State v. Morris

Decision Date17 December 1929
Docket Number1570
Citation283 P. 406,41 Wyo. 128
PartiesSTATE v. MORRIS [*]
CourtWyoming Supreme Court

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

Henry B. Morris, alias George W. Morris, alias George W. Morrison was convicted of murder in the first degree, and he appeals.

Reversed and Remanded.

For the appellant there was a brief and oral argument by T. S Taliaferro, Jr., Arthur-Lee Taliaferro, and Joseph A. Galicich, of Rock Springs, Wyoming.

The constituent elements of first degree murder, must be proven by facts in the evidence and can never be presumed. Bishop's Cr. L. Secs. 723-730; State v. Ross, 8 Wyo. 386; Parker v. State, 24 Wyo. 491. Homicide, however malicious, lacking premeditation, is second degree murder only. Cirej. v. State, 24 Wyo. 507; Ohama v. State, 24 Wyo. 513. No inference of fact or law is reliable if drawn from inferences which are uncertain. U. S. v. Ross, 92 U.S. 281. Premeditation is never presumed. State v. Phillips, (Ia.) 92 N.W. 876; State v. Krampe, 140 N.W. 898; State v. Colbert, (Mont.) 194 P. 145; State v. Lieb, (Ia.) 201 N.W. 29; State v. Prolow, (Minn.) 108 N.W. 873; VI Enc. Ev. 592; Cupps v. State, (Wis.) 97 N.W. 210; Beers v. State, (Nebr.) 39 N.W. 790; Kastner v. State, (Nebr.) 79 N.W. 713; State v. Gosnell, (N. C.) 74 F. 734; Ferguson v. State, (Ark.) 122 S.W. 236; State v. O'Donnell, (Ia.) 157 N.W. 870. If killing is shown to be unlawful without other proof thereof, malice is implied so as to make the slayer guilty of second degree murder, but to make first degree murder, express malice must be shown by satisfactory evidence. Wilson v. State, (Tex.) 129 S.W. 613; Foster v. State, (Oh.) 107 N.E. 536; Weldon v. State, (Ark.) 270 S.W. 968; Com. v. Daynarowics, (Pa.) 119 A. 77. There is no evidence in this case from which an intent to kill may be inferred. Com. v. Dreher, (Pa.) 118 A. 215; Richardson v. Com., (Va.) 104 S.E. 788; Com. v. Thompson, (Va.) 109 S.E. 447. The Wisconsin and California cases are not in harmony with our own decisions in State v. Ross, supra, and Parker v. State, supra. But the California cases themselves are not in harmony. People v. Pette, (Calif.) 202 P. 51; People v. Mahatch, (Calif.) 82 P. 779; People v. Machuca, (Calif.) 109 P. 886. Premeditation is an essential element, and should be alleged and proven beyond reasonable doubt to establish first degree murder. Miller v. State, (Fla.) 77 So. 669; State v. Barrett, (Mo.) 207 S.W. 784; People v. Ingraham, (N. Y. ) 133 N.E. 575; Jones v. People, (Colo.) 155 P. 966; Chisholm v. State, (Fla.) 76 So. 329; Baker v. State, (Fla.) 44 So. 719; State v. Terry, (N. C.) 92 S.E. 154; State v. Bayti, (N. C.) 105 S.E. 200. The record shows an entire absence of proof of "purpose" and "premeditation" essential ingredients of the crime of murder in the first degree. Our review of what seems to be the salient testimony of the witnesses, is offered in view of the rule announced in State v. Sorrentino, 31 Wyo. 129; 31 Wyo. 499; 32 Wyo. 410; lowering verdict as returned by the jury. The court erred in denying defendant's request that the jury be instructed that under the evidence they could not find defendant guilty of murder in the first degree, in view of the state of the evidence as shown by the record. State v. Irving, (Wash.) 53 P. 717; State v. Fasik, (Wash.) 270 P. 123; State v. Pressler, 16 Wyo. 224. The court erred in giving instruction numbered 3. Horn v. State, 12 Wyo. 153; State v. Bowman, (Mo.) 243 S.W. 110. The corpus delicti may have been shown, but there was no evidence that defendant committed the crime of homicide. Smith v. State, 40 Wyo. 128, 274 P. 1074. In that case, conviction seems to have been predicated upon suspicion. Gardner v. State, 27 Wyo. 316. The rule of circumstantial evidence established in Lampitt v. State, 34 Wyo. 247, is wholly lacking in the case at bar. The court erred in the admission of evidence highly prejudicial to the rights of defendant, consisting of various conclusions of witnesses. Paseo v. State, 19 Wyo. 350; Hammond v. State, (Ga.) 120 S.E. 540. Inst. No. 2 directing the order in which the jury should consider the evidence as bearing upon defendant's guilt or innocence. State v. Meyer, (Vt.) 3 A. 201. Testimony by Mrs. Hastings was not deserving of force as substantial evidence. Winchester Co. v. Cleary, 116 U.S. 161; Trapnell v. Conklin, (W. Va.) 16 S.E. 750. The judgment should be reversed.

