State v. Campbell

CourtUnited States State Supreme Court of Montana
Citation146 Mont. 251,405 P.2d 978
Docket NumberNo. 10792,10792
Parties, 22 A.L.R.3d 824 The STATE of Montana, Plaintiff and Respondent, v. Joseph R. CAMPBELL, Defendant and Appellant.
Decision Date02 September 1965

Page 978

405 P.2d 978
146 Mont. 251, 22 A.L.R.3d 824
The STATE of Montana, Plaintiff and Respondent,
Joseph R. CAMPBELL, Defendant and Appellant.
No. 10792.
Supreme Court of Montana.
Sept. 2, 1965.
Rehearing Denied Oct. 15, 1965.

Forrest H. Anderson, Atty. Gen., Alfred Coate (argued), Helena, Chester L. Jones (argued), Virginia City, Carl M. Davis (argued), County Attys., Dillon, for respondent.

DOYLE, Justice.

This is an appeal from a judgment of conviction of murder in the first degree entered upon a jury verdict and from an order denying a new trial. The defendant received a sentence of life imprisonment.

The information charged the defendant with the murder of one Margaret Seyler. It was filed in Madison County where [146 Mont. 254] the alleged crime occurred. The trial was held in the bordering County of Beaverhead.

The deceased was a 36 year old widow, the mother of five children. The defendant and the deceased were involved in a romance and had been engaged to be married. The evidence indicates, however, that there had been a deterioration of this relationship during the last few months before her death. Violent arguments had arisen between them. Witnesses had seen the defendant strike the deceased. She had, on a number of occasions, gone to the house of a friend during the night. On one such occasion her lip was swollen and bleeding. She had ceased to wear an engagement ring given her by the defendant. Three days before the tragedy they were observed quarreling on a public street.

Page 981

The deceased worked as a waitress at the Blue Anchor Bar and Cafe in the town of Twin Bridges. The Blue Anchor is bordered on the front by the main street of Twin Bridges, which is also Montana Highway 41. An alley lies at the side of the establishment and intersects the main street. It was the defendant's practice to enter the cafe late at night when the deceased was on duty and have a cup of coffee. On the night of August 31, and early morning of September 1, 1963, the deceased was to get off work at 1:00 o'clock in the morning. Actually she worked a short while past that time. She then sat down for coffee with another waitress and the cook. Both the waitress and the cook testified that while they were having coffee, they observed the defendant walking past the Blue Anchor and looking in the window of the cafe. This occurred at about 1:25 a. m. The waitress testified that she had seen the defendant's car parked in front of the Blue Anchor that night, but that it was no longer there at this time.

Somewhere around 1:30 a. m. the deceased left the Blue Anchor carrying a can filled with food scraps for her dog. She had parked her car in a wide spot in the alley next to the Blue Anchor.

At 2:15 in the morning, Charles Whitney, Twin Bridges town [146 Mont. 255] marshal, parked his car on the main street near the Blue Anchor. He detected someone calling his name. Following the voice he found the defendant, lying on the ground in front of the deceased's car, with two bullet wounds in his chest. Whitney testified that the defendant said 'Where is Margaret, go find Margaret.' Whitney, knowing this to mean the deceased, entered the Blue Anchor in search of her. While there he told the occupants of his discovery. John Gornick, who had played the drums in the bar that night, upon hearing the news, went out into the alley. Angel Wright, who had tended bar, followed close behind. Both heard the defendant say 'Where is 'margaret?' and then 'Margaret's in the car.' Turning to the deceased's car, Gornick found her sitting upright in the passenger seat, dead of a gunshot wound through the heart.

The defendant's car was parked parallel to that of the deceased, thirteen feet away from it. A .22 calibre pistol, testified to as being identical to one owned by the defendant was found against a board fence a few feet from where he lay. Bullets removed from both parties were declared by a ballistics expert to have fired from the same type of weapon. The testimony indicated that the defendant generally kept the gun in the jockey box of his car. A son of the deceased had seen it late that August lying on the seat of the defendant's car.

