State v. Jensen

• Decision Date: 16 October 1951
• Docket Number: No. 7617,7617
• Citation: 120 Utah 531,236 P.2d 445
• Parties: STATE, v. JENSEN.
• Court: Utah Supreme Court

Page 445

236 P.2d 445

120 Utah 531

STATE, v. JENSEN.

No. 7617.

Supreme Court of Utah.

Oct. 16, 1951.

Herbert F. Smart, Salt Lake City, for appellant.

Clinton D. Vernon, Atty. Gen., G. Hal Taylor, Deputy Atty. Gen., Francis C. Lund, Deputy Atty. Gen., for respondent.

CROCKETT, Justice.

Defendant appeals from a conviction of second degree murder. He asserts that there is not sufficient evidence from which reasonable minds could find beyond a reasonable doubt either (1) that he had the intent necessary to constitute second degree murder or (2) that any act on his part caused the death.

With respect to his intent: It is the established law of this state that in order to make the crime of second degree murder the defendant must have intended to either (a) kill, or (b) do great bodily harm, or (c) do an act which would naturally and probably cause death or great bodily harm to the deceased. State v. Thompson, 110 Utah 113, 170 P.2d 153; State v. Trujillo, Utah, 214 P.2d 626.

In this case, the jury was instructed to that effect. From their verdict, it must be assumed by us that they found from the evidence beyond a reasonable doubt that the requisite intent was present. If the evidence justifies that finding, it is our duty to affirm the verdict. Mr. Justice Gideon for this court in State v. Minousis, 64 Utah 206, 228 P. 574, 575, stated: 'we have nothing to do with the matter of reconciling conflicts. We are required to uphold the judgment if it appears that there is substantial evidence * * * which would warrant the trial court in submitting the case to the jury.' See also Pixley v. State, 203 Ark 42, 155 S.W.2d 710, and State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.

The inquiry then is: Is there sufficient evidence from which reasonable minds could believe beyond a reasonable doubt that the defendant had the requisite intent for second degree murder as hereinabove set forth.

From the record, it appears that all of the characters in this drama were a good deal below the moral standard which generally prevails in our Utah communities. They had all been drinking together at a dance on the evening prior to this tragedy; both defendant and deceased were drunk. After the dance, the defendant accidentally dropped and lost his car keys and sent his wife for a taxi. The deceased, Val Gene Steele, offered to drive her and her husband home. She got in his car; he drove on past her husband who was standing by his truck and went on to a public park. There is evidence that he made an indecent proposal to her and that he may have been a bit rough in trying to force his attentions on her. He being dead, her version of the story is the only evidence available; she stated that after a short struggle he gave up, drove her back and let her off at her husband's truck. Whatever the episode amounted to, the defendant's wife made no mention of it to her husband that night. She first told him about it the next morning at breakfast. There is no evidence that he was then much concerned or upset about it. At about 8:30 or 9:00 a. m., the defendant left home to see about working that day. On the highway, he met one Sherill Crane who also had a hangover from the previous night; they proceeded to a tavern in Salina to drink beer together. As defendant sat in the tavern drinking beer, he talked volubly about the affront to his wife, telling all the customers about it. This is some indication of what a sensitive creature he must be and how outraged his feelings must have been at the claimed insult to his wife. Defendant and Crane spent most of the forenoon in the tavern. Defendant boasted several times, referring to Steele, that he was going to 'kill the son of a bitch' and 'beat him to death'. He did this in the hearing of numerous people; the tavern operator told the defendant that he 'would not be talking about it in a public place.' Sherill Crane, the so-called friend of the defendant, kept urging the defendant on to start some trouble.

It should be remembered that the defendant was a big, strong man, practically in the prime of life. He weighed 180 pounds, was 5' 10" tall, and 34 years old. The deceased was a much smaller and considerably older man. He weighed 130 to 135 pounds, was 5' 5" tall and was 41 years of age. Even if one tolerated the idea of physical violence as a method of rectifying a wrong, it would have been unsportsmanlike for this larger, younger man to administer a beating to the deceased. But the evidence supports a finding of a more serious determination. Several witnesses testified to hearing the defendant make unconditional threats to kill the deceased. Finally, just before noon, the defendant told this Crane to go get the deceased and he, the defendant, would kill him. Defendant allowed Crane to take the defendant's truck for that purpose. Crane lied to the deceased, presuming on his friendship to ask him to help Crane move a refrigerator. This deceased readily agreed to do, relayed this information to his wife, got in the truck and went with Crane. The latter then took the deceased to the tavern; parked the truck and got out of it; then went and informed the defendant that Steele was there, thus laying the scene for this crime. One can visualize how proud Crane must be of the part he played in this affair which resulted in the death of deceased, leaving as a widow a trusting wife and mother and causing five small children to be fatherless.

