State v. Fairclough

• Decision Date: 02 May 1935
• Docket Number: 5510
• Citation: 44 P.2d 692,86 Utah 326
• Court: Utah Supreme Court
• Parties: STATE v. FAIRCLOUGH

44 P.2d 692

86 Utah 326

STATE v. FAIRCLOUGH

No. 5510

Supreme Court of Utah

May 2, 1935

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

Bert Fairclough was convicted of mayhem, and he appeals.

AFFIRMED.

King Jenson & King, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

FOLLAND Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

FOLLAND, Justice.

Defendant was convicted of mayhem alleged to have been committed August 28, 1932, by willfully and maliciously slitting the nose of Mrs. Harvel Maxwell. A motion for a new trial was made and overruled and the defendant sentenced to an indeterminate term in the State Prison. Numerous errors have been assigned on this appeal, but these may be grouped into four classes, as follows: First, the defendant was denied his constitutional right to a fair and impartial trial, in that he was denied the assistance of counsel; second, that the court failed in its instructions properly to present defendant's theory of the case with respect to self-defense; third, failure of the court to instruct the jury adequately on question of malice; and, fourth, alleged errors in the admission and rejection of evidence.

That Mrs. Maxwell's nose was slit and the end amputated is not disputed. The only disputed question was whether it was done by defendant and with unlawful intent. Mrs. Maxwell and Mrs. Fairclough, wife of the defendant, are sisters. The Faircloughs have been married several years and had children. Mrs. Maxwell for about six years prior to her marriage to Harvel Maxwell on August 16, 1932, had lived in the Fairclough home. The injury was inflicted on Mrs. Maxwell while she and her husband were at the Fairclough home between 7 and 8 o'clock on the evening of August 28th. Mrs. Fairclough was preparing to leave her husband and her home and return to her mother in Montana. Her reason for so doing, she said, was that her husband had been drinking heavily and that her sister, Mrs. Maxwell, had accused Fairclough of being the father of her unborn child. This accusation, which had been repeated to Fairclough by Mrs. Fairclough, was the occasion for defendant's drunken spree. The only witnesses to the affair were the Maxwells and the Faircloughs. The Maxwells, husband and wife, told one story, and the Faircloughs different versions. Mr. and Mrs. Maxwell and Mrs. Fairclough were in the kitchen when the defendant came into the house about 7:30 in the evening. Mrs. Maxwell's narration of what then happened is that the defendant, after coming in and speaking to Maxwell,

"pointed to me, and he said: 'She is my wife.' And he said, 'Isn't that true?' I said, 'No.' And just then he took a leap over, and grabbed hold of my head and bit my nose off."

Mrs. Fairclough testified that the defendant said, addressing Maxwell,

"'Harvel, there is something I want to ask you.' He said 'My wife says that Mildred accuses me of being the father of the child she carries.' He said, 'Now, who the hell is the father? She was not your wife at that time.' Harvel said he did not care, and Mildred said it was a lie, and she jumped on him from his back, from behind, and they both fell to the floor. * * * My husband was on the bottom. * * * I just sat there, I was frightened. * * * He was down on the floor with my sister. * * * The first I saw was Mr. Maxwell, I saw he had a knife in his hand. * * * It was a long butcher knife that I had been cutting bread with previously. * * * After I saw Mr. Fairclough in front of Mr. Maxwell, and he had his hands up in the air, and he was saying, 'Go ahead.' He (Maxwell) just dropped that knife and he (Fairclough) said: 'You are a coward, go ahead and use it if you want to * * *.' Then Harvel dropped the knife and then Mr. Fairclough walked into the front room. I noticed my sister's nose was bleeding. She was over by the sink washing."

The defendant's version was different from the other two. He testified he had been drinking for about five days and had drunk one and a half pints of moonshine liquor shortly before coming into the house. He said:

"I don't have a very good memory of it, but as near as I asked him--I wanted to ask him something, and told him that his wife had accused me of being the father of her child that she now carries. * * * He said he did not care about hearing anything about it. * * * I think I then called him. I think I said, 'You have been trying to cause trouble for me for the past two years.' I don't know whether he said anything after that, or not. * * * I can remember calling him a dirty yellow son-of-a-bitch * * * and I think I hit him. * * *

"Q. Then what happened? A. I don't know. Everything went black till somebody hit me, and then I thought he hit me, but I don't know. * * * The next that I can remember I was in the car. I remember my wife telling me to drive slower. I was driving too fast."

