Pixley v. State
| Decision Date | 19 October 1965 |
| Docket Number | No. 3440,3440 |
| Citation | 406 P.2d 662 |
| Parties | Andrew PIXLEY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
James H. Sperry, Worland, Robert A. Hufsmith, Jackson, Carleton A. Lathrop, Cheyenne, for appellant.
Dean W. Borthwick, Deputy Atty. Gen., Cheyenne, Floyd R. King, Jackson, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
On the 30th day of October, 1964, by the amended information of the County and Prosecuting Attorney of Teton County, Wyoming, the defendant was charged upon one count with having on the 7th day of August, 1964, committed murder in the first degree in the perpetration of rape upon a female child of the age of 12 years.
On November 12, 1964, the arraignment of defendant was had, at which time defendant acknowledged he had received a copy of the amended information more than 24 hours previously, whereupon the court explained to defendant that as the first information was in two counts the State was required to elect upon which count it would proceed, which it did; corrected two stenographic errors; and filed the information as thus amended.
The court then inquired if defendant was ready to plead to the amended information, and his counsel replied that he was and waived the reading of the amended information. When the court asked defendant to say 'are you guilty or not guilty to the offense therein charged,' defense counsel stated, 'we plead not guilty to the offense as charged, and further, not guilty by reason of insanity at the time of the commission of the alleged offense.'
Defense counsel moved to consolidate the case with another case of alleged homicide. The motion was denied.
Thereafter, on December 11, 1964, on motion of defendant, a change of venue was granted and the case certified to Washakie County for trial, following which defendant moved for leave to withdraw his plea of not guilty and further not guilty by reason of insanity at the time of the alleged offense theretofore entered and for permission to enter a plea of guilty.
On January 29, 1965, at the time and place set for defendant's trial, the defense read its motion for consolidation with a homicide case pending in another jurisdiction and presented its argument in support thereof, following which the State replied. The defense then had the defendant sworn and testified he wanted the cases consolidated. The State having declined to cross-examine, the defense made further argument to which the State made its response. The motion was denied.
On February 1, 1965, when the court reconvened, the defense moved to change defendant's plea from innocent and from innocent by reason of insanity, to a plea of guilty to the charge. As the jury panel was present, the court inquired if defense counsel wished to have that done in the presence of the jury panel, and defense counsel answered 'Yes' and that 'This is the wish of the defendant also.'
The court reminded defendant that he had appeared before a judge of the district court at Jackson, Wyoming, and had been arraigned on the amended information charging him with murder in the first degree at which time the defendant pleaded not guilty, not guilty by reason of insanity at the time of the commission of the alleged offense, and asked defendant if he wished to withdraw that plea and enter a plea of guilty. Defendant replied, 'Yes, your Honor.' At some length the court then examined the defendant asking if he understood that if he entered a plea of guilty his punishment would be either death or life imprisonment at hard labor; if realizing that fact he still desired to plead guilty; that he had previously offered to plead guilty if the court would consolidate the cases against him; that the court had refused the consolidation; if he understood he was charged with murder in the first degree; that another charge of murder in the first degree was pending against him and that the State proposed to try him on both charges of murder in the first degree; that if he pleaded guilty the punishment would be either death or life imprisonment; if with that understanding he wished to plead guilty; that under the law he was presumed to be innocent of any offense and that presumption remains throughout a trial until the State proves his guilt to a jury of 12 people beyond a reasonable doubt; that if he stood trial upon his plea of not guilty and not guilty by reason of insanity at the time of commission of the alleged offense, the court would instruct the jury that they could find him guilty of the lesser offense of murder in the second degree which carries a penalty of 20 years to life; that the jury could find him guilty of manslaughter which carries a sentence of from one year to 20 years; that first degree murder carries all the lesser degrees; that on his insanity plea the State has to prove his sanity beyond a reasonable doubt and that he was sane or the jury should acquit him. To each of these questions separately asked the defendant, he personally answered either 'Yes,' 'Yes, sir' or 'Yes, Your Honor.'
