150 P. 935 | Utah | 1915
Lead Opinion
The defendant was convicted of first degree murder and appeals. The principal question presented is that of sufficiency of the evidence. The claim made is that there is not sufficient evidence to identify the defendant, to connect him with the commission of the offense, nor to show motive.
In the information it is charged that he with a revolver shot and killed J. G. Morrison. The deceased was conducting a grocery store at or near the corner of Eighth South and West Temple streets, in Salt Lake City. The
Another witness whose attention was attracted by the shooting saw the taller of the two assailants come out of the store in a rather stooped position, with his hands drawn over his. chest, and heard him exclaim as if in great pain, “Oh, Bob!” and saw him cross the street to the alley, where he was joined by two other men. They there halted for a moment and disappeared in the alley. Another witness saw the
The defendant on the day of the homicide was visiting with acquaintances by the name of Eselius, at Murray, a town about five miles south of the place of the homicide. At that house were Mrs. Eselius, her six brothers, her father, and one Otto Applequist. Some of them had been working at the mills or smelters at Murray. On the day of the homicide some of them left Murray about five o’clock p. m. to attend a theater at Salt Lake City. . The defendant and Applequist remained. They were seen at the Eselius house as late as six o’clock that evening. They left that evening some time between six and nine; the exact time is not made to appear. Applequist did not return, and has not been seen nor heard of since. That night between eleven thirty and twelve o’clock the defendant called at a Dr. McHugh’s office, on Fourteenth South and State streets, about two and one-half miles south of the place of the homicide, and about midway between .the place of the homicide and Murray. The doctor had just retired. He was called to his office by the defendant ringing the bell. The doctor was acquainted with him, and had known him as “Joe Hill.” Upon the doctor entering the office and asking what the trouble was, the defendant replied that he was shot, and stated: “I wish this kept private.” The doctor removed the defendant’s clothes, and found him suffering from a gunshot wound through the chest and lungs. As the doctor described it: “The bullet entered a little below and a little to the outer side of the nipple line, ranging upward, backward and outward, and emerged a little below the interior angle of the scapula.” He found the defendant’s undershirt and shirt saturated with blood, and the de
A Mrs. Seeley, living about a block from the deceased’s store, testified that she and her husband, returning from uptown just a few minutes prior to the homicide, passed the store and saw the deceased and his two sons in the store. As they crossed Jefferson street they met two men with red bandana handkerchiefs tied around their necks. One of the men was tall and slender. In passing they crowded her off the sidewalk. She turned and looked at them. The taller turned and looked at her. She gave this description of him:
“By the District Attorney: Q. Did this man that turned, the taller of the two, did he look directly at you? A. Yes. Q. And did you look directly at him? A. Yes. Q. Did you notice anything peculiar about the features of the face of the man that turned at that time and looked at you after you had just been crowded off the sidewalk? A. Yes. Q. I wish you would just tell in your own way, Mrs. Seeley, what
The witness, after testifying that she saw and observed the defendant shortly after his arrest, was further asked:
“Q. How does the height of the defendant compare with the height of the man that turned and looked at you? A. Very much the same. Q. How does the nose of Mr. Hillstrom compare with the nose of the man you looked at there? A. Very much the-same. Q. How do the marks, especially upon the left-hand side of his face and neck, that you have had an opportunity to observe, correspond with the marks on the man that you saw there at that time? A. Well, they look a great deal alike to me, as on the same man that X saw.”
The witness at the preliminary examination and on cross-examination testified that she would not say positively that the defendant was that man, and that she had an honest doubt as to whether they were the same person.
Merlin testified that the size of the defendant was similar to that of the tall man who entered the store, but he, too, would not testify that it was the same man. The witnesses who saw the taller .of the two men run out of the store and to the alley, and heard him exclaim, “Oh, Bob!” and “I am shot, ’ ’ testified that they saw the defendant shortly after his arrest and heard him talk, and that his appearance and voice were similar to that man. One of them testified that he was “exactly the same.”
