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hostility toward another. 29 C. J. When the footsteps of the intruders 1084. That is not its legal meaning, were heard upon the porch and the but the term nevertheless implies a sound of the burglars' keys heard in

wicked condition of the door, the defendant's heart definition of mind while the quaked. The state insists he should "malice."

homicide is commit- have sounded an alarm; that he ted; a mind, we may say, commit- should have inquired whether the ting the very act wilfully. See def. violent and felonious intrusion was initions, 29 C. J. 1080. If the intended for purposes innocent or homicide is committed under cir- otherwise; and that the failure to cumstances sufficiently mitigating do so indicates that he lay in wait or extenuating, the crime is reduced ready to fall upon his victim at the to manslaughter. In Bennett v. opportune moment. The explanaState, 15 Ariz. 58, 136 Pac. 276, it tion is inadequate. Defendant did was said: “The legal import of the not know the intruders; there is not term ‘malice' extends beyond, and is the slightest indication in the evimore comprehensive than, ill will, dence that he had cause to suspect hatred, or revenge. It includes all that a raid or an attack upon his states of the mind under which the house would be made at that time. killing of a human being by another The suggestion that he might have takes place without any cause which expected the officers of the law to will, in law, justify or excuse it, or swoop down upon him is based enmitigate the homicide to manslaugh- tirely upon speculation, instead of ter.'

evidence, and would seem to vanish Other courts, too, have adopted a into a bare possibility in view of the similar definition. State V. Mc- fact that defendant had no whisky Guire, 84 Conn. 470, 38 L.R.A. upon his premises at that time. The (N.S.) 1045, 80 Atl. 761; Logan v. defendant says that he was frightState, Tex. Crim. Rep. 53 S. ened. The statement is not unreaW. 694. See 29 C. J. 1086. In 13 sonable. Rudely awakened from his R. C. L. 764, it is said that the term slumbers, or suddenly roused up in includes all those states and condi- his attempt to sleep, he imagined, tions of mind which accompany a no doubt, the existence of more foothomicide that is committed without steps than there actually were. legal excuse or extenuation. Fear Some men with courageous hearts, or terror of such character or de- especially if accustomed to have gree as to render the accused inca- people enter their homes at various pable of cool reflection has been times of the night, would no doubt considered as a fact in mitigation or have called out, as the state claims extenuation, so as to reduce the the defendant should have done; but homicide to manslaughter. 1 Whar- to lay it down as a necessary reton, Crim. Law, p. 608; Whar- quirement in cases of a felonious ton, Homicide, 3d ed. p. 271. In entry in a house,

-duty to give the last-named work, on page 302, in the dark hours of alarm on hearit is said: “Likewise, where a per- night, in order that ing attempted

entry of house. son forces his way into a dwelling an owner, lessee, or house and there assaults the owner, occupant may escape the imputaand the owner kills him, the forciblé tion of premeditated malice in an entry and assault constitute a suffi- encounter that might take place cient provocation to reduce the kill- subsequently, is, we fear, making ing to manslaughter, where the act too great a requirement upon the of killing was the result of excite- courage of men, and would be based ment and confusion caused by the on an assumption of bravery which, entry and assault."

in all likelihood, the greatest porThe night in question was dark, tion of humanity does not possess. the windows of the house covered; The effect upon the human mind of there were no lights in the house. darkness in the stillness of the night

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( Wyo. 224 Pac. 420.) is a factor well known. Children, from an unlawful intrusion. The women, men hate to penetrate instruction asked is long, and we places of darkness when the sur- shall not set it out. Suffice it to say roundings are not entirely known, that it includes the idea that defendor even when fairly well known. A ant had the right to protect the sudden appearance from out the whole house from unlawful intrudarkness is apt to give, at least, a sion; it goes too far, and is not in temporary nervous shock to the accord with what we have already stoutest heart. Much more is that said herein. Instruction No. 18, apt to be true when, roused from given by the court, is as follows: rest or slumber, on a dark night, “You are instructed that the owner footsteps and other sounds or tenant of a dwelling house may heard, which are calculated, as in resist the entry thereof by another this case, to give the impression of person or persons, but in so doing boding no good. We cannot take he has no right to kill unless it be too literally the evidence as to the rendered necessary to prevent a number of minutes it took to open

