Jenkins v. State
| Decision Date | 29 July 1913 |
| Docket Number | 738 |
| Parties | JENKINS v. STATE |
| Court | Wyoming Supreme Court |
Rehearing Denied October 27, 1913, Reported at: 22 Wyo. 34 at 78.
ERROR to the District Court, Laramie County; HON. CARROLL H PARMELEE, Judge.
J Warren Jenkins was convicted of murder in the first degree upon an information charging that on the 14th day of April A. D. 1912, at the County of Laramie, in the State of Wyoming, he did feloniously, purposely and with premeditated malice, kill and murder one Jessie Jenkins. The deceased was his wife. A motion for new trial was overruled and the defendant brought error.
Affirmed.
William B. Ross and Ray E. Lee, for plaintiff in error.
It was error to refuse to permit the defense on cross-examination of Dr. Beard, the coroner, to inquire whether upon reaching the scene of the homicide, he asked the defendant where he had been that afternoon. The question was objected to without stating any ground, and for that reason alone the objection should have been overruled. (Bundy v. Hyde, 50 N.H. 116; Sigafus v. Porter, 84 F. 430; Rush v. French, 25 P. 816). It was also error not to permit the defendant to inquire of the coroner as to previous statements made by him with reference to what he had discovered at the scene of the homicide and what the sheriff had said to him there. The witness had been questioned minutely on direct examination as to the conditions at the place of the homicide, and as to his examination of various objects. The questions asked were proper on cross-examination to bring out conflicting statements discrediting the former testimony of the witness and for the purpose of testing his memory of the facts and circumstances as he had previously related them. (2 Wigmore on Ev. sec. 1037 and cases cited; 2 Elliott on Ev. sec. 974 and notes). The question propounded to the witness Stevens by the prosecution whether he could tell the location of the body from which the blood stains on the ceiling came, having been objected to on the ground that it called for a conclusion, should have been excluded. No ground or reason was shown why this witness should be permitted to express his opinion in the matter. The blood stains remained upon the ceiling, and the jury should have been left to form its own conclusion as to the position of the body from which they came. (3 Wigmore on Ev. sec. 918; 1 Elliott on Ev. secs. 671-674; Shafter v. Pillar, 63 P. 302; State v. Coella, 36 P. 474). Opinion evidence is inadmissible when the facts can be given to the jury from which a particular inference can be drawn, which is the one to be determined, and concerning which persons of average ordinary intelligence are capable and competent of determining for themselves. For the same reason it was also error to permit the witness to answer the question whether or not the blood stains upon the ceiling struck it in such a position that they must have gone perpendicularly from the body that produced the spattered blood. The refusal of the defendant's motion to strike out the question and the answer, expressing an opinion by the sheriff that no person had entered the house through the cellar was erroneous. It was an easy matter for the witness to describe the condition of the cellar windows so as to allow the jury to draw its own conclusion therefrom. It was not a matter upon which the opinions of witnesses were admissible.
Leading questions when addressed to one's own witness are as a rule improper and an objection thereto should be sustained. (2 Elliott on Ev. sec. 834). Where Mrs. Jenkins obtained the shares of stock which she owned at the time of the homicide was entirely immaterial. A witness was permitted to go into a detailed explanation of the matter which was wholly irrelevant to the issues. It was so obviously immaterial that it should have been rejected, even in the absence of objection. The question was whether the defendant murdered the deceased. The question of the gift of certain property to the deceased by some third party several years prior to the murder was clearly immaterial and its admission improper and erroneous. It was probably proper to show how much and what kind of property the deceased had at the time of her death for the purpose of establishing a motive for the homicide. The question objected to that was propounded to the witness Holland by the prosecution with reference to the possibility of the ashes in the stove to have been in the shape in which they were found if anything had been put in the stove after the articles had been burned which resulted in the ashes was improper and the objection should have been sustained. The question was leading and called for a conclusion or opinion of the witness with reference to a matter not in issue. (1 Wigmore on Ev. sec. 769; 2 Elliott on Ev. secs. 834, 836). The witness, Norma K. Beard, should have been permitted to answer the question propounded by the defendant's counsel as to whether defendant's manner when he called at her house on the evening of the homicide inquiring for her husband who was a physician and the coroner, was such 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 v. 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 that can be proved only by showing what other persons observed as to his actions. The theory of the prosecution was that the defendant had married the deceased for her money, and that he was continually using his influence over her to get her property into his possession. It was permissible for the defense to rebut this theory by showing that the defendant treated his wife with great consideration, and that he gave her his own money to use in maintaining their home, thus allowing her to save her own money. Evidence to that effect was improperly excluded. It having been intimated by the sheriff during his examination as a witness for the prosecution that someone had broken into the Jenkins house since the homicide, in the interest of the defendant, it was competent for the defense to show the circumstances under which the entering referred to was accomplished to show that nothing improper or unfair had been done in that respect, and it was error for the court to exclude the testimony offered for that purpose. (1 Wigmore on Ev. sec. 15; State v. Speyer, 14 L. R. A. (n. s.) 836).
