State v. Thorne
Opinions
STRAUP, J.
The defendant, a boy seventeen years of age, was convicted of murder in the' first degree. It is charged in the information that he “unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life of George' W. Hassell, an assault did make” with a loaded revolver in his hands, “and then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life” of Fassell, discharged the revolver and shot and killed him, “and so,” the defendant, “in manner and form aforesaid, unlawfully, willfully, deliberately, premeditatedly, and of his malice aforethought, the said George W. Fassell did kill and murder.” The evidence, without conflict, shows that Fassell was shot and killed by the defendant while he and two others were perpetrating a robbery in Fassell’s store: The evidence is conflicting as to whether the revolver was accidently or intentionally discharged, and Fassell intentionally or unintentionally shot and killed. On this point the principle witness for the [212] state, A. F. Jacobson, testified that while he and Fassell were alone in the store the defendant and two others, Hayes and Curley, with handkerchiefs over their faces, entered the store. The defendant, pointing a revolver at Jacobson, commanded him to throw up his hands. At the same time Hayes, one. of the other robbers, pointed a gun at Fassell and made a similar demand of him. Jacobson hesitated a moment, when the defendant put the muzzle of the gun within five or six inches of Jacobson’s face, and, in a commanding tone, told him “get them up there,” and “get back to that corner.” Jacobson complied, the defendant keeping the gun close to his face and crowding him back with it. Fassell, who was covered by Hayes, “was slow about putting his hands up; finally he got them up and then he started to back, walking backwards. Hayes did not follow him, but kept him covered with the gun and indicated the direction he wanted him to go.” After the defendant had backed Jacobson to the corner he whirled towards Fassell who then, with his hands up and moving back, was about opposite him. The defendant approached Fassell and “punched him right in the side with the muzzle of the gun. Mr. Fassell winced like that, still he never took his eyes off this man. He kept looking at him, and he again punched him, and he started to back in that corner, and then he pulled the gun away and says ‘get back,’ and just held the gun about that far off” - — eight or ten inches — “and then fired,” the bullet striking him in the left side under the armpit. Fassell threw his hands to his side, dropped to the floor, and expired in about half an hour. At about the time of the shooting, Hayes, who had been pointing his gun towards Fassell, turned and pointed it towards Jacobson. After Fassell was shot and had fallen to the floor, the defendant walked towards the cash register. In doing so he came between Hayes and Jacobson. Jacobson jumped into the back office near by and ran out.
The defendant testified in his own behalf, on direct examination, that when he and Hayes and the other robber, Cur-ley, reached the store and entered it he “held up the butcher [213] (Jacobson) and told him to go back, and he went back; and Hayes he had Fassell. At first he told him to put up his hands. He seemed to hesitate; and he got him up there finally, and I told the butcher to go back there. Theu Hayes told Fassell to go back there too. It seems like he didn’t understand the question right away; anyway he didn’t move for several seconds. When he did start to move, he moved very slow and Hayes kept on telling him to move and hurry up. I got the butcher down there, and by that time Fassell was even with the counter and I told him to hurry up, 'we don’t want to stay here all night.’ He kind of hesitated there, and I told him several times. Then I shoved the revolver into him and it was discharged and he fell, and then I went and looked at him, and from there I went over to the cash register which Curley was supposed to go to and take the cash, and in going out I passed it and glanced in it, and it seemed like he hadn’t touched it, and .1 took whatever there was in it and went out.” He further testified that he did not pull the trigger of the gun intentionally; that he was not familiar with the action of the gun; and that he did not intend to shoot or kill Fassell, or any one. On his cross-examination he testified that he, Hayes and Curley had started out that night "to turn a trick; that at the time we started out we didn’t know what we were going to do. They said they were going to hold somebody up, but who or what or where I couldn’t say.” He further testified that for such purpose they first went to a laundry. They found that closed and the wagons in. They then went up the street to Fassell’s store situated outside the business portion of the city. They watched and reconnoitered it for an hour or more. They finally agreed upon a plan in which the defendant upon entering the store was to cover one of the men in the store, Hayes the other, and Curley to rob the cash register. In pursuance of such plan they entered the store, the defendant pointing his loaded revolver "cocked” at Jacobson and Hayes his at Fassell. When the shot was fired Cur-ley had reached the register and had opened it, as the defendant assumed, but left without taking the money, or, at least, [214] without taking all of it. The defendant, in going out, passed by the register which evidently had been opened by Curley, and seeing two ten dollar gold pieces and some silver took them.
