Brown v. State, 2864

• Citation: 336 P.2d 794,80 Wyo. 12
• Decision Date: 24 March 1959
• Docket Number: No. 2864,2864
• Parties: Dorothy BROWN, one and the same person as Sheila Brownley, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 794

336 P.2d 794

80 Wyo. 12

Dorothy BROWN, one and the same person as Sheila Brownley, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 2864.

Supreme Court of Wyoming.

March 24, 1959.

Walter A. Muir, Rock Springs, C. L. Bates, Rawlins, for appellant.

Thomas O. Miller, Atty. Gen., Glenn A. Williams, Asst. Atty. Gen., for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

In this case the County and Prosecuting Attorney of Carbon County, Wyoming, filed an information on September 16, 1957 charging that Sheila Brownley on August 26, 1957, did 'unlawfully, maliciously and in a rude, insolent and angry manner, unlawfully touch, shoot and wound a human being, to wit: Evan Augustine Sanchez, with a .45 caliber automatic pistol with intent then and there to commit a felony, to wit: to kill said Evan Augustine Sanchez, with purpose and maliciousness, but without premeditation.' The defendant, Sheila Brownley, whose true name was stipulated to be Dorothy Brown, pleaded not guilty to the charge. The case was tried to a jury commencing on April 14, 1958. The jury found the defendant guilty of aggravated assault and battery. She was sentenced to six months in jail. From the verdict and judgment of the court an appeal has been taken to this court.

It is admitted herein that the prosecuting witness, Evan Augustine Sanchez, hereafter referred to as Sanchez, was shot in the lower abdomen by the pistol mentioned in the information while it was in the hands of the defendant. He was seriously wounded, was in the hospital for 2 1/2 to 3 months and had two operations performed upon him, in the second of which the bullet which entered his body was extracted. The shooting occurred in what is called the Paris Rooms situated in the city of Rawlins in this state.

A number of exhibits were introduced in evidence, including a map of the Paris Rooms. None of these exhibits are in the record before us so that the jury must have had a somewhat better understanding of some of the evidence than this court could have in the absence of such exhibits.

The evidence in the case was extremely conflicting. It is hardly necessary to set out anything more than the main facts testified to by Sanchez and by the defendant. Sanchez testified that he was informed that the Paris Rooms were open. He went there on August 26, 1957, at about 8:00 p. m. He rang the doorbell. The defendant came out and asked what he wanted and the witness told her that he wanted a 'woman'. She asked the witness if he had ten dollars and the witness stated that he did. The witness then asked her if there was a woman there and the defendant told him she was the only one. The witness gave her ten dollars and he and the defendant went into the bedroom where, as may be inferentially gathered, the defendant and the witness had sexual intercourse. During that time, apparently, the witness talked to her about the illegality of prostitution, inferring or stating directly that defendant was a prostitute. After the parties had sexual intercourse, the defendant got the gun mentioned in the information from a drawer in a closet which led off from the kitchen in the building. Because of that gun, seen by the witness, he attempted to lock her up in the closet, but since it had no lock which would hold he let her out. 'I decided I couldn't lock her in there and if she wanted to shoot she could shoot me anyhow.' Defendant told him to get out and he said that he would. He walked down the hall in the building, scared, with his back to the defendant, toward the outside door with his hands raised high. When he got to the door he let his arms fall, perhaps for the purpose of opening the door, and the defendant shot him. He fell down or sat down and while so down the defendant 'nudged' him, told him to get out, and shortly thereafter he got up, opened the door, got in his car and drove to what he thought was a hospital but went to the nurses' home where he became unconscious and where he was found by police officers later. He stated that he never touched the defendant in any way except when they were in bed together.

