State v. Broadbent

• Decision Date: 03 May 1897
• Citation: 48 P. 775,19 Mont. 467
• Parties: STATE v. BROADBENT.
• Court: Montana Supreme Court

48 P. 775

19 Mont. 467

STATE v. BROADBENT.

Supreme Court of Montana

May 3, 1897

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

John Broadbent was convicted of assault in the second degree, and he appeals. Affirmed.

On the 6th day of April, 1896, the defendant in this case, John Broadbent, was convicted of assault in the second degree in the district court of Gallatin county, and on the 18th day of said month judgment was rendered in said court against the defendant, by which he was sentenced to imprisonment in the penitentiary for one year. The information in the case is as follows: "W. L. Holloway, county attorney for the county of Gallatin, in the state of Montana, who prosecutes in the name and on behalf and by authority of the state of Montana comes now here into court, and gives the said district court to understand and be informed by this information that the above-named John Broadbent is guilty of the crime of assault in the second degree, committed as follows; that is to say That the said John Broadbent, late of said county and state on Thursday, the 20th day of February, 1896, at the county of Gallatin, and state of Montana, then and there, by some means to this informant unknown, in and upon one Byron Plum, then and there being, unlawfully, feloniously, willfully, and wrongfully did make an assault, and then and there, with some means unknown to this informant, did beat and bruise him, the said Byron Plum, thereby by means aforesaid, in the upon the head of him and said Byron Plum, unlawfully, feloniously willfully, and wrongfully did inflict grievous bodily harm; against the peace and dignity of the state of Montana, and contrary to the form, force, and effect of the statute of said state in such case made and provided." At the close of the testimony on the part of the state counsel for defendant moved the court for a nonsuit for the following reasons: (1) "That the information does not state facts sufficient to constitute a public offense." (2) "There is not sufficient testimony by the plaintiff to warrant a conviction of the defendant at the hands of the jury." (3) "That the court has no jurisdiction of the defendant in this case, in that he has never been arraigned in accordance with the laws of the state of Montana." This motion was overruled by the court. The defendant offered no evidence. The jury returned a verdict of guilty against the defendant of assault in the second degree in manner and form as charged in the information. After the verdict the defendant filed a motion in arrest of judgment on the grounds: (1) "That the information in the said cause does not state facts sufficient to constitute a public offense." (2) "The court had no jurisdiction to try and determine the said matter, for the following reasons: (a) The defendant had never been arraigned in accordance with section 1893 of the Penal Code of the state of Montana, and that no copy of the information in said cause, with the indorsements thereon, including the lists of witnesses, was ever delivered to the defendant at any time, nor anything purporting to be a copy. (b) That at the time said cause was tried the regular panel of jurors for the term of the court at which the said defendant was tried was incomplete in this: that the name of one Elza Copple was called as a juror to sit in the trial of the said cause, and said juror was not in attendance upon the said court. And, further, in this: That before the completion of the selection of jurors for the trial of the said cause the court excused from the regular jury panel for the said term of court, on the ground of his being an incompetent juror, Carl Topel, and also George Gordes, and by reason of the said persons being so excused the panel of the said jury consisted of only twenty-one men." The court overruled the motion in arrest of judgment. The defendant appeals from an order overruling a motion for a new trial, and from the judgment.

Luce & Luce, for appellant.

C. B. Nolan, Atty. Gen., for the State.

PEMBERTON C.J. (after stating the facts).

There are several errors assigned in this record. The counsel for the appellant contends that there was no arraignment of the defendant, or plea to the information by him in the court below. This contention is not supported by the record, for it appears therefrom that the defendant was personally present in court, and was arraigned; that counsel was appointed for him; that he was ordered admitted to bail in the sum of $500, and, having waived the statutory time to plead, entered his plea of not guilty. In the face of this record we see no support for this assignment of error.

Counsel for appellant contends that the evidence is insufficient to support the verdict. There is but little real conflict in the evidence. Witness Edwards testified that he saw from a little distance the defendant with a good-sized whipstock in his hand, dragging Plum around on the ground. He did not see defendant strike Plum, but when he got to where the parties were he asked what the trouble was. "The defendant said: 'He called me a son of a bitch, and I hit him. I won't take that off from anybody.' I said to defendant: 'I guess you have fixed him. I guess you won't have to take it off old Dick any more.' Defendant said: 'I did not hit him very hard. He will be all right in a little while."' All this time Plum was lying on the ground unconscious. Plum is an old man. The defendant is a young man. Plum says...