State v. Bolton

• Decision Date: 13 November 1922
• Docket Number: 5142.
• Citation: 212 P. 504,65 Mont. 74
• Parties: STATE v. BOLTON.
• Court: Montana Supreme Court

212 P. 504

65 Mont. 74

STATE v. BOLTON.

No. 5142.

Supreme Court of Montana

November 13, 1922

Appeal from District Court, Treasure County; Geo. A. Horkan, Judge.

Glenna Martin Bolton was convicted of murder in the first degree and sentenced to be hanged, and he appeals from the judgment and from the order denying him a new trial. Judgment and order affirmed.

F. F Haynes, of Forsyth, and Sharpless Walker, of Miles City, for appellant.

W. D Rankin, Atty. Gen., L. A. Foot, Asst. Atty. Gen., and E. D. Gerye, of Hysham, for the State.

HOLLOWAY J.

Glenna Martin Bolton was charged with having murdered Irving Keeler, was convicted of murder of the first degree, and sentenced to be hanged. He has appealed from the judgment and from an order denying him a new trial.

The case may be said to be a companion one to State v. Reagin, 62 Mont. ___, 210 P. 86. This defendant is the same person referred to in the Reagin Case as Glen Bolton.

The state does not contend that defendant fired the shot which killed Keeler; on the contrary, it is conceded that the act of killing was done by Reagin. The state seeks to fasten responsibility upon this defendant upon the theory that he and Reagin formed a conspiracy to rob Keeler, and in the execution of their design Keeler was killed by Reagin; in other words, that Keeler was murdered in the attempt to perpetrate the robbery.

1. It is contended that the information does not meet the requirements of section 11843 and 11845, Revised Codes 1921, in that it does not contain "a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended," and that it is not direct and certain as regards "the particular circumstances of the offense charged." The charging part of the information follows:

"That the said Glenna Martin Bolton did on the 9th day of December, A. D. 1921, at and within the county of Treasure, state of Montana, and prior to the filing of this information willfully, deliberately, unlawfully, feloniously, premeditatedly and of his premeditated malice aforethought shoot, kill and murder one Irving Keeler, a human being, then and there being. * * *"

This precise question has been before this court on numerous occasions, and an elaborate discussion of it is now unnecessary. It must be accepted in this jurisdiction that the information is sufficient to charge the crime of murder and to sustain a conviction of murder of the first degree where the killing is done with malice aforethought, deliberation, and premeditation. Territory v. Stears, 2 Mont. 324; State v. McGowan, 36 Mont. 422, 93 P. 552; State v. Hayes, 38 Mont. 219, 99 P. 434; State v. Crean, 43 Mont. 47, 114 P. 603, Ann. Cas. 1912C, 424.

But it is contended that where, as in this instance, the homicide is committed in the attempt to perpetrate robbery, a different rule of pleading is to be invoked, namely, that the information must set forth the facts constituting the crime of robbery, and must in effect allege that in the attempt to perpetrate the robbery the homicide was committed. Counsel for defendant cite Rayburn v. State, 69 Ark. 177, 63 S.W. 356, State v. Belyea, 9 N. D. 353, 83 N.W. 1, and State v. Brown, 21 La. Ann. 347, and, conceding that they lend support to the contention made, the utmost that can be said of them is that they represent the view of a decided minority of the courts of this country. The overwhelming weight of authority supports the rule that under a statute such as our section 10955, Revised Codes 1921, which makes all murder committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, or mayhem, murder of the first degree, an information in the form of this one is sufficient, and under it proof is admissible to show that the killing was committed in the perpetration of or attempt to perpetrate any one of the enumerated felonies. Some of the leading authorities supporting this rule are: State v. Johnson, 72 Iowa, 393, 34 N.W. 177; State v. Foster, 136 Mo. 653, 38 S.W. 721; Titus v. State, 49 N. J. Law, 36, 7 A. 621; People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4 L. R. A. 757; State v. Covington, 117 N.C. 834, 23 S.E. 337; Wilkins v. State, 35 Tex. Cr. R. 525, 34 S.W. 627; State v. King, 24 Utah, 482, 68 P. 418, 91 Am. St. Rep. 808; 21 Cyc. 840; Wharton on Homicide (3d Ed.) § 574. In the early case of Territory v. Stears this court adopted the majority rule as stated above, and we are not disposed to depart from it at this late day. The information would have been sufficient to charge Reagin; hence it is sufficient to charge this defendant. Section 11863, Rev. Codes 1921.

