*1 Appellant. STATE, Respondent, SIMON, v. No. 9168. May 28, August
Submitted 1952. Decided 16, 1952. (2d) Pac. Meyer, Bil- Arthur R. Forsyth, Mr. Haynes, Mr. F. F. lings, appellant. for Mr. Huppe, V. Gen., Mr. Charles Olsen, Atty. H. Arnold Sande, County Gen., Mr. B. Brickett, Attys.
H. Asst. Charles M. *2 Atty., Billings, for Anderson, Deputy Co. Atty., Mr. Jerome respondent. orally. argued Meyer, Brickett and Mr. Anderson
Mr. Mr. MR. METCALF: JUSTICE
Harry a miles southeast a farm three and half Moore lived on 26, 1951, he Laurel, evening the of November Montana. On daugh- wife, boy, his little and two of his was home his evening Sheryl. ters, Margaret and Mr. Moore went to bed p. Later, 9:00, 8:00 Moore awakened about m. at about Sheryl boys father, her “Some are out there.” who said to boys Moore went to the door where he saw three and a short boys. away group distance in the shadows were another One boys Margaret asked, of the at the door “Is there?” Moore place gate them to “shut ordered them off and told They boys away. behind them.” went returned a short The paint house, knocking time later threw Moore’s off rocks at again and breaking two windows. Moore went to the door and said, going you response “I’m this.” The to have arrested for “By God, was, a received out of darkness son of bitch, you, get you.” we’ll The attackers then left.
Forty-five lights hour later car minutes to an Moore saw coming lane up Fearing toward his house. further trouble got gauge shotgun stepped Moore a .12 battered old outside where he himself near the The stationed behind a tree house. stopped barrage car .22 and within a few minutes bullets shotgun pellets hitting struck the house the sides of the penetrating the door. house, chimney, breaking windows shots at the fire and after several Moore returned the more shells. the house for assailants went back into Mrs. Moore and the going on While the bombardment was refuge the house. After in a root cellar behind took children Mr. Moore had obtained more position ammunition he took a behind again the root cellar boys fired and left.
Margaret and her stayed brother in the root cellar for about half an hour and then neighbor’s went to a mile house a half away neighbors for aid. The phone Margaret had no but took and her brother to police they Laurel to the re- station where ported shooting. policeman charge called the sheriff’s office and Margaret then drove and her brother back to Moore Shortly house. deputy thereafter a sheriff from the sheriff’s office charge arrived and took investigation.
Margaret able identify boys one of the involved and heard Wally. another addressed as It was established that the Wally commonly was nicknamed and was known following day that name. The Billings detective from the police department interrogated presence deputy sheriff and Mr. and Mrs. Simon. There was also boy another participated alleged who had assault. The defendant admitted that he had been at the Moore farm *3 at Laurel when the incident occurred and that he had fired a gun in the direction Later, of the Moore home. on cross-examina- tion trial, at the it developed that the defendant had never told the officers what kind aof he had fired or where he stood at firing the time he was toward the Moore home. gauge
Shells from a .16 shotgun gauge shotgun .20a from .22 two calibre along county rifles were found road from which the cartridge came. These shells and cases were laboratory sent to the F. B. I. Washington and ballistic experts examined them and at the trial having identified them as come guns from introduced into evidence which were found at boys the home of another one of the party. who The charged assaulting Harry defendant was with Moore and in the Harry “towards direction of said Moore weapons likely harm, with produce grievous bodily to to-wit: gauge shotgun, gauge one .16 .20 shotgun rifles,” .22 two 94-602, violation of R. C. M. see. subd. charged The first information the defendant and three others (the prosecuted juvenile laws) rest were under -and after each had separate demanded trials the first information was dismissed and a against second information filed alone. the defendant After jury trial the found the guilty charged. The acquittal defendant moved for at the conclusion of the state’s case upon denial testify of that motion did not or submit his own behalf.
