Ross v. State

• Decision Date: 30 June 1899
• Citation: 8 Wyo. 351,57 P. 924
• Parties: ROSS v. STATE
• Court: Wyoming Supreme Court

57 P. 924

8 Wyo. 351

ROSS v. STATE

Supreme Court of Wyoming

June 30, 1899

Information filed in District Court June 26, 1896.

ERROR to the District Court, Weston County, HON. JESSE KNIGHT Judge of the Third District, presiding.

Francis E. Ross was informed against for murder in the first degree being charged with having killed Amos Robinson, at Buelah, in Crook County, on the night of June 21, 1896. The case was tried in Weston County upon change of venue, and the defendant convicted of murder in the second degree. He was sentenced to the penitentiary for life, and prosecuted error. The material facts are stated in the opinion.

Affirmed.

A. P Hanson, R. H. Vosburgh, and N.K. Griggs, for plaintiff in error.

Mr. Nichols, as a member of the Legislature, was inelligible to be appointed to the office of prosecuting attorney, or to act as such. (Const., Art. 3, Sec. 3; State v. Russell, 53 N.W. 441.) Judge Metz, as judge at the time of the arrest of defendant, refused him bail, and was prejudiced against him so that he ought not to have been permitted to act as prosecutor. (People v. Dietz, 86 Mich. 430.) The prosecuting attorney should have been discharged from further management of the case by reason of his threats to defendant's witnesses.

It is only when made under the belief of impending death that the declarations of a deceased are admissible in evidence. (96 Cal. 125; 48 Vt. 636; 30 id., 377; 57 Ind. 46; 70 Mo. 594; 8 Jones, 463; 63 Miss. 313; 10 S.E. 616.)

What a witness may have said elsewhere is absolutely immaterial save as it may affect his credibility. He may not be first asked as to such former statement, and then cross-examined as to its truth or falsity.

The fact as to whether or not it was material and proper to ask Hoffmeister if he could have heard the report of the pistol shot, depended upon a large number of other facts in regard to which he had not been interrogated. Therefore, it is urged that it was error, prejudicial to defendant, to allow him to answer the question.

It is error to allow a witness to state conclusions which it is the province of the jury alone to draw from the facts detailed by him touching the matters in question.

The eye witnesses should have been produced as witnesses for the State. (State v. Magoon, 50 Vt. 333; Donaldson v. Com., 95 Pa. 21; Rex v. Holden, 8 C. & P., 606; Rex v. Chapman, id., 558; Rex v. Bull, 9 id., 22; People v. Dietz, 86 Mich. 419; People v. Swetland, 77 id., 57; People v. Davis, 52 id., 573; 39 id., 312; 25 id., 415; Ter. v. Hanna, 5 Mont., 248; Whar. Cr. Ev., 448; Roscoe Cr. Ev., 210.) Some, at least, of the eye witnesses should be called by the prosecution. The character of the accused can be put in issue only by himself. The statements of counsel objected to were prejudicial to defendant and unwarranted by the evidence. (71 F. 463.) The legal assistance rendered by the foreign attorney, disqualified from assisting in the prosecution, should cause a reversal.

The twelfth instruction authorized a verdict of murder generally, although the facts therein detailed would constitute murder in the second degree only. It is, therefore, error. (State v. Andrews, 84 Iowa 88; State v. Adams, 78 id., 222.)

Instruction 14 declares that the design and determination to kill, constituting premeditation, may be formed in the mind at any moment before, or at the time the shot was fired. It, therefore, fails to discriminate between the two degrees of murder, and gives the jury the right to find the higher without there having been any premeditation. Only malice may be inferred from the killing--not premeditation. (State v. Turner, Wright (O.), 20; State v. Town, id., 75; Bennet v. State, 10 C. C., 84; Kinkead's Ins., 162.) And even the doctrine that malice is to be presumed from the proof of killing, without more, is now being discarded, if indeed in fact it is not already overthrown. H. & T. Cas. Self Def., 938, n. And premeditation can not arise simultaneous with the shooting, nor even in the midst of the affray. Fahnestock v. State, 23 Ind. 263. The true rule, upon reason and authority, is that there can possibly be no premeditation save in case there has been time for passion to cool and reason to regain control. McCann v. People, 5 Cr. Def., 1089; State v. Moore, 5 Cr. Def., 1107 (69 N.C. 267); Rogers v. People, 15 How. Pr., 558; People v. Johnson, 1 Park. Cr. Rep., 219; People v. Clark, 7 N.Y. 385; Horrigan & T. Cas. Self Def., 199; Whart. on Homicide, 35; Whart. Cr. Law, 922. And as showing that the degree of homicide does not depend on the presence or absence of intent to kill, but solely upon that of deliberation and malice, see People v. Freel, 48 Cal. 436; People v. Crowey, 56 id., 36.

