State v. Schloredt

• Decision Date: 18 March 1941
• Docket Number: 2167
• Parties: STATE v. SCHLOREDT
• Court: Wyoming Supreme Court

111 P.2d 128

57 Wyo. 1

STATE v. SCHLOREDT

No. 2167

Supreme Court of Wyoming

March 18, 1941

APPEAL from the District Court, Crook County; V. J. TIDBALL, Judge.

Louis Schloredt was convicted of aggravated assault and battery and he appeals.

Affirmed.

For the appellant, there was a brief by James T. McGuckin of Sundance and John T. Milek of Sturgis, South Dakota, and oral argument by Mr. Milek.

Appellant was convicted upon a charge of maliciously and feloniously shooting one Glen Cameron, with intent to kill and murder him. Defendant claimed that he acted in self-defense and used no more force than appeared necessary to repel complaining witness, who had assaulted him. There was misconduct on the part of the assisting prosecuting attorney in the introduction of a shirt worn by Cameron at the time of the encounter; also misconduct in propounding a question to appellant in cross-examination with reference to striking one Pete Harper at a time prior to the assault here in question. Fields v. Territory, 1 Wyo. 78; People v Minney, 119 N.W. 918. The evidence was insufficient to show that appellant maliciously and unlawfully inflicted a wound upon Cameron. Appellant was at a place where he had a right to be, on his own ground and within his own enclosure. Cameron was an unlawful trespasser. The verdict was contrary to law and instructions given by the court. Boykin v State, 86 Miss. 481; Beardon v. State, 44 Tex.Crim.App. 578. Under the law of this state, one who has not himself provoked the assault is under no obligation to retreat, but may stand his ground. State v. Pipes (Kan.) 70 P. 63; Snelling v. State (Fla.) 37 So. 917. The verdict was contrary to law. State v. Cushing (Wash.) 45 P. 145; State v. Moore (Mo.) 56 S.W. 883. The evidence given by Cameron was contradictory and false. There was insufficient evidence to sustain a verdict against defendant. State v. Christman (N. D.) 155 N.W. 26; Gibbons v. People, 23 Ill. 518. The great preponderance of the evidence showed that Cameron at all times was an unlawful trespasser on ground enclosed and under the control of defendant, and that defendant sought to stop the trespass in a lawful manner; that the trespasser used force in resisting defendant's effort to stop the trespass up to the time he was knocked down by the fists of defendant, and that defendant used no more force and did not even curse the witness, but manfully assisted him to defendant's car and hauled him off the land and towards home. Territory v. Reuss (Mont.) 5 P. 885; Stuedle v. State (Okla.) 119 P. 1022. Appellant should be granted 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, all of Cheyenne, and an oral argument by Mr. Bacheller.

The appellant was convicted on November 1, 1939, of aggravated assault and battery under Section 32-210, R. S. 1931. The evidence was conflicting as to the main details of the affray, but there are certain facts shown by the evidence which do not appear to be in dispute. Appellant urges two grounds for reversal of the judgment, namely, misconduct on the part of the prosecuting attorneys and the insufficiency of the evidence to support the verdict. It is contended that it was error to receive in evidence a shirt worn by complaining witness at the time of his encounter with appellant. A proper foundation was laid for the introduction of the garment and it was therefore admissible in evidence. 16 C. J. 619. Misconduct of counsel for the prosecution is urged on two grounds: With respect to questions asked appellant in his cross-examination with reference to striking one Pete Harper. The question was objected to and objection sustained, and the jury was instructed to disregard the question. If there was error, the error was cured by the court's instruction. Miller v. State, 31 Tex. Cr. Rep. 609. The second point urged by appellant refers to the closing argument of counsel for the prosecution. None of this was included in the record on appeal, but is referred to in affidavit of the wife of appellant filed more than seventy days after the entry of judgment, and is not entitled to consideration. The matter excepted to refers to a conversation in a saloon at Sundance on the afternoon of the day the trouble occurred. The jury passed on all of the evidence under the instructions of the court and apparently decided that defendant did not act in self-defense. It is contended that the evidence was insufficient to show malice on the part of appellant. Malice was defined by Instruction 15 given by the court, and said instruction was a correct statement of the law. State v. Sorrentino, 31 Wyo. 129. The jury was also instructed by the court that appellant was entitled to use reasonable force in protecting his property, but was not justified in using more force than was necessary. Appellant is asking this court to retry the case on a disputed question of fact, heard and decided by the jury under proper instructions, and the judgment of the trial court should be affirmed.

