State v. Flory, 1538

CourtUnited States State Supreme Court of Wyoming
Citation276 P. 458,40 Wyo. 184
Docket Number1538
PartiesSTATE v. FLORY [*]
Decision Date03 April 1929

276 P. 458

40 Wyo. 184


No. 1538

Supreme Court of Wyoming

April 3, 1929

APPEAL from District Court, Campbell County; HARRY P. ILSLEY, Judge.

Charles E. Flory was convicted of murder in the second degree, and he appeals.

Remanded with Directions.

Metz, Sackett & Metz, of Sheridan, for appellant.

The court erred in not receiving evidence offered by defendant showing the relationships and occurrences, which would tend to properly explain and identify the state of mind, motives and intents of the parties, at the time of the homicide. People v. Barberi, (N. Y.) 43 N.E. 635; State v. Cooper, (La.) 36 So. 350; Biggs v. State, (Ga.) 76 Am. Dec. 630; Maher v. People, (Mich.) 81 Am. Dec. 781; Smallwood v. Com. (Ky.) 33 S.W. 822; Cheek v. State, 35 Ind. 492; Stanton v. State, 59 S.W. 271; State v. Zellers, 7 N. J. L. 220; Messer v. State, 63 S.W. 643; Amos v. State, (Ala.) 11 So. 424; People v. Webster, (N. Y.) 34 N.E. 730; Shipp v. Com. (Ky.) 99 S.W. 945; Martin v. State, 51 S.W. 912; Massie v. Com. (Ky.) 24 S.W. 611; State v. Young, (Mo.) 24 S.W. 1038; State v. Welch, (Mont.) 55 P. 927; Gardom v. Woodard, (Kan.) 25 P. 199. Defendant should have been permitted to state his belief, and the reasons for his belief, in the truth of his wife's statements with reference to the criminal misconduct of the deceased. McAnear v. State, 67 S.W. 117; Messer v. State, 62 S.W. 642; Jones v. State, (Tex.) 40 S.W. 807; 41 S.W. 638. Defendant was entitled to show that the deceased was a man of unchaste and immoral habits, for the purpose of showing that he would be likely to commit the crime alleged. Orange v. State, (Tex.) 83 S.W. 385. Evidence of threats made by deceased not communicated to defendant, is admissible for the purpose of acquainting the jury with the motive and purpose of deceased in making his assault. Durham v. State, 29 Wyo. 85; Blackerby v. Com., (Ky.) 255 S.W. 824; Adams v. State, 60 S.W. 47; Williams v. People, 54 Ill. 422; Lee v. Com., (Ky.) 261 S.W. 842. Evidence of tracks, not connected with defendant in circumstantial cases must be promptly excluded. Grant v. State, 58 S.W. 1025; Haines v. State, 66 S.W. 847; Ransom v. State, 70 S.W. 960; Parker v. State, 80 S.W. 1008; State v. Davis, 33 S.E. 449. The court erred in refusing defendants requested Instruction No. A, after having given to the jury Instruction No. 33, which standing alone tended to mislead the jury. Nicholson v. State, 18 Wyo. 298; Harris v. State, 23 Wyo. 487. The court erred in failing to instruct the jury upon the subject of reasonable doubt. Refusal to give requested Instruction No. A was reversible error. 2 Thompson on Trials, 2494; Parker v. State, (Ind.) 35 N.E. 1105; State v. Witt, (Kan.) 8 P. 769; People v. Wood, (Mich.) 58 N.W. 638; Phillips v. State, (Ala.) 47 So. 245; Bell v. State, (Miss.) 42 So. 542; People v. Howard, (Calif.) 76 P. 1118; Shanon v. State, (Ga.) 83 S.E. 156; State v. Louis Moon, (Ida.) 117 P. 757. The court erred in giving Instructions Nos. 18, 19 and 21 relating to self defence; and in refusing to give defendant's Instructions "A 2," "No. C," and "No. L." In Instruction "No. 18" the court erroneously assumed that there was an encounter at the time of the homicide. Brown v. U.S. 256 U.S. 335; People v. Maughs, (Calif.) 86 P. 187. Defendant was entitled to an instruction that he need not retreat, but had the right to stand his ground against attack. People v. Cyty, (Calif.) 106 P. 257; Hammond v. People, (Ill.) 65 N.E. 980; Page v. State, (Ind.) 41 N.E. 745; State v. Petteys, (Kan.) 70 P. 588; State v. Bartlett, (Mo.) 71 S.W. 148; Foster v. State, (Okla.) 126 P. 835; State v. Churchill, (Wash. ) 100 P. 309; State v. Burdette, (S. C.) 101 S.E. 664; State v. Borwick, (Ia.) 187 N.W. 460; State v. Merk, (Mont.) 164 P. 655; State v. Grimmett, (Nev.) 112 P. 273; Young v. State, (Nebr.) 104 N.W. 857; Rowe v. U.S. 164 U.S. 546; State v. Brooks, 186 N.W. 46.

W. O. Wilson, Attorney General, J. A. Greenwood, Deputy Attorney General, and R. J. Jackson, Assistant Attorney General, for respondent; C. A. Kutcher, of counsel.

