Johnson v. State, 1083

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtMETZ, District Judge.
Citation29 Wyo. 121,211 P. 484
PartiesJOHNSON v. STATE
Decision Date30 December 1922
Docket Number1083

211 P. 484

29 Wyo. 121

JOHNSON
v.
STATE

No. 1083

Supreme Court of Wyoming

December 30, 1922


ERROR to the District Court, Fremont County; HON. RALPH KIMBALL, Judge.

Henry V. Johnson was convicted of murder in the first degree without capital punishment and prosecutes error. The material facts are stated in the opinion.

Judgment reversed and case remanded.

N. R. Greenfield, John Dillon and P. B. Coolidge, for plaintiff in error.

We take it that the Supreme Court will consider the entire record in a case of this character, even though many of the objections and exceptions were not incorporated in the motion for new trial, in view of the following cases: Seng v. State, 20 Wyo. 222; Ohama v. State, 24 Wyo. 513; Cirej v. State, 24 Wyo. 507; Parker v. State, 24 Wyo. 491. The opening statement of the prosecutor was highly prejudicial to defendant, as was the statement of the special prosecutor, in that some of the facts there stated were incompetent and inadmissible in evidence, and if admissible for any purpose, were untruthful, all of which are highly prejudicial to defendant, and upon the whole were of such an abusive, inflamatory, sinister, scurrilous, reckless, demagogic, unjust and generally uncalled for, and of such objectionable character as to constitute reversible error. (Tucker v. Hanniker, 41 N.H. 317; Brown v. Swineford, 44 Wis. 232; Mitchum v. State, 11 Ga. 615; State v. Carter, 8 Wash. 272, 36 P. 29; Hall v. United States, 150 U.S. 76; Williams v. U. S. 168 U.S. 382; Brown v. State, 103 Ind. 133, 2 N.E. 296; Thompson on Trials (2nd Ed.) Vol. 1, Ch. 10.) The evidence was insufficient to support a verdict of guilty against defendant, being wholly circumstantial and failing to connect defendant with the offense. The court erred in permitting evidence of an alleged shooting affair which had occurred between Wales and defendant in 1912, or eight years before the killing of Nancy Wales. (State v. Jones, 191 P. 1075 (Wyo.); 16 C. J. 586; Underhill on Crim. Evi. 87; Baxter v. State, 110 N.E. 456; Paulson v. State, 94 N.W. 771; Farris v. People, 129 Ill. 541, 4 L. R. A. 582, 21 N.E. 821; 2 Bishop's New Crim. Proc. 1124; People v. Molineux, 168 N.Y. 264, 62 L. R. A. 193 (see 165 page note in 62 L. R. A. 193 covering every phase of this proposition.) The court erred in failing to instruct the jury as to certain phases of the evidence, even though such instruction was not requested. (People v. Montgomery, 176 N.Y. 219, 68 N.E. 258; State v. Freeman, 49 N.C. 5; Hennesey v. State, 23 Tex.App. 5 S.W. 215; Burke v. State, 24 Tex.App. 326, 6 S.W. 300; Olliver v. State, 33 Tex. Crim. 541, 28 S.W. 202.) Where evidence of independent crimes have been improperly received, and apparently prejudicial to the rights of the accused, a charge to disregard it will not cure the error. (Boyd v. United States, 142 U.S. 450, 35 L.Ed. 1077; People v. Jacks, 76 Mich. 218, 42 N.W. 1134; Welhousen v. State, 30 Tex.App. 623, 18 S.W. 300; Com. v. Campbell, 7 Allen 541, 83 Am. Dec. 705; State v. O'Donnel, 36 Ore. 222, 61 P. 892.) The court erred in denying defendant's offer of proof tending to show that some other person committed the crime. (Horn v. State, 12 Wyo. 80; 16 C. J. 559 and cases cited; Ogden v. State, 28 S.W. 1018; People v. Mitchell, 34 P. 698; People v. Myers, 12 P. 719.) To make a declaration of one conspirator's evidence admissible against the others, they must be made in furtherance of a common design. When the conspiracy has been consummated, then the admissions of one, in the absence of the others, that he and others participated in the crime, is a narrative of a past occurrence and can affect only the one who makes it. (Dean v. State, 130 Ind. 237, 29 N.E. 911; State v. Goyens, 204 P. 704; State v. Aiken, 41 Ore. 284, 69 P. 683; 5 R. C. L. 1089; 16 C. J. 656; State v. Palmer, 79 Minn. 428, 82 N.W. 685; State v. Harris, 150 Mo. 56, 51 S.W. 481; State v. Walker, 100 N.W. 354; State v. Weaver, 165 Mo. 1, 88 Am. St. Rep. 406, 65 S.W. 308; Donald v. State, 21 Oh. Cir. Ct. 124; Bowen v. State, 47 Tex. Crim. R. 137,82 S.W. 520.)

