State v. Bruner

• Decision Date: 07 January 1958
• Docket Number: No. 2798,2798
• Parties: The STATE of Wyoming, Plaintiff and Respondent, v. Albert E. BRUNER, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 863

319 P.2d 863

78 Wyo. 111

The STATE of Wyoming, Plaintiff and Respondent, v. Albert E. BRUNER, Defendant and Appellant.

No. 2798.

Supreme Court of Wyoming.

Jan. 7, 1958.

G. R. McConnell and Walter Scott, Laramie, for appellant.

Thomas O. Miller, Atty. Gen., and Ralph M. Kirsch, Asst. Atty. Gen., Cheyenne, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

Albert E. Bruner, the defendant and appellant herein, was convicted by a jury in the District Court of Albany County, Wyoming, of murder in the second degree for killing his wife, Blanche Douglas Bruner. He was sentenced to confinement in the penitentiary for a period of twenty to twenty-five years. From that conviction and sentence he has appealed to this court.

I. Counsel for the defendant contend that the defendant was not rightly convicted and taken into custody on account of the fact that the informations in the court of a justice of the peace and in the district court charging the defendant with murder in the first degree were merely sworn to on an information and belief. Counsel made motions to quash the information and warrant for the arrest of the defendant. The first motion was sustained. When the second information was filed in the justice's court and a warrant for the arrest of the defendant was issued, the motion to quash was overruled and that was true also as to the motion to quash the information filed in the district court. Counsel for the defendant assign these rulings as error.

Courts are not in harmony on the subject before us. See 22 C.J.S. Criminal Law § 309, p. 462; 42 C.J.S. Indictments and Informations § 86, pp. 947, 951. Section 10-604, W.C.S.1945, provides that when the information in any case is verified by the county and prosecuting attorney, it shall be sufficient if the verification shall be on an information and belief. Counsel for the defendant, however, contend that this statute is not controlling in view of the fact that § 4 of Article I of our Constitution provides:

'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.'

Counsel say that an information based only on information and belief does not state facts showing probable cause as required by the constitution. They cite us a number of cases decided in this court. State v. Boulter, 5 Wyo. 236, 39 P. 883, is hardly in point. It merely deals with an information filed in the district court for a higher degree of offense than that found by the justice of the peace. Furthermore, our statutory provision above mentioned was not discussed. State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A.L.R. 1284, is distinguishable by reason of the fact that in that case the information was verified by a private individual instead of the prosecuting attorney. In Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, it was held that an information by the prosecuting attorney upon information and belief is sufficient for all purposes except issuing a warrant for defendant's arrest.

We do not think that it is necessary in this case to make an exhaustive research of the subject before us. When the second information in this case was filed before the justice of the peace, the prosecuting attorney also filed an affidavit. In that affidavit he stated in positive terms many of the facts which were subsequently brought out in the trial of the case. These facts so stated in positive terms were facts showing probable cause that the defendant was guilty of killing the deceased and consequently were sufficient in connection with the information to show probable grounds for arresting the defendant and taking him in custody. A hearing was had before the justice of the peace. He found that probable cause existed to believe the defendant guilty as charged. The information in this case filed in the district court on September 7, 1956, was sworn to by the county and prosecuting attorney to the effect that he had been reliably informed and verily believed the facts stated to be true. That was sufficient verification to hold the defendant in view of the findings of the justice of the peace. Brown v. People, 20 Colo. 161, 36 P. 1040; In re Boulter, 5 Wyo. 329, 40 P. 520, 524; Washburn v. People, 10 Mich. 372.

The foregoing assignment of errors is accordingly overruled.

II. The defendant in this case testified that he called up the train crew dispatcher at Cheyenne about five-thirty on the morning of May 25, 1956. To show that he was in error, the state called Marion E. Babcock, train crew dispatcher at Cheyenne. She testified that she made a note of the calls made to her; so the counsel for the defendant objected to her oral testimony, claiming that the notes made by her were the best evidence. The objection was overruled and this is assigned as error. It is stated in 2 Wharton's Criminal Evidence, 12th Ed., p. 501, as follows:

'When the fact as to which evidence is sought to be adduced is one that may have been observed by a witness, then his testimony regarding what he has seen or heard is primary evidence, regardless of whether such fact is reduced to writing and incorporated in a record or document because the witness testifies, not as to what the writing contains, but as to what he observed.'

