STATE v. MARES
No. 7092
Supreme Court of Utah
April 26, 1948
192 P. 2d 861 | 113 Utah 225
McCullough, Wilkinson & Boyce, of Salt Lake City, for appellant.
Brigham E. Roberts, Dist. Atty., of Salt Lake City, P. H. Neeley, Co. Atty., of Coalville, Grover A. Giles, Atty. Gen., and A. John Brennan, Asst. Atty. Gen., for respondent.
LATIMER, Justice.
The defendant Eliseo J. Mares, Jr., was convicted of the crime of murder in the first degree, and stands sentenced to death by shooting. He appeals from the judgment and sentence as pronounced by the trial court.
From this point up to the time deceased‘s body was placed in a ditch, the evidence for the most part consists of two versions of the same story, both versions having been detailed by the defendant. The evidence produced by the state consisted of the version given by the defendant to certain peace officers and the second version is the one recounted by the defendant while he was on the witness stand. The state‘s version will be detailed first.
According to the story given the peace officers by defendant, Stallings was driving the car from Evanston towards Ogden, Utah; when the car was at or near the Utah state line, Stallings awakened the defendant and told him they were about to enter the State of Utah; the defendant
Defendant‘s version on the witness stand was substantially as follows: That between Sinclair, and Evanston, Wyoming, he and deceased had consumed a considerable quantity of whiskey; upon leaving Evanston, he was riding in the front seat of the Ford automobile beside Stallings, who was driving the car; that he had had too much to drink and fell asleep; the next thing he remembered was when Stallings awakened him at a roadhouse or tavern in Echo Canyon just before they got to the Utah state line; the car was stopped a little west of the tavern as there were five or six cars parked in front of the tavern; he and Stallings went in to buy some beer to take out, but the bartender refused to sell them any beer and told them that they had too much to drink already; Stallings then went outside and the defendant stayed on the inside for some time arguing with the bartender; defendant then left the tavern and when he got outside discovered Stallings was having a fight with some fellows on the outside; Stallings was on the ground
From the time defendant placed the body in the ditch until he was given a preliminary hearing, the following detailed events transpired; as to these matters there is very little dispute, except as to whether or not defendant read a certain document signed by him and made certain admissions or confessions to the officers.
Before leaving the body in the canal, defendant searched the body and removed all means of identification; he then proceeded down Parley‘s Canyon into Salt Lake County; he apparently became confused in his directions and drove into Emigration Canyon; while in this canyon he throw away the gun, the deceased‘s clothes, identification bracelet and ring; he retained deceased‘s Navy discharge papers, billfold containing other identification papers and certificate of title to the car; defendant then proceeded through Salt Lake City and onto Ogden, Utah, where he went to a used car lot and attempted to sell the car. He encountered a short delay and while waiting, sauntered into a bicycle shop and discussed the sale of the car with the owner of the shop. A sale price was agreed upon and so the defendant and the purchaser proceeded to the Police Station where the officer on duty had the defendant execute an assignment of title. Defendant, to accomplish the transfer of title, forged deceased‘s name to the certificate and identified himself as the deceased by exhibiting the papers he had retained; defendant then sold the bicycle found in the back of the car for the sum of $5, and signed Stallings’ name as seller to a certificate required by Ogden City; after transacting this
On August 18, 1946, defendant signed a statement giving an account of his association with and killing of the deceased, and on the 19th day of August, 1946, he accompanied certain law enforcement officers over the route travelled by him on the night of the killing, and identified the location of the places where part of the foregoing events transpired.
Defendant in this appeal has presented sixty-two assignments of error, but has consolidated them into six proposals. While a reading of the record convinces us that defendant‘s rights were in no way prejudiced, because of this being a first degree murder conviction, each of the six propositions will be discussed.
The first assignment questions the trial court‘s ruling in admitting evidence of deceased‘s temperate habits. Defendant‘s version from the witness stand was that he and the deceased consumed considerable whiskey while travelling across western Wyoming; that deceased became intoxicated and either from the effects of the whiskey, the fight at the tavern, or both, the deceased became a mad man and was threatening to kill the defendant with an automobile tire iron at the time defendant fired the shot; and that defendant believed he had to shoot in self-defense.
There were no eyewitnesses to the tragedy, and no evidence by any witness, other than by defendant, to the effect
To rebut defendant‘s evidence of the deceased‘s having been intoxicated, the state called deceased‘s father and brother as witnesses. Over defendant‘s objection they were permitted to testify that they had lived with the deceased, knew his habits, and had never seen, heard, or known of deceased having ever taken a drink of liquor; that they had lived with him, except for the three to four years he was in the naval service; and that during his period of military service he came home on furlough and had been at home after his discharge.
