Robinson v. State

• Decision Date: 10 January 1910
• Docket Number: 609
• Citation: 18 Wyo. 216,106 P. 24
• Parties: ROBINSON v. STATE
• Court: Wyoming Supreme Court

106 P. 24

18 Wyo. 216

ROBINSON v. STATE

No. 609

Supreme Court of Wyoming

January 10, 1910

ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.

The facts are stated in the opinion.

Reversed.

M. C Brown, for plaintiff in error.

When error has been committed on the trial of a cause, the trial court should, without hesitation, grant a new trial unless the error has been corrected in a clear and positive manner. A motion for a new trial is addressed in some degree to the discretion of the trial court, but it is the duty of the court to examine the entire proceedings leading up to the verdict, and consider in connection with them any new facts and reasons, if any, that may be presented, and order a new trial if it is deemed that injustice has been done. A like duty rests upon the appellate court, but in a lesser degree for many reasons, such as the fact that the trial court has seen and observed the witnesses, the methods of counsel, the attitude of witnesses, whether fair or hostile, and other matters occurring on the trial. How can a judicial mind be satisfied with a verdict in a criminal case, which, after giving the opinion of the jury all due weight, creates still the distinct and not unreasonable apprehension that a great wrong might have been done, though there be no absolute showing that it has been, alike to both parties to the controversy? (1 Bish. Cr. Proc., (3rd Ed.) Secs. 1278, 1275 1273, 1092.) Our Penal Code is required by the Constitution to be framed on the humane principles of reformation and prevention. (Const., Art. I, Sec. 15.) We take this to mean that the administration and the enforcement of law by the courts should be along like lines.

Upon the evidence it must be exceedingly doubtful whether defendant was ever in possession of the stolen property, and such possession is the only fact in the case tending to incriminate her. Can it be said, therefore, that it is sufficient to sustain the verdict? Possession of recently stolen property is not alone sufficient to sustain a conviction. The State is not interested in a conviction by improper or unfair means, and if a conviction is so obtained it is reversible error. (People v. Lu Chuck, 78 Cal 317.) It is the duty of a prosecutor to exercise absolute impartiality and to see that defendants are convicted only by competent evidence; so is it the duty of the court to give the defendant the fullest latitude to procure all evidence reasonably competent to make his innocence appear. And officers interested in bringing criminals to justice should not prostitute their high office in order, by unjust and unfair means, to secure convictions. (State v. Irwin, (Ida.) 31 P. 608; People v. Carr, 64 Mich. 702, 59 Mich. 550; People v. Derbert, 138 Cal. 467.) A detective's testimony is to be received with caution; or as it is some times said, with extreme care or distrust. (State v. Snyder, (Kan. App.) 57 P. 135; State v. Keys, 45 P. 727; State v. Fullerton, 90 Mo.App. 411; State v. Hoxie, 15 R. I. 1; State v. Bennett, 40 S.C. 308.)

The instructions upon reasonable doubt, giving as they do all the extreme definitions found in judicial decisions gathered together, have more the appearance of an argument than a definition. (King v. State, (Tex.) 56 S.W. 26.) Any instruction tending to relieve the jury of the binding force of their oath is a violation of the statute requiring the jury to be sworn. The Spies case, from which the objectionable part of instruction number 6 was taken, was an extreme case, and given under conditions which seemed to require instructions stretched to the utmost; but they should not be followed in ordinary cases and cannot be accepted with safety. The instruction complained of has been condemned in several cases. (People v. Johnson, 140 N.Y. 350; Siberry v. State, 133 Ind. 677; Cross v. State, 132 Ind. 65.) The instruction in question omits the element contained in the instruction in the Spies case that the belief of the jury is to be based upon the evidence in the case. At the best the instruction is misleading. It undertakes to tell the jury what their conduct must be as jurors, and how and in what manner they shall believe or disbelieve. It is in no sense a definition of reasonable doubt. (Lovett v. State, (Fla.) 17 L. R. A. 709.) Argumentative instructions are generally reversible error. (Willis v. State, 134 Ala. 429; Boling v. State, 54 Ark. 588; Thomas v. State, 95 Ga. 484.)

The instructions with reference to possession of recently stolen property were erroneous. The evidence did not show nor tend to show that defendant had possession of the stolen property. They are based wholly on the testimony of the Sheriff, the chief witness for the prosecution, and who is shown by his own testimony to have been a prejudiced witness--a detective. The court told the jury what inferences they must draw from certain facts. This was error, for it was the duty of the jury to draw their own inferences. (Wilkerson v. State, 106 Ala. 23; Esterling v. State, 30 Ala. 46; People v. Camillo, 54 Cal. 63; Allison v. State, 42 Ind. 354; Comm. v. Clifford, 145 Mass. 97.) The presumption arising from the possession of recently stolen property is used to identify the thief, not to prove the theft. (2 Bish. Cr. Proc. (3rd Ed.) Sec. 739.) It is believed to be error for the court to call attention to particular facts and lay stress upon them. (Roberts v. State, 11 Wyo. 66; Gustavenson v. State, 10 Wyo. 301.) It being clearly shown that defendant could not have stolen the property, the only inference to be drawn from unexplained possession was to indicate possibly that the defendant was guilty of knowingly receiving it. It was therefore error for the court to instruct as it did upon the question of possession. Further, the instructions go to the effect that possession tended to show the larceny of the property and that it was stolen by the defendant, which is clearly erroneous.

