Gustavenson v. State

Corn, Justice. The plaintiff in error was convicted of the crime of murder in the second degree and sentenced to the penitentiary for a term of twenty years. Numerous errors are assigned. i. ' The information was verified by the prosecuting attorney before tlie Clerk of the District Court, who failed to attach the seal of the court to his jurat. No objection was made to the information at .the trial on account of this omission, but it is claimed that the error is jurisdictional and may be taken advantage of at any time. Unless some constitutional right was denied to the defendant, by reason of the omission, it is not very clear why it is any more to be classed as jurisdictional than any other of the numerous irregularities which may occur in the course of a trial, and which, under the statute and by the general current of authority, are deemed to be waived unless seasonably objected to by motion to quash or other proper proceeding. It is true the statute in prescribing the general duties of .the Clerk of the District Court makes him the custodian of the seal of the court, and provides that it shall be attached to all instruments signed by him in his official capacity. But the statute specially prescribing the form of the verification when made by the prosecuting attorney, gives the form of jurat as follows: “Sworn to before me and signed in my presence this .... day of ....'.., A. D., and I do hereby so certify. ( Signature and official title of officer administering the oath.)” .This-is declared by the statute to be sufficient, and there is no requirement that the officer shall attach his seal. So that, while it was unquestionably the duty of the clerk, under the statute, to attach the seal of the court, it does not appear to have been the purpose of the Legislature to make the performance of this duty essential to the sufficiency of the verification. The seal is, principally at least, a matter of evidence to identify the officer and establish his official character and authority. If the statute provided that the — 316 — acts of the officer, not attested by the seal of the court, should be void, a different question would be presented, and a different question might arise if the legality of the defendant’s arrest were at issue under Section 4 of the Bill of Rights. But neither of these questions is involved, and the courts take judicial notice of the names and signatures of their officers, and the seal of a court need not be attached to the jurat of an affidavit, sworn to before its clerk, and to be used only in such court. (Mountjoy v. State, 78 Ind., 174.) There is no objection that the defendant did not have a preliminary examination, but we infer from statements in the record that such an examination was held. And that being true, we think' the object of requiring a verification is not to furnish a basis for the prosecution, but, as stated in a Michigan case, only to secure good faith in the institution of the proceedings and to guard against groundless and vindictive prosecutions. (Washburn v. The People, 10 Mich., 385.) The Texas cases are relied upon by the plaintiff in error. But the statutes under which those decisions were rendered prpvide that the information shall be “based” upon the affidavit of some credible person, which shall be filed with the information; and they also provide that an information shall not be presented by the District Attorney until oath has been made by some credible person charging the defendant with an offense, and that this oath shall be reduced to writing and filed with the information. (Davis v. State, 2 Tex. App., 184; Morris v. State, id., 503; Daniels v. State, id., 353.) It is the affidavit upon which the information must be based, and not the verification of the information itself, which is deemed jurisdictional in the Texas cases. Miller v. The State, 122 Ind., 356, where it was held that the trial court erred in refusing to quash the information, upon the ground that the jurat to the affidavit upon which the information depended did not have the seal of the notary attached, is cited as directly in point. But the statute under which that case was decided provided that no. — 317 — notary should be authorized to act until he should have procured a seal, and that all notarial acts not attested by such seal should be void. It is not authority in this case. Numerous authorities are also cited holding that the omission of the private seal of the judge to a bill of exceptions, where such seal is required, is fatal. But these cases depend upon a different principle, and the necessity for the seal arises out of the origin and purpose of bills of exceptions. By the common law all civil causes might be removed to the higher court by writ of error. This writ brought up the whole record. But motions, exceptions to the admissibility of evidence and the like were not in the record and consequently were not brought up. To obviate ..this difficulty and'make such matters a part of the record, the statute of Westminster 2 (13 Edw. I), C. 31, was enacted, providing that “if the party write the exception and pray that the justices may put their seals to it for a testimony, the justices shall put their seals.” (2 Tidd’s Prac., 862.) Having thus been made a matter of record, it was sent up under the command of the writ. As the proceeding