Eleven of specifications the defendant’s of error con- cerned with the contention proof that there was failure of a material allegations information and of essential elements of the crime. alleged by It was the state that the defendant was “shooting towards and in the Harry direction of one Moore weapons with likely produce grievous to bodily harm.” It is contended that the state failed weapons to used likely produce grievous bodily harm and connect the up weapons. with such deputy sheriff and the detective attached to the sheriff’s office they testified that shotgun found casings shell .22 along shells county up road which the assailants came. The evidence was that these shells were found at a distance of from feet from place where Mr. Moore was concealed behind a experts tree. Ballistic testified as force and effect of shotgun a at different distances and experts these testified that at the distance at which the shots were fired about 8 percent of the load of a would target. reach the That is, out of a normal load of 170 190 pellets, about 15 of the pellets would reach the target.
Defendant offered instructions that “whether the defendant was within shooting Harry distance of Moore is an element to by you considered in determining whether a weapon was likely produce grievous bodily harm;” that “assault an attempt, coupled unlawful ability to commit injury upon person violent another;” and that unless *4 jury the find “that proved beyond state has a reasonable doubt that the a weapon likely shot in a manner produce grievous bodily harm,” the defendant acquitted. must be
222 in the refused. There was evidence
These instructions were house and the side of the shotgun pellets had hit record that in- A was in door themselves the wood. some had imbedded themselves pellets had imbedded in which troduced One the witnesses bullets. of and which bore marks of other about feet The door was located counted of such marks. originally taken position to the left and feet behind .22 rifles unquestioned that the Mr. Moore. In addition it was rifles’ bullets range. Some were fired at an effective were spent bullets penetrated door and the windows and the house. found inside must not that the state
It is the defendant’s.contention bodily but grievous harm weapon produce could bodily grievous produce it would probability was that range there harm, shotguns fired at an extreme since the were though of the loads probability and even some was no such him, injured have might prosecutor reached the and even have under R. M. prosecution lie for assault C. no would showing 94-602, further contended that there no subd. It is any guns of the four introduced the .defendant fired squirtgun; any gun popgun other than a or a evidence or fired guns the defendant and that there is no connection between introduced; an essential item actually and that therefore missing. proof is question group boys came to Mr.
Here there is no that a house, farm, threw rocks at his returned later Moore’s Admittedly shotguns .22 upon the house with rifles. fired party was one of the that came to the house and the defendant gun. participated barrage. He said he fired a Whether range extreme some of the shotguns not, were fired at with force sufficient pellets load hit house put And Mr. Moore was in the wood. to imbed themselves “Q. Moore, this at the time of fear —he asked: Fright A. frigthened. jury whether or tell I still aloné. I not sit I in the house could got ? After ened there Nor can to death.” and seared plumb exhausted *5 223 deadly weapons. doubt Whether or weapons used were shotgun rangé not a that it would or a rifle fired at such a be be with a impossible injury to inflict an would an assault 4' deadly weapon necessary here. See determined not Jur., 17, range Am. Battery, p. 137. the was Assault & see. Here injury capability such that there possibility was and a injuring person á by struck either the load of the by projectiles shotguns the of the .22. Under such cricumstances deadly per and rifles 6 weapons S., used as firearms se. J. C. & Battery, 77, p. deadly Assault sec. The use of dangerous weapons injure specific infers an intent so that no 6 S., Battery, 77, intent need be shown. J. & C. Assault see. p. 932. shotguns
The the .22 rifles named the in indictment were They introduced evidence. into were identified ballistic experts and expert testimony connected the crime of members F. B. I. cartridges who testified that county shells along found the road from which the shots were fired had guns been fired from the guns so The introduced. were found in the possession boys participated the who shooting. the The connection between the charged crime weapons was sufficient to warrant their admission in evidence under rule laid Allison, down in State v. 122 Mont. 120, 199 (2d) 279, Pac. and cases therein cited. It is sufficient that the weapons or sought instruments to be introduced are prima connected with the defendant or his co-actors in facie S., commission of the crime. 22 C. J. Law, Criminal 712, People p. 1209. See Bundte, v. 87 Cal. App. (2d) 735, 197 (2d) 823, Pac. explaining and distinguishing People v. McCall, 10 App. (2d) 503, 52 (2d) 500, Cal. Pac. relied by the defendant.
