State v. Thompson
| Decision Date | 05 June 1946 |
| Docket Number | 6895 |
| Citation | 110 Utah 113,170 P.2d 153 |
| Court | Utah Supreme Court |
| Parties | STATE v. THOMPSON |
Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.
Reversed and remanded with instructions.
Ray S McCarty, of Salt Lake City, for appellant.
Grover A. Giles, Atty. Gen., Herbert F. Smart, Asst. Atty. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City, for respondent.
The defendant, Phillip Thompson, was convicted of murder in the first degree, with a recommendation of leniency, and sentenced to life imprisonment. He brings this appeal from that judgment.
All of the people involved in the incident at the time of the killing were colored. Late in the evening of March 17, 1945, or early in the morning of the next day, the defendant having been drinking, went to the home of Mr. and Mrs. Perkins, in the basement of which Frank Brown, the deceased, operated a dice game. Defendant joined in the game and lost most of his ready cash, amounting to about $ 100. Thereupon he claimed the game was crooked and after some argument thereon with Brown, defendant went home where he armed himself with a loaded automatic pistol and returned to the place where this game was in progress. When he returned there was no vacant place at the table where the dice game was being played, whereupon defendant gave a boy at the table 50[cents] for his place, and then stepped back from the table and drew his gun and said: "Put your money on the table and get away from it." No one seemed to realize that he had drawn a gun and his order was not obeyed whereupon defendant commenced to shoot. Altogether he fired eight shots. The first shot was either fired into the floor or over the people's heads. Later he turned his gun directly on Brown and shot him at least twice. Brown staggered into an adjoining room, fell to the floor and died before he reached the hospital. At least two other people were wounded and bullets went through the clothing of others. At one time he shot into a crowd of persons who were rushing to a door to get out of the room, wounding one person in the neck. Later he apparently was shooting directly at two men named Fowler and Hervey; they ducked under his shots and then rushed him and took the gun away from him. The last shot was fired after Fowler had grabbed the gun. And after it was over with there was still one loaded cartridge in the gun.
Defendant in his testimony admitted that he left the game and went to his home which was a block and a half away and procured the gun which he knew was loaded, and returned to the game intending to use it if necessary to scare Brown into giving back the money he had lost. He testified that when he returned to the game with the gun he first went to Brown, who was on a stool at the table "making his take," that is, taking 5 cents from the bets as they were placed, and asked Brown to give back his money which Brown refused to do; that he then went to a man named Hervey who was across the table from Brown returning the dice, and tried to ask him to persuade Brown to give him his money back, but that Hervey said: "Can't you see I'm busy." That he thereupon procured the place at the table and then again asked Brown to return his money which Brown again refused to do, and thereupon he stepped back from the table and drew his gun; that he did not know that the safety on the gun was not "on," and was surprised when the gun fired; that he knew that this shot was wild and he did not remember firing any other shots but did remember that some one grabbed the gun from his hand and in taking it from him another shot was fired. He then left the place and claims that he did not know until the next day that he had hurt any one.
The case was submitted to the jury on two theories of murder in the first degree: 1. That the killing "was intentional, deliberate and premeditated and done with malice afore thought." 2. That the killing "was perpetrated by an act greatly dangerous to the lives of others, evidencing a depraved mind regardless of human life." After the evidence was in the defendant moved the court to require the state to elect on which one of these theories of murder in the first degree it would stand, and assigns as error the court's refusal to grant that motion. Counsel, however, does not argue that it was error to submit both of these theories to the jury, but contends that under the instructions given the jury was authorized to find the defendant guilty of murder in the first degree, if all jurors were satisfied that he was guilty thereof, even though some of them believed him guilty only under one theory and others believed him guilty only under the other theory. To the effect that such instruction would be erroneous he quotes from State v. Roedl, 107 Utah 538, 155 P. 2d 741, 747, where referring to State v. Rasmussen, 92 Utah 357, 68 P.2d 176, we said:
"While we held in that case in a prosecution for involuntary manslaughter wherein several unlawful acts, such as driving at an unlawful rate of speed, driving without a proper lookout, and others, were alleged to have been committed resulting in death, the jury must unanimously agree on one or more of the specified unlawful acts and they may not combine their conclusions on different specified acts so as to converge on an ultimate verdict of guilty."
There is doubt that the Rasmussen case really holds what we in the Roedl case said it did. In the opinion first appearing in the Rasmussen case, written by Mr. Justice Moffat and concurred in by Mr. Justice Ephraim Hanson, it was stated as their opinion that the jury must agree unanimously on one or more of the specified unlawful acts, and that the judgment of the trial court should be reversed on that account but that was not the opinion of a majority of the court. Each of the other three Justices wrote a separate opinion but none of such separate opinions definitely holds that all of the jurors must unanimously agree on one or more of the specified unlawful acts but simply hold, without deciding that question, that even if that is the law the jury was sufficiently instructed to that effect in that case. Nor was that question determined in the Roedl case. There we held that regardless of what the law is on that question no prejudicial error was committed because the evidence was so conclusive on the question of a deliberate and premeditated killing that the jury could not have been misled thereby.
It is also not necessary for us to decide that question and we therefore do not decide it here. Counsel, to sustain his contention that the court authorized the jury to find the defendant guilty of murder in the first degree, even though some found him guilty only under one theory and others found him guilty only under the other theory, relies on the following instruction:
The italicized portions of the above sentences, as indicated, are directly quoted from the instruction, and are the same in both sentences but by the change in the previous context and a change in the emphasis placed on the words, a different meaning is obtained. The fact that the court is cautioning the jury, that in determining its verdict, it must observe the limitations therein stated, rather than suggesting that such limitations are unimportant clearly indicates an intention to limit the jury in finding the defendant guilty of murder in the first degree to a situation where all the jurors unanimously concurred in such finding on the same theory of such murder. Thus the instructions of the court were in accord with what the defendant contends they should have been.
Defendant next contends that the evidence is insufficient to sustain a verdict of murder in the first degree on either theory thereof and is also insufficient to sustain a verdict of murder in the second degree, but that the case should have been submitted only on the question of voluntary manslaughter. In State v. Russell, 106 Utah 116, 145 P. 2d 1003, 1008, we divided murder in the first degree into four separate categories. The first of those categories is the same as the first theory of such murder herein and was therein defined in the language of the statute, Section 103-28-3, U. C. A. 1943, as follows:
From the evidence in this case could a reasonable mind be convinced or persuaded...
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