State v. Calder

• Decision Date: 29 January 1900
• Citation: 59 P. 903,23 Mont. 504
• Parties: STATE v. CALDER.
• Court: Montana Supreme Court

59 P. 903

23 Mont. 504

STATE v. CALDER.

Supreme Court of Montana

January 29, 1900

Appeal from district court, Fergus county; Dudley Du Bose, Judge.

William Wallace Calder was convicted of murder. From an order denying a new trial, be appeals. Affirmed.

O. F Goddard and Wm. E. Cort, for appellant.

C. B Nolan, for the State.

PIGOTT J.

William Wallace Calder was tried upon an information charging him with the murder of one Farquhar MacRae on the 24th day of September, 1898, at the county of Fergus. The jury having found him guilty of murder in the first degree, as charged he was sentenced to be hanged. Upon the 25th day of May 1899, his motion for a new trial was denied, and he appeals.

1. The first specification of error is directed to the action of the district court is permitting the county attorney, on the day next before the beginning of the trial, to indorse upon the information the name of one James Calder, an important witness for the state. To the request for leave to indorse the name of this witness, the defendant objected; but the objection was overruled, and the name indorsed, the defendant excepting. At the common law the names of the witnesses are not required to appear upon the indictment or information. It is only by virtue of the statutes that such necessity exists. Section 1813 of the Penal Code provides that the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment, or indorsed thereon, before the indictment is presented to the court, but that a motion to set it aside, interposed under section 1910 of the Penal Code, shall be denied if the names be indorsed prior to the disposition of the motion. Under the statute as it existed from 1891 to July 1, 1895, the prosecuting attorney was commanded to indorse upon the information, at the time of its filling, the names of the witnesses then known to him, "and at such time before the trial of any case, as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him." Laws 1891, p. 250, § 3. Section 1734 of the Penal Code of 1895, which is the law applicable to the present case, differs from the statute of 1891 only in this: that section 1734 omits the provision contained in the former statute requiring the names of witnesses discovered after the filling to be indorsed upon the information; and, of course, necessity does not new exist for the indorsement of the names of witnesses discovered subsequently to the filing. But the requirement that the names of witnesses for the state then known to the attorney prosecuting must be indorsed upon the information at the time it is filed is common to both. It is manifest, therefore, that neither by the statute of 1891 nor by section 1734 is there expressly given to or recognized in the court the privilege of permitting the names of witnesses known when the information was filed to be indorsed thereafter. In State v. Black, 15 Mont., at pages 151 and 152, 38 P. 676, 677, decided under the statute of 1891, it was held, in substance, that the trial court did not err in permitting the name of such witness to be indorsed at the opening of the trial. This rule we affirm, and apply to case at bar. The purpose sought to be accomplished by section 1734 is apparent. It is to advise the defendant of the witnesses known at the time the information is filed,--and these are usually the most important, --whom the state intends to call against him, so that he may have opportunity to make inquiries in respect of the witnesses, and otherwise prepare himself for meeting their testimony. If the witnesses are then known to the county attorney, his duty is to indorse their names at the time the information is filed. Such is the command addressed by the statute to that officer, but it does not attempt to limit the exercise of the court's discretion, or define the duty of the court. The contention of the defendant is that if the county attorney, even by inadvertence or mistake, omits from the information, when filed, the name of a witness then known to him, the name never can properly be indorsed, and the state must be deprived of the testimony which the witness would give had his name been indorsed. The contention is untenable, for the court may permit the indorsement to be made after the information is filed, as was held in State v. Black, supra. In the case at bar the objection to the granting of the leave asked was general, no ground being stated in its support. The transcript fails to disclose that a showing was made at the time that James Calder was known to be a material witness when the information was filed, although the witness, when testifying thereafter, incidentally stated that he had imparted to the county attorney the facts touching the defendant's connection with the murder. But, for aught that appeared when the objection was interposed, the witness was not known to the county attorney at the time the information was filed, and for this reason the objection was properly overruled. Every reasonable intendment is in favor of the action of the trial court; the burden of establishing error is upon him who assails the ruling; and, since the court might with propriety permit the indorsement to be made after the filing, the presumption is conclusive, in the absence of proof to the contrary, that its action was correct. It is argued that the uncontradicted assertion of the witness made during the trial ought to have been accepted by the court as proof of such knowledge by the county attorney; but, conceding this, either of two answers is sufficient: First, the proof should have been adduced at the time of the objection; secondly, no effort was made to show that the name of the witness had been purposely withheld from the information. We express no opinion in respect to the right course for the court to take where it appears that the omission of the indorsement at the time of filing was in bad faith; but we do hold that in all other cases the court should permit the indorsement upon the information of the names of witnesses who were known to the county attorney at the time it was filed, and in such cases the defendant would-be entitled, upon timely application and showing, to a reasonable delay of the hearing to enable him to meet the testimony of the witnesses whose names were put upon the information after it had been filed. In the present case, however, no application or showing whatever was made. These views are, in part, at least, supported inferentially or directly by State v. Cook, 30 Kan. 82, 1 P. 32; State v. Bokien, 14 Wash. 411, 44 P. 889; and State v. Black, supra. The first specification is without merit.

2. The principal points made by the defendant are that the death of MacRae was not sufficiently proved by direct evidence, and that the evidence, aside from the testimony of the accomplice, did not tend to connect the defendant with the commission of the offense. He insists that there was no evidence which without the aid of the testimony of the accomplice, tended to prove guilt. It is argued that the corpus delicti was not established, and that the evidence in corroboration of the accomplice was not of such character and force as to warrant the submission of the case to the jury.

Section 3108 of the Code of Civil Procedure defines "direct evidence" as "that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if true, conclusively establishes, that fact. For example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct." Section 358 of the Penal Code provides the "no person can be convicted of murder of manslaughter unless the death of the person alleged to have been killed, and the fact of the killing by the defendant as alleged, are established as independent facts; the former by direct proof and the latter beyond a reasonable doubt." Section 2089 of the Penal Code is as follows: "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof."

We assume, as did the attorney general in his brief and argument, that James Calder was unquestionably a confederate of the defendant in committing the murder of which the latter was accused. James Calder, a brother to the defendant, and an accomplice in the crime of which the defendant was convicted, was the principal witness for the state. His story is, in brief, the following: The defendant, aged 25, and witness, aged 19, lived with their mother and stepfather, Smith, on Flatwillow creek, in Fergus county, about 16 miles from the Musselshell river. One James Eli Fisher, aged 21 or 22, was visiting the brothers, MacRae was a ranchman, and had a flock of about 1,700 sheep, one-half of which belonged to one Hildebrand. In the employ of MacRae was sheep herder named Allen. MacRae and Allen occupied a cabin distant 1 1/2 or 2 miles from the home of the defendant. The country thereabouts is sparsely populated, there being but four families in a radius of as many miles, and is but little traveled. On the afternoon of Saturday, September 24, 1898, the brothers and Fisher, armed with two guns, went hunting. After they had gone about a mile the defendant laid before his brother and Fisher "a scheme" to make money, and proposed that the three kill MacRae and Allen and steal the sheep; suggesting that their possession of the sheep could be...