State v. Russell

• Decision Date: 15 February 1944
• Docket Number: 6630
• Court: Utah Supreme Court
• Parties: STATE v. RUSSELL

145 P.2d 1003

106 Utah 116

STATE v. RUSSELL

No. 6630

Supreme Court of Utah

February 15, 1944

Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.

Angus Dewey Russell was convicted of murdering his wife, and he appeals.

Reversed and remanded for a new trial.

Edward M. Morrissey and Harold N. Wilkenson, both of Salt Lake City for appellant.

Grover A. Giles, Atty. Gen., and Arthur N. Nielsen, Deputy Atty Gen., for respondent.

WADE, Justice. LARSON and MOFFAT, JJ., concur. McDONOUGH, Justice, WOLFE, Chief Justice, dissenting.

OPINION

WADE, Justice.

The defendant was charged with murdering his wife in Salt Lake City on January 3, 1943. The jury returned a verdict of murder in the first degree without recommendations. He was arraigned January 30, 1943, at which time he requested a bill of particulars. The Assistant District Attorney offered to furnish this by February 15th, and the court made no order thereon. When the trial commenced on March 15th, the defendant moved to quash the information on the ground that no bill of particulars had been furnished. At the noon recess the court ordered the district attorney to furnish a bill of particulars by 2 p. m. This was done. Whereupon defendant renewed his motion to quash, and objected to the sufficiency of the bill of particulars so furnished. Defendant did not point out any further particular which he desired, nor does he claim that he was adversely affected in the preparation of his case by the failure to furnish the bill of particulars.

The court did not err in refusing to grant this motion. Section 105-21-9, U. C. A. 1943, provides that:

"When an information * * * fails to inform the defendant of the particulars of the offense, sufficient to enable him to prepare his defense, or give him such information as he is entitled to under the constitution * * * the court * * * shall at the request of the defendant, order the prosecuting attorney to furnish a bill of particulars * * *."

Sec. 105-23-3, U. C. A. 1943, provides that:

"A motion to quash the information * * * shall be available only on one or more of the following grounds. * * * (b) That the court has ordered a bill of particulars under the provisions of section 105-21-9 and the prosecuting attorney fails to furnish a sufficient bill."

The bill of particulars as furnished was sufficient. Defendant has not brought himself within the express provisions of the statute nor does he claim that he was adversely affected by the delay. Under these circumstances the court did not err in denying the motion to quash.

About 1:20 o'clock in the morning on January 3, 1943, on the south side of Third South Street, between West Temple and First West Streets, in Salt Lake City, the defendant cut his wife in the neck with his pocket knife thereby causing her death. The cut commenced on the side of her face and extended into her neck severing the blood vessels therein. A policeman in the neighborhood, hearing a woman scream several times, looked and saw two people scuffling about 70 yards away. One of the persons immediately broke away and ran toward the policeman, the other staggered four or five steps and sank to the ground. The person who ran was the defendant, the other was his wife. The defendant ran past the officer, who grabbed him and started to take him back to where his wife was, but after taking a few steps defendant fell to the ground, apparently unconscious. When the officer reached the defendant's wife she was gasping and died shortly thereafter.

The officer went back to the defendant and found him bleeding from cuts in his neck. Upon trying to stop the blood defendant said: "Let it bleed" and tried to claw his hand away from the cut. Defendant was taken to the hospital and later in the day made a statement to the investigating officers. His pocket knife was found near where he collapsed. Its long, pointed blade was open and bloody. In his statement, defendant disclaimed any knowledge of having his knife or that he or his wife used it in the scuffle, but later admitted that he must have cut her and that he had inflicted the wounds on himself in an attempt at self destruction.

At the time of the scuffle defendant was on the street barefooted and without hat or coat. His wife was fully dressed. Both had bruises and cuts on the face, neck, head, body and hands. In their home in a nearby court off Third South Street, there was found some blood, the bed was not made up and appeared to have been recently occupied by two persons. There was also found a mopstick broken into three pieces and many splinters scattered in both rooms.

