Espy v. State

• Decision Date: 11 July 1939
• Docket Number: 2079
• Parties: ESPY ET AL. v. STATE
• Court: Wyoming Supreme Court

92 P.2d 549

54 Wyo. 291

ESPY ET AL. v. STATE

No. 2079

Supreme Court of Wyoming

July 11, 1939

ERROR to District Court; Sheridan County; JAMES H. BURGESS, Judge.

Robert Espy and Mike Chapman were convicted of murder in the second degree, and they bring error.

For the plaintiffs in error there was a brief by E. E. Enterline of Casper, and H. Glenn Kinsley of Sheridan, and oral arguments by Messrs. Enterline and Kinsley.

The trial court erred in directing the County Attorney to take cognizance of the testimony of the witness, Lewis, and in directing the arrest of said witness in the presence of the jury, on a charge of gambling. Lewis was an important witness for defendants. 16 C. J. 835; State v. Hughes, 33 Kan. 23, 5 P. 381; State v. Hyde (Mo.) 136 S.W. 316. It is no offense in Wyoming to be a gambler nor is gambling defined as an offense under the laws of Wyoming. Sec. 32-522 R. S. 1931. It was error for the County Attorney to question a witness concerning a gambling charge filed against such witness. Rosencrance v. State (Wyo.) 239 P. 952; State v. Cyty (Nev.) 256 P. 793. The boots worn by Chapman on the night of the affray were erroneously received in evidence and moreover were sent to the jury room for examination. State v. Lindeman (N. D.) 254 N.W. 276; State v. Burke (Wash.) 215 P. 31; People v Stokes (Calif.) 37 P. 207; People v. Conkling (Cal.) 44 P. 314. Jurors are not permitted to investigate a case outside the courtroom. Vide Forehand v. State (Ark.) 11 S.W. 766; Wilson v. United States, 116 F. 484. The court erred in giving instruction numbered 15, an incomplete instruction on character. Gardner v. State, 27 Wyo. 316; State v. Johnson (Kan.) 50 P. 907; People v. Mitchell (Cal.) 62 P. 187; Sunderland v. U.S. 19 F.2d 202. The court erred in giving instruction numbered 17, which was unsupported by evidence. The court erred in giving instruction numbered 18, which was based on evidence highly improbable under the circumstances. James v. State (Wyo.) 196 P. 1045. Instruction numbered 19 was fundamentally wrong and should not have been given. It indicates that if the defendant Chapman did kick Bears, he was practically without any defense. In homicide cases where a fundamental error is made in giving instructions, a reversal will be had although no objection or exception was taken thereto. Underhill's Criminal Evidence, 3d Ed § 431; Parker v. State (Wyo.) 161 P. 552; State v. Morris (Wyo.) 286 P. 406; State v Miller (S. C.) 53 S.E. 426; State v. Pressler, 16 Wyo. 214. Instruction numbered 20 limits the right of self-defense to Espy and is not based on competent evidence proven at the trial. Instruction numbered 21 is also erroneous. Parker v. State (Wyo.) 161 P. 552; State v. Radon, 45 Wyo. 384, 19 P.2d 177. This court in two cases has reduced the verdict of second degree to that of manslaughter, where the evidence indicated in one of the cases that prejudicial error had been committed, depriving defendants of a fair trial. Sorrentino v. State (Wyo.) 224 P. 420; 30 C. J. 353; Miller v. State, 37 Ind. 432; Porter v. State (Okla.) 297 P. 305; Ivy v. State, 24 Wyo. 1. The court erred in refusing defendant's requested instructions lettered A, B, D, E, G, H, I, J, K and M, said instructions not having been covered by instructions given. The court erred in overruling objections to inflammatory and prejudicial remarks of the special prosecutor in his argument to the jury, particularly in calling the jury's attention to the absence of evidence as to the good character of Mike Chapman, one of the defendants. 46 C. J. 105; Underhill's Criminal Evidence, 3d Ed. 137; Mainard v. Beider (Ind.) 28 N.E. 196; State v. Cyty (Nev.) 256 P. 793; 2 R. C. L. 242; Lynch v. State (Texas) 193 S.W. 667. There was also misconduct on the part of the special prosecutor in his references to Chapman as a gambler and as to steel plates upon the heels of Chapman's boots. Wiborg v. U.S. 163 U.S. 632; Towbin v. U.S. 93 F.2d 861; Sunderland v. U.S. 19 F.2d 202. The proceedings had at the trial, the severity of the verdict, and the resulting judgment and sentence of the court should be considered in connection with the recantation of the testimony given by witness Ryan. Thompson v. State, 41 Wyo. 72. We believe that upon the record, defendants are entitled to a new trial.

For the defendant in error, there was a brief by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; and William C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Shea.

