State v. Lantzer

• Decision Date: 13 February 1940
• Docket Number: 2127
• Parties: STATE v. LANTZER
• Court: Wyoming Supreme Court

99 P.2d 73

55 Wyo. 230

STATE v. LANTZER

No. 2127

Supreme Court of Wyoming

February 13, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Stanley Samuel Lantzer was convicted of murder in the first degree and he appeals.

Affirmed.

For the appellant, there was a brief and oral argument by Allen A Pearson of Cheyenne.

The trial court erred in refusing requested instructions on mitigation, which might have reduced the degree of the alleged crime. State v. Pressler, 16 Wyo. 214; State v. Anselmo (Utah) 148 P. 1071; Gustavenson v. State, 10 Wyo. 300; Call v. State (Okla.) 264 P. 643; State v. Newman (Kan.) 47 P. 881; State v. Flory, 40 Wyo. 184; People v. Ashland (Cal.) 128 P. 798; Almerigi v. State (Okla.) 188 P. 1094. It was the duty of the trial court, particularly in a capital case, to instruct the jury as to the law on all matters of defense. 16 C. J. 962; Durham v. State, 29 Wyo. 85; Territory v. Watson (N. M.) 78 P. 504; State v. Martinez (N. M.) 230 P. 379; Kirk v. Territory (Okla.) 60 P. 797; McIntosh v. State (Okla.) 128 P. 735; Nelson v. State (Okla.) 245 P. 1009; State v. Stenback (Utah) 2 P.2d 1050; State v. Radon, 45 Wyo. 383. No instruction was given by the court on the subject of mitigation. The court erred in receiving in evidence plaintiff's exhibits 3, 4, 5 and 6, being photographs showing the body of deceased before removed after her death. The only purpose of introducing these photographs was to inflame the minds of the jurors. State v. Burrell (N. J.) 170 A. 843. The court erred in admitting plaintiff's exhibit 7, purporting to be a memorandum of admissions made by accused to the prosecuting attorney, it not being shown that said admissions were voluntary. 16 C. J. 717; Mortimore v. State, 24 Wyo. 452; State v. Wilson (Nev.) 156 P. 929; Walters v. State (Md.) 144 A. 252; 16 C. J. 723. The court erred in refusing appellant's requested instruction as to the weight of a confession and cautioning the jury in regard to it. 16 C. J. 732; Wharton Crim. Evidence, 10th Ed., Vol. II, p. 1297. The verdict and judgment are contrary to the evidence, to law, and are excessive. First degree murder is defined by Section 32-201, R. S. 1931. The evidence did not establish first degree murder. Commonwealth v. Sterling (Penna.) 170 A. 258; State v. Sorrentino, 31 Wyo. 129; State v. Flory, 40 Wyo. 184; Anthony v. State (Okla.) 159 P. 934; Johnson v. State (Okla.) 249 P. 971; State v. Gunn (Mont.) 300 P. 212; Commonwealth v. Garramone (Penna.) 161 A. 733. The trial court erred in the admission and rejection of various questions and answers, to which exceptions are taken in our specifications of error. State v. Flory, 40 Wyo. 184. The trial court erred in excluding questions propounded by the defense as being leading. The term "leading" is defined by the authorities. 70 C. J. 512. Without regard to errors in the record, we believe the evidence falls far short of justifying the infliction of the death penalty in this case, and that the verdict and judgment should be reversed and a new trial ordered.

For the respondent, there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Kerr.

