Harris v. State

• Citation: 34 Wyo. 175,242 P. 411
• Decision Date: 12 January 1926
• Docket Number: 1266
• Parties: HARRIS ET AL v. STATE [*]
• Court: United States State Supreme Court of Wyoming

242 P. 411

34 Wyo. 175

HARRIS ET AL v. STATE ^[*]

No. 1266

Supreme Court of Wyoming

January 12, 1926

ERROR to District Court, Sweetwater County; VOLNEY J. TIDBALL Judge.

Evan Harris and John McClellan were convicted of murder, and they bring error. Heard on motion to dismiss writ of error as to defendant last named who escaped from prison after appellate proceedings had been commenced. Heard on merits as to defendant first named.

Affirmed.

Rush L DeNise and N. R. Greenfield for plaintiffs in error.

Three grounds of error are urged for reversal;

1. Failure of the evidence to sustain the charge.

2. Erroneous instructions.

3. Misconduct of the prosecutor.

It is the constitutional right of an accused person to be informed of the nature of the accusation; Const. of U. S. Art. V State Constitution, Bill of Rights, Section 10. A charge of first degree murder must allege commission of the act purposely and with premeditated malice. The evidence fails to show intent and shows acts different in nature and character than what are charged in the action. The cause was submitted to the jury upon the theory that the homicide was committed without purpose or intent to cause death, but while accused was engaged in an attempt to commit a felony; this differs from the charge; in other words, the court's instructions were, that evidence of the perpetration or attempted perpetration of a felony at the time of the homicide stands in lieu of, and is the legal equivalent of, purpose and premeditated knowledge. A portion of this instruction was copied from State vs. Meyers, 99 Mo. 107; but the Missouri Statute provides that any murder committed in the perpetration, or attempted perpetration of certain designated crimes, shall be murder in the first degree; State vs. Hooper, 71 Mo. 425; State vs. Earnest, 70 Mo. 520; the Missouri Statute is taken from Pennsylvania. A general analysis of statutes of this kind is found in, I Wharton's Criminal Law, 11th Ed. Sec. 510. The offense charged in the information required proof of intent and deliberation. While under the instructions of the court no intent or deliberation was necessary to convict, hence the accused was not informed of the nature of the offense he was called upon to meet; Sec. 7464 C. S. was intended to remove redundant verbiage and especially what need not be proved; informations should be framed upon the facts; 3 Bish, New Cr. Proc. 588; question as to Sufficiency of the information arises from the Bill of Exceptions, and the error is in permitting a conviction on it; Cannon vs. State, 32 S.W. 128; Fouts vs. State, 8 Ohio St. 131; State vs. Phinney, 13 Idaho 307; Bechtelheimer vs. State, 54 Ind. 128; instructions should apply the law to the facts; 16 C. J. 2489; Gardiner vs. State, (Wyo.) 196 P. 750; 5769 C. S.; Instruction No. 1 repeated the statutory definition of murder in the first degree, and did not aid in deciding the issues. Instruction No. 2 was not applicable to offense charged. Instruction No. 3 was erroneous because not supported by the charge; Johnston vs. State, 19 Wash. 464, 53 P. 707; State vs. Morgan, 21 Wash. 355; Oerter vs. State, (Nebr.) 77 N.W. 367; 30 C. J. 604; McGinnis vs. State, 16 Wyo. 72; instructions 8, 9 and 10 are erroneous in that no definition of conspiracy is given; instruction number 11 is correct in principle, but without application to the charge; Moynihan vs. State, 70 Ind. 126; instruction number 12 is erroneous; State vs. Pressler, 16 Wyo. 214; instructions 19 and 20 are erroneous in calling attention to the manner in which defendants gave their testimony; 7507 C. S. There was misconduct on the part of the assistant prosecuting attorney, in emphasizing the fact that defendants made unsworn statements; Anderson vs. State, 27 Wyo. 345; they should have been protected by proper instructions; Leslie vs. State, 10 Wyo. 10; 16 C. J. 2446.

David J. Howell, Attorney General for defendant in error.

