State v. Eldredge, 1788

Citation45 Wyo. 488,21 P.2d 545
Decision Date02 May 1933
Docket Number1788
PartiesSTATE v. ELDREDGE
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Hot Springs County; E. H. FOURT, Judge.

Jennings Eldredge was convicted of murder in the second degree and he appeals.

Reversed and Remanded.

For the appellant there was a brief by Linn I. Noble and C. R. Ingle both of Thermopolis, Wyoming, and oral argument by Mr. Ingle.

The appellant claims to have shot in self-defense after having been assaulted by deceased. The record clearly shows that there could have been no other motive than self protection after an admitted assault by deceased. The record of the examining magistrate does not contain a finding that an offense was committed or show cause to believe defendant guilty. 33-207 R. S. The jury list was illegally selected by an acting chairman of the board of commissioners, county treasurer, and clerk. Sec. 61-206, R. S., requires the chairman of the board to act. 12 A. & E. Ency. Law 330, 35 C J. 270; State v. Austin, 82 N.W. 5. The duty of assessors in reporting persons subject to jury duty is prescribed in Sec. 30-307, R. S. Qualifications of jury are set forth in Sec. 61-201, R. S. The jury commission did not comply with the law. State v. Bolln, 10 Wyo. 439. The court erred in refusing instruction numbered "A." State v. Moore, 56 S.W. 883; Sackett, Sec 2689; Hale v. State, 26 So. 236; Mitchell v State, 30 So. 348; Castle v. State, 75 Ind. 146; Aszman v. State, 123 Ind. 347. The court failed to define murder in the first degree by an instruction. 32-201 R. S. It was the duty of the prosecution to prove beyond a reasonable doubt that defendant was not acting in self-defense. Wharton, Homicide, (3rd Ed.) Sec. 340; Sackett, Sec. 2469; State v. Donahue, 43 N.W. 297; Tragden v. State, 32 N.E. 725; State v. Smith, 99 N.W. 579; Blalock v. State, 31 So. 105; Turley v. State, 104 N.W. 934, 30 C. J. 354. A person in his own habitation, or a guest, is entitled to repel invasions. Palmer v. State, 9 Wyo. 40; State v. Sorrentino, 31 Wyo. 129; Runyan v. State, 57 Ind. 80; State v. Donnelly, 69 Iowa 705; State v. Toure, 101 Minn. 370; Wells v. State, 63 Tex. Cr. App. 618; State v. Middlebaum, 17 N.W. 446; State v. Harman, 78 N.C. 515. No deliberation or premeditation was shown by the evidence, and the charge of first degree murder should have been taken from the jury. State v. Vance, 70 P. 34. The court erred in refusing instruction numbered "G", thus leaving the matter of arriving at a verdict in a situation wherein a majority of the jurors were permitted to argue with fellow jurors that a majority should govern. Instruction No. 14, allowing the jury to find appellant guilty of first degree murder was unsupported by the evidence. State v. Vance, supra. The court erred in giving instruction No. 10 on the question of intent, and instruction No. 13 on the question of reasonable doubt was erroneous; instructions numbered 16-17-18 on self-defense were clearly erroneous. People v. Hill, 49 N.W. 288; Bruce v. State, 51 S.W. 954; State v. Bonofigen, 52 A. 712; Parker v. State, 24 Wyo. 491; People v. Bennett, 80 N.W. 9; Sackett, Sec. 3120, 4699. The court erred in permitting the jury to separate during the trial; 33-1001 R. S.; State v. Nicholson, 18 Wyo. 314. A large number of persons in the county, qualified for jury service, were not listed at all; the court erred in permitting the introduction of the overcoat, shirt and undershirt of deceased in evidence, without the laying of a proper foundation therefor. The court erred in permitting leading questions by the prosecution relating to the circumstances of the homicide. The court erred in admitting immaterial conversations that occurred prior to the killing. The court should have sustained appellant's objection to the giving of instruction No. 7, relating to motive. Ross v. State, 8 Wyo. 351; Loy v. State, 26 Wyo. 381. Various statements by the court referred to in specifications 40, 51, 52 and 53 are highly prejudicial to the defense and the same may be said of statements in specifications Nos. 54 to 56 inclusive, all tending to discredit defendant's witness. As will be noted throughout the entire record, comments volunteered by the court were prejudicial to the rights of defendant. The court erred in denying defendant's motion for a direct verdict of not guilty.

For the respondent, there was a brief by J. A. Greenwood, Attorney General; R. J. Jackson, Deputy Attorney General; George W. Ferguson, Assistant Attorney General, and R. Dwight Wallace, Assistant Attorney General, all of Cheyenne, Wyoming.

