201 P. 272 | Mont. | 1921
delivered the opinion of the court.
On the night of March 22, 1918, Matie Rig'gs, wife of the defendant, was found dead on the kitchen floor of her home. Resulting therefrom, the defendant was charged, by information filed in Yellowstone county, with the crime of murder in the first degree. This is the second time this case has been considered by this court on appeal. On the first appeal, which was taken from a judgment imposing the death penalty, and from an order denying motion for a new trial, the cause was by controlling opinion remanded for new trial, because of insufficiency of the evidence. (State v. Riggs, 56 Mont. 393, 185 Pac. 165.) From a perusal of the facts recited in the former decision, it would appear that the evidence adduced on the second trial was not materially different from the first. The second trial resulted in a verdict of guilty of murder in the first degree, wherein defendant’s punishment was fixed at life imprisonment. The case is now before us as a result of the second trial and the verdict and judgment rendered and entered therein, the appeal being from the judgment and order denying defendant’s motion for a new trial.
Ten errors are specified as reason for reversal, but in our view only one is necessary for consideration in order tc make complete and satisfactory disposition of the appeal, namely: Is the evidence sufficient to sustain the verdict and judgment?
It appears that the defendant and his wife intermarried at
The wife was insured for $1,000, and the house and contents were insured for like amount. The defendant had been negotiating with a neighbor, Looney Stockton, to buy the latter’s farm adjoining that owned by the defendant, for the sum of $4,000. On the day before Mrs. Riggs’ death, the defendant told Stockton he would buy the latter’s farm, provided he (the defendant) could get the money, and on that day the defendant told Stockton he would endeavor to secure a loan on both places, and on the same day the defendant had spoken to S. E. Dove, a banker at Huntley, about getting the money. He also proposed trying to obtain a federal loan, and re. quested Mr. Stockton to go down to Osborn, to see Mr. Bowman about securing the amount required on the security of both farms.
The defendant and his wife had quarreled from time to time, principally over the disciplining of Opal, the oldest child, the defendant’s stepdaughter.
At the time of her death, the deceased was clothed in a suit of fleece-lined cotton underwear, and over that an outing flannel nightgown, fleeced on both sides, and both garments were highly inflammable. She was found lying dead and badly burned about the body, on the bare floor of the kitchen between the cooking-stove and the dining-table. There was evidence of three quarrels between the defendant and his wife, widely separated in point of time, but only Mrs. Smith and Opal, both witnesses being hostile to the defendant, remember about any quarrel of any seriousness, and there is no evidence of any threat of any character ever being made by the defend
“Papa woke me during the night. He hollered at me and told me he believed there was smoke in the house. I don’t know whether I made any reply. I was sleepy and I might have said something. I might have said I didn’t believe I smelled smoke, or something like that. My father didn’t immediately get up, but he didn’t stay in bed very long after
And on cross-examination he testified: “The baby Calvin didn’t always sleep downstairs with my mother. “When he didn’t sleep there, he slept up with papa. This night of the 22d of March wasn’t the first time that my father had taken Calvin up to bed with him. He did that frequently. There wasn’t anything unusual in the fact that my father took his shoes off and left them downstairs that night. That is where he always pulled them off.”
At the time when Chester was returning to the house with Mr. Moyer, when he saw his father going down the road, it appears that the defendant was on his way to Stockton’s farm, about one-half mile distant; that the defendant was in his stocking feet and actually went to Mr. Stockton’s, knocked on the door and hollered, “My house is on fire,” and left immediately without giving his name.
