Keffer v. State

73 P. 556, 12 Wyo. 49, 1903 Wyo. LEXIS 26

• Court: Wyoming Supreme Court
• Decided: August 20, 1903
• Status: Published

Opinion

Corn, Chief Justice.

The plaintiff in error was found guilty of murder in the first degree and sentenced to death. The defense was. that the accused was insane and not legally responsible at the time the deceased was slain.

The first error assigned is that the court improperly denied the application of the accused for a continuance. He sets out in his affidavit-that by reason of injuries received about the head some years before he had since been at times insane and, under certain circumstances, unconscious of his own acts and entirely irresponsible, giving the names of a number of witnesses by whom- these facts can be proved and their places of residence in Idaho, Oregon and California. In further support of his motion, an affidavit of one of his counsel states that three of these witnesses had promised • to be in attendance at the trial in June, but .that they had all failed to attend, one for the reason' that he was sick in Los Angeles and unable to make the journey; that he had sent a subpoena to another which was returned with the endorsement of the witness that he did not receive it in time to come; and that he had sent a subpoena to the third, which was returned through the mail' as not called for; that he had no means to secure their attendance or take their depositions, but that if the'cause should be continued and means provided for taking such depositions they could be taken and presented to the court at the next term.

There was no error in refusing the continuance. The case had been continued in December upon the ground that the 'defendant had not had time to prepare for trial, and this was'an application nearly six months afterwards upon practically the same ground. The subpoenas had no extraterritorial force and the attendance of the witnesses could not be obtained by that means. No effort beyond this appears to have been made to secure their attendance or their testimony by any legal process. The defendant chose to rely upon their promise to attend and he took the risk that they would be present. In the opinion by Judge Brewer in Campbell v. Blanke, 13 Kan., 62, the court say: “The deposition of this witness was not taken, nor any effort made to take it. The affidavit alleges that the witness agreed to be present, but failed, as affiant is informed and believes, on account of sickness. This is not a showing of sufficient diligence. The law will not compel the attendance of a witness from an adjoining county. His attendance is purely voluntary, and a party relies upon such voluntary appearance at his peril. At least such is the general rule, and this case presents no exceptions/' And in an Indiana case the court say: “One of the witnesses named in the affidavit was a resident of the State of Illinois, and it was the ’duty of the appellant to have- taken her deposition. It was carelessness on his part to rely on her promise to be in attendance at the trial. Where a party desires the testimony of a witness not within the jurisdiction of the court, he must take the deposition of the witness, for he cannot have compulsory process to compel attendance, and he has no right to have a continuance, upon the ground that the witness has promised to attend, and will attend at a future term.” (Marks v. The State, 101 Ind., 353.) And this rule is supported by the great weight of authority. (State v. Cross, 12 Ia., 66; Day v. Gilston, 22 Ill., 103; Langener v. Phelps, 74 Mo., 189; R. R. Co. v. Barnell, 94 Ga., 446; 4 Ency. Pl. & Pr., 862.) Our statute providing for the postponement of a trial on account of the absence of evidence and requiring that the affidavit shall show that due diligence has been used to obtain it, applies alike to civil and criminal cases. There is also provision for taking the deposition of a non-resident witness by the defendant in criminal cases and for making it competent evidence if the witness fail to appear at the trial.

But in another particular the showing is altogether insufficient. The statute requires that the affidavit shall show the probabilit)'- of procuring his testimony within a reasonable time. The defendant in his affidavit states generally that the testimony can be procured at the next term of the court. If the witnesses were within the jurisdiction of the court this showing might be deemed sufficient, as the court could have seen that they were amenable to its process and their attendance could probably be compelled. But it is otherwise where they are beyond the limits of the State, as in such a case the party applying for a continuance should state the grounds of h'is expectation of obtaining their testimony, so that the court may determine whether there is a reasonable ground for believing that it may be obtained. (Eubanks v. The People, 41 Ia., 486; Perteat v. The People, 70 Ill., 171; Richardson v. The People, 31 Ill., 170; 4 Ency. Pl. & Pr., 882.) And the affidavit of counsel does not strengthen the application in this particular. He states that he has no means- for the purpose, but that if means are provided for taking the depositions, they can be taken and presented at the next term. He does not state that he has any expectation that means will be provided. The statute provides that, upon the proper showing, a defendant may have his witnesses at the expense of the county. But if this was the reliance of the defendant he had already suffered some six months to pass without availing himself of the statutory provision. The application may be made-either to the court or to a judge in vacation. There was no error in denying the motion for continuance.

