Nicholson v. State

• Decision Date: 07 February 1910
• Docket Number: 601
• Citation: 18 Wyo. 298,106 P. 929
• Parties: NICHOLSON v. STATE
• Court: Wyoming Supreme Court

106 P. 929

18 Wyo. 298

NICHOLSON v. STATE

No. 601

Supreme Court of Wyoming

February 7, 1910

ERROR to the District Court, Weston County; HON. CARROLL H PARMELEE, Judge.

Leonard B. Nicholson was tried upon an information charging murder in the first degree, and convicted of manslaughter. His motion for new trial was overruled, and he prosecuted error. The material facts are stated in the opinion.

Reversed and remanded.

M. B Camplin, for plaintiff in error.

There was no jurisdiction to try the defendant on the information filed September 5, 1908, for the reason that he had not been given a preliminary examination, had not waived it, and objected to trial upon that information without such examination. The first information charging the offense upon which defendant was tried having been filed at the preceding term constituted a preferring of the charge, and such charge having been preferred more than thirty days immediately preceding the first day of the September term it was not competent to try him upon the second information without a preliminary examination. (Rev. Stat. 1899, Sec. 5273; Clark's Cr. Proc. 81.) The statute permits the filing of an information without a preliminary examination where the charge is made against any person within thirty days immediately preceding the first day of a regular term of court, and it is understood that the thirty days referred to in the statute are to be computed from the date of preferring the charge, not from the date of the commission of the offense. The court takes judicial notice of the terms of the district courts. (Hollibaugh v. Hehn, 13 Wyo. 269; Ackerman v. State, 7 Wyo. 509.) There being no contrary showing in the record, the continuance at the preceding term under the first information must be assumed to have been caused upon the application of the prosecution. (Rev. Stat. 1899, Sec. 5273; Rude v. People, 99 P 317.) That which the law makes essential in proceedings in deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his failure when in custody to object to unauthorized methods. (State v. Walton, 91 P. 495.) The defendant was forced to trial over his protest under the second information, which had been filed without any authority of law. (Keefe v. Dist. Court, 16 Wyo. 381; Hollibaugh v. Hehn, supra; Clark's Cr. Proc. 81; Ex parte Baker, 25 P. 966; Walker v. People, 45 P. 388; State v Farris, 51 P. 772.) The defendant's plea in abatement should therefore have been sustained.

It was error to deny the motion of the defendant upon the conclusion of the testimony of the prosecution to direct a verdict of acquittal because of the insufficiency of the evidence to convict. The evidence failed to make out a prima facie case, as it showed justification for the killing. (Hughes' Cr. Proc., Sec. 82; Blashfield on Inst., p. 13 and note; Boswell v. Bank, 16 Wyo. 200.) There being no evidence that the killing was manslaughter, all the instructions given concerning that crime were erroneous and highly prejudicial to the defendant. Such instructions gave the jury an opportunity to return a compromise verdict unwarranted by the evidence. Although the charge included such crime, instructions concerning it were not proper in the absence of evidence sufficient to convict of such crime. The same is true with reference to the instruction concerning murder in the second degree. The various degrees of murder were not correctly defined in the instructions. It is not possible for one purposely and with premeditated malice to kill another while he is engaged in protecting his own life. Argumentative instructions are improper. (People v. Frank, 83 P. 578.)

The defendant is entitled to a new trial on the ground alone of unlawful separation of the jury. If there is any doubt about the misconduct charged in the motion it should be resolved in favor of the defendant. (Clark's Cr. Proc., 170-180; Hughes' Cr. Proc., Secs. 2970-2974; State v. Strodemeir, 83 P. 22; State v. West, 81 P. 107; State v. Sly, 80 P. 1125; U. S. v. Swan, 34 P. 533; State v. Place, 32 P. 736; People v. Thornton, 16 P. 244; State v. Bailey, 3 P. 769; Com. v. McCaul, 1 Va. Cas. 271; State v. Foster, 45 La. Ann. 1176; McLain v. State, 10 Yerg. (Tenn.) 241; Maher v. State, 3 Minn. 444; McLean v. State, 8 Mo. 153.)

