Bentley v. State, 4008

• Decision Date: 24 October 1972
• Docket Number: No. 4008,4008
• Citation: 502 P.2d 203
• Parties: John Frank BENTLEY, Appellant, (Defendant below), v. STATE of Wyoming, Appellee, (Plaintiff below).
• Court: Wyoming Supreme Court

Page 203

502 P.2d 203

John Frank BENTLEY, Appellant, (Defendant below), v. STATE of Wyoming, Appellee, (Plaintiff below).

No. 4008.

Supreme Court of Wyoming.

Oct. 24, 1972.

John E. Ackerman, Casper, for appellant.

Clarence A. Brimmer, Atty. Gen., Frederic C. Reed, Special Asst. Atty. Gen., Cheyenne, John Burk, County Atty., Casper, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

John Bentley, defendant, was charged with the crime of first degree murder of Franklin Luke Singer. The jury returned a verdict finding defendant guilty of manslaughter and he was sentenced to the Wyoming State Penitentiary to a term of not less than 5 nor more than 15 years. The defendant has been free on a $10,000 bond pending the determination of this appeal.

On April 1, 1969, defendant married Robin Singer and remained married to her until January 13, 1970, when he obtained a decree of divorce from her. Robin had previously been married to Franklin Luke Singer, which marriage ended in divorce in 1967 or 1968. Robin left the defendant in November of 1969 and went to California to be with Singer. She returned to Casper in late January or early February of 1970. Singer came to Casper about the end of February and he lived with Robin part of the time and his parents part of the time. Before Singer came to Casper Robin advised the defendant that she was going to remarry Singer.

The evening of March 21, 1970, defendant attended a birthday party for his brother which ended around 8:30 p. m. Later the same evening, about 11 p. m., defendant, his brother, sister-in-law, and a female cousin went to a dance at Glenrock, returning to Casper about 2 a. m., March 22, 1970. Defendant and his cousin then went to a private club in Casper, remaining there until about 4 a. m. After taking his cousin home defendant returned to the ranch home of his brother for the purpose of having some breakfast. When defendant's sister-in-law refused to get up and prepare breakfast, he decided to go to the home of Robin Bentley in Casper for breakfast.

Upon arrival at Robin's home defendant parked his car in the alley behind the house, took a .22 caliber pistol from the car and placed it in the pocket of his jacket because, as he testified, he couldn't lock the car and didn't want the gun stolen. He went to the back door and knocked. The door was opened and he walked into the house where he was confronted by Singer. There was some discussion between the defendant and Singer, followed by a struggle and wrestling. According to the defendant, the pistol fell out of his pocket and hit the top of the stove. Both men grabbed for the gun and were struggling for its possession. They struggled from the kitchen into the living room where the gun was discharged twice. Defendant, following the second shot, gained possession of the gun and left the house by the front door.

Defendant then drove from the scene to an area near the Fairgrounds in Casper where he placed the gun in a wrecked car, and then went to his home where he was arrested the morning of March 22, 1970.

The defendant contended the trial court committed reversible error in the following specified areas:

1. The trial court unlawfully and illegally restricted and limited the defendant's attorney in his cross-examination of the State's chief investigator, Casper Chief of Police Con Delgarno;

2. The court erred in giving an instruction defining reasonable doubt and presumption of innocence;

3. The court erred in refusing to give defendant's requested instructions relating to testimony as to the defendant's good character and the inferences to be drawn therefrom;

4. The court should have granted defendant's motion for acquittal, or, in the alternative, a new trial, because the verdict was contrary to the weight of evidence and was not supported by sufficient and substantial evidence; and

5. The trial court abused its discretion in the sentence imposed upon the defendant.

Limitation of Cross-Examination

Shortly after the decedent was shot, defendant was arrested and taken to the police station where he was questioned by Casper Chief of Police Delgarno. The questions and answers were taken on a tape recorder and later transcribed. By stipulation the tape was played to the jury and the transcript was admitted without objection. No question was raised as to the voluntariness of the statements. During the questioning of the defendant, Chief Delgarno commented '* * * I do know the son of a bitch (deceased) deserved killing many, many times for things he's done in the years past.' During the trial and upon direct examination Chief Delgarno was asked if he meant what he had said about the decedent and he responded without objection that he had not but that he had only made such comments because he thought it would induce the defendant to talk more freely. Prior to the commencement of the trial the State had presented a motion in limine to the trial court. In response to that motion the trial court ruled that the character of the decedent would be relevant only as to the decedent's quarrelsome nature or disposition to violence and then only if the issue of self-defense was raised.

