State v. Radon

• Citation: 45 Wyo. 383,19 P.2d 177
• Decision Date: 14 February 1933
• Docket Number: 1785
• Parties: STATE v. RADON
• Court: United States State Supreme Court of Wyoming

19 P.2d 177

45 Wyo. 383

STATE v. RADON

No. 1785

Supreme Court of Wyoming

February 14, 1933

APPEAL from District Court, Hot Springs County; E. H. FOURT, Judge.

Dan Radon was convicted of murder in the first degree and he appeals.

Reversed and Remanded.

For the defendant and appellant there was a brief by Lin I. Noble and C. R. Ingle, both of Thermopolis, Wyoming, and an oral argument by Mr. Noble.

No legal jury list for the year 1932 had been prepared. 61-206. No substitution can be made in the personnel of the jury commission prescribed by the above statute. The substitution of John W. Sapp rendered the list illegal. Defendant offered to prove that no lawful meeting of the jury commission was held, which offer was overruled. State v. Bewgiysem, 29 La. Ann. 822; State v. Payne, (Wash.) 34 P. 318 35 C. J. 270; State v. Austin, 82 N.W. 5; Thompson on Trials, Sec. 33 and cases cited. The chairman of the Board of Commissioners was absent from the county at the time the list was selected and did not act. The list did not include names of all persons in Hot Springs County, qualified to act as jurors. It was shown by stipulation that 579 names of qualified persons were omitted from the list. The statute prescribes the duty of assessors in setting forth the names of persons subject to jury duty of tax assessment schedules. 30-307 R. S. Qualifications of jurymen are prescribed. Sec 61-201 R. S. The jury commission did not comply with the law in making the list. State v. Bolln, 10 Wyo. 439. The jury empanneled to try the cause were, during the trial permitted to separate. This being a capital case the law was violated. Sec. 33-1001 R. S.; State v. Nicholson, 18 Wyo. 314; Woods v. State, 43 Mississippi 364 and cases cited. There was misconduct on the part of the prosecuting attorney in testifying that no dangerous weapons had been found in possession of decedent or in his room. State v. Tweedy, 5 P.2d 338; State v. Pryor, 67 Wash. 216, 121 P. 56; State v. Carr, 160 Wash. 83, 294 P. 1016; State v. Montgomery, 56 Wash. 443, 105 P. 1035. The court erred in permitting defendant Exhibit "No. 3" to be introduced in evidence. It was a shirt which the prosecution undertook to show had been worn by deceased at the time of the shooting, but no proper foundation was laid for its introduction. An unfriendly interpreter was used; the proper oath was not administered to said interpreter. 89-1401 R. S., 33 C. J. 474, 40 Cyc. 2214. The court erred in not permitting defendant by cross-examination to show the interest of the witness John Radulovich in the result of the hearing. Pullman Co. v. Finley, 20 Wyo. 473; State v. Wilson, 32 Wyo. 37. The court erred in refusing to receive evidence that defendant was acting in self-defense at the time of the homicide. Fields v. State, 11 Am. Rep. 771; Pritchett v. State, 58 A. D. 250. The court erred in giving instructions numbered 8, 14, 15, 16, 17, 24 and 26 on the law of self-defense. The court erred in refusing to give requested instruction "B". The verdict was murder in the first degree, and there was a total lack of any proof of premeditation. Defendant was denied a fair and impartial trial and should be granted a new trial.

For the plaintiff and respondent there was a brief by J. A. Greenwood, Attorney General; R. J. Jackson, Deputy Attorney General; George W. Ferguson, Assistant Attorney General, and R. Dwight Wallace, Assistant Attorney General, all of Cheyenne, Wyoming, and oral arguments by Mr. Jackson and Mr. Wallace.

