*1 , THE STATE OF WYOMING Respondent, Plaintiff vs. RIGGLE,
CLAY Appellant.
Defendant 2666; 1956; (No. 5th, (2d) 349) June 298 Pac. *9 appellant
For the defendant cause was sub- upon argument mitted brief and oral also William Wheatland, Wyoming, G. Watt and N.D. Sherard of Tacy Bluffs, and Thomas Council Iowa. Respondent
For the Plaintiff and the cause was sub- upon George Attorney mitted Guy, the brief of F. Gen- eral; McPhillamey, Robert Attorney H. Deputy Gen- eral; Black, Muir, Howard B. F. Walter Jr Arthur General; Fisher, Foe, Attorneys Assistant M. R. Co- Prosecuting unty Attorney, County, Wyo- Platte ming; argument Guy, Mr. Muir and also oral Mr. and Mr. Foe.
OPINION Blume, Chief Justice. Riggle charged Clay with the degree guilty, pleaded
crime of first murder. He not pleaded sanity. guilty by and later further reason of had, jury A trial was and the convicted the defendant degree adding phrase first murder without *14 capital punishment” “without permitted by pro- 9-201, 1945, Wyoming Statutes, visions of Compiled § thereupon and the defendant was sentenced to in the die gas Rawlins, penitentiary Wyoming. chamber in the at Riggle
Defendant 20, 1900, was born in on December graduating Woodbine, from Iowa. Two weeks before high Macedonia, Iowa, at school he left and came west Wyoming. following to In 1920 he started rodeos and approximately twenty years. specialized did so for He roping acquired in trick reason of “Tricky”. twenty 1953, years of nickname Some before steer, striking against he was thrown from a his head a post surrounding of the fence the arena and was un period twenty conscious for a of about minutes. Some years previous nineteen he thrown a was from bull, striking- against his head a wooden fence Brahma thirty for was unconscious about minutes. There riding bucking in a after when he bronco show was ground thrown to the unconscious and and rendered days, period suffered total a amnesia for of three During the regaining memory in town. another amnesia, with ordi threeday period he rode broncos of testimony according nary facts are skill. These Wyo himself. Defendant came back the defendant doing a ming 1941, apparently for ranch work about Perry yard for in a lumber for time. Charles He worked prior years tol953. He did some three or four about stacking work, flooring, general lumber plastering, working for loading lumber, and so forth. While trucks 1952, Riggle a a fall from Perry suffered October being standing, upon he his head which was scaffold floor, head on and struck his nine feet above about possible floor and was unconscious the concrete working day but thirty He on seconds. went day headache. the next because of unable to work January he fell from backward Thereafter during commenced hav same month he boxcar and during he spells partial ing consciousness which forgetful incoherently, of the himself mumbled to him, forgetful presence were with of others who doing. during of the Some time some work occasions, ground several month he sank to on same lasting him, buckling spells up to these under his knees injuries from the did not March falls mumbling during require a doctor that time. After forgetfulness, changes period no other than he showed irritability and awkwardness. acquainted with
He Williamson became Frances during according summer 1952 and to his testi- agreed mony, he and Frances be married about *15 28, 1953. The defendant March testified about 1, 1953, apartment while in the March Frances Williamson, arguments he had some with Walter Akerblade, deceased, at which time he told Akerblade he and Frances Williamson were en- gaged to be married and that he threw Akerblade out apartment. of the charged
The homicide with which the defendant is evening 28, occurred on the of March between p. 8:15 and 8:30 m. In this connection two different Wheatland,
places Wyoming, in should be noted. The charged homicide with which the defendant is occurred Angle in what is called the alley Cafe which is on an in Wheatland, being the doors of the cafe on the south facing alley. place side thereof The other to be noted Top directly is the Hat Bar which is block west of Angle the block in Top which the Cafe is located. Hat Bar faces Ninth Street which is the main street approximately Wheatland and is in the middle of the Immediately block. south and on the corner of the same blpck Drug Company. Pioneer The street south Drug running Company, west, of the Pioneer east and alley is Gilchrist Street Top and there is an west of the Drug Hat Bar and the Company Pioneer which runs south, north and and in parked which the defendant had his car. quit
The defendant yard his work at the lumber p. about m. 5:30 on March 1953. His movements extent, commencing were traced more or less with evening, by about six o’ clock that four wit- different They testify nesses. did not all to the same or matters agreed incidents all angry but that the defendant was at Frances Williamson and Akerblade from about six evening up o’clock that until the time the homicide here question place took p. at about p. 8:15 m. to 8:30 m. of that date. Sparks,
The witness Top Bar, at bartender Hat testified that o’ evening about six clock that he saw Akerblade, Williamson, Randall, Frances and defendant *16 angry
Riggle and excited. in the bar. Defendant was Randall excited and Charles Frances Williamson was complained angry and Frances Williamson was excited. following bothering Riggle her and was to him objected which companions around to she her and her Riggle out. the defendant him to throw and asked Riggle right left to do so. he had no answered witness m., p. p. m. and returned about 7:45 about 7:30 the bar were and Frances Williamson time Akerblade at which going why Riggle he was the witness there. asked still he would the witness answered throw him out and Riggle any cause trouble. do if he not so did not then five minutes and to himself about mumbled during the that at one time The witness testified left. reg- something Riggle evening mentioned defendant Williamson; that defendant marriage arding Mrs. hell, giving drinking her little and the bar at marry him. cussing her to that he asked out and her said to the he went testified that Greenlee The witness evening clock same Top seven o’ Hat Bar about Williamson, Akerblade, Burk and Frances saw Riggle Rig'gle to the to talk there. started defendant at mad defendant was saw that and witness witness he somebody. he not know what Defendant stated did woman, meaning Frances going to do about had some noticed defendant Witness Williamson. concerning bartender, evidently difficulty with out, throwing stated that and defendant defendant get chance to throw him out as would bartender get he over the would kill him before could drunk. was not Defendant bar. Top Burk testified was. at
The witness John he p. Ferguson, m. on March Hat Bar about 7:30 Akerblade, Williamson, Randall and Bolte were Frances were at the and Akerblade there. Frances Williamson Riggle on Akerblade’s bar. came and laid his hand said, son-of-a-bitch, you shoulder and “You I told away stay you.” from her or kill Burk I would Witness Riggle anything. did went not hear Akerblade answer out came and told back about five minutes fooling quit if Frances Williamson that she did not guy, evidently meaning Akerblade, around with this would kill her. The witness further testified *17 angry defendant was he and looked wild. Joseph Ferguson
The witness Top went the Hat to down, p. Bar about 6:45 m. on March sat 1953. He stayed position at the bar and in that an about hour. Mrs. Williamson was in the bar when he came in and Akerblade came in about ten later. minutes Witness saw Riggle at the looking west end of the bar at Mrs.Will- very in angry Riggle iamson manner. talked to Mrs. objected apparently to Williamson and that the fact she drinking had with been a Mexican and Mrs. Williamson replied Mexican; that she did not care whether awas good that a Mexican was as as defendant. Mrs. William- defendant, appeared well angry son as to be but Ferguson, neither of them was intoxicated. The witness Williamson, Mrs. Akerblade and Randall left the bar eight about ten or fifteen minutes before o’ clock and standing were on the sidewalk Top outside Hat Bar. the Riggle joined them and to talked Akerblade but witness
could not hear that replied, all was said. But Akerblade “Anytime.” Riggle Williamson, said to Mrs. “As for Frances, answered, you, through you.” I with am She “Yes, glad They I am darn of it too.” then talked about prior an incident to that time when defendant men- go up wanted to his room fact that she to tioned the answered, “I never wanted him. Mrs. with Williamson going your go your am never to room and I room.” to to Williamson, Akerblade, thereafter Frances and Soon Angle over to the Cafe to witness went eat. the coming the defendant from The witness Greenlee saw Bar, going Top north, Hat and apparently the the from Drug Company to- around the corner of the Pioneer block, very alley going- the the west fast ward Ramsey, running. witnesses, saw or Two and Wickam the defendant come from the northeast across street Angle neighborhood apparently from the or in the Cafe eight approximately that. It or little o’ clock testimony evidently for the after. That was introduced defendant, showing he saw after purpose of Williamson, on Ferguson, Akerblade others and Mrs. bar, or front of went see whether in sidewalk cafe. Mrs. went Williamson not Akerblade when latter went followed Wickam corner, alley. as the But he did went as far around defendant, evidently off who had driven not see the appears already It stated that the defendant’s time. running parked alley north south car Top in which Hat Bar is located. He had a the block got car, rifle in the back of car. He drove north street, right Maple Street, namely the next turned town, main street and drove to the of the turned south just Angle parked and then south of the Cafe *18 slightly Angle car east the door of the That Cafe. Williamson, eight clock. Frances was after o’ sometime Ferguson, Akerblade, or others in the and five six were lights time. Fluorescent were and the cafe at the on lighted. was cafe well Angle witness, Angle, operated B.