The defendant also insists that the state failed
allegation “towards defendant shot Harry proved direction of Moore.” The that at the time state in the house at all Harry started Moore was not right of the house but had to the stationed himself feet However, it is no the shots. target for all of which was not had moved so defense that Moore a threat there had been The line of fire. evidence showed the shots party by someone in “get” Mr. Moore been. Mr. Moore had house where were directed into the Ky. Commonwealth, Durham analogous v. case is shots was that (2d) 603, 31 S. W. where the they had to whether there no evidence as had fired and been In that case the court prosecuting witness. been directed at the been testimony could have pointed under the out that *6 and therefore the opposite in the direction fired in the air or proved. witness was not prosecuting at the offense of at the house in bar the shots were directed But the case at door into the room where penetrated and the windows and Kong, likely People like v. Lee most to be. This is Moore was 626, police a officer 666, 800, 95 30 17 L. R. A. where Pac. Cal. the attempt to learn whether had drilled a hole in the roof to below. The conducting lottery a in the room defendant was pistol in and fired his the hole the roof defendant discovered at the time and was policeman was not at his station at it. The person even uninjured. upon be an assault This was held to mistaken as to the exact though the man fired the shot was who his intended victim. location of in the instant case where a threat had been
The same is true carry attempt made “get” Mr. Moore and an was made to night-time attack Moore’s house. out the threat a position away had moved a from the line that Mr. Moore fact prevent placed fire and himself behind a tree did not charge upon him and sustained the being an assault attack from in See toward him and his direction. guns were fired 804, p. 1101; Am. Law, Ed., sec. 12th Wharton, Criminal Battery, 16, p. sec. Jur., & Assault in a crime are participants all Montana statute Under 94-204, says: 1947, sec. M. R. C. principals. as liable equally crime, a whether in the commission persons “All concerned directly commit they misdemeanor, whether and felony a or it be in its com- constituting offense, the act or aid and abet * * * any principals mission are in committed.” crime so 94-6423, And M. declares: “The distinction R. C. principal, be- accessory between an the fact and before and principals degree, tween in first and second cases felony, persons the com- abrogated; is and all in concerned felony, they directly mission of a whether commit the act con- stituting offense, commission, though or aid and abet in its present, prosecuted, tried, punished prin- be must and as cipals, any and alleged no other facts need in indictment against accessory, required information an in an than against principal.” indictment or information his At common law the perpetrator actual actor or of a crime charged principal degree as the first present who was aided abetted crime was principal degree. the second These distinctions been have quoted eliminated in Code. im our Under sections it is material proof actually whether shows that the accused perpetrator of the offense whether he aided abetted. In either a principal may case he is be tried and convicted such. It not necessary that the state which of the guns four into introduced evidence was fired necessary defendant. It is not to show whether he fired guns. one of the four He was the scene crime *7 admittedly and was participant therein. While mere presence scene crime does not a complicity involve crime, in addition presence to the defendant’s mere there evidence that he was a party member of the first came house; party went with the weapons obtain and returned and fired a in concert with the other assailants. The conspiracy defendant cites cases to show that state has out proof. Conspiracy not carried its burden of a is distinct 1947, crime under See R. M. 94-1101. Montana statutes. C. sec. special charged conspiracy But not with defendant was those dealing point. cases with that crime Lastly permitted complains the ease was the defendant go jury evidence, upon to the buttressed circumstantial
by gun. Here the his admission that he was and fired a above, these evidence is more than circumstantial. As narrated prima jury go facts made a case to and sustain facie jury’s verdict.
Finding judgment no reversible error the is affirmed. MR. ADAIR, CHIEF JUSTICE and ASSOCIATE JUS- ANGSTMAN, TICES BOTTOMLT and concur.
MR. (dissenting). JUSTICE FREEBOURN: I dissent because the conviction ex- of defendant rests ceedingly slight dark; A evidence. nickname called in the policeman’s statement that defendant was known such nick- name; policeman’s and the same statement that defendant made oral admissions him. This is all the evidence that connects charged. defendant with the crime requires stronger law more and evidence than this before guarantees defendant’s conviction should be affirmed. The our require constitutions of a fair trial stronger more and evi- dence than this to sustain a conviction. connecting
The evidence crime is not satisfactory evidence, only satisfactory justify evidence will this conviction.
"The evidence satisfactory is deemed ordinarily pro- which certainty duces moral unprejudiced or conviction in an mind. justify Such evidence alone will a verdict. than Evidence less slight this is denominated evidence.” R. C. M. 93- 301-13.
