
    STATE v. McGOWAN.
    No. 4299.
    Decided November 13, 1925.
    (241 P. 314.)
    1. Homicide — Assaults on Deceased’s Wife and Daughters Aeteh Killing Deceased Part oe Same Transaction, and Evidence Thereoe Admissible. In prosecution for murder, held that accused’s acts in assaulting deecased’s wife and daughters after killing deceased, though they would constitute separate crimes, were nevertheless part of same transaction, and were admissible to show wilful intent, and an abandoned and malignant heart, bringing crime within purview of Comp. Laws 1917, §§ 8023-8025.
    
    2. Criminal Law — Not Error to Refuse to Give Requested Charges in Exact Language Requested, Where Court’s General Instruction Substantially Covered Such Request. It is not error to refuse requested charges in exact language requested, where court’s general instruction states substantially the substance of such request.
    Corpus Juris-Cye. References.
    
       Criminal Law 16 C. J. p. 601 n. 35, 37: Homicide 30 C. J. p. 205 n. 87.
    
       Criminal Law 16 C. J. p. 1063 n. 85; p. 1068 n. 3.
    Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.
    Ed. McGowan was convicted of murder, and he appeals.
    
      B. B. Hachett, of Park City, for appellant.
    
      AfmRMEd, and canse remanded, with directions.
    
      Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.
    
      
      
        State v. Bowen, 43 Utah, 111, 134 P. 623; State v. Siddoioay, 61 Utah, 189, 211 P. 968; State v. Seymour, 49'Utah, 285, 163 P. 789; State v. Be Weese, 51 Utah, 515, 172 P. 290.
    
   GIDEON, C. J.

Appellant was found guilty by a jury of the crime of murder in the first degree. From the judgment entered upon the verdict, this appeal is prosecuted.

Counsel for appellant has assigned as error the refusal of the court to give certain requested instructions to the jury. Error is also based upon the rulings of the court in admitting certain testimony over the objections of appellant. The rulings of the court in regard to the requested instructions and the admission of the evidence are relied upon as constituting prejudicial error. In the oral argument and in his written brief, however, only the rulings of the court in the admission of the evidence objected to are discussed.

The homicide occurred at a place called New Helper, in Carbon county, this state. From the testimony of the witnesses for the state and of those for appellant, it appears that the deceased, on January 11, 1924, resided with his family at New Helper, and that he was regularly employed there as a section hand by a railroad company. It likewise appears that in the afternoon of that day, at about 3 or 3:30 o’clock, appellant called at the home of the deceased and spent some little time there in conversation with deceased’s wife. A man by the name of Caldwell came to the house during the time appellant was there. Both appellant and Caldwell left the home of deceased and went toward the town of Helper. In the course of half or three-quarters of an hour, appellant returned to the home of the deceased. The family consisted of the deceased, his wife and two adopted daughters, one of the age of 16 and the other of the age of 12 years. All were colored people. Only the wife of the deceased was in the house at the time appellant returned. It fairly appears from the record that appellant, on the afternoon in question, had a pint bottle of whisky in Ms possession, and it likewise appears that the deceased’s wife had liquor in the house. Appellant testified that he and the deceased’s wife drank together at the time of his first visit. The testimony as to what took place after appellant’s return to the deceased’s home is in conflict. The deceased’s wife testified on behalf of the state, and her testimony is to the effect that, upon the second visit to the home, appellant in effect stated to her that he would kill her unless she submitted to sexual intercourse with him, and that, upon her refusal he repeated the threat and “drew a revolver in miy face.” This witness also testified that at that time one of her daughters returned to the home, and shortly thereafter her husband, the deceased, came in from his work,- that the appellant with a gun in his hand met her husband as he came in at the kitchen door and marched him into the bedroom where the witness and one of the daughters were. This witness further testified that her husband addressed appellant, and said, “What is the matter?” and that in reply appellant addressed some opprobrious remarks to the deceased, stating to him in effect that he intended to kill “every G— d— one of you,” and thereupon fired the shot wMch resulted in death. This witness also testified that after her husband was shot he said to appellant, “What did you shoot me for?” and in reply the appellant again cursed the deceased, and said, “I intended to kill you.”

The testimony of the state is further to the effect that, during the night, and immediately following the shooting, appellant remained in the home, and at the point of a revolver caused the mother and the adopted daughters to undress, and that he thereupon proceeded to criminally assault separately the mother and the two daughters; that appellant refused to permit the mother or the daughters to render any assistance to the deceased, although the deceased was groaning and in great pain and was calling for help.

The appellant remained at the home, of the deceased until about the hour of 5 o’clock the following morning. Immediately after his departure, a physician was called by the members of tbe deceased’s family, but tbe deceased died a few hours thei’eafter.

Tbe rulings of tbe court in permitting tbe state’s witnesses to testify as to tbe conduct of, or crimes committed by, tbe appellant after tbe shooting is tbe alleged error of which appellant now complains. Tbe state justifies tbe admission of tbe evidence on tbe ground that the facts testified to were part of the res gestse, and tended to show tbe intent of appellant in the commission of tbe crime with which he is charged.