The James who along Cafe, coming that he car testified heard a being alley parked near door. The and defendant Riggle from the car entered came the lunch room. came door and there. He on He to the stood had one foot holding rifle, fired threshold. He a shot and say, you, you heard “Damn told I Witness I get getting you you.” Ferguson and now I am would defendant, “Tricky, said to The cut it out.” first shot hit staggered Akerblade into the who back arms Joseph Ferguson appears and died. It defendant drove four bullets into Akerblade. The defendant next shot Mrs. Williamson and drove into four bullets her. She slumped stool, off the fell and died. Soon thereafter Riggle going by out ran the door and witness saw a car the window of hurry The in a cafe. car left jump. seemed to
The Joseph Ferguson, witness testimony whose or Top near the Hat before, Bar has been mentioned Angle in the Cafe at the time of the homicide Mrs. Williamson and Akerblade. Witness testified Riggle eight arrived at the lunch room at about clock o’ Riggle or ten or fiften thereafter.- minutes Witness saw gun Riggle standing after the first shot. in the door aiming gun at Walter Akerblade. He fired the first shot, hesitated, changed his stance and fired second shot. Akerblade was shot first and Mrs. Williamson Riggie said, you, you second. damn I “God told I was going get you.” got back, staggered up, Akerblade groaned his knees buckled and he fell on the floor and twice and died. Mrs. Williamson raised her head and toward looked the door that was all did until she she leaving, Riggle backward, steps was shot. In took three sideways quarter got two and made a his turn and into Riggle get car and left. Witness saw his car. open running
door was and the motor was faster than lights parked The car was with the normal. on includ- light. ing the tail Wheatland,
Defendant drove east struck a tele- However, phone pole nearly broke it. he drove his stopped car on further until it was in a ravine some miles east of Wheatland. Defendant stated when he to”, say ended, period that is to “come when blackout *19 point sitting in car a road at himself on
he found the motor turned off east of with some miles Wheatland anything He did not know of rifle him. beside thought wrong wrong something was because but usually kept full, empty. The gun, almost defend- was car, only taking the rifle. with him ant abandoned his along way then across part a road and He went of the night, during Saturday That fields to Wheatland. was into a which Defendant went house March during stayed being Perry built Willard was day night, Sunday, all March remainder of the day Monday, Defendant stated he March 30. and all happened but that he was afraid did not know what Riggle kept Monday the rifle him. while with On Riggle say, “Clay Perry he in the house heard Charles he, out, country, he?” left the didn’t sure took didn’t himself, testimony of the defendant and of Charles Perry conflicting point on and not con- from that stayed Riggle in the house un- testified he sistent. Riggle Doctor came into house and til dark. Mr. saying, stepped spoke out Defendant first closet. said, you “Are scared?” Doctor “No.” Defend- Mr. Doctor, anybody?” I hurt ant asked Mr. “Did Mr. then said, “Yes, you killed them.” Defendant then Doctor said, might my as blow out then.” De- “I well brains Mr. Doctor he wanted to Per- fendant told see Charles they ry. Perry Doctor Mr. when then said Mr. saw Riggle. go Perry testified fol- would and see Mr. lows:
“Q. you Do what the were remember first words you spoke he He me ? A. asked what he should do.
“Q. thing you Do remember what the second you A. he he asked ? If had hurt them. — “Q. you you your Do know do remember what reply you, was when asked “Did hurt I them?” *20 they A. I told him that killed. were both “Q. said, youDo remember what he said? A. He “Oh, my God.” give up
Defendant was and he then advised to himself county, Wyoming, surrendered to the sheriff of Platte p. about 7:30 m. on March place defendant’s version what took in Wheat-
land, Wyoming evening 28, 1953, on the March taken largely brevity’s from the abstract of the record for sake, substantially as follows: Saturday right
On I felt all at times. Mrs. William- called me at Saturday noon and told she would soil me go ready be night. She told me to look out going window she was to burn some trash and if I could my look out of something. (R-267) window I would see I thought loved that go woman and I we could make a dog it. I have a which is the care of Mr. Doctor. I was going dog along got to take the when we I married. generally got dog every place took the with me went. I I Saturday. (R-268) my off work at on 5:30 I drove to changed clothes, put striped room and washed and I on a pair pants, shirt, jacket of brown a blue a clean with a my fur my collar. These were best had clothes. I also going go hat pick and up Frances and to Lusk. (R-267). (into
When I Top Bar) came Hat and Mrs. saw bar, Williamson with these inmen I came in and sat down at the end. didn’t She look at me. Then Aker- blade left her I and walked over asked her if she wanted glass says you of beer. She “Did see bonfire evening?”
happened ready this I asked her if she go jumped up something Jerry and she and said Sparks. Jerry said, Tricky “If don’t behave himself I will (R-273) throw him Jerry out.” I asked what he rough any stuff it he didn’t
said for and want said my my night. ate then left and went to room and I got my supper and and then went to Post Office income mail for there was a Government check $3.00 Top cashed it. tax. Hat Bar and I went down to again (R-274) feeling her and I asked I was blue then gotten her and she Randall refused. Akerblade and had whiskey drunk on beer think Greenlee. and and I Elmer throw her I went back hated to out. I loved her and get my thought car got my her in (R-275) I could car. I getting get away her her that was from bunch go brought my around car drunk. I knew she would so I Top there. I around Hat Bar left it went behind the *21 they standing is, and there were the street. That on Williamson, and Dave Mrs. Randall and Akerblade says, know Rafit. her then and don’t I asked she “I you mean, you left what I know what mean.” I don’t they and the come started across street. She wouldn’t thought car, my to with me. I went sat there a bit I and try I that would more had around her one time. I come gotten Pharmacy my (R-276) the Pioneer car. and I car, up my to the door and up around and started drove laughing. sitting don’t know what saw I them there pieces just don’t happened to and on. I went from then happened. know what anybody. no intention
I had did not threaten I alley shooting anybody. I I down the drove When thought they might La I didn’t be at the Ramie. Angle’s. going stop they know were at I was to Jim try get get to to her in car so we could started Lusk. seeing laughing I last remember them before I blacked out.
