State v. Broadbent

• Decision Date: 12 January 1903
• Citation: 71 P. 1,27 Mont. 342
• Parties: STATE v. BROADBENT et al.
• Court: Montana Supreme Court

71 P. 1

27 Mont. 342

STATE v. BROADBENT et al.

Supreme Court of Montana

January 12, 1903

Appeal from district court, Custer county; C. H. Loud Judge.

William Broadbent and James Donaldson were convicted of grand larceny, and appeal. Reversed. See 69 P. 323.

Wm Wallace, Jr., O. F. Goddard, and Sydney Sanner, for appellants.

Jas Donovan, Atty. Gen., for the State.

MILBURN J.

The defendants were convicted of the crime of grand larceny having been duly charged by the county attorney with having on the 1st day of September, 1897, in the county of Dawson stolen 600 sheep, of the value of $2,700, the property of F. S. Webster, Aldo Sanford, and D. C. Webster, copartners as Webster, Sanford & Co. From the order denying the motion of defendants for a new trial and from the judgment the defendants, and each of them, appeal.

There are 37 alleged errors of the district court argued under 10 heads in the brief of counsel. There were 21 witnesses examined, and the testimony covers 212 pages of the record. It will not be necessary to take up seriatim the exceptions which were saved to the rulings of the court as to admission of evidence.

1. The first specification in the brief depends upon assigned errors 5, 6, 17, 18, 19, 20, 27, 28, 33, 34, and 46. All of these refer to alleged confessions and admissions of the defendant Broadbent not made in the presence of his codefendant Donaldson. The brief of counsel treats these alleged confessions of Broadbent, first, as to their effect upon him; and, second, as to their, effect upon his codefendant Donaldson. We first consider the rulings of the court complained of so far as they affect Broadbent himself. It appears that two witnesses, one Hand and one Beatty, ex-convicts, testified as to certain admissions and confessions made by Broadbent. Counsel admits that their testimony was admissible as to Broadbent. The contention, so far as the admissions alleged to have been made by Broadbent against his own interests are concerned, is as follows: F. S. Webster, prosecuting witness, while upon the witness stand as a witness for the state in its case in chief, testified as to certain self-incriminating statements made by Broadbent. The court, upon consideration and on motion of the defendants, finally rejected these statements, holding that they were involuntary, and therefore not admissible. The defendant, having been put upon the witness stand by his counsel in his own behalf, was cross-examined as to these alleged admissions and confessions made to Webster, the questions on cross-examination having been allowed over the objection of the defendant. The defendant thus cross-examined admitted having made one or more of the admissions, but undertook to explain by saying that Mr. Webster came to him while under arrest and engaged him in conversation, and promised to procure him a bail bond so he could be at large if he would testify for the state and against Donaldson, his codefendant, and that he made these admissions in order to procure this bail bond, but that he lied in so doing, and thought that he was doing right in lying to Mr. Webster for the purpose of getting a bail bond. Certain other alleged admissions concerning which he was interrogated on cross-examination he denied having made. Proper foundation appears to have been laid for rebuttal, if rebuttal were proper. Mr. Webster, having been put upon the witness stand in rebuttal, was examined, over the objection of the defendants, concerning the matter of these admissions or confessions and the question of inducement. Defendants' objection was principally based upon the fact that the court had declared in the state's case in chief, upon cross-examination of Webster, that the admissions or confessions were involuntary and inadmissible, and that therefore the state was precluded in law from introducing them on cross-examination of the defendant on rebuttal, or at all. The court allowed the cross-examination of the defendant and the rebuttal evidence of Webster, holding that, "if the defendant goes on the witness stand and denies his guilt of the crime charged, then the state is permitted, by way of impeachment or contradiction, the proper foundation being laid, to show statements inconsistent with the testimony which he gives upon the stand." The question whether the court erred in rejecting the evidence of Webster in the case in chief as to the alleged confessions as substantive evidence tending to show guilt is not presented, and therefore we do not pass upon the same. The question is, did the court err against defendants, or either of them, Broadbent being a witness in his own behalf, in permitting evidence to be introduced in rebuttal of statements and denials made by him on cross-examination, not as substantive evidence, but for the purpose of contradicting him as a witness? We think not. The court in its charge to the jury, in instruction No. 16, said to them as follows: "The jury are instructed that certain testimony has been introduced in the nature of admissions or confessions of guilt. This testimony was, in the first instance, held to be incompetent by reason of the fact that some inducement had been offered to the defendant making such admissions or confessions, and it was therefore excluded; but later in the course of the trial the defendant making such statements having become a witness...