Murdica v. State

• Citation: 22 Wyo. 196,137 P. 574
• Decision Date: 10 January 1914
• Docket Number: 744
• Parties: MURDICA v. STATE
• Court: Wyoming Supreme Court

137 P. 574

22 Wyo. 196

MURDICA v. STATE

No. 744

Supreme Court of Wyoming

January 10, 1914

ERROR to the District Court, Weston County; HON. DAVID H. CRAIG Judge.

Vincenzo Murdica was charged with having killed and murdered one John Giachino. He pleaded not guilty and filed an affidavit for change of judge, and subsequently an affidavit for change of venue. The District Judge, against whom the affidavit for change of judge was directed, heard and determined the motion for change of venue adversely to defendant, over his objection, and to which ruling the defendant excepted. Thereafter upon a trial of the case, the defendant was convicted, and he brought error. The other material facts are stated in the opinion.

Reversed.

Enterline & LaFleiche, for plaintiff in error.

The refusal of the Judge of the District, after the affidavit of prejudice had been filed, to call in another District Judge to hear and determine the motion for a change of venue was a fatal and prejudicial error. (Huhn v. Quinn, (Wyo.) 128 P. 514; Buchanan v. State, (Okl.) 101 P. 295; Dodd v. State, (Okl.) 115 P. 632; Salm v. State (Ala.) 8 So. 66; State ex rel v. Dist. Judge, (La.) 3 So. 91; Frevert v. State, (Nev.) 11 P. 273; State ex rel v. Sachs, (Wash.) 29 P. 446; Lincoln v. Terr. (Okl.) 58 P. 730; Gordon v Gonor et al., (Ida.) 51 P. 747; State v. Finder, (S D.) 81 N.W. 959; State v. Kent, (N. D.) 62 N.W. 631, 27 L. R. A. 636; State v. Palmer, 4 S.D. 543, 57 N.W. 490). By the motion for change of venue the defendant challenged the qualifications of the men eligible as jurors in the County of Weston to sit as fair and impartial jurors in the trial of the defendant, and clearly the District Judge who had been disqualified, by reason of his bias and prejudice, to try the defendant was thereby disqualified to determine whether or not the defendant could receive a fair trial in the county.

It was error to refuse the instruction requested by defendant to the effect that greater care should be exercised in considering the testimony of persons employed to find evidence against the accused. (State v. Shrew, (Kan.) 57 P. 137; Sandage v. State, (Neb.) 85 N.W. 35; People v. Rice, (Mich.) 61 N.W. 540; Rivers v. State, (Ala.) 12 So. 434; State v. Snyder, (Kan.) 57 P. 135; Frudie v. State, (Neb.) 92 N.W. 320). The instruction which was given by the court in place of the one requested by defendant on this subject does not cure the error, for that instruction charged the jury in effect to consider the testimony of the witnesses referred to as though given by a disinterested and unbiased witness. While we recognize the rule that an appellate court will not disturb a finding on a question of fact where there is substantial conflict in the evidence, we think this case presents the situation of a verdict without any evidence to support it, and that a careful scrutiny of the evidence will disclose that a grave injustice has been done by the verdict convicting the defendant. The rule that ought to govern in the consideration of this evidence is well stated in State v. Suitor, (Mont.) 114 P. 112, to which case attention is especially directed with reference to a conviction of murder in the first degree upon circumstantial evidence like that in the case at bar. Other cases fairly in point upon the evidence may be cited as follows: Brooks v. State, (Tex.) 120 S.W. 878; Nash v. State, (Okl.) 126 P. 260; Hall v. Comm, (Ky.) 147 S.W. 764; Cummings v. State, 110 Ga. 293, 35 S.E. 117; Patton v. State, 43 S.E. 533; McDaniel v. State, 53 Ga. 256; Shannon v. State, 57 Ga. 482; Ware v. State, 96 Ga. 349, 23 S.E. 410; State v. Gamber, (Wash.) 124 P. 210; Kemp v. State, (Ga.App.) 68 S.E. 558; Fain v. Atlanta, (Ga.App.) 68 S.E. 619.

The trial court unreasonably and improperly restricted counsel for defendant in cross-examination of the two witnesses who had been hired as eavesdroppers. Counsel should have been permitted to interrogate those witnesses at great length, as to every circumstance connected with their alleged visits to the jail where the defendant was imprisoned, so as to ascertain exactly what each had written in his book, and how much of it each could remember without the memoranda, in order to test their credibility. (State v. Carroll, (Ia.) 51 N.W. 1159).

