White v. State, 776

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtSCOTT, JUSTICE.
PartiesWHITE v. STATE
Docket Number776
Decision Date24 March 1915

147 P. 171

23 Wyo. 130

WHITE
v.
STATE

No. 776

Supreme Court of Wyoming

March 24, 1915


Rehearing Denied May 10th, 1915, Reported at: 23 Wyo. 130 at 142.

ERROR to the District Court of Natrona County; HON. CHARLES E. WINTER, Judge.

Plaintiff in error, O. W. White, was convicted of the crime of murder in the first degree and brings error. The material facts are stated in the opinion.

Affirmed.

W. B. Holliday and R. H. Nichols, for plaintiff in error.

The information is insufficient to charge a crime. The year in which the offense was committed is alleged as 19013, hence the information charges an impossible act and is null and void. (Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L. R. A. N. S. 251.) The Terrell case is cited in 90 Nebr. 67, 39 L. R. A. N. S. 716, and 255 Ill. 531. The Nebraska case follows the Terrell case. The defect was one of substance and cannot be waived. (Hughes on Procedure, 724; McGinnis v. State, 16 Wyo. 89, 91 P. 939; Rhea v. U.S. 50 P. 993.) The jury was guilty of misconduct. See affidavit of O. W. White attached to original papers, which affidavit was prepared in accordance with Section 6288, Compiled Statutes, 1910. (Mattox v. U.S. 146 U.S. 140.) The court erred in failing to instruct the jury relative to its duty in respect to the question of punishment. The verdict is insufficient to support the judgment and sentence. The record of judgment fails to show that defendant was informed of his conviction and inquired of whether he had anything to say why sentence should not be pronounced against him. (Section 6254, Compiled Statutes, 1910.) The record cannot be aided by presumption. (Iverslie v. Spaulding, 32 Wis. 394; Hughes Datam Posts of Jurisprudence, Case No. 46.)

