State v. Stenback

2 P.2d 1050, 78 Utah 350, 79 A.L.R. 878, 1931 Utah LEXIS 28

• Court: Utah Supreme Court
• Decided: September 21, 1931
• Docket: No. 5000.
• Status: Published

Opinions

ELIAS HANSEN, J.

The defendant was convicted of murder in the first degree and sentenced to be executed. He appeals. The evidence shows that he is a native of Finland. He came to the United States in 1914, and to Salt Lake City, Utah, in December, 1927. Soon after he arrived in Salt Lake City he purchased a pool hall and restaurant which he conducted until August, 1928. In January, 1928, he became acquainted with Minnie Mantyla, a widow. In August, 1928, the defendant sold his pool hall and restaurant and went to Murray, where he lived with Minnie Mantyla and four of her children on her farm. The defendant and Mrs. Mantyla were never married, but they lived together as husband and wife from August, 1928, until May 18, 1929, when she was killed. During the time the defendant resided with Mrs. Mantyla at Murray, he worked on her farm. About April 1, 1929, Mrs. Mantyla rented the Evans apartment house, which is located on State street in Salt Lake City, Utah. Soon after the Evans apartment was rented, Mrs. Mantyla and the defendant established their residence in a part thereof. The remainder of the apartment house was sublet to others. At about 10 o’clock at night on May 18, 1929, the defendant and Mrs. Mantyla were at home in their rooms in the Evans apartment house. At about that time two of the tenants who occupied rooms on one of the upper floors called at the rooms occupied by Mrs. Mantyla and the defendant for a key. Apparently at that time the defendant and Mrs. Mantyla were feeling kindly toward each other. The tenants secured their key and went to their rooms. In about ten minutes after they went to their rooms they heard the report of several shots and the screams of a ■woman. Thereupon they ran down to the rooms occupied by the defendant and Mrs. Mantyla. They knocked on the door, and in a short time the defendant unlocked and opened the door. He was bleeding profusely from his face and head. When he opened the door he said, “Just a minute, just a minute,” and then closed the door again. The tenants ran back to their rooms and called the police department of Salt Lake City, Utah. When the police officers arrived, Mrs. Mantyla was dead. Her body was lying on the floor with six bullet wounds in it. The defendant was lying on the body of the deceased with his face against hers. He was bleeding profusely from his head and face and was apparently unconscious. A doctor who later examined the body of the deceased thus described her wounds:

“There were three bullet wounds in the right upper arm. In describing them, one of them looked like a wound that had just been skirted by some passing object. There was one in the left upper arm. There were two bullet wounds in the left side of the chest, one on the line of the arm-pit between the second and third ribs, and one on the line of the arm-pit between the fifth and sixth ribs. There were contusions and lacerations over the left side of the body about the hips and the buttocks. * * * I believe the two wounds on the chest were responsible for the death, probably a perforation of the lungs.

When the defendant was later treated at the emergency hospital, it was found, as testified to by the doctor who gave him first aid, that: ■

“The man was suffering a great deal from loss of blood and he presented an extensive laceration of the right side of his mouth and the right side of his jaw and a good deal of swelling under the left eye. * * * He had a laceration which tore out the angle of his mouth on the right side, allowing his lower lip to drop. There was a swelling of the eye as though something had been pushed back of the eye. The defendant had no powder marks on his face.”

The police officers found at the scene of the tragedy a revolver with six empty cartridges in it lying on the floor. They also found, on a table, a bottle containing a small quantity of whisky. The pistol belonged to the defendant and was usually kept in a bureau drawer in which the defendant and the deceased kept their clothes.

The defendant was called as a witness in his own behalf, and testified that on the date of the homicide he and Mrs. Mantyla had been drinking intoxicating liquors and that he was drunk. There is considerable other testimony coming from disinterested witnesses which tends to show that the defendant had been drinking intoxicating liquors on the day of the homicide. The defendant further testified that when he sold his pool hall and restaurant he gave Mrs. Mantyla $600 to keep until they could purchase a rooming house; that he had not been paid anything for his work on the farm; that when Mrs. Mantyla leased the Evans apartments he asked her to take the lease jointly in their names, but she refused to do so; that on the night in question the deceased stated that she was going on a trip to Idaho with an Irishman by the name of Kelly; that he told her that she could not go away with the other man unless she paid the money which she owed to the defendant; that thereupon Mrs. Mantyla “became mad and said that she was not going to pay anything' for it and went to the bureau drawer and pulled this gun and said ‘This is the way I am going to pay.’ I was very much scared when I saw her coming with this gun and I went to grab her. Then there was a shot fired. * * * I heard one shot, and after that everything was black. * * * I don’t remember what happened after that.”

