State v. Goettina, 2302

• Decision Date: 15 May 1945
• Docket Number: 2302
• Citation: 61 Wyo. 420,158 P.2d 865
• Parties: STATE OF WYOMING, Plaintiff and Respondent, v. JAMES J. GOETTINA, Defendant and Appellant
• Court: Wyoming Supreme Court

158 P.2d 865

61 Wyo. 420

STATE OF WYOMING, Plaintiff and Respondent, v. JAMES J. GOETTINA, Defendant and Appellant

No. 2302

Supreme Court of Wyoming

May 15, 1945

APPEAL from District Court, Sweetwater County; V. J. TIDBALL, Judge.

James J. Goettina was convicted of manslaughter, and he appeals.

Affirmed.

For the Plaintiff and Respondent the cause was submitted upon the brief of L. J. O'Marr, Esq., Attorney General of Wyoming Hal Morris, Esq., Deputy Attorney General of Wyoming, and Ray E. Lee, Esq., Assistant Attorney General of Wyoming, all of Cheyenne, Wyoming, with oral argument by Mr. Lee.

POINTS OF COUNSEL FOR APPELLANT

Where the jury is instructed that the evidence offered at the trial, including circumstantial evidence gives them the right to convict defendant of either murder in the first degree, or murder in the second degree or voluntary manslaughter, it is prejudicial error and denies defendant a fair and impartial trial. Foley v. State, 11 Wyo. 464; State v Pressler, 16 Wyo. 214; Palmer v. State, 9 Wyo. 40.

When a defendant is deprived of his constitutional right to be tried by a jury upon proper and competent evidence and upon proper instruction, even though he may be convicted of the lesser crime, it cannot be said that he has had a fair and impartial trial. Hollywood v. State, 19 Wyo. 493; Bryant v. State, 5 Wyo. 376; State v. Sorrentino, 31 Wyo. 129.

Where the evidence in a cause for homicide is the uncontradicted testimony of the defendant, and the facts declared by him are likely, they should be accepted. Eagan v. State, 58 Wyo. 167; U. S. v. Dinola, 37 Phillip 797; McDowell v. State, 238 Ala. 482; State v Slane, 48 Wyo. 1; People v. Holick (Ill.) 169 N.E. 169; Dunbar v. State (Miss.) 85 A. L. R. 520; Wilkins v. State, 98 Ala. 1, 13 So. 312.

It is error to instruct the jury that in determining the credibility of defendant's testimony they have a right to take into consideration his demeanor and conduct during the trial. Purdy v. People (Ill.) 29 N.E. 700.

Accused is entitled to a clear and full instruction as to what is meant by the term "reasonable doubt," and a failure to comply with a request for such a definition is error where no definition is given in the general charge; and if an attempt is made to define the phrase, a correct or approved definition should be given. 16 C. J. 989.

In a homicide case, involving self-defense, issue, evidence as to previous difficulties between the defendant and the deceased is admissible where it is apparent that such difficulties could legitimately have affected defendant's apprehension. Durham v. State, 29 Wyo. 85.

For the Defendant and Appellant the cause was submitted upon the brief and oral argument of W. A. Muir, Esq., and Edwin V Magagna, Esq., both of Rock Springs, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

It is asserted by excellent authority that courts instructing juries in criminal cases should make no attempt to define the expression "reasonable doubt" but should merely follow the language of the statute that "where there is a reasonable doubt of the defendant being proven guilty, he is entitled to an acquittal," or if there is no such statute, let the words themselves carry their own definition. 8 R. C. L. 220, Sec. 217; Smith v. State, 17 Wyo. 481; 23 C. J. S. 838, Sec. 1268; Claussen v. State, 21 Wyo. 505.

The defendant claims a mistrial because of the conduct of the jury and the alleged manner in which the jurors were permitted to contact outside people and read newspapers and listen to radio comments, as well as to separate the rest to a certain extent. A considerable period of time after it was necessary to file the record on appeal, counsel produced a number of new affidavits which they filed in the case. So far as the latter affidavits are concerned, they have no proper place in the record. The record on appeal in this case was filed June 19, 1944. These affidavits were made at a time long subsequent to that date. They are not entitled to consideration. State v. Schloredt, 57 Wyo. 1.

The affidavits show that the defendant suffered no prejudice. Nicholson v. State, 18 Wyo. 298, 312.

The refusal of an instruction giving the well-established and approved definition of a reasonable doubt, and the giving, instead, of one stating that such doubt must be one based on "common sense," is erroneous. People v. Paulsell (Calif.) 46 P. 734; 23 C. J. S. 838, Sec. 1268; People v. Lachanais (Calif.) 32 Cal. 432, 11 P. St. Rep. 433; People v. Guertin (Ill.) 173 N.E. 824; Nanfito v. United States, 20 F. 2nd 376; Blatt v. United States, 60 F. 2nd 481.