It is further claimed that the court erred in overruling defendant’s challenges to a number of the jurors. The transcript of the examination of the jurors is not embraced in the bill of exceptions, is not identified by the certificate of the judge, and consequently under the repeated decisions of this court this matter is not before us for consideration. But, in view of the fact that this is a capital case, we have carefully examined the errors complained of with a view to ascertain if in fact the defendant was deprived of a trial by an impartial jury. One juror testified that he had formed an opinion as to the guilt or innocence of the defendant based upon what was told him by men who were at the coroner’s inquest and by those who brought the prisoner to jail, witnesses in the case; that it would require evidence to remove such opinion, and that, if taken as a juror, he would go into the trial with that opinion still in his mind; that these persons had not undertaken to detail to him what had been testified to before the coroner, but had only stated to him what they understood to be the facts; that he had a bias or prejudice in 'the case, and that he could not go into the trial without such bias or prejudice; but he explained that what he meant by bias or' prejudice was only the opinion which he had formed; that he did not know the accused, and that his bias or prejudice was as to the crime and was not a personal feeling; that he thought he could give the defendant a fair and impartial trial, but not as well as' in a case which he'had never heard anything aboiit; that he had no other or different feeling against the defendant than he would-'have ..against any other stranger charged with the same .crime. The juror referred to, we think, was disqualified, if any of the panel were, and we think that in many cases he would appear to be disqualified by his answers.

But in this case there were no eye witnesses to the transaction but the deceased and the defendant. It occurred at a ranch, used as a stage station and occupied only by them, the deceased being employed as stock tender for the stage company. On the night of the 19th of December they returned to the ranch together from a freighter's camp about a quarter of a mile away, and the evidence tends to show that they were both more, or less under the influence of liquor when they left the camp. About 4 o’clock next morning the defendant appeared at a village or settlement -about four miles away very much intoxicated, and stated that he had killed the stock tender; that the latter had attacked him with a Winchester rifle and fired two shots at him, showing two places in his' coat which he- said the bullets had torn; that he seized a shotgun and fired both barrels over his shoulder as he ran out of the house, and that he thought he had killed him, as he heard him groan. An examination of the premises showed that-Warren, the stock tender, had been shot in the face, the charge going through the head, carrying- away the left side of the mouth and moustache and some of the teeth upon the left side, and also the back part of the skull and portions of the brain. In the pillow on the cot in which Warren slept was a depression such as might be made by a head resting upon it, and in this depression were found parts of the bone from the back of the head and several battered shot. On the outside of the bed covering, which was turned down toward the foot when found, and at the upper end, were found a portion of the moustache and some teeth. The body was lying- on the floor, the head in a pool of blood. Some 'six inches nearer the cot'was another pool of blood and between the two was a streak of blood with some brain matter as if the body had been dragged across. The physicians state, and it is evident, that death was instantaneous. In the palm of the left hand and adhering to it were some blood and brain matter and some shot, as if the head might have been resting upon the hand when the shot was fired. The Winchester rifle was resting- in the right hand, the palm was up and the fingers partially closed. There was blood upon the hand, but none upon the rifle. There was an empty shell in the chamber and three loaded shells in the magazine. The 'empty shell was corroded, as if fired some time before, and a witness testified that, some two or three months before, he had fired the rifle and left it with the empty shell in the chamber and three loaded cartridges in the magazine, the empty shell being left in the chamber at the suggestion of Warren that the gun worked better when left in that condition. There was evidence that a. short time before the deceased had made remarks in the presence of the accused indicating that he had a considerable sum of money in his possession and on the day before had exhibited a five dollar bill in his presence. On the afternoon of the 19th the defendant had stated that he had no money; on the morning of the 20th he was treating to the drinks, using a five dollar bill for the purpose. Upon an examination after the killing there was found in the clothing of deceased and in his trunk $205.50 in “checks,” but no money except five or ten cents in silver.

