Cirej v. State

Beard, Justice. The plaintiff in error, Matt Cirej, was convicted of murder in the first degree and sentenced to suffer death. Erom that judgment he brings error. The case was tried in the district court of Rincoln county at the same term and immediately following the case of The State of Wyoming v. Daniel Parker, which case, entitled in this court Daniel Parker v. The State of Wyoming, was this day decided. The same attorney was appointed by the court to defend in this case as in the Parker case. The grounds for a new trial as contained in the motion therefore are, that the verdict was not sustained by sufficient evidence and is contrary to law; and that the court erred in giving instruction No. 17, and instruction No. 21. Each of those instructions was excepted to at the time, and all of the instructions are contained in the bill of exceptions; but [511] Nos. 17 and 21 are not mentioned or discussed in the brief of counsel for plaintiff in error, and under the rule, if strictly enforced, the objections thereto would be deemed waived. . But as this is a capital case and the entire record being before us we have examined the same for the purpose of ascertaining whether or not it discloses such fundamental error as deprived the defendant of a fair trial. The defense was insanity; and instruction No. 17 is as follows: “The court instructs the jury that the law-presumes every man sane until the contrary is shown by the evidence, and before the defendant can be excused on the ground of insanity the jury must believe from the evidence that the defendant at the time of the killing was without sufficient reason to know what he was doing, or that, as a result of mental unsoundness, he had not then sufficient will power to govern his action by reason of some insane impulse which he could not resist or control.” The statement that before the defendant can be excused on the ground of insanity the jury must believe from the evidence that the defendant at the time of the killing was without sufficient reason to know what he was doing, is not a correct statement of the rule of law in such cases. The defendant may have had sufficient reason to have known what he was doing, and yet may not have had sufficient reason to determine the quality of his act as to whether it was right or wrong. The instruction is also objectionable as tending to mislead the jury as to the burden of proof. The rule in this state being, that when the question of insanity is in issue and there is evidence tending to prove insanity, the burden rests with the state to establish the sanity of the defendant beyond reasonable doubt. (State v. Pressler, 16 Wyo. 214, 92 Pac. 806, 15 Ann. Cas. 93.) The instruction does not, however, state that it devolved upon the defendant to prove his insanity, and the jury in another portion of the charge having been correctly informed that if it entertained a reasonable doubt as to defendant’s sanity at the time, it should acquit him, we do not think that such prejudice is made to appear on that ac [512] count as to warrant a reversal of the judgment. (Flanders v. State, (Wyo.) 156 Pac. 39.) We find nothing prejudicial in the 21st instruction. By it the jury was told that evidence had been introduced tending to show threats made by defendant against the deceased prior to the homicide; and -that such evidence should be taken in connection with all the other evidence and considered by the jury in determining the guilt or innocence of the defendant. The more serious and important questions arise on two other instructions given to the jury and which are literal copies of two instructions considered in Parker v. State, supra. In the first of which instructions the court in defining premeditated malice, which under the statute must be alleged and proved in order to constitute murder in the first degree, told the jury that “To constitute premeditated malice no particular time need intervene between the formation of the intent and the act; it is enough if the intent to commit the act with the full appreciation of the result likely to follow, was present at the time the act was committed.” In the other instruction referred to above the jury was told “that with the punishment which would follow a verdict of conviction you have nothing to do, further than this:' The statute provides that in case you find the defendant guilty of murder in the first degree, you may qualify your verdict by adding thereto the words ‘without capital punishment.’ In that event the death penalty could not follow, and the only sentence which the court would have power to impose would be life imprisonment. The right to add these words to your verdict, and thus limit the power of the court to a sentence of life imprisonment, is an absolute right given you by statute, and your right to do so cannot be questioned, either by the court or anyone else. Aside from this one limitation, in this court the law casts the burden and duty upon the court, in case of conviction, to fix the penalty in its discretion within the limits prescribed by the statute,.” * * * * * * Both of these instructions were considered [513] in the Parker case, supra, and held to be fundamentally erroneous, and prejudicial to defendant; and the reasons for so holding are there stated and the authorities cited,.and need not be here repeated. Following the decision in the Parker case with respect to those two instructions, and for the error in. instruction No. 17, the judgment of the district court is reversed and the cause remanded for a new trial. Reversed. PoTTRR, C. J., concurs, Scott, J., did not sit.