Ballinger v. State

• Citation: 437 P.2d 305
• Decision Date: 09 February 1968
• Docket Number: No. 3571,3571
• Parties: William BALLINGER, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 305

437 P.2d 305

William BALLINGER, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 3571.

Supreme Court of Wyoming.

Feb. 9, 1968.

John E. Stanfield, Laramie, for appellant.

James E. Barrett, Atty. Gen., Cheyenne, for appellee.

Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

William Ballinger was convicted of three separate offenses of maliciously perpetrating an assault and battery upon a human being while armed with a dangerous or deadly weapon.

The offenses of assault and assault and battery were treated as constituting lesser included offenses in the primary charge of aggravated assault and battery with a deadly weapon. The jury found Ballinger guilty of the most serious offense in all three cases. The court sentenced Ballinger for a term of not less than two years and not more than four years, as to each conviction, said sentences to run concurrently. He now appeals from said verdicts, judgments and sentences.

The defendant's court-appointed attorney who has presented the appeal to us did not participate in the trial of the case. Most of his argument is in the nature of argument to the jury, it being indicated that if defendant's present attorney had handled Ballinger's defense he would have done it differently.

Apparently it is difficult for counsel to understand why and how the jury convicted Ballinger of aggravated assault and battery with a deadly weapon. But the jury did do so, and our estimate of the evidence of guilt in all three cases is not only that it was substantial but that it was conclusive and uncontradicted.

Therefore, without attempting to answer all of counsel's criticism of the jury's verdict, we will confine our remarks to the four grounds for reversal which counsel advances on behalf of the defendant. These grounds are:

(1) That the district court erred in denying a motion for new trial made by defendant.

(2) That the district court erred by giving an inadequate and incorrect instruction on malice.

(3) It was error for the trial court not to instruct on circumstantial evidence.

(4) The court erred in the giving of a supplemental instruction pertaining to lesser included offenses.

(1) With respect to defendant's motion for new trial, which was made after conviction, it was predicated on newly discovered evidence. Defendant's claim is that the State impounded Ballinger's automobile after the shooting and as a consequence neither defendant nor his attorney was able to see it until after conviction. When the car was released, defendant claims, extensive blood stains were discovered on the hood; a medical technician 'indicated' there were also stains from nasal mucous or saliva; and Dr. John A. Knebel 'would apparently' testify he observed powder burns on the mouth of James Hepp at the hospital.

Inasmuch as one of the victims of defendant's shooting, James Hepp, had been shot twice in the mouth and had bled profusely from his wounds, it is reasoned that possibly Hepp was not nine feet from defendant's car when shot, as Hepp had testified; that instead, possibly Ballinger and Hepp had struggled for the gun and Ballinger may have acted in self-defense. Ballinger claimed at the trial, and he has not departed from such claim, that he cannot remember what happened at the time of the shooting.

The trial judge denied the motion for new trial and stated as a reason for so doing that defendant had not used due diligence in discovering the new evidence sooner. When counsel for defendant protested that the county attorney would not let him see the automobile, the judge suggested a court order could have been obtained if necessary.

In Opie v. State, Wyo., 422 P.2d 84, 85, we approved the requirement that in order to justify a new trial, it must be shown there was no lack of due diligence in not discovering the alleged newly discovered evidence sooner. In addition, at 422 P.2d 85, we approved the rule that the action of the trial court in denying a new trial shall not be challenged except for an abuse of discretion.

We find no abuse of discretion in the denial of Ballinger's motion for new trial. But even more persuasive to us is the fact that the alleged newly discovered evidence is not so material that it, in the light of testimony at the trial, would probably produce a different verdict at a new trial. It was made clear in the Opie opinion, at 422 P.2d 85 and 87, that this is sufficient reason for denying a motion for new trial.

According to Ballinger's own testimony and the testimony of other witnesses, Ballinger himself had been bleeding profusely after being forcibly ejected from the American Legion Club, where he had been a guest. While searching for car keys, Ballinger had leaned against his automobile, had emptied his pockets and placed items on the car, and had leaned against and on the vehicle immediately prior to getting into it. The shooting occurred after Ballinger got into his car.

