State v. O'brien

• Decision Date: 09 March 1896
• Parties: STATE v. O'BRIEN.
• Court: Montana Supreme Court

18 Mont. 1

STATE

v.O'BRIEN.

Supreme Court of Montana.

March 9, 1896.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Edward J. O'Brien was convicted of manslaughter, and appeals. Reversed.

The defendant was indicted for murder in the first degree, and convicted of manslaughter, in the killing of one Frank Bixby, in Cascade county, on August 18, 1895. He appeals from the final judgment of conviction. The information charges that the killing was done with a rifle.

Leslie & Downing, for appellant.

H. J. Haskell and Ella Knowles Haskell, for the State.

HUNT, J.

This appeal being from a judgment, and the record containing bills of exception, but no motion for a new trial, it is argued in behalf of the state that this court has no jurisdiction to pass upon the errors alleged in the exclusion and admission of certain testimony during the progress of the trial. But this appeal is taken since the adoption of the Penal Code of 1895. Under the former Code (section 394, p. 476, Comp. St. 1887), an appeal to the supreme court could be taken by the defendant as a matter of right from any judgment against him, and upon appeal any decision of the court or intermediate order made in the progress of the case could be reviewed. The interpretation placed upon that statute was that errors of law in the admission or exclusion of illegal or legal evidence must have been called to the attention of the district court by motion for new trial, to the end that court should thereby first have an opportunity to correct its own errors before an appeal lay to this court. State v. Whaley, 17 Mont. ___, 41 Pac. 852. But the Penal Code of 1895 provides as follows: Section 2270: “An appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him.” Section 2321: “Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.” Section 2321 is identical with section 1259 of the Penal Code of California. The difference between section 394 of the Code of 1887 and section 2321 of the Code of 1895, consists in this: Under the old Code, the appellate court was limited in its review to any decision of the court or any intermediate order made in the progress of the case; under the new Code, upon appeal from a judgment, the court may review not only any intermediate order, but likewise a ruling involving the merits, or which may have affected the judgment. In the use of the word “ruling” the legislature evidently intended to permit a review of the actions of the district court upon matters of law in the exclusion or admission of testimony involving the merits of the case on an appeal from the judgment only. Such rulings had not been included in the interpretation of the words “decision or intermediate order” in the older statute; that is, a distinction has been recognized between a decision and a ruling. The older statute is therefore to be distinguished from the new. In the one, a decision or order was regarded as a determination by the court in the settlement of the controversy or matter before it; while in the new Code a ruling means generally a settlement or decision of a point of law arising upon the trial of the case, without necessarily the force or solemnity of a judgment or order. Black, Law Dict.; Cent. Dict. We do not hold that under section 2321, above cited, matters may be reviewed on appeal from a judgment only when they are embraced within any of the provisions of the law made for granting new trials (section 2192), except errors in the decision of questions of law arising during the course of the trial. The latter errors can, however, be reviewed either upon appeal from the judgment, or from an order overruling a motion for a new trial. This is the practice in California, and, having taken section 2321 verbatim from the Code of that state, we adopt the constructions placed upon it in the decision of People v. Keyser, 53 Cal. 184, where it was said: “The defendant may appeal from the judgment without having made a motion for a new trial. *** If, for instance, one ground of the motion be that the court erred in the decision of a question of law, and the particular alleged error relied upon be the exclusion of certain testimony, the bill should set out the offered testimony, its exclusion, and the exception to the decision, and so much of the testimony and proceedings in the case as may be necessary in order to give point to the exception.” The errors alleged by bills of exception are therefore properly before us.

2. So far as the testimony is before us by the bills of exception, it appears that the defendant lived with a woman whom he said was his wife, but to whom it is doubtful if he had ever been married. The defendant seems to have been jealous of this woman, and particularly of the attentions paid to her by the deceased. About 11 o'clock on the night of the killing, certain witnesses went to the house of the defendant, unlocked the door, lighted a lamp, and found the body of deceased lying on the floor, on his left side, with his head towards the south and his feet towards the north. The door was on the south side of the house. There was a rocking chair near to the feet of the deceased, and a knife close to his hands. The coroner noticed a hole through the cabin, said to be a bullet hole, and found a bullet on the floor about 18 inches from the left leg of a chair in which the deceased was supposed to have been sitting when shot. The coroner found two empty cartridges, one outside of the door, and one in the gun. On the trial, a board with a bullet hole in it was introduced, said to have been found opposite where the chair was standing on the north side of the feet of the deceased, and about 25 inches above the floor of the cabin. Blood was found in the seat of the chair, and upon the back of the chair. The clothing on the body was perforated. The wounds on the deceased showed that two bullets passed from one side of the body to the other. The theory of the state was evidently that the defendant shot the deceased from the outside of the cabin, and while the deceased was sitting in the chair. Defendant admitted the killing, and attempted to prove that it was impossible for a person to shoot from the outside of the house, and strike the body as the deceased's body was struck, and make the bullet hole that was shown in the wall of the cabin. His own evidence was to the effect that he was in his house, demonstrating with the deceased concerning his visits to the woman; that they had some words; and that deceased, who was sitting in a rocking chair, grabbed a knife from the window; that thereupon defendant grabbed the gun, whereupon deceased squatted, and then the defendant shot twice. Defendant further said that he shot the deceased because he was afraid he was going to cut him to pieces with the knife he had in his hands.

During the trial, the defendant called Mrs. Minnie O'Brien, who was the only witness to the killing. She said: That, upon the night of the killing, O'Brien brought the gun into the house, and then went out to do the chores. While he was out, the deceased came in. When O'Brien came back, and found deceased there, he demonstrated with him concerning his frequent visits at the house, whereupon deceased reached for the knife, saying, “I would like to see a ___ like you keep me away.” That O'Brien then shot. The witness then testified in relation to a conversation which took place between O'Brien and the deceased shortly before the killing. The defendant objected, for the reason that it was not proper cross–examination, and called for a conversation that had not been gone into. The prosecuting attorney then asked the witness, “Did you testify to that conversation at the coroner's inquest?” Answer: “I...