State v. Green

• Decision Date: 27 August 1931
• Docket Number: 5073
• Citation: 78 Utah 580,6 P.2d 177
• Court: Utah Supreme Court
• Parties: STATE v. GREEN

6 P.2d 177

78 Utah 580

STATE v. GREEN

No. 5073

Supreme Court of Utah

August 27, 1931

Appeal from District Court, Second District, Davis County; E. E Pratt, Judge.

Delbert Green was convicted of murder in the first degree and he appeals.

REVERSED AND REMANDED, with directions to grant new trial.

Woolley & Holther, of Ogden, for appellant.

Geo. P Parker, Atty. Gen., and Byron D. Anderson, Deputy Atty. Gen for the State.

ELIAS HANSEN, J. STRAUP and EPHRAIM HANSON, JJ., FOLLAND, J concurring. CHERRY, C. J., dissents.

OPINION

ELIAS HANSEN, J.

The defendant was found guilty of murder in the first degree without recommendation and sentenced to be executed. He was charged with and convicted of the murder of his uncle James Green. He appeals and seeks a reversal of the judgment because of some of the instructions which were given to the jury, because some of his requested instructions to the jury were refused, and because the trial court refused to admit evidence offered by him to show that a cousin of his father and a cousin of his grandmother were insane. The chief ground relied upon by defendant in support of his plea of not guilty was that he was insane at the time of the alleged homicide. In order that the questions of law presented for determination on this appeal may be more readily discussed and understood, we deem it advisable to summarize what the evidence tends to establish as the facts in this case.

The defendant is about 22 years of age. At the time of the homicide he had a wife and young baby. He and his family resided at Ogden, Utah, where he was employed at a junk house. A Mr. Thompson resided with the defendant and his family. While the defendant was at home for his noonday meal on January 4, 1930, he and his wife had some slight disagreement. After the defendant returned to work his wife wrote a note stating that she was going to the home of her mother. During the afternoon defendant's wife went to her mother's home which is located to the east of and near Layton, Davis county, Utah. When the defendant returned from work, he found the note which his wife had written. When Mr. Thompson returned from work he and the defendant went to a restaurant in Ogden for their evening meal. While they were down town, the defendant purchased a pocketknife which had an unusually long blade. Shortly after 9 o'clock the defendant and Mr. Thompson went to bed. They both occupied one bed, which was in one of the rooms of defendant's home. After they had been in bed a few minutes, the defendant got up again and dressed. He informed Mr. Thompson that he was going down town and that he would be back in a few minutes. He drove away in his automobile. He went to a secondhand store in Ogden, where he purchased a revolver and some cartridges. He then drove out to the home where his mother-in-law resided. He arrived there at about 11 o'clock p. m. When he arrived at the home of his mother-in-law, all of the occupants had retired for the night. The house consisted of three rooms. Gladys Green, the wife of the defendant, Lola Green, the mother-in-law of the defendant, and the baby, the issue of the marriage of the defendant and Gladys Green, occupied a bed in one of the rooms. Hannah Green, the grandmother of the defendant, and Lois Gree, a cousin of the defendant, occupied a bed in another room, and James Green, an uncle of the defendant, occupied a cot in the other room, which was the kitchen. Lois Green is the daughter of James Green and Lola Green. Defendant's wife was not the daughter of James Green but was the daughter of Lola Green by a former marriage. When defendant arrived at the Green home, he knocked on the door which led to the room occupied by James Green. Upon hearing the knock, James Green arose and opened the door. James Green then lighted a kerosene lamp and built a fire in the kitchen stove with corncobs. Hannah Green heard the defendant's knock and later heard him and James Green engaged in a conversation in the kitchen. She got, out of bed and went around the house into the kitchen. After she had been in the kitchen a short time, "defendant asked Jim 'what they must do with the things' and Jim said 'go in the other room and talk to the women.'" Hannah Green asked the defendant to call in and see her before he left. When Delbert Green and James Green went into the room occupied by Gladys and Lola, Hannah returned to her room and went back to bed. After Mrs. Hannah Green had been in bed about fifteen minutes, she heard a shot, and immediately jumped out of bed and ran around the house to the kitchen door. There she saw her son James running out through the gate with his hand to his side. He said, "Ma, I am shot." Mrs. Hannah Green then heard some more shots and went back to the door which led into the room occupied by Gladys, Lola, and the baby. She did not see the defendant any more that night because it was dark and she could not see. In the meantime Lois heard some shots and ran around the house into the kitchen. She saw the defendant re-enter the house. He had a flashlight in one hand and a revolver in the other. Lois took hold of defendant's coat tail and asked him to quit. He went into the room where Gladys, Lola, and the baby were in bed and fired one shot at Gladys. He then went out of the house. Lois then went to the bed where her mother was groaning and asked her if she was hurt, to which she replied that she was. Hannah Green returned to the house and told Lois to run for David Green, who was a relative of the Green family. Hannah Green, after taking the baby and placing it on the cot which had theretofore been occupied by James Green, followed Lois to the home of David Green. As soon as Lois Green informed David Green of what had occurred, he notified Horace Van Fleet, deputy sheriff of Davis county. Mr. Van Fleet, accompanied by Robert T. Harris, the marshal of Layton, Will Adams, and D. Tracy proceeded to the home of James Green. Before they arrived there, they met David Green. A short distance from the Green home they found the dead body of James Green. It was lying on the side of the road with a gunshot wound in the right breast. At the Green home they found the dead bodies of Lola Green and Gladys Green. Both of the bodies were lying on the bed where they had been sleeping. The body of Lola Green had two gunshot wounds in it, one near the center and at the top of the breastbone and one just below the right ear. The body of Gladys Green had two bullet wounds in the right side of the breast. The baby was lying on the cot where it was placed by Hannah Green. The pocketknife which the defendant purchased at the secondhand store in Ogden, the flashlight, and an unloaded shotgun were found on the kitchen table.

