173 P. 795 | Mont. | 1918
delivered the opinion of the court.
Paul Schultz, a drayman of Miles City, was last seen alive between 8 and 9 o’clock in the evening of November 29, 1916. On the next morning at about 7 o’clock-he was found dead in his barn, the circumstances indicating murder. For this murder one George Van Laningham was apprehended, tried, convicted and sentenced to life imprisonment. From the judgment as well as from an order denying him a new trial he appeals, insisting upon a reversal because the evidence is insufficient and because of newly discovered evidence warranting a retrial of the case.
I. The coitus delicti is conceded, and properly so, we think. Schultz was killed by a series of blows upon the fore part of the head. His body was found just inside the door of the barn lying on its back. Under his head was a horse blanket which the night before had been hanging up in the corner of the barn. The horses were loose. The electric light bulb, which hung out of reach, and which was operated by a switch near the door, was broken, its glass scattered about the floor. The blows which killed Schultz could conceivably have been kicks from a horse, but the circumstances, positive and negative, are sufficient to sustain the view that they were of human origin and were delivered by someone lying in wait. To connect the appellant with the deed the evidence, in brief, was this: Schultz, though
It is quite true, as he now insists, that some explanation of
II. Motions for new trial because of newly discovered [3]evidence are not favored in the law, and in passing upon them the courts of this state are bound by the following rules: That the evidence must have come to the knowledge of the applicant since the trial; that failure to discover it sooner was not due to want of diligence; that it is so material that it would probably produce a different result upon another trial; that it is not cumulative merely — that is, does not speak as to facts in relation, to which there was evidence at the trial; that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; that the evidence must not be such as will tend only to impeach the character or credibility of a witness, and that it will likely be available upon another trial. (State v. Matkins, 45 Mont. 58, 68, 121 Pac. 881.) Viewed in the light of these rules, the order denying a new trial cannot be successfully assailed. The alleged newly discovered evidence is set forth in twenty-five affidavits, and the showing of diligence in the twenty-sixth. It is insisted that these affidavits establish or tend to establish the following propositions:
“ (1) That Lena Schultz did not learn from the defendant on the morning of December 1 that there was a $10 bill at the ranch, but that she knew and stated on the previous day, before the arrival of defendant in town, that she had such a bill there.
“ (2) That the defendant on December 23, 1916, at the Van Laningham place, near Novinger, Missouri, did not make any statements to Lena Schultz, or at all, in relation to the murder of her husband.
“(3) That the defendant did not walk with Lena Schultz from the Van Laningham place to the Pope place on January 5, 1917, or make any admissions or' statements to her on said date in relation to the murder.
“(4) That the state’s principal witness, Lena Holt, formerly Lena Schultz, before and after the trial made numerous statements at variance with her testimony.
“(6) That Paul Schultz was not killed at 9:05 P. M., when he went to the bam to water and feed his horses, but some time later, when he started to the pump for a pail of water, and that his body was carried into the barn.
“(7) That the route from Miles City to the Schultz ranch via the west Yellowstone bridge and Siem ranch is three miles farther than the direct road, and that it would take two hours and fifteen minutes to make said trip.
“ (8) That in view of the testimony of Ike Davidson and of the witness Lena Holt as to the time the former arrived at the Schultz ranch-house on the evening of the murder, and the affidavits of Adolphine Schultz and George Kircher, it would have been a physical impossibility for the defendant to have committed the murder and to have admitted Davidson on his arrival at the Schultz ranch.”
To these we may add:
(9) That during the trial Lena Schultz was overheard by Mr. and Mrs. Tiemans to say to her present husband, the witness Amos Holt, “We will swear him so damned far into hell that he will never bother us,” Holt answering, “Just leave it to me,” and also that Lena Schultz herself was heard on another occasion to say that she was indebted to Ray Wilson in the sum of $500.
Propositions 2 and 3, with the affidavits supporting the same,
Proposition No. 1 was likewise an issue of fact at the trial. It is based upon affidavits from residents of Miles City, one of whom was a witness whose testimony justified examination along
Proposition No. 4 adds nothing new to the case whatever,
We are at a loss to appreciate the value of proposition 5.
Proposition 6 is very important, if true, but the fact stated,
As to proposition 9: Lena Schultz and her husband both denied the statements imputed to them in the Tiemans affidavits,
It is noteworthy that no complaint is made of any rulings in the course of the trial or of the instructions. The appellant
We find no error. Therefore the judgment and order appealed from are affirmed.
Affirmed.
Rehearing denied June 27, 1918.