felonious destruction of his propthe kitchen door and search the erty, or to defend himself against kitchen, only to find that no whisky loss of life or great bodily harm. If was to be found. The time, at best, he kills in resisting such entry, could have been but short, and when when there is not a reasonable the bedroom door was pushed open ground of apprehension of immiand a flash light suddenly thrust nent danger to his person or propupon the already excited defendant erty, you are instructed that he in the darkness, by parties entirely would be guilty of the crime of unknown to him, and unexpected, it manslaughter; and if done with is reasonable, we think, to conclude malice, express or implied, you are that the effect upon him was to un- instructed that he would be guilty nerve him, and create in his mind of the crime of murder." additional confusion, fright, and Counsel for defendant complains terror. In fact, his sudden action that the jury were not told that the thereafter bears this out. Had the

Had the defendant had a right to kill, if it bedroom door never been opened by appeared to him, as a reasonably the decedent and his companion, the prudent man, to be necessary in orfatal accident would probably never der to prevent the forcible entry of have happened. To hold that, under

his house or habitation and to prethese undisputed facts, the jury vent the commission of a felony were warranted to conclude that therein; in other words, that the malice was clearly shown, is, it

court ignored the doctrine of apparwould seem, equivalent to making the rule of reasonable doubt alto

ent danger. The last portion of the gether inapplicable in such case.

instruction refers thereto, but is No malice, we think,

stated in a negative way, and, as an -degree of homicide was shown, and the

abstract proposition of law, the inabsence of

jury had no right struction is not to be commended. knowledge

to find the defend. We have, however, already stated ant guilty of more than manslaugh- that the defense in this case practer.

tically rests upon the question of 3. Of the other assignments of self-defense, with no duty, however, error we shall consider those only on the defendant to retreat. In inwhich we think of sufficient impor- struction No. 17 the jury were told tance to note. Complaint is made of

that the defendant had the right to the refusal to give an instruction stand his ground and was not bound asked, and of giving instruction No. to retreat, if he in good faith be18, both relating to the right of the lieved, and had reasonable ground defendant to protect his property to believe, that the deceased intended to take his life or do him great crime not in the remotest degree
bodily harm. In in-

In in- connected with the crime for which
Appeal-error in

struction No. 13, the defendant was being tried. The
absence of

dealing with the supreme court of Pennsylvania, in

right of self-de- Wagner v. Hazle Twp. 215 Pa. 219,
fense, the doctrine of apparent dan- 225, 64 Atl. 407, speaking of a sim-
ger was fully and clearly stated. ilar situation, says: “When an at-
We do not, accordingly, think that torney in the trial of a cause wilful-
there was any prejudicial error in ly and intentionally makes an offer
giving instruction No. 18.

of wholly irrelevant and incom-
4. The state produced testimony petent evidence,

it is the
to show the condition and contents plain duty of the trial judge, of his
of the house in question immediate- own motion, to act promptly and ef.
ly after the homicide, disclosing, fectively by reprimanding counsel
among other things, as stated be- and withdrawing a juror and con-
fore, that there was a smell of illicit- tinuing the cause at the costs of the
ly distilled whisky therein. It was client. In no other way can justice
also shown that several days prior be administered and the rights of
to the homicide some empty kegs the injured party be protected. The
and one keg of 5 gallons of moon- imposition of the costs will remind
shine whisky were found therein by the client that he has an attorney
police officers. This testimony was unfaithful to him as well as to the
abjected to as tending to show a dis- court. The obligation of fidelity to
tinct crime, and not competent or the court which an attorney as-
relevant. An exception was taken sumes on his admission to the bar
to the rulings of the court admitting is ever thereafter with him, and
the testimony. The defendant when he attempts to defeat the jus-
claimed to be the lessee of the house tice of a cause by interjecting into
and to have the right to defend and the trial wholly foreign and irrele-
protect it. The jury were entitled vant matter for the manifest pur-
to know all the circumstances sur- pose of misleading the jury, he fails
rounding the homicide, and we are to observe the duty required of him
inclined to think that the testimony as an attorney, and his conduct
above mentioned, and other similar should receive the condemnation of

testimony, tended to the court."
condition of

shed light thereon, See also Com. v. Gibson, 275 Pa.
premises at time and to aid the ju- 338, 119 Atl. 403; State v. Jones, 48


ry in determining Mont. 505, 139 Pac. 441; 16 C. J.
what a reasonable man, if placed in 892. Such misconduct cannot, how-
defendant's position, would

or ever, be considered sufficient to re-
should have done at the time of the quire the granting of a new trial in

all cases.

