State v. Parmely, 2384

• Decision Date: 09 November 1948
• Docket Number: 2384
• Citation: 65 Wyo. 215,199 P.2d 112
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. BYRON PARMELY, Defendant and Appellant
• Court: Wyoming Supreme Court

199 P.2d 112

65 Wyo. 215

THE STATE OF WYOMING, Plaintiff and Respondent, v. BYRON PARMELY, Defendant and Appellant

No. 2384

Supreme Court of Wyoming

November 9, 1948

APPEAL from District Court, Natrona County; C. D. MURANE, Judge.

Byron Parmely was convicted of assault and battery with intent to kill and murder, and he appeals.

Judgment reversed and cause remanded.

For Plaintiff and Respondent the cause was submitted on the brief of Norman B. Gray, Attorney General, John S. Miller, Deputy Attorney General and Marion R. Smyser, Assistant Attorney General, all of Cheyenne, Wyoming and oral argument by Mr Miller.

POINTS OF COUNSEL FOR APPELLANT.

Evidence which has no tendency to establish the guilt or innocence of accused, and which, if effective at all, could serve only to prejudice or mislead, or excite the minds and inflame the passions of the jury, should not be admitted. Thus evidence offered solely for the purpose of creating sympathy for the person injured, or improperly appealing to the jury's prejudice against accused, should be excluded. People v Hurst, 207 P. 499.

The person injured by the crime, whether alive or dead, is in no sense a party to the prosecution, and therefore his statements and declarations are not evidence either for or against accused, unless they are relevant on the question of accused's guilt and were made in his presence, or unless they are admissible as part of the res gestae. 22 C. J. S 1276.

It must be borne in mind that statements made out of court, not in the presence or hearing of an adverse party, and not made under such circumstances as to bind him is but hearsay. Such statements should not, therefore, be used in such manner as to make them substantive evidence of fact. Crago v State, 28 Wyo. 215.

The instructions must contain a definition or explanation of the crime charged, in precise and accurate language, setting forth the essential elements thereof. An instruction is erroneous which assumes to state all the elements of the crime, but omits one or more of them, or which refers the jury to the indictment or information to ascertain any of the essential elements. 23 C. J. S. 741.

It is the duty of the trial court to instruct the jury the law of the case on trial, which instruction should include a definition of the offense sufficient to inform the jury what facts must be established by the proof in order to justify a verdict of guilty. Darden v. State. 273 P. 1027, (Okla.) 1929.

The trial judge, of his own motion, should inform the jury in every case as to all the particular crimes involved in the information which the evidence to any extent tends to support. People v. Watson, 57 P. 1071 Cal. 1899;

A party indicted for an assault, or assault and battery, with intent to commit murder in the first degree, may, if the evidence justifies it, be convicted of the assault or assault and battery, with intent to commit murder in the first or second degree or to commit manslaughter, or he may be acquitted of any felonious assault and found guilty of an assault or assault and battery only. Brantley v. State, 9 Wyo. 102.

The verdict should be expressed in plain and intelligible words, so that its meaning may be understood readily by the court in giving judgment thereon. The verdict should be sufficiently definite, certain, and specific to identify the crime. Where the verdict is so indefinite and uncertain as to be unintelligible, it is invalid. 23 C. J. S. 1077.

For Defendant and Appellant the cause was submitted on the brief of R. R. Rose and J. F. Mahoney and oral argument by Mr. Mahoney and John J. McIntyre, all of Casper, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT.

Assault and battery with felonious intent is one offense. If the information charges such an assault with intent to commit murder, it is proper to charge the jury that the intent, which is the essence of the crime, may include the intent to commit first degree murder, second degree murder, or manslaughter. Brantley v. State, 9 Wyo. 102, 61 P. 139.

The failure to more specifically describe the offense could not have prejudiced the material rights of the appellant, for, whether the manslaughter be voluntary or involuntary, the punishment is the same. Brown v. State, 111 Ind. 441, 12 N.E. 514.

Appellant cannot complain of any error or omission in instructing as to the higher degrees of homicide. He cannot object where the error pertains to a higher offense of which he is not found guilty. State v. Eldredge, 45 Wyo. 488, 21 P.2d 545, Jarrell v. State, 58 Ind. 293.

