Horn v. State

Citation73 P. 705,12 Wyo. 80
PartiesHORN v. STATE
Decision Date30 September 1903
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

Tom Horn was convicted of murder in the first degree and sentenced to death for the killing of one Willie Nickell. He prosecuted error. The facts are stated in the opinion.

Affirmed.

John W Lacey, Burke & Clark, and Matson & Kennedy, for plaintiff in error.

The only evidence rightly admitted, that tends in any way to establish the guilt of plaintiff in error of the crime charged, is the so-called confession. At the time of the alleged confession the plaintiff in error, while not staggering drunk and maudlin, was under the influence of liquor and unusually talkative, which was his condition when under such influence. Horn himself says that the confession was all a "josh;" that it was a contest in telling tall yarns. The theory advanced by Horn in the alleged confession was impossible and does not fit the facts. The character of the conversation, the absurdity of the statements when taken with the undoubted facts and circumstances surrounding the killing, shows them to have been made in joke and not seriously. Under no other condition than that the public mind was forced into a blaze of indignation, and was demanding a victim, would the tale told by Horn to Lafors been accepted as sufficient upon which to base a verdict of guilty.

The statements made in that conversation were not corroborated by the testimony concerning Horn's alleged statements in Denver, for there never was testimony so absolutely shown to have been perjured than that of the three witnesses to the alleged Denver statements.

The surgeons generally agreed that it was impossible for the wounds on the body of the deceased to have been caused by a thirty-caliber ball, and yet that is the caliber that was used in the gun with which Horn told Lafors the shooting was done; showing that Horn was not attempting to relate facts in his conversation with Lafors concerning the killing of the deceased. From where Horn said he was standing when the killing occurred, as he related it, it was impossible for the deceased to have been shot in the manner disclosed by the post mortem examination. Interpreting the confession so-called, as a seriously intended confession renders it in conflict with all the other evidence, while interpreting it as a "josh," it is in harmony with all the rest of the testimony.

There is not enough evidence in the case to sustain the verdict and in such case the verdict will be set aside. (Ketchum v. Davis, 3 Wyo., 164; Rainsford v. Massengale, 5 id., 9; Hood v. Smiley, id., 70; Hester v. Smith, id., 291; Jackson v. Mull, 6 id., 55; Bryant v. State, 7 id., 311.) Where the verdict of the jury is manifestly against the evidence, and the trial judge refuses to set the verdict aside, it is the duty of the appellate court to reverse the case and grant a new trial. (Helfrich v. Ry. Co. (Utah), 26 P. 295; Keaggy v. Hite, 12 Ill. 100; Brown v. Comm. (Ky.), 69 S. W., 1098; State v. Debolt (Kan.), 37 P. 992; Falk v. People, 42 Ill. 331; Dains v. State, 2 Humph., 442; People v. San Martin, 2 Cal., 485; People v. Acosta, 10 Cal. 196; People v. Ah Lay, id., 301; People v. Lewis, 36 Cal. 351; Randall v. People, 63 Ill. 202; State v. Wise (Ia.), 50 N. W., 59; State v. Pilkington (Ia.), 60 N. W., 502; Roberts v. State (Ga.), 40 S. E., 697; State v. Prendible (Mo.), 65 S. W., 559; Fann v. State (Ga.), 37 S. E., 378; Shay v. State, id., 884; Andrews v. State, 42 id., 476; Barnell v. State, 5 Tex. App., 113; Brown v. State, 32 Tex. 606; Turner v. State, 38 id., 166; Aycock v. State, 2 Tex. App., 381; Block v. State, 20 id., 175; Butts v. State, 52 Ind. 331; Long v. State, 56 Ind. 117; State v. Bird, 1 Mo., 585; State v. Packwood, 26 Mo. 340.)

The court erred in refusing to give the instruction that the confessions of a prisoner out of court are a doubtful species of evidence and should be acted on by the jury with great caution. (Hay v. Peterson, 6 Wyo., 432; Gay v. State, 2 Tex. App., 127; Walker v. State, id., 326; Cain v. State, 18 Tex. 387; Comm. v. Sanborn, 116 Mass. 61; People v. McArron, 79 N. W., 944; Marion v. State (Neb.), 20 N. W., 294; People v. McMahon, 15 N.Y. 384; State v. Gilcrease, 26 La. Ann., 622; Metzger v. State, 18 Fla. 481; State v. Fields, 7 Tenn., 140; McCabe v. Comm. (Pa.), 8 Atl., 45; U. S. v. Coons, 25 Fed. Cas., No. 14860; Haynes v. State, 27 So. 601; Greenleaf's Ev., Sec. 200; Harris' Crim. Law, 373; May's Crim. Law, 104; State v. Summons, 1 Ohio Dec., 416.)

