State v. Sorrentino, 1181

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: BLUME, Justice.
• Citation: 224 P. 420,31 Wyo. 129
• Docket Number: 1181
• Decision Date: 25 March 1924
• Parties: STATE v. SORRENTINO

224 P. 420

31 Wyo. 129

STATE
v.
SORRENTINO

No. 1181

Supreme Court of Wyoming

March 25, 1924

APPEAL from District Court, Laramie County, WILLIAM A. RINER, Judge.

Mike Sorrentino was convicted of murder in the second degree, and he appeals.

Judgment reversed and affirmed.

William C. Mentzer for Appellant.

Defendant was not proven guilty of either manslaughter or murder, the Court should have directed a verdict for defendant, the court erred in submitting instructions on first and second degree murder and manslaughter, the evidence did not sustain either; Palmer v. State, 9 Wyo. 40, 59 P. 793; DeLaney v. State, 14 Wyo. 1, 81 P. 792; 2 Bishop Crim. Law, 636; Armstrong v. State, (Okla.) 143 P. 870; Sewell v. Derricott, 161 Ala. 259, 18 Ann. Cas. 636; the evidence is insufficient to sustain a verdict of guilty, Willsman v. U. S. 286 F. 852; Sullivan v. U. S. 283 F. 686; Union Coal Co. v. U. S. 173 F. 740; the Court erred in permitting the admission of evidence of liquor found in the house prior to the shooting, Watson v. Com., 119 S.W. 288; State v. Teeter, 144 S.W. 447; Little v. State, 105 S.E. 359; Martin v. Com., 245 S.W. 869; People v. Watson, 133 P. 298; People v. Harris (Mich.) 182 N.W. 673; Baldwin v. State, (Okla.) 144 P. 634; People v. Gengels, (Mich.) 188 N.W. 398; People v. Bush, (Ill.) 133 N.E. 201; the court erred in the admission of evidence procured by an unlawful search of defendant's premises, Peterson v. State, (Wyo.) 194 P. 342; People v. Ball, 198 N.Y.S. 332; the prosecutor was guilty of misconduct in his interrogation of defendant as to when he had been fined at Rawlins for moonshining, Com. v. Gibson, 119 A. 403; Martin v. Com., 245 S.W. 869; Steele v. Com., 245 S.W. 646; Rogers v. State, 127 P. 365; Meno v. State, 83 A. 759; State v. Teeter, 144 S.W. 445; the instructions on self defense did not cover the defense of home or habitation, Foster v. Shepherd, 101 N.E. 411; State v. Perkins, 91 A. 265, L. R. A. 1915A 73; Armstrong v. State (Okla.) 144 P. 870; 1 Wharton C. L. 503; Ross v. State 10 Tex.App. 445; Brown v. State, 222 S.W. 252; an entry to steal whisky is burglary, Ellis v. Com., 217 S.W. 368; Smith v. State, (Ind.) 118 N.E. 954; State v. May, 20 Ia. 305; Com. v. Smith, 129 Mass. 104; Bales v. State, 3 W.Va. 685.

David J. Howell, Attorney General for Respondent.

Defendant admitted that he heard the intruders trying to effect an entry but remained silent; he was not justified in killing without attempting to frighten them away, Steel v. Scheele, 57 Conn. 307, 18 A. 256; the evidence showed malice, Hall v. State, 168 S.W. 1122; Palmer v. State 9 Wyo. 49; the building was not defendant's home; he was in fact rooming at 118 West 11th street according to the evidence; the premises where the homicide occurred was used for the illicit storage and sale of moonshine; the rule of defense of home and habitation does not apply, State v. Smith, 69 N.W. 269; the evidence as to the contents of the house was necessary to rebut defendant's claim that it was his home; proof of other crimes is admissible where relevant in establishing defendant's guilt, 16 C. J. 588; Horn v. State, 12 Wyo. 80; Hill v. State 194 Ala. 11; Walsch v. Call, 32 Wis. 159; instruction number 25 reviewed by the Court was defective in stating that one might take life for any intrusion of his home regardless of the question of necessity; if evidence tending to show that defendant was dealing in moonshine was properly admitted, the prosecutor's question as to when defendant had been fined for moonshining was not misconduct; defendant did not request an instruction as to his right to protect his liquor from burglary.

William C. Mentzer in reply.

