Downing v. State

• Decision Date: 25 June 1902
• Citation: 10 Wyo. 373,69 P. 264
• Parties: DOWNING v. STATE
• Court: Wyoming Supreme Court

69 P. 264

10 Wyo. 373

DOWNING v. STATE

Supreme Court of Wyoming

June 25, 1902

ERROR to the District Court, Carbon County, HON. RICHARD H. SCOTT Judge of the First District, presiding.

George W. Downing was indicted and tried for the crime of murder in the first degree, found guilty of murder in the second degree, and sentenced to the penitentiary for the term of twenty-five years. He filed his petition in error for a review of the judgment. The State moved a dismissal of the proceedings in error on the ground that the bill of exceptions did not contain the evidence. Heard on the motion.

Motion to dismiss denied.

J. A Van Orsdel, Attorney General, for the State, contended that there was nothing for this court to review in the absence of the evidence, and urged a dismissal of the case, citing Miller v. State, 3 Wyo., 658.

N. E Corthell and Thomas H. Gibson, for plaintiff in error contra.

"Error of law occurring at the trial," affecting the substantial rights of the party aggrieved, is a good cause for a new trial. (R. S., Sec. 5415.) A motion for a new trial, which presents such a question, is not addressed to the discretion of the court, but every such error can be fully presented for review in this court by stating it as a cause for a new trial in the motion for a new trial. (U. S. v. Trabing, 3 Wyo., 144.)

Though the evidence is not in the record, judgment will be reviewed if an instruction complained of would not be correct under any evidence that might have been given under the issues, because the errors complained of in such cases clearly relate to matters of law alone, and to incorporate the evidence would only encumber the record, tend to confusion and cause unnecessary expense. (Rapp v. Kester, 125 Ind. 79; Wenning v. Teeple, 144 id., 189; Lindley v. Dempsey, 45 id., 246; Palmer v. Wright, 58 id., 486; Murphy v. Johnson, 45 Ia. 57; Steveson v. Greenleaf, 15 id., 96; Warbasse v. Card, 74 id., 306; Roberts v. Wolfe, 1 Dana, 155; Heaverin v. Otter, 5 Ky. L. Rep., 180; L. & N. R. Co. v. Cambron, 6 id., 369; People v. Levison, 16 Cal. 98; People v. Long, 39 id., 694; Schmidt v. Chicago, &c., 83 Ill. 405; Willis v. State, 27 Neb. 98; Peden v. Moore, 1 Stew. & P., 71; Tharp v. State, 15 Ala. 749; Pennock v. Dialogue, 2 Pet., 1.)

The bill of exceptions is sufficient upon which to predicate error, in the absence of the testimony adduced at the trial, because, "in general, the evidence is not regarded as part of the record proper in cases where the search is made for the purpose of determining whether a manifestly wrong ruling worked harm." Elliott App. Proc., Sec. 653.)

The doctrine laid down in the case of Miller v. State, 3 Wyo., 663, cannot be construed to mean more than "that it is never the right of a party to demand a new trial in any case, civil or criminal, on account of error in the instructions to the jury, where it is clear from the evidence that the verdict is right, and that a new trial ought to produce the same result, or would under correct instructions certainly produce the same result," because: (1) The evidence was in the record in this case, and the opinion states that it was such a case as described above. (2) The authority of the language used must necessarily be confined to cases similar to the one upon which the opinion is based. That case did not call for an opinion upon a case where the evidence was not preserved in the record; it did not call forth comment from the court upon such a case, consequently it is not authority upon the proposition presented by this motion. (Wright v. Nagle, 101 U.S. 791; Cohens v. Virginia, 6 Wheat., 264.) (3) The opinion admits the very principle for which we contend, i. e., that in its proper application, the principle that "error in the instructions will be presumed to be prejudicial," is a correct one. (2 Thompson on Trials, Secs. 2406, 2246; Elliott App. Proc., Sec. 643.)

That an erroneous instruction will be presumed to have been corrected by other instructions, if all the instructions are not in the record, is applicable to this case, we deny, because: (1) The certificate of the judge states: "And the foregoing were, together with the instructions, set forth in the motion for a new trial, all of the instructions given or refused in the trial of said cause." (2) A fatally erroneous instruction can only be cured by expressly withdrawing it from the jury, as a correct instruction would be inconsistent with the erroneous one and cause for reversal. (Wenning v. Teeple, 144 Ind. 189; Ross v. State, 8 Wyo. 387; R. S., Sec. 3644.)

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

OPINION

KNIGHT, JUSTICE.

Defendant in error moves the court to dismiss the appeal in this case, for the reason that the bill of exceptions does not contain the testimony adduced on the trial of said case, or any part thereof, and is, therefore, insufficient upon which to predicate error in this court. Counsel for defendant in error to support his motion aforesaid relies upon the judgment of this court announced in Miller v. State, 3 Wyo. 657, 29 P. 136, where this language is found: "The rule as to reversing judgments on account of erroneous instructions to the jury, by this court, and stated by Thompson on Trials as the rule of nearly all the courts, is 'that no judgment will be reversed on account of the giving of erroneous instructions unless it appear probable that the jury were misled by them.' And, again, 'of course, it can never be said that the jury were misled by the giving of erroneous instructions where they have reached the correct result by their verdict. Accordingly it is the practice of most of the courts, before passing upon exceptions to instructions, to look into the evidence and see if the verdict was right; and, if it is found to be so, the court will look no further.' (2 Thomp. Trials, Secs. 2401, 2402, and authorities there cited.) This rule is sustained by very numerous authorities of the highest respectability. Some courts say that the doctrine of error without prejudice does not apply to the same extent in criminal as in civil cases, and some courts hold that error in the instructions will be presumed to be prejudicial. Admitting, without discussing or deciding either point, that both these restrictions of the rule are correct in their proper application, it may safely be said that it is never the right of a party to demand a new trial in any case, civil or criminal, on account of error in the instructions to the jury, where it is clear from the evidence that the verdict is right, and that a new trial ought to produce the same result, or would, under correct instructions, certainly produce the same result."

In opposition to the motion to dismiss this appeal counsel for plaintiff in error contend: "Though the evidence is not in the record, judgment will be reviewed if an instruction complained of would not be correct under any evidence that might have been given under the issues; because the errors complained of in such cases clearly relate to matters of law alone, and to incorporate the evidence would only encumber the record, tend to confusion and cause unnecessary expense." And in support of this said contention several authorities are cited, among them being Rapp v. Kester, 125 Ind. 79, 25 N.E. 141; Wenning v. Teeple, 144 Ind. 189, 41 N.E. 600; Lindley v. Dempsey, 45 Ind. 246; Palmer v Wright, 58 Ind. 486. And in the case of Rapp v. Kester, supra, after stating in substance as is contended, we find the following language: "Every presumption in favor of the correctness of the ruling of the trial court is indulged in by this court, and unless the record affirmatively...