*1 case Irrigation The Cooney, Bitter Root 67 Mont. Dist. v. presented by relators, Pac. a relied different situation, special gave for in that statute to the order case being of the court there the force and effect considered judgment, by declaring final con that the order shall be rights Here clusive. relators’ concluded denying at order alternative writ. relators were liberty petition they amend fit. The had their order saw greater sustaining no effect than one demurrer to a com Relators, however, plaint. remedy. adequate were not without (See ex rel. County Court, supra.) Musselshell District State v. May 20 the order of was not final judgment,
Since appealable order one of since the is not orders named attempted appeal statute, is, therefrom must be, dismissed. opinion motions
On for modification heretofore filed advisement, opinion promulgated herein and taken under on March 28 is withdrawn one herein substituted modify opinion The motions are therefor. overruled. Callaway and Associate Chief Justice Mr. Justices Ford and Matthews concur. Galen, Appellant. DUC, LE STATE, Respondent, (No. 6,808.) May Opinion Decided April 1931. (Submitted 1931. Motion Rehearing Filed June 24, Pac. [300 919.] 5á6
54:8
549 Mr. A. G. Stone Poore, and Appellant, Mr. J. A. for sub- mitted original an and supplemental brief; argued Mr. Poore orally. the cause Foot,
Mr. L. A. Attorney General, MacDonald, and Mr. S.T. Assistant Attorney General, brief; for the State, submitted Mr. argued MacDonald orally. the cause
MR. JUSTICE ANGSTMAN opinion delivered the court.
Defendant was convicted of degree murder in the second and sentenced to a twenty-five years’ term imprisonment prison. state appealed He has judgment from the and from an order denying his motion for a new trial. He admits that he shot and deceased, killed the Snyder, John F. but contends that he so in did self-defense.
1. His first contention is that the evidence was insufficient justify the verdict. His contention is that the undis- puted physical facts demonstrate falsity of the state’s evidence, establish the truthfulness of his own, to effect killing was in self-defense and command verdict guilty of not a matter of law. shooting occurred at 5:30 about A. M. on March
1930, in room 16 rooming-house of a in the Lisa Block at Street, Colorado Butte. Death resulted shortly before midnight rooming-house on March operated by 6. The then; defendant. nearly Deceased Clem Ostdiek year prior thereto, occupied room as tenants. Defendant gave tenancy them notice on March their was termi- day. per nated then on would be $5 that from their rent per day. Prior to that it was He chose to sever the rela- $1 tionship of landlord between himself them and tenant repeated reason himself protests fact that over the *5 they noises creating lond
and wife habit of Ms and all took women night, frequently at hours and young girls their to room. March morning of
Between 4:40 5:00 on the o’clock and that floor below defendant, occupied a room on who through looking and located, where room 16 was awakened was coming down woman the transom of his room saw a man and went grip a stairs; the man had in his hand. Defendant to the a door saw it Clem Ostdiek and woman and was due and leaving building. paid rent Ostdiek had for him grab a defendant, according testimony, made to his Clem Ostdiek (according testimony and took hat to the his went to twice), him defendant then struck and defendant informing them telephone police, room and called the his paying his rent. had left without that Ostdiek again awakened morning At about 5:30 that defendant and, previously stairway, he footsteps going up the had prowlers experience building, thought with had repetition experience. put slippers He and on his that right- automatic, in the placed gun, 380-Colt bathrobe, his bathrobe, hallway up went into and pocket hand hallway light no one in the observed He saw but stairs. slightly ajar, but He testified that the door was in room 16. state, that the door Bill for the testified Jones, a witness Snyder, door and he knocked Defendant said closed. there room, said, “Come in.” Jones in the said who was then any event, entered defendant door. In knock on the no Snyder Bill Jones. there and found the room to what trans- sharp conflict evidence as There is defendant entered when that Jones testified pired thereafter. here”; the witness out of him, to hell “Get he said doing rushed so the room get out of proceeded got through the as he door door, and defendant past right what the witness ear with hit him behind hospital remained He went to the gun. was a thought senses” for “out of his days. He he said was fifteen there for trans- anything saw nor neither heard days. He three took of what Defendant’s version thereafter. in the room pired place when he entered room was that said, “Ostdiek moved, Snyder,” has replied, to which “So, under- stand”; then right quickly Jones raised hand he, the defendant, thereupon struck with his left Jones fist. After shooting place Jones left room took present no one but defendant and the deceased.
The state introduced in dying evidence three declarations of the accurately deceased. In order to more understand the substance of these 16 description declarations a brief room is desirable.
The room faces the east on Colorado Street. The east side apart. has two situated 5 8 In the windows feet inches room extending awas bed east and west with the end head windows. There was but door east between two one lead- ing into the room. It was on the west near the north and wall of Against the room. the south gas stove, wall was a cabinet, kitchen bookcase gas chiffonier. and was stove in the southwest comer of the room. To the east of it was cabinet, 2| kitchen with 2 feet inches between it and the To the east stove. of the cabinet was 10 bookcase, between it and inches the cabinet. East of the bookcase was the chiffonier. There were 11 inches between the bookcase and chiffonier, the chiffonier and was inches from the wall, and space east there was a of about 3 feet between the and the chiffonier. bed To foot of against the bed and table, the west wall was a and being table bed 6 feet apart. Directly inches north of room 16 was room 18. Ac- cording Snyder’s one statements, when defendant en- pulled tered the room he “sap” out a said, and out, “Get sons-of-bitches,” you and hit Jones over the head with it; (Snyder) standing he was at the head of the bed and on it, said, south of he “I turned around to see what it [meaning and he gun was all about Le had the out”; Due] “ ” he, Snyder, said, 'Oh, that,’ don’t use got and I in the throat only one then. Wasn’t a fraction of second’s difference.” that, Asked what he did after said, he “I get reached around in the my gun dresser behind me own hip.” again while I turned around he me shot got slipped He he he gun and as he around said turned fqll hitting him again, on knee fired one trigger on pulled in the left arm. He then said: “I mine, not and don’t and I don’t I hit him or know whether gave Le Due question whether he response care.” In to the say that I “No, him, said, I can’t reason to shoot he did fourth time but it Defendant, did.” he shot the said, said room. He ran him; hit then out that defendant shot was when third he Jones room knew still bed, thought he fired, “I looked over the end of the because going him to shoot too.” dying times and declarations, The other different made at erroneously admitted in which are not to have claimed been evidence, were, matters, repeti- substantially material already tions alluded to. statements room, Snyder Defendant testified that as left Jones standing at the corner southwest bed and near corner; immediately jumped the northwest *7 grabbed he dresser, where stood the the second drawer pulled floor; Snyder bottom and it to the wheeled position crouching filling in a and shot at defendant, around he, eyes powder; thereupon defendant, took his out shooting. gun, moved to the east started When and he his Snyder at the southwest was able to see he saw comer of gun pointed the bed with his defendant, at in the act of shooting. only see top Defendant could of his shoulder part and of head his his and hand which edge was over the Snyder bed; that shot the second jerking of the time and was again. hands in effort to his an shoot thought Defendant he four times. He ceased shooting, shot said, himself he because Snyder put Snyder both of his hands on floor. When this, defendant said he of did backed out and room went downstairs. clear that if of
It version the shooting is defendant’s in correct, and then acted self-defense should have been hand, other acquitted. On the was warranted in accepting Snyder’s it, version of then the of act defendant beyond constituted murder possibility of a doubt. Ordinarily, when there evidence, is such a conflict question the solution of jury. is for the And this so though even story defendant’s corroborated evidence other witnesses. But defendant, upon in reliance rule stated Gunn, State Mont. con- Pac. tends undisputed that the physical demonstrate the fal- facts sity Snyder’s accuracy and statements attest the of his own those who behalf, testified his that reason the and for verdict cannot stand. physical facts relied are these: The bullet