Defendant was not lying in wait, he was frightened by the intruders and was afraid they would kill him. They ordered him to throw his hands up; the evidence established that defendant had roomed on 11th street until December 1st, and then moved to the cement house, Hall v. State is not in point, as in that case deceased was not attempting to enter. Whether defendant had "moonshine" in his house would not effect his right to defend his person and habitation, Russell v. State, 54 So. 360; State v. Kennade, 26 S.W. 347; the occupant of a dwelling house may defend his habitation against an attempt of felony about to be committed therein, even to the extent of taking life of the intruder, State v. Perkins, (Conn.) 91 A. 265; State v. Mills, (Pa.) 69 A. 841; Wilson v. State, (Fla.) 11 So. 556; People v. Keuhn (Mich.) 53 N.W. 721; State v. Taylor, (Mo.) 44 S.W. 785; even a box stall in which accused slept and kept his belongings is in effect his habitation, Young v. State, (Neb.) 104 N.W. 867, or a rented room, Reinke v. Com. (Ky.) 128 S.W. 314; Fortune v. Com., 112 S.E. 861; State v. Bartmess, 54 P. 167; State v. Terrill, 24 A. L. R. 497 and note at page 508; the court should have given instruction number 25 as to admissibility of evidence unlawfully obtained, see recent case of Gore v. State, (Okla.) 218 P. 545.

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

OPINION [224 P. 421]

[31 Wyo. 133] BLUME, Justice.

The defendant Mike Sorrentino was convicted of murder in the second degree and sentenced to the penitentiary for a period of from 35 to 40 years, and he appeals.

The homicide in question occurred about ten o'clock on the night of December 21, 1922, in a cement block house on the corner of Eleventh Street and Capitol Avenue, in the City of Cheyenne. The house faces north on Eleventh Street and has a front and a rear entrance, and a front and a rear porch. It is a one story house which has a basement to which access may be had by a stairway leading from the kitchen. Only four rooms are in the house, of almost equal dimensions. The south two rooms are the two rooms mainly concerned in this case and consist of a kitchen, on the southeast corner of the house, and a bedroom, on the southwest corner of the house. The door leading from the south porch into the kitchen is close to the west end of the latter, and swings inward from east to west; the door--and the only door--leading into the bedroom is close to the south [31 Wyo. 134] side of the house, swinging inward from north to south. In other words, the two doors mentioned are close to each other and in the same corner.

The decedent, one George McGough, was about 24 years of age. He and Vance Homan, a boy of about 17 years of age, met about seven o'clock of the evening of the homicide with the intention to go into the house in question for the purpose of stealing some so-called moonshine whiskey. They had been in the house on the previous Sunday, had found the door unlocked, though closed, had gone in and found nothing. It is not clear just what they did at 7 o'clock on the night in question, but they did not go in. They returned at eight o'clock, tried to enter by the rear door, but finding it locked, went away, the deceased intending to get some keys which would open the house. These keys were procured by said deceased and about nine o'clock he, in company with said Vance Homan and two other boys returned to the house. The two latter were stationed round the house as guards. The deceased and Vance Homan went on to the back porch, unlocked the door with a key and entered the kitchen. The night was dark, no light was in the house, and its windows were covered. The deceased was equipped with a flashlight, and used it to some extent in the kitchen, no doubt for the purpose of finding some whiskey. Vance Homan testified that they were in that room for perhaps two minutes. They were there, no doubt, just long enough to discover that no whiskey was to be found, and they then proceeded toward the bedroom already mentioned. It was open to the extent of five inches. Homan pushed the door open and the deceased used his flashlight, throwing it upon the face and upper part of defendant who was standing on or by a bed in the middle of the room, and who thereupon, so Homan testified, shouted "hands up" and almost immediately thereafter began to shoot. Two or three shots were fired from a shotgun, one of which struck the deceased, inflicting a wound from which death resulted soon [31 Wyo. 135] after. It does not appear whether Homan or deceased threw up their hands as commanded.

The defendant's testimony varied to some extent from that of the witness Homan. According to him he heard four men come onto the porch, trying two or three keys before the kitchen door opened; that he was awakened from sleep; that he dressed as soon as he heard the noise on the porch; that he was frightened; that when the bedroom door was pushed open and the flash-light thrown on him, he heard someone say "hands up, I shoot;" that he himself shouted "hands up, come from me;" that he saw the deceased with his hands back and pulling a revolver, whereupon he shot. After shooting, defendant fled precipitously to Colorado. Testimony of reputable witnesses show him to have had the reputation as a peaceable and law-abiding citizen.

The north two rooms in the house and the basement were upon examination immediately after the shooting, found to be empty. In the kitchen were only some empty glass bottles, a bushel basket, a strainer used in straining liquids, with a cloth over it that was wet. A strong odor of "moonshine-whiskey" was in the room. In the bedroom was a mattress pad, which had on it one comfort, two army blankets and a pillow, and had the appearance of having been occupied by some one a short time before; there was also an oil stove, then burning. The defendant claimed the house to be his home. The state, however, introduced evidence tending to show the contrary and that it was used for the unlawful purpose of the manufacture [224 P. 422] of "moonshine whiskey." Among other things it was shown that a keg of five gallons of that liquid was found in the house some three or four days prior to the date of the...