Smith v. State

• Decision Date: 05 March 1928
• Docket Number: 1528
• Parties: SMITH v. STATE [*]
• Court: Wyoming Supreme Court

274 P. 1074

40 Wyo. 128

SMITH v. STATE ^[*]

No. 1528

Supreme Court of Wyoming

March 5, 1928

ERROR to District Court, Sweetwater County; VOLNEY J. TIDBALL Judge.

Mike Smith was convicted of manslaughter, and he brings error.

Reversed and Remanded.

R. L DeNise and F. W. Johnson, (L. H. Brown of counsel) for plaintiff in error.

Plaintiff in error was apparently convicted upon mere suspicions or probabilities; there is insufficient evidence to sustain the judgment. Gardner v. State, 27 Wyo. 316. The instructions did not correctly state the law of circumstantial evidence; although a defendant is probably guilty, the state must, nevertheless, prove something more than a probability of guilt. State v. Suitor, 114 P 113. But the record in this case does not establish a probability of guilt, and the judgment should be reversed.

William O. Wilson, Attorney General, and Richard J. Jackson, Assistant Attorney General, for defendant in error.

The record discloses that the accused who was in charge of sheep as a herder on the range, had some trouble with Rufino Urrutia, also a sheep herder in charge of sheep for another owner, on or about October 10, 1923, in the vicinity of what is known as Dry Lake in Sweetwater County, Wyoming. Urrutia disappeared about that time and nothing was heard of him until the discovery of his body in the same vicinity in the month of November, 1926. The skull indicated that deceased came to his death by a bullet, and other circumstances clearly established the fact that deceased had come to his death by violent means. Accused made contradictory statements as to his movements about the time of the homicide, and it was proven that he departed from that locality almost immediately after the disappearance of the deceased. The entire circumstances pointed to the guilt of defendant. In such cases, circumstantial evidence may be resorted to. 30 C. J. 297. Evidence of ill will toward decedent was complete. 30 C. J. 299. Commonwealth v. Minnich, (Pa.) L. R. A. 1916B, 950; Holland v. State, 38 Tex. 474; Lampitt v. State, 34 Wyo. 247; State v. Dickson, 78 Mo. 438. Any evidence tending to show that defendant is the guilty person and to show his presence, at or near the scene of the crime is relevant. 30 C. J. 300. State v. Pittman, 137 S.C. 75; Bigham v. State, 203 Ala. 162; Paulson v. State, (Wis.) 94 N.W. 771; State v. Welch, 257 P. 1010; People v. Ho Kim You, (Calif.) 141 P. 950. Evidence that defendant had an opportunity to commit the crime, and lack of opportunity of others to commit the crime, is competent. 30 C. J. 161. Copeland v. State, 50 So. 621; State v. Warren, (Ore.) 69 P. 679. Evidence of flight from the scene of the crime and contradictory stories relating to the incident, were competent as circumstantial evidence. 30 C. J. 210, 301. State v. Jackson, (Mo.) 8 S.W. 749; State v. Ching Lem, (Ore.) 176 P. 590. Circumstances attendant upon the flight of defendant is admissible for the purpose of decreasing the probative effect thereof. People v. Hall, (Cal.) 249 P. 859; Liggins v. U.S. 297 F. 891; People v. Anderson, (Cal.) 208 P. 204. Evidence showing evasion of arrest or concealment on the part of defendant is a proper circumstance for the jury to consider, in arriving at their verdict. 30 C. J. 301. People v. Cipriano, 213 N.W. 104; State v. Jackson, (Mo.) 253 S.W. 734. Defendant admitted that he had seen decedent going west with something on his shoulder about October 12th, and at the trial, testified that he had seen decedent on or about October 10th, in the vicinity. Where defendant gives a false explanation of the absence of deceased, it is sufficient to warrant the inference of guilt. 30 C. J. 300, and cases cited. State v. Dickson, 78 Mo. 438. Circumstances pointing towards the guilt of accused, are always strengthened by proof of a motive on his part. 30 C. J. 299, and cases cited. Burill, Cir. Ev. 156; Hinshaw v. State, (Ind.) 47 N.E. 157; Lampitt v. State, supra. Based on the foregoing authorities, it is submitted that the verdict of the jury is sustained by the evidence. The instructions given by the court on circumstantial evidence, fairly presented the law on that subject, in fact, Inst. No. 9, followed the language of this court in the Gardner case, and Inst. No. 8, followed the case of Lampitt v. State, supra.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

Defendant was convicted of manslaughter, and he appeals.

