Markoff v. State

• Decision Date: 01 February 1938
• Docket Number: 2049
• Citation: 52 Wyo. 457,75 P.2d 773
• Parties: MARKOFF v. STATE
• Court: Wyoming Supreme Court

75 P.2d 773

52 Wyo. 457

MARKOFF v. STATE

No. 2049

Supreme Court of Wyoming

February 1, 1938

ERROR to the District Court, Sheridan County; JAMES H. BURGESS Judge.

Affirmed.

For the plaintiff in error, there was a brief by M. L. Cone of Sheridan, Wm. B. Cobb and C. M. Crowell of Casper, and oral argument by Messrs. Cobb and Crowell.

The verdict is not sustained by sufficient evidence. Richards v. Commonwealth, 59 S.E. 1104; 1 Elliott on Ev., Sec 1249; Richmond v. Racks, 101 Va. 487; Ter. Co v. McCormick, 104 Va. 400. Footprints on a question of identity are inadequate as evidence, unless they correspond with boots probably worn by accused. Dunn v. People, (Ill.) 52 N.E. 47; State v. Cole, (Kan.) 150 P. 233; 2 Bishop's New Criminal Procedure, 2d Ed. 493. As to the rule of inferences, we cite Wright v. Conway, 34 Wyo. 1; Whitehouse v. Bolster, 95 Me. 458; Vernon v. United States, 146 F. 121. The circumstantial evidence rule is reviewed in People v. Harris, 33 N.E. 65; Garner v. State, 40 Wyo. 316; Cavender v. State, (Ind.) 25 N.E. 875; 16 C. J. 763. The facts in Gill v. State, (Texas) 38 S.W. 190, are almost identical with those in the case at bar. In that case, there was a reversal for insufficient evidence. The corpus delecti was not proven. 16 C. J. 771. The court erred in refusing defendant's requested instructions "B," "E" and "F" pertaining to the possibility of others having committed the crime in question. Thompson v. State, 41 Wyo. 72.

For the defendant in error, there was a brief by Ray E. Lee, Attorney General; T. F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Shea.

The verdict and judgment is amply supported by the evidence. The case of Richards v. Commonwealth, (Va.) 58 S.E. 1104, cited by appellant, bears no analogy to the testimony of the present case relative to tracks. The same may be said of the cases of State v. Cole, (Kan.) 150 P. 233; Dunn v. People, (Ill.) 42 N.E. 47; Wright v. Conway, 54 Wyo. 1; Vernon v. United States, 146 F. 121. There is no similarity to be found in the case of People v. Harris, 33 N.E. 65. Appellant probably intended to cite Gardner v. State, 27 Wyo. 316, since there is no such case as Garner v. State, 40 Wyo. 316. Again the facts in Cavender v. State, (Ind.) 25 N.E. 875, bear no similarity to the case at bar. We find no similarity between the case of Gill v. State, (Tex.) 38 S.W. 190, and the case at bar. Appellant's requested instruction No. "F" is not supported by the case of Thompson v. State, 41 Wyo. 72, and was properly refused. An instruction similar to plaintiff's offered instruction "E" was given in the case of Horn v. State, 12 Wyo. 80, but the facts in that case justified the instruction. This court in Lampitt v. State, 34 Wyo. 247, reviewed the circumstantial evidence rule. The trial court fully and fairly instructed on all questions pertinent to the issues in this case, leaving the question to the jury, which was proper. Jenkins v. State, 22 Wyo. 34. The evidence was sufficient to convince the jury of the crime of the accused. Bryant v. State, 7 Wyo. 311.

BLUME, Chief Justice. RINER and KIMBALL, J.J., concur.

OPINION

BLUME, Chief Justice.

Tony Markoff was convicted of assault and battery with intent to commit murder in the first degree upon the person of John Ruby. Judgment and sentence upon the verdict directed confinement in the penitentiary for a term of from twelve to fourteen years. He brings error, assigning (1) that the verdict is not sustained by sufficient evidence; (2) that the corpus delicti was not proved; and (3) that certain requested instructions were refused.

1. On December 29, 1935, about 5:30 in the evening, Ruby, sitting at a table in the kitchen of his home at Sheridan, Wyoming, was wounded by a bullet which passed through a screen surrounding the kitchen porch, through the kitchen window-pane, and almost entirely through Ruby's head. The size of the perforations through screen and glass, and of the entrance wound in Ruby's head, indicated the missile to have been a 22-calibre bullet. Nine months later a 22-calibre bullet, identified as such, was extracted from Ruby's neck, at the side opposite the point of entrance.