Photographs should be excluded when they do not tend to prove any controverted fact, but have a tendency to create unfair prejudices. State v. Lantzer, 55 Wyo. 230; People v. Way, 104 N.Y.S. 277; Wigmore on Evidence, Vol. 4, p. 3621.

When a defendant in a capital case has shown a separation of the jury, or an opportunity for other parties, and especially witnesses, to communicate with them in violation of the statute and it appears that the defendant was prejudiced, or that it does not appear that he was not prejudiced thereby, a new trial should be granted. Nicholson v. State, 18 Wyo. 298; Meldrum v. State, 23 Wyo. 12.

It is the right of a defendant accused of crime to have nothing reach the mind of the jury concerning the case except strictly legal evidence admitted according to law, and if facts prejudicial to him reach the jury otherwise, it is the duty of the trial judge to withdraw a juror and grant a new trial. Rent-a-Car Company v. G. & R. Fire Insurance Company (Md.) 86 A. L. R. 922; Griffin v. United States, 295 F. 447; North Dakota v. Lindeman, 93 A. L. R. 1442; State v. Eldredge, 45 Wyo. 488, 21 P. 2d 545.

The presumption of prejudice from the reading of newspapers containing accounts of the trial, along with freedom given to the jury to mingle with others without being separated, was held not satisfactorily overcome by the juror's affidavits that they were not prejudicially affected thereby. Hempton v. State (Wisc.) 86 N.W. 596. 93 A. L. R. 1450.

BLUME, Chief Justice. RINER, J. , and CHRISTMAS, D. J., concur.

OPINION

BLUME, Chief Justice.

In this case the defendant, James J. Goettina, was charged in the District Court of Sweetwater County, Wyoming, with murder in the first degree for killing one Frances Goettina, his wife. The defendant pleaded not guilty and claimed, upon the trial, that he killed deceased in self-defense, and further that the homicide was accidental. He was convicted of manslaughter and sentenced by the court. From that judgment he has appealed to this court.

The defendant was 56 years of age and the deceased 31 years of age at the time of the homicide herein. Defendant first came to Wyoming in 1913, worked in a coal mine until late in the year 1917, enlisted in the United States Army and went to England, France and Germany. After the war he returned to Rock Springs, subsequently went to Illinois for a period of time, but returned to Rock Springs in 1928, and since 1933 was engaged in conducting a saloon business, the place conducted by him being known as the Belmont Inn. He met the deceased and married her on September 10, 1935, and they lived together as husband and wife until in the spring of 1943. Deceased left her home on April 3 and went to Jackson, Wyoming, apparently with one George Brown. She took with her from the safe of the Belmont Inn the sum of $ 900. Becoming apparently broke, she phoned defendant about May 24, 1943, to come to see her at Jackson, Wyoming, which he did. Two days thereafter they returned to Rock Springs but she subsequently went away again, and again returned to Rock Springs about June 24, 1943. In the meantime in May, 1943, the parties had made a settlement of their affairs. The deceased had wanted to obtain ownership of the Belmont Inn. The defendant refused on the ground that the Inn was his only way of earning a livelihood. Finally, the defendant agreed to pay her about $ 2200, in addition to the $ 900 which she had taken, $ 50 a month, and turn over to deceased the automobile owned by the defendant. The defendant further offered that he would make a will in favor of the deceased so that she would become owner of all of his property when he should die. The deceased agreed to the settlement as fair enough, and that she would never come back to the Belmont Inn. The $ 2200 was paid and the automobile transferred on the public records. The will, however, was not signed on account of the fact that W. A. Muir, Esq., Attorney at Law, and then acting as attorney for the deceased, refused to let him sign it at the time when he offered to do so on account of his intoxicated condition. A divorce suit was instituted by deceased against the defendant on May 23, 1943; the latter defaulted in the case. No judgment was ever entered therein and it was finally dismissed after the homicide had taken place in this case.

The homicide took place in the Belmont Inn about 1:30 A. M., July 1, 1943. A map of the building is in evidence. In the northeast corner is a small room, about 9 feet long by 7 feet wide. In the southwest corner of this room was a refrigerator, in the northwest corner a cooler, and a wash bowl on the north. South of this small room was the bar and its appurtenances, including a cash register and two drawers. The bar was 27 feet long. The immediate incidents of the homicide seem to have begun behind the bar and ended up in the small room above mentioned, where seemingly, the fatal shot was fired. During the evening of June 30, 1943, the deceased visited various places where intoxicating liquors were served, including the Belmont Inn, and she appears to have taken quite a number of drinks of straight whiskey and that ...