State v. Vance

• Citation: 38 Utah 1,110 P. 434
• Decision Date: 13 July 1910
• Docket Number: 2039
• Court: Utah Supreme Court
• Parties: STATE v. VANCE

110 P. 434

38 Utah 1

STATE v. VANCE

No. 2039

Supreme Court of Utah

July 13, 1910

Appeal from District Court, Third District.--Hon. Geo. G. Armstrong Judge.

Thomas Vance appeals from a conviction of murder.

REVERSED, and new trial granted.

W. L Maginnis, A. S. Maginnis and Jno. F. Tobin for appellant.

APPELLANTS'S POINTS.

Where an indictment charges death to have been caused by two caused there can be no conviction on evidence that it was caused by one of them singly. (State v. Smith, 67 Me. 386; State v. Lincoln, 49 N.H. 464, 470-71; Mills v State, 52 Ind. 187, 192; State v. Palmer, 35 Me. 9; State v. Burgess, 40 Me. 592; Burgess v. State [Miss.], 33 So. 499; Hill v. State, 72 Miss. 527, 17 So. 375; 1 Bishop Criminal Proced., sec. 426; 1 Wharton Crim. Law, 423; Wharton Crim. P. & P., sec. 293; State v. Spencer, 15 Utah 149; People v. Sweeny, 55 Mich. 586-589.)

An indictment charging several criminal acts, all, however, as a part of the same transaction, and as constituting one crime, charges but one offense. (People v. Hill, 3 Utah 334, 3 P. 75; Hawker v. The People, 75 N.Y. 487; State v. Porter, 26 Mo. 201; State v. Lincoln, 49 N.H. 464, at 470-71.)

The rule of law is, and we understand it applies equally to criminal and civil cases to the defendant or any other witnesses that a witness must only be cross-examined upon the matters brought out in his direct examination. (People v. Smith [Cal.], 99 P. 111; Summer v. Blair, 9 Kan. 521; Da Lee v. Blackburn, 11 Kan. 190; Phillips v. Elwell, 14 O. S. 240; Haynes v. Ledyard, 33 Mich. 319; State v. Testerman, 68 Mo. 411; People v. McGungill, 41 Cal. 430; People v. O'Brien, 96 Cal. 171, 180, 31 P. 45; People v. Arrighini, 122 Cal. 121, 54 P. 591; People v. Gallagher, 100 Cal. 466, 475, 476, 35 P. 80.)

If the dying statement in writing was admissible the oral statements were not admissible. Where the statement is committed to writing, it is essential to produce the writing which is the best evidence. (Vol. 1, Greenleaf's Ev., sec. 161; Trowter's case, 1 E. P. C. 356; People v. Tracy, 1 Utah 343, 346; Collier v. State, 20 Arl. 36; Rex v. Gay, 7 C. & P. 230; Rex v. Reason, 1 Strange 499; Boulden v. State, 15 So. 341; 3 Russell on Crimes (Internat. Ed.), page 394; 1 Wharton Criminal Law, sec. 679.)

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

RESPONDENT'S POINTS.

It is the contention of the state that there is but one offense charged in the third count, that is, murder, which is charged to have been committed by two different means, or rather by the combination of two different means.

Such pleading is permitted by express provision. (Sec. 4734, C. L. Utah 1907; Sec. 4161, C. L. Utah 1907; see, also, King v. State [Ala.], 34 So. 683; 2 Hawking's Pleas of the Crown, p. 251; Wharton on Homicide [3rd Ed.], sec. 563, p. 848; Bishop's Directions and Forms [2nd Ed.], secs. 20 and 535; Bishop's New Criminal Procedure, vol. 1, secs. 453 and 434; Wharton's Criminal Pl. and Pr. [9th Ed.], sec. 253; Kerr on Homicide, sec. 245; Anderson v. U.S. 170 U.S. 481; St. Clair v. U.S., 154 U.S. 134; State v. Edmondson, 3 Tex. 162; State v. Feister [Ore.], 50 P. 561; People v. Davis, 56 N.Y. 95; Jackson v. State, 39 Oh. St. 37.)

Where an offense charged may be committed by two different means, not only may its commission by both means be charged in one count, but proof of the offense committed by either means will sustain the allegation. (State v. Hewes [Kan.], 57 P. 959; State v. O'Neil, 51 Kan. 651; Bishop's New Crim. Pro., vol. 1, sec. 453, sub-division 2; Com. v. Stafford, 12 Cushing 619; Com. v. Macloon, 101 Mass. 1.)

The evidence for the prosecution should not be held insufficient solely because it is disconnected, weak and inconsistent, if taken together it may satisfy the jury beyond a reasonable doubt. (12 Cyc., page 490, subdivision 2; Howard v. State, 108 Ala. 571, 18 So. 813; Cyc., vol. 12, page 492, subdivision 5; Kossakowski v. People, 177 Ill. 563, 53 N.E. 115; Williams v. People, 166 Ill. 132, 46 N.E. 749; Davis v. People, 114 Ill. 86, 29 N.E. 192; Com. v. Salyards, 158 Pa. St. 501, 27 A. 993; Elliott on Evidence, vol. 4, secs. 2710-2713.)

