Opie v. State
| Decision Date | 03 March 1964 |
| Docket Number | No. 3167,3167 |
| Citation | 389 P.2d 684 |
| Parties | Jeramiah OPIE, also known as Jerry Opie, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Lawrence A. Marty, Green River, J. Reuel Armstrong and Kenneth W. Keldsen, Rawlins, for appellant.
Dean W. Borthwick, Deputy Atty. Gen., Cheyenne, and Joe R. Wilmetti, Former County and Pros. Atty. of Sweetwater County, Rock Springs, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
An information charged Jeramiah Opie, also known as Jerry Opie, did unlawfully, purposely, and with premeditated malice kill and murder his wife, Iris Opie. Defendant, tried by a jury, was found guilty of murder in the first degree, without capital punishment, and the court sentenced Opie to life imprisonment. He now appeals, claiming reversible error for: (1) failure to direct a verdict of acquittal at the close of the State's case and after both he and the State rested, because the evidence did not show beyond a reasonable doubt that deceased came to her death by means inconsistent with defendant's uncontradicted testimony; (2) lack of competent evidence of premeditation and motive; (3) failure to dismiss charge of second degree murder as there was a lack of evidence of purpose, malice, or motive; (4) failure to dismiss charge of manslaughter as there was a lack of evidence of any quarrel or sudden heat of passion or criminal negligence or unlawful act; (5) receiving in evidence a gunbelt and holsters, a 44 calibre magnum hand-gun, and five gunpowder-pattern test sheets of blotting paper, without foundation being laid; (6) giving Instruction No. 8, because it stated, 'absolute certainty in establishment of any fact is rarely attainable and never required in courts of justice'; (7) giving Instruction No. 30, as it inferred jury should compromise its verdict; (8) refusing Instruction A, which said evidence of defendant's threats toward one other than deceased should not be considered; (9) refusing Instruction B, which admonished jury to view with caution testimony as to oral admission or confession of defendant; (10) permitting sheriff's testimony as to how defendant's father obtained the 44 calibre hand-gun; (11) overruling defendant's objection to State's attempt to impeach and solicit testimony from a witness and placing answers in the witness' mouth; (12) permitting testimony of threats against witness; and (13) because information did not allege facts to prove involuntary manslaughter, unlawful act, culpable neglect, or criminal carelessness.
In considering appellant's first point, it should be borne in mind that verdicts of acquittal are only directed when in the court's opinion there is no substantial evidence to sustain the material allegations of the information. It is not the province of the court to determine 'beyond a reasonable doubt' any disputed fact.
At the close of the State's case, the evidence showed that sometime after 4 o'clock the morning of March 24, 1962, Iris Opie, defendant's wife, was found dead in the living room of an apartment occupied by the Opies, her lifeless body reclining in an overstuffed armchair with her legs and feet resting upon a large hassock or ottoman in front of the chair; that she was shot with defendant's 44 calibre magnum handgun revolver or pistol, the bullet striking Iris somewhat below her right eye, going at first straight back through her head and found in her matted hair at a point where he head rested against the top portion of the chair's back. The pistol was found to contain a spent cartridge under the hammer, then there was an empty chamber, and then a live round, counterclockwise.
The deceased's face showed no powder smoke or smudging which would be present if the muzzle of the gun had been within 18 inches of her face when the fatal shot was fired, but deceased's face did have upon it small particles of unburned powder which indicated the muzzle of the weapon was within a distance of approximately 3 1/2 feet from the victim's face when it was fired. After the body of deceased was found, defendant came into the room and started toward her, when an officer grabbed defendant by the arm and told defendant to sit down and take it easy. The defendant then said, 'Where I'm going I won't have to relax,' and when an officer was taking defendant from jail, defendant said, When defendant was not permitted to stop at the mortuary where his wife's body was, defendant said, 'Don't a condemned man have any rights at all,' and asked how soon after trial the execution would be, and said 'It's already cut and dried.' When an officer approached defendant to arrest him, defendant said, About 1 to 2 o'clock in the morning, before the shooting, defendant asked a witness if he ever felt like killing anyone--how the witness felt when he and his wife were splitting up and if the witness was mad enough to kill his wife, and defendant said that he would like to try his gun on something--that he was going to kill someone that night, and defendant asked if the witness had ever caught the witness' wife 'shacking' with another man, and asked if witness felt like killing the witness' wife when he caught her (shacking up with another man), and that he, the defendant, was going to kill someone before the night was over. To this evidence there was added testimony that defendant had become extremely angry at an acquaintance of deceased, went to his home and said, 'Come on, let's go.' 'I'm going to kick your head in'; that on March 23, 1962, this acquaintance of deceased had delivered some cards to the apartment building in which the Opies lived, and later defendant told the acquaintance someone had informed defendant the acquaintance had been 'down there.' Finally, the eight-year-old son of the deceased testified that the night his mother died he had awakened and heard his mother crying, heard defendant say, 'Shall I pull the trigger now?' and heard his mother say, 'Go ahead'; that he heard the 'lever' go back and then he went to sleep. There is absent from the record any testimony or evidence to show how much time elapsed from when the boy heard this conversation and heard the lever go back, until the shot was fired, but his testimony was that he went to sleep and did not hear the shot which may have indicated to the jury that the shot was fired some time later. Photographs showing the deceased in the position she was found, the wound upon her face, the place where the spent bullet was found, the burnt-powder peppering marks upon her face, test sheets showing effects of shots fired from defendant's gun, and the gun itself were also in evidence.
This brief resume of the evidence most favorable to the State's case was ample, substantial, and sufficient when accompanied by fair and just inferences, reasonably drawn, to be submitted to the jury and to deny appellant's motion made at the close of the State's case for a directed verdict of acquittal.
Additional evidence supplied upon presentation of defendant's case showed that about 5 o'clock the morning of March 24, 1962, defendant was at the home of his parents with the magnum pistol in his hand; that defendant put the gun down, his father picked it up, put the gun on the floor of the father's car, and later turned it over to the sheriff, and defendant said something about Iris being hurt. The father then went to defendant's apartment, found the door open, entered, and saw Iris reclining in the chair as though asleep. He felt her hand, phoned the sheriff, left the apartment, and locked the door. Later the father returned to defendant's apartment with his wife, found police officers and a doctor there; the officers took pictures, and the father gave the sheriff the gun. Defendant's father testified, 'Nobody touched anything until officers arrived.'
While the jury was not required to accept defendant's testimony as to what happened, in order to portray the conflicts shown by the State's evidence with defendant's version of what had occurred, the defendant's story will be briefly stated. According to defendant, the night of the shooting he had a large number of drinks and after 4 a. m., went home. When he entered his apartment he found his wife sitting in the chair with the ottoman in front of it, and she said 'Jerry,' 'If you don't quit your running around,' and again, "If I didn't quit my running around and drinking" that she was going to shoot herself; that she 'came up with this gun of mine' with her hands on the grip and started to raise the gun up to her forehead; that defendant grabbed the gun with his right hand around the chamber, then grabbed the gun with his left hand 'like this'; then deceased grabbed the gun on the end of the barrel with her...
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