Opal’s testimony respecting defendant’s first waking up and suggesting there was a fire and then going down the stairs to the door leading into the living-room and returning back to the bedroom upstairs, and getting the children all out of the house through the east second-story window, is substantially the same as Chester’s. Further she testified:
“After he had gotten down on the ground, he loafed around there a while. He didn’t do anything until he sent Chester over to Mr. Moyer’s and then he busted in the window. Just before he sent Chester over to Moyer’s he went to the cellar, to see if the children were all right and helped make a bed down for them. Chester was around there some place. I would judge it was about twenty minutes after my father got down from upstairs before he started Chester over to Moyer’s, and during that time, he had just been standing around and
And on cross-examination she testified: “I didn’t do much of anything. I just talked to the children and looked in at the fire. I saw it was blazing up, but I didn’t'do anything. I never suggested to my father that he do anything, and I didn’t say anything to the children about it. I wasn’t excited. Nobody was much excited. Everybody was cool and calm — , not as much excited as they should have been in ease of fire. I should have been more excited, as my mother was involved in the fire, but the fact remains I wasn’t excited, and none of the rest of the family were excited. There wasn’t very much attention paid to it at all. No, there wasn’t anything else happening except that our home was burning up and my mother was burning to death. Yes, Mr. Mojrer was sent for and after that, he broke in the window. All he did was to bust in the window. I never called to my mother at all.” Mr. Moyer, Mr. Stockton, and other witnesses for the state who were there that night, testified that they smelt the odor of coal-oil, and some of the jurors who served on the first trial of the ease, testified that they smelt the odor of coal-oil on the pieces of the nightgown and underwear then introduced in evidence in the trial of the ease. Dr. Kettlecamp, for the defense, who was called and arrived on the scene shortly after the fire, testified, however: “When I got there I went into
Several witnesses, both doctors and chemists, testified in defense that a chemical analysis of the pieces of the nightgown and underwear- would demonstrate conclusively the presence of kerosene, but no evidence of any such analysis having been made was introduced either by the prosecution or the defense, and Dr. Armstrong for the defense testified: “If I thought that there was an odor of kerosene on the body and wanted to be positive as to whether or not kerosene had been used, I - would turn the clothing over to a chemist and have an analysis made. That would determine positively. I wouldn’t put much reliance on my sense of smell in a case of life or death. I would say that if coal-oil had been used on this body, it could have been readily detected by the odor of the body when the autopsy was performed. Where petroleum is used upon a body and burned, the body has a characteristic odor for days, and some of the residue or burned tissues of the body could be taken to a chemist and it could be positively ascertained whether or not. kerosene had been used. ’ ’ And Doctor Graham, who attended the autopsy, states positively that there was no smell of kerosene about the body. The autopsy disclosed among other things, the following: The height of the deceased was four feet eight inches. Her body was badly burned, except the lower extremities from the knees down, and a strip of skin from the seventh cervical to the third lumbar vertebra, varying from four to six inches in width. The hair was coiled at the back of the head; the hairpins were in the coil of hair. The eyelids were closed; the tongue protruded between the clenched teeth; and there was a suggestion of smoke in the lungs. Both cavities of the heart
“A. No, sir.
“Q. If I would assume tbat coal-oil bad been poured upon tbe body, then tell tbe jury whether you can account for it.
“A. I would say tbat such a burn would be possible. If coal-oil were poured upon a body lying upon its back, it would naturally run down in tbat region. I have bad some experience in treating burns and have read some concerning treatment. After I made tbe autopsy, I went back tbe next day and dissected tbe neck. I did tbat because I was trying to find some signs of strangulation, to account for certain conditions found here in tbe lungs. I presume suffocation caused tbe tongue to protrude. It is caused by tbe person trying to get air. There would be several reasons why she couldn’t get air. It might be a simple choking or something inside the throat; it might be due to some external means cutting off the supply of air, such as strangulation or bolding tbe band over tbe mouth, or something like tbat, or in case of fire, tbe smoke would cut off tbe supply of oxygen. There was no evidence of any physical strangulation. I examined tbe blood vessels in tbe abdomen and they were apparently normal. Tbe bright red fluid blood was quite general through tbe body. Tbe heart was contracted for tbe same reason tbat your [her] other muscles were contracted, due to beat, application of beat. Tbe condition of tbe blood, as to its color, was probably due to carbon monoxide in tbe blood. It would have to be inhaled by tbe person and go through tbe lungs. Carbon monoxide is a chemical combination, tbe result of imperfect combustion. Well, for instance, in a furnace, where your coal has been smouldering, due to coal dust, there is no flame there to change your carbon monoxide to carbon dioxide and it
“Q. In order, Doctor, to have burned the head in the condition that you found it at the time, the hairs all burned off, and taking into consideration the brain in the condition in which you found it, would that ordinarily be expected from a body simply lying on the floor, from fire, the boards catching fire?