D. A. Preston, Attorney General, for defendant in error.

No motion for a new trial is included in the bill of exceptions. If an affidavit was filed charging misconduct of the jury, such affidavit is not included in the bill of exceptions. Motions for new trials and affidavits cannot be made a part of the record by reference thereto in a bill of exceptions. (Improvement Co. v. Bradley, 6 Wyo. 171; Groves v. Groves, 9 Wyo. 174; Altschiel v. Smith, 9 Kan. 90; Tessier v. Crowley, 16 Neb. 369; Meredith v. State, 122 Ind. 514; Perkins v. McDowell, 3 Wyo. 328; R. R. Co. v. Wagner, 19 Kan. 335; Ulrich v. Harvey, 76 Ind. 107.) Unless so included they will not be considered on appeal. (Garbanati v. Co. Comm., 2 Wyo. 257; Boulter v. State, 6 Wyo. 66; Koppala v. State, 15 Wyo. 398; Davis v. Ogden, 17 Wyo. 207; Seng v. State, 20 Wyo. 222; Improvement Co. v. Bradley, 6 Wyo. 171; Groves v. Groves, 9 Wyo. 174; Altschiel v. Smith, 9 Kan. 90; Tessier v. Crowley, 16 Neb. 369; Meredith v. State, 122 Ind. 514.) Where misconduct of the jury is assigned it must be supported by affidavit. (Comp. Stats. 1910, Section 6288.) Had this been done we would cite Sections 6286, 6287, 6288, C. S. 1910; Vol. 2, Cyc., p. 24; Cook v. Garza, 13 Tex.St. 431; Ferris v. Bank, 158 Ill. 237; Gustaveson v. State, 10 Wyo. 300. The subject matter of assignment number three, to-wit: a failure of the court to instruct the jury as to punishment is not before the court for consideration. (Rule, Supreme Court of Wyoming, 13; White v. Sisson, 1 Wyo. 399; Boulter v. State, 6 Wyo. 66; Groves v. Groves, 9 Wyo. 174; Koppala v. State, 15 Wyo. 398; Seng v. State, 20 Wyo. 222.) If this assignment were properly presented we would cite 12 Cyc. 614; People v. Henderson, 28 Cal. 465; State v. Wilson, 141 N.W. 337 (Iowa) ; Ford v. State, 46 Neb. 390; Courrier v. State, 157 Ind. 104; Russel v. State, 57 Ga. 420. It is urged for the first time on appeal that the information charges an impossible act, to-wit: a murder committed in 19013 and the court being without jurisdiction to proceed, the judgment is insufficient to sustain the execution of defendant. (Terrell v. State, 165 Ind. 443; Robles v. State, 5 Tex.App. 347; People v. Weinstein, 255 Ill. 530; McKay v. State, 90 Neb. 63; McGinnis v. State, 16 Wyo. 72; Rhea v. U.S. 50 P. 993 (Okla.) .) The objection cannot be raised for the first time on appeal. (Terrell v. State, supra.) The case of Robles v. State, supra, is not in point and was governed by a Texas statute. (See Joel v. State, 28 Tex. 642.) In People v. Weinstein, supra, the objection was raised by motion to quash before judgment and the appellate court held that it was error to overrule the motion. In McKay v. State, supra, the objection was raised by motion to quash and the prosecution was granted leave to amend after the jury had been selected and sworn. While that decision may support the contention of defendant, it was modified on rehearing (91 Neb. 281) to the effect that the information was defective merely and not void. Where the information is defective only and no objection is taken by motion to quash, the rule announced in McGinnis v. State, supra, and Rhea v. U.S. supra, will not apply. Comm. v. Doyle, 110 Mass. 103, followed common law procedure. The question is governed by statute in this state. Section 6165, Comp. Stat. 1910, modifies the common law rule. The objection comes too late after verdict. (Connor v. State, 25 Ga. 515; McMath v. State, 55 Ga. 303; Jones v. State, 55 Ga. 625.) In Trout v. State, 107 Ind. 578, it was held that the point could not be raised for the first time on a motion in arrest of judgment. The error as to statement of the year the offense was committed is a mere clerical error (Williams v. Comm., 13 Ky. L. 893), and should have been attacked, if at all, by motion to quash. (Poole v. People, 24 Colo. 510; Stevens v. State, 5 Baxt. (Tenn.) 681; Price v. Comm., 4 Ky. L. 618.) The objection comes too late by motion in arrest. (Boos v. State, 105 N.E. 117 (Ind.) In the absence of a proper bill of exceptions it will be presumed that defendant was informed by the court of his conviction and inquired of, if he had anything to say why sentence should not be pronounced against him. (Bond v. State, 23 O. St. 349; State v. Hunter, 82 N.C. 153; Taylor v. State, 126 N.W. 752 (Neb.); Lilliard v. State, 151 Ind. 322.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

[23 Wyo. 135] SCOTT, JUSTICE.

The plaintiff in error, who was defendant below, was charged, tried and found guilty of the crime of murder in the first degree and sentenced to suffer the extreme penalty of the law, and from the conviction and judgment he brings error.

1. The charging part of the information and verification thereto are as follows:

"Comes now William O. Wilson, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that O. W. White, late of the county aforesaid, on or about the 12th day of August, A. D. 19013, in the County of Natrona, in the State of Wyoming, did then and there unlawfully, wilfully and feloniously and purposely and with premeditated malice, kill and murder one, Anderson Coffee, the said Anderson Coffee, being then and there a human being, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming. WILLIAM O. WILSON,

"County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming.

"State of Wyoming, Natrona County,

"I, William O. Wilson, County and Prosecuting Attorney of the County of Natrona, in the State of Wyoming, do solemnly swear that I have read the above and foregoing information by me subscribed, and I know the contents [23 Wyo. 136] thereof, and that the facts therein stated are true, so help me God. WILLIAM O. WILSON.

