Durham v. State

210 P. 934, 29 Wyo. 85, 1922 Wyo. LEXIS 12

• Court: Wyoming Supreme Court
• Decided: December 15, 1922
• Docket: No. 1081
• Status: Published

Opinion

Blume, Justice.

The defendant was charged with the unlawful killing of Jack Delury and convicted of murder in the second degree. On this verdict sentence was pronounced. She now brings error proceedings to review the judgment of the court below.

The defendant, a woman about 42 years of age, and a barber by trade, became acquainted with the deceased, a man about 45 years of age, at Burkburnett, Texas. She became engaged to him to be married during the summer of 1920. Many difficulties arose between them, the deceased often getting drunk, often asking the defendant for money, and often, as shown by the testimony, quarrelling with the defendant, threatening her with violence, abusing and maltreating her. As a result, so the defendant claims, she was in fear that deceased would kill her or inflict great bodily harm upon her. On May 15th, 1921, defendant, so she claims, was mistreated by deceased on the streets at Oil City, Texas, possibly as a result of the refusal of defendant to give him money. Subsequently during that day deceased cut up, mutilated and destroyed clothing and other personal property of the defendant, the testimony in regard to which was not admitted in evidence. Immediately thereupon the deceased left Texas and came to Casper, in this state where the homicide in question occurred. The defendant, it seems, immediately after the destruction of said personal property, endeavored to find the abode of the deceased and desired him to be arrested or make restitution in value of the property destroyed. Finally discovering his whereabouts, and unable to get the authorities in Texas to bring back the deceased, she, armed with a gun, followed him to Casper, arriving in that city in the evening of June 15th, 1921. The following evening she encountered the deceased at a street-carnival held near the “sand-bar” in said city, and shot him with a gun, as a result of which the deceased soon died. The defendant pleaded self-defense. Other facts in the case will be related further on in the opinion.

1. Error is assigned because no continuance was, on application, allowed. The motion for such continuance was based on the ground that depositions which were being taken on behalf of the defendant had not arrived. These depositions, however, shortly after the making of the motion and toward the beginning of the trial, duly arrived and were offered in evidence and used for and on behalf of the defendant. If, therefore, there was error because the continuance was not granted, it was clearly cured by the arrival and use of the depositions.

2. Error is also assigned that the witness ITenry T. Mc-Henry was not allowed to testify to certain threats against the person of defendant and communicated to her. The record is not at all clear that the court struck out such testimony. Even counsel for defendant, on page 18 of his brief, admits that no objections were made to evidence of threats against the person of the defendant. We think that the record, on the whole, shows that the evidence thereof was not taken from the jury.

3. The defendant, as before indicated, offered testimony to show that immediately before leaving Texas and going to Casper, deceased cut, slashed and destroyed the personal belongings, barber outfit and other personal property of defendant and that he had made previous threats to do so. The testimony was excluded and error is assigned by reason thereof. We should, in the first place, perhaps say that we do not regard the testimony of the same importance as do counsel for defendant. Considerable testimony of previous threats against, and previous violence toward, the person of deceased was shown. The evidence of the destruction of property and threats in relation thereto would, therefore, at most be cumulative on the points for which testimony of threats is admitted. Again, destruction of defendant’s property, or threats in relation thereto, would not necessarily show that the deceased also had an intention, or was inclined, to do violence to the person of defendant. The evidence would, perhaps, have a tendency to show the worthlessness of the deceased, but that fact alone would not justify or palliate the homicide.

