Boulter v. State

• Court: Wyoming Supreme Court
• Writing for the Court: GROESBECK, CHIEF JUSTICE.
• Citation: Boulter v. State, 6 Wyo. 66, 42 P. 606 (Wyo. 1895)
• Decision Date: 19 November 1895
• Parties: BOULTER v. STATE

42 P. 606

6 Wyo. 66

BOULTER v. STATE

Supreme Court of Wyoming

November 19, 1895

Information filed in district court December 5, 1894.

ERROR to the District Court for the County of Laramie, HON. RICHARD H. SCOTT, Judge.

Collingwood Boulter was convicted of manslaughter, and was sentenced to imprisonment in the penitentiary for the term of six years. He prosecuted error. There was no bill of exceptions. The material facts are stated in the opinion.

Affirmed.

Ralph E. Esteb, for plaintiff in error.

It was error to permit the indorsement of the names of witnesses upon the information after the commencement of the trial. (Const., Art. 1, Sec. 10; Stevens v. State, 19 Neb 648; Gates v. People, 14 Ill. 435; Gardiner v People, 3 Scam. Ill. 89; Parks v. State, 20 Neb. 516; Gandy v. State, 24 id., 723; same, 27 id., 732; Miller v. State, 29 id., 438; Brinker v. State, 34 id., 758; Johnson v. State, id., 438; Neb. Crim. Code, Sec., 579; Mich. St., Sec. 7938; People v. Hall, 48 Mich. 487; People v. Price, 74 id., 39; People v. Howes, 81 id., 399; Hill v. People, 26 id., 496; How. Stat. Mich. Sec. 9549; Reg. v. Frost, 9 Car. & P., 147; Rex v. Lord, 2 Gord. & Doug., 591; State v. Stevens; 1 S. D., 480; Comp. L. S. D., Sec. 7236; State v. Dickson, 6 Kan. 209; State v. Medlicott, 9 id., 257; U. S. Rev. Stat., Sec. 1033; Logan v. U.S. 144 U.S. 304; U. S. v. Stewart, 2 Dall., 343; State v. Cook, 31 Kan.; U. S. v. Curtis, 4 Mason, 232; U. S. v. Dow, Tawney, 34; Lord v. State, 18 N.H. 173; Keener v. State, 18 Ga. 194; Maxwell's Crim. Pro., 74, 75.)

Benjamin F. Fowler, Attorney-General, for the State. (W. R. Stoll, of counsel.)

The appellate court will not consider errors which are not referred to in the briefs, and all errors are waived except such as are considered in the briefs (McCormick v. Phillips (Dak.), 34 N.W. 39; Webber v. Clark, 74 Cal. 11; Ry. Co. v. Stommel, 126 Ind. 35; State v. Doe (Wash.), 34 P. 151; Ry. Co. v. Grant (Tex.), 26 S.W. 286).

The cases cited by counsel for the plaintiff in error do not sustain his contention, but, from them, the following conclusions result:

1. That in no case is it a presumption of law that, merely because certain names were indorsed on the information after the trial had begun, the defendant was thereby prejudiced.

2. That under no statute whatever, has it been held that a defendant is entitled to a new trial simply because certain witnesses were sworn, or because the names of certain witnesses were indorsed on the information which were not on the information previous to the beginning of the trial.

3. That under all statutes the only cases in which it has been held that it was error to permit certain witnesses to testify, whose names had not previously been furnished to the defendant within the time permitted by the statutes, a bill of exceptions has been presented, and embodied in the record before the appellate tribunal, which bill of exceptions has shown that the evidence of such witnesses was material and prejudicial to the defendant, and that the defendant, by motion or otherwise, had requested a continuance or a delay for sufficient time to enable him to properly prepare to meet such evidence, and that the trial court had refused such continuance or delay.

4. That under the statutes and in all cases in which it is stated that the provisions of the statutes are mandatory, it has never been held that, even if the statute were violated, error was committed by permitting witnesses to testify whose names were not indorsed upon the information in accordance with the provisions of the statute, where that evidence was not palpably prejudicial to the defendant, and material to the case.

5. That at common law no such thing was ever known as the indorsing of the names of the witnesses upon the information or indictment in a felony case; that such requirements are of statutory origin; and that in each State, the statute of that State must control.