is statutory and the method is pointed out, that method must be pursued, and, therefore, where the judge’s seal is required, it cannot be dispensed with. The rule is as stated by Sutherland : “When a statute is passed authorizing a proceeding which was not allowed by the general law before, and directing the mode in which an act shall be done, the mode pointed out must be strictly pursued. It is the condition on which alone a party can entitle himself to the benefit of the statute, otherwise the steps taken will be void.” (Suth. St. Cons., 454.) The principles underlying the decisions referred to, therefore, do noto affect this case. 2. It is contended by plaintiff in error that the trial court was without jurisdiction, for the reason that the information is not sufficient in law and does not state facts sufficient to constitute an offense punishable by the laws of this State. The information, after the formal beginning, is as follows: “That Alfred Gustavenson and John Baxstrom, late of the — 318 — county aforesaid, on or about the 19th day of October, A. D. 1900, at the County of Albany, in the State of Wyoming, did unlawfully, wilfully, feloniously, purposely and with, premeditated malice kill and murder one Louis Larson, for that the said defendant, Alfred Gustavenson, and John Bax-strom, on the 15th day of October, A. D. 1900, at the county and state aforesaid, did 'unlawfully, wilfully,’ feloniously, purposely and with premeditated malice, make an assault on the said Louis Larson, and with a certain deadly and dangerous weapon, to-wit, a pistol, commonly called a revolver, loaded with powder and balls, they, the said Alfred Gustaven-son and John Baxstrom, then and there did unlawfully, wil-fully, feloniously, purposely and with premeditatéd malice shoot off and discharge said pistol, and by striking the said Louis Larson with said leaden balls, inflicting thereby on and in the body and arm of the said Louis Larson two mortál wounds, of which said mortal wounds the said Louis Larson then and there continually languished until on or about the 19th day of October, A. D. 1900, at the County of Albany, in the State of Wyoming, he, the said Louis Larson, did then and there die. And so the said Alfred Gustavenson and John Baxstrom did, in manner and form aforesaid, unlawfully, wilfully, feloniously, purposely and with premeditated malice kill and murder the said Louis Larson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.” We understand counsel to insist that, although the information may contain sufficient to satisfy the requirements of the statute, if the pleader had been content to rely upon its authority, yet that, having chosen to set oitt in detail the manner in which the murder was committed and the weapon used, the information is bad if not drawn according to the strict rules of the common law. But no authority is cited in support of this proposition, and we do not understand it to be the law in this State. It is quite true that by unnecessary particularity of statement the pleader may be bound to a particular line of proof, as, for instance, if the murder is — 319 — alleged to have been perpetrated by means of poison, he would not be permitted to prove death by shooting or stabbing, although he was under no necessity of setting out the means of death at all. But our statutes not only authorize a brief statement in the information charging simply that the defendant did purposely and with premeditated malice kill and murder the deceased, omitting the manner in which, or the means by which the death was caused; but they also provide that no information shall be deemed invalid or the proceedings in any manner affected on account of any sur-plusage or repugnant allegation where there is sufficient matter alleged to indicate the crime or person charged. It is apparent that the information in this case is drawn without much regard to grammatical accuracy, and it must, perhaps, be conceded that the part of it which attempts to set out the manner in which the death was caused charges nothing except that the defendants discharged a pistol. But it is elsewhere clearly charged that the defendants did purposely and with premeditated malice kill and murder the deceased, and this sufficiently indicates the crime and the persons charged. As the evidence tended to show that the plaintiff in error shot and killed the deceased with a pistol, one of. the balls taking effect in the body and another in the arm, we do not perceive that there is any misleading allegation in the information, or that there is any ground for the claim of counsel that there was a variance in the proof. 