People v. Coughlin

• Citation: 13 Utah 58,44 P. 94
• Decision Date: 24 February 1896
• Docket Number: 662
• Court: Supreme Court of Utah
• Parties: PEOPLE OF TERRITORY OF UTAH v. PATRICK COUGHLIN

44 P. 94

13 Utah 58

PEOPLE OF TERRITORY OF UTAH v. PATRICK COUGHLIN

No. 662

Supreme Court of Utah

February 24, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah, Hon. G. W. Bartch, Judge.

Patrick Coughlin was convicted of murder, and appeals.

Affirmed.

H. B Hayes, T. D. Johnson, and W. H. O'Brien, for appellant.

Now for the purpose of showing that the said arresting party had reasonable ground upon which to make an arrest of the defendant and his companion, the prosecution introduced secondary evidence of the contents, or rather a part of the contents, of a certain telegram sent by one Harrington, sheriff of Summit county, to Thomas Stagg. The said Stagg was one of the party with deceased, and was also killed in the same conflict.

From the testimony of the witness, Mrs. Hamilton, it appears that she never made any search for the lost telegram in the only place where he was known to keep such papers, that is, in his vest pockets, and all she knew of search being made in his clothes was hearsay. The admission of this testimony is assigned as error, and we submit that no proper foundation was laid for the introduction of secondary evidence of the contents of the lost instrument.

Hunter v. State, 13 Tex. App. 16; Sager v. State, 11 Tex. App. 110; American U. Tel. Co. v. Daugherty, 89 Ala. 191; State v. Whitney, 38 La. Ann. 579; Johnson v. State, 9 Tex. App. 249; State v. Hopkins, 50 Vt. 316; Chester v. State, 23 Tex. App. 577; Prather v. Wilkins, 68 Tex. 687; Lowe v. Tandy, 70 Tex. 741; State v. Penny, 70 Iowa 190; O'Connell v. State, 10 Tex. App. 567; State v. DeWolf, 8 Conn. 93, S. C. 20 Amer. Dec. 90.

We are of the opinion that Haun v. State, 13 Tex. App. 383, and Jernigan v. State, 81 Ala. 58, are not opposed to the contention made above.

The mother or sister of the witness should herself have been called to testify as to any search made by her. Greenleaf on Ev., vol. 1, p. 558.

Now, if we are right that no proper search had been made, then the evidence was wholly inadmissible. Anglo-Amer. Packing & P. Co. v. Cannon, 31 F. 313.

It was error in the court to refuse to strike out the testimony of this witness, made on the ground that she could not remember the whole of the telegram, for as the court will observe, the description of the horses, which she had forgotten, was on the morning of the alleged attempted arrest a most material factor.

Now, the admission of this incompetent testimony was prejudicial to the defendant, since by it it was attempted to lay a foundation for a reasonable cause for the arrest or attempted arrest, if such was the purpose of the party with deceased.

It is clear that unless the party had a reasonable cause to arrest the defendant, and was acting within the limits of the law in that respect, the killing by the defendant of the deceased, if not justifiable, would have only been manslaughter.

In the progress of the trial the prosecution was allowed to prove the killing of Thomas Stagg. It appears that he was killed shortly after the killing of the deceased, on which the indictment was found, and the tendency of the evidence was that he was killed by the defendant here. The evidence of the killing of Stagg was admitted on the ground that it was part of the res gestae; that it was a part of the res gestae is a matter of grave doubt. People v. Lane, 100 Cal. 379.

But the prosecution went further and introduced evidence of the condition of Stagg's body, the nature and extent of the wounds, and this, too, by witnesses who examined the body long after the killing and long after the defendant had left the scene of action.

In no sense can this evidence be said to be a part of the res gestae, and we respectfully ask on what other ground it can be said to be competent, relevant, or material. Unquestionably, if the defendant had been on trial for the killing of Stagg the evidence would have been competent, relevant, and material, as it was competent, relevant, and material to prove the condition of the body of Dawes, the deceased, for the killing of whom the defendant was indicted. Certainly, the admission of this testimony cannot be considered otherwise than prejudicial. Its tendency was to appeal strongly to the feelings of the jury, and to sway them toward a verdict that they might not otherwise have reached.

The United States Attorney, for the People.

ZANE, C. J. MINER, J., and JOHNSON, District Judge, concur.

OPINION

ZANE, C. J.:

The defendant was convicted of the crime of murder in the first degree, and, on motion for a new trial having been denied, he was sentenced to be executed. From this order and judgment of the court below he has appealed to this court.

The facts upon which the verdict was found, so far as we deem it necessary to state them, are that John M. Harrington, who was sheriff of Summit county, upon being informed on the 12th day of July, 1895, that Patrick Coughlin, the defendant, and one Frederick George, with whom the sheriff was acquainted, had stolen two horses in his county, and that they had stolen berries from a fruit peddler, commenced to search for them; that, being informed on the 26th of the month that they had been seen on the Weber river, he obtained a warrant for their arrest, and deputized one Earl Williamson to aid in their pursuit and arrest; that Williamson had also heard that Coughlin and George had recently stolen horses from a man in Salt Lake City; that about 6 o'clock on the evening of the same day they came to a sheep wagon on Crandall creek, and, looking into it, they saw defendant, with his gun leveled upon Harrington; that the latter then told him to "quit his foolishness, and drop his gun;" that defendant fired immediately at Harrington, the ball passing through the horn of his saddle; that Harrington then shot at Coughlin; that defendant and George continued to shoot at the sheriff and his deputy until they had wounded the latter, and until both officers had retreated out of the range of their guns. It also appears that Thomas Stagg, a constable of Summit county, was informed of their alleged larcenies, and requested to arrest them, and that they were near Evanston, Wyo.; that he went to that place, and with Robert Calvarly, a deputy sheriff of that place, and William Taylor and Edward Dawes, started in a wagon for Palmer's cabin, in Rich county, Utah, where they expected to find the defendant and George; that they alighted a short distance from the cabin, and marched to within four or five hundred feet of it; that it was then daylight: that Calvarly remained in sight of the cabin behind a low hill, and Taylor went to a spring for a drink, about 550 feet from the cabin; that its door opened, and one of the men within leveled a rifle on Taylor and Calvarly, shot at the men, who then stepped back, and both men within commenced shotting out of a small window at Dawes, who was behind a fence post, about 300 feet away; that after they fired five or six times, Dawes and Calvarly commenced shooting, and after Coughlin and George had fired about twenty shots Dawes was killed. Coughlin and George then stopped firing, went out and around to a corner of the cabin, and shot three or four times at Calvarly, and then started away, and as they went they saw Stagg within range of their rifles, and shot and killed him, and then began shooting at Calvarly and Taylor, whose ammunition becoming exhausted, they retreated out of range, and went for more ammunition and reforcements. It also appears that Calvarly and Taylor returned with their reinforcements, and found the dead bodies of Dawes and Stagg; and that Coughlin and George, after eluding arrest five or six days, were arrested in Tooele county, more than a hundred miles from the scene of the cabin.

The refusal of the court to give certain requests to charge the jury, based upon the presumption that there was evidence tending to prove that Dawes, when killed, and the others with him, were attempting illegally to arrest Coughlin and George is assigned as error. It is true that Calvarly, the deputy sheriff, was out of his state, and that the constable, Stagg, was out of his county, and that the other two were not officers. But section 4855 of [13 Utah 64] the Compiled Laws of Utah provides...