Gustavenson v. State

Decision Date14 May 1902
Citation68 P. 1006,10 Wyo. 300
PartiesGUSTAVENSON v. STATE
CourtWyoming Supreme Court

Error to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Alfred Gustavenson, having been convicted of murder in the second degree, prosecuted error. The facts are stated in the briefs and opinion.

Judgment affirmed.

Groesbeck & Carpenter, for plaintiff in error.

The verification to the information cannot be dispensed with, and without the seal of the officer the effect is the same as no verification, and the defect is jurisdictional. (R. S., Secs 5268, 4295, 3303, 3429; Starr v. U.S. 153 U.S. 614; Rosenstein v. State, 9 Ind. App., 290; Robertson v. State, 25 Tex. App., 529; Mican v. State (Tex.), 19 S. W., 762; Gates v. People, 11 Colo. 292; Reed v. Cates, 11 id., 527; Miller v State, 122 Ind. 356.)

The information is not sufficient to constitute an offense. The conclusion of the information would have been sufficient had it alleged the date of the homicide, and the opening clause would have been sufficient under the statute, had it omitted the words "on or about." But it is clear that the prosecuting officer did not rely upon the statutory short form. (R. S., Sec. 5303.)

The information is defective in this: (1) It charges an assault upon Louis Larsen (not Larson) with a pistol, and then charges the killing of one Louis Larson (not Larsen); (2) it does not charge that the pistol was shot off or discharged to, at, towards or against either Louis Larsen or Louis Larson. (3) If the information charges anything, it alleges that Larson was struck with leaden balls from a revolver loaded with powder and ball (which means one ball), and was thereby mortally wounded. The pistol, the assault and the discharge of the pistol are not connected with the striking or wounding. (4) There is no direct charge that the deceased was killed and murdered by the assault, but, on the contrary the information negatives that idea. (5) The information charges that the death of Larson (not Larsen) occurred "on or about" the 19th day of October, A. D. 1900, and does not allege that it occurred on a day certain.

(1) The names Larsen and Larson are not within the rule of idem sonans, and are materially variant in sound. (16 Ency. of Law (1st Ed.), 125.) (2) It must appear by the indictment (information) in what manner the deceased came to his death. Thus an indictment charging the killing by "firing a large sized Colt's revolving pistol, loaded with gun powder and leaden balls," without alleging that the balls were shot against and into the deceased, is palpably insufficient. (Gillett on Crim. Law., Sec. 514; Shepherd v. State, 54 Ind. 25.) (3) The charge that Larson was struck with leaden balls, whereby he was mortally wounded, and of which he afterwards died, is an absurdity. At any rate, the charge in the information to that effect is fatally variant from the proof. (4) The deceased must be killed and murdered by the assault and from the effects of it, and this is not charged. (5) In some jurisdictions it is sufficient to charge the time as on or about a day certain, although in others it is deemed to be insufficient. (10 Ency. Pl. & Pr., 516; 10 Ency. Pl. & Pr., 114-126-161.)

These defects in the information are believed to be fatal, and are not cured by Sections 5301 to 5303 of the Revised Statutes of Wyoming. The prosecution having elected to draw an information setting forth the manner and means of the death of the deceased, is bound by any fatal defect therein, or by any defect therein which is at variance with the proof. Furthermore, the information is so defective as to be void and was not cured by trial or verdict or by failure to take advantage of the defects by motion to quash or by demurrer. (Jewell v. Territory (Okla.), 43 P. 1075; Holt v. Territory (Okla.), 43 P. 1083; Schaeffer v. State, 22 Neb. 557.)

It is contended that if the defendant could have been convicted of any offense, he should have been found guilty of manslaughter.