“A. No, sir. If coal-oil were used, you would have a different condition there. I couldn’t find any fracture of the skull in the temporal region, but it is not necessary to have a fracture for the purpose of causing an injury which results in a blood clot. In the temporal region, everything was burned down to the skull.”
Further, he testified: “The flexing of the hands and arms was due to fire, heat. I don’t recall finding any soot in the lungs. The appearance of soot in the lungs is the general post mortem finding where there is suffocation from flame and smoke. I think the contracted condition of the heart was caused in the same way as the contraction of the other muscles. I believe the heat was intense enough to contract the heart. Ordinarily, where death is due from suffocation, or from any form of asphyxia, the cavities of the heart are congested and full of blood, especially on the right side, and this blood is-dark blood. The only reason I have for saying now why the heart was in the condition in which it was found is the heat; also -because I believe that carbon monoxide poisoning was experienced. The blood is often bright red from burns of any character. I don’t know whether you find it that way when
And he admitted that at the former trial he said: “That death resulted here likely from some violence, such as a blow on the side of the head in.the region of the left temporal bone, and ■that following this, either from direct strangulation or strangulation from smoke, the death resulted.” He also admitted that at the coroner’s inquest he testified: “That death was caused by the inhalation of some very heavy irritant volatile gas.” Further he admitted that he stated to counsel for the defendant and to several physicians, that there was no sign of physical violence upon the body of the deceased, and he does not deny that he told Doctors Armstrong, Barrett and Graham, just a few days before the first trial and some months after the autopsy, that he had no idea what caused the ■Roman’s death except burning. All of the doctors mentioned gave testimony for the defense to the effect that Dr. Allard had made substantially such statement to them.
The evidence on the part of the defendant as to the cause of death was given by Doctors Armstrong, Barrett, Wernham and Graham, the last named of whom helped perform the autopsy. All four of these witnesses expressed opinion that the cause of death was due to burning, and it is noteworthy, that although the names of Doctors Graham and Barrett were indorsed on the information as witnesses for the state, they were not called by the prosecution. They all testified that the burning could reasonably have been accidental. On this subject Doctor Armstrong testified:
“Q. Assuming, Doctor, that the following facts exist and are true, and they be so found by the jury in this case, to-wit, that the body of a well-developed female is found on the •kitchen floor of her home, with the head, face, neck, thorax and abdomen badly charred from burning, that the said adult female, at the time of such burning, and of her death, was
“A. Yes, I think so. Death was sudden and came from a shock caused by the bums. I would consider that she breathed just a few seconds. I can’t discover any other reasonable cause of death except one due to shock. The contracted heart indicates that death was due to shock, and the lungs being only slightly congested would indicate that. If the deceased had lived for an appreciable length of time, there would have been a strong odor of smoke in the lungs and the air tract would have been intensely congested and full of mucus and it would have been sooty.”
Dr. Barrett, answering the same question, testified: “Yes, sir. Considering the findings as detailed in the hypothetical question, I would say the person lived a very short time. What I mean by ‘short time’ is that death, for all practical purposes, was almost instantaneous.”
Dr. Wernham, answering the question, testified: “Yes, sir.”
And Dr. Graham, testifying of his own knowledge, said: “Knowing how she was clothed, I would say that if she had caught fire accidentally, death could have occurred from the catching afire alone, and without any other cause.”
