State v. Vines

• Decision Date: 11 February 1936
• Docket Number: 1887
• Parties: STATE v. VINES
• Court: Wyoming Supreme Court

54 P.2d 826

49 Wyo. 212

STATE v. VINES

No. 1887

Supreme Court of Wyoming

February 11, 1936

APPEAL from the District Court, Crook County; HARRY P. ILSLEY Judge.

James Vines was convicted of murder and he appeals.

Judgment reversed and case remanded for a new trial.

For the defendant and appellant there was a brief by James T McGuckin, of Sundance, and E. C. Raymond, of Newcastle, and oral argument by Messrs. Raymond and McGuckin.

Defendant was arrested without a warrant on October 7, 1933. Proceedings were commenced before a justice of the peace on October 10, 1933. Defendant was held twenty-nine days after the first day of the term or until October 31, 1933, without permission to communicate with friends or attorneys. Twenty-nine days after the first day of the term, an information was filed direct in the district court charging defendant with murder in the first degree, the proceedings before the justice having been dismissed on the day preceding. Defendant had a right to a preliminary examination in order to know what he would be expected to defend against. A plea in abatement was filed to the information demanding a preliminary examination in order to determine whether the proof against him was evident or the presumption clear, so that he might apply for bail, if entitled thereto. The State demurred to defendant's plea in abatement, thereby admitting that the court was not in session when the information was filed. The court erred in sustaining the demurrer to defendant's plea in abatement. Defendant was deprived of an opportunity to prepare his defense to the extraordinary chain of circumstances set up by the state to secure his conviction. Van Buren v. State, 91 N.W 201; State v. Tobin, (Wyoming) 226 P. 681. Defendant was entitled to a preliminary examination under the plain terms of Section 33-408, R. S. The court erred in refusing defendant's motion for a change of venue from Crook County. Owing to prejudice against him in that county, defendant was first confined in the county jail in Campbell County and later in the county jail at Newcastle. Fifty-one affidavits were filed in support of his motion for a change of venue. The court erred in sustaining objection to the introduction of these affidavits. Sec. 89-1106, R. S., State of Iowa v. Nash and Radout, 7 Iowa 346; People v. Pfanschmidt, 104 N.E. 804; State v. Perkins, (S. D.) 156 N.W. 73. The court erred in excluding jurors F. L. Brislawn and R. E. Brislawn, regular members of the panel, from sitting as jurors in the case without a showing of disqualification or cause. The court erred in overruling objections to the testimony of witnesses Clara Hodges, Roy R. Barnard and the deposition of Wm. C. Houston, Jr., and motions made to strike the same. The court erred in excluding the testimony of John M. Thorn material to defendant and relevant to the issues and also in its rulings with respect to the examination of the witness Blanche Vine. The court erred in excluding answers to certain questions propounded to the witness James Vines, the defendant in the case, relating to a course of threats and intimidations that had been used upon him after his arrest. The court erred in overruling defendant's objection to the cross-examination of defendant with respect to the date of his wedding anniversary, which was wholly immaterial. The court erred in admitting in evidence the record in the divorce action of Ritts v. Ritts over the objection of defendant, and in permitting the clerk of court to testify over defendant's objection that no divorce decree had been entered in that action. The court erred in permitting the witness Reel to read a statement with reference to the homicide, after said witness had entered a plea of guilty to a charge that he (said witness) had committed the homicide. The court erred in refusing to admit the map or plat offered during the testimony of the witness Thorn, showing the conditions surrounding the mill of decedent. Volume 2, Second Edition, Wigmore Evidence; Burton v. State, 22 So. 585; Western Company v. Danner, 97 F. 882; Bunker Hill Company v. Schmeilling, 79 F. 263.

For the plaintiff and respondent there was a brief by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; William C. Snow, Assistant Attorney General, all of Cheyenne; R. E. McNally, of Sheridan; Otis Reynolds and Rodney M. Guthrie, of Sundance, and oral argument by Messrs. Shea, McNally, Reynolds and Guthrie.

