Berry v. State

• Decision Date: 09 March 1937
• Docket Number: 1920
• Citation: 65 P.2d 1097,51 Wyo. 249
• Parties: BERRY v. STATE
• Court: Wyoming Supreme Court

65 P.2d 1097

51 Wyo. 249

BERRY v. STATE

No. 1920

Supreme Court of Wyoming

March 9, 1937

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Albert Berry was convicted of assault and battery with felonious intent, and he brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of Wm. B. Cobb of Casper, Wyoming.

No intent on the part of plaintiff in error to kill and murder complaining witness was shown. There was no proof of concerted action on the part of defendants to harm complaining witness. Whatever was done by either of defendants was done independently of the acts of the other. The case is similar to that of Liner v. State (Ala.) 27 So. 438. The court erred in refusing to give defendant's requested instruction numbered 13. Defendant's theory of the case was not properly submitted to the jury. The court erred in refusing to give defendant's instruction numbered 19. One of the essential ingredients of assault with intent to kill is the specific intent to take life. Beavers v. State, (Ark.) 173 S.W. 829; Jones v. State, (Ala.) 11 So. 399; Felker v. State, 16 S.W. 663; State v Pappas, 152 P. 571. There was no proof of the deadly character of the weapon with which plaintiff in error is charged with having committed the assault. Bush v. State (Texas) 107 S.W. 348; Henderson v. State, 145 S.W. 1190; Parish v. State, 153 S.W. 372. Specific felonious intent must be alleged and proven. Brantley v. State, 9 Wyo. 102. The intent must be proven. Bryant v. State, 7 Wyo. 311. No mere legal presumption can supply the presence of intent--in fact, facts and circumstances may be considered. Ross v. State, 16 Wyo. 285. In this case, the court in effect told the jury that they might convict Albert Berry, if they found that defendant Leo Berry had the intent to kill and murder the prosecuting witness, which was error. Bryant v. State, 5 Wyo. 376. This case differs from the facts in the case of State v. Spiegel, 39 Wyo. 309. The rights of defendants were prejudiced by the intoxicated condition of one of defending counsel. Defendants' rights were also prejudiced by the language of the trial judge in connection with the conduct of defending counsel. A reading of the record in this case discloses numerous points to which objections to the introduction of testimony should have been made. A mass of the state's testimony should have been excluded. The methods of cross-examination were ill-advised and the trial court should have directed a mistrial or granted a re-trial.

For the defendant in error, the cause was submitted on the brief of Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General, all of Cheyenne.

There was ample evidence to justify the conviction. The fact that defendant's testimony conflicted with that of the state is of no consequence, as the jury resolved the conflict against the defendant. State v. Weekley, 40 Wyo. 162. Specific intent to commit crime need not be proven by direct and independent evidence. Bryant v. State, 7 Wyo. 311. The case of Liner v. State, (Ala.) 27 So. 438, cited by plaintiff in error differs on the facts from the case at bar. We direct the court's attention to Brown v. Commonwealth, (Va.) 107 S.E. 809, involving a state of facts substantially similar to the facts in the present case. Instruction numbered 13 requested by plaintiff in error, was an erroneous statement of the law and was properly refused. Offered instructions should clearly state the law. Smith v. State, 17 Wyo. 481. We are unable to understand how the case of Brantley v. State, 9 Wyo. 102, is in point in the present case, unless it be to prove that instructions 1, 1A and 2, given by the court in the present case, were correct. Reference is made in the brief of plaintiff in error to the intoxication of defending counsel, and it is contended that the rights of plaintiff in error were prejudiced thereby. It does not appear from the record that the attention of the trial court was directed to any misconduct of defending counsel, by reason of his intoxication. There was ample evidence to warrant a conviction. The charge of the court fully and fairly covered the law pertaining to the case.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Leo Berry and Albert Berry, by an information filed May 17, 1934, in the district court of Natrona County, were jointly charged with committing the crime of assault and battery, with felonious intent, upon the person of one Howard Burgess, on the 3rd day of that month, in Natrona County, Wyoming. Both defendants were convicted and judgments and sentences were entered against each. Leo Berry filed no brief in this court, and, as we are advised, has acquiesced in the judgment affecting him. Albert Berry, however, through these proceedings in error, insists that his conviction was erroneous.