He testified drove to the cafe and further that he stopped lights with the motor of the car on running. open. if He did not know he left the door He car, of the did not carried rifle in back but know when he it back the front seat. took from the into doing He knew what until he Akerblade he was saw laughing'. He looked in and Mrs. Williamson saw he them and he remembers. He denied that all previously gone had at to see if Mrs. Williamson was Angle Cafe. Other facts will be mentioned later. Insanity. 1. Defense of pleaded guilty by
As stated before defendant reason insanity. accordingly, The district court in accord- provision ance with chapter Laws Session Wyoming, directed the defendant be sent to Wyoming Hospital Wyoming, State Evanston, at observation. It contended that the state failed is now prove contrary defendant was sane but on clearly it is shown that he insane the time of at charged commission of the crime and that herein acquitted by insanity. should have been reason of witnesses, namely, Perry, Three Mc- L. P. Charles Guire, they and Dick Doctor testified considered abnormal, mentally upon be fact based forgetful, himself, that defendant mumbled to stumbled, fell and so forth after about October physicians Wheatland,
Two Wyoming namely, at Dr. James G. Allison and Dr. W. H. testified Collins *22 insanity the it defendant. Dr. Allison testified that possible was psychomotor defendant suffered from during epilepsy and that he time would be unable distinguish right wrong. between test- and Dr. Collins opinion possibly ified that the defendant and probably psychomotor epilepsy the suffered from at Akerblade, time when he killed Mrs. Williamson and again quite de- stated that he the certain having psychomotor fendant was seizure at the time physicians ex- of the homicide. of these had Neither amined the defendant. July the
On was taken to defendant the Utah, City, office of Dr. Lake Chester B. Powell at Salt specialist on neur- for examination. Dr. Powell ais ology neurosurgery. the He testified he examined neurological of him and made examination on that the date for about 45 minutes and that exam- damage, ination disclosed no brain no brain disease nothing abnormality. that His exam- would indicate ination disclosed that the actions were of the defendant psychomotor coordinated which is true in the case of electroencephalogram epilepsy. an test He ordered also Taggert. given we by As under-' which was Genevieve it test is instrument attached stand made an paper person the the electric head which records on of a activity test testified that this of the brain. Dr. Powell abnormality part of defendant. disclosed no on the taken a test while He further stated while such patient dependable only is awake is one-third when taken while the cases and is more effective sleeping, great patient no additional is there would be patient above taken while benefit over and awake. hypothetical question put
A doctor which substantially here- which we embraced all facts have tioned, including injuries tofore men which the various following during the defendant time he was received Perry. working rodeos and while he was for Charles question hypothetical were included in The facts respective parties, agreed upon by so counsel defendant, to the should embodied and favorable facts mentioning fairly After considered to be accurate. be four were fired into bodies the facts that bullets the doctor stated: each of the individuals *23 object “These would indicate shots all struck firing, activity. in- an The accurate well-coordinated only activity dividual coordinated in this re- his spect, question place accurately hypothetical shots but changed also states that he his stance and suggest adjustment would that an additional to make place. individual, the act more effective there- took fore, appear did not confused this be unclear or but suggest clearly.” functioning would that the mind was Again he testified: say, “As I this would indicate aware that he was environment, surroundings aware of the and that his memory was intact for those within that circumstances period. Also, that, question, the fact as in the stated “gunned” car, rapidly have left and to have and I you up gravel,’ ‘thrown believe said indicates to me leaving rapidly, he had a that he must have reason fleeing episode interpret from an and I would as an evidence that the an individual had awareness of rightness distinguished wrongness clearly episode or about the something wrong.” it as Again the doctor stated: my all, say opinion, hypo- “I should in first that the question presents way thetical no in evidence to me specific seizures, activities, interpret I would specific psychomotor presents evi- seizures. It no also damage findings, organic despite brain in dence of head; many he had sustained on the fact that that blows there was the sum total of that on evidence diagnosis psychomotor epilepsy.” which to make Speaking of claimed amnesia when defend- defendant’s laughter, ant heard the doctor testified: question “Your as to whether that could have been the seizure, psychomotor say my opinion would I that it could not have been for the have reasons I outlined: The patient place; aware of his environment at the time and distinguished right wrong; from his move- accurate, ments were coordinated and and for additional evidence that I outlined when I discussed points.” those individual psycologist employed at
Mr. James Sandall is a Wyoming Hospital He examined Evanston. State at hospital to deter- was at the defendant while the latter *24 psychosis behavior mine or mental deterioration and patient. no He and found mental deterioration no or psychosis. The no hallucinations defendant had him disclosed that The examination delusions general ability average and was man defendant a nothing any there to abnormali- was on the test indicate ty. any spells am- blank and Defendant denied he had he any spell which nesia at other than the blank time claimed at the homicide herein. time of the Joseph superintendent
Dr. med- and F. Whalen is Wyoming Hospital ical director of at Evanston State specialist psychiatry. and a in The doctor took things history. Among life other defendant’s Whalen, in the abstract of Dr. summarized stated to as 90) record, pp. follows: Wyoming worked on ranches “He came and then according his and followed rodeo business and world; that in the own statement was one of best commending roping many write-ups had his he had ability; with civil authorities and most trouble in childhood that he had never been in along gotten with had well people. term in He that he had served a stated penitentiary attempt re- of murder for which he years that ceived a sentence of 5 31 months. He didn’t think it he about or6 but served just that had and he was fight peace (R-532) He a officer officer attacked woman. with over a peace pro- said him without defending during vocation this and that he was himself penitentiary shooting. he like the but He said didn’t co- cooperated us. likeable and with was most he He leg drag operative. organic his he had He would left and said thought damage. He it due to brain said he was in acquiring syphilis 1942 treatment and later injury. any serious or He did not indicate illnesses operation fR-533) had He had hernia and his tonsils he he adenoids removed. was said When he months, married a woman and after 4 found she previous was divorced from He her husband. said gotten that most of the trouble he had into had resulted dirty from deals from women. physical negative. “His He examination was had some right bad teeth and a ex- hernia on his He side. physically, appeared cellent condition but to be older age. charged than the stated He said he was with the shooting associating people; crime that he had been with this woman who was of low character but he liked her and marry wanted (R-534) her. called on She him at day night demanding all hours of the him; broke; money kept him from she she threatened charge rape; him with found her out with jealous enraged other men but that he and at doing. times didn’t know what he was agreed “The date defendant and the on a date woman evening intended, to be married on the but date drinking he found her another with man. She refused *25 go home, to with him. He stated that he went had his supper him. for trying persuade go and came to her back to with got gun usually He from his car that he carried hunting and intended to scare the woman and the everything man and then went he black until came to canyon. in his automobile He in went to the house under construction and hid and that he didn’t know happened talking what had until he heard a workman day it. about It was a or so afterward that he out found people. (R-535) that he had killed 2 friends He called for some employer company and his and in their sur- rendered himself to the authorities.” psychiatric The doctor made a examination of defendant and testified that the defendant well was oriented spheres, is, in the place, three that time and he, was why who where he was and he was there and hallucinations, without delusions. The defendant had no his, good, good memory his recall was was and memo- ry past good. for and recent events was He an essentially person psychosis normal without or mental discharged the sheriff. In
disease and was back question defendant suffered to the whether the answer “1 epilepsy pyschomotor the doctor answered: from no say period with of observation would that after were any attacks of disorder or evidence conclusive negative by personnel, brain with the observed trained examination; negative neurological with a wave and psychomotor any at- there is no evidence whatever of period time, in an tacks that he wasn’t over a of homicide) in (commit an not do attack and did this psychomotor epilepsy.” attack of go in We could the evidence this connection into in greater good purpose detail we to be but can see no doing by detail subserved so. To it in would set out bitterly make a book itself. Counsel for the defendant complain electro- that Dr. Powell did have an encephalogram made test while the defendant asleep. must, however, It add- be remembered that neurological test, exam- ition Dr. Powell made a 45 minutes and ination of the defendant about electroencephalogram only part exam- test was testimony here- ination made. From examination greater detail, out, going any it without into tofore set judges quite apparent jury, were the is who facts, finding fully justified in the defend- were ant sane when he committed the crime with which charged. Sufficiency Testimony toas Premeditation. It is contended defendant that the evidence in the premeditation any case fails show or deliberation *26 here; question in the evidence commit homicide anger of defendant was that from the time the shows opportunity neither time nor there was aroused Wyo. Rouse, 134 P. v. defendant to cool. State defendant, help 2d which not is cited does this case. The court that casé sustained a verdict of degree first It is murder. said counsel that defendant angry overwrought shooting; at the time of the likely, it is not if to the defendant had intended kill, main, he would have driven down Wheatland’s lighted stopped light street and under in front of Angle necessary Cafe. We do not think it is to discuss question premeditation of and deliberation exten- sively of evidence we in view the which have heretofore forgotten set defendant seem have out. Counsel for to jury that we are not trier of facts. It was for the to weigh quite apparent in the It the evidence case. is from jealous, testimony that an- the state’s defendant became gry very shortly p.m. excited or close to after 6 day to homicide committed and remained so the time of the He to homicide. had two hours or more upon deliberate and think whether or he not should anger permit go committing to the exent of question. According evidence, homicide in state’s disposition he showed a homicidal six o’clock soon after evening in the when he stated he would kill the barten- attempt der if he should the Top to evict him from Hat Bar.
According Burk, testimony to the of the witness threatened kill Akerblade and Mrs. Will- p.m. quarters iamson about 7:30 had He about three an hour to deliberate as to whether or not would he say carry Counsel for defendant the test- out his threat. imony thoroughly Burk discredited because of asked, testified that fact that the coroner when at inquest, anyone coroner’s whether not had threaten- or inquest ed kill all the the deceased witnesses at the answered, “No,” might and that while there be some it he felt doubt about satisfied that Burk was one gave jury required who those answer. were *27 34 testimony in discredited. It is was find that Burk’s
to Angle Joseph complete harmony and that of James with jury requir- Ferguson Nor were the heretofore set out. anger caus- fatal was ed to believe that defendant’s in Mrs. the fact he Akerblade and Williamson ed saw Angle laugh that then his them Cafe and heard According this mind went blank. to his own statements jury to The were entitl- had never occurred him before. got his ed to believe under the evidence that defendant automobile, it, in of for the which had a rifle the back finding specific purpose killing of both of plenty He deceased. had of time cool and deliberate driving Angle during period was when he .the together with heretofore mentioned The facts Cafe. deceased, no that he shot each of fact that he shot cafe, posi- in that he shifted his one else who was apparently no be that he would shoot tion so toas sure returning think, fully justify, else, jury we one they which verdict did. Photographs. 3. complain of the admission
Counsel photographs evidence of which taken in the cafe were showing part row of stools and a the lunch counter lying* and both of the floor. have the deceased on We photographs. They these charac- examined are They passions jury. shed ter as inflame actually place It light took in the cafe. on what some them in v. to admit evidence. State not error Goettina, 73; Lantzer, Wyo. 61 99 P.2d State v. 55 Eagan 865; Wyo. Wyo. 420, State, v. 58 P.2d 215. 128 P.2d Testimony Defendant’s As To His Own Soundness
Mind. when on the stand was asked
Thedefendant witness injuries spells head whether in view of suffering derangement. from some sort of mental He “Yes, objection answered. sir.” An was made and the stated it court was not redirect examination. exception
answer was not stricken and no was taken to the action of the court. It is stated in 22 599: C. J. “For obvious reasons a permitted witness cannot be testify to his own mental soundness or unsoundness.” 506, p. See also 32 accordingly C. J. S. 168. We find § no *28 error. Feelings.