There is no evidence of any attack on Ballinger after he and his date were in his automobile; and there is nothing to indicate that he was not able to depart from the premises. Instead, according to all of the testimony, he took his pistol from the glove compartment and shot three persons. It would be immaterial whether Hepp was leaning over the hood of the car or was nine feet away when shot.

The first two shots fired by Ballinger struck Mrs. Beverly Campbell approximately seventeen feet away. The third shot struck James Abernatha who was approximately thirteen and one-half feet from the driver's window of Ballinger's car. The last shots fired struck Hepp. If Ballinger had been under attack from Hepp, at the window on the driver's side of the automobile, Hepp would have been shot first. And of course, it cannot be believed a scuffle had been taking place at the window on the right side of the car because Mrs. Campbell and Abernatha, who were in the opposite direction from the right window, were shot with the first three shots.

Aside from Ballinger and his date and the three persons who were shot, no other persons were in the immediate vicinity at the time of the shooting. No case of accidental or defensive shooting has been made out, and there would be no basis for believing the shooting was anything but intentional and deliberate even if the alleged newly discovered evidence is assumed to be true.

Accordingly, we must hold there has been a failure on the part of defendant to show the alleged newly discovered evidence was so material that it would probably have produced a different verdict, and there was no abuse of discretion in denying the motion for new trial.

(2) In regard to the matter of malice, the Ballinger jury was instructed:

'You will observe that in the definition of Assault and Battery with a Dangerous or Deadly Weapon, the words 'maliciously perpetrates' are used.

'The word 'maliciously' imports or implies a wish to vex, annoy, or injure another or an intent to do a wrongful act and may consist in direct intention to injure or in reckless disregard of another's rights.

'The word 'perpetrate' means to do or commit an act.'

Although counsel for appellant quotes much authority on the general subject of malice, he cites no authority which condemns or disapproves of the instruction which was given in this case. He also admits no objection to the instruction was made at the time of trial. While he claims the instruction is inadequate and incorrect, he fails to show persuasive reason for such claim.

We find the substance of the court's definition for the word 'maliciously' approved in Black's Law Dictionary, p. 1111 (West Publishing Co. 1951), citing Briggs v. Coykendall, 57 N.D. 785, 224 N.W. 202, 205; Rickman v. Safeway Stores, 124 Mont. 451, 227 P.2d 607, 610; Davis v. Hearst, 160 Cal. 143, 116 P. 530, 537; and People v. Vaughan, 65 Cal.App.2d Supp. 844, 150 P.2d 964, 968.

The law books contain many definitions for the word 'maliciously,' and we do not pretend to say the definition used is the best of all definitions. We do say, however that appellant has failed to show sufficient reason for holding the definition which was used erroneous or prejudicial to defendant.

Of course, we have often said when a defendant fails to object to an instruction and to state reasons for his objection to the trial court, so that the trial court has an opportunity to pass upon the matter, the objection will not be considered on appeal. Valerio v. State, Wyo., 429 P.2d 317, 319. See State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1163-1164.

Since appellant in this case has failed to cite specific authority for condemning the instruction on malice, and since no objection was made when the instruction was given, we have no hesitancy in applying the rule that defendant will not be heard to complain of such instruction on appeal.

(3) Concerning circumstantial evidence, appellant admits there was substantial direct evidence of assault and battery. He claims, however, proof that the shooting was 'maliciously' perpetrated as required by the statute under which defendant was charged necessarily had to be proved, if it was proved, by circumstantial evidence. Defendant's attorney claims this court 'clearly recognized' in State v. Bruner, 78 Wyo. 111, 319 P.2d 863, that proof of malice generally can be shown only on the basis of inferences from the other testimony or circumstantial evidence. Although we have no present reason to quarrel with what counsel says was recognized in Bruner, we fail to find the matter mentioned in the Bruner opinion.

Appellant argues that since malice necessarily had to be proved by circumstantial evidence, the court erred in failing to instruct on the effect of circumstantial evidence, even though no request was made at the time of trial for such an instruction.

The argument overlooks undisputed testimony by three witnesses that prior to the shooting...