Not every provocation will deprive a man of his right of self defense. It must be one reasonably calculated to lead to an affray, was intended to do so or is the natural consequence of his acts. But when a man has himself produced the difficulty his own wrong is justly imputed to him. It will not in all cases visit the extreme punishment upon him. It will regulate it in accordance with the magnitude of his wrong. So the law of self-defense has been divided into the right of perfect and imperfect self-defense. If the slayer provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provoked the combat, or produced the occasion without any felonious intent, the final killing in self-defense will be man-slaughter only. State v. Flory, 40 Wyo. 184, 276 P. 458.

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

OPINION

RINER, Chief Justice.

Byron Parmely was convicted by the verdict of a jury in the District Court of Natrona County of the crime of assault and battery with intent to kill and murder a person named Wayne Messmer. The record is here for review on Parmely's direct appeal. He will usually be referred to hereinafter as the defendant.

Omitting formal allegations the defendant was charged by an information filed by the County and Prosecuting Attorney of Natrona County with having on or about August 21, 1946 in the aforesaid county, "wilfully and unlawfully and feloniously" committed a "violent injury upon the person of one Wayne Messmer, by then and there unlawfully, feloniously, purposely and with premeditated malice, shooting at and wounding the said Wayne Messmer with a gun which the said Byron Parmely then and there had and held in his hands, and which said gun was then and there loaded with powder and shot, with intent then and there and thereby, him, the said Wayne Messmer, unlawfully, feloniously, purposely and with premeditated malice, to kill and murder".

The law under which this information was drawn and filed August 21, 1946 is Section 9-206 W.C.S. 1945, which reads:

"Whoever perpetrates an assault, or assault and battery, upon any human being with intent to commit a felony, shall be imprisoned in the penitentiary not more than fourteen (14) years."

In connection with this statute it may properly be recalled that it has been held that Sections 9-208 relating to assault, 9-209 relating to assault and battery, and 9-210 denouncing the crime of aggravated assault and battery are but inferior degrees of, and are included in, the offense described in Section 9-206 just quoted. Elliott vs. State, 47 Wyo. 36, 30 P.2d 791. It may also be observed that this court in Brantley vs. State, 9 Wyo. 102, 107, 61 P. 139 referring to Section 5389 W. R. S. 1899 (now W.C.S. 1945 Section 10-1403) and quoting therefrom, its provision that: "upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any degree inferior thereto." then proceeded to say: "But counsel contend that this is no authority in the premises for the reason that assault with intent to commit murder in the first degree, murder in the second degree and manslaughter are not degrees of the same offense but separate offenses of the same degree and punishable in the same way. Our statutes upon the subject are taken from Indiana and the Supreme Court of that State construing the section in question say that 'a party indicted for an assault, or assault and battery, with intent to commit murder in the first degree, may, if the evidence justify it, be convicted of the assault, or assault and battery, with intent to commit murder in the first or second degree or to commit manslaughter, or he may be acquitted of any felonious intent, and found guilty of an assault, or assault and battery only.' The State v. Throckmorton, 53 Ind. 354. And it is evident that the construction of the section suggested by counsel is too narrow. For it is also the only express authority in our statutes for a verdict of manslaughter under an indictment for murder in the first degree. And yet manslaughter is no more a degree of murder, under our law, than assault with intent to commit manslaughter is a degree of the crime of assault with intent to commit murder in the first degree. It is not murder at all in any degree. It is simply an included offense, sufficiently charged in charging murder."

The material facts as we take them from the record are substantially as follows: On the night of August 20, 1946 the defendant with whom was associated his brother-in-law, Leland Carr, was conducting a restaurant and night club business in a place known as the Goose Egg Inn on the road between the cities of Casper and Rawlins, about 9.8 miles southwest of the first mentioned city and in Natrona County, Wyoming.

About 9:30 that night three men, Messmer, Coburn and Rogers appeared in the Inn aforesaid and were observed by Parmely drinking at the bar of the establishment. One of them, Coburn, had been convicted of grand larceny in the State...