State v. Carns
Decision Date | 29 October 1959 |
Docket Number | No. 10005,10005 |
Citation | 345 P.2d 735,136 Mont. 126 |
Parties | STATE of Montana, Plaintiff and Respondent, v. George GARNS, Defendant and Appellant. |
Court | Montana Supreme Court |
Rankin & Acher, Helena, for appellant. Wellington D. Rankin and Arthur P. Acher, Helena, argued orally.
Forrest H. Anderson, Atty. Gen., Wm. F. Crowley, Asst. Atty. Gen., Wm. J. Speare, Yellowstone County Atty., Billings, for respondent. Wm. F. Crowley, Asst. Atty. Gen., argued orally.
This is an appeal from a judgment of conviction on a jury verdict on a charge of assault in the second degree. The defendant was sentenced to a five-year term in the penitentiary.
The complaining and principal witness for the State was the person upon whom the assault was committed, Pearl Anderson. She testified that at about 1:00 a. m. in the early morning of July 19, 1958, while alone in her residence, she was awakened by a noise. She telephoned a Mrs. Larson, her baby sitter, and while talking to her a man stood up from behind a chair. The man was masked, said he was going to kill her because she was a squealer and jerked the phone from her hands. She grabbed a club and hit her assailant whereupon he took the club away, hit her with it, then with his fists and finally slashed her with a razor. After a fierce struggle, she escaped to the street screaming, in a beaten hysterical condition, clad only in a nightgown.
She testified that the assailant was George Carns, the defendant; that in the struggle she had pulled the mask partly from his face and saw him clearly.
Two police officers, who responded to a call from the area, testified as to picking up Pearl Anderson while she was running down a street, bleeding, hysterical and clad only in a nightgown. These two officers testified that Pearl Anderson told them that George Carns, the defendant, was her assailant.
Another police officer testified as to the condition of the residence and the beaten condition of Pearl Anderson. Her doctor testified as to her wounds.
The facts of an assault were clearly and unequivocally demonstrated. But, the identity of the assailant was testified to only by the complaining witness. No other facts or circumstances were shown to connect Carns with the commission of the offense except the identification by Pearl Anderson. However, certain relationships between the complaining witness and the defendant were brought out. The complaining witness, a young widow, was engaged to the ex-husband of the defendant's girl friend.
The defendant's case consisted of the defendant's testimony, borne out by the girl friend, and in part by the girl friend's mother, that he was not present at the scene of the crime, but had in fact spent the night with the girl friend in her apartment. An alibi. The defendant admitted a prior felony conviction. He was arrested Monday night, two days after the crime.
The entire defense, other than that above, consisted of an attempt to attack the complaining witness' identification of her assailant.
The appellant alleges twenty-three specifications of error. Specifications Nos. 22 and 23 are concerned with the information, but we do not deem them meritorious. The balance of the specifications go to two matters, the conduct of the trial and the instructions given.
As related before, the conviction was based solely upon the identification of the defendant by the complaining witness.
The specifications of error going to the conduct of the trial, which we deem worthy of discussion, are as follows:
Specification No. 1. The Court erred in refusing to permit the complaining witness Pearl Anderson to be recalled for further cross-examination and to permit her impeachment by testimony of the witness Betty Jane Larson.
Specification No. 13. The Court erred in sustaining objections to testimony sought to be elicited from the witness, Betty Jane Larson, as follows:
Specification No. 14. The Court erred in sustaining objection to questions and in striking the answer of the witness, Betty Jane Larson, given as follows:
'Moe: Your Honor, I am trying to establish a motive on the part of the victim for framing the defendant, George Carns.
'Court: All right.
'Adams: To which we will object on the grounds that the question is leading and tends to be prejudicial, and the same objection proposed before to the same question.
'Court: I instructed you a while ago not to answer the question until it is completed.
'Court: Sustained.'
Specification No. 15. The Court erred in denying the motion of the defendant to reopen the State's case for the cross-examination of Pearl Anderson, as shown by the record as follows:
'Court: I will excuse the jury for 15 minutes: Jury admonished.
'Court: So at all times this morning up to the time the State closed their case, you were aware of the statements that could be made by Mrs. Larson?
'Moe: That is correct, Your Honor, approximately the statements, yes.
'Court: And you will concede, I take it, that at no time prior to the closing of the State's case, or at any time up to the time of the ruling of the court, did you ask for privilege of recalling Mrs. Anderson for the purpose of cross-examination?
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