Cirej v. State

• Decision Date: 23 December 1916
• Docket Number: 876
• Parties: CIREJ v. STATE
• Court: Wyoming Supreme Court

161 P. 556

24 Wyo. 507

CIREJ v. STATE

No. 876

Supreme Court of Wyoming

December 23, 1916

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

Matt Cirej was convicted of murder in the first degree and brings error. The material facts are stated in the opinion.

Reversed.

R. R Rose, for plaintiff in error.

The fifteenth instruction given by the court was erroneous in that it informed the jury that if they found defendant guilty of murder in the first degree "without capital punishment," the court might in its discretion fix the penalty within the limits prescribed by statute; the court has no discretion whatever in such cases, but is required by the statute to impose the death penalty. (Section 5789, Compiled Statutes 1910 as amended by Chapter 87 of the Laws of 1915.) Neither the jury nor the court can under the law in case of conviction of first degree murder, fix any punishment other than death or life imprisonment; the jury were warranted in supposing that if they made no recommendation the court would have the right or discretion to impose punishment less than life imprisonment; the word "discretion" implies necessarily a choice between two or more alternatives; this statute does not clothe the court with discretion in fixing the penalty. When the jury have an option to choose between two alternative punishments it is error to fail to instruct the jury fully as to the law in that regard. (Blashfield on Instructions, Sec. 187, citing numerous authorities.) The sixth instruction given by the court is also erroneous. Section 5789, Compiled Statutes 1910, as amended by Section 1, Chapter 87, Laws of 1915, defines the crime of murder in the first degree; premeditation is necessary. (Ross v. State, 57 P. 924.) A similar instruction is condemned in the Ross case. It was impossible to save exceptions and present the errors in a motion for a new trial in the usual manner. The humane practice suggested by this court in State v. Yeager, 136 P. 1195-6, indicating that even though exceptions were not reserved at the trial of a capital case, the court will examine the record to ascertain whether errors have occurred that have deprived defendant of a fair trial; this rule is observed in many jurisdictions. (12 C. C. 721; 1 O. D. 229.) This is a capital case, plaintiff in error now being under sentence of death. The record presents obvious and serious errors and the judgment should be reversed.

D. A. Preston, Attorney General, for the State.

But two errors are assigned in the motion for a new trial, neither of which are mentioned, argued or discussed in the brief of plaintiff in error; the brief is confined to the discussion of two alleged errors, viz: the giving of instructions numbered fifteen and six; only such assignments as have been called to the attention of the court below by motion for a new trial will be considered on appeal. (C. B. & Q. R. R. Co. v. Hampman, 18 Wyo. 106; Ross v. State, 16 Wyo. 285; Phillips v. Brill, 15 Wyo. 521; Boswell v. Bliler, 8 Wyo. 277; Syndicate Imp. Co. v. Bradley, 6 Wyo. 171.) Errors not presented below by motion for a new trial will not be reviewed on appeal. (Dickerson v. State, 18 Wyo. 440; C. B. & Q. R. R. Co. v. Hampman, 18 Wyo. 106; Gustavenson v. State, 10 Wyo. 300; Ross v. State, 8 Wyo. 351; Boulter v. State, 6 Wyo. 66; Boburg v. Prahl, 3 Wyo. 325; Cook v. Terr., 3 Wyo. 110.) In view of the repeated decisions of this court, and the fact that plaintiff in error has no assignment or assignments of error properly before this court for its consideration upon the record filed herein, the judgment should be affirmed.

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., did not sit.

OPINION

BEARD, JUSTICE.

The plaintiff in error, Matt Cirej, was convicted of murder in the first degree and sentenced to suffer death. From the judgment he brings error.

The case was tried in the district court of Lincoln county at the same term and immediately following the case of The State of Wyoming v. Daniel Parker, which case, entitled in this court Daniel Parker v. The State of Wyoming, was this day decided. The same attorney was appointed by the court to defend in this case as in the Parker case. The grounds for a new trial as contained in the motion therefore are, that the verdict was not sustained by sufficient evidence and is contrary to law; and that the court erred in giving instruction No. 17, and instruction No. 21. Each of those instructions was excepted to at the time, and all of the instructions are contained in the bill of exceptions; but Nos. 17 and 21 are not mentioned or discussed in the brief of counsel for plaintiff in error, and under the rule, if strictly enforced, the objections thereto would be deemed waived. But as this is a capital case and the entire record being before us we have examined the same for the purpose of ascertaining whether or not it discloses such fundamental error as deprived the defendant of a fair trial. The defense was insanity; and instruction No. 17 is as follows:

"The court instructs the jury that the law presumes every man sane until the contrary is shown by the evidence, and before the defendant can be excused on the ground of insanity the jury must believe from the evidence that the defendant at the time of the killing was without sufficient reason to know what he was doing, or that, as a result of mental unsoundness, he had not then sufficient will power to govern his action by reason of some insane impulse which he could not resist or control." The statement that before the defendant can be excused on the ground of insanity the jury must believe from the evidence that the defendant at the time of the killing was without...