5 Mont. 237 | Mont. | 1884
The defendant was indicted for and convicted of the crime of murder in the first degree for the killing of one Andrew Sjobeirg. The testimony in
A witness testified as follows: “We went into the cabin first, and had to light to see.” Another witness testified as follows: “ I went into the cabin, arid the room was so dark I couldn’t see who it was. It might have been a negro, and I wouldn’t have known the difference.” It was shown by the testimony that the moon would not be visible on the night of the alleged homicide in that locality until nearly 6 o’clock in the morning. The coroner testified that the witness Peterson was asked before the coroner’s jury whose knife it was that had the blade open, and he answered that he did not know; that Peterson .said at the cabin that the man had committed suicide, and that this statement was made by him before the coroner’s jury two or three times, and that he repeated the assertion after being arrested.
It appears from the above evidence, therefore, that Peterson, who alone testified to the fact of the killing, is contradicted by his statement made out of court at different times within two or three days after the homicide, and also by the testimony before the coroner’s • jury, under oath, wherein he also stated that the deceased had committed suicide. The testimony of the witness as to his seeing the act of killing is rendered improbable in view of that portion of the evidence which shows that in the day-time the cabin was so dark that a witness
The judgment is reversed and the cause remanded for a new trial.
Judgment reversed.