There no direct evidence that defendant was seen at the place participated in of the crime or it. Margaret Moore, witness, examination,
State’s redirect on leading question: asked the "Q. identify any you Walley. Did name? A. just hear "Q. person the name? A. Did know Just heard the name.
“Q. ‘Walley’? A. Yes.” just You heard the name fol- detective, testified as witness, Massey, police State’s you “Q. say to lows: What did the defendant Calvin Simon questioning at time ? I Calvin A. In the course asked if had been Laurel. At first denied it. Then there to he * * * some confusion.
“Q. make What statement did the defendant Calvin Simon you person? to time in front of the other A. He ad- at that gun. mitted
“Q. Did you he make further to time? statements at A. Not at that time.
“Q. any you any Did he make further statements to at further time? A. When probation officer, Thomas, room, came into he admitted in par- front of him his ents he had gun.” fired the
Probation officer Albert Massey. Thomas did not corroborate Nor asked, stand, was he while on the if he was when Massey. testimony statement was made to Thomas’ shows he talked to presence of defendant’s father and mother and that at no directly time did he admit to Thomas indirectly, or that defendant participated had fired a in or been at the scene of the crime. leading question Massey:
Then the put “Q. he, to Did at the time you he made to, this statement have alluded state you he had been to Moore farm out at Laurel?” objection being
An “Q. sustained, he was asked: Did the defendant Calvin Simon make further you statement at that time? A. Calvin Walley Simon admitted-—” voluntary connecting, by witness, of the defendant “Walley,” name being any without asked or foundation leading up it, laid shows the in tying interest of into the case. prosecutor It question: led the next “Q. Did time hear the defendant Simon Calvin by any Simon? A. I called other name than Calvin did. Walley.
“Q. What would that name be? A. *9 “Q. thought You you far that a nickname so as Yes, concerned? A. far I am so as concerned.” Although definitely up point that until this record shows if Laurel. At Massey had “asked he had been to Calvin first he denied it, then there was some confusion [*] *,” this [*] sure, “Q. quite I detective leading question am not was asked: Simon stated Massey. you that defendant Calvin Did state of farm southeast the Moore you had out at that he been HeA. did.” occurred? Laurel the time this incident at Through “A. the course Massey’s shows: cross-examination gun at a if he had fired I Calvin Simon questioning asked was, you My question ‘Did He ‘No.’ next the Moore home. said and he said a the Moore home?’ gun fire in the direction of A. Yes.” Q. and answer? question ‘Yes.’ And he not asked where stood He admitted he had rifle Re asked whether a allegedly or that when he fired investigation into fired, although was an this the crime. made enough, although a record was
Strangely written made suspect no written record was of another oral examination examination. of defendant’s
“Q. made— Now, written statement you say there was no my knowledge. No, made—A. was there record sir not ‘ ‘ * * * knowledge. Q. conversation, my ? Not to sir A. that—-of “Q. you interviewed the defendant you Did at the time ’’ ? A. I did. make record Wiesner a “Q. Now, you state
Massey did testified further: he a you that fired the direction defendant Simon told shot me. He denied Moore A. That is what told home? he fired at the direction— firing Moore home. He said at the place “Q. you tell me if at that time and I want firing present, the defendant Simon denied persons those you in the air. A. He did home and told he had shot the Moore air. not talk
“Q. you Simon when he reply did to the defendant What I .you prob- told home ? A. that he had not fired at the Moore ably him told I did not believe it.