When the defendant stood erect with his coat on and his arms down the bullet hole where the bullet entered the coat
It further is claimed that no bullet shot from the deceased’s gun was found in the store, and that all the bullets which were found were fired from the guns of the assailants, from which, and from the further fact that the bullet which produced the defendant’s wound went clear through his body, it is argued that it was not the defendant, but another, who was shot in the store by Arling, and who was not shot through the body, but carried away the bullet lodged somewhere in his body. These also are positive conclusions based on but conjectural or speculative premises, arguing things certain
Evidence also was given to show that the red bandana handkerchief found in the defendant’s room at the time of his arrest was given him by Mrs. Eselius the next morning after the defendant was shot, and that he was not possessed of it on the night of the homicide. Mrs. Eselius testified to that. The credibility and weight of her testimony were for the jury, not for us.
The state produced a witness who shortly after the homicide examined the gun found by the body of Arling, and who testified that, in his opinion, the gun was discharged within an hour prior to the time he examined it. The defendant produced a witness who testified:
“It would be impossible to tell with any degree of accuracy when a cartridge in a revolver was exploded.”
It is argued that the defendant’s witness showed greatér knowledge of, and more familiarity with, the subject. Again, that was mere weight for the jury. We think it of little consequence, for, as already observed, we think there is ample evidence to show that one of the assailants was shot in the store by Arling, and that he shot him with the gun found by Arling’s body.
Evidence was also given to show that about four blocks west of the place of the homicide dog tracks stained with blood were found the next morning, which, when followed up, led to a dog with a sore foot; but that was not connected in any manner with the blood found on the sidewalk and in the alley near the place of the homicide, and was wholly different from the spatter of blood found on the sidewalk.
Further evidence was given to show that the deceased prior to his engaging in the grocery business was a member of the police force, and “that all the revolvers on the police department have six chambers; they are loaded with five cartridges,
Another witness testified that at about eleven thirty o ’clock on the night of the homicide he saw two men about eight blocks .(more than a.mile) west of the place of the homicide, one taller than the other, and as he approached them, a block or m,ore away, he saw the taller fall or lie down on the ground. The witness testified that he walked up to him, and saw him lying on his side moaning and groaning, with his head raised on his elbow. The witness observed him but a moment, and without saying anything to him walked away. The man on the ground arose and followed him for a block, where the witness saw him, board a street car. The conductor of the street car.testified that a tall man, “acting suspiciously,” at that time and at that place boarded the car. The conductor thought he was drunk. He rode with him uptown, and there left the car. Both witnesses testified that that man was not the defendant. This was offered to show that that man was suffering from a gunshot wound, and that he was the man who was short in the store by Arling. The testimony has little relevancy. No one claimed that that man was the defendant; nor was it claimed that the defendant that night was in that neighborhood. The state claimed, and produced evidence to support the claim, that the defendant then was at or near the doctor’s office on Fourteenth South receiving attention for a serious gunshot wound. Testimony that on that night after the homicide one answering the description of one of the assailants in the store was found at Eighth West street suffering
But the claim of insufficiency of the evidence is chiefly based on the fact that none of the witnesses who saw the assailant at or about the store on the night of the homicide testified positively that the defendant was one of them; and for that reason it is argued that the ease is no stronger than the case of State v. Hill, 44 Utah, 79, 138 Pac. 1149, where the evidence was held insufficient to connect the accused with the commission of that offense. We think the cases on the facts dissimilar. The testimony of Merlin that one of the perpetrators of the crime was about the same size as that of the defendant, had about the same shaped head, and wore about the same clothes as were shown the defendant wore that night is alone not sufficient. But there is the testimony of the witnesses who saw the taller of the two assailants, in size answering the description of the defendant, run out of the store, heard his voice, and that the voice, size, and appearance of that man were similar to those of the defendant. Though it be conceded that that also was insufficient, still there is the further testimony of the witness who but a few minutes prior to the homicide, close to one of the assailants, in a bright light nearly as light as day, looked him directly in the face. Her attention was particularly attracted to him because of the incident crowding her off the sidewalk. That man and the defendant, as testified to by her, were similar in size and features, had the same slim face, sharp nose, and large nostrils, and the same “defection” or scar on the side of the face and neck. True, that witness would not testify positively that the defendant was that man ; but the facts testified to by her as to the description of that man pointed most strikingly to the defendant, and may be entitled to as much or more weight than had the witness, without
We think the evidence sufficient to justify a finding that the defendant was one of the perpetrators of the crime. To hold otherwise is to hold that the accused must be identified or con
With this conclusion it is unnecessary to inquire into the question of motive. From the proven facts of the homicide it is clear the assailants entered the. store to commit murder or robbery. It is immaterial which view is taken of that. State v. Thorne, 39 Utah, 208, 117 Pac. 58. Since the evidence is, sufficient to show that the defendant was one of the perpetrators who, with his face masked and gun in hand, entered .the store.and deliberately shot his victim to death, it is immaterial' to inquire whether the motive was assassination or robbery. Nothing but a wicked motive emanating from a depraved and malignant heart is- attributable to the commission of such a crime as is here indisputably shown.