While it is not error to refuse the jury the right to view the place, etc. when the court directs it to be done the object most generally understood is to enable the jury to more clearly comprehend by the aid of visible objects, the evidence already received. But it is some times said that it is done to supply evidence. (People v. Fitzgerald, 137 Cal. 546; Shuler v. State, 105 Ind. 289; State v. Adams, 20 Kan. 311; Chute v. State, 19 Minn. 271; Sasse v. State, 68 Wis. 530; Benton v. State, 30 Ark. 328; State v. Bertin, 24 La. Ann. 46; State v. Henny, 51 W.Va. 283.) However, the order for the view and inspection was made by the court and neither party objected. The only question about the matter is the object and purpose of the view. Under the circumstances a view of the place where the property was found could not be of any benefit to the jury unless the occurrences at the time of the search were repeated. The view which was made, therefore, was prejudicial to the defendant. (State v. Knapp, 45 N.H. 148.) Prejudice to the defendant is to be presumed from error in the instructions given. (People v. Marshall, 112 Cal. 422; Farnham v. U.S. 1 Colo. 309; State v. Gannon, 75 Conn. 206; Lane v. State, 32 So. 896; Wood v. State, 31 Fla. 221; State v. Johnson, 69 Ia. 623; Barnett v. Comm., 84 Ky. 449; Josephim v. State, 39 Miss. 613; Cuny v. State, 4 Neb. 545; People v. Gonzales, 35 N.Y. 49.) Where one of two inconsistent clauses is erroneous it is presumed that the jury follows the erroneous charge. (State v. Ferguson, 9 Nev. 105; People v. Berlin, 10 Utah 39.)

It was error for the court to refuse the application for a continuance. Assistance of counsel for all persons accused of crime is a constitutional right. If counsel is deprived of sufficient time to prepare for trial a defendant is thereby deprived of counsel. (Dunn v. People, 109 Ill. 635; Kennedy v. State, 81 Ind. 379; Lindville v. State, 3 Ind. 580; State v. Poole, 50 La. Ann. 449; State v. Boyd, 37 La. Ann. 781; State v. Wilson, 33 La. Ann. 261; State v. Baptiste, 26 La. Ann. 134; Comm. v. Winnemore, (Penn.) 2 Brewst. 378; State v. Briggs, (S. C.) 1 Brew. 8; State v. Lewis, (S. C.) 1 Bay, 1; King v. State, (Tex. Cr.) 56 S.W. 920; Lockwood v. State, (Tex. Cr.) 22 S.W. 413; People v. Winthrop, 118 Cal. 85; Fletcher v. State, (Tex. Cr.) 39 S.W. 116; Butler v. State, 38 S.W. 787; People v. Colton, 5 Utah 451.) An accused has a right to a reasonable time in which to prepare for trial. (Const. Art. I, Sec. 10.) An accused, to have assistance of counsel, must have sufficient time for her counsel to prepare for trial. (State v. Pool, (La.) 23 So. 503; State v. Simpson, 38 La. Ann. 23; State v. Lewis, 74 Mo. 222.) A new trial will be granted if a reasonable time, according to the circumstances of the case, has not been allowed. (Jones v. State, 115 Ga. 814; Hunt v. State, 102 Ga. 569.) The denial of any time whatever is clearly reversible error. (12 Cyc. 503.)

It is error for a court to refuse to strike out incompetent or irrelevant testimony, though it has been admitted without objection. (Coppin v. State, 123 Ala. 58; Wright v. State, 108 Ala. 60; People v. Ardell, 66 P 970; People v. Johnson, 106 Cal. 289; People v. Johnson, 106 Cal. 289; State v. Moats, 108 Ia. 13; State v. Marshall, 105 Ia. 38; Lane v. State, 151 Ind. 511; State v. Rowfischet, 12 La. Ann. 382; Goldman v. State, 75 Maryland, 621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; People v. Harris, 136 N.Y. 423; Stephens, 4 Park. Cr. 396; Com. v. Valsalka, 181 Pa. St. 17; Gonzales v. State, 30 Tex.App. 203.) To test the reliability of a witness and the weight to be given his testimony, his character may be inquired into on cross-examination,...