The trial court did not err in permitting the state to offer this evidence to rebut the story told by the defendant. When the defendant introduced the issue of self-defense based on his theory that intoxication may have partly caused the deceased to have become temporarily insane and to have become a threatening aggressor in an attempted assault, the possibility or probability of defendant‘s story could be rebutted by the testimony of the habits or character of the deceased. The principle reason for the admissibility of such evidence is that it renders defendant‘s story more improbable. It would seem more probable that a person of abstemious habits would have been sober rather than drunk on a particular occasion.
Wigmore, in his work on Evidence, 3rd Edition, Vol. 1, p. 467, states the rule to be as follows:
“When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one‘s persuasion will be more or less affected by the character of the de-ceased; it may throw much light on the probabilities of the deceased‘s action.” Quoting Williams v. Fambro, 30 Ga. 232, 233, 235.
In support of this rule he cites many cases dealing with the admissibility of evidence dealing with the character of a deceased person. This principle is discussed by this court
“* * * Indeed, one cannot read appellant‘s testimony relating to the mental traits of the deceased without becoming convinced that the only purpose appellant could have had in view in making the state-ments was to impress the jury that the deceased was a man whose anger was easily aroused, that he was oppressive, and, when in anger, a violent and dangerous man. Under circumstances like those in the case at bar, the courts have frequently held that it is proper on re-buttal for the state to show that the deceased had the general reputa-tion of being a quiet, peaceable, and law-abiding man. The rule in homicide cases is well and tersely stated in 6 Ency. Ev. 778, in the following words:
“‘The prosecution cannot show the deceased‘s peaceable character until it has been attacked by the defendant in some way, even when there is doubt as to whether the killing was done in self-defense. When, however, evidence as to his violent or dangerous character has been introduced, it is competent to show in rebuttal that he was reputed to be peaceable and law abiding. It is not necessary, however, that his character be attacked directly, but evidence as to his previous threats, his previous hostile conduct, or as to his attack upon the defendant at the time of the homicide has been held sufficient to war-rant proof of his peaceable character.’
“The foregoing statement of the law is sustained, and applied by many decisions, and among others that could be cited upon this propo-sition we simply refer to the following: Davis v. People, 114 Ill. [86], 95, 29 N. E. 192; State v. Vaughn, 22 Nev. [285] 298, 39 P. 733; Bowlus v. State, 130 Ind. 227, 28 N. E. 1115. See, also, 21 Cyc. 908, where the prevailing rule is stated to be in accordance with the state-ment quoted from the Encyclopedia of Evidence, supra.”
The same principle is involved in this action. The real question to be determined is, what did the deceased probably do? Defendant claims that partly because of his intoxication the deceased was threatening defendant‘s life. Evidence which would fairly tend to show the improbability of de-ceased having so acted would be relevant. The attack on the character of the deceased, could only be met by the state introducing evidence of his temperate habits. We believe the evidence admitted by the trial court, if believed by the jury, had a tendency to contradict the evidence of intoxica-tion presented by the defendant, and was admissible as
Defendant next presents and argues that the trial court committed prejudicial error in permitting the state to in-troduce incompetent evidence to establish the corpus delicti. This proposition can be subdivided into four items. The first involves the testimony of Dr. F. G. Reese in regard to powder burns. The second deals with certain hypothetical questions asked Dr. Oldham. The third raises the question of error in permitting Dr. Oldham to read from his autopsy report. The last involves the correctness of the trial court‘s ruling in permitting a small piece of bone to be introduced in evi-dence and permitting a witness to testify as to lead mark-ings on the bones.
Before dealing with each of these items, we consider it ad-visable to refer briefly to some of the facts not previously mentioned. The body of Stallings was placed in the canal on the 24th day of June, 1946, and it was not found until July 9, 1946. Upon discovery, the body was moved to an undertaker‘s parlor and an autopsy performed. The body was badly decomposed, puffed up about twice its normal size, and fly-blown. A wound and a hole were found on the right side of the head, but no bullet slug was found inside the cranial cavity and no exit hole was located. The right eye was out of its socket and was dangling on the right cheek. Without reference to any admission or confession by the defendant, it was established by the state that the person whose lifeless body was found in the canal met his death through force and violence.