The defendant was represented by two counsel of his own-selection and hire. When the state was about half through with its side of the case, and at the conclusion of the direct examination of a chemist by whom, it was shown
“May I say a.few words?
“The Court: You have a right to be heard in your own behalf.
‘ ‘ The Defendant: I have three prosecuting attorneys here, and I intend to get rid of two of them. ’ ’
Addressing his counsel, he said to them:
“You sit over there, you are fired, too, see. And there is. something I don’t understand—
“The Court (interrupting) : You need not carry out in detail any difference .you may have with counsel if any.
“Defendant: I wish to announce I have discharged my counsel, my two lawyers.
‘ ‘ His Counsel: If you have discharged us, that is all there is to it.
The district attorney interrupted, and suggested that the defendant at the proper time would have an opportunity to make á full statement. Further colloquy followed, when the ' district attorney, addressing the defendant, stated:
“I will pause a' moment and give you an opportunity to cross-examine” the witness.
Counsel for defendant stated that before they retired they desired to say that they had no difference whatever with the defendant, and that his action was entirely unexpected. The court stated:
“I think until further order counsel who have been representing the defendant may proceed. If the court is satisfied that the defendant really knows his own mind, of course, he has a right to discharge his counsel if he prefers to do that” —and requested counsel to proceed with the eross-examination.
“The Defendant: Haven’t I a right to discharge my own counsel?
“The Court: The court will make due inquiry into that, ■Mr. Hillstrom; and if the court is convinced that you really mean what you say, the court will accord you that right. ’ ’
The defendant replied:
‘ ‘ I mean what I say. ’ ’
‘ ‘ The Defendant: Without my permission ? ’ ’
The court thereupon directed the defendant to be seated, and. said to him:
“The court will give you an opportunity if you want to cross-examine this witness after counsel who have been representing you have concluded. ’ ’
Defendant stated the witness was a scientific man and needed no cross-examination, and that “he wouldn’t tell anything but the truth.” When one of the defendant’s counsel began the cross-examination, the defendant, addressing counsel, stated:
“I told you to get out of that door.
. “His Counsel: I am acting under the court’s instruction; I think you are a little beside yourself at present.
“The Defendant: I am the defendant in this ease; I have got something to say.
‘ ‘ His Counsel: I will talk with you later. ’ ’
Thereupon one of his counsel cross-examined the witness, and then the witness was cross-examined by the defendant himself. At the conclusion of that examination the court again requested counsel to remain — “for the present at least, and to use your best efforts for the protection of the defendant’s interest. You at least will have the status of amici curiae, and that the defendant also will have the right to cross-examine or examine witnesses, and to take any part in the trial that a defendant may under the Constitution.
“Counsel for Defendant: From the defendant’s statement he apparently was under the impression that we were representing the state as well as the district attorney. We trust the court has not observed any such indication.”
The court and district attorney both replied that they had not.