The defendant and Iiayes were arrested within an hour after the offense was committed. The next morning the defendant made a voluntary and an unsolicited confession to the chief of police and other officers, and later to the sheriff of the county and other prominent citizens, in which he admitted and stated the facts substantially as testified to by him on the trial, and in each of them stated that Fassell did not move fast enough, that he told him to hurry up, and that he “put the gun against' Fassell’s side,” or “punched,” or “poked” him in the ribs with it, and that it “went off” or “exploded.”
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STRAUP, J.
The defendant, a boy seventeen years of age, was convicted of murder in the' first degree. It is charged in the information that he “unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life of George' W. Hassell, an assault did make” with a loaded revolver in his hands, “and then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, and with the specific intent to take the life” of Fassell, discharged the revolver and shot and killed him, “and so,” the defendant, “in manner and form aforesaid, unlawfully, willfully, deliberately, premeditatedly, and of his malice aforethought, the said George W. Fassell did kill and murder.” The evidence, without conflict, shows that Fassell was shot and killed by the defendant while he and two others were perpetrating a robbery in Fassell’s store: The evidence is conflicting as to whether the revolver was accidently or intentionally discharged, and Fassell intentionally or unintentionally shot and killed. On this point the principle witness for the [212] state, A. F. Jacobson, testified that while he and Fassell were alone in the store the defendant and two others, Hayes and Curley, with handkerchiefs over their faces, entered the store. The defendant, pointing a revolver at Jacobson, commanded him to throw up his hands. At the same time Hayes, one. of the other robbers, pointed a gun at Fassell and made a similar demand of him. Jacobson hesitated a moment, when the defendant put the muzzle of the gun within five or six inches of Jacobson’s face, and, in a commanding tone, told him “get them up there,” and “get back to that corner.” Jacobson complied, the defendant keeping the gun close to his face and crowding him back with it. Fassell, who was covered by Hayes, “was slow about putting his hands up; finally he got them up and then he started to back, walking backwards. Hayes did not follow him, but kept him covered with the gun and indicated the direction he wanted him to go.” After the defendant had backed Jacobson to the corner he whirled towards Fassell who then, with his hands up and moving back, was about opposite him. The defendant approached Fassell and “punched him right in the side with the muzzle of the gun. Mr. Fassell winced like that, still he never took his eyes off this man. He kept looking at him, and he again punched him, and he started to back in that corner, and then he pulled the gun away and says ‘get back,’ and just held the gun about that far off” - — eight or ten inches — “and then fired,” the bullet striking him in the left side under the armpit. Fassell threw his hands to his side, dropped to the floor, and expired in about half an hour. At about the time of the shooting, Hayes, who had been pointing his gun towards Fassell, turned and pointed it towards Jacobson. After Fassell was shot and had fallen to the floor, the defendant walked towards the cash register. In doing so he came between Hayes and Jacobson. Jacobson jumped into the back office near by and ran out.
The defendant testified in his own behalf, on direct examination, that when he and Hayes and the other robber, Cur-ley, reached the store and entered it he “held up the butcher [213] (Jacobson) and told him to go back, and he went back; and Hayes he had Fassell. At first he told him to put up his hands. He seemed to hesitate; and he got him up there finally, and I told the butcher to go back there. Theu Hayes told Fassell to go back there too. It seems like he didn’t understand the question right away; anyway he didn’t move for several seconds. When he did start to move, he moved very slow and Hayes kept on telling him to move and hurry up. I got the butcher down there, and by that time Fassell was even with the counter and I told him to hurry up, 'we don’t want to stay here all night.’ He kind of hesitated there, and I told him several times. Then I shoved the revolver into him and it was discharged and he fell, and then I went and looked at him, and from there I went over to the cash register which Curley was supposed to go to and take the cash, and in going out I passed it and glanced in it, and it seemed like he hadn’t touched it, and .1 took whatever there was in it and went out.” He further testified that he did not pull the trigger of the gun intentionally; that he was not familiar with the action of the gun; and that he did not intend to shoot or kill Fassell, or any one. On his cross-examination he testified that he, Hayes and Curley had started out that night "to turn a trick; that at the time we started out we didn’t know what we were going to do. They said they were going to hold somebody up, but who or what or where I couldn’t say.” He further testified that for such purpose they first went to a laundry. They found that closed and the wagons in. They then went up the street to Fassell’s store situated outside the business portion of the city. They watched and reconnoitered it for an hour or more. They finally agreed upon a plan in which the defendant upon entering the store was to cover one of the men in the store, Hayes the other, and Curley to rob the cash register. In pursuance of such plan they entered the store, the defendant pointing his loaded revolver "cocked” at Jacobson and Hayes his at Fassell. When the shot was fired Cur-ley had reached the register and had opened it, as the defendant assumed, but left without taking the money, or, at least, [214] without taking all of it. The defendant, in going out, passed by the register which evidently had been opened by Curley, and seeing two ten dollar gold pieces and some silver took them.
