Jenkins v. State

• Decision Date: 27 October 1913
• Docket Number: 738
• Citation: 22 Wyo. 34,134 P. 260
• Parties: JENKINS v. STATE
• Court: Wyoming Supreme Court

134 P. 260

22 Wyo. 34

JENKINS v. STATE

No. 738

Supreme Court of Wyoming

October 27, 1913

22 Wyo. 34 at 78.

Original Opinion of July 29, 1913, Reported at: 22 Wyo. 34.

Rehearing denied.

William B. Ross and Ray E. Lee, for plaintiff in error.

On petition for rehearing the following authorities were cited with reference to the alleged misconduct of the prosecuting attorney in reading extracts from law books during the course of his argument: Heller v. Pulitzer Pub. Co., 153 Mo. 205; Hager v. State, 133 P. 263; State v Montgomery, 21 Ann. Cas. 331; R. R. Co. v Payne, 133 Ky. 539; State v. Fournier, 108 Minn. 402; People v. Welles, 34 P. 1078. It was also contended as follows: The trial court erroneously refused to permit a record to be kept by the official stenographer of the statements made to the jury while viewing the premises the judge refused to go with the jury; and the record fails to show that the defendant was present at the view. A record of the presence of the defendant at the view is necessary. (Lewis v. U.S. 36 L.Ed. 1007). The defendant has a constitutional right to be present at every stage in the course of the trial and the record must show his presence. (Hopt v. Utah, 110 U.S. 578; Dunn v. Comm. 6 Barr. 384; Ball v. U.S. 140 U.S. 118.) It was error on the part of the court to refuse to appoint some disinterested person other than the sheriff to point out the premises to the jury. The sheriff is not such a disinterested person as the statute contemplates; in fact he was not such disinterested person, but was bitterly prejudiced against the defendant. This was shown before the view of the premises was ordered. It is held by some authorities that the act of viewing premises by the jury is taking evidence, and therefore it is necessary that the judge and other court officials be present. (Foster v. State, 70 Miss. 755; Smith v. Sherwood, 70 N.W. 682). On the other hand, it is held that such procedure is not taking evidence, but that the statute must be strictly followed as to the manner of taking the view and the appointment of persons to conduct the jury to the place. (State v. Lopez, 15 Nev. 407). It would seem that if the view of the premises by the jury is an integral part of the trial the judge should be present. The officer was directed by the court to answer questions of the jury with regard to the premises without giving an opportunity of having such questions and answers taken down and made a part of the record in the case, and this was done over the objection and exception of the defendant. It seems that the instructions to the sheriff by the court were broader than the statute authorizes. Where evidence has been wrongfully admitted or excluded, it is presumed to be prejudicial to the rights of the accused and a new trial should be granted. (Inman Bros. v. Lumber Co., 146 F. 449; McGivern v. Steele, 83 N.E. 405; Florence W. Works v. Trinidad &c. Co., 40 So. 49; Gherky v. Tel. Co. 107 N.Y.S. 420; Ins. Co. v. Wagner, 109 S.W. 1120; Fountain v. R. R. Co., 114 Mo.App. 683; Ry. Co. v. Courtney, 92 S.W. 251; Ry. Co. v. Campbell, 96 P. 986; Howe v. Frith, 95 P. 603; Short v. Frink, 90 P. 200). This court having found that evidence was erroneously rejected and other evidence erroneously admitted, it seems to us in a case of this kind that the general rule presuming prejudice applies with particular force. On the question of the disqualification of the two jurors two cases which had not been decided when the original briefs were prepared have come to counsel's attention and are here cited, sustaining the point that said jurors were disqualified to sit in the case, viz: Hager v. State, 133 P. 263, and Tegler v. State, 130 P. 1164.

SCOTT, CHIEF JUSTICE. POTTER, J., and BEARD, J., concur.

OPINION

ON PETITION FOR REHEARING.

SCOTT CHIEF JUSTICE.

The plaintiff in error has filed an application for a rehearing. He urges that the question of the admissibility of the club discussed in the opinion was neither raised nor assigned as error and further that the club was admitted and received in evidence without objection. An examination of the record shows that this contention is correct. The writer speaking for himself desires to assume all responsibility for the oversight, he being under the impression from the oral argument that the club was rejected when offered in evidence. It seems, however, upon the record, that the plaintiff in error had the full benefit of the evidence and what we said with reference thereto was dictum as not being based upon any question raised upon the record. It is apparent that the plaintiff in error was not prejudiced by what we said and we seize the opportunity to correct our opinion in this respect, which is accordingly done.

