22 Mont. 92 | Mont. | 1899
Thomas Welch, George S. Geddes and Richard. Dixon, or Dickson, were accused, by information filed in the District Court of Custer County, of the murder of Clemence Winfred Brown. Upon his separate trial Welch was convicted of murder in the second degree, and was sentenced to imprisonment for 20 years. From the judgment of conviction, and from the order refusing a motion for a new trial, this appeal is prosecuted.
Most of the errors assigned by defendant were presented in. State v. Geddes, ante p 68, 55 Pac. 919, and are considered and disposed of in the opinion this day rendered in that case; hence only such points as are not determined in the Geddes case, and are likely to arise in the event a new trial be had of this case, will be discussed.
1. Over the exception of defendant, the court admitted in. evidence the information against George S. Geddes, filed July 20, 1897, charging him with assault upon decedent, .and also the complaint, filed October 18, 1897, in an action brought, by decedent to recover damages occasioned by the assault. If' the defendant had conspired with Dixon, or with Geddes, to accomplish the murder of Brown, these documents would doubtless have been relevant, as tending to disclose a motive^
There, is not a dearth of instances disclosed by the record in which counsel for the State urged, and succeeded in adducing, inadmissible testimony against the defendant; nor is the transcript barren of instances where they were instrumental in excluding material and competent evidence offered by defendant. Observing, as we have, the many hyper technical and frivolous
2. The State offered in evidence a letter, dated August 15, 1897, written by the defendant to the decedent, by which the decedent was requested to go to the O. W. ranch on the 21st of August, and in which the defendant said he wanted to see decedent on important business, and would depend upon him to be there, and that he would pay him well for his trouble, and would depend on him to go. The letter inclosed five dollars. The defendant offered to prove that he and George S. Geddes had had. conversations in relation to effecting a settlement of the controversy that existed between Geddes and the decedent, growing out of the alleged whipping, and that he wrote the letter of August 15th for the purpose of meeting the decedent and bringing about a compromise of the trouble. This offer the court denied, and refused to allow the defendant to give any reason for having written the letter, or any explanation in respect thereof. In this there was error. In view, however, of the fact that the defendant subsequently, on cross-examination, succeeded in getting the matter offered before the jury, we are inclined to think the error was not a material invasion of defendant’s rights.
3. The State having proved that letters passed between the defendant and Regina Geddes, both before and after the homicide, for the purpose of permitting the jury to infer that the letters contained something that might bear upon the murder, or as indicating a conspiracy between the correspondents to kill Brown, the defendant testified that he had destroyed the letters received by him, as was his universal habit as to letters that he received, and that he had no reason for destroying them, other than that such was his custom, and that none of the letters received by him could be produced. He then offered to prove the contents of the letters, and that they did not refer to the decedent or to the homicide. The court re
4. One of the gravest errors in the admission of evidence is found in the action of the court permitting Dixon to testify that Regina Geddes had declared to him that the defendant had told her, in a conversation concerning the decedent, that defendant had “laid four days at one time for that boy, and eighteen hours at another; that he was going to rig himself in a blanket, and play Indian on him, and kill him;” and that she told witness “that Tom Welch told her that, after he had killed one man, it was nothing to kill another one.” All this evidence was hearsay, and was well calculated to have weight against the defendant in the minds of men not.accustomed to sifting and weighing testimony.
5. When apprehended, there was found upon the person of defendant a photograph of Regina Geddes, which was introduced in evidence by the State. Although defendant was permitted to explain by his own testimony the circumstances attending his possession of the picture, the offer to corroborate his statement by the testimony of one Miller was denied. This was error. The sole purpose the State could have had in using the picture before the jury was that they might be afforded
6. The principal witness for the State was the negro, Dixon, the self-confessed murderer of Brown. That Welch was not present when the murder was done is admitted. He was approximately 50 or 60 miles distant from the scene of the murder at that time; it follows, therefore, that unless he aided and abetted, or advised and encouraged, its commission, he is not guilty. Dixon testified that in a conversation between himself and Welch held about August 28, 1897, Welch, in answer to the remark of Dixon that the former was riding a fine horse, said, referring to decedent: “Yes; that is the horse that I rode down here to .rope that son of a bitch on. I am going to get him to run him, and rope him, and take my dallies, start the other way, and jerk him off.” This item of evidence, of itself, tends in no wise to connect Welch with the murder committed by Dixon in November, 1897. It does not tend to prove, in itself, that Welch aided, abetted, advised or encouraged Dixon to commit the crime; and there is no other competent testimony given by this witness which, by any reasonable interpretation; can be deemed to implicate Welch. It does appear that defendant was an intimate friend of Geddes and his wife; that he visited their home at unusual hours; that he corresponded with Regina Geddes; that two days after the homicide he sent a check to her for §50, which on November 8th, while in company with him, she cashed at a bank in Miles City; that on the 6th of the same month he asked for a letter written by him to Mrs. Geddes, and deposited in the postoffice; and that, after receiving it from the postmaster,
The other questions presented are covered by the opinion in the Geddes case, or are such as are not likely to arise upon a new trial.
The judgment of conviction and the order appealed from are reversed, and the cause is remanded to the District Court, with direction to grant a new trial.
Reversed and remanded.