McFetridge v. State

• Decision Date: 23 December 1924
• Docket Number: 1159
• Parties: McFETRIDGE v. STATE [*]
• Court: Wyoming Supreme Court

234 P. 505

32 Wyo. 185

McFETRIDGE v. STATE ^[*]

No. 1159

Supreme Court of Wyoming

December 23, 1924

32 Wyo. 185 at 198.

Original Opinion of December 23, 1924, Reported at: 32 Wyo. 185.

Rehearing Denied.

POTTER Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

ON PETITION FOR REHEARING

POTTER, Chief Justice.

A petition for rehearing has been filed in this cause which, if determined by the general expressions in the petition and brief in support thereof, would seem to be based upon the ground of fundamental and material error in the instructions to the jury depriving the plaintiff in error of a fair and impartial trial. It is stated as the first ground of the petition that the instructions as a whole presented an erroneous view of the law and the burden of proof as applied to the facts in the case; and in the third ground, that the court failed to instruct "upon its own initiative" in matters affecting the substantial rights of the plaintiff in error. But the point chiefly discussed in support of the petition relates to the matter of venue; and the others may be regarded, we think, as merely incidental, intended to emphasize the importance of that question and counsel's view of the gravity of the alleged error in that matter, which might justify its consideration by this court, notwithstanding that the exceptions in that respect were not properly preserved under our well-settled rules of procedure to entitle them to consideration in this court on error. That question at least is the only one discussed in the present brief which, in our opinion, might have sufficient merit to justify reconsideration. Before concluding, however, we shall refer to some points made respecting instructions upon other points given or refused, to explain our view of their effect under the charge now made respecting the fairness of the trial. For under the rule of practice stated in the original opinion, such matters would not be otherwise entitled to consideration here.

The trial court, by an instruction stating it to be incumbent upon the prosecution to establish all the material allegations of the information beyond a reasonable doubt, and thereupon defining such material allegations "as here used," meaning of course the allegations necessary to be shown beyond a reasonable doubt, omitted a reference to the allegation that the crime charged was committed in the county of Laramie and state of Wyoming. But in a subsequent instruction the court did charge as follows:

"It is also necessary in order to convict the defendant, that you find that the crime charged in the information herein was committed in Laramie county, Wyoming. However, it is not necessary, that that fact, if it be a fact, be established beyond a reasonable doubt. If, therefore, you find beyond a reasonable doubt that the crime charged in the information was committed by this defendant, and you further find by a preponderance of the evidence that such crime was committed in Laramie County, Wyoming, it will be your duty to convict him and return your verdict accordingly."

The record does not show an exception to either of those instructions. But exceptions were reserved to the refusal of certain instructions referring to the matter of venue, requested by the defendant, plaintiff in error here. They each declared in substance that the alleged fact that the crime charged was committed in Laramie County, Wyoming, must be proved beyond a reasonable doubt to justify a verdict of guilty. Neither of said instructions, however, was confined to that particular matter, but each included other matters within the declaration of the necessity of proof beyond a reasonable doubt; and they each might, perhaps, have been refused because of that fact. For we think it possible that some of the added matters might have been deemed confusing or misleading without explanation or modification. But for the purpose of this discussion the fact may be assumed, if entitled to consideration here, that such instructions were refused because requiring proof of venue as alleged beyond a reasonable doubt; and that was assumed in the original opinion.

Without deciding the question raised by the conflict between said given and requested instructions, it was held by the former opinion that there was sufficient, and, indeed, "ample" evidence to sustain the verdict upon the question of venue; and that was intended to express our view of the sufficiency of the evidence upon the theory that the law might require the venue to be proven beyond a reasonable doubt. And upon a further consideration of the facts for the purpose of disposing of the present application, we see no reason for a different conclusion as to that matter. It was then deemed unnecessary, however, to determine the degree of proof necessary upon that subject, and thus decide whether or not the court had erred in refusing the instructions requested as aforesaid, for the reason that the requested instructions were grouped in the defendant's motion for a new trial with other requested instructions refused which were not objected to in this court, thereby bringing the case within a settled rule of practice in this court that error so alleged must be regarded as including the grouped instructions as a whole, and that the assignment cannot be sustained if any one of the group is correct; citing Dickerson v. State, 18 Wyo. 440, 111 P. 857. See also Richey v. State, 28 Wyo. 117, 201 P. 154, 205 P. 304, where, asserting and applying the principle that an aggrieved party must definitely point out the ruling of which he complains, it was held that a general exception to a group of instructions will be disregarded if any one of the group be correct.

Counsel now appearing for plaintiff in error assert in their brief that they are not impressed with the merit of the said rule of practice so established in this jurisdiction, without, however, contending that it should be abandoned or attempting to show wherein it is or might be improper or unreasonable. But it is argued that this case comes within an exception to said rule also established, as claimed, by certain of our decisions cited in the brief, viz: That it need not apply where the record shows fundamental error in the instructions as a whole, or in the proceedings throughout the trial, having the effect of depriving the party of a fair and impartial trial. And it is contended that fundamental error within the meaning and effect of that exception is disclosed by the record in this case. Before proceeding to a discussion of that contention, we think it not improper to say, in view of the implied criticism of the rule, that we remain convinced of its reasonableness and propriety. It seems to be quite generally accepted and applied by the appellate courts in this country; and we believe it to be based upon good and substantial reasons. The rule is stated in 29 Cyc. at pages 949 and 950, in the article upon the subject of "New Trial." We quote therefrom:

"By the weight of authority, the particular instruction or instructions improperly given or refused, or the particular errors or omissions in the charge, must be pointed out with reasonable certainty. * * * Where several instructions are grouped in one specification, they will be examined only so far as is necessary to determine whether all were regularly given or refused. In other words, if the action of the trial court was correct in regard to any one of the instructions so grouped, the assignment must fail."

The paragraph from which we have quoted was cited in the Dickerson case. Many cases are cited in the note to the paragraph on page 951, and later cases adhering to the rule may be found cited in subsequently published volumes of annotations, including the Dickerson case and the following: Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449, 148 N.W. 810; Cowperthwait v. Brown, 82 Neb. 327, 117 N.W. 709; Fletcher v. Brewer, 88 Neb. 196, 129 N.W. 288. The court say in the cited Michigan case:

"Error is assigned because the court denied the defendant's motion for a new trial. Turning to the motion, we find that the second ground stated is that the court erred in not charging the jury as requested by the defendant in its several requests, which were refused by the court. An examination of the record discloses that defendant's requests to charge cover six pages of the printed record. An examination of them shows that some were given by the court, and some clearly should not have been given. The assignment of error is too general to be considered, under our repeated decisions" citing cases.

In the Nebraska case of Cowperthwaite v. Brown, where two separate assignments were (7) that the court erred in giving the first, second, third, fourth and fifth paragraphs of the instructions asked for by the plaintiff, and (9) that the court erred in giving the first, second, third and fourth paragraphs of the instructions given on its own motion, the court said:

"These assignments in the motion for a new trial were not sufficient to lay the foundation for the consideration of the instructions here further than to ascertain whether any one of the instructions in either group correctly stated the law."

In Fletcher v. Brewer, the same court say:

"The rule has long been established in this court that parties complaining of errors at the trial must point them out specifically to the district court in the motion for a new trial. Where a general assignment is made that the court erred in giving a group of instructions, it is not error for that court to overrule the motion for a new trial if any one of the instructions in the group has been properly given."

The rule thus established as the result of judicial decisions is in full accord with, and...