The sole defense of the accused was that ever since he received the injuries already referred to, whenever he drank whisky he had no knowledge or consciousness of what he was doing; that from the time he drank the whisky in the freighter’s camp on the evening of the 19th until he woke up in the Lander jail, two days afterwards, he had no knowledge or recollection of anything that may have occurred during the interval. Under these conditions, is there anything in the examination of the juror which discloses that he had such an opinion as disqualified him? That Warren was dead was a fact necessary to be proved by the State and essential to a verdict of conviction. But the fact was notorious, undisputed and not a controverted issue in the trial. It will not be contendéd that an opinion of the juror upon that question, no matter how firmly fixed or from what source derived, would be a disqualification. Equally essential was the fact that the deceased came to his death by violence and not from natural causes or by his own hand. But this likewise was notorious and undisputed. And so as to the fact that the deceased came to his death at the hands of the accused. That the juror had formed an opinion as to any or all of these essential elements in the case for the State was not important or material as affecting his qualification. But the one question to be tried' was whether; when the defendant slew the deceased, he was sane and legally responsible for his acts. Nothing in' the entire examination of the panel directs attention to this question. There is nothing’in the record to indicate that any member of the panel had an opinion upon that, the sole question in the case, or that he knew that such defense would be set up or had -any opinion or information in reference to the sanity of the accused,- or that it had- ever been questioned. It- is quite true that, when analyzed; a statement of belief in the guilt of the accused involves a belief in his sanity. But there is no evidence that the juror thus analyzed his' statement, and the presumption is that he did not. Sanity is ordinarily and properly presumed in all the relations of life. Insanity is left out of all calculations until something occurs to suggest it. There is no reason to suppose that the statement' of the juror is an exception in this respect, or that he intended to say that he had formed an opinion as to the sanity of the accused, his' insanity not having- been suggested. • '

If the juror, upon the only question at issue in the case, had formed such an opinion as would disqualify him, and the examination did not disclose it, it was the right and duty of the defendant to push the examination further, so as to make it manifest. The burden was upon him. In an opinion by Judge Cooley in a Michigan case it is said: ‘'The mere statement of a juror that he has formed an opinion is not sufficient to disqualify him. (Moses v. State, 10 Humph., 458.) Further inquiries might possibly have shown that it was of a nature to constitute disqualification; but the defendant did not see fit to make them, and the prosecution was not called upon to enter upon the investigation if the defendant left it imperfect and before he had made out a prima facie cause for exclusion. Where the answer of the juror is fairly susceptible of a construction consistent with his impartiality, the challenging party, if he claims that a different construction should be put upon it, should follow up his inquiries so as to elicit the real facts; and he cannot reasonably require that the juror shall be excluded on the ground that the examination, which he has chosen to leave imperfect, does not exclude all inference of bias.” (Holt v. The People, 13 Mich., 224.) The theory of the law is that a juror who has formed an opinion cannot be impartial, but every opinion which he may entertain need not necessarily have that effect. And the Supreme Court of the United States say: “It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion are such as in law necessarily raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, so far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. ... It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial.” And the court add: “Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so.” (Reynolds v. The United States, 98 U. S., 145; Carter v. Territory, 3 Wyo., 193.) The accused was itnder no obligation to disclose the character of his defense at this stage of the proceedings, but, if he chose to hold it in reserve, he' cannot complain that the examination did not direct the attention of the jurors to it or disclose whether any of them had formed any opinion in regard to it. AVe think there was no error in the rulings of the court upon these questions.

After the close of the case upon the part of the defense, in course of which the accused had testified that he had no knowledge or recollection of any of the events connected with the killing, the State introduced evidence over the objection of defendant, to the effect that on the afternoon of the 22d, before the coroner, the accused had stated that he had been drinking, but was not drunk when the deceased was killed; that, when he entered the house, Warren, was sitting on the bed with a AVinclfester in his hand; that he drew it on him and told him to sit down on a chair, where he held him for half an hour or more abusing- him; that he waited until AA^arreirs eye was off of him, then leaped up, went around the corner of the table and near the head of the bed, grabbed the shotgun and fired at him, threw the gun away and ran; that he had to do it; that he had taken more from .the deceased than any man in his life.

It is objected by plaintiff in error that this evidence was not admissible to impeach the defendant as a witness, the proper foundation not having been laid by calling his attention to it when upon the witness stand; that it was not evidence in rebuttal, but was a part of the case of the prosecution in chief, and, if the court in its discretion permitted the State to reopen its case, the defendant then had the right to go upon the witness stand to explain the statements testified to.

It may be conceded that this evidence was not admissible to impeach the defendant as a witness, the necessary foundation not having been laid, and we think it cannot be questioned that in all cases where the court exercises its discretion to permit the prosecution to introduce new evidence in chief after the evidence for the defense has been closed, the defendant must be permitted to rebut such new evidence. But it is clear that it was admitted for' the pur-post of, and was evidence in, rebuttal. That it tended to impeach the defendant as a witness was a mere incident and did not govern the method of its introduction.

