State v. Brown

• Decision Date: 26 September 1944
• Docket Number: 2288
• Citation: 60 Wyo. 379,151 P.2d 950
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. CLEVELAND BROWN, JR., Defendant and Appellant
• Court: Wyoming Supreme Court

151 P.2d 950

60 Wyo. 379

THE STATE OF WYOMING, Plaintiff and Respondent, v. CLEVELAND BROWN, JR., Defendant and Appellant

No. 2288

Supreme Court of Wyoming

September 26, 1944

Appeal from District Court, Lincoln County; H. R. Christmas, Judge.

Cleveland Brown, Jr., was convicted of murder in the first degree, and he appeals.

Affirmed.

For the Plaintiff and Respondent there was a brief by Louis J O'Marr, Attorney General, M. R. Foe, Deputy Attorney General, both of Cheyenne, Wyoming, and William S. Edmonds of Kemmerer, Wyoming, County and Prosecuting Attorney of Lincoln County, and oral argument by Mr. Edmonds.

POINTS OF COUNSEL FOR APPELLANT

The hearing had in the District Court, was not in contemplation of law, a "trial," since no issue was joined. This "appeal" is not actually an appeal within the contemplation of law. It is a review which it is our duty to request, similar to that provided in the Oklahoma practice by statute, where the Governor must refer all capital cases to the Supreme Court for its decision as to the legality of the proceedings. State v. Johnson, 21 Okla. 4, 99 P. 26; 22 L.R.A. N.S. 463.

The Supreme Court will certainly guarantee to this member of a minority race and the poor, ignorant being that he is, the full measure of the protection of the law so that no doubt may ever arise concerning the validity of his execution.

When a defendant pleads guilty to an information alleging in the statutory language, the crime of first degree murder, so that capital punishment may result therefrom, great precautions should be taken by the Court before accepting such plea of guilt. Green v. U.S. 40 Appellate D. C. 426, 46 L.R.A., N.S., 1117; State v. Best, 44 Wyo. 383, 12 P. 2d 1110; Nicely v. Butcher, 81 W.Va. 247, 94 S.E 147; State v. Stone, 101 W.Va. 53, 131 S.E. 872.

Where the defendant has pleaded guilty to an information charging first degree murder, the determination of the punishment is for the jury. State v. Best, (supra).

A plea of guilty is a conviction by judicial admission. It will of itself support a judgment and sentence just as though it were a verdict of guilty rendered by a jury. It can not be questioned by evidence and it need not be supported by the slightest quantum of proof. State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35; Patrick v. State, 17 Wyo 260, 98 P. 588; People v. Noll, 20 Cal. 164.

The only question to be presented to the jury is the application of its discretion as to what the punishment shall be. State v. Thorn, 39 Utah 208, 117 P. 58; People v. Kamsunu, 110 Cal. 609, 42 P. 1090; Cyrus v. State, 102 Ga. 616, 29 S.E. 917.

In a hearing before a jury, in which the sole question is the punishment which should be imposed on a defendant who has pleaded guilty to an information charging murder in the first degree, the State should not be allowed to present any evidence of the crime. Territory v. Miller, 4 Dak., 173, 29 N.W. 7.

If it be assumed that the state may present evidence to a jury whose sole duty is the determination of the punishment, limitations should be imposed on the introduction of such evidence. 4 Wigmore, Evidence, 3rd Ed. 251, Sec. 1157; State v. Long, 336 Mo. 630, 80 S.W.2d 154.

For the Defendant and Appellant there was a brief and also oral argument by Patrick J. Quealy and Ivan S. Jones, both of Kemmerer, Wyoming.

POINTS OF COUNSEL FOR STATE

Where defendant has been informed against in language charging first degree murder, substantially in the language of the statute, a plea of guilty may be entered thereunto and punishment therefore may be determined by the jury. State v. Best, 44 Wyo. 383, 12 P. 2d 110; 32-201, 33-515, 33-516, W.R.S. 1931; 21 C.J.S. Sec. 213, p. 387; People v. Egan, 275 N.Y.S. 697, 342 A.D. 507; State v. Simonton, 49 P. 2d 981, 100 Mont. 292; State v. Comery, 95 A. 670; State v. Almy, 67 N.Y. 274, 28 A. 372; Loucks v. State (Ind. 1937) 11 N.E.2d 694.

The defendant has the mental capacity to understand the effect and consequence of his plea of guilty to an information charging first degree murder, wherein the Court and counsel exercised every reasonable precaution to apprise the accused of the nature and probable consequences of his plea of guilty to such information. State v. Best, supra, Loucks v. State, Supra; 22 C.J.S. Sec. 58, pp. 122-123; Commonwealth v. Trippi, (Mass.) 167 N.E. 354; Patterson v. The People, 46 Barbour S.C. Rep. 633; Swain v. State (Ind.) 18 N.E.2d 921; Rosier v. State (Ga.) 195 S.E. 172; People v. Marquis (Ill.) 344 Ill. 261, 176 N.E. 314, 74 A.L.R. 751; Kemnamer v. State (Okla.) 57 P. 2d 646.