To reduce the guilt of killing to a grade of manslaughter, the provocation must consist of personal violence. Roberson v. State, (Ala.) 117 So. 412; 4 Bl. Comm. 201; State v. Underhill, (Del.) 69 A. 880; 29 C. J. 1134; State v. Vest, (Mo.) 162 S.W. 615; State v. Kennedy, (N. C.) 84 S.E. 515; Smarrs v. State, (Ga.) 61 S.E. 914. Words of reproach or abuse are insufficient. State v. Hardisty, (Kan.) 253 P. 615; People v. Russell, (Ill.) 153 N.E. 389. A few cases based upon exceptional circumstances may be found to the contrary. State v. Grugin, (Mo.) 47 S.W. 1058; State v. Myers, (Mo.) 121 S.W. 131. The evidence does not show defendant to have been in such a state of passion as would justify a verdict of voluntary manslaughter. 29 C. J. 1131; Ex parte Bollin, (Okla.) 109 P. 288; State v. Watkins, (Ia.) 126 N.W. 691; State v. Gartrell, (Mo.) 71 S.W. 1045; 22 C. J. 158. It is only in exceptional cases of homicide that the character of the victim may be shown. 30 C. J. 229; Styles v. State, (Ala.) 59 So. 698. The character of the victim does not change the unlawfulness of the act. Patterson v. State, 202 Ala. 65; State v. Witt, (Kan.) 8 P. 769. Instruction No. 33, complained of by appellant is in a form approved by this court in Harris v. State, 23 Wyo. 487. Where all of the instructions considered together fairly state the law, it is sufficient. Dalzell v. State, 7 Wyo. 450; Loy v. State, 26 Wyo. 381; Flanders v. State, 24 Wyo. 81; Downing v. State, 11 Wyo. 86; Ross v. State, 8 Wyo. 351; State v. Garth, (Mo.) 65 S.W. 275. Defendant committed an assault upon deceased. Bryant v. State, 7 Wyo. 311. A person is the aggressor where he commences an assault. 30 C. J. 49, and cases cited. McBride v. State, (Ala.) 109 So. 566; People v. Grosenheider, (Ill.) 107 N.E. 607; Laws v. State, (Tex.) 101 S.W. 987. Where one who has provoked a combat, withdraws in good faith, indicating his desire to avoid further trouble, his right of self defense is restored and if pursued, he is justified, where apparently necessary for protection of his own life, in killing his adversary. Rowe v. U. S. 164 U.S. 546; Jackson v. State, (Ark.) 202 S.W. 683; Voght v. State, (Ind.) 43 N.E. 1049; State v. Kellogg, (La.) 29 So. 285; State v. Goode, (Mo.) 195 S.W. 1006; People v. Button, (Calif.) 39 P. 1073; State v. Smith, 10 Nev. 106. In the above cases, charges of similar import to the ones requested by defendant in the present case, were refused; the evidence in this case inferred that the defendant was the aggressor, and such was apparently the conclusion of the jury; the cases relied on by appellant may state the law applicable to self defense where the proper elements are present, but are not applicable to the present case under the facts.

Metz, Sackett & Metz, in reply.

Counsel for respondent have not presented a single case in point, contrary to our reasoning and authorities upon the precise facts under consideration, nor have they distinguished the Missouri case of State v. Grugin, and with the exception of the case of People v. Barberi, 149 N.Y. 156, have avoided our authorities completely, and they have also avoided the issue. The entire record of the meeting between the two men furnishes the only adequate or sensible basis upon which the court could determine, as to whether there was evidence justifying submission of the case to the jury upon the issues of manslaughter and of self defense; it is inconceivable that defendant should be denied the right to show the state of mind of deceased toward himself, to have been such, that deceased was more probably the aggressor. The record shows that defendant upon meeting deceased at his home continued to question deceased about crimes which had been related to defendant by his wife, but made no demonstration toward deceased, and that his reason for remaining in Ostrum's presence, was because Ostrum had not given him the desired information, in the nature of a full admission or denial, and in brief, because the object of his visit to obtain evidence had not been accomplished. The conversation was interrupted by Ostrum springing toward defendant, upon which incident, defendant jerked the rifle and fired the shot which killed Ostrum. It is therefore unfair to urge upon the court that defendant commenced the first assault, if any there was. Counsel for respondents have not met our arguments nor our authorities.

C. A. Kutcher, for respondent.

It is true that in proper cases illicit criminal relations between the deceased and a member of defendant's family may be shown on the question of sudden heat of passion produced by adequate provocation, but the provocation must be so recent in point of time, and in the sequence of cause and effect as to create at the time of the killing, a sudden heat of passion. Previous provocation which has been thought over and deliberated upon, where no new or additional violence or exciting cause has occurred is not sufficient. 30 C. J. 226; 29 C. J. 1147; 2 Bish. Crim. Law, (2d) Sec. 708; State v. Privitt, (Mo.) 75 S.W. 457; Steeley v. State, (Okla.) 187 P. 826; State v. Bone, (Ia.) 87 N.W. 507; Territory v. Halliday, (Utah) 17 P. 118. The Missouri case of State v. Privitt is later than the case of State v. Grugin, relied upon by opposing counsel, and the case of People v. Garfalo, (N. Y.) 100 N.E. 698, is more recent than the case of People v. Barberi, 149 N.Y. 156, relied on by appellant, and supports our contentions as to the provocation. The argument of opposing counsel is unfortunately not fitted to the facts presented by the record. In truth, a verdict of first degree murder would have been clearly warranted by the evidence.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION [276 P. 459]

[40 Wyo. 191] BLUME, Chief Justice.

The defendant was convicted of murder in the second degree for...

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