Testimony of the deputy sheriff as to statements made by defendant, while under arrest, was incompetent. (Maki v. State, 18 Wyo. 481.) No sufficient foundation was laid for receiving in evidence the alleged dying declaration of Nancy Wales. (2 Bishop's New Crim. Proc. 1212; 4 Enc. Evi. 929; State v. Jaggers, 36 S.E. 434.) The court erred in refusing defendant an opportunity to make a further statement. Even if the court should hold that the shoes offered in evidence were sufficiently identified and properly admitted, the evidence in the case that the tracks found fitted these shoes would be insufficient to support the verdict. (6 Enc. Evi. 706 and note 67; 5 R. C. L. 183; Kinnan v. State, 86 Neb. 234, 125 N.W. 597; 21 Ann. Cas. 335, 27 L. R. A. 478; Cummings v. State, 110 Ga. 293, 35 S.E. 117.) The jury was insufficiently instructed by the court. Defendant was entitled to have a jury instructed on every phase of the evidence, particularly on the question of identification, and failure to do so is reversible error. (Underhill on Crim. Evi. (2nd Ed.) 94; Petty v. State, 83 Miss. 260, 35 So. 213.) Also as to what constituted a conspiracy, the court should have instructed the jury as to the object, purpose and effect of receiving evidence and testimony of crimes. (16 C. J. 2446.) If the question of defendant's guilt was to be submitted to the jury, the question of whether the defendant was guilty of murder in the second degree or manslaughter was involved, and the jury should have been so instructed. Upon a charge of first degree murder and a plea of not guilty, defendant was entitled to instructions as to the lesser degree of murder, where the offence is divisible into separate and distinct degrees or grades of crime under the information. (State v. Phinney, 13 Ida. 307, 12 Ann. Cas. 1081, 12 L. R. A. (N. S.) 935.) That which distinguishes a murder in the first degree from any other kind of homicide, is the existence of a settled purpose and fixed design upon the part of the slayer to cause death. (3rd Ed. Wharton on Homicide, 139-141; 6 Enc. Ev. 592 and cases cited; People v. Foren, 25 Cal. 365.)

Instruction No. 2 did not instruct or inform the jury and tended only to confuse them. Instruction No. 3 is erroneous in the definition of malice. Instruction No. 4 omits the element of reasonable doubt. There was no evidence that defendant bore any ill-will towards deceased, hence no premeditation shown. (James v. State, 196 P. 1045 (Wyo.); Robbins v. State, 8 Oh. St. 131.) Where an unlawful act aimed at one person causes the death of another, the act will be what it would have been had the person whom the unlawful act was aimed at been killed, but in some of the states such a killing is never regarded as murder in the first degree. (Musick v. State, 21 Tex.App. 69, 18 S.W. 95; Honeycutt v. State, 42 Tex. Crim. 129, 57 S.W. 806; Wright v. State, 44 Tex. 645; Bratton v. State, 10 Hump. 103 (Tenn.); Robbins v. State, 8 Oh. St. 131; James v. State, 196 P. 1045 (Wyo.) The instruction on conspiracy was erroneous. (State v. Furney, 21 P. 213 (Kans.) Instruction No. 9 on circumstantial evidence should not have been singled out and designated as given on defendant's request. (People v. Bundy, 168 Cal. 888, 145 P. 537.) Instruction No. 17 was erroneous since it tells the jury that the instructions preceding it embody the law of the case. The additional instructions given the jury, upon their return to court for additional instructions, were erroneous. The court erred in refusing defendant's requested instruction to return a verdict of not guilty. Defendant's requested instruction No. 2a should have been given. (State v. Aspara, 113 La. 940; Gardner v. State, 196 P. 750 (Wyo.) Defendant's requested instruction No. 4a should have been given. (Horn v. State, 12 Wyo. 80; Galloway v. State, 70 S.W. 212.) Defendant's requested instruction No. 5a should have been given as it is supported by the following authorities: (People v. Ah Chung, 54 Cal. 399; People v. Anthony, 56 Cal. 397; Brookin v. State, 26 Tex.App. 121; People v. Stewart, 76 Mich. 21; State v. Furney, 21 P. 213; Henderson v. Com. 98 Va. 797, 34 S.W. 881.) The court erred in authorizing a separate trial on the motion of the prosecution. (Mayfield v. State, 142 Wis. 661; Moore v. People, 31 Colo. 336, 73 P. 30; Rachels v. State, 51 Ga. 374; Barrett v. People, 220 Ill. 304, 77 N.E. 224.) The names of two of the trial jurors did not appear on the last assessment roll of the county as is required by Section 1204 C. S. (Lamphier v. State, 70 Ind. 317; Boren v. State, 23 Tex.App. 28, 4 S.W. 463; People v. Warner, 147 Cal. 546, 82 P. 196; People v. Thompson, 34 Cal. 671; State v. Arnstein, 9 Kan.App. 697, 59 P. 902; People v. Tacker, 108 Mich. 652, 66 N.W. 562; Schlacker v. Ashlund, 89 Mich. 253, 50 N.W. 839; Kelly v. People, 55 N.Y. 565, 14 Am. Rep. 342; Conway v. Clinton, 1 Utah 215; State v. McDowell, 61 Wash. 398, 112 P. 521.) An open venire should never be issued in view of the provisions of 1238, 1239 and 1242 C. S. 1920. Our statute directs a drawing from the general list of jurors found to be qualified by the jury commissioner. It was the intention of the legislature in enacting our jury law that when jury box number three is exhausted, an order shall be made by the court directing the clerk to draw from jury box number one as many names as will be necessary to complete the trial jury, and that is the practice by some of the district courts of the state, notwithstanding the decision of this court in Gunnell v. State, 21 Wyo. 125.