The defendant sought to prove that there were other persons who had motive and opportunity to commit the crime charged against the defendant. The defendant was a stranger to the boy that was killed. Others in the neighborhood had not only a close acquaintance with him, but a bitter animosity against him, and it was sought to show this animosity, the threat to kill on both sides, as well as the opportunity with such motives of such persons to do the killing. Where the state depends on circumstantial evidence for conviction any testimony tending to show that some other person committed the crime is admissible. (Ogden v. State (Tex.), 58 S. W., 1018; People v. Mitchell, 34 P. 698; People v. Myers, 12 P. 719; Dubose v. State, 10 Tex. App., 230; Sidney v. Comm., 1 Ky. L. Rep., 120.) The testimony of the witness Barber on the former hearing, the witness himself being present at the trial, was not competent. Had he been a witness for the defense, and cross-examination had shown his testimony to differ from his former evidence, then such other testimony would have been competent in cross-examination, but to permit it to be so given in chief is permitting hearsay testimony and the cross-examination of one's own witness.

The finding of the cartridge permitted to be introduced in evidence had no tendency to connect the defendant with the crime, and the same should have been excluded. In a case of this kind, where the community have been excited over the crime, the merest trifles are liable to seem strong proof, and it was the duty of the court to prevent prejudice against the prisoner by excluding proof entirely without legal force. Under the circumstances of the finding the cartridge two weeks after the crime, on a public highway some distance from the scene of the murder, and the fact that many persons in the community had guns requiring such a cartridge, the finding of the particular cartridge in question had no possible relevancy or weight. Whenever the evidence of circumstances leaves it indifferent which of several hypotheses is true, it can never amount to proof, however great the probability in relation to one of them may be; and it can, therefore, scarcely fail to be the occasion of injustice if it is not in practice entirely disregarded. (Comm. v. Farrar, 10 Gray, 6; 1 Starkey Ev., 506; People v. Kennedy, 32 N.Y. 141; State v. Thomas (Mo.), 12 S. W., 643.)

The matters contained in the letters concerned in the conversation between Horn and Lafors have no relation to the crime here charged, and served only to create a prejudice against the prisoner. They should have been excluded.

It is always inadmissible to blacken the character of the defendant in any other way than proof of the direct crime and defendant's connection therewith. The rule excludes all general evidence of defendant's moral character, all reprehensible conduct of the defendant other than that involved in his participation in the crime on trial. And any proof of the participation of defendant in any other crime is clearly inadmissible. (Jordan v. Osgood, 109 Mass. 457; People v. Schweitzer, 23 Mich. 301; State v. Gottfreedson (Wash.), 64 P. 523; Raines v. State (Miss.), 33 So. 19; State v. Kirby (Kan.), 63 P. 752; People v. Williams, 59 P. 581; Hoberg v. State, 3 Minn., 262; State v. Crouse, 86 N. C., 617; Comm. v. Buzzell, 33 Mass. 156; Comm. v. Farrar, 76 id., 6; State v. Zimmerman, 42 P. 828; McAuley v. Harris, 9 S. W., 679; Platner v. Platner, 78 N.Y. 90; State v. Davis, 87 N. C., 514; Hildeburn v. Curran, 65 Pa. St., 59; Gallaher v. State, 17 Fla. 370; Clark v. Clark, 65 N. C., 655; People v. Ascher (Mich.), 86 N. W., 140; Allen v. U.S. 115 F. 3; People v. Quick, 25 N. W., 302; Drake v. Comm., 10 Mon., 225; State v. Staley, 14 Minn. 75; 3 Rice Cr. Ev., 419; Derby v. Gallup, 5 Minn., 85; Hicks v. Stone, 13 id., 398; 1 Greenleaf's Ev., Sec. 462; Harris' Cr. Law, 368; Wharton Cr. Ev., Sec. 484; People v. Lee Dick Lung, 62 P. 71; People v. Dye (Cal.), 16 P. 537.) Nor can it be contended that because the defendant on the witness stand attempted to state certain conversations with the witness Lafors, it became permissible for the prosecution, not only to deny the conversations as stated by the defendant, but to go further and state, not only the version of Lafors of what was said in reference to the matters testified about by the defendant, but what was said about a separate and distinct crime, though said in the same conversation. (Rouse v. Whited, 25 N.Y. 170; Prince v. Sano, 7 A. & E., 627; State v. Staley, 14 Minn. 105; McAuley v. Harris (Tex.), 9 S. W., 679; Platner v. Platner, 78 N.Y. 90; Garey v. Nicholson, 24 Wend., 350; Dorlon v. Douglas, 6 Barb., 451; The Queen's Case, 2 B. & B., 297; Sturge v. Buchanan, 10 A. & E., 598.) The prosecution could not, by going outside of proper cross-examination, lay the foundation to contradict the defendant when testifying as a witness.

The court erred in permitting the witnesses to the alleged confession to state their opinions as to whether the manner of defendant in making the confession was sincere. (Hodge v. State, 7 So., 593; Poe v. State, 6 id., 378; Lewis v. State, 11 id., 259; McAdory v State, 59 Ala. 92; ...

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    • United States
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    • July 29, 1913
    ...that he looked as though he did not know what he was doing. (3 Wigmore on Ev. sec. 1974 and notes; 1 Elliott on Ev. secs. 676-678; Horn v. State, 12 Wyo. 80; State Brown, 41 P. 1042). It is admissible to show whether or not a person is in earnest or his expressions of grief are genuine, and......
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