No. 12921
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1975
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs -
ROGER G. CARYL,
Defendant and A p p e l l a n t ,
A p p e a l from: D i s t r i c t Court o f t h e T h i r d J u d i c i a l D i s t r i c t ,
Honorable Nat A l l e n , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Maurice A. M a f f e i a r g u e d , B u t t e , Montana
John Radonich a r g u e d , Anaconda, Montana
F o r Respondent :
Hon. R o b e r t I*. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
Montana
J o c k Anderson, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
M. K. D a n i e l s a p p e a r e d , Deer Lodge, Montana
Submitted: November 6 , 1975
Decided :
EC r
12 m
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant was convicted by jury verdict of two first
degree murders and a first degree assault in the district court,
Powell County. Judge Nat Allen sentenced him to two consecu-
tive terms of life imprisonment for the murders and an additional
term of ten years for the assault. Defendant appeals from the
judgment of conviction and denial of his motion for a new trial.
Defendant is Roger G. Caryl, an 18 year old at the time
of the crimes charged and at the time of trial. He was employed
as a ranch hand at the Whitetail ranch near Ovando, Montana. On
the morning of October 7, 1973 he entered the kitchen at the main
lodge of the ranch with a shotgun in his hands, a pistol in a
holster at his side, and a knife in his belt. As he entered
Dianna Schnaible, a ranch employee, was going downstairs to get
some coffee; defendant told her to get back in the kitchen and
she did so. Seated around the kitchen table were John Miller,
defendant's employer, and Arlene Needles, a ranch employee. Miller's
wife, Roberta, was either seated at the kitchen table or standing
by the dishwasher. Ruby Judd, the ranch cook, was standing by
the stove and Dianna Schnaible had walked over behind her.
Defendant said "Here's hello from ", it being un-
certain who was named. The sequence of events thereafter is
confused. In any event, defendant shot John Miller and Ruby Judd
with the shotgun, the latter during her attempt to take the shot-
gun away from defendant. According to Dianna Schnaible, defend-
ant also shot at her but missed.
John Miller, Roberta Miller and Arlene Needles ran out-
side the main lodge building to the Copenhaver house. John
Miller died there within a short time from the gunshot wound.
Ruby Judd was taken by ambulance to a hospital in Missoula where
she died that afternoon.
Immediately after the shooting Steve Foundation, brother
of Roberta Miller, and Jerry Schnaible, husband of Dianna
Schnaible and an employee at the Whitetail ranch, went to the
kitchen of the main lodge where Ruby Judd was lying on the floor.
Both testified that Ruby Judd stated that defendant shot her.
Defendant left the Whitetail ranch in Ruby Judd's car
and escaped the dragnet set up to apprehend him. He traveled to
Denver, Colorado and then to Miami, Florida where he was appre-
hended in February, 1974 and returned to Montana.
On March 7, 1974 an Information was filed in the district
court, Powell County, charging defendant with three crimes: (1)
first degree murder of John Miller, (2) first degree murder of
Ruby Judd, (3) first degree assault of Dianna Schnaible. Defend-
ant was not charged in connection with the deaths of Steve Akins
and Sam Akins, ranch employees, whose bodies were found in the
bunkhouse on the Whitetail ranch occupied by them and defendant.
Defendant entered a plea of "not guilty" to each charge.
He gave notice of his intention to rely on the defense of mental
disease or defect excluding responsibility.
His defense at the trial principally focused on his claim
that he was not responsible for his acts because of mental disease
or defect. He testified in substance that the night preceding
the killings and assault he drank some whiskey and took a "red"
(i.e. a nonprescription drug), got "bombed", and could remember
nothing more until a couple of days thereafter when he stopped
at a motel in southern Montana. He did not deny the killings
but claimed a state of mind incapable of forming the specific
intent required to constitute the crimes. He also contended that
the fact of the assault on Dianna Schnaible and the requisite
specific intent was not proven.
The major battleground at the trial concerned his claim
of mental disease or defect. The testimony at the trial con-
sisted of events, attitudes and relationships during his child-
hood and during his employment at the Whitetail ranch coupled
with expert opinion evidence from psychologists, a social worker,
and a psychiatrist concerning the presence or absence of mental
disease or defect.
The evidence indicated, among other things, that defend-
ant was born on September 3, 1955 in Japan where his father was
stationed in the Air Force. His mother was a registered nurse.
