State v. Trujillo , 117 Utah 237 ( 1950 )

PRATT, Chief Justice.

Defendant Joe Trujillo was charged with and found guilty of the first degree murder of one Max Lopez. He has appealed.

The first assignments of error confront us with a jurisdictional question founded upon Sec. 105-17-1, U. C. A. 1943, which we quote: (Referring to an information)

“Filing After Examination and Commitment.

“When a defendant has been examined and committed as provided in this code it shall be the duty of the district attorney, within thirty days thereafter, to file in the district court of the county in which the offense is triable an information charging the defendant with the offense for which he is held to answer. If the district attorney fails to file the information within the time specified, or when required so to do by the court, he shall be deemed guilty of contempt, and may be prosecuted for neglect of duty as in other cases.” (Italics added.) (In the present case a city judge was the committing magistrate, see Sec. 105-10-5, U. S. C. A. 1943.)

On July 2, 1948, the district attorney filed, in the district court, the information charging the defendant as indicated above. The transcript of the proceedings of the preliminary hearing in the city court was not filed in the district court until July 6, 1948. The defense maintains that the filing of the information before the transcript was filed was error, and argues two reasons which are set out as follows: (They are in the words of appellant’s brief.)

(1) The district court does not have jurisdiction in a felony case until the proceedings from the committing magistrate are filed in the district court.

(2) The district attorney does not have authority to file an information until the proceedings from the committing magistrate are filed in the district court.

These issues were raised in the lower court by motion to quash the information, and conform to the grounds authorized by Sec. 105-23-8, U. C. A. 1943, covering motions to quash.

When does the district attorney’s duty to file an information first arise? Within 30 days of that time he must act.

The information recited the commitment as follows:

“Information

“Joe G. Trujillo, also known as Joe Garcia Trujillo, having been on the 1st day of July, 1948, by S. J. Sweetring, Judge of the Price City Court in and for Carbon County, State of Utah, duly committed to answer to the crime of murder in the 1st degree, is accused by Duane A. Prandsen, District Attorney of the Seventh Judicial District of said crime committed as follows: That said defendant on or about the 26th day of May, 1948, at and within Carbon County, State of Utah, murdered Max 'Lopez * * *” (Italics added.)

Speaking of the July 1st proceedings before him the committing magistrate’s transcript of the proceedings has this to say:

“The court found that the offense of murder in the first degree had been committed; and that there was sufficient cause to believe the defendant Joe G. Trujillo, also known as Joe Garcia Trujillo, guilty thereof; and it was ordered by the court that said defendant be held to answer to said charge; and that he be committed to the Sheriff of Carbon County without bail.”

This transcript was dated July 6, 1948, and was filed in the district court on that date. Included with the transcript was the complaint indorsed July 1st, 1948, as required by Secs. 105-15-19 and 20, U. C. A. 1943; and a copy of the commitment dated July 1st, 1948, in the form required by Sec. 105-15-23, U. C. A. 1943. This latter section we quote along with the affidavit of the committing magistrate as to his compliance with its requirements.

“105-15-23. Committment How Made and to Whom Delivered.

“If the magistrate orders the defendant to he committed, he must make out a commitment, signed by himself and his official title, and deliver it with the defendant to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment.”

The Affidavit of Committing Magistrate

“* * * That at the conclusion of the preliminary hearing as aforesaid affiant herein made an Order holding the defendant for trial in the District Court on the offense set forth in the Complaint on file in the City Court of Price City. That an Order of Commitment was not prepared at the time the defendant left the Court Room after the Order was made holding him for trial nor was any commitment made and signed by me until later in the day. A commitment was not signed by me in the presence of the defendant and the officer having him in charge nor was a commitment delivered with the defendant to the officer having him in charge at the time of the departure of said officer with the defendant from the courtroom after the order was made and endorsed on the complaint holding the defendant for trial.

