9 Mont. 445 | Mont. | 1890
The defendant was found guilty of the crime of murder in the first degree, and this appeal has been taken from the order of the court below in overruling the motion for a new trial. The appellant aud George Peters were indicted January 14, 1890, by a grand jury, consisting of seven persons, and separate trials were demanded and allowed. The alleged offense was committed November 29, 1889, in the county of Jefferson.
The first error that is assigned appears in different motions, and relates to the organization of the grand jury that returned Ithe indictment. The following order was made at chambers November 25, 1889, by the judge of the judicial district: —
“Ordered, that out of the twenty persons whose names are contained in the proper envelope, labeled as follows, to wit, ‘grand jurors’ for the next regular term of the District Court •of Jefferson Count)', the names of nine of said persons be drawn by the clerk of said court, or his proper deputy, and of the judge of said court if he be there present, in the presence of the sheriff, or his proper deputy, to be summoned as grand jurors, to serve at the next regular term of said court, which commences on the first Monday in January, A. D. 1890, and that a proper venire do issue for said nine persons, returnable on the first day of said term, at ten o’clock, A. m. See Laws of Montana, Sixteenth Session, pages 166 and 167, and especially sections 4 and 7, and in so far as possible conform with the provisions thereof. In re.” This order was complied with, and the venire containing' the names of the above described nine persons was issued to the sheriff November 30, 1889. The judge of the District Court*449 instructed the clerk by a letter which was received December 15, 1889, to “advise” the officer that he had “concluded to dispense with the use of a grand jury at the January prox. term,” and to return this venire; and also to notify the persons who had been summoned that their services would not be wanted. The clerk acted accordingly. The sheriff made his return on the venire January 1, 1890, showing that all of these persons had been personally served to appear and act as grand jurors. The following order was made by the court January 7, 1890: “It appearing that no grand jurors have been summoned and that a grand jury is wanted: Ordered, that the judge and clerk of this court do forthwith prepare a list of twenty persons competent to serve as grand jurors, who shall be summoned by the sheriff to be and appear before said court on the ninth day of January, 1890, at ten o’clock, A. M.” In conformity therewith, these persons were selected to serve as grand jurors, and in open court, the defendant was notified of his rights of challenge before they were sworn. A challenge was then interposed to the panel “ for the reason that the same was not drawn in accordance with the essential provisions of the laws of Montana.” The particulars will be commented on hereafter. This challenge was overruled, and thereupon the clerk, by order of the court, selected by lot from this list of twenty a grand jury composed of seven persons, who were duly sworn and charged. The foregoing indictment was presented January 14, 1890.
The challenge to the panel is based upon the provisions of the Criminal Practice Act, Compiled Statutes, third division, section 119. The appellant contends that the persons who were summoned to serve as grand jurors under the order made November 25, 1889, were discharged without lawful authority, and that the proceedings by virtue of the order made January 7,1890, were void. The act relating to juries, approved March 14, 1889, should be faithfully executed so that the names of the persons who may become grand or trial jurors shall be always selected by the commissioners who are designated. But circumstances may arise which will render its requirements nugatory, and thé transcript shows that this event occurred. The statute, however, provides directly for this contingency in these terms: — '
“When, for any cause on the meeting of, or during the term*450 of a court, a grand jury is wanted, or there is not a sufficient number of grand jurors present, or those summoned have been excused or discharged, it shall be lawful for the judge of the District Court, and for the clerk of the court, or his deputy under the direction of the judge, to prepare a list of the names of a sufficient number of persons competent to serve as grand jurors, who shall be summoned by the sheriff to attend at such time as the court may direct.” (§ 14.)
The constitution declares that “a grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it necessary and shall so order.” (Art. iii. § 8.) It is claimed that the order complained of should show the necessity therefor. While the clause is self-executing, and the language of the statute has been followed in stating that it appears that a grand jury is wanted, it is evident and will be presumed that the judge considered his action necessary.
It is maintained by the appellant that the grand jury should have consisted of sixteen persons; that the statute requiring the foreman to indorse indictments does not contemplate a body of any other number; and that the prosecution should have been by information. We have placed these matters together, because they have received due consideratian in the case of State v. Ah Jim, ante, p 167. These constitutional questions were therein examined and determined adversely to the position of the appellant, and we affirm its conclusions. The indictment was found by a legal grand jury, and the challenge to the panel and the motion to quash the indictment were properly overruled.
A demurrer to the indictment was submitted upon the ground that two offenses are charged, one against the appellant for murder in the first degree, and the other against Peters for being an aider and abettor. The statute has abolished the refined dis-, tinctions which formerly prevailed in this regard, and provides as follows: “Any person who counsels, aids, or abets in the commission of any offense, may be charged, tried, and convicted, in the same manner as if he were a principal.” (Comp. Stats.. third div. § 176.) In People v. Davidson, 5 Cal. 134, the Supreme Court interpreted a similar law and said: “ The indictment, in charging Davidson and Kennedy with an assault with . an intent to commit murder, and afterwards Kennedy with
It is argued that the testimony of John Harrington “was incompetent and immaterial, and tended to prejudice the minds of the jury.” This was in substance that he was standing by the door at the head of the stairs, and heard the defendant say when going out of the door that he would kill the son of —- -. “King was talking to Peters. He did not say who he would kill.” It is uncontradicted that there was a difficulty between the accused parties and the deceased in the hall spoken of by the witness, where there was a dance, and that they passed down the stairs a few moments before the fatal shot was fired by the appellant. James Higgins testified that he “saw King and Peters there at the foot of the stairs .... and I heard Thomas King say ‘ smash the son of-when he comes down the stairs/ He made this remark to George Peters, and he did not say the name of any party or person.” We are satisfied, after the reading of the evidence, that the testimony of the witness, Harrington, was a part of the res gestee, and should therefore be considered by the jury in its relations to the entire transaction. The bare fact that the threats thus uttered did not disclose the name of any party did not make them immaterial or irrelevant. The evidence in the transcript establishes beyond a reasonable doubt that the person so threatened was the deceased.
An examination of the record shows that every issue in the case was thoughtfully covered by the court in twenty-nine instructions. They follow the sections of the statute, which, with some modifications and explanations that should be adjusted to the exceptional facts of each controversy, embody the law which is applicable. No requests were made by the appellant for further instructions, and he now attacks with authorities that which defines a reasonable doubt, and the sole criticism is that it embraces conflicting phrases. It is claimed that the expression, “in their own most important concerns or affairs of life” contradicts the words, “in the graver and more important affairs of life.” Viewing the whole paragraph, there is no difference in the meaning of both clauses, and the rule that con
We conclude that the appellant has had a legal trial, and that the verdict is founded upon the law and the evidence.
It is therefore ordered that the judgment be affirmed, and that the same be carried into effect as entered in the court below.