Section 7066 defines first degree murder; where the offense is committed in the perpetration of, or in an attempt to perpetrate a felony, information in the ordinary form is sufficient without reference to the felony; 30 C. J. 98, Sec. 286; State vs. McCormick, 27 Iowa 402, cited by plaintiff is not in point, moreover a later Iowa case State vs. Johnson, 34 N.W. 181 sustains the general rule. A few cases turn upon the use of the word, "murder". The word "kill" is used in the Wyoming statute; see State vs. Roselli, (Kans.) 198 P. 195; State vs. Farnum, (Ore.) 161 P. 417; Turner vs. State, (Okla.) 126 P. 452; exceptions taken to the instructions of the court are without merit; Gardner vs. State, (Calif.) 196 P. 756; it is complained that the assistant prosecutor emphasized the fact the defendants made unsworn statements instead of testifying under oath. The conversation complained of, could hardly be called prejudicial error; there is a distinction between making an unsworn statement and not testifying at all; Bragg vs. State, 84 S.E. 85; it is proper for the court to direct the attention of the jury to defendants right to make such statement as he may desire in his own defense; Rouse vs. State, 71 S.W. 671; conversations merely bringing out the fact that defendants were not sworn is not reversible error. Defendants had a fair trial and the judgment should be sustained.

RINER, District Judge. BLUME, and KIMBALL, JJ., concur.

OPINION

RINER, District Judge.

The plaintiffs in error were each convicted of the crime of murder in the first degree without capital punishment and were sentenced to life imprisonment in the penitentiary. This proceeding in error was instituted to secure a review of the cause. The overruling of the motion for a new trial is assigned as error.

Upon the trial in the District Court of Sweetwater county it appeared that on the evening of February 16th, 1923, at Rock Springs, Wyoming, one Frank Ferlic was shot and killed by two armed and masked men who had entered the meat market conducted by Ferlic, ordered the latter, his son and an employe to put up their hands, and, upon Ferlic's failure to obey immediately, begun shooting. Evidence was offered by the State tending to show that the plaintiffs in error, with one Ira Rushford, planned to rob the American Market, Ferlic's place of business; that Rushford and Harris were the men who entered the shop and that McClellan was to see when an expected sum or sums of money came in and to give warning of the approach of officers.

Sec. 7066, C. S. Wyo. 1920 provides:

"Murder in the First Degree. Whoever purposely and with premeditated malice or in the perpetration of, or to attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kills any human being, is guilty of murder in the first degree and shall suffer death, but the jury may qualify their verdict by adding thereto, 'without capital punishment' and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment, at hard labor, for life."

And Sec. 7464, C. S. Wyo. 1920 reads, as far as pertinent here:

"In any indictment for murder in the first degree * * * it shall not be necessary to set forth the manner in which, or the means by which the death was caused, but it shall be sufficient in an indictment for murder in the first degree to charge that the defendant did purposely and with premeditated malice kill and murder the deceased."

By Sec. 7478 the rule of pleading above given as to indictments is made applicable to informations.

The information in the case charged that the plaintiffs in error "did unlawfully, wilfully, feloniously, purposely and with premeditated malice kill and murder one Frank Ferlic." A verdict of guilty having been returned by the jury, judgment and sentence was imposed, as already recited.

Before passing to a discussion of the contentions made by plaintiffs in error, it will be necessary to notice another matter. When the cause was called for argument, the attorney general presented a motion to the Court asking for an order dismissing the proceeding in error as to John McClellan on the ground that since the proceeding had been instituted he had escaped from the Wyoming State Penitentiary and was no longer in custody to abide the sentence of the Court. This fact is certified to the Court by the affidavit of Frank A. Hadsell, Warden of the Penitentiary, in whose custody McClellan had principally been since the conviction and sentence aforesaid. By the Warden's sworn statement, dated September 26th, 1925, it appears that the prisoner escaped on July 24th, 1925, and since that time he has been a fugitive, his whereabouts unknown and incapable of ascertainment. There is no denial of the fact of his escape and absence from custody. No argument against the motion was sought to be presented either by brief or orally. In view of all the circumstances of the case and the current of decisions bearing upon the point involved, it is thought best that the motion to dismiss immediately be denied; and, while it is improbable that the fugitive will ever surrender himself into custody, it is ordered that the proceeding in error as to the said John McClellan stand dismissed unless he shall, before the first Monday in October, 1926, return to the custody of the proper officers of the law. See Smith v. United States, 94 U.S. 97, 24 L. ed. 32, 17 C. J. 195, and extended list of cases cited.

Taking up for consideration the contentions advanced by brief on behalf of plaintiff in error Harris, hereinafter designated as the defendant, the one upon which his principal reliance appears to be placed is that the evidence does not sustain the charge contained in the information, and that certain instructions...