State v. Thorne

• Decision Date: 29 May 1911
• Docket Number: 2203
• Citation: 117 P. 58,39 Utah 208
• Court: Utah Supreme Court
• Parties: STATE v. THORNE

117 P. 58

39 Utah 208

STATE v. THORNE

No. 2203

Supreme Court of Utah

May 29, 1911

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Harry Thorne was convicted of murder in the first degree and he appeals.

REVERSED AND REMANDED.

M. E Wilson, E. A. Walton and James M. Denny for appellant.

A. R Barnes, Attorney-General, for the State.

STRAUP J. McCARTY, J., FRICK, C. J., concurring.

OPINION

STRAUP, J.

The defendant, a boy seventeen years of age, was convicted of murder in the first degree. It is charged in the information that he "unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life of George W. Fassell, an assault did make" with a loaded revolver in his hands, "and then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life" of Fassell, discharged the revolver and shot and killed him, "and so," the defendant, "in manner and form aforesaid, unlawfully, willfully, deliberately, premeditatedly, and of his malice aforethought, the said George W. Fassell did kill and murder." The evidence, without conflict, shows that Fassell was shot and killed by the defendant while he and two others were perpetrating a robbery in Fassell's store. The evidence is conflicting as to whether the revolver was accidently or intentionally discharged, and Fassell intentionally or unintentionally shot and killed. On this point the principle witness for the state, A. F. Jacobson, testified that while he and Fassell were alone in the store the defendant and two others, Hayes and Curley, with handkerchiefs over their faces, entered the store. The defendant, pointing a revolver at Jacobson, commanded him to throw up his hands. At the same time Hayes, one of the other robbers, pointed a gun at Fassell and made a similar demand of him. Jacobson hesitated a moment, when the defendant put the muzzle of the gun within five or six inches of Jacobson's face, and, in a commanding tone, told him "get them up there," and "get back to that corner." Jacobson complied, the defendant keeping the gun close to his face and crowding him back with it. Fassell, who was covered by Hayes, "was slow about putting his hands up; finally he got them up and then he started to back, walking backwards. Hayes did not follow him, but kept him covered with the gun and indicated the direction he wanted him to go." After the defendant had backed Jacobson to the corner he whirled towards Fassell who then, with his hands up and moving back, was about opposite him. The defendant approached Fassell and "punched him right in the side with the muzzle of the gun. Mr. Fassell winced like that, still he never took his eyes off this man. He kept looking at him, and he again punched him, and he started to back in that corner, and then he pulled the gun away and says 'get back,' and just held the gun about that far off" --eight or ten inches--"and then fired," the bullet striking him in the left side under the armpit. Fassell threw his hands to his side, dropped to the floor, and expired in about half an hour. At about the time of the shooting, Hayes, who had been pointing his gun towards Fassell, turned and pointed it towards Jacobson. After Fassell was shot and had fallen to the floor, the defendant walked towards the cash register. In doing so he came between Hayes and Jacobson. Jacobson jumped into the back office near by and ran out.

The defendant testified in his own behalf, on direct examination, that when he and Hayes and the other robber, Curley, reached the store and entered it he "held up the butcher (Jacobson) and told him to go back, and he went back; and Hayes he had Fassell. At first he told him to put up his hands. He seemed to hesitate; and he got him up there finally, and I told the butcher to go back there. Then Hayes told Fassell to go back there too. It seems like he didn't understand the question right away; anyway he didn't move for several seconds. When he did start to move, he moved very slow and Hayes kept on telling him to move and hurry up. I got the butcher down there, and by that time Fassell was even with the counter and I told him to hurry up, 'we don't want to stay here all night.' He kind of hesitated there, and I told him several times. Then I shoved the revolver into him and it was discharged and he fell and then I went and looked at him, and from there I went over to the cash register which Curley was supposed to go to and take the cash, and in going out I passed it and glanced in it, and it seemed like he hadn't touched it, and I took whatever there was in it and went out." He further testified that he did not pull the trigger of the gun intentionally; that he was not familiar with the action of the gun; and that he did not intend to shoot or kill Fassell, or any one. On his cross-examination he testified that he, Hayes and Curley had started out that night "to turn a trick; that at the time we started out we didn't know what we were going to do. They said they were going to hold somebody up, but who or what or where I couldn't say." He further testified that for such purpose they first went to a laundry. They found that closed and the wagons in. They then went up the street to Fassell's store situated outside the business portion of the city. They watched and reconnoitered it for an hour or more. They finally agreed upon a plan in which the defendant upon entering the store was to cover one of the men in the store, Hayes the other, and Curley to rob the cash register. In pursuance of such plan they entered the store, the defendant pointing his loaded revolver "cocked" at Jacobson and Hayes his at Fassell. When the shot was fired Curley had reached the register and had opened it, as the defendant assumed, but left without taking the money, or, at least, without taking all of it. The defendant, in going out, passed by the register which evidently had been opened by Curley, and seeing two ten dollar gold pieces and some silver took them.

The defendant and Hayes were arrested within an hour after the offense was committed. The next morning the defendant made a voluntary and an unsolicited confession to the chief of police and other officers, and later to the sheriff of the county and other prominent citizens, in which he admitted and stated the facts substantially as testified to by him on the trial, and in each of them stated that Fassell did not move fast enough, that he told him to hurry up, and that he "put the gun against Fassell's side," or "punched," or "poked" him in the ribs with it, and that it "went off" or "exploded."

Murder is defined by our statute, Comp. Laws Utah 1907, section 4159, to be "the unlawful killing of a human being with malice aforethought." By section 4161 it is provided that "murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life--is murder in the first degree." It is thus seen that a willful, deliberate and premeditated killing is murder in the first degree, and that a murder committed in the perpetration of, or attempt to perpetrate, a robbery, is also murder in the first degree. The court, after reading to the jury the information in which it was alleged that the defendant "unlawfully, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, and with the specific intent to take the life" of Fassell, shot and killed him, and after stating to the jury the statutes referred to defining murder and murder in the first degree, instructed them that "so far as material in this case, for the purpose of determining the guilt or innocence of the defendant, the statute declares that every murder committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery, is murder in the first degree." The court further charged "that the essential facts constituting the offense charged are: First, that the killing occurred in Salt Lake County, State of Utah; second, that the killing was unlawful; third, that the killing was committed in the perpetration of, or attempt to perpetrate, robbery; fourth, that the person killed was George W. Fassell; fifth, that said Fassell was killed by a pistol shot by the defendant while the defendant was engaged in perpetrating, or attempting to perpetrate, a robbery at the time the said pistol shot was fired." The court also charged the jury "if you believe beyond a reasonable doubt from the evidence that the defendant Thorne, while perpetrating, or attempting to perpetrate, a robbery, shot and killed the deceased, Fassell, then the court instructs you, for the purpose of determining the guilt or innocence of this defendant, that it is immaterial whether the shot so fired by the defendant Thorne was shot intentionally or by an unintentional discharge of the pistol in the hands of said Thorne." The court further charged the jury that "in case the victim of a robbery is killed by the person or persons engaged in perpetrating, or attempting to perpetrate, the robbery, the intent or intention of the persons perpetrating, or attempting to perpetrate, the robbery need only be to perpetrate such robbery," and all persons concerned in such attempt or perpetration, or present and aiding therein "are guilty of the murder...