A few days after the homicide a book was found in the kitchen cabinet in the rooms theretofore occupied by the deceased and the defendant. The book contained some writing in the Finnish language, which translated into English reads as follows:

“W Stenbaka

“I have decided that I will do a good deed end Minnie Mantyla and myself because she is such a great harlatan woman I am not crazy but will say farewell to all of you states W. Stenbaka I am doing this deed so you will see that I can suffer all I have suffered very much take notice of W. Stenbak.”

Two handwriting expert witnesses were called 'by the state who, after comparing the writing in the book with the admitted writings of the defendant, expressed it as their opinion that both were written by the same person. The defendant denied that the writing in the book was his.

■ We have thus set out the substance of the evidence offered at the trial so that the questions of law applicable to such evidence may be more readily discussed and understood.

The defendant relies on two assignments of error for a reversal of the judgment. The defendant requested the court to instruct the jury that:

“It is a general principle of law that intoxication is no excuse for crime, but this general principle has this important qualification or modification, so far as it relates to murder in the first degree. A particular or specific intent is absolutely essential to the commission of this crime, and if the mind of the person doing the killing is unable, because of intoxication, at the time of the killing to form this particular or specific intent, there can be no murder in the first degree, unless the person doing the killing became voluntarily intoxicated for the purpose of killing while intoxicated.”

“You are instructed that on the question of the intoxication of the defendant at the time of the alleged killing, if you find from the evidence he was intoxicated, you must be satisfied beyond a reasonable doubt that such intoxication did not incapacitate him from forming a deliberate purpose to kill the deceased; and if you have any reasonable doubt on this question, you must give the prisoner the benefit of such doubt, and find him not guilty of murder in the first degree.”

The trial court refused both of the foregoing requested instructions, but gave the following instruction:

“No act committed by a person while intoxicated is less criminal by reason of his having been in such intoxicated condition, but if you find that the defendant was intoxicated at the time of the alleged act, then you may take that fact into consideration in determining as to the intent with which the act was committed. If defendant was capable of conceiving a design, he is presumed, in the absence of proof to the contrary, to have intended the natural consequences of his acts.”

While we do not regard the requested instructions which the trial court refused to give as models, the defendant was entitled to have the substance of those instructions given to the jury. The instruction given by the trial court on the effect of intoxication does not measure up to the requirements of a proper instruction where, as here, intoxication is interposed as a defense to or in mitigation of a charge of murder in the first degree. Our Penal Code, Comp. Laws Utah 1917, provides:

Section 7910: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.”

Section 8025: “Every murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other' than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life, — is murder in the first degree. Any other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.”

The provisions of our statute just quoted were a part of the Penal Code of the Territory of Utah. Their construction was before the Supreme Court of the United States in the caes of Hopt v. People of State of Utah, 104 U. S. 631, 632, 26 L. Ed. 873. In that case the defendant requested the trial court to give the following instruction:

“Drunkenness is not an excuse for crime; but as in all cases where a jury find a defendant guilty of murder they have to determine the degree of crime, it becomes necessary for them to inquire as to the state of mind under which he acted, and in the prosecution of such an inquiry his condition as drunk or sober is proper to be considered, where the homicide is not committed by means of poison, lying in wait, or torture; or in the perpetration of or attempt to perpetrate arson, rape, robbery, or burglary. The degree of the offense depends entirely upon the question whether the killing was wilful, deliberate, and premeditated; and upon that question it is proper for the jury to consider evidence of intoxication, if such there be; not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the condition of the defendant’s mind at the time the act was committed must be inquired after, in order to justly determine the question as to whether his mind was capable of that deliberation or premeditation which, according as they are absent or present, determine the degree of the crime.”

