State v. Biggerstaff
| Decision Date | 17 February 1896 |
| Citation | 43 P. 709,17 Mont. 510 |
| Parties | STATE v. BIGGERSTAFF. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; Henry N. Blake Judge.
William Biggerstaff was convicted of murder, and appeals. Affirmed.
C. B Nolan and Henry C. Smith, for appellant.
Henri J. Haskell and R. R. Purcell, for the State.
On the 19th day of October, 1895, the above-named defendant was convicted of murder in the first degree in the district court of Lewis and Clarke county, and on the 26th day of the same month was sentenced to be hanged. From the judgment and order of court overruling his motion for a new trial, the defendant appeals.
The counsel for the defendant contend that "error of law was committed in the closing argument of said cause by the county attorney, prejudicial to the defendant, to wit, in the use of intemperate language as to the prevalence of crime and the neglect of other juries to do their duty, and the necessity for said jury to act speedily and adversely to defendant, and that, if wrong were done, a rectification thereof could be had in the supreme court; and the failure of the court, by instruction or otherwise, to admonish the jury to disregard such an appeal so made." The language of the county attorney complained of in this assignment is as follows, as shown by the bill of exceptions: Whereupon Mr. Nolan, counsel for the defendant, interrupting the county attorney, said: etc. The court then remarked: Thereupon Mr. Nolan, counsel for the defendant, said: "I would, on behalf of the defendant, preserve an exception." The county attorney, resuming his argument, was about to refer again to the prevalence of crime, when the court, of its own motion, interrupted him, and said: "Mr. Purcell, this matter is objected to by the attorney for the defense, and I would prefer that you would not speak about it." Whereupon the county attorney said to the jury: "I know, and you know, and we all know, and there is no use referring to the matter further." These quotations from the bill of exceptions show, not only the objectionable language used by the county attorney, but everything that was said and done by counsel for the defendant in the way of objections or exceptions thereto, as well as what effort was made by counsel to secure any action or ruling of the court in relation thereto.
Counsel for the defendant contend that the language used by the county attorney was intemperate, improper, and calculated to injure the defendant. Counsel have referred us to numerous cases and authorities holding such language to be sufficiently prejudicial and erroneous to authorize a reversal of the case. But these were cases for the greater part where the lower court had refused at the time the language was used, on motion of defendant, to strike it out, or direct the jury to disregard it, or, at the request of defendant, to instruct the jury to disregard it, and where the action of the court had been properly preserved in a bill of exceptions. The record in this case shows nothing of this kind. When counsel for the defendant objected to the language of the county attorney, he directed his objection to the county attorney's statement of the position of counsel for the defendant as to defendant's guilt, and, in an apologetic manner, says: "But now that I am on my feet, I object to the remarks made by the county attorney in respect to the prevalence of crime." Nowhere does he request or move the court to direct the jury to disregard this objectionable language. No instruction is asked directing the jury to disregard the language of the county attorney. The court is not requested at any time to make any ruling as to the objectionable language. It is fair to presume that, if the learned judge who tried the case had been requested, he would either have directed the jury to disregard the language at the time it was used, or would have instructed the jury in his charge to do so. It is true, counsel objected to the language used by the county attorney. But there is no exception saved to the refusal of the court to act with respect to this language. In fact, the court was never requested to make any ruling in relation to the objectionable language. If the defendant had requested the court to make the proper ruling in relation to the language objected to, and the court had refused, and this refusal had been properly preserved in an exception, then there would be a case here for this court to act upon. What the court said about the objectionable language was in disapproval of it. There is no objection in the record as to what the county attorney said after the court requested him not to speak of the prevalence of crime. The objection made by counsel to the county attorney's speaking of the prevalence of crime does not cover what he said about an appeal to the supreme court in case the jury erred in finding the defendant guilty. We regard the reference the county attorney made to the right of appeal to the supreme court in the event the jury improperly found the defendant guilty of murder in the first degree as the most objectionable part of the language complained of. The statement was incorrect as a matter of law, for, if the jury found the defendant guilty on the evidence, the supreme court would not necessarily have any right to interfere with the verdict. Such statement was calculated to cause the jury to be less cautious in weighing the evidence, and less mindful of their duties as jurors, than they otherwise might have been, for they might have felt that, if they did wrong in the discharge of their duty, the supreme court would correct them, and save the defendant harmless. This statement was calculated to induce the jury to place a lighter estimate on their own solemn duties than they otherwise would, perhaps, have done, by the assurance of the attorney that they could throw the responsibility of the discharge of their duties on the court.
The language complained of was highly improper and reprehensible and we think the court...
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