It was not necessarily, or even properly, a part of the case in chief for the prosecution. The State is not required, and it is not its duty, to present in evidence statements of the defendant by which he has sought to exculpate himself, if it does not believe them to be true. And it is not bound to anticipate the defense and, upon its case in chief, introduce evidence in rebuttal of it. (1 Thompson on Trials, 345.) These statements of the accused did not support the case of the prosecution except in the one particular that they contained an admission that the deceased came to his death at the hands of the accused, and of this fact it had other sufficient evidence. But they were in direct and forcible rebuttal of his claim that his mental condition was such that he had no knowledge or recollection of what occurred. And it was in this view that it was admitted. For the record shows that the court instructed the prosecution in the presence of the jury that the evidence went 'to the mental condition of the accused, and that they could go no further in proving his statements at the inquest.

But counsel insist that the court erred in refusing to permit the defendant to explain how these statements were made. The statute prescribes the order of proceedings in the trial of criminal cases: “The State must first produce its evidence; the defendant will then produce his evidence; the State will then be confined to rebutting evidence unless the court, for good reasons in furtherance of justice, shall permit it to offer evidence in chief; when the evidence is concluded, either party may request instructions to the jury, etc.” (Sec. 5371, Rev. Stat. Wyo.) And this is only declaratory of the established rule. (1 Thompson on Trials, 344; Abbott's T. Brief Criminal Cases, 339.) The production of any further evidence by the defense was, therefore, not a matter of right, but was in the discretion of the court, and there is nothing in the record to show that there was any abuse of discretion. And, even if the court erred in refusing such permission, the error is not available in this court, for the reason that there is nothing in the bill of exceptions to show what the testimony of the witness would have been or its materiality. And it cannot be assumed that it was material or important. (1 Thompson on Tr., 678; Shinners v. Proprietors, 12 L. R. A., 554 (154 Mass.) ; Hathaway v. Tinkham, 148 Mass., 85; Bank v. Wills, 79 Mo., 275; Jackson v. Hardin, 83 Mo., 175.)

In a case like the present, where the life of a human being is involved, if it .was in any way manifested to this court that the accused had been deprived of the opportunity to give a reasonable explanation before the jury of how it was that, notwithstanding his assertion under oath, he had no knowledge or recollection of anything that occurred at or about the time of the homicide, yet nearly three days afterwards, when he was sober and apparently in his right mind, he stated in detail what he claimed to be the facts of the killing and the motives which actuated him at that time, we should be forced to the conclusion that it was such error as would require that the case be sent back for retrial. But not only has this not been shown, but we are convinced from all the facts and circumstances of the case that no such reasonable explanation was, or is, possible.

It is further assigned as error that the' District Court refused to suspend the execution of sentence upon, defendant’s application and notice of his intention to institute proceedings for the reversal of the judgment against him in the Supreme Court. This was error. The statute expressly provides that upon such notice and application the District Court shall suspend the execution of sentence until the next term of the court. There is no discretion. But it is further provided by statute that when a petition in error is filed in the Supreme Court and summons in error issued thereon the court or one of the judges shall order the suspension of the execution until the proceedings in error shall be heard and determined. This was accordingly done and consequently the error of the District Court was not prejudicial to the accused.

Complaint is also made that the court did not, before pronouncing sentence, inform the defendant of the verdict and ask whether he had anything to say why judgment should not be pronounced against him. But the record shows that the attention of the court having been called to the omission, the defendant was recalled and informed of the verdict and the statutory interrogatory propounded. As the omission would in no case be ground for a new trial, but only that the judgment be set aside, in order that the statute might be complied with, and as the defendant was after-wards given the opportunity to present any reason he might have why sentence should not be pronounced upon him, it was a mere irregularity in no way affecting his substantial rights.

It is further assigned as error that the instructions which were read to the jury were not numbered or signed by tlie judge or properly identified or marked as allowed. The Code of Civil Procedure, Revised Statutes, 3644, provides that the instructions shall be numbered and signed by the judge. But the corresponding section of the criminal code, 5371, contains no such provision, and, indeed, it does not require that the charge shall be reduced to writing at all, unless requested by one of the parties. Doubtless the object of the provision in the civil code is to prevent mistake or confusion at the trial and to enable the parties more conveniently to preserve their exceptions. And in any case, civil or criminal, unquestionably the court ought to mark any instruction read to the jury, so as to identify it. But it is not suggested in this case that any of the instructions which were given have escaped or that others have crept into the record. No error is, therefore, apparent.

