohen v. 116 Ga. 42 781; Thorne, 208, 58; S. E. v. 39 State Utah 117 Pac. Peltier, 188, 451; State v. 21 N. D. N. W. State v. Martin, 436, 385, 1090; 92 N. J. L. 106 Atl. 17 A. R.L. 191, Bollinger, 25; People v. 196 Calif. 237 Pac. Her State, 424, (2d) mandez v. 43 Ariz. 32 P. 18. objection,

There has been no either in the trial court here, subject to the written instruction on the punishment. may But I think the instruction no- be circumscribing If it had the ticed. effect of the exercise discretionary power pun- of their to fix the ishment, probably what the error we have called may “fundamental error” that considered without assignment State, exception or of error. See Parker v. Wyo. 491, 161 Pac. 552. The error of course only punishment, probably would affect guilty defendant in so far as finds first verdict stand, degree and a new trial had on the murder should only. Sorrentino, punishment See State v. question of Wyo. 224 Pac. 420. SPRINGS, ET AL. OF ROCK CITY ROBERTS 2022; 15, 1937; 891) (2d) (No. 68 Pac. June

Case Details

Case Name: State v. Carroll

Court Name: Wyoming Supreme Court

Date Published: Jun 8, 1937

Citation: 69 P.2d 542

Docket Number: 2000

Court Abbreviation: Wyo.