122 P. 380 | Utah | 1912
The defendant was charged with, and convicted of, first degree murder, and was sentenced to suffer dearth. He appeals. The questions presented for review relate to admission of testimony and to the charge. ■
The evidence on the part of the state shows that the defendant and another, between five and six o’clock on the afternoon of May 9, 1911, at Salt Lake City, entered a pawnshop on Hirst South Street near Commercial Street, and, with loaded guns, commanded and compelled the persons in the shop to “hold up their’ hands.” Such other kept them covered with his gun while the defendant took from the shop or store seventy-two dollars, thirty-two diamonds, and some watches. They them left the shop and ran south on Commercial Street to Orpheum Alley, then to State Street, and then south to Second South Street. There the
The defendant complains of the ruling admitting the evidence of the robbery, the defendant’s flight, and his pursuit. It is contended these things constituted parts of a transaction separate and distinct from that on tidal. We think not. They were parts of one continuous transaction, and were connected with and were a
Among other instructions, the court charged the jury:
“The court instructs you that the defendant is here charged with the murder of Joseph Walter Axtell (the deceased). He is not charged with,'and cannot in this case be convicted of, an assault upon any person other than the said Joseph Walter Axtell, nor of robbery or buglary, no matter how closely the evidence may show such2 transactions to have been connected, with the killing of Joseph Walter Axtell. Nor can you convict the defendant in this case because the evidence shows, if you find that it does show, that the defendant was guilty of unlawful acts immediately prior or subsequent to the killing of Joseph Walter Axtell. Evidence of the occurrence at the Uncle Sam pawnshop, and of the assaults upon persons other than Joseph Walter Axtell, was.admittecl solely for the purpose of shedding some light upon the intent or lack of intent in the mind of the defendant at the time the shot that killed Joseph Walter Axtell was fired; and such evidence should be considered by you for such purpose only.”
The complaint made of this is that.the evidence of the circumstances preceding the shooting, if admissible for any
The court in its charge defined “first degree murder,” in the language of the statute (Comp. Laws 1907, sec. 4161), that:
“Every murder perpetrated by poison, lying in wait, or any other bind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or l’obbery; or perpetrated from a premeditated design unlawfully*437 and maliciously to effect the death of a human 3,4 being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life; is murder in the first degree. Any other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.”
The criticism made of this is that since the state alleged that the defendant willfully, maliciously, feloniously, deliberately, premeditatedly, and of his malice aforethought, and with the specific intent to take the life of the deceased, shot and killed him, and by its evidence sought to prove a murder committed by such means and in such manner, and not otherwise, the court in its charge ought to have defined and stated to the jury only the essentials of a first degree murder ; perpetrated in the manner alleged; and that it was prejudicial to the rights of the accused to state to them, in the language of the statute, a murder perpetrated by poison, or committed in the perpetration of, or an attempt to perpetrate, arson, burglary, or robbery. Of course, the state did not claim that the murder was perpetrated by poison, or committed in the perpetration of, or in the attempt to perpetrate, arson, rape, burglary, or robbery. The state, by-its information, and by its evidence claimed that the defendant committed murder in the first degree, by willfully and deliberately, etc., shooting, and killing the deceased; and had the court stated and defined to the jury the kind of first degree murder as alleged, without stating to them that a murder perpetrated by poison, or committed in the perpetration of, or an attempt to perpetrate, one or more of the felonies enumerated in the statute, also was first degree murder, that would have been all that was necessary. But the different kinds of first degree murder 'enumerated in the statute are there so connectedly set forth that it is difficult to state the one in the language of the statute without also stating the others. We siee no error in this regard, and, in any event, we do not see wherein the defendant was prejudiced. The court in unmistakable terms told the jury that he could not he
The court also charged the jury that, “if you shall believe any witness had willfully testified falsely as to- any material fact in the case, you are at liberty to disregard the whole of the testimony of such witness, except as he may have been corroborated by the credible witnesses or credible evidence in the case.” Complaint is made of this charge. Such a charge has frequently beien given and
Moreover, the defendant was the only witness in his behalf. The general alleged objectionable charge could not have influenced the jury to his prejudice, in considering his testimony, for the court specifically charged them to consider it, though uncorroborated. Could it have so influenced the jury in considering the testimony of one or more of the witnesses for the state ? It is said that the jury may have believed that one or more of such witnesses may have testified falsely as to some material fact, yet, because of the
In finding and rendering a Verdict of first degree murder, our statute gives the jury a discretion to make a; recommendation that the defendant be imprisoned for life. If such a recommendation is made, the court has the discretion to impose the death penalty or such an imprisonment. If no such recommendation' is made, the court must impose
We have examined the whole charge with care. We fail to find it erroneous against, or prejudicial to, the defendant in any particular. In some respects it is more favorable to him than the state, and if any error was committed it is against the state, not the defendant.
No complaint is made of a want of evidence to sustain the verdict. No such complaint can successfully be made, for the evidence clearly shows the defendant’s guilt of the charged offense. He was ably represented