State v. Shockley

• Citation: 29 Utah 25,80 P. 865
• Decision Date: 14 April 1905
• Docket Number: 1581
• Court: Utah Supreme Court
• Parties: STATE v. SHOCKLEY

80 P. 865

29 Utah 25

STATE v. SHOCKLEY

No. 1581

Supreme Court of Utah

April 14, 1905

APPEAL from District Court, Salt Lake County; C. W. Morse, Judge.

James Shockley was convicted of murder, and appeals.

REVERSED.

H. A Smith for appellant.

M. A Breeden, Attorney-General, for respondent.

McCARTY J., delivered the opinion of the court. STRAUP, J., BARTCH, C. J., concurring.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The defendant was convicted of the crime of murder in the first degree for the killing of one Amasa L. Gleason, and was sentenced to be executed. Defendant is the only living eye-witness to the tragedy, and the facts and circumstances leading up to and surrounding the commission of the crime, as testified to by himself, are as follows: On January 6, 1904, he went to the corner of Thirteenth and Second South streets, Salt Lake City, Utah for the purpose of "holding up" a street car and robbing the employees of the street car company who were in charge of the car. He said, quoting his own language as shown by the record: "On the night of the 6th I left my room near 11:20; . . . went to the scene of the hold-up. . . . I went up to the car; looked through the east windows at the motorman and conductor. The men were standing near each other at the north end of the car. The larger man had something in his hand, a book or transfer slip, or something; it was Mr. Brighton. Gleason was standing near him; the men were talking. I went into the car; started toward where the men were. They did not look around until I was probably a couple of steps in the car; I walked nine or ten feet in the car when the men looked around; they first noticed me when I took two steps. The gun was in my hand in this position. I told them to put up their hands. The larger man put up his hands. The small man, Mr. Gleason, said: 'You had better hold up your hands.' Those were the very words he said; he spoke in a very calm manner. I realized then if I continued there might be a chance of hurting them, so I started back out of the car; put my gun down by my side, thinking they would know by that movement that I intended to leave. When I was a couple of feet from the door, for some reason--I do not know whether it was the snow being balled upon my heels, or what it was--I went to turn; my feet slipped, and I went down. There was nothing said or done by the men up until this time except as I have stated; there was nothing done or said to cause me to abandon the thought of taking the money from these men. . . . The two men started toward me as soon as they saw me down in this position. As soon as they made a rush for me I fired a shot. I do not know where it went to. That was the first shot fired, and must have been fired in the direction of the door. I fired the shot thinking the men would stop and would not kill me, for I had seen the small man take a gun. Where he took it from I do not know; I saw it in his hands as he started. As soon as the shot was fired the men almost fell over me. It wasn't very clear, just exactly, all that happened during the excitement, but as near as I remember the large man (Brighton) took hold of me with the back of my coat and hold of one arm. I knew when I saw the gun in that man's hand he intended to shoot me. . . . I finally succeeded in getting on my feet. . . . Gleason at the time, had stepped back with his gun and taken it in both hands; I presume he was trying to get it to work; I did not know the cause it didn't fire I knew he attempted to fire, and it wouldn't fire. . . . I had the gun up in that shape, and then was when the thought entered my mind, if I could hit this man's arm it would likely prevent him from firing; so I started to pull down with the gun with the intention of trying to hit his arm, and, at the same time that I started to pull down with the gun, the large man, Mr. Brighton, I presume took hold of me, . . . jerking me back a little bit. . . . With the movement that caused him to jerk me back he threw his right hand around my head, . . . reached across and grabbed my arm below the elbow with his left hand at the same instant that he jerked me back, and then was when the gun was discharged. . . . I don't know positively which shot hit Gleason as I have claimed all along. . . . I didn't know the shot was going to be fired at that time; I didn't do it voluntarily; I didn't know whether he was hit or not; I didn't know that I had hit Gleason until I read the papers next morning. . . . As soon as I felt the gun explode I wrenched lose from Mr. Brighton and tried to go out of the door. Then Mr. Brighton got between me and the door, . . . and I reached up with my left hand and tried to turn him around like; . . . he grabbed me, as near as I can remember, by this coat sleeve with his right hand. . . . and began to reach under his coat, and then it was that I did manage to say--I said it clearly; I know the man heard me-- I said: 'For God's sake man don't kill me; I will give up'; and he never made any answer whatever, but continued to keep his hand under there. . . . Well, I suppose Mr. Brighton and I was scuffling; in fact, I would not have fired at Mr. Brighton until I had seen his gun, but I thought very likely this other man, Mr. Gleason, was right behind with his gun ready to shoot me in the back of the head. . . . Q. Now, what did Mr. Brighton do when you shot at him? A. Well he seemed to just stand still and let loose of me with his right hand; seemed to just stand still; then I brushed by him and got out of the car." Defendant further stated: "It is clear everything was done very quick; great excitement; . . . that the shooting of Gleason was wholly accidental." Defendant also testified as follows: "Q. Now Mr. Shockley, at the time, at or near the time, did you make any effort to speak to these men? A. I did. I did when they first took hold of me. Q. What did you say, or try to say, as near as you can remember? A. Well, I tried to tell them when he (referring to Gleason) started to put the gun down, I tried to tell him not to kill me. I was willing to give up to him, and, as to whether I made it clear or not, I don't know; I know I tried and stuttered considerably. . . . Q. Now, I will ask you to state, Mr. Shockley, whether or not you were willing, at every moment of the time after you started to back out, after the men started after you, until you left that car, to give up and let those men take you? A. I was willing, sir, they should take me a prisoner if they had said anything that indicated that was their intention, rather than have shot a man. Q. Did they make any remarks to you in any way asking you to give up, or you were a prisoner, or under arrest? A. Nothing whatever; there was no remarks except the smaller man (Gleason) saying, 'You had better put up your hands.'" The defendant also made a voluntary written confession, which was introduced by the State in evidence, which was substantially the same as his oral testimony. A preliminary examination was had before the judge of the city court, and the defendant bound over to the district court. A trial was had in the last named court, which resulted in the conviction of the defendant of murder as hereinbefore stated. From the judgment rendered on this verdict defendant has appealed to this court.