3. The name of the deceased is variously given in the information as Larson and Larsen, and it is urged that this is a fatal repugnancy. Such names are usually pronounced by omitting or slurring over the last vowel, and we think the two spellings are very clearly within the rule of idem sonans. Moreover, the statute provides that the information shall not be invalidated, or the proceedings in any manner affected by any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. And the statute also provides that no variance between the statement in the information and the evi — 320 — dence, in the name of any person named or described therein, shall be ground for acquittal unless the court before which the trial shall be had shall find that such variance is material to the merits of the case, or may be prejudicial to the defendant. Under the facts of this case, it is inconceivable that the defendant could have been misled, or in any way prejudiced by the defects referred to. 4. It is further insisted that the use of the expression “on or about” a certain day, in stating the time when the murder was perpetrated, vitiates the information. By the strict rules of pleading a day certain ought to be stated, and, as the proof is never confined to the day named where time is not of the essence of the offense, there is no good reason why this form of statement should ever be adopted. But there can be no question that it is sufficient under our statute, which provides that no information shall he deemed invalid for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly. 5. Attached to the motion for a new trial is the affidavit of the attorney who represented the defendant in the court below, stating that on the morning following the return of the verdict, a copy of the Revised Statutes of this State was found in the jury room, and that some of the jurors after-wards informed the affiant that one of their number had caused it to be brought in, so that they might read the law relating to homicide, and especially to find out what punishment could be inflicted under the different degrees. It is the well established rule of law that the testimony of a juror cannot be received to impeach the verdict in which he has concurred, and that, for stronger reasons, his unsworn statements repeated as hearsay in the affidavit of a third person must be rejected. _ (28 A. & E. Ency. of Eaw, 273.) Therefore, nothing more is legitimately shown by this affidavit than that the book in question was found next morning in the room where the jury had conducted their deliberations. This fact, without any proof of its having been — 321 — fead or consulted, is so clearly insufficient to vitiate the verdict as to require no consideration whatever. But counsel for plaintiff in error insist that the only object the.jury could have had in view was to ascertain that murder in the second degree was punishable by a less term of imprisonment than the natural life of the accused, and that if the punishment had been found to be imprisonment for life, it is clear they would have found the defendant guilty of manslaughter. So far as any evidence upon the point is concerned, this is mere conjecture. But even if the jury obtained information, either by reading the statute or otherwise, that a minimum punishment of twenty years’ imprisonment might be inflicted, and if it be conceded that the jury would not have returned a verdict of guilty of murder in the second degree if they had supposed such verdict would consign the defendant to imprisonment for life, yet we are unable to perceive that this ought in any way to affect the verdict. It is probable that, in every murder trial, the jury know that by a verdict of murder in the first degree they say the accused should suffer death; that by finding him guilty of an inferior degree of crime they save his life, and that these considerations often have an influence in determining what their verdict shall be. This is, in a sense, misconduct, for under our law the question of punishment is not submitted to them. But we think that no court has ever neld that a verdict which is sustained by the evidence will be set aside on account of the mental attitude of the jury, or some of its members in regard to such questions or their personal views as to what kind or amount of punishment ought to be inflicted in the particular case, even if it be apparent that such views may have influenced their verdict. We think the incident in question could not have affected any right of the defendant and is not sufficient ground for a new trial. 6. The defendant requested the following instruction: “Drunkenness does not excuse crime, but our laws expressly provide that, where the crime rests in intention, the inebriety of the person may be shown as bearing upon the question of — 322 — intention. If, therefore, the jury believe from the evidence that the defendant did the shooting complained of, but at the time his mind was so affected, from'the combined effect of previous drinking and the blows received on the head immediately preceding the shooting, that be was incapable to form an intent, and did not know at that time what he was doing, they should find the defendant not guilty.” The court gave the instruction with the following modification: “But this instruction applies only to murder in the first and second degrees, and not to manslaughter.” It is insisted that this modification was erroneous, because our statute provides “where a crime rests in intention the inebriated condition of the defendant at the time of committing the offense may be proven to the jury as- bearing upon the question of intention.” In some states, as in Missouri and Vermont, it has been held that evidence of intoxication is not admissible in a trial for homicide for any purpose whatever. The purpose of our statute seems to be to prescribe the rule upon the subject in this State, making the evidence admissible where the crime rests in intention, as bearing upon that question. It goes no further than that, and does not point out what effect the evidence, when