5. Defendant’s following The defendant was asked questions: “Q. Riggle, you you gun Mr. do know now that held a personally and fired Well, fatal shots? A. as far as knowing, no, I don’t. “Q. you How Well, just do feel you about it? A. —I suggest, can’t can I ?” prosecuting The attorney compen- asked what was the tency and the objection. court sustained the No ex- ception by was taken defendant. The answer of the jury witness was stricken and remained for the particular consider it. No offer was made any to show feeling of defendant so we do not know what was ex- pected to be shown him other than what he stated. Possibly expected counsel the defendant to state that he sorry help was but that would not the defendant. It was too late. see no We error in this connection. Stating
6. All AOf Conversation. The defendant was asked when on the witness stand: “Q. Now, you when found Mrs. Williamson with bar, these you Well, men in the what did do? A. came I first, I up noticed before her—the bar comes and (indi- come a turn —and I in and makes cating) sat down here hurry. Though I was a because I was on the up sitting Well, end I looked and she was there. over up just then dropped when she looked me seen she (indicating). head, eyes didn’t She
her look at me there—I her like that ;she I sat then acted like was ashamed. she So, bought glass finally, me beer then. a right said, myself and I left I walked over when Akerblade her glass bought you 'Do want of beer?’ I her a glass says, you of beer. Then she ‘Did see ” evening?’ happened bonfire that this prosecuting attorney objected evidence as being being incompetent with conversation stated, objection.” person. The court a deceased “Same assigned con- Exception was taken. Error is in this part as it is that this of the con- nection claimed Ferguson Joseph had to which witness versation testified and that the defendant was entitled to show It was had at that time. is which conversation all the part of a elementary conversation rule that where an prove party entitled to is put in evidence adverse is 26 Am. Jur. conversation. § the remainder of part it fact a of the conver- was in p. Whether Ferguson testified not at the witness to which sation testimony proper if for no However the all clear. of mind of the than to show the state other reason objection prose- at that time and of the *29 by cuting attorney was the court meant not valid. What stating objection” we do “Same not know. Whether objection the or not court meant to sustain we do the any the evidence know. In event was before not jury accordingly say not stricken. cannot and We prejudiced by defendant was the statement court. of the at 7. Presence of Defendant Conversation. Sparks, Top
When the witness at the bartender Bar, Hat was on the witness stand asked whe- he was by any any complaint one was made to him ther or by complaint a was made Mrs. Williamson. stated and hearsay objection it was was made that unless An definitely presence in the of the conversation was defendant. The state then showed that defendant away. question repeated six feet So the as to complaint who made the and the answered witness Williamson, it was Mrs. she asked witness to throw the defendant out because he was bothering objection testimony. her. No was made to this Furthermore it would seem that matter of fact as a although defendant complaint evidently heard the he Sparks. by the answer of It is shown misunderstood for the state that stated one the witnesses defendant kill bartender before he could reach the he would already throw him out heretofore to assignment stated. The in this connection is of error accordingly not well taken. Payment to Dr. Powell. Powell whether or witness Dr. was asked as to usually paid giving testimony
not he was a fee for his he then answered in the He was asked affirmative. arrangements as to what with Platte he had made county compensation receive. as to which was to objected incompetent, im- That was irrelevant and to as objection material and the was sustained. It is contend- ruling ed this was reversible error and that defendant money to informed of the amount of was entitled be testimony. It receive for which Dr. Powell was to recognized proper permit held and that it is has been tending to of com- cross-examination elicit the amount by pensation party received witness from employed testi- such witness is whom he whom among cases, fies. 70 which other cites our C.J. Finley, Wyo. case of Pullman 125 P. Co. v. own 977, relating compensation also 70 to be 380. See C.J. paid physician. accordingly per- It would have been fectly proper required if the witness had been answer not, however, question he was asked. Whether or
38 ques- is another of court was reversible error
rule the Co., 364, N.W. Minn. 165 Flick v. Ellis-Hall 138 tion. In which, upon 135, to cross- held that the extent the court concerning examination, may a wit- inquiry be made litigation left is pecuniary interest in the claim in ness’ of the trial court. See to the discretion similar sound Co., Cal.App.2d effect Davidson Brick 55 Crutchfield v.
34, 2d 183 P. 130 270, Company, it is v. Ala.
In Mason Alabama Iron salary paid person, who held that the amount of subject case, by employer in the not testifies is a fit inquiry. Panchuk, of In State v. 53 N.D. 207 N.W. require 991, 993, whether or court held that compensation of within the amount is to state a witness follows: of the court. The court stated as discretion always permissible to facts and circum- “It is prove tending prejudice or a wit- show bias of stances particulars Ordinarily or the the cause of such ness. legitimate subj inquiry, except so far are not ects of bias as the trial discretion, court, in exercise of a sound dispute, appears, it permits. In the at bar without case employ in evidence witness was of for the state collecting purpose the Pro- of of violations of hibition Law. prisoner Counsel not satisfied to establish fact, prove desired amount
this
but
of the com-
pensation.
amount
proof
There
the
no offer
is
either
to the
as
compensation,
or
to whether
such
any
contingent upon
inwas
manner
amount
the outcome
Undoubtedly
prosecution
the discretion of the
.
of
trial court should
liberally exercised to the
be
end
tending
may
every
jury
have before it
fact
reason-
any
which,
ably
present,
circumstances
if
to disclose
upon
may
terested
wholly
existence
doubt
disin-
cast
complete
essential to
frame mind
confidence
legal
of a witness. The
candor
defendant has a
in the
right
prejudiced
that witness for the
show
state
Hakon,
against
State v.
him.
N.W.
39
inquiry,
largely
however,
The extent
the
is
within
of
the
judge,
sound discretion
the
of
trial
and his conclusion in
that
the
appears
behalf will not be disturbed
it
unless
that
ruling
Upon
amounts to an abuse of discretion.
the
justified
holding
whole record we do not feel
in
that the
excluding
trial court abused its
in
discretion
the
compensation.
Long,
amount of the
See
v.
115 A.
State
734,
the State v. 95 Vt. 115 A. 736, in which the court arrived at same conclusion as the North Dakota court heretofore mentioned. The court stated as follows: always permissible interest, “It bias, to show or
prejudice of one who testifies in court. But the cause or particulars proper subjects inquiry thereof are not 577; (State Glynn, Smith, Vt.425, Vt. v. 51 Bertoli v. 69 court, 76) except 38 discretion, far as the in Atl. so its trial Baird, 257, may (State v. allow 79 Vt. 65 Atl. 101; Atl. Express Co., 521, Dionee v. American 91 Vt. 101 348, Taylor State, 209). It was held in 121 v. Ga. 303, having 49 S. that a witness that E. testified he was man, employee an the murdered terms of his employment irrelevant and In were Beau inadmissible. champ State, (Ind.) 299, respondent v. 6 Black. in a murder case was to that the son allowed show and employed widow the the deceased had counsel to assist prosecuting attorney; ques but it held that the was contingent tion whether this contract was fee on or properly States, In was excluded. Ball United v 163 662, Sup.Ct. 1192, U. S. 16 41 the court L.Ed. permitted below, for th e in counsel defendants cross- prosecution, material witness for the examination of employed they had counsel district ask if to assist the had, attorney, they they admitted that court but inquire they paid to allow them to how much refused counsel, ruling this was sustained. State such v. 1159, supports Carroll, respon 51 Iowa N.W. case, however, in contention. There were dent’s special and casting suspicion circumstances on the character detective, regard reliability and we do not * ** That case precedent to follow. case aas safe any than is above mean more not intended to cited was There, had the witness is shown the result. indicated detective, and to receive
testified he was a pay services, did not compensation and that for his it depend upon held that inthe case. It was a conviction exam- the witness to be was not error to refuse ined showing allow salary. no of his There was the amount show, hand, in nor offer case conviction, ex- upon pay depended Wood’s trial court’s dis- question within the clusion cretion.” Record. with Prison in Connection
9. Cross-examination *32 testifying Perry, of behalf Charles on The witness defendant, the defendant known since the stated had reputation for truth that the defendant’s about 1946 and good. Thereupon veracity on cross-exam- was and ination, attorney prosecuting the witness the asked penitent- in had been the whether or not defendant the iary objected by That was counsel from 1946 to 1949. to for the claimed to be reversible error. defendant and is by of defendant cannot be attacked The character put by if in the state it is not issue the former. Anderson State, 345, Wyo. Unfortunately 27 P. v. 196 inviting responsible for for counsel defendant were an reputation for the truth ver- thereon. The attack as acity not a relevant issue of the defendant Only particular fully trait shown. a hereinafter more — in pertinent in case be shown can trait, instance, peaceful for of a at the case bar 677e, p. person. 1074. Nevertheless the de- 22 § C.J.S respect put in issue in the men- his character fendant right inquire had a into the then to tioned. state knowledge witness to re- of the of the as this extent time, length include the if not putation, which would 1514b. Thus it is said in 58 Am. 71 A.L.R. too remote. §657, p. 363: Jur.
