189 P. 764 | Mont. | 1920
delivered the opinion of the
Appellant was convicted, in Fallon county, of the crime of murder in the second degree. He appeals from the judgment
In the year 1917 appellant was jointly interested with his
On the trial four witnesses testified to threats made by appellant against Davis, to the effect that he would “get” or “fix” Davis, each threat being accompanied by vile epithets, and, according to witnesses for the state, on the morning of December 5, Worden Yandervoort told his brother, this appellant, that, “after you get back from getting some coal and I get back from Wilson’s we will go and settle with ‘Slim,’ ” Slim being a nickname for Davis. On that date the brothers did go to the Shaw ranch, where Davis was living alone, but when they arrived a man by the name of Pitson was with Davis, and, though Davis invited them to stay to dinner, they remained but a few moments and went to the Arnsworthy ranch, a half mile distant, from which the Shaw house could be readily seen. Here they took dinner with Arnsworthy, who noticed that Walter Yandervoort was armed with a 38-ealiber revolver, and who, on request, was permitted to examine it, and noted that it contained six cartridges. The brothers discussed certain business matters w’ith Arnsworthy and watched the Shaw house from the window; they noted the departure of Pitson,
Appellant appeared at A. C. Long’s store, and telephoned for a doctor, and on being questioned said he had shot Davis, and, according to Long, told about where Davis was shot, on the ranch, outside the house, and in answer to the question as to how badly he was hurt stated that he was able to walk to the house. Later appellant gave himself up to the sheriff, stating, “I shot George Davis,” and gave the sheriff the revolver, which then contained five unexploded cartridges and one empty shell. Davis had been shot in the breast, the ball passing through his body, and died that night. The doctor testified that his death was caused by the gunshot wound.
Worden Yandervoort related his version of the affair to the doctor in the presence of Davis, and while Davis was still conscious, and the only remark made by Davis was, “Tell the rest of it,” or “Tell it all,” whereupon the doctor-advised him to keep quiet. Worden’s story is that the trip was made primarily to see Arnsworthy; that they stopped at the Shaw ranch, and were told by Davis that Arnsworthy had that morning told him that he (Arnsworthy) was going to a neighbor’s shortly, and that their hurried departure was for the purpose of seeing Arnsworthy before he left his ranch. As to this, Pitson denied that Davis had made such a statement, and Arnsworthy testified that he had told Davis nothing of the kind. According to Worden Yandervoort, on returning to the Shaw ranch, he knocked and was invited to enter; that they went in and had some conversation with Davis, and he then showed Mm the Dousman letter, and asked what it meant; that Davis said they had taken or stolen enough of his hay to settle the other account, and thereupon arose and attempted to strike Worden, who caught him about the neck and got hold of his thumb. Davis was much smaller than, and not a match physically for, either of the Yandervoort brothers. It seems he had a sore
The state’s witnesses testified to the shot having been fired through the door, and that the shotgun was in the room with an exploded shell in the right barrel and a loaded shell in the left, but that the gun had been broken and out of order for some time and the left barrel could not be discharged. Two loaded shells were found on the kitchen floor.
The prosecution having announced that, it was about to rest its case, the defense demanded that the prosecution be required to call Worden Yandervoort, he being the only eye-witness to the transaction and his name being indorsed on the information as a witness for the state. Thereupon the county attorney offered to make an affidavit setting forth his reasons for not so doing, but was advised by the court that his statement would .be sufficient, and he then stated as his reasons that, to the best of his knowledge, the statement of Worden Yandervoort would not be correct and truthful; that many facts were in his possession which induced him to believe that the witness was biased, and that the demands of justice dictated that, if the witness be examined at all, the state should have the opportunity to cross-examine him at length, and should not be deprived of the right of impeachment. On this showing the court denied the motion and the state closed its case.
Amsworthy, recalled, testified that after the shooting, Worden came to his ranch and told him of it, and stated, “I am proud of the---where he lays.”
But two assignments of error are made:
(1) Denying the defendant’s motion to direct the county attorney to place Worden Vandervoort on the stand, he being the only eye-witness to the shooting.
(2) Insufficiency of the evidence to prove beyond a reason able doubt (a) that defendant is guilty of the crime of murder as charged in the information, or of any other crime embraced therein, or (b) that defendant is guilty of murder in the second degree.
1. Under the old English common law, the prosecution was
The wording of the statute is such, however, that, while it may not be necessary to call all witnesses, the state is not excused from calling at least one witness, or the only witness to a homicide, unless there is an exception to the general rule laid down in the case of State v. Metcalf, 17 Mont. 417, 43 Pac. 182.
Questions concerning the calling of “all witnesses” have been raised in this state in a number of eases, although the question here involved has not been before the court. The case of Territory v. Hanna, 5 Mont. 248; 5 Pac. 252, was decided before the passage of the statute referred to. There, the county attorney, having stated that the wife of deceased was present.in an adjoining room when the homicide was committed; the court said: ‘ ‘ The prosecuting attorney ought to have called this witness, or made some satisfactory explanation to the court why he did not, otherwise a suggestion is raised that there was design and purpose in omitting to call the witness. Especially should she have been called, as there was no proof
In the case of State v. Rolla, 21 Mont. 582, 55 Pac. 523, the court, commenting on the Hanna Case, said: “If the prosecuting attorney in the case quoted from had made some satisfactory explanation of his refusal to place the eye-witness on the stand, it might have altered the case very materially.”