When another witness was called, Mrs. Seeley, and on being examined by the state, and defendant’s counsel indicating some hesitation in making an objection to a question propounded by the district attorney, the court remarked that he-wished counsel to make any objection they thought proper, and
"I think the status better be made definite if counsel do not understand it.
“The Defendant: Am I recognized as my own attorney here ? ”
‘ ‘ The Court: I will hear from you.
“The Defendant: My counsel seem to be very insistent upon holding their job.
‘ ‘ The Court: The court is going to look into that matter in a moment.
“The Defendant: I wish you would.”
Thereupon the jury was directed to retire. After it retired the defendant said:
‘ ‘ There are some packages here; I would like to take charge of them; they belong to the defense and are paid for. * * * My counsel is discharged. I think I have the right to take these. * * * I have friends right here to take charge of them now.”
The court told him that he had the right to take charge Of them, and that he had the right to discharge his counsel. Upon inquiry from the court as to the defendant’s mental condition, counsel for the defendant stated that they had not observed any evidences of insanity, except his recent conduct in court, and at no time thought that he was insane; that he for some reason unknown to them grew suspicious of, and lost confidence in them, and thought they were in collusion with the state. The district attorney intimated that the defendant’s conduct looked like “a frame-up” to raise an issue of insanity. Defendant’s counsel assured him that the defendant’s conduct was as unexpected to them as to him, and that no defense of insanity was at any time discussed or thought of; that they had not intended, and did not intend, to present any such issue, and had not heard or observed anything to indicate that the defendant was insane.
“The Defendant: There won’t be no insanity pleas; I assure you of that; no brainstorm either;
“The Court (addressing the defendant) : The court wishes to ask you, in view of the statement you have just made, you
"The Defendant: Yes, sir.
"The Court: You realize that if there is not sufficient reason for discharging them, that it would be quite difficult to get other counsel to go on with the case at this time; you know that, do you not?
‘ ‘ The Defendant: I will act as my own counsel, and I am going to win this case without counsel. ’ ’
Upon request of defendant’s counsel, the court granted am intermission to enable them to confer with the defendant and. his friends. After such conference the defendant and his: counsel returned in court. The latter, addressing the court:
"Under the situation, we will proceed to act in behalf of' the defendant on the court’s appointment, unless the court chooses to appoint some one else in our place. If the defendant wishes some other attorney appointed, we will cheerfully withdraw.
"The Court (addressing the defendant) : According to the best information the court has, and after affording you an opportunity to consult so as to protect your rights, I see no reason, at present, at least, why the proceedings should not continue.
"The District Attorney: If I understand, the defendant now consents that counsel continue to represent him.
‘‘Defendant: I want the court to understand that my position is final. I do not object to counsel remaining in the court, room; it is none of my business; anybody can remain.
"The Court: I understand you do not object to their asking questions, under the direction of the court, providing you have an opportunity to examine witnesses yourself; is that, your attitude?
"The Defendant: Yes; I will examine the witnesses; if' they want to also they can go ahead. ’ ’
Thereupon the jury were recalled and the trial resumed but a short time when the regular adjournment was .taken for the-noon hour, and before the examination of the witness Seeley was concluded.' When the court convened in the afternoon, additional counsel appeared and asked that his name, at the-
From all this it is claimed that the court erred in appointing defendant’s counsel as amici curiae after the defendant ■had discharged them; in refusing the defendant permission to conduct his case in person and alone without counsel; in not staking an adjournment ^at once after the defendant had discharged his counsel, to enable him to procure other counsel; .and in proceeding against the defendant without counsel. Let' it be conceded that the defendant with or without cause had the right to discharge counsel of his own selection and hire, and to defend in person. That was all he asked; that the court granted. He did not ask for other counsel, nor time to procure other counsel; but in a most unseemly manner, wholly without cause, abruptly demanded that his counsel be summarily discharged, and that he be permitted to conduct his case in person. The court granted everything the defendant asked, except the court requested his counsel, as friends of the court, to remain, and in every way protect and safeguard the rights of the defendant. That was for his benefit. It is not claimed that his counsel had been disloyal or unfaithful' to him, nor is it made to appear that they had not done all that was proper and competent to be done in defending him. He summarily discharged them just before and in the midst of the examination of one of the most important witnesses for the state — the examination of Mrs. Seeley. With such damaging testimony being elicited against him, to have permitted the defendant to stumble along without assistance of counsel, though that was what he demanded, would have been almost cruel. The cross-examination which counsel conducted for him induced.the witness to say that, notwithstanding the marked similarity between the defendant and the man she saw at the store just a few moments before the homicide, she nevertheless had an honest doubt as to whether the defendant was
A witness, a physician at Salt Lake City, produced by the state at the preliminary examination, there testified concerning the gunshot wounds found on the deceased, the course of the bullets, and the cause of death, and expressed an opinion that the wounds were produced by bullets shot from a thirty-eight caliber gun. The statute (Comp. Laws 1907, section 4670) provides that in case of homicide
The physician, after he had described the wounds found on the deceased’s body, was asked:
“Are you able to state with what kind of a bullet that wound was made, judging from the appearance of the wound ?' ’
He answered:
‘ ‘ I passed on it at the time; it was a thirty:eight; that was my opinion.”