The judge then inquired of defendant if he had ever been threatened or coerced or induced by anyone, particularly anyone in the offices of the county attorney, sheriff's office, or any other official of the State or county, to make and enter the plea of guilty; if he had been promised any reward, leniency, or told he would get off easy or anything like that, to which questions defendant answered 'No, sir' and 'No, Your Honor.' Finally the court asked defendant to tell the judge carefully if he was making the change in his plea voluntarily and of his own free will, to which the defendant replied, 'Yes, sir.' Only then did the court announce that the changed plea would be accepted; the clerk was instructed to draw 12 names from the jury box; and voir dire examination of jurors was begun.
After the trial jury was selected and sworn, the State and defense evidence adduced, and the court's instructions given to the jury, the State gave its argument to the jury, followed by the defense argument to which the State replied.
The jury retired and rendered the following verdict:
'We, the Jury, duly impanelled and sworn to try the issue in the above-entitled case do find the defendant Andrew Pixley guilty of murder in the first degree.'
This verdict did not contain the qualification, 'without capital punishment.'
The court informed defendant of the verdict, asked him if he had anything to say why sentence should not be pronounced, and upon defendant's replying 'No, your Honor,' defendant's counsel stated that defendant had told his father-in-law [sic] [his stepfather] that if, as he thought, he might be so convicted, he did not wish to appeal the verdict, he wants to go to his death, and defense counsel asked to have a long time to be sure defendant did not truly wish to appeal. Then defense counsel asked defendant if what counsel had said was not true, and defendant answered, 'It's true.' Defense counsel further asked of defendant, 'You don't feel that there should be an appeal, do you?' To which defendant answered, 'No.'
Thereupon the court pronounced the following sentence:
Within the time limited by law one of defense counsel filed notice of appeal from the judgment and sentence of the court and asked stay of execution of the sentence pending the appeal. The stay was granted and upon defense's request a transcript of the testimony and evidence was furnished the defense without cost.
Although not appearing in the record on appeal, in a writing certified by a notary public as being in the handwriting of defendant and addressed to and received by this court, defendant insisted he wanted the appeal, filed by one of the attorneys who represented him at the trial, withdrawn and that he wanted the attorney withdrawn at once.
Notwithstanding these requests of defendant, this court directed that the appeal be prosecuted and for that purpose appointed a learned and experienced attorney as special counsel to assist those who represented defendant at his trial and ordered that the record on appeal be filed herein without cost to the defendant.
The appealing defense insists there is no 'trial' upon a defendant's plea of guilty to first degree murder, and that proceedings held thereafter are to be treated as a plea for mercy or in mitigation. Consequently, says the defense, criminal procedural statutes giving the State the right to open and close argument are inapplicable and to deny the defense that right was prejudicial error.
In support of its contention that there is no 'trial' when the defendant pleads guilty, Hollibaugh v. Hehn (1905), 13 Wyo. 269, at 276, 79 P. 1044, at 1047, is cited as saying,
In part, that statement is as true now as it was when made by this court, but the portion of the statement saying, 'Upon the plea of guilty there was nothing more to be tried by a jury,' is no longer the law, since, by amendment, c. 87, § 1, S.L. of Wyoming 1915, the law under which Hollibaugh was prosecuted, became changed and now reads:
'Whoever purposely and with premeditated malice or in the...
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Engberg v. State
...P. 803 (1930). Indeed the third cause for challenge enumerated in § 7-11-105, W.S.1977, makes such inquiry essential. 4 In Pixley v. State, Wyo., 406 P.2d 662 (1965), this court held that counsel for the State of Wyoming in a first-degree murder prosecution could ask all of the potential ju......
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Jahnke v. State
...S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968); Hopkinson v. State, supra; Pixley v. State, Wyo., 406 P.2d 662 (1965); and State v. Aragon, 41 Wyo. 308, 285 P. 803 (1930). It is appellant's position that like the capital punishment question h......
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...109, 92 S.E.2d 668, 671 (Sup.Ct.1956); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232, 240--241 (Sup.Ct.1963); Pixley v. State, 406 P.2d 662, 669--670 (Wyo.Sup.Ct.1965). The instruction against bias and sympathy is a boilerplate charge relating to the juror's role in finding the facts. If ......
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Osborn v. State
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