8 Mont. 110 | Mont. | 1888
Lead Opinion
The appellant was convicted at the April term, 1888, of the District Court of Deer Lodge County, of murder in the second degree, for killing Joseph Bussiere, and sentenced to imprisonment for life. A motion for a new trial was overruled, and an appeal was taken to this court. There are two grounds of error relied on for reversal: (1) A variance between the indictment and the prooí) and error in the instruction of the court to the jury upon this point. (2) Errors in the instructions to the jury in other particulars.
1. The defendant is charged with a wilful, premeditated, and deliberate assault with intent to kill the deceased, Joseph Bussiere, and that he did wilfully, premeditately, deliberately, and of his malice aforethought, kill him. In other words, the deadly intent is charged to have been-entertained by the defendant towards the deceased.- But it is insisted that the whole scope of the proof shows conclusively .that he intended to kill one Peter Martin, and that the killing of deceased was purely unintentional. We observe that the indictment does charge that the assault was made upon the deceased with the intent to murder him; and it is conceded that the proof shows that the defendant intended to kill one Peter Martin, and that the killing of the deceased was unintentional. In order the better to understand the application of the principles of law, which we think govern
The whole of this testimony bears directly upon the questions of the motive and intent of the defendant in doing the shooting, and shoAvs conclusively that he was very hostile towards Martin, and that the effort and intention was to kill him, and not the deceased. But the whole of it was admitted without objection
The argument that there was no assault made upon the deceased is fallacious. If he was shot dead, there certainly must have been a battery, and there can be no battery without an assault. It can make no difference whether the assault was intended for the deceased, or for Martin. “The thing done having proceeded, from a corrupt mind, it is to be viewed the same, whether the corruption was of one particular form or another. Every act producing an unintended result must, when evil, be measured either by the Intent, or by the result. The common-law rule measures it substantially by the latter, holding the person guilty of the thing done, where there is any kind of legal wrong in the Intent, the same as though specifically Intended.” (1 Bishop on Criminal Law, 4th ed. § 411.) The charge in the indictment is that the defendant committed an assault and battery upon the deceased, by shooting him with a pistol, and thereby killed him. This is conceded In the proof. The charge in the indictment that it was done wilfully, deliberately, premeditately, and with malice aforethought, is sustained by proof that the assault and battery were committed with a mind imbued with those qualities; and on account of such corrupt intent the law will hold the defendant guilty of the unintended killing, the same as though specifically intended. There is no variance between the evidence and the allegations in the indictment, except as to the averment that the defendant intended to kill the deceased. The material point involved iu this particular is, that the defendant did the fatal act with a felonious, deadly intent. This was proven. The averment that the deceased was the object of this intent becomes material, only because made descriptive of the offense by the indictment. "YVe think the defendant waived his right by not objecting to the evidence at the time it was offered. His objection comes too
2. The next objection urged by defendant’s counsel is that the court did not properly instruct the jury as to the burden of proof, counsel contending “that the true rule is that the burden of proof in criminal cases never changes, but always rests with the prosecution, from the beginning to the close.” We do not call in question the correctness of this statement as a general rule; but this is subject to the exception, that when the accused relies upon some special defense to meet the prima facie case made against him by the people, the burden of the proof is upon him to so far establish such a defense that it at least raises a reasonable doubt as to his guilt. Besides, section 40 of our Criminal Laws, which is literally copied in instruction 10, given at the request of the prosecution, directly modifies the rule contended for by counsel for defendant. We have had occasion to comment upon said section in the case of Territory v. Manton, 8 Mont. 95 (decided at the present term of this court), and we do not deem it necessary to restate here what we said in that case. In this case the defendant certainly had the benefit of the rule asked for. There were thirty-one instructions drawn with great skill, covering every conceivable phase of the case, especially the law of self-defense, drunkenness, and reasonable doubt, given at the request of the counsel for the defendant, winding up with the admonition that it is better for ninety-nine men to escape than that one innocent man should be punished. Ho instruction asked by defendant was refused.
3. There are some other objections made to instructions given in behalf of the prosecution, but they are either verbal criticisms or objections, which if otherwise well founded were abundantly cured by those given in behalf of the defendant. We do not deem it necessary to notice them further. While the punishment assessed by the jury is severe, we cannot say, under
Dissenting Opinion
(dissenting). — I dissent from the majority of the court in this case. Granting that the allegations referred to are material, I am of the opinion that they must be proved, and that defendant may take advantage' of such failure upon a motion for a new trial. I think that the opinion of the majority of the court, if fully applied, would lead to the conclusion that A could be convicted of the murder of B, upon an indictment charging him with the murder of C, merely because his counsel chose not to object to immaterial testimony. Before expressing my views of the question, I wish to state that I think the authorities cited in the majority opinion do not sustain that opinion. I apprehend the rule to be this: Where the question of variance is a doubtful question — for instance, where the controversy is whether or not the article mentioned in the indictment is the article proved by the testimony — and there is no evidence pro. and con., then the question of variance is a question for the jury, under the general rule of proving every material issue beyond a reasonable doubt; and, on the other hand, where there is an admitted variance, then there is failure of proof, which may be taken advantage of by motion for a new trial, upon the ground that a material issue remains unproved. That is all that was decided in the case cited in the opinion from which I dissent, the case of Commonw. v. Gateley, 126 Mass. 52. Perhaps this will more fully appear from the opinion of the court, which is short, and is as follows, in full: “ The indictment charges that Swasey embezzled treasury notes and national bank bills. The defendant contends that the evidence shows an embezzlement of a'bank check, and that, therefore, there was a variance. But we are of the opinion that the court properly left this question to the jury. The evidence tended to show that Swasey had the right, in the course of his duty, to present the check to the bank, and draw the money upon it. There was no evidence that he made any use of the check, except to draw the money upon it. The jury might well find, upon the evidence, that there was no misappropriation or conversion of
Judgment affirmed.