Upon learning that the truck was in front of the tavern--the defendant took off his shirt, went out and tried to get the deceased out of the truck. In doing so, he again expressly threatened to kill the deceased. The deceased only attempted to keep in the truck and avoid being taken out of it by the defendant. The latter got up on the running board and proceeded to flail upon the deceased, who was then lying in the seat trying to keep away from the defendant, the most vicious and violent blows he was capable of.

As the witnesses could not actually see into the cab of the truck, no one was in a position to tell whether defendant was striking Steele with anything but his hands; we assume that all of the blows were struck with his bare fists. After defendant had rained many blows upon the deceased, one Sharp Rasmussen, a bystander, stopped the defendant. As he did so, the defendant was still threatening to kill Steele and continuing to call him names. Ernest Lau, who knew the deceased well, got up on the running board and looked into the truck; the deceased was so bruised and bloody that Lau did not recognize him and inquired who he was; Lau testified that 'there was blood all over.' A few minutes later, after deceased had washed and cleaned up as best he could, when Crane let him off at his home, his wife noticed 'a deep gash on his mouth,' 'a large black mark on his temple,' 'his eyes swollen' and other marks of violence upon him. He seemed not to know what was going on--, kept asking the same questions about the World series ball game which was on the radio,--walked out into the yard--and within a few minutes one of the children observed him lying on the ground gasping his last. Although there is some uncertainty about the time, his death occurred within two hours (with a possible variation of a few minutes either way) of the time of the assault upon him. Any difference in facts between this and the dissenting opinion is because Mr. Justice WADE is placing some emphasis on certain of defendant's evidence, while we rely on the evidence produced by the State.

Is the foregoing evidence sufficient to meet the requirements of the law as to the intent necessary for second degree murder? The question of intent is practically always one for the jury; that universally accepted principle of law is well stated for this court by Mr. Justice Folland in State v. Martin, 78 Utah 23, 300 P. 1034. This same rule is also asserted without qualification in Vol. 3, Warren on Homicide, Perm.Ed., p. 307, citing many authorities including State v. Minousis, supra.

It is true that striking with fists, without more, will not ordinarily imply an intent to kill. McAndrews v. People, 71 Colo. 542, 208 P. 486, 24 A.L.R. 655. See People v. Crenshaw, 298 Ill. 412, 131 N.E. 576, 15 A.L.R. 671, and authorities cited in connection with the A.L.R. report on that case and note following it. But at p. 676, the annotator says, '* * * It has been held that an assault without a weapon may be attended with such circumstances of violence and brutality that an intent to kill will be presumed.' See cases there abstracted so holding. Under that rule, the violence and brutality of the attack in this case, coupled with the difference in the sizes and ages of the men and the other circumstances, was such that the court may very well have submitted the question of the defendant's intent, even if the defendant had made no threat nor expression of his intention. However, that is a matter which we need not consider nor pass on. Here the defendant not only expressly stated his intent beforehand to kill the deceased, but sent for him for the avowed purpose of carrying out his threat.

It is uniformly held that it is not necessary that a deadly weapon be used in order to justify a finding by the jury that a defendant intended to kill. In addition to the cases contained in the note at 15 A.L.R. 676, referred to above, see also Bearrow v. State, 135 Tex.Cr.R. 119, 118 S.W.2d 594, where the killing was by choking and the court stated that it was not necessary that the defendant use a deadly weapon in order to show a murder with malice; in McArthur v. State, 132 Tex.Cr.R. 447, 105 S.W.2d 227, death by choking and beating was held to support a conviction of murder. In Pixley v. State, supra, the defendant, a woman, beat another woman with her fists. In affirming a conviction of voluntary manslaughter, the court said [203 Ark. 42, 155 S.W.2d 713], 'the cold fact remains that appellant did beat Mary...