The law applicable to defendant's plea in abatement is Section 33-408, R. S. The contention made is that the spirit of the statute referred to is: that if a jury is not in attendance, the defendant shall have a preliminary hearing. But our district courts remain in session irrespective of whether a jury may be in attendance, juries not being called except when the business of the court justifies it. Section 61-211, R. S., Stefani v. State, (Ind.) 24 N.E. 254. The purpose of a preliminary hearing is to determine the probable commission of crime. State v. Jefferies, (Mo.) 109 S.W. 614. Sec. 31-202, R. S., prescribes the terms of court to be held in Crook County. The statute relating to preliminary hearing is construed in Ackerman v. State, 7 Wyo. 504. A motion to quash and not a plea in abatement is the remedy as to defects apparent upon the face of the record, including defects in form of the indictment. Section 33-504, R. S. A plea in abatement may be made when there are defects in the record which are shown by facts extrinsic thereto. The distinction is clearly shown by the following authorities. 1 C. J. 28; State v. Adair, (Md.) 117 A. 20; Smith v. State, (Ind.) 124 N.E. 698. Defendant's motion for a change of venue was not supported by proper evidence to overcome the presumption that defendant could have a fair trial in Crook County. Maddox v. State, 158 P. 883; Leard v. State, 235 P. 243; Grace v. State, 234 S.W. 541; Outlaw v. State, 69 S.W.2d 120; People v. Hall, 30 P.2d 23. A motion for a change of venue is addressed to the discretion of the court. Elias v. Territory, (Ariz.) 76 P. 605. Numerical superiority in affidavits is not sufficient. Smith v. State, (Ind.) 115 N.E. 943; 16 C. J. 209; Browder v. State, (Okla.) 180 P. 571; Starr v. State, 115 P. 356; Griffin v. Commonwealth, (Ky.) 265 S.W. 327; State v. Stough, (Mo.) 2 S.W.2d 767; State v. Horne, 9 Kan. 119; Affidavits must show facts. Brown v. State, 203 S.W. 1031; People v. Krompheld, (Cal.) 157 P. 599; People v. Murphy, 114 N.E. 609; State v. Taylor, 26 P.2d 598. The existence of prejudice may be shown by the voir dire of the jury. State v. Bess, 60 Mont. 558; State v. Whitfield, 224 P. 559. The case of People v. Pfanschmidt, 104 N.E. 804 is clearly not in point. Conflicting testimony as to the existence of prejudice is not sufficient. State v. Rooke, (Idaho) 79 P. 82; Holmes v. Commonwealth, 44 S.W.2d 592; Dorger v. State, 179 N.E. 143. Defendant is incompetent to make such affidavit on such motion. Patterson v. State, 141 So. 195. The improper allowance of a challenge to a juror is not ground for a new trial in the absence of prejudice to defendant therefrom. 16 C. J. 1135; Territory v. Roberts, (Mont.) 22 P. 132. The evidence received as to a box kept by decedent, wherein he kept bonds, created the reasonable presumption that he was the owner of the bonds until the time of his death. Jenkins v. State, 22 Wyoming 67. No motion was made to strike this testimony. It stands in the record by consent of all parties to this case. People v. Petruzo, (Calif.) 110 P. 326. The denial of defendant's motion to strike certain portions of the testimony of Hodge, Barnard and Houston was in error. Abernathy v. State, (Texas) 74 S.W.2d 986; Subia v. State, (Ga.) 167 S.E. 726; Brock v. State, (Okla.) 32 P.2d 88; Carpenter v. State, (Ind.) 131 N.E. 375. As to the effect of a belated motion to strike see 16 C. J. 881. State v. Hummer, (N. J.) 65 A. 249; Warren v. State, (Ark.) 146 S.W. 477. The map prepared by witness Thorn was properly excluded. It was not prepared with any scale and even if admitted would not have added anything to the oral testimony. There was no evidence of an unfriendly relation between defendant and the witness Reel. As to whether defendant had a fair trial, we submit that the court must be guided by the rule laid down in State v. Wenger, 47 Wyoming 401. The judgment should be affirmed.

E. C. Raymond and J. T. McGurkin in reply.

Section 31-209 provides for the placing of the term in recess. A court cannot be in session while it stands in recess. The case of Ackerman v. State heretofore cited sustains our contention that defendant should have had a preliminary hearing. The affidavits presented in support of a motion for change of venue were in accordance with the statute. 89-1106 R. S. Defendant was entitled to a change of venue. 16 C. J. 215. The Oklahoma case of Bowder v. State, 180 P. 571 cited by respondent is based upon an Oklahoma statute and is not in point. The same is true of Starr v. State, 115 P. 356, also Brown v. State, 203 S.W. 1031. There was no evidence that decedent had any bonds after July 1. The Jenkins case is not persuasive, on the facts in the present case. The state relied upon the testimony of claimed accomplices to discredit the alibi of defendant. The testimony was that he was attending a picture show in Gillette on the night in question until after the hour of ten o'clock. This testimony is corroborated and not controverted, nor was the character of the witness assailed. After that hour, his movements were accounted for by his friend Charles Williams and Grace Williams, his wife. Counsel for defendant have had a most difficult time in attempting to obtain for this defendant the thing that we have understood that the law guarantees to him, namely, a fair and...