State v. Buster

• Decision Date: 23 October 1915
• Citation: 152 P. 196,28 Idaho 110
• Parties: STATE, Respondent, v. GUY BUSTER, Appellant
• Court: Idaho Supreme Court

152 P. 196

28 Idaho 110

STATE, Respondent, v. GUY BUSTER, Appellant

Supreme Court of Idaho

October 23, 1915

MURDER-EVIDENCE-PHYSICAL CONDITION OF DECEASED AND DEFENDANT ADMISSIBLE - THREATS WHERE THREATENED PARTY NOT NAMED-DOUBT-HOW SOLVED-MALICE AFORETHOUGHT TO BE PROVED-MANNER OF PRESENTING INSTRUCTIONS TO JURY.

1. Held, that the court did not err in permitting the state to introduce evidence of the physical condition of the deceased at the time of the homicide.

2. In homicide cases threats made by defendant are generally admitted for the purpose of proving malice on his part against the deceased with the killing of whom he is charged and when admissible, their weight or probative force is a question for the jury. The admission of such declarations depends upon the subsequent acts of the defendant, and these acts must be of such a character as to lead the jury to believe beyond a reasonable doubt, when considered in connection with all of the testimony and the circumstances surrounding the commission of the crime, that the defendant at the time he made the declaration had in mind the deceased as the person against whom he entertained malice.

3. Where subsequent acts of the defendant clearly show that his prior declarations had no reference to such subsequent acts it is error for the court to admit those declarations. And this is particularly true when, by reason of such declarations, another and distinct criminal offense is proved.

4. The true rule is that the circumstances themselves in connection with the threat must, with a reasonable degree of certainty establish the fact that appellant alluded to or directed the threat in question against the deceased, before it can be admitted in evidence against him; and, if the circumstances in proof leave this matter in doubt, that doubt must be solved in favor of the defendant and the threat excluded.

[As to evidence of threats by deceased, in defense of homicide, see note in 89 Am.St.Rep. 692.]

5. In the absence of proof of malice aforethought, a conviction of murder in the second degree cannot be sustained.

6. Held, under the facts in this case, that the court committed reversible error in permitting the testimony of witness Weese to go to the jury.

7. Sec 7886, Rev. Codes, provides: "Either party may present to the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused, the court must indorse and sign its decision. If part be given and part refused, the court must distinguish, showing by the indorsement what part of the charge was given and what part refused."

8. Sec. 7902, Rev. Codes, as amended, Sess. Laws 1911, p. 48, provides: "Upon retiring for deliberation, the jury may take with them all exhibits and all papers (except depositions) which have been received in evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person."

9. Held, that it was reversible error for the court to permit instructions to go to the jury which it had theretofore concluded were not correct or pertinent, as such action was seriously prejudicial to the defendant.

APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.

Defendant was prosecuted on the charge of murder in the first degree, and convicted of murder in the second degree; sentenced to serve a term of imprisonment in the state penitentiary for not less than ten nor more than thirty years. From the judgment and the order denying motion for new trial, defendant appealed. Reversed.

Judgment reversed and a new trial granted.

F. J. Cowen, W. H. Holden and E. M. Holden, for Appellant.

The court erred in permitting testimony to be introduced in behalf of the state, in regard to the alleged difficulty between appellant and Simon Weese, which was not even remotely associated with any circumstance connected with the homicide. It was highly and seriously prejudicial and clearly inadmissible. (State v. Lancaster, 10 Idaho 410, 78 P. 1081.)

If the danger of appellant was either apparent or real, he was justified, and the judgment of conviction and order denying appellant a new trial should be reversed. (State v. McGreevey, 17 Idaho 453, 105 P. 1047.)

J. H. Peterson, Atty. Genl., T. C. Coffin and Herbert Wing, Assts., and John E. Rees, for Respondent.

Where the issue of self-defense is raised, the prosecution has the right to show the relative physical strength of the deceased and the defendant. (People v. Smith, 151 Cal. 619, 91 P. 511; Wilkins v. State, 98 Ala. 1, 13 So. 312; Gunter v. State, 111 Ala. 23, 56 Am. St. 17, 20 So. 632; Hinch v. State, 25 Ga. 699; State v. Beckner, 194 Mo. 281, 91 S.W. 892, 3 L. R. A., N. S., 535; Mott v. State (Tex. Cr.), 51 S.W. 368.)

