Miller v. State

• Decision Date: 18 February 1892
• Citation: 29 P. 136,3 Wyo. 657
• Parties: MILLER v. STATE
• Court: Wyoming Supreme Court

29 P. 136

3 Wyo. 657

MILLER v. STATE

Supreme Court of Wyoming

February 18, 1892

Error to district court, Laramie county; RICHARD H. SCOTT, Judge.

Indictment against Charles Miller for murder. From a judgment of conviction, defendant brings error. Affirmed.

Judgment affirmed.

F. D Taggart, for plaintiff in error.

Charles N. Potter, Atty. Gen., and John M. Davidson, for the State.

CONAWAY J. GROESBECK, C. J., and MERRELL, J., concur.

OPINION

CONAWAY, J.

Plaintiff in error was tried and convicted, at the November term, 1890, of the district court for Laramie county, of the crime of murder in the first degree, and sentenced to suffer the extreme penalty of the law. He brings the cause into this court by his petition in error, which contains 23 assignments of error. The twenty-third assignment of error is that the court (the trial court) erred in overruling the motion of defendant (the plaintiff in error) for a stay of execution of sentence. This assignment need not be considered now. The stay was procured by plaintiff in error under section 3355 of the Revised Statutes, providing that in all cases of conviction where the punishment shall be capital the court or judge allowing the writ of error shall order a suspension of the execution until such writ of error shall be heard and determined. The twenty-second assignment is that the court erred in overruling the motion of defendant in arrest of judgment. Rev. St. 1887 provides as follows: "Sec. 3350. A motion in arrest of judgment may be granted by the court for either of the following causes: First, that the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the court; second, that the facts stated in the indictment do not constitute an offense." The motion in arrest does not set up either of these causes. Besides, as a matter of law, the offense charged is within the jurisdiction of the court, and an inspection of the indictment shows that the facts therein stated do constitute an offense. The grounds actually set up for the motion in arrest are some alleged irregularities in the selection of jurors. The record is entirely silent as to the truth of the facts alleged as constituting such irregularities. It is not necessary to say anything further to show that it is not made to appear that the court below erred in overruling the motion to arrest the judgment. The allegations in the motion itself, or even in affidavits, if there were any, accompanying it, cannot be accepted as proof of facts which, if true, are matters of record. In a matter of such grave moment to the plaintiff in error, however, it is a satisfaction to reflect that none of the matters set up in this motion are such as affect in the slightest degree the merits of the case, or the righteousness of the verdict and judgment. They are all matters of procedure that might have been raised by motion to quash or plea in abatement, and which are waived when not so raised. Rev. St. § 3266. But it is useless to discuss the motion. We cannot consider matters dehors the record.

The twenty-first assignment of error is: "The court erred in overruling the motion of defendant for a new trial." This assignment includes in its scope the matter of the preceding 20 assignments. They were all presented to the court below as grounds for a motion and supplemental motion for a new trial, and the ruling of the court below upon each is sufficiently questioned by the general assignment No. 21, above quoted. So it is now only necessary to determine whether the court below erred in overruling the motion and supplemental motion of plaintiff in error for a new trial. As what is termed the "supplemental motion for a new trial" includes substantially all the reasons for a new trial alleged in the motion for a new trial, they will be considered together. The supplemental motion for a new trial begins with the following reasons: "(1) Because of irregularities of the jurors who rendered the verdict; (2) because of newly-discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial." These appear as Nos. 5 and 3, respectively, in the motion for a new trial, and are supported by the following affidavit: "Frank D. Taggart, being duly sworn, deposes and says that he is the attorney for the defendant, Charles Miller, in the above-entitled case; that he has discovered new evidence material for the defense, which he could not with reasonable diligence have discovered and produced at the trial; that Oscar Leech, the front brakeman on Conductor Hubbard's train, who was subpoenaed by the state in the trial of the foregoing case, will testify that the said train did not arrive at the state line until a time much later than testified to by the other brakeman and the conductor and fireman of said train; that the foreman of the jury which rendered the verdict in the above-entitled case told affiant that he had been a railroad man himself five or six years ago, and he knew better than any of the witnesses who testified as to the time of the train on which the dead bodies were found, where the train was at daylight." And this is all. It is clearly insufficient. Comment is unnecessary. The second ground in the motion and the fourth in the supplemental motion are to the effect that the verdict is contrary to law. Why contrary to law is not alleged. This general allegation presents no question of law for our consideration. The fourth ground alleged in the motion is because of errors of law occurring at the trial. There is the same defect in this as that just mentioned. The general allegations of errors of law present no question for determination. What the errors are that are complained of should be shown.

The first ground alleged in the motion for a new trial and the third in the supplemental motion is that the verdict is not sustained by sufficient evidence, and the fifth in the supplemental motion is that the verdict is contrary to the evidence. These may be considered together. It does not appear from the bill of exceptions whether it contains all of the evidence or not. It purports merely to contain all of the "testimony." The certificate of the stenographer is to the effect that it contains all of the evidence, but that is merely for the information of the trial judge, and is not proper evidence of the fact in this court. It should be shown by the certificate of the trial judge. It is his function to ascertain and certify to this court whether or not the bill contains all of the evidence. The certificate of the stenographer cannot be substituted for that of the judge. But in this instance, as sufficient of the evidence appears to determine these alleged reasons for a new trial on their merits, we will, in favorem vitae, consider the evidence appearing in the record as presented. The shooting of Emerson, and Fishbaugh, his companion, by plaintiff in error, of which shooting Emerson immediately died and Fishbaugh died in a short time, and the immediate robbery of the bodies while Emerson was lying dead, and Fishbaugh was in a dying condition, are circumstantially related by plaintiff in error. This appears both from his admissions proven as made out of court and from his testimony in court. The motive for the murder is sufficiently shown by the immediate robbery. In his admissions to the witness Stewart he states that while in the car, and before the shooting, he conceived the idea of killing them for their money. There is an effort apparent to show by the testimony of plaintiff in error in his own behalf some other motive for the double murder, but this effort fails. It is true, in answer to a question as to whether he ever felt any unkindness to the persons whom he killed, and to state how he did feel towards them at the time, he says: "I knew they had a revolver, because I saw them buy five shots for it at Sidney, and put them in the gun; and I supposed when they left me on the corner they were making out some scheme for me; and when I was in the car I was afraid they were going to do something to me." But, supposing this to constitute some palliation for the crime, if true, he does not adhere to it. He is soon asked again to state how he felt at the time of the shooting, and he replies: "I thought I was far away from my folks, and wanted to get back, and didn't know how; and I was all ragged, and cold weather was coming on, and nothing to eat, and no money, and I didn't know what to do." With but one intervening question as to how long it was from the time he first thought of the crime until he committed it, and his answer that he could not remember ever thinking of it at all, he is asked the third time how he felt at the time. He answers: "I felt that I was far away from my brothers, and that I had nothing to eat, no money, and was all ragged, --was all." He forgot this time to mention his hunger. His statement that he was afraid they "were going to do something to him then" is inconsistent with his other testimony. He met them east of Sidney, (he thinks at Julesburg,) and the three of them rode from there to Sidney together, and they did not abuse him, and no unkind words passed between them. They were put off the train leaving Sidney, and after they had been put off he thought they did not want to travel with him because he was ragged. They told him to take one road, and they would take another. That night, at Sidney, he saw a long freight train come in, and he got into a stock-car covered himself with hay, and went to sleep before the train pulled out. When he awoke, it was coming daylight, and he left the car, took some hay with him, and got into a box-car. Emerson...