In view of the showing made by the record in this case, the only question that should deserve the attention of this court is whether defendants should be convicted of manslaughter instead of murder in the second degree, but we believe the verdict was legally proper. Counsel for plaintiffs in error urged that prejudicial error occurred in the arrest of the witness Lewis, after he had admitted that he was a gambler, citing People v. Mahach (Cal) 224 P. 131. An examination of the case will show that it is not in point on the facts. The same may be said of the quotation from 16 C. J. 835 and State v. Hughes (Kan.) 5 P. 381. People v. Hays (N. Y.) 35 N.E. 951 has been cited a great many times but not on the point here under consideration. State v. Hyde (Mo.) 136 S.W. 316 involved an entirely different question. The Rosencrance case, 33 Wyo. 360, cited by counsel related to the introduction of evidence of unrelated crimes and is not in point. In State v. Cyty (Nev.) 256 P. 793, cited by defendants, the point here under consideration was not involved. Counsel for defendants contend that the reception of boots in evidence, from which heels had been removed, was prejudicial error. We do not believe that it constituted error. Higgins v. Los Angeles Company, 115 P. 313; Taylor v. Commonwealth (Va.) 17 S.E. 812; State v. Lindenman (N. D.) 254 N.W. 276; State v. Burke (Wash.) 215 P. 31; 16 R. C. L. 299, 300. The affidavits of jurors cannot be received to impeach their verdict. Pullman Company v. Finley, 20 Wyo. 456. Defendants have not specifically pointed out wherein instructions numbered 15, 17, 18, 19, 20 and 21 were erroneous. We believe said instructions were properly given. State v. Johnson (Kan.) 50 P. 907; People v. Mitchell (Cal.) 62 P. 187; Edgington v. U.S. 164 U.S. 361; Sunderland v. U.S. 19 F.2d 202. We are unable to see how the question of character of either defendants could materially affect the minds of the jurors. Gardner v. State, 27 Wyo. 316. Appellants contend that instruction 18 was erroneous and cite James v. State, 27 Wyo. 378, but that case is inapplicable to the facts in the case at bar. Defendants contend that the special prosecutor was guilty of misconduct in his argument to the jury. We do not believe the contention is supported by the authorities. 2 R. C. L. 242; Underhill's Criminal Evidence (4th Ed.) p. 286. The case here differs from State v. Williams (Iowa) 97 N.W. 992. The leading case upon the subject appears to be State v. Ross, 8 Wyo. 351, but that case differs from the case at bar. Tobin v. United States, 93 F.2d 861. Defendants contend that the evidence was insufficient and cite Thompson v. State, 41 Wyo. 72. A mere casual reading of that case refutes such conclusion. It is urged by counsel for plaintiffs in error that it was sought at the trial to establish the existence of a conspiracy between them in connection with the homicide. We submit that the record does not sustain their contention. Underhill's Criminal Evidence (4th Ed.) 1141; People v. Jones (Cal.) 29 P.2d 902. As to error alleged to have been committed upon the trial of the case, once more we cite the case of Commonwealth v. Sabo, 83 Pa.Super. Ct. 166.

E. E. Enterline, Madge Enterline and H. Glenn Kinsley in reply.

The arrest of Lewis while attending court was unlawful. Section 89-3004, R. S. Gambling as defined by Section 32-522 is a misdemeanor. Courts are not authorized by Sec. 33-411 to order the arrest of a witness during a trial without a warrant. We cite the following authorities on the question of the misconduct of Watson v. State (Okla.) 124 P. 1101; 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; State v. Frazier, 116 So. 176; People v. Harris (Cal.) 251 P. 823; People v. Cahoon (Mich.) 50 N.E. 384; 46 L. R. A. 658; 3 American Jurisprudence 620; L. R. A. 1918D, pp. 4-115.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The defendants, Robert Espy and Mike Chapman, charged with murder in the first degree in killing William Bears, were found guilty of murder in the second degree, and bring the case here for review by proceeding in error.

The killing occurred on September 11, 1937, at the small town of Arvada, Sheridan County, where several hundred persons were present to enjoy games, dancing and a barbecue. There was dancing on two dance floors, one at the Community Hall, and the other a short distance away in the open air. Joe Geiger was "master of ceremonies" in charge of the entertainment. He had employed William Bears, the deceased who, during the afternoon, operated a sound amplifying device. The defendants are brothers-in-law and associated in the livestock business on a ranch a few miles from Arvada. Chapman was also owner of a gambling place at Sheridan. Espy arrived at Arvada about noon and Chapman about 8:30 in the evening of the day of the homicide. Chapman was accompanied by the witness Lewis who intended to spend the week-end at Chapman's ranch. The defendants and Lewis had been drinking during the afternoon and evening, but asserted that they were not drunk. Before this day Chapman had seen Bears several times, but they had never spoken to each other. ...