received, ought to have upon the verdict. At common law the deliberate intent to take life, or premeditated malice, need not exist to constitute murder, but general malevolence is sufficient. But, by statute in this State, murder is divided into two degrees, and to constitute it in the first degree there must be premeditated malice, and such premeditation must be proved like any other fact. Upon a charge of murder in the first degree, therefore, the fact of the intoxication of the accused may be relevant and material as tending to show that the killing was not premeditated; and if it appears that at the time of the homicide he was so drunk as to be incapable of premeditation, or of forming any deliberate intent, and there was no evidence of his having premeditated the crime prior to becoming intoxicated, the offense of murder in the first degree would not be made out. — 323 — (Aszman v. State, 8 L. R. A. (Ind.), 33; Booher v. State, 60 N. E. (Ind.), 156; Hopt v. Utah, 104 U. S., 631; Pirtle v. State, 9 Humph., 663; State v. Johnson, 40 Conn., 136; 17 Am. & E. C. L. (2nd Ed.), 408.) But manslaughter, by our statute, is the unlawful killing of a human being without malice, express or implied, and, when voluntary, upon sudden heat and passion. To constitute the offense it is not necessary to prove premeditation or a deliberate intent to kill, or any other specific intent. It was, therefore, proper for the court to so modify the instruction as not to ■ include manslaughter. The instruction seems to have been requested upon the theory that if the defendant w.as temporarily insane and thereby incapacitated to form any specific intent,- although such insanity was directly produced by the voluntary use of intoxicating liquors, his capacity to commit crime and his amenability to punishment were thereby destroyed in the same way and to the same extent as if the insanity had been due to other causes. But this is not the theory of the law. It is not questioned that reason may be temporarily dethroned by intoxication as completely as by insanity otherwise produced. But, from the fact that drunkenness is produced by the voluntary act of the person and from considerations of public policy, it is an exception to the rule that insanity is a sufficient defense. As said by Judge Story: “In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibility. An exception is when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime.” (U. S. v. Drew, 5 Mason, 29.) There was no error in the instruction as given to the jury of which the defendant had any right to complain. But it is proper to be observed, though the point does not affect this case, that, in reason and upon the authorities, the court erred in applying the principle, stated in the instruc — 324 — tion, to murder in the second degree. “When a homicide results from the use of a dangerous and deadly weapon, the law implies malice and an intention to kill from the effective use of the weapon, and, therefore, the crime is presumably murder in the second degree. No degree of mental disturbance produced by voluntary intoxication will of itself, disconnected from sudden heat or other circumstances, avail to reduce the crime to a lower grade, unless such a diseased condition of the mind had followed the habit of intoxication as to render the accused incapable of distinguishing between right and wrong, or of controlling his conduct when free from the .influence of intoxicating drink.” (Aszman v. State, supra; 1 Whart. Cr. L., Sec. 41.) Intoxication is a mere circumstance to be considered in determining whether premeditation was present or absent. What constitutes murder in the second degree by a sober man is equally murder in the second degree if committed by a drunken man. (Wilson v. State, 60 N. J. L., 184; People v. Rogers, 18 N. Y., 9.) And this is so even when the intoxication is so extreme as to make a person unconscious of what he is doing, or to create a temporary insanity. (Bish. Cr. L., Sec. 400; Upstone v. People, 109 Ill., 178.) 7. The court gave to the jury the following instruction: “The jury are instructed that in this case the defense is made that the defendant was so intoxicated or drunk that he did not know what he was doing at the time he fired the fatal shot, from the effects of which Louis Larson died on the 19th day of October, 1900. It is incumbent upon the defendant to prove this defense beyond all reasonable doubt. The jury are instructed that voluntary intoxication is no excuse for a crime committed under its influence, nor is any state of mind resulting from drunkenness, short of actual insanity or loss of reason, any excuse for a criminal act. And if the jury find from the testimony that immediately before the shooting the defendant, in response to Baxtrom’s calling, arose from the ground quickly and began to fire in the direction of Michael Oleson and Louis Larson, the jury may take these facts — 325 — into consideration as showing that the defendant knew right from wrong and was in a sane condition.” The plaintiff in error objects to the instruction, for the reason that it makes it incumbent upon the defendant to prove his defense beyond all reasonable doubt, and that it calls special attention and gives undue prominence to particular parts of the evidence. The first objection was not presented to the trial court by the motion