The trial court refused to give the requested instruction and such refusal was assigned as error. The Supreme Court of the United States in discussing the foregoing instruction said:

“The instruction requested by the defendant clearly and accurately stated the law applicable to the case; and the refusal to give that instruction, taken in connection with the unqualified instruction actually given, necessarily prejudiced him with the jury.”

In the case of State v. Anselmo, 46 Utah 137, 148 P. 1071, 1079, the late Mr. Justice Frick, writing the opinion for this court, said:

“The court,'in effect, should have charged the jury that, while voluntary intoxication was neither an excuse nor a defense, yet, if the jury found that appellant was intoxicated to such an extent that he was mentally incapable of deliberating or premeditating, and to entertain malice aforethought, and to form a specific intent to take the life of the deceased, in such event the jury should not find him guilty of murder in the first degree.” To the same effect is State v. Dewey, 41 Utah 538, 127 P. 275.

In 16 C. J. 107 the law is thus stated:

“The rule that drunkenness is no defense does not apply to the full extent where a specific intent or motive is an essential element of the offense charged. If.at the time of the commission of such an offense the accused was by intoxication so entirely deprived of his reason that he did not have the mental capacity to entertain the necessary specific intent which is required to constitute the crime, he must necessarily be acquitted; and in like manner the fact of defendant’s drunkenness should be considered in determining the degree of the crime. This is so, not because drunkenness excuses crime but because if the mental status required by law to constitute crime be one of specific intent or of deliberation and premeditation, and drunkenness excludes the existence of such mental state, then the particular crime charged has not in fact been committed.”

Numerous cases dealing with the effect of intoxication as either tending to excuse or mitigate an offense are collected in footnotes to the text just quoted. The cases there cited in the main support the text. There is, as might well be expected, some conflict in the adjudicated cases, but much of the apparent conflict is doubtless due to the difference in the language of the various statutes. Be that as it may, the law in this jurisdiction as to the effect of intoxication in those crimes which require the actual existence of a particular purpose, motive, or intent to constitute a particular species or degree of crime, is settled by the decisions of the Supreme Court of the United States and the decisions of this court which we have heretofore cited. It will be observed in the instruction complained of the jury were informed that if they “found the defendant was intoxicated at the time of the alleged act then you may take that fact into consideration in determining as to the intent with which the act was committed.” No mention is made of the law applicable in the event the jury should believe that the mind of the accused was so affected with intoxication that he could not deliberate or premeditate concerning the killing of Mrs. Mantyla or could not entertain malice aforethought. The provisions of Comp. Laws Utah 1917, § 7910, are not limited in their application to the effect that drunkenness may have upon intent. The provisions of that section apply also to purpose and motive. As construed in the cases above cited, the provisions apply to deliberation and premeditation. To constitute a homicide murder in the first degree, there must be present in the mind of the accused not only an intention to take the life of a human being, but such intention must be characterized by premeditation and deliberation. The intention to do an act which is calculated to take the life of a human being is an element common to the crimes of voluntary manslaughter, murder in the second degree, and murder in the first degree. Which, if any, of the three crimes was committed in a given case depends on the state of the mind under which the accused acted when the homicide was committed. Obviously, if one is unable to perform the mental processes necessary to constitute the crime of murder in the first degree, he cannot be guilty of that crime. It may be that due to intoxication or other causes the mind is so deadened or so bereft of reason that it can neither deliberate nor premeditate and yet the will power may be sufficiently active to form an intent to do an act which results in the death of a human being. The ability to deliberate and premeditate concerning the performance of an act requires a different mental process and may well require a higher degree of mentality than does the ability to form an intent to do an act. And, likewise, the ability to form a particular or specific intent may be lacking and yet there may be sufficient mental capacity to form an intention to do an act which results in death. Indeed, if such were not the case there would be no occasion for the Legislature to provide that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” The Legislature has thus provided that intoxication is a proper subject of inquiry as to purpose, motive, and intent. The trial court was in error in limiting the jury to a consideration of the claimed intoxication of the defendant to his intention at the time he is alleged to have committed the crime charged.