In order to identify the corpse, finger prints were taken from the body and forwarded to Washington, D. C., for identification. The identity of the body was established by
Dr. F. J. Reese, a dentist of some 27 years’ practice, was present during the autopsy. Over the objection of the de-fendant, Dr. Reese testified that he observed pittings sur-rounding the wound in the head of deceased, and that in his opinion the pittings were powder burns. Defendant‘s objections to the admission of this testi-mony appear to be twofold. The first that the witness was not qualified to testify as to the markings, and the second that his testimony is contrary to the testimony of other persons including two doctors and an undertaker who were present. As to the latter ground, the other witnesses testi-fied they did not see any markings, but granting a dispute in the evidence, this is merely a conflict in the evidence for the jury to determine and in no way affects the admissibility of the evidence.
Dr. Reese, in the voir dire examination to determine his qualification to testify as to powder burns, admitted that in his practice he had on only two or three occasions observed similar markings on a human body. He had, however, taken certain anatomical courses at Northwestern University and had a four-year course in subjects required in the school of dentistry. Even though the doc-tor‘s experience with powder marks had been limited and the body was decomposed, these were items which go to the weight to be given the evidence of the doctor, and not to his competency to testify. Permitting Dr. Reese to testify to the powder burns was a ruling within the discretion of the trial judge and the record does not indicate an abuse of this discretion.
Permitting a portion of Dr. Oldham‘s autopsy report to be introduced in evidence was not prejudicial. In the trial of the action the doctor was cross-examined as to his not finding either an exit opening for the slug, or the slug itself. He was also cross-examined as to his failure to testify at the preliminary hearing about certain markings on the floor of the middle fascia of the skull. Other claimed inconsistencies in his previous statements with respect to the course of the bullet were called to his attention. Apparently the purpose of this cross-examina-tion was to establish that the doctor had changed his theory on the course of the bullet since the time of his previous state-ment. On redirect examination, the state‘s attorney offered the complete autopsy report made by Dr. Oldham at the time of the autopsy. This was objected to by the defendant‘s attorney and the objection was sustained. The court did, however, permit one part of the report to be read. This part was the information showing the doctor‘s original findings on the course of the bullet which was consistent with the evidence given by the doctor at the trial. The portion read was admissible as ruled by the court.
Admission of the piece of bone in evidence was neither erroneous nor prejudicial. The bone was identified by wit-nesses in the preliminary hearing, was introduced by the state as an exhibit in that hearing and was trans-ferred to the district court as an exhibit. In the dis-trict court it was identified by both Drs. Reese and Oldham, at least sufficiently, for admission purposes. Even though the piece of bone appeared to the witnesses to be slightly darker than it was at the time of the preliminary
We need say little about the third proposition argued by appellant. This assignment of error raises the inadmissibil-ity of the evidence showing the commission of other crimes by the defendant. With the possible exception of the stealing of the Packard automobile in Denver, Colo-rado, all other offenses were directly connected with and related to the principle crime charged. The disposition of the property of deceased, the forging of deceased‘s name to certain documents, and the stealing and selling of the personal property are admissible for many reasons. These facts and circumstances are relevant to establish a motive for the killing, to identify the defendant as the perpetrator of the crime, to discredit defendant‘s claim of killing in self-defense, and to show an attempt on the part of defendant to conceal the crime and to prevent an identification of the deceased. A relevant fact does not become incompetent because it may tend to establish another and separate crime. The evidence of the theft of a car in Denver was contained in a written statement made by defendant to F. B. I. agents, and while admission of the complete document was objected to, no effort was made to separate the one statement, claimed to be incompetent and prejudicial, from the remaining part of the statement because of its reference to a separate crime. Furthermore, defendant introduced in evidence an exhibit which consisted of written notes taken by the F. B. I. agent, during the time of a conversation with defendant, and the conversation as recorded in these notes contained the admission, as made by defendant, that the car was stolen in Denver.
Defendant in his next assignment of error asserts only the inadmissibility of alleged confessions made by defend-ant to P. H. Neeley, the Summit County Attorney, while defendant was incarcerated in the Weber County jail, and
Counsel for the state has discussed this assignment of error from the standpoint of the difference in procedure when the court is dealing with an admission made by the defendant and when the court is considering a confession given by the defendant. For the purpose of this action, we are content to treat defendant‘s written and oral statements while in custody and his acts and conduct in guiding the police officers along his route of travel as a confession. They are all part of a continuous transaction, and when pieced together they amount to a declaration by defendant of his commission of a crime.