The failure of the prosecution to produce a witness for whom it had caused a subpoena to issue, the presence of which witness was also desired by the defendant, constituted surprise which ordinary prudence on the part of defendant could not have guarded against, as shown by the affidavits in support of the motion for new trial, and on that ground a new trial should have been granted. The verdict is not sustained by sufficient evidence and is contrary to law. The evidence shows that the deceased was the aggressor, and that the defendant acted in self defense. The verdict is uncertain in not specifying whether it was for voluntary or involuntary manslaughter. On the ground of the insufficiency of the evidence a new trial should be awarded. (Bryant v. State, 7 Wyo. 311; Cornish v. Territory, 3 Wyo. 96; State v. Pressler, 16 Wyo. 214; State v. McCarthy, 92 P. 521; People v. Frank, 83 P. 579; State v. Marselle, 86 P. 587; Terr. v. Hendricks, 84 P. 523; State v. Mcphail, 81 P. 683; People v. Ward, 79 P. 448; People v. Simonson, 40 P. 440.)

The statement of the prosecution in opening the case to the jury that the State would show by a physician that the fatal wound could not have been received in the manner claimed by the defendant was improper, for that was a matter for the jury to determine with reference to the relative positions of the defendant and deceased at the time of the killing. Upon that subject the opinion of experts would be incompetent. (People v. State, 29 P. 64; State v. Martin, 83 P. 849.)

W. E. Mullen, Attorney General, and James O. Marts, County and Prosecuting Attorney, for the State.

The defendant waived the objection that he had not been given a preliminary hearing by entering a plea of not guilty to the first information. (McGinniss v. State, 16 Wyo. 72; Koppala v. State, 15 Wyo. 416.) Moreover, the information upon which the defendant was tried having been filed within thirty days preceding a regular term of court, a preliminary examination was not necessary. (Rev. Stat. 1899, Sec. 5273; Ackerman v. State, 7 Wyo. 509; Hollibaugh v. Hehn, 13 Wyo. 275; Boulter v. State, 5 Wyo. 36; McGinniss v. State, 16 Wyo. 75.) The situation was practically the same as if the defendant had been tried upon the first information.

No error was committed in denying defendant's motion for a directed verdict at the conclusion of the evidence produced by the prosecution. Where there is evidence tending to prove plaintiff's case, it is error to direct a verdict for the defendant. (Mau v. Stoner, 10 Wyo. 125.) The instructions with reference to the lower degrees of the crime of murder were proper. An examination of the evidence shows a conflict both as to theory and circumstances leading up to the killing. The evidence shows that there had been a quarrel between the defendant and the deceased prior to the date of the killing, and there were other circumstances shown by the testimony wholly inconsistent with the statement of the defendant that the killing was in self defense, which were proper to be considered by the jury in arriving at the degree of guilt. It does not appear that the defendant was prejudiced by the instructions upon the lesser degrees, and even if they had been irrelevant, there would be no error. The instructions were not harmful. (Arnold v. State, 5 Wyo. 439.) Such instructions appear to fairly state the law. Defendant having been convicted of manslaughter only he cannot complain of the form of the instructions given on murder in the first or second degree unless it clearly appears that they were in some manner prejudicial. (Ross v. State, 8 Wyo. 351.) It is impossible to rehearse in each instruction every principle of law involved in the case, and it was therefore proper to direct the jury to consider all of the instructions together. (Downing v. State, 11 Wyo. 86; Dalzell v. State, 7 Wyo. 450.)

The affidavits with reference to the alleged misconduct of the jury and the officer having them in charge during the progress of the trial do not show that the rights of the defendant were prejudiced. The jurors were in charge of the bailiff while out of the court room, and the facts shown by the affidavits alleging a separation of the jurors were fully explained in counter-affidavits and therefore present no reasonable ground for reversal. A separation of one or more jurors from the others and their conversing with outside parties relative to subjects not connected with the case they being in the charge and the immediate presence of the proper officers, and of each other, is not such a separation as prevents a fair trial. (Cook v. Terr., 3 Wyo. 110.) There was no surprise such as to entitle the defendant to a new trial arising out of the fact that the prosecution failed to produce one of the witnesses for whom it had caused a subpoena to issue. Ordinary prudence would seem to require that a defendant should have subpoenas issued for all witnesses deemed to be material to his defense. If the prosecution fails to produce a sufficient number of witnesses to enable a defendant to make his defense, it is not a matter which a defendant may complain of on the ground of surprise. It is submitted that the evidence is sufficient to authorize the verdict which was returned. The weight of the evidence is a question for the jury, and it is not necessary that it be conclusive or satisfactory in order to be competent. (Keffer v. State, 12 Wyo. 49.) A verdict will not be...