for a new trial and is not before this court as a ground for the reversal of the judgment. But it may be well to again state the principle that, as the presumption of innocence attends the defendant throughout the trial, and as the State must establish every element of the offense beyond reasonable doubt before it can legally ask for a conviction, it can never be incumbent upon the defendant to prove any defense beyond all reasonable doubt. As to the second objection, it'is generally held to be improper for the court to call special attention, by way of argument, to particular portions of the evidence, as it may prejudice the defendant by giving undue prominence to the evidence recited. It will not, however, work a reversal unless it appears that injury resulted. (Cribbs v. State, 86 Ala., 616; Wilkins v. State, 98 Ala., 8; 11 Ency. Pl. & Pr., 189.) The error was harmless in this case. Under the facts, the defendant was only entitled to have the jury informed, upon this subject, that if he was so intoxicated as not to know what he was doing and was incapable, for that reason, of forming an intent, he was not guilty of murder in the first degree. He was acquitted of that offense, and thus obtained all the.advantage he could claim from the evidence of his intoxication. It was no ground for his acquittal of the charge of which he was found guilty. In a Michigan case, where the defendant was found guilty of murder, Judge Cooley said: “The counsel for the defendant requested the court to charge the jury that if they believed the defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the offense, the defendant must be acquitted. A doctrine like this would be a most alarming one to admit — 326 — in the criminal jurisprudence of the country, and we think the recorder was right in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions must be held to intend the consequences.” (The People v. Garbutt, 17 Mich., 10.) 8. The claim that there was prejudicial error in the introduction in evidence of a pistol which was not fully identified as the one used by the defendant cannot be sustained. The shooting, and the arrest of the defendant an hour or two afterwards, occurred at night. No pistol was found upon his person, and none could be found in the darkness about the place. The next day one was found upon the ground some fifteen feet from where the shooting occurred. It had five chambers, each containing an empty shell: The evidence showed that the defendant fired five times; that no one else in the party had a pistol, and there were no circumstances tending to weaken the probability that it was the weapon used. If, from the size or character of the weapon, it had been attempted to draw important inferences as to the identity of the assailant, the manner of the assault or the like, it might have become the duty of the court to require a more satisfactory identification before admitting it in evidence. But there was nothing of the kind in the case. The evidence was clear that the defendant shot the deceased and the circumstances under which he did it, and there were no disputed questions of fact to be solved by an examination of the pistol or the bullets, or the nature of the wounds inflicted. The evidence might have been admitted or rejected without in any way affecting the case, and its admission was not prejudicial to the defendant. 9. It is urged that the verdict is not sustained by the evidence, and that the defendant was, at most, guilty of manslaughter. The defendant was in a wagon with six companions returning from Laramie City to the place where they were employed upon a railroad grade. Defendant and two others, Baxtrom and Oleson, were upon the front seat, which consisted of a board laid across. Some controversy arose — 327 — between defendant and Oleson, and defendant began to call him vile names. Oleson inquired if he meant it, and defendant said he did and continued to repeat the epithets, when Oleson slapped him, and immediately jumped out of the wagon and called upon defendant to get out. He jumped out, immediately followed by Baxtrom, who grasped the board upon which they had been sitting and struck Oleson with it. Nelson took the board away from Baxtrom, and the latter jumped on Oleson, but Larson, the deceased, pulled him off. Baxtrom called to defendant to help him, and the latter, with opprobrious epithets and saying. “I can fix them,” began shooting. He fired five shots, the two first taking effect upon Larson. Defendant seems from the evidence to have been the only one who had any firearms. Baxtrom gives a slightly different account of the affray, and the defendant claims that he fell out of the wagon after being struck a number of times by Oleson, and that he remembers nothing further of what occurred. But the jury passed upon the evidence and evidently gave credit to the witnesses who narrated the events as above stated. The evidence strongly tends to show that the trouble was provoked by the defendant, and the claim that he was severely beaten by Oleson is not sustained. The provocation of the slight blow received from Oleson, and which the defendant had himself provoked by his persistently abusive language, was not sufficient to arouse such heat of anger and passion as would reduce his offense to manslaughter. Judgment affirmed.- Potter, C. J., and KNigpiT, J., concur.