Objection is made to certain alleged remarks of the judge upon the subject of capital punishment during the examination of one Charles Silber as to his qualification to sit as a juror. The provision of rule 14 of this court, that the briefs “shall refer specifically to the.page and portion of the record where the question under discussion arises,” is not complied with by counsel, and an examination of the record does not disclose that the remarks were made or that such a juror was examined in the case. We find that it is enumerated as one of the grounds for a new trial in the defendant’s motion, but we are not authorized to infer, from this circumstance alone, that such remark’s were made as alleged. The matter is not before us for consideration.

Certain evidence was admitted to the -effect that the deceased, in the presence of the accused at the ranch not long before the homicide, stated that he had offered $120 for a certain horse which he pointed out, saying- that he would have paid sixty dollars of it by a debt which was due him and would have gone down in his pocket for the balance; also a statement of the deceased that he had saved money at that place and had $200. It is urged that in view of the fact that there was evidence tending to show that some person unknown had visited the place after defendant left on the morning of the 20th and before the officers arrived; that about the amount the deceased stated he had was found, in the form of checks, upon his person and in his sleeping room and only five dollars appeared to have been taken; that the evidence was too remote and it was error to admit it. It is not to he questioned that evidence that the deceased had money and that the accused knew or had means of knowing it is relevant as tending to show a motive for the crime. Whether it is so remote as to render it incompetent depends upon the circumstances of the case. (Underhill Cr. Ev., 323; Kennedy v. The People, 39 N. Y., 245; State v. Donnelly, 130 Mo., 642.) In this case the evidence tends to show that the accused had reason to believe that Warren had some $200 in his possession; that after the homicide there was missing from his person a five dollar bill which he had a short time before and which, considering the isolation in which he lived, it is improbable he had disposed of. The accused stated he had no money the afternoon before, but after the murder he was in possession of a five dollar bill, and his possession of it is entirely unaccounted for, under the circumstances, unless he obtained it from the deceased. The fact that only five dollars was actually taken is unimportant. The remainder was in checks, and it may be fairly inferred was left for the reason that, in that form, it was to the accused unavailable and useless. But even if the only apparent inducement to the crime had been the paltry sum actualty taken, it would not affect the admissibility of the evidence. For, as said in a Minnesota case: “It is always competent, as well as of the greatest importance, to show a motive on the part of the defendant to commit the crime of which he is accused. If there be a motive which can be assigned, the adequacy or inadequacy of it, according to our standard, is a matter of no controlling importance. What would be a motive to one mind might not be to another. Whether a motive is adequate to induce the commission of crime depends on the peculiar circumstances of each case, and. the particular character of the defendant.” (State v. Lentz, 45 Minn., 177.) In this case evidence tending to show that a larceny from the person of the deceased accompanied the homicide, no matter how small the amount, is competent and specially important, as tending to rebut the claim of the accused that the crime, if committed by him, was merely the result of an insane frenzy without motive or purpose. The fact that someone else visited the premises and the possibility that such person may have committed the larceny, cannot affect the competency of the testimony. It is not the law that evidence, to be competent, must be conclusive or satisfactory. The weight of it was a question for the jury.

We are convinced that the accused had a fair trial. And this conclusion is fortified by the fact that the charge of the court to the jury was so just and well considered that no exception to any part of it is urged in this court. It is perhaps proper to say further that the character of the charge and the verdict in this case emphasize the wisdom of a brief, temperate and guarded statement of the law in the instructions given on behalf of the State. Attorneys for the State, from a laudable desire to obtain convictions where they believe crime has been committed, sometimes ask, and the court is induced to give, instructions embodying extreme and doubtful statements of the law, thus risking error in the trial and consequent delay, and possibly final defeat, of justice. In clear cases juries in this State have shown themselves willing to return verdicts of guilty,' and the State cannot lawfully ask for a verdict except in cases where the proof is clear. Moreover, all questions of morality and justice aside, it is doubtful if, in cases where a conviction ought to follow, a verdict of guilty is more likely to be returned under the influence of such extreme and'doubtful forms of statement, than under a charge adhering closely to the well established principles of the criminal law and giving to the accused the full measure of all the presumptions in his favor. These principles and presumptions are only the crystalization of common sense and common experiencé, and any violation of them may rouse the antagonism of an intelligent jury, intent only upon doing justice.

We find no reversible error in the record, and under all the evidence we have no reasonable doubt of the guilt of the accused. The judgment is affirmed, and the court now appoints the 25th day of September, in the year of our Lord 1903, for the execution of the sentence pronounced by the court below. Affirmed.

Knight, J., and Pottur, J-, concur.