“Q. Yes, you may him that. But what did have told tell A. I if —.” him?—You can answer. remember cannot probation present,
If had been as officer Thomas said, prosecution firing gun, and heard defendant a admit testimony. brought would have in Thomas’s fact out Since given explanation this fact was not touched some why Massey’s state- Thomas did not corroborate and bear out ment, every only assume, giving we can the benefit of directs, if, doubt as the law had asked Thomas been presence gun, Massey, he had heard defendant admit denial, directly Thomas’s answer would have been thus con- tradicting Massey. impeaching *10 entirely
Defendant’s conviction is based almost on oral ad- Massey alleges missions made. slight
Oral admissions are with should viewed be distrust. If probation officer failure Thomas’s to corroborate Massey’s statement that defendant admitted means Massey that false, such statement then he is to distrusted be in testimony. other facts of his
The evidence indicates was an interested witness. being true, This prosecution failing and the produce testi- by Thomas, mony showing alleged admission and which would have stronger been satisfactory and more Massey alone, evidence than that of the evidence offered should be viewed with distrust. applies
This is the law and well case where no examination, written made record was of defendant’s oral al- though apparently practice it was to make such records such record in fact was made of the examination of another suspect. sec. n 1947, 93-2001-1,
R. M. part provides: C. in “3. That a testimony part witness false in one of his is to be distrusted others; testimony accomplice ought
“4. an viewed That the party aof distrust, with and the the oral admissions evidence of * * with caution *. by its own “6. That evidence is to be estimated it is weight, according to the evidence which intrinsic but also to con- of 'the power produce, of one side to other therefore, tradict; and offered, satisfactory
“7. That if evidence is weaker and less satisfactory within appears more stronger when it that should be viewed power party, the evidence offered with distrust.” Ry. Co., Brantly, Northern Justice in Escallier v. Great
Chief court, 458, 461, speaking 127 Pac. for this said: Mont. is the weak “Speaking generally, character of evidence this satisfactory est value. ‘With persuasive and least they admissions, may all it be observed respect to verbal evidence, consist ought great to be caution. received statements, ing mere is sub repetition it does in the of oral ject imperfection mistake; party himself to much clearly being misinformed, having expressed his either or not having meaning, him. It own the witness misunderstood also, by unintentionally frequently happens, witness gives altering expressions really few an effect to used completely party the statement variance with what Evidence, (16th Ed.,) actually say.’ did Greenleaf on sec. recognized 200. The weakness of character of evidence is this statute, duty thereby and it is made the of a trial court jury proper on instruct it is to be all occasions to [1907], 8028; caution. Rev. Codes viewed with McCrimmon *11 Murray, 117 Pac. quality v. Mont. 73. It is a which testimony all as to declarations admissions to oral or attaches trial, competent and the issues on are are relevant to which party making against interest of the them they because admissibility. Though rule of other within some or fall may honest, his the oral statement to who testifies witness may comprehend failed fault, he have to may memory be at intended to be under it was as interpret statement and speaker. stood involuntary, here, tbe In he ease it was as may not used, endeavoring recall the words to relate give what he heard meaning the statement which the words actually import. Moreover, easy used did not it so is to fabricate strong dishonest, evidence that temptation there is to a * ** Cyc. 806, interested witness to do so. 17 notes. * * * Cyc. author of the subject proceeds article in on this then to enumerate the circumstances which have been noticed tending impair credibility testimony. courts as of such ‘* # * Among following: these are the that better and available is not produced; [*] the fact [*] * that other admitted persons present alleged when the statement alleged produced statement was made are not nor their absence for; accounted that witnesses testifying to the statement are * * * parties interested biased; memory otherwise ** * condition; witness is in a confused discrep ancies the examination witness chief and his cross- examination, although immaterial, betray inaccuracy or con memory; fusion of testimony, loose, that the witness’ uncer * * tain, contradictory; *.’ “These are pertinent observations here.” passing may In it point be well Massey out that witness “ asked, when beginning testimony: Q. at the of his direct Who present at the time talked with defendant Calvin “Deputy Simon?” Hartley answered: Sheriff and Mr. and Mrs. Simon.” He boy present. also named being another as
We can why understand the defendant’s mother and father were not witnesses, why boy, called as state’s also a suspect called, testify alleged admissions of defendant.
However, Deputy Hartley Sheriff was called. But search his testimony you will, says although he was interrogated by “when the defendant Calvin Simon was Albert Thomas, probation officer, and Detective police department,” you Deputy will not find Hartley Sheriff making any statement to the effect that defendant admitted *12 gun. In fact having fired
being at the Moore farm or Then, question.” “I Simon said: did not hear ask Walley known too, stronger defendant was mates school calling defendant’s produced have been could and the like. Massey’s tes- as it does on resting
Defendant’s conviction corroborated, not true, if but timony, easy so of corroboration upheld. should Appellant. ELMORE,
STATE, Respondent, v. No. 9183. August 16, May 1952. Decided Submitted (2d) 488. 247 Pac.