State v. Law

147 P.2d 324, 106 Utah 196, 1944 Utah LEXIS 15

• Court: Utah Supreme Court
• Decided: February 1, 1944
• Docket: No. 6619.
• Status: Published

Opinions

WOLFE, Chief Justice.

Appeal from a judgment based on a verdict of guilty of voluntary manslaughter.

The information alleged that on the 15th day of March, 1943, in the County of Salt Lake, State of Utah, defendant murdered Martin Bruce Bogarte. At the close of the State’s evidence, the appellant rested his case and 1 requested the trial court to direct the jury to return a verdict of acquittal. The request was denied. The case went to the jury, and a verdict was returned finding the appellant guilty of voluntary manslaughter.

The defendant’s request, so made at the close of the State’s case, was upon the ground that “from all the evidence and without contradiction, it appeared that the homicide complained of was justifiable or excusable,” and that the jury should find a verdict of acquittal. The request was based upon Sec. 103-28-12', U. C. A. 1943, which reads:

“When the homicide appears to be justifiable or excusable, the person charged must, upon his trial, be fully acquitted and discharged.”

There is but one question presented. Does the evidence show that as a matter of law the homicide was excusable or justifiable? The evidence was all produced by the State.

The killing occurred in the foyer of the Regis Hotel in Salt Lake City. .The foyer is approximately 14 feet east and west. On the west it is separated by a partition from the hallway on to which give sleeping rooms No. 1 to No. 6. This partition forms the west wall of the foyer for a distance of approximately 18 feet. The east wall is approximately 12% feet. The north end is open giving access to stairways going np and down.

The killing occurred about 6:30 a.m. on March 15th. The defendant and the deceased Bogarte were guests at the hotel. Just prior to 6:30 a.m. the defendant, together with Charles D. Powers, chief witness for the State, and one Jack Allred were sitting in what we have called the foyer or lobby, above described, on the second floor of the building. While there they engaged in some horse play which evidently disturbed Bogarte. He came north along the hallway and around the end of the partition and profanely berated the three. At that time the defendant was sitting on the east end of a davenport located at the south wall of the foyer, approximately 21 feet from the end of the partition around which Bogarte appeared. Bogarte evidently stopped near the northwest corner of a table which was approximately 2*4' x 4', the long side of which paralleled the davenport. According to the testimony of Powers, the only witness who testified to the happenings, the defendant must have gotten up and first gone to the east side of the table. Allred, brushing aside or going around the defendant, said “this is my affair. I am going to take care of this.” The defendant, as we glean from the record, left the east side of the table going to a point marked “C” which, as shown on the diagram drawn to scale by witness Tipton, was near the stairway going to the third floor, outside of the lobby proper. He then came back to the west end of the table near Bogarte. Powers’ testimony of the course of events, omitting repetitions and nonsignificant details, is as follows:

“Well, Bogarte kept bawling with his language. Of course Allred used some language then, he was using a little bad language himself, * * * Bogarte continued to cuss at both of them * * * he didn’t seem to pay any attention to me, I wasn’t paying any attention to him, but Ed Bogarte did keep cussing the two of them. Well, Law stepped around back of in front of him, kind of leaned up against the west end, toward the west end, facing north on this, of the table. Wasn’t sitting on it, sort of leaning against it.”

The history of events in the form of questions and answers as taken from the record from the time defendant left the point “C” will be found in the dissenting opinion of Mr. Justice Moffat. Hence, no purpose would be served in repeating that part of the record here.

The testimony is that Bogarte was a well muscled man, weighing at least 220 pounds, “six feet easy” and a powerful strapping man. Powers “would judge Law to weigh 125 pounds and about five feet six” in height.

The appellant’s position is that in view of the disparity in the size and strength of the two men and the situation that appellant found himself with deceased on top of him choking and striking him, he was entitled as a matter of self-preservation to “blast” his way out by all possible means; that under the circumstances the use of the knife in the manner it was used was legally justifiable or excusable; that hence under 103-28-12, U. C. A. 1943, he was entitled to an instruction directing the jury to acquit him. Subsection (3) of Section 103-28-10, U. C. A. 1943, specifies that:

“Homicide is also justifiable when committed by any person * * * when committed in lawful defense of' such person * * * when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury and there is imminent danger of such design being’ accomplished; but such person * * * if he was the assailant or engaged in mutual (sic) combat, must really and in good faith have endeavored to decline any further struggle before the homicide is committed.”