Moreover, the language of the instruction now under review is so general that it would be of but little, if any, aid to the jury in their deliberations. The jury were instructed that if they found, the defendant was intoxicated at the time the alleged homicide was committed they “may take that fact into consideration in determin ing the intent with which the act was committed.” The instruction is silent as to the law applicable to any fact or facts which the jury might find concerning the mental condition of the accused resulting from intoxication. The instruction does not inform the jury as to their duties in the event they should find the defendant was intoxicated at the time of the homicide. The instruction is likewise faulty in that it makes no reference to the extent to which the mind of the accused must have been affected by intoxication before such intoxication could reduce the degree of the crime charged. This court in the cases of State v. Anselmo, and State v. Dewey, supra, has clearly indicated the nature of the instructions which should be given where intoxication is an issue in the trial of a person charged with murder in the first degree. The instruction under review does not meet the requirements of the law announced in those cases.

Some members of this court entertain the view that the evidence tending' to show that the defendant’s mind was affected by intoxication at the time of the alleged crime is such that he was not entitled to any instruction on the law applicable to intoxication, and hence no prejudicial error was committed in giving the instruction complained of. The learned trial judge must have taken a different view, otherwise he would not have submitted that question to the jury. We are of the opinion that the evidence tending to show that the mind of the accused was affected by the excessive use of intoxicating liquors at the time of the alleged crime was sufficient to entitle him to a proper instruction on the law applicable to intoxication. There can be no doubt that the defendant had been drinking intoxicating liquor on the day the homicide was committed. Mrs. Everett testified that she met Mrs. Mantyla on Main street in Salt Lake City at about 8:30 p.m. on the day of the tragedy; that Mrs. Mantyla said to her that Mr. Stenbaek “had been drinking and that he had taken her money to buy whisky to drink and that her first husband had drunk a lot and she was not going to stand for another man to spend her money that she had for her children. * * * ” Mrs. Everett further testified that when she called for the key to her apartment a short time before the shooting occurred she smelled the fumes of intoxicating liquor on the breath of the defendant. J. W. Arbuckle testified that he saw the defendant between 6 and 7 o’clock on the evening of the day in question and that he noticed the odor of intoxicating liquor on his breath. Arne Mantyla, a son of the deceased, testified that he was in the apartment occupied by the defendant and his mother at about 9 o’clock p.m. on the day that his mother was killed; that he observed the odor of intoxicating liquor on defendant’s breath; that he asked his mother where Sten-back had been drinking, but his mother made no reply. Officer D. H. Clayton testified that the breath of the defendant smelled of intoxicating liquor at the time he was receiving first aid at the hospital. The defendant testified that he began drinking moonshine liquor in the forenoon of the day in question; that he was drinking during the day and evening of that day; and that Mrs. Mantyla also drank some; that he did not know who killed the deceased or how she was killed. On cross-examination he testified that he was drunk.

Aside from the evidence relating to the intoxication of the defendant at the time the homicide was committed, there is evidence that just before the deceased was killed the defendant was shot and seriously wounded in the face and head, and that as a result he did not know what occurred thereafter. The defendant so testified. That the defendant was seriously wounded is established beyond controversy. There is ample evidence independent of the testimony of the defendant that his mind was seriously affected immediately after the homicide was committed. When he opened the door immediately after the shots were fired, he merely said, “Just a minute, just a minute,” and then closed the door again. When the officers arrived the defendant seemed to be unconscious. The doctor who gave him first aid testified that while he was caring for his injury “he was mumbling somewhat. * * * For the most part his conversation was unintelligible. * * * ” A nurse who assisted the doctor in giving him first aid testified that he was in a terrible condition and that he kept saying: “Yah, mine wife. * * * He jabbered something else, but I don’t know what it was.” To the same effect is the testimony of the officers who interrogated him immediately after the homicide. It may be argued that the condition of the defendant’s mind at the time he was giving first aid was brought about by his injury, and not by the excessive use of intoxicating liquors. It may be further urged that the defendant did not receive his injury until after the homicide was committed. Such arguments might well be addressed to the jury who are to determine the facts, but it cannot be said as a matter of law that the .unconscious or semiunconscious condition of the defendant immediately after the homicide was caused in whole or in part by the injury which he received. Much less can it be said that as a matter of law the defendant received his injury after and not before the homicide was committed. Both questions are clearly questions of fact. If the defendant received his injury before the homicide, and as a result of such injury alone, or in connection with his intoxicated condition, his mind was so affected that he could not deliberate or could not premeditate or could not form the specific intent to kill Mrs. Mantyla, then and in such case he is not guilty of murder in the first degree unless he meditated and deliberated upon the killing and formed the necessary intent before his mind became affected. The condition of defendant’s state of mind as a result of intoxication or injury, or both, at the time of the alleged crime was an issue in the case. No proper instruction submitting that issue to the jury was given, and as a result the jury was not properly advised as to the law applicable to the evidence upon that issue.