When the transcript of his testimony was read, an objection was made to the question and answer on the ground that it was not shown that the witness possessed sufficient
Complaint is made of the court’s refusal to permit answers to certain questions propounded by defendant’s counsel to a venireman on voir dire. Great latitude was given counsel in the examination of the venireman. After he had repeatedly answered, in response to questions put to him in different forms.i that he presumed the defendant innocent, that the state was required to prove his guilt beyond a reasonable doubt, that the jury was the sole judge of the guilt or
The court charged the jury:
“If you believe any witness has willfully testified falsely as to any material facts in this ease, you are at liberty to disregard the whole or any part of the testimony
Complaint is made of this. It is urged that, “standing alone, it is not the proper instruction, ’ ’ because the jury were not correctly guided as to “rules of law in determining the credibility to be given to the testimony of the witnesses. ’ ’ A similar charge was before us in the case of State v. Morris, 40 Utah 431, 122 Pac. 380. What we there said answers, as we think, all the objections here made.
The defendant requested six instructions on circumstantial evidence. Complaint is made because they were not given as requested. A comparison of the charge and the requests shows that the substance of them was
“You are instructed that circumstances of suspicion, if
Complaint is made of the first sentence. The criticism made of it is that the court by that language told the jury that * ‘ circumstances of suspicion ’ ’ was evidence. We do not think the charge open to that. Besides, the claimed objectionable language was language taken from one of the defendant’s requests, and hence, if erroneous, was error of the defendant’s own creation.
Thus on a review of the record we are satisfied that there is sufficient evidence to support the verdict; that the record is free from error; and that the defendant had a fair and impartial trial, in which he was granted every right and privilege vouchsafed by the law.
Hence does it follow that the judgment of the court below must be affirmed. Such is the order.
Concurrence Opinion
I concur. It may, however, not be improper for me to add a few words regarding appellant’s contention that this case should be controlled by the decision in State v. Hill, 44 Utah 79; 138 Pac. 1149, where we held that the evidence, as a matter of law, was insufficient to sustain the verdict of the jury. The inferences that the jury were authorized to deduce from the uncontroverted facts in this case clearly distinguish it from the Hill case. Had there been conclusive evidence in the Hill case that Hill was shot through the body with a revolver, and it was further shown that the revolver in question had been in the hands of the deceased in that case, and no explanation had been made regarding the wound in Hill’s body other than that vouchsafed in this ease, there would be at least some similarity between the cases. In such
From the foregoing facts, when considered in connection with the other identifying evidence and circumstances, the jury were authorized to conclude — indeed, it is not easy to perceive how rational men could have arrived at any other conclusion — that the appellant was, in fact, shot in Morrison’s store at the time of the homicide. The fact that appellant was not required to take the staled and testify in his own behalf, as pointed out by Mr. Chief Justice STRAUP, cannot affect the inferences that naturally spring from the uncon-troverted facts and circumstances. The jury had a right to assume that, even though the appellant wanted to shield some one from disgrace, if nothing more, and was unwilling to disclose who shot him, yet the public generally had no such interest to shield any one, and for that reason, if the shooting mentioned by the appellant had, in fact, occurred, some one would have discovered the fact, if not the cause, and would have made it known before the trial. The shooting of a hu
In view, as pointed out by Mr. Chief Justice STRAUP, that no errors of law occurred at the trial, we have no alternative save to permit the verdict of the jury to stand.
