Ohama v. State

• Decision Date: 23 December 1916
• Docket Number: 879
• Citation: 161 P. 558,24 Wyo. 513
• Parties: OHAMA v. STATE
• Court: Wyoming Supreme Court

161 P. 558

24 Wyo. 513

OHAMA v. STATE

No. 879

Supreme Court of Wyoming

December 23, 1916

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

T Ohama was convicted of murder in the first degree and brings error. The material facts are stated in the opinion.

Reversed.

McMicken & Blydenburgh, for plaintiff in error.

It is true that no exceptions were taken by counsel for defendant at the trial and it would appear from the rules that have been observed in this and other appellate courts, that there is nothing before the court for review. Present counsel for defendant had nothing to do with the trial; defendant was convicted, sentenced and is now awaiting execution; the record discloses that by reason of the neglect or ignorance of counsel to appear for plaintiff in error, he was deprived of a fair trial; the shirt worn by the defendant at the time of the killing was cut with a knife, but the shirt was not produced in evidence. He testified that deceased assaulted him with a knife and that he shot in self-defense. Cases have been reversed where it was shown that the incompetency of counsel prevented a fair trial. (12 Cyc. 708; Fambles v State (Ga.), 25 S.E. 365; State v. Benge (Ia), 61 Ia. 658, 17 N.W. 100; State v. Williams (Del.), 18 A. 949.) The court erred in giving instruction No. 6 which contained an incorrect definition of premeditated malice. (State v. Phillips, 118 Ia. 660, 92 N.W. 876; People v. Malone, 91 N.Y. 211; People v. Decker, 157 N.Y. 186, 51 N.E. 1018; Leighton v. People, 88 N.Y. 117; People v. Beckwith, 103 N.Y. 361, 8 N.E. 662; People v. Conroy, 97 N.Y. 62; People v. Hawkins, 109 N.Y. 408, 17 N.E. 371; People v. Johnson, 139 N.Y. 358, 34 N.E. 920; People v. Constantino, 153 N.Y. 24, 47 N.E. 37; Ross v. State, 8 Wyo. 384; Fahnestock v. State, 23 Ind. 262.) Instruction No. 14 was erroneous in that it was an incorrect statement of the law of justifiable homicide. (State v. Yokum, 11 S.D. 544, 79 N.W. 835; McLellan v. State, 140 Ala. 99, 37 So. 239; Stewart v. State, 137 Ala. 33, 34 So. 818; Mathews v. State, 136 Ala. 47, 33 So. 838; People v. Dollor, 89 Cal. 513, 26 P. 1086; People v. Bruggy, 26 P. 756; Ballard v. State, 31 Flor. 266, 12 So. 865; Sylvester v. State, 35 So. 142; Stevens v. State, 118 Ga. 762, 45 S.E. 619; Strickland v. State, 98 Ga. 284, 25 S.E. 908; Anderson v. State, 117 Ga. 255; 21 Cyc. 1057; 21 Cyc. 1057, Note 2, citing Kennedy v. State, 140 Ala. 1, 37 So. 90; Stoball v. State, 116 Ala. 454, 23 So. 162; Morgan v. Territory, 64 P. 421; Lee v. State, 81 S.W. 385; People v. Glover, 141 Cala. 233, 74 P. 745; People v. Yokum, 118 Cal. 437, 50 P. 686. Nilan v. People (Colo.), 60 P. 485; Palmer v. State, 9 Wyo. 40; State v. Singleton (Kan.) 74 P. 243.) The final paragraph of instruction No. 9 as applied to premeditated malice seems to us erroneous; instruction No. 13 is erroneous in that it did not give defendant the benefit of the rule of self-defense, which applies where there is an honest belief of danger. None of the above instructions were excepted to, but the failure to do so was gross negligence on the part of counsel and the death penalty should not be imposed because of such negligence. The judge who tried the case was not physically competent at the time it was tried; the trial as appears from the record was a mere travesty on justice and the judgment should be reversed.

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

The evidence showed premeditated malice; no affidavits were filed showing newly discovered evidence; incompetence in counsel in the trial of a criminal case has never been advanced in this state as a ground for reversing a judgment; alleged errors not properly called to the attention of the trial court by motion for a new trial will not be considered in this court. It is not the duty of the appellate court to go outside of the record and search for errors; that accused was deprived of a fair trial is alleged for the first time in this court. The shirt worn by accused at the time of the killing did not show any evidence of having been cut in any manner; there were two eye witnesses to the tragedy, and the testimony of each was the same. They testified that deceased did not have a knife or pistol, or any weapon at the time of the killing. The record presents a case of deliberate, vindictive murder; it is clear that a new trial would not change the verdict, and the judgment should be affirmed.

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

OPINION

POTTER, CHIEF JUSTICE.

The plaintiff in error was charged with the crime of murder in the first degree and convicted of that crime by an unqualified verdict and sentenced to suffer death. The case is here on error and is in somewhat the same condition as the Parker and Cirej cases this day decided. It was tried at the same term of court, and the same instructions were given as in those cases defining premeditated malice and explaining the right of the jury to qualify its verdict, if murder in the first degree, by adding thereto, "without capital punishment." No exception was taken to either instruction, or to any other, and they were not mentioned in any way in the motion for new trial. The plaintiff in error, hereinafter referred to as the defendant, is represented here by different counsel than at the trial in the district court and they did not come into the case until after the motion for new trial had been filed and overruled.

It appears that the defendant was arraigned on May 4, 1915, and having informed the court that he was without and unable to secure counsel the court appointed counsel to defend him. And thereupon, he entered a plea of not guilty, the journal entry reciting that he waived his right to the statutory time in which to plead. And the case was set down to be tried at ten o'clock on the following morning. It appears that the trial was commenced on the morning of May 5th and was concluded on that day by the rendition of the verdict finding the defendant guilty of murder in the first degree. No objections appear to have been made or exceptions taken during the trial.

Because of the failure of counsel appointed by the court to apply for time in which to prepare for trial and interpose objections and preserve exceptions so as to entitle the defendant to be heard in this court upon alleged manifest errors under the ordinary rules of appellate procedure, it is contended that the defendant did not have a fair trial, and that the errors are so serious and prejudicial as to justify a reversal of the judgment in the absence of exceptions. And it is argued that the record clearly shows such incompetence or gross neglect of counsel prejudicial to defendant as to furnish sufficient ground for a new trial. Whether the mere neglect or incompetence of assigned counsel, appearing to have prejudiced defendant's rights, would justify a reversal need not be determined. But the fact that defendant's counsel was appointed by the court, and that the trial was allowed, without objection, to proceed without reasonable time for preparation, if such be the case, might be proper to be considered in connection with a showing by the record that no objection was made or exception taken to erroneous and clearly prejudicial instructions defining the crime of which this defendant was convicted, or relating to the right of the jury to qualify their verdict by adding "without capital punishment," in determining whether the failure to so object or except has deprived the defendant of the right to have the errors considered in this court or make such consideration improper.

As explained in the Parker case, the instruction defining premeditated malice, the element distinguishing murder in the first degree from second degree murder was radically and fundamentally erroneous. And in this case,...