“I do not recall whether or not I personally delivered the commitment to the Sheriff of Carbon County or whether the Clerk of the Court delivered the commitment to the Sheriff at my direction but I am positive that it was not delivered by me to anyone in the Court Room in the presence of the defendant. * * *”

(It might be well to mention here a fact we all know that as the City Court has a clerk’s office many actions of the judge would be through that office, whereas a Justice of the Peace, without such facilities would act in person.)

There are two more sections of our code bearing directly upon this procedure that we wish to quote before discussing the merits of those two assignments of error:

“105-15-32. Magistrate to Make Full Returns of Proceedings to District Court — Penalty for Failure.

“When the magistrate has discharged the defendant or has held him to answer, he must, within five days, return to the clerk of the district court the warrant, if any; the complaint and the depositions, if any; a list of the names and the post-office addresses of all witnesses for the state, if he can ascertain them; and all undertakings of bail and for the appearance of witnesses taken by him, together with a certified copy of the record of the proceedings as it appears on his docket. Failure of the magistrate to make such return within the time herein stated shall be deemed a contempt of the court before which the defendant is required to appear, for which the magistrate shall be fined by said court not less than $10 and not more than $100.”

Section 19-15-3, U. C. A. 1943, covering duties of the county attorney, has this to say:

“To Transmit Record in Felony Cases.

“Immediately upon the termination of any examination before any justice of the peace of any person charged with felony, where such person has been ordered held to answer in the district court, the county attorney shall forward to the district attorney a transcript of the docket of such case, including a copy of the original complaint and of the commitment, a list of the necessary witnesses for the state with their post-office addresses, and such a statement of the facts as will enable the district attorney to determine for what specific offense an information should be filed in the district court.” (Italics added.)

All public offenses such as this felony are to be tried upon information after examination and commitment. Art. 1, Sec. 13, Utah Const. Secs. 105-1-4 and 105-16-1, U. C. A. 1943. See also State v. Johnson, 100 Utah 316, 114 P. 2d 1034, and Sec. 105-21-5, U. C. A. 1943.

In the case of State v. Freeman, 93 Utah 125, 71 P. 2d 196, 199, in discussing the question of jurisdiction in the district court due to a claim that defendant had not had a preliminary hearing, this Supreme Court said:

“(1) The right of the district court to try any one for a felony rests upon the filing in such court of a proper indictment by grand jury, or the filing of a proper information by the district attorney, or other proper counsel for the state. R. S. Utah 1933, 105-17-1. And such information can be filed properly, only after the accused has been duly bound over and held to answer in the district court by a magistrate having jurisdiction to investigate the charge and determine if there is probable cause to believe an offense has been committed and that defendant is guilty thereof.”

H* * * * ‡

“That court, as indicated above, acquires its right to proceed from the ‘binding over’ of the defendant, his being held to answer, by a magistrate. True, the magistrate is required to indorse on the complaint, if he holds the defendant to answer, an order to the following effect:

“ ‘It appearing to me that the offense in the within complaint mentioned (or any offense according to the fact, stating generally the nature thereof) has been committed, and there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer to the same.’ R. S. Utah 1933, 105-15-19.

“It is then provided that the magistrate must transmit to the district court the warrant, the complaint, the depositions, if any, ‘together with a certified copy of the record of the proceedings as it appears on his docket.’ R. S. Utah 1933, 105-15-32.” (Italics added.)