Instruction 15 declares that if the accused killed the deceased, then no matter what the provocation, and no matter what the surrounding circumstances may have been, unless the act of shooting was justifiable as explained in the charge of the court, the jury should return a verdict of murder in the first degree. The objection to this is that it does not itself pretend to give any light as to the circumstances which would have justified the act of the accused, but very unfairly to him, remits the jury to the whole charge to ascertain what the court deemed such justification.

There was no occasion for the giving of instruction 16. The evidence showed that after the first trouble in the saloon, the accused started quietly home, and that some time later the deceased followed the former down near to the bridge, where he made threats of violence evidently directed toward the accused. This instruction, therefore, was without occasion for its giving, and in addition, was exceptionally prejudicial to the defendant, as it might well have been, and probably was, taken by the jury as a hint as to the court's view as to the cause of the homicide.

Instruction 17 we claim to be entirely out of harmony with the evidence in the cause, and hence erroneous, as no assumptions, not actually supported by the testimony, are permissible against an accused. Beard v. United States, p. 559.

Surely there was not a word of proof justifying a possible supposition that the accused assaulted or violently struck the deceased with his hand, or insulted him in order to provoke him into assaulting the former, by reason of which the accused might have a chance to shoot the deceased. The difficulty in which the accused struck the other, was in the saloon, a considerable time and distance from the final affray. Not only was the difficulty there fully ended, but nothing was done or spoken by accused in that altercation which could be tortured into the support of a conjecture, saying nothing of a finding, that the accused then intended to provoke an assault by the deceased, so that he might have a chance to shoot the other. In considering this charge, it should not be forgotten that the two transactions--the one in the saloon, the other near the bridge--were not only distinct, there being no attack by the deceased in the saloon, nor striking by the accused at the bridge, but the court itself, in another charge, actually divorced the two transactions, saying that the difficulty at the saloon could be considered for no other purpose than that of showing the state of feeling existing between the parties at the time of the later affray.

Again, particular attention is called to another error in this instruction. In the latter part of this charge, the jury are told that if they believed from the evidence, that in accordance with such expectation, the deceased did attack the defendant and the defendant then shot and killed him, in pursuance of such design, the killing was murder. Observe, that as to this latter and most important conclusion to be found by the jurors, they are simply instructed that if they believed from the evidence, all references as to the degree of their belief, and all allusions to being convinced beyond a reasonable doubt, being absolutely omitted.

Before a verdict of guilty can be returned, the jury must find from the evidence adduced and the proofs admitted on the trial, that each and every fact necessary to be proved has been separately and independently established with a degree of certainty which will exclude from the jurors' minds every other reasonable conclusion except that of guilt. (Kinkead's Ins., 159.)

The twentieth instruction erroneously ignores the right of the accused to have acted upon reasonable apprehensions of imminent danger.

The objections to instruction 23 are twofold.

1. It begins by negatively yet erroneously declaring that the jury should convict in case the defendant committed the offense, entirely omitting to state that, in addition to the fact of committing the offense itself, it was necessary to a conviction that it should also be found, beyond a reasonable doubt, that the accused had no legal excuse or justification for doing the deed.

2. As if to emphasize the fact that the court deemed an acquittal impossible under the evidence, the attorneys for the prosecution cause the law to be again charged, in careful detail, as to the three verdicts of guilty which might be returned, but omitting, as if by studied design, the other one of not guilty which might also be found. And then, as if further to challenge the attention of the jurors to the necessity of their convicting the defendant, a lengthy discussion is made, to follow which, especially in view of the fact that a possibility of innocence is not even suggested, could hardly do otherwise than to impress them with the thought that the court feared that there was great danger of their shirking their duty by their failing to find a verdict of guilty. All this was not only unjust to the defendant, because...