State v. Nemier

• Decision Date: 14 April 1944
• Docket Number: 6634
• Citation: 148 P.2d 327,106 Utah 307
• Court: Utah Supreme Court
• Parties: STATE v. NEMIER et al

148 P.2d 327

106 Utah 307

STATE v. NEMIER et al

No. 6634

Supreme Court of Utah

April 14, 1944

Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.

Thomas Nemier and another were convicted of an assault with a deadly weapon upon prison guards while undergoing a life sentence and they appeal.

Reversed and remanded for a new trial.

McCullough & Ashton, E. M. Morrissey, and Harold N. Wilkenson, all of Salt Lake City, for appellants.

Grover A. Giles, Atty. Gen., and Zar E. Hayes, Asst. Atty. Gen., for respondent.

WADE Justice. WOLFE, Chief Justice, McDONOUGH, Justice concurring. LARSON, Justice, dissenting in part. MOFFAT, J., participated in the hearing but died before the publication of the opinion.

OPINION

WADE, Justice.

On July 4, 1943, while a program was being given in the state prison, Pat McLaughlin and the defendants Standard and Nemier, all inmates thereof, armed themselves with knives and attacked the prison guards. Obtaining the upperhand they threatened to kill the guards unless they gave up their guns, together with the keys to the armory and to an automobile standing in the prison yard and opened the outside gate. The guards complied with their demand and the three inmates with guns and ammunition made their escape with the automobile. A general alarm was sent out and some Salt Lake City police officers contacted the automobile with the escaping inmates between the state prison and the business district of that city. A gun battle ensued into, through and beyond the business district of Salt Lake City and ended when the car driven by the inmates was sideswiped by a police car and overturned, killing Pat McLaughlin.

The defendants were recaptured. At that time they were each serving an indeterminate sentence for robbery of from five years to life. Thereafter they were charged under what is now section 103-7-12, U. C. A. 1943, with an assault with a deadly weapon upon the prison guards while undergoing a life sentence, and were tried, convicted and sentenced to be executed. From this decision they have appealed to this court.

The defendants were tried jointly. In choosing the jury, the court ruled that the defendants were entitled to ten peremptory challenges which must be exercised collectively, and each defendant was entitled to two additional challenges which he could exercise separately. To this the defendants excepted and contend that the court erred in not allowing each to exercise ten separate peremptory challenges. Section 105-31-2, U. C. A. 1943, provides:

"If two or more defendants are jointly tried they shall collectively be allowed the number of peremptory challenges specified in section 105-31-15 only in case they join in such collective challenges, but in addition to such challenges each defendant shall be allowed the following number of peremptory challenges which may be separately exercised:

"(a) Two, if the offense charged is punishable by death."

Section 105-31-15, U. C. A. 1943, provides:

"The state and the defendant shall each be allowed the following number of peremptory challenges:

"(a) Ten if the offense charged is punishable by death."

Defendants contend that section 105-31-2 applies only where no defendant objects to joining in the collective peremptory challenges, but if any defendant objects thereto such defendant is entitled to the full number of challenges specified in section 105-31-15, which he may exercise separately. This position is not tenable. Section 105-31-15 clearly contemplates that each side, the state and the defendants, shall have an equal number of peremptory challenges. Prior to the 1935 amendment section 105-31-2, R. S. U. 1933, provided that:

"When several defendants are tried together they cannot sever their challenges but must join therein." Utah Code 1933, 105-31-2.

Under that law it was clear that the defendants were only entitled to the same number of peremptory challenges as the state and that they must exercise them jointly. There is nothing in the amendment which indicates that the legislature intended to change the law on this point, it merely gave the defendants additional peremptory challenges which could be exercised separately and made other changes in other respects. Under the amendment it is clear that if collective challenges are taken they must be joined in by all defendants. Thus a challenge which is objected to by any defendant should not be allowed, but the defendants do not here complain that the court refused to allow challenges to which they objected. Their complaint is that the court refused to allow them ten separate challenges each but required them to make their ten challenges collectively. Where there are two or more defendants the statute does not provide for additional separate challenges if defendants refuse to joint in the collective challenges. It provides for collective challenges which can only be exercised jointly. The ruling of the court was therefore correct.

