State v. Berger, 2593

• Decision Date: 26 January 1954
• Docket Number: No. 2593,2593
• Citation: 265 P.2d 1061,72 Wyo. 422
• Parties: STATE, v. BERGER.
• Court: Wyoming Supreme Court

Page 1061

265 P.2d 1061

72 Wyo. 422

STATE, v. BERGER.

No. 2593.

Supreme Court of Wyoming.

Jan. 26, 1954.

H. F. Fellows, Rapid City, S.D., Lem Overpeck, Belle Fourche, S.D., and R. G. Diefenderfer, of Sheridan, for defendant and appellant.

Howard B. Black, Atty. Gen., Paul T. Liamos, Jr., Dep. Atty. Gen., James L. Hettinger and Robert A. McKay, Asst. Attys. Gen., and oral argument by Howard B. Black, Atty. Gen., for plaintiff and respondent.

RINER, Justice.

The defendant and appellant in this case is one John Berger who was the defendant and appellant in our case No. 2614, Glover v. Berger, Wyo., 263 P.2d 498. It is conceded that this criminal prosecution arose on account of what transpired on September 13, 1951, in front of Berger's house in Crook County, Wyoming, near Oshoto. The facts in the case are quite fully set forth in the case filed in this court in the civil action, Glover v. Berger, aforesaid. It will not be necessary to detail the facts here too voluminously as they, as stated above, were set forth quite extensively in the civil case aforesaid. As a consequence of what occurred at the Berger ranch on the day mentioned there were filed in the district court of Crook County, Wyoming, three cases, viz.: the civil action of Glover v. Berger and two criminal proceedings, one of which was the case at bar, State v. Berger, in which Henry Boles appears as the complaining witness and the other State v. Berger in which Lee Glover appeared as the complaining witness. In the Glover criminal case Berger was charged with having committed an assault and battery on Lee Glover with intent to murder him. That case, with the civil case of Glover v. Berger aforesaid, was transferred on change of venue to Campbell County, Wyoming, and both were subsequently tried at the town of Gillette, the County seat of that county. In the civil case the Campbell County jury returned a verdict in favor of Glover for $15,000 upon which judgment against Berger was rendered in that amount. The criminal case of State v. Berger was also tried at Gillette, to a jury which found Berger guilty only of assault and battery on Glover, the man who was wounded in the arm, and the court imposed a sentence upon Berger on that verdict of $100 fine which was paid and no appeal was taken. The Glover criminal case was tried in the Campbell County district court before the civil case of Glover v. Berger was considered by the court.

The other criminal case, based on substantially the same facts except that Boles, the complaining witness, was not injured in any way, as we shall see, was allowed to remain in the district court of Crook County and was tried there at its county seat in the town of Sundance, Wyoming. The charge being that of 'assault with intent to kill and murder Boles.' This case is the one at bar and the verdict of the jury therein was 'guilty of assault with intent to commit manslaughter as charged in the information.' Upon this verdict Berger was sentenced to imprisonment in the State penitentiary for a term of from two to three years. From this sentence and judgment Berger prosecutes this appeal.

We shall endeavor to compress the facts appearing in the record into as brief a compass as possible, at the same time endeavoring to give as accurate a statement as can be made without omitting any really important element that should be given consideration.

In September, 1951, John Berger, the defendant herein, was engaged in operating a ranch property and some bentonite mineral interests in the vicinity of the Oshoto post office located on the western slope of the Black Hills in Crook County, approximately 20 miles north of the town of Moorcroft, Wyoming. Employed by Berger and living in his house were a young married couple, Darryl and Mae (May) Baker. The Berger ranch adjoined the ranch owned by Mrs. Mabel Fowler at one point and at another it touched the ranch operated by Lee Glover. Henry Boles was employed by Mrs. Fowler and lived in her ranch house. A few miles only separated the ranch houses of Berger, Mrs. Fowler and Glover.

Berger had lived on his ranch for about 50 years and was in the neighborhood of 65 years old at the time the events occurred, presently to be described. As many ranch folks in Wyoming frequently do he owned a rifle which he kept in his home. Glover was 31 years old and had lived on his ranch for many years. He was well acquainted with Berger and for the most part their intercourse was on a friendly basis, although on one occasion during the winter of 1948 they had a dispute at an ice pond concerning some straying horses belonging to Glover. But while Glover had violently shaken Berger at that time, it seems to have engendered no permanent ill feeling between the two men for they visited with each other as neighbors on several occasions thereafter.