To bring the case to the knowledge of the district attorney as a basis for his preparation and filing of the information, Section 19-15-3 above makes it unnecessary that the transcript of the proceedings before the committing magistrate be on file in the district court. The district attorney gets that information from the county attorney. He may rely upon the county attorney’s information. It is not likely that Sec. 105-17-1 (above) which requires him to act within a thirty day period, would start that period to running at a time when his action would be useless from the standpoint of initiating district court action. The defense seems to think that his duty to act does not arise until the “return” of the committing magistrate, as required by Sec. 105-15-32 (above) has been filed in the district court. But a “return” of proceedings is usually merely an evidentiary matter — a written statement by the officer of his official acts pursuant to particular authority. 42 Am. Jur. 104, Sec. 117. His official acts are the important matters in the question of jurisdiction. The return in this case recites that the accused was held to answer on July 1st. A commitment is shown to have been issued and to have been delivered to the officer on that date. What more should be required so far as commiting the accused is concerned? Is not the accused committed when the committing magistrate orders him held pending further proceedings against him? When the county attorney is called upon to inform the district attorney of the commitment of the accused, Sec. 19-15-3 above, he is directed to forward a copy of the commitment along with other papers. Presumably this is to indicate to the district attorney that defendant has been committed. It seems reasonable to say that the delivery of the commitment to the officer pursuant to Sec. 105-15-23, above, is the final act that accomplishes the accused’s commitment, and that the time for the district attorney to file the information starts running from that date. The district attorney learns of that date “immediately,” Sec. 19-15-3, from the county attorney. The requirement that the magistrate make a return of his proceedings to the district court, Sec. 105-15-32 above, is for the purpose of promptly getting before that court for evidentiary purposes, a record of the steps leading up to the filing of the information. The accused is brought under the power of the district court by the filing of the information; and the record from the committing magistrate is to evidence the regularity or irregularity of the proceedings leading up thereto. In other words, the filing of the transcript is not a part of the process of committing the accused; but is merely a method of recording the facts of his commitment that they may be examined for future use. The order on back of the complaint binds him over and the commitment holds him to answer. Secs. 105-15-19, 20, and 23, U. C. A. 1943. After these sections have been complied with, by the committing magistrate, the accused is “committed as provided in this code.” He is committed to await proceedings in the district court.

The defense assignments of error raising these issues are not well taken.

Now to the merits of the case.

The fatal shooting was the aftermath of an evening of drinking and visiting of various bars, in which four had at times participated.

One Mondragon and defendant Trujillo were drinking together, at various bars in Price. They encountered the deceased Lopez and one Herrera, who were also together drinking. The four joined forces and continued drinking at various bars. Trujillo indicated that he and the others had some whiskey which he had purchased during the day, and that the others also had some wine, which he, defendant, had purchased earlier in the day for Mondragon. There appears to have been some arguments between Herrera and Trujillo, and between Lopez and Trujillo during the evening. It was nothing serious apparently and the parties appeared to have parted at the beer halls friendly toward each other. Herrera indicated that he and Trujillo had had a disagreement at one of the bars which they visited, but that later they were on friendly terms, and that Trujillo and Lopez had settled their differences.

Trujillo, accompanied by Joe Mondragon, in Trujillo’s automobile, a two-tone black and grey 1942 Buick, started out on highway U-10 in the direction of Hiawatha, Utah. Enroute they encountered Lopez and Herrera in the Lopez automobile. According to Trujillo’s version the Lopez car was parked on the shoulder of the highway with its lights off and Herrera flagged him down. According to Herrera’s version, Lopez drove his automobile only a short distance south out of Price and then requested that he, Herrera, drive. Thereafter Herrera proceeded to drive south toward Hiawatha, when the defendant Trujillo’s car passed them and forced them off the highway.

The facts from the time of leaving the beer hall, are disputed, with at least two versions being presented, and frequently three versions, one from each of the three participants.

As to the events leading up to the fatal shooting, after Trujillo stopped his car, three versions are presented. Herrera’s version is that Trujillo after running them off the road, jumped out of his car and ran back toward the Lopez car and said: “Come this way, and I will take you both on.” Then he, Herrera, got out of the car followed by Lopez, crossed the road, and thereafter he saw that Trujillo had a gun in his hand. That at this time Trujillo threatened to shoot them, and that he, Herrera, offered to fight if the gun was disposed of. Then he removed his shirt, and moving in closer, grabbed Trujillo’s wrist. They wrestled and Trujillo hit him in the stomach doubling him over, and making him dizzy. While in this dizzy condition he heard a shot which from the direction of the flame appeared to be coming toward him. He then heard two more shots and saw the defendant go from the Lopez car to his own car, get in it and drive away. Herrera then went to the Lopez car and opened the door of the car and there saw Lopez, inside. Herrera admitted to having consumed several drinks of beer, but maintained that his dizziness on the road came from having been struck in the stomach by Trujillo, and not from his drinking. He indicated that he did not recall that Mondragon had ever come near him after the shots were fired.