41 “ ground may be witness cross-examined knowledge acquaintance opinion, or as to whose as his his such testified, person reputation he with the has opportunities acquiring for information.” People Sambrano, Cal.App.2d.
In v. 32 91 P.2d 221, 230, the court stated: that, “The rule is well the absence established in faith, good
bad re- who has sworn witness putation person peace quiet of an for or accused truth, honesty intergrity, may be asked on cross-examination whether consideration and takes into he knows of specific acts and inconsistent conduct reputation him, when with the attributed to such acts actually examining attorney, occurred or when the good faith, guilty believed that the defendant was 327, 335, People McKenna, v. 11 79 P. them. Cal.2d 1065; Stevens, 92, 99, People 2d v. 5 Cal.2d P.2d 133.”
True, might simply witness have been asked as neighbor- Wheatland, whether the defendant was in or hood, during fact that defend- but the during prison ant in that time would make fact say question clear. And cannot we asked was good not asked in faith.
Assuming, however, prosecuting attorney question should not have asked in the manner did, question which he the ultimate *33 after all is whether prejudicial. it or not was place, In the the defend- first actually ant became Perry a witness after had Charles testified and it improper would not have been to have question asked the above mentioned on cross-examina- tion of the defendant. was It not asked when defen- stand, may dant took the witness but we think we as- sume it would have been asked if fact not had al- ready appeared testimony Perry. in the of Charles So it merely question is to of time as when the fact invol-
42 place, de- appeared. have In second
ved would
having
in the
been
of
told all about the fact
fendant
as herein-
talked
Dr. Whalen
penitentiary when he
True,
appear that
fully
not
set
it does
before
out.
might be
that the evidence
defendant had been warned
against
any com-
appear that
him.
usecl
But it does not
pulsion
the statement.
was used when defendant made
merely
fact,
was
an
It
a collateral
admission
warning
charged herein,
guilt
and no
of the crime
fact,
vol-
necessary if,
evidence
as a matter
case at bar.
untarily
appears
true in the
to be
made
183,
1252;
Osmus, Wyo.
P.2d
276
22
v.
73
C.J.S.
State
Wyo. 778,
469;
State,
252
1030.
36
P.
Strand v.
irrespective
is
fact
What we have said
insanity,
opens up his
pleads
when
length in
discussed at
State
whole life. This was
some
Wyo. 29,
Carroll,
it is stated
The witness that the defend- Charles testified yard at lumber for 3 or had worked ant him during that his conduct years had observed and he asked: time . He was “Q. Perry, your observations and ex- Mr. based on this, you before have testified perience as which Riggle’s you your opinion Mr. court state
would morning of nine o’clock on the mental condition at you you had time which testified March seen at
him.”
43 question objected was to for the reason that no proper objection foundation had been laid was objection sustained. The not was well taken. The might permitted witness well have been to answer. Rumble, 1; State v. 81 Kan. 105 P. 25 L.R.A. NS. 376. A man period who has worked with another years qualified of 3 or should be well to state However, question mental condition of such another. vague was rather and uncertain. condition The mental of a man in any great importance and of itself is not of in charge connection with a such as is involved in this all, morning case. date, We on may of a certain be gloomy, joyful contrary. depressed, happy or or That is a does not mental condition but itself mean much a case we before us to elucidate such as have unless mental condition shows or at borders least question on the to abnormal. The itself asked witness Perry not does show that mental condition an abnormal sought was to be shown. Perry’s yard
Two workmen at testified that lumber they mentally considered the defendant abnormal. One say sanity, them stated he could not as to but that the mentally defendant was abnormal. we do not While Perry know what the answer to witness propounded question been, would have surmise this we is all the witness would if had have testified to he been permitted to answer. As a matter of fact while the wit- permitted question put to ness was answer categorically, actually him he testified the fact that Riggle mentally was and that there was abnormal something wrong (Abs. 34) The witness with him. Riggle appeared morning angry stated that on 28, 1953; mumbling March himself that anything if witness him out of the asked there way asking him to measure the and defend- windows answered, Charles”; “Why no, Riggle ant measured with in connection all made a mistake windows but him mistake for was not normal
of them and that Higgle day He later in make. further stated that *35 day good during happy the was he had sale made feeling condition pretty happy was about it. The mental by accordingly Higgle 28, 1953, on March shown categorical question witness. An answer to anything. cited to are would have added little if We 1214; 50, 719, Cooper, A.L.R. 87 S.E. 8 Statev. 70 N.C. 1234; 513, State, 420, A.L.R. Hall v. 78 Fla. 83 So. 8 1093, Schneider, 504, 72 State v. 291 P. 158 Wash. A.L.R. In was asked the Schneider case the witness right whether not In or the defendant was in his mind. asked, Hall case the he of witness was “Was mind, insane, or sound several unsound sane or killing?” Cooper case the In the months before the knew not the defendant asked whether or witness was right wrong. accordingly direct from In these cases not as whether or attention was called to fact in the That is not true defendant was sane or insane. distinguishes cases from the case at case bar and this cited. argue the matter now
Counsel for the defendant though expected they to show before us as had morning witness that the defendant was insane on per- 28, may nonexpert be March 1953. A witness testify insanity mitted to to the another. 20Am.Jur. 852, 853, pp. this 714. A distinction is made in §§ opinion may express lay his A witness connection. say person person sane, may not that a is but is specifying which he founds without the facts on insane question put to opinion. his note 65. The C.J.S. stated, itself, already Perry does not as the witness expected prove by the indicate that the defendant the defendant was insane. No offer of witness that made, proof so we are in dark as what the actually would have answered. It is stated in 880, pp. 100, 23 C.J.S. 101: § received, opinion nonexpert “When the of a witness is upon the facts and which he circumstances bases opinion practi- or conclusion far is should be stated as as cable, jury may upon in order have some basis opinion.