"Sworn to before me and subscribed in my presence, this 20th day of September, A. D. 1913, and I so hereby certify.

FRED E. PLACE, Clerk of Court."

It is contended that the information is fatally defective in that the time of the commission of the alleged offense...

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4 practice notes
  • Elliott v. State, 1831
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Marzo 1931
    ...v. State, 145 Ind. 276; Campton v. State, 140 Ind. 442; Richey v. State, 28 Wyo. 117; State v. Hall, 27 Wyo. 224; White v. State, 23 Wyo. 130; Koppala v. State, 15 Wyo. 398; Wilbur v. Territory, 3 Wyo. 268. In State v. Baish, 32 Wyo. 136, it is held that error in denying a motion to dismiss......
  • White v. State, 1584
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1930
    ...7483, 7487 C. S. Wilbur v. Territory, 3 Wyo. 268; In re Boulter, 5 Wyo. 329; Koppala and Lampe v. State, 15 Wyo. 398; White v. State, 23 Wyo. 130; State v. Sorenson, 34 Wyo. 90; State v. Spiegel, 39 Wyo. 309; State v. Pinkston, 33 Wyo. 426. And if objection had been raised, it could not hav......
  • State v. Spiegel, 1508
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Octubre 1928
    ...unlawful act. 16 C. J. 81. The point raised as to the day of the offense and the information is without merit. 7462 C. S. White v. State, 23 Wyo. 130. 14 R. C. L. 180. 31 C. J. 681. Ealum v. State, 239 P. 933. No exceptions were taken to the instructions of the Court. The jury apparently fo......
  • State v. Sorenson, 1234
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Diciembre 1925
    ...31 C. J. 871-873; State vs. Kusel, 29 Wyo. 287; 7483, 7487 C. S. Hollibaugh & Bunten vs. Hehn, 13 Wyo. 269; 31 C. J. 648; White vs. State, 23 Wyo. 130; 31 C. J. 881; failure to endorse plea on information does not invalidate conviction; Waldschmidt vs. Ter. 1 Wyo. 49; 16 C. J. 395. RINER, D......
4 cases
  • Elliott v. State, 1831
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Marzo 1931
    ...v. State, 145 Ind. 276; Campton v. State, 140 Ind. 442; Richey v. State, 28 Wyo. 117; State v. Hall, 27 Wyo. 224; White v. State, 23 Wyo. 130; Koppala v. State, 15 Wyo. 398; Wilbur v. Territory, 3 Wyo. 268. In State v. Baish, 32 Wyo. 136, it is held that error in denying a motion to dismiss......
  • White v. State, 1584
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1930
    ...7483, 7487 C. S. Wilbur v. Territory, 3 Wyo. 268; In re Boulter, 5 Wyo. 329; Koppala and Lampe v. State, 15 Wyo. 398; White v. State, 23 Wyo. 130; State v. Sorenson, 34 Wyo. 90; State v. Spiegel, 39 Wyo. 309; State v. Pinkston, 33 Wyo. 426. And if objection had been raised, it could not hav......
  • State v. Spiegel, 1508
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Octubre 1928
    ...unlawful act. 16 C. J. 81. The point raised as to the day of the offense and the information is without merit. 7462 C. S. White v. State, 23 Wyo. 130. 14 R. C. L. 180. 31 C. J. 681. Ealum v. State, 239 P. 933. No exceptions were taken to the instructions of the Court. The jury apparently fo......
  • State v. Sorenson, 1234
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Diciembre 1925
    ...31 C. J. 871-873; State vs. Kusel, 29 Wyo. 287; 7483, 7487 C. S. Hollibaugh & Bunten vs. Hehn, 13 Wyo. 269; 31 C. J. 648; White vs. State, 23 Wyo. 130; 31 C. J. 881; failure to endorse plea on information does not invalidate conviction; Waldschmidt vs. Ter. 1 Wyo. 49; 16 C. J. 395. RINER, D......

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