State v. De Weese

• Decision Date: 08 March 1918
• Docket Number: 3188
• Citation: 172 P. 290,51 Utah 515
• Court: Utah Supreme Court
• Parties: STATE v. DE WEESE

172 P. 290

51 Utah 515

STATE v. DE WEESE

No. 3188

Supreme Court of Utah

March 8, 1918

Appeal from District Court of Salt Lake County, Third District; Hon J. Louis Brown, Judge.

Howard De Weese was convicted of murder in the first degree. He appeals.

AFFIRMED.

Burton W. Musser and John A. Beck, Jr., for appellant.

Dan B Shields, Atty. Gen., and James H. Wolfe and O. C. Dalby Asst. Attys. Gen. for the State.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

The defendant, Howard De Weese, charged in the information as D. C. Robbins, was convicted in the district court of Salt Lake County of the crime of murder in the first degree, committed at Salt Lake City on the 22d day of September, 1916. The defendant was sentenced to be executed, and has appealed to this court, assigning numerous errors alleged to have occurred during the impaneling of the jury and the trial of the case. These alleged errors relate to rulings of the court in impaneling the jury, the admission of certain evidence over the objections of the defendant, and remarks of the prosecuting attorney, alleged to be prejudicial, in his closing argument to the jury. More specific reference to these alleged errors will be made later on in this opinion.

The victim of the homicide was the wife of the defendant, and the circumstances attending the commission of the crime conclusively show that it was a most brutal and atrocious murder. The murder was committed at an apartment house, No. 455 1/2 South Second East Street, Salt Lake City, early on the morning of September 22, 1916.

On the 20th day of September, two days before the murder, the defendant and his wife, under the names of Mr. and Mrs. D. C. Robbins, rented the apartment from the proprietress, Miss Hattie Anderson, who was afterwards a witness in the case. The entrance to this apartment was from the rear. It consisted of a front room, which was also used as a bedroom, containing a sanitary couch about the size of an ordinary double bed, covered by a mattress, sheets, pillow, etc., also a dresser, some chairs, and probably other furniture not necessary to describe. The other room was used as a kitchen, containing a gas range and other kitchen furniture. There was also a bathroom used by the occupants of this apartment in common with other tenants in the building, and a common hall leading to the several rooms, so that each of the occupants had access to the bathroom without disturbing the other occupants, and likewise to the doors of each of the other apartments. Defendant and his wife rented the apartment on the 20th day of September, as above stated, and paid the rent for one week in advance. They then left the apartment, returning later in the day with their baggage. But little was seen or heard of defendant and his wife from then on. The witness Palmer saw him the next day, and the witness Paulson saw him leaving the premises on the early morning of the 22d, the day upon which the murder was committed. Nothing was seen or heard of either the defendant or his wife after the defendant was seen by the witness Paulson until about noon of the 24th, more than two days after the murder was committed. On that day Miss Anderson, the proprietress of the apartments, suspecting that something was wrong, or at least feeling concerned at not seeing the parties who had rented the apartment, in company with Mr. and Mrs. Paulson, who occupied the apartment below, unlocked the door to defendant's apartment and entered the room. They were shocked and horrified at what they discovered. They found that defendant's wife had been murdered. They made no investigation in detail at that time, but immediately called the sheriff and other officers. Upon examination it was found by the officers that the deceased was lying on the bed, covered with bedclothing. A flatiron with a cloth wrapped around it was lying by her head, resting against it; her head was badly beaten; her face was crushed, nose broken, and the blood of the victim had spattered the walls of the room above her head and all over the pillow. There was also blood on the flatiron. The flatiron belonged to this apartment, and was kept in a little closet in the room. Two drawers of the dresser in the front room were open--the room otherwise did not appear to have been disturbed. There was some jewelry on the finger of the deceased, and some on the dresser above referred to. Various other articles and trinkets not necessary to describe were found by the officers. There was never any question in the minds of the officers or any one else acquainted with the situation but that the woman had been foully and brutally murdered while lying on her bed in the front room on this apartment, but who the murderer was now became the absorbing question. Everything possible seems to have been done to destroy every evidence of the identity of the parties. The face of the deceased had been beaten and crushed beyond all recognition. The room had been stripped of practically everything that could possibly throw light upon the identity of the persons who had rented the apartment or the person who had committed the murder. Suspicion naturally rested upon the defendant. He had disappeared; his whereabouts were unknown; no trace had been left behind. Every imaginary clew was followed, but, as there was no tangible clew to follow, all effort to run down the perpetrator of the deed was abortive, and the mystery surrounding the commission of the crime remained unsolved. On the 23d day of December, 1916, three months and one day after the date upon which the murder was committed, the defendant, then being in the city of Chicago, communicated to the witness Larkin, chief of detectives of the police force of that city, the fact that he was the husband of the murdered woman, and, while protesting his innocence, assumed to communicate to the detective all that he knew respecting the crime. The officers of Salt Lake City and county were immediately notified, and at once proceeded to Chicago, and returned with the defendant, who voluntarily accompanied them back to Salt Lake. On their return they came by way of Denver, and there procured a suitcase of the defendant which had been shipped to that point from Salt Lake City on the morning when the murder was committed. Many admissions were made to the officers by the defendant as to the kind of life he had previously led. With it all, however, he protested from beginning to end that he was innocent of the murder of his wife.