The defendant was arrested between 3 o'clock and 4 o'clock on the morning of January 5, 1930. When apprehended, he was at his home in bed with Mr. Thompson. The revolver which he bought the night before and several cartridges were in the pockets of his overcoat. The revolver had three cartridges under the ejector so that the cylinder would not close. The defendant's automobile was parked in an alley near his home. Soon after the defendant was placed under arrest, he was taken to the police station of Ogden City, Utah. He was asked if he desired to make any statement, and was informed that any statement that he might make would be used for or against him. He said that he was willing to make a statement. He was then interrogated by a number of police officers. In answer to interrogatories, he gave this version of what had occurred on the night before: That he purchased the pocketknife, the revolver, and the cartridges at a secondhand store in Ogden; that he had been having some family troubles; that every time his mother-in-law and his uncle James came to see him he would have a lot of trouble after they left; that when he left Ogden he made up his mind "to either have peace or make peace when he got down there and that is what happened"; that after he went into the Green house he talked with his uncle, and then he and his uncle went into the bedroom where his wife and mother-in-law were in bed; that his uncle sat down on a chair and the defendant was standing; that when James Green arose from his chair he thought he heard something rattle or snap in his pocket and that James Green had a gun in his pocket; that James ran out after he was shot; that he then shot his wife and mother-in-law; that he then went out where he saw James Green, who said, "For God's sake don't shoot me again"; that he again went into the house and shot one of the women; that he did not know why he went back into the house unless it was "to make a good job of it"; that he did not know why he shot James Green; that he and James Green were friendly; that he intended to kill himself with the revolver but it jammed so that he could not use it; that he tried to find some shells for the shotgun which belonged to James Green but he could not find any; that he was afraid that the pocketknife was not sharp enough to kill himself with; that he did not intend to kill Hannah Green, Lois Green, or the baby; that when he returned to Ogden from the Green home he avoided traveling on the state highway.

The evidence further shows that the father of the defendant became insane and was committed to the state mental hospital at Provo, Utah, when he was 24 years of age. He did not recover his sanity, but died at the hospital a few years after his commitment. At the time defendant's father was committed to the state mental hospital, he had a dislike for his wife and his mother. A full sister of defendant's father became insane when she was about 40 years of age. She was violent towards her mother and husband and frequently tried to...