delivered the opinion of the court.
The state of Montana accused the above-named defendant and one Frank Carpenter of the crime of murder. Separate trials were demanded, and this defendant was convicted of murder in the second degree. He appeals from the judgment of conviction and also from an order denying him a new trial.
At the time of the commission of the alleged offense Berberick was about eighteen and Carpenter fifteen years of age. On January 14, 1907, the dead body of John Johnson was found near the manure pile at the ranch of George Parrott, about seven miles east of the city of Anaconda. Tracks were found in the snow about the place, and several witnesses testified to having seen Berberick and Carpenter going in the direction of the ranch in the morning and returning in the afternoon. Johnson was an employee of Parrott’s and was alone at the ranch on the day in question, Parrott having gone to Anaconda the day before. The weather was extremely cold. Between 2 and 3 o’clock on the afternoon of the 14th the discovery was made that the door of the ranchhouse had been broken open, and an iron safe had been wrecked, apparently with some high explosive. Pieces of giant powder were found. Parrott had no giant powder. Hanging upon a nail in the wall, and covered by a man’s cap, was a revolver belonging to Parrott; when he left home on.the 13th this revolver contained five cartridges; when he returned on the afternoon of the 14th it contained but one. The autopsy of the body of Johnson disclosed four bullet wounds, and the examining surgeon testified that he died from hemorrhage due to the wounds.
William A. Taylor, the under-sheriff of Deer Lodge county, testified for the state that on the 16th of January the defendant, who was then in custody in the county jail, received a copy of the “Butte Inter-Mountain” newspaper from Isabel Flem
Thomas Stewart, the deputy county attorney of Deer Lodge county, testified: That on the evening of the 16th, in the sheriff’s office at the jail, in the presence of Taylor, the under-sheriff, Mr. Allen, the coroner, Mr. Cole, a reporter for the “Anaconda Standard” newspaper, and Messrs. Edward Beal and A. N. Strom, Mr. James, the county attorney, asked the defendant if he had sent for him, and received the reply that he had. That Mr. James then told the defendant that, “if his purpose was to make a confession or statement, he would state his rights to him before he should make any statement whatever”; that he (the defendant) “must understand that there was absolutely no hope of reward or promise of any kind held out to him, or promise of leniency or consideration in any way for the fact of his making this confession * * * ; that before the statement was made Mr. James introduced himself to Berberick and introduced each of the others present, and told Berberick what official capacity each one occupied in this county, if they were officers; that he then proceeded to tell him that there were absolutely no threats made against him; that he was absolutely free to make this statement or not make it, just as he chose; that the fact that he was under arrest need not be considered by him; that if he made a statement it must be absolutely free, without any feeling that he was compelled or forced in any way, or that there was any inducement or hope of any kind held out to him; that he further told him that he was entitled to the aid of counsel, and if he desired an attorney or any friends of his to be present when he would make a statement, if that was his intention, that we would send for any attorney he desired, or for any friends of his that he might desire to have present. * * * He stated that he did not desire any attorney, and had no friends that he eared to send for; that he had sent for Mr. James himself, and that it was his desire to make a statement ; that he understood that there was no offer made to him, was no inducement of any kind held out, and he said that he was not
Stewart’s testimony was, more or less, corroborated by Strom, Beal, Cole, Allen, James, and Taylor. Strom also testified: “James might have said at the time that it would be better for Johnny to confess, or words to that effect; I would not say. There might have been a similar statement to that made. Mr. James might have said to him, ‘So, Johnny, you have concluded it is best for you to confess,’ or words to that effect; I would
The defendant’s counsel then offered in evidence, for the sole purpose of determining the admissibility of the confessions and in support of their objections thereto, a copy of the “Inter-Mountain” of January 16th, containing the confession of Carpenter. In this confession Carpenter stated circumstantially and in detail the movements of himself and Berberick on January 14, how Berberick shot Johnson four times with the revolver found on the nail under the cap in the house, how they blew up the safe, and were immediately afterward frightened away. Counsel then offered to prove by defendant’s sister and other witnesses the life and experiences of the defendant from an early age; that his father died at the age of thirty-three years of mental and spinal disease; that relatives on the father’s side were insane; that his stepfather was very harsh and cruel
