Meldrum v. State

• Decision Date: 08 March 1915
• Docket Number: 788
• Citation: 146 P. 596,23 Wyo. 12
• Parties: MELDRUM v. STATE
• Court: Wyoming Supreme Court

146 P. 596

23 Wyo. 12

MELDRUM v. STATE

No. 788

Supreme Court of Wyoming

March 8, 1915

ERROR to the District Court of Carbon County, HON. V. J. TIDBALL Judge.

R. D Meldrum was convicted of murder in the second degree, upon an information charging that on the 12th day of January, 1912 at the County of Carbon, in the State of Wyoming, he did feloniously, purposely and with premeditated malice, kill and murder one John or "Chick" Bowen. The defendant was Town Marshal of the Town of Baggs, in Carbon County, and was attempting to arrest deceased at the time of the homicide. A motion for a new trial was overruled and the defendant brings error. Other material facts are stated in the opinion.

Reversed and remanded.

N. E Corthell and N. R. Greenfield, for plaintiff in error.

The proceedings had in the selection of the jury list from which the jury was drawn in this case were invalid. (State v Bolln, et al., 10 Wyo. 439, 471.) The foundation laid for the introduction of a transcript of the stenographer's notes of testimony of witnesses given at the former trial was insufficient. (Comp. Stat., 4560; 2 Cyc., 35; Cooper v. Galbraith, 24 N. J. L., 219; Baldwin v. Flagg, 43 N. J. L., 495; People v. Ballard, 1 Cal. App., 222; 81 P. 1040; People v. McFarlane, 138 Cal. 481; 71 P. 568; People v. Long, 44 Mich. 296; 6 N. W., 673; Wheat v. State, 110 Ala. 68; 20 So. 449.) The admission and reading of the transcript to the jury was a violation of defendant's constitutional rights. (Art. 1, Section 10, Wyoming Constitution.) Only three states permit the testimony of a living witness given at a former trial and who has left the jurisdiction, to be proven by secondary evidence. (Jacobi v. State, 32 So. 158, (Ala.); Young v. People, 130 P. 1011, 1018 (Colo.); Grant v. State, 148 S. W., 760, 763, (Tex. Cr. App.) The rule excluding such evidence is supported by the better and more abundant authority. (State v. Lea, 33 P. 690, (Mont.); Commonwealth v. McKenna, 158 Mass. 207; 33 N.E. 389; State v. Wing, 64 N. E., 514, (Ohio St.); Kirchmer v. Laughlin, 5 N. M., 365; 23 P. 175; Montgomery v. Commonwealth, 37 S. E., 841-842, (Va.); United States v. Angell, 11 F. 34; Cline v. State, 36 Tex. Cr., 320; Porch v. State, 51 Tex. Cr., 7, (Overruling Cline Case); 17 Ill. 426; 178 N. D., 469; 17 Q. B., 238; 117 Eng. Rep., 1271.) Certified copies of town ordinances are admissible in evidence. (Comp. Stat., 1587; Lindsay v. Chicago, 115 Ill. 120; 3 N. E., 443.) The enactment of the ordinaces offered was within the power of the town. (Comp. Stat., 1578, Par. 12 and 16; White v. Kent, 11 Oh. St., 550; Schmidt v. Indianapolis, 80 N. E., 632, 634; Ex Parte Hoffman, 99 P. 517, 518, (Cal.); 28 Cyc., 698, 699.) The constitutionality of the enactment cannot be raised against an officer acting thereunder. (Keady v. People, 32 Colo. 57; 74 P. 892, 895.) The ordinances were competent, as bearing upon the question of motive and intent. (Warfield v. People, 41 Colo. 203; 92 P. 24; State v. Brannigan, 24 P. 767, 770, (Utah); State v. Halliday, 111 La. 47; 35 So. 380; Earles v. State, 52 Tex. Cr., 140; 106 S. W., 138; Neeley v. Com., 123 Ky. 1; 29 Ky. L. R. 408; 93 S. W., 596; State v. Johnson, 8 Wyo., 506.) On an issue of self-defense, evidence of uncommunicated threats is admissible. (Wharton Crim. Evi. 9th Ed., 757; State v. Baldwin, 155 N. C., 494; 71 S.E. 212; See note page 482 Ann. Cas., 1912, C. 6 Ency. of Evi., pp., (787-797) and cases cited; People v. Scroggins, 37 Cal. 676; Babcock v. People, 13 Colo. 516; 22 P. 817; State v. Spendlove, 44 Kan. 1; 24 P. 67; State v. Jackman, 29 Nev. 403; 91 P. 143; State v. Tarter, 26 Ore., 136; 37 P. 53; State v. Cushing, 14 Wash. 527; 45 P. 145; 53 Am. St. R., 883; People v. Taylor, 69 N. E., 534; 177 N.Y. 237; Enlow v. State, 154 Ind. 664; 57 N.E. 539; State v. Peterson, 24 Mont. 81; 60 P. 809.) Evidence offered of defendant's reputation, as a prudent, discreet and cautious peace officer was competent and it was error to exclude it. (1 Wigmore on Evi., Sec. 59, note page 129; State v. Surry, 23 Wash. 655; 63 P. 557; Saye v. State, 99 S. W., 551, (Tex. Cr.). Instructions numbered one and two defining murder in the second degree and the word "malice" were erroneous. (Downing v. State, 11 Wyo. 86, 102; Cribbs v. State, 6 So., 109, 110, (Ala.); Trumble v. Territory, 3 Wyo., 280, 282; Wharton's Crim. Evi. 9th Ed. Sec. 738; Territory v. Gutierez, 79 P. 716, (N. M.); Vollmer v. State, 24 Nebr., 838; 40 N. W., 420; Nilan v. People, 60 P. 485; Zipperian v. People, 33 Colo. 134; 79 P. 1018; Brooks v. State, 90 Ind. 428. Instruction number three as framed had the effect of changing the doctrine of reasonable doubt and depriving defendant of the benefit of such doubt. (Spivey v. State, 45 Tex. Cr. App., 496; 77 S. W., 444.) The last clause of the instruction