Some time in November, 1926, a human skeleton was found in about the SW 1/4, Sec. 8, T. 26, R. 107, in the northern portion of Sweetwater County, Wyoming. Testimony was introduced that it was that of one Rufino Urrutia, a sheepherder, hereinafter called the deceased, who mysteriously disappeared about the middle of October, 1923.

The saddle of the deceased and his slicker and a scabbard tied thereto were soon after his disappearance found in his sheep camp, and showed, apparently, considerable traces of fresh blood. The horse of deceased, hobbled, was found about three miles from the camp, and had, apparently, some blood on one of its front legs. A dentist identified the work done on the teeth of deceased. A hat, shown to have been that of deceased, and which apparently had a bullet hole, was found in the spring of 1924, by Earl Pulley, near the camp above mentioned. Two physicians testified that the skull found indicated that the deceased came to his death by a bullet, so that we may, for the purpose of this opinion at least, assume that the skeleton found was that of the deceased, and that he came to his death by violent means. A summary of the circumstances relied on by the state, which led to the arrest, trial and conviction of the defendant, is about as follows:

The deceased was working as a sheepherder for the Midland Live Stock Company at and prior to the time of his disappearance, and was in charge of a band of sheep. His sheep camp was located on the SW 1/4 of Sec. 9, T. 26, Range 107, about half a mile south of an old road called the "Old Emigrant Trail," which runs east and west, and connects with the "Big Piney Road" in Sec. 7, T. 26, R. 106, about four miles east of the sheep camp of deceased. The Big Piney road runs in southeasterly-northwesterly direction and branches off from the main highway--running north and south--between Rock Springs and Pinedale, in Sec. 22, T. 26, R. 106. Farson or "Eden Store" is located on the latter highway in Section 27, T. 25, R. 106, about six miles south from the point where the "Big Piney road" branches off as above mentioned. A creek called Big Sandy runs in a generally northerly direction, is east of the highway to Pinedale and about eight miles east of the foregoing sheep camp. It seems that there are mountains east of the Big Sandy, which furnish the summer pasture for the sheep in that country. In the fall of the year, the mountains are abandoned, and the sheep are trailed westward. So the band of sheep of deceased, upon leaving the mountains, was led westward, across the Big Sandy, to the place above mentioned, and a camp was established there a day or two before October 10, 1923, by Joe Arambide, the camp-mover--for sheepherders do not themselves establish the camp, but do so through a campmover or camp-tender, who, frequently, as in this case, attends to more than one camp. A so-called "dry lake," which contained some water in October, 1923, was located in the NW 1/4, Sec. 15, and the NE 1/4, Sec. 16, T. 26, R. 107, and was about half a mile north from the camp of deceased, and slightly further east. The skeleton of deceased was found about one-half mile, or a little more, west and a little south of the foregoing camp.

Mike Smith, born in Texas, a Spanish war veteran, too, was a sheepherder in October, 1923, and was employed by William Dewey. Since 1903 he had been mostly in Wyoming and Montana, was employed in an oil field near Rock Springs for a year or so before he went to work for Dewey in June, 1923, and seemingly was known to a considerable number of people at and near Rock Springs, for some time prior to October, 1923. Dewey's sheep were trailed from the mountains and crossed the Big Sandy about October 1, 1923, and Roberts, Smith's camp-tender, established a camp for defendant about October 5th, 1923, in about Section 17, T. 26, R. 107, probably approximately two miles southwesterly from the camp of deceased, and about two miles west of "Dry Lake," as indicated by the map in evidence. There were other sheep camps in that neighborhood, but not as close. Two others were approximately five miles distant from that of deceased and others were somewhat further away. Earl Pulley and William Dewey had ranches about seven or eight miles east of the lake, and the Big Piney road was about four miles eastward. The testimony as to the extent that people travelled over the Old Emigrant Trail or were found, from time to time, in the neighborhood of the lake is somewhat indefinite. Harry Branson testified that at least some people travelled over the trail from time to time, and would be found in and about Dry Lake and other lakes eastward during duck season, which in 1923 lasted from September 16th to December 16th. There is a lack of affirmative evidence, aside from what will be mentioned, as to the presence or absence of people in or near the camp of deceased from October 10 to 13, 1923.

The last time that deceased was seen was at noon, on October 10 1923. Joe Arambide, the camp-mover, ate dinner with him at that time, and after that left to go to another camp in charge of Erramouspe, about five miles away. He returned on the afternoon of October 13, and found the sheep about two miles distant. He did not find the deceased, and the next morning went to get Bob Erramouspe. The...