Objections to several questions asked on the direct examination of defendant's witnesses were sustained on the ground that they were leading. We understand a leading question to be one which suggests the desired answer, and submit that such an objection was in some instances sustained when the question was not leading within that definition. (Lott v. King, 79 Tex. 292, 59 S.W. 231). It is permissible to ask the opinion of a witness whether a person whose conduct is in question appeared to be anxious. (Wigmore on Ev. sec. 1794; Elliott on Ev. sec. 676; Horn v. State, 12 Wyo. 80). The testimony of the witness O'Leary, who refreshed his recollection from notes of a previous examination of the defendant made by the stenographer, but when the defendant was not under oath, was improperly admitted. The testimony was not proper rebuttal. The witness did not testify from memoranda made by himself. The original notes were not produced, nor their absence accounted for. The person who took and transcribed the notes was not offered as a witness, nor was his absence accounted for. We believe the rule to be that a transcript of shorthand notes made by a third person is incompetent either as evidence or as a writing from which a witness can refresh his memory, unless the original notes are accounted for, and when they are accounted for the witness can only use the transcript for the purpose of refreshing his memory, but he will not be allowed to read the whole transcript in evidence. (State v. Maloy, 44 Ia. 104; Shove v. Wiley, 18 Pick. 558; State v. Legg, 53 S.E. 545; Amor v. Stoeckele, 76 Minn. 180; Bank v. Bigelow, 33 So. 704).
The reading of extracts from the published report of another criminal case by the prosecuting attorney in his argument constituted prejudicial misconduct. (State v. Jones, 55 S.W. 80; State v. Fitzgerald, 32 S.W. 1113; Ins. Co. v. Allen, 11 Mich. 501; People v Anderson, 44 Cal. 65; Ashworth v. Kittridge, 59 Am. Dec. 178; Tuller v. Talbot, 23 Ill. 357). The aggrieved party is entitled to a new trial upon showing the disqualification of a juror who has misrepresented the facts as to his qualification and has been accepted upon that misrepresentation without knowledge of the fact that the juror was not qualified to sit in the case. In such a case a new trial should not be denied unless the prosecution shows beyond a reasonable doubt that the defendant has received no injury by reason of such misconduct of the juror. . The misconduct alleged in this case as against two of the jurors is clearly shown by affidavits of witnesses on behalf of the defendant which are uncontradicted except by the affidavits of the jurors in question. When, in a criminal case, the jury is permitted to view the place where the crime was committed, the sheriff is authorized only to accompany the jury to the place, but after they have arrived there it is required that the jury shall be shown the place by some disinterested person appointed by the court for that purpose. (C. S. 1910, Sec. 6238). The objection that some other person than the...
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Jenkins v. State
...Wyo. 34 JENKINS v. STATE No. 738Supreme Court of WyomingOctober 27, 1913 22 Wyo. 34 at 78. Original Opinion of July 29, 1913, Reported at: 22 Wyo. 34. Rehearing William B. Ross and Ray E. Lee, for plaintiff in error. On petition for rehearing the following authorities were cited with refere......