James v. State

• Decision Date: 14 April 1921
• Docket Number: 1028
• Citation: 27 Wyo. 378,196 P. 1045
• Parties: JAMES v. STATE
• Court: Wyoming Supreme Court

196 P. 1045

27 Wyo. 378

JAMES v. STATE

No. 1028

Supreme Court of Wyoming

April 14, 1921

ERROR to the District Court, Sweetwater County, HON. JOHN R ARNOLD, Judge.

Frank James was convicted of murder in the first degree, and he brings error. The material facts are stated in the opinion.

Judgment reversed and case remanded.

Brown &amp De Nise, and Mentzer & Wilcox, for Plaintiff in Error.

Defendant was convicted of murder in the first degree and sentenced to suffer death; he was deprived of his constitutional rights to a fair and impartial trial and the cause should be reversed. (Parker v. State, 24 Wyo. 500.) This rule was held to apply even though exceptions were not taken to all errors committed at the trial. There was insufficient time allowed counsel appointed to conduct the defense within which to prepare for the trial. The testimony showed that defendant had quarreled with the Newman woman who left defendant's house and had entered an adjoining house occupied by Lena Posey, who thereafter came to defendant's house and abused him. It all resulted in defendant going to the house occupied by the Posey woman and there a struggle ensued in which a gun was discharged, which resulted in killing the Posey woman. Defendant thereupon surrendered to the authorities. Counsel was appointed for defendant at the trial, whereupon it was found that he had been arraigned without the advice of counsel. Defendant should have been given a preliminary examination. The strange feature of the case was that defendant apparently of his own volition, filed a charge against himself with Jake McDonald, Justice of the Peace for killing his sister-in-law Mrs. William Posey, and certain findings were made thereon by the Justice, but this did not constitute a preliminary hearing, and such hearing should have been had before information was filed. (6134 Comp. Stats. 1910; 8 R. C. L. 66; Latimer v. State, 76 N.W. 207.) A preliminary hearing when required by law is jurisdictional. (Stewart v. People, 3 N.W. 863; O'Hara v. People, 3 N.W. 161; People v Evans, 40 N.W. 473; People v. Wright, 50 N.W. 792; 12 Cyc. P. P. 305.) This court has held that a preliminary hearing is necessary, in re Wright, 3 Wyo. 478; State v. Sureties Khrone, 4 Wyo. 347; State v. Bolter, 5 Wyo. 236; Ackerman v. State, 7 Wyo. 504. Of course the right may be waived by plea of not guilty (McGinnis v. State), supra, but in the present case defendant was compelled to plead without the assistance of counsel, hence there was no waiver of his rights. (6183-85 Comp. Stats. 1910.) One accused of crime waives all defects in the information by demurring or pleading not guilty. 6190 Comp. Stats. 1910, but 6184 Comp. Stats. gives the accused a reasonable time to prepare exceptions to the information and this was denied defendant in the present case; it was error to compel him to plead without the advice of counsel and where counsel is appointed they should be accorded sufficient time to prepare the defense. It is a constitutional right to defend in person and by counsel. Defendant was entitled to consultations with counsel. (State v. Davis, 130 P. 962.) To deny defendant the benefit of counsel and sufficient time to prepare his defense is reversable error. (Baker v. State, 130 P. 820; State v. Moore, 60 P. 748.) Defendant's motion for a continuance should have been granted in order to give his counsel reasonable time to investigate the case and prepare for trial, and counsel so appointed should not be expected to drop all other business in order to give attention to the case for which appointed. (State v. Collins, 81 Am. St. Rep. 152.) Upon the whole record, the defendant was prejudiced in the denial of his motion for a continuance as is shown by the affidavits filed in support thereof. (6 R. C. L. 548; 9 Cyc. 168.) The charge was for a capital offense and every reasonable consideration should be given to a defendant under the circumstances. The case of State v. Collins, supra, is so similar upon the facts that we quote from it at length. Instruction No. 9 given by the court was prejudicial to defendant under the evidence. It in substance charged the jury that where a person, in an attempt to kill one person, accidently kills another, the law transfers the intent of the act to such person so killed, and a homicide thus committed will be of the grade and degree that it would have been had the intent of the assailant been accomplished. The evidence shows that defendant did not and could not fire a shot intending to kill Lizzie Newman since she was in a position where he could neither see her nor shoot her. The shooting was unintentional and accidental and did not constitute first degree murder. Instruction No. 1 given by the court was prejudicial; it is necessary to prove something more than that defendant had a criminal agency in the killing.

