Ivey v. State

• Decision Date: 01 February 1916
• Docket Number: 834
• Parties: IVEY v. STATE
• Court: Wyoming Supreme Court

154 P. 589

24 Wyo. 1

IVEY v. STATE

No. 834

Supreme Court of Wyoming

February 1, 1916

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

Charles Ivey was prosecuted upon a charge of assault and battery with intent to commit murder in the second degree and convicted of assault and battery with intent to commit manslaughter and he brings error.

The material facts are stated in the opinion.

Reversed and Remanded.

Charles E. Blydenburgh, for plaintiff in error.

The juror M. A. Skinner in his voir dire stated falsely that he had not expressed an opinion. It was discovered after verdict that he had expressed bias and prejudice against defendant. This was a sufficient ground for a new trial. (12 Cyc. 716 and cases under note 14.) The verdict is contrary to and not sustained by the evidence. The charge required proof of a specific intent to kill. An assault that results in manslaughter could not be malicious under the statutes. (People v. Lilley, 5 N.W. 424; Moore v. People (Ill.) 35 N.E. 166; State v. Stout (O.) 30 N.E 437.) The distinction between manslaughter and murder is clearly stated by the authorities. (State v. Norris, (N C.) 1 Am. Dec. 564; Gustaveson v. State, 10 Wyo. 300; Downey v. Duff, (Ark.) 152 S.W. 1010; Hobbs v. State, (Tex.) 151 S.W. 309.) There is no such crime as assault and battery with intent to commit manslaughter. (State v. Connelly, (Mo.) 164 S.W. 193.) Instruction No. 2 was erroneous and misleading under the proofs in this case, particularly in its definition of malice and implied malice and the same is true of instructions numbered 3 and 4. A specific intent to kill must include malice. (12 Cyc. 150; Nilan v. People, 60 P. 485; 12 Cyc. 150; Anderson Law Dict. 643; Wimberly v. State, (Ga.) 77 S.E. 879.) There can be no presumption of intent to kill from the act done when no one is actually killed. (12 Cyc. 152-156.) Instructions numbered 5 and 6 are erroneous under the proofs as there is no legal presumption of intention, which was not produced. (Gilbert v. State, (Ga.) 6 S.E. 652; Patterson v. State, (Ga.) 11 S.E. 621; State v. Hickman, (Mo.) 8 S.W. 253.) Death not resulting from the assault, the intent of the defendant is a question of fact for the jury. (Chrisman v. State, (Ark.) 15 S.W. 890; Davis v. State, 173 S.W. 829; Gallery v. State, (Ga.) 17 S.E. 890; Lanier v. State, (Ga.) 32 S.E. 336; State v. Williams, (Wash.) 78 P. 781; People v. Mize, (Cal.) 22 P. 81; State v. Dolan, 50 P. 472 (Wash.); State v. Kelly, (Vt.) 52 A. 435; Simpson v. State, (Ala.) 31 Am. Rep. 1; Ponton v. State, 34 S.W. 950; Johnson v. State, 8 Wyo. 494; Bryant v. State, 7 Wyo. 311; People v. Flack, 11 L. R. A. 807; 12 Cyc. 152, 153.) Instruction No. 9 in regard to self defense is erroneous, not containing all of the essential elements. (Crawford v. State, 70 S.W. 548; Ford v. State, 30 So. 27.) Erroneous instructions are not corrected by cured instructions. (Nilan v. People, (Colo.) 60 P. 485; Palmer v. State, 9 Wyo. 40; Williams v. State, (Tex.) 7 S.W. 666; State v. Singleton, (Kan.) 74 P. 243.) The court erred in not instructing the jury as to the included minor offenses, especially as to aggravated assault and battery, in view of the facts shown by the evidence. (Davis v. State, (Ark.) 82 S.W. 167; Low v. State, (Tex.) 20 S.W. 366; Canister v. State, 70 S.W. 24; Dolan v. State, (Neb.) 62 N.W. 1090; State v. Cody, (Ore.) 23 P. 891; People v. Catyon, (Cal.) 57 P. 1071; State v. Thompson, (Ia.) 103 N.W. 377; State v. Franklin, (Kan.) 77 P. 588.) There was no foundation for the admission of the evidence of the witnesses Yazel and Conger taken at the preliminary examination. The showing required for the admission of such evidence must be conclusive. A preliminary examination as conducted in this State is not really an inquiry as to the same matters and not like the testimony taken at a formal trial before a jury. The distinction is clearly stated in Kline v. State, 61 Am. St. Rep. 850. The inquiry in a preliminary examination is merely as to whether a crime has been committed, or probable cause to believe the defendant guilty of a crime. The justice not being learned in the law, his decisions as to the admission of evidence or rights of cross-examination are not always correct and defendant is frequently deprived of his full right of cross-examination. In our judgment an ex parte affidavit cannot be used to establish a sufficient foundation for the admission of former testimony. The cases of Young v. People, 130 P. 1018, and People v. Ballard, 81 P. 1040, are not based upon a constitutional provision such as we have in Wyoming. The Utah decisions are based upon a statute similar to California. (People v. Gardiner, 32 P. 880.) Wyoming has a statute providing for the taking of depositions in criminal cases. (Secs. 6215 and 6220, Wyo. Comp. Laws, 1910.) The general rule as to required proof of absence is stated in Baldwin v. St. Louis K. & N. Ry. Co., 25 N.W. 918, and in Reynolds v. Fitzpatrick, 72 P. 510 (Mont.). (See also 16 Cyc. 1098; Motes v. U. S. S.Ct. 44 L.Ed. 1150.) There is no case holding that the absence or death of a witness may be proved by ex parte affidavit. A California case in which it was attempted was reversed on that ground. (People v. Plyer, 58 P. 904.) An affidavit deprives defendant of the right to cross-examine on the question of absence; a cross-examination might show want of diligence.

