State v. Bentine

• Decision Date: 12 July 1949
• Docket Number: 2422
• Citation: 66 Wyo. 222,208 P.2d 291
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. WILLIE MAE BENTINE, Defendant and Appellant
• Court: Wyoming Supreme Court

208 P.2d 291

66 Wyo. 222

THE STATE OF WYOMING, Plaintiff and Respondent, v. WILLIE MAE BENTINE, Defendant and Appellant

No. 2422

Supreme Court of Wyoming

July 12, 1949

APPEAL from District Court, Sweetwater County; V. J. TIDBALL, Judge.

Willie Mae Bentine was convicted of assault and battery with intent to commit murder in the second degree, and she appeals.

Judgment affirmed.

For the defendant and appellant the cause was submitted upon the brief and also oral argument of H. S. Harnsberger of Lander Wyoming.

POINTS OF COUNSEL FOR APPELLANT

The character and reputation of accused was not put in issue by the defendant. Hence, the State's testimony that accused operated a house of prostitution was erroneously admitted was highly prejudicial to the defendant and constituted reversible error. 16 C. J. 581, Sec. 1122; 16 C. J. 1144 Sec. 2641; State v. Horne, 12 Wyo. 80; Fields v Territory of Wyo. 1 Wyo. 78; State v. Lawey, 29 Wyo. 251-277; Roserance v. State, 33 Wyo. 362-374.

Failure of state to produce known and available testimony of eye witnesses showing defendant acted in self- defense, of which testimony the defendant had no knowledge at time of trial, and the denying of defendant's motion for new trial made immediately after such facts and such testimony came known to her knowledge, was reversible error. 16 C. J. 1183-Sec. 2708; 16 C. J. 1188, Sec. 2715; Espy et al. v. State, 54 Wyo. 291.

Even when defendant takes the stand, insinuations and intimations from his cross-examination that he has committed other crimes may furnish grounds for a new trial. 16 C. J. 1144.

The general rule is not to be disputed that proof of the perpetration of a separate and a distinct crime will not be admitted for the purpose of aiding the conviction of a defendant of the particular crime charged. Horne v. State, 12 Wyo. 143.

Evidence can only be offered tending to prove one distinct offense. The proof should be confined to it alone, the rule being that evidence of a distinct substantive offense cannot be admitted in support of another offense. Fields v. Territory of Wyo. 1 Wyo. 78.

As a general rule, the good or bad character of accused is never an issue to which the state may offer evidence unless accused chooses to make it an issue; and except where the character of accused is an element of the crime charged, and except to the limited extent to which accused's character may be attacked for purposes of impeachment when he takes the stand in his own behalf, it is almost universally agreed that the State is not entitled to introduce evidence of the bad character or reputation of accused unless he has clearly and expressly put his character in issue by introducing evidence of good character. 22 C. J. S. 1069.

Generally speaking there must be an attempt or offer to use the weapon coupled with the present ability to do so. 6 C. J. S. 931.

A witness called on behalf of the prosecution and who was subpoenaed by and testifled for the prosecution against the defendant at the preliminary examination will be presumed to have testified against the defendant although the record does not contain his evidence. 17 C. J. 222.

A new trial will not be denied because of lack of diligence where prior to verdict there was nothing to lead defendant to believe that the newly discovered evidence existed. 16 C. J. 1194.

Where the prosecution's case is weak and the new evidence would strongly tend to create a doubt as to defendant's guilt a new trial should be granted although such evidence is cumulative. Evans v. State, 46 S. 152.

It is the policy of the law to see to it that every person accused of crime shall have a fair trial and within the statutory limitations concerning grounds a new trial will be granted wherever it is apparent that otherwise there might be a miscarriage of justice. 16 C. J. 1121.

For the plaintiff and respondent the cause was submitted upon the brief of Honorable Norman B. Gray, Attorney General; John S. Miller, Deputy Attorney General and Marion R. Smyser, Assistant Attorney General, all of Cheyenne, Wyoming, and oral argument by Mr. Miller.

POINTS OF COUNSEL FOR RESPONDENT

In the absence of a valid statute to the contrary, courts do not take judicial notice of the rules of practice in other courts of equal or inferior authority, or of the practice or procedure of courts in another state. 31 C. J. S. 616.