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

In Huhn v. Quinn, 128 P. 514, this court was called upon to construe the statute as to change of judge upon facts differing materially from those in the case at bar. But it was held in that case that after a motion and affidavit for change of judge, the judge against whom the same is filed has no further jurisdiction in the case except for the purpose of granting the motion for change of judge. And under the ruling in that case the action of the District Judge in hearing and determining the subsequent motion for change of venue was a nullity. It being conceded, then, that in determining said motion Judge Parmelee was without authority and acted beyond his jurisdiction, what was the effect of his so acting? On behalf of the State it is contended that the motion for change of venue was not legally disposed of when Judge Craig was called in to try the case; and that said motion was on file and should have been called to his attention. However, the motion was never brought to his attention and it should be regarded as having been abandoned. And this view is strengthened by the fact that the defendant went to trial without objection and consented to the selection of the jury from persons residing out of the five-mile limit. The general rule is that a motion not called up or brought to the attention of the court is waived. (28 Cyc. p. 6; Prall v. Hunt, 41 Ill.App. 140; Wallace v. Lewis, 9 Mont. 399; Morris v. State, 65 S.W. 531; People v. Plummer, 9 Cal. 299; Frevert v. Swift, 11 P. 273; People v. Goldenson, 76 Cal. 328; People v. Fredericks, 106 Cal. 554). The defendant had ample time within which to present his motion for change of venue to Judge Craig, and not having done so he cannot now complain. A defendant in a criminal case cannot on appeal insist that error was committed as to a matter upon which he has kept quiet when he might have been heard thereon at the trial. (Parker v. Palmer, 22 Ill. 489; Crawford v. State, 50 Ga. 249; Bush v. State, 47 Neb. 642; State v. Meader, 47 Vt. 78; Porteet v. People, 70 Ill. 171; State v. Harper, 28 La. Ann. 35). While a defendant may be entitled to an instruction as to an informer's testimony, if timely and properly requested, he is not entitled to a requested instruction that states the law only in part, or goes beyond the law on the subject. The instruction requested in this case on the subject was clearly erroneous and properly refused.

Enterline & LaFleiche, for plaintiff in error, in reply.

The cases cited by the Attorney General in support of the proposition that the action of the District Judge against whom an affidavit of prejudice had been filed in determining the subsequent motion for change of venue was not prejudicial, and that the said motion was waived by not calling the same to Judge Craig's attention are each clearly distinguishable upon the facts from the case at bar. The defendant in his motion for new trial assigned as ground therefor the order made in denying the change of judge for the hearing of the motion for change of venue and the order made in hearing and overruling that motion. That was the proper and only time for the defendant to present the question again to the trial court. A judge of co-ordinate jurisdiction has no power to review an order or decision of another judge, based upon the same facts, but the remedy is by appeal. (Marvin v. Weider, 31 Neb. 774, 48 N.W. 825; Platt v. R. R. Co., 170 N.Y. 451, 63 N.E. 532; Chamberlain v. Dunville, 21 N.Y.S. 827; Bank v. Jenning, 4 N.D. 228, 59 N.W. 1050; Warren v. Simon, 16 S.C. 362; State v. Price, 35 S.C. 273, 14 S.E. 490; Shreve v. Cheesman, 69 F. 785; Claflin v. Furtick, 119 F. 429; Plattner Imp. Co. v. Int. Har. Co., 133 F. 376).

SCOTT, CHIEF JUSTICE. BEARD, J., concurs. POTTER, J., did not sit.

OPINION

SCOTT, CHIEF JUSTICE.

On September 7, 1912, an information was filed in the District Court of Weston County charging the defendant in the language of the statute with having on April 30, 1912, in said County and State wilfully, unlawfully, feloniously and with premeditated malice killed and murdered one John Giachino and to this information the plaintiff in error, defendant there, was on September 9, 1912, duly arraigned and entered his plea of not guilty. On the day following, to-wit: September 10, 1912, the defendant filed his motion supported by his affidavit for a change of judge pursuant to the provisions of Section 5147, Comp. Stat. 1910. Upon the filing of this motion the court's attention was called to the same whereupon the court announced that the matter would be taken under advisement. On the same day and before a jury had been impaneled in said cause (Section 5152 id.) the defendant also filed in the office of the Clerk of said court a motion for a change of venue supported by affidavit under the provisions of said Section 5147. The Prosecuting Attorney filed his affidavit traversing the affidavit of the defendant, and on the same day, to-wit: September 10, 1912, the defendant requested the court to call some other judge to hear and act upon the motion for a change of venue from the County of Weston. The bill of exceptions recites: "And thereupon, the said cause having already been delayed two days beyond the date set for the trial thereof, and the jury having in the meantime been kept in waiting, at the request and for the convenience of the defendant to allow him and his counsel time to prepare and present their motion for a change of...