Delaney v. State

• Decision Date: 01 August 1905
• Citation: 81 P. 792,14 Wyo. 1
• Parties: DELANEY v. STATE
• Court: Wyoming Supreme Court

81 P. 792

14 Wyo. 1

DELANEY v. STATE

Supreme Court of Wyoming

August 1, 1905

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

William J. Delaney was charged upon an information filed by the Prosecuting Attorney of Uinta County with the crime of assault and battery upon one Stark with intent to commit murder. He was found guilty as charged in the information was sentenced to imprisonment in the penitentiary, and thereupon prosecuted error.

Affirmed.

J. H Ryckman, for plaintiff in error.

The trial court erred in refusing to instruct the jury that the defendant might be found guilty of aggravated assault and battery or of assault and battery. Whether the defendant was guilty or not, and if guilty, the degree of the offense, was for the jury. (Rev. Stat. 1899, Sec. 5389; Brantley v. State, 9 Wyo. 102; State v. Fisher, 3 N.E. 379; 2 Pl. & Pr., 857; State v. Cooper, 3 P. 429.) Aggravated assault and battery as defined by Section 4959, Revised Statutes, is included in assault and battery with intent to kill, and the same is true of assault and battery as defined by Section 4658, and there being evidence that would have justified the jury, under proper instruction, in returning a verdict under either of those sections, the court should have instructed them as to their duty in that regard. Such an instruction ought to be given even where the evidence of the inferior offense is slight; and where there is no evidence of a lower degree, except that of the defendant, the question as to the lower degree should be submitted to the jury. (Bish. Crim. Proc., 3980; State v. Evans, 36 Kan. 497; 11 Pl. & Pr., 212, 215; State v. Palmer, 88 Mo. 568; State v. Dolan, 17 Wash. 499; State v. Young, 60 P. 650; People v. Watson, 57 P. 1071 (Cal.); State v. Young, 99 Mo. 666; Dolan v. State, 44 Neb. 643; Carleton v. State, 61 N.W. 699; State v. Clemmons, 51 Iowa 274; State v. Walters, 45 Iowa 389; State v. Pannell, 56 Iowa 29; State v. Peters, 56 Iowa 263; Chappel v. State, 7 Caldw., 92 (Tenn.)

Where instructions are inconsistent, the judgment must be reversed. (Palmer v. State, 9 Wyo. 40.) And erroneous instructions are not cured by the fact that the law on the subject is correctly stated in another. (Yerkes v. R. R. Co., 112 Wis. 184.) Instructions 8, 9 and 10 were erroneous and prejudicial to the rights of the defendant. Instruction number 8 seems to make the procuring of a gun by the defendant evidence of his guilt; yet he might have been justified, since there is no evidence that he shot at Stark at any time before the latter got his gun and pointed it at the defendant's house. The ninth instruction stated that if defendant could have retreated to a place of safety before plaintiff reached his gun, it was his duty to have done so. That is not the law governing the conduct of a man on his own premises. (Palmer v. State, supra; Elder v. State, 69 Ark. 648.) Again these instructions took away from the jury matters which are exclusively in their province.

W. E. Mullen, Attorney General, for the State.

The allegations of the information would not support either assault and battery or aggravated assault and battery as those crimes are defined in the statute; and the question arises, therefore, whether if the defendant had been convicted of a felonious intent as charged there would sufficient remain to charge the lower offenses. The statute in defining assault, assault and battery, and aggravated assault and battery has departed from the definitions at common law. If the allegation of the information will not support the lesser offenses, then there was no error in refusing to give the instructions requested by the plaintiff in error. Further the evidence does not make out a case of assault and battery or aggravated assault and battery; the wounds inflicted were sufficient to produce death ordinarily, and the evidence does not disclose the slightest justification for the assault and battery by plaintiff in error. Applied to the evidence, the instructions given to the jury which are complained of by counsel for plaintiff in error are not prejudicial, but correctly state the law as governed by the evidence; but if there was any error in the ninth instruction, it was not prejudicial. Upon the whole case the verdict and judgment was clearly right and a reversal would not be authorized. (Miller v. State, 3 Wyo. 663.)