The state’s theory is that the deceased was unconscious at the time she was burned; that that unconsciousness was brought about by a criminal act and that act was the act of the defendant. It was thought the deceased was chloroformed and then placed upon the kitchen floor, and that idea apparently prevailed with the state until the report made by the chemist at Bozeman. But how did the deceased become unconscious? She must have been unconscious or the state had no case, for the body was still intact when found and an
The state rested its case on the assumption that a blow was administered to the deceased in the region of the middle fossa, on the left side. There was no fracture of the skull there; there was no rupture of the meningeal artery and it is not disputed — the state having put in no rebuttal — that there could not, in all probability, be a blood clot in that position produced by a blow in that vicinity unless the skull had been fractured, and there positively could not be a clot unless the artery, or some of its branches, had been ruptured.
The autopsy shows “there is a clot of burned blood in the left temporal fossa, where the outer flesh has been burned away to the temporal bone.” This we now know is untrue, the witness Allard admitting, that it is not a statement of the facts. He and Dr. Graham and a witness named Schlosser all say that there was a little frothy, bubbly clot, about as big as a dime or a nickel, on the inside of the skull, and Dr. Allard said: “If she fell, and fell on the lack of her head, a clot of blood might have been produced anywhere in the front of the head. I don’t know whether the blow was struck in the immediate vicinity of the middle fossa or not. If the blood vessels in that vicinity cure ruptured, the skull is usually fractured, and I could not find any fracture here.”
Further, he stated: “In order to have a blood clot there, there would have to be a rupture of a blood vessel in that region: There could not be a clot there without a rupture of the artery or some of the veins in that vicinity. I did not find any rupture of the artery. * * * It was not a normal clot, such as you would expect.” And again, he stated: “The clot probably produced unconsciousness.”
There is no testimony even touching a criminal agency in this case, other than that of Dr. Allard. Without a state of unconsciousness produced by a criminal agency, there is no
* In view of this, what reliance can be placed .on Dr. Allard’s testimony, that there was violence applied in the region of the middle fossa? Not only would reasonable men be in doubt as to a state of unconsciousness, but if they had to decide upon such evidence, they would have to come to the conclusion that there was not a state of unconsciousness. This, however, is simply from the state’s evidence alone. Doctors Armstrong, Barrett, Wernham and Graham all testify that if the deceased had been unconscious, she would have moved violently upon the floor until death came, and they give their reasons for such belief, and those reasons are sound and irrefutable, and they gave illustrations from their own practice where one who is unconscious responds immediately to pain, and all testify that it is only a state where an anesthetic is given that the person would not respond to pain. Moreover, the state’s evidence shows conclusively that the deceased did not move from where she lay on the floor, after getting there. She was not unconscious, but dead, immediately after her body came in contact with the floor.
The fact that the defendant did not make more of an effort to save his wife creates only a suspicion, and that is overcome by his sending Chester to Moyer’s for aid; by his breaking into the window of the house. and attempting to make an entry and calling to his wife; by his going to Stockton’s for assistance; by reason of the fact that the deceased was on the bare floor of the kitehen and not in bed; by his telegraphing to her mother and sending for a doctor and the coroner; and the further fact that he did nothing to accelerate the fire
Men do not ordinarily call witnesses to the result of their criminal acts. “His conduct in leaving his wife in an adjoining building and running away to alarm the neighborhood may not unfairly be attributed to his lack of moral fibre or physical courage in the abject fear which overcame him when he discovered that the fire could not be extinguished.” (State v. Bass, 251 Mo. 107, 157 S. W. 782.)
If a conviction may be had upon inferences or conjectures, then why is Opal not equally as guilty as her stepfather? Her conduct the night of the fire is just as- unexplainable as his, and her opportunity for commission of the crime just as favorable. Admittedly she expressed no anxiety or concern for her mother, while though belated, he did in fact try to enter the house and called to his wife. The strange thing is that none of the children, young or old, seemed to have any thought or care for their mother at the time of the conflagration, although it appears that she was a good mother to them. The entire case is shrouded in mystery and the conduct of the father and all of the children seems most unnatural.'
