State v. Belland
| Decision Date | 02 May 1921 |
| Docket Number | 4820. |
| Parties | STATE v. BELLAND ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; Charles A. Rose, Judge.
Pearl Belland and another were convicted of manslaughter, and from the judgment and an order denying her motion for new trial the named defendant appeals. Judgment and order reversed, and cause remanded for new trial.
Victor R. Griggs and J. K. Bramble, both of Havre, for appellant.
W. D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.
Harry Robinson and Mrs. Pearl Belland were charged jointly with the murder of Matt Ulmer and were convicted of manslaughter. Thereafter Robinson was granted a new trial, but defendant Belland's motion was denied, and she appealed from the judgment and order.
Appellant relies for a reversal upon the refusal of the court to grant a new trial upon the following grounds: (1) Newly discovered evidence; and (2) the giving of certain instructions requested by the state. She also predicates error upon the alleged misconduct of the prosecuting officers.
1. To illustrate the first assignment, a brief review of the facts as disclosed upon the trial is necessary. The homicide occurred August 14, 1920, on the public road in front of the Ulmer home some 30 miles north of Havre, in Hill county. About 10:30 o'clock on the night of August 12, the deceased was observed lying in wait with a gun near his home, and, in reply to an inquiry as to his purpose, stated that he was in wait for the defendants and would "get them" if they came that way. This information was conveyed to the defendants on the following day, and they then armed themselves with an automatic pistol. On the afternoon of the 13th, the defendants passed the Ulmer place, and Robinson upbraided Ulmer for his conduct the evening before, with the result that a war of words ensued during which invitations to fight were exchanged but without acceptance, and defendants went on their way. On the morning of the 14th the defendants in a farm wagon started for their respective homesteads upon a road which led by the Ulmer home. When they approached the Ulmer house they were hailed by Ulmer, who, applying a vile epithet to Robinson, invited him to get out of the wagon and fight. Robinson accepted the invitation, and the two men came together; Robinson striking and Ulmer clinching. They fell to the ground with Ulmer on top, and immediately Gus Hinze, the former husband of Mrs. Belland, came from the Ulmer house with an empty quart beer bottle and struck Robinson over the head with it until the bottle broke, and then with the jagged edge of the bottle neck struck Robinson in the eye. Mrs. Belland called to Hinze that he could not kill Robinson and fired two shots at Hinze, neither of which took effect. Hinze ran into the house and secured a gun. Robinson and Ulmer were still fighting on the ground, Ulmer on top, but neither inflicting any injury upon the other.
To this point in the narrative there is not any substantial conflict. Hinze testified that he did not hear a third shot or know what transpired while he was in the house, but that when he returned Ulmer had been shot; that he pointed the gun towards Mrs. Belland and pulled the trigger, but the gun proved to be unloaded; that he returned to the house, secured ammunition, and when he appeared again the defendants were in the act of leaving; and that they drove away rapidly. Solomon Jaber, who assumed to be an eyewitness to the tragedy, testified for the state that, after Mrs. Belland fired the two shots at Hinze, she alighted from the wagon and, approaching within two or three feet of the two men on the ground, pointed the pistol at Ulmer and fired two more shots, one of which took effect and caused Ulmer's death. Ulmer was shot through the body diagonally from the right shoulder blade, the bullet pursuing a slightly downward course.
This, in brief, is the case made by the state, and it will be observed at once that, without the testimony of Jaber, the person who fired the fatal shot would not be identified and neither would there be present anything to indicate the circumstances under which the shot was fired; in other words, without the testimony of Jaber there would not be evidence sufficient to take the case to the jury.
The only other persons present were the two defendants. Mrs. Belland testified that when Hinze commenced beating Robinson on the head with the bottle, she called to him that he could not kill the man and, alighting from the wagon, shot at him twice but missed; that Hinze ran into the house, secured a gun, and shot at her once without effect, but still kept the gun pointed at her; that Ulmer then arose from off of Robinson and came to where she was standing and tried to take the pistol from her or turn it upon her; that in the struggle over the possession of the gun, one of her hands was injured; that she called to Robinson for help; that Robinson came to her assistance, his head and face covered with blood; that he seized Ulmer by the shoulders and turned him partly around; and that then, with knowledge of the fact that Hinze still had her covered with his gun, and realizing Robinson's weakened condition and her peril, and mindful of the threat made by Ulmer the evening previously and Hinze's repeated threats to kill her and Robinson, she fired at Ulmer and he dropped to the ground; that she fired but three shots altogether and did not know that Ulmer had been killed until told later by his brother. Robinson testified substantially to the same facts, and in some details Mrs. Belland was corroborated by other witnesses. These defendants were present and knew what transpired. If their story is true, the case presented is one of justifiable homicide.
Without Jaber's testimony the state could not make out a case. His story is indispensable to the conviction of either defendant, and it was therefore of the utmost consequence that he should have occupied a position from which he could see and know all that transpired after the two shots were fired at Hinze. Upon the trial Jaber testified that during the entire controversy, and until after the fatal shot was fired, he was standing in the road near the east end of Robinson's wagon, and about 25 feet from where Robinson and Ulmer were fighting on the ground; that his vision was unobstructed; that he saw everything that occurred; that he was not unduly excited and did not fear for his own safety.
In support of the motion for a new trial, there is presented the affidavit of George E. Herron, deputy sheriff of Hill county, to the effect that he was present at the Ulmer home on August 16 when the coroner's inquest was held; that Jaber was the only witness examined at that time; that during the course of his examination, the coroner, the deputy county attorney who was conducting the examination, the affiant, the witness Jaber, and others, left the house in which the evidence was being taken and went out upon the road to the place where the trouble occurred; that Jaber there re-enacted his part as of the time of the tragedy; that he designated where he stood when the shooting commenced, as a point in the road a few feet south and east of the Robinson wagon, and stated that when the shooting began he ran for cover behind the wagon, placing a water barrel in the wagon between himself and the shooting, and then jumped over the fence along the south side of the road and was some six feet south of the fence when the shooting ceased; and that he was greatly excited and feared for his own safety.
In his affidavit, the coroner recites the fact that the several parties left the Ulmer house during the examination of Jaber and went upon the road; that Jaber told what happened during the shooting and illustrated where he was and what he did at that time; that affiant does not remember where Jaber said he was when the shooting was started, nor what he did immediately thereafter, except that he does remember that Jaber then and there said that he jumped over the wire fence on the south side of the road and that he was very much excited and afraid for his own safety.
From other affidavits it is made to appear that after Jaber had concluded his exhibition and statements on the road, the parties returned to the Ulmer house, where a slight correction was made in the testimony concerning certain distances, and the testimony was then closed without incorporating the statements which Jaber had made while out on the road. It is made to appear, further, that neither of the defendants knew that an inquest was to be held on August 16 and neither was present in person nor represented by counsel; that defendants and their counsel relied upon the coroner's report as containing a full, true, and correct statement of all the testimony given by Jaber at the inquest, and were not aware that he had told a different story until after the trial was concluded. There were not any counter affidavits presented.
Confessedly, the purpose of this newly discovered evidence is to impeach the witness Jaber, and for the purpose of introducing such evidence a new trial will not be granted as a rule, and the reason is apparent. If the moving party has had a fair hearing, with ample opportunity to prepare his case and defend against the possibility of perjury, he cannot reasonably demand more, and the smart of defeat and the certainty of the consequences offer too great a temptation for him to manufacture a plausible showing in support of his motion; but there are exceptions to the rule of which this court has taken cognizance.
In State v. Matkins, 45 Mont. 58, 121 P. 881, we announced the rules which govern generally the application for a new trial on...
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