The defendant and Iiayes were arrested within an hour after the offense was committed. The next morning the defendant made a voluntary and an unsolicited confession to the chief of police and other officers, and later to the sheriff of the county and other prominent citizens, in which he admitted and stated the facts substantially as testified to by him on the trial, and in each of them stated that Fassell did not move fast enough, that he told him to hurry up, and that he “put the gun against' Fassell’s side,” or “punched,” or “poked” him in the ribs with it, and that it “went off” or “exploded.”
Murder is defined by our statute, Comp. Laws Utah 1907, section 4159, to be “the unlawful killing of a human being with malice aforethought.” By section 4161 it is provided that “murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious
This involves* the question of whether the accused, upon allegations in the information of an unlawful, willful, deliberate and premeditated killing by shooting, may be convicted of murder in the first degree upon proof that the shooting and the unlawful killing were done, whether intentionally or unintentionally, in the- perpetration of, or attempt to perpetrate, a robbery. Upon this question the authorities divide. In the case of Rayburn v. State, 69 Ark. 184, 63 S. W. 356, and perhaps others, the negative of the proposition is held, but we think the weight of authority is to the contrary. (Wharton on Homicide, section 119; 1 McClain’s Crim. Law, section 653; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Harmon, 106 Mo. 653, 18 S. W. 128; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757; People v. Flanigan, 174 N. Y. 357, 66 N. E. 988; Titus v. State, 49 N. J. Law, 36, 7 Atl. 621; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; State v. Johnson, 72 Iowa, 393, 34 N. W. 177; State v. Tyler, 122 Iowa, 131, 97 N. W. 983; People v. Milton, 145 Cal. 169, 78 Pac. 549.)
The reasons for the rule are there stated, and need not be repeated. Such holdings, of course, do not mean that upon allegations in the information of an unlawful, willful, deliberate and premeditated killing by shooting, a conviction of first degree murder may be had by proof of an unlawful killing by stabbing, or drowning, or strangulation, or bum-[217] ing, in the perpetration of, or attempt to perpetrate, a robbery, burglary, rape, or arson. The proof of the means and manner of causing the death must in such particular correspond with the allegations in the information. So, according to the great weight of 'authority, though it be alleged that the shooting and killing were done unlawfully, deliberately, premeditatedly, and of malice aforethought, and though the proof shows that the unlawful killing by shooting, whether intentional or unintentional, was done in the perpetration of, or attempt to perpetrate, a robbery, yet a conviction of murder in the first degree is supported by the allegations and proof, on the theory, as illustrated by the cited cases, that the “willful and premeditated intent to commit the felony is transferred from that offense to the homicide actually committed,” and “is the legal equivalent of and tantamount to” the allegations in the information of a willful, deliberate and premeditated killing by shooting.
But, for the additional reasons, we think the defendant here cannot complain of the instructions referred to. The state adduced evidence tending to show that the defendant unlawfully shot and killed the deceased, not only in the perpetration of, or attempt to perpetrate, a robbery, but also that he, in such perpetration, or attempt, willfully and intentionally shot and killed the deceased, and hence, willfully, deliberately and premeditatedly shot and murdered him as alleged. The defendant, to meet such proof, testified to a state of facts showing that he, in the perpetration of a robbery, unlawfully shot and killed the deceased, but that such shooting and killing was done unintentionally, thus testifying to a state of facts, which, under the statute, also rendered him guilty of murder in the first degree. That is, the state proved a first degree murder by proving a willful, deliberate and premeditated killing by shooting, and the defendant, to meet it, also proved a first degree murder by proving an unlawful shooting and killing of the deceased by him in the perpetration of robbery. The turpitude and consequences of the one is by the statute made as great as the other — each being first degree murder. Now, the court, instead of sub[218] mitting the case to the jury ou the theory of the state’s, evidence, submitted it to them on the theory alone of the defendant’s evidence. We do not see how he can complain of that on the ground of variance, or upon any other ground. We think no error was committed in the giving of the instructions referred to.