It is the rule of law that, if counsel for a defendant on cross-examination deliberately injects improper evidence into the case, he may not be heard to complain because in rebuttal counsel for the state enters at the door which has been opened wide by the defendant. Riley v. State, 50 Ariz. 442, 73 P.2d 96; State v. Philpott, 222 Iowa 1334, 271 N.W. 617; Commonwealth v. Simpson, 300 Mass. 45, 13 N.E.2d 939, Johnson v. State, 141 Tex. Cr. R. 175, 147 S.W.2d 811.

Application for a new trial upon the grounds of newly discovered evidence was addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless it is shown that that court abused its discretion. Harden v. Card, 15 Wyo. 217, 231, 88 P. 217; annotation to Link v. Union Pacific Ry. Co., 3 Wyo. 680; Espy v. State, 54 Wyo. 291, 92 P.2d 549.

BLUME, Justice. RINER, C. J. and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Subsequent to a preliminary hearing, the county and prosecuting attorney of Sweetwater County filed an information against the defendant, Willie Mae Bentine, charging that the defendant on September 27, 1947, "did unlawfully, wilfully, feloniously, maliciously, and in a rude, insolent and angry manner, touch, strike, and wound one Fred Glaze, a human being, with intent then, there and thereby to unlawfully, wilfully, feloniously, purposely and with premeditated malice, kill and murder the said Fred Glaze, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming." The defendant pleaded not guilty. Trial of the case was commenced on January 8, 1948, and was concluded on January 9, 1948, at which time the jury returned a verdict against the defendant finding her guilty of assault and battery with intent to commit murder in the second degree as charged in the information. Judgment was entered and sentence imposed upon defendant on January 9, 1948. She thereupon brought this case to this court by direct appeal.

The crime charged herein was committed in a building in Rock Springs, Wyoming, the west part of which served the defendant as living quarters, but in the main part of which she conducted what she called a barbecue stand selling barbecued ribs, chicken, hamburger, ham and eggs, bacon and eggs, chili and beer. She employed, it seems, several girls, the character of some of whom came incidentally in question in the examination of Fred Glaze, the prosecuting witness. Error is assigned that he was permitted to testify to an independent crime, namely, that the defendant operated a house of prostitution. On cross-examination of this witness by counsel for defendant, he was asked whether or not he had had any previous trouble at the place of the defendant. He answered that there wasn't any trouble but that he was going with a girl working for defendant, and that she was a "hustler," although he did not know that at the time, and that defendant didn't want the girl to go out with him. So on re-examination of the prosecuting witness, he was again asked in reference to this trouble. The record in that connection is as follows:

"Q. Mr. Glaze, what was that trouble that you had down at the defendant's home?

A. Well, it was about the girl.

Q. Who was the girl?

A. The girl's name is Henrietta Peters.

Q. What was she doing?

A. A hustling girl.

Q. Where?

A. At Willie Mae's place.

Q. Does this defendant operate a house of prostitution?

MR. STANTON: We object to that as immaterial.

THE WITNESS: Well I don't know what you would call it. What do you mean by that?

Q. Does she have girls there for special use?

A. That's right, she does.

Q. And this trouble that you had was over one of those girls that was working for her?

A. Yes, it was about a girl."

It is quite clear from this that the matter of defendant having "hustling" girls was brought out by defendant's counsel on cross-examination and this matter was permitted to be more fully developed in redirect examination without any objection whatever. The court was not given an opportunity to rule on the one objection that was made, counsel for the defendant did not insist upon the court's ruling in that connection, no exception was taken, and the question to which an objection was made was left substantially unanswered. See in that connection 24 C. J. S. 932-934. The direct question to which objection was made added little, if anything, to the testimony which was given on the subject without any objection, and it is held that where an independent crime is shown by evidence without objection, other evidence showing that fact cannot be held to be prejudicial. 24 C. J. S. 991, 992. Apparently the matter was not regarded of very much importance and we cannot, under the circumstances, reverse the case on the ground of the error here assigned, although we do not wish to intimate that we approve of the conduct of the prosecuting attorney in that connection.

The defendant offered Instruction No. A which, among other things, stated: "The assault must have been coupled with a present ability to commit a violent injury on the person of the said Fred Glaze." The court refused this instruction and counsel says that it was error not to instruct the jury that her attempt of violence on Glaze should have been coupled with a present ability to do so. Counsel refer to 6 C. J. S....