The defendants were charged with an assault on the prison guards, not with escaping from the prison. When they left the prison that offense was complete. The encounter with the city police and the gun battle through the streets which followed constituted another and separate offense against different persons. Defendants contend that it was error to admit proof of these later events in evidence. It is universally recognized that the state may not prove other similar offenses committed by accused merely to show his bad character and propensity to commit similar crimes and infer therefrom that he probably committed the crime charged. Such evidence is irrelevant, that is, its tendency to prove that the defendant committed the crime charged is not great, as compared with the danger that the court or jury will give undue weight to the prejudice of the accused. It is, however, recognized that if the facts which constitute the collateral offense are relevant, that is they inherently tend to establish any of the necessary elements of the crime charged, other than by merely showing defendant's bad character and propensity to commit similar crimes, proof of such facts is admissible in evidence, even though such proof shows that defendant has committed other offenses. It is often said that:

"The party cannot, by multiplying his crimes, diminish the volume of competent testimony against him." People v. Cione, 293 Ill. 321, 127 N.E. 646, 650, 12 A. L. R. 267.

This is the correct basis of this rule both historically and logically, but in recent times it is almost universally stated by courts and writers as a general rule, that on the trial for one offense the state may not prove other similar offenses; many exceptions to this rule are however recognized. State v. Kappas, 100 Utah 274, 114 P.2d 205; State v. Anderton, 81 Utah 320, 17 P.2d 917; State v. McGowan, 66 Utah 223, 241 P. 314; State v. Bowen, 43 Utah 111, 134 P. 623; People v. Coughlin, 13 Utah 58, 44 P. 94; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L. R. A. 193 and note thereto; 1 Wigmore on Evidence (3rd Ed.), Sections 194, 216; Model Code of Evidence proposed by the American Law Institute, 1942, page 196, Rule 311 and comment thereon, Julius Stone has written two excellent articles entitled "The Rule of Exclusion of Similar Fact Evidence." 46 Harvard Law Review 954 (1933), England; 51 Harvard Law Review 988 (1938), America. At page 1008 note 113, the author says:

"Very frequently there is found in the cases some form of rule like the following: 'Evidence of similar offenses are never admissible except to prove some fact in issue.' Now obviously this form of statement is substantially the original rule, putting the substance of the old into the form of the new. * * * See e. g., 8 R. C. L. (1914) 199: 'The rule against admitting proof of extraneous crimes is subject, however, to certain exceptions. In making proof it is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime of which the defendant is accused.' This was adopted by the court in State v. Anderton," and other cases.

Thus the court, in the Anderton case, adopted the same test which is suggested above, but states that test as an exception to a general rule of exclusion. In the case of People v. Coughlin, supra, in the Utah report, page 67, 44 P. at page 96, we said:

"The defendant also alleges that the court erred in permitting Sheriff Harrington and Williamson to testify that Coughlin the defendant! and George shot at them at the sheep wagon, four days before the killing of Dawes and Stagg. It will be remembered that when Harrington and Williamson first saw Coughlin at the wagon he had his gun leveled upon them, and when Harrington told them to 'put his gun down and quit his foolishness' he fired at the officer, and continued shooting until he had wounded the deputy, and until both officers had retreated out of reach of his bullets. The conduct of Coughlin on this occasion indicated a purpose to kill any person who might attempt to arrest him. It manifested a deliberate intention to kill all such persons."

There the court does not even state any general rule of exclusion although it had previously stated such rule in discussing another point, but it merely points out that evidence is admissible, even though it proves another offense, where it shows a purpose to kill any one who might attempt to make an arrest. That case is similar on its facts to the present case. There the evidence received, which constituted another offense, indicated a purpose on the part of the defendant to kill any one who attempted to arrest him; here the evidence objected to indicates a purpose or...