State v. Bristol

Decision Date05 December 1938
Docket Number2053
Citation53 Wyo. 304,84 P.2d 757
PartiesSTATE v. BRISTOL
CourtWyoming Supreme Court

APPEAL from the District Court, Albany County; VOLNEY J. TIDBALL Judge.

Myron Bristol was convicted of voluntary manslaughter, and he appeals.

Reversed and remanded.

For the appellant, there was a brief by J. R. Sullivan and G. R McConnell of Laramie and oral argument by Messrs. Sullivan and McConnell.

The verdict is not sustained by the evidence in the case. This court has a right to review the evidence and reverse the judgment, if the evidence is insufficient. Dahlberg v People, 225 Ill. 485, 80 N.E. 310; Keller v. People (Ill.) 68 N.E. 512; People v. McCann (Ill.) 93 N.E. 100; People v. Connor (Ill.) 92 N.E. 567; Petite v. People (Colo.) 9 P. 622; Schultz v Pac. Life Ins. Co., 14 Fla. 73; Armstrong v. State, 17 L. R. A. 493; Wilson v. Dibble, 14 Fla. 47. The jury was not entitled to guess what the intention of the defendant was. Mere conjecture cannot take the place of proof. State v. George, 40 Wyo. 95; Smith v. State, 40 Wyo. 128. There must be clear proof of acts of provocation in order to deprive defendant of the right of self-defense. Shannon v. The State, 35 Tex. Crim. Rep. 2; Winters v. State, 37 Tex. Crim. Rep. 582; Gilleland v. State, 44 Tex. 356. See also 13 R. C. L. 832 and note following 45 L. R. A. 689; 30 C. J. 52; Mason v. State, 88 Tex. Cr. Rep. 642, 228 S.W. 952. The word "unlawful" implies that the act is done or not done, as the law allows or requires. Bouvier's Law Dictionary. The word "intentional" signifies an intention to do the particular act, knowing that it is wrong. Ickenroth v. Transit Company, 77 S.W. 162; State v. Willing, 105 N.W. 355. The verdict in a criminal case must be based on substantial evidence. State v. Beshara, 274 N.W. 836; State v. Madden, 192 S.E. 859. Proof of all elements constituting the crime is necessary to convict. State v. Morris, 41 Wyo. 128. The verdict returned by the jury is contrary to law, contrary to the evidence and contrary to the instructions of the court. The ancient doctrine of self-defense does not arise until every effort to escape has been made, has been supplanted by the doctrine that a man unlawfully assaulted in a place where he has a right to be and put in danger of losing his life or receiving great bodily harm, may stand his ground and repel force with force, even to the taking of the life of the assailant, if necessary, for the preservation of his own life or to protect himself from great bodily harm. 2 L. R. A. (N. S.) 55. Instruction 21 given by the court embodies the law of self-defense. Myers v. State of Indiana, 137 N.E. 547; Allen v. Commonwealth, 86 Ky. 642; State v. Evans, 124 Mo. 397; 18 A. L. R. 1291 and note; People v. Hecker (Cal.) 42 P. 307; King v. State, 13 Tex.App. 227. The burden is on the state to show that the accused was at fault. Gibson v. State, 89 Ala. 121; Keefe v. State, 97 Ala. 32. Instruction numbered 15, given by the court, was objected to by defendant, for the reason that it failed to state the law of self-defense. It directed the jury to enter into the field of speculation. Instruction 16 given by the court was objected to by defendant, for the reason that there was no evidence to show that defendant was the aggressor or provoked the difficulty. Instruction 17 given by the court did not state the law of self-defense. Tardy v. State, 78 S.W. 1077; State v. Bartlett, 59 L. R. A. 756; State v. Hudspeth (Mo.) 51 S.W. 483; State v. Radon, 45 P. 383; Thomas v. State (Texas) 51 S.W. 1109; Courtwright v. State, 14 Tex.App. 486; Shannon v. State, 35 Tex. Crim. Rep. 2. Instruction 18 given by the court is similar to instruction No. 15 and subject to the same objections. It conflicts with instructions 21 and 24 given by the court. Instruction 21 is defective in that it told the jury that defendant cannot be held blameless, unless it appears that he is in great peril of death or serious bodily harm, or has reasonable grounds for so believing, and that the killing is necessary to avert such peril. There is a serious conflict in the law announced in instructions numbered 15, 16, 17 and 18, which were intended to cover imperfect self-defense and instructions numbered 19, 20, 21 and 22, which set forth the rule of perfect self-defense and are based on the record in this case. Section 33-402, R. S. 1931 requires the prosecuting attorney, after motion made for that purpose, to endorse the names of all the witnesses for the state, on the information. The prosecutor failed to endorse the names of Evelyn Skogerson and Joseph Pippert on the information and said witnesses were permitted to testify over the objections of defendant. It is respectfully submitted that the evidence is insufficient to support the verdict.

