State v. Lindsay

• Decision Date: 05 November 1957
• Docket Number: No. 2763,2763
• Citation: 77 Wyo. 410,317 P.2d 506
• Parties: The STATE of Wyoming, Plaintiff and Respondent, v. Ernest Lynn LINDSAY, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 506

317 P.2d 506

77 Wyo. 410

The STATE of Wyoming, Plaintiff and Respondent, v. Ernest Lynn LINDSAY, Defendant and Appellant.

No. 2763.

Supreme Court of Wyoming.

Nov. 5, 1957.

J. B. Sullivan, Douglas, for appellant.

George F. Guy, Atty. Gen., Arthur F. Fisher, Asst. Atty. Gen., William P. Dixon, County and Pros. Atty., Douglas, for respondent.

Heard before BLUME, C. J., and HARNSBERGER and PARKER, JJ. Justice PARKER delivered the opinion of the court.

Ernest Lynn Lindsay, convicted by a Converse County jury of murder in the first degree without qualification and sentenced to suffer death in accordance with the provisions of § 9-201, W.C.S.1945, has now appealed to this court, urging errors in the trial of his case.

Defendant has stated to this court in his brief on appeal the facts of his case as follows:

'In the early morning hours of June 20, 1955, the Defendant, Ernest Lynn Lindsay, a young man 22 years of age at that time, in company with one Kenneth Norman Phillips, left Valentine, Nebraska, driving a Buick automobile and proceeded along the highways first driving into South Dakota, then back into Nebraska, and finally into Wyoming. In driving along the highway that morning the two men bought gas at a filling station about daybreak, at which time both Defendant and Phillips were armed. After purchasing the gasoline, they proceeded along the highway and at one point, shortly after, noticed a car parked just off the highway and slowed up for the purpose of possibly getting some gas; but upon seeing a man sleeping in a small tent near the car, they continued along the highway. A short time later the two arrived at a spot not far from Shawnee, Wyoming, in Converse County, and there saw a blue Studebaker pickup truck parked off the highway. On the back of the truck there was built a box-like structure which had a door in the rear, hinged at the top, and partly open.

'The Defendant and Phillips stopped on the highway, near where the Studebaker truck was parked and discussed taking some gas or pilfering the truck. There was no indication nor sign of anyone being in or around the truck. There were no windows on the side of the truck facing the highway, nor was there a chimney or any other thing to indicate that possibly somebody might be in the rear of the truck. Phillips got out of the car, walking toward the highway, for the purpose of determining whether or not anyone was around, and with the though that if anyone should come along he could warn the Defendant.

'The Defendant walked over to the truck, tried the door of the cab of the truck, which was locked, walked around to the rear, at which time he stooped under the door which was ajar on the end of the vehicle to come up under to look into the truck. At the time of stooping to get under the protruding edge of the door in the rear of the truck, the Defendant had in the waist of his pants a gun. The gun started to slip out of the waistband of his trousers; the Defendant put the gun in his hand and went up under the door of the truck. When he glanced up he was surprised to find himself confronted by a large man who was sitting near the rear of the truck who turned, swung his arm, and hollered, and the Defendant shot him. The Defendant testifies, 'I don't know if he was fixing to hit me with something or shoot me or whether he was as scared as I was. I don't know, and I shot him'. The Defendant was frightened and startled and did not know at the time how many shots he had fired. After the shooting, the Defendant ran back to the car, 'was white, shaking, and nervous and could not talk'.

'The Defendant and Phillips, after some conversation, then determined to take the truck, hide the body, and cover up the crime.

'They transferred some clothes from the car which they had been driving to the truck, secured the rear door on the truck, left the car which they had driven to the scene of the shooting, and proceeded through Douglas, Wyoming, to Casper, Wyoming, at which point the Defendant purchased a shovel. They continued then to a point some sixteen miles beyond Casper, and off of the highway buried the body of Herbert A. Diestler, the deceased.

