State v. Velsir

• Decision Date: 15 May 1945
• Docket Number: 2305
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. LOUIS VELSIR, Defendant and Appellant
• Court: Wyoming Supreme Court

159 P.2d 371

61 Wyo. 476

THE STATE OF WYOMING, Plaintiff and Respondent, v. LOUIS VELSIR, Defendant and Appellant

No. 2305

Supreme Court of Wyoming

May 15, 1945

APPEAL from District Court, Sweetwater County; V. J. TIDBALL, Judge.

Louis Velsir was convicted of manslaughter, and he appeals.

Affirmed.

For the Plaintiff and Respondent there was a brief by Louis J O'Marr, Attorney General, and L. C. Sampson, Assistant Attorney General, both of Cheyenne, Wyoming, and oral argument by Mr. Sampson.

POINTS OF COUNSEL FOR APPELLANT.

It is incumbent upon the State to prove by competent evidence, and beyond a reasonable doubt, that defendant unlawfully inflicted the injury which caused death, and that the injury was not inflicted by defendant in necessary self-defense, and that the defendant, then and there, unlawfully, purposely and voluntarily, upon a sudden heat of passion, killed the decedent, and that, at that time, the defendant must have intended to kill the deceased. 26 Am. Jur. 392, 393..

Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the killing may have been done from a principle of self-preservation, and also where the evidence is wholly circumstantial and the character of the transaction is in doubt. State v. Turpin, 77 N.C. 473, 24 Am Rep. 455.

Evidence of the reputation of deceased, known to defendant at the time of the contest, was admissible as bearing on the question whether defendant was justified in believing himself in imminent danger from deceased; whether his knowledge of the reputation of deceased, taken into consideration with all the other circumstances in the case, was sufficient to excite the fears of defendant, as a reasonable man, that deceased intended to inflict great bodily harm upon him, or to slay him. People v. Lamar, 148 Cal. 564, 83 P. 993, 997; State v. Jones, 48 Mont. 505, 139 P. 441.

It has been held generally that evidence of the turbulent character of the deceased or party assaulted is admissible on a trial for homicide or for assault, as tending to corroborate testimony for the accused as to the circumstances of the conflict, whether the accused had knowledge of such character or not. Cain v. Skillin, 64 A. L. R. 1029, 1044.

When guilt is clear, errors or instances of unfair conduct by the prosecution may sometimes be ignored; but the greater the doubt of guilt, the more likely are errors to affect the substantial rights of the accused. State v. Vines, 49 Wyo. 241.

Where error has been committed in a capital case, the effect of which, as appears from the record, amounted to a denial of substantial justice and deprived defendant of a fair trial the judgment will be reversed, though proper exceptions were not taken at the trial. Parker v. State, 24 Wyo 491.

If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal. Gardner v. State, 27 Wyo 326.

The burden is on the prosecution to show that death resulted from the criminal act of defendant, and even when the body has been found, and although indications of a violent death are manifest, it must fully and satisfactorily prove that the death was not occasioned by natural causes, or by accident, or by the act of deceased himself. 30 C. J. 139.

Where it appears that the act of the accused was not the proximate cause of the death of the person for whose murder he is being prosecuted, but that another cause intervened, with which he was in no way connected, and but for which death would not have occurred, such supervening cause is a good defense to the charge of homicide. 13 R. C. L. 750.

To sustain a conviction of murder, the evidence must be such as to authorize the jury to find that death ensued as the result of the act of the defendant on trial. It was incumbent upon the state, before a conviction for any grade of homicide could have been had, to prove, not only that the deceased was killed, but that he died from the effects of a wound inflicted by the accused. Walker v. State (Ga.) 67 L. R. A. 426.

The law is well settled that where there is evidence tending to show that deceased made threats against the defendant which were communicated to him, and that deceased brought about the difficulty and was in fault at the time of the killing, the court must, when a proper instruction is asked, instruct the jury as to the law governing threats. Durham v. State, 29 Wyo. 85.

