22 Mont. 559 | Mont. | 1899
Robert Shadwell, by appeal to this Court from a judgment and order denying his motion for a new trial, seek's to obtain a review of a sentence of death for the murder of Martin J. O’Connor in Butte on January 11, 1898.
1. From the 20 errors urged by his counsel we have selected, as entitled to first consideration, the striking out of certain testimony introduced by the defendant, as shown by the following extracts from the bill of exceptions: “That, after . the evidence had all been introduced in said cause, and both the plaintiff and defendant announced that they had no-more evidence to offer, said cause was by counsel for the State- and for the defendant argued to the jury. That during the-argument of the county attorney to the jury, and at a point in his argument where he referred to the evidence of the witness Bugliss and the evidence of the defendant- relative to the transaction which took place at the game of cards on or about, the evening of the 9th.of January, 1898, wherein some trouble-arose between the defendant and the deceased, O’Connor, relative to the cutting of the cards preparatory to a deal, the county attorney was interrupted by the court, and was told, by-the court to not refer to any part of the evidence relative-to the alleged trouble between the defendant and the deceased on or about the 9th of January, 1898; that all of said evidence was irrelevant, and had by the court been stricken out; that, no evidence should be considered by the jury of any game of cards between the defendant and the deceased, or any trouble-.
Further on in the record we find the following: “And now, upon this 18th day of July, 1898, comes the defendant, and serves and files his proposed bill of exceptions on motion for a new trial, and asks that the same be signed, settled and allowed as true and correct, and as containing all the evidence introduced upon the trial of said cause, and all the proceedings had in said cause before this court; and said defendant in such proposed bill of exceptions makes the following assignment of errors in rulings by the court during the progress of such trial, to which rulings of the court the defendant duly excepted at the time. ’ ’
An “assignment of errors” then follows, in which are enumerated various objections to the court’s rulings upon testimony, as shown throughout that portion of the bill of exceptions containing the evidence produced on the trial. Included, also, in this “assignment” is a specification, numbered 20, setting forth that it was error for the court ‘ ‘to state, during the argument of the county attorney to the jury, that all of the evidence of the witness Buglis and the defendant relative to the trouble which took place between the deceased, O’Con-nor, and the defendant, on or about the night of June 9, 1898, was irrelevant and immaterial, and that the same had been by the court stricken out, and to instruct the jury orally that such evidence had been stricken out, and that they should not consider the same, or the argument of counsel relative to such evidence. ’ ’
While no independent specification of errors is required, under the Penal Code (Section 2194), other than a bill of exceptions, yet, if the defendant does incorporate in his proposed bill a specific enumeration of errors alleged to have been made by the court below in decisions upon questions of law arising
In Territory v. McClin, 1 Mont. 394, on appeal from the judgment and bill of exceptions, the Court said: “It is contended by respondent that the record does not disclose the fact that any proper exceptions were taken at the trial to the rulings of the court upon the introduction of evidence, or to the charge of the court to the jury. This is an appeal from the judgment roll, and the bill of exceptions is properly before the court for consideration. The bill of exceptions corn-menses as follows: ‘Now comes the defendant, by his attorneys, and tenders the following bill of exceptions, which were taken at the proper time and allowed. ’ W e think these words form a part of the bill of exceptions, and, the bill being signed by the judge as correct, we must hold that to any ruling of the court, objected to at the time as disclosed by the bill of exceptions, proper exceptions were taken at the time and allowed. This is the plain import and meaning of the language employed.”
Holding, then, as we must, that the action of the judge made the proposed bill of exceptions and its enumeration of errors the bill of exceptions in the case, it follows that verity is imported by the bill, and that defendant was allowed his exception to the point involved. (State v. O'Brien, 18 Mont. 1, 43 Pac. 1091, and 44 Pac. 399.), It also follows that we cannot ignore the record by acting upon the statement of counsel for the State, made during the oral argument, to the effect that defendant’s counsel seeks to take advantage of a ruling not objected to on the trial, particularly where counsel
In connection with the taking of this exception, our attention is called to the fact that the specified error quoted above pertains to the exclusion of evidence respecting an occurrence of June 9, 1898, whereas the ruling excluded the evidence of an occurrence of January 9, 1898. But, as it is conceded that there was no evidence at all relating to any occurrence had on June 9th, while there was evidenc.e respecting one which happened on January 9th, manifestly the writing of “June" for “January" was a simple clerical misprision, on account of which it would be a fearful injustice for the court to deny to the prisoner, whose life is involved, a hearing on the merits of his exception, otherwise before us.
We therefore pass to the evidence, in order to demonstrate the materiality of the exception and the legal effect of the court’s ruling.