Appellant contends that the court erred in refusing requested instructions on the subject of mitigation. No question of mitigation was involved, except that it would flow from the plea of insanity. The burden of proving sanity rests on the state. The rule applicable under proper circumstances is stated in State v. Pressler, 16 Wyo. 214, cited by appellant, also in the case of State v. Anselmo, 46 Utah 137, 148 P. 1071; Gustavenson v. State, 10 Wyo. 300; State v. Newman, 47 P. 881. The case of State v. Flory, 40 Wyo. 184, cited by appellant, deals with provocation and not insanity. The same is true of the case of People v. Ashland, 128 P. 798. The court submitted to the jury instructions numbered fourteen to twenty inclusive, which, with the exception of number 19, had to do with the sanity of the defendant. All of said instructions were proper and fairly stated the law. Flanders v. State, 24 Wyo. 81; State v. Thomas, 151 N.W. 842. Instruction numbered 17 directed the jury to look at all the facts and circumstances in evidence, relating to defendant's mental condition before the time of and since the killing. The Thomas case relates to the principles of "cooling time," generally recognized by the authorities, where provocation is made a part of the defense. Price v. State, 51 Am. Rep. 322. The photographs referred to as exhibits 3, 4, 5 and 6 were properly admitted as evidence. 16 C. J. 744, Section 1528; People v. Ah Lee, 128 P. 1035. The admission or confession of defendant was taken after defendant had been cautioned that anything he stated therein might be used against him at the trial, and under the well-established rules, it was a voluntary statement. Mortimore v. State, 24 Wyo. 452. The cases cited by appellant do not sustain his contentions. 16 C. J. 948; People v. Vuyacich, 206 P. 1031; Horn v. State, 12 Wyo. 80; State v. Sorrentino, 31 Wyo. 129. The jury had lawful authority to exercise discretion in determining the degree of the crime and when it constituted murder in the first degree, of fixing the penalty therefor. Laws 1915, Chapter 87, Sec. 1; Sec. 33-201, R. S. 1931; State v. Carroll, 52 Wyo. 29. The record shows that defendant had a fair and impartial trial and the judgment should be affirmed.

Allen A. Pearson in reply.

We are in disagreement with the argument appearing in respondent's brief, with respect to the principle of "cooling time." The term relates to the time which elapses between the happening of an event of provocation and the time of the commission of the alleged crime. Words and Phrases (2d Series) Vol. 1, p. 1047; State v. Flory, 40 Wyo. 184. We do not believe that there was any cooling time at all shown by the evidence in this case. The instructions given on the question of insanity made the giving of the offered instructions on provocation of even greater importance. A defendant cannot be insane in degrees. Provocation is different. It bears upon the question of how to conform the mitigating circumstances to the degree of guilt--not guilt or innocence, but the amount or severity of the punishment. It cannot be denied, and was not denied by any witness, that defendant was laboring under a severe mental strain before and at the time of the homicide, by reason of his wife's conduct. The subject of mitigation is ably discussed in the case of State v. Gounagias (Wash.) 153 P. 9, 12, 14. We have not contended that appellant was innocent of any crime. We have contended and now contend that defendant is not guilty of murder in the first degree.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

Defendant killed his wife, Cecile, at Cheyenne on August 29, 1938. His trial resulted in an unqualified verdict finding him guilty of murder in the first degree, and he appeals from the judgment pronouncing the death sentence.

Defendant and deceased were married about two years before the homicide, and lived at Brush, Colorado. Title to their home and furniture which were only partly paid for was in the wife. Defendant was of good character, industrious and fond of his wife. He was employed in the bridge and building department of the Burlington Railroad. This work took him from home during working days, but he was home each Saturday night and Sunday. In the spring of 1938 he was temporarily put out of work for the railroad by being "laid off" subject to call. Thereafter he worked at whatever odd jobs he could find. In the latter part of June he went to Kansas to work in the wheat fields, and was there employed with a threshing crew on July 6, when a friend in Brush advised him by telephone to come home. Defendant at once returned to Brush where he found that his wife had left home, and was informed that she had appeared publicly in a lewd dance put on by a street carnival company that had showed in Brush during the Fourth of July celebration, and that she had probably left with the company. He was told also that at various times when he had been absent from home, his wife frequently had been guilty of misconduct in associating and drinking with other men. There is no reason for repeating the testimony in regard to these reports. It was admitted as having some bearing on defendant's mental condition. Defendant's subsequent conduct, including the fatal shooting, was not influenced by resentment caused by belief that his wife had been guilty of the misconduct which was the subject of the reports. If he believed her guilty, he readily forgave. He testified that "after having heard these things" he was trying to find his wife "to beg her to come home," and this is confirmed by all the testimony in regard to conversations with his wife after he found her.

About the middle of July, defendant learned that his wife had not left Brush with the carnival company, but had gone to Cheyenne. He soon came to Cheyenne where he met her, and at the trial he gave this testimony in regard to what then took place: "I tried to get her to come back at that very time because I figured on going back to Kansas [to work] on that threshing outfit. * * * I told her there was a lot of talk going on about her at home, and I didn't want to lose the place and the furniture, and I wanted her to come back and stay with me and face everything that was there because I couldn't face it down myself. She told me that she didn't want to right away, that for me to go on back and get a job, and then she would come with me, wherever I was."

After this meeting defendant...