struck point chin, throat abrased the entered just the oesophagus larynx above the and was found lodged at the lower portion of the left shoulder-blade. Its course only was downward. The blood found in the room was on the floor at the southwest comer and near the foot of the bed. All four of the bullets shot defendant were found. One was taken from under the left shoulder-blade deceased. lodged One was found in his arm. The one left that struck right passed hip through hip-bone, struck the vertebrae ranged passed downward through out rectum lying and was found the floor. The fourth was found lodged in the under floor near post bed the southwest the bed. There through was evidence that it had passed bed, mattress of the struck spring deflected bed from its course and found in the floor. Two shot bullets passed through and were mattress shot from the northeast corner of the bed corner; toward the southwest hence, one bullets that struck the mattress also struck The bullet that was deceased. found the left arm of deceased, entered his overcoat which he wearing, was then point shoulder, passed through right at the of his the coat in *8 body, contacting the front of chest without came out of the the coat between the shoulder and waist on midway line the struck his arm about an inch and a side, left left half the A hole was found in the north wall elbow. bullet above through 4¿ passed from the room 8 feet the floor. It inches 18, 8 floor and the south wall of room inches from the feet 18, 29| wall. ceiling struck the from the south room inches sweeper picked carpet The up was later the electric bullet sweeper. cleaning cleaning when the found the room, and Luger bullet, It soft-nosed while those steel-jacketed line from imaginary were bullets. An parti- ceiling through the struck, in room 18 where the bullet pierced it, tion and across point wall at the the bullet into where pass room from the west over bed about foot would it, indicating end of the southwest corner that it was shot from bed. occupying Braun and his room at Andrew son were shooting. They by a knock time of the were awakened at leading room The door into this shooting. door before directly They did not situated to room 16. beside the door on the door to their room or know whether the knock was on They which were fired. to room 16. heard shots door they said, their room shot, The first is the one that entered lying in plaster they and it scattered them as bed. over Snyder, he Luger took gun When officer gun jammed him or he would told containing clip Due off.” At time “bumped Le have quarter of an inch. When was down about shells jam gun would and could not be used. It that condition trigger, located left equipped button, by pressing on accomplish result the button. designed Block, a roomer the Lisa Kreiehelt, Herbert C. heard pause the first was a between second There the shots. succeeding rapid ones were fired in second and shots, and the succession. presence, room in defendant’s examined the officers who shooting, explain- that defendant testified
shortly after Snyder fired first them that shot happened told ing what shooting the events told detailed otherwise the witness-stand. him on *9 dying that the that, it assumed defendant contends if be
The in evi Snyder properly admitted declarations of his dence, physical the facts demonstrate that statements still false or shooting done were the manner in was which the following erroneous for the reasons: Snyder’s that was shot he First. He contends that statement bed of the standing at head the throat the defendant while bullet impossible is that the to be of the fact shown reason Snyder noted that took downward course. But it should His say position. standing upright did that he was an he where simply point statement in the room the indicates though standing on his leaning forward, stood. Had he been suddenly stooped fired, at the the shot was or had feet time defendant, the in an effort the aim of the forward to avoid be. course of bullet could have been as it found to was Snyder in the Second. is that if was shot It contended bed, if he reached standing neck while at head gun stated, have for his in the chiffonier as he there would vicinity. blood stains in that We think the was been assuming in that warranted in that absence of blood stains an was due to the that he wore overcoat at the vicinity fact large prevent measure time, which would blood escaping little escaped on to the floor. That but blood Snyder, apparent though from the fact that even after point shooting, left the room at where he was shot and street, sign other went downstairs to there no except post bed, in the room at southwest blood on the bed. none found that,
Third. It contended defendant since one of the deceased, also struck that struck mattress the bed bullets hip, the one that him in rather than must have been it hit contended, arm, for, it there is no that he left evidence permit sufficient body under bed ever had his right pene- point at the shoulder after to enter bullet Hence, trating the mattress. contends hip not shot while follows conclusion get in an effort to chiffonier toward the he was turned gun. think But we there was sufficient evidence warrant jury in concluding pierced that the shot that the mattress one arm, was the that entered hip the left rather than the lodged deceased. bullet entered and in the left arm evidently spent had striking arm, its before it for, force not, had passed doubtless through would have the arm. We conclusively think the evidence not demonstrate does *10 Snyder’s shooting version of the was false or erroneous on this account.
Fourth. that, It is since Braun and contended the witness son his testified that the first shot the one entered that room, their it must that of the follow defendant’s version shooting Snyder’s correct, false. But were at to disbelieve liberty accept Snyder’s these witnesses ver- and given sion of it as in dying three declarations. Also it should be noted that both Andrew Braun and his son testified that Braun, Jr., Andrew in remained bed was there when the and Nixon, officers, Sullivan, and came to examine the room. Nixon that Officer testified there was no one bed when jury, he- circumstances, examined the room. The under the testimony they was entitled to distrust their believed that by Nixon, liberty given at and was to conclude the first that shot was not the one that 18. room The fact that entered by Snyder the bullet which entered room was shot Snyder’s of the the southwest corner bed reconcilable with story shooting. The fact that it went wild from the position explainable where then stood is defendant fact by Snyder’s statements) (according to he at that time had body, which, in parts been three different two shot according evidence, to the fatal shots. Under cir- such easily capacity cumstances it is conceivable he had lost accuracy shoot, with in which to choose direction to and gun jammed his particularly him, when he stated. by the state We think evidence adduced was sufficient demonstrably a conviction and that is not false to warrant irreconcilably physical facts, in conflict known because Case, in supra. the Gunn as was evidence dying urged is that point 2. The next Mary Hogan, Snyder, as related declaration founda proper want of in improperly admitted evidence Attorney County Deputy to tion. This statement was made who Hogan, stenographer Mary presence Levinski in appears It questions answers shorthand. took the questions called he was asked a few after had Levinski Mary Hogan then said telephone to the and left the room. returns,” Snyder, until Mr. Levinski to “You rest had better Snyder be then. replied, to “I will done think minute getting pretty dark.” In about Everything is Later on, taken. the statement was Levinski returned discussing examination, fact of his the course of his when “Well, Block, Ostdiek, leaving said, Lisa he partner, Clem up going give taking grips. I am not his where Hogan, pause, Miss he—” There then a said and so eyes appeared Snyder gasped his and closed sort that because of state distress. defendant contends going give ment, up,” apparent “I am not it is impending We do was not then under sense death. warranted find so construe his statement. The court was *11 ing Snyder what taken meant, then when his are words connection with his actions under the circumstances and going give case, up making not was that was to think, taking respecting the cause death. We statement of his wounds, the nature of his and into consideration his conduct statements, proper foundation the intro his was shown for by Snyder Mary Hogan, declarations made duction 4 meaning 10531, of section in within the of subdivision as Martin, 565, 76 248 terpreted in case of State Mont. v. cited, 176, Vettere, therein State v. and the and Pac. cases 574, 248 179. 76 Mont. Pac. Snyder dying statement, asked, part
3. was As a of his you?” any reason at all you give Le Due to shoot “Did say I was, did.” It is con “No, can’t His answer Snyder calling by for a made conclusion was tended this testified to already facts The witness had witness. 558 be) Snyder (if such it this conclusion
stated would follow as a matter of and think admission law, we erroneous, was circumstances, this statement under 957.) 514, (See harmless. 88 294 Pac. Collins, State v. Mont. the shoot However, nothing statement than that was more ing such a provocation, done and defendant without a conclusion. fact, statement has been held to one of and 603; Crean, 1912C, 424, 114 Pac. (State 47, 43 v. Mont. Ann. Cas. 1395.) 30 It characterized 275; C. J. note in 25 L. R. A. and, as fact a collective some courts as the statement of (See J. L. R. C. such, admissible. note 63 A. 58.) note objection of part dying declaration, over 4. As permitted to defendant, Mary Hogan witness Bill Snyder Le Duc hit in substance that show that stated “sap.” Defendant Jones over the head with contends “respecting a statement was error because it was not this requirement death” subdivision cause within his declaratory of the 10531, supra. is but section This section sufficiently generally common “and has been held to be law killing, circumstances of the comprise the facts and broad immediately circumstances, sur and such other facts it, properly part of the rounding attending form a supra; see, J. gestae.” (State Crean, also, v. C. res properly admitted. statement was assigns part of the court Defendant error on the 5. objection, the wit state, to allow permitting the over Hogan, to her transcribed notes who referred Mary ness questions propounded to dying statement, to read following in which the the order without answers, and his by eliminating asked, some of questions were several There immaterial. We think questions and answers. be admitted holding statements must that such are cases 183), (State Carter, 107 La. South. entirety their *12 328, 93 Conn. (State Perretta, possible far at least as so that the statement be noted 690). Here it 105 Atl. should signed by the deceased. or to, approved not read was under circumstances defendant entitled to most that if introduced, statement have the of the here was to whole (30 J.C. requested he so on cross-examination. desired permitted 271, 272; supra.) Defendant was Vettere, State v. Snyder by made parts such statement introduce rights His by as the state. desired, he were omitted by manner in which prejudicially affected dying admitted. declaration was he state, that Ostdiek, testified
