Casteel v. State

• Decision Date: 01 October 1900
• Citation: 9 Wyo. 267,62 P. 348
• Parties: CASTEEL v. STATE
• Court: Wyoming Supreme Court

62 P. 348

9 Wyo. 267

CASTEEL v. STATE

Supreme Court of Wyoming

October 1, 1900

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

The plaintiff in error, Robert Casteel, was charged with murder in the second degree for the killing of one Nels Thorn. He was convicted of manslaughter. The defendant, on his trial offered to prove uncommunicated threats of the deceased against him, but the court refused to admit the testimony. Some of the instructions were also objected to. The defendant after making a motion for new trial which was overruled prosecuted error. The case was submitted, and the State sought to substitute for the original record showing the presentation of the motion for new trial, an amendment of the record to show that no time had been given for filing the motion beyond the time fixed by statute, it appearing that the motion had been filed after the expiration of the three days provided by the statute, in the absence of an extension of time for good cause shown. The attempt to amend the record was contested. The character of the original record and the amendment offered is set forth in the opinion; and the other facts entering into the consideration of the case as decided are there fully stated.

Petiton in error dismissed.

Chatterton and Fishback, for plaintiff in error.

Some testimony having been introduced to show an apparently hostile movement of the deceased before the shooting occurred, the defendant had the right to offer evidence of uncommunicated threats against him made by deceased shortly anterior to the shooting, to show the attitude of the deceased at the time of the killing. (Davidson v. People, 4 Colo., 145; Babcock v. People, 13 id., 522; Wiggins v. People, 3 Otto., 467; Stokes v. People, 53 N.Y. 174; State v. Collins, 32 Ia. 38; Campbell v. People, 16 Ill. 18; Hopkins v. People, 18 id., 264; Holler v. State, 37 Ind. 57; People v. Scroggins, 37 Cal. 676; State v. Graham, 51 Ia. 72; Hart v. Com., 7 Am. St., 576; 1 Whart. Cr. L., 642; Sparks v. Com., 89 Ky. 644; Levy v. State, 28 Tex. App., 203; State v. Alexander, 66 Mo. 148; State v. Lee, id., 165; Roberts v. State, 68 Ala. 156; Little v. State, 6 Baxt., 493; Potter v. State, 85 Tenn. 88; State v. Bailey, 94 Mo. 311; Cornelius v. Com., 15 B. Mon., 539; State v. Turpin, 24 Am. R., 455.) Mere words cannot justify an assault, much less an assault with a deadly weapon; therefore, the provocation to have justified the deceased in drawing a loaded revolver must have amounted to an assault on the deceased requiring the use of such a weapon. The court should not give undue prominence to any phase of fact which the testimony tends to establish. (Durett v. State, 62 Ala. 441; State v. Holms, 57 Am. Dec., 269; State v. Ward, 19 Nev. 297.)

The case having been submitted, it is too late to suggest a diminution of the record. (State v. Brown, 119 Mo. 527; Sterling v. Newstadt, 50 Ill., App., 378; Purvis v. Standifer, 14 id., 435; Haas v. R. R. Co., 81 Ga. 795; Boyer v. Boyer, 4 Wash., 80; McMickle v. Bank, 4 Tex. Civ. App., 210; Johnson v. Couillard, 86 Mass. 446.)

A record cannot be amended after the term, unless there be something to amend by, such as a minute or memorandum, made at the term of the original record, or where the record itself shows facts which would authorize amendment. (Frew v. Danforth, 126 Ill. 442; Breene v. Booth, 6 Colo. App., 140; Gillette v. Boothe, 98 Ill. 183; In re Barnes, 27 Ill.App. 151; Waldo v. Spencer, 4 Conn., 71; Branger v. Chevalier, 9 Cal., 333; Barnes v. Com. 92 Va. 794; State. v. Prim, 61 Mo. 166; Schoonover v. Reid, 65 Ind. 313; Boyd v. Blaisdell, 15 id., 173; Smith v. Brannan, 13 Cal. 107.) It is not the office of a nunc pro tunc order to introduce new facts. (Nabeers v. Meredith, 67 Ala. 333; Cleveland L. P. Co. v. Green, 52 O. St., 740; Gillette v. Bank, 56 Mo. 304; Cox v. Cross, 51 Ark. 224; Ferrell v. Hales, 119 N. C., 199; Conley v. Blake, 5 Wyo. 107.)