For the Defendant and Appellant there was a brief and also oral argument by W. A. Muir and Glen G. Stanton, both of Rock Springs, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

It appears to be well established that before evidence of the reputation of the deceased or the party assaulted, for turbulence and violence, is admissible for the accused on a trial for homicide or for assault, for the purpose of proving that he had reasonable cause to, and did, apprehend death or serious bodily injury, and therefore was justified on the ground of self-defense in acting as he did, it must appear that, at the time of the homicide or assault, he had knowledge of such reputation; because otherwise, of course, his conduct could not have been influenced thereby. 64 A. L. R. 1040, 1041.

The general rule, in the absence of a statute regulating this matter, when the defendant offers himself as a witness, is that it may be shown, either by the record or on cross-examination, that he has suffered previous convictions of a felony or felonies. Either method is permissible. Wigmore on Evidence, Vol. 2, Sec. 980; Hadley v. State (Ariz.) 212 P. 458, 462; 40 C. J. S. Sec. 221, 1136.

The law is that if the wound was unlawfully inflicted and contributed mediately or immediately to the death, then the one who so inflicted the wound is guilty. Hollywood v. State, 19 Wyo. 493, 513.

CHRISTMAS, District Judge. BLUME, Ch. J., and RINER, J., concur.

OPINION

CHRISTMAS, District Judge.

The defendant in this case was charged with the crime of murder in the first degree for killing one Earl Cox on November 22, 1943. The jury found the defendant guilty of manslaughter, and from a judgment entered in accordance with that finding, the defendant appeals.

Briefly the pertinent facts are that in the evening of November 22, 1943, appellant and one Claude Whitfield met at the Belmont Bar in Rock Springs, Wyoming, and shortly thereafter left and went to the room of the deceased in the Park Hotel. Apparently Cox and Velsir had never met. After a brief conversation and the serving of some drinks of whiskey, Cox suggested a game of dice, commonly known as "craps." Cox, Velsir and Whitfield participated in the game until both Velsir and Whitfield lost their money. During the game two men entered the room, but did not take part in the game. The defendant, accompanied by Whitfield and at least one of the men, left the room for the expressed purpose of obtaining more money. This accomplished, they all returned to Cox's room and Cox and Velsir resumed the dice game. Velsir continued to lose his money and becoming suspicious picked up the dice from the floor, made a remark to the effect that "these are crooked dice," and according to the witness Whitfield, Cox and Velsir "started sort of quarreling." Velsir then stepped out of the room into an adjacent hallway, followed by Cox who demanded the return of the dice. The parties continued along the hallway a short distance to some steps or a stairway. As to what then occurred there is no evidence other than that of the defendant, who testified as follows: A. After I left Room 225 I run down the hall and I got to about, I think, where them little steps are, and I heard somebody running behind me, and pretty soon they reached and grabbed me. Q. Just show on this little map behind you where you were. This little space in about the middle here, that is the room that you were in. A. Yes, sir. I was standing right about here (indicating), and I come out and I got up to about here (indicating), and I heard a man behind me, and just when I got about here, I suppose (indicating), he grabbed me, and he said, "I'll stomp your God damned head in the floor if you don't give me them dice." Q. Did he say anything about the law? No, not then, but when he grabbed me I turned around and I looked down, and he had this big knife down in his right hand, and he said, "It ain't going to do you no good to take them dice to the law." Q. Had you told him that you were going to take the dice to the law? A. No, sir, I didn't tell him nothing. I told him to go on and leave me alone, and then I was backing up down the hall, and I don't know how many steps I took backward, and he was cussing me all the time, and he said, "I'll cut your God damned head off," he said to me, and just then he reached out and struck me with his knife, and I was backing away from him, and I jumped back, because I was scared, and I pulled my knife out, and the next time his arm went by I cut across this way (illustrating) with my knife, and he hollered something about to get him a doctor, and I turned right directly around to my right and I went to the elevator, and when I got up there I saw over here on this side was some stairs, and I went down those stairs and down into the lobby, and I looked in the lobby but there was nobody there, so I walked into the bar-room--Q. Now, just a minute, take it a little slower. You get talking so fast that we don't know what you are talking about. Just a minute before you go on with that. From where you last stopped there, where you were backing up, could you see those...