State v. Carns

Decision Date29 October 1959
Docket NumberNo. 10005,10005
Citation345 P.2d 735,136 Mont. 126
PartiesSTATE of Montana, Plaintiff and Respondent, v. George GARNS, Defendant and Appellant.
CourtMontana 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.

CASTLES, Justice.

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:

'Q. Now, at the time you were with Mrs. Pearl Anderson at the hospital, or shortly thereafter, did she make any statement to the effect that the fellow that attacked her had black hair?

'Adams: To which we object on the grounds that the question is leading. Further grounds that it is irrelevant, immaterial, incompetent and no foundation has been laid as to the circumstances surrounding.

'Court: I don't recall any such question was asked for the complaining witness to which this would be rebuttal, or where it would be impeachment. * * *

'Court: Objection is sustained.'

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:

'Q. Surely, Mrs. Larson, at times prior to July 19th can you tell the court whether or not you had any requests from Mrs. Anderson concerning calling Margie Marcenko's mother?

'Adams: To which we will object and move to strike the witness's answer for the purpose of objection. To which we will object on the grounds the question is leading, on the further grounds it is irrelevant, immaterial, incompetent, and no foundation was laid and it is beyond the scope and purpose of the material question presented here.

'Moe: Your Honor, I am trying to establish a motive on the part of the victim for framing the defendant, George Carns.

'Court: Well, on your objection I excluded certain evidence which was sought to be brought out by the plaintiff which this might be rebuttal. I----

'Q. I didn't quite get to finish the question, Your Honor. That is the problem. Can I finish the question, Your Honor?

'Court: All right.

'Q. Mrs. Larson, at times prior to July 19th of this year, did you--can you tell us whether or not you had any request from Mrs. Anderson to call Margie Marcenko's mother and tell her bad things about George Carns? A. Yes.

'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.

'A. I am sorry. I didn't hear you, Your Honor.

'Court: Well, my voice is clear than that. All right, strike out the answer.

'Adams: Renew my objections, Your Honor, on the grounds that the question is leading, and the question is already been ruled upon by the court in the previously asked question. It is also prejudicial, and no foundation has been laid for this type of examination.

'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:

'Moe: At this time your honor, I would like to move for leave to excuse this witness from the stand temporarily, and I move to reopen my cross-examination of the victim, Pearl Anderson. I have a showing to make, if the court desires it for that request, but I assume the court would like it outside the presence of the jury.

'Court: I will excuse the jury for 15 minutes: Jury admonished.

'Moe: Comes now the defendant and moves to recall the witness, Pearl Anderson, to the stand for the purpose of reopening her cross-examination, and examining her with regard to a certain statement made to the previous witness, Betty Larson, concerning her description of the alleged attacker, which involved a statement that the alleged attacker had black hair, which statement was purportedly made some time shortly after the attack in the presence of those two persons, and for the further purpose of examining the witness, Pearl Anderson, with regard to her request to the witness now on the stand to call Margie Marcenko's mother and tell her defamatory things about the defendant, George Carns. The witness, Betty Larson, contacted me last night after the close of the testimony of Pearl Anderson with reference to these subjects, and I had no opportunity or no knowledge of these facts until late yesterday evening. Accordingly, I had no chance to lay a foundation for impeachment, or to continue the cross-examination of these subjects upon the witness, Pearl Anderson.

'Court: Well, now, will you state for the record what you expect to prove by this witness?

'Moe: First of all, by this witness I expect to prove that the victim, Pearl Anderson, made a contradictory description of her assailant which does not match the description of the alleged assailant, that is the defendant, in that the color of hair is quite different; that that description to the credibility of the witness, Pearl Anderson, with regard to the portion concerning the request of Pearl Anderson to have the witness now on the stand make a telephone call or calls to Mrs. Eggebrecht, I expect to prove the lack of credibility of the witness, Pearl Anderson, by showing her bias and prejudice, and further showing a motive for naming the defendant as her attacker, rather than the person who it really was. * * *

'Court: Well, Mr. Moe, as I understand you, you first learned of the testimony that you now seek to elicit from Mrs. Larson last evening, is that right?

'Moe: That is correct. About 5:30 after I returned from the courtroom here.

'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?

'Moe: I did not at that time. I expected that the State would call Mrs. Larson as a witness on their own behalf, inasmuch as they have sent her a subpoena, and she advised me at 5:30 p. m. over the phone last night that she had expected to testify this morning as a witness for the State, and when the State closed without...

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13 cases
  • State v. Gommenginger
    • United States
    • Montana Supreme Court
    • 29 Marzo 1990
    ... ... Brewer (8th Cir.1975), 521 F.2d 556; United States v. Kinnard (D.C.Cir.1972), 465 F.2d 566, 573-574; United States v. Barrett (D.Me.1984), 598 F.Supp. 469, 475, aff'd (1st Cir.1985), 766 F.2d 609, 615. See, also, e.g. State v. Dougherty (1924), 71 Mont. 265, 229 P. 735; State v. Carns (1959), 136 Mont. 126, 345 P.2d 735 ...         Furthermore, an accused's right to demonstrate the bias or motive of prosecution witnesses is guaranteed by the Sixth Amendment right to confront witnesses. Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Greene ... ...
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