6. for the Clem a witness occurred, shooting Snyder in room where the saw him 5, again saw 4:00 A. M. March and that at about on about 5:30 A. M. He identified the Lotus Block at by him at the time those introduced clothes that were worn as showing cross-examination, after that in evidence. On de Snyder that he had with difficulty witness related said, Snyder “I prove fendant, offered to Due going now we will see Le am over to the room go, him out”; urged not to can throw me the witness said, plenty then of trouble and there would as up “Well, going I’m now and if Le Due shows over there staying coming I’ll there.” The court sus either be back objection stating proper state, that it was not tained objection cross-examination but matter defense. The sought properly The matter be elicited on cross- sustained. no manner connected with the matters examination was in In this re direct examination of witness. stated distinguishable from that of Whit spect case State v. relied worth, 133 Pac. defendant. 47 Mont. evidence offered was ad Defendant also contends against made the defendant a threat deceased missible aiding determining who purpose of for the against the defendant made deceased aggressor. Threats Inich, (State v. Mont. on this issue. admissible are 171 Pac. But Caterni, 54 Mont. 230; State v. Pac. not, the cross-examination of state’s may the defendant objection his defense when establish witness, over state’s manner connected is in no sought to be matter elicited *13 by the statements made him in his direct examination. (State Smith, 349, Mont. 188 Pac. day
7. On the of the homicide the defendant made a volun- tary shooting. statement of concerning the facts It in by Hogan, county was taken Mary attor shorthand ney’s stenographer. On cross-examination of defendant purpose laying impeachment, of the foundation for his county permitted attorney question ask was if a certain had propounded making not been to him when he was statement, give and if he did not a certain answer thereto. responded by saying, He “I think don’t so.” Defendant’s counsel on redirect examination offered the entire statement by made him, claiming right by to do so virtue section 1921, part Revised provides: Codes which in “When part act, declaration, conversation, writing given an or may subject in party, evidence one on the same whole ’’ inquired into the other. At the time offered statement, yet part entire there had been as no actually statement admitted in evidence. defendant had simply that he did not think he made stated had such a state Mary Hogan ment. is true that was in It called rebuttal testified that defendant did make such Defendant, statement. surrebuttal, in Mary cross-examination Hogan, had requested, might have parts he so offered such of the entire a tendency statement as would have qualify, explain or con part tradict Mary Hogan, that of the statement testified to request no such made. At time but the entire state properly ment was offered it excluded. objection during
8. Over of defendant his cross-examination, you “Q. Did in the jail, shortly he testified: not city o’clock, yourself March presence after one reporter Standard, for the Montana Cooper, Ed -tell Mr. you up Cooper in that knew who it substance was that went you say didn’t stairs; to him? A. Le [Mr. Due] Q. your I did. there doubt in I don’t believe Is mind Q. you you not? A. There And did or is. may whether have Q. you him A. I don’t I did. that? believe Did told substance, Cooper place, tell Mr. at time and Snyder? going you Q. not. knew was A. I did Who was up the A. I did stairs? not.” objection defendant,
In Cooper, rebuttal over witness permitted “Q. you if ask testify as follows: will shortly city jail, o’clock March after one Due, if Mr. presence yourself, and Mr. Le say, say, he knew Le Due did not or in substance *14 Q. Yes, up it he did. who that went stairs? A. was the you To what time did the had and Mr. by conversation Due, Shortly day March, Le 5th 1930, on the refer? A. o’clock, exactly. after one would say “Well, not The court: Rotering, you. Q. Mr. the witness misunderstands You had conversation with Bert up Le Due about who walked the had in Block, Q. stairs you Lisa not? A. did Yes sir. Of you were speaking what and Mr. Le Due at the time? A. We Q. speaking shooting. anything Was said about anyone up stairway walking shooting? A. before the yes. Q. was, There Did you Due party Mr. Le tell when the up walked whom he knew? stairway, said he A. Yes. Q. you To time, what know, did Due when he Le refer said person stairway? up whom knew walked A. He only immediately shooting.” said before the Defendant contends that foundation testimony for the Cooper too uncertain was indefinite advise the wit- question ness to what time the Conceding related. question indefinite, time to which related was we think weight given testimony that affected the to be to the adduced admissibility. Cooper, rather than its If it did not in impeach testimony defendant, fact by as contended defendant, it was testimony then harmless. The Cooper weight properly question introduced and its was a for jury. determination of instructing
9. Defendant contends that the court in erred jury on murder in the degree. second Whether present, of deliberation is not the element distinguishing or degree murder, is, exceptional save in from second cases, first 562 (State court, jury. determined, tbe v.
to be tbe but 11868, Rev. 504, 903; 12022, 23 Mont. 59 Pac. secs. Calder, per slaying in the 1921.) committed Where Codes petration of the felonies attempt perpetrate or some one 1921), the 10955, in Rev. Codes (sec. enumerated statute degree, give an court need not instruction on second (State degrees. into a case crime not divisible such 64 Baker, 647; Reagin, 13 160, v. 32 Pac. v. Mont. State 212 74, 65 Mont. 481, 86; Bolton, 210 Pac. Mont. State v. 282.) 169 504; Fisher, Pac. 211, Pac. v. 54 Mont. State exceptional speaking, the cases wherein the Generally give degree murder are need not an instruction second killing charged perpetrated to have been where the those torture, lying wait, or poison, means of where felony resulted in of some enumerated the commission State, 102 21 A. L. R. statute. Ohio St. (Bandy proper exception E. But in a case extends N. murder, there premeditated where also to deliberate and lesser tending show commission is no evidence Watts, (People v. degree. murder first offense than 603 and 247 Pac. A. L. R. Cal. and note *15 622.)
My an proper think was case for instruc associates covering degree murder. Proof of the homicide second tion having by the crime is state, made the by been (State degree.” in to murder “the presumed be second v. 544, Kuum, Chavez, 352; 85 281 Pac. 55 Mont. Mont. State v. Fisher, 540, 919.) 436, 288; 23 Mont. 178 Pac. State v. Pac. state to introduce The the burden was evidence satis beyond reasonable there was fying jury doubt to premeditation and order raise the crime to deliberation degree. jury liberty The was the first at to dis murder tending of facts circumstances regard evidence They liberty at premeditation. deliberation and show to testimony all, part, none of the witness. believe in the Fisher, supra.) last As said case: (State v. cited “ killed, Allen and the at the was state What time occurred mind, by jury were to be found the defendant’s view that My evidence.” associates are degree. instructed the on murder second properly within bring it my in this case is view that the It facts instruction improper give an exceptional where it cases is facts of the important degree. murder in the second Snyder’s version If by homicide are related witnesses. two was given through dying declarations, shooting, guilty is correct, my opinion the defendant then it is killing is degree; of murder in the for “whenever first showing deadly weapon, with evidence aliunde and there is used, unjustifiably intentionally, deliberately, and that this was case life, intent to take then the inference is that an Law, (Wharton’s Criminal degree.” is murder the first 884; 776, Pac. Watts, 198 Cal. 518; also, People see, sec. v. According 186 Pac. People, Dickens v. 67 Colo. in cold blood. Snyder’s story, murder was committed preceding shoot quarrel no or mutual combat There was It otherwise. ing. provocation words or There no shooting. The first accidental not unintentional or It fired defendant. according story, was shot, fatal to his neck, spot it would the vital where deceased in the struck Deliberation, is the distin produce certain to death. first second murder guishing feature between “It expressly evidence. degree, need be shown attend and circumstances inferred from facts generally to be Leakey, 44 120 Pac. Mont. killing.” ing (State v. killing “Here the also said: in that case 234.) The court (cid:127) which, aside circumstances under have been done shown to no defendant, leave condition alleged mental from the deliberate wilful, it was other than an inference room for Vettere, 76 Mont. v. effect State murder.” To the same Leakey language from State above where 218 Pac. regard presented no issue is Here approval. quoted Snyder’s Accepting defendant. condition ing mental *16 it doubt that can be no I think there shooting, story of the evidently district degree. first murder was degree thought so, an on murder the first for instruction given. was any case,
Is circumstantial there evidence in the direct or inference, might show, or an permit be said to shooting unjustifiable yet deliberation? and without shooting. To I think not. he Defendant admits that did inten purposes all admits that it done intents deliberation. tionally. question no issue on the He raises shooting deliberately, Virtually but he admits that he did the insists that he did own life. He concedes so save his shooting there or and that quarrel combat was no before except deceased, without provocation there was no shooting any cause, first If his of the fired the shot. version acquittal. me correct he entitled an It seems to here, only question deter presented under evidence jury or fired mination of the was whether deceased acquittal If have did, shot. an should first the deceased degree. followed; then it was murder in the first latter, any justifying I fail a middle to find evidence case jury may disbelieve all or ground. realize that any witness, part but that does not solve of the evidence reject problem we of the evidence from here. When all evidence, circumstantial, direct or Snyder, there no other acquittal. If on which other than one we to base verdict accept Snyder’s reject of the defendant’s evidence all upon no evidence left which to base version, then there is degree of first murder. And when we than one other verdict eye-witnesses attempt reject reject evidence both produced them, from each of we must evidence part shooting surmise as to how indulge speculation conjecture cannot surmise Verdicts based occurred. Hood, ante, p. 432, and cases 298 Pac. (State v. stand. cited.) therein showing
Moreover, disregard if the the evidence may why they may reason also deliberation, then I see no tending degree to raise evidence disregard state’s committed degree to first when murder crime of
565 perpetration in felony. repeat a Yet this court has edly held that in degree such an cases instruction on second need given. (State not be 212 74, 65 Mont. Pac. Bolton, v. 504; Reagin, State v. supra; supra; v. Fisher, State State v. Baker, 160, see, 13 647; also, Calder, Mont. 32 Pac. State v. 23 504, 903.) Mont. 59 Pac.