Formal objections to the admission in evidence of the confessions were then filed, the grounds of which will be hereafter noticed. The court sustained the objections as to the copy of Carpenter’s confession and the alleged confession of Berberick made on the morning of January 16, and overruled the objections to the confession made on the evening of that day. This last confession was then read to the jury. It is a detailed narrative of the movements of Carpenter and defendant on January 14, admits the killing of Johnson by the defendant, and is substantially the same as Carpenter’s confession. Both Carpenter and the defendant stated that they obtained whisky at a roadhouse on the way to Parrott’s ranch. The employees of the roadhouse denied this. It appears later in the state’s rebuttal testimony that the authorities had been making some inquiries relative to the sale of whisky to the boys on the day in question. Berberick’s confession is prefaced and concludes with statements that it is made freely and voluntarily, without any promise or hope of reward, and with the knowledge that it may be used against him. Both confessions, except as to the matter of obtaining whisky, fully corroborate the state’s witnesses, who testified to having seen the boys on the 14th between Anaconda and the Parrott ranch. After the state rested its case, the defendant' introduced testimony of experts and laymen to the effect that in their opinion Berberick was weak-minded on January 14th and at the time of the trial, and was insane. This testimony was rebutted by the state. Comprehended therein were all the matters included in the defendant’s
1. The first point made by appellant’s counsel is that the confession of Berberick “ought never to have been admitted, because there can be no question but what under the circumstances surrounding his confession it was made under the influence of the flattery of hope and the coercion of fear.” They cite Bram v. United States, 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568, Territory v. McClin, 1 Mont. 394, Territory v. Underwood, 8 Mont. 131, 19 Pac. 398, and several other cases in support of their contention. Let it be noted at the outset that the testimony of Strom as to what James told Berberick on the evening of the 16th (which testimony, by the way, was not very positive) was contradicted by Allen and Beal. It thereafter became the duty of the trial court to decide whether any such statement was in fact made, and, the confession having been admitted in evidence, the presumption must be that the court found that no such statement was made. This conclusion is also borne out by the testimony of the county attorney himself. Eliminating this testimony, we have left in the record for consideration only the evidence of the county attorney as to what he said to Berberick in the cell on the morning of the 16th. As to this testimony counsel for the defendant say in their brief: “In this first conversation the county attorney in effect assured the defendant that it would be better for him to make a statement, or that it would be to his advantage. No other reasonable interpretation of the language used by the county attorney can be made.” Particular stress is laid upon this evidence of the county attorney, and we quote it because it is important: “I do not recall that I said anything to Berberick about his being the man they wanted, and as to whether I said anything to him about his not being the man I wanted. I cannot recall making any such statement as that. I might have told him that this statement, showing where he was on the 14th, would show whether or not he was the man wanted, or language to that effect. I may have made such a statement as that, but
“Q. That is, you may have said in substance to him that by his explanations of where he was, or anything else, he might not be the person you wanted for this crime? A. No, I would not say that I said that in substance in any-such manner. I would say that I did not say anything in that manner, that I did not say that in substance.
“Q. Did you say to him, if a person could show you that he was not there, then he was not the man you wanted, something like that? A. I may have used language that would indicate it, but I do not think that I used those terms. I may have said to him that any statement he made would show where he was •on that day.
“Q. And that he might not be then the person that you wanted, as you said before? A. My language might indicate that; but I do not recall, however, having made any such statement.
“Q. But you may have made it, something like that, in the course of your conversation, as you said a while ago? A. No, I would not put it that way. I would state that I told him, in substance, that, if he told where he was on the 14th, it would indicate as to where he was on that day; but, as to whether or not that would indicate whether he had anything to do with this killing, or not, I cannot recall that. I do not think I said anything to him about its being a good idea for him to tell me about this matter. In fact, I know I did not say anything about its being a good idea. The word ‘idea’ never was used.” We do not think this testimony will bear the construction placed upon it by counsel for the defendant. We find therein no assurance, either directly or by implication, that it would be better for Berberick to make a confession, or that it would be to his advantage to do so. It may, perhaps, be conceded that under the great weight of authority, if the language employed by the
We must assume that the learned district judge believed the evidence of the witnesses who were present at the jail on the evening of the 16th. That testimony showed that the defendant requested the county attorney to come to him, that he was advised of his right to have an attorney or any friend present, was told that any statement he made would be used against him, was informed that he need have no fear of any consequences arising from his refusal to make a statement and no hope of reward or lenience if he did make one, that he said he understood the situation, and what his rights were in the premises. Cases involving facts showing that threats were made against, or inducements held out to, the defendant, have no application to this case.