The appellant urges tbe rule or principle of law that, on a trial of an accused, charged by the information with a particularly described offense, it is error to admit in evidence testimony of other and different crimes claimed to have been committed by him. It is contended that appellant was charged by the information with having unlawfully, wilfully, and with malice aforethought killed the deceased, one Bob Blevins, and that any evidence tending to show the commission of other or additional crimes was highly prejudicial and should work a reversal of the judgment, that the rulings of the court permitting the state to introduce evidence tending to prove that appellant was, during the night following the homicide, guilty of crimes other than that charged in the information, tended to prejudice the jury against him, and that such evidence was not admissible and was prejudicial. The trial court, in admitting the testimony of the state’s witnesses detailing the conduct of appellant following and preceding the shooting, was careful to instruct the jury, both at the time of the admission of such testimony and in the general charge, that the testimony must not be considered by the jury for the purpose of proving other crimes than that charged in the information; that it must be considered only in "connection with the offense charged and as a part of that transaction.

The rule or principle of law governing the admission of testimony respecting other crimes is stated in 2 Wharton’s Criminal Evidence (10th Ed.) § 920, as follows:

“The well-settled rule that evidence of collateral crimes cannot he introduced on the trial of a homicide charge is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial, and the circumstances surrounding the collateral crime are essential to proof of or to explain the crime charged.”

In State v. Bowen, 43 Utah, 111, 134 P. 623, in the course of the opinion, this court says:

“It is conceded that, as a general rule, evidence of separate and similar offenses is not admissible against the accused on trial for another specific offense. There are some exceptions: Where it is material or proper to show motive, or a general scheme or plan for the commission of the alleged specific offense, where criminal intent, or guilty knowledge of wrongful or unlawful acts or conduct with respect to matters involved in the charge, are material, * * * and where the alleged offense' and other claimed similar or separate offenses constitute parts of one transaction, or of a general scheme or plan, and are so related and connected that a complete account of the entire transaction of the one cannot fairly he given without also showing the other, or where the proof of the one necessarily involves proving the other.”

In State v. Siddoway, 61 Utah, 189, 211 P. 968, this court held:

“No exact limitation of time can be fixed as to when another offense tending to prove the intent of the act charged is remote, and the decision of that question depends upon the circumstances of the particular case, and whether evidence is too remote or not is a question whose decision is largely in the sound discretion of the trial court.”

See, also, State v. Seymour, 49 Utah, 285, 163 P. 789; State v. De Weese, 51 Utah, 515, 172 P. 290; Goersen v. Commonwealth, 99 Pa. 388.

Murder is defined by our statute (Comp. Laws Utah 1917, § 8023) as follows:

“Murder is the unlawful killing of a human being with malice aforethought.”

Section 8024 is:

“Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Section 8025 is:

“Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, of robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life — is murder in the first degree. * * *”

Tbe circumstances surrounding tbe commission o£ tbe offense of wbicb appellant was found guilty and bis conduct, both preceding and subsequent to tbe shooting show tbe crime to be one of tbe most revolting that has ever occurred in this jurisdiction, and tend to show intent to commit murder, as well as being evidence of an abandoned and malignant heart. Tbe testimony of the state’s witnesses tends to show that appellant went to tbe home of tbe deceased for tbe purpose of committing a criminal assault upon tbe deceased’s wife, and, if necessary to accomplish tbe object of bis visit to commit tbe crime of murder. Tbe language that appellant addressed to tbe deceased’s wife upon bis return to her borne indicates clearly tbe purpose of bis visit. While it. is true that his conduct /and acts after tbe homicide, if considered without regard to what preceded such acts and conduct, might be said to be separate and distinct crimes, nevertheless they were part of tbe same transaction, and testimony concerning such acts and conduct was admissible, both to show willful intent and as evidencing an abandoned and malignant heart.

With respect to tbe refusal of tbe court to give certain instructions requested by appellant, wbicb refusal is assigned as error but not argued in appellant’s brief, it is sufficient to state that tbe substance of tbe requests was given in tbe court’s general instructions to tbe jury. For that reason no error was committed by tbe court in failing or refusing to give appellant’s requests in tbe exact language in wbicb they were requested.

Appellant has cited and relies upon tbe following cases among others: People v. Corey, 148 N. Y. 476, 42 N. E. 1066; People v. Wood, 126 N. Y. 249, 27 N. E. 362; People v. Greenwall, 108 N. Y. 296, 15 N. E. 404, 2 Am. St. Rep. 415; Williams v. State, 69 Ga. 11; Martin v. Commonwealth, 93 Ky. 189, 19 S. W. 580; Carden v. State, 84 Ala. 417, 4 So. 823; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Aun. Cas. 1912D, 191. These 'cases do not aid or help the contention of appellant. On tbe contrary, in so far as tbe opinions in those cases bear upon the question here involved, they aid the state.

There is no reversible error in the record. The judgment therefore must be, and it accordingly is, affirmed; and the cause is remanded to the district court of Carbon county, with .directions to fix a date for the carrying into execution of its judgment.

THURMAN, FRICK, CHERRY, and STRAUP, JJ., concur. '  