State v. Allison

• Decision Date: 17 October 1944
• Docket Number: 8422.
• Citation: 153 P.2d 141,116 Mont. 352
• Parties: STATE v. ALLISON.
• Court: Montana Supreme Court

153 P.2d 141

116 Mont. 352

STATE v. ALLISON.

No. 8422.

Supreme Court of Montana

October 17, 1944

Rehearing Denied Dec. 1, 1944.

Appeal from District Court, Sixteenth District, Rosebud County Rudolph Nelstead, Judge.

James A. Allison was convicted of murder, and he appeals.

Reversed and remanded for a new trial.

MORRIS J., dissenting.

William E. Keeley, of Deer Lodge, Daniel L. O'Hern, of Miles City, and Maurice J. MacCormick, of Deer Lodge, for appellant.

R. V Bottomly, Atty. Gen., Fred Lay, Asst. Atty. Gen., and J. J. McIntosh and F. F. Haynes, both of Forsyth, for respondent.

ADAIR Justice.

An information accusing James S. Allison of the murder of Mack Hall was, on July 28, 1942, filed in the district court of Rosebud county, Montana, by the county attorney of said county. Upon his trial, Allison was convicted of murder in the second degree and sentenced to imprisonment for 20 years. From the judgment of conviction this appeal is prosecuted.

At about 11 o'clock on Sunday morning, July 26, 1942, the defendant James S. Allison stopped two automobiles passing through the village of Cartersville in Rosebud county and, informing the occupants thereof that there was a dead man at his place of business, he requested them to so advise the sheriff. Proceeding to a tavern owned and operated by the defendant at Cartersville, the motorists viewed the dead body of Mack Hall which was lying just outside the rear door of the tavern. He had been killed that morning by a bullet which had entered his mouth and lodged in his second spinal vertebra causing instant death. The undersheriff at Forsyth was notified by telephone, receiving the call at about 11:20 o'clock a. m. Thereupon the undersheriff, the county coroner, the county attorney, the official court reporter of the district court of Rosebud county, a physician and others drove from Forsyth to Cartersville, a distance of about 14 miles, and proceeded to impanel a coroner's jury and hold, at defendant's tavern, a coroner's inquest. The county attorney directed all the proceedings at the inquest. He ordered the defendant Allison to take the witness stand. Allison obeyed the order. He took the stand, and was sworn. He was then examined and cross-examined at considerable length by the county attorney. He was the first witness to testify at the inquest.

The statements made by the defendant while testifying at the coroner's inquest were neither confessions nor admissions of guilt, but all of his testimony was given in response to questions put to him by the county attorney. After covering an extensive field of inquiry, the county attorney finally asked the defendant the question, "Do you know anything more about the death of Hall the deceased?" and the defendant gave his answer to such question.

The inquest being concluded, the undersheriff, thereupon and on the same afternoon, took the defendant Allison to Forsyth and locked him in the county jail where he remained a prisoner until after the filing of the information herein, when he was released on bail.

The defendant was not represented by counsel at the inquest and he was not warned that his statements might be used against him or that he was privileged, under the Constitution and Codes of this state, to refuse to testify if he so elected. The defendant had not been informed and he testified that he did not then know that he had the right and the privilege under the law to decline to testify. It further appears that it was because defendant then believed that he was required to obey the order of the county attorney that he took the witness stand as directed and answered the numerous questions put to him by the county attorney. No eye witness to the killing was found and the evidence against the defendant was purely circumstantial.

As part of the chain of circumstances, the trial court, over defendant's objections, permitted the State to introduce, on its case in chief, all the testimony given by the defendant at the coroner's inquest and defendant here assigns error in admitting such testimony.

The Bill of Rights of the Constitution of Montana guarantees that: "No person shall be compelled to testify against himself, in a criminal proceeding." (Emphasis ours.) Const.Art. III, sec. 18.