In the case of Territory v. McClin, supra, it appeared that the deputy sheriff, who had the defendant in custody, told him that it would be better for him to confess his guilt, and it appeared from the bill of exceptions: “In addition to the above, further evidence was introduced that a mob of one hundred men were around and about the jail where defendant was confined, at intervals of nearly all one day; that threats were fre
In the case of Territory v. Underwood, supra,, it appeared that the defendant was in the custody of an officer on a charge of obtaining money from the Granite Mountain Mining Company under false pretenses; the officer told him “it would be better for him to go back and tell Captain Plummer, the superintendent of the company, all about it; that he thought he would withdraw it, or ease it as light as he possibly could; that he thought Captain Plummer would help him out of it, if he would give his evidence against the other two, for the very reason that Plummer had told Kelly that he would do so, and he thought he would do so for Underwood.” The court said: “These promises were certainly inducements that clearly vitiate the confession of the prisoner.”
In Bram v. United States, supra, the facts were these: The captain of a vessel was found murdered. The crime had been committed on the high seas. Brown, a seaman, had, immediately after the homicide, been arrested by the crew in consequence of suspicion aroused against him and had been placed in irons. As the vessel came in sight of land, and was approaching Halifax, the suspicions of the crew having been also directed to Bram, the mate, he was arrested by them and placed in irons. On reaching port these two suspected persons were delivered
We have quoted thus at length from the Bram Case for the reason that it was decided by the supreme court of the United States, and because it is confidently relied on by the defendant’s counsel. Accepting what is there said as to the law, we are of . opinion that such law applied to the testimony actually received in this ease should not result in a determination that Berberick’s confession was not voluntarily made. Indeed, Mr. Justice Brewer, with the concurrence of the Chief Justice and Mr. Justice Brown, dissented from the result reached in the Bram Case. He said: “I dissent because I think the testimony was not open to objection.” “A confession, if fairly and voluntarily made, is evidence of the most satisfactory character.” (Hopt v. People, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262, reaffirmed in Sparf v. United States, 156 U. S. 51, 715, 15 Sup. Ct. 273, 39 L. Ed. 343.) “The fact that the defendant was in custody and in irons does not destroy the competency of the confession.” “Confinement and imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary and was not obtained by putting the prisoner in fear, or by promises.” (See, also, Wilson v. United States, 162 U. S. 613, 16 Sup. Ct. 895, 40 L. Ed. 1090.) “The detective, when called, testified positively that no threats were made nor any inducements held out to Bram, and this general declaration he
This court held in State v. Sherman, 35 Mont. 512, 119 Am. St. Rep. 869, 90 Pac. 981, that the question of the admissibility of an alleged confession was to be determined by the court after hearing, in the presence of the jury, evidence of the circumstances under which it was made. Particular attention was called in that case to section 3441 of the Code of Civil Procedure of 1895 (Revised Codes, sec. 8055), providing that all questions of the admissibility of testimony and the facts pertaining to such admission shall be decided by the court. (See, also, 1 Wigmore on Evidence, sec. 487.) In this case the court followed the course of procedure indicated in the Sherman Case, and it may be as well to say in this connection that we see no reason for applying any different rule to the decision of the trial court on the facts pertaining to the admission of testimony than is applied to any other determination of fact by that court. Facts so found will not be disturbed unless they are clearly in conflict with the weight of the evidence on the subject. Whether a confession was prompted by some inducement of hope or fear is a question of fact. We have no hesitancy in saying here, however, that, so far as the evidence actually received is concerned, we agree with the conclusion reached by the district court. (See, also, Maull v. State, 95 Ala. 1, 11 South. 218.)
