State v. Cobo
| Decision Date | 23 September 1936 |
| Docket Number | 5502 |
| Citation | 60 P.2d 952,90 Utah 89 |
| Court | Utah Supreme Court |
| Parties | STATE v. COBO |
Appeal from District Court, Fifth District, Juab County; Nephi J Bates, Judge.
Pete Cobo was convicted of voluntary manslaughter, and he appeals.
REVERSED AND REMANDED FOR NEW TRIAL.
Chris Mathison, of Salt Lake City, and P. J. Sanders, of Nephi, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
The information upon which the defendant, Pete Cobo, was tried for murder charged that on May 18, 1933, at Juab county, Utah, the defendant willfully, unlawfully, feloniously, and of his malice aforethought by some means unknown, instruments and weapons, struck one Frank G. McIntyre upon the head and face, thereby causing his death. A jury found the defendant guilty of voluntary manslaughter. Defendant on this appeal contends that the state failed to prove the corpus delicti; that there is no substantial evidence that the death of the deceased was caused by blows struck or wounds inflicted by the defendant; that there is no substantial evidence that the defendant struck or beat the deceased with intent to kill him; that there is no substantial evidence that the defendant struck and beat the deceased with any instrument or thing which was likely to produce death or great bodily injury; that the court misdirected the jury in certain particulars and failed to properly instruct the jury with regard to the charge of manslaughter.
We cannot agree with the contention of appellant that the state failed to prove the corpus delicti. The evidence shows that an altercation between the defendant and the deceased occurred between 8:00 and 9:00 o'clock on the night of May 18, 1933; that defendant and the deceased were engaged in a fistic encounter; and that while so engaged, the deceased slumped to the ground. Efforts were made to revive him, but he died within a short time. A physician was called about 11:00 o'clock and pronounced him dead. The body was taken immediately to an undertaking parlor, where at about 1:00 a. m. two physicians examined the body and noted that there were some bruises on the left side of the face, a bruise and contusion on the left side of the chin, a slight cut on the left lower lip, a slight scratch on the right side of the face, and a bruise at the back of the head. An incision was made, the scalp pulled back, the top of the skull removed, and the brain examined and removed. The physicians found that death was due to a subdural hemorrhage caused by external violence to the face and head. The physicians who made the examination were competent and qualified to determine that death was due to a subdural hemorrhage. Having thus concluded what death was due to, it was unnecessary to make an examination of other vital organs.
The evidence is sufficient to show that whatever violence was inflicted on the body of the deceased was inflicted from blows struck by defendant in the encounter or fight. The fact of death being shown, and evidence to show that the cause thereof was from blows struck by defendant, sufficiently established the corpus delicti, the body of the alleged crime, to the same effect, though in less degree, where the state shows the death of another caused by a gunshot wound inflicted by the accused.
The particular contention here made by the defendant in such respect is that it was not sufficiently shown that the death was caused from the blows or violence inflicted by defendant on the body of the deceased; that is, not sufficiently shown that the death was due to such or any external violence. But the testimony of the physicians who made the autopsy is to the effect that the subdural hemorrhage--the immediate cause of death--could be and probably was produced from the infliction of violence as shown by the character of the bruises and contusion on the chin, on the back of the head, and on the face of deceased; that is, the force and extent of violence inflicted to produce such character of bruises and contusions could and probably did produce the subdural hemorrhage. We think the corpus delicti was sufficiently established. "Corpus deliciti" as applied to homicide cases means the fact of death and the criminal agency of another person as the cause thereof. Shaw, Chief Justice, in Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, Bemis' Rep. 473, says:
"In a charge of criminal homicide, it is necessary in the first place by full and substantial evidence to establish what is technically called the 'corpus delicti,'--the actual offense committed; that is, that the person alleged to be dead is in fact so; that he came to his death by violence and under such circumstances as to exclude the supposition of a death by accident or suicide and warranting the conclusion that such death was inflicted by a human agent; leaving the question who that guilty agent is to after consideration."