Defendant testified that he and his wife had had continuous trouble for many years; that all during the day, before the killing, she had continuously nagged at him to get a better job; that many times during that day he had left the house during a heated quarrel, went to a beer joint and had a beer or two; that in the evening, after eating their dinner at home together, while he was washing the dishes, she unexpectedly struck him with the poker over the head; that soon thereafter he left the house and went to a beer joint where he remained until it closed; that on his return home his wife was in bed; that he used his pocket knife to core an apple and left it opened on the table and went to bed; that she immediately started quarreling again and when he asked her to keep still and go to sleep she flew into a rage and beat him over the head with her fists; that thereupon they both got out of bed and he put his pants and shirt on and she suddenly hit him over the head four or five times with the mopstick. He took the mopstick away from her and hit her with it a time or two; that while he smoked a cigarette, she dressed, saying she was going to get a policeman, then suddenly she hit him again and he looked up and saw her coming at him with his pocket knife raised in a threatening manner, saying she was going to settle it once and for all; that he threw his hand up and she cut one of his hands; that he retreated into a corner trying to get his shoes on while she continued to attack him with the knife; that he finally ran out of the back door into the street to find an officer; that seeing no officer and it being cold on his bare feet he started to return to the house when he met his wife. She again attacked him with the knife and in the scuffle which followed he received several cuts before he succeeded in taking the knife from her; that he did not remember cutting her, but did remember her saying her throat was cut; that he then ran away and met the officer and started back when everything went black.

Three women, witnesses for the state, each testified that she had heard the defendant during a heated quarrel threaten to kill his wife if she did not stop doing certain things. The first of these threats was made not more than eight months before the killing, and the last, less than two months prior thereto.

Defendant contends that there was no competent evidence of murder in the first degree. He argues that unless prior to the striking of the fatal blow he had formed a specific design or intention to kill his wife and struck the fatal blow in furtherance of that design he was not guilty of murder in the first degree. He further urges that, except for the testimony of threats made by him on the life of his wife, there was no evidence of any such design, and that such evidence was not admissible to prove such design on account of the remoteness in time between the threats and the killing. Thus, he contends that the court erred in submitting to the jury the question of murder in the first degree, and in giving instructions thereon in the first three paragraphs of Instruction No. 7.

The evidence was sufficient to sustain a verdict of murder in the first degree. It is universally held that the state may introduce evidence of threats made by the defendant against the life of the deceased to show the state of mind of the accused at the time of the homicide, his intention to kill and malice against the deceased. Remoteness in time is generally held to go only to the weight of the evidence but does not make it inadmissible. Courts have held such evidence admissible where made as long as two years prior to the homicide. State v. Averill, 85 Vt. 115, 81 A. 461, Ann. Cas. 1914B, 1005; Sparks v. State, 19 Ariz. 455, 171 P. 1182, 171 P. 1182; State v. Butler, 96 Ore. 219, 186 P. 55; State v. Gates, 28 Wash. 689, 69 P. 385; 26 Am. Jur. 402; Homicide, Sec. 357. Thus, under the facts and circumstances of this case, this evidence was admissible.

It is not necessary to determine whether this evidence alone is sufficient to show that the defendant, prior to striking the fatal blow, had formed a specific design to kill his wife. The argument that there was no other evidence of such design is based on the testimony of the defendant to the effect that the deceased was the aggressor during the events leading up to the homicide, but the jury was not bound to believe his testimony. He was an interested witness, there was no one else living who knew of those events. Much of his testimony was inherently improbable, and part of it was in conflict with his previous statements. The facts and circumstances which are not in dispute and as shown by testimony other than that of the defendant, taken together with the evidence of his previous threats, were sufficient from which the jury might reasonably be convinced that he had formed a specific design to kill her before he struck the fatal blow.

The giving of the first three paragraphs of Instruction No. 7 however, present two other very serious problems; (1) Was there any evidence to justify the giving of two of the...