169 P. 282 | Mont. | 1917
delivered the opinion of the court.
Some time between 7 and 9 o’clock in the evening of September 3, 1913, two men — one tall and one short — were observed by a Mrs. Henry Stone near the old Tabernacle, at the corner of Wyoming and Porphyry Streets, in the city of Butte, engaged in a “hold-up,” in the course of which Thomas Higgins was shot. The two men ran away, crossing the vacant lot which lay west of the Tabernacle, to the alley which passes the rear of the Oxford Hotel. The scene is sketched below. Point A shows approximately where the shooting occurred; point B, Mrs. Stone’s place of observation, and the dotted line from point A, the line of flight as indicated by her.
At about the point C were two men, the witnesses Davis and Giles; Davis heard the shooting, and Giles saw it; within a
On the whole evidence the jury found both the appellants guilty of murder in the first degree, leaving the punishment to be fixed by the court. They were adjudged to pay the extreme penalty, and from the judgment as well as from an order denying their motions for new trial, these appeals are taken. Thirty-five alleged errors are assigned, many of which are obviously without merit. Those which suggest matters of any consequence follow:
1. Dr. C. A. Johnson was called as a witness for the state and
2. By motion to strike the testimony of the witness Malloy and by objections to questions asked the witness Prlja, the appellants endeavored to exclude the confrontation of them by Giles in the county attorney’s office,- particularly was it sought to exclude the declarations and conduct of the appellants at the time, and failure in that behalf is the basis of vigorous
3. So, too, and upon the same authority, there was no error in receiving the evidence touching the identification by
4. The policeman, Prlja, having testified to the occurrence
5. The most vigorous contention in the briefs relates to the
6. Complaint is also made of the refusal of certain other instructions, but we find that the substance of them, so far as proper to be given, was fully covered by the charge.
7. Discussing the refusal to grant a new trial, appellants insist that the evidence is utterly insufficient to justify the verdict, and particularly to justify the imposition of the extreme penalty. With the penalty we have nothing whatever to do, so long as it complied with the statute prescribing punishment for the crime of which the appellants stand convicted. It may be that, considering the possibility of error in all human testimony, one could wish to avoid the infliction of death; but there cannot be the slightest doubt that as a matter of law the evidence was sufficient to justify the verdict, to establish that Higgins was fatally shot by O’Neill while O’Neill and his companion were engaged in the perpetration, or attempt to perpetrate, a robbery. Since both O’Neill and Fisher admit and insist that Fisher was with O’Neill at the hour the homicide
The judgment and order appealed from are affirmed.
Affirmed.