State v. Roberts

Nov 23, 1911

No. 3,044

Reporters:: , ,
Before:: Smith

MR. JUSTICE SMITH

delivered the opinion of the court.

Dеfendant was convicted in Silver Bow county of the crime of murder in the second degree, his punishment was fixed by the jury, and judgment was entered on thе verdict. He appeals from the judgment and also from an order denying his motion for a new trial.

Four principal contentions are urged upon the court:

1. That the evidence is insufficient to justify the verdict. We have carefully read the testimony and other evidence in the record. It was all circumstantial, but we are convinced was amply sufficient to warrant the jury in determining that the defendant was guilty of murder beyond a reasonable doubt. (State v. Byrd, 41 Mont. 585, 111 Pac. 407.) The evidence justifies the *245conclusion, we think, that Roberts shot and killеd one Yerholz while he, Roberts, was on what is commonly called a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“drunk” in Butte on the night of November ‘5-6, 1910. It was not indispensable to find a motive for thе crime. (State v. Lucey, 24 [1] Mont. 295, 61 Pac. 994; State v. Vanella, 40 Mont. 326, 106 Pac. 364; State v. Suitor, 43 Mont. 31, 114 Pac. 112.) Malice might be inferred from the fact that no considerable provocation appeared, or that the circumstаnces attending the killing showed an abandoned and malignant heart. (See section 8291, Rev. Codes.)

2. At the time of the shooting, Roberts was acсompanied by one Scott. The latter was placed on the witness-stand by the [2] state, and the record of his testimony appears tо disclose that he was an unwilling and most unsatisfactory witness. The information shows that, when it was prepared in the office of the county attоrney, the names of both Roberts and Scott were included therein; but, before it was filed, the name of Scott had been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stricken out. The reсord also discloses that, after the shooting, Scott was held in $500 bail as a witness, which was furnished. An information was then filed against him charging him with being “an accessory after the fact of murder.” He was again arrested and confined under this information, but was released in habeas corpus proceedings. Before he was called to testify, this information was dismissed. Upon demand of his personal counsel that he be assured of immunity from prosecutiоn in case he testified, the county attorney informed him that, if he told the truth ‘ ‘ and came through with the same story he told before,” no further information would be filed against him. As near as we can gather from the record, the defendant assumed the position that the proceedings agаinst Scott were not instituted in good faith or founded in a bona fide belief in his guilt, but rather to get him in a frame of mind to testify against Roberts, and that, when the latter object was attained, he was promised immunity in case he testified in a manner satisfactory to the county attorney. In furtherance of this notiоn the defendant called L. P. Donovan, Esq., chief deputy county at*246torney of Silver Bow county, and by him identified the information on which Roberts was being tried, the information ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍charging Scott with being an “accessory after the fact of murder, ’ ’ an application for a writ of habeas corpus, a writ of habeas corpus, and the return thereto. The latter information charged specifically that Roberts murdered Yerholz. These documents were all admitted in evidence over the state’s objection, and are all copied at length into the record to the great and entirely unjustifiable expensе of Silver Bow county. The following proceedings then took place, viz.: “Donovan: I think I filed this information charging Scott with the crime of accessory after the fact to murder. Q. (by the county attorney) : State why that information was filed.” Over objection by the defendant, Donovan testified that he filed the information “because I received information that he was with Roberts on the night of the killing or shooting of Yerholz. Later hе was committed to the witness department, furnished bonds, and was released. About a day or two before the filing of the information charging him as an accessory, I received information to the effect that while in a saloon he stated he was a friend of Roberts, and was not gоing to see Roberts get the worst of it, and he would be outside of the state of Montana when the trial came up, and, believing that made him an accessory after the fact of murder — an attempt to conceal the crime of murder — I filed the information. I may say that I filed it for the double purpose, that he was in fact concealing a crime and I believed that he was in fact guilty of concealing a сrime. I believed in good faith that he was guilty of the crime alleged in the information — trying to conceal a crime. I examined some of the witnesses in the case against Scott.”

It is contended that in allowing Donovan to express his belief that Scott was guilty of being an accеssory to a murder the court committed error. In placing Donovan on the stand, the evident ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍purpose was to draw from his narrative of thе proceedings against Scott the inference that they were not taken in good faith. The state undoubtedly had a right to dispel this *247inference by showing, if it could, a well-founded ground for the proceedings. Defendant’s counsel evidently recognized this when he, at one time, withdrew his objеction to the question: “State why that information was filed.” The county attorney could act upon the statements of witnesses; and we think he wаs justified in proceeding only when he had reasonable grounds for believing that a crime had been committed by Scott. When the defendant оffered the information in evidence, he himself got before the jury the county attorney’s sworn statement that he (Roberts) had murdered Verholz. We fail to see how he was prejudiced by Donovan’s opinion that Scott was an accessory after the fact.

3. It is contended that the court erred in giving to the jury instructions relating to murder in the first and second degrees. This contention is disposed of in the discussion of No. 1 abovе.

4. During the argument to the jury the county attorney made this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍statement: “You have the witness Ben Scott, the witness [3] whom the state had so much difficulty in keeрing here to testify, the witness who threatened to conceal testimony, and on that threat was informed against to hold him here and see that he would not compound a felony. Mr. Breen may lay considerable stress on this fact. He may argue that we were holding a club over his head.” The statement, standing alone, shows no prejudicial error. We do not know what went before or. came after it in argument. It is not entirely clear whether it is a statement of fact or simply a surmise as to what Mr. Breen might thereafter argue. At any rate, Scott was the state’s witness, and the burden was on the defendant to show that he was prejudiced by the remark of the county attorney. This he has not done. There is testimony in the record tending to show that the county attorney had information that Scott had threatened to leave the state, and that proceedings were instituted against him in order to insure his presence at the trial, as well as to punish him for having participated in the crime. No request was made to the court to instruct the jury to disregard the remark. We do not think the ruling, even if regarded as *248erroneous, should work a new trial of a case otherwise properly and carefully tried. It was a small matter.

The judgment and order are affirmed.

‘Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.