Mondragon’s account is that he was with Trujillo, when they passed the Lopez car while it was still moving, and Trujillo said he was going to stop and see the boys. He went passed them and stopped and got out. Mondragon got out when he heard a shot fired, and saw Trujillo and Herrera talking. Herrera asked the defendant if defendant was going to shoot him, and defendant replied, “No, but don’t get near me.” Herrera then grabbed Trujillo, and they began to wrestle. He heard another shot as they were wrestling and Herrera fell. Mondragon placed Lopez as being beside him at the time the wrestling began. When Herrera fell, he Mondragon went to where Herrera lay and helped him to the rear of the Lopez car where he left him and then he proceeded to the defendant’s car. He passed Trujillo who was standing in front and to the left of the Lopez car. After he passed the defendant, he heard another shot, which shot came from somewhere behind him, and he looked back and saw the defendant coming from the direction of the Lopez car. Neither Mondragon nor Herrera saw Lopez after the fight commenced. Trujillo in his account, however, indicates that Lopez was shot while on the highway, and that he saw Lopez where he fell.

The Trujillo account is to the effect that the Lopez car was stopped along the highway with the lights out, and he stopped, and went to that car to assist Herrera in fixing the lights. Herrera used vile language toward him, took off his shirt and commenced fighting with him. Both Lopez and Mondragon were out of the cars, and Mondragon instructed Lopez to stay out of the fight, as he was about to interfere when Trujillo had knocked Herrera down. During the course of the fight Mondragon fired five shots from the gun, which he had taken from the glove compartment of the defendant’s car. When defendant heard the shots he let go of Herrera, and saw Lopez fall on the highway, and Mondragon called to him to leave. They then drove away, and agreed on a false story if Lopez was dead, because Mondragon had done the shooting and it was Trujillo’s gun. Defendant further claims that Mondragon told him he had been required to shoot Lopez to keep Lopez from attacking Trujillo with a knife. Mondragon first entreated Trujillo to help him escape, but that he, Trujillo, refused, and then came the agreement to stick to the false story.

After the shooting and after the Trujillo car had driven away, Herrera’s story is that he became frightened that Trujillo might return and shoot him, and he therefore ran out onto the fields adjoining the road. Thereafter he returned, and flagged a car down and reported the fatal shooting. Sometime thereafter the police arrived at the scene and Herrera returned to the road to them.

Mondragon and Trujillo agree that they drove toward Hiawatha, and then turned around and drove back past the scene of the shooting. They did this twice, the second time observing the police at the scene, and they then continued on toward Price. Enroute they were passed by the police car, and as they entered Price they were stopped at a police blockade and taken into custody. Both told a fabricated story of having been to Hiawatha to see Trujillo’s daughter, and having returned when they saw no lights at the place where his daughter was staying, and that they knew nothing about the shooting. Later, at the inquest, Mondragon changed his story to substantially what is set forth above. After the inquest, Trujillo called the sheriff and othér officials together, and accused Mondragon of the shooting, and confessed that the story previously told by both was false.

Trujillo lead the officers to the place where the gun had been thrown out of the car. Trujillo claiming that Mon-dragon had thrown it out as they approached Price. The gun was found on the west side of the highway. Trujillo explains this by saying that Mondragon got in the back seat as they passed the scene of the shooting going toward Price, to see if the officers were following them, and that he wound down the rear window and threw it out the left rear window. The evidence indicated that the Trujillo car was a late model Buick; one in which the rear windows would roll only partially down.

Five cartridges were found in a little pile at the side of the road about a mile and a quarter south of the scene of the shooting, at a point where tire tracks indicated that a car had turned around. The tire tracks were identified by a state highway patrolman as being the same as those of the Trujillo car.