It physical should be that the facts and circumstances noted justify shooting do not an inference that the differ- occurred ently than point the sworn evidence It to a shows. does not degree acquittal. crime between midway first murder and The only made, regard claim here in made, or that be could physical upon to the they question is that bear facts as eye-witnesses to which one the truth. told applicable rule which I think by here is stated author 622, the exhaustive note in A. L. 21 R. follows: as “If there is evidence an which, unsworn statement if acquittal, an believed, warrants defendant convicted of degree lower may of homicide base a claim of reversible degree error instruction, submitting on an a lower of homi cide, degree, followed conviction of the lower where no (See, also, evidence instruction.” People warrants v. Schleiman, 588, N. 18 Ann. 383, 197 Y. Cas. 27 R. A. L. (n. s.) 1075, 950; Hunt, 90 E. v 30 N. 273, N. State M. 231 Pruett, 576, 21 703, 579, Pac. State 27 N. M. A. L. R. v. 203 Pac. Bandy
The reason for the rule is well case of stated State, 499, 102 Ohio 21 A. L. R. N. St. E. v. no evidence from follows: “Where there is which a rea as degree inference can be for other than mur sonable drawn only degree, der the first it is not not error for the court charge upon degree, lesser but to refuse to such would be error obviously, charge; for if the for the court to so defendant guilty degree, liberty murder in the case is not first such away by compromised upon not be dickered verdict should This degree supported which is no evidence.” another like comment the rule State Mc has made 93 Pac. Gowan, Mont. 552. my opinion
It presumption degree of second arising killing murder from the fact defendant, application where, at in a has all case here, killing justifies self-defense, admits the a rule affect- ing the proof only presumption burden of and the cannot take place of substantive and be used as the founda- evidence jurors tion for a verdict which sworn under section according Codes 1921, Revised to render to the evidence. degree presumption But if it be that the of second assumed may proper murder in a case it is verdict, basis *18 away contrary (See still one that fades in the face of facts. Persons, 110; All 85 Welch v. Mont. 278 Pac. Nichols v. Co., New York 88 253.) Ins. Mont. 292 Pac. Here the Life by state, evidence adduced if believed, the crime to raises degree. The him first defendant’s evidence, believed, entitles acquittal. presumption to an Also the of innocence that throughout should attend the ought defendant the trial to be presumption degree sufficient to overcome the of second mur where, here, der in case as killing the defendant admits the justify ground to seeks on of self-defense where undisputed quarrel preced it is that there was no or combat shooting. ing the any
I am not able to find in evidence the case degree to base a verdict other than murder in the first or my acquittal. opinion that preju- It is the court erred to the giving, objection, dice over his an instruction degree second murder. Complaint 10. is made the court instructing erred effect, jury, that deliberation premeditation in an may be formed instant. Since the defendant was con degree only, of second murder jury victed it follows that the deliberation, must have concluded that was no there and hence by prejudiced though not the court’s instruction even was that it it be assumed erroneous. was designed permit 11. Defendant offered two instructions jury question pass upon whether the dec made in larations of articulo mortis: The offered
567 instructions were refused and the by limited instructions of court, far their so as consideration dying concerned, weigh declarations or their truth falsity, inaccuracy accuracy or of their recital witnesses. The cases are in conflict to whether it is error jury’s to remove from question consideration the whether the impending declarant under a sense death at the (1 time made him. L. declarations were R. C. 536; 730; 268, 269, Cal. Jur. in Ann. C. J. note Cas. question has been foreclosed this state case of supra, State v. Vettere, like wherein offered instruc- tions were properly held refused. This conclusion in har- mony with the Wigmore, views Mr. distinguished author on Evidence, who “After dying declaration, said: evidence, other admitted, has been weight given to be to it exclusively a matter jury. for the They may believe may it or it; believe but, they so far as not, do or do their judgment not controlled rules of Therefore, law. though they suppose themselves do not the declarant to have been death, they may conscious of still believe statement; conversely, though they suppose do him to have thus been conscious, they may still not believe the statement to be true. words, In other their canons of ultimate belief are not neces- *19 sarily the same preliminary as the legal conditions of admissibil- ity, purpose whose entirely an (ante, different one 29). sec. It is judge, therefore erroneous after once admitting declaration, jury to instruct they reject that must declaration, or exclude from consideration, it if legal re- quirement as to consciousness of death does not in opinion their they reject No may it, exist. doubt ground any this they other; but are expected not to be to follow a definition only of law intended judge. for the heresy Nevertheless, this jurisdictions, has obtained sanction in some analogous it is to already jury’s discussed' in reference to a use of confes- (ante, sions 861).” (3 Wigmore sec. on Evidence, ed., 2d sec. to of the court assigns Defendant error the refusal
12. reading as fol give 17A, instruction No. his offered dying of a are instructed lows: “You the declarations great caution, you should person are to be with considered evidence weight all the give such such as under declarations consider you receive. You should are entitled to they believe cross-, test of subjected to the that such cannot be declarations all of you testimony. If believe examination like other part, any material is false in the evidence that declaration may you reject the statement.” entire admitted with dying are to be It is true declarations an supra), that is admoni great (State Martin, but caution admissibility upon ruling to the court tion addressed held, have question, we alleged dying statement—a of an being the jury The no concern. jury with has testimony, given it weight to the judges sole dying dec an that a give instruction not error to refuse Gay, (State v. great caution. be viewed with laration should declarations 411.) The such 44 Pac. fact that 18 Mont. like other subjected to the test of cross-examination cannot be pointed instruction testimony specifically out another erroneous, instruction was part of the offered given. The last found to be false the declaration part in that may they dis justified an instruction to only Eev. (Subd. sec. reject, parts. other trust, not language general instruction 1921.) A Codes re properly instruction was given. The offered statute was fused. where three the situation
The is confronted court com- majority, think constituting error Justices, are not But those three requiring new trial. mitted majority of the ground for reversal. accord on one every ques- of the district the action court sustain appeal. presented on the tion among as to the authorities there is some conflict
While we circumstances, under such pursue proper course *20 supreme think announced rule the correct
569
Will,
cNaught
138 Wis.
M
on’s
in
case of In re
of Wisconsin
extra
“A
so
179,
997,
118
it is said:
situation
N. W.
where
move
ordinary rarely
judicial work. That it should
in
occurs
harmony,
efforts for
judicial
exhaust all reasonable
minds to
while
situation,
The
natural.
it has in
most
case,
as
new,
the fol
as
degree,
nevertheless not
peculiar
high
in a
9-101;
Pa.
