State v. Wenger

• Decision Date: 11 December 1934
• Docket Number: 1873
• Citation: 47 Wyo. 401,38 P.2d 339
• Parties: STATE v. WENGER
• Court: Wyoming Supreme Court

38 P.2d 339

47 Wyo. 401

STATE v. WENGER

No. 1873

Supreme Court of Wyoming

December 11, 1934

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

Jacob W. Wenger was convicted of arson, and he appeals.

Affirmed.

For the appellant there was a brief by D. R. Higley, of Rawlins.

The entire evidence upon which conviction is sought consists of the alleged threat made by defendant, to be carried into effect only in the event of a prosecution which never materialized. It is insufficient to support conviction. State v. Morris, 41 Wyo. 128; Gardner v State, 27 Wyo. 316; Smith v. State, 40 Wyo 143. The law of opportunity became a part of the essential law of the case, without instruction upon which the defendant was deprived of a fair trial. Gardner v. State, supra. It is the duty of the court to instruct the jury on the essential law of the case, and of such matters of law without which the defendant will not receive a fair trial, or without which a jury of laymen would be apt to go wrong. Section 7532, C. S 1920.

For the respondent, there was a brief by Ray E. Lee, Attorney General; O. O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne.

Appellant failed to comply with Rule 37 in not filing a proper abstract of the record. Appellant did not offer any instruction on the sufficiency of the evidence. There were three instructions given on circumstantial evidence. Under the circumstances shown by the evidence, the jury was warranted in its conclusion of guilt. Carlton v. People, (Ill.) 37 N.E. 234; State v. Pienick, (Wash.) 90 P. 645. The jury was properly instructed and their verdict was justified by the evidence.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

Jacob W. Wenger, the defendant, was convicted of the crime of arson, and from the sentence imposed upon him he appeals. The main contention made is that the evidence in the case is insufficient to sustain the conviction herein. The record discloses, in outline, the following:

The defendant and Ned F. Steel were neighbors in Carbon County in this state, both owning a farm. The latter, in the fall of 1931, desired to go to St. Joseph, Missouri, in order to engage in selling school supplies for a firm in Kansas City. He accordingly entered into a written agreement with the defendant whereby the latter undertook to take care of Steel's ranch, the buildings, chickens and the live stock thereon, until Steel's return. The defendant further agreed that he would do some plowing for Steel, and that he would not, with some exceptions, sell any of the grain on the place without payment therefor in cash which was to be turned over to Steel. The latter went away as he had planned, leaving on his place a large amount of grain--some 726 bushels of oats, 500 bushels of wheat, and 400 bushels of rye. Defendant moved into Steel's house with his personal belongings. During the winter some correspondence took place between him and Steel, whereby the latter was informed that defendant had sold some of the grain without accounting therefor. Steel, in answering, referred to the fact that defendant might be guilty of embezzlement, but stated that they would adjust the matter upon his return. He returned during the early part of June, 1932, and several times demanded an accounting from defendant and payment of what was due him, finding, according to his testimony, that the defendant had, during the winter, disposed of substantially all of the grain which had been left on the place. That fact is disputed by defendant to some extent, but he admitted that he had sold grain of the value of over $ 200, for which he had not, but should have, accounted to Steel. He claims that he left his account book in the room where he slept, informing Steel that he might examine it to find out to whom he had sold the grain, and the amount thereof. But Steel testified that he was unable to find out anything from defendant; that the latter acted surly and overbearing. More or less trouble arose between the parties, probably on account of the sale of the grain, Steel testifying that on June 16, 1932, he was attacked by defendant with a knife. This was denied by defendant. The arson, if committed, took place on the night of July 3rd and 4th, 1932, at about one o'clock during that night, by burning down Steel's barn. About supper time on the 3rd, a man by the name of Elmes, a neighbor, came over to Steel's place. Steel and the defendant were both present, the latter still living there. Elmes and the defendant apparently had some accounts to adjust between them, and the former came over with that object in view. But, according to his testimony, he was unable to get the defendant to produce his books, and that he acted surly. A fight between them, explained differently by the witnesses, ensued. During it Steel telephoned for Daugherty, a deputy sheriff. The latter, together with Jessmer, his assistant, arrived at Steel's place about 10:30 o'clock p. m., but would not make any arrest in view of the fact that the fight had not taken place in his presence. Steel offered to go before a justice of the peace and swear out a warrant against Wenger for disturbing the peace. He further told defendant that they would settle their differences in the office of the prosecuting attorney, and he also wrote out and gave to defendant a notice to quit his premises within twenty-four hours. With that as the situation, Steel and Elmes left in the former's automobile, which was taken out of the garage, a part of the barn. Daugherty, the deputy sheriff, and his assistant, started away about the same time, leaving the defendant alone at Steel's place. That was about 15 minutes before midnight. Steel and Elmes, instead of going directly to a justice of the peace, as they had intended, changed their plans and went to Elmes' house. But before going to sleep, they discovered that Steel's barn was on fire. That was about one o'clock of the morning of July 4th. Again the deputy sheriff was called. He, together with Jessmer, his assistant, arrived at Steel's place about 3 o'clock in the morning, pounded on the house at the north side, but no one answered, although, as the witness Jessmer testified, the knocking was loud enough to awaken anyone in the house. Defendant claimed that he did not awaken because he had not slept to any extent during the previous night. After seeing Steel and Elmes, and finding out that defendant slept in a room on the west side of the house, the deputy sheriff and his assistant returned to Steel's place and again pounded on the house, calling for defendant. In a few minutes the latter appeared, only partially dressed. He was placed under arrest, and a gun was found on the pillow of his bed. Some of the testimony of the deputy sheriff as to defendant's demeanor at that time is as follows:

