State v. Byrne
| Decision Date | 20 June 1921 |
| Docket Number | 4725. |
| Citation | 199 P. 262,60 Mont. 317 |
| Parties | STATE v. BYRNE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Steve Byrne was found guilty of murder in the first degree, and from a judgment entered on the verdict and the action of the court in overruling his motion for a new trial, he appeals. Judgment and order affirmed.
Joseph J. McCaffery and Frank J. Sullivan, both of Butte, for appellant.
Wellington D. Rankin, Atty. Gen., L. A. Foot, Asst. Atty. Gen., and N A. Rotering, of Butte, for the State.
On the 10th day of December, 1919, the county attorney of Silver Bow county filed an information against the defendant, Steve Byrne, and three others, charging them with the crime of murdering Sylvester J. Prenatt on the 9th day of December 1919. The defendant, the appellant herein, was given a separate trial, which resulted in a verdict of guilty of murder in the first degree, the jury fixing the punishment at death. From the judgment entered on this verdict and from the action of the court in overruling the defendant's motion for a new trial, these appeals are taken.
From the evidence introduced by the state, it appears that the deceased was assaulted by several men in his house at No. 1717 B street in the city of Butte, at about the hour of 2 o'clock on the morning of December 9, 1919, and was so badly injured that he died some two hours thereafter. The relation of the defendant to the tragedy, as appeared from this evidence, may be briefly traced.
On December 5th of that year, the defendant, in company with three others, went in a car to the vicinity of deceased's residence and drove around. At about 1 o'clock on the morning of December 8th, the defendant, with three others, drove to the vicinity of the deceased's house, the defendant Byrne directing the driver where to go, and about 1 o'clock on the morning of December 9th, the defendant and one other were driven to the vicinity of the deceased's residence, one of the men at the time wearing a cap. The defendant Byrne again directed the driver where to go. As they neared the place another car passed them, when, by direction of defendant, the driver turned the car, drove to a certain place, and stopped, when defendant and the other man got out of the car, defendant giving the driver direction where to wait with the car, about a block away. Soon after that, defendant came back to the car hurriedly, bareheaded, his left thumb bleeding, and said: "We got in a scrap." Getting in the car, he was driven to the Moose Block. The driver also heard shots just before defendant returned to the car. The testimony relating to the occurrences at the house is to the effect that Mrs. Prenatt heard knocking at the kitchen door, and, upon asking who was there, some man's voice replied: "A friend of Mooney's." Mr. Prenatt had previously worked for a man by the name of Mooney.
Mrs. Prenatt did not open the door, but while she was hurriedly dressing the deceased awoke, and was told by Mrs. Prenatt that a friend of Mooney's was at the door. Making some remark about that being funny, Prenatt arose from his bed, got a pistol from the drawer, and after some few minutes went to the door, opened it, and, seeing the men there, called to his wife that it was a holdup, and tried to shut the door; but the man on the outside crowded the door open, and the leading man struck Prenatt over the head with something, and the shooting then began. The two men whom Mrs. Prenatt saw entering the room wore masks. Mrs. Prenatt ran out of the front door, when some one standing outside fired three shots at her. She saw three men running out of the kitchen. The smaller man was bareheaded, and one of the men remarked: "Jesus Christ, we have killed him." One of the other men said: "Yes, and he got me." The men were laughing. She entered the room and attempted to call assistance by phone, but could get no response; and it subsequently developed that the telephone wires had been cut. The ladder was still standing by the side of the house. The doctor and other assistance arrived, and on examination it was found that the blow Prenatt had received on the head had broken the outer tablet of the skull, that he had been shot once through the hand, and one shot had entered his left breast, ranging upward, lodging in his neck. He was found lying on the floor with a black cap under his head. The bullet was extracted from the neck; other bullets were found in the room where the shooting occurred.
About 8 o'clock on the morning of the 9th of December, the officers went to the Moose Block, to room No. 4, supposed to be occupied by the defendant, but received no response to their knocking on the door. One of the officers looked through the transom and saw a man lying on the bed, but he would not respond to their calls; and one of the officers then raised the transom, got into the room, unlocked the door from the inside, then discovered that the man on the bed had disappeared. There was a door there leading to another room, No. 5. The officers went into the hall and demanded entrance to room 5, but, receiving no response, broke in the door, but saw no one. On searching the bed, however, they found the defendant lying on the springs under the mattress. And in searching the room they found in a drawer one pistol with five empty shells in it, and another pistol with one empty shell. A pair of gloves was also found in a bureau drawer in room No. 4. The thumb of the left glove was moist.
A statement alleged to have been made by defendant was put in evidence, in which he says that they went out to this place to get $8,000 worth of whiskey "which we supposed he had stolen, and we were going to steal it from him." He also admitted that he had no right out there, that some of the men with him were masked and carried guns, but that he himself was not masked. He also testified that the deceased was struck over the head, but that he himself did not do it, and that he had been shot once by the deceased and once by one of his companions. Shells were found at or near the place where the man stood who shot at Mrs. Prenatt. A map made by the county surveyor, illustrating the place of the tragedy and the surrounding country, was also introduced in evidence. Bullets were also found either on the floor or imbedded in the wall or furniture of the room where the tragedy occurred.
At the trial of the case, the portion of the skull showing the injury thereto, also the bullet taken from the deceased's neck, the map of the premises, the bullets found in the room where the shooting occurred, the cap found there, the guns and the gloves found in the room where the defendant was arrested, and the shells found at the point where the man stood who had fired at Mrs. Prenatt, were all admitted in evidence over the objection of the defendant, who assigns error by reason thereof.
"Articles which are shown by the evidence to be connected with the crime, or which serve to unfold or explain it, may be exhibited in evidence, provided they are properly identified," and provided there has been no "substantial change" in them.
And it is not error to admit in evidence the skull, or portions thereof, of the deceased in a homicide case, when, as in the present case, the same was in effect a part of the testimony of the physician, and was necessary to illustrate the character and extent of the injuries, and it appears here that the injury to the head caused by the blow and the injury caused by the shooting were inflicted at the same time and by the same parties. The court did not err in admitting Plaintiff's Exhibit C, being a portion of the skull of the deceased. Territory v. Lobato, 17 N.M. 666, 134 P. 222, L. R. A. 1917A, 1226; State v. Bailey, 79 Conn. 589, 65 A. 951; Thrawley v. State, 153 Ind 375, 55 N.E. 95, 99; State v. Teale, 154 Iowa, 677, 135 N.W. 408, 410; McElwaine v....
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