Paseo v. State

• Decision Date: 06 October 1911
• Docket Number: 657
• Citation: 117 P. 862,19 Wyo. 344
• Parties: PASEO v. STATE
• Court: Wyoming Supreme Court

117 P. 862

19 Wyo. 344

PASEO v. STATE

No. 657

Supreme Court of Wyoming

October 6, 1911

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

The material facts are stated in the opinion.

Affirmed.

William C. Snow, (Thos. M. Hyde, of counsel) for plaintiff in error.

The verdict of the jury is not sustained by evidence and is contrary to law. (1) Because there is no evidence of premeditation. (2) Because there is not sufficient evidence to sustain a verdict of guilty in any degree. The defendant and the deceased never met until the afternoon when the defendant went into his saloon, so that there could have been nothing personal to influence the defendant prior to his entering the saloon. The theory of a hold-up is untenable because, in the first place, Paseo seems to have been the only one in the party who carried a weapon. In the second place there was no more inopportune time to hold up the saloon during the whole twelve hours preceding than when the violence did occur, for there were then eight men in the saloon, and two of these (Paseo and Roblis) were foreigners while the others were companions and residents, and Paseo only seems to have been armed. A third reason which precludes such theory is, that at the time in question, there was very little money in the cash register, and that fact would have been known to the defendant, since the cash register had been opened in view of the occupants of the saloon. A fourth reason is the circumstance that there appears to have been no preparation for an escape. When looking for a motive which could have actuated Paseo, aside from a desire to save his own life, none can be found. If his act was not done in self-defense, then it occurred in the heat of passion provoked by the belief that he was being robbed at cards. The testimony of the state, however, is to the effect that he was not being cheated and that he had made no complaint. If that evidence is true it is difficult to understand the cause of the trouble.

Premeditation presupposes a motive. If there was no motive, there could be no premeditation. Premeditation or deliberation are not presumed from the mere fact of an intentional killing, or the use of a deadly weapon. (21 Ency. L. (2nd Ed.) 163; State v. Frederick, 4 Wash. 204; Whitford v. Comm., (Va.) 18 Am. Dec. 784.) There is no evidence of premeditation or deliberation up to the time of the killing. Upon the evidence it is apparent that Paseo believed that he had been insulted and injured, whether the deceased struck the first blow or not. His resentment had greatly increased under successive provocations. When the defendant discovered for the third time that the deceased was cheating him, he was not in such a condition as would justify a verdict that he had killed the deceased upon premeditation or deliberation. Was there premeditation between the striking and the shooting? They occurred in such immediate sequence that they must have been caused by one passionate emotion. (21 Ency. L. (2nd Ed) 176.) We contend that premeditation subsequent to the striking of the blow cannot be reasonably inferred from the evidence. There is not sufficient evidence to sustain the conviction of either murder or manslaughter. The evidence of the state as to the circumstances is contradictory, and on the most vital points depends upon the testimony of one witness which is unsupported in several particulars.

The court erred in admitting in evidence the testimony of witnesses as to where the shots were fired from. Expert testimony as to the relative positions of the parties at the time of the shooting, as indicated by the direction of the bullet marks, is not competent. (People v. Smith, (Cal.) 29 P. 64; People v. Millner, 122 Cal. 171; People v. Farley, 124 Cal. 594.) The 4th instruction which attempts to define premeditated malice is confusing. The 17th instruction was error and prejudiced the defendant, because the jury were thereby charged that if the defendant was at fault, he was estopped from setting up a plea of self-defense. It is not every fault that deprives one of the right of self-defense. (25 Ency. L. 268, 270.) The defendant was entitled to a new trial on the ground of newly discovered evidence.

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

The only theory of the defense was that the accused killed the deceased in self-defense, and the only evidence introduced to sustain that theory was that of the accused and his companion who escaped with him after the killing. The testimony of the witnesses for the state is all consistent and not in any way controverted by the evidence of the defendant and his friend, because that portion of their testimony which is material upon the theory of self-defense is proven by the state's witnesses to be untrue, as well as by the other facts and circumstances in the case. If there was an attack by the deceased after the assault upon him by the defendant the latter could not avail himself of the claim of self-defense. (Storey v. State, 99 Ind. 413; Keller v. State, 36 Tex. Cr. 498; Adams v. People, 47 Ill. 367; Henry v. People, 198 Ill. 162; Jacobs v. State, 146 Ala. 103; State v. Tooker, 138 Mo. 438; Robinson v. Terr., (Okl.) 88 P. 451.) The intent or purpose of an act may be inferred from its natural and necessary consequences, so that when an act is done with a deadly weapon, the intent to purposely kill may be inferred. (21 Cyc. 875; Wharton on Homicide, Sec. 150; Walker v. State, 136 Ind. 663.) There is nothing in the evidence to rebut this inference, but on the contrary the evidence conclusively proves that there was an intent to kill. When the killing is done with a deadly weapon malice is presumed, especially where there are mitigating circumstances. (Harris v. State, 155 Ind. 265; Cook v. Terr., 3 Wyo. 110; 9 Curr. L. 1638.) While there is no presumption of premeditation, the necessary premeditation may be inferred from the facts and circumstances of the killing. (Hicks v. State, 25 Fla. 535; State v. Walker, 98 Mo. 95; People v. Schmidt, 168 N.Y. 568.) Time is not an essence of premeditation. A crime conceived in anger but executed coolly and with deliberation is regarded as premeditated, and where passion intervenes after premeditation it will not sustain a defense that the crime was committed in the heat of anger. From the fact that the weapon was carried and the shots were fired into the body of the deceased, it is proper to infer that the killing was intended although there was no appreciable time between the formation of the design and its execution. (9 Curr. L. 1639; Wharton's Cr. L. (8th Ed.) 117; People v. Schmidt, supra; Cook v. Terr., supra; Fahnstock v. State, 23 Ind. 231; Koerner v. State, 98 Ind. 7; Herrin v. State, 33 Tex. 639; Burns v. State, 66 Ind. 428; People v. Yee Foo, (Cal.) 89 P. 450.) In the light of these authorities the 4th instruction contained a complete and proper definition of murder in the first degree under our statute. The 17th instruction is a concise statement of the law upon the subject therein referred to. The whole trouble was the fault of the accused, and after he had started it, even if it were true that the deceased advanced towards him, he had ample time and means for retreat. (21 Cyc. 800-820.) It is not material whether the defendant had been a victim of sharp practice in the gambling game or not. That fact would not warrant even a breach of the peace.

Even if the testimony of the witnesses who gave their opinions as to the direction from which the shots were fired was incompetent, it cannot be held to have been prejudicial, when all the other evidence is taken into consideration. The physical facts are uncontradicted, and they show beyond a doubt that the shots could not have been fired from the point contended for by the defendant. The result of the trial could not have been any different had the so-called newly discovered evidence been produced.

BEARD, CHIEF JUSTICE. SCOTT and POTTER, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

The plaintiff in error, Lorenzo Paseo, was convicted in the district court of Big Horn county of the crime of murder in the first degree for the killing of one Charles Cole, and was sentenced to be hanged. From that judgment he brings the case here on error.

The case has been submitted in this court on briefs without oral argument, and the greater part of the brief of counsel for plaintiff in error is devoted to a discussion of the evidence; it being urged that the evidence is insufficient to support the verdict and judgment. The defense was self-defense. From the evidence it appears that the...