"We are committed to the doctrine that “a defendant may
Onr statute, section 8298 of the Revised Codes, provides:
The general rule in homicide is that the criminal agency—
The court in Instruction -No. 29 correctly told the jury they “should be convinced by the evidence beyond a reasonable doubt of the criminal agency involved in the commission of
Where an act may be attributed to a criminal or an inno
The evidence is entirely circumstantial, and in our opinion is not adequate to support the verdict, the testimony not being sufficiently strong and convincing to exclude every rational hypothesis other than the defendant’s guilt.
Section 7853 of the Bevised Codes provides as follows: “Indirect evidence is that which tends to establish the fact in dispute by proving another, and which though true, does not of itself conclusively establish the fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact from which the fact in dispute is inferred.”
Direct evidence differs from circumstantial, in this, that in the former witnesses testify directly of their own knowledge of the main fact or facts to be proven; while the latter is the proof
Circumstantial evidence is divided into two classes: (1) Certain, or that from which the conclusion necessarily follows: and (2) Uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by process of reasoning. (Greenleaf on Evidence, 14th ed., sec. 13a; Gannon v. People, 127 Ill. 507, 11 Am. St Rep. 147, 21 N. E. 525.)
The relative advantages of circumstantial and direct testimony are pointed out by Chief Justice Shaw in the leading ease of Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 52 Am. Dec. 711, 'in the following words: “Each of these modes of proof has its advantages and disadvantages; it is not easy to compare their relative value. The advantage of positive evidence is, that it is the direct testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done; and the only question is, whether he is entitled to belief. The disadvantage is, that the witness may be false and corrupt, and that the case may not afford the means of detecting his falsehood. ’ ’
The court then discussed circumstantial evidence, saying: “The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions, a
"While all evidence is more or less circumstantial, there is a difference between facts of a particular nature, giving rise to presumptions, and evidence which is direct consisting in the positive testimony of witnesses, to events and occurrences, and the difference is material according to the degree of exactness, the relevancy, weight of circumstances, and the credibility of the witnesses.
But where a conviction is sought solely upon circumstantial
The nature of circumstantial evidence being such that a certain conclusion or state of facts is sought to be inferred from the establishment of other facts, it is necessary, not only that the guilt of the accused be consistent with those facts, but they must exclude every reasonable hypothesis other than his guilt; or as it is sometimes expressed, they must be susceptible of explanation upon no reasonable hypothesis consistent with the innocence of the accused. The reason for this is, that as long as the circumstances are capable of two or more explanations, one consistent, and the other inconsistent with his innocence, the evidence does not fill the test of moral certainty, and is therefore insufficient to convict.
The same degree of certainty is required to warrant a
In the decision on the former appeal of this case, Mr. Justice Holloway well said: “The evidence is not only intrinsically
“The evidence does not exclude the theory of accidental burning and death from shock. Granting, for the sake of argument, that the facts and circumstances raise conjectures, suspicions and probabilities inconsistent with the theory of defendant’s innocence — and I insist that they do not do more— * * # .
“The verdict in this case can rest only upon mere suspicion bom and nurtured in the abhorrence which the jury must have felt for a man so brutal in his conduct toward his wife and so cowardly that he would not incur greater risk to save her from their burning house.”
The evidence is wholly insufficient, not only to fix the crime upon the defendant, but to. show beyond a reasonable
We are not unmindful that we are limited on our review to an examination of the record to determine whether there is any substantial evidence to justify the verdict. (State v. Popa, 56 Mont. 587, 185 Pac. 1114.) But where the evidence
For the reasons stated the cause is reversed and remanded, and it is ordered that the case be dismissed and the defendant discharged.
Reversed.
Mr. Chief Justice Brantly and Associate Justice Reynolds : The evidence is unsatisfactory, so much so that as members of the jury to which it was submitted, we should have been unwilling to agree to a verdict of guilty. Even so, the legitimate function of this court is that of review to ascertain whether the evidence as it appears in the dead record is sufficient to furnish a substantial basis for an inference of guilt and not to determine its weight. This is exclusively the function of the jury.
After an examination of the evidence, due allowance being made for the fact that the jury observed the witnesses and
It will serve no useful purpose to set out and analyze the evidence. We are content, therefore, to go no further than to record our dissent.