The defendant at the time of his arrest on the 16th day of August, 1946, was approaching his nineteenth birthday. He had been inducted into the army and for some short time before his arrest had wandered about the inter-mountain country. When he was arrested he was confined in the Weber County jail at Ogden, Utah. The day following his arrest he was shown to various Ogden residents in an effort to identify him as the person who, on June 24th, had sold deceased‘s 1937 Ford automobile. Apparently a young man by the name of Young identified the deceased as the seller of the car. Neeley, who was representing the State of Utah, notified the defendant that he would be required to file a complaint for stealing the car. Shortly afterwards, according to Neeley, defendant stated he was willing to admit the theft, and Neeley told him that he should not make any admissions to him but should wait until his father, mother, or a lawyer were obtained. The defendant told Neeley he did not want a lawyer and did not want his father or mother notified. Subsequently, but after the confession was obtained, Neeley notified the defendant‘s father and a lawyer represented the defendant at the preliminary hear-
Two special agents of the F. B. I. interviewed the defend-ant on August 18, 1946, and this interview lasted from about 2:30 p. m. to 7:00 p. m. During this discussion the deceased told his story to the agents and notes were taken by one of the interviewers. Using the notes to assist in pre-paring a completed story, one of the agents dictated the information given into narrative form and this statement is identified as state‘s Exhibit “P,” and is the written con-fession herein discussed. After the stenographer completed typing the confession, the same was given to the defendant to read and to sign. He read and signed each page of the statement, although at the time of trial he claimed not to have read it carefully.
After the written confession was signed, the witness P. H. Neeley, around 10:00 p. m., asked the defendant if on the following day he would guide certain officers including him-self over the route he had taken on the night of the killing. Defendant agreed to do so, and on the following morning the defendant, in one car with several peace officers and other officials in a second car, journeyed over the route; and as they arrived at the various places where events had transpired, the defendant pointed out the location and told what he done at each place. The places of importance pointed out by defendant were those where he had stopped to throw away the gun, the deceased‘s clothes, and identification bracelet; the place where the body had been left; and the place where defendant fired the fatal shot.
In connection with the procedure leading up to the ad-mission in evidence of the various incriminating statements made by defendant, counsel for defendant objected to their introduction on the grounds that the same were incompetent, irrelevant, and immaterial, and that no proper foundation had been established to admit them into evidence. The record indicates numerous and similar objections made by counsel for appellant, but there is not a single instance
Appellant, to sustain this contention, relies on a number of cases decided by this court. The first one is State v. Wells, 35 Utah 400, 405, 100 P. 681, 683, and we quote from that case:
“We think many of the courts which hold that the question of vol-untariness on conflicting evidence is for the jury in effect reached the same conclusion. We are therefore of the opinion that, when evi-dence of the defendant‘s confession is offered by the state, it, on the defendant‘s objection, must first introduce some evidence tending to show that the confession was voluntary; that it is alone within the province of the court to determine, not whether the confession was or was not voluntary, but whether a sufficient prima facie showing, with respect to its voluntariness is made to warrant a finding that it was voluntary; that, before the court rules upon the question, the privilege should be given the defendant, if he requests it, to cross-examine the witness, or witnesses, by whom the state seeks to show the voluntariness of the confession; that when such a showing has been made, and the court determines that it is prima facie sufficient to authorize such a finding, then the court should admit the confession itself in evidence, otherwise not; * * *.”
This principle, that upon objection by defendant the state must make a prima facie showing of voluntariness, was reaffirmed in the case of State v. Dunkley, 85 Utah 546, 571, 39 P. 2d 1097, 1108, in the following words of Mr. Justice Straup:
“Now as to the admissibility of the so-called confession. Upon ob-jections made, the burden, of course, was upon the state to first show that the confession was the voluntary statement of the accused, with-out any promise of reward or immunity or threat or coercion. The rule in such particular and as to the procedure to be followed in mak-ing a prima facie showing of voluntariness by the state before admit-ting the confession, and the function which the court and the jury perform in the matter, is stated in State v. Wells, 35 Utah 400, 100 P. 681. Such preliminary matter and prima facie showing was heard, as it could be, before the court in the absence of the jury. At the conclusion of such hearing, the court ruled that a sufficient prima-facie showing was made to admit the so-called confession in evidence. We think no error was committed in such particular. * * *”
Appellant asserts that these authorities sustain his con-tention that before any part of the statements made by defendant, either oral or in writing, should have been ad-mitted in evidence, the trial court should have ex-cused the jury and determined the voluntariness of such statements. We wonder why a trial court should excuse a jury to pass on a question of fact when no claim of any kind is made that there is any dispute. Counsel for appellant never at any time, so far as appears from the record, disclosed to the court that there was any question about the statements being involuntary. While an objec-tion that “no proper foundation has been laid” should warn the judge to determine all the legal questions which may be covered by such an objection, it can hardly be contended that this is sufficient to require him to excuse the jury to de-termine a question of fact which has not been suggested.