For the respondent there was a brief by Wm. O. Wilson, Attorney General; J. A. Greenwood, Deputy Attorney General, and Richard J. Jackson, Assistant Attorney General, and oral argument by Mr. Jackson and Mr. Muir, County and Prosecuting Attorney of Sweetwater County.

The evidence established the following facts: the remains found buried under the house on the premises, were those of Anna Grabe and her child, Geneva Grabe. They had been killed and murdered by some criminal agency, and buried in lime in the cellar under the house. Defendant had a criminal agency in killing Anna Grabe and her child and the burial of their bodies; defendant purposely and with premeditated malice, killed Anna Grabe, the deceased. The elements of first degree murder "purposely and with premeditated malice" may be established by circumstantial evidence. 30 C. J. 142; People v. Erno, 232 P. 710; State v. Gaines, 258 P. 508; State v. Butcheck, 253 P. 367. Direct proof of deliberation and premeditation is unnecessary, but may be inferred from facts proved. State v. Welch, (W. Va.) 15 S.E. 419; Warren v. Com., 37 Pa. 45; Com. v. Straesser, (Pa.) 26 A. 17; Rigsby v. State, (Ind.) 91 N.E. 925; People v. Schmidt, (N. Y.) 61 N.E. 907; Leonard v. State, (Tenn.) 292 S.W. 849; State v. Gartrell, 71 S.W. 1045; State v. Krampe, (Ia.) 140 N.W. 898; State v. O'Donnell, (Ia.) 157 N.W. 870; People v. Peete, (Calif.) 202 P. 51; People v. MaHatch, (Calif.) 82 P. 779; State v. Bayty, (N. C.) 105 S.E. 200; State v. Phillips, (Ia.) 92 N.W. 876; Com. v. Dreher, (Pa.) 118 A. 215; Weldon v. State, (Ark.) 270 S.W. 968; Pugh v. State, (Fla.) 45 So. 1023; Thomas v. State, (Fla. ) 51 So. 410. Malice need not be given utterance at the time of the killing, but may be inferred from the facts and circumstances of the case. 13 R. C. L. 771; Wharton 3rd Ed. p. 225. This court has recognized the rule in the Ohama case, 24 Wyo. 513-518. The finding of the jury being supported by evidence, will not be disturbed on appeal. People v. Peete, supra; People v. Durront, 48 P. 75; Com. v. Daynarowics, (Pa.) 119 A. 77; Phillips v. Terr., 1 Wyo. 82; Cornish v. Terr., 3 Wyo. 95; Horn v. State, 12 Wyo. 80. Instruction No. 3, follows an instruction given in the Horn case, and no objection or exception was reserved thereto. Instruction No. 8, is sustained by State v. Meyer, 3 A. 201, and No. 11, by 16 C. J. 997. No exception was taken to Instruction 14 at the trial. It is first complained of in defendant's brief. This instruction is supported by the decision in Palmerston v. Terr., 3 Wyo. 333; and Bradley v. State, 31 Wyo. 492. Instruction No. 18, as to credibility of witnesses is well supported by the authorities. Instructions 1, 9 and 10, given by the trial court, cover all presumptions of innocence and reasonable doubt of guilt. No error was committed by the court in admitting testimony. "Purpose" and "premeditated malice" in the commission of homicide were clearly established by the mute relics about which the circumstances of this case are woven, as fully as if the deed had been committed in the presence of many witnesses.

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

OPINION

RINER, Justice.

Upon an information filed in the District Court of Sweetwater County by the proper officer on November 9th, 1928, Henry B. Morris, appellant herein, was tried and convicted of murder in the first degree. The jury failed to add to the verdict the words "without capital punishment" and accordingly judgment was entered sentencing Morris to suffer the penalty of death. The record is before us by direct appeal for review.

The trial was had more than four years after the commission of the alleged crime and the evidence is wholly circumstantial. The facts in the case, as developed on the witness stand, are substantially these:

In the year 1924 there were three sisters living in Denver, Colorado. Two of them, Mae Griffiths and Maude Welsh, were residing there with their husbands. The third sister, Anna, when about seventeen years old, had married a man by the name of Rowland; from him she had separated, after they had lived together between one and two years. Subsequently she again married a man by the name of Grabe, with whom she lived for about sixteen years, and by whom she had five children, one of whom, previous to 1924, had died. The oldest child, a boy, had been born in Rock Springs, Wyoming, where the Grabes lived for some time. Of these children who were living in the year 1924, one, a girl, Geneva Grabe, was born in Denver, February 14, 1921. Sometime before the month of June 1924, Anna Grabe left her second husband and went to reside a part of the time at the home of her sister Mrs. Griffiths. The husband and the rest of the children continued to occupy the family home in Denver. Mrs. Grabe, meanwhile, occasionally worked as housekeeper for other people. It appears that at one time she kept house on a ranch for a man by the name of George Tomlin, whose wife had left him and who wanted Mrs. Grabe to marry him. Apparently, also, Mrs. Grabe had other masculine friends who interested themselves in her behalf, among them being a Charles or George Lyman, and one George Cummings, to be hereafter mentioned.

In June 1924, by correspondence arising out of a newspaper advertisement, Mrs. Grabe, at that time thirty-six years old under...

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