The homicide was committed after dark and about nine o'clock p. m., when the deceased, defendant and five others were returning to their work on the grade from Laramie, Wyoming, and Larson was shot at a place about one and one-half miles from that city. The parties had gone to Laramie to attend a funeral, but defendant, being intoxicated, did not attend the funeral. There is absolutely no showing of any malice, grudge, hatred or ill will on the part of the defendant towards the deceased. All of the parties present at the homicide had been drinking heavily, and Oleson, one of the principal witnesses for the prosecution, was probably the drunkest of all, according to the evidence. Defendant, Oleson and Baxtrom were sitting on the front seat of the wagon and the others were in the rear of the wagon. Defendant and Oleson quarreled, defendant calling Oleson vile names. This altercation resulted in Oleson's striking defendant. These two men left the wagon, followed shortly by nearly all of the others, including the deceased. According to the statement of the witnesses for the prosecution, Baxtrom tried to hit or did hit Oleson with a board. The evidence is conflicting as to whether Oleson assaulted the defendant after they had left the wagon. At any rate, there was a scuffle between Oleson and Baxtrom, the latter being on top of the former. Larson, the deceased, attempted to separate Oleson and Baxtrom, and the latter called upon the defendant for aid. Defendant, who had been lying on the ground, arose and fired, wounding Larson. Nearly all of the others ran back to Laramie, leaving Baxtrom, Larson, the wounded man, defendant and one other. Baxtrom came into town with the wounded man in the wagon. Defendant was found some time after during the same night by the sheriff, who went to arrest him, lying in the road, undoubtedly overcome by drink and without sense or physical ability to escape or to move. Defendant asked the sheriff if he was arrested for being drunk.

Defendant testified on the trial that he was drunk and had been intoxicated during the day and did not know what he was doing. He claims that just previous to the shooting he was badly beaten by Oleson, and there is strong evidence going to show this. An attempt was made to contradict his testimony as to his injuries, but some of the witnesses for the prosecution show that his injuries were not received in a fight on the same day prior to the homicide, as is claimed by others who attempted to account for the appearance of blows upon his face. That defendant was a very drunken man, and that the whole party was intoxicated, cannot be controverted. There is no evidence to show that the defendant had any ill feeling toward Larson, the deceased, at the time or towards Oleson, except just previous to the shooting, and there is no evidence showing that the defendant became voluntarily drunk for the purpose of killing someone to satisfy a grudge. The parties were hard working men, and were associated together upon the same work on the railroad grade. The whole affair was simply a drunken row. Considered in the light of our law, a conviction for manslaughter, and no higher crime, may have been warranted by the evidence. If the defendant knew what he was doing, as the prosecution claims, he was lying on the ground and responded to the call of Baxtrom, who had aided him in the melee. In this view of the case there was a sudden and sharp quarrel, and the deceased was killed in the sudden heat of passion, evoked by the preceding encounter between him and Oleson while he was trying to protect his comrade, who had just before aided him. The theory of the defense was evidently that the defendant was so drunk that he did not know what he was doing. In either view of the case, the mind of the defendant was not in a condition to form a specific intent to take life, and he was not instigated by malice at the time, acting as he did on the impulse of the moment and upon a sudden heat of passion. It is difficult, even impossible, to glean from the evidence that the killing was done "purposely and maliciously," as is required to support a conviction for murder in the second degree.

On a prosecution for murder, wherever a circumstance leading up to the killing appears from the evidence, an instruction that, if deceased was purposely killed by the use of a deadly weapon, "malice is to be presumed," unless this absence is shown, is erroneous, as raising a presumption of malice from one fact alone in the case, when there are also other facts in evidence on which the jury's opinion as to the presence of malice should be based. (Trumble v. Territory, 3 Wyo., 280.) Malice is by no means conclusively implied by the use of a deadly weapon; and the better opinion is this, the fact of using a deadly weapon casts upon the defendant no onus of proof, but that if upon the whole evidence there is a reasonable doubt whether malice entered into the act, he must be acquitted of murder. (Gillett Crim. Law, Sec. 494; Clemm v. State, 31 Ind. 480; 2 Bish. Crim. Pro., Secs. 619-622.) The following portion of an instruction of the court given of its own motion was erroneous: "And where the fact of killing purposely by the use of a deadly weapon is proved, malice is to be presumed, unless it appears from all of the evidence in the case that the killing was without malice, or was justifiable or excusable." This instruction thrusts the onus upon the defendant, and is not the law. This portion of the instructions was excepted to, but was not preserved in the motion for a new trial. However, it had its weight with the jury, and should be considered on a review of the evidence.

The misconduct of the jury is the ground of complaint in the twelfth assignment of error. This ground is supported by the...

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