If there were a series of circumstances leading to the conclusion of guilt, a verdict of guilty might satisfactorily be pronounced. (Wills Cir. Evidence, p. 235; Trials for Murder by Poisoning, pp. 42-43; Com. v. Danz, 211 P. 507, 60 A. 1070; Reese's Med. Juris. & Toxicology, 443; Zoldoski v. State [Wis.], 52 N.W. 778.)

The testimony was sufficient to justify such verdict. Such being the case, this court will not disturb the verdict. (State v. McCune, 16 Utah 174; State v. Halford, 17 Utah 482; State v. Webb, 18 Utah 444; State v. Endsley, 19 Utah 478.)

A witness may state the substance of a dying statement. Identical words need not be given. (Wharton on Homicide [3rd Ed.], p. 1022; State v. Carrington, 15 Utah 480; 21 Cyc. 981; Wharton on Homicide [3rd Ed.], 1019; State v. Schmidts, 73 Ia. 469, 35 U.S. 590.)

The defendant having taken the stand in his own behalf, thereby subjected himself to cross-examination upon the same terms as any other witness. (Section 5015, Complied Laws of Utah 1907.) The limits of such a cross-examination are within the sound discretion of the trial court. (People v. Hite, 8 Utah 461; People v. Larsen, 10 Utah 143; State v. Shockley, 29 Utah 48; State v. Wells, 54 Kan. 151.)

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

OPINION

FRICK, J.

Appellant was convicted of the crime of murder in the first degree, and sentenced to suffer death.

The information contains three counts. In the first count it is, in substance, alleged that on the 26th day of November, 1907, the appellant committed the crime of murder in the first degree by assaulting one Mary Vance with the specific intent to take her life, and, with that intent and purpose, willfully, unlawfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, with his fists, hands, and feet did strike, kick, beat, and bruise the said Mary Vance, and did then and there, and thereby, inflict upon the body of the said Mary Vance a mortal contusion, bruise, and wound, from which the said Mary Vance languished until the 8th day of December, 1907, when she died from the contusion, bruise, and wound aforesaid. The acts of appellant and the means used by him to produce the death of the said Mary Vance are alleged with much particularity, and the count contains a complete charge of murder in the first degree, and states a complete transaction. In the second count appellant is charged with having committed the crime of murder on the 27th day of November, 1907, by administering poison to one Mary Vance with the specific intent to take her life, and that said Mary Vance took said poison, and that by reason thereof she became mortally sick and languished until the 8th day of December, 1907, when she died from the effects of the poison so taken as aforesaid. In this count all the essential ingredients constituting murder in the first degree by administering poison as a means of death are alleged, and it is further alleged that appellant committed the crime by the means of said poison. In the third count all the allegations of the first count are set forth at length with the exception that it is not stated that the beating, bruising, and kicking resulted in death. In this count are also set forth in full all the allegations contained in the second count, excepting the statement that death was caused by the poisoning. After repeating the statements contained in the first and second counts as aforesaid, the cause of death is stated in the third count as follows: "That by means whereof, to wit, the striking, kicking, beating, and bruising of the said Mary Vance . . . and the drinking of the water and poison as aforesaid, the said Mary Vance became mortally sick and distempered in her body, and the said Mary Vance of the beating, kicking, and bruising aforesaid and of the poison aforesaid so by her taken, drank, and swallowed as aforesaid, and of the mortal sickness and distemper occasioned thereby," she languished from the 27th day of November, 1907, until the 8th day of December, 1907, when she "of the said mortal sickness occasioned by the said beating, kicking, bruising, and poison aforesaid died; and so the said Thomas Vance, the said Mary Vance, in the manner and from aforesaid, willfully, unlawfully, deliberately, premeditatedly, feloniously, and of his malice aforethought did kill and murder." After the state rested the appellant requested the court to require the state to elect on which count of the information the state would ask a conviction. To this request the district attorney replied: "The state will elect to stand upon the count of the information which charges that death resulted from beating and poisoning, which, I understand, is the third count in the information." The state having elected to stand on the third count, appellant interposed a further motion by which he requested the court to require the state to further elect on which charge in the third count, namely, the beating and bruising, or the administering of poison, the state would ask to go to the jury. This motion was opposed by the state and was overruled by the court, to which ruling the appellant duly excepted and assigns the ruling as error. In view that practically the same question arises upon another assignment relative to the giving of a certain instruction, which, in turn, involves some of the facts, we will first state what we deem to be the salient facts in the case.

The undisputed facts, as deduced from the state's evidence relative to the beating, kicking, and bruising are substantially as follows: Appellant and the deceased on the 26th day of...