'After burying the body, the Defendant in looking through the truck found certain traveler's checks and two one dollar bills. The two young men left the scene of the burial, proceeded back to Casper, through Douglas to Cheyenne, Wyoming, and into Colorado, Kansas, and eventually arrived in the State of Tennessee, near the city of Chattanooga, at which point the superstructure on the truck was demolished and discarded, the gun was thrown into a lake, and the Defendant and his companion then went into the State of Oklahoma to a point near the town of Warner, Oklahoma, where they removed the license plates from the truck, attemped to burn the truck, and abandoned it.

'Defendant and Phillips were apprehended in Jeffersonville, Indiana, on July 8, 1955, by the Jeffersonville Police, at which time the automobile they were driving carried license plates of the Studebaker truck.'

This statement, although not in entire agreement with the State's version and not reflecting completely all details disclosed by the record, nevertheless suffices as a basis for the discussion of the points raised in the appeal.

We shall discuss in chronological order defendant's specifications of error.

I

He first complains that the court erred in refusing to give Instruction D-3, which reads as follows:

'You are instructed that uncontroverted evidence should ordinarily be taken as true, and uncontroverted evidence which is not improbable or unreasonable cannot be disregarded, even if it comes from an interested witness, and unless shown to be untrustworthy, is conclusive.'

It is urged that this instruction is justified in Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 226. We cannot agree. The required instruction while containing some of the wording used in the Eagan case would tend to preclude the jury from evaluating the testimony of the witnesses. The portion of the Eagan case quoted by defendant states:

'* * * Where an accused is the sole witness of a transaction charged as a crime, as in the case at bar, his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted. * * *'

A careful reading of this decision with emphasis on the statement quoted by defendant discloses a modification of the general rule that the jury are the sole judges of the credibility of witnesses. Nevertheless, such statement is much more comprehensive than the instruction offered by defendant; and no reason has been suggested why the rule stated in the Eagan case should be altered.

II

Defendant urges that the court erred in refusing to give Instruction D-1 which after purporting to define grand larceny and robbery stated further:

'If you determine from the evidence that the taking of the pickup truck and other valuables by Ernest Lindsay was a grand larceny, then you may not find the defendant guilty of murder in the first degree in the attempt to perpetrate or in the perpetration of a robbery.'

A review of the record shows that among the instructions given by the court, with no objection being registered by defendant, were No. 8, defining burglary; No. 10 listing the material acts necessary to find that burglary had been committed; No. 12, defining robbery; and No. 14, delineating the material facts required to be proved to constitute robbery. These instructions would seem to have adequately informed the jury as to the elements of robbery and to have made unnecessary any explanation of what was not robbery. No cases are cited in support of defendant's theory, and we think it is without merit. Additionally, the requested Instruction D-1 by its phraseology and definition of larceny and robbery would seem to exclude from the statutory crime of murder in the first degree a killing during burglary or an attempt thereof. This would tend to exonerate defendant if the jury believed there had been no larceny or robbery, even though they did believe that the killing had occurred during burglary or an attempt thereof (or even had been premeditated)--a determination within the province of the jury to make under the evidence.

III

Complaint is made of the court's refusing to give Instruction D-2 which reads:

'You are instructed that in this case the accused and Kenneth Phillips, his accomplice, are the sole witnesses to the crime charged. If, from the evidence, you find that their testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, and their credibility has not been impeached, then their testimony should be accepted.'

This proffered instruction does fulfill the requirements set out in the above-quoted portion of the Eagan case but is, nevertheless, improper for two reasons. First, its wording is conflicting and confusing in that it simultaneously refers to two witnesses and designates them as the sole witnesses. Webster defines sole as 'without another or others; single; one and only.' Second, the record clearly shows that defendant was the only person present as an eyewitness at the time of the shooting. In fact, defendant's counsel in his brief states, 'Defendant, Lindsay, is the sole witness of the transaction charged as a crime.' Thus, the tendered instruction stating that Phillips was a witness of the crime was factually incorrect. Moreover, examination of the record discloses that Instruction 23 given by the court without objection from the defendant read:

'You are instructed that in this case the accused, Ernest Lindsay, is the sole witness to the killing of the deceased. If from the evidence you find that his testimony is not improbable and is not inconsistent...