State v. Powell

• Decision Date: 01 February 1951
• Docket Number: No. 7687,7687
• Citation: 71 Idaho 131,227 P.2d 582
• Parties: STATE v. POWELL et al.
• Court: Idaho Supreme Court

Page 582

227 P.2d 582

71 Idaho 131

STATE v. POWELL et al.

No. 7687.

Supreme Court of Idaho.

Feb. 1, 1951.

Rehearing Denied Feb. 27, 1951.

Hawley & Marcus, Boise, Dellmore Lessard, Portland, Or., for appellants.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Blaine, Prosecuting Atty., Boise, for respondent.

PORTER, Justice.

For convenience, appellants herein will be hereinafter referred to as defendants. On May 9, 1950, defendants were arrested in Ada County and accused of the murder of one Newton N. Wilson. On May 18, they waived preliminary hearing and were bound over to the district court. On May 25, an information was filed in the district court in Ada County, charging defendants jointly with the crime of murder in the first degree. By such information it was alleged that defendants did kill and murder one Newton N. Wilson on May 9, 1950, in Ada County, Idaho.

On May 26, 1950, defendants were present in court with their counsel and were duly arraigned. Thereupon the court continued further hearing in the matter until June 1. On June 1, being present in court with counsel, each defendant entered his plea that he was guilty as charged in the information. Thereupon the court continued further proceedings until June 15.

On June 14, 1950, defendants and counsel being present in open court, the prosecuting attorney moved to amend the information in minor particulars which motion was agreed to by counsel for defendants. Defendants were then arraigned on the amended information. Each defendant waived the statutory time within which to plead and stated his desire to plead forthwith. Each defendant then entered his plea that he was guilty as charged in the information as amended. Each defendant then waived the statutory time for sentence and requested an immediate sentence. Thereupon the court fixed June 15, 1950, at 10:00 o'clock A.M. as the time for pronouncement of sentence.

On June 15, 1950, at the time fixed for pronouncement of sentence, the court stated:

'Gentlemen, this is the time set for sentence in this case of State vs. Troy Powell and Ernie Walrath.

'At this time, in accordance with the statute, I desire to determine the degree of the crime, and also any facts or circumstances in aggravation or mitigation of the offense.'

It is evident that all parties had foreknowledge of this hearing. The state offered numerous exhibits, consisting of photographs of the scene of the crime and physical objects connected therewith. The state called seven witnesses. Defendants called nine witnesses including defendants, their parents and a psychiatrist. At the close of the hearing the court rendered judgment that each of the defendants was guilty of murder in the first degree and imposed sentence of death upon each defendant. From such judgment, defendants have appealed to this court.

The evidence adduced at the hearing disclosed the background of each defendant and the details connected with the commission of the crime. In order to weigh and understand the questions raised on this appeal, it is necessary to have in mind the facts developed at such hearing.

Defendant, Powell, was reared in the vicinity of Emmett. He was 20 years old on January 5, 1950. He attended high school for a portion of one year. When he was 18 years of age, he was sent to the penitentiary in Oregon for the theft of an automobile. He was incarcerated for about nine months and upon his release, in September, 1949, returned to Boise where his parents were living. While in the Oregon Penitentiary, he became acquainted with defendant, Walrath. In Boise, he met and married the sister of defendant, Walrath. This was his second marriage.

Defendant, Walrath, was reared in the vicinity of Bend, Oregon. He was 19 years of age on February 25, 1950. He attended high school until the middle of his senior year. When he was 16 years of age, he was sent to the Oregon Penitentiary for the burglary of a service station. He was later paroled but violated his parole and was returned to the penitentiary. He served about one year. He was again paroled in May, 1949, and came to live in Boise with his mother and family, the father remaining in Bend, Oregon. While in the penitentiary, he became acquainted with defendant, Powell.