Where the proof justifies the giving of a charge on the law of self-defense, defendant may, for the purpose of showing deceased to have been the aggressor and the killing to have been necessary in self-defense, introduce evidence to show that deceased entertained hostile feeling towards him. (21 Cyc. 962.) Uncommunicated threats are evidence of the mental attitude of the deceased toward the accused; that is true also of communicated threats, and, further, evidence of.the latter sheds light upon the mental attitude of the accused toward the deceased when the homicide occurred. (See State v. Evans, 33 W. Va. 426, 10 S. E. 792; Wigmore on Ev., § 111.) In the case of Amos v. State, 14 Ga. App. 589, 81 S. E. 903, it was held that testimony of the breaking up of personal property should not be excluded, and the same rule should, no doubt, be applied to threats to destroy such property, where such evidence tends to show the state of feeling of the parties, or either of them. Such evidence may in certain cases be quite remote. The Supreme Court of Arkansas, dealing with this subject in Parsley v. State (Ark.) 235 S. W. 797, said:

‘"Of course where the threats are too remote, both in circumstance and time, to afford any reasonable presumption or inference of connection between the occasion when the threats were made and the difficulty under investigation, they are not admissible. (Turner v. State, 128 Ark. 565, 195 S. W. 5; Fowler v. State, 130 Ark. 365, 197 S. W. 568.”

Wharton on Crim. Ev., § 918, lays down this rule:

"Where the difficulty is followed by a cessation of hostilities, the circumstances of the previous difficulties are of little value. ’ ’

Wigmore on Ev., § 248, says that the true solution is to exercise discretion, and to admit in evidence facts of previous difficulties when common sense tells us that they could legitimately affect a defendant’s apprehension. We think this statement correct and to be equally applicable to threats made by the deceased against the accused and eommuni-eated to tbe latter. If such previous threats, or other facts of the same psychological value, are not known to the accused, but common sense tells us that they would legitimately tend to show the mental attitude of the deceased toward the accused at the time of the homicide, then they should be admitted in evidence. In eases of doubt, such testimony should be admitted, for, generally speaking, remoteness of threats or difficulties between the parties from the date of the homicide does not affect the competency thereof as evidence, and goes only to the weight thereof. (State v. Wilson, 250 Mo. 323, 157 S. W. 313.) But we need not determine as to whether the facts in question, relative to the destruction of personal property and threats in relation thereto, should have been admitted in evidence or not. The question before us is whether there was error, if error there was, that is so prejudicial as to require a reversal of the case. Let us examine a few of the facts with that in view.

The deceased, immediately upon destroying the property, left Texas and went to Casper. There are no circumstances or facts shown in the record which would tend to show that he ever again expected to see the deceased. He had voluntarily separated himself from her by hundreds of miles. A month intervened between the destruction of the property and the homicide. The defendant, knowing that deceased had left, attempted to discover his whereabouts and when she succeeded, endeavored to get the local authorities in Texas to cause the deceased to be brought back to that state. The latter refused to do so. The defendant thereupon, armed with a revolver, herself left Texas, sought out the deceased in Cas-per, found him and tried to get him arrested, but failed. In the evening of that day — according to her testimony— she encountered the deceased at a street carnival, and when he made a move with his left hand as if to strike her, seem-, ingly with a knife, she, apparently calm, cool and collected, instantly shot him, without making an outcry, although a multitude of people were present who might have rendered her instant aid. Under these facts, we think the testimony in question too remote to justify us in reversing the ease on account of its exclusion.

4. The only instruction given which presented the theory of self-defense was the following:

“The court instructs the jury that the right to defend one’s self against danger, not of his or her own seeking, is a right which the law not only concedes but guarantees to all men and women. The defendant may, therefore, have killed deceased and still be innocent of any offense against the law. If, at the time she shot deceased, she had reasonable cause to apprehend on the part of deceased, a design to do her serious personal injury, and there was reasonable cause for her to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger, sh'e shot and at the time she did so, she had reasonable cause to believe, and did believe, it necessary for her to shoot in the way she did to protect herself from such apprehended danger, then, and in that case, the killing was not felonious, but was justifiable, and you ought to acquit her upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actually real, or that the danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe, and did believe, these facts. But before you acquit on the ground of self defense, you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the case, you cannot acquit in such case on the ground of self-defense, even though you may believe that defendant really thought she was in danger. ”

