Mortimore v. State

• Decision Date: 23 December 1916
• Docket Number: 864
• Citation: 24 Wyo. 452,161 P. 766
• Parties: MORTIMORE v. STATE
• Court: Wyoming Supreme Court

161 P. 766

24 Wyo. 452

MORTIMORE v. STATE

No. 864

Supreme Court of Wyoming

December 23, 1916

ERROR to District Court, Converse County; HON. CHARLES E. WINTER Judge.

Dewey Mortimore was convicted of manslaughter and brings error. The material facts are stated in the opinion.

Reversed.

William B. Ross and Harry J. Devine, for plaintiff in error.

The court erred in excluding evidence of specific acts of violence of deceased, known to defendant, many of which occurred in his presence and some of which were made known to him. This evidence would have given the jury an idea as to the degree of apprehension of defendant at the time he shot. It was error to exclude evidence of assaults made by deceased upon defendant's mother and all threats made to do her violence.

It was also error to exclude evidence of abusive and vile epithets made by deceased and addressed to defendant's mother and sister and evidence of an assault made by deceased upon defendant on a prior occasion, all being facts within the knowledge of the family, but not known to others. This evidence would have shown that deceased had his whole family terrorized. The rule of self-defense applies to a defendant who kills in defense of another, as much as if he killed in defense of himself. (21 Cyc. 826.) A felony may be prevented by any one, not himself in the wrong. (People v Curtis, 52 Mich. 616; Patten v. People, 18 Mich. 322.) A man has a right to interfere for the protection of a brother in personal danger, whether the brother was blameless or not. (People v. Curtis, supra.) And the rule of self-defense applies. (State v. Filker, 27 Mont 451, 91 P. 668; People v. McKay, 122 Cal. 628, 55 P. 594; Wood v. State, 128 Ala. 27, 29 So. 557; King v. State, 55 Ark. 604, 19 S.W. 110; State v. Auston, 104 La. 409, 29 So. 23; Tudor v. Com., 19 Ky. Law R. 1039, 43 S.W. 187.) Evidence of prior assaults upon others and upon defendant should not have been excluded. (2 Bishop Cr. Pr. 610; Wharton Cr. Evi. 69-84; Ency. of Evi., Vol. 6, pg. 779; Wigmore, Vol. 1, 248 P. 315; Boyle v. State, 97 Ind. 322.) The treatment of defendant's mother immediately preceding the killing was a part of the res gestae.. (State v. Beird, 92 N.W. 694 (Iowa) ; State. Nelson, 166 Mo. 191; Temple v. The People, 4 Lansing's N. Y. 119; King v. Whitehead, 1 C. & P. 67; People v. Curtis, 52 Mich. 617; Gunter v. State, 3 Ala. 23; State v. Schleagle, 80 Kans. 325; People v. Lilly, 38 Mich. 270; Hill v. State, 69 Ark. 148.) It is proper to prove the expression of countenance of deceased before the killing to show his state of mind. (State v. Cross, 68 Iowa 180; Comm. v. Booker, 76 S.W. 838.) Every fact tending to show grounds for apprehension of serious danger is admissible. (Bowlus v. State, 130 Ind. 227; Williams v. State, 70 S.W. 756; State v. Shadwell, 22 Mont. 559; Russell v. State, 11 Tex. Court of Appeals, 288; People v. Harris, 95 Mich. 87; McQuiggon v. Ladd, et al., 79 Vt. 90; State v. Golden, 113 La. 791; Monroe v. State, 5 Ga. 85; Sneed v. Territory, 16 Okla. 641; State v. Foster, 49 S.W. 747; Campbell v. Commonwealth, 88 Ky. 403; 6 Ency. of Evi. 766; State v. Felker, 27 Mont. 451; Enlow v. State, 154 Ind, 664; Roger v. State, 8 Okla. Cr. Rp. 226.) Mistreatment of defendant by deceased for years is admissible. (People v. Thomson, 92 Cal. 506; DeForest v. The State, 21 Ind. 23; State v. Scott, 24 Kan. 68; State v. Peterson, 24 Mont. 81; McHugh v. Ter. Okla., 17 Okla. 1.) There is a distinction between the rule of proof as to general reputation and specific acts. State v. Harlon, 38 Mont. 557; State v. Burton, 63 Kan. 602.) For the purpose of showing degree of defendant's apprehension, an assault by another may be shown. (State v. Davis, 51 Ore. 136.) It was error to exclude testimony as to the physical strength of deceased compared with that of his three sons. It was error to exclude evidence of what deceased was doing or trying to do at the time of the killing. The court erred in striking out offered testimony with reference to whether defendant appeared happy or angry at the time of the killing. (5 Ency. of Evi. 706.) Evidence as to the judgment of other witnesses present at the killing, as to the extent of danger, should have been admitted. (People v. Lilly, 38 Mich. 277; People v. Curtis, supra.) The shorthand notes of a statement of Dewey Mortimore made while in the jail should have been excluded as no foundation for its admission had been laid, and for the further reason that it did not contain all that defendant said at the time with reference to the homicide. It was not a voluntary statement in view of the conditions under which it was taken. (12 Cyc. 478.) The age of defendant was relevant in determining whether the confession was voluntary. The fact that a confession was made while defendant was in custody has a material bearing upon its admissibility. (Bram v. U.S. 168 U.S. 532, 18 S.Ct. 183; Meinaka v. State, 55 Ala. 47; Grant v. State, 55 Ala. 201; Maull v. State, 95 Ala. 1, 11 So. 218; State v. Trusty, 1 Penn. 319, 40 A. 766; Green v. State, 40 Fla. 191, 23 So. 851; State v. Jones, 47 La. Ann. 1, 524, 18 So. 515; State v. Auguste, 50 La. Ann. 488, 23 So. 612; People v. Howes, 81 Mich. 396, 45 N.W. 961; Jones v. State, 58 Miss. 349; State v. Guy, 69 Mo. 430; State v. York, 37 N.H. 175; People v. Mackinder, 61. N. Y. St. 523, 29 N.Y.S. 842; State v. Carson, 36 S.C. 524, 15 S.E. 588; Vrosse v. State, 11 Tex.App. 364; People v. McMahon, 15 N.Y. 384; Gilder v. State, 35 Tex.Crim.App. 360, 33 S.W. 867; State v. Jones, 47 La. Ann. 1, 524, 18 So. 515; Conoly v. State, 2 Tex.App. 412; Austin v. State, 15 Tex.App. 388; Wren v. State, 13 S.W. 865.) The testimony of witness, Jackson, as to his personal knowledge of defendant was incompetent to show reputation. (3 Ency. of Evi. 44; 5 Am. & Eng. Ency. of Law 881.) It was error to exclude defendant's cross-examination of the witness, Jackson, touching his knowledge of the reputation of deceased. (Jackson v. State, 78 Ala. 471; People v. Mayes, 113 Colo. 618; Carthaus v. State, 78 Wis. 560; Abernethy v. Com., 101 Pa. St. 322; Howard v. State, 39 Tex. Crim. App. 494.) A purported confession was erroneously admitted in rebuttal. The prosecuting attorney was guilty of misconduct in commenting upon the fact that the defendant did not take the stand in his own behalf. (Section 6210, Wyo. Comp. Stats. 1910; State v. Graham, et al., 62 Ia. 110; State v. Balch, 31 Kans. 467; Comm. v. Scott, 123 Mass. 239; People v. Doyle, 65 S.Ct. Reps. 58 Hun, 536; Hunt v. State, 28 Texas Court of Appeals, 149; Brazell v. State, 33 Texas Criminal Report, 334; State v. Brownfield, 15 Mo.App. 593; Dauson v. State, 24 S.W. 414; State v. Camerson, 40 Vt. 565; State v. Moxley, 102 Mo. 392; State v. Holmes, 65 Minn. 236; State v. Ryan, 70 Iowa 156; McDonald v. People, 126 Ill. 154; Showalter v. State, 84 Ind. 564; City v. Myers, 34 Kans. 501; State v. Martin, 74 Mo. 549; Hirom Price v. Commonwealth, 77 Va. 395; Wilson v. U. S. 149, U.S. 65; People v. McGungill, 41 Cal. 431; Eubanks v. State, 7 Southern 462; State v. Graves, 95 Mo. 510; Davis v. State, 138 Ind. 15; State v. Baldoser, 55 Iowa 55.) It was error to refuse a requested instruction directing that consideration be given the youth of defendant. (People's Bargett, 99 Mich. 336, 58 N.W. 328.) The court erroneously refused to give defendant's requested instruction No. 6, which was in substance and effect that defendant was the best judge of what measures were necessary to defend himself against the attack. (Kent v. Cole, 84 Mich. 579.)