6. That in none of the States referred to has there been a statute which is at all similar to the statute of Wyoming; and that the cases cited have no application whatever to any question that could be raised upon the subject of the indorsement of the names of witnesses on the information, under the statute of Wyoming. The language of the statutes in the States referred to by the plaintiff in error is essentially different from the language of the statute of Wyoming. There is an express and emphatic provision in the statute of Wyoming that such indorsement may be made at any time, either before, during, or after the trial. This provision is absent from each of the statutes of each of the States to which the plaintiff in error refers.

At common law an accused in a felony case was not even entitled to a copy of the indictment. To indorse the names of witnesses that might be called on behalf of the prosecution upon an indictment or information for a felony, was a procedure unknown to the common law. The requirement that the names of witnesses shall be indorsed upon the indictment is entirely statutory; and the provision of the statute in any State must, of course, govern.

(Bishops New Cr. Pro., Sec. 869, a z; Hill v. People 26, Mich. 496.)

The indorsement of the witnesses is no part of the record. (State v. Shepard, 1 S.E. 879.) The objection to the introduction of witnesses can not raise the question of the regularity of the indorsement. (State v. Heinze 45, Mo. App., 403; Germolzez, 13 So. 517.) The statute directing the indorsement of the names of witnesses upon the information is directory only. (State v. Shores, 7 S.E. 416; State v. Hollingsworth, 6 S.E. 417; Territory v. Anderson, 1 Wyo., 20; Sheldon v. Com. 16 S.E. 355; Walker v. State, 19 Tex. App., 176; State v. Enoch, 26 W.Va. 255.)

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The plaintiff in error was found guilty of the crime of manslaughter in the district court for Laramie County, and on the 16th day of March, 1895, was sentenced by said court to be imprisoned in the penitentiary for the term of six years. The petition in error assigns twenty-eight grounds of error, --assailing the verdict of the jury on the ground that it is not sustained by sufficient evidence and is contrary to law; that the trial court erred in giving certain instructions to the jury requested by the prosecution; in refusing to give an instruction asked for by the defendant; in accepting the verdict of the jury on March 10, 1895, the same being Sunday; in recording the verdict on that day; that the court had no jurisdiction to try and determine the cause; that the continuance asked for by the defendant should have been granted; that the verdict of the jury was a compromise verdict; that certain of the jurors made representations to their fellows that under a verdict of manslaughter the defendant could not be punished by more than four years' imprisonment; that one of the jurors prior to the trial had stated publicly that the defendant ought to be hung; that the court erred upon the trial in permitting the indorsement of the names of certain witnesses for the prosecution upon the information, and this was allowed, it is contended, without a showing on the part of the prosecution that the witnesses were unknown at the time of filing the information; that no notice was given to the defendant that said witnesses would be examined in the cause; and that the court erred in overruling the motion for a new trial.

This formidable array of assignments of error was expressly withdrawn from our consideration by counsel for the plaintiff in error, with the exception of those alleged errors going to the action of the trial court permitting the indorsement of the names of certain witnesses for the prosecution during the trial, against the objection of the defendant below, and in allowing witness J. F. H. Stahle to be sworn and examined, his name not having appeared as indorsed on the information, until it was so indorsed by order of the court during the trial. As most of the assignment of errors relate to matters occurring during the progress of the trial, they would not have been considered, as it is well settled by a long line of decisions of this court, as well as by its rules, which have been in existence for many years, and promulgated in the published reports and in the session laws, that "nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions." Rule 13, Sess., Laws 1895, 328; Sess. Laws, 1890-91, 444; Rule 6 Territorial Sup. Ct., 2 Wyo. 516, Rev. St. Wyo., p. 65; Rubel v. Willey, 5 Wyo. 427, 40 P. 761; Seibel v. Bath, 5 Wyo. 409, 40 P. 756; Johns v. Adams Bros., 2 Wyo. 194; Murrin v. Ullman, 1 Wyo. 36; Geer v. Murrin, 1 Wyo. 37; Jenkins v. Ter., 1 Wyo. 317; Garbanati v. County Commissioners, 2 Wyo. 257. In the last case cited, decided at the March, 1880, term, Mr. Justice Blair says in his quaint language: "This case must go where many have gone before, and where, doubtless, if we can judge the future by the past, many will follow it--out of court. Almost from the time whereof the memory of man runneth not to the contrary, this court by a standing rule has declared that they will not consider alleged errors in the record unless accompanied by a bill of exceptions, in which the motion for a new trial made in the court below is incorporated. In this case there is no bill, or pretended bill of exceptions, duly allowed by the court...