The alleged misconduct of the county and prosecuting attorney is here urged as a ground for a rehearing. The 85th assignment of error is the only one contained in the motion for a new trial touching that question, and is as follows: "That there was misconduct, on the trial of said cause, on the part of the prosecuting attorney, prejudicial to the defendant in that he read a passage taken from a law book in making his closing argument to the jury. To the reading of which passage the defendant at the time objected and excepted. Said statement so read is more fully shown by the affidavit hereto attached, marked Exhibit A." That exhibit is as follows:

"The State of Wyoming, County of Laramie,

Ethel A. Carpenter, being first duly sworn, according to law, upon her oath deposes and says that she was present at the trial of the case of The State of Wyoming vs. J. Warren Jenkins, and took down in shorthand the testimony given in said trial, and also part of the first argument of Charles L. Rigdon, Esq., counsel for the State, and the last argument of the said Charles L. Rigdon; that Charles L. Rigdon, in his closing argument, made the following statement to the jury: 'I hope I may be pardoned for reading one very small fact. It is this, taken from . . . . Commonwealth vs. Webster.' And then the said Charles L. Rigdon read from a paper the following:

"Perhaps strong circumstantial evidence in cases of crimes like this, committed for the most part in secret, is the most satisfactory of any form whence to draw the conclusion of guilt, for men may be seduced to perjury by many base motives to which the secret nature of the offense may afford a temptation, but it can scarcely happen that many circumstances forming together the links of a transaction should all unfortunately concur to fix the presumption of guilt on an individual and yet such a conclusion be erroneous." That at the time the defendant objected to the said Charles L. Rigdon reading said passage, and that the Court, over the objection of the defendant, permitted the said Charles L. Rigdon to read said passage. To which ruling of the Court the defendant at the time excepted.

(Signed) ETHEL A. CARPENTER.

Subscribed in my presence and sworn to before me this 2nd day of August, A. D. 1912.

(SEAL) (Signed) CLYDE M. WATTS, Notary Public."

The objection and exception do not appear in the bill of exceptions independent of this ex parte affidavit which was filed in support of the motion for a new trial. The bill does not state, nor does the judge who signed the bill certify that any objection was made at the time to the alleged misconduct of the county attorney, or that any ruling was made thereon, or any exception taken thereto at the time. The court or judge in signing the bill of exceptions certifies that the statements contained in the bill are true and that the objections, rulings and exceptions therein stated occurred on the trial; but he does not certify that the statements contained in an affidavit attached to a motion for a new trial are true or that the matters therein stated occurred on the trial. What occurred on the trial must appear by the bill and not by ex parte affidavits. (2 Ency. Pl. & Pr., 756-758; Wallace v. Skinner, 15 Wyo. 233, 261, 88 P. 221; Robb v. State, 144 Ind. 569, 43 N.E. 642; State v. Helm, 97 Iowa 378, 387, 66 N.W. 751; Alexander v. Menefee (Ky. 1901) 64 S.W. 855; Hacker v. Heiney, 111 Wis. 313, 320, 87 N.W. 249; Norris v. Whyte, 158 Mo. 20, 57 S.W. 1037). Notwithstanding the failure to properly present the question by the bill it was discussed in the opinion and we need not further refer to it. Much of plaintiff's brief in support of his petition is devoted to the question of alleged misconduct of counsel in other respects but this was not made a ground in the motion for a new trial. It is urged among other grounds for a rehearing that

"1 The trial court refused to permit a record of the statements made to the jury while viewing the premises to be kept by the official stenographer."

"2. The judge failed to accompany the jury while viewing the premises."

"3. The record does not show that the defendant was present at the view. The record shows that the stenographer failed to take down all of the instructions given to the jury before going to view the premises."

These questions with the exception of the second, which was not raised in plaintiff in error's brief nor in argument, were discussed in the opinion. The view authorized and permitted by the statute is by the jury upon order of the court. The view is not by the court and it seems almost a waste of words to say that the judge was not required to accompany the jury upon its view to the place where the homicide was committed.

The record is silent...