This privilege is not merely a formal technical rule, which may be enforced or dispensed with at the discretion of the courts. It is a mandatory, constitutional provision, securing to every accused person a valuable and substantial right. In holding an inquest the coroner acts judicially. Commonwealth v. Hawkins, 3 Gray, Mass., 463; People v. Devine, 44 Cal. 452; Boisliniere v. Board of County Commissioners, 32 Mo. 375.

"A coroner's inquest has been broadly defined as a tribunal charged with the duty of investigating crimes, and, more specifically, as an investigation into the cause of death by a coroner with the aid of a jury. *** Although an inquest is essentially a criminal proceeding, at least from the time when the felonious homicide is established, nevertheless, it is not a trial involving the merits, but rather a preliminary investigation." (Emphasis ours.) 18 C.J.S., Coroners, § 14, p. 293.

There is also a legislative enactment which provides: "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but he may be sworn, and may testify in his own behalf, and the jury *** may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. If the defendant does not claim the right to be sworn, or does not testify, it must not be used to his prejudice, and the attorney prosecuting must not comment to the court or jury on the same." Sec. 12177, Rev.Codes. (Emphasis ours.)

In the early case of State v. O'Brien, 18 Mont. 1, 43 P. 1091, 1093, 44 P. 399, this court reversed the judgment of conviction therein and, speaking through that eminent jurist Mr. Justice Hunt, said: "The court ought not to have permitted any of the evidence given by the defendant before the coroner to be introduced. It plainly appears that the defendant was called before the coroner by that official immediately after the homicide, and testified without any knowledge of his lawful rights, without the aid of counsel, and under a belief that he had to answer the questions put to him."

Almost half a century has passed since this court decided the O'Brien case, supra, but it was good law then; it is good law now and this court has never departed from the rule there announced.

In Tuttle v. People, 33 Colo. 243, 79 P. 1035, 1039, 70 L.R.A. 33, 3 Ann.Cas. 513, the court held it to be reversible error for the trial court to admit in evidence the statements made by defendants at the coroner's inquest, citing with approval this court's holding in the O'Brien case, supra. At the time the defendants made the statements to the coroner in the Tuttle case, they were not then under arrest; no information had been filed against them; their statements were not confessions nor admissions of guilt; and the defendants had made no objections to testifying. However, it appeared that the defendants were not represented by counsel at the inquest; that they had not been warned that their statements might be used against them; and that they had not been informed that they were privileged to refuse to testify if they so elected. In its opinion therein, the supreme court of Colorado said: "The Constitution of the state (section 18, art. 2) provides that 'no person shall be compelled to testify against himself in a criminal case.' This provision was not intended merely for the protection of the individual in a criminal prosecution against himself, but its purpose was to insure that a person could not be required, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Emery's Case, 107 Mass. 172, 9 Am.Rep. 22. Any other rule would render it possible to deprive parties of the constitutional safeguard referred to. Officials engaged in ferreting out crime could refrain from arresting or taking into custody those suspected of its commission, and, under the guise of bringing before a coroner's jury as witnesses persons who would be afraid to assert their constitutional rights, secure from their own lips testimony which could afterwards be used against them. This, though an indirect way of seeking to avoid the constitutional provision, would as directly deprive persons of its protection as though they had been required to give testimony against themselves after arrest."

In the record before us in the instant case, it appears that the defendant Allison had been doing a lot of heavy drinking on the day of the inquest before the officers appeared on the scene and that he took on more whiskey after they arrived. When asked at the trial if the defendant showed evidence of drinking on the afternoon of the inquest, the undersheriff, a witness for the state, replied: "Well, there was kind of a mixture there between whiskey, scared and nervousness." It appears that at and prior to the inquest the county attorney was aware of defendant's aforesaid condition and that the county attorney then suspected the defendant of being implicated in the commission of the crime. At the trial defendant's wife testified that on Sunday, July 26, 1942, she received at Miles City a long distance telephone call from the county attorney informing her that there had been some trouble at defendant's place of business; that Babe Hall had been killed; that the defendant "was drinking pretty much;" that the county attorney thought she should be there; that Mrs. Allison thereupon...