2. Complaint is made of instructions 15 and 21, given by the court. It is manifest that the first reference is to state's offered instruction 15, which was given as court's instruction 14. That instruction reads as follows:

"You are instructed that if you believe from all the evidence, beyond a reasonable doubt, that the defendant, Glenna Martin Bolton, was associated with Joe Reagin for the purpose of engaging in a robbery, that in the perpetration of the robbery Irving Keeler was killed by Reagin, then you should find the defendant guilty of murder in the first degree."

At the time the instruction was offered. counsel for defendant made the following objection:

"Object to the giving of No. 15 on the ground that it is not in proper form, and does not state the law, and that it is ambiguous. It gives the jury the idea that--it isn't clear, in that it gives the jury the idea that Glenna Bolton, the defendant, was associated, if he was associated, with Joe Reagin, for the purpose of engaging in a robbery, and in the perpetration of the robbery Irving Keeler was killed by Reagin. I think it should say in there in order to be a fair instruction, 'If you find that the defendant was engaged in a robbery upon the person of Irving Keeler, with Joe Reagin'."

Section 11969, Revised Codes 1921, which determines the procedure upon the settlement of instructions in a criminal case, provides:

"On such settlement of the instructions the respective counsel, or the parties, shall specify and state the particular ground on which the instruction is objected or excepted to, and it shall not be sufficient in stating the ground of such objection or exception to state generally that the instruction does not state the law, or is against the law, but such ground of objection or exception shall specify particularly wherein the instruction is insufficient, or does not state the law, or what particular clause therein is objected to."

The same section provides further:

"No cause shall be reversed by the Supreme Court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions, as herein provided."

Counsel for defendant did not object to any other instruction offered by the state, and it will be observed that the only specific objection made to this instruction is that it assumes as a fact that defendant was associated with Reagin for the purpose of robbery and that in the perpetration of the robbery Keeler was killed. We do not approve the charge in its entirety or this particular instruction, but we are forbidden by the statute above to consider any objections which were not pointed out specifically at the settlement, and, whatever other faults this instruction may have, it is not open to the charge that it assumes as a fact a matter which was in dispute. By its express terms the jury were left free to determine whether defendant was associated with Reagin for the purpose of robbery, and whether Keeler was killed in the perpetration of or in the attempt to perpetrate the robbery.

The record discloses that instruction 21 was given at the request of the defendant; hence he cannot complain that it does not state the rule of law correctly. State v. Lucey, 24 Mont. 295, 61 P. 994.

3. Section 10894, Revised Codes 1921, has no application to the facts of this case; hence the court was not called upon to instruct upon the subject-matter covered by that section. Neither was it necessary for the court to define murder of the second degree or manslaughter. These matters were considered and determined adversely to defendant's contention in State v. Reagin above, and need not be discussed further.

4. The principal contention made by defendant is that the evidence does not justify the verdict. Reagin testified for the state and so much of his testimony as is pertinent here is to the following effect; Prior to December 9, 1921, he had assisted in burglarizing the home of Mrs. Gambol, and had secured bedclothing and other household articles, some of which were taken to and used in defendant's home. On the afternoon of December 9, 1921, he was informed that the officers were in the neighborhood, searching for the property which had been stolen from the Gambol home, and about dark on that day he started from the home of Amanda J. Bolton to go to defendant's home, some three miles distant. At the Breazeale water gap he met defendant, who informed him that the sheriff had left a deputy in the Bolton home and had secured Samuel Pope to remain there also while the sheriff went to town for a warrant for defendant and medical attention for Mrs. Bolton. At defendant's suggestion he and Reagin returned to the home of Amanda J. Bolton, and on their way there they agreed that Reagin should "hold up" Keeler, and that they would take the (Gambol) property from him and destroy it. That in furtherance of that plan they secured at the Amanda J. Bolton home a large red...