In the case of State v. Tighe, 27 Mont. 327, 71 Pac. 3, the court said: “It is discretionary with the trial court whether all persons who are shown to have been present at a homicide shall be sworn and examined in behalf of the state. Exercise of its discretion will be corrected only in case of abuse” (citing State v. Rolla, supra). And a like ruling was made in State v. Inich, 55 Mont. 1, 173 Pac. 230.
The case relied upon by counsel for the appellant, however, is that of State v. Metcalf, above, where the demand was made that the state call and examine the only person shown to have been present at the homicide, and available at the trial. The county attorney stated that this witness was too drunk at the time to have seen anything that occurred, and the trial court denied the motion. This court held that the reason given was not sufficient to warrant the refusal, but that the witness should have been placed on the stand and examined, that the jury' might determine the fact. The court quoted from the opinion in Wellar v. People, 30 Mich. 16, as follows: “In cases-of homicide, and in others where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, should always-be called, unless possibly, where too numerous” — and then said: “We think, under the great weight of authority, that resort should not be had to circumstantial evidence in such cases where it appears that direct proof can be reasonably had.” This is a salutary rule for the safeguarding of the-rights, the life and the liberty of the accused, and should be adhered to in all cases where “direct proof can be reasonably had.” However, to every rule there are exceptions, which are
The reason for the rule in the Metcalf Case is that all of the facts be brought to the attention of the jury so that full justice might be done; that the innocent be protected; but the rule was never intended as a shield against the eliciting of all of the facts and circumstances. Here, the witness was produced in the courtroom; the defense could and did make him its own witness, and get before the jury all the facts within his knowledge. The state had laid before the jury all the facts it could have proven by the witness, and the only result of granting the motion would have been to require the state to vouch for the witness and to exclude from consideration by the jury those damaging statements by the witness elicited on rebuttal.
The theory of the prosecution was, throughout the trial, that the evidence tended to show a conspiracy between the Vandervoort brothers to do away with the deceased, and the consummation of that conspiracy. The county attorney did not believe, from the facts in his possession, that "direct proof could be reasonably had” from this sole eye-witness, but that, on the contrary, he would pervert the facts to establish the innocence of the accused — that the witness was in fact an accomplice of the defendant on trial, and the evidence tended to show that this belief was well founded. It would seem a perversion of justice to require the prosecution, under such circumstances, to place the witness on the stand and vouch for him, and the weight of authority is against such a requirement.
In the ease of State v. Barrett, 33 Or. 194, 54 Pac. 807, the court, after stating the English rule, says: "And in this country it is the rule, in Michigan and Montana, that the prosecuting officer is bound to show the res gestae, or entire transaction, by calling all the obtainable witnesses present at the time, unless
•. In the case of Ross v. State, 8 Wyo. 351, 57 Pac. 924, the court, following the Oregon court, said: “The courts of Michigan and Montana adhere to the former English rule, except when, the witnesses are too numerous * * * [citing several Michigan cases and the case of State v. Metcalf, supra]. In the great majority of the states where the question has been •passed upon, however, the decisions are the other way [citing
In 12 Cyc. 550, we find the declaration that “even where the practice is to require the prosecution to produce all the witnesses, the state cannot be required to call the accomplice of the defendant as a witness.”
The foregoing cases, we believe, place too narrow a construction on the Metcalf Case, which, we apprehend, goes no further than to lay down the general rule that the case should not be made by circumstantial evidence in homicide cases “where direct proof can be reasonably had.” If the evidence tends to show that the witness will, by false swearing or by concealment of facts, seek to establish the innocence of the accused, it cannot be said that “direct proof can be reasonably had” from such a witness, and it is here we believe an exception to the general rule heretofore laid down should be had:
Thus, in Goode v. State, 57 Tex. Cr. 220, 123 S. W. 597, where the facts are singularly similar to those in the case at bar, the state made its case by circumstantial evidence and the statements and alleged confessions of the defendant, who told of the killing and of the presence of one Joe Dorsey. Dorsey was under arrest and in jail; the demand was made that the state place him on the stand. In passing on the court’s refusal to grant the demand, the Texas court said: “This motion alleges that Dorsey was an eye-witness to the killing, and the testimony of the state indicated clearly that he was a party to the criminal conspiracy to kill deceased. The motion itself showed he was in jail, and it would indeed have been a singular' rule to require the state to place upon the witness-stand- a co-conspirator to be bound by his testimony.”
• Here we have under consideration a case where there were but two men present at the time of the shooting, the man charged with the crime and his brother, who might well have been placed on trial with him. On the trial the state made a complete case from circumstantial evidence, including the statement of both of these men as to what took place at the time of the shooting; the state could not hope to elicit any fact from the witness Worden Vandervoort that would aid the state, but, had he been placed on the stand, would have vouched for him, and have been precluded from impeaching him or showing motive on his part, and would only have aided the defendant in the action to prove matters claimed to be the facts by the Van
2. The second assignment of error is that the evidence is insufficient to justify a verdict of murder in the second degree, or any verdict against appellant. The evidence has been sufficiently canvassed to disclose the facts, which are ample, if believed by the jury, to justify the verdict rendered.
The judgment and order denying a new trial are affirmed.
Affirmed.