W. L. Walls, Attorney General, and Vincent Carter, Deputy Attorney General, for Defendant in Error.

Errors mentioned in the motion for new trial but not referred to in the brief of plaintiff in error are waived. (Boswold v. Bliler, 9 Wyo. 277; Reardon v. Horton, 16 Wyo. 363; Syndicate Imp. Co. v. Bradley, 6 Wyo. 171.) Preliminary hearings are for the benefit of the accused in order that he may know as promptly as possible, with what crime he has been accused; defendant did not demand a preliminary hearing; he understood the information and entered a plea of not guilty. The absence of a preliminary hearing was waived by his plea of not guilty. State v. Davis, as cited in support of defendant's contention that he was prejudiced in being deprived of counsel, is quite different on the fact from the case at bar, for the reason that the sheriff prevented counsel appointed from interviewing defendant. Baker v. State, supra, is a case where the person appointed to conduct the defense was not a practising attorney. State v. Moore was one wherein counsel appointed was mislead as to date of trial. Defendant must request the appointment of counsel. (Wharton, Crim. P. & P., 9 Ed. 558.) Right to counsel is not a mere privilege and unless counsel be requested, defendant cannot complain. (Barnes v. Com., 92 Va. 794; Schlinger v. People, 102 Ill. 241.) The denial of defendant's motion for a continuance was perhaps erroneous and from our conception we must ask the court to reverse and annul the judgment, set aside the verdict and order a new trial. Instruction No. 9 does not contain a correct definition of the law governing in cases where a fatal shot was fired wilfully and with malice for the purpose of killing another. There is no evidence showing an intent to kill Lizzie Newman. The case was prosecuted on the theory of intent to kill Lena Posey. We therefore concede that the point made in the brief of plaintiff in error as against the instruction and cause is meritorious, and that defendant was not given a fair trial in keeping with the guarantee that the constitution of the United States provides. The essentials of murder in the first degree are lacking.

KIMBALL, J. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

KIMBALL, J.

The plaintiff in error, a negro, to whom we shall hereinafter refer as defendant, was convicted by an unqualified verdict of the crime of murder in the first degree, and sentenced to suffer death.

The attorney-general, on behalf of the state, concedes error upon the point which controls our disposition of the case, but we have deemed it proper to give full consideration to the questions which are raised.

It is contended that the information was invalid, and the court without jurisdiction to hear the case on its merits, because no preliminary examination was had or waived. The question whether this was a case where an examination should have been held, and if so, whether, as a matter of fact, such examination was held or waived, should have been raised in the trial court by motion to quash or plea in abatement, and not having been so raised, the right to have such question passed upon was waived by the plea of not guilty. (Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044; McGinnis v. State, 16 Wyo. 72, 91 P. 936.) However, it is argued that the plea of not guilty should not be considered, in this case, to have waived any right, for the reasons supporting the next allegation of error, which is:

That counsel for defendant should have been appointed, and additional time given them to examine the information and investigate the case, before taking defendant's plea. The defendant was not represented by counsel at the time of his arraignment, when he plead not guilty, but there is nothing in the record to show that it appeared then that he was unable to employ counsel, or that he requested that the court assign him counsel. (See § 7480, Wyo. Comp. Stat. 1920.) The right, or privilege, to defend by counsel, as guaranteed by Sec. 10 of Art. 1 of our constitution, may be waived or renounced, and it is not denied by a mere failure to assign counsel. There is no invasion of it disclosed, unless it appear by the record that a request for assignment of counsel was denied by the court. (State v. Raney, 63 N.J.L. 363, 43 A. 677; State v. Yoes, 67 W.Va. 546, 68 S.E. 181, 140 A. S. R. 978; Barnes v. Com. 92 Va. 794, 23 S.E. 784; Korf v. Jasper Co., 132 Iowa 682, 108 N.W. 1031; State v. DeSerrant, 33 La. Ann. 979; 8 R. C. L. pp. 83, 84.)

We do not underestimate the importance to a defendant of the right to advice of counsel at the arraignment, which is an important step in the prosecution. (State v. Moore, 61 Kan. 732, 60 P. 748; Batchelor v. State, 189 Ind 69; 125 N.E. 773.) The importance of the right is recognized by the statute cited above, which provides that counsel shall be assigned before arraignment in a proper case. This defendant did not at that...