D. A. Preston, Attorney General, for defendant in error.

Whether a juror had expressed an opinion before the trial showing bias and prejudice, which fact he denied in his voir dire, is a question of fact for the court. Its decision, unless contrary to the weight of the evidence, will not be disturbed on appeal. (Bliss v. State, 117 Wis. 596.) The question was presented to the trial court on affidavits and counter affidavits, and the court overruled the motion for a new trial. The point is without merit. (State v Brooks, 202 Missouri, 106; Holloway v. State, 53 Ind. 554; Spies v. People, 122 Ill. 264; Hughes v. People, 116 Ill. 330; State v. Cook, 84 Mo. 40; Thompson on Trial, Vol. 1, Sec. 116; Black v. Territory, 3 Wyo. 313; State v. Gonse, 87 Mo. 627; State v. May, 172 Mo. 630; State v. Mickle, 25 Utah 179; State v. Peterson, 38 Kan. 204; State v. McDaniel, 39 Ore. 161; State v. Anderson, 14 Mont. 541; Harris v. State, 40 Tex. Cr. 8; Ellis v. State, 92 Tenn. 85; Hinckle v. State, 94 Ga. 595; Grottkau v. State, 70 Wis. 462; Carthaus v. State, 78 Wis. 560.) An examination of the evidence will be sufficient to show that the verdict is supported thereby. (Horn v. State, 12 Wyo. 120.) This court will not disturb the verdict even though the evidence is conflicting. (Joseph v. State, 47 Ind. 255; Turner v. State, 36 S.W. 87; Wright v. State, 144 Ind. 210.) It is contended by defendant that there is no specific offense defined by our law, as assault and battery with intent to commit manslaughter. We believe the contention to be unsupported by the authorities. Sec. 5795, Wyo. Comp. Stats. 1910, was adopted from Indiana. (See Section 9, Volume 2, Gavin and Hord, 1852 Indiana Statutes, 438; Section 1892, Volume 1, Burns' Annotated 1901 Statutes of Indiana.) The Supreme Court of Indiana has held that under an indictment for an assault and battery with an intent to commit murder in the second degree there may be a conviction of assault and battery with intent to commit manslaughter. (State v. Throckmorton, 53 Ind. 354). A conviction may be had on any inferior degree of the offense charged. (Jarrell v. State, 58 Ind. 293.) Florida has a similar statute (Section 2403, R. S. Florida), which has received a like construction. (Williams v. State, 28, Fla. 90, 26 So. 184.) The case of State v. Throckmorton, supra, is cited with approval in Brantley v. State, 9 Wyo. 102. (See also Hollibaugh and Bunten v. Hehn, 13 Wyo. 269; State v. White, 45 Ia. 325.) Instructions numbered two, three and four are not prejudicial to defendant. The court did not instruct the jury that the law presumed malice or intent, but that they could find malice and intent from the facts proved. The case of Nilan v. People, 60 P. 485 (Colo.), cited by defendant, is distinguishable from the case at bar. The court left the question of intent to be found by the jury from the evidence. Instruction No. 4 is supported by State v. Connor, 13 N.W. 327 (Ia.) Instructions are not to be judged by disconnected portions thereof, but as an entirety, and if when thus considered are not found prejudical to defendant are withheld. (Newport v State, 140 Ind. 299.) Instructions numbered 5 and 6 are within the law as shown by the authorities cited in defendant's brief. Instruction No. 6, to which attention is especially directed, is supported by the Indiana case of Newport v. State, supra. Instructions numbered 9 and 11, in regard to self-defense, of which defendant complains, were not prejudical to defendant. Instruction No. 27 directed the jury to consider all of the instructions together and it is clear that instructions numbered 24, 25, 26 cure any omission that may have occurred in instructions numbered 9 and 11 and when the instructions are considered as a whole they clearly define the law of self-defense. Defendant did not request the court to instruct the jury as to the included minor offenses, especially as to aggravated assault and battery, and therefore cannot complain of the omission. (Brantley v. State, 9 Wyo. 102.) It was shown by affidavit of the prosecutor that the State made a diligent effort to procure the attendance of absent witnesses who had testified at the preliminary hearing and the court held the foundation sufficiently laid for the admission of evidence given at said hearing by said absent witnesses. The trial court having held the showing to be...