Testimony indicated that defendant grew up in Mount Zion and
Decatur, Illinois and that he was a high school graduate with
average grades. From time to time he became a disciplinary prob-
lem at school resulting in temporary suspensions. As he went
through high school, he spent progressively less time at home and
became more isolated from his parents.
From an early age he became obsessed with the "old west",
cowboys,and gunfighters. He wore western clothes, cowboy boots,
and talked with a drawl. He became fascinated with early Texas
history, southerners, and the Confederacy. The night he grad-
uated from high school, he headed for Texas where he spent a few
days. He returned home and in August, 1973 headed west with a
high school friend, eventually ending up at the Whitetail ranch.
He told them his name was Texana Jess McCord, apparently
from a television program; that he was from Texas where his folks
had a ranch; that he was an experienced cowboy; that he had been
wounded in Vietnam while serving with the U. S. Marines; and many
other fantasies of the same general tenor. He was considered
a braggart and a liar by many of those at the Whitetail ranch.
Testimony further indicated that he had never been paid
for his work at the ranch; that he was behind in his car payments;
that he had damaged his employer's truck when he ran it off the
road; that he had been given three traffic citations which were
unpaid and further action was threatened; that he had shot his
employer's dog; and that his employer was going to discharge him
and have him removed from the premises. He began worrying on
the Saturday night before the Sunday morning shootings, went to
the bunkhouse, and began to drink. The two Akins and a "long
haired" friend appeared at the bunkhouse; the "long hair" gave
him a "red" which he swallowed; defendant went outside "bombed"
and does not remember anything further until a couple of days
after the shootings.
After charges were filed against defendant, he was ex-
tensively examined and tested over a four week period at the
Warm Springs State Hospital. He was also examined and tested by
a psychologist retained by the defense.
The principal report and testimony on behalf of the
state was given by Dr. M. F. Gracia, a psychiatrist at the Warm
Springs State Hospital. His diagnosis of defendant was: without
mental disorder; episodic excessive drinking; passive-aggressive
personality; drug dependence, psycho-stimulants (reds); social
maladjustment; unsocialized aggressive reaction of adolescence.
Dr. Gracia concluded: (1) that defendant had the capacity to
understand the proceedings against him and to assist in his own
defense; (2) that at the time of the criminal conduct charged,
defendant had the ability to appreciate the criminality of his
conduct and to conform his conduct to the requirements of law;
and (3) that defendant possessed the capacity to have the partic-
ular state of mind which is an element of the offenses charged.
The defense called Dr. Lester W. Edens, a psychologist,
who gave a report and testimony on defendant's mental state. On
the basis of his testing and examination, Dr. Eden's conclusion
and opinion can be stated in this language from his report:
"In summation, it is the impression of this
examiner that this patient is characterized as
a personality disorder of a non-psycotic nature.
Specifically, the diagnosis would read personality
disorder, anti-social personality type, Code No.
301.7 of the A.P.A. diagnostic and statistical
manual of disorders. In addition to the primary
diagnosis, it is the impression of the writer
that there are underlying schizophrenic symtoms
not yet characterized, that is, Mr. Caryl on
occasion appears to present contaminated thought
processes and inappropriate mannerisms and re-
sponses. The dynamics related to a personality
disorder, together with the milieu, undoubtedly
contributed to the reported incident for which
this patient is incarcerated. Additionally, with
a tendency towards periodic disorganization of
thought processes, his condition has been and will
-
continue to be disabling, particularly when corn-
pounded with the induction of alcohol and/or
non-prescriptive drug abuse."
Defendant's specifications of error can be grouped to
permit ease of analysis and discussion:
(1) Insufficient evidence to support the conviction.
(2) Error in denying defendant a pretrial interview of
state's witness Dianna Schnaible.
(3) Error in jury instructions.
(4) Error in admitting statement of Ruby Judd.
(5) Prejudicial conduct of the prosecuting attorney.
Defendant contends the evidence was insufficient to
support his conviction on either murder charge or the assault
charge. He contends that proof of one or more elements of each
crime was lacking.
Defendant claims the evidence insufficient to prove pre-
meditation or malice aforethought in the killing of John Miller,
and therefore the most he can be convicted of is second degree
murder.
Premeditation-and malice aforethought are subjective
mental states which can only be proven by the circumstances under
which the killing took place.
