23 Mont. 504 | Mont. | 1900
delivered the opinion of the Court.
William Wallace Calder was tried upon an information charging him with the murder of one Farquhar MacRae on the 24th day of September, 1898, at the county of Fergus. The jury having found him guilty of murder in the first degree, as charged, he was sentenced to be hanged. Upon the 25th ■day of May, 1899, his motion for a new trial was denied, and he appeals.
Section 3108 of the Code of Civil Procedure defines “direct evidence’ ’ as c ‘that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example, if the fact in dispute be an agreement, the evidence of a witness
We assume, as did the attorney general in his brief and •argument, that James Calder was unquestionably a confederate of the defendant in committing the murder of which the latter was accused. James Calder, a brother to the defendant, and an accomplice in the crime of which the defendant was convicted, was the principal witness for the state. His story is, in brief, the following: The defendant, agéd 25, and the witness, aged 19, lived with their mother and stepfather, Smith, on Flatwillow creek, in Fergus county, about 16 miles from the Musselshell river. One James Eli Fisher, aged 21 or 22, was visiting the brothers. MacRae was a ranchman and had a flock of about 1,700 sheep, one-half of which belonged to one Hildebrand. In the employ of Mac-Rae was a sheep herder named’ Allen. MacRae and Allen occupied a cabin distant 1£ or 2 miles, from the home of the defendant. The country thereabouts is sparsely populated, there being but four families in a radius of as many miles, and is but little traveled. On the afternoon of Saturday, September 2é, 1898, the brothers and Fisher, armed with two guns, went hunting. After they had gone about a mile the defendant laid before his brother and Fisher ‘ ‘a scheme’ ’ to make money, and proposed that the three kill MacRae and Allen and steal the sheep, suggesting that their possession of
“Miles City, Oct. 6, 1898.
“Sheriff — Dear Sir:
“Turn them boys loose; they haven’t done anything.
“Yours truly,
“F. McRae.”
Such, in brief, was the testimony of the accomplice; and unless he was corroborated to the extent required by Section 2089, supra, the defendant should have been acquitted. Although the practice at the common law is for the court to charge the jury to view the testimony of an accomplice with caution, and to advise an acquittal unless such testimony be corroborated in some material part by other evidence, yet these cautionary and advisory instructions may be given or withheld in the uncontrolled exercise of an arbitrary discretion. This rule of the common law rests upon the premise that the defendant may legally be convicted of crime upon the unsupported testimony of his accomplice, —the only exception to the rule seems to be a prosecution for perjury or its subor
Smith, the stepfather of the defendant, testified, among other things, to these matters: He last saw Allen on the 20th day of September, 1898; MacRae he saw and talked with at 10 o’clock on the morning of the 24th, and each then agreed to assist the other in building fences and in doing certain work. Since that time Smith has not seen MacRae, although on the afternoon of the next day the defendant told Smith that Mac-Rae was alive, as will hereafter appear. When Smith last talked with MacRae, the latter was in the vicinity of his cabin. Early in the afternoon of the 24th the defendant, his brother James, and Fisher, left the Smith home, returning about dark. Next morning, the 25th, they went away at 7 o’clock, the defendant and Fisher carrying guns. The defendant at about 1 o’clock returned and got a bed, which witness helped him to pack upon his horse; the defendant saying that he was going hunting. At half past 2 or 3 o’clock in the afternoon Smith saw the defendant and his two companions, who were then about three miles from MacRae’s cabin. They had a wagon and four horses, and were driving or leading the MacRae and Hildebrand sheep. The witness went towards the wagon, but the defendant and his brother left the wagon and went to meet
Witness Sherman was one of the men who apprehended the defendant and his companions on Porcupine creek, about 30 miles from Forsyth. Sherman informed the defendant that he wanted him for the murder of MacRae and Allen; the defendant answered that both were alive and at Miles City. Upon his. person were found some money, a pocketknife and a watch, the latter, at least, having admittedly belonged to MacRae. At Forsyth, Sherman, received from James Calder the letter addressed to the sheriff, and hereinbefore copied. The testimony of Sherman in respect of the finding of the bones, teeth, buttons, nails, buckles, pens, and the like, is substantially that of Smith. Sherman then went to the Mac-Rae cabin, saw the shorter trail, and followed the longer one to the place where Smith had found the two pools of blood on September 25th. Witness took up a clot of the blood the size of a man’s hand, and placed it in a cloth, producing it in that condition before the jury. His testimony agreed with that of Smith as to the bloody stick in the hole found near the chimney, and in addition he gave reasons for his opinion that the physical facts indicated that £ ‘the bodies must have been laid across the sticks. ”
The witness Lewis testified: That he saw the defendant at about 3 or 4 o’clock on the afternoon of September 24th; that the defendant said he had been hunting and “stopped in for a few moments, and that his companions were outside, waiting for him;” he further said to Lewis that he and MacRae were leaving the country with Hildebrand’s sheep, “and asked me to write to him at Miles City, to let them know if Hildebrand made any disturbance about the sheep, the letter to be addressed to ‘Charles A. Brown, Miles City,’ and he would get it.” Between'8 and 9 o’clock in the forenoon of
Other witnesses testified as did Smith, Sherman and Lewis with respect to the trails, and the fragments taken from the river at the place where the great fire had been. Two iron handles, suitable to- a chest, were also found in the hole. A physician and surgeon, called as an expert, declared that the bones had been subjected to the action of either a considerable degree of heat or long-continued heat; that the bones and teeth were those of an adult human being, and, in his opinion, of two persons.
The defendant was a witness in his own behalf. He denied the killing, but said he had no doubt, from all appearances, that both MacRae and Allen were dead. His story, in brief, is this: MacRae and Hildebrand owned a flock of sheep in common; MacRae asked defendant to steal Hildebrand’s sheep and go away with the entire flock, which defendant on the 24th day of September consented to do, MacRae agreeing to pay him $500 in hay, the wagon, team, harness, and the like; Lewis had made arrangements to buy the hay from the defendant; on the afternoon of the 24th the sheep weve counted and divided into two bands, each containing the same number, but no plausible reason was shown why such division should have been made; that afternoon MacRae, Allen and the defendant, with his associates, prepared the contents of the
This evidence was sufficient to satisfy the requirement of section 358, supra, that the death of the person alleged to have been killed must be established by direct proof as a fact independent of the fact of the killing by the defendant; it was, indeed, ample. The death of a ' human being was directly proved by the identification of certain teeth and charred bones as those of an adult person; that the decedent was MacRae was established by the direct testimony of the accomplice, corroborated by circumstantial evidence which in itself tended to prove such identity. The provisions of section 2089, supra, were also met by the proofs: The accomplice was corrobo
The element which raises murder of the second degree to murder of the first degree is deliberation. Where the proof of guilt on a trial for deliberate murder is to be deduced from
Finding the record free from error, the order refusing- a new trial is affirmed.
Affirmed.