Concurrence Opinion
(concurring). I have with much care examined the record in this case, and am convinced that the evidence is not only consistent with theory that defendant participated in the commission of the crime for which he stands convicted, but that it is inconsistent with any other theory. In my brief discussion of what I regard to be the salient points raised and presented by the defendant, I shall not attempt to set forth or to review the evidence in detail. The statement made by the Chief Justice of the facts and cir-
Counsel for defendant in support of their contention that the evidence is insufficient to justify the verdict claim, among other things, that the defendant was not identified as one of the men who entered the Morrison store on the night in question (January 10, 1914) and committed the crime charged in the information. As I read and consider the evidence, tending to identify the defendant as one of the perpetrators of the crime, it is about as conclusive on that point as though the witnesses had positively identified the defendant as the taller of the two men who were at and in the immediate vicinity of the crime just before and immediately after it was committed. The description that Mrs. Seeley gave of the taller of the two men whom she and her husband met at the intersection of Eight South street and Jefferson avenue tallies with the description of the defendant in practically every particular. She testified that the man she met "was a sharp-faced man with a real sharp nose, and his nostrils were rather large,'” and that he had a "defection” or scar on the side of his face or neck. The defendant was described as having a similar scar on the side of the face or neck, ‘ ‘ a real sharp nose, ’1 and large nostrils. The witness further testified:
‘ ‘ Q. How does the height of the defendant, Mr. Hillstrom, compare with the height of the man that turned and .looked at you there at that time ? A. Very much the same. * * *' Q. As to build?. A. Yes; they were slender built, both of them. * * * Q. How does Mr. Hillstrom, as he sits here, compare in regard to thinness with the man that you saw that day? A. His thinness is just about the same, * * * but his hair is entirely different. Q. In what respect is his hair different? A. His hair has been cut. * * * Q. Did you state whether or not the appearance of the defendant’s hair is anything like the hair you saw on this man that night ? A. He had light hair; yes; the one I saw. Q. Light hair? A. Yes; medium complexioned, like this man. ’ ’
Another witness, Mrs. Yera Hansen, testified:
That she lived on West Temple street directly opposite Mor
Another witness, Nellie Mahan, testified that between nine-thirty and ten o’clock p. m. on the night in question she was at her home across the street south from the Morrison store; that she heard shots, and immediately thereafter looked out of the window and saw a man stooping with his hands on his chest and running from the store diagonally across the street in a southwesterly direction towards the alley mentioned by the Chief Justice in his statement of the facts; that she heard the man say two or three words that she did not understand as he was crossing the street, and then heard him say, “I am shot”; that she saw the defendant at the county jail stand erect, and “all I can say is, that man was very tall and very thin, and so is Mr. Hillstrom. ’ ’
Counsel for defendant, in their printed brief, refer to and characterize the evidence of Mrs. Seeley as “very shadowy pretense of testimony, * * * thoughtless, loose, flippant talk,” and urge that it should have been “stricken from the record.” Commenting on Mrs, Hansen’s evidence, they say:
“Consider for a moment the utter worthlessness of such'
The ipse dixit of counsel are the only expressions (aside from criticisms, which are without merit, directed to the manner in which the examination of these witnesses was conducted by the district attorney) we have from them respecting this evidence. No claim is made that these witnesses, or any of them, were unfriendly to the defendant, or that they showed any bias or prejudice in the case. In fact, a perusal of this evidence, as contained in the bill of exceptions, I think, will show so far as it is possible for a record to reflect the demeanor and state of mind of witnesses, that they were not biased or prejudiced against the defendant, and that neither of them was “thoughtless,” or “flippant” in giving testimony. The weight, however, that should be given the testimony, regardless of whether the witnesses were sedate and serious or thoughtless and flippant while testifying, was for the jury.
