State v. Williams
| Decision Date | 10 March 1917 |
| Docket Number | 2970 |
| Citation | 49 Utah 320,163 P. 1104 |
| Court | Utah Supreme Court |
| Parties | STATE v. WILLIAMS |
Appeal from District Court, Sixth District; Hon. J. H. Erickson Judge.
Al Williams was convicted of assault with a deadly weapon with intent to do bodily harm, and he appeals.
AFFIRMED.
Geo. T Bean for appellant.
Dan B. Shields, Atty. Gen., and Jas. H. Wolfe, and O. C. Dalby, Asst. Attys. Gen., for the State.
OPINION
Al. Williams, the defendant and appellant here, was, on the 1st day of June, 1916, convicted in the district court of Sevier county of the crime of assault with a deadly weapon with intent to do bodily harm, under an information charging an assault with intent to commit murder.
Substantially the facts established at the trial are as follows:
The defendant, at about 11:30 o'clock on the night of April 27, 1916, was a visitor at a rented one-room house or cabin in Richfield, Utah, of a Mrs. Clara McCabe, the wife of one M. J. McCabe. The McCabes, until recently before the offense complained of against the defendant, Al. Williams, had been living together as husband and wife and residing at Marysvale, Utah. The defendant had also lived at Marysvale until a short time before the 27th day of April, 1916; and Mrs. McCabe and the defendant, Williams, had come to Richfield at about the same time, and both were comparative strangers at Richfield.
The McCabes, while living together as husband and wife at Marysvale, had domestic difficulties and had separated, the wife, Clara McCabe, coming to Richfield and taking up her abode there alone at this small house or cabin. The defendant, Williams, on coming to Richfield at about the same time as Mrs. McCabe, had engaged his services to a liveryman, one George Emett, whose home was but a short distance from the cabin rented and occupied by Mrs. McCabe. During the month of March previous to the act complained of against the defendant, Williams, the husband of Mrs. McCabe, had expressed to one Mrs. Munson an intention to kill both his wife, Clara McCabe, and the defendant, Williams, and this threat had been communicated by Mrs. Munson to the defendant, Williams, and Mrs. McCabe as well, a few days after the threat was made.
During the early evening of April 27, 1916, both the defendant, Williams, and Mrs. McCabe had been visiting at the home of the Emett family at Richfield, a short distance from the Mrs. McCabe cabin, and at about nine thirty o'clock of that evening the defendant, Williams, accompanied Mrs. McCabe from the Emett home to her cabin, entering and remaining there with her alone until midnight. Dan Borg, the city marshal of Richfield, having been apprised by citizens of the conduct of the defendant, Williams, and Mrs. McCabe, in company with his brother, Hans Borg, deputized to assist the marshal, proceeded at about nine thirty o'clock to the McCabe cabin to investigate. The city marshal and his brother, Hans Borg, remained outside the cabin from about nine thirty until about eleven thirty p. m. observing the conduct and listening to conversation of the defendant and Mrs. McCabe, during which time the light in the cabin had been turned out; the marshal and Hans Borg at about eleven thirty left the cabin, crossed the street, had a consultation, and at about midnight returned to the cabin, then dark, and, finding the door of the cabin locked, proceeded, for the purpose of making an arrest of the defendant, to break open the locked door of the cabin for entrance, and on breaking open the door and throwing a flash light on the defendant and Mrs. McCabe, then in bed, the defendant immediately arose from the bed and fired two bullet shots from a thirty-eight caliber revolver at the marshal and his brother, both taking effect on the body of Hans Borg, one in the left forearm, the other penetrating the abdomen. The marshal and Hans Borg then withdrew from the door, and the door was then barricaded from the inside. The defendant and Mrs. McCabe remained in the cabin until about three o'clock the following morning, when the defendant Williams was placed under arrest by the sheriff of Sevier county.