Subsection (1) of the same section makes homicide justifiable “when resisting any attempt to murder * * * or to do great bodily injury upon any person.” These two subsections interlock. Subsection (1) covers the case where one kills to prevent the murder of or the doing of some great bodily injury upon “any person.” “Any person” includes the person who commits the homicide as well as other persons who are attacked with murderous intent or intent to do them great bodily injury. Hence subsection (1) has meaning in determining the matter of self-defense. Subsection (3) however is more directly conerned with usual cases of self-defense and defense of one’s family. Subsection (1) comes into play when there is no doubt as to the attempt to commit a felony, or attempt to murder or inflict great bodily injury on the person of the defendant or some other party. Subsection (3) makes the killing justifiable when committed in defense of self or certain others not only when the person killed was in the process of committing a murder or a felony or of doing great bodily harm but when “there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury and there is imminent danger of such design being accomplished.” Subsection (1) requires that the defendant establish the fact of the deceased’s actual attempt or fact that he was in the process of murdering, committing a felony, or inflicting great bodily harm to defendant or another. Subsection (3) limited to defendant and! certain of his relatives or household, only requires that the facts be so that there is reasonable ground for apprehension of a design to commit a felony or do some great bodily harm on or to the persons named in the action and imminent danger of its accomplishment plus the defendant’s state of mind that he apprehended such accomplishment. The defendant in this case could take advantage of either subsection as he could claim that not only was there reasonable ground to apprehend a design to do great bodily injury to him with imminent danger of such design being accomplished but that it was actually in the process of being accomplished. But whether the defendant was justified1 in using a knife on the theory that Bogarte was attempting to murder him or do some great bodily harm upon his person is in this case a question for the jury. Likewise whether he had reasonable ground to apprehend a design on Bogarte’s part to do him some great bodily injury and that there was imminent danger that he would accomplish it, and his belief that such was the case is also, under the facts of this case, a question for the jury.

Unless the evidence is so conclusive that every reasonable mind must say that the means and the force used were necessary to defend against aggression the question of whether the killing was in self-defense is a question for the jury to determine. Warren on Homicide, Vol. 3, par. 314, p. 528 and notes thereunder.

“Whether the defendant had reasonable ground to believe that the deceased was about to take his life or do him great bodily harm * * * whether it was his duty to resort to other means of defense; whether he properly exercised his right of self defense; whether he used unnecessary force in killing his adversary; whether he was justified in using a deadly weapon when struck by fist or otherwise assaulted in a manner not likely to cause serious bodily harm * * * whether he and deceased engaged in a mutual or willing affray; whether he or decedent brought on the fatal encounter where there is a conflict in the evidence, are questions for the determination of the jury.” Warren on Homicide, supra, and copious notes on concrete cases in connection therewith.

Likewise,' if there is no conflict in the evidence but there is room for reasonable minds to differ as to whether “there is reasonable ground to apprehend a design to * * * do some great bodily injury and there is imminent danger of such design being accomplished,” the question is one for the jury.

In this case Law was a small man and Bogarte a large man. The latter had the former down and was on top of him. But at the time the knife was used, Allred was slugging Bogarte and had his leg over the latter’s hip. Before that “Bogarte was trying to choke Law with both hands and hit him at the same time; seemed like he tried to choke with both hands, then tried to choke with one hand and hit with the other; quite a scuffle, and that was as near as I could see.” Certainly it was for the jury and not for this court to say whether Law reasonably apprehended the imminent accomplishment of great bodily injury which would justify the use of a knife. Life is not so cheap that one may use weapons on another which are quite likely to cause death unless the danger of being overcome is so great as to justify their use. That is usually a question for the jury and was pre-eminently so in this case. Certainly there is nothing to show how successful Bogarte was in choking Law. He evidently took one hand from his throat to strike him. The testimony is not that he was choking Law but that he was trying to choke him and trying to hit him. And after Bogarte rolled off of Law it appears he had no difficulty in arising. The fact that Law looked dazed and wild and quite upset appears to be as attributable to his consciousness that he had cut Bogarte as it is to the effects of the scuffle. On cross-examination the witness was asked if Law looked like he had been hit and he answered: “He had a terrible expression on his face. You might call it dazed.” This indicates that the witness intended to convey the idea that the defendant was aghast at what he had done rather than that he was dazed from being hit. The matter of self defense, that is, whether the homicide was justifiable, was clearly a question for the jury. State v. Turner, 95 Utah 129, 79 P. 2d 46.