Sec 61-206 provides that the chairman of the board, the county treasurer and the county clerk shall make the jury list for the ensuing year. Sec. 30-607 provides for the selection of a chairman by the commission from one of their number and in his absence, either of the other members may act as temporary chairman. The jury list was legal. State v. Turner, 87 N.W. 287; Stephens v. State, (N. J.) 21 A. 1038; State v. Reeves, 56 So. 648; Sturgis v. Co., 184 Mich. 456. Only persons whose names appear on the assessment roll are qualified to be placed on the jury list. Persons paying poll and vehicle taxes alone are not placed on the assessment roll. Qualifications and disqualifications of jurors are stated in Secs. 61-201, 202, 207, R. S. See also Secs. 115-123, 137, 2309, 2312 and 2316, R. S. See also 72-103, 107 R. S. The preliminary proceedings before the justice of the peace complied with the law. Sec. 33-206, 207, R. S.; 16 C. J. 344. Instruction "A" was properly refused because incomplete. State v. Shaw, (Utah) 205 P. 339; Biddle v. State, 199 S.W. 913; Cunningham v. State, 23 So. 693. Instruction "B" was properly refused, being an incomplete statement of law; instructions "2" and "3" correctly defined first degree murder. 30 C. J. 339; Jefferson v. State, (Texas) 158 S.W. 520; 16 C. J. 1052. Defendant's conviction of second degree murder was not prejudicial. Ross v. State, 8 Wyo. 351; Downing v. State, 11 Wyo. 86. Instruction "D" was properly refused, because it was involved and would tend to confuse the jury; moreover the point is fully covered in instruction Nos. 35 and 41. Instruction "E" was outside the evidence and properly refused. 30 C. J. 392; Williams v. State, (Texas) 48 S.W. 515; Pennington v. Comm., (Ky.) 68 S.W. 451; State v. Crawford, (W. Va.) 66 S.E. 110. No exception was taken to the court's refusal to give instruction "F". 16 C. J. 1070. The case of State v. Vance cited by appellant is not in point. The court properly refused instruction "C" for the reason that the law has no reasonable doubt, is correctly covered by instructions 9, 11, 12, 13, 14, and 30. The same instruction was refused in State v. Flory, 40 Wyo. 184. As defendant was convicted of second degree murder, no prejudice resulted from the giving of instructions Nos. 2 and 7 in favor of appellant. Downing v. State, supra; Ross v. State, supra; Miller v. State, 3 Wyo. 658. The design to kill deceased might have been conceived immediately prior to the conflict. 29 C. J. 1113. Instruction No. 10 is a correct statement of the law. 16 C. J. 1036; Clarey v. State, (Nebr.) 85 N.W. 897; Botsch v. State, (Nebr.) 61 N.W. 730; 30 C. J. 140. Instructions numbered 16, 17, and 18 on self-defense contained the particular phases of law which the evidence placed in issue. The rule is that all instructions must be read together; 30 C. J. 370. There is nothing to show that the jury were permitted to separate. An affidavit offered to the effect that one juror was in the post office and was reading a letter, was insufficient to show a separation of the jury, nor is there anything in the affidavit showing the incident to be prejudicial to defendant. The rule as to admissibility of clothing worn by decedent at the time of his death is clearly stated by the authorities and the facts in the present case were within the rule. 8 R. C. L. 180; State v. McGuire, (Conn.) 80 A. 761; Levy v. State, (Texas) 12 S.W. 596; McKay v. State, (Nebr.) 132 N.W. 741; 13 R. C. L. 928; Saunders v. St., (Okla.) 111 P. 965; Ann. Cas. 1912 B, 766. The rule as to leading questions is stated in Jones Com. Ev., Vol. 5, page 4545. It is a matter resting within the discretion of the court. There are no well defined rules as to comments by the court. Each case must be considered in connection with the circumstances and the probable effect of such comments. 16 C. J. 827, 831, 1139. Evidence of the defendant's conduct shortly before the homicide indicating that he was reckless and quarrelsome was admissible. No objections were made or exceptions reserved by defendant as to comments of the court made at any time during the trial, so there is no foundation for error as to the court's comments. State v. Bemis, 34 Wyo. 218; Lipsey v. People, (Ill.) 31 N.E. 348; Apel v. Ry. Co., (Ill.) 102 N.E. 1021; Thompson on Trials, Vol. 1, Chap. 30. It is the general rule that prejudicial remarks in the course of a trial made by the court, must be objected to and an exception noted, in order to save the question for review. Kettenbach v. U.S. 202 F. 377; Thomas v. State, (Ala.) 43 So. 371; State v. Mulhollen, (Ia.) 155 N.W. 252; People v. Bishop, (Calif.) 66 P. 976; People v. Abrams, (Ill.) 94 N.E. 985; Wallace v. Commonwealth, (Ky.) 180 S.W. 381; Loy v. State, 26 Wyo. 381. Moreover, the comments of the court were not prejudicial to defendant. Defendant entered no objection to the thirteenth juror and the matter is not reviewable. Denial of motion to withdraw charge of first degree murder was not prejudicial. It was proper for the court to communicate with the jury with reference to additional instructions. 16 C. J. 1088. Recommendations of the jury on their verdict are not binding on the court, in the absence of statute. 16...

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