State v. Aragon, 1579

• Decision Date: 10 March 1930
• Docket Number: 1579
• Citation: 285 P. 803,41 Wyo. 308
• Parties: STATE v. ARAGON [*]
• Court: Wyoming Supreme Court

285 P. 803

41 Wyo. 308

STATE v. ARAGON ^[*]

No. 1579

Supreme Court of Wyoming

March 10, 1930

APPEAL from the District Court, Fremont County, EDGAR H. FOURT Judge.

Charles Aragon was convicted of murder in the first degree and he appeals.

Affirmed.

The cause was submitted on the brief of G. J. Christie, of Lander, Wyoming.

The examining magistrate did not find that a crime had been committed and the trial of appellant was without jurisdiction. State v. Boulter, 5 Wyo. 236. Denial of defendant's motion for continuance was prejudicial error. Parker v. State, 24 Wyo. 491. The trial court erred in compelling defendant to proceed to trial in the absence of a subpoenaed witness. Parker v. State, supra. Objections to questions by prosecutor on cross examination of defendant, though sustained, were prejudicial. State v Thomas, 38 Wyo. 72. The instructions were contradictory. Parker v. State, supra. Instruction numbered 20, in re capital punishment was prejudicial. Parker v. State, supra. Prosecutor was guilty of misconduct. State v Wilson, 32 Wyo. 37. The court erred in permitting members of the jury to be questioned on their voir dire as to their attitude on capital punishment. 7066 C. S. The verdict is not sustained by sufficient evidence. Parker v. State, supra. Several witnesses testified from a map drawn upon a blackboard afterwards erased and not brought into the record, thus depriving defendant of the benefit thereof. State v. Thomas, 38 Wyo. 72. The jury should have been instructed that unless they inserted the words "without capital punishment," no discretion was left to the court as to the form of punishment. Parker v. State, 24 Wyo. 491.

On behalf of the State, there was a brief by William O. Wilson, Attorney General; James A. Greenwood, Deputy Attorney General, and P. S. Garbutt, Assistant Attorney General, of Cheyenne, and oral argument by Mr. Wilson and Mr. Garbutt.

As to the question of jurisdiction based upon defendant's contention that he was not committed for any crime whatsoever by the examining magistrate; the point was waived by failure to file a plea in abatement or motion to quash. In State v. Boulter, 5 Wyo. 236, relied upon by defendant, plea in abatement was filed to the information which was sustained and the cause reviewed on exceptions by the prosecuting attorney. The case is not in point here. The later cases of Hollabaugh v. Hehn, 13 Wyo. 269; McGinnis v. State, 16 Wyo. 72, and James v. State, 27 Wyo. 378, disposed of this question as against defendant's contentions. The prosecution admitted that if the absent witnesses were present, they would testify as stated in the affidavit for continuances. This was not in accordance with 6416 C. S. construed in McNally v. State, 5 Wyo. 59. Testimony of the absent witness Johnson, whom defendant claimed was under subpoena, would as appears from the record been of no avail to defendant. As to improper questions alleged to have been propounded to defendant by the prosecutor in cross examination, the record shows that objections were sustained thereto, and the jury admonished to disregard them. No prejudice to defendant's right is shown in this connection. State v. Thomas, 38 Wyo. 73; State v. Sorrentino, 31 Wyo. 129; Rosencrans v. State, 33 Wyo. 360. Instruction numbered 20, advising the jury that their verdict might contain the words "without capital punishment" is a correct statement of the law. In ordinary cases, charges are not required to take into consideration the punishment which the defendant may receive if convicted. Specifications of error dealing with alleged misconduct of the prosecuting attorney are without merit. A prosecutor is entitled to present his theory of the case and make reasonable deductions from the evidence. State v. Sorenson, (Wyo.) 241 P. 705; State v. Wilson, 32 Wyo. 37; State v. Thomas, 38 Wyo. 72; McConnell v. State, 22 Tex.App. 354; Stoddard v. State, 132 Wis. 520; State v. Pirkey, 22 S.D. 550. The foregoing cases support the doctrine that a statement made by a prosecutor even though improper, is harmless, unless coupled with a dangerous appeal or that because of such improper remark the particular verdict is reached. In this case, the evidence of guilt is so convincing that the proof, and not the argument of the prosecution, must have brought about the conviction. As the statute clothes the jury with power to determine whether capital punishment may be inflicted, questions propounded by the prosecution to prospective jurors as to whether they had conscientious scruples against capital punishment were not improper. The verdict is sustained by the evidence, and was of a convincing character, showing defendant's guilt of the crime charged.