A case close in point herein is Kilpatrick v. Kilpatrick, 123 Conn. 218, 193 A. 765, 768. In that case a witness had overheard a conversation and at least part of the testimony was recorded on discs. The witness was permitted to testify to the conversation, and it was objected that that was not the best evidence. The supreme court said on that point as follows:

'* * * The plaintiff's contention that under the best evidence rule, the discs themselves were the only proper evidence of this conversation, apparently was not seriously urged, for shortly after, when the defendant did offer these discs in evidence, the plaintiff objected because they were not complete. Obviously the fact that a part of the conversation which Naylor heard over the earphones was at the same time mechanically recorded, did not affect the admissibility of his testimony of what he in fact heard. However, the court did not err in subsequently admitting the discs themselves as exhibits, for whatever corroboration they might afford.'

We think that these authorities clearly show that the error assigned is not well taken and it is, accordingly, overruled.

III. The defendant asked the court to give the following instruction:

'The Court instructs the jury that where a man is charged with the homicide of his wife there is a strong presumption of innocence arising from the existence of the marital relation in addition to the legal presumption of innocence that exists in all cases where a person is accused of crime.'

The court refused the instruction and it is charged herein that that was error. The record fails to show that any exception was taken to the refusal of the court to give the instruction, so that it is hardly necessary to take note of the assignment of error. We may, however, mention the fact that the presumption mentioned in the refused instruction finds strong support in State v. Watkins, 9 Conn. 47, 21 Am.Dec. 712; State v. Green, 35 Conn. 203, and see People of State of New York v. Greenfield, 23 Hun 454, 465, affirmed 85 N.Y. 75, 39 Am.Rep. 636; 40 C.J.S. Homicide § 198, p. 1098, notes 40, 41. It seems that presumption was also held to exist in some of the earlier Missouri cases; but these cases were overruled in the case of State v. Soper, 148 Mo. 217, 49 S.W. 1007, 1011. In that case the court said, speaking of the earlier cases:

'* * * I think both of these cases should be overruled. If they are to stand, it would result, and logically follow that such doctrine must necessarily be extended to every near blood relation of the immediate family of the person accused. No reason exists why it should not, and every one why it should, be thus extended. There is no more reason why a married man accused of the murder of his wife should have this two-ply presumption thrown around him, than a single man charged with the murder of his sister, or his brother, father, or mother. Whence I conclude that an old-fashioned one-ply presumption of innocence is amply sufficient for all practical purposes of the administration of the criminal law.'

And in Hawes v. State, 88 Ala. 37, 7 So. 302, 314, the Supreme Court of Alabama said as follows:

'The law presumes innocence of crime in all cases until the contrary is shown. But we know of no principle upon which to this general presumption of innocence, other presumptions, depending on the relations which the alleged criminal bore to the victims of the crime, could be added. If a man, in addition to the general presumption, is entitled to further protect himself from punishment by a presumption of affection for his daughter, we see no reason why the principle may not be extended to other relatives indefinitely, and to his friends, and even to mankind at large, upon evidence of his kindly and affectionate disposition, or relations general and special, thus multiplying the issues without limit, and confusing the jury. Such is not the law. The presumption is single, and the same in all cases, and in all must be overturned by evidence which excludes every other reasonable hypothesis than that of guilt. Beyond this, whatever the relations of the alleged author and the victim of the act charged, the prosecution need not go. * * *'

The same view seems to be taken in Texas and Louisiana. A like view has been taken by the Supreme Court of Iowa in State v. Meyer, 180 Iowa 210, 163 N.W. 244, 247. However, in that case, while the court refused to give an instruction...