Complaint is also made of an instruction relating to the recommendation of the jury. We have a statute which provides that “every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the state
From the charge here given, would the jury understand that their right or power to make the recommendation, or the exercise of their discretion in making or withholding it, was unlimited and uncircumscribed ? Or would they understand that it depended upon the evidence, and upon a consideration of it, as directed and admonished by the court, and that they were not justified in making the recommendation, unless there was some evidence in the case when so considered to support or to justify it ? We think the latter, and not the former, is the inevitable conclusion. When the court told the jury that they should consider the question of making the recommendation “in the same manner as any other question submitted to you,” in what sense or light would the jury ordinarily understand that ? How were they required to consider other questions ? By considering the issues, the burden, degree and quantum of proof, the effect and weight of evidence, the requirement that facts found must be established and justified by evidence, or that the party having the burden must lose if he has not sustained it by the degree and quantum of proof required by law, etc. The charge not only had the tendency to mislead, but also gave the jury a wrong principle of law. It undoubtedly is the law, that the jury, in the event they found the prisoner guilty of murder in the first degree, had the absolute right to recommend a punishment of life imprisonment, and that the making or withholding the recommendation was a matter entirely within their discretion to be exercised in any manner and for any reason they saw fit, and that they “should be left free to dispose of the question without any intimation of the court as to what should control or influence them in [221] reaching a conclusion upon it.” It is just as clear that the jury were not left free to so dispose of it. The court, in effect, told them that in making or withholding the recom-mendatioñ they should be controlled by the evidence and the objects of punishment as stated to them by the court. The further question in that connection is that of prejudice. We will look at that later.
The defendant was a witness in his own behalf. He, having testified on direct examination that he entered the store for the purpose of robbery; that he pointed the gun first at Jacobson and then at Fassell; that he “shoved
From this proceeding it would seem that when a witness is asked a question relating to incriminating acts, or calling [223] for evidence of an incriminating nature, separate and distinct from those on trial and testified to by him, he, when he claims the privilege, must also say he declines to answer on the ground that if he did answer his answer would incriminate him. If the particular answer which he would make would incriminate him, he neéd not answer. If it would not, he must answer. That is, had the defendant been asked whether at a specified time and place he had not committed another murder or robbery, the court would inform him that if the answer which he might make would incriminate him he could decline to answer the question; if it did not, he must answer it. If he declines to answer he must expressly state that he declines on the ground that if he did answer his answer would incriminate him. That is but the equivalent of admonishing the witness that if he is guilty of the offense or crime suggested by the question, and if in making his answer he would admit it, he could decline to answer. If he was not guilty of the offense or if in making his answer he would not admit it, he must answer. Then with such admonition direct the witness to answer or decline. If he declines, make him state that he does decline on the ground that if he answered he would have to admit his guilt, and keep at him until an unequivocal admission of guilt is obtained from him. And if he is convicted, say he was not prejudiced, because he is a bad man anyway. . That, in effect, is what was here done, and what is here claimed. Such notions are violative of the proper rules of cross-examination, and a misconception of the rules of evidence applicable to the privilege of the witness, and render the claim of privilege wholly ineffectual.
The rule obtains in this jurisdiction that a defendant, in a criminal case, becoming a witness, may be cross-examined the same as any other witness. He, like any other witness, may be asked many questions wholly irrelevant
The defendant having testified that he was not familiar with the action of the gun, and for that and other reasons it was unintentionally or accidentally discharged, the question propounded to him on cross-examination, “Where did you get that gun ?” was proper and pertinent cross-examination. Such a question might tend to show that he had or possessed the gun longer than as testified to by him, and, in some degree, related to matters already voluntarily testified to by him. The witness answered that question. The other question, “Under what circumstances did you get the gun f’ stands on a different footing. It certainly was irrelevant to the issue, or to anything testified to by the defendant. Was it proper to test the memory of the witness, or to affect his credibility, or the weight of his testimony? It clearly had no such tendency, unless in answer to the question it was sought to elicit from the witness some- fact or act, or conduct, of an incriminating or degrading character. The court and district attorney so regarded and treated the purpose of the question. The court so regarding it at once informed and admonished the witness of his rights with respect to his claim of privilege. The witness claimed it. The court being satisfied, as he was, that the question called for such [226] evidence, and having allowed the claim of privilege, as he did, ought to have there ended the inquiry. To thereafter allow the district attorney to repeatedly ask the witness and to compel him to state that to answer the question would incriminate him “in the commission of another crime,” and to then ask and compel him to answer that because he had claimed the privilege and was allowed it, the crime of which he was charged was not his first crime, was to convert the claim of privilege as one of protection against compulsory self-accusations, into self-accusations and an acknowjedgment of guilt, and was therefore improper. Furthermore, the question, “Under