The material facts to be considered are in substance these: Sometime prior to May 3, 1934, the Berry family consisted of Albert, the husband, Emma L., his wife, and two sons, Leo and Freddie. Leo apparently had attained his majority, but Freddie was only eight years old at the time of the events subsequently to be narrated. Albert and Emma were at that time divorced and each had remarried, Albert's second wife being Lillian M. The elder son remained with his father and stepmother, while the younger lived with his mother, who on the date last mentioned had gone to Harrison, Nebraska, and early that morning was married to Howard Burgess, referred to in the information aforesaid.

It appears that Albert, Lillian and Leo Berry were then living at what is designated in the record as the Strawn cabin, some twenty-two miles out on the Alcova road from the city of Casper, toward Independence Rock, and about a mile off the highway, while Emma L. Burgess, Howard Burgess and the boy, Freddie, after the trip to Harrison returned to Mrs. Burgess' homestead, which was situated about two miles southeasterly from said Rock. On this return trip, Burgess and his wife stopped at the home of a friend to pick up the boy, Freddie, and two small guns, a .410 shotgun and a .22 rifle, which were taken into the car both unloaded, as well as some saddles, which had been theretofore left there. These articles had been placed in the care of this friend "because," as Mrs. Burgess testified, "every time we left the house somebody would take something."

Sometime prior to May 3rd, Emma L. Berry had gone to Casper and caused the issuance of a criminal warrant for the arrest of her former husband, Albert Berry, and her son, Leo, the charge being for the alleged theft of certain personal property which she had had in storage. In response to a message from the sheriff of Natrona County, Leo Berry and his stepmother came to Casper on May 3, 1934, and procured bail for his release from arrest. They then returned to the Strawn cabin, where Leo procured a gun, a .32 Special Colts revolver owned by his stepmother. They had supper, and then, with Albert Berry, drove to Alcova. Leo testified they went to see his mother to try to settle the difficulty arising in connection with the issuance of the warrant above mentioned. After making inquiries at Alcova, they continued on towards the homestead to which Howard Burgess and his wife and her child were returning, arriving in due time at what is designated in the testimony as the "second gate" to this property. It was then after dark and towards nine o'clock in the evening. The Berrys backed their car into a side road out of sight of this gate and turned off the car lights. They waited there some fifteen or twenty minutes until the Burgess car drove up to the gate.

Mrs. Burgess thereupon left the car to open the gate, which was fastened with a chain and padlock, and while she was attempting to do this, both Albert Berry and his son, Leo, came up to the vehicle, the former from the left side and the latter from some tall sagebrush on the right. Mrs. Burgess testified she then heard Albert Berry shout, "Stick them up, you son of a bitch, we have got you dead to rights. Don't move out of that light, stand there." Leo Berry thereupon opened the door of the automobile which Howard Burgess was driving, and without warning, making use of the Colts revolver aforesaid, shot him in the cheek and neck, the bullet lodging in the muscles of the back of the neck just below the skull. At the time of the trial it had not been extracted. The boy, Freddie, was sitting on the seat next to his stepfather, and the shooting was done over his head and in such close proximity to Howard Burgess' face that it was burned by the flash of the powder from the gun's discharge. At the same time, or immediately following, Albert Berry broke out the car window on the left side of the vehicle next to Burgess, and commenced striking him and hitting him with a ballpein hammer, meanwhile calling out to Leo Berry, his son, to, 'Pour it on! Pour it on! Get the pocketbook."

The boy, Freddie, seems to have then been pulled from the car by his brother, Leo. Lillian Berry called out to her husband "Leave Howard alone. Leo will take care of him; this woman is the one who caused this trouble." Whereupon Albert Berry assaulted his former wife, the then Mrs. Burgess, knocked her down several times, broke the bones of her nose and inflicted many bruises on her face and other parts of her body. While this was being done, Leo held his gun trained upon Burgess, and was told by Albert Berry to, "Watch him! Watch him now!" The boy, Freddie, endeavored to dissuade his father from injuring his mother, but was unsuccessful in his efforts. Albert Berry shouted, "We are going to dry-gulch him and throw rocks on him and...