which test the value of his Such facts admissible; and, shown, they are opinion ible; where are not witness, may or conclusion of the be inadmiss- evidence, may but where it such facts are in opinion be error to receive the or conclusion of the witness, although, hand, may proper on other be it conclusion, opinion or not erroneous to exclude the or jury where the are able to their own draw conclusion from the facts.” 507, p. 174, In 32 C.J.S. it stated: § opinion “The qualified lay relevant of a witness as to sanity insanity, or or soundness or unsoundness of *36 mind, is where admissible he circum- states facts and sufficient, sufficient, amply stances which are or opinion. a reasonable constitute other basis for his theOn hand, sufficient, where the facts stated are not opinion give in the of the court to a reasonable or basis any opinion inference, basis for the or or ad- sufficient clearly stated, may missible facts are not the witness be rejected incompetent opinion and his excluded.” Schneider, See 504, 1093, State v. 158 291 Wash. P. 1096, 571; 72 Cahow, 1258, A.L.R. Zander v. 200 Iowa 90; N.W. In re Mott’s Estate 200 Iowa 205 N. W.770. In the case Perry at bar the witness testified morning that on March28, 1953, of the defendant angry; himself, was he that mumbled to which is not angry person; unnatural for an defendant that made measuring windows, in mistakes which was not a defendant, normal mistake for but which would not be angry; abnormal for a day man who is that later in the happy defendant was because of some fine sales day. which had made in the thinkWe it is clear that a sufficient basis not constitute this did express opinion the defendant witness to morning conclude 1953. We of March insane on the any preju- accordingly fails to disclose that the record here discussed. the matter dicial error in 11. Instructions. with objections in connection
A are made number urged time point the court. instructions of One again We interlineations. is the fact the court made judge know, trial course, the for that. reason The ordinary had of instructions which fitted forms did at Not alone case homicide but not case bar. guilty by plead guilty reason the defendant not but judge insanity. had the trial with The forms which question of in any did not make reference him which were sanity the interlineations that most of so have It would doubtless matter. made referred to that the instructions caused been better if the court had jury in hardly retyped, think we have been but harmed any way defendant was misled or that th e the interlineations. the term complain the court used
Counsel 2, the In instruction “chimerical” in instruction 4. juror permit be court himself to stated “no should .that against any because extent influenced case.” of or account of the Information this on Objection any extent.” is made to the term “to jury information court that “the also instructed the charge against this case mere is of itself a accusation or any evidence of defendant, of itself and is not *37 it- Objection the term “of guilt.” is made to defendant’s de- did not Objection that thecourt also made self.” degree in the terms of fine murder the first in etc., robbery, poison, question of statutes in among other instruction 11. court left out. In things intentionally jury told “If defendant weapon deadly killed the without such deceased with a provocation apparently excite in sufficient killing passion him an irresistible was not such * * Objection self-defense is made to refer- question ence of no self-defense when of self-defense Objection was involved. is also that instruction 5 made i duplication sa useless instruction 4. of
Objection part is also that in made instruction 20 subjunctive the court used of the in- mood instead foregoing dicative objections All mood. are matters importance, harmful, little or no were not and are not cause for reversal of this case.'We mentioned have merely may thought them it so be not that we have not given every objection of defendant the most careful consideration.
12. Instruction Asked. objected give the court did reading asked instruction 20 as follows: premeditated requires are “You instructed that malice opportunity there should be time and for deliber- thought, ate and that after the mind conceives the thought taking life, conception is meditated upon, and a deliberate determination formed do the act. premeditated “Without malice there cannot be murder degree. 1st if “To determine there has been sufficient time opportunity lay thought for deliberate and meditation to plan murder, you permitted are and in- capabil- structed to into consideration the take mental ity mon defendant. are of the You instructed that it is com- knowledge superior person intelligence that a require mind is and keen would whose alert less time lay plan for murder than one whose mind is less alert and less keen.”
48 hav-
Emphasis upon fact for the defendant is made the was ing plan. think matter suf- time to make a We the ficiently 9 the court which in instruction covered among things: stated other opportunity requires time and “It that there should be thought, mind has deliberate for after that thought thought taking life, is conceived the upon deliberate determination formed meditated to do the act. This and a being done, no makes difference it how carried into soon the fatal resolve is afterwards specific period execution. no time There need be be- in the mind to the formation of the intention tween killing long as there was some time kill and the so deliberation.” by the stated the cor- think the instruction court
We sufficiently point in- of law covered rect rule upon by defendant. sisted — continued.
18. Instructions court, among things, other In instruction 16 the jury follows: instructed as although you may is believe that the defendant “And disease, or in- in some manner a victim of mental sane, is nevertheless, said, as it if evidence con- is beyond you vinces a reasonable doubt that at the time shooting, of the knew and understood nature probable consequences and was more, of his and knew it act morally wrong law, or forbidden and further- time, that, power at same he had sufficient of will to control to repress enable him to acts and charge victims, you impulse to then I his for his kill his legal insanity act, any will constitute excuse though you treat case no evidence should as insanity had introduced.” been insane, phrase particular “or it is is said” is the might very objection phrase to which it is made and changed. However, have or somewhat well been omitted copy given instruction is an exact of the instruction
49 State, 42, Wyo. P.89, in v. Flanders Answering objection same as made case present case, in the the court stated: objected paragraph “The last of instruction 14 is also By to. the We fail discover wherein it is erroneous. it jury told, effect, insanity to a certain degree insanity was not such as would excuse the de- beyond jury fendant. If the satisfied reasonable *39 that, notwithstanding condition, doubt such mental knew and consequences understood the nature and act, his bidden morally wrong and knew that it was for- or by law, and, furthermore, that he had sufficient power acts, will sanity partial to control his then such in- legal not would constitute for excuse his act. substance, That in we believe to be the rule of law in such cases.” 14. Instruction on Motive. requested
The defendant
an
instruction
the effect
jury
if the
should find the defendant had no
taking
motive for
the lives
parties,
deceased
the
might
they
take that
fact
into consideration in de-
termining
sanity
insanity
the
or
of the accused. The
give
court did not
instruction
this
refusal
is
assigned
not,
think,
as error. The instruction was
we
applicable to the facts in this
It
case.
seems that
in
given.
New York an instruction on motive should be
People
Sangamino,
85,
v.
258 Y.N.
Defendant, stand, when on the witness testified he cashed money check he have $50 so would to take they might Mrs. Williamson to Lusk in order that be court, objection made, married. The when was stated: “Well, any relevancy it has I don’t know as case this go particularly, but we will let it in.” That remark is claimed to be reversible error. The statement should right pass not have been court made. The has no upon weight testimony. However, of the the check and, if was admitted in evidence we $50 understand record, passed it by was around and examined jury was, think, so the remark of the court we harm- less. Angle “Q.
The asked, witness you James Are certain, however, the man which stood at doorway Riggle? am, was Mr. certainly A. I I am. Q. you?” How objected certain are That was to as a conclusion. “Well, Then the court stated: he said is certain, strong Milt. That you is as a word as can use.” Objection passing made that court was on the weight of the evidence. thinkWe is true. The trial attempt court should not think, conduct the case. We however, that prejudicial. the remark was not engaged lengthy
The court in a controversy with counsel for defendant when testifying the latter was history, attempted hurry life’s to his counsel physicians because the called waiting state were testify. impression to be called The was left that the thought testimony importance. court of little That wrong. plea of course insanity made rele- vant all the incidents of defendant’s life from the Carroll, cradle to of the the time supra. trial. State v. *41 52 far as
However, record and so have examined the we testify tell, permitted to we can the defendant his counsel incidents of life which the various his importance. cannot hold that deemed sufficient We error. every misstep of trial reversible We the court is think that no harm resulted from the court’s action. 16. Remarks Court Continued. reputa- trial court discussed the matter of the veracity
tion for truth and the in connec- testimony Perry tion with the and stated Charles had called that if its attention been in substance reputation matter, testimony for truth and as to veracity have of the defendant would not been admitted charged is as in this statement of the court case. That herein, contending that counsel reversible error appear proper. The authorities to be testimony was bar, when, no attack contrary, in case at question. as to the trait made on defendant had been only parti- previously that mentioned haveWe in the case relevant. cularly pertinent trait involved is Homicide, Perm.Ed., p. on 329: It is stated Warren (defendant) a wit- himself as offers “And where general ness, prove reputation truth his for he cannot veracity evidence has introduced tend- unless been and 981, p. ing impeach him.” See also 70 C.J. § 229, Cowgill, People 29 P. In v. Cal. stated: court stage appears at “It certain from statement jury’, appellant,