J. A. Van Orsdel, attorney-general, for the State.

There is great conflict of authority concerning the admissibility of uncommunicated threats. It has been held that to be admissible, threats must have been communicated to the accused. (People v. Arnold, 15 Cal. 476; Powell v. State, 19 Ala. 577; Edgar v. State, 43 id., 48; Burns v. State, 49 id., 370; Rogers v. State, 62 id., 170; State v. Jackson, 17 Mo. 544.) Also that uncommunicated threats are not admissible where it is shown that at the time of the homicide, the deceased acted in self-defense. (Lingo v. State, 29 Ga. 470.) Also that they are immaterial, as they cannot influence the defendant. (State v. Malloy, 44 Ia. 104; State v. McCoy, 29 La. Ann., 593; State v. McGregor, 21 id., 473.) That newly discovered evidence of uncommunicated threats will not authorize a new trial. (Peterson v. State, 50 Ga. 142; Carr v. State, 14 id., 358.) Where there is question as to who began the affray, at the time of the commission of the homicide, there can be found respectable authority for the admission of uncommunicated threats. In this case there being no question of that kind, the evidence of every eyewitness showing that the defendant began it, no authority will, under such a state of facts, hold that the refusal to admit uncommunicated threats is error. The necessity for the use of a deadly weapon by a defendant must not have been created by his own fault or culpability. (Farris v. Com., 14 Bush., 362; State v. Carr, 38 Mo. 270; Haynes v. State, 17 Ga. 465; Roach v. People, 77 Ill. 25; Shorter v. People, 2 N. Y., 193; Logue v. Com., 38 Pa. 265; State v. Smith, 10 Nev. 106; State v. Underwood, 57 Mo. 40; State v. Stanley, 33 Ia. 526; Isaac v. State, 25 Tex. 174.)

A trial court is authorized to correct its record at a subsequent term, by a nunc pro tunc order setting forth the exact facts as they occurred. (In re. Weight, 134 U.S. 136; Benedict v. State, 44 O. St., 679; Ins. Co. v. Boone, 95 U.S. 117. Mitchell v. Lincoln, 78 Ind. 531.)

Where something was done but not entered, there must be some memorial paper or other minute of the transaction from which what took place can be clearly ascertained. (Makepeace v. Lukens, 37 Ind. 435; Perkins v. Hayward, 132 id., 92.) To correct a clerical error, any evidence is competent. (Brownlee v. Grant Co., 100 Ind. 401.) Other authorities hold that the fact and terms of a record may be found upon any evidence clearly establishing the same. (134 U.S. 136; Jacks v. Adamson, 56 O. St., 397; Bobo v. State, 40 Ark. 224; Kaufman v. Shayne, III Cal., 16; Breene v. Booth, 6 Col. App., 140; Weed v. Weed, 25 Conn. 337; Attaway v. Carswell, 89 Ga. 343; Limerick, Pet'r, 18 Me. 183; Hugg v. Parker, 7 Gray, 173; Sch. Dist. v. Bishop, 46 Neb. 850; Davis v. Sawyer, 66 N. H., 34.) If a motion for new trial is not filed in the time fixed by statute, and no good cause is shown for the delay, the motion is properly overruled. McKinney v. State, 3 Wyo., 722; Bulliner v. People, 59 Ill. 394; Evansville v. Martin, 103 Ind. 206; Kent v. Lawson, 12 id., 675; Bradshaw v. State, 19 Neb. 644; Ex parte Holmes, 21 id., 324; Osborn v. Hamilton, 29 Kan. 1; Hover v. Tanney, 27 id., 132; Lucas v. Sturr, 21 id., 480; Nesbit v. Hines, 17 id., 316; Bartlett v. Feeney, 11 id., 593; Odell v. Sargent, 3 id., 80.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

Upon a trial before a jury in the district court the plaintiff in error was found guilty of the crime of manslaughter, the verdict being returned upon the 26th day of May, 1899. Of the date of June 2d following, the transcript shows the following entry: "Comes now the above-named defendant in person and accompanied by his attorney, and also comes the State of Wyoming by the county and prosecuting attorney, and now the said defendant by his counsel asks leave of court to file his motion for a new trial herein, which permission is granted by the court, and the motion is accordingly filed." Upon the next day the motion was heard and denied generally, no reasons being specified in the order. A bill of exceptions was signed, and the case brought to this court. It was argued here and submitted on the merits. Subsequently, on the 24th day of May, 1900, and prior to any decision in this court, the District Court made an order which, after reciting that the former order did not set forth the facts occurring on that date, is as follows: "It is therefore ordered that the said entry herein entered on the said 2d day of June, 1899, be and the same is corrected and amended so as to read as follows: 'Comes now the above-named defendant by his counsel and files his motion for a new trial herein.' And it is therefore ordered that the said entry be made as of the said 2d day of June, 1899." The above correction was certified to this court, and, upon the record as amended, the Attorney General moves to dismiss the proceedings in error upon the ground that the motion for a new trial was not filed within the time required by the statute. The plaintiff in error, upon the other hand, moves this court to strike the amended record from the files, for the reason that a suggestion of a diminution of the record comes too late after the cause is submitted, and for the further reason that a record cannot be amended after the term at which it was made up, unless there be something to amend by, such as a minute or memorandum made at the time the original record was made, or where the record itself shows facts which would authorize the amendment.

The criminal code, Rev. Stat., Sec. 5416, provides: "An application for a new trial shall be by motion upon written grounds, which shall be filed at the time the verdict is rendered, and except for the cause of newly discovered evidence material for the party applying, which he could not with...