Maxwell, in the main, corroborated his wife. He stated Fairclough had objected to his being a member of the National Guard, and then said:

"'I got something to tell you.' I said I did not want to hear it. He said, 'Well, you are going to hear it.' I spoke to my wife and said: 'Let's us leave;' and he said, 'Mildred is my wife. * * * Isn't that true?' She said, 'No'; and he jumped clear across the room and grabbed her by the face, and then he said: 'That is my revenge.' As he did that I grabbed him by the arm and whirled him around. My wife jumped and ran, and he said: 'All right, now you can kill me.'"

Maxwell and his wife then left the home, entered a taxicab that had previously been called to take Mrs. Fairclough to the station, and went to the county general hospital where a plastic operation was performed on Mrs. Maxwell's nose by Dr. R. J. Alexander. The Faircloughs with two of their three children then left in Mrs. Maxwell's automobile. Mrs. Maxwell said her husband stated:

"Come on, Maud, if you still want to go home, I will take you."

Defendant drove the car all night. In the early morning he found himself outside of Burley, Idaho, where he was told by Mrs. Fairclough, according to her testimony, that Mrs. Maxwell's nose had been injured, whereupon the defendant decided to come back to Salt Lake and did so by driving to Wells, Nev., and thence to Salt Lake City. Dr. Alexander testified the nose appeared to have been amputated by teeth; that in his opinion the end had been bitten off.

The first group of assigned errors are directed towards the trial court's refusal to grant a postponement of the case. This is said to have been a clear abuse of discretion on the part of the trial court, and to have deprived defendant of his constitutional and statutory rights to the assistance of counsel by depriving counsel, appointed by the court to try the case, an adequate opportunity to prepare for trial.

It is a general rule, and justice requires, that a person charged with crime should have a reasonable time to prepare his defense, otherwise a defendant's right to a fair and impartial trial might be nullified. 8 R. C. L. 67. To insure defendant the full enjoyment of his constitutional privilege, the time between the appointment of counsel by the court and the time of trial should be such as to afford a reasonable opportunity for preparation of the defense. 16 C. J. 823; 84 A. L. R. 545. The statute makes provision for the postponement of trial upon sufficient cause shown. R. S. Utah 1933, 105-30-1. Whether a postponement of the trial should or should not be granted on showing made is a matter within the discretion of the trial court and a denial of postponement will not be regarded as reversible error unless clearly prejudicial. State v. Williams, 49 Utah 320, 163 P. 1104; State v. Cano, 64 Utah 87, 228 P. 563. What is a reasonable time for preparation for trial depends on many things, such as whether the accused is confined in jail or is at liberty on bail, the nature and gravity of the charge, the complexity of the facts or circumstances involved in the crime, the number and availability of witnesses, the intricacy of any law points that may be involved. Such matters being within the discretion of the trial court, its decision is to be given great weight and ordinarily will not be disturbed except for manifest abuse of discretion or a showing of want of consideration of the rights of the accused. Harris v. State, 119 Ga. 114, 45 S.E. 973; 8 R. C. L. 68.

After a careful reading of the entire record, we are satisfied the defendant was not denied any of his constitutional or statutory rights as to counsel or that he was deprived of a fair and impartial trial. The complaint was filed September 1, 1932. Defendant was bound over to the district court November 28, 1932, after a preliminary hearing. He was arraigned on information filed in the district court December 5, 1932. A trial was had in the district court in January of 1933. At each of these appearances defendant was represented by counsel employed by himself. The first trial resulted in a disagreement of the jury so the case had to be retried. The district attorney stated he had delayed putting the case on the trial calendar from time to time at the request of defendant's attorney but finally set it for May 15, 1933, with some other cases, each of which would be tried in turn as it was reached. This is the ordinary and well-known method of setting criminal cases in vogue in the district court of Salt Lake county. Defendant and his counsel were informed of this setting. On the afternoon of May 23d the district attorney notified the office of defendant's counsel that the case would be reached and called for trial at 10 o'clock a. m., May 24th...