State v. Rouse

• Decision Date: 15 March 1943
• Docket Number: 2246
• Citation: 58 Wyo. 468,134 P.2d 1116
• Parties: STATE v. ROUSE
• Court: Wyoming Supreme Court

134 P.2d 1116

58 Wyo. 468

STATE v. ROUSE

No. 2246

Supreme Court of Wyoming

March 15, 1943

APPEAL from the District Court, Goshen County; Sam. M. THOMPSON Judge.

James J. Rouse was convicted of murder in the first degree and he appeals.

Affirmed.

For the defendant and appellant there was a brief and an oral argument by Walter Q. Phelan of Cheyenne.

Defendant went to trial before a jury upon his plea of "not guilty by reason of insanity", and upon that issue the jury found defendant to be sane at the time of the commission of the crime. Thereafter defendant went to trial before a new jury upon his plea of not guilty and they returned a verdict of guilty of murder in the first degree without capital punishment. In this second trial the court erred in holding throughout the trial that the sole question was whether or not defendant had caused the death of Jack Carpenter. In other words, the court ruled out any evidence offered by defendant as to the provocation for the killing, viz: that defendant's wife had been debauched and violated by the deceased. The trial court excluded evidence that might guide the jury in determining whether or not their verdict should be (a) murder in the first degree; (b) murder in the first degree without capital punishment; (c) murder in the second degree, or (d) manslaughter, although the court in instruction numbered three defined the distinctions between these degrees of crime. The court also in instructions numbered 4, 5 and 7 defined said distinctions. The Wyoming statutes have divided homicide into various degrees or classes. Evidence as to the state of mind of the accused at the time of the alleged offense is proper. 13 R. C. L. 774 775, 777 and 778, et seq. The jury should have before it all of the circumstances surrounding the killing, in order to be able to determine the grade or degree of the offense. All of this evidence was excluded by the trial court and this is the error we complain of. We cite Haley v. State (Miss.) 85 So. 129, 10 A. L. R. 462, apparently a leading case on this point. The opinion as will be noted upon its examination contains numerous citations of authority. For that reason we will not encumber this brief by a long list of citations. We have set forth the court's rulings in our Specifications of Error, and believe the case should be remanded for a new trial.

For the respondent there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General and Arthur Kline, Assistant Attorney General of Cheyenne, and oral argument by Mr. Bacheller.

Appellant was first tried under the provisions of Chapter 83, Laws 1939 and found to be sane. Thereafter he was tried and convicted of murder in the first degree without capital punishment. The record does not show that appellant objected to the verdict or the judgment of the court. Appellant's first point is that his counsel at the commencement of the trial objected to the proceedings on the ground that appellant had been already once placed in jeopardy. The trial court in overruling this objection was supported by the authorities. 22 C. J. S. 368; U. S. v. Willis, 36 F. 855; 22 C. J. S. 375, No 241. An inquiry into one's mental condition cannot be transformed into a criminal trial. 22 C. J. S. 375. Appellant's second point relates to the exclusion of evidence with reference to "provocation" for the commission of the crime. Appellant relies upon the single case of Haley v. State, 85 So. 129, 10 A. L. R. 462. A comparison of the facts as stated in the Haley case will show an absence of similarity with the facts in the present case. The question of provocation in its relation to homicide was first considered by this court in State v. Flory, 40 Wyo. 184, which was an exceptional case. We call attention to the case of State v. Thomas, 151 N.W. 842, and submit that the true rule as announced by this court in the Flory case cannot be extended beyond the facts and the language in the Thomas case, which are vastly different than the alleged provocation now urged by this defendant to obtain a reversal in the case at bar. Another well-recognized authority is the case of People v. Ashland, 128 P. 798. We also cite the case of Price v. State, 51 Am. Rep. 322 and Pickens v. State, 21 S.W. 362. As observed by this court in the Flory case, the question of cooling time depends upon circumstances and is ordinarily one for the jury. Outside of defendant's offer of proof set forth in the record of appeal, at page 133, there was no offer or attempt on the part of defendant to introduce any evidence or facts to show the circumstances relating up to the homicide. In this case the time was so far removed that the evidence was properly excluded. State v. Lantzer, 53 Wyo. 230. The decision of the trial court should be affirmed.

