State v. Bischert, 9707

• Decision Date: 27 March 1957
• Docket Number: No. 9707,9707
• Parties: STATE of Montana, Plaintiff and Respondent, v. Francis John BISCHERT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 969

308 P.2d 969

131 Mont. 152

STATE of Montana, Plaintiff and Respondent, v. Francis John BISCHERT, Defendant and Appellant.

No. 9707.

Supreme Court of Montana.

Submitted March 7, 1957.

Decided March 27, 1957.

Edward T. Dussault, Missoula, argued orally, for appellant.

Arnold H. Olsen, Atty. Gen., Forrest H. Anderson, Louis Forsell, Asst. Attys. Gen Jay M. Kurtz, Anthony F. Keast, County Attys., Missoula, for respondent. Louis Forsell, Asst. Atty. Gen., Anthony F. Keast, County Atty., argued orally.

CASTLES, Justice.

The appellant, Francis John Bischert, and his wife, Donna Marie Bischert, were charged together by information with the crime of manslaughter. On appellant's motion (defendant below) they were tried separately. The appellant was convicted and this appeal is from the judgment of conviction and the order denying his motion for a new trial and from an order denying appellant's motion for a change of place of trial.

The information charges as follows:

'* * * the said defendants then and there being, did then and there have the duty to maintain their child, Melody Bischert, aged five months, to the extent of their ability, and the said defendants having the ability to maintain said child, did then and there at their home near Milltown, Montana, wilfully, wrongfully, unlawfully and feloniously kill the said Melody Bischert by failing, neglecting and refusing to provide her with the necessary food and attention to maintain her and sustain her life and by reason of such failure, neglect and refusal, the said Melody Bischert did then and there starve and die, * * *'

Appellant and his wife were the parents of five children, ranging in age from nearly six months to five years. They lived in a small modest home in West Riverside, Montana. The defendant was employed, has an income of about $110 per week, and was shown to be a normal adult being.

On the 6th day of March, 1956, the five and one-half month old baby of appellant died. Inspection of the body of the baby, Melody Bischert, by the mortuary officials caused them to take it to a doctor. The appellant gave permission for a post-mortem examination which tended to show death by starvation. Examination of the body also revealed a widespread skin disease allegedly caused by urine.

The charge of manslaughter was brought under R.C.M.1947, Sec. 94-2507, which reads:

'Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:

1. Voluntary upon a sudden quarrel or heat of passion.

'2. Involuntary, in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.'

Appellant specifies fifteen errors on this appeal. In his argument he divides the alleged errors into five parts. We shall discuss them in the same manner. These parts are: (1) Change of place of trial, (2) sufficiency of the information, (3) denial of appellant's motion for dismissal, (4) photographs should not have been admitted, and (5) that there was insufficient evidence to sustain the verdict.

Appellant filed his petition for change of place of trial on May 4, 1956, after having been charged by information on March 22, 1956. The petition was supported by an affidavit of some forty-five residents of Missoula County, that it was their belief defendant would not have a fair and impartial trial in Missoula County. It was also supported by eight daily newspaper articles concerning the case. In opposition to this, the county attorney filed several affidavits of newsmen and the undersheriff, to the effect that there was widespread publicity of the case, but that the public interest was due to the unusual nature of the case and not as to whether the appellant was guilty or innocent.

In this same connection, appellant urges that bias and prejudice of the trial court judge is reflected by his actions in setting bond at $3,000 in the first instance; and after pronouncing judgment and issuing a certificate of probable cause, in his refusal to fix any bond pending appeal. This matter was previously brought before this court in State ex rel. Bischert v. Burrell, Mont., 300 P.2d 521, and this court granted a writ of habeas corpus and fixed a bond pending appeal in the amount of $3,500.

R.C.M.1947, Sec. 94-6901, provides:

'A defendant in an indictment or information may be awarded a change of place of trial upon his petition, on oath (or upon the oath of some credible person), setting forth that he has reason to believe that he will not receive a fair trial in the court in which such indictment or information may be pending, which petition shall state the facts upon which the same is based, for----

'1. That the judge is interested or prejudiced; or,

* * *

* * *

'4. That the people of the county are so prejudiced against the defendant that he cannot have a fair trial; or,

'5. That it is impossible to obtain a jury in the county that has not formed an opinion, as to the guilt or innocence of the defendant, such as would disqualify them as jurors.'

Appellant urges that the judge was prejudiced. He urges that the action of the judge in the matter of fixing bond demonstrates prejudice. Also that the fixing of a five-year sentence bore this out. The action of the trial judge, in refusing to fix a bond pending appeal, occurred after the verdict of the jury. It cannot be said that this prejudiced the appellant during the trial of the cause. A reading of the record does not show any bias or prejudice on the part of the court. If any can be found, it must be implied either from the amount of the bond in the first instance, which was $3,000, or from the court's refusal to set bond pending appeal. Certainly, in a manslaughter case, a $3,000 bond does not appear excessive and the actions of the judge after the verdict do not prejudice the defendant during the trial. Also the penalty of five years is certainly between the limits set of one to ten years by statute. We can see no basis for reversal based on subsection 1 of section 94-6901, supra.

Appellant urges that this case is governed by the case of State v. Dryman, 125 Mont. 500, 241 P.2d 821. In that case, evidence of inflammatory newspaper accounts, including aversions to 'shenanigans' by this court, 'Extras' with large red-letter headlines and editorialized reporting, were shown to have appeared. It was also shown that the sheriff had the prisoner moved to the state penitentiary for safekeeping due to the 'high feeling'.

In the instant case, the newspaper stories appeared in the regular daily newspapers. They were not editoralized reports. They appear to be factually done and no inflammatory statements appear.

An application for a change of place of trial is addressed to the sound discretion of the trial court. State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026; State v. Davis, 60 Mont. 426, 199 P. 421; State v. Bess, 60 Mont. 558, 199 P. 426; State v. Hoffman, 94 Mont. 573, 23 P.2d 972.

A clear abuse of discretion must be shown, or the ruling of the trial court will not be disturbed. State v. Hoffman, supra.

The affidavits in the instant case merely state the opinions of the people subscribed thereon. This type of affidavit was found lacking in State v. Spotted Hawk, supra.

On voir dire examination of the jury, nine prospective jurors were excused for cause. The state used two peremptory challenges and the defendant used two also. Certainly the ease with which a jury was selected indicates no abuse of the court's discretion was had. See State v. Bess, supra; State v. Davis, supra; State v. Martin, 29 Mont. 273, 74 P. 725; State v. Hoffman, supra.

Appellant urges that the information was not sufficient. The information contains more than this court has held necessary in manslaughter cases. In view of the ruling in State v. Duncan, Mont., 305 P.2d 761, analysis of the information is unnecessary.

Appellant's third argument that the evidence produced by the state failed to prove the allegations of the information, failed to support a conviction of manslaughter, and failed to prove intent on the part of appellant, all of which should have sustained his motion for a dismissal, will be next considered.

The charge is one based upon the omission of a parent, here the father, by negligently withholding food, water and care from his child, he, having the means to supply them.

The parent entitled to custody of a child must give him support and education suitable to his circumstances. R.C.M.1947, Sec. 61-104.

That an omission to perform an act required by law can be the basis for manslaughter was held by this court in Territory v. Manton, 8 Mont. 95, 19 P. 387. In that case, de...