The defendant denied having asked for or received any money. She testified that she leased the Paris Rooms which had five bedrooms, two sitting rooms and a bathroom, kitchen and pantry. On the evening of August 26, 1957, she went to the door when the doorbell rang. The prosecuting witness stated that he was looking for a 'girl'. The defendant said that there were no girls there but the prosecuting witness stated that she would do. She told him that she was menstruating at the time and could have no intercourse with a man in any event at that time. Sanchez, however, said he did not care about that, grabbed her and pushed her into the bedroom. The defendant stated that he pushed her over to the foot of the bed, fell on top of her, put his arm across her throat so that she couldn't breathe and that they wrestled on the bed. She stated that the prosecuting witness hit her and kicked her, that she was half-unconscious during the affray, that the prosecuting witness either raped her or attempted to rape her, that she finally got loose, got hold of the gun in question and told him to get out. When near the door leading to the outside, the prosecuting witness grabbed her and the gun went off accidentally.

Counsel for defendant have epitomized the main part of defendant's testimony as to what took place subsequent to the time when she and Sanchez got out of bed as follows:

'* * * I glanced over in this drawer which was open and I saw a gun laying there so I picked it up. I thought maybe I could scare him or something into leaving. I had locked myself in the bedroom from the inside. I heard my dog crying and I opened the door and the dog ran into my bedroom, and Sanchez saw the gun and I told him you better leave now and I closed the bedroom door again. And then I stood there for a couple of minutes or I don't know just exactly how long I stood there exactly and I heard a door slam so I thought he had gone out but when I got out and I wanted to go in the kitchen and get to the telephone because the phone was in the kitchen, it was a pay phone and I had to go in the kitchen to get to the phone for help. When I opened up the bedroom door I didn't see anybody. The kitchen door was closed but I thought he had gone on out so I walked on out into the kitchen and when I got past the door out of the corner of my eye I seem him hiding in the pantry so I jumped out in the center of the kitchen as far as I could and told him to come out of there and get on out of the house. No door on pantry in kitchen. Door of bedroom opens into kitchen. No door on pantry. He was behind the door inside the pantry. There is a little wall there but the wall does not have a door in it. He was behind this wall and behind the door that--the bedroom door. Then I told him to get out and so he came out of there and he started up to the front and I followed him and I had the gun in my hand. I never laid it down and I got up to the front door and I don't know why but instead of telling him to open the door I reached over with my left hand to open the door. When I reached to open outside door at staircase he lunged at me like he was going to take the gun away from me and the gun went off. * * *'

It is obvious from this brief statement of the facts that the evidence was totally conflicting. It is not for this court to resolve that conflict. That was the duty of the jury. We cannot interfere with their verdict, even if we might think that the conflict was resolved wrongly. There is no merit in the contention of counsel for the defendant that the defendant's testimony must be taken as true in view of the fact that Sanchez was not called to rebut it. If the version of Sanchez as to what took place is true, then it follows that the testimony of defendant cannot be true, except insofar as it agrees with that of Sanchez.

The record fails to disclose the relative physical strength of the prosecuting witness and the defendant, a matter of some importance in view of the defense herein. The jury saw them both on the witness stand. For aught we know, Sanchez was small and punny while the defendant was physically strong, thus causing the jury to disbelieve her testimony for that reason alone.

We might incidentally mention that the prosecuting witness was 21 years of age, had been in the Basin Industrial School at Worland, Wyoming, and also in the reformatory at El Reno, Oklahoma, and had been in jail a number of times in Rawlins. It was probably this fact, among others, which induced the jury to find a verdict merely of aggravated assault and battery.

1. It is contended by counsel for the defendant that the court erred in overruling the motion for a directed verdict in favor of the defendant and that the evidence was insufficient to convict her, particularly in that there was no showing of any malice or intent on the part of the defendant to shoot or injure Sanchez. We cannot agree with counsel for the defendant. They refer in the main to the testimony of the defendant and ignore the testimony of Sanchez. In considering the point here urged, we must, in accordance with a well-known rule, disregard the testimony of the defendant insofar as inconsistent with the testimony of Sanchez and consider only the testimony which tends to show the guilt of the defendant. When the defendant got the pistol mentioned in the information herein, she was almost if not quite, according to her own testimony, out of danger, if ever she was in any. According to Sanchez, he was scared. He held up his hands. When told to get out of the house he agreed. He started down the hall of the building which was some 40 feet in length with his back to the defendant in order to go out of the front door of the building. Defendant followed with...