The state introduced testimony of Lopez’s widow which established that Trujillo had sold Lopez coal some four years earlier. Herrera also at one point in his testimony stated that Max (Lopez) told him they (Lopez and Trujillo) had had a quarrel in reference to coal, but that Max had said: “All right, we are all right now,” and from this he had concluded that they had had some type of difficulty which had been agreeably settled. The substance of Herrera’s testimony was that if Lopez and Trujillo had any disagreement, that it was settled.

The evidence of the wounds, the blood and the position of the Lopez body after the shooting is quite important in this case, especially in view of the conflicting stories by the participants.

An examination of the Lopez body revealed that two .32 caliber slugs had entered his body. One slug entered the body under the left arm pit, and traversed a straight line across the body, coming to rest finally just under the skin on the opposite or right side of the body a little back of the right arm, and under that arm. The other slug entered the body at about the left nipple and traversed a diagonal course, coming to rest close to the surface on the right side, and at a point slightly above the hip bone. The body when found by the police was in a semi-sitting position, slumped to the right in the Lopez car, a Studebaker coupe. The feet were in the general position of driving, and the body had slumped over on the seat, toward the right. There was evidence of profuse bleeding through the nose and mouth and little bleeding from the wounds proper. The car seat was splattered with blood; no blood was discovered on the outside of the vehicle or around it. In response to hypothetical questions, an expert medical witness testified that the bullet going straight across would cause death in a very few minutes, and loss of bodily control within a minute or two; and that the one traversing diagonally would probably prove fatal in a very short time — within a minute, more or less, and almost instantaneous collapse.

The defense attacks the court’s instructions No. 2 and No. 7, as failing to properly distinguish between first degree and second degree murder. Instruction No. 2 is a long instruction which defines murder in the first degree, murder in the second degree, voluntary manslaughter and involuntary manslaughter; and their various elements.

Before discussing its merits, let us consider briefly the principal elements of murder in its two degrees. “Malice aforethought” is a state of mind. The “aforethought” is the giving thought beforehand to malicious feelings or desires. It has no implications of adopting a plan of action to exercise those feelings or desires. “Malice” as applied to murder, Sec. 103-1-3, 103-28-2, is the wish to kill, or to do great bodily harm, or to do an act knowing that its reasonable and natural consequence would be death or great bodily harm. Thus, when murder is defined as the unlawful killing of a human being with malice aforethought, it is the unlawful killing of a human being after giving thought beforehand to the desire to kill, or to cause great bodily injury or to do an act knowing that its reasonable and natural consequence would be death or great bodily injury. This is the common law murder, or murder in the second degree under our code.

Murder in the first degree has added to the above state of mind the elements of deliberation and premeditation— elements that imply a cool weighing and consideration of a means of accomplishing the results of those malicious desires. It is evidenced by some of the specific methods indicated, such as poisoning or lying in wait. Sec. 103-28-3. (In this case we are not concerned with killings committed in the perpetration of the particular felonies specified in the section.) The fact that the person killed was not the intended victim does not make the offense any the less murder if the intent to kill any person was existent.

Instruction No. 2, in the present case, seeks to define in the abstract the elements of murder in the first degree and murder in the second degree. It fails to properly recognize that in both degrees the intent to kill, as distinguished from the intent to do great bodily harm, may be an important element in the meaning of “malice” depending, of course, upon the circumstances of the case. Furthermore, applying the instruction concretely to the case before it, the lower court left out that element in the consideration of murder in the second degree. This error is found in instruction No. 7. In that instruction the court limited the intent in second degree murder to that of doing great bodily harm. The effect of such a limitation is to impress the jury with the thought that if the intent to kill was present, then the offense must be murder in the first degree; whereas, if the intent is that of doing great bodily harm, it is murder in the second degree, depending of course, upon the other elements necessary. It takes no argument to convince one that such an error is prejudicial to the accused. In other words, if all the elements of murder in the second degree were shown, and one of those elements was the intent to kill, the jury must conclude from the court’s instructions that, in view of that intent to kill, their verdict should be murder in the first degree, not second degree.