Defendant also complains because the trial court gave the following instructions:

“You are instructed that the law requires that the killing-, in order to constitute murder in the first degree, must be perpetrated ‘from a premeditated design’ with a specific intent to take life; still it does not require that such premeditated design shall exist in the mind of the perpetrator for any fixed period of time before the doing of the act which constitutes the crime. If there were such a design and determination to kill, deliberately formed in the mind, at any moment before the fatal act was done, it is sufficient.

“The term ‘malice or malicious’ import a wish to vex, or annoy, or injure another person, or any intent to do a wrongful act, established either by proof, or by presumption of law.

“The term ‘wilfully’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to, it does not require any intent to violate law, or injure another or to acquire any advantage.

“You are instructed that it is not necessary that malice, wilful intent, premeditation, or deliberation should have entered into the mind of the defendant for any length of time before the killing took place. It is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before the act was committed, no matter how brief that space of time may have been. And in this case, if you believe from the evidence beyond a reasonable doubt that the defendant feloniously shot and killed Minnie Mantyla, as charged in the information, and that before the shot or shots were fired, no matter how brief or short the space of time before, had formed in his mind a wilful, malicious, deliberate and premeditated design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design, or purpose, and without any justifiable cause or legal excuse therefor, as explained to you in these instructions, then you should find the defendant guilty of murder in the first degree.”

No objection or exceptions were taken at the trial to the instructions now complained of, but it is claimed that the instructions were brought to the attention of the trial court at the time of the hearing of the motion fora new trial. The complaint urged against the foregoing instructions is that the court informed the jury that no appreciable time was necessary for premeditation and deliberation to constitute a homicide murder in the first degree. It will be noted that in one of the instructions the court informed the jury that, “if there was such a design and determination to kill, deliberately formed in the mind, at any moment before the fatal act was done, it is sufficient,” and in the other that, “if you believe from the evidence beyond a reasonable doubt that the defendant feloniously shot and killed Minnie Mantyla as charged in the information and that before the shot or shots were fired, no matter how brief or short the space of time before,” etc. The defendant contends that the foregoing instructions offend against the rule of law announced by this court in the case of State v. Anselmo, supra. The instruction there condemned was that “there need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as the successive thoughts of the mind.” While the language used in the instructions complained of in the instant case may be somewhat less objectionable than the language used in the Anselmo Case, the rule of law that condemned the instruction in the Anselmo Case must disapprove the instruction complained of in the instant case.

The time required for premeditation and deliberation is not a question of law, but it is a question of fact to be determined by the jury. The law does not and cannot justly fix such time. It may differ greatly in individuals, and it may also differ greatly in the same person at different times under different circumstances. The court should not by its instructions indicate to the jury the length of time that is required for deliberation or premeditation any more than it should indicate its views as to any. other fact which is in issue. We repeat what is said in the Anselmo Case:

“That the courts should not attempt to fix or prescribe any time, but should submit the question of whether the killing in question was committed with premeditation and deliberation to the jury. * * *”

In this connection we observe that nowhere in the instructions given to the jury did the trial court define deliberation or premeditation. To constitute first degree murder it is not enough to show an unlawful, intentional, and malicious killing. Premeditation and deliberation must also be present. It is of vital concern to the defendant and to the state that the jury be instructed as to the meaning of these terms, because unless they are understood the jury cannot intelligently distinguish murder in the first degree from murder in the second degree. The jury should have been instructed as to the meaning of these terms, because it cannot be assumed that a jury of laymen fully understand their meaning as applied to first degree murder.