At the time of the attempted arrest of the defendant Williams by the marshal and his brother, Hans Borg, no complaint had been filed charging either the defendant or Mrs. McCabe with crime, and no warrant issued for his arrest. The defendant, Williams, then had no acquaintance with the marshal or his brother, Hans Borg, as officers or otherwise, and both the defendant and Mrs. McCabe testified at the trial that they supposed the door of the cabin had been broken open by the husband of Mrs. McCabe for the purpose of killing them, and that the defendant had shot in self-defense.
Dan Borg, the city marshal, testified that after seeing and hearing what he and his brother, Hans Borg, did see and hear at the cabin, and before the door was forced open, they had become convinced that the defendant and Mrs. McCabe were then having illicit sexual relations.
As to the foregoing statement of facts there is but little, if any, controversy, disclosed by the record on appeal.
In prosecuting an appeal to this court, the defendant makes assignment of twelve errors. We will here discuss only such as appear to be material and as are urged and apparently relied upon by the appellant for reversal.
1. First, it is contended that the trial court committed error in denying defendants motion for a continuance of the trial. The application was made to the court predicated on the affidavit of the defendant, stating in a general way that he was unprepared to go to trial; that he was impecunious and unable to pay witnesses for attendance upon trial; that one of his witnesses would be unable to attend trial by reason of the physical infirmities of the witness.
It has been so repeatedly held by this court that the granting of a continuance in a criminal case is a discretionary matter with the court, and will not be reversible error, unless the courts refusal to grant a continuance is clearly prejudicial, that we do not deem it worth while to discuss it here.
The defendant's affidavit does not in our opinion, appear to be of sufficient merit to have justified the court in granting the motion; besides, the record in no way discloses that the defendant was prejudiced by the court's refusal to grant a continuance, and the court's refusal was amply justified.
2. The second alleged error complained of by appellant was in the court permitting W. A. Cheal, a witness for the state, to testify as to what occurred, the condition of, and what was said and done by, Hans Borg immediately after his having been shot by defendant. To much of the testimony of this witness objected to, no exception was taken by appellant at the time nor after its introduction. The testimony relates to the effect of the shots and the nature of the wounds received by Hans Borg at the time of the shooting. It is not at all disputed by the defendant that the shots were fired by him; and we cannot conceive how this testimony could in any manner have been prejudicial to defendant even had it not been permissive, as in our opinion it was.
3. The third and fourth assignments of error relate to like testimony given by the states witness Anderson and the failure of the court to instruct the jury not to consider the evidence. Here again we are of the opinion the court committed no error, and certainly appellant has no right to complain after failing as he did do, to take exceptions to the rulings and instructions of the court when given.
4. In his fifth assignment of error the appellant complains of the court in denying his application for an instruction to the jury to return a verdict in his favor of not guilty, at the conclusion of the state's case. Under the evidence then produced and submitted by the state the question as to whether the defendant was innocent or guilty, as charged in the information, or was guilty of any of the lesser crimes included thereunder, had become a question of fact to be passed upon by the jury under proper instructions, and was not a question of law to be determined by the court; and we are of the opinion that this motion of the defendant was at the time properly denied by the court.
5. Appellant for his sixth assignment of error complains of the court in overruling his objection taken to the question propounded by the state to him on cross-examination as follows:
"Well, now isn't it a fact Mr. Williams that there was some trouble at Marysvale in the latter part of the month of March when Mr. McCabe came to the residence of himself and Mrs. McCabe in Marysvale in the early morning when you and Mrs. McCabe were placed under arrest?"
This assignment of error, and also the assignments numbered 7, 8, and 8 1/2, were inquiries relating to the conduct and associations of the defendant with Mrs. McCabe, and may be considered together.
It is well to bear in mind that the defendant had offered himself as a witness in his own behalf; that he had been testifying on his direct examination, not only as to his past life and conduct in a general way, but more especially concerning his conduct and associations with Mrs. McCabe at the time and preceding the alleged offense for which he was being tried.
Comp. Laws 1907, Section 5015, provides:
"If a defendant offers himself as a witness, he may be cross-examined by the counsel for the state the same as any other witness."
It is not contended by appellant that the questions complained of in any manner tended to degrade him, and had the witness done so he could have claimed his personal privilege, which he did not attempt to do either personally or by counsel. The state had a right to...
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