State v. Garcia

• Decision Date: 08 September 1960
• Docket Number: No. 9092,9092
• Citation: 11 Utah 2d 67,355 P.2d 57
• Parties: d 67 STATE of Utah, Plaintiff and Respondent, v. Jesse M. GARCIA, Jr., Defendant and Appellant.
• Court: Utah Supreme Court

Page 57

355 P.2d 57

11 Utah 2d 67

STATE of Utah, Plaintiff and Respondent, v. Jesse M. GARCIA, Jr., Defendant and Appellant.

No. 9092.

Supreme Court of Utah.

Sept. 8, 1960.

Hansen & Miller, Salt Lake City, for appellant.

Walter L. Budge, Atty. Gen., Vernon B. Romney, Asst. Atty. Gen., for respondent.

WADE, Justice.

Defendant, Garcia, appeals from a judgment on a jury verdict finding him guilty of murder in the first degree without recommendation of leniency. Garcia and Mack Rivenburgh and Leonard Bowne were charged in separate actions with murdering LeRoy Verner on August 24, 1958. The killing occurred at the Utah State Prison where the deceased and the alleged killers were inmates.

Garcia claims that he understood that he and Bowne were acting as lookouts for Rivenburgh and deceased while engaged in homosexual relations, and although there is evidence that he gave Rivenburgh a knife, and that he took some part in the struggle resulting in the killing, and he had previously heard Rivenburgh state that he would kill Verner, he claims that he was so drugged with dope that he had no idea that the killing was planned, nor did he have the capacity to deliberately plan the killing until after it had occurred. He further claimed that the use of drugs, possession of knives and other deadly instruments, and sodomy between inmates and threats to kill were all so common at the prison during that time that he, a boy of 16, could hardly be guilty of a deliberate and premeditated killing.

Before opening court at about 9:00 a. m. on the morning after all the evidence was in, but before the jury were instructed or the case argued or submitted to the jury, the judge called counsel to his chambers and stated 'This morning about 8:30, a juror by the name of Armstrong asked me, as I arrived at the courthouse, if he could ask me a question, and I told him 'yes.' He came in the chambers, and he asked if the parties were going to introduce the tapes of a conversation between the two defendants. I told him I did not know. I would tell counsel that he had asked and leave it up to counsel. He also said that he was anxious to know, it was important, because he could not get an answer to a question in his mind as to who did the stabbing. He said there was evidence that Garcia had the knife in the attic in his hand, and that later on, another person had the knife, and he did not know who did the stabbing. I told him that I would relate his questions to counsel, and leave it up to counsel to either attempt to reopen their case and put in more evidence to clarify or take care of the matter on argument.'

Counsel contends that this shows prejudicial error which requires a reversal.

In a criminal action before submission to the jury it is discretionary with the trial judge to allow the jury to separate or keep them in charge of an officer who must be sworn to suffer no person to speak to or communicate with them, nor to do so himself on any subject connected with the trial. ¹ Also on adjournment the jury must be admonished not to converse among themselves nor with anyone else on any subject connected with the trial. ²

While in a sense the juror's conversation with the trial judge was on a subject connected with the trial, this was not the kind of a communication banned by the above statutes. The trial judge was the natural and proper person to consult on the question bothering the juror. Although it would be improper for the trial judge when thus approached by a juror to discuss with the juror the problem which he presented, in this case the judge acted properly and did not attempt to solve the juror's problems, but merely told him be would ask counsel about it. After counsel had been informed, neither party changed its position nor introduced additional evidence; nor did either party object to what the court had done in listening to these questions. There is nothing about this situation which would tend to prejudice the defendant. The cases cited by the defendant are not in point on this question. ³ The juror's conversation with the judge was not a part of the trial, ⁴ nor did the trial court receive from the juror an improper question as claimed by the defendant. ⁵

Defendant next argues that he was entitled to a directed verdict or dismissal of the action. He urges that if the evidence indicates a reasonable hypothesis or explanation of the facts as shown by the evidence consistent with his innocence, the State has failed to make a case to be submitted to the jury. It is universally recognized that there is no jury question without substantial evidence indicating defendant's guilt beyond a reasonable doubt. This requires evidence from which the jury could reasonably find defendant guilty of all material issues of fact beyond a reasonable doubt. ⁶ In applying this rule, usually with reference to the jury instructions, we have held that where the only proof of material fact or one which is a necessary element of defendant's guilt consists of circumstantial evidence, such circumstances must reasonably preclude every reasonable hypothesis of defendant's innocence. ⁷ An instruction to this effect in an appropriate situation would be proper but this requires care to use language which the jury would understand and which would not merely lend to their confusion. ⁸

We must keep in mind that this rule is applicable only where the proof of a material issue is based solely on circumstantial evidence. ⁹ Here there was direct proof on every material issue of fact. On the main issue urged by defendant under this argument, of whether defendant knew the killing was planned beforehand, defendant expressly admitted in a statement made before the trial that Rivenburgh had told him before the encounter which resulted in the killing of his intention to kill Verner. This statement was direct proof of defendant's intentional participation in the acts resulting in the killing. So this rule has no application to the facts in this case.

Also, there is a great difference between what a jury might find to be a reasonable hypothesis of innocence and the necessary evidence to require the court to hold as a matter of law that such reasonable hypothesis of innocence had been shown. Only where the evidence is so conclusive that a reasonable hypothesis of innocence has been proved that a contrary holding would be beyond the bounds of reason is the court authorized to direct a verdict in defendant's favor under this doctrine. The evidence in this case clearly does not meet these requirements.

Defendant assigned as error the failure of the court to make it clear by Instruction No. 20 that defendant would be guilty of murder only if he kept watch for Rivenburgh or otherwise aided and abetted him in the killing of the deceased, knowing that he planned the killing and not merely planned or intended to commit sodomy with deceased. To show that such was the effect of that instruction he quotes from that instruction the following paragraph:

'You are instructed that one who keeps watch where a crime is being perpetrated, so as to facilitate the escape of one actually committing it, or to prevent his being interrupted, if the said keeping watch is pursuant to a common design to commit the crime, said person keeping watch, is aiding and abetting, and is a principal.'

This quotation alone seems to lend support to defendant's contention. For the evidence was replete with reference to defendant's keeping watch for Rivenburgh while he committed sodomy with the deceased. However, a careful study of the entire instruction shows that this contention is groundless. The instruction repeatedly limited the aiding and abetting by the defendant to knowingly and intentionally keeping watch or otherwise participating in the commission of the crime charged. The crime charged was murder in the first degree. Also, the instruction many times expressly stated that defendant would be guilty of murder by aiding and abetting in the killing only if he knew of the intention to kill or otherwise knowingly participated in the killing. In view of these express statements of the required elements of aiding and abetting in this murder which are contained in this instruction, the court did not err in this respect.

One other contention requires...