F. A. Michels, Prosecuting Attorney, W. L. Walls, Attorney General and Vincent Carter, Deputy Attorney General, for defendant in error.

In his opening statement the prosecutor stated facts which he intended to introduce. The authorities cited by plaintiff in error do not sustain his contention of...

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10 practice notes
  • Engberg v. State, No. 83-29
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1984
    ...Early in the jurisprudence of this state the court was concerned with voir dire examination in a capital case. See e.g., Johnson v. State, 29 Wyo. 121, 211 P. 484 (1922). We have held that it is not error to inquire of jurors on voir dire regarding their possible scruples (or lack thereof) ......
  • State v. McComb, 1223
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1925
    ...Reversed and Remanded. M. F. Ryan for appellant. The opening statement of the prosecutor was untrue and prejudicial; Johnson v. State, 29 Wyo. 121; Nicholson v. State, 18 Wyo. 311; Thompson on Trials, 2nd ed. 277; Hampton v. State, 88 Miss. 257; People v. Montague, 39 N.W. 585; Scott v. Sta......
  • Roby v. State, No. 4926
    • United States
    • United States State Supreme Court of Wyoming
    • December 14, 1978
    ...stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony." See, Johnson v. State, 29 Wyo. 121, 211 P. 484 The defendant's conviction is reversed, and the case is remanded for a new trial. RAPER, Justice, dissenting, with whom THOMAS, Jus......
  • Jones v. State, No. 86-141
    • United States
    • United States State Supreme Court of Wyoming
    • April 13, 1987
    ...P.2d 154 (1974); State v. Holm, 67 Wyo. 360, 224 P.2d 500 (1950); Rosencrance v. State, 33 Wyo. 360, 239 P. 952 (1925); Johnson v. State, 29 Wyo. 121, 211 P. 484 In this case, the prosecutor was actually using an address-questioning strategy to bring evidence of a misdemeanor arrest without......
  • Request a trial to view additional results
10 cases
  • Engberg v. State, No. 83-29
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1984
    ...Early in the jurisprudence of this state the court was concerned with voir dire examination in a capital case. See e.g., Johnson v. State, 29 Wyo. 121, 211 P. 484 (1922). We have held that it is not error to inquire of jurors on voir dire regarding their possible scruples (or lack thereof) ......
  • State v. McComb, 1223
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1925
    ...Reversed and Remanded. M. F. Ryan for appellant. The opening statement of the prosecutor was untrue and prejudicial; Johnson v. State, 29 Wyo. 121; Nicholson v. State, 18 Wyo. 311; Thompson on Trials, 2nd ed. 277; Hampton v. State, 88 Miss. 257; People v. Montague, 39 N.W. 585; Scott v. Sta......
  • Roby v. State, No. 4926
    • United States
    • United States State Supreme Court of Wyoming
    • December 14, 1978
    ...stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony." See, Johnson v. State, 29 Wyo. 121, 211 P. 484 The defendant's conviction is reversed, and the case is remanded for a new trial. RAPER, Justice, dissenting, with whom THOMAS, Jus......
  • Jones v. State, No. 86-141
    • United States
    • United States State Supreme Court of Wyoming
    • April 13, 1987
    ...P.2d 154 (1974); State v. Holm, 67 Wyo. 360, 224 P.2d 500 (1950); Rosencrance v. State, 33 Wyo. 360, 239 P. 952 (1925); Johnson v. State, 29 Wyo. 121, 211 P. 484 In this case, the prosecutor was actually using an address-questioning strategy to bring evidence of a misdemeanor arrest without......
  • Request a trial to view additional results

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