Durham v. State

Citation29 Wyo. 85,210 P. 934
Decision Date15 December 1922
Docket Number1081
PartiesDURHAM v. STATE
CourtUnited States State Supreme Court of Wyoming

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

Ida Durham was convicted of murder in the second degree, and she brings error.

Judgment affirmed.

Hench and Bullack, for plaintiff in error.

The court erred in denying plaintiff in error time for the taking of depositions and preparation for her defense. (Ennis v State, 167 P. 229; Sec. 7518 C. S.) A defendant is entitled to reasonable time for preparation for trial. (Powers v. People, 53 Colo. 43, 123 P. 642; Harris v. State, 132 P. 1121; Schaffer v Territory, 127 P. 746; State v. Musselman, 172 P. 346; Moore v. State, 139 P. 709.) Technical objections should not prevent the granting of a continuance and time to prepare for trial. (Owen v. State, 163 P. 548; Payne v. State, 136 P. 201; Smith v State, 139 P. 709; Johnson v. Dinsmore, 9 N.W. 559.) Facts set forth in affidavits for continuance must be taken as true. (Hair v. State, 16 Neb. 829; Newman v. State, 35 P. 194; Cutler v. State, 42 Ind. 244; Eslinger v. East, 100 Ind. 434.) The court erred in refusing requested instruction "A" on the question of threats. (Gardner v. State, 196 P. 750; State v. Cushing, 45 P. 145; People v. Harris, 54 N.W. 650.) Defendant was entitled to requested instruction as to the relative size and strength of parties. (21 Cyc. 969; State v. Barber, 88 P. 418.) The court erred in refusing evidence of threats made by deceased against defendant, and ruling out defendant's offer to prove destructive acts against defendant's property by deceased. In homicide where the defense is self-defense, it is entitled to instructions on every phase of the issue. (State v. Zellers, 7 N.J.L. 230; 21 Cyc. 962; Russell v. State, 11 Tex.App. 288; Smith v. State, 174 P. 1108; Adams v. State, 84 S.W. 231; Michie on Homicide, Vol. 1, p. 344; 21 Cyc. 969; State v. Gray, 74 P. 927.) In order to justify homicide in self-defense, it is not necessary that deceased shall have made an attack on defendant (21 Cyc. 814), or that the slayer shall have been in actual danger of death or great bodily harm (21 Cyc. 860.) Defendant, being a woman, had a right to use a weapon, if she apprehended danger (21 Cyc. 824.) This case comes clearly within the facts and principles to be found in the case of Mortimore v. State, 24 Wyo. 452, where subject to threats, acts and conduct of the deceased, defendant became apprehensive of danger.

Vincent Carter, Deputy Attorney General, for defendant in error.

Defendant's motion for continuance was denied for insufficient showing as to materiality thereof. The granting of a continuance is discretionary. (James v. State, 27 Wyo. 378; McKinney v. State, 3 Wyo. 729; Wassels v. State, 26 Ind. 30; Insurance Co. v. Gisborne, 5 Utah 333.) The error, if any, was cured by the arrival in time of the depositions in question and their use at the trial. (Rogers v. Rogers, 41 Ky. 324; McKinn v. McGee, 109 Ind. 209; Murray v. State, 21 Tex.App. 466; Adams v. Adams, 23 Ind. 50.) Defendant's requested instruction as to threats did not correctly state the law. (Flanders v. State, 24 Wyo. 103; Mortimore v. State, 24 Wyo. 452.) The instructions given by the court fully covered the points in question. (Horn v. State, 12 Wyo. 80; Cook v. Territory, 3 Wyo. 110.) Defendants in criminal cases are permitted to take depositions, (7518 C. S.), upon an issue of fact joined in the case. (Bias v. Vickers, 27 W.Va. 456.) Defendant's application to take depositions was prematurely made and depositions taken before an issue of fact is joined are inadmissible. (Comm. v. Rickertson, 5 Metc. 412-428; People v. Restell, 3 Hills, 289.) Since all of the depositions could have been properly excluded the defendant was benefited to the extent that any portion thereof was received.

The cases of Smith v. State, 174 P. 1107 and Beasley v. State, 179 P. 647, cited by plaintiff in error, appear to be directly opposed to the contention of plaintiff in error with respect to communicated threats. The alleged threats in the present case bore relation to a distinct and independent transaction which occurred a month or more, previous to the homicide, and were not applicable. (People v. Taing, 53 Cal. 602; Allen v. State, 17 Tex.App. 637; Jones on Evidence, Vol. 1, pp. 742-743.) Before communicated threats can be relevant the evidence must show an overt act with intent to carry the threat into execution. (Steele v. State, 33 Fla. 348-354; State v. Janvier, 37 La. Ann. 645; State v. Harris, 40 Am. St. Rep. 259.) Motions for new trial on the ground of newly discovered evidence should be received with caution and should show reasonable probability that such evidence will materially affect the rights of defendant. Such matters are within the discretionary powers of the trial court. (People v. Rushing, 130 Cal. 449; People v. Williams, 242 Ill. 197; State v. Vallery, 47 La. Ann. 182.) The theory of self-defense is not supported by testimony. Defendant left the State of Oklahoma and followed deceased into the State of Wyoming, apparently for the purpose of killing him; she had a fair trial and the evidence clearly established murder in the second degree.

