Eagan v. State

Decision Date21 July 1942
Docket Number2227
PartiesEAGAN v. STATE
CourtWyoming Supreme Court

ERROR to the District Court, Carbon County; V. J. TIDBALL, Judge.

Dan E Eagan was convicted of murder in the second degree and he appeals.

Judgment Set Aside, and District Court Ordered to Re-sentence Defendant for Manslaughter.

For the plaintiff in error there was a brief by E. E. Enterline Madge Enterline and Alex B. King, all of Casper, and oral argument by Mr. Enterline.

The verdict of the jury is not sustained by sufficient evidence and is contrary to law. Murder in the second degree is defined by Section 32-304, W.R.S. 1931. Instructions to the jury, numbered 8 and 9, were apparently disregarded by the jury in view of the evidence. Meldrum v. State, 23 Wyo. 12. The state failed to prove malice as defined by this court. State v. Sorrentino, 31 Wyo. 129; State v. Cross (W. Va.) 24 S.E. 996. Defendant was entitled under the evidence to an acquittal of murder in the second degree. Trumbull v. Territory, 3 Wyo. 280; Gustavenson v. State, 10 Wyo. 300; State v Pressler, 16 Wyo. 214; Meldrum v. State, 23 Wyo. 12; State v. Morris, 41 Wyo. 128. The state cannot convict a person of crime upon mere conjecture, suspicion or probabilities. State v. George, 40 Wyo. 95; Smith v. State, 40 Wyo. 128. The trial court erred in failing to direct a verdict of acquittal on the charge of murder in the second degree, and in failing to instruct the jury upon the issue of accidental killing and in refusing instructions requested by defendant. Accidental killing is not defined in Instruction No. 14 given by the court. State v. Matheson (Iowa) 103 N.W. 137; State v. Hartzell (Iowa) 12 N.W. 557; State v. Lee (Iowa) 60 N.W. 119; State v. Budge (Me.) 137 A. 244. The Court erred in failing to instruct on circumstantial evidence. Gardner v. State, 27 Wyo. 316; State v. Miller (Kan.) 114 P. 855. Proof of malice is necessary in a conviction of murder in the second degree. The court erred in giving conflicting instructions on self-defense. State v. Radon, 45 Wyo. 383, 399; State v. Hartzell, supra. Instruction No. 15 was erroneous and highly prejudicial to defendant relating to family difficulties. Gustavenson v. State, supra; State v. Pressler, supra; Clay v. State, 15 Wyo. 42. The court erred in its Instruction No. 14 limiting accidental killing to the crimes of murder in the first and second degrees. The trial court erred in admitting exhibits 1, 2 and 4 offered by the state over defendant's objection. State v. Lantzer, 55 Wyo. 230. The court erred in denying defendant's motion to strike the testimony given by witnesses Morrissey, Walker, Sack, Garland and Eastman, on the ground that it was incompetent, irrelevant and immaterial. The prosecuting attorney was guilty of misconduct in his cross-examination of defendant and in presenting the testimony of the witness Agnes Eastman, and also in his closing argument to the jury in declaring that the evidence established a cold-blooded murder. State v. Wilson, 32 Wyo. 37; State v. Cyty (Nev.) 256 P. 793; Patton v. Texas & P. R. Co., 21 S.Ct. 275; Smith v. Beard, 56 Wyo. 375. The judge is primarily responsible for the just outcome of a trial. Glasser v. U.S. 62 S.Ct. 457; Wiborg v. U.S. 163 U.S. 632; Towbin v. U.S. 93 F.2d 868; Thurmond v. State (Okla.) 48 P.2d 845; State v. Irwin (Idaho) 60 L. R. A. 716; People v. Aikin (Mich.) 11 A. S. R. 512; Sunderland v. United States, 19 F.2d 202; State v. Vines, 49 Wyo. 212. In the following cases this court reduced verdicts finding the defendant guilty of murder in the second degree to manslaughter; State v. Sorrentino, 31 Wyo. 129; State v. Flory, 40 Wyo. 184; Espy & Chapman v. State, 54 Wyo. 291. Defendant did not obtain the fair trial guaranteed him by the Constitution and laws of this state.

For the defendant in error, there was a brief by Ewing T. Kerr, Attorney General; H. I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne, and Vincent Mulvaney of Casper, and oral argument by Mr. Mulvaney.