In Boise, defendants renewed their acquaintanceship and embarked upon a career of crime. They committed in the vicinity of Boise, seven admitted burglaries. Defendant, Walrath, told the witness, Barbara Cooper, that defendants committed the burglaries just to keep in practice.

The deceased, Newton N. Wilson, was a widower. He ran a small grocery store at 1401 East State Street, Boise. He lived alone in the rear of the grocery store. He was 65 years of age. He was acquainted with defendant, Powell, and thought well of him, as Powell had done deceased a small favor.

Shortly prior to the commission of the murder, defendant, Powell, was in debt, had been working only a few weeks and was pressed for money. Defendants began planning to commit some crime in order to raise money. About ten days prior to May 8, 1950, while in an automobile, they stopped along the road and picked up some rocks with which to make a sap. Defendant, Walrath, testified that they made the sap 'to have a bludgeon of some sort, to be used for what you would call a strong-arm robbery or roll-'em job.' Thereafter, they discussed the robbery of the deceased, as they thought he had money hidden in his grocery store.

At about 9:00 o'clock P.M. on May 8, defendants were riding around in an automobile. They picked up Barbara Cooper, the girl friend of defendant, Walrath, at her home and then went to the home of defendant, Powell. Powell and wife resided two doors east of the grocery store. About 20 minutes later, defendants went to the grocery store for the purpose of robbing deceased. Powell was armed with the sap and Walrath was masked and armed with a revolver procured in one of the Boise burglaries. Powell stayed outside the store as he was known to deceased. Walrath went to the door of the store and knocked with the intention of holding up deceased when he answered the door. However, due to the screen door being locked, their plan miscarried and Walrath simply asked permission to put in a telephone call. Defendants then returned to the Powell home.

After some discussion between the defendants, Mrs. Powell and Barbara Cooper, defendants decided to again attempt the robbery. They returned to the grocery store and asked permission to put in another telephone call. They talked with the deceased who was sitting in an easy chair. They called his attention to an article in a newspaper. As deceased bent over to read the article, at a nod from Powell, Walrath struck deceased on the head more than once with the revolver. Then Powell struck deceased two or three times with the sap. As deceased appeared to be still conscious, Walrath began striking deceased in the face with his fists. Defendants then stretched deceased out on the floor, took his wallet and proceeded to search the premises. They procured only $12.50. While searching the kitchen. Walrath found a butcher knife. He knelt over deceased and began stabbing him in the back. Deceased was stabbed seven times and the butcher knife left in his back. In his sworn statement, Walrath claimed that Powell participated in the stabbing, but at the hearing, testified that Powell did not so participate.

Defendants returned to the Powell home and there divided the money and discarded their bloody clothes. Defendants and the two women got into an automobile and after purchasing some beer, proceeded up the highway toward Horseshoe Bend. They turned off the highway on to a side road and at a distance of about 15 miles from Boise, hid the bloody clothes and other articles connected with the murder and then returned to Boise.

The brief of defendants-appellants does not contain a distinct enumeration of the several errors relied on, as provided by Rule 52 of the Supreme Court. However, in view of the gravity of the case, we have determined to review and consider all questions raised or suggested by such brief.

Defendants urge that the actions of the trial judge were arbitrary and prejudicial in that he allegedly was impatient with and limited the defendants in their presentation of their evidence in mitigation. The statutes under which the hearing was held, are Sections 19-2502, I.C. and 19-2515, I.C. Section 19-2502, reads as follows: 'Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree.'

Section 19-2515, is as follows: 'After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.'

The above statutes provide for a summary hearing. The hearing is not strictly a trial. Its extent is largely at the discretion of the court. It is intended for the enlightenment of the court in pronouncing sentence. State v. Lovejoy, 60 Idaho 632, 95 P.2d 132; State v. Arnold, 39 Idaho 589, 229 P. 748; People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657; 15 Am.Jur. 168; Annotation, 77 A.L.R. 1211. An examination of the rulings in limitation of defendants' evidence discloses that the proposed lines of testimony were remote, immaterial and could be...