Cases, 52
Legal Tender
lowing
will show:
citations
Drew, 3 Stew.
47-87, 88;
v.
Browning
33
Cook
State, Miss.
v.
rule
Morrison,
It is belief that the shot but my fired first the and, record, take is view; did not that I read the there as testimony, “dying substantial declara- even without the first tion,” verdict, being it is sustain the and such the case my not province within interfere on score. altogether probable jury’s upon It is that the verdict rests in the is declaration. Such of went to the first it as are defendant, exact of the while the two later ones words Daley. The first based Kelly recollections of points goes greater declaration on material much detail into ' therefore, declaration, than do the first two later ones. The my opinion of all-important. is With deferenec to the due case, compose majority I think associates who this further, admitted, and, should have been first declaration not admitting so error the method followed there was of the instance of the much it as was received at state. dying hearsay, hearsay fraught with 1. A declaration is liberty, life, danger, involving, does, often as said homicide. While it has been of one accused felonious of dying all of reception of a declaration violates rules 183), it is (State Carter, 107 La. South. evidence v. necessity, public policy, of because of motives admitted slayer might go unpunished. It must and without it (State Martin, great 76 Mont. caution received with v. governing must 176), admissibility and the rules its 248 Pac. carefully. setting When consider the dramatic we be followed declaration, dying which carries the evidence sometimes of appreciate beyond merits, we the more the strictness its far admission. hedges about its which statute, subdivision Revised Codes section Our “In act or declaration actions, criminal 1921, provides: impending under a death dying person, made sense aof death” is admissible. the cause respecting Holloway, in Martin, supra, Mr. Justice a well- In v. State following from opinion, quoted Rex Wood considered general principle which 500: “Now on 1 Leach C. cock, C. they are declara- is admitted species of evidence point extremity, party is at when tions made every gone; hope world is when of this death, every when silenced, induced mind is and the motive falsehood is truth; a situa- speak powerful most considerations to by the law awful, solemn, and considered tion so so by a imposed creating equal obligation an to that justice.” And also positive a court of oath administered in edition, Evidence, Wigmore second following from 3 general principle, that follows, section 1440 : from the “It death, nor even merely possibility belief be, must rule stringent certainty. A probability, less but its *22 accepted this the might safety adopted; have been but with no phrased: must be variously there have one. The tests been ‘and un- expectation death’; of recovery’; ‘hope of ‘a settled general The essen- effect is same. doubted belief.’ Their one, positive and absolute idea tial is that the belief should be left for by no room reserves; or so that not limited doubts operation worldly motives.” will In the “It be Mcm-tinCase we declared: observed admissibility to precedent requires, rule as a condition proof declaration, preliminary of the concurrence following made (1) conditions: That the declaration was courts, flowery phrases of dying person, in the more mortis; (2) declara- in or in articulo that the one extremis impending (3) that death; made under a sense tion was death, to cause of the declarant’s the declaration relates exactly, dying condition.” or, more cause Snyder dying in a con- may conceded that While it preliminary made, no the declaration was dition at the time dec- it, he made he knew or that showing made that Upon impending this vital under a sense death. laration said showing whatever unless it can be no point there Hogan’s admonition, re- response Miss he made to hereafter, supplied it. ferred proof looking to the began admission the state its
When alleged dying counsel for the defendant asked declaration, jury in to ascertain whether excuse the order the court declaration was entitled to admission in The evidence. denied request. granted, Had it been in accordance the suggestions Kacar, made v. 74 Mont. State Pac. and Vettere, State 248 Pac. Mont. procedure resulting wherein approved, much of the (cid:127) occurred, confusion probably would not have error and would have plain been avoided. con is made when the This ditions under which the made understood. declaration was are It was made at Hospital, St. James 10:30 in the Butte, at morning, about Snyder hours after About five was shot. Snyder’s county attorney, bed were Levinski, deputy newswriter, years’ Hogan, stenographer Miss of sixteen experience, employed attorney’s .then county office. questions by Snyder. were asked Levinski answered They were accurately by Hogan taken down and tran Miss correctly by scribed her. way
This is the dying put declaration was so-called Hogan before the having court: Miss stand, taken the said she stenographer county was a attorney’s office, Snyder hospital, she seen had at the testimony, taken the had and so forth. questioned She said: “Mr. Levinski Mr. concerning his wounds, answers,” then, and made over objections fully challenging procedure being followed the absence of a showing, preliminary overruled, omitting the prosecuting questions officer, all prior and answers *23 room, to time Levinski left elicited the statement Snyder Hogan, permitted made to Miss and was to select transcript questions such and answers as he desired. The testimony Snyder, of even if admissible, go did not to the jury in form. part consecutive This is illustrated Hogan’s cross-examination, in Miss which she was if asked she portion testimony read did not of the and then turn back a page read, said, and “Q. two to which she They “Yes sir.” not in the order in were read which were answers made Snyder? Well, quite I Mr. A. don’t your understand Q. Well, instance, you question. turned over several pages certain questions, answered and then you turned questions? pages back afterwards and answered certain several A. Yes sir.” beginning hospital:
Here is what At the place took at the his statement, given of the had name and after (1) “Q. Snyder, on place residence, Levinski Mr. Mr. said: have, it is a your you account of the nature of wounds through, very may pull question you whether or serious you (2) in view understand that? A. Yes sir. And you like to have may impending, I fact that death would have happened to come to you make a statement as to how you injuries, wounds, them, inflicted these who these say I can. I will what give Well, would us. A. Q. Q. you you'? A. was it? Yes. Who Do who shot know Bert Le a former Q. Due, same A. Bert Le Due. Was it Q. you it time was deputy sheriff? A. What Yes sir. Q. Do guess sis o’clock. Oh, I it about shot? A. Q. A. time? Yes sir. you you were at know where Q. Block where I room. What I at the Lisa Where? A. was Q. Block? A. How your Lisa 16. room number Well, my part- A. he bawled you? did Le Due to shoot come your partner? A. Clement Ostediek. Q. Who was ner out. Q. say you? sir. Le rooming A. Yes You Q. with Was Listen, story goes A. your partner out? Due bawled had evening early this and another My up partner went like this. him, and Le did not like go up Due happened fellow away couple times, fellow, stay him to told this other my move, out, him partner my told he bawled and so over to a friend’s took them up his stuff packed partner point Mr. Levinski called to the this Main Street. [At had rest until Mr. Hogan: You better By telephone.] Miss Snyder: I think will be done By Mr. returns. Levinski pretty dark.” getting everything then; Hogan’s admonition that reply to Snyder’s Miss It is Upon iso- depends. the declaration admissibility objections counsel for the strenuous statement, over lated declaration. portions admitted defendant, ques- the preliminary before have not then The court did *24 statement, have appear notably those I tions which imme- (1) (2), marked and nor statement made almost “I diately returned, Snyder in after Levinski said: * * * going give up Snyder am not did mean to .” What said, then; everything “I when he think will be done getting Did he unable pretty dark?” he mean that would be it, did he statement, to and so be done with continue state, course, mean die? The con- that he about to was interpretation. interpretation If tends for the latter adopted necessarily. (30 conclusive C. J. it would not be (1) quickly questions (2) and after This followed Snyder those. suggestion despair no in the answers to there is ' Hogan, to replied was in condition. When he Miss a weakened He pass he he about into unconsciousness? think was to did returned, unconscious. Levinski after did not become When right, go ahead,” “All absence, Snyder, he said to moment’s Snyder responded: out,” “He me get to contin- told testimony. immediately said, ued Almost he “I am not his going give up,” and so forth. Here the state contends give making he going up meant was not his state- that he ment, majority agrees. of the court I refrain from and the comment. slight interruptions