During the absence of the Chairman of the County Commissioners, any other member of the Board selected shall act as chairman. 61-206, R. S. 1931. The absence of the regular chairman did not invalidate the jury list. State v. Turner, (Iowa) 87 N.W. 287; Stephens v. State, (N. J.) 21 A. 1038; State v. Reeves, 56 So. 648; Sturgis v. Sugar Company, 184 Mich. 456. Persons paying poll and vehicle taxes alone are not placed on the assessment roll. Persons whose names are not on the assessment roll are not qualified for jury service. 61-201, 202, 207, R. S. 1931. The names that should appear on the assessment roll are those assessed for taxes. 115-123, 137, R. S. 1931. Poll and automobile assessments do not appear on the assessment roll; automobile tax is not regarded as a property tax and under the law it is collected at the time license is procured; poll taxes are not on the assessment roll. 115-2309, 2312, 2316, Sec. 72-103, R. S. 1931. As to automobile taxes see Sec. 72-107, R. S. 1931. It must be clear from the foregoing statutes that the jury list is valid. The alleged separation of the jury is without merit. Cook v. Territory, 3 Wyo. 110; Nicholson v. State, 18 Wyo. 298; Cronberg Bros. v. Johnson, 29 Wyo. 11, 26; Herman v. State, 33 Wyo. 58. Affidavits of jurors will not be received to impeach their verdict. Bunce v. McMahon, 6 Wyo. 24; Gustavenson v. State, 10 Wyo. 300; Pullman Co. v. Finley, 20 Wyo. 456; Morris v. State, 39 Wyo. 157. The exception taken to the drawing of the jury was not in accordance with statute, Sec. 61-223, R. S. 1931, also 61-226, R. S. 1931. No error occurred in the selection of the alternate juror and no exception or objection was made to his selection at the time. The court properly denied offers of proof as to meeting of jury commissioners. Meldrum v. State, 23 Wyo. 12. The general rule with regard to the admissibility of clothing of the deceased in homicide cases is found in 8 R. C. L. 180, also 13 R. C. L. 928. The rule was not violated in the present case. Saunders v. State, (Okla.) 111 P. 965; Ann. Cas. 1912 B, 775. The gloves of decedent were properly admitted, also the automatic pistol and magazine. 13 R. C. L. 929; Underhill's Cr. Ev. 701. Evidence as to the circumstances attending arrest of accused was properly received, 16 C. J. 553; State v. Rotolo, 39 Wyo. 181, also the photographs, 16 C. J. 744. The rule as to rebuttal evidence is stated in Jones' Commentaries on Evidence, Vol. 16, p. 4953. In this case it was proper to receive evidence as to the relative size and strength of accused and decedent. Strand v. State, 36 Wyo. 78. The prosecuting attorney was not guilty of misconduct. 89-1706, R. S. 1931; Crago v. State, 28 Wyo. 215; Eads v. State, 17 Wyo. 490. No attempt was made at the trial to discredit the interpreter as a witness and the point urged as to the interpreter is not well taken. Paucher v. Company, (Iowa) 168 N.W. 86; Schnier v. People, 23 Ill. 11; Skaggs v. State, (Ind.) 8 N.E. 695. We believe the instructions with reference to the law of self-defense were correct. 30 C. J. 371; 30 C. J. 43, 64, 67, 370-372. Instruction "B" was properly refused. 16 C. J. 951. There was proof of premeditation. 30 C. J. 293 and 439. The rule as to harmless and nonprejudicial error is set forth at 30 C. J. 440-441. Supplemental proceedings were had with reference to the charge of misconduct of the jury. The court did not desire to dispose of the question on ex parte affidavits and therefore granted a hearing on the charge. This was proper procedure. 16 C. J. 1244; 89-4829, R. S. 1931. Defendant received a fair and impartial trial and the evidence we believe was amply sufficient to support the verdict of the jury.

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

OPINION

BLUME, Justice.

The defendant Dan Radon was tried for killing one Marco Ragonovich and was convicted of murder in the first degree, without recommendation, and was sentenced to be hung. He thereupon appealed the case to this court.

Much of the testimony vital in this case was given by foreigners mostly Serbians, not able to speak English well, and hence it is somewhat difficult to measure the exact effect of the testimony. The following is a brief summary of the facts or testimony as developed on the trial. Both deceased and defendant were Serbians. The homicide took place on the morning of September 25th, 1931, at Gebo in this state. Early that morning the defendant had gone to the hills, for the purpose, as he claims, to shoot rabbits, and carried the gun with which the deceased was killed. About 9:30 he went to the pool hall, in which a number of men were then gathered. He watched a game of cards, and Mike Jukovitch suggested that he, the deceased and the defendant play a game of rummy. The latter answered that he did not want to play, because the deceased would "cry too much" in the game, which we take to mean that he would complain if he lost any money. Witnesses both for the state as well as for the defendant testified that the deceased thereupon became angry, twice got up to fight with the defendant, and that he abused and reviled the latter. He spoke in the Serbian language, not understood by the Americans present. According to a number of witnesses who spoke Serbian, including a witness for the state, the language used was extremely vile. We hesitate to set it out, and it is not necessary. So disgusted was the presiding judge that he remarked that he would not permit the interpreter to go "into the vilest stuff that can be used in the slums of America or Europe." He allowed the witnesses for the defense, however, to testify in full concerning it. Suffice it to say, that, without stating what effect it had upon the mind of the defendant, it was apt to arouse the ire and passion of the ordinary man, and some of it implied threats of violence upon the person of the defendant, the extent of which it is hard to state. Soon thereafter the deceased left the pool hall, and perhaps ten minutes after that time the defendant did likewise. Up to that time the latter showed neither by words nor by gestures any intention of his subsequent act, but stood by substantially silent without any indication of resentment. He went to one of the offices and inquired whether or not he could go back...