The deceased does not need to be named in the threat in order to make the threat admissible in evidence. (People v. Webster, 139 N.Y. 73, 34 N.E. 730; State v. Larkins, 5 Idaho 200, 47 P. 945; Benedict v. State, 14 Wis. 423; Jones v. State, 76 Ala. 8; Jordan v. State, 79 Ala. 9; Ford v. State, 71 Ala. 385; State v. Guy, 69 Mo. 430.)

Malice having been shown, its continuation down to the time of the killing is to be presumed, in the absence of evidence to the contrary. (1 Wharton's Crim. Law (11th ed.), sec. 605; State v. Johnson, 23 N.C. (1 Ired. L.) 354, 35 Am. Dec. 742; State v. Tilly, 25 N.C. (3 Ired. L.) 424.)

The presumption of the intent to kill raised by the wilful and intentional use of a deadly weapon is properly stated in the state's requested instruction No. 10. (State v. Privitt, 175 Mo. 207, 75 S.W. 457, at 458; State v. Darling, 199 Mo. 168, 97 S.W. 592, at 596.)

To say that the defendant was put in fear of his life by an assault with a light cane, or was put in fear of great bodily harm thereby, is not tenable nor believable. (Carico v. Commonwealth, 7 Bush (70 Ky.), 124, 127.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

The defendant was charged by information filed May 1, 1913, by the prosecuting attorney of Lemhi county with the crime of murder in the first degree, resulting from the death of Henry Brown near the village of North Fork, in Lemhi county, on April 17, 1915.

On October 10, 1913, after a trial in the district court, a verdict was rendered by the jury finding the defendant guilty of murder in the second degree. On October 17, 1913, the defendant was sentenced to imprisonment in the state penitentiary for not less than ten nor more than thirty years.

Notice of intention to move for new trial and motion for new trial were thereafter duly made and by the court overruled. This is an appeal from the order of the court overruling defendant's motion for new trial and from the judgment.

The facts, briefly stated, are as follows:

On the night of the homicide the appellant met Mrs. Allie Agee at his sister's home near what is known as the North Fork post-office; and shortly thereafter, on the same evening, he met her again on the highway not far from his sister's home. The appellant, in company with Mrs. Agee and her son, walked down the road in the direction of the home of the deceased, and when within about three-fourths of a mile of the Brown residence they met the deceased coming in the direction of North Fork post-office. There is some slight conflict in the testimony given by Mrs. Agee and her son. However, in the main they both agree on what happened at the time of the homicide.

Mrs. Agee testified that she was walking between her son and the appellant; that her son saw Mr. Brown first and that he was walking toward them; that they walked along until they met him, whereupon the appellant stepped back a little so the deceased might pass and said, "Good evening"; that the deceased walked along and when he got even with appellant he raised his cane and said to the appellant, "Take a walk"; that the appellant stepped back a few steps and the deceased began hitting at him with a cane and said, "Take a walk" several times, and continued hitting at the appellant; that the appellant said "Don't, Mr. Brown," or words to that effect, several times; that the deceased kept on striking appellant, and appellant finally staggered from the effect of the blows and immediately thereafter fired the pistol two or more times, and when he fired the last shot the deceased fell to the ground; that she never heard the appellant make any remarks about Mr. Brown expressing a feeling of enmity toward him.

Walter Agee testified that when he first saw Mr. Brown he was rising to his feet; that he was "kinder sitting on his heels"; that he had a cane in his hand when the witness first saw him; that he (the witness) could not distinctly see, but it looked to him as if Mr. Brown was carrying the cane about the center; that he had hold of the cane at the lower end just a few feet before he reached them; that when Mr. Brown came up to where they were the appellant said "Good evening, Mr. Brown"; that Mr. Brown stepped up and struck him and said, "You take a walk, young man"; that Mr. Brown hit the appellant around the head and shoulders and continued striking at him while the appellant was going backward saying, "Don't, Mr. Brown"; that Mr. Brown continued striking until the cane broke and then the witness heard the shots and Mr. Brown fell; that he did not see the cane when it broke, but heard it break; that...