State v. Berberick

• Decision Date: 06 March 1909
• Citation: 100 P. 209,38 Mont. 423
• Parties: STATE v. BERBERICK.
• Court: Montana Supreme Court

100 P. 209

38 Mont. 423

STATE v. BERBERICK.

Supreme Court of Montana

March 6, 1909

Appeal from District Court, Deer Lodge County; Geo. B. Winston Judge.

John Berberick was convicted of murder, and appeals from the judgment and an order denying a new trial. Reversed and remanded for a new trial.

Peter Matson, John H. Tolan, and W. B. Rodgers, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

SMITH J.

The state of Montana accused the above-named defendant and one Frank Carpenter of the crime of murder. Separate trials were demanded, and this defendant was convicted of murder in the second degree. He appeals from the judgment of conviction and also from an order denying him a new trial.

At the time of the commission of the alleged offense Berberick was about 18 and Carpenter 15 years of age. On January 14, 1907 the dead body of John Johnson was found near the manure pile at the ranch of George Parrott, about seven miles east of the city of Anaconda. Tracks were found in the snow about the place, and several witnesses testified to having seen Berberick and Carpenter going in the direction of the ranch in the morning and returning in the afternoon. Johnson was an employé of Parrott's and was alone at the ranch on the day in question; Parrott having gone to Anaconda the day before. The weather was extremely cold. Between 2 and 3 o'clock on the afternoon of the 14th the discovery was made that the door of the ranchhouse had been broken open, and an iron safe had been wrecked, apparently with some high explosive. Pieces of giant powder were found. Parrott had no giant powder. Hanging upon a nail in the wall, and covered by a man's cap, was a revolver belonging to Parrott. When he left home on the 13th this revolver contained five cartridges. When he returned on the afternoon of the 14th it contained but one. The autopsy of the body of Johnson disclosed four bullet wounds, and the examining surgeon testified that he died from hemorrhage due to the wounds.

William A. Taylor, the undersheriff of Deer Lodge county, testified for the state that on the 16th of January the defendant, who was then in custody in the county jail, received a copy of the Butte-Intermountain newspaper from Isabel Fleming, the sheriff's daughter, who gave it to him at Taylor's request.

Thomas Stewart, the deputy county attorney of Deer Lodge county, testified: That on the evening of the 16th, in the sheriff's office at the jail, in the presence of Taylor, the undersheriff, Mr. Allen, the coroner, Mr. Cole, a reporter for the Anaconda Standard newspaper, and Messrs. Edward Beal and A. N. Strom, Mr. James, the county attorney, asked the defendant if he had sent for him, and received the reply that he had. That Mr. James then told the defendant that, "if his purpose was to make a confession or statement, he would state his rights to him before he should make any statement whatever"; that he (the defendant) "must understand that there was absolutely no hope of reward or promise of any kind held out to him, or promise of leniency or consideration in any way for the fact of his making this confession. *** That before the statement was made Mr. James introduced himself to Berberick and introduced each of the others present, and told Berberick what official capacity each one occupied in this county, if they were officers. That he then proceeded to tell him that there were absolutely no threats made against him, that he was absolutely free to make this statement, or not make it, just as he chose, that the fact that he was under arrest need not be considered by him, that if he made a statement it must be absolutely free without any feeling that he was compelled or forced in any way, or that there was any inducement or hope of any kind held out to him. That he further told him that he was entitled to the aid of counsel, and if he desired an attorney or any friends of his to be present when he would make a statement, if that was his intention, that we would send for any attorney he desired, or for any friends of his that he might desire to have present. *** He stated: That he did not desire any attorney, and had no friends that he cared to send for; that he had sent for Mr. James himself, and it was his desire to make a statement; that he understood that there was no offer made to him, was no inducement of any kind held out, and he said that he was not acting under fear of any one or being compelled by any one; that his statement was made freely and voluntarily by him. *** It was stated to him that Mr. James was the county attorney, and it would be his duty to prosecute any action that might be prosecuted against him, and if he made a statement that the statement not only could but would be used against him in prosecution of any action that might be prosecuted against him on the charge that was against him at that time. *** Mr. Cole took down his statement on the typewriter. *** I read the statement back to him, and he made some suggestions as to some changes, and the changes were made. His rights were then again stated to him; *** that is, that he was not acting under any duress or under any threats of any kind, that this statement, if he signed it, must be signed by him freely and voluntarily, that he must not expect or could not expect any reward or any leniency or any consideration from the fact that he had made a confession, that this statement could and would be used against him, that there were absolutely no offers made to him, that he would receive no consideration from the fact that he had made a confession, that it would not aid him or help him in any way so far as the county attorney's office was concerned or so far as any consideration was concerned as being given to him for making a confession, that he was to act freely of his own will and without the sanction or the force or influence of any person. *** He signed the confession at that time in the presence of the persons I have named. *** After the statement had been made to him as to his rights, he stated that he had read the confession of Carpenter as published in the Intermountain of that same evening."

Stewart's testimony was, more or less, corroborated by Strom, Beal Cole, Allen, James, and Taylor. Strom also testified: "James might have said at the time that it would be better for Johnny to confess, or words to that effect; I would not say. There might have been a similar statement to that made. Mr. James might have said to him, 'So, Johnny, you have concluded it is best for you to confess,' or words to that effect; I would not say for sure; I could not say anything about that. There might have been some similar statement. *** Well, I kind of think there was something like that said. That is my best recollection, that there was something like that said." Beal and Allen testified that they did not remember and did not believe that Mr. James made such statements. Mr. Cole testified: "The defendant did not dictate the statement in just the way it appears there, that was not his exact language, but the statements there are substantially correct. The language used by James and the defendant was to some extent interwoven. *** The statement, however, is substantially as he made it, perhaps not in the exact words, but is practically the same thing. It may be that there are lots of words, or some words, that were used there that night in making the statement that are not down in that statement, and I believe it to be true, according to my own recollection at this time, that there are some words in there that the boy never used. When the boy came in there he appeared very cold and calm and quiet. I do not think he smiled or changed his face in any way or showed any emotion. There was a slight flicker of a smile on his face at one time during the interview, and that was just merely passing, that was the only thing that would show that he, well, to show any emotion." Mr. Allen, the coroner, testified that on the morning of the 15th he was present with the jailor when the county attorney questioned Berberick at the jail; and Taylor testified that when James came out of the jail he brought out a statement that he had taken down, and stated "that he had not been able yet to get the boys to confess, or words to that effect." Taylor also testified that the confession of Carpenter was obtained on the morning of the 16th, and that he told Berberick that Carpenter had confessed. He said: "I told him that, I expect, for the purpose of having an effect on his mind, so that he might, if he would, *** make some kind of a confession or statement. *** I sent in the copy of the Intermountain of the 16th so that Johnny could read what the other defendant testified or swore to, the confession the other boy had made. I did it to see if he would admit it himself, admit that he was connected with it. Then I asked him what he thought about his pal's cough-up. I wanted to see what effect the Intermountain had had on him, to see whether he was ready to admit any connection with the crime. I asked him if he wanted to make a statement, and he said then to send for the county attorney." Mr. James testified: That he had an interview with Berberick at the jail on the morning of the 16th in presence of the coroner and the jailor; that he advised the defendant of his rights and privileges at that time, told him that any statement he made must be voluntary, without fear or inducement, and would be used against him; that Berberick made a statement at that time which Mr. James reduced to writing; that he was then advised that he "did not have to sign it unless he wanted to"; that he hesitated a moment and then declined to sign it. The county attorney testified, also, that during this morning...