After two about time give up, going give not he continued to said he was logical in a clear and manner. After statement to answers testifying Hogan there not an intimation that he Miss was impending under a sense of death. What was his mental Be reply? Who remem- state when knows? it made jury occupied advantage neither court nor an bered that Hogan testify- judging in this. Miss over ourselves instrument, ing copy of which we have in from a written entirety, did although in its not have it. the record entirety, frag- in its declaration read When the clearly does ments, my opinion, not come within Martin, supra, where we rule down State v. undoubted laid rule which measures “There one of evidence is but said: criminal The burden proof case.” quantum *25 Snyder made doubt that beyond a reasonable prove to the state say I impending death. a of his under sense his declaration Had successfully bear that burden. not did .state sub- admissibility been of the declaration question of if the court been, have it doubt mitted to court as should admitted it. have would should convict, prosecuting officers eagerness to
In their person justice duty do to it is their to remember that the state. trial as well as to surrounding affect shown do not The circumstances 2. another, but is another question way here one there point in dying declaration a strong doubt that the first reason to mood, revengeful at all in a not It shows declaration. worldly respect In to forgetful affairs. it differs of by him to the degree from the declarations made remarkable night when day particularly at the next Daley witness at the approaching. I do not believe that rapidly death was near, Snyder thought death was declaration first time of his He inevitable result of his wounds. it would be the or that doubt, enough. probable, no but that is not thought it assumption Proceeding upon the 3. now the declaration was, measure, admitted. in a made under have been It should questions All were written sanction. answers official by the deceased. The The answers dictated down. position stenographer give Snyder’s exact official writing, declarations are taken down in “Where such words. uttered, although signed by not they are the time at being memory and accurate than deceased, more reliable men, they produced and read at the trial.*’ most should Utah, 49, 49; 6 Pac. Callaghan, 4 and see Scales (People v. 69, 11 South. 96 Ala. State, failing distinguish fall into error not be-
We must by someone prepared other than the memorandum tween a him, actually signed by statement dic- declarant, him declarant, signed or not. whether by the tated containing actual Snyder, words, made declaration said, if admissible, he of what should evidence being best jury gave (subject, presented tbe as he have been incompetent parts duty to exclude course, to the court might have the declaration thereof), that the order its regard due to the correlation consecutive order with approximately, way reflect, can it even parts. In no other Snyder’s when factor—the state of mind that essential principles gave Surely it. not called authority is justice elementary. so having part the state offered
But it is said that liberty rest. at to offer the defendant was declaration, we remember when That this is fallacious obvious at all times that declaration defendant contended No proper for the want of a foundation. wholly inadmissible *26 Vettere, supra. in presented State v. situation was such in of the first declaration admission Convinced that the emphasized by manner in error, the which was evidence was jury, I the presented to the think parts of it were granted a new trial. should be defendant the Dissenting: I dissent. As to GALEN, MR. JUSTICE by declaration, the dying testified to admissibility of the there- by her taken in and Hogan, shorthand Mary witness agree expressed the writing, into views from transcribed dissenting opinion. prop- It was not in Justice his by the Chief dying the settled law declaration under admitted as erly prerequisites relative by Justice to the the Chief reviewed admissible, make it its admis- in order to and such a statement fact, the In were highly prejudicial defendant. sion very record, doubtful whether the from the it eliminated guilty. At rate, the have found the defendant jury would by Snyder’s entirely dying declara- supported conviction testimony, properly admitted, Hogan’s tions, and Miss only in Not influenced the its verdict. greatly have must alleged dying the discredit dec- physical facts the that, but testify, permitted it is as to which she laration in majority opinion facts are stated noteworthy testimony. Hogan’s Miss entirely taken upon by was tried the state theory case shot, deliberately murdered defendant fired the first theory proceeded on the Snyder; while defense solely Snyder first and that the defendant acted shot fired im- physical Therefore, self-defense. are most facts portant fact to be considered view of the that the defend- Snyder, ant’s solely conviction stands the statements of though dying admitted as declaration. Even state- by Snyder, by Hogan made testified to over ments Miss objections, they properly admissible, defendant’s are were completely by testimony physical discredited facts and impeached of witnesses in corroboration thereof no manner Snyder by or overcome other said evidence. was stand- ing at thereof, at head bed at the southeast corner shooting, time cannot but this be true as shown Snyder physical facts. The fired four shots gun fired two. Four shells from Le Due’s found and were placed evidence, and also four bullets which came from his gun. Three of the entered bullets fired the defendant Snyder’s body. All four of the fired bullets the defendant and identified. found One was taken from left lodged shoulder-blade; one arm; in the left the one that right hip passed struck through hip-bone, vertebrae, ranged struck the passed downward out rectum. lying It was found floor. The fourth was lodged found in the floor under the bed near the southwest *27 post comer of the bed. There passed was evidence that had it through bed, the mattress the bed-spring, on struck a was deflected from course, its and was found on the floor. Two by'the through passed bullets shot the mattress and were, by indicated, reason the course shot from the north- corner of the hence, east bed toward the southwest comer; one of the Snyder. bullets that struck the also mattress struck Therefore, the most easterly passed of the two bullets which through mattress must have the been one of the bullets which Snyder. By taking hit holes made in the the mattress in the they appear line have been shot from Le Due’s 578
gun, unmistakably it is standing that he demonstrated was bed, southwesterly the north and fired in a side the direction the- spots towards foot of the bed where the blood were found Snyder on the floor. The throat bullet which struck the point lodged in the abrased the of the chin found portion of left lower the shoulder-blade. Its was down- course Snyder’s through passed ward. One of bullets the north wall occupied by him, of room which was room entered adjoining, through found; passed where it the -other edge door in the west wall of room but was through found. As two of fired Le by passed the bullets Duc bed, mattress on one of them have entered must says Snyder’s body. Snyder Duc Le the first shot fired by stooping while bed shielded at the southwest (Le Duc) he thereof, corner while stood over north- at the east corner when shot at testi- bed him. His mony respect in this hole corroborated reason of a bullet through 18 north wall of the room and room No. into Snyder’s point adjoining, gun made at 8 feet floor, from 6 feet inches from wall of inches the east If building, fronting from Street, on Colorado and 15 feet wall, the entrance the room. The entered the west near ball 8 feet from floor through partition room inches 7£ 29| ceiling and struck the thereof inches north from the south An line extended from the ceil- imaginary of room 18. wall ing through parti- room the bullet struck 18 where point pierced by bullet, into wall at where was tion pass the bullet over the bed and across room would make it, demon- the southwest corner of thus about a from foot beyond by Snyder, was fired strating doubt that shot testified, position from near the southwest the defendant point floor, near the where blood corner bed spots were found. convincing physical facts, these substan-
In addition to Brann, story homicide, tiating Andrew defendant’s working that he occupied adjoining, testified who room thirty- Post”; Daily pressman the “Butte aas at
579 years age, nine boy years a widower and has thirteen age, ocenpied who him; room 18 in the Lisa Block with he heard a knock him; on the door which he did awakened not know whether his door, it was on door or the next room 16; he in 16, heard room and then a fired. voices shot was When the through shot was a bullet came the wall into fired occupied ceiling spat- room he with son, hit the his plaster tered boy they lay all over him as bed. He heard or six five after that. About two or three shots elapsed between seconds first and second shots. first shot son, fired the one which entered his room. His Brann, Andrew Jr., Coupled testified to the same effect. physical testimony facts, completely discredits Snyder’s statements, fully sustains the defendant’s ac- tragedy. count of the my opinion, physical
In
equally
facts here shown are
so,
persuasive,
appearing
more
than those
in the case
Gunn,
State v.
85 Mont.
281 Pac.
where the rule
applicable in
announced
civil actions
the case
Casey
v.
Ry. Co.,
Northern
60 Mont.
On for Motion (Decided 24, 1931.) June opinion MR. CHIEF JUSTICE CALLAWAY the delivered the of court.