D. A. Preston, Attorney General, for the State.

Proof of specific acts prior to the homicide are not admissible on a question of self-defense. (State v. Jefferson, 43 La. Ann. 995, 997, 998; State v. Elkins, 63 Mo 159.) The general character of the deceased for violence may be shown, but not specific acts committed against other people. (Nichols v. People, 23 Hun (N. Y.) 165; Garner v. State (Fla.) 29 A. S. R. 232; Dupree v. State (Ala.), 73 Am. Dec. 422; Connell v. State (Tex.), 75 S.W. 512.) The exclusion of offered evidence of threats by defendant to kill his wife was not prejudicial, as threats made against a third party are not admissible. There were in the room at the time of the homicide three full grown men and a seventeen year old boy, which negatives the idea that defendant was honestly impressed with fear that his brother was in danger of death or great bodily harm from deceased; there is no proof that deceased was armed or attempting to use a weapon. The evidence shows that defendant did not wait to see whether his brother was in danger or not; he shot immediately. A hired man, Smith, evidently considered the fight of no consequence; the treatment of Mrs. Mortimore immediately preceding the killing is inadmissible to show decedent's state of mind, or as a part of the res gestae. (Connell v. State, 45 Tex. Cr. Rep. 142; Thomas v. People, 67 N.Y. 218, at 222-223; Thornton v. State, 107 Ga. 683; Andrews v. State (Ga.) 43 S.E. 852.) It was proper to exclude answers to questions relating to the comparative strength of deceased and his three sons. Opinion evidence is not admissible where direct evidence is obtainable. (Stephenson v. State, 110 Ind. 358, 363.) The opinion of a bystander as to the danger of a person attacked, is not competent. (State v. Rhoades, 29 O. S. 171.) A person cannot give his opinion as to the mental condition of a person; he may state facts, and the jury can then decide. (Ames v. Snider, 69 Ill. 376.) The confession of defendant was admitted after a foundation therefor had been laid by the State and the question as to the voluntary character of the confession was not disputed by defendant. No promise, duress or threats were used. (Ford v. State, 34 Ark. 650-656; State...