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

OPINION

BLUME, Justice.

An information was filed in the district court of Crook County, in this state, on October 25, 1939, charging the defendant with an assault, and with an assault and battery, upon one Glen Cameron with intent to commit first degree murder. He was convicted by the jury, in a verdict returned in court on November 1, 1939, after trial, of aggravated assault and battery, and was sentenced by the court to a term in the Crook County jail for a period of six months, and to a fine of two hundred dollars. The defendant has appealed. Glen Cameron will hereafter be referred to as the complaining witness or as Cameron.

Section 32-210, Rev. St. 1931, provides:

"Aggravated Assault and Battery. If any person shall unlawfully and maliciously inflict upon another person, either with or without any weapon or instrument, any grievous bodily harm, or shall unlawfully or maliciously cut, stab or wound any other person, the person so offending shall be fined not more than one thousand dollars, or confined in the county jail not more than one year, or both."

1. Defendant assigns as error that the evidence is not sufficient to sustain the verdict, especially that it is not sufficient to show that the assault and battery herein was committed unlawfully or maliciously. One fundamental defect in the argument advanced in this court in the brief of his counsel is the fact that it assumes as true the testimony on behalf of the defendant, when in fact it is contradicted by the evidence on behalf of the state, which the jury had a right to believe. Counsel know, of course, how useless such an argument, based on such assumption, is in this court, and we might well, and should, dismiss the assignment of error mentioned, without discussing it. But, without going into details, we shall mention some of the salient facts. It appears that the defendant was, on June 5, 1939, at the time when the crime charged is said to have been committed, in possession and control of the SW/4SE/4, and the S/2SW/4 of Section 34, T. 53, R. 62, Crook County, Wyoming--lands running approximately 3/4 mile along the south boundary of the foregoing section, formerly owned by one Linch, but in defendant's possession since about 1932. Eastward lived Glen Cameron, the complaining witness. Westward was school land, leased to one Roy Cameron, associated in the cattle business with the complaining witness. About 1932 the defendant and Roy Cameron had an agreement under which the defendant was given the right to use the school land, in return for the use by Roy Cameron of some land which the latter had plowed up on defendant's land. According to the evidence on behalf of the state, this agreement was terminated in the fall of 1938. Defendant denied that. However, the lease was assigned to one Harper in March, 1939, so that the defendant had no actual right to the use thereof after that time. West of the school land was the forest reserve, and the complaining witness and his associate had a grazing permit thereon and had had for 27 years. During the life time of Linch, who died about 1931, and since about 1911, the complaining witness and his associates had driven their cattle through the Linch lands above mentioned in order to reach the forest reserve, and no objection thereto was ever interposed. According to the testimony of the complaining witness no objection to do so was ever interposed by the defendant. This was denied by the defendant, who testified that he told Cameron in 1932 to "stay off" the land. The conflict in this respect was, of course, to be settled by the jury.

On June 5, 1939, the complaining witness endeavored to take 122 head of cattle to the forest reserve, entering the Linch lands a little after noon through a gate close to the eastern boundary of these lands. He was assisted by his nephew Crago. The cattle traveled a little to the southwest. When they had traveled approximately half of the distance of the 3/4 mile above mentioned, the defendant attempted to stop them, and directed the complaining witness to drive them back. According to the testimony of the complaining witness some of the cattle had been to the forest reserve previously, and were anxious to go in that direction; that it was difficult to drive them back; that they had already gone approximately half the distance across the Linch lands, and that he accordingly ignored the demands of the defendant, but kept driving the cattle onward to the west. Defendant thereupon, according to the complaining witness, stated that "you son of a bitch, I will see whether you go back or not," and proceeded to...