It is said in 8 Cal. Jur. $
5. The prosecuting attorney asked


"Misconduct of the district
the defendant, who testified in his attorney in asking improper ques-
own behalf, as follows: “When was tions is ground for reversal when it
it you paid a fine for moonshining in results in miscarriage of justice, but
Rawlins ?" The question was ob- not otherwise."
jected to and the objection sus- In the case at bar, the question
tained. It is claimed that the ask- insinuated defendant's connection
ing of the question was misconduct with “moonshining.” Other testi-
entitling the defendant to a new mony on that point was introduced,

trial. There can be and, as we have seen, was not ad-
error of counsel no doubt that it was

mitted improperly. The question
in asking

misconduct. The now under consideration was, there-

question assumed as fore, at most, cumulative in its ef-
an affirmative fact that the defend- fect. After careful consideration
ant had been guilty of a distinct of the subject, we have concluded


the case,


( Wyo. - 224 Pac. 420.) that, in view of all the evidence in the statement of Sir Edward Coke,

it could that when the judgment is falsiAppeal-nonprejudicial

not have had suffi- fied or reversed, all former proceed

cient influence on ings are absolutely set aside. This the jury so as to have materially af- rule was applied in Rex v. Ellis, 5 fected their conclusions in reaching Barn. & C. 395, 108 Eng. Reprint, a verdict of manslaughter, included 147, Rex v. Bourne, 7 Ad. & El. 58, in the verdict actually returned, and 112 Eng. Reprint, 393, McDonald v. that the error is not a ground for a State, 45 Md. 90, 2 Am. Crim. Rep. new trial, in view of our holding 493, and a few others, in which it herein that the verdict can stand was held that, where the sentence only as to that charge.

was illegal, the proceedings should 6. We come then to the point as be reversed and the defendant dis. to what order to make herein. The charged, without right to retry him. rule laid down in 17 C. J. 370, is as That rule was severely condemned follows: "The appellate court may in the case of Beale v. Com. 25 Pa. reverse a judgment of a lower court 11, where it was said: “The comas to part, and affirm as to part, mon law embodies in itself sufficient where the legal part is severable reason and common sense to reject from that which is illegal.”

the monstrous doctrine that a prisAnd again it is there said: oner whose guilt is established by a “Where the errors committed can regular verdict is to escape punishbe cured by a judgment for a lower ment altogether, because the court grade of the offense, the appellate committed an error in passing the court may reverse on the condition sentence.that the attorney for the state re- In the case of Lougee v. State, 11 fuse to consent to the entry of such Ohio, 68, decided in 1841, the court, a judgment.”

apparently without reference to a These questions are new in this statute, affirmed a judgment in a jurisdiction, and we have given criminal case, so far as legal, and them careful consideration. At reversed it so far as illegal. In common law, no bills of exceptions State v. Bugbee, 22 Vt. 32, the dewere permitted in criminal cases, fendant was indicted and convicted nor did the evidence or the rulings upon two counts.


There was no and opinions of the court form any evidence to sustain the conviction part of the record. Schoeppe v. upon one of the counts, and the Com. 65 Pa. 51; Middleton v. Com. court, apparently without reference 2 Watts, 285; Vane's Case, 1 Lev. to any statute, reversed the case 68, 83 Eng. Reprint, 300. The ques- with direction to resentence upon tion before us could, accordingly, one of the counts only. In the case never arise at common law; and of State v. Kennedy, 88 Mo. 341, the hence, it would seem that this court defendant was convicted of both has full authority under its general burglary and larceny, with which appellate jurisdiction to modify the the defendant was charged, apparjudgment herein, since the legal ently, in one count. The court uppart is severable from the illegal held the court of appeals in reverspart, and to affirm the part that is ing the judgment as to the burglary legal and reverse the part that is and affirming it as to the larceny. In illegal, unless we are forbidden to the case of Simpson v. State, 56 Ark. do so by statute. There was, ac- 8, 19 S. W. 99, it appears, from the cording to some of the courts, a dissenting opinion therein, that the common-law rule of limited applica- statutes regulating criminal protion, and which, as applied in some cedure in that state with respect to of the cases, led to a peculiar result. the point here involved were at that It is stated in Chitty, Crim. Law, time similar to the statutes in force 755, 2 Hawk. P. C. 655, and 4 Bl. in this state prior to 1901; the judgCom. 393—all evidently based on ment in the case as to the conviction