"Whether premeditation is present in a given case
is a question of fact to be determined by the jury
from all the circumstances of the case such as
the use of a deadly weapon upon an unarmed vic-
tim, * * * [and] the procuring and preparation
of weapons with which to commit the crime * * *."
1 Wharton's Criminal Law and Procedure, 5 267,
pp. 566, 567, 568.
Here premeditation and malice aforethought can be inferred from
defendant's act of arming himself with deadly weapons, seeking
out his victim, and shooting his unarmed victim without provo-
cation.
Next, defendant claims that the evidence is insufficient
to prove premeditation and malice in the killing of Ruby Judd.
It is apparently defendant's contention that the fact she was
shot while trying to take the shotgun away from him negates these
elements.
The circumstances surrounding the killings and assault
support an inference that defendant intended to shoot as many
people as he could indiscriminately. What has been said hereto-
fore in connection with the killing of John Miller applies as
well to the killing of Ruby Judd. The fact she attempted to defend
herself and the other persons present in the kitchen by grabbing
the shotgun does not necessarily negate the malice and premedi-
tation in defendant's mind. The jury found malice and premedi-
tation and on review this Court will consider the evidence in
the light most favorable to the prosecution who prevailed in the
trial court (Schneider v. United States, 192 F.2d 498; Hellman
v. United States, 298 F.2d 810), and will assume the existence
of every fact which the jury could have deduced from all the
evidence to reach its verdict. State v. Noble, 142 Mont. 284,
384 P.2d 504.
Defendant also claims there is insufficient evidence
to prove that he shot at Dianna Schnaible or to prove a specific
intent to kill her.
The crime of first degree assault is defined by statute
in section 94-601, R.C.M. 1974:
"Every person who, with intent to kill a human
being * * *
"1. Assaults another with a loaded firearm, or
any other deadly weapon, or by any other means or
force likely to produce death * * *,
"is guilty of assault in the first degree * * *".
Dianna Schnaible's testimony that defendant shot at her
with a shotgun is sufficient proof of an assault with a loaded
firearm within the meaning of the statute. The specific intent
to kill can be inferred from defendant's act of entering the
room heavily armed, the shooting of John Miller and Ruby Judd
without provocation, and his succeeding act of shooting at her
at close range and without provocation.
Accordingly, we hold the evidence sufficient to support
defendant's conviction on all three charges.
Defendant claims prejudicial error because defense coun-
sel was unable to interview Dianna Schnaible, the only eyewitness
to the shooting of Ruby Judd and the assault on Dianna Schnaible,
prior to trial.
The background of this contention is that the district
court authorized expenses to defense counsel to travel to Cali-
fornia for a pretrial interview of Dianna Schnaible and other
state's witnesses. When defense counsel arrived in California
on May 29, Dianna Schnaiblels doctor would not permit the inter-
view because she was in an advanced state of pregnancy with the
birth of the child imminent. The state moved for continuance
of the date set for trial because of her unavailability to testify
until after her child was born. The district court granted a
continuance of the trial date to July 15 at which time the trial
commenced. Apparently Dianna Schnaible did not arrive in Deer
Lodge, the place of trial, until about 9:00 p.m. on July 16.
Defense counsel apparently attempted to contact her then, but
her husband would not permit them to interview her because she
was highly nervous and under a doctor's care.
Defense counsel moved to dismiss the first degree
assault charge on this basis. Eventually defense counsel secured
a half hour interview with her during the noon hour of July 17
which defense counsel claimed was "wholly unsatisfactory". Dianna
Schnaible testified thereafter at the trial as the last witness
in the state's case-in-chief. The defense did not cross-examine
her, but requested that she not be excused from the subpoena "in
the event we wish to call her for the Defendant's case". She
was never called as a witness for defendant.
Defendant's claim of prejudicial error must fail. We are
aware of no obligation on the part of Dianna Schnaible to allow
defense counsel to interview her prior to trial short of the
statute concerning pretrial depositions of material witnesses in
criminal cases, section 95-1802, R.C.M. 1947. No attempt to take
her deposition was made. Defense counsel had a copy of the state-
ment she gave following the killings and assault, together with
the representation of the county attorney to the court that he
was aware of no changes. There is no showing that the state inter-
fered with defense counsel's attempts to secure a pretrial inter-
view. Defense counsel actually secured an interview with the
witness prior to her testimony at the trial, albeit "wholly un-
satisfactory" from their point of view. The defense did not
cross-examine her at the trial, nor did they call her as a wit-
ness in their case. There is no showing of prejudice to the de-
fense.