"Q. How was he dressed? A. He had on overalls and shirt and socks. Q. What conversation followed after you got in? A. I asked Mr. Wenger what had happened there, and he said 'nothing,' and I asked him what had happened to the barn, and he said 'What barn?' and I said 'Ned's barn,' and he looked around--he had his back to the south window in the house, and he said 'It's gone, isn't it?' Q. What else did he say, if anything? A. I believe that's all he said right then. Q. Did he express any feeling with regard to the destruction of the barn? A. No sir. Q. What was his action? A. Nothing out of the ordinary. He just stood there. Q. In no way excited? A. No sir. * * * * Q. Did Mr. Wenger ask you why you had come up there? A. No. sir. Q. Did you place him under arrest? A. Yes sir. Q. Did he ask you why? A. No sir. * * * * Q. What time did you start for Dixon? A. About four o'clock. Q. And you had Mr. Wenger with you? A. Yes sir. Q. Did you carry on any conversation with him going down there? A. A little. Q. What did he say--what remarks did Mr. Wenger make about this case? A. I think he remarked about some things that he had lost in the fire. Q. Do you recall what he said? A. He said he lost six sets of harness and a wagon and a rack. Q. What else did he say? A. He said he supposed that Mr. Steel would charge him with burning the barn, along with the other charge. * * * Q. Was he calm? A. Yes sir. * * * Q. When Mr. Wenger let you in the back door that morning on your second call, what was Mr. Wenger's appearance, his facial expression or appearance? A. Nothing unusual--he just looked natural to me. Q. Did he look or did he act sleepy? A. No sir."

According to the testimony of most of the witnesses, the night of July 3rd to 4th was calm, but dark. There was no lightning. Elmes and Steel and the deputy sheriff saw no fire at the place when they left shortly before midnight. Nor did the defendant. According to the testimony of a neighbor, who traveled along the public road about 200-300 feet from the barn, at about midnight, there was no fire at Steel's place at that time. Other witnesses met no one along the road about that time who might have gone to Steel's place. The deputy sheriff found no tracks of any one who might have burned the barn. There was a forge near the southeast corner of the barn which had been used about five o'clock on the afternoon of July 3rd, but the fire had been put out with a bucket of water. The testimony shows that the east side of the barn was still burning, while the west side had been reduced to nothing but burning coals. The nearest point of the house, where defendant slept, was about 75 feet from the barn, and toward the northwest. Not even the poles of a corral which stood close to the barn on the west were burned. The testimony further shows that defendant had a conversation with the witness Conners in March,...