McCARTY J.,

After stating the facts, delivered the opinion of the court.

Appellant contends that the judge of the city court had no jurisdiction to act as a committing magistrate, and therefore the district court was without jurisdiction to try the case. The constitutional and statutory provisions bearing upon this question are as follows: Section 1, article 8, Constitution provides that:

"The judicial power of the State shall be vested in the Senate sitting as a court of impeachment in a Supreme Court, in district courts, in justices of the peace and in such other courts inferior to the Supreme Court as may be established by law."

Section 21 provides that the "judges of the Supreme Court, district courts and justices of the peace shall be conservators of the peace and may hold preliminary examinations in cases of felony."

Section 14, chapter 109, page 113, session laws 1901, provides that:

"The city court shall have original jurisdiction of cases arising under or by reason of the violation of any city ordinances, and shall have the same powers and jurisdictions as justices of the peace in all other criminal actions, and the judges of said courts shall be magistrates with all powers and jurisdiction of the justices of the peace as magistrates."

It is conceded that under and by virtue of said section 1 Constitution, the Legislature had authority to create the city court, but it is contended that the foregoing provision of the statute, so far as it attempts to confer jurisdiction upon the judge of said court to act as a committing magistrate, is in conflict with said section 21 of the Constitution. Counsel for appellant insists that the word "may" in section 21 should be construed to mean "shall," and, when so construed, the doctrine of expressio unius est exclusio alterius applies, which, they claim, limits the jurisdiction to hold preliminary examinations in cases of felony exclusively to the officers mentioned in said section. By a careful reading of this section of the Constitution it at once becomes apparent that such could not have been the intention of the framers of that instrument. The section provides that the officers therein mentioned "shall be conservators of the peace and may hold preliminary examinations." It will be observed that its provisions impose upon such officers two separate and distinct classes of duties. In the first place, circumstances might arise where it may become necessary for them to...