SCOTT, DISTRICT JUDGE. POTTER, C. J., and PARMELEE, District Judge, concur. Justices Beard and Van Orsdel being disqualified, District Judges Scott and Parmelee were called in to sit in their stead.

OPINION

SCOTT, DISTRICT JUDGE.

The defendant (plaintiff in error) was tried upon an information charging him with an assault and battery with intent to commit murder, found guilty and sentenced to the penitentiary for a term of years.

1. Plaintiff in error contends that it was error for the court to give to the jury the following instructions which were requested by the State, viz:

"8. If you find from the evidence that the defendant procured his gun while Stark was fleeing from the house, and went to the door and immediately shot at Stark with intent to kill him, then you should find the defendant guilty.

"9. If you find from the evidence that the defendant could have retired to a place of safety before Stark reached his gun, then it was his duty to have done so, and he was not justified in shooting Stark because he may have believed that Stark was going after his gun. To justify the use of a deadly weapon by the defendant when an assault has been made upon him, the circumstances must appear to be such that there is no other reasonable means of escape from death or great bodily harm."

As to whether these instructions or either of them are erroneous in whole or in part, or if erroneous as applied to the facts in this case was prejudicial to him, requires a review of the evidence and may be considered together.

Defendant was a ranchman engaged in raising sheep, his ranch being situated near the mouth of La Barge Creek on Green River, Uinta County, Wyoming. On the morning of November 24th, 1904, he, together with his hired men, were building a corral close to the dwelling house on the ranch. This house was constructed substantially of logs, having but three rooms, and was used by the defendant and his employes. There was a small door yard with a gate just in front of the house. While they were so engaged, one Stark rode up on horseback with his rifle across the front of his saddle, passed the time of day with defendant, dismounted, hitched his horse to the wheel of the buckboard which stood about thirty yards from and in front of the house, and leaned his rifle against the buckboard on the opposite side from the house. Some pleasantries passed between the parties, and Stark asked defendant if there was any mail for him, and the latter answered saying there was a letter for him in the house. Thereupon Stark went into the house. Stark had previously worked for defendant for short periods of time and had left some things there when he quit work the last time. His principal occupation was trapping and hunting wolves and coyotes for the bounty on them, and he carried his rifle with him for that purpose. There had been some disagreement between him and defendant, but not of a serious nature, and no evidence was introduced upon the trial to show that he was a quarrelsome or dangerous man, or had made any threats against the life of or to do the defendant any bodily harm. There was an unsettled account between him and defendant with reference to a wagon cover.

Stark failing to find his letter, came to the door and inquired where the letter was, and defendant told him it was on the window, and, upon this information, procured and sat down to read it, and was reading when defendant entered the house and said he would get his check book and write him out a check for the three dollars he owed him for the wagon cover. Stark refused to take the check, owing, as he said, to the remote place they were in and the difficulty in cashing it, and said, "I don't want your check," whereupon defendant flew into a passion, saying if his check was not good, then he himself was no good, and ordered Stark to get his things and get off the place. Stark went into an adjoining room to pack up his things, and defendant went out to the men to see if he could get the cash, using to them vile and profane language with reference to Stark, saying he had told him to pack up his things and get out of there, and came back to the house, two of the men following him there. These two men were witnesses as to what occurred in the house from that time on, and their evidence practically agrees with that of Stark and the defendant. Stark came out of the side room with his things done up in a bundle, including a violin which the defendant ordered him to leave, and grabbed him and attempted to take it away from him, harsh and vile epithets being applied one to the other. Stark jerked the bundle away and, freeing himself, started out the door on a run to the buckboard, where his horse and rifle were. Defendant rushed into an adjoining room, procured his loaded rifle and came to the door looking for Stark, the latter at that time having dropped his bundle in his flight and being crouched behind the front wheel of the buckboard for shelter. Defendant immediately raised his rifle and, aiming at Stark, fired, the bullet passing through the spoke of the wheel, entering Stark's right hip and passing through the fleshy part from right to left. Stark arose with his gun and, walking sideways and backward facing the house, his rifle not raised or aimed, but with the muzzle in the direction of the house, endeavored to get in the rear of a shed near by, and while doing so...