Dickerson v. State

Decision Date14 June 1911
Docket Number628
Citation18 Wyo. 440,111 P. 857
CourtWyoming Supreme Court

18 Wyo. 440 at 473.

Original Opinion of December 3, 1910, Reported at: 18 Wyo. 440.

Rehearing denied.

N. R Greenfield and Samuel A. King, on petition for rehearing.

There is nothing in the statute requiring an applicant for a new trial to specify in his motion anything further than the statutory ground. One of the grounds is "errors of law occurring at the trial." When that is alleged it is sufficient to present to the court any matters of error that occurred upon the trial involving a question of law. The statute does not require a detailed statement of the errors relied upon. Rule 13 of the Supreme Court does not conflict with this proposition. The court does not possess the power to adopt rules in conflict with the statutory provision. But only to adopt reasonable rules for the guidance of litigants in presenting questions to the courts in respect to matters not provided for by statute, and we take it there is no attempt made by rule 13 to enlarge or restrict the plain provisions of the statute. Under that ground stated in the motion, therefore, the erroneous admission of any evidence is properly presented to the court by the motion.

This court held that it was error to permit the testimony in the former case which was introduced to show the materiality of the alleged false testimony of the defendant to be read in the presence of the jury. The court further held that the defendant had requested a proper instruction limiting the consideration to be given to that testimony. But it was also held that the error was not prejudicial. The proposition that the error was not prejudicial is one to which we cannot assent, and we respectfully ask a reconsideration of that question, particularly in view of the facts quoted in the opinion of the court to the effect that the testimony of the prosecutrix went into detail regarding the alleged assault her resistance, &c. No part or portion of that testimony had anything whatever to do with the question under consideration. It may be true that it was competent upon the trial for rape, but to permit it to be considered upon the perjury trial could have had no other effect than to prejudice the jury against the defendant in a most improper manner. We earnestly insist that the conclusion that such testimony was not prejudicial was erroneous and in violation of well settled principles of law. (12 Cyc. 912; People v. Smith, 172 N.Y. 210; People v. Greenwall, 108 N.Y. 296; People v. Wood, 126 N.Y. 249; People v. Corey, 148 N.Y. 476; People v Koener, 154 N.Y. 355; Green v. White, 37 N.Y. 405; Stokes v. People, 53 N.Y. 164; People v. Strait, 154 N.Y. 165; People v. Helmer, 154 N.Y. 596; Kirby v. People, 15 N.E. 33; McCormick v. Jacobson, (Ia.) 35 N.W. 627; George v. Ry. Co., 53 Ia. 503; People v. Wallace, 89 Cal. 158; People v. Fair, 43 Cal. 137; People v. Dye, 75 Cal. 112; People v. Tilley, (Cal.) 24 P. 290.)

The testimony which we have objected to so strenuously is not material to any issue in this case. It was nothing more than a direct attack upon the defendant's character with reference to a charge upon which he had been acquitted, and it placed him in a position of being unable to again answer conclusively the charges which a competent jury had decided in his favor. The courts are always jealous of the rights of parties and that they be fully protected in their legal rights. (Carter v. Wakeman, (Ore.) 78 P. 362; People v. Maine, (N. Y.) 59 N.E. 696.) We deem it proper to direct the court's attention to the following cases which show conclusively that even though a portion of this testimony might have been received by the court, in order to enable the court to determine whether or not the testimony charged as having been perjury was material, that the court should have limited by a proper instruction such testimony: 3 Ency. Ev. 188, 189; Davidson v. State, 22 Tex.App. 336; Ross v. State, 40 Tex. Cr. 349; Littlefield v. State, 23 Tex.App. 167; Maines v. State, id. 568; Washington v. State, 28 Tex.App. 336; State v. Brown, 111 La. Ann. 831; Byrne v. Byrne, 113 Cal. 294.

