Trumble v. Territory

• Decision Date: 06 June 1889
• Citation: 3 Wyo. 280,21 P. 1081
• Parties: TRUMBLE v. TERRITORY
• Court: Wyoming Supreme Court

21 P. 1081

3 Wyo. 280

TRUMBLE v. TERRITORY

Supreme Court of Wyoming

June 6, 1889

Error to district court.

One Trumble was convicted of murder in the first degree, and brings error. Reversed.

This was an indictment for murder in the first degree, charging the plaintiff in error with the murder of a certain person whose name was to the grand jury unknown. The evidence upon the trial tended to show that about the 7th of October, 1886 at the town of Lusk, in the county of Laramie, the plaintiff in error was acting as deputy-sheriff and marshal of the town. That he arrested the deceased upon suspicion that he with others, had recently stolen a number of horses from parties in Johnson county. While the deceased was in his custody, Trumble claimed that the deceased told him that the parties having the horses in charge were camped about four miles from town. Trumble thereupon summoned a number of the citizens as a posse to assist him in arresting them and reclaiming the property. The deceased was put in a buggy to guide them to the spot, and Trumble rode on ahead to find the camp. Trumble returned, and, stating that the camp was not in the vicinity indicated by the deceased, procured a buggy whip, dragged the deceased from the buggy by the handcuffs which he had on, and struck him several blows with the whip to compel him to reveal where the camp was situated. The deceased appealed to the crowd for protection, and, upon their protest against such a proceeding, Trumble desisted from whipping him. The entire party returned to town, and the deceased was turned over to other parties, to be kept in custody, and was kept in custody of one person and another about the town, until the night of the 9th, when the deceased was in Whittaker's saloon, still in custody, and handcuffed. Trumble inquired where the deceased was, and being told, went into the saloon. He informed the deceased that he was going to release him, and took off the handcuffs. A conversation then occurred between Trumble and the deceased, which is stated with slight differences by various witnesses; all of them, however, substantially agreeing. Trumble told the deceased he was now a free man, and asked him if he was glad of it, and deceased said he was. Trumble asked deceased if he would take a drink with him, and deceased said he would. Trumble asked him if he was a friend of his or an enemy. Deceased replied that he had treated him so that he could not be a friend to him. Some other conversation then occurred about a saddle belonging to deceased, in which others also took part. Trumble again asked deceased if he was a friend of his, and deceased said he was not. Trumble asked what he was going to do about it, and deceased replied that he did not know that he was going to do anything about it. Some other conversation then occurred, in which others took part. Trumble again repeated his question to deceased, whether he was a friend or an enemy, and deceased replied that he was not a friend. Trumble drew a revolver, and pointed it at the deceased, working the hammer back and forth, and again repeated his question, and the deceased said: "I will have to be a friend to you now." Trumble then told the deceased he was a coward, again raised his pistol, and asked if he was a friend. The deceased said: "Do you want the truth? Well, Charley, I don't like you," and Trumble immediately shot him, his death being almost instantaneous. Trumble testified that deceased had threatened him, and that he was afraid of him, and that immediately before the shooting deceased threw his hand back as if to draw a pistol. The jury returned a verdict of guilty of murder in the first degree. The defendant's counsel presented motions for a new trial, and in arrest of judgment, and for the discharge of the defendant.

Judgment reversed and case remanded.

James J. Rowen and Wm. Ware Peck, for plaintiff in error.

W. R. Stoll and Hugo Donzelmann, for the Territory.

CORN J.

OPINION

CORN, J., (after stating the facts as above.)

Numerous errors are assigned upon the record in this case, but it will only be necessary for us to specially notice a part of them. The court charged the jury, among other things, that "where the fact of killing purposely by the use of a deadly weapon is proved, malice is to be presumed, unless it appears from all the evidence in this case that the killing was without malice, or was justifiable or excusable." The charge of the court is a monograph discussing the whole law of the case, and was not given to the jury by separate instructions, each setting out the law as bearing upon a particular phase of the case, and the principle above announced runs through the entire charge. In another part of the charge the court says, in defining "manslaughter:" "The first part of this definition is meant to cover a case when the killing is unlawful and intentional, but where the circumstances are such as to defeat the presumption raised by law as to malice." And in another part of the charge: "If you find the killing to have been proved, and that defendant did the killing, if the prosecution has failed to prove deliberation and premeditation beyond a reasonable doubt, the law presumes such killing to be murder in the second degree, in the absence of any further evidence. The burden then falls upon the defendant to show either that such killing was justifiable or excusable, or that it was attended by such facts as would limit such killing to the crime of manslaughter."

The principle here discussed is so essential in the law of homicide, so all-important as affecting the rights of a defendant upon trial for murder, that if it is erroneously stated, and the jury misdirected in regard to it, it cannot be doubted that the case should be retried by a jury properly instructed upon the question. That there is in the older decisions abundant precedent for such statement of the law there can be no question. That modern legal opinion has exploded the fallacy and cleared up the confusion which produced it, we think is equally clear. In a case where nothing else is shown but that the defendant intentionally killed the deceased by the use of a deadly weapon, it may perhaps be permissible to say that, such killing being proved, malice is presumed. But it is difficult to conceive of such a case. It would seem that in all cases the previous relations of the parties to...