what circumstances did you get the gun ?” was not only irrelevant to the issue and to anything testified to by the defendant, but was also irrelevant to the question affecting credibility. Under the authorities, generally, a witness, to affect credibility, may be asked if he had not been convicted of a crime. Such a question is not privileged, and the witness must answer. Under some authorities, he may also be asked if he had not committed a crime. Such a question is privileged, and the witness may decline to answer it. If he does, that is the end of it. If he elects not to claim the privilege, and answers it, that also is the end of it. Being collateral and irrelevant to the issue, the witness may not be contradicted nor impeached with respect to his answer. But we think the prevailing rule is — though the authorities are not by any means harmonious — that for the purpose only of affecting credibility, the witness may not properly be asked questions relating to mere specific acts or
We also think these rulings, and the erroneous charge heretofore considered, were harmful. If the only question to be determined by the jury bad been the guilt or innocence of the defendant, it might well be said that
It is further contended that a new trial ought to have been granted on the ground of the separation of the jury and the [229] misconduct of one of its members. Tbe defendant, in support of bis motion, showed that after the case was finally submitted to the jury, and before they had concluded their deliberations, and while they, in charge of two
And generally in cases where it was held that the misconduct of a juror engaging in unauthorized communications with others was not prejudicial, and did not vitiate the verdict, it was affirmatively and clearly made to appear what the conversation or communication was, and that it was [231] entirely harmless, and unrelated to tbe case, or, in case of a separation, that the circumstances were such that the juror was not, and could not have been, exposed to prejudicial or harmful influences by reason of the separation. The court in the case of Hempton v. State, supra, while stating that “the courts have gone a great way in sustaining verdicts, even in capital cases, notwithstanding misconduct, upon a satisfactory affirmative showing that their impartiality and the result of their labors were not affected thereby,” also observed that “there seems to be a growing tendency to looseness in the management of juries in important cases which calls loudly for a check if not for a substantial reform, if judicial administration is to be kept above suspicion as regards weighing out justice with the highest attainable degree of certainty.” To obtain the free and dispassionate judgment of jurors in the trial of capital cases, long experience has demonstrated the necessity of preventing the jury from mingling or conversing with the people, and of keeping them secluded from all outside influences calculated to interfere with or affect their impartiality or judgment. These safeguards were at common law deemed essential to the right itself of trial by jury. That' right with its ancient safeguards has been preserved in this country by Constitutions and statutes. An infraction of it calculated to impair the right cannot properly receive the sanction of the court without doing violence to such constitutional and statutory provisions. If it should be thought that they no longer serve a useful purpose, let them be abolished and taken out of the Constitution and statute and others substituted in their place. As long as they remain, it is the duty of the courts to see that they are observed and obeyed. After a final submission of a case to a jury, and before reaching a conclusion as to their verdict, to permit a juror without the court’s permission to leave his fellow jurors and go to another portion of the building and there engage in a private conversation over the telephone is a practice not to be tolerated, if these constitutional and statutory provisions are to be observed and given effect. He might as well be permitted to leave them, [232] and to go on the street, or to bis office, 'and there engage with some one in conversation. To say that the accused cannot sustain his claim of prejudice until he also shows that the juror talked about something harmful to the accused’s rights is to fritter away the constitutional and statutory provisions requiring the jury to be kept secluded from all outside influences. It is enough that the state to sustain the verdict against the accused under such circumstances, is permitted to show that the conduct, though wrongful and in disobedience of the statute and the directions of the court, nevertheless was harmless, by showing all that was said and done, and by clearly and affirmatively showing that the accused was not, nor could have been, prejudiced thereby. The state not having done this, is not entitled to hold the verdict.
A pair of overalls, a hat and handkerchief worn by the defendant, and the gun used by him, on the night of the robbery and homicide, were put in evidence by the state. "When the defendant was on the' witness stand and being cross-examined, he, at the request of the district attorney, and against the objections of counsel for the accused, was compelled to put on the overalls and the hat, tie the handkerchief about his face, take the gun in his hand, and show his appearance on the night in question. The objections to such proceedings 'having been overruled, the district attorney said to the defendant. “Put on the overalls. Now tie this handkerchief over your face the way you had it tied that night. Now put on this hat the way you wore it that night. Now take this gun and hold it as you held it that night as you entered the store. Carry the gun cocked in your hand. Did you hold it that way ?” Defendant: “Tes, sir.” District Attorney: “Now indicate how you went up to Jacobson by pointing it at me. How did you point the gun at him?” Defendant: “Just like that.” District Attorney: “That is the appearance, now, you made in the store, with the exception of the coat, which is a different coat?” Defendant: “Yes.” The defendant having testified that the gun was unintentionally discharged, could, as proper cross-[233] examination, have been required to take the gun and show how he used it and handled it on the occasion in question. Nut we have looked the record in vain for any
The judgment of the court below is reversed, and the cause remanded for a new trial.
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