26 Mont. 305 | Mont. | 1902
delivered tbe opinion of tbe court.
Clinton Dotson was convicted of tbe deliberate murder of one Oliver Dotson and was condemned to death. He bas appealed from tbe judgment and tbe order denying bis motion for a new trial.
Tbe evidence tended to prove tbe following facts: In October, 1899, tbe defendant, one Benson, and one Persinger were adjudged guilty of tbe murder of one Cullinane, tbe defendant being sentenced to imprisonment for ninety-nine years, and Benson and Persinger to shorter terms. Tbe three men were then taken- to the state prison at Deer Lodge. Oliver Dotson was tbe defendant’s father and Benson’s grandfather; the defendant is Benson’s uncle-. While -in the state prison tbe defendant became intimate with one McArthur, otherwise known as Fleming, and occasionally calling himself Murphy or Murray, a convict whose term expired on December 30, 1900. In the early part of September, 1900, tbe defendant told Per-singer that be bad hired McArthur to murder Oliver Dotson; that be bad promised to pay McArthur $Y,600 for committing the crime, and that be bad tbe money buried in Wyoming; that when McArthur got out of prison be would kill Oliver Dotson in such a way as to make it seem a case of suicide, leaving on the body a confession that .Oliver Dotson and bis son-in-law (a man named Cachline) bad killed Cullinane and exonerating tbe defendant, Benson and Persinger; and that tbe three would then be released because of tbe confession. This conversation Persinger, on December 31, 1900, on January 12, and on February 21, 1901, repeated to other persons. Soon after tbe defendant and Benson were taken to tbe state prison for tbe mur
1. The witness Persinger, after stating the conversation between- himself and the defendant in which the latter said that he had hired McArthur to murder Oliver Dotson and that Mc-Arthur would do so upon his release from prison, testified, without objection, that he had told others about the conversation. He was then asked to state when he repeated the conversation, to which question the defendant objected as irrelevant and immaterial. The objection having been overruled, the witness answered that he told of the conversation on December 31, 1900, on January 12, and on February 21, 1901. This action of the court was excepted to and is specified as the first error. Counsel suggests, rather than argues, that the evidence was irrelevant. When offered the testimony was admissible as introductory to evidence that might thereafter be adduced upon the question whether Persinger was a conspirator with, and hence an accomplice of, the defendant and McArthur in the murder of Oliver Dotson. It was therefore deemed to be relevant. Since this reason is sufficient to sustain the ruling of the court, we need not inquire whether upon other grounds the testimony was relevant evidence.
2. The distinction recognized by the common law between principals and accessories before the fact is abolished in this
3. To the introduction in evidence of declarations made by McArthur in January, 1901, that he Avas going to Washington Gulch “on a matter of business to do a job there for friends that are going to stake me and it is a matter of secrecy bet-Aveen me and them,” and that he intended to kill Oliver Dotson and thereby bring about the release of the defendant, objection on the ground of incompetency, immateriality and hearsay, was interposed and overruled. The learned judge aaTlo so ably and fairly tried the cause did not err. Suffice it to say that, these declarations tended to shoAV McArthur’s intention to accomplish the purposes of the conspiracy then in existence between the defendant and himself, and to prove his guilt of the murder subsequently done. EAddence of the act or declaration of a conspirator AA'hieli relates to- the conspiracy may, after proof of the conspiracy, be given against his co-conspirator. (Code of Civil Procedure, Sec. 3146, Subdivision 6; Penal Code, Sec. 2078; State v. Byers, 16 Mont. 565, 41 Pac. 708; Harrington v. B. & B. M. Co., 19 Mont. 411, 48 Pac. 758; Pincus v. Reynolds, 19 Mont. 564, 49 Pac. 145.)
5. Among die instructions given Avere the following: “A Avitness is presumed to speak the truth, this presumption, however, may he repelled by the manner in Avhich he or she testifies, by the character of his or her testimony, or by his or her motives, or hy contradictory evidence. You are instructed that your poAver of judging of the effect of evidence is not arbitrary, but to- be exercised Avith legal discretion and in subordination to the rules of evidence. The jury are ’the exclusive judges of the credibility of the witnesses and the Aveight to be given their testimony.” (No. 19.) “A defendant in a criminal case may be SAVorn and may testify in his oaa'ii behalf. In such a case the jury in judging of the credibility and Aveight to be given .liis testimony must take into consideration the fact that he is
Several questions of practice have been argued by the attorney general; but as the views expressed dispose of the appeals adversely to the defendant, we prefer to reserve them.
Let the judgment and the order refusing a new trial be affirmed. Affirmed.