2. The contention that the county attorney was acting in a capacity similar to that of an examining magistrate is not borne out by the testimony.
3. But counsel offered to prove, before the confession was admitted in evidence, that at the time of making it the defendant was of unsound mind. Let us inquire into the effect of this offer. The following is section 479 of 1 Wigmore on Evidence: “The use of the phrase ‘testimonial evidence’ must not be understood as applicable exclusively to assertions made on the witness-stand. Any assertion, taken as the basis of an inference as to the existence of the matter asserted, is testimony, whether
In District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, the supreme court of the United States said: “The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and competent witnesses who can speak of the nature and extent of his insanity. ’ ’
In the case of Regina v. Hill, 5 Cox C. C. 259, this principle was laid down, and Mr. Justice Talfourd said: “In every case the judge must determine according to the circumstances and extent of the delusion.”
The court said in Kendall v. May, 10 Allen (Mass.), 59: “The rule * * * is that it is for the judge to satisfy himself
The supreme court of Virginia, in Coleman v. Commonwealth,. 25 Gratt. 865, 23 Am. Rep. 711, said: “A witness is not excluded merely because he is a lunatic. That is not enough per se to exclude him; but he must at the time of his examination be so under the influence of his malady as to be deprived of that ‘share of understanding’ which is necessary to enable him to retain in memory the events of which he has been witness, and gives him a knowledge of right and wrong. If at the time of his examination he has this share of understanding,-he is competent. That is the test of competency, and of such competency the court is the judge; whilst the weight of the testimony — the credit to b.e attached to it — is left to the jury.” (See, also, People ex rel. Norton v. New York Hospital, 3 Abb. N. C. (N. Y.) 229, and Spittle v. Welton, L. R. 11 Eq. Cas. 420.)
Messrs. Underhill & Clark, in their article on Criminal Law, under the subhead ‘‘Confessions — Voluntary Character” (12 Cyc. 464), say: ‘‘Whether a confession is voluntary depends largely upon the facts of the particular case. If it is obtained by reason of oral threats of harm, by promise of benefit, or by actions of those in control of the prisoner which are equivalent to such threats or promises, it is involuntary and incompetent, and in determining whether it was obtained by such means the sex, age, disposition, education and previous training of the prisoner, his mental qualities, his physical health, and his surroundings are elements to be considered.” The mental qualities of the defendant were noted and considered by the courts in Peck v. State, 147 Ala. 100, 41 South. 759; Hoober v. State, 81 Ala. 51, 1 South. 574; State v. Mason, 4 Idaho, 543, 43 Pac. 63; Flagg v. People, 40 Mich. 706; Burton v. State, 107 Ala. 108, 18 South. 284; Green v. State, 40 Fla. 474, 24 South. 537.
Section 7890, Revised Codes, provides that all persons, without exception, otherwise than as thereafter specified, who, hav
The attorney general calls our attention to the ease of People v. Miller, 135 Cal. 69, 67 Pac. 12. In that case a witness had testified that a statement by the defendant was voluntarily made. Upon the witness being asked to give the statement, counsel for the-defendant requested permission to ask some questions showing the conditions under which the statement was made. The court declined to grant this request, saying they might question him upon cross-examination. The supreme court, after deciding that the trial court should permit a cross-examination for the purpose of showing the particular circumstances under which the confession was made, before permitting the confession itself to go in evidence, held that it appeared from the record that
We have discovered in the books another ease on this subject, that of State v. Feltes, 51 Iowa, 495, 1 N. W. 755. The court' said: “Evidence that the defendant at the time of the alleged confession was intoxicated or insane was proper to impair or destroy the effect of the confession. The defendant was allowed to introduce such evidence upon cross-examination, but he complains that he should have been allowed to introduce it first. In our opinion the court did not err. It was for the jury to determine what weight should be given to his confession, in view of his mental condition as shown. The court, therefore, could not properly have excluded evidence of the confession. Nor do we think it was the defendant’s right to show his condition first, by way of preparing the mind of the jury against any undue impression from the evidence of the confession. The time when the jury was made acquainted with it must, we think, be deemed immaterial.” Counsel for the defendant had asked leave to show by the witness who gave evidence of the confession, and other witnesses, that-the defendant was “under the influence of intoxicating liquor and was affected by delirium tremens, or otherwise insane * * * to the end that the court might sustain their objection to (the witness) testifying in regard to the confession, if the court should be satisfied that the defend
In the case of State v. Hill, 65 N. J. L. 626, 47 Atl. 814, the court said: “When a confession is offered by the state in a criminal case, it is the right of the counsel of the prisoner, before it is admitted, to cross-examine the witness who proposes to testify to it as to the circumstances surrounding the making of it, and the defense may also call, at the same time, independent witnesses and examine them, going thoroughly into the whole matter as to how the confession came to be made, the parties present, the physical condition and state of mind of the prisoner at the time it was made, and then the court, with all these facts before it, is to pass upon its admission. # # * The law always presumes a man to be conscious and sane, and, if the contrary exists, thereby defeating the natural presumption, it must be shown by the party who alleges it. The condition, mental and physical, of a prisoner at the time of the alleged confession, if shown to the judge, may very materially affect his decision upon the question of its admission, and the prisoner has the right to have it all disclosed before the court passes upon it.”