The defendant asked Chief Delgarno if he had any basis for his answer on direct examination, to which he replied: 'I don't know either way, sir.' It then became clear that Chief Delgarno knew nothing of the reputation of deceased, and this testimony did not, as contended by the defendant, tend to show that deceased was '* * * an upright, upstanding good citizen.' The defendant argued that he was severely limited by the trial court in his cross-examination of Chief Delgarno as to the character of the decedent, which cross-examination was for the purpose of impeachment. We find no testimony by Chief Delgarno which touches upon the quarrelsome nature of decedent. The defendant argued and cited cases relating to due process of law including the defendant's right to be confronted by and cross-examine witnesses against him. We fail to see that this argument is pertinent because the witness, Chief Delgarno, was not, as to this particular point, a witness against the defendant.

The defendant did not contend the trial court was incorrect in its ruling that the character of the decedent was relevant only for the stated limited purpose and we find no limitation imposed by the trial court on either direct or cross-examination as to that phase of decedent's character. There was no error in the trial court's handling of this portion of the trial.

Reasonable Doubt Instruction

Defendant objected to the giving of an instruction attempting to define reasonable doubt on the grounds that it contained '* * * an improper definition of reasonable doubt.' The instruction was as follows:

'THE COURT INSTRUCTS THE JURY that a reasonable doubt is such a doubt as exists in the mind of a reasonable man after a full, free and careful examination and comparison of all the evidence. It must be such a doubt as would cause a careful considered and prudent man to pause and consider before acting in the grave and most important affairs of life.'

The sufficiency of the defendant's objection is highly questionable because it was not pointed out to the trial court wherein the definition was improper. ¹ Nonetheless, we have spoken on several occasions as to the wisdom of giving an instruction attempting to define reasonable doubt, and it appears a positive pronouncement is in order.

As early as 1913 in Claussen v. State, 21 Wyo, 505, 133 P. 1055 at 1056, this court held that '* * * there is no definition of 'reasonable doubt' which would convey to a juror's mind any clearer idea than the term itself.' This court again addressed itself to this question in State v. Eldredge, 45 Wyo, 488, 21 P.2d 545 at 547, in 1933, and in quoting from R.C.L. said:

'* * * the text further quite sensibly remarks: 'And so it is asserted by excellent authority that courts instructing juries in criminal cases should make no attempt to define the expression but should merely * * * let the words themselves carry their own definition.''

Reference was also made to the remarks of Chief Justice Scott in the 1913 Claussen case.

Again, in 1945, in State v. Goettina, 61 Wyo. 420, 158 P.2d 865 at 882, this court said that as a general rule reasonable doubt need not be defined in instructions. In State v. Velsir, 61 Wyo. 476, 159 P.2d 371 at 378, 161 A.L.R. 220, in 1945, it was pointed out that it was not error to refuse to give an instruction attempting to define reasonable doubt and mention was made of the Eldredge and Claussen cases. A recent Oklahoma decision, Wilson v. State, Okl.Cr., 403 P.2d 262 at 264, held it was error for the trial court to give an instruction which attempted to define 'reasonable doubt.' That case cited 23A C.J.S. Criminal Law § 1268, p. 658, which said:

'It has been held that the phrase 'reasonable doubt' is self explanatory, that definitions thereof do not clarify its meaning but rather tend to confuse the jury, and that therefore instructions defining it are unnecessary and should not be given, particularly when no specific request is made therefor.'

9 Wigmore, Evidence, § 2497, p. 316, 318-320 (3rd Ed. 1940) makes this comment:

'Many others, (instructions defining reasonable doubt) in varying forms, convey the same notion in more or less well-chosen words; and each Court has its stores of precedents of instructions approved and disapproved. Nevertheless, when anything more than a simple caution and a brief definition is given, the matter tends to become one of mere words, and the actual effect upon the jury, instead of being enlightenment, is likely to be rather confusion, or, at the least, a continued incomprehension. In practice, these detailed amplifications of the doctrine have usually degenerated into a mere tool for counsel who desire to entrap an unwary judge into forgetfulness...