Upon the acceptance of plea of guilty to information charging murder in first degree, no issue remains, but only the question of punishment to be determined by the jury and instructions which also charge jury with the duty of determining the degree of the crime admitted, does not necessarily limit or circumscribe jury's discretion in fixing punishment. State v. Best, supra; State v. Thorne, (Utah) 117 P. 58; People v. Kamsunu (Calif.) 110 Cal. 609, 42 P. 1090; People v. Bollinger, 237 P. 25; Sec. 32-201, W.R.S. 1931; State v. Riley, 126 P. 294; State v. Romeo, et al., 126 P. 530; State v. Mewhinney, 134 P. 640; 29 U. S. Stat. et L. 456; Winston v. U. S. 172 U.S. 303; State v. Carroll, 52 Wyo. 29.

Under plea of guilty to information charging murder in first degree where evidence shows clearly guilt as charged, if it is error to instruct the jury as to the degree of murder, it is not reversible error. State v. Best, supra; State v. Ross, 16 Wyo. 285; Reppin v. State (Colo.) 34 P. 2d 71; Garcia v. State (Tex.) 237 S.W. 279; State v. Fitzgerald, 330 Mo. 407, 32 S.E. 1113; State v. Quinn, 56 Wash. 295, 105 P. 818; Brashear v. Commonwealth, 275 Ky. 356; 121 S.W.2d 718; People v. Hoyt, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; State v. Smith, 221 N.C. 278, 20 S.E.2d 313; Smith v. Roach, 56 Wyo. 205; Trammel v. State, (Ark.) 97 S.W.2d 902.

Where a plea of guilty is accepted to information charging murder in the first degree, it is proper for the state to introduce evidence to show the circumstances of the crime, and no prejudicial error resulted in the submission thereof, or the acceptance of the evidence offered in this case. State v. Best, supra; Harris v. State, 34 Wyo. 175; Konopisos v. State, 26 Wyo. 350; Mounts v. Commonwealth (Ky.) 12 S.W. 311; People v. Forbes (Calfi.) 26 P. 2d 466; State v. Popescue, 345 Ill. 142, 177 N.E. 739; Carson v. State (Tenn.) 23 S.W.2d 665; Evers v. State (Tex.) 22 S.W. 1019.

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

OPINION

BLUME, Justice.

On October 11, 1943, the County and Prosecuting Attorney of Lincoln County, Wyoming, filed in the Office of the Clerk of the District Court of Lincoln County, Wyoming, an information charging the defendant, Cleveland Brown, Jr., hereinafter called defendant, with the crime of murder in the first degree for killing one Elizabeth Kusnirik on October 1, 1943. On October 13, 1943, the defendant was brought into court and arraigned. The court inquired as to whether or not he had an attorney and defendant answered that he did not, and stated that he did not have any money. The following colloquy between the court and the defendant appears: "Q. The Court: You understand, of course, this is a very serious offense, charging you with murder in the first degree and if you plead guilty to this offense the jury may make a recommendation as to the nature of the penalty that may be imposed by the Court. Before you plead to this information do you wish to talk to a lawyer? A. Well, I tell you, Judge, I haven't got no relations up here, no friends at all--no one up here. I came here to work for the railroad on the section and therefore I ain't got nothing to say, just one thing and that is I am guilty. That is all I got to say about it. Q. What do you say, Mr. Brown, are you guilty or not guilty of the offense therein charged? A. Well, I am guilty." Thereupon a plea of guilty was directed to be endorsed upon the information, but the court stated that before disposing of the case he would appoint counsel for the defendant and appointed Ivan S. Jones, Esq., to represent him. On October 23, 1943, the defendant again appeared in court, accompanied by Ivan S. Jones, Esq., and Patrick J. Quealy, Esq., his counsel. The court was informed by counsel that they wished to withdraw the plea of guilty theretofore entered and enter a plea of not guilty by reason of insanity. Thereupon the following colloquy took place between the court and the defendant: "Q. The Court: You understand that, Mr. Brown? * * * that you withdraw your plea of guilty and enter a plea of not guilty by reason of insanity? You desire to do that do you? A. The only thing I say, Judge, I am guilty of it. The Court: What? A. One thing I say, I am guilty of the whole crime, I done it. The Court: Perhaps you will take the advice of your attorneys and the Court will order that your plea of guilty be withdrawn and the plea of not guilty by reason of insanity be substituted therefor. A. That is all I got to say about it; I am guilty, I done it." The clerk thereupon was directed to endorse on the information a plea of not guilty by reason of insanity. The court upon request of counsel fixed 15 days for observation of the defendant by physicians, and it appears that later the defendant was taken to the hospital for the insane at Evanston, Wyoming, for the period of 30 days for further observation as to his sanity. On December 14, 1943, the defendant was again brought into court and the following colloquy took place between the court and the defendant:

"Q. The Court: Counsel at this time inform me that you desire to withdraw that plea and enter a different plea. You have consulted with your...