We think the defendant should have been allowed to introduce testimony as to his mental condition on the evening of the 16th, before the confession was admitted in evidence.
In the case of Grayson v. State, 40 Tex. Cr. 573, 51 S. W. 246, it is said: “Article 768, Code Cr. Proe. 1895, provides that
4. Exception is taken to the ruling of the court in allowing witnesses who did not recollect the exact words used at the jail on the evening of the 16th to give the substance of what was said. We think the court did not err in this regard. The substance of a conversation is, generally, all that any ^witness can remember, and we cannot doubt that this is all the law requires in regard to confessions. (1 Greenleaf on Evidence, sec. 218, and 3 Wigmore on Evidence, see. 2097.) And by signing the confession and adopting the language the defendant made it his own. (Commonwealth v. Coy, 157 Mass. 200, 32 N. E. 4; Commonwealth v. Hildreth, 11 Gray (Mass.), 327.)
5. A witness, Edward Richards, was sworn for the defendant. After narrating certain peculiarities in the conduct and demeanor of the defendant during the time of their acquaintance, he was asked this question: “Mr. Richards, I will ask you, from your acquaintance with him, from what you know of the boy, and all you know of him, whether in your opinion he had an ordinarily good mind, or whether he was weak-minded at the time you knew him?” The court sustained an objection to the question. We think this was error. Whether the defendant was weak-minded was a matter to be considered by the jury in determining what weight should be given to his confession, and the testimony might also have served to supplement that of the defendant’s witnesses who testified that he was insane or affected with insanity. (See People v. Worthington, 105 Cal. 166, 38 Pac. 689.)
7. Exception is taken to the action of the court in refusing to give to the jury certain instructions requested by the defendant. After reading the instructions given, we are of opinion that, with the exception of those hereinafter mentioned, they fully and fairly stated the law and substantially covered the matters incorporated in all those refused, with the exception of proposed instruction 15.
8. Proposed instruction 15 reads as follows: “The jury are instructed that an insane person cannot be a witness upon any trial, and that therefore, if you believe from the evidence that the defendant at the time of the making of the confession, which has been introduced in evidence, if he did make such confession, was an insane person, or if you have any reasonable doubt as to whether or not the defendant was insane at such time, then you should not give such confession any weight whatsoever in this ease. ’ ’ As has heretofore been said, the question of the defendant’s competency as a witness at the time of his confession was for the court to decide. Had the court admitted the confession after hearing testimony as to defendant’s mental condition, it would then have been the province of the jury to
9. Exception is taken to instruction No. 17, given by the court, as follows: “If, after a fair and impartial consideration of the entire testimony in this case, you entertain any reasonable doubt as to whether the deceased came to his death in any other manner than that charged in the information, then it is your duty to acquit the defendant.” While, in the light of other instructions given, this one was probably not prejudicial to the defendant, it is nevertheless erroneous; the true rule being that, if the jury have any reasonable doubt that the deceased came to his death in the manner charged in the information, they should acquit the defendant.
The foregoing disposes, in effect, of all questions involved in the case on appeal.
Reversed and remanded.