As substantially all that is material in these admissions of the defendant is covered by and included in the document written by him, hereinafter known as Exhibit 39, the substance of which will be hereafter referred to in its proper place, we make no further statement at this time concerning these admissions. Exhibit 39 is a twenty-one page manuscript found in a safety deposit box in a Chicago bank after the defendant was brought to Salt Lake City. A safety deposit key was found in defendant's necktie, and after some reluctance he told the officers where the box could be found, and gave them authority to have the contents forwarded to Salt Lake City. Other manuscripts, in the form of letters the defendant had written to officers, were found in the box, but their materiality is of minor importance.

Some matters pertaining to the history of the principal parties to this tragedy, not heretofore detailed, are of sufficient importance to be stated in this connection. The defendant first met the woman, whom he afterwards married, and who was the victim of the tragedy, in New York City in 1914. She was then married to a Russian Jew named Fisher, who was engaged in keeping a rooming house and haberdashery combined. Defendant became acquainted with these people, and later on became their lodger in the rooming house referred to. Defendant and the woman fell in love, and in November, 1915, eloped and came West to Reno, Nev., accompanied by her son Max Fisher and his wife. They arrived at Reno and took up their residence for the purpose of procuring for her a divorce. They brought with them jewels approximately to the value of $ 2,000. These they mortgaged to a bank in Reno, and secured a loan of $ 750 with which they engaged in the rooming house business while acquiring residential qualifications. During this period defendant made frequent incursions into other sections of the country, sometimes remaining absent for several days. On his return he usually had jewels to pawn or dispose of, and by this means it is estimated, by his own admission and testimony of his witness, that during the six or eight months he was in Reno he had accumulated in all $ 10,000 or $ 12,000 worth of jewelry. At the end of six months after arriving in Reno Mrs. Fisher procured a divorce, and the next day she and the defendant were married. The rooming house business was a losing venture and was abandoned. They took a trip for two or three weeks to California, then returned to Reno, wound up their business, and shipped some trunks, with clothing and other articles, to New York to Max Fisher, who had returned to that city. Defendant and his wife, ostensibly en route to the East, stopped over in Salt Lake City, as heretofore stated, September 20, 1916, and rented the apartment in which she was afterwards murdered.

The first assignment of error relied on by appellant is the refusal of the court to sustain his challenge of the juror Caldwell. In answer to defendant's attorney, the juror while being examined on his voir dire, stated in various forms substantially that, if the defendant could prove his innocence, it was his duty to do so. He also stated in effect, that if he did not prove his innocence he (the juror)...