2. On behalf of the State a witness named Clancy testified as follows: On the morning of January 11, 1898, defendant Shadwell was in Kelly & Eagan’s saloon in Butte. Between 5 and 6 o’clock the defendant was playing cards with one Johnson and one Steinborn. The deceased, O’Connor, was
A witness for the prosecution, named McAuley, stated that O’Connor called Shadwell “some vile name, and told him he would take a chair to him,” before Shadwell left the saloon,
Another witness for the state, named Anderson, stated on his cross-examination that, when Shadwell returned to the saloon, he ordered the barkeeper to bring his chips oyer, whereupon O’Connor told the barkeeper “to bring him nothing.” Shadwell then said: “If I can’t play, nobody else can play. ’ ’ Thereupon witness continued, Shadwell ‘ ‘gets the cards from Johnson, and O’Connor raises up to get the cards away from him, and I seen Shadwell raise up, and Johnson raise up. O’Connor raised up first. The remark that he made, when he raised up, — he says, ‘You s-of a b--, go ahead and make your bluff.’ O’Connor at the time kind of reached out with his right hand toward Shadwell. Shad-well raises up, and Johnson raises up, and the next I seen the table up, and a hand oyer the table. It was O’Connor that held up the table. It looked as though he was pushing it over towards Shadwell. He was leaning against it. Shad-well stood up against the wall, and the table was going on over towards him. O’Connor had a hold of the table with his left hand. With his right he reaches out kind of quick with it, and tried to take the gun, or to hit Shadwell, I don’t know which, I do not know whether he went to get the gun, or whether he went to strike at him. * * * He had been abusing Shadwell all night. He was in that kind of a mood generally that night. ’ ’
Frank Buglis, called by defendant, said he saw Shadwell and O’Connor in the saloon mentioned on the 8th or 9th of January; that is, two or three days before the homicide. He said that O’Connor, Shadwell and another man were then playing a game of poker, and that Shadwell asked for the cards to cut them, to which the third person objected. Shad-well then said he had a right to cut the cards, whereupon the third person playing grabbed Shadwell’s hands, telling him to cut the cards right, and, just as he said this, O’Connor got up, saying, “Look here, you little s--of a b — —•, I want you to cut them cards and cut them right; I am not afraid of you, if you are a gun fighter,” to which Shadwell replied that O’Connor could call any body in the house to cut the cards, whereupon some one cut them, and the game went on. Witness said that upon that occasion O’Connor had been drinking, and that nothing previously had occurred to call forth the expressions used by O’Connor.
Another witness for the defense, by the name of Antonio, said that O’Connor told Shadwell, just before the killing, to shuffle the cards from the bottom, or he would turn the table
Defendant himself testified that he had kno wn the deceased for about a year; that deceased was a man about 5 feet 10 or 11 inches, very heavy set, and weighed probably 190 pounds; that he had been in the saloon on the 8th or 9th of January, playing poker with O’Connor and a man called “Slim” and some one else; that during the course of that game he (Shad-well) claimed the right to cut the cards, whereupon O’Connor jumped up, and put his checks in his pocket, and walked around, saying: “You little s — of a b-, if everything ain’t on the square, I will kill you.” Defendant says he did nothing at that time. He testified that upon the night of the homicide he had been in the saloon gambling until 12 or 1 o’clock, then went away to the theater, and returned about 4 o’clock, and found O’Connor and two other men playing. He sat down in the far chair in the corner, and called for some chips,' and joined in the game. He stated that O’Connor had been drinking that morning, and was very abusive when he was drinking, ‘ ‘and any one he thought was small, or was a ‘mark,’ he would pick them up and’abuse them, and pull their noses, and so on.” Witness said that O’Connor was drinking most of the time while he was playing, and seemed to be losing, and was angry when he lost, and that he (defendant) had the largest pile of chips; that deceased had hit a miner in the stomach that morning while talking about two dollars which the miner seemed to be inquiring about. O’Connor’s manner, defendant said, was very “sore” at him (defendant), thinking it
Defendant’s brother testified that, at about half past 5 o’clock on the morning of the homicide, the defendant met him in a saloon, and gave him a key to the house where defendant’s mother lived. His mother also testified that she told defendant, on the night of the 10th, to take his brother’s key iip and give it to him.
The foregoing resume of the testimony is sufficient to illustrate the events occurring at the homicide itself and just prior thereto. It also suffices to show that upon the trial evidence was admitted which extended back to a game of cards of the night of the 8th or 9th of January, two nights before the homicide, when the witness Buglis said he heard O’Connor without cause apply the epithets quoted to the defendant, telling him that he was not afraid of him if he was a £ £gun fighter, ’ ’ and when, according to Shadwell’s evidence, O’Connor also said to him, with an epithet, “If everything ain’t on the square, I will kill you.” This evidence was competent, and was evidently considered so by the counsel for the State on the trial, for it was admitted without objection, and was before the jury when the argument began. The jury had a right to consider it, and ought to have done so in weighing the evi
Without the existence of malice aforethought there could not have been murder; but, as said, to get at the fact of the presence or absence of such malice, recent previous difficulties with the deceased and recent prior threats by the deceased against the accused in this case, known to him, were admissible, and became a proper subject for argument by both sides. Many authorities recognize a qualification to the rule just stated, to the effect that “where it is clearly and unequivocally shown that the defendant was the aggressor, and there is no pretense that the deceased was about to carry the threats into execution, or that the defendant had reasonable grounds to believe, and did believe, that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible.” (Id', p. 428.) But the qualification is foreign to the consideration of the case presented, because in the record there is testimony on behalf of the State, as well as on behalf of the defendant, tending to show that deceased, O’Connor, had Shadwell backed up against the wall of the saloon, and was pushing a table against him, before and at the moment the defendant shot and killed him. With the truth or falsity of this evidence that defendant was
So we are unable to understand exactly what the theory of the court was in admitting the accounts of the threats and innuendoes, and thereafter, of its own motion, withdrawing the evidence of them from the jury, with a positive direction that the jury should disregard all evidence of them, and pay no attention to the remarks of counsel upon such evidence. We cannot escape the conclusion that the court erred, and that the error was prejudicial to the defendant’s substantial rights. It is, therefore, ordered that the judgment be set aside, and a new trial awarded defendant.