The defendant asked the court to give instruction “A,” reading as follows:

“The court instructs the jury that if you shall find that the deceased made threats against the life of the defendant, or threats to commit great bodily injury on the defendant, and that snob threats had been communicated to the defendant, before the difficulty in which deceased lost his life, and that defendant had a reasonable cause to believe and did believe at the time she shot the deceased, that said deceased was then about to put such threats into execution, and acting upon such danger, as it reasonably appeared to the defendant at the time, viewed from her stand point, and if you shall find from the evidence that the deceased at the time of the shooting was a man of great physical strength, much superior to that of the defendant, and that he was a man of dangerous disposition, and under such circumstances she shot and killed the deceased, she would be justified, and you should acquit the defendant. ’ ’

It will be noted that the instruction given contains no specific reference to threats made by the deceased, although the jury was not at all thereby forbidden to take the testimony concerning these threats into consideration in determining as to whether defendant had reasonable cause to apprehend danger to her. We think, in fact, that particularly in view of the prominence given to that testimony in the trial, the jury could not fail to so take it into consideration in applying the instruction given by the court. Still the point is as to whether the court should have gone further. The law is well settled that where there is evidence tending to show that deceased made threats against the defendant which were communicated to him, and that deceased brought about the difficulty and was in fault at the time of the killing, the court must, when a proper instruction is asked, instruct the jury as to the law governing threats. (State v. Pruett, 24 N. M. 68, 172 Pac. 1044.) That seems to be the law also in proper eases as to recent uncommunicated threats. (State v. Rader, 94 Or. 432, 186 Pac. 79.) Let us then turn to the instruction asked to determine its correctness. The first thing that strikes us is the prominence sought to be attached to the question of threats. Now, no one has a right to kill another simply because he has made threats against him. (Wharton on Homicide (3rd Ed.) § 242.) Nor does the mere belief or fear engendered by such threats on the part of one person that another designs to kill him justify the killing of the latter. (Whart., supra, § 240.) In order that such threats previously made may serve as justification under a plea of self-defense, there must be, at least apparently, such a demonstration of an immediate intention to execute them, as, taken in connection with such threats, would naturally induce a reasonable belief that the person threatened would lose his life or suffer serious bodily harm, if he did not immediately take the life of the person making them. (Whart., supra, § 242; Wigmore on Ev., Sec. 110; Garner v. State, 28 Fla. 113, 9 So. 835; 29 Am. St. Rep. 232.) Hence an instruction asked which omits the question of an overt act to carry into effect a threatened assault, has been held to have been properly refused. (Morrisette v. State, 16 Ala. App. 32, 75 So. 177.) The instruction asked in the case at bar is subject to the same objection, particularly in view of the prominence therein given to the subject of threats. Further, it is entirely silent on the subject as to how the jury is to determine whether the defendant had reasonable cause to believe- and did believe that deceased was about to carry out his threats. That must be determined, of course, from the facts and circumstances shown in evidence. It may not have been the intention to convey, in the instruction asked, the idea that such belief might, by the jury, be found from the evidence of threats alone, yet that construction might be gathered therefrom, and hence the instruction was misleading and properly refused. (State v. Calhoun, 23 N. M. 681, 170 Pac. 750.)