There was no eye-witnesses to the shooting, and the main problem therefore is as to who was the assailant. Counsel for the defendant have eloquently and earnestly argued that the evidence wholly fails to show that the defendant was the guilty party, and that it at most but casts a suspicion upon him. There are a number of circumstances tending to show that the defendant is guilty. These are easily separable, and we shall, accordingly, discuss them in that manner.

(a) John Ruby was married. His wife secured a divorce from him on November 25, 1935, a little more than a month before the shooting in question in this case. The decree of divorce provided for the payment by Ruby to his wife of $ 15 per month for the support of the minor child of the couple. It was further ordered that such payments should be secured by the assignment to a trustee of certain evidences of indebtedness amounting to the sum of $ 1600, and that in the event of Ruby's death, this sum should become the absolute property of the minor child. Two days after the divorce decree was entered, the defendant and the divorced wife were married, the child mentioned thereafter living with the defendant and his then wife, and this wife brought with her from Ruby's premises certain furniture and live stock which had not been awarded her in the decree of divorce above mentioned. Ruby brought an action of replevin to recover the property, and about December 16th, 1935, he, in company with Sheriff Harwood, went to Markoff's residence to obtain possession thereof. Upon this occasion, as testified to by the sheriff, the defendant stated that "if that old man (meaning Ruby) doesn't stay away from here, I will blow his head off." It seems that the action of replevin brought by Ruby was successful. Counsel for the defendant argue that the facts and circumstances here outlined do not show any motive for the commission of the crime in question; that they were not adequate to produce a sufficient emotion for the purpose. Of course, what facts may not be adequate to that end for one man may be for another. It was said in Hendrickson v. People, 10 N.Y. 13, 31, that "we can never say the motive was adequate to the offense; for human minds would differ in their ideas of adequacy according to their own estimate of the enormity of the crime; and a virtuous mind would find no motive sufficient to justify the felonious taking of human life." See Wigmore, Evidence, (2nd Ed.) Sec. 389. The jury saw the defendant, his wife, and Ruby on the witness stand and were in much better position than we are to determine that point. We are not at all certain that the provision for the child in the decree of divorce above mentioned is of any importance. But that an ill-feeling between Ruby and the defendant existed is altogether probable by reason of the fact that defendant married Ruby's former wife just two days after the latter obtained a divorce. The action of replevin had a tendency to enhance that ill-feeling. Defendant, while denying the statement testified to by Sheriff Harwood, admitted that he stated: "If that old man don't quit bothering, I will kick him off the place." Even if that was the statement actually made, it shows an ill-feeling. The evidence was clearly relevant and had a tendency to show motive, particularly in view of the fact that the exhibition thereof was recent. Wharton's Criminal Evidence, (10th Ed.) Sec. 863. The weight thereof, in the chain of circumstances, was for the jury. It does not appear that any other person had any motive for shooting Ruby.

(b) Defendant admitted that he had a 22-calibre rifle; that it was in his automobile between the rear and front seats, and had been there for some time; that he had cleaned the gun and that it was good and clean and well oiled. Defendant told the officers of this gun on the evening of December 29th, 1935 and it was delivered to the latter about eight o'clock. Sheriff Harwood testified that there were particles of burnt powder throughout the length of the barrel of the gun; that there was an odor of freshly burned powder. Chief of Police Hendrickson testified that he found that the barrel contained powder stains; that "you could smell the powder, had a very distinct odor, the odor of the shell explosion." This testimony, together with the fact that the bullet extracted from Ruby was of .22 calibre, and therefore was shot out of a gun at least of the general character possessed by the defendant was, of course, exceedingly damaging to the defendant, and he sought to show by the witness Allen that a person would be unable to detect a fresh odor of burned powder in such a gun, except to a slight extent immediately after the gun was fired. But the weight of his testimony, and that of the others, was for the jury, and they evidently accepted the testimony of Harwood and Hendrickson, and we cannot say that they had no right to do so. And if their testimony was accepted as true, it is apparent, especially in view of the motive above mentioned, that more than a strong suspicion that the defendant is guilty would be generated in the minds of the jury, unless an explanation were given. Counsel for the defendant argue vehemently that such explanation was given; that, in fact, the bullet taken from Ruby's head could not possibly have been fired from Markoff's gun. They base this upon the following facts: The bullet extracted from Ruby's head has a pronounced cup or cavity in the base. The witness Allen testified that in his opinion this was caused by...