Henry Boles, who was about 48 years old at this time, had known Berger since 1946 when Boles started working at the Fowler ranch. It seems he and Berger were also friendly, never having any trouble of any kind between them as neighbors riding in each other's pastures as adjoining ranchmen on friendly terms often do. Even on September 10, 1951, just three days before the trouble which ensued on September 13, they had agreed to do some fence work together on September 12th. At that time they went in Berger's truck and visited at some bentonite pits. On account of weather conditions Boles did not see Berger in order to work together as agreed. Instead, he and Mrs. Fowler went on an errand and procured some groceries for the ranch and returned to the Fowler home early in the evening of September 12, 1951. Mae Baker was there waiting for them. She then told Mrs. Fowler and Boles that when she, with her husband, and Berger had returned to the Berger ranch earlier that evening after visiting with her parents, they found two strange bulls attacking a bull which was owned by Mrs. Baker and which she had left tied to a tree during their absence. The brands on the two strange bulls were not capable of being deciphered, consequently, Mrs. Baker had ridden over to the Fowler ranch to learn if the animals belonged there. If they did, Mrs. Baker wanted Boles to come over and get them right away that evening so that the corral in which the animals were confined could be used that evening for milking cows. It appeared that one of these bulls belonged to Mrs. Fowler and the other was being pastured by her for another person who in fact owned the animal. Boles informed Mrs. Baker that he could not go over that night as he had, at that time, no saddle horse available. A rather unpleasant dispute developed between Mrs. Baker and Boles, and she shortly afterwards departed for her home in a somewhat angry frame of mind. Boles, however, told Mrs. Baker that he would go over the following morning and get the bulls. Darryl Baker upon learning what had occurred at the Fowler ranch endeavored to get the sheriff of Crook County to come and get the bulls, but was unable to locate that official. Meanwhile, Boles and Mrs. Fowler went to the Glover place and got Glover to agree to go with Boles the following morning to get the animals and also to determine what injuries, if any, Mrs. Baker's bull had suffered. On the morning of the 13th of September, 1951, these two men, Boles and Glover rode on horseback to the Berger house. On the way over they saw Mrs. Baker working with some of her own cattle. After talking briefly with her, Boles and Glover rode up towards the Berger house, accompanied by Mrs. Baker. Arriving there Mrs. Baker left the men and put her horse in the barn. However, the two men rode on to the house which was enclosed with a fence in front, the fence having a gate in it about 25' or 30' from the house. Darryl Baker was working on his truck a few feet away from where Berger and Glover stopped their horses.

In our case No. 2614 which was the civil action brought by Lee Glover against John Berger, the events which took place at the Berger ranch on September 13, 1951, and on which the case at bar was also based, were fairly well described and it will not be necessary to repeat them here.

However, at the risk of some repetition we desire to give a brief abstract of the direct testimony in substance of Henry Boles, the complaining witness in the case at bar, as to what occurred, as he saw it, on September 13, 1951, at the ranch of John Berger:

About three quarters of a mile from the Berger ranch Boles met Mae Baker. She was driving cattle at the time and Boles rode over to where she was and asked her where the Fowler bulls were and where John Berger was. After talking with Mrs. Baker, Boles and Glover rode on to the Berger ranch to see about getting the Fowler bulls. Glover, Mrs. Baker and Boles galloped along side-by-side and eventually rode up to the ranch in single file, Mrs. Baker leading. Boles did not see John Berger as he was riding up to the house; he was about 50 or 60 feet from the Berger home before he saw Mr. Berger. He, Berger, at that time was standing on the porch and when Berger saw Boles and Glover, he turned and went into the house and came out with a gun and said with an oath: 'Get your hands up in the air' and he kept swearing and coming right toward Berger and Glover. He then said: 'You have come here looking for trouble haven't you?'. Boles said: 'No, John, I haven't' and Boles further stated he said at that time: 'I just came after the bulls,' and then Berger said: 'Shut up.' Berger kept on saying: 'Keep your hands up there.' Finally, Berger looked at Glover and said: 'I ought to shoot you.' He also said he should have shot Glover the day Glover was riding in Berger's pasture looking for his, Glover's horses. Berger again said: 'Keep those hands up there.' Boles stated that both he and Glover had their hands in the air all the time. Berger finally took a shot at Glover; then said: 'I will wing you' and he pulled down and missed Glover that...