was misleading and incorrect, as a statement of the law. Instruction number five, defining material allegations of the information, while approved in the cases of Horn v. State, 12 Wyo. 80, and State v. Hollywood, 19 Wyo. 493, and perhaps correct under the facts in those cases was prejudicial under the facts here. (State v. Pressler, 16 Wyo. 214, 221.) If given at all, this instruction should have been limited to voluntary manslaughter. (Nilan v. People, 60 P. 485; 27 Colo. 206; Fahnstock v. State, 23 Ind. 262; Ross v. State, 8 Wyo., 385.) Instruction number nine placing dying declarations upon the same footing as that of witnesses present and testifying in court was, and is sufficient in itself to require a reversal of the judgment. (State v. Scott, 142 P. 1053; Nordgren v. People, 211 Ill. 425; 71 N. E., 1042; 21 Cyc., 992, 993; 10 Am. & Eng. Ency. of Law (2 Ed.) 386; Roscoe on Crim. Evi. (10 Ed.) 251; Wharton's Crim. Evi. (9th Ed.), Sec. 276, et seq.; People v. Kraft, 148 N.Y. 631; 43 N. E., 80; People v. Corey, 157 N.Y. 332; 51 N. E., 1024; State v. Doris, 51 Ore., 136; 94 P. 44; State v. Valman, 140 P. 1119; State v. Eddon, 8 Wash., 292; 36 P. 139; Zipperin v. People, 79 P. 1018; 33 Colo. 134; Bush v. State, 34 S. E., 109 Ga. 120; People v. Warren, 102 N.E. 201, (Ill.). While courts may pass upon the admissibility of the declaration offered, a ruling in favor of admission is not conclusive, that it is a dying declaration, which question is one to be finally determined by the jury. (People v. Thompson, 145 Cal. 717; 79 P. 435-437; State v. Doris, 94 P. 48; State v. Read, 53 Kan. 767; 37 P. 174; 42 Am. S. R., 322; Smith v. State, 110 Ga. 255; 34 S. E., 204.) Where the right to make an arrest without warrant exists, it may be made at any subsequent time, as well as at the time of the commission of the offense. (3 Cyc., 878-883.) The instruction given, as to the powers and duties of peace officers, were in the main prejudicial. The right of the defendant to have received in evidence the town ordinances, as well as his clear right to explicit and positive instructions to the jury, as to his powers and duties in making the arrest, are fully sustained by the authorities. (Bishop New Crim. Proc., Sec. 160, and cases cited; State v. Dierberger, 96 Mo. 66; 9 A. S. R., 380; 10 S. W., 168; State v. Fuller, 96 Mo. 165; 9 S. W., 583; State v. Phillips, 119 Iowa 652; State v. Gosnell, 74 F. 737; Stevens v. Com., 194 Ky. 32; 30 Ky. L. R., 200; 98 S. W., 284; Lynn v. People, 170 Ill. 527; 48 N. E., 964; State v. Bland, 97 N. C., 438; 2 S. E., 460; Hawkins v. Com., 61 Am. Dec. note pp. 151, 164; Boykin v. State, 22 Colo. 496; 45 P. 419; State v. Weston, 98 Ia. 125; 67 N. W., 84; Peter v. State, 23 Tex. App., 684; 5 S. W., 226; State v. Sigman, 106 N. C., 726; 11 S. E., 520; Doolin v. Com., 95 Ky. 22, 29; 23 S. W., 659, 684; State v. McNally, 87 Mo. 644.) Instructions numbered twelve and thirteen dealing with the subject of self-defense were misleading under the facts in the case. Instruction number thirteen may be permissible to the extent that it declares that the defendant urging self defense must not say or do anything for the purpose of provoking a difficulty. The remainder of the sentence goes beyond the limits allowed by the authorities on the subject. In instructing on the subject of self defense, it is the duty of the court to keep in mind, not only the theory of the prosecution, but also the theory of the defense, insofar as it is supported by any substantial evidence. (Boykin v. People, 22 Colo. 496; 45 P. 422; Meuly v. State, (Tex. Cr. App.) 9 S. W., 563, 566; Drake v. State, (Tex. Cr. App.) 80 S. W., 1005; Winters v. State, (Tex. Cr. App.), 40 S. W., 303.) The closing sentence of instruction number sixteen apparently places the burden upon defendant to establish facts of self defense by a preponderance of the evidence. Such a burden is not properly laid upon the defendant in any case. (Foley v. State, 11 Wyo. 464, 480.) Instruction number twenty-eight dealing with the weight and credit to be attached to the transcript of testimony of absent witnesses, which was read to the jury, directed the same consideration to be given to that evidence, as to all other evidence in the case. The court exceeded its province in giving an instruction which would lead the jury to believe that in law an arbitrary valuation was to be placed upon the same, equal in all respects to that of each and every witness who had testified in the presence of the jury. Affidavits filed with reference to certain misconduct of the jury fully justify the granting of the motion made for a new trial. (Nicholson v. State, 18 Wyo. 298, 314-315.) The denials of the jurors and officers also presented by affidavits were insufficient to overcome the showing of misconduct made by affidavits presented by defendant. (Hempton v. State, 86 N.W. 596 (Wis.); Commonwealth v. Fisher, 226 Pa. St. 189, 75 A. 134; 134 Am. St. Rep. 1027, 26 L. R. A. (N. S.)...