in offered to introduce before the trial ‘in absence of the jury, ‘upon return their witnesses, prove court’, and ‘to named certain into acquainted with that he well witnesses of said each defendant, many intimately him for known and has acquainted is well with years; each of them honesty, truth, integrity, reputation it is give good; they full faith and would him *42 53 upon any court, upon credit his oath in case.’ The ob- jection, testimony, per- ‘excluded said and refused to jury same,’ appellant excepted. mit the hear the Assuming rule offer to anything that was before the court to there on, right. ruling clearly Appellant was did not prove good reputation for the traits of char- charged. ap- in acter involved pellant the crime is true that It behalf; was in own a witness his but evidence prove is not admissible to that the character of a wit- good, ness for has tried to opposite party truthfulness is unless impeach by showing general him his that reputation is bad.” Shuman, 9, In 1087, State v. 89 1084, Wash. 153 P. part the court stated as follows: “Touching question, the second the record that shows the state had any impeaching introduced evidence appellant’s the ness veracity. character for truth and A wit- may impeached be by showing that he has a bad reputation for veracity may truth and and this met be by proof reputation that his respect good. in that is But one cannot testimony showing bolster by his own reputation good his for truth reputa- is until that questioned. tion had been compurgators oaths independent as an defense is obsolete. 1 Bouvier’s Láw Dictionary, 577, p. Blackstone, 3 Com. 341. In the ab- any upon sence upon eral reputation attack his as an officer or truth, gen- character for the evidence of his good citizen, character as a particular or as to the question by charge against trait called him was appellant right all that the Encyc. had the 3 offer. evidence, pp. 21; Surry, State v. 23 Wash. evidence, Pac. 557. That seen, as we have was admit- ted.” It accordingly is clear charged the error here not well taken. Excusing
17. Reporter Court from Attendance. May 22, 1954, On trial, some five months after the two of the counsel for defendant “Ap- made a so-called plication Entry Proceedings”, duly for sworn to. application In that the affiants state that after reporter jury, duly court case was submitted attendance, notes with and took his excused from Affiants further stated: him. jury to the “That after said matter was submitted verdicts, jury they re- returned their and before quested testimony them what the the Court to advise relating de- to the first made statements Benjamin (Dick) Doctor on first fendant to one alleged meeting after the shoot- Dick Doctor the said said, ing, particularly whether the defendant first shall I do?’ did I do?’ or What ‘What “That “That request jury’s information was denied. jury their and further returned thereafter before
verdicts, jury requested of the Court *43 power authority the they of the of be advised pardon parole. board of jury’s request information the further “That this also applicants was The denied.” alleged asked facts be made the that part in of the record the case. date, denying same the court entered an order On the — request. that
the reason for We do know the thought whether the untruth- court the statement to be inaccurate, whether the court had some other or ful or assigned as error. of the court is reason. The action though argued matter similar as one The state has place, and we shall likewise. had taken do that assigns (a) the court The defendant as error reporter excused from the case attendance after jury. by to the told submitted We are the state reporter by was excused in reason of sickness family and that counsel for defendant consented to, acquiesced in, or the action of If the court. given, complain. then the defendant cannot consent was 295, Casey, Cal.App. People 249 P. 525 250 v. P.653. fact, of that but since find no denial counsel for We argued matter, have we shall consider it. reading § We are cited to 1-624 as fol- W.C.S. lows: reporter upon “Such shall be in constant attendance Judge times, of said Court at all and shall be the stenographer Judge, clerk and of the be and he shall performance duty, sworn to the faithful of his required take oath of office in of the Constitution State, Court, this and take and shall remain attendance on the stenographic during full *44 jurors deliberation, “After the if have retired for disagreement any part
there be a of the between them as to testimony, they or if to desire to be informed as arising may part they any case, of law in the re- the quest information court, them to the the officer conduct where given; upon the matter of law be shall give testimony may recollection as the the court its dispute, points presence of, on the in in the or after parties (Italics ours.) to, the or their notice counsel.” involving felony, presense case In criminal the required. in court defendant would be C.J.S. the as whether de- not informed p. areWe § present at time when were the or his counsel fendant fore- questions in the jury the referred to the asked alone, cannot, going reason application, so we for that jury. say the court should have answered the power Pardons the Board of The law as to the applicable and Parole not a matter of law supra. Carroll, v. case before us. We so in State held length point ruled discussed the in that case at We have in- against that court should the contention go over jury need not in that connection. We formed the again. that matter then, complaint the court did that pass, to the
We by jury first words said whether the advise the not did I do?” Doctor “What defendant to Dick were did not Counsel for defendant or “What shall I do?” testify to the matter. We choose to have Dick Doctor testimony only the defendant. have have We that the record in vain and have not found searched questions Dick Doctor. either of the were asked of court then would been in error have answered have purportedly requested. jury ap- or the Either wrong plicants in this connection. The record were by defendant when shows that the first words said you ?” If court Dick Doctor were: “Are scared met this, by jury or it if had been read had told helped reporter, would have (ac- way. any The defendant asked Dick Doctor next testimony), any- “Did I cording hurt to defendant’s this, jury had or if it had body?” the court told If too, reporter that, have would not read been defendant, question implied helped the guilt having conscious of his the defendant deceased. shot the
57 relating may It to the court be noted the statutes giving jury testimony per- information as to the 1377, mandatory. p. In 23 missive C.J.S. § 1051, it is said: hand, may
“On the other the court in the exercise of a sound discretion the recollection of decline to allow jury any way, as to the evidence to be refreshed in although may prejudicial the court fall into error refusing it where abuses its discretion in to make jury rereading available to the a restatement or testimony.” portion vital of the noted, already de As we are unable to see how the prejudiced in the fendant could have been case at bar. rule, apply So that we think in this case we should Compton State, as stated for instance in 179 v. Ga. 764, 560, 176 768, S.E. as follows: disputes part jury “In case of of the on as to evidence, judge is not error for the to allow recollec- it jury ways any tion of the be refreshed in of the to; may above referred but he decline to do so al- together, doing ground and his so for would not be reversing judgment, except in a it was case where injustice clear that had been done. ‘If he decline should jury any way, aid leave them to recall the but could, ground they this as best would not be evidence judgment.’ State, reversing Strickland v. 115 713, 222, 41 716.”
Ga. S.E. 455, Jennings, it is said in State v. 131 Or. 282 P. So 560, 567: (the judge) may “He trial likewise decline to state concerning part testimony recollections juror’s question judge’s finding
when the
calls for the
upon
Allen,
the incident referred to. Commonwealth v.
256 Mass.
18. Constitutional Hospital. *46 1945, as 10-903, Wyoming Compiled Statutes
Section
Wyoming,
87,
by chapter
Laws of
Session
amended
insanity,
pleads
1951, provides that when
defendant
a
Hospital
Wyoming State
he shall be committed
the
to
days. In
period
days
to
60
for a
of 30
exceed
but
15,
April
on
the
so committed
this case
defendant was
9,1953.
August
1953, and sent
about
back to Wheatland
(a)
making
commitment
The
the order of
court
provided
and ex-
that
observation
the result
the
reported
the
hospital
amination in
to
the
should be
writing.
specified.
court in
statute
time
No
report
require
report.
does not
written
such written
No
30,
was in
1953. It
fact made until about November
prosecuting attorney.
was made
not ad-
to the
areWe
thereof,
vised as
it
to
contents
whether
stated
merely
court,
by
the “result”
or some
as stated
details. The trial in
on December
this case commenced
they
complain
1953. Counsel
that
for the defendant
report
to
copy
did not
in order
receive a
herein, by
appears
of the
examine it. It
affidavit
prosecuting attorney,
that
counsel did not
defendant’s
received;
report
make
it
demand to see the
after was
they
further
that
found
the “result” of the ex-
out
amination from Dr.
month of
Whalen at least
They
October 1953.
did not ask for a continuance of the
they might
report
case so that
before the
examine the
They
physicians
trial.
who
cross-examined the
testi-
length.
fied for
state
error
at
We find no reversible
Belenski,
v.
276
this connection.
Commonwealth
See
Paine,
501;
49 La.Ann.
State v.
Mass.
176 N.E.
1092,
(b) hospital detained in the for The defendant was days predicated more than and reversible error is on 60 limiting that fact. We find no for sound reason days, provision held time and hence must be that purely directory. to be No was made have effort as, instance, by released, defendant for a writ of corpus. hardly probable habeus It is that the defendant released, exchange wanted comparative to be hospital jail comfort at the for the discomfort in the at Wheatland.
(c) Counsel complain de- fendant City, Utah, was taken Salt to be Lake Powell, examined neurologist, Dr. and have electroencephalogram taken, com- same at time plaining thoroughly the test was not more taken asleep. Apparently while such the defendant no instrument is in Dr. testified this state. Whalen him, give defendant was taken to Dr. Powell so *47 defendant, all as he of to whether benefit doubt was sane or not a insane. It turned out that this was defendant, benefit to the inasmuch as Dr. Powell testi- might fied that the defendant was it have sane. But been for the it benefit. is claimed that defendant’s It was unlawful take defendant of the out state Utah, into and that he he became a free man when so, probably entered latter If have state. it would very little, probably benefited the defendant since brought .could do have been back this state. into We any presents not think that this matter reversible might error. We hold that con- as well when women felony, victed of a and taken institution in Colo- to an rado, they are, then, they immediately upon cross- ing line, the state become free. de- Counsel fendant compact state that we have no with interstate any bearing do not think that Utah. has We testimony, perhaps of case. Much Dr. Powell’s testimony, hypo- effective was in answer to a most question. possible objection thetical At no least could 60 testimony merely because part of the that
be made to the defendant find that not from Utah. We do he came being Dr. objection taken to see any whatever to made City. place examination of How the Powell at Salt Lake easily not is any difference could make would how the defendant perceived. It is difficult to see had examination if Dr. Powell’s have had a fairer trial Evanston, Wyoming, than rather Salt been made City, Lake Utah.