BLUME, Justice. KIMBALL, J., and BURGESS, District Judge, concur, the latter sitting in place of Potter, Ch. J., who being ill, did not sit.

OPINION

BLUME, Justice.

The defendant was charged with the unlawful killing of Jack Delury and convicted of murder in the second degree. On this verdict sentence was pronounced. She now brings error proceedings to review the judgment of the court below.

The defendant, a woman about 42 years of age, and a barber by trade, became acquainted with the deceased, a man about 45 years of age, at Burkburnett, Texas. She became engaged to him to be married during the summer of 1920. Many difficulties arose between them, the deceased often getting drunk, often asking the defendant for money, and often, as shown by the testimony, quarrelling with the defendant, threatening her with violence, abusing and maltreating her. As a result, so the defendant claims, she was in fear that deceased would kill her or inflict great bodily harm upon her. On May 15th, 1921, defendant, so she claims, was mistreated by deceased on the streets at Oil City, Texas, possibly as a result of the refusal of defendant to give him money. Subsequently during that day deceased cut up, mutilated and destroyed clothing and other personal property of the defendant, the testimony in regard to which was not admitted in evidence. Immediately thereupon the deceased left Texas and came to Casper, in this state where the homicide in question occurred. The defendant, it seems, immediately after the destruction of said personal property, endeavored to find the abode of the deceased and desired him to be arrested or make restitution in value of the property destroyed. Finally discovering his whereabouts, and unable to get the authorities in Texas to bring back the deceased, she, armed with a gun, followed him to Casper, arriving in that city in the evening of June 15th, 1921. The following evening she encountered the deceased at a street-carnival held near the "sand-bar" in said city, and shot him with a gun, as a result of which the deceased soon died. The defendant pleaded self-defense. Other facts in the case will be related further on in the opinion.

1. Error is assigned because no continuance was, on application, allowed. The motion for such continuance was based on the ground that depositions which were being taken on behalf of the defendant had not arrived. These depositions, however, shortly after the making of the motion and toward the beginning of the trial, duly arrived and were offered in evidence and used for and on behalf of the defendant. If, therefore, there was error because the continuance was not granted, it was clearly cured by the arrival and use of the depositions.

2. Error is also assigned that the witness Henry T. McHenry was not allowed to testify to certain threats against the person of defendant and communicated to her. The record is not at all clear that the court struck out such testimony. Even counsel for defendant, on page 18 of his brief, admits that no objections were made to evidence of threats against the person of the defendant. We think that the record, on the whole, shows that the evidence thereof was not taken from the jury.

3. The defendant, as before indicated, offered testimony to show that immediately before leaving Texas and going to Casper, deceased cut, slashed and destroyed the personal belongings, barber outfit and other personal property of defendant and that he had made previous threats to do so. The testimony was excluded and error is assigned by reason thereof. We should, in the first place, perhaps say that we do not regard the testimony of the same importance as do counsel for defendant. Considerable testimony of previous threats against, and previous violence toward, the person of deceased was shown. The evidence of the destruction of property and threats in relation thereto would, therefore, at most be cumulative on the points for which testimony of threats is admitted. Again, destruction of defendant's property, or threats in relation thereto, would not necessarily show that the deceased also had an intention, or was inclined, to do violence to the person of defendant. The evidence would, perhaps, have a tendency to show the worthlessness of the deceased, but that fact alone would not justify or palliate the homicide.

Where the proof justifies the giving of a charge on the law of self-defense, defendant may, for the purpose of showing deceased to have been the aggressor and the killing to have been necessary in self-defense, introduce...

To continue reading

Request your trial
21 cases
  • Jahnke v. State
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Junio 1984
    ...to avert such peril, and that no other reasonable means of avoiding it was open to him. * * * ' Durham v. State, supra [29 Wyo. 85, 210 P. 934 (1922) ], 29 Wyo. at 96, 210 P. at 938. " ' * * * That to justify the taking of human life in self-defense, it must appear from the evidence that th......
  • Chicago & N.W. Ry. Co. v. Ott
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Junio 1925
    ...motion filed out of time; Mitter v. Co., 28 Wyo. 439; it lacked a showing of diligence, 21 Wyo. 447; Hardin v. Card, 15 Wyo. 217; Durham v. State, 29 Wyo. 85; it was in the nature of cumulative evidence; Link v. U. P. Ry. Co., 3 Wyo. 679; Freisheimer v. Missoula Co., 210 P. 329; In re Louck......
  • Espy v. State
    • United States
    • United States State Supreme Court of Wyoming
    • 11 Julio 1939
    ...fatal encounter, he was threatening only to whip the two defendants in a fist fight in the midst of a crowd of people. See Durham v. State, 29 Wyo. 85, 93, 210 P. 934; Roddie v. State (Okla. Cr.) 198 P. 342, State v. Elliott, 98 Mo. 150, 11 S.W. 566. To justify a killing on the ground of se......
  • State v. Bristol
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Diciembre 1938
    ......The right. of human liberty will be best conserved by throwing around. human life every reasonable safeguard. Instruction numbered. 15, given by the court, over defendant's objection is in. the identical language of the court in State v. Durham, 29 Wyo. 85. Counsel for appellant opposes. instruction numbered 17 given by the court, but we contend. that it correctly states the law. Appellant, at least by. inference concedes that instructions numbered 19, 20, 21 and. 22 are correct. Instructions numbered 15 and 18 are. substantially ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT