State v. Byrd

• Decision Date: 13 October 1910
• Citation: 111 P. 407,41 Mont. 585
• Parties: STATE v. BYRD.
• Court: Montana Supreme Court

111 P. 407

41 Mont. 585

STATE v. BYRD.

Supreme Court of Montana

October 13, 1910

Appeal from District Court, Carbon County; Sydney Fox, Judge.

Frederick Byrd was convicted of murder in the second degree, and he appeals. Affirmed.

George W. Pierson, for appellant.

Albert J. Galen, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen for the State.

SMITH J.

The defendant was charged by information with the crime of murder, convicted of murder in the second degree, and sentenced to a term of 25 years in the state prison. He appeals from the judgment of the court and also from an order overruling his motion for a new trial.

The brief of counsel for the appellant is prefaced with a sort of apology for the manner in which the transcript is prepared. This was unnecessary. We have had no difficulty in ascertaining what alleged errors are relied on. It should be and is, the policy of this court to so liberally construe rules of practice and of court that all appeals may be heard upon the merits. No necessity exists for any other or different procedure; the court is, to employ a homely expression, now "up with its calendar," the judges are not particularly overworked, and so long as we can ascertain what errors are assigned we shall consider them, if the transcript and briefs are in such shape as to make it possible to do so. At the same time, the rules of court as they now exist are reasonable and necessary for the expeditious and orderly dispatch of the business of the court, and the judges will appreciate as strict a compliance therewith as is possible under the circumstances of each particular case, as their labors will be thereby greatly lessened.

The brief of the learned counsel for appellant contains 29 specifications of error, which we shall notice in their order of assignment.

1. One Salminen was called as a juror, and in response to questions by the county attorney said he was opposed to capital punishment; that if he believed from the evidence beyond a reasonable doubt, under the instructions of the court, that the defendant was guilty, and the punishment, or one of the punishments, that might be inflicted was death, he was not certain whether his prejudice would influence him in arriving at a verdict; that his reason was that he felt that taking the life of any human being was wrong and he would allow that idea to influence him in coming to a verdict. He was excused for cause on challenge by the state, and the defendant excepted. We are unable to sustain the exception. A defendant in a criminal action has no right to insist that any particular juror shall sit in his case. The extent at his right is that the cause shall be tried by an impartial jury. Const. Mont. art. 3, § 16. No complaint is made of the jurors who finally tried the case, so that his constitutional rights were not violated. State v. Jones, 32 Mont. 442, 80 P. 1095.

2 and 3. After the state's first witness had been sworn, the defendant objected to the introduction of any evidence under the information, for the reason "that he has not been given a preliminary examination and has not been committed by a magistrate to answer any possible charge in the district court, and no written application or written motion was made by the county attorney for leave to file this information." The overruling of this objection is assigned as error. There is no merit in the assignment. The transcript shows that a complaint was filed with a justice of the peace, charging Byrd with the murder of one Rasmus Hetland; that he was arrested, brought before the justice informed of his right to have a preliminary hearing, which he waived; and that he was bound over to the district court to answer to the charge of murder. Thereupon a commitment was signed and given to the sheriff. In view of the state of the record, we are somewhat in doubt as to the exact point intended to be made in the assignment. It is clear to us that a voluntary waiver of a preliminary hearing has the same legal effect as though a hearing had been had. Section 8927, Rev. Codes, reads thus: "Prosecutions in the district court must be by information: (1) In all cases where there has been an examination and commitment or admission to bail by a magistrate on a charge of crime; or (2) in any case where there has been no examination or commitment or admission to bail, upon leave granted by the court for that purpose." And section 8928 reads as follows: "Application for leave to file an information before an examination, commitment or admission to bail, must be made to the court on written motion, by the county attorney." It is only in cases where no examination and commitment have been had or made by a magistrate that it is necessary to apply in writing to the district court for leave to file the information.

4. There was no question but that Byrd shot and killed Hetland in front of Meyer's saloon, in the town of Joliet. He admitted the shooting. The witness Headington testified that he took a pistol from defendant's hand. He was unable positively to identify the one shown him at the trial, but said that it looked like the same gun. Over defendant's objection, it was admitted in evidence. No point was sought to be made as to the identity of the weapon, and no prejudice resulted to the defendant, so far as we can see, by its admission in evidence.

5. While Sheriff Bachelder, of Carbon county, was on the witness stand, he testified that when the defendant was brought to the jail he made a statement with reference to the shooting of Hetland. The witness was asked this question: "And were the statements he made, or any statement he made, freely and voluntarily made by the defendant or in reply to questions by yourself or any one else in your presence, or were they made as a result of any threats made by yourself or any one else toward the defendant and through fear on his part or a result of any hope or immunity or offers of reward? A. No, sir; none whatever. Q. You may state what those statements were." Counsel for defendant interposed this objection: "Objected to on the ground it does not appear whether these statements were made voluntarily or not. The witness answered the question, 'No, sir.' He might answer it in the negative and in the affirmative." The court overruled the objection, and the witness answered, "He told me he killed Erasmus Hetland, and said the only thing he was sorry of was his wife and family." We think the state made a sufficient prima facie showing that the statement was voluntary. When the defendant was on the stand, he did not deny making it, although his attention was called thereto. Under these circumstances, no prejudice resulted. See State v. De Hart, 38 Mont. 211, 99 P. 438.

6. Defendant at the trial relied upon a plea of self-defense to justify the killing. One witness, Chamberlain, testified that he witnessed the affair from across the street.

He said that Hetland threatened to assault and whip the defendant, and that the latter backed away as Hetland advanced toward him. On cross-examination he was asked this question: "Did you notice Byrd at that time, whether he appeared to be scared or not?" The state objected on the ground that the question called for a conclusion from the witness. The court sustained the objection. This was error. This court has repeatedly decided that such questions are proper, as calling for a "shorthand rendering of facts." State v. Lucey, 24 Mont. 295, 61 P. 994; State v. Tighe, 27 Mont. 327, 71 P. 3; State v. Vanella, 40 Mont. 326, 106 P. 364. But was the error prejudicial to defendant's rights? It ought no longer to be the rule in criminal cases in this state that, error being shown, prejudice will be presumed, as was held prior to 1895 when the Codes were adopted. The former practice resulted in altogether too many reversals of criminal cases for technical errors which did not affect the substantial rights of the defendant. Section 9415, Rev. Codes, provides: "After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties." It is for this court to determine whether an error affects the substantial rights of the defendant. If the point can be decided from an inspection of the record, the court may act accordingly; but it is the duty of the defendant who claims prejudice to make the record so show. In this case we have no means of knowing what answer would have been returned by Chamberlain to the question propounded. If he would have answered that he did not notice the defendant's appearance, or that the latter did not appear to be "scared," then the ruling of the court carried no prejudice. If, on the other hand, he was prepared to answer that the defendant appeared to fear the deceased, such testimony would have been material to the defendant, and its exclusion would undoubtedly have injured his case. It was within his power to place the trial court and this court in a situation to judge whether or not the answer to the question would benefit him, by offering to prove by the witness that the defendant appeared to be "scared." This he did not do. See State v. Gordon, 35 Mont. 458, 90 P. 173.

7. The witness Ray Willis testified that about three weeks before the shooting he had a conversation with the defendant, in which the latter said that Hetland had ordered him out of the mine, and, when witness asked if Hetland struck at him, he replied, "No, if he had I would have killed him." Witness suggested that, if defendant attempted to haul coal away from the mine, Hetland might waylay him. To this the defendant answered, "Well, I will kill him if he does," putting his hand to his pocket. On cross-examination the witness was asked how he...