State v. Ross, 12545

• Court: Supreme Court of Utah
• Writing for the Court: CALLISTER
• Citation: 28 Utah 2d 279,501 P.2d 632
• Parties: d 279 STATE of Utah, Plaintiff and Respondent, v. Walter Parnell ROSS, Defendant and Appellant.
• Docket Number: No. 12545,12545
• Decision Date: 29 September 1972

Page 632

501 P.2d 632 28 Utah 2d 279 STATE of Utah, Plaintiff and Respondent,
v.
Walter Parnell ROSS, Defendant and Appellant. No. 12545. Supreme Court of Utah. Sept. 29, 1972.

Page 633

[28 UTAH2D 280] D. Gilbert Athay, Salt Lake City, of Salt Lake City Legal Defender Assn., for defendant-appellant.

Vernon B. Romney, Atty. Gen., David S. Young and David R. Irvine, Asst. Attys. Gen., Salt Lake City, for plaintiff-respondent.

CALLISTER, Chief Justice:

Defendant appeals from his conviction by a jury of the crime of second-degree murder. His primary assertion of error is predicated on the ground that there was insufficient evidence to support a finding of malice aforethought, a requisite element of second-degree murder.

In the early morning hours of June 20, 1970, defendant admittedly killed his wife, Juanita, but he contends that it was upon a sudden quarrel or in the heat of passion, i.e., the crime of voluntary manslaughter, Sec. 76--30--5(1), U.C.A.1953.

Defendant testified that in the afternoon prior to her death, his wife and he ate a late lunch and then attended a movie. They returned to their apartment, and she informed him that she had an appointment with a customer; she was a prostitute. He protested mildly because the Welfare Department had taken custody of their child, and upon consultation they were informed by a caseworker that they had a good chance of regaining custody if the wife would terminate her activities in prostitution[28 UTAH2D 281] and drug use, and would establish a home for the family. Apparently, defendant accepted his wife's explanation that she needed money to purchase new clothes, and he departed from the premises. He returned to the apartment, according to his testimony, about 2:30 a.m. and discovered a spoon and cotton, which indicated to him that his wife had used the money from her customer for narcotics. He became furious and stormed into the bedroom, demanding to know the location of her 'dope kit.' She denied the use of narcotics and the existence of a kit. Defendant claims that he slapped her around and threatened to hit her with a leg broken off a coffee table; upon her repeated denials, he ultimately struck her in the head with the leg. She, subsequently, informed him that her 'dope kit' was concealed in a dust pan in the bathroom. He ceased his attack and realized that she was injured; he went to summon help but upon arrival of the police, she was dead. Defendant characterized his encounter with his wife as an argument accompanied by scuffling all over the place; however, he did admit that he hit her with his fists. Defendant, at the time of the incident, weighed 220 pounds

Page 634

and was 5 feet 11 1/2 inches tall. His wife weighed 90 to 95 pounds and was 5 feet tall.

The physician, who performed an autopsy, testified as to his findings; he described multiple abrasions, contusions and lacerations which extended over the entire body. There were 500 c.c. of blood (approximately 1/8 of her total blood) in the wife's abdominal cavity from a fractured 10th rib and lacerations of the liver and other soft tissue. He testified that the cause of death was a combination of loss of blood from the torn liver and asphyxiation by strangulation.

During the course of the trial, defendant made a motion to dismiss the charge of second-degree murder and to submit the cause to the jury on the lesser offenses of voluntary and involuntary manslaughter. Defendant asserted that an analysis of the evidence indicated a sudden quarrel and that the beating was administered in the heat of passion, that upon his realization of his actions, he immediately summoned assistance. These facts he urged negate te existence of malice. Defendant proffered the same argument in a motion for a new trial. The trial court responded that the evidence indicated a substantial physical beating, whether it was by fists or club or both,...