Mr. Wharton, in discussing this character of testimony in his work on Criminal Evidence (10th Ed.), at section 803 says:
“We have a right to hold, in fact, that it is an absolute law that each individual should have certain features assigned to him by which he is distinguishable from all others, and that these features, while subject to gradual modification by age, should yet retain their characteristics so as to be distinguishable for months, even under the most artful disguises. The whole figure may be changed by dress; the hair may be cut off or dyed; yet the eyes, the nose, the mouth, the voice, remain, each of which possesses traits that cannot be defaced by any means short of destruction. * * * But the face is not the only test. Voices are equally distinguishable, and their distinguishability has been made the basis of convictions in criminal courts.” (Italics mine.)
In 3 Wharton & Stille’s Med. Jur., section 636, it is said:
“Besides the general appearance, dress, manner and voice of a person, peculiar marks upon the body are very important, perhaps much the most reliable, means of identification. Scars, burns, cicatrices, fractures, etc., upon some portion of the body of the prisoner, distinctly remembered by those who have seen them, will generally be received as evidence of identity. Very often where the scars resemble each other they may have been caused by different- agencies. In such cases the evidence of physicians can be brought to*376 testify as to the cause of the wound. Still such evidence is not always reliable, for a mark of such a nature may exist from exactly the same cause in two different persons. It goes, however, a great way in establishing an' identity, and is generally conclusive, unless rebutted by stronger contradictory evidence.”
See, also, 3 Chamberlayne, Mod. Ev., section 1367; Commonwealth v. Scott, 123 Mass. 222, 25 Am. Rep. 81; People v. Botkin, 9 Cal. App. 244, 98 Pac. 861.
The undisputed evidence shows that the scar on the face and neck of the taller of the two men whom Mrs. Seeley and her husband met across the street a short distance west of the Morrison store just before the homicide was committed corresponded in size and appearance with that on defendant’s face and neck. In this case there is, in addition to the scar and other natural features, characteristics and marks more or less peculiar to individuals mentioned by Mr- Wharton, the dangerous gunshot wound inflicted on the taller of the two assassins, which the evidence tends to show corresponded with the gunshot wound received by the defendant the same night. Besides, there are other facts and circumstances in evidence of an incriminating character. The statement made voluntarily by the defendant to Dr. McHugh that he was shot in a quarrel over a woman and wanted the matter “kept private,” his refusal to inform the officers of the place and the circumstances under which the alleged “quarrel over a woman” took place, notwithstanding the officer assured him that he would be given his liberty if his statement in that regard should be found to be true (the evidence on this point, as stated by the Chief Justice, was brought out by defendant on his cross-examination of the officer), his throwing away his gun as he was being taken by Dr. Bird to the Eselius home, his request that the doctor turn down the lights of the automobile just before they arrived at the Eselius home, his two “shrill and penetrating” whistles when he and the doctor arrived at and just before they entered the Eselius home, were all so unusual and extraordinary and so at variance with the conduct and movements of men who are peaceably inclined and law-abiding that the jury were justified in finding that the explanation the defendant gave of his wound was false, a mere
There is but little, if any, similarity of facts in this case and in the case of State v. Hill, 44 Utah 79, 138 Pac. 1149, cited by defendant in support of his contention that the evidence is, as matter of law, insufficient to justify the verdict. In the Hill case the evidence not only failed to identify the defendant as one of the robbers who committed the crime there charged, but tended to show affirmatively that he was not. "Whereas in this case the movements and conduct of the defendant on the night of and soon after the homicide was committed, coupled with the other facts and circumstances in evidence to which I have referred, and which are set forth in detail by the Chief Justice, point with unerring certainty, as I read the record, to the defendant as one of the perpetrators of the crime charged in the information.
I therefore fully concur in the reasoning of and in the conclusions reached by my Associate.