State v. Cerar

• Decision Date: 31 May 1922
• Docket Number: 3777
• Citation: 60 Utah 208,207 P. 597
• Court: Utah Supreme Court
• Parties: STATE v. CERAR

207 P. 597

60 Utah 208

STATE v. CERAR

No. 3777

Supreme Court of Utah

May 31, 1922

Appeal from District Court, Seventh District, Carbon County; F. E Woods, Judge.

John Cerar was convicted of murder in the first degree, and he appeals.

AFFIRMED.

O. K Clay and O. C. Dalby, both of Price, for appellant.

Harvey H. Cluff, Atty. Gen., and W. Hal Farr, Asst. Atty. Gen., for the State.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The defendant, hereinafter called appellant, was convicted in the district court of Carbon county, Utah of the crime of murder in the first degree, was sentenced to be executed, and appeals from the judgment.

The evidence relating to the acts constituting the alleged murder is singularly free from conflict and is quite brief. The evidence, in substance, shows that appellant and one Masser, both Austrians, came to this country more than 30 years prior to the alleged murder. They first met in the state of New York, and from thence went to Cleveland, Ohio, and from thence came to Utah. At the time of the homicide, and for a number of years prior thereto, they were both employed in the coal mines of Carbon county. The evidence shows that during all of the years of their acquaintance they were friends and at the time of the alleged murder and for about 10 days prior to that time, they were boarding at the same house and slept with several others in the same room, but not in the same bed. On Sunday preceding the homicide the appellant and Masser attended a wedding of one of their countrymen at Sunnyside, Utah where the mines in which they were employed are located. The evidence is also to the effect that the appellant in all probability drank intoxicating liquors during Sunday and Sunday night. It does not appear, however, how much he drank, nor whether he became intoxicated, and, if so, to what extent. The evidence is also quite unsatisfactory with respect to whether he or Masser slept any during Sunday night, but the inference therefrom is that they did not go to bed at all during that night. They were first seen together on Monday morning, March 7, 1921, the day of the homicide, in their boarding house by the woman with whom they were boarding (also an Austrian) at about 5 o'clock. They were then seated at or near the dining table in the dining room talking to each other. Some hours later, between 9 and 10 o'clock, they were seen a short distance from the boarding house by one Marshall, who had known both of them for several years. When Marshall saw them the appellant seemed to be angry and in bad humor, and they were talking in their own language in what appeared to Marshall to be a somewhat angry mood. They remained outside of the house only a brief space of time, when both of them, Masser leading, went back into the boarding house. Just what occurred during the next few minutes is left to inference merely. The evidence of their landlady, however, is that Masser wanted to go out again, but that the appellant said that they better go to bed. They accordingly retired to their bedroom. In a very brief space of time thereafter the landlady says she heard some noise and heard the appellant say, "I guess you got enough; they can do with me what they please," and that immediately thereafter he opened the door, which was closed, and left the house. Immediately after appellant had made the foregoing statement and had left the house the landlady went into the bedroom and found Masser's trunk open and found him lying face downward on the open tray of his trunk, while appellant's trunk was also open, and a bloody axe was lying near the door on the floor. Masser was apparently unconscious, and the landlady, in attempting to lift him from the trunk, saw the blood streaming from his wounds and became excited and scared, and let him fall on his back on the floor of the bedroom and near the trunk. In entering the bedroom she had stepped on the axe, and, to prevent her small children from seeing or handling it she took it up at once and placed it under some furniture. She immediately called the witness Marshall aforesaid, who was only a short distance from the house, and he immediately came to the house and found Masser lying in the bedroom in the condition just stated. It was testified to that Masser had two wounds, one near the base of the brain about three of four inches in length and several inches deep and the other on top of his head practically of the same character. The doctor's testimony was to the effect that the wounds were fatal. Indeed, Masser never recovered consciousness after he was found in the condition before stated. The appellant, on leaving the boarding house, went directly to the office of the coal company, his employer, which was a half mile distant from the boarding house, and there in an excited manner stated to the chief clerk and to the deputy sheriff that he had just struck his best friend Leo with an axe. Appellant was taken into custody by the deputy sheriff, and later in the day was by the sheriff, with whom he was quite well acquainted, taken to the county seat of Carbon county. He voluntarily told the sheriff what he had done, and, pointing to his breast, he said, "Something in here told me to do it." He also said that he and Masser had been gambling, and that he had lost all of his money by gambling with Masser, and that Masser did not want to play with him any further on the morning of and preceding the homicide. It appears in evidence that Masser had told him that the reason he did not want to play further was because the latter became angry when he lost, and Masser would rather not play with him. It also was made to appear that a short time before the homicide the appellant had received about $ 200 as payment for some household goods he had sold; that Masser had won all of that money; that appellant had borrowed a considerable sum of money from two friends which Masser had also won; and that during the preceding year Masser had won about $ 1,000 of appellant's money. It also appeared that at the office of the coal company appellant told the chief clerk to pay the amounts he had borrowed to the two persons from whom he had obtained the money borrowed. While on their way to the county seat a snowstorm overtook the sheriff and appellant, and the latter told the sheriff that snowstorms would not bother him any more thereafter, since "they" would "take care of me." The appellant at the trial testified in his own behalf, but, according to his statements, he did not have a distinct recollection of what had occurred on the morning of the homicide or how it occurred. Many other facts and circumstances he also seemed to have forgotten. There is also considerable evidence respecting appellant's conduct during the years preceding the homicide, his habits and those of his father and mother, that one of his brothers was in an insane asylum, and respecting appellant's mental condition. It is not necessary to now state that evidence in detail nor that with respect to his general reputation for peaceableness, etc. That evidence, so far as deemed material, will be referred to in the course of the opinion in connection with the errors discussed.

Many errors are assigned by counsel for appellant. In considering them it is more convenient for us not to follow the order in which the errors are assigned, and we shall therefore not do so.

It is insisted that, in view that appellant was charged with and tried for a capital offense, the "district court abused its discretion in allowing the jury to separate" during the trial. Comp. Laws Utah 1917, § 9001, so far as material here, provides:

"The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer."

We have carefully examined the record and have found nothing from which it could be surmised, much less asserted, that the court's action in permitting the jury to separate was not thoroughly satisfactory to both the appellant and his counsel. Moreover, nothing is shown from which any one could infer that the appellant was in any way or to any extent prejudiced by the court's action in permitting the jury to separate. Had the appellant or his counsel objected to the separation of the jury, or if a request had been made to place the jury in charge of an officer and some misconduct on their part were made to appear, then the question of abuse of discretion might have arisen. Under the circumstances, however, as was held in People v. Callaghan, 4 Utah 49, 6 P. 49, the matter of permitting the jury to separate during the trial and before the submission of the case was within the discretion of the court.

The district court therefore committed no error in permitting the jury to separate during the trial.

Appellant's counsel also urges that the court erred in charging the jury upon appellant's plea of insanity. The particular language excepted to is as follows:

"All that he [appellant] is required to do is to produce sufficient evidence of want of sanity, which evidence, when considered with all the other evidence in the case, will create a reasonable doubt in the mind of the jury. * * *"

The excerpt quoted is taken from appellant's request No. 1. The district court therefore merely adopted counsel's own language. That being so, the alleged error, if it were conceded to be such, would ordinarily come within the doctrine of "invited error," and the party offering the request would not be permitted to complain of the error. If, however, in view that this is a capital case, we should disregard the general rule, yet, when the charge is considered as a...