Defendant's next specifications of error concern jury
instructions. He claims error in the refusal of the court to
give his proposed instructions 20, 21 and 23A, and contends that
Court's Instructions 20, 24, 26, and 11 should not have been
given.
Defendant's proposed instruction No. 20 reads:
"You are instructed that, to entitle a defendant
to acquittal on the grounds of mental disease
or defect, he is not required to overcome the
presumption of sanity by a preponderance of the
evidence, or any greater amount of evidence than
enough to raise a reasonable doubt whether at
the time of the killing and assault he was unable
either to appreciate the criminality of his conduct
or to conform his conduct to the requirements of
law. "
This instruction is an incorrect statement of the law. The defense
of insanity must be proved by a preponderance of the evidence.
Sections 94-119, 95-503, R.C.M. 1947. The proposed instruction
was properly refused.
Defendant's proposed instruction No. 21 reads:
"In considering the question of whether the de-
fendant as a result of mental defect or disease
was unable either to appreciate the criminality
of his conduct or to conform his conduct to the
requirements of the law, you should take into
consideration the evidence relating to his occu-
pations and the manner in which he discharged
the same, his personal characteristics, his
peculiarities, his habits, his declarations and
statements, his actions, conduct and appearance,
prior to, at the time of, and after the act
charged in the information, his physical condi-
tion, and any changes in his physical as well as
his mental state, his temper, jealousy, shattered
hopes, desires, and troubles of all kinds, to-
gether with the opinions of experts."
The refusal of this instruction was proper. The jury
was well instructed on the laws applicable to a mental disease
or defect excluding responsibility by Court's Instructions No.
26 through 31. Where the jury is adequately instructed on an
issue by other instructions given by the court, refusal to give
an instruction on the same subject proposed by a party is not
prejudicial error. State v. Espelin, 106 Mont. 231, 76 P.2d
629; State v. Bosch, 125 Mont. 566, 242 P.2d 477. Additionally,
some of the considerations set forth in the proposed instruction
are either beyond the evidence in the case or unrelated to deter-
mining a mental disease or defect, for example defendant's
physical condition or his desires. The scope and extent of the
instructions in a given case are necessarily governed by the
particular evidence in the case. State ex rel. Krutzfeldt v.
Dist. Ct. 163 Mont. 164, 515 P.2d 1312.
Defendant's proposed instruction No. 23A reads:
"You are instructed that, when a defendant is
acquitted on the ground of mental disease or
defect excluding responsibility, the court shall
order him to be committed to the custody of the
superintendent of the Montana state hospital to
be placed in an appropriate institution for
custody, care and treatment."
Refusal of this instruction is not error. We ruled on this issue
contrary to defendant's position as recently as January 8, 1975.
State v. French, Mont . , 531 P.2d 373, 32 St.Rep. 27. We
find no basis to change that ruling here.
Defendant contends that court's Instructions No. 20 and
No. 24 are prejudicial and reversible error. Instruction No. 20
reads :
"Voluntary intoxication is no excuse for crime
as long as the offender is capable of conceiv-
ing an intelligent design; he will be presumed,
if the case is otherwise made out beyond a reason-
able doubt, to have intended the natural and
probable consequences of his own act."
The objection at the time of settlement of instructions was:
"MR. RADONICH: We object to Plaintiff's Proposed
Instruction Number 36 on the ground that the Instruc-
tion is unintelligible. That it would be confusing
to the Jury. That it appears to make intoxication
necessarily to be proven beyond a reasonable doubt
and, although intoxication, we agree, is not an
excuse, intoxication is an element for the Jury to
determine and consider in determining whether or
not the Defendant could form an intent to commit a
crime. "
Court's Instruction No. 24 reads:
"There are certain presumptions of law regarding
a person's intent by which you should be governed.
These are that a malicious and guilty intent is
presumed from the deliberate commission of an
unlawful act, for the purpose of injuring
another. There are other presumptions of law
bearing on the question of intent, which the law
provides are satisfactory if uncontradicted, but
they may be contradicted by other evidence. They
are denominated, disputable presumptions, and
are as follows:
"1. That an unlawful act was done with an un-
lawful intent;
"2. That a person intends the ordinary conse-
quences of his voluntary act."
