State v. Seyboldt

• Decision Date: 01 April 1925
• Docket Number: 4166
• Court: Utah Supreme Court
• Parties: STATE v. SEYBOLDT

236 P. 225

65 Utah 204

STATE v. SEYBOLDT

No. 4166

Supreme Court of Utah

April 1, 1925

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Ralph W. Seyboldt was convicted of murder in the first degree, and he appeals.

AFFIRMED, and cause remanded with directions.

Clawson & Elsmore and Samuel G. Clawson, all of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

THURMAN J. GIDEON, FRICK, and CHERRY, JJ., concur. STRAUP, J concurring in the result.

OPINION

THURMAN, J.

The defendant was convicted of the crime of murder in the first degree, without recommendation, and sentenced to be executed as provided by law. He appeals from the judgment, and assigns numerous errors in support of his appeal.

It is not contended that the evidence is insufficient to sustain the verdict, nevertheless, before disposing of the questions of law involved, we deem it expedient to make a brief statement of the facts relied on by the state, together with the substance of defendant's testimony, as to how the transaction occurred.

On the 14th day of October, 1923, the dead body of David H. Crowther, a policeman of Salt Lake City, was found in the western portion of said city near the Jordan river. His death was caused by a gunshot wound in the back of the head--the bullet passing through the brain and emerging just above the forehead. The pockets of his trousers were turned inside out and no articles were left in any of his clothing. The body of the deceased was found in a section of the city assigned to him for duty--a section occupied largely by railroads and railroad stations, and, consequently, a logical rendezvous for tramps and hobos beating their way upon the incoming and outgoing trains. The deceased officer used an automobile in making his rounds in the performance of his duty. When the body was found the car was missing. A day or two after the finding of the body the defendant, with two other persons included in the information, was arrested in San Bernardino county, Cal., by officers of that state, and upon interrogation the defendant admitted killing the deceased and stealing the car in order to make his escape. The party also stole the officer's revolver and watch and sold them along the route, together with a spare tire and spotlight belonging to the car, and spent the proceeds in obtaining gasoline and other necessary supplies.

The defendant pleaded not guilty and was tried alone. His two companions afterwards pleaded guilty of murder in the second degree, and were sentenced to imprisonment in the state penitentiary.

The homicide occurred as alleged in the information on the 12th day of October, 1923, and the defense relied on by the defendant was the alleged fact that, on the afternoon of that day, he and his two companions, while in the vicinity of the railroad station, came in contact with the deceased, who was standing by his car apparently looking it over. Deceased motioned defendant to come down. At the suggestion of the deceased, defendant called his companions who also came. Defendant testified that both he and the deceased were intoxicated when they first met, and that deceased drove him and his companions to a place where defendant purchased more liquor which all of them drank. It was also testified by defendant that, while they were riding around from one place to another, he sat by deceased on the front seat; that his companions sat behind; that the deceased put his arms around defendant and patted him on the face and pinched his cheek; that defendant pushed him away and treated it as a joke; that when they arrived near the point where the homicide occurred the deceased again repeated the offense; that he put his arm around defendant's shoulder and pulled him over towards him and with his left hand got hold of defendant's face; that defendant pushed him away; that deceased put his arm around defendant again and pulled him over; that defendant then put his hand in deceased's face and pushed him away. The deceased used some language not disclosed by the record. He pulled out his gun and started to swing it around. As he swung it around defendant reached over and knocked deceased's gun out of his hand. The gun fell to the floor of the car almost under the steering wheel. Deceased looked at defendant a moment, cursed him, and said he would get even with him, and started to reach for the gun but could not reach it. He then straightened up. Defendant said, "Don't touch that gun, if you do I am going to shoot you." Deceased reached down to the floor for the gun. Defendant told him not to touch it. Deceased cursed defendant and said he would get him and get him right, and picked up the gun and had it in his hand. As he was raising up defendant fired the fatal shot. Finding that the deceased was dead, the defendant and his companions removed the body from the car and by partially lifting and partially dragging it removed it to a point some distance away and deposited it into or near a slough behind some bushes with the avowed purpose of hiding it so it could not be immediately discovered. Previous to removing the body, defendant took deceased's revolver and laid it on the front seat of the car.

Such in brief is the substance of defendant's testimony as to the incidents leading up to and immediately connected with the tragedy. Defendant also admitted that they took the car to make their "get-away." The revolver and watch of deceased were also taken and disposed of with certain accessories of the car hereinbefore referred to.

The evidence on the part of the state consists largely of circumstances and alleged confessions by defendant from which the jury were warranted in finding that the homicide was an unprovoked and cold blooded murder for the sole purpose of obtaining the car in order to reach Los Angeles, for which city the party were bound. His statement to the sheriff of San Bernardino county, Cal., as testified to by that officer, was to the effect that he shot the deceased and killed him; that he was alone with the deceased in the car, and that they drove down to the bank of a small stream and that he started in to "stick up the officer," and that the officer went for the left-hand front pocket of the car, whereupon defendant shot him through the head and killed him; that he dragged the body from the car and robbed it, and then got into the car and drove back to where his companions were and picked them up. The sheriff further testified that defendant then told him concerning the disposition of the property taken from deceased and the places along the route where the articles were disposed of. The testimony of two or more of the witnesses was also to the effect that when asked why he killed the officer in order to get his car defendant said, "I must have lost my head." There are many details connected with the transaction not necessary to enumerate inasmuch as the sufficiency of the evidence to sustain the verdict is not challenged or in any manner in question. This brings us to a consideration of the questions of law involved.

The first error assigned is the refusal of the court to issue a new venire from which to select the jurors. The reasons assigned by defendant why a new venire should have been issued by the court is because 12 of the jurors, who were on the old venire had been in the Farr Case, in which the "evidence showed a flagrant disregard of life on the part of the accused." The jury in that case had brought in a verdict of murder in the first degree, but with a recommendation for life imprisonment. In sentencing Farr, it is said by counsel in their brief, "the court took occasion to administer a severe reprimand to the jurors who had shirked their duty, by recommending a life sentence."

The gist of counsel's contention is that such a jury, in the face of such a reprimand, would not be inclined to make a similar recommendation in a subsequent case, where the evidence showed it to be a case of murder in the first degree, notwithstanding mitigating circumstances might appear.

The question presented is unique. No authorities are cited in support of the contention made. It was not a challenge to the panel for the objection only went to a specified class of jurors, and not to the entire panel. Besides this, the objection was not based upon grounds necessary to constitute a valid objection to the panel, as provided in Comp. Laws 1917, § 8940, but the objection rather went to the bias of the jurors, which could only be reached by an examination of each individual juror after he was called in the case. In this connection it is pertinent to remark that we see no reason why counsel could not have examined each juror at any reasonable length upon the very matter which constitutes the basis of their objection. It certainly would have been proper to ask the juror if he sat in the Farr Case, and, if he answered affirmatively, then ask him if he heard the reprimand administered by the court, and whether or not in the instant case, if accepted as a juror, he would render a fair and impartial verdict in accordance with his conscientious convictions, notwithstanding the rebuke in the former case. The writer is of opinion that such questions, or others with the same end in view, would have been pertinent and proper, and that that was the only way known to our practice by which the situation confronting defendant could have been met and disposed of. The court did not err in refusing to issue a new venire.

The next assignment charges error in the dismissal of the Juror Kelso who was sworn upon his voir dire and examined by the court. The court of its own motion, after the examination, dismissed the juror not only...