(d) to the It that the communications is contended privileged physicians who testified for the state were in that contention. There is merit communications. no physicians of personal physicians were These employed find out defendant, physicians but People v. or insane. was sane the defendant whether Austin, 9; People Kemmler, 580, v. 24 N.E. 119 N. Y. State, 446, 57; Hopkins 212 Miss. v. 93 N.E. 199 N.Y. Rogers State, Miss., 467; 76 So2d. 55 v. So.2d Coleman, 831; v. S.E. State W.Va. testimony objected (e) Gene- Defendant to the Taggert electroencephalo- vieve who administered gram physicians testimony the state’s test and to the sanity the defendant. to the testified as who hospi- being to the sent objection is in substance com- Evanston, Wyoming, defendant was tal at himself; proceeding against testify pelled to law; to unlaw- process it similar not due and seizure. ful search matter, good many on this are a decisions
There particularly have been enacted since statutes *48 insanity commit- should be pleading that a defendant examination. A observation hospital for to a ted 1099, subject in 16 found C.J. § is discussion 47, 940, 244; p. p. AmJur. 568; 14 p. § 23 C.J.S. § subject 32 contained in A.L.R. is An on annotation
61 page 2d 437 483. On 441 of the annotation author says-: validity “The of statutes which establish a method of procuring impartial expert an examination of defend- awaiting trial, question ant where a exists as his
sanity, recognized. generally has now been “Although questions various constitutional been have against statutes, raised such the courts have almost exception upheld without them.” page On 444 of the annotation it stated: principal “One of objections against advanced providing statutes for examination of the defendants by experts appointed designated by the court or statute has been that such an examination results in being obliged give against the accused evidence him- self, participating as the result of his in the examina- following cases, tion. In the on attacks the constitution- ality theory of statutes based on the of self-incrimina- rejected.” have tion been Alabama, Arkansas, California, Cases are cited from Colorado, Indiana, Louisiana, Massachusetts, South Carolina page Wisconsin. fore- On going annotation, it is stated: “The cases in which the contention has been made that
application of statutes of the kind under consideration process generally constituted a denial of due have been against decided Cases are cited from such contention.” Alabama, California, Louisiana, Massachusetts, Carolina, Wisconsin, South and also Federal cases. Eastwood,
Thus in State v. 50 A. Vt.
1079, the court stated: objection superintendant (of exception “Under giving testified, opinion hospital) his as to the him, respondent’s sanity, and upon what he saw based during actions and the time he conversations that, hospital. was confined He testified in his
62 objections made respondent The opinion, was sane. testimony in violation of the it was to was this guaranteed rights respondent as of the constitutional rights consti- by of in the article 10 of declaration upon for
tution, provides person trial which no give testimony compelled to criminal offense shall be against the necessary lawful in the respondent himself. commitment of The derogation right. asylum was It was somewhere, him and it was as to restrain Waterbury asylum at to confine him in the jail likely Middlebury, very more at it was by any comfortable for one him. He could be observed place, persons testify at either and such could without conflicting rights; respondent’s with constitutional upon otherwise one under could insist indictment being obliged strict seclusion and He unseen. was not anything but, say anything do or asylum, to he if at the any observer, including superintendent, did, sanity, might give testify opinion as to his respondent upon do and heard based him what he saw asylum.” say in the while he in confinement 522, 84, 87, Strong, Cal.App. People 114 In v. 300 P. the court stated: any that under see merit in contention “We fail to appointment physi- (providing for section 1027 against cians) compelled a defendant is to be witness Nothing compels in the section him to submit himself. to purely an is examination. If he so the action does rights
voluntary. To constitutional all that assert his mute, also, required possibly, is him to stand permit examination, appoint- to refuse to when the expert proceed; ed undertakes and whether does compulsion.” so or not there is no Stasio, 273, 1 In 294 v. Di N.E. Commonwealth Mass. 195, 189, 2d the court said: nothing by “There is amination in the contention that the ex- * ** ‘compelled furn- the defendant himself,’ against 12 in violation of art. ish evidence Rights. Millen, nor v. the supra. Commonwealth Declaration by required defendant was not law
63 any compulsion examiner, mode of to talk with the nor questions. person to answer his The notion that a ac- may subjected cused not be observation of wit- jurors perversion against nesses and ais of the rule self-incrimination.” Coleman, 580; See also State v. 96 123 W.Va. S.E. State, Wehenkel v. Neb. N.W. 137. *50 foregoing contentions the defendant must ac-
cordingly be overruled. We have made the most careful examination of the record of the and briefs of counsel any for the defendant and have to find been unable error, judgment reversible and the of the trial court is affirmed. Wednesday, appoints
And September now this court 5,1956, for the execution pronounced of the sentence court below.
Affirmed. Harnsberger, J., Parker, J., concur.
ON PETITION FOR REHEARING.
(No. July 2666; 31, 1966; (2d) 567) Pac.
OPINION Blume, Chief Justice. herein, rehearing has been filed petition
A for praise- doing defendant have shown counsel for so possible to done for worthy be effort all that to do their client. rehearing petition
We have read the *51 However, it accompanies covers brief that it with care. original ground in the the same which covered arguments, points the all involved and we considered original may opinion, with as meticulous care our length good by be noted would no the of it. It subserve go again attempt purpose find to over to "them additional reasons We for the conclusions reached. just however, a few matters. Counsel might, mention must say guilty premeditation, defendant be that to The trial in- to court so had deliberate. have time jealousy True, jury. the of the defendant the structed probably thereto incident continued and the excitement jury priv- up homicide. The had the to the time of the ilege, it, if find it chose exercise to that that fact penalty. court, alone the This as court should reduce
65 law, privilege, by ver- has no such but is bound the if, fact, jury, as a matter of of the defendant dict deliberate, testimony time to he had. had as the shows lay jealousy To down rule that and the excitement law, prevents, incident in- thereto a matter of as — degree penalty fliction of the for first murder is — good and we contrary think with reason to the de- subject. Homicide, cisions on the 1 on Warren Perman- Edition, 375, p. says: ent his “Where a husband kills unfaithful, jealousy, or wife because because she is degree.” guilty is or murder in he the first See to 1005, Burns, 167, effect same v. 148 Mo. 49 State S.W. 588, appended. Am.St.Rep. 71 and note The same rule should, course, apply to the case at bar. Dr. Whalen’s testimony, him, he when related what told main, discloses no confession of the defendant. In merely related what defendant testified on the wit- stand, testimony ness and in view of that fact the above helped jury mentioned should have him with in- hurting stead of or cause. As to the refusal failure rights jury of the instruct of the court to board, literally pardon it what while did not follow we Carroll, Wyo. said State v. P.2d refusal or failure to on instruct that matter had the same effect. guilty
The defendant is of a serious He killed crime. only person, he one two. That killed accentuates trial, if fact defendant had think he a fair as we had, or sympathy part per- no sentiment on our should escape penalty mit him which the law decrees. is not he alone whom we must consider. We must It warning society given A consider as well. must be dangerous take life is to the who takes another’s one many killings. capital punishment If it. We have too abolished, legislature. to be must be done law, power have to do no so. but follow the *52 We We sending de- this court is do It is not must so. jury, by the That was done to his death. fendant prejudicial law, have as we we find error unless right, privilege power to found, or we no have province, prov- its centuries old interfere with is. ince petition rehearing denied.
Harnsberger, J., Parker, J., concur. notes 61. We 23 C.J.S. § per- for readily is shown no whatever see if motive might it benefit petration of a crime case in the But jury on motive. if the were instructed are unable amply we has shown and bar motive been at possibly requested could see how the instruction any way. helped in have the defendant 15. Remarks of Court. bitterly complains of the attitude of The defendant frequent made remarks court the case and the weight admissibility it connection with or hurry for defend- evidence, attempt to counsel were state who witnesses because of some ant testify. They waiting the case of Kent v. cite us to 733, 734, State, where court 10 P.2d 53 Okl.Cr. proceed dignity, rule with “Trial should stated: courts say possible in impartiality, little with as was a wise criminal cases.” That of course trial of infrequently have not been re- statement. Convictions judge too What versed because the trial talked much.
Notes
notes tried cases testimony attendance, of said all or admissions made by objections side, either to the introduction of testi- mony, ruling exceptions thereon, of the Court proceedings thereto, taken and such other as the Court * * may direct, provision necessarily requires do not We think this reporter parties of rest, attendance al- after though, highly course, it is him inadvisable excuse especially returned, until the verdict been has ain case like that at bar. The fact he was excused is in it- importance. self, course, of no It would become importance only if his attendance was thereafter re- quired. alleged The facts do not be true. indicate that to (b) remaining questions matters relate to the jury during asked the court their delibera- reading § tions. We are cited to 3-2412W.C.S. follows: