*1 proceedings tbe at tbe trial court. If tbe error at law oc- curred in tbe trial, only tbe manner tbat brought fact could be to our attention is exceptions bill of transcript or a of tbe minutes in tbe bearing on tbe motion new trial. None exists in tbis case, and therefore nothing this court has before it to review.
For foregoing tbe appeal reasons tbe is dismissed. MR. CASTLES, JUSTICES ADAIR, ANUSTMAN and con- cur.
STATE MONTANA, OF EV- Plaintiff and Respondent,
ERETTE MOORMAN, Defendant Appellant. No. 9798. September 23,
Submitted January 1957. Decided 1958. Pac. 236. Rehearing February Denied *2 Moses, Billings, appellant. F. Moses, & Charles Sandall orally. argued Moses F. Charles Emmons, Atty. Gen., Robert J. Asst. Anderson, H.
Forrest County Atty., for re- Joseph Buley, Billings, E. Atty. Gen., Atty., Em- Buley, County and Robert J. Joseph E. spondent. orally. Atty. Gen., argued Asst. mons, HARRISON: JUSTICE MR. CHIEF statutory rape by guilty of the verdict was found
Defendant trial and this new was made denied and for a jury. Motion aof appeal followed. specifications Five of error alleged by are all defendant, predicated upon the action of district court (1) sustaining objections proof, (2) offers objections overruling questions put to character witnesses on cross-examination, (3) continuance, denial of a motion for a (4) denial of trial, (5) the motion for a refusing new grant defendant’s for a motion mistrial.
A statement of the necessary facts in this for the purpose of opinion required and when particular evi- dence will be referred to.
The first contention of the court, by is that sustaining objections questions propounded of witnesses for state, limited the defendant’s case in chief. of the state’s witnesses peri- confined to od beginning approximately at 4:00 a.m. when the defendant met the complaining witness, concluding when the defend- departed premises ant from alleged where the offense oc- approximately curred 6 :30 argues a.m. Defendant that when *3 state period limited its to of time it elim- inated jury any from the investigation consideration of the by police officers, made any the result of medical examination thereafter, made any contrary as well as statements by made prosecuting witness. is presumed While the defendant to be innocent until t he proved, burden is contrary prove is and the on the state to beyond the defendant a guilt doubt, reasonable R.C.M. 94-7203, and that reason the proof section burden of upon state, yet is all times there is at distinction between proof and the burden of evidence. In the burden criminal proof shifts, never but cases the burden of the burden of the frequently. Underhill, Evidence, shift evidence Criminal ed.). 50, page (5th Such is the situation in section this case. prima presented state sufficient evidence to make out a during At time case and rested. cross-extmanation of facie chief, in the state’s case in the witnesses could impeachment, laid a foundation for but he failed to do so. He lay foundation in chief to such attempted then pro- under the calling the as adverse witnesses witnesses state’s calling 93-1901-9, 1947, relating to visions of R.C.M. section contending under agent, opposite employee or party, of evi- 1947, the rules provisions 94-7209, R.C.M. of section In criminal cases. applicable are to dence civil actions party opposite criminal State Montana is case the wit- 94-4804, adverse defendant, section applicable proceeding. to a criminal ness statute produce made no the evidence Defendant effort examination, con- police though counsel officers or the medical if upon argument such witnesses were available ceded them. had been desired to call stat e’s by defendant’s counsel of asked objected witnesses cross-examination which were on the the state all dealt with actions of the witness stand the criminal offense investigating officers after the time of questions asked improper were None of the cross-examination. entirely with impeachment, were for but dealt objected on that irrelevant immaterial matters and were ground. previous uncha ste to show endeavored
Defendant also
witness. As this court
prosecuting
with another
conduct
986, 991:
Mont.
Reid, 127
Pac.
stated
State v.
age
prosecutrix
under the
of consent
here,
“Where, as
others than
or unchaste conduct with
of immoral
evidence
general reputation for
by proving
either
is inadmissible
accused
specific acts of immoral conduct.
by proof of
unchastity or
322, 332,
124;
207 Pac.
State v.
Richardson, Mont.
State v.
Paddock,
558, 561,
377;
State v.
Pac.
Newman, 88 Mont.
569,
In this situation proof made the de- denying the offers of objections fendant. following set facts: arose on the contended
The second error asked introduced character witnesses and defendant them they whether knew reputation moral- defendant’s for ity. They answered the affirmative, and when asked whether good it was they or good. bad cross- stated The state examined these by asking character them or witnesses whether any “reports” had heard or “rumors” that the de- fendant attempted had woman, to assault a support does not child, minor and had shot at a pistol. his wife with The de- objected fendant cross-examination and here contends that the overruling objections court was in error in three on grounds: (1) questions That a fact embodied statement of proved by independent evidence; (2) could not be questions particular were not confined char- to the trait of question; (3) acter in there was no these rumors any of these statements or these within facts were community in which defendant lived. In support proposition of the first Mon cites two cases, Jones, tana v. State 8 Mont. Pac. State Popa, 56 v. Mont. 1114, seemingly Pac. propo for the particular sition that acts of used misconduct never be on impeach cross-examination to the character witnesses. Jones, especially language
Defendant relies on Mont., supra, page page 515 of 48 beginning at superficial study appear of that case would Pac. While a analysis support contention, thorough a we feel defendant’s clearly distinguishable pres- not, is from the for the case following question propounded one. In that case ent you epi- hear “Did about the to the character witness: ever up he beat up at the when went there to a woman?” sode Castle holding question improper said: This court ‘‘ the de- question put as counsel assumed fact that as. Though go the Castle for the stated. fendant did interrogatory, in the form of as statement was an it was it had been in the form of declara- objectionable as if stated against sentence, therefore was obnoxious to rule tory * * * proper facts. never proof particular to assume frame existence so counsel facts *5 independent evidence.” which are not admissible if offered as Emphasis supplied. case, made much of will be noted that in that the court cursory ex-
the manner in A question which the was framed. amination in terms of shows that the statement was framed fact, county attorney ultimate had assumed exist- thus independ- ence of facts which were not admissible if offered ent evidence. that had the
However the Jones case also stands for the rule question proper language been in framed then there impropriety asking following language been no The it. Mont, page supports in page Pac. at this thesis: that, “The rule is well in a settled when defendant criminal case testify possesses calls witnesses such a he .general reputation community which he resides as tends to rebut the guilty notion he is of the crime with charged, which he is may questioned these witnesses be on cross- examination as their knowledge disparaging of rumors or reports common affecting reputation. the favorable As presumption sustain the of innocence which tends to defendant, by introducing it indulges law favor repu- fact, viz., whether his tenders cm issue of say it is, prosecution and the has tation is such as the witnesses right to cross-examine the witnesses to ascertain the suffi- ciency grotmds upon their hase statements. of or rumors If therefore it can be shown that there are have been reports affecting reputation, this extent the or statements foundation in of the witnesses are shown to be without fact and * * * purpose entitled to credit. therefore not of inquiry is to what the witness had heard to the dis- ascertain reputation, paragement knowledge particu- and not his of of Emphasis supplied. of misconduct.” lar acts ques- stressed form of the It will be noted that court tion, is, “reports” it should framed in terms of or clearly reason this is set out in the “rumors.” The under- supra. Jones, portion lined cross- credibility of reports examination on or test the rumors facts. witness, knowledge the character not establish his de- says reputation The character witness he knows knowledge fendant. test state cross-examine To reports him on or of cer- whether he has heard certain rumors Naturally tain or acts conduct of the defendant.
must the nature of degree specificity be based on some as to too or else it becomes conduct act and when occurred *6 Parke, vague intelligently. to answer The rule was stated ques- “The B., Reg. Parker, (Eng.) in & : Wood Jur. robbery tion is not prisoner guilty whether the was of that cross-examined], [concerning which his character witness was in it. suspected implicated but having whether he was of been A small up man’s character is made of a number of circum- stances, being suspected of misconduct is one.” which his clearly recognized
The distinction set out above was more Mont, page in Popa, supra, page State v. 185 Pac. at following language than in Jones, by State v. the support general “whenever a his defendant calls a witness to subjects legitimate him to all cross-examination reputation, he may consequences result therefrom. whatever and himself to concerning rumors cross-examining the witness adversely upon the accused is to reflect specific acts which general repu- in fact knows whether the witness determine truthfully regard in so, testifying tation, and, if whether he Popa witness in question asked character it.” The your anybody say, in Black, you ever hear “Mr. did case was: anybody off George Popa to drive community, tried shotgun?” by using claim above-question dif- that the form of evident becomes ease, yet both refer considerably from that in Jones
fers is that in the distinction acts of misconduct. specific in which assumed framed a manner question was Jones case veracity specific Popa act. In the truthfulness or “report.” in of “rumor” or framed terms question case instant case falls within in the The state’s cross-examination scope Popa, laid and defend- of the rule down State v. objection properly ant’s first overruled. objection equally without
The second defendant was in the instant case merit. It should noted that question character witnesses asked the defendant of his as it question properly not trait particular confined to the been, Popa, supra, should but rather asked have State v. morality. witnesses for Mor reputation whether knew his ality generic all moral containing is a term total of the sum traits, Morality including honesty, fidelity, peacefulness, etc. synonymous has been rken referred to as Wa with character. tin v. Kleinwachter, Okl. 27 Pac. introduced
While it the state could is well-settled testify on traits of character witnesses of their own to Popa, supra, the case, other issue in State v. than that in himself fails apply same rule does not where the defendant trait in the of inquiry particular to the involved restrict prosecution on trial. The fense which he is particular trait is not in its cross-examination to restricted In other may inquire but the defendant’s character. into entire words, the state cross-examine defendant’s witness scope of the those matters which are *7 State, 46 Fla. witness in his chief examination. Cook v. 665; Annotation, 71 A.L.R. 1520.
So. objection defendant stated he had lived As the third years. Murray and Mr. present for fifteen Mr. address they defendant, stated knew Ostwald, witnesses for character baby. There is that the he was a no doubt the defendant since community in the defendant’s specific instances were localized they rumors stating had heard as seen from the witnesses say He not concerning the assault on the woman. did reports general than Laurel. While the place other he had lived states, is, cross-examination of rule be as acts within defendant’s witnesses must be based on character authority regard see in Anno- community. In citation this 1504, 1517, 1535. was not contended tation, 71 A.L.E. upon the character defendant or the state that the acts which Laurel, anywhere but witnesses were cross-examined occurred life, community where defendant lived most of had him, community in which the witnesses knew character reports, community in rumors and had heard the ap- propounded it is foregoing to them. From the discussion parent alleged error is- to this court that defendant’s second without merit. t’s third error contended is the denial of defendan regard is
motion'for a The situation in this continuance. subpoenaed by that Lois Schmidt was the defendant a wit as ap on subpoena, served, ness his behalf. The as was for the pearance 19, 1956, witness on December and a continu January 15, During ance in the date of trial was had to witness, of the trial course defendant’s counsel called apparently knowing present she not in the courtroom. showing missing knowledge There was no that the had witness change presence the date of trial. Outside the jury, orally the defendant’s counsel then moved the court an continuing order until trial the witness could be ob tained her given. requested expected state what he
The court counsel to witness, then that the if prove the witness. Counsel stated alleged present, would have testified on date of building, residing she in the was awake offense premises, particular outcry, at that time heard no and the complaining witness had conversation with witness complaining witness denied intercourse would state another; the defendant but admitted with that the wit- with testify present further that she was at an ness would interview by the complaining certain statements were made wit- where appears her There ness and mother. the record consid- between court and counsel to whether the erable discussion sought given by to be witness would be cumu- evidence Defendant’s counsel admitted as to the interview there lative. testify present regard then who could with were other witnesses *8 outcry the court As absence of to the statements made. to the testimony by complaining that had been observed there no any outcry. witness that there the fol- until court took the matter under advisement mother
lowing day that time defendant called the and at jury complaining in the witness a witness absence of her been and elicited from the fact that the witness had sub- poenaed 19; about for that had left the state December she knowledge going two weeks her mother before with that testify in developed whenever it reset. It would be also from this present that there witnesses at the witness were other interview counsel this Following to which had referred. testi- mony the court denied a motion for a for the continuance part complaining reason there was no evidence on the outcry; any testimony witness of that regard with to the allegedly statements made complaining witness to the absent impeachment witness would be for the no foundation been laid had in the examination of the com- plaining any witness for the evidence; such that admission evidence be cumulative and the same could given by be other witnesses who were shown to be available. The court any further commented on showing the absence of that had witness been advised the continuance of the trial, or of the fact the trial time, be had at that or that effort was testify made to obtain the witness to time. carefully We have examined the record and we find no error regard pointed In ruling in this of the court. this should be postponement pro- of a trial under the out that motion 93-4910, only can be made visions of section expected showing materiality of the evidence affidavit diligence has procure that due been used it. be obtained and provides party that if the adverse admits The statute further trial given, post- would be shall such evidence comply applicable with poned. The defendant did not statute. *9 specification
The fourth of that the verdict error contends by statute, jury applicable the sec of was reached lot. 94-7603, tion “When part reads in as foilows: against defendant, may, verdict has been the court rendered the following application, in the cases grant a new trial * * * only:
“4. by by any When the lot, verdict has been decided expression means than a of all opinion part other fair of on the jurors, the provided which be shown as the code of civil ’’ procedure. Upon the the new trial the defendant submitted motion for a during that the de- jurors of to the effect of one affidavit the agree upon to the jury of the were unable liberations agreed it that punishment given defendant, be and was to the figure punish- juror representing each should set down should and the ment the defendant receive which each believed figures by such re- total to be divided twelve and of such punish- represent average as opinion' to would an sult done, given ment defendant. This was to average figure punishment was nine determined that “ * * * years. by that goes on: The affidavit then and. accepted duly juror ballot the amount so determined taken each result verdict, jurors, her as and that such as did other by their in this as shown adopted jury as verdict term above, punishment fixed for the and the Defendant’s Penitentiary.” years in (9) nine jurors that counter-affidavits, The state filed of one of the during “That the deliberations of containing this statement: first after jury, guilt of the defendant was determined ballot; jury that discussion and on the second thereafter by jury; that in en- that should be set determined sentence sentence, amount and after con- deavoring to arrive at the jurors ex- during which the individual siderable discussion punishment as be set pressed many opinions to the to varied juror proposed that each their by jury, it was submit then these amounts be proposed punishment amount of totaled and (12) divided twelve the aver- ascertain what age opinions be; average various referred merely above was purposes to be used for information in fur- ther discussion had jury endeavoring to set said penalty; that the average opinion said taken was not and ar- rived at under agreement an jury bind the members of the accept same their own individual verdict and in fact average said was not finally the amount set in the verdict ren- cause; dered in said subsequent thereto, and after consid- erable discussion and balloting, punishment was fixed at the term (9) years of nine in the State Prison Montana, said term punishment exact was not arrived at averaging opinions as set forth above and in fact was and constituted a *10 fair expression opinion of jurors.” of all the by
Another counter-affidavit filed the state that of the foreman jury, of the which contains statement: “That during the jury, deliberations of guilt the the of the defend- ant was first determined after discussion and on the second ballot; that jury thereafter the determined that sentence should by jury; be set that endeavoring at the to arrive amount of sentence, and after during considerable discussion jurors expressed individual many opinions varied as to the punishment by to be set jury, it proposed was then that juror each proposed their punishment submit amount of and that these amounts be by (12) totaled and divided twelve ascertain average what the of the various opinions be; would average that the merely referred to above was to be used for purposes information in further by discussion had jury endeavoring to set the penalty; said that average the said opin- ion was not taken and agreement arrived at under an to bind the members jury accept as same their indi- own vidual verdict and in fact average said was not the amount finally set in the verdict case; rendered in said subsequent that thereto, and after considerable balloting, discussion and punishment fixed term (9) years of nine in Montana, State Prison of which said term punish- exact of' as forth by averaging opinions set ment was not arrived at opin- expression and in constituted a fair of above fact and jurors.” ion all reading filed interpretation a fair the affidavit
From by appear figure had the defendant that after balloting, in been as was further determined contended there duly each by “That ballot taken affidavit states: juror sup- accepted And this is the amount so determined.” ported by jurors. the two counter from the other affidavits actions
The defendant contends that since this court several 93-5603(2), interpreting provisions section jurors agree stated: is only has “It when the advance quotient amount their thus obtained shall constitute the verdict, effect, pro- agreement is carried into that the and such ceeding a resort constitutes to the determination chance by Ry. is Northern Co. condemned statute above.” Great Benjamin, 167, 172, 149 Pac. and cases Mont. cited therein. the defendant further contends that Therefore by there the affidavit discloses was no further consideration jury by quotient determined; so became bound by reaching number further consideration” such “without the verdict was decided lot. very wording sustained from the cannot be
This contention
defendant,
and such
denied
filed
of the affidavit
in the counter-affidavits.
the statements contained
that the statutes differ
between
It must be remembered
1947, and
93-5603(2), R.C.M.
by section
civil action covered
*11
referred to.
statute hereinbefore
the criminal
is a
quotient
verdict
l ot
contends
a
The defendant
in
statute. While this
the criminal
verdietas referred to
has
by this court it
been before
point has
been decided
never
Kentucky
Arkansas
states. Both
and
have
of other
the courts
(4),
to
section 94-7603
identical
our
criminal statutes
113,
457, 464,
115,
130 Ark.
198 S.W.
Speer
State,
1947. In
v.
jury
urged
it is
that the verdict of the
“Lastly,
said:
the court
quotient
is not
result
by
The
verdict
the
lot.
was determined
adding
by
result, ascertained
lottery.
of a
a certain
is
12.
dividing the sum total
separate
together
amounts
lottery if 12
It would
Only
result can be reached.
one
separate slips
paper
were
placed
different amounts
on
the
out,
become
by agreement
one
should
slip then drawn
which
Davidson,
Bottling Co. v.
verdict.” Reaffirmed in Coca-Cola
834,
action,
828,
833,
where
825,
Ark.
civil
S.W.
’’
‘‘
by lot.
the
That
verdict was not one
quotient
court stated:
Commonwealth,
Kentucky,
To
effect in
see
the same
Clark v.
In this court 34 Mont. Pac. by jurors should impeachment stated of their own verdict permits, than the statute be tolerated further matter has been de- would limit the to cases where verdict by lot, by any than a on expression cided fair means other jurors. a.11 part of that from the counter-affidav- is the fact Attention called guilt its of the defendant filed herein is clear that secondly jury, jury next determined first established point upon sentence and not it would fix the whether or jury fix the agreement would so sentence. reached that only regard with defendant come contentions nothing with sentence, whatever to do and had amount of jury unani- which the were guilt of defendant nothing in the affi- mously agreement. There contained is challenges the juror filed defendant which davit of the accuracy of these statements. said we no error of what we heretofore find
In view for a trial. motion new denial in error in specification fifth' contends the court was a mistrial made at the con- denying defendant’s motion for gen- motion is a the defendant’s case chief. This clusion of by during made summary eral contentions respect sustaining the conduct court trial with objections proof nothing and offers of con- *12 specification
tained is not covered we what heretofore said. There denying was no error in the motion. specifications
Defendant’s carefully of error have been con- prejudicial sidered and we find no error committed the dis- trict Accordingly court. the order denying a new trial and the judgment of conviction are affirmed.
MR. ANGSTMAN, JUSTICES CASTLES and concur. MR. JUSTICE ADAIR:
I I dissent. right also reserve dissenting file a written opinion herein.
STATE OF MONTANA ex PENHALE, rel. MRS. A. JAMES PATROL, STATE HIGHWAY
Relator and Respondent, Highwa Glenn L. Schultz, Supervisor, Montana y Appellants. Patrol, et al., Defendants No. 9675. January February Submitted 1958. Decided 1958. 321 Pac.