The law of self defense is founded upon necessity. To justify a homicide, it must appear that the slayer was in great peril of death or serious bodily harm, or had reasonable ground for believing and did believe, that he was in such peril and that the killing was necessary to avert such peril, and that no other reasonable means of avoiding it was open to him. (Wharton, supra, § 225; People v. Fucarino, 104 App. Div. 437, 93 N. Y. S. 689; Barnbill v. State, 56 Fla. 16, 48 So. 51.) In Thomas v. State, 74 Ark. 431, 86 it was held that a person menaced by another with a gun is not justified in shooting the other, if he can prevent him from shooting by taking hold of the gun with both hands. In the ease of State v. Stockhammer, 34 Wash. 262, 75 Pac. 810, it was held that if taking a life can be prevented by giving warning, that must be given. Threats alone, as stated, do not justify the taking of life. Not only must there be some hostile demonstration, or apparent demonstration of an intent to carry out the threats, but this must be coupled with ability to take life, or inflict grievous bodily harm, before extreme measures become defensive and can be resorted to. (Whart., supra, § 242; Karr v. State, 10 Ala. 4, 14 So. 851; 46 A. S. R. 17; People v. Smith, 164 Calif. 451, 129 Pac. 785.) These cases but illustrate the general principle that the element of necessity must appear before a homicide, on the theory of self-defense, can be held to be justified. We do not think that the instruction asked in the case at bar contains any reference to that element, or at least not in such form that the jury could plainly understand therefrom that it must be present in order to justify the defendant in killing the deceased.

5. Defendant set forth as one of the grounds for a new trial, in her motion made for that purpose, the fact of newly discovered evidence — that of A. J. Martin. The latter, in his affidavit, attached to the motion, set forth that he was present at the affray; that he sawr the deceased jostle the defendant, saw him stand in a braced position, one foot in advance of the other; that deceased drew back his arm with his fist closed and stood facing the defendant as if to strike a blow. The defendant herself, in her affidavit attached to the motion, swore that she had no knowledge or information as to the testimony of said A. J. Martin, until several days after her trial had ended and that she had never seen or known him. That is all the showing made on this subject.

It is a principle of law, firmly established, that a new trial will not be granted because of newly discovered evidence, where the party seeking it does not show that he exercised due and reasonable diligence in attempting to pro-rare the evidence in time for use at the trial. (12 Cyc. 737; 29 Cyc. 886; 20 Standard Ency. of Proc. 567; People v. Lim Foon, 29 Cal. App. 270; 155 Pac. 477; Talley v. State, 18 Ariz. 309, 159 Pac. 59.) And this is so, even though the defendant is confined in jail, at least unless it appears that there was no outside assistance available. (Gordon v. State, (Tex. Crim.) 224 S. W. 894.) The applicant for a new trial should make reasonable inquiry, where necessary, before the trial to learn what persons were present at the time of the occurrence in question (29 Cyc. 892), and if the facts sought to be shown by the new witness could have been shown at the trial by other witnesses, then the finding of such new witness will not furnish a ground for a new trial. (Crozier v. Cooper, 14 Ill. 139; Hanley v. Life Ass’n., 69 Mo. 380; Slattery v. Supreme Tent, 19 Pa. Super. 108; Dyk v. De Young, 133 Ill. 82, 24 N. E. 520; 20 Standard Ency. Proc. 569-570.)

No showing whatever has been made in the ease at bar, that any diligence was used in discovering the evidence in question, although substantially two months intervened between the arrest of defendant and the time of her trial. A large number of persons were present at the scene of the homicide, some of whom were known to the defendant or her counsel. The names of others there present could, no doubt, have been easily discovered by some reasonable inquiry. If the facts testified to by the defendant and shown in the affidavit of A. J. Martin, are true, it is not unlikely that there were other persons who knew the facts as well as Martin. Seasonable inquiry before the trial might, in fact, have disclosed the presence of the latter at the place of the homicide. In any event, it was defendant’s duty to make reasonable efforts to find out before the trial, who was present, and no such efforts having been made, the court properly refused to grant a new trial on the ground of the newly discovered evidence in question. That was the holding of the Court of Criminal Appeals of Texas under circumstances very similar to those in the case at bar, as shown in the case of Holliday v. State, 37 S. W. 751; (see also People v. Gonzales, 143 Cal. 605, 77 Pac. 448; Austin v. State (Tex. Crim.) 51 S. W. 249.)

Finding no reversible error in the record, the judgment belotu is accordingly affirmed.

Kimball, J., and Burgess, District Judge, concur, the latter sitting in place of Potter, Ch, J., who being ill, did not sit.