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

OPINION

BLUME, Chief Justice.

On information filed in the District Court of Fremont County, charging him with the murder of one Jesse Large, the appellant, Charles Aragon, was tried and convicted of murder in the first degree and sentenced to suffer the penalty of death. From this sentence an appeal has been taken to this court. We shall review most of the assignments of error, though not all, since some of them are so clearly not well taken that it is unnecessary to mention them.

1. A preliminary hearing was had in the case on September 11, 1928, before a justice of the peace. The justice filed a certified copy of his docket entries in the District Court. These entries show that an information was filed before the justice charging the defendant with the crime of murder in the first degree; that the defendant was brought before him; that he pleaded not guilty, and that a hearing was had. Then follows the finding of the justice in the following words:

"The court, after due consideration of the evidence given, it is by the court ordered and directed that the defendant Charles Aragon be held without bail in the county jail at Lander, Fremont County, State of Wyoming, there to abide until called to trial in the District Court in the fall term of 1928."

It is argued that the justice did not find that any crime was committed for which the defendant was held and that the District Court, accordingly, did not acquire jurisdiction to try the case. This objection, if valid, could have been raised by a plea in abatement, which was not done. It was raised for the first time in the specifications of error on appeal to this court. In 16 C. J. 345 it is stated that objection to the preliminary complaint or warrant, or the objection that no preliminary examination was had, or that it was invalid, or not properly certified, must be raised before plea of not guilty and trial, and in 16 C. J. 346 it is stated that such objection should be raised by motion to quash or plea in abatement. That, too, is the effect of McGinnis v. State, 16 Wyo. 72, 91 P. 936, and James v. State, 27 Wyo. 378, 196 P. 1045. Section 7487 Wyo. C. S. 1920, provides that:

"The accused shall be taken to have waived all defect which may be excepted to by a motion to quash or a plea in abatement * * * by pleading not guilty."

The objection now made comes within the contemplation of this statute and must be held to have been waived when, without raising it, the defendant entered his plea of not guilty in the District Court. State v. Calkins, 21 S.D. 24, 109 N.W. 515. Almost the exact point was involved in the case last cited. The case of Boulter v. State, 5 Wyo. 236, 39 P. 883, is not in point for the reason that the objection arising out of the preliminary examination was in that case raised by a plea in abatement.

2. On the date set for the trial of this case, the defendant filed a motion for a continuance on the ground of the absence of witnesses who had been attempted to be subpoenaed, but had not, on account of the inclement weather been able to be reached, or who, on account of sickness, were unable to attend court at that time. It was shown that one of these witnesses, Pedia, would, if present, testify that about January 1, 1928, he was present when the deceased displayed a gun and threatened to kill the defendant but that the people who were present prevented him from doing so; that another of these witnesses Lucille Stagner, would, if present, testify to substantially the same effect; that Eva Wesaw, another of these witnesses, would, if present, testify that on numerous occasions between September 1, 1927 and September 1, 1928, she heard the deceased threaten to shoot and kill the defendant; that another of these witnesses, Claude Baldez, would, if present, testify that the deceased on numerous occasions threatened to kill him and the defendant. Thereupon the county attorney admitted in effect that the witnesses mentioned would, if present in court, testify as claimed. The court then overruled the motion for continuance and this is assigned as error. The only case cited in support of the assignment of error is Parker v. State, 24 Wyo. 491, 161 P. 552, which does not seem to have any application. Section 6416, Wyo. C. S. 1920, provides that if a motion for continuance is filed and the materiality of the expected evidence of absent witnesses and the use of due diligence, etc., is shown, the case nevertheless shall not be postponed on account of the absence of such witnesses if the adverse party will admit on the trial that they will testify to the facts stated in the affidavit as true. See McNealley v. State, 5 Wyo. 59, 36 P. 824. This admission was made in the case at bar. And while we need not say that such fact will always authorize the court to deny a motion for continuance in criminal cases, we think that in the case at bar the ruling of the court was not erroneous. The affidavits stating the expected testimony of the absent witnesses were duly admitted...