See, also 30 C. J. 139, § 346, and cases cited; 13 R. C. L. 736; People v. Jones, 123 Cal. 65, 55 P. 698; McBride v. People, 5 Colo. App. 91, 37 P. 953; State v. Millmeier, 102 Iowa 692, 72 N.W. 275; 4 Wigmore on Evid. (2d Ed.) § 2072, and cases cited.
As to whether or not the evidence is sufficient to sustain the verdict of manslaughter presents a more serious question. We shall briefly review this evidence. The defendant resides at Eureka, Utah. On May 17, 1933, Mrs. Cobo, the wife of defendant, had given birth to a baby. In the evening of May 18th, defendant Pete Cobo and a number of his friends were in the dining room of the Cobo home celebrating the birthday event by imbibing freely of intoxicating liquor. About 8:30 p.m. of May 18th, Frank G. McIntyre, the deceased, together with one Horace Hillman, both of whom had been drinking heavily, came to defendant's home and joined the defendant and others in the dining room. Upon entering, McIntyre asked for some liquor, but defendant declined to give him any. McIntyre began talking loudly and, using some profanity, repeated that he wanted some liquor. The defendant again refused. An attendant, Mrs. Osborne, came out of Mrs. Cobo's bedroom, which adjoined the dining room, and requested that McIntyre make less noise as Mrs. Cobo was sick. McIntyre quieted down for a short time, then repeated that he wanted some liquor, and again the defendant replied that he did not have any.
McIntyre left the room but returned in a few minutes with a jug in his hand and with an oath said that he did not want any of the defendant's liquor; that he had some of his own. The jug fell out of his hands. The defendant picked it up, stating that he would break it. McIntyre requested the defendant not to break the jug and defendant then handed it to him and said, "Well, take it and go home." The defendant turned to Hillman and said, "You go, too." McIntyre and Hillman left the house and got into McIntyre's automobile, which was parked in front of the home. When McIntyre and Hillman left, defendant slid the bolt on the dining room door. Within a short time McIntyre returned and began hammering on the dining room door. The defendant asked who it was. McIntyre replied that it was he and asked that defendant open the door. Defendant refused and told McIntyre he had better go home. McIntyre stated that he was not going home, and defendant then said: "You better go some place; get away from here, I don't want any more noise." McIntyre made an insulting reply, and defendant turned out the lights and asked those in the room to keep quiet. The hammering on the door continued. While the lights were out, defendant walked over to the door, slid back the bolt, and opened the door part way. At that time McIntyre was at the door with a chair in his hand which he had no doubt used to hammer on the door. Defendant pushed McIntyre out of the doorway, turned on the lights, and immediately went outside.
Mrs Osborne also stepped outside, took the chair from McIntyre, and returned inside the house. McIntyre and defendant met outside the house in close proximity to defendant's car, which was also parked near the home, and began fighting. They continued striking at each other with their fists until finally McIntyre, having been struck two or three times in the face by defendant, suddenly sank to the ground and apparently collapsed. When McIntyre collapsed, defendant came to Hillman, who was sitting in McIntyre's car, and told him to take McIntyre home; that he did not want him around there any more. Defendant returned to the dining room and stated to those therein that he weighed about 145 pounds but that he had a "dynamite left," or was "full of dynamite," or words to that effect, but made no reference to any trouble that had occurred outside. Some of the guests then left the Cobo home. As they were leaving, they saw Hillman holding the head of McIntyre, who was lying on the ground not far from the house. They asked Hillman if McIntyre was all right, to which Hillman replied that he was. A few scratches and bruise marks were observed upon McIntyre's face and chin, but these attracted no particular attention. A cup of water was poured on McIntyre's face in an effort to revive him. Some of the party felt McIntyre's pulse and concluded that he would be all right in a short time, so continued on their way, and McIntyre was left with Hillman. In a short time, Hillman concluded that McIntyre was dead and immediately left for Mammoth, which is a few miles from Eureka, to notify friends of the deceased. Other people going to the Cobo home, seeing the body of McIntyre still lying on the ground and not knowing that he was dead, but believing that...
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