3. Henry Hackman, a witness for the State, who was present at the killing, and who had been in the saloon off. and on all night, was asked on cross-examination if he knew how deceased had been acting the night of the homicide, and what his manner was towards his customers. The county attorney objected, upon the ground that “it was immaterial except as to defendant.” The objection was sustained. We cannot approve of the substance of the ruling. The witness saw defendant in the saloon frequently that night. He said that deceased had been drinking heavily before he was killed. Witness had evidently observed the conduct and demeanor of the deceased for hours just before the killing. Now, suppose his conduct was boisterous; that his rage towards others was desperate, or his temper was ferocious, and vented itself in fighting, abusing and terrifying others who came into the saloon just before the homicide; and that defendant observed this manner towards others. Would it not be relevant to the question of the reason for defendant’s belief, if he had one. that the attack he says O’Connor made upon him when he killed him was to do him great bodily harm? We think it would, and that, therefore, what transpired in defendant’s presence on the night of the killing was proper, even though it involved
4. The court refused to allow a witness for the defendant to testify that it was a custom of defendant, when he was gambling, to get up and leave the card table, and go out of the place where the game was being conducted. This evidence was evidently offered to rebut the theory of the State that, when defendant left the table after O’Connor had insulted him, his purpose was to get the pistol with which he afterwards killed deceased. We find no error in the exclusion of this evidence, in view of the fact that the defendant himself said that he suddenly remembered that he had his brother’s night key, and that his purpose in going out was to give the key to his brother, whom he found in a saloon. If this was true, he did not yield to any general habit of his, and the evidence of one became immaterial.
5. Defendant asked a witness named Albright, who testified that he had known deceased for six or seven years, the following question: “Had you, from your acquaintance with him, had an opportunity to observe, and had you observed, during this acquaintance, and the morning of the 11th, when you saw him, what his general disposition was as to aggressiveness, combativeness and quarrelsomeness?” The court sustained an objection to the question. Counsel says this question was intended to ascertain the fact whether the witness could say ‘ ‘what the general disposition of the deceased was as to aggressiveness, combativeness and quarrelsomeness. ” If it was, it should have been confined to mere general reputation of the deceased, apart from any particular opinion the witness entertained, based upon his observation of specific acts on the night of the homicide. As we have already pointed out, the acts of the defendant, his manner and conduct in the saloon in the presence of the deceased on the night of the killing, were admissible. So was his general reputation for violence. But the two involved separate inquiries, governed by different
6. Defendant complains because the court “divided the instructions given to the jury into two sections or divisions, and read the same to the jury separately.” It simplifies the procedure for the court to read all the instructions given on one branch of the case consecutively, whether they have been offered by the prosecution or defense, but the omission to pursue this course is not a reversible error, unless the instructions are conflicting or erroneous.
7. The court, by a separate instruction, said to the jury as follows: “If the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, it is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. ’ ’ Defendant says that this is an erroneous definition of murder in any degree, and cites the case of State v. Shafer, 22 Mont. 17, 55 Pac. 528, to uphold his argument. If the instruction stood alone, of course, it would be fatal in its omission of the fundamental ingredients of the crime of murder in the first or second degree. But the statutory definitions of both degrees of murder were elsewhere explicitly given in the charge and perhaps the error was not prejudicial. We need not say whether it was or not. But we must earnestly disapprove of the instruction as calculated to mislead a jury in its deliberations, by affording them a possible opportunity to accept the
8. Barrett, a witness for defendant, in the course of a severe cross-examination was asked to whom he paid rent. There was no error in this. Witness seemed to be a roving sort of a'character, with no fixed occupation or residence. His evidence was very material, and, to identify him, test his credibility, aud sift his statements, it was not improper to pin him down as to his residence, the time he had lived in one place, his occupation, etc.
9. Defendant argues that the information states no offense. Although it charges murder in the first degree with sufficient certainty to sustain the lower court in overruling a motion in arrest of judgment, it is not as direct or positive in its allegations of the shooting as it might be. Defendant waived these defects by not objecting to them at the proper time.
10. We shall not express an opinion at all upon the sufficiency of the evidence to sustain a verdict of murder in the first degree. The case was a proper one to submit to the jury with instructions upon murder and manslaughter.
It is unnecessary to examine other errors urged by defendant, none of which will probably arise on a new trial.
The judgment is reversed, and the case remanded for a new trial. Remittitur forthwith.
Reversed and remcmded.