We do not advance this though as a reason for overruling the principle that the state must make a prima facie showing that the confession was voluntary upon appropriate object-tion by the defendant. We suggest it as a reason why the trial court did not suspect there might be an issue of fact and did not require additional evidence on the part of the state. In the cases cited by counsel for appellant, the court in each instance was advised in the objection that the de-fendant claimed the confession was involuntary and the
“* * * Thus the State has the burden of persuading the court that the confession was voluntary by a preponderance of all of the evi-dence on that question. An examination of the authorities discloses that there are many different views on this subject. Wharton‘s Crim-inal Evidence, 11th Ed., Vol. 2, p. 986, Sec. 595, states:
“‘Most authorities and jurisdictions have asserted the rule that a confession sought to be introduced into evidence is presumed to be voluntary. This is equivalent to statements made by some courts that the confession is prima facie admissible.’
“In Wigmore on Evidence, 3rd E., Vol. 3, Sec. 860, it is stated that five distinguishable attitudes are found represented in the rulings in regard to this matter. They are listed as follows: [We omit part of the quotation]
“‘(5) A modern English Ruling takes a middle path, and seems to receive the confession unless attacked by evidence of an improper inducement and then in case of doubt leaves upon the prosecution the burden of convincing the court of the admissibility.’
“It is our opinion that paragraph (5) of the above quotation from Dean Wigmore‘s Evidence states the better rule.”
When a confession is attached by evidence of an improper inducement, the function of the court and the jury in determining whether it was voluntary is delin-eated by the court in the case of State v. Crank, supra. The opinion at page 373 of 105 Utah Reports, page 196 of 142 P. 2d, is as follows:
“* * * We agree with the rule approved in those cases, (herein cited) that a confession is not admissible in evidence unless it was voluntarily made; that this question must be determined by the court from all of the evidence from both sides bearing thereon; that if the court is satisfied from the evidence that the confession was voluntary, then the court admits the confession in evidence to the jury, together with all of the evidence on the question of whether it was voluntary,
and the circumstances surrounding its being made, and from such evidence the jury must determine the weight and credibility to be given it, but may not determine its competency as evidence, that being a question for the court. * * *”
In this case the evidence of the facts and circumstances surrounding the confession were obtained from the state‘s witness. There is no conflict in the testimony as to the methods employed to obtain the confession as the defendant did not testify to this nor does he now claim any abuse, threats, coercion, promises of reward or immunity, nor even excessive zeal on the part of the interrogating officer. He does, however, contend that in view of the defendant‘s youth, coercion was present because the two F. B. I. agents were discussing the matter with the defendant for some four and one-half hours, from 2:30 p. m. until 7:00 p. m.; because later that evening at approximately 10:00 p. m., Neeley asked the defendant if he would direct the officers over the course he had travelled the night of the killing; that because defendant was accompanied by a number of officers while taking the trip, and finally, because defend-ant was not furnished with or informed that he should consult with counsel before making the statements to the officer. Following the rule in the case of State v. Crank, supra, can we say that the evidence in this case suggest the use of improper inducements to obtain the confession?
Mr. Justice Frankfurter in the recent case of Haley v. State, 332 U.S. 596, 68 S. Ct. 302, 305, makes the following statement about an admission obtained from a fifteen-year-old boy:
“But whether a confession of a lad of fifteen is ‘voluntary’ and as such admissible, or ‘coerced’ and thus wanting in due process, is not a matter of mathematical determination. Essentially it invites psycho-logical judgment a psychological judgment that reflects deep, even if inarticulate, feelings of our society. Judges must divine that feeling as best they can from all the relevent evidence and light which they can bring to bear for a confident judgment of such an issue, and with every endeavor to detach themselves from their merely private views. * * *”
“* * * It is necessary to recognize, on the other hand, that the offense here charged was not an ordinary juvenile offense. It was a capital offense of the most serious kind. It involved the same fatal consequence to a law-abiding citizen of Canton as would have been the case if it had been committed by adult offenders. An obligation rests upon the police not only to discover the perpetrators of such crime, but also to determine, as promptly as possible their guilt or innocence to a degree sufficient to justify their prosecution or release. It is common knowledge that many felonies are being committed cur-rently by minors and an obligation attaches to law enforcement offi-cials to punish, prevent and discourage such conduct by minors as well as by adults. If Haley‘s part in this crime had been reasonably sus-pected by the police immediately after its commission at midnight, October 14, the police would have deserved severe criticism if they had not arrested and questioned him that night. The same obligation rested on them, five days later, at midnight, October 19.”