The first assignment of error is that the verdict is not sustained by sufficient evidence and is contrary to law. In addition to defendant's testimony, no less than six witnesses testified to specific acts of willful misconduct of defendant towards his wife. The evidence shows that defendant committed the offense using a deadly weapon in a manner that would probably result in the taking of life. Under these conditions, malice may be either implied or gathered from the circumstances of the case. 29 C. J. 1099, 1101; 114 A. L. R 974; 42 A. L. R. 1119; Underhill's Criminal Evidence, 4th Ed. pp. 1089, 1090, 1091, 1093, 1094, 1096, 1101, 1102, 1103 and 1106. Defendant admits that he shot and killed his wife, his defense being that the gun was accidentally discharged. The views of this court expressed in Markoff v. State, 75 P.2d 773, 778 appear to be inapplicable. It is next complained that the trial court erred in failing to instruct the jury upon the issue of accidental killing and in refusing to give instructions requested by the defendant, and in giving certain instructions to the jury. Instruction No. 14 was specified. No exception was taken to this instruction. Espy v. State, 54 Wyo. 291 (5). It is complained that "accidental killing" was not defined by an instruction. The jury was instructed by Instruction No. 14 that it must be convinced beyond all reasonable doubt that defendant fired the shot intentionally, and with the purpose of killing decedent, before it could find him guilty of either murder in the first or second degree, and also that the shot causing death was not fired accidentally. State v. Mathewson (Iowa) 103 N.W. 137, cited by defendant, is not applicable, and the same may be said of the case of State v. Cross cited by plaintiff in error. State v. Hartzell, 12 N.W. 557 was reversed because the instructions were contradictory and too voluminous, and in State v. Lee (Iowa) 60 N.W. 110, the court did not instruct on the question of accident at all. The facts in State v. Budge, 137 A. 244 are entirely foreign to the subject matter and the law in the Eagan case. Appellant's brief quotes at length from Gardner v. State, 27 Wyo. 316. In that case the prosecution relied wholly on circumstantial evidence and it is not in point here. The same may be said of the case of State v. Miller also cited. Instruction No. 14 directed the jury's attention to the definition of accident. We are unable to agree with the contention that Instruction No. 14 authorized a conviction without proof of malice and excluded consideration of accidental killing so far as involuntary manslaughter was concerned. Instructions numbered 5, 7, 8, 9, 10, 11, 12 and 13 made it mandatory to find the defendant guilty of premeditated malice before there could be a conviction of first or second degree murder, and gave the essential elements necessary to be proven before the jury could convict of involuntary manslaughter. It would be impossible to embody all of the law in one instruction. The cited case of State v. Radon, 45 Wyo. 383 is inapplicable to instructions given in this case. No exception was taken to Instruction No. 14. An examination of Instruction No. 15 will show that the court did not assume the truth of the evidence as to difficulties that had occurred between plaintiff and his wife as contended by appellant. The cited cases of Gustavenson v. State, 10 Wyo. 300; Meldrum v. State, 23 Wyo. 12-45 and Clay v. State, 15 Wyo. 42-65 are inapplicable as a basis for criticism of Instruction No. 15 in the Eagan case. Appellant cites no authority showing that Instruction No. 15 is an incorrect statement of the law. Underhill's Criminal Evidence, 4th Ed. pp. 1103-4. Instruction No. 12 conforms with the views expressed in State v. McComb, 33 Wyo. 347. It is contended that Exhibits numbered 1, 2 and 4, relating to photographs, should not have been received in evidence. State v. Lantzer, 55 Wyo. 230, 245 does not support this contention. See also Underhill's Criminal Evidence, 4th Ed. pp. 157-9, 161; Wharton's Criminal Evidence, Vol. 2, pp. 1282, 1320, 1321. It is contended that Exhibit 4 was not a true representation of the course taken by the bullet. This is in direct conflict with the testimony of state's witness, Dr. Henderson (page 63 Record). Exception is taken to the testimony of Vincent Crater, which was material on the question of the probability of defendant's claim that death was the result of an accident. Error is charged in denying defendant's motion to strike the testimony of witnesses, Morrissey, Walker, Sack, Garland and Eastman. Their evidence was admissible. Underhill's Criminal Evidence, 4th Ed. pp. 1103-06; Warren on Homicide, Vol. 1, pp. 264, 268-9; Warren on Homicide, Vol. 2, pp. 186, 200. The testimony of witness Allen was clearly admissible, as was also that of Emma Hedberg. State v. Bemis, 34 Wyo. 218, 231-239. The exclusion of photographs with notations in handwriting of deceased was not erroneous, all being cumulative or repetitious. Misconduct of the prosecuting attorney is charged. As no exceptions were taken to the argument of the prosecutor, the point is without merit. Espy v. State, 54 Wyo. 291 (5); State v. Costin, 46 Wyo. 463. The facts in the case of State v. Wilson, 32 Wyo. 37 are inapplicable. The facts in the case of State v. Cyty (Nev.) 256 P. 793 are at variance with what took place in the Eagan case, and this is also true of the case of Smith v. Beard, 56 Wyo. 375. A number of Federal cases cited by appellant have no similarity to the Eagan case, and the same may be said of the case of State v. Irwin, 60 L. R. A. 716 and People v. Aikin, 66 Mich. 460. An examination of the case of State v. Vines, 49 Wyo. 212, 241 will show that it does not...

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