Defendant did not object to this instruction at the time of
settlement. The gist of the objection defendant raises on appeal
is that these two instructions permit the jury to presume a
specific intent.
In a murder case, the jury is entitled to presume the
specific intent that is an element of the crime from the act of
killing. State v. Colbert, 58 Mont. 584, 591, 194 P. 145. In
that case this Court said:
" * * * The rule in other cases in which a specif-
ic intent is a necessary element of the crime is
that the prosecution is required to prove it, or,
what is equivalent, circumstances from which the
jury may properly infer such intent. In such
cases the propriety of giving the instruction is
at least questionable. * * * But in murder cases,
section 9282, supra [94-7212, R.C.M. 19471 dispenses
with the necessity of evidence showing such intent,
leavinq it to be supplied by the presumption arisinq
from the proof of the act of killing. Whatever,
therefore, may be said of the propriety of the giv-
ing of the instruction in cases of manslaughter * * *
as this is a murder case, the qivinq of the instruc-
tion was entirely proper." (Emphasis supplied).
Although there is a split of authority in other jurisdictions
whether this presumption applies to a case of first degree
assault, Montana allows the presumption. State v. McLeod, 131
Mont. 478, 489, 311 P.2d 400. In that first degree assault case,
this Court said:
" * * * With this fact established the law presumes
that the defendant was sane at the time he committed
the act; that defendant committed the unlawful act
with an unlawful intent, and that defendant intended
the ordinary consequences of his voluntary
act. * * * " (Emphasis supplied).
Defendant also objects to Court's Instruction No. 20
on the basis that it does not allow the jury to consider in-
toxication as it relates to the formation of specific intent,
but allows a presumption to arise and supply the missing finding.
In addition to what has been said heretofore concerning
the presumption of intent, we note that court's Instruction
No. 21 negates defendant's contention. It states in part:
"An intoxicated or drugged condition may be taken
into consideration in determining the existence
of a mental state which is an element of the offense
* * *-'I
The instructions must be read as a whole and when so read, the
effect of intoxication on the specific intent required to consti-
tute the offense is clear and a correct statement of the law found
in section 94-119, R.C.M. 1947.
Defendant also claims that court's Instruction No. 26 was
prejudicial error. That instruction reads:
"You are instructed that a person is not res-
ponsible for criminal conduct if at the time
of such conduct as a result of mental disease or
defect he is unable either to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law.
"The terms 'mental disease or defect' does
not include an abnormality manifested only by
re-repeated criminal or otherwise antisocial
conduct " .
Defendant's objection on settlement of instructions was:
"MR. RADONICH: This is the statute and we would
object, Your Honor, to Plaintiff's Proposed In-
struction Number 32 on the grounds and for the
reason that there is no evidence in the case
that the Defendant is a re-repeated criminal.
This goes to several criminal procedures. This
portion of the statute is to be used only where
you have the persons who are mentally irrespon-
sible. This is not to be used in a case of this
nature. "
The substance of defendant's objection to this instruc-
tion on appeal is that the second paragraph of the instruction
suggests to the jury that defendant is a re-repeated criminal
m d therefore not entitled to the defense of mental disease or
defect excluding responsibility.
We do not consider the instruction susceptible to such
interpretation. The language of the instruction refers to
"re-repeated criminal or otherwise antisocial conduct". It
does not refer to a re-repeated criminal. It clearly and simply
says that an abnormality manifested by such conduct standing
alone does not constitute a "mental disease or defect". It is
taken directly from section 95-501(b), R.C.M. 1947, which provides:
"As used in this chapter, the terms 'mental disease
or defect' does not include an abnormality mani-
fested only by re-repeated criminal or otherwise
antiocial conduct."
The instruction is a clear and correct statement of the law and
unobjectionable.
Defendant objects to court's Instruction No. 11, which
reads:
"If the killing was unlawful only, manslaughter
is the crime; add to the element of unlawfulness
malice aforethought only, and the murder of the
second degree is the crime; and, lastly, add
deliberation to unlawfulness, and malice aforethought
and murder of the first degree is the crime."
Defendant's objection on settlement of instructions was:
"MR. RADONICH: The Defendant objects to Court's
3 on the grounds that it is an incomplete statement
of the law in that it leaves out the defense pre-
scribed by Section 94-2503."