If the instruction requested was proper, and this court has so said, then how can it be that defendant was not prejudiced by the failure to give the instruction, particularly when under the law in criminal cases it is the duty of the court of its own motion to give an instruction limiting the effect of evidence competent only for a special purpose. Whether or not the testimony given by the witnesses Kelley, Fitzsimmons, Drake and Smith was competent is an important question. In our opinion the testimony should not have been received, and after it was received it should have been stricken from the record upon the motions made for that purpose. The information charged the defendant with giving certain false testimony. It was claimed that he had committed the crime of rape on August 7, 1908, and thereby transmitted to the prosecutrix a certain disease. The statement of the defendant was positive that he was not afflicted with said disease during the said month of August. His statement that he had never, to his knowledge, been so diseased was a qualified statement. On his trial for rape it is possible that it was a material issue whether he had been afflicted with the disease in August, but it was wholly immaterial whether he was afflicted with it in September or at any other time during that year. But whether he was afflicted before or after that month is wholly immaterial for he had testified only that he had never, to his knowledge, had the disease. The only question for consideration was, did the defendant have the disease in question at the time it is claimed he committed the crime of rape, and we respectfully contend that the testimony did not tend in any manner to establish the fact that the defendant committed perjury in stating that he did not have it at that time, and testimony that he was suffering from some venereal disease by witnesses who had no special knowledge or training in relation to the particlar ailment was extremely prejudicial to the defendant. It did not establish the falsity of the defendant's statement, and was a conclusion of the witnesses which they were not entitled to give. The principle of law invoked by the court in sanctioning the admissibility of this testimony we respectfully contend does not apply to the case at bar, because in an insanity case it is well known that the disease may manifest itself in various forms; it may be intermittent or chronic, and if a lay person is called to testify regarding the insanity of the individual he must state the particular acts and conduct of the subject, and in some instances is permitted after so doing to give a conclusion based upon such facts. But in the case at bar we submit that there was no evidence whatever to show that the defendant ever at any time prior to August had the disease or knew that he had had it, with the possible exception of the testimony of Kelly, who was permitted to testify with regard to a conversation concerning the defendant's condition when in Arizona, but this would not justify the admission of the testimony of the other witnesses, and it was incompetent for the reason that it did not tend to show that the defendant was similarly afflicted in August, 1908.

We believe that the court took a too narrow view of the exception taken by the plaintiff in error as to the offer of the testimony of Doctor Kieffer. The court had refused to admit the testimony. The ruling was as evident as if the court had then said that the objection was sustained. It was to all of the proceedings that counsel excepted. Not only the refusal to allow the offer of the evidence to be stated in the presence of the jury; but to the statements which had been made by the court to the effect that the evidence was incompetent. We feel that the view taken by the court of the effect of the exception is extremely technical and not justified by the record. It has the effect of resolving the doubt, if any there be, against the defendant, when it should be resolved in his favor. That the evidence was competent there can, in our judgment, be no doubt, and exclusion of the testimony was extremely prejudicial.

Instruction number 3 given at the request of the prosecution evidently contains an erroneous definition of the term "reasonable doubt," and inasmuch as that term is used in practically all of the instructions given, both on behalf of the state and the defendant, it cannot have been other than prejudicial to the defendant. Where the instructions for the state as a whole present an erroneous view of the law as applied to the facts in the case a general exception is sufficient. (Palmer v. State, 9 Wyo. 49.)

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.




The plaintiff in error has filed a petition for rehearing in this case. In the fourth paragraph of the original opinion it was said as to the contention that the trial court erred in admitting the files in the case in which the perjury was alleged to have been committed, that it was not made ground in the motion for new trial and need not be considered. It is now contended that this was erroneous for the reason that it was included in the motion for new trial by the general specification: "Errors of law occurring at the trial of said cause and to which said errors of law and rulings of said court the defendant at the time duly excepted." It has been uniformly held by this court that such a specification is too general and indefinite to show that the question was brought directly to the attention of the court below. (Boburg v. Prahl, 3 Wyo. 325, 23 P 70; C., B....

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11 cases
  • Parker v. State
    • United States
    • Wyoming Supreme Court
    • December 23, 1916
    ...was made to the instructions as a whole, and unless all of the instructions were erroneous, the objection is insufficient. (Dickerson v. State, 18 Wyo. 440.) Instruction No. 8 was a correct statement of the (State v. Privitt, 175 Mo. 207.) Instructions requested by defendant were either cov......
  • Richey v. State
    • United States
    • Wyoming Supreme Court
    • October 18, 1921
    ...where the punishment imposed is less than capital, the general rule requiring that there be proper exceptions has been adhered to (Dickerson v. State, supra; Loy State, 26 Wyo. 381, 185 P. 796), except that in Palmer v. State, 9 Wyo. 40, 59 P. 793, 87 Am. St. Rep. 910 it was held that where......
  • LaChapelle v. Union Pacific Coal Co.
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    • Wyoming Supreme Court
    • April 24, 1923
    ...168 Ill. 586, 48 N.E. 442; Pettit v. Pettit, 138 Ind. 597, 38 N.E. 1791; Etchells v. Wainwright, 76 Conn. 534, 57 A. 121; Dickerson v. State, 18 Wyo. 440, 116 P. 448.) bill of exceptions does not purport to contain all of the evidence, nor does the trial court certify with respect to the ev......
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    • Alabama Court of Appeals
    • September 7, 1916
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