We therefore approach the issue in this case from the correlative rights of the state to discover the perpetrator of the crime and the right of the defendant to be free from unwarranted and unwanted pressure and coercion.
Upon being apprehended the defendant was placed in jail. On the next day he was identified as the person who had sold deceased‘s automobile. When he admitted the theft
“I, Eliseo J. Mares, Jr., make the following statement to David W. Murray and J. Eldon Dunn, who have identified themselves to me as Special Agents of the Federal Bureau of Investigation. I make this statement voluntarily of my own free will, in the presence of Sheriff George M. Fisher of Summit County, Utah; Sheriff Bernard Dahlquist, Morgan County, Utah; Captain Clifford K. Keeter, Ogden City Police Department; and P. H. Neeley, County Attorney of Summit County, Utah. No threats or promises have been used to induce me to make this statement, and I know that it can be used in a Court of Law against me.”
As previously indicated on the evening of August 19, 1946, defendant was asked if he would guide the officers over the route taken by him. This he agreed to do, and the only evidence in the record that during the complete trip he was confronted with importunities to say anything, was that at one point, when the defendant hesitated, the Sheriff of Morgan County stated:
“Sometime you will have to meet this anyhow.”
The defendant took the witness stand and gave his version of the killing. He was examined and cross-examined with respect to his confession and yet not one bit of evidence was offered by him which in any way indicated that he had been
Defendant was charged with murder in the first degree on the 21st day of August, 1946. He was brought before the committing magistrate on the same date and his preliminary hearing set for August 28, 1946. On this date he was brought before the Justice of the Peace and announced in open court that he did not desire counsel. The Justice of the Peace re-fused to proceed with the hearing in the absence of counsel, continued the hearing to a later date, and requested the district court to appoint counsel. This was done, but prior to the hearing, present counsel had been employed, and represented the defendant during all of the proceedings.
In our opinion the record discloses that the defendant was not made a victim of fear or panic or an object of police abuses. He was not offered immunity, reward or consideration. Considering all facts and circum-stances we believe that the defendant was not denied his freedom of choice, that the confession was voluntary, and that the court did not err in admitting either the various parts of or the completed confession into evidence.
Defendants fifth contention is that the court misinstructed the jury. A reading of the instructions as a whole leads us to a contrary conclusion. The complaints most seriously stressed by defendant attack Instruction No. 18 deal-ing with the presumpion of malice from the use of a deadly weapon and Instruction No. 20, dealing with the right of a person to protect himself. Insofar as In-struction No. 18 is concerned, this court in the case of State v. Vasquez, 101 Utah 444, 121 P. 2d 903,
Instruction No. 20 as given was as follows:
“You are instructed that under the law of the State of Utah not every killing is murder or even a crime. If a human being kills an-other in self-defense or to protect himself against great bodily injury which could not otherwise be avoided, then in the eyes of the law such a killing is justifiable or excusable, and no crime has been com-mitted.” (Italics added.)
The defendant complains because he contends the italicized portion required the defendant to retreat before he can claim self-defense. This argument disregards Instruction No. 22, which specifically provides
“that a person assailed need not flee or retreat, that he may stand his ground and use all necessary force to protect his person from great bodily harm.”
The instructions must be considered together and when so considered, defendant‘s criticism fails.
The last assignment deals with prejudicial remarks made by the District Attorney in his arguments to the jury. We are not required to place our stamp of approval or disapproval on the comments. We are convinced they were remarks which could be inferred from the evidence presented to the jury. Typical of the statements made and objected to by appellant is this one:
“As I said, he was an outlaw away from the Army without leave. He had stolen a Packard at Denver and he had to have some money.”
The remarks were within the framework of the record and we are not confronted with the situation found in the case of State v. BeBee, 110 Utah 484, 175 P. 2d 478. In that case the prosecutor went far beyond the evidence in the record. He made accusations neither in the record nor fairly inferable therefrom. Not so here.
We concurr.
MCDONOUGH, C. J., and PRATT, WADE, and WOLFE, JJ., concur.