Upon the upon this motion the court is called to consider opinion judgment of announced in the
correctness the promulgated May year. 4 of this presented tangle being legal situation a we invited counsel, arguments by respective and were with favored oral appellant Counsel has overlooked for insists the court assignment refusing the court erred in error No. grant appellant trial, give failed con- to new and that we to among statutory provisions, sideration to constitutional and supreme “A shall be neces- majority are: the court which quorum (Const., sary pronounce to a decision.” form or 5.) causes, all “In determination VIII, Art. sec. supreme writing, court must be decisions of (Sec. 8801, Rev. of the decision must be stated.” grounds hearing give 1921.) appeal, “After the court must Codes regard to defects, technical errors or or judgment without rights exceptions, which do not affect substantial may 1921.) “The (Sec. Codes court parties.” Rev. modify judgment appealed order affirm, or or reverse, may aside, affirm, modify or or all of the from, and set dependent upon, judgment such subsequent or to, proceedings order, may, if order a new trial. In either proper, with district court must remanded to the the cause case opinion instruction, together the court.” proper (Sec. Rev. Codes opinion majority it said: court
In of the “The Justices, situation three of confronted with the where requiring constituting majority, error was think committed any one But are not accord on trial. these three new ground sustains majority of reversal. The of the court every question presented action of district court judgment affirmed. pursuant appeal,” motion the court is main of the This conclusion basis rehearing. the Justices Upon disclosed that each of consultation opinion was had when opinion retains the which he same conclusion, except down, handed correctness the Justices believe the trial that even three of viz.: do not requiring trial, they because committed errors new *30 ground judgment the must agree upon precise reversal, the affirmed. be Angstman that Justice believe
Mr. Justice Mr. Ford respects the all and that majority opinion is in the sound Mr. disturbed. should not be conclusion therein announced and the writer think Galen, Mr. Matthews Justice Justice wrong the must reversed. case be the conclusion legal phraseology, did the question, disregarding is, real The fair trial? Three of the Justices have defendant have a guarantees “The law of the not. land declared that did trial,” every a court said man fair as State v. 55 Shafer, 17, 22 Mont. Pac. 526. that Revised Codes declares “when a
Section defendant, against the the court verdict has been rendered following grant trial in the a new upon application may, only,” forth under seven subdivisions. which are set cases jury in the court has misdirected fifth is “when The any question law, the decision of or has erred of matter the trial.” arising during course of lawof says misdirected the Angstman Justice Mr. prejudice. Mr. Justice matter to the defendant’s in a of law say court erred in the decision the writer Galen during course the trial. Mr. arising questions law 582 says
Justice Galen also support evidence does not being verdict. fact, majority Such court is of opinion granted new trial court have should trial. It does not matter that we three are not accord as particular to the error; opinion each is of the an error was committed 5 under subdivision Thus section 12048. majority -of the court is of the solemn conviction that so, did not have a being fair trial. This because agree dowe particular not to the assigned— error or errors assignment being procedural requirement— of error a mere defendant, must right whose to a fair trial was disre- garded, twenty-five years serve prison? The state opinion as written answers this in the in reliance affirmative upon the McNaughton (138 Will Case Wis. N. W. 997).
Upon further consideration case, of that and the authorities cites, which it and others which have come to the court’s opinion attention written, since the this case con- we weight clude that the against authority it case and hypertechnical, should not followed. We think it is with a tendency justice. only to subvert ease which sustains (Ala. Drew, 1833). is Cook v. & P. 392 argued Stew. It is Legal Cases, 9, uphold Tender 52 Pa. it but this is say any rate, the least. doubtful At what is said in the Legal point pure dictum, Tender Cases obiter do fit supposititious illustrations not the case at bar. Bell v. Morrison, Miss. touch question does at all. *31 majority opinion Browning in State, The v. 47, 33 Miss. is contrary. directly Fisher, the Mr. Justice in delivering the majority opinion, points, “Both said: the want of evidence and jury, misconduct of the tend to establish propo- the the same wrong object to-wit: a verdict. sition, The to show a wrong agreed verdict. Two of the members court have toas point wrong that the verdict was this that the court permitting Why, then, in erred it to below stand. not have majority agreed upon judgment? the error in the the The says clearly wrong the Chief Justice verdict was and that
583 say same setting in it aside. below erred not court sustaining it, in court and error of the thing—wrong verdict ground that taken my opinion upon a different but base * * * our necessary that It not Justice. Chief should same, that we reasoning should be the process of involved; points importance the same each attach the same matter, or substantial agree upon error sufficient we it is #** manifestly 1” wrong verdict to-wit: was the Browning v. Handy in opinion Justice dissenting Lipscomb Whitfield in State, Justice and what was said Mr. main 624, 210, are the State, 230, 23 South. 559, 75 Miss. v. fact McNaughton Case; opinion in but bases of the majority opin Lipscomb in follows State that court v. as State, “highly the rule commended Browning in ion v. McNaughton State, said in the as is Lipscomb v. sound” opinion Mr. Justice Whit Case, merely be appears to 131 Robertson, Ins. v. noted that in Aetna Co. field. It Mississippi supreme court of 343, 137, 95 South. Miss. majority Browning v. State: “The rule again followed the clearly announced govern must first rule that (And Gulf, N. State, 33 see M. & Browning v. Mis. 47.” 327, 179; 79 Florida v. 118 Miss. South. etc. Dossett, R. Co. State, 792; Price 65 Fla. South. v. Ry. Hayes, v.Co. 170 S. W. Ark. Ark. Co., 64 S. W. In Pollock C. Hennicke judges “Suppose two who were said: that the court valid judgments were had not come to that opinion judges agreed with the other had conclusion, but such creditors, basing opin their as to were void judgments judgments were these rendered belief that ion on event, judges debts; while would fictitious judgments void, unanimously opinion of the opinion, agree in reasons for such they yet, could points con as, on each of the argued still be would judges upholding were for majority separately, sidered valid, held judgments must be therefore such judgments, *32 and the of the decree chancellor reversed. reason- But such ing majority that, would lead to absurd conclusion if a judges of the agree upon holding not could the reasons for judgments these judgments sustained, void, then the must be although judges were in the conclusion that unanimous they is, we proposition void. such a The statement think, sufficient to demonstrate its unsoundness.” 130, States, (U.
In Ed. S.) Smith v. United 5 Pet. 8 L. principal objections the court “Although said: on each of the relied on showing proceeding error in the district majority court a of the members of court there this think error, yet judgment no district must be question reversed as on the of reversal minorities unite to a majority constitute of the court.” Newman, As is in Philbrook v. 148 Cal. declared grounds Pac. the decision in a case is distinct the decision. urged that, judge
It is has upon as the trial been sustained questions upon each of the which three members of the court severally error, upon may think he committed a new trial he course, result, pursue same the same reversing give will be enabled to the case this court “proper trial court instruction” as to its conduct on a new again trial, may and the case come here under similar con possibility. very ditions. That But we cannot well prison twenty-five years condemn a man to the state’s possibility. If he fear that has not had a fair because we one. What action court shall he is entitled to take trial give beyond lower court are directions shall and what (State ex rel. La France C. District legislative control. Co. v. Court, 40 Mont. 105 Pac. judgment cause reversed remanded to the county, grant of Silver Bow with directions to
district court a new trial. Galen concurs. Mb. Justice
MR. JUSTICE ANGSTMAN, Dissenting: As stated *33 majority opinion, on rehearing, motion for I do not sub- scribe to the point views therein on stated considered. Let it question be that is, assumed the real did-the defendant have a fair trial?
It must be presents conceded that if the record no reversible error, then the defendant have fair trial. If he did did a not have a fair trial province it must because of error. The be of assignments preju- this court is to consider of error. If appears judgment not, dicial error be If must reversed. fallacy it must majority be affirmed. The of opinion on rehearing assuming inis that it the function of this court is to take question a vote on the whether defendant a fair had granted trial or whether he should be a new trial as a distinct separate issue apart from other A considerations. new trial is not warranted unless error is found. is so That this is made clear by applicable our statute. So far here, as may grant command the statute is that the court a new following trial only; cases “When mis- the court has jury law, directed a matter of or has erred any question arising decision of law during the course of (Subd. the trial.” see. Rev. Codes Ob- viously, grounds unless one of these is established here—none being others involved—a new trial is warranted. my
It is view prejudice that court erred to the of defend- jury in instructing ant degree. on murder in the second four say properly But other that the court Justices in- jury point. Hence, judgment structed the of this properly is instructed. Chief Justice Callaway and Mr. Justice Galen are of the view questions court erred the decision arising during of law say the course of trial.- But the other three Justices there respect. Hence, majority was no error of the court is specified of the view that one of the neither conditions in sub- ground for a trial, division section new as exists necessary pronounce majority here. The is a deci- (Const., VIII, 5) sec. held sion Art. has that no error was being it so, the trial court. how can be committed This trial, a fair on what said that the defendant have did not logical basis he entitled to a new trial? principle, question no between
In see difference constitutionality of presented involving a case here and say, grounds. let us assume on, statute three distinct Let us it of the that one thinks violates a certain section Justice Constitution. Justice it another sec- Another thinks violates tion, another Justice conflicts still third thinks it section. Four the Justices the statute is determine provision. Yet, not in conflict with constitutional opinion majority be con- sound, then the must here statute court, majority demned because a each Justices relying Constitution, separate on a section think indefen- bad. Such conclusion would unwarranted and *34 sible, property rights rights of one whether involved it legal question of I no crime. As a see difference accused the two The fact that defendant was between classes cases. granting given a severe is no for a new trial sentence cause error committed from which fol- unless that sentence was lowed. upon majority lays the fact that opinion much stress opinion supreme Wisconsin in the' case of 997, 118 aught Will, 179, 138 N. W.
