State v. Carroll

Citation52 Wyo. 29,69 P.2d 542
Decision Date08 June 1937
Docket Number2000
PartiesSTATE v. CARROLL
CourtUnited States State Supreme Court of Wyoming

Rehearing denied July 20, 1937, without opinion.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Paul H Carroll was convicted of murder in the first degree and he appeals.

Affirmed.

For the appellant, there was a brief and an oral argument by Carleton A. Lathrop of Cheyenne.

The court erred in permitting the prosecution to ask the defendant on cross-examination questions with reference to an alleged prior killing. State v. Sorrentino, 31 Wyo. 129; Rosencrance v. State, 33 Wyo. 360; People v. Grider, (Cal.) 110 P. 586; Commonwealth v. Gibson, 119 A. 403; State v. Jones, 139 P. 441; People v. Lewis, 145 N.E. 149; State v. Nicholson, 7 S.W.2d 375; State v. Barri, 199 S.W. 136; Corliss v. State, 159 P. 1015; Watson v. State, 59 S.W.2d 127; State v. Gleim, 41 P. 998; State v. Crowe, (Mont.) 102 P. 579; Hager v. State, 133 P. 263; Scott v. State, (Okla.) 163 P. 553; Miller v. People, (Cal.) 201 P. 41; State v. Pierson, (Mo.) 56 S.W.2d 120; State v. Goodwin, 195 S.W. 725; Dredd v. State, 164 So. 309. The court erred in informing the jury under what conditions the defendant might be pardoned, if given a penitentiary sentence. Inman v. State, 72 Ga. 269; Valentine v. State, 77 Ga. 470; State v. Ellis, 98 Ohio St. 21; McBean v. State, (Wis.) 53 N.W. 497; State v. Fisher, (Mont.) 59 P. 919; People v. Flemming, 192 N.W. 625; Males v. State, (Ind.) 156 N.E. 403; State v. Mosley, (N. J.) 131 A. 292; State v. Dooley, 57 N.W. 414; State v. Shinovich, 40 Wyo. 174; State v. Eldredge, 45 Wyo. 488; Hamilton v. Territory, 1 Wyo. 131. The matter of punishment should be left to the discretion of the judge. 16 C. J., Sec. 2485; Parker v. State, 24 Wyo. 491; Cirej v. State, 24 Wyo. 507; Omaha v. State, 24 Wyo. 513; State v. Noah, 124 N.W. 1121; People v. Murphy, (Ill.) 114 N.E. 609; Smith v. U.S. 47 F.2d 518; Coward v. Commonwealth, (Va.) 178 S.E. 797. It was reversible error for the court to orally instruct the jury and orally explain and modify written instruction No. 11, after the case had been submitted to the jury. Sec. 33-902, R. S. 1931. Bradway v. Waddell, 95 Ind. 171; Lindley v. State, (Ind.) 153 N.W. 772; Lung v. Deal, 16 Ind. 349; Stevenson v. State, 110 Ind. 358; Smurr v. State, 88 Ind. 504; State v. Fisher, (Mont.) 59 P. 919; Milam v. State, (Okla.) 218 P. 168; Smith v. State, 17 Wyo. 481; Curran v. State, 12 Wyo. 553; Cutler v. Davidson, (Ind.) 146 N.E. 584; Littell v. State, (Ind.) 33 N.E. 417; Stephenson v. State, (Ind.) 11 N.E. 360; Thompson v. Commonwealth, (Ky.) 246 S.W. 435. It was error for the court to admit statements made by the defendant during the first 36 to 48 hours after the homicide, as the defendant was irrational during that period and was in the custody of officers. Calloway v. State, (Tex.) 244 S.W. 549; McHugh v. State, (Ala.) 31 Ala. 317; Clay v. State, 15 Wyo. 42; Strand v. State, 36 Wyo. 78; State v. Rotolo, 39 Wyo. 181; Kellum v. State, (Tex.) 238 S.W. 940. It was error for the court to permit medical experts for the state to give their opinion on the sanity of defendant based on evidence in the case, without asking hypothetical question. 11 R. C. L. 581; People v. McElvaine, (N. Y.) 24 N.E. 465; Prewitt v. State, (Miss.) 63 So. 330; State v. McKewon, (Wash.) 20 P.2d 114; State v. Eggleston, (Wash.) 297 P. 162. It was error for the prosecuting attorney to ask improper questions of witness Daniels in an attempt to disparage and prejudice the defendant before the jury. Error was committed in the reception and rejection of other evidence and in giving instructions 1 and 3, and the rulings on certain motions of defendant. Flanders v. State, 24 Wyo. 81. The defendant did not have a fair and impartial trial and the conviction was obtained without due process of law, in violation of the provisions of our constitution. Attorneys for the prosecution were guilty of misconduct, in questioning defendant with reference to a criminal charge made against him ten years ago, of which he was acquitted. The opinions of expert witnesses for the state were given in such a manner that the province of the jury was invaded.

