177 P. 243 | Mont. | 1918
delivered the opinion of the court.
Defendant, convicted of rape upon the prosecutrix, has appealed from the judgment of his conviction and from the order denying his motion for a new trial.
The attorney general objects to consideration, on appeal from the judgment, of the bill of exceptions for the reason that it was not presented or settled within the times prescribed by section 9340 of the Revised Codes; but the bill itself shows the
In view of the fact that the judgment must be reversed and a new trial ordered, we do not decide whether the question of the sufficiency in the weight of the evidence to justify the verdict, as distinguished from sufficiency in law to support it, may properly be reviewed on appeal from the judgment.
1. The refusal of the court to grant defendant’s prayer for a directed verdict is the first error assigned. Th,e evidence was
2. As has been stated, the evidence was irreconcilable. Certain facts, however, appeared about which no controversy existed or could exist. It was clearly shown that if defendant raped the prosecutrix, he did so in her father’j house during a night when he and one Squires were occupying the same bed; and that unless the crime charged was committed on the night of September 30 — October 1, it never was committed. Defendant swore that he shared the bed with Squires but once and then on the night of September 29-30, and that he spent the entire night of September 30 — October 1 in a house five miles distant from her father’s house, the testimony of other wit
"With the evidence in this condition, defendant’s counsel during the course of his argument to the jury said in effect that the state had failed to comment upon the admission by the prosecutrix and her sister that defendant and Squires slept together but one night. He was interrupted by the county attorney’s objection that the remark was not in harmony with a correct construction of the evidence, to which defendant’s counsel answered by insisting that the construction was correct, asking that the record be read. The court held that the girl and her sister had not testified that defendant and Squires slept together on one night only, saying: “They did not confine it solely to one night; that is the record; we are not going to go
The court erred in requiring defendant’s counsel to desist
Since the ruling and remarks of the court in the particulars mentioned were prejudicially erroneous to defendant, the question whether, under the Constitution and statutes of Montana, the trial judge may express to the jury his own opinion of the weight of the evidence and comment upon the credibility of the witnesses, provided the jury be advised that they are not in any wise bound by such opinion or comment and must themselves find the facts from the evidence adduced, need not be considered and is reserved.
The judgment is reversed and a new trial ordered.
Reversed and remanded.