The essence of defendant's objection on appeal is that
the instruction is confusing because manslaughter was not defined
as the unlawful killing of a human being, without malice, upon
a sudden quarrel or heat of passion; and because the word "only"
was used in defining manslaughter and second degree murder.
Concerning the first part of defendant's objection, i.e.
that the instruction is confusing because it is not a complete
statement of the law and other instructions must be referred to
in order to give it a clear meaning, in answer we simply quote
from State v. Brooks, 150 Mont. 399, 410, 436 P.2d 91:
"The whole of the law on a subject cannot be given
in one instruction. In determining the effect of
given instructions, all instructions must be con-
sidered as a whole and if they fairly tender the
case to the jury, the fact that one or more in-
structions, standing alone, is not as full or as
accurate as it might have been is not reversible
error. State v. Watson, 144 Mont. 576, 398 P.2d
949; State v. Stoddard, 147 Mont. 402, 412 P.2d
827; State v. Noble, 142 Mont. 284, 384 P.2d 504"
Answering the second part of defendant's objection, we
simply note that the word "only" was not used to minimize the
quantum of proof needed for the state to carry its burden as in
State v. Taylor, 163 Mont. 106, 515 P.2d 695, but was used to
distinguish the different degrees of homicide. It is unobjection-
able in this context and a correct statement of the distinction.
Defendant next claims reversible error in admitting in
evidence the testimony of Steve Foundation and Jerry Schnaible
that Ruby Judd identified defendant as the person who shot her.
Ruby Judd's oral statement was made within a short time after
she was shot, while she was still lying on the floor grievously
wounded. While we agree defendant's contention that the state-
ment is inadmissible as a dying declaration for lack of a proper
foundation, we hold the statement admissible as part of the res
gestae.
The law of Montana with respect to the res gestae excep-
tion to the hearsay rule is summarized in this language from Sulli-
van v. Metropolitan Life Insurance Co., 96 Mont. 254, 266, 29
"Declarations made while the mind of the speaker
is laboring under the excitement aroused by the
accident, before there was time to reflect and
fabricate, are admissible. Such statements need
not be entirely contemporaneous with the main
incident; they may be in the form of narrative.
Yet, if circumstances show they were made while
the excitement produced by the incident still
dominated the mind and was a producing cause,
they are nevertheless part of the main event
and competent."
The test of admissibility is stated in this language
from State v. Newman, 162 Mont. 450, 458, 513 P.2d 258:
"'Declarations made while the mind of the speaker
is laboring under the excitement aroused by the
accident, before there was time to reflect and
fabricate, are admissible.'"
The question of admissibility is left to the sound legal
discretion of the trial judge, and will be reversed on appeal
only in case of manifest abuse. State v. Medicine Bull, Jr.,
152 Mont. 34, 445 P.2d 916.
Here the facts fit the test of admissibility like a
glove and Judge Allen was correct in admitting the statement.
Finally defendant contends that the prosecution's repeated
attempts to refer to the killing of the two Akins constituted a
wilful1 attempt to prejudice the jury against defendant.
After the county attorney's reference to the death of
the two Akins in his opening statement was ruled inadmissible,
the county attorney on three or four occasions in examining wit-
nesses aslted questions such as these: "And, what did you find
at the bunkhouse?'' "And whatever happened to Sam (Akins)?'' "Do
you know where Sam and Steve Akins are now?" On each occasion
defendant's counsel objected and was sustained before the witness
answered.
Following conviction the trial judge denied defendant's
motion for a new trial. We consider such conduct to fall far
short of reversible error, particularly where the trial judge
did not consider it significant enough to warrant a new trial.
The guilt of defendant to the crimes charged was clear. It was
common knowledge that the two Akins were killed at the same time.
The jury was instructed:
"In your deliberations you will only consider the
testimony of the witnesses upon the witness
stand and such exhibits as have been admitted
in evidence. No juror shall allow himself
to be influenced by anything which he may have
seen or read outside of the evidence and exhibits
received by the Court during the course of this
trial. "
A measure of the lack of significance of this alleged
error is found in the failure of the defendant to move for a
mistrial, submit an additional cautionary instruction, request
the court to admonish the county attorney in the presence of the
jury, or take any further corrective action.
For the foregoing reasons, we affirm the judgment of
conviction and denial of defendant's motion for a new trial.
Justice
We concur:
.................................
I
Chief Justice