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

It is only when courts conclude that misconduct of counsel may have caused the rendition of a verdict, which would not have been rendered, except for such misconduct that it may be raised as error. 8 Cafil. Jur., Sec. 604; People v. Anthony, 185 Cal. 152, 196 P. 47. The prompt sustaining of objections to improper questions coupled with instructions to the jury to disregard the question, will cure an error of this kind. Defendant made statements during the trial, indicating his guilt. The strongest case cited by appellant is Commonwealth v. Gibson, 119 A. 403, which involved a prior conviction and not an acquittal, about which defendant was interrogated. The Sorrentino case was not reversed. All of the cases cited by appellant may be readily distinguished from the facts in the case at bar, and we do not believe they are in point on the question of misconduct of counsel for the prosecution. Substantially identical questions were approved in the following cases: State v. Parks, (N. M.) 183 P. 433; People v. Johnston, (N. Y.) 127 N.E. 186; Smedley v. State, (Ark.) 197 S.W. 273; 1 Wharton Criminal Evidence, Sec. 358. The elements of insanity and intoxication in this case are merely trumped up because defendant had no other possible justification or excuse for claiming that he was guilty. Appellant's criticisms of the trial court in responding to the request made by the jury as to the functions of the Board of Pardons are without merit. State v. Rombolo, (N. J.) 99 A. 434; Sec. 32-201, R. S. 1931; State v. Carrigan, 108 A. 315; State v. Schilling, 112 A. 400; State v. Mosley, 131 A. 292; State v. Barth, 176 A. 183; Sullivan v. State, (Ariz.) 55 P.2d 312. It is only in cases where fundamental errors have been committed as to deprive the defendant of his constitutional right that a case will be reversed. Parker v. State, 24 Wyo. 491; Phares v. State, (Ark.) 249 S.W. 551; Lewis v. U.S. 295 F. 441; Durham v. State, (Ark.) 16 S.W.2d 991; State v. Henderson, (Ia.) 122 So. 591; Maxey v. State, (Texas) 285 S.W. 617; Bowman v. State, (Ind.) 192 N.E. 755; Newton v. State, (Tex.) 26 S.W.2d 233. The instruction given in State v. Shinovich is very different from the one complained of in the present case. In Postell v. Commonwealth, (Ky.) 192 S.W. 39, an inquiry was made by the jury as to whether a prisoner under a life sentence was subject to parole. The case was not reversed. The remarks of the court in the present case were not prejudicial. The jury was entitled to the information requested. While the statute, Sec. 33-902, R. S. 1931, provides that written instructions given shall not be thereafter orally qualified or explained to the jury by the court, it is not obligatory that instructions be in writing, unless requested by one of the parties. Curran v. State, 12 Wyo. 553. The remarks of the court were in the nature of a communication rather than a formal instruction. State v. Costales, (N. M.) 19 P.2d 189. Written instructions were requested in Lindley v. State, (Ind.) 153 N.E. 772, cited by appellant, which request was ignored, but it was held that the evidence against defendant was weak and the court was obliged to consider any error prejudicial to the defendant. Wertenberger v. State, (Ohio) 124 N.E. 243. We submit that in the absence of any request for written instructions, the defendant was not prejudiced and legal error was not committed, by the statement of the court either under the statute, or otherwise. Appellant also complains of the admission of statements made by defendant during the first 36 or 48 hours after the homicide, defendant having been irrational during that period, but there was evidence showing that defendant had not been drinking, and knew what he was doing at the time of the homicide. A number of the authorities cited by appellant with reference to appellant's condition are not in point. On the contrary, the Wyoming cases cited by appellant, instead of supporting his contention, show the contrary. Clay v. State, 15 Wyo. 42, was reversed because of erroneous instructions. Strand v. State, 36 Wyo. 78; State v. Rotolo, 39 Wyo. 181. The question of the manner and form of hypothetical questions propounded to expert witnesses, has never been passed upon in this state. Reference is made to this subject in Phifer v. Parker, 34 Wyo. 415. But, even conceding that such a question should be founded on the evidence of the party propounding the question, the rule was not violated in the present case. If the appellant felt that the expert did not give due consideration to defendant's evidence, he had the privilege of correcting the error on cross-examination. 2 Wharton's Criminal Evidence, 11th Ed. 1782; Commonwealth v. Sabo, 83 Pa. S.Ct. 166. Of the errors assigned by appellant, we submit that there are only two that are worthy of consideration by this court: the questions propounded relative to a former killing committed by the defendant and the oral remarks of the court relative to parole. The record shows strong evidence of defendant's guilt. We submit that there was no error prejudicial to the rights of the defendant resulting from the questions asked by the prosecution as to a prior offense.

BLUME, Chief Justice. RINER, J., concurs. KIMBALL, Justice, concurring and dissenting.

OPINION

BLUME, Chief Justice.

Paul H Carroll, herein called the accused or the defendant, was convicted of murder in the...

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