In re McN Wis. fol on’s opinion Mississippi ap case dissenting and lowed reasoning importance parently but little to attaches question given consid careful it is based. The was which Wisconsin, alone in supreme court of its eration rehearing McNaughton’s (In on opinion, again re first but 179, 288), where the authorities 138 Wis. 120 N. W. Will, adhered The conclusion was to thoroughly were canvassed. Co., 156 Grogan Sugar Wis. v. Wisconsin in the later cases of Co., Sugar Wisconsin 156 N. W. and Harland v. 146 my opinion, 146 492. soundness of N. W. In Wis. beyond question. court is the Wisconsin the decisions Ethridge, views, also, Mr. Justice con- agree with the opinion dissenting Cook, in Mr. Justice curred
587 Robertson, the case of Aetna 343, 506, Co. Ins. Miss. entering South. where it was said: “If of the judgment every and may assigned separate be for error and urged against legality distinct reason could be judgment separately judge can voted each for purpose procuring reversal, may easily that a follow judge every trial though single would be reversed even on specific proposition judges might relied on for five error agree judge that he right only agree one that he wrong. Suppose assigned there six instructions error, taken, for which, each of if well would reverse the judgment. reverse, say, On No. 1 I would vote to we will judges Judge other five vote to affirm. On No. Cook judges would vote to reverse other five to affirm. and the Judge Sykes On No. 3 would vote to reverse other and the five judges vote Judge to affirm. On 4No. Anderson would vote judges to reverse and the other five to affirm. On vote Judge No. 5 Holden vote reverse would other Judge five judges vote to affirm. On No. 6 Smith would vote judges reverse the other five vote to affirm. on And general vote as judgment reversed, to whether the should be unanimously all vote should reversal—we would have the being anomalous situation of a though chancellor reversed agreed judges right six single five out of on every proposition put up him. With due deference that is not but court, judge action is the of each placing act pale voting arbitrarily himself of the law and without enforcing views, basis of adding reversal minorities *35 majority ought court judgment when the of the thinks the to * * * specific proposition. be affirmed each If mi nority personal unite and sheer by judgment can force enter a previously by law sanctioned the what declared, cer tainty legal can there be in A proceedings. judge courts may challenge rightfully decision of the court which he urge in the room thinks unsound conference and his fellows it, join overruling him in unless it to but overruled it ought binding upon him ought and to control to vote. To refuse to vote in accordance previously with the law'as by court, announced the when the court will not overrule its decision, nothing more judge nor less than placing against himself in rebellion Judges the law. are selected purpose of enforcing declaring and exists, it law as right, with the whenever the court as a court decides that a wrong mischievous, decision is and to it overrule declare and to majority be the law which a judges of the decide law, they right but disregard have no to A the law. judge of this court is highest judicial one officers state, at the great of one departments head of the state, of the and above all men ought [*] # * I cannot conceive of how we can to conform to and properly obey the law. travel under the rule that minorities may unite control majorities, judges or that of this court can refuse to follow the law announced its decisions they when are unable to overrule them.” of the soundness Wisconsin fallacy cases taking
those opposite emphasized by view is the turn that this case has taken. Mr. Justice Matthews there thinks no error committed trial any respect. At thought might first it seem that he right has much to stand for a reversal as the writer has to an favor affirmance, being writer opinion that error was committed. But assumption analysis, seems to me this is erroneous. judgment, favor affirmance of the since this court has deter- properly the court instructed jury, mined and since every assignment of error has been held the majority of yield the Justices to be without merit. I feel to bound judgment majority of the court in so far as it estab- questions issue, legal reserving at myself lishes right only, exercised, disagreeing stating which I have my subject. authority views Beason and justify my on the course. legal principle
But what been has established dis- opinions senting Callaway, myself of Justices G-alen Justice Matthews vote for reversal induces Mr. *36 I am So far judgment granting trial? for new point on the aware, ever done any the most that has uniting con- minorities is to that a of here considered hold who majority. no case where Justice stitutes a I.know upon a fit insist thinks no error was committed seen to has constituting others, judgment three reversal of a because no where there majority, think committed but error was As this any single ground for reversal. upon concurrence dissenting stands, presents situation: case it this now obviously not opinions and Galen are Callaway of Justices standing Hence, if the cause ground reversal, for alone. the additional reason that done for the it must reversed be opinion view entertained writer of this dissents degree murder on an instruction second Justices, the other Matthews, though convinced that proper. Mr. Justice compelled insist record, feels no error there was opinion this because writer of upon simply a reversal instructing thinks error was committed dissenting murder, coupled opinion on degree second grounds Callaway In the last Galen. other Justices my analysis final reversal is based state vote for giving an instruction on regarding propriety mind agreeing murder, himself not with me on degree second only know of where dis- This is the case point. to affect the action of a Jus- have been senting opinions held them thus control agree with not does tice who majority court. I think of the decision result importance much to dis- rehearing too attaches opinion on the case this case stands feature of senting opinions. On this precedent. without majority opinion it a combina- cited
In cases view, that clinging separate to his minorities, each tion cited majority. In none of cases constitute was held Justice, the view who was of where one we find do deciding vote error, presented no easts record opinions. dissenting the force of simply because reversal cases cited in some of noted that Also, should majority npon single ground were in accord for reversal assigned but a different reason therefor. Such case. *37 absurdity majority
The conclusion of the leads to the remanding a case for a new trial where the has sus- pre- action of every question' tained the trial court on Upon justified, sented. a retrial the trial court will if not be proceed exactly required, to as If defendant before. be again again degree murder in convicted it must second repetition further proceedings. remanded a be same disposition It seems me it not sufficient in to is of this strik- strange procedure suggest ingly that if defendant has not where, here, majority a fair trial to one, had he is entitled a say that there no merit in of the several the Justices urged support of the claim that had points he has not trial, approved where the court has as a fair standard a already he has fair trial that which had. point announced on think conclusion this
I original May opinion promulgated correct should stand. I
MR. JUSTICE FORD: concur in the view of Mr. Justice Angstman. respect my position MATTHEWS: With
MR. JUSTICE have, dissenting opinion, made in the I at comment is on which admitting conceded that error was committed in times, all admitted, dying in the manner in it declaration which was first rights substantial the defendant’s were not felt but and, therefore, judgment affected should not thereby 12125, Rev. receded (Sec. Codes have not reversed. placed but I feel that in an position court is admitting majority a first of its position indefensible did that the defendant a fair are have members convinced agreed that a new trial should been are have trial and section then refus- under subdivision granted denying new trial because order those reverse the ing to why unite on the reason new trial should members cannot granted. have been original firmly opinion
The writer of the convinced murder instructing jury degree the court on second erred op- jury the gave and contended that instruction such portunity compromise on a when the defendant verdict acquittal believed him entitled to a verdict of unless joined minority degree, yet guilty of murder in the first holding contrary express to his conviction in order to form judgment condemning majority for the affirmance of the justi- twenty-five year to serve a He sentence. fies action reliance the rule announced in a civil which, property rights. most, action at affects question presented After a careful consideration of the rehearing that, I am firmly the motion for convinced whether or not such a rule is based on sound in an reason case, applicable applied not be in a criminal case should *38 liability punishment appear wherein defendant’s must doubt, beyond majority and a are a reasonable this court more than in whether or not his doubt constitutional right to a fair been trial has denied. majority
I that each of believe members have should wrong applied the rule “a reason for a decision does 892) (Ebaugh Burns, invalidate it” Mont. 210 Pac. decision of the other and thus become the actual ma- to the yielding the honest conviction of jority without one procedure. origi- the writer a mere rule As them so, I concur in the bring himself to do cannot opinion nal expressed by prevent Chief in order to Justice conclusion precedent. consider of what monstrous establishment