In addition to what has been said above, attention should be called to one significant bit of evidence which would give the jury considerable ground for believing that Law had opened his knife and had it ready before he was struck. When Bogarte came around the end of the partition which separated the hallway from the foyer and then to the northwest corner of the table, the defendant was seated on the east end of the davenport, well out of Bogarte’s reach. He could see Bogarte was a powerfully built man, considerably heavier than he, yet he arises from this place of comparative safety and goes to the east side of the 31/2 foot table. He is still fairly well out of reach. But while Allred and Bogarte were fuming against each other he walked over to a point which Powers marked as point “C” on the map drawn by witness Tipton and introduced as Exhibit A. Point “C” is really outside of the lobby by the steps going to the third floor. Yet because the lobby is open on the north side a person at point “C” could be seen by any one in the lobby. Point “C” is the last place where Powers saw Law before the latter returned to the table where he was slugged by Bogarte. Point “C,” from Powers’ testimony, is fully 12 feet from the position where Bogarte was standing. Powers testified that the last time he saw Law before the latter came back to the place of danger, that is, within striking distance of Bogarte, he, Law, was at point “C.” The evidence is that about 10 seconds elapsed between the time that Allred pushed Law aside and the time when witness Powers saw him coming back toward the table. The jury might well have wondered why Law had gone over to Point “C” and it might have readily come to the conclusion that while walking away from Bogarte and the table he got his knife from his pocket and carried it back opened. The knife is in evidence as Exhibit “E.” It has a sharp 3*4 inch blade pointed at the business end. This blade was the one used. It has on it what appears to be dried blood. It is difficult to see how Law with Bogarte astride of his hips could have reached in his pocket, gotten out the knife, and opened the blade, and if he did so why it would not have been seen. If he could have gotten it out of his pocket it would have required two hands to hold and open it. If there was room enough between his and Bogarte’s body to bring both hands together and open the blade it would seem that Bogarte, looking down at him would have seen the movement. If he made his hands meet around Bogarte’s powerful body, granted he could reach around while the latter’s torso was far enough away to slug him and while he engaged in that movement, it is unlikely that the action would not have been seen and the shiny blade observed even in the dim light of the lobby. The full length of the knife with the fatal blade open is almost 8 inches. The fact that a small sized man left a place of safety, walked to the table, was requested in effect by Allred to leave Bogarte to him, and then walked far enough away with his back to the three in the lobby, after which he returned to a point where he was within striking distance of a powerful man who weighed about 100 pounds more than he did, becoming then bold enough for the first time to challenge him, when he had before evidently been willing to accede to Allred’s implied request that he keep out of it, coupled with the difficulty of getting the knife from his pocket and opening it while he was so held down would support a strong inference by the jury that he came to the table with the open knife concealed along his hand and arm. Powers testified that he did not see the knife but he also testified that he was not looking for a knife. It “never occurred to me.” And if the defendant did succeed in getting hold of and opening the knife while Bogarte was astride of him the jury could well infer that his position was not so desperate as to require him to use it especially since Allred was astride of Bogarte.

Certainly if Law came to the place of danger with an open knife he could hardly plead self-defense under the latter part of Subsection (3) of Section 103-28-10, U. C. A. 1943 above quoted. He may have intended only to use it in case of necessity but the jury could find that he created the necessity if indeed necessity there was. The jury under those circumstances might well have found him guilty of voluntary manslaughter if not of second1 degree murder. The judgment is affirmed.

McDONOUGH and WADE, JJ., concur.