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

OPINION

RINER, Justice.

James J. Rouse was convicted in the District Court of Goshen County of the crime of "murder in the first degree". The jury added to their verdict the words "without capital punishment". He was accordingly sentenced to serve a term of life imprisonment in the Wyoming penitentiary at Rawlins. From this judgment the present appeal is prosecuted. Rouse will hereinafter usually be mentioned as the "defendant".

When arraigned the defendant entered two pleas, viz., "not guilty by reason of insanity" and "not guilty". Under the first plea, after a trial before a jury, pursuant to the direction of Section 3 of Chapter 83, Laws of Wyoming, 1939, he was found through that investigation to be sane. Thereafter he was again placed on trial before a new jury on the second plea aforesaid, with the result hereinabove indicated.

The facts in the case appear to be substantially these: Commencing about February 15, 1938, the defendant was engaged in conducting the business of running a cafe in the town of Mitchell, Nebraska, which business was continued until about the month of November, 1940. On the 5th day of May, 1939, he commenced to operate a similar enterprise in the town of Torrington, Wyoming, the business being transacted under the name of the "Torrington Cafe".

About three months before May 8, 1941, the date when the homicide involved in this case occurred, a man by the name of Jack Carpenter commenced to work for the defendant as cook and dishwasher in the cafe aforesaid, his hours of employment being from seven in the morning until seven at night. For some six weeks approximately prior to May 8, 1941, he had not been retained in employment by the defendant.

The evening of May 8, 1941, about 11:30 P. M., Carpenter was in charge of the Club Cafe, another eating house also located in the town of Torrington, Wyoming. With him at the time were four other people. Shortly before the time last mentioned the defendant armed himself with a twenty-two caliber repeating rifle and went a short distance from his own place of business to the Club Cafe, where he entered the street door. At the time of his entrance Carpenter was sitting on a stool talking to the other persons above mentioned. His attention being called to Rouse's entry into the room, he thereupon turned around and perceived defendant with the rifle, whereupon Carpenter said to Rouse "Put down that gun". Rouse made no response but raised the gun and shot Carpenter in the head, inflicting a mortal wound. Carpenter fell to the floor and as he did so Rouse shot him a second time, the bullet striking Carpenter's left shoulder and, as the physician who made the post-mortem examination testified, the bullet's course extended upward and lodged in the base of Carpenter's neck, in the vertebra thereof. The physician stated, as already intimated, that the head wound was the cause of Carpenter's death.

One of the four people in the Club Cafe, a man by the name of Blumenschein, attempted to wrest the rifle from Rouse's grasp and in the struggle a third shot was fired, which lodged in the ceiling of the room. When Blumenschein took hold of the gun Rouse said to Blumenschein, "I will kill you". Finally the latter got possession of the rifle after a loaded shell had become jammed in its mechanism. Thereupon Rouse left the cafe, climbed into his car parked a short distance away from the entrance and drove off. Shortly afterward he was followed by police from Torrington, who took the defendant into custody, after his car had overturned about three-quarters of a mile south of the town. In that accident the defendant suffered some injuries. The officers brought him back to Torrington and placed him in jail.

The main contention of the defendant, that there was prejudicial error committed on the trial of the case, appears to be based upon an offer of proof which was ruled out by the trial court. That offer, as the record shows, was made under the following circumstances: Defendant's counsel asked the defendant two questions, viz., "Can you tell the Court and jury when your wife, Mrs. Rouse, left Torrington"? and "Did you, Mr. Rouse, at any time before the 8th of May, 1941, have a conversation with your wife about Mr. Jack Carpenter"? Objections were interposed to these questions by the County Attorney, the objections being sustained by the District Court. Thereupon counsel for Rouse out of the hearing of the jury made the following offer of proof:

"We offer to prove by the witness now on the stand that about the first week in April, 1941, the witness, who is also the Defendant, had a conversation with his wife, in which she told him that the deceased, Jack Carpenter, had taken her the said Mrs. Rouse, for a ride in the Rouse's car, and taken her to the roadhouse known as the State Line, about seven miles from Torrington; that at that place he had bought whiskey and other...