and sentence for murder in the first in the same manner as is provided degree was set aside and reduced for taking civil cases to the supreme to murder in the second degree. court under the laws of this state." That, too, was done in Vance v. Sess. Laws 1901, chap. 63; Wyo. State, 70 Ark. 272, 287, 68 S. W. 37. Comp. Stat. 1920, § 7589. In Darden v. State, 73 Ark. 315, 84 Here was clearly evinced a purS. W. 507, the conviction for murder pose to grant the court power to in the second degree was reduced to modify judgments in criminal cases. manslaughter. In the case of Jones The quoted part of the Law of 1869, v. State, 88 Ark. 579, 115 S. W. 166, amended in 1884, as above set forth, a conviction for murder in the sec- was at the same time amended to ond degree was set aside, but the read as follows: "And upon the judgment affirmed as to manslaugh- hearing of such case and the deterter, unless the attorney general mination thereof, the supreme court should elect to take a new trial, in shall order the prisoner to be diswhich event the judgment should charged, a new trial to be had, or stand reversed. Similar action was the original judgment to be entaken in State v. McCormick, 27 forced, as the nature of the case may Iowa, 402; Com. v. Lawless, 103 require." Sess. Laws 1901, § 3, Mass. 425; People v. Farrell, 146 chap. 63; Comp. Stat. 1920, $ 7591. Mich. 264, 109 N. W. 440, and Peo- The last clause, “as the nature of ple v. O'Callaghan, 2 Idaho, 156, 9 the case may require,” may be conPac. 414, although a statute giving strued to refer only to one of three authority to modify a judgment is things, namely that the court may cited in three of the cases.

(1) discharge the defendant, (2) Turning now to the statutes of grant a new trial, or (3) enforce the this state, we find that in 1869 the original judgment as, and only as, legislature provided for writs of er- it was rendered in the lower court. ror in criminal cases to be allowed This construction is, however, not on application to the supreme court commensurate with the right to take or judge thereof. No provision was the appeal as granted by the same made as to what order should be act of legislation (§ 1, chap. 63, made, upon final hearing, in cases of Sess. Laws 1901, now $ 7589, Wyo. conviction for a felony not involv. Comp. Stat. 1920), and would leave ing capital punishment. Sess. Laws the word "modify" in that section 1869, p. 501, § 190, chap. 74. That without

without any meaning whatever. section was amended by $ 3, chap. Section 7591, on the other hand, 37, Sess. Laws of 1884, and it was may be construed to mean that this provided that “upon hearing such court has power to order "the origi. writs of error, either in felonies or nal judgment to be enforced, as the misdemeanors, the supreme court nature of the case may require;” shall order the prisoner to be dis- that is to say, to the extent that the charged, a new trial to be had, or if justice of the case may require. the judgment against the defendant This construction gives full force to be affirmed, the supreme court shall the word “modify” in $ 7589, supra, order the original judgment to be and must, accordingly, be the conenforced."

struction that should be adopted, Thus the law stood until 1901, giving this court

-right to when provision for a writ of error, full power to modi- modify conpreviously allowed only on applica- fy any judgment. tion, for good cause shown, was left This power should, of course, not be out, and the legislature provided: exercised where an error in the rec"In all criminal cases after final ord is one which had deprived a dejudgment and within one year after fendant of a fair trial throughout, the rendition of the judgment, pro- prejudicially affecting the convicceedings to vacate, modify or annul tion for any crime at all, and it may such judgment, may be begun in the well be that the power can be exersupreme court by petition in error cised only in a comparatively few

judgment. viction.

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