For the respondent, there was a brief by Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and a supplemental brief by Glenn Parker of Laramie, and oral argument by Mr. Shea and Mr. Parker.

We concede the rule laid down in Dahlberg v. People, 226 Ill. 485, that a verdict will be set aside, if it appears to be the result of passion and prejudice. Otherwise, an appellate court has no right to interfere with the verdict of a jury--even though the higher court may feel that it would have reached a different conclusion. A careful examination of the authorities cited by appellant's counsel will show controlling distinctions in the facts and circumstances, in each of the cases so cited. In this case, the jury were not obliged to believe the testimony of the defendant. It was so contended in State v. Flory, 40 Wyo. 184, but it was not sustained by the court. The reasoning followed in Shannon v. State, 35 Tex. Cr. Rep. 2, is generally at variance with the reasoning of courts in other states, under similar facts, and much that was said in the Shannon case was later rejected in Gilleand v. State, 44 Tex. 356. We agree that mere conjecture cannot take the place of proof in this case, as it is admitted that defendant shot and killed deceased. The proof of this fact made a prima facie case on the part of the State, following which it was incumbent upon the defendant to introduce evidence, raising at least a question of reasonable doubt as to whether defendant was justified in his shooting of the deceased. There was no conjecture as to the fact of the killing. Whether defendant's testimony established self-defense was a question for the jury. State v. Sorrentino, 31 Wyo. 129. Appellant contends that he was in a place where he had a right to be and therefore was not obliged to retreat. A like contention was made in State v. Flory, but the court held that it was unnecessary to pass upon such contention. This court has repeatedly held that the right to protect one's habitation gives no moral right to kill another, unless it be necessary. State v. Sorrentino, supra; State v. Radon, 45 Wyo. 383; 35 C. J. 64; 1 Wharton's Criminal Evidence, 11th Ed. Vol. 1, p. 438; McCurry v. Commonwealth (Ky.) 265 S.W. 630; People v. Fucarino, 93 N.Y.S. 689. A verdict flagrantly against the evidence should be set aside. Peay v. Commonwealth (Ky.) 205 S.W. 404; Shannon v. State, supra. Courts are extremely cautious in invoking such rule. East v. Commonwealth (Ky.) 60 S.W.2d 157. The jury is not obliged to believe all or any part of defendant's testimony unless corroborated. State v. Aragon, 41 Wyo. 308; Mullins v. Commonwealth (Ky.) 215 S.W. 56; Posten v. Commonwealth (Ky.) 276 S.W. 545; Smith v. State (Ark.) 107 S.W.2d 1019; Allen v. State (Ga.) 179 S.E. 555; Bottoms v. State (Ga.) 168 S.E. 918; Lamp v. State (Ga.) 142 S.E. 202. The sufficiency of defendant's evidence was a question for the jury. Schultz v. Ins. Co., 14 Fla. 73; Mason v. State (Tex.) 211 S.W. 593; State v. Pusey (W. Va.) 188 S.E. 745; Holt v. State (Tenn.) 92 S.W.2d 397; McMullen v. State (Ga.) 165 S.E. 479. Appellant concedes the correctness of instruction numbered 21 given by the court, but we contend that it was too favorable to the defendant. The rule contended for by appellant is stated in Graham v. State (Ohio) 120 N.E. 232; also in Colondro v. State (Ind.) 125 N.E. 27; State v. Thornton (N. C.) 190 S.E. 758; King v. State (Ala.) 171 So. 254; State v. Stevenson (Del.) 188 A. 750. The two cases last cited hold that one must retreat rather than take a life, if there is a convenient mode of retreat without increasing one's peril. The right of human liberty will be best conserved by throwing around human life every reasonable safeguard. Instruction numbered 15, given by the court, over defendant's objection is in the identical language of the court in State v. Durham, 29 Wyo. 85. Counsel for appellant opposes instruction numbered 17 given by the court, but we contend that it correctly states the law. Appellant, at least by inference concedes that instructions numbered 19, 20, 21 and 22 are correct. Instructions numbered 15 and 18 are substantially identical. Appellant urges that error was committed in admitting the testimony of witnesses whose names were not endorsed upon the information, but fails to show why error was committed in the admission of their testimony. It is further urged that because Overton was endorsed upon the information, the prosecution was obliged to call him as a witness, notwithstanding the fact that Overton had changed his testimony. We believe the point is without merit. It is respectfully submitted that the judgment should be affirmed.

Supplemental brief for respondent by Glenn Parker, Prosecuting Attorney of Albany County.

As to the sufficiency of the evidence to sustain the verdict, we direct attention to State v. Ernst, 40 Wyo. 64, and State v. Weekley, 40 Wyo. 162; Stark v State, 17 Wyo. 55, and ...

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    ...does not forfeit his right to self-defense by words alone.2 A mere glare has also been held to be insufficient. State v. Bristol, 53 Wyo. 304, 84 P.2d 757, 766 (1938). Also, a defendant is generally not regarded as an initial aggressor merely because he armed himself or went to a place wher......
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