During the course of the examination in chief of 12,13 the defendant, he was asked this question:

“Q. Did you at any time that night or at any other time intend to kill Mrs. Mantyla?”

The attorney for the state objected to the question as “immaterial and irrelevant.” The court sustained the objection. This ruling of the trial court is not assigned as error and is not argued, yet this court, in a capital case such as this, may and should sua sponte consider manifest and prejudicial errors which are neither assigned nor argued. State v. Riley, 41 Utah 225, 126 P. 294. The defendant should have been permitted to answer the question thus propounded.

The question of whether the defendant did or did not intend to kill the deceased goes to the very essence of the crime charged.

“In every crime or public offense, there must exist a union or joint operation of act and intent, or criminal negligence.” Comp. Laws Utah 1917, § 7908.

The intention to take the life of Mrs. Mantyla is as essential an element of the crime of murder in the first degree as is the killing itself. We quote the following from Jones Commentaries on Evidence (2d Ed.) vol. 2, § 713, pp. 1336, 1337:

“Now that defendants are permitted to testify in. their own behalf, there can be no valid reason assigned why they should not be allowed to testify to the intent with which any act was done, where such intent is a fact necessary to be ascertained.”

This court has held the law to be as stated by the author just quoted. Conway v. Clinton, 1 Utah 215; People v. Monk, 8 Utah 35, 28 P. 1175; State v. Sawyer, 54 Utah 275, 182 P. 206. In the Sawyer Case the defendant was charged with the crime of grand larceny — that of. stealing a steer. In the course of the trial the defendant was asked a number of questions relating to whether or not he believed the animal alleged to have been stolen was his property. He was permitted to answer some of those questions, but objections were made and sustained as to others. This court held that whenever the intent of the accused is relevant to the issue or becomes material to the act charged he may testify as to his own motive or intent, and that it is ordinarily reversible error to deny an accused the right to so testify. It was further held that the ruling complained of was not reversible error because the accused had, during the progress of the trial and without objection, answered other questions which were very similar to the questions which he was not permitted to answer. In the instant case the defendant was not asked any question which may be said to be similar to the question which the court erroneously refused to permit him to answer. The defendant did testify that when he was shot everything went black and that he did not remember what occurred thereafter. But such testimony cannot be said to be equivalent to direct and positive testimony that the defendant did not intend to kill the deceased. It was apparently the theory of the prosecution that the defendant determined to kill Mrs. Mantyla before the night of the homicide. The writing in the book, if the jury believed it was written by the defendant, tends to support such theory. If the jury believed that the defendant had formed a fixed purpose to kill the deceased at some time before the day of the homicide, they may have found him guilty of murder in the first degree even though they might have believed his statement that he was shot and that everything went black when the homicide was committed. The fact that the defendant testified that he was shot before the homicide and that he did not know what occurred thereafter cannot be said to be the equivalent to testimony that he did not intend to kill the deceased. The defendant was also permitted to testify that he had never threatened or said that he would kill the deceased. Obviously, such testimony is not in any sense equivalent to a statement that he never intended to kill the deceased. The most that can be said of the testimony which the defendant was permitted to give is that an inference may be drawn therefrom, if believed, that he did not intend to kill the deceased. Certainly it cannot be said as a matter of law that an inference which may be drawn from testimony has the same weight with a jury as does direct and positive testimony concerning the fact itself. Courts of justice should be ever mindful that one charged with a public offense is given a fair trial according to established rules of law, and especially is this so where, as here, the life of the accused is at stake. An error which is so manifest and so calculated to be prejudicial to the rights of the defendant as was the refusal of the court to permit him to testify as to whether he did or did not intend to kill the deceased may not justly be brushed aside by the statement that the error was not prejudicial.

Because of the errors indicated the defendant was not given a fair trial and the judgment should be, and it accordingly is, reversed. The cause is remanded to the District Court of Salt Lake County with directions to grant a new trial.

STRAUP and EPHRAIM HANSON, JJ., concur.