In view of the necessity of returning the case for a new trial on account of the specific prejudicial error just discussed, we shall give a general discussion of other alleged errors.

The offense of voluntary manslaughter is defined in the case of State v. Cobo, 90 Utah 89, 60 P. 2d 952, as including the intent to kill or the intent to do great bodily harm. (See headnote 2 thereof.) But it also says that the intent may be inferred from the use of a deadly weapon. In the instructions in this case, the lower court spoke of intentional shooting into the body of the deceased, but made no statement of what intent as to injury to the victim or death to the victim might be inferred from such a shooting, or from the use of a deadly weapon. There is danger in such an instruction in that it tends to lead the jury to believe that an intention to kill, as distinguished from an intention to do great bodily harm, of necessity places the offense in the class of murder, rather than in the class of manslaughter.

The defense has taken exception to this italicized expression in the instructions: — (from instruction No. 6)

“If from any theory of the evidence in this case your minds are satisfied beyond all reasonable doubt that the defendant fired one or more shots into the body of Max Lopez * * *.”

(This is followed by an application of the elements of murder in the first degree.)

It, no doubt, would have been better for the court to have said:

“If from any theory of the evidence viewed in the light of these instructions as to the law * *

but we cannot say that the error, if it was error, was prejudicial to the accused in view of the general stock instructions given by the court that all instructions must be considered together, and not as if one instruction were intended to present the whole law of the case.

The defense has taken exception to the use and the manner of the use of an interpreter. Without going into detail it is sufficient to say that it is within the sound discretion of the trial court as to whether or not an interpreter is necessary. A question and answer typed out in the transcript may appear perfectly clear; but if one were present, as is the trial judge, and heard the witnesses’ answers he might come to an entirely different conclusion as to the clarity of understanding of the English language possessed by the witness. Before the lower court is overruled in his use of an interpreter, there should be positive evidence of an abuse of discretion on his part. It is the function of an interpreter to transmit question and answer between counsel and the witness, that the court and jury may hear and understand what is said. Were all parties talking in English the witness’ answer be it what it may, would go into the record. That situation should continue even though an interpreter is used. It is not his function to try to guide the witness in his answers along a line of testimony he believes is desired. The most he should do is to repeat the questions in the foreign language and to see that the witness understands them; and then repeat in English the answers to the questions, be they what they may. The greatest fault in interpretation lies in the interpreter concluding what is wanted. For example: The question is asked: “What were you doing that night?” Instead of repeating that question in the foreign language the interpreter says, in that language: “They want to know what you were doing the night of the first.” Now the question may not have contemplated the night of the first at all, but the interpreter thought it did — and the result is foreign to the desires of the litigants. The court should see that question and answer are repeated as nearly as possible in translation.

The defense takes exception to the court’s instruction on intoxication. The court instructed properly upon the effect of intoxication upon intent; but limited intent to the two offenses of murder in the first degree and murder in the second degree. It is material in voluntary manslaughter too. However, in this case, the error could hardly be considered prejudicial, as the defendant denied that he was intoxicated, and the jury evidently believed him.

The defense objects to the court’s instruction upon the use of evidence of prior convictions. This instruction is short, and we quote it:

“Instruction No. 19

“Evidence has been elicited from the Defendant to the effect that he has prior hereto been convicted of a felony. You are instructed that such evidence should be considered by you only so far as it may affect the credibility of the Defendant as a witness in his own behalf.”

It properly states the law, and we do not believe that there is any necessity of defining “credibility” as claimed by the defense should have been done. That is a word that has general use. The court must assume that the members of the jury are familiar with words of common use in the English language. The purpose of the instruction could have been clarified to some extent by including therein the caution that such evidence was not to be considered as evidence of guilt of the offense charged.

The verdict and judgment of the lower court are set aside and the case is remanded for new trial.