When the deceased was discovered, the doors to her car were closed and the windows rolled up. The bullet that killed her entered her body about midway on the left chest and traveled diagonally across the body toward the back right chest. The testimony indicated that, holding a gun in her right hand, she could not have inflicted such a wound upon herself. The testimony established that the deceased was right handed. During the course of its flight, the bullet penetrated both the pericardial sac which surrounds the heart and the aorta. The pericardial sac filled with blood instantly. This, according to the physician who performed the autopsy, caused almost immediate death. It would be 'highly unlikely', he said, that one could [146 Mont. 256] inflict such a wound upon oneself, throw the gun out of the car and close a door.

There were no signs of a struggle within or without the car. The can of dog scraps was sitting neatly between the deceased's feet. There were no marks on her body other than the single bullet wound. It had rained some that night, yet the terrain around the death scene was virtually undisturbed.

The bullets that hit the defendant were fired at close range, probably from within an inch of his body. They entered the

Page 982

left chest about two inches apart, just above the nipple. They traveled toward the left side of the body and slightly downward. Their flight was parallel. An expert in forensic medicine testified that these facts indicated a suicide attempt. For another party to have inflicted the wounds, he would have had to have stood above the defendant and fired downward. Further, the expert testified, a person being shot from such a short distance almost certainly would have attempted to resist; would have done something involving body movement between shots. Because of this it is almost inconceivable that the bullets would have been fired from the same distance and taken parallel courses. On the other hand a right-handed person, as the defendant was, could have fired two shots such as these into his own body.

On this appeal defendant-appellant sets forth thirty-two specifications of error and groups them into separate arguments which shall provide the format for this opinion.

His first contention is that there was insufficient evidence of deliberation and premeditation to support the verdict; that the State must establish these elements to sustain a conviction of murder in the first degree is not disputed. State v. Gunn, 85 Mont. 553, 281 P. 757. However, deliberation and premeditation may be inferred from the facts and circumstances attending the killing. State v. Cates, 97 Mont. 173, 33 P.2d 578. In this case there was, if believed, substantial evidence pointing to a conclusion that there was deliberation and premeditation on the part of the defendant. The fact that the engagement [146 Mont. 257] between the defendant and the deceased appeared to be experiencing turbulent times, perhaps had been broken off altogether; that they had been seen arguing a few days before the tragedy; that on the fatal night the defendant was seen peering into the cafe; that he did not come into the cafe, contrary to his practice; that his car was observed in front of the cafe and was later found parked at the side of the Blue Anchor next to that of the deceased; that there were no signs of a struggle; that the defendant's gun was missing from the place where he kept it and a gun similar if not identical was found on the ground near him; that it, without doubt, delivered the fatal wound; all of these facts and others adequately support the jury's conclusion that there was deliberation and premeditation.

Next, it is alleged that the instruction defining premeditation as 'thought of beforehand for any length of time, however short' was erroneous. It is argued by the defendant that this is a paraphrasing of the legal concept to the effect that premeditation and deliberation can occur in the same instant that the fatal act is committed. He maintains that the better view is that the killing is deliberate and premeditated only if it results from real and substantial reflection over a period of time and that the jury should have been so instructed. It is our opinion that deliberation and premeditation in an instant is not involved in this case. The evidence, related above, which tended to prove these elements, refers to occurrences and actions which took place a substantial period of time before the shooting. Almost all of the facts indicate that deliberation and premeditation occurred before the deceased ever left the cafe. Only the procurement of the weapon might have happened after that. Even then, it would have taken several seconds for the defendant to get the pistol from his automobile and go to the deceased's car to shoot her. The physical facts in evidence indicate however, this too transpired before she came out of the cafe. There is nothing to suggest that this crime occurred upon a sudden quarrel or heat of passion. Everthing in the State's case points to a 'lying in wait'; to a decision to kill some considerable[146 Mont. 258] time before it was carried out. If the jury found, as they did, that there was deliberation and premeditation, then the defendant is guilty under either theory. Therefore, the instruction even if it be assumed to be error as embodying the

Page 983

'formed in an instant' rule, was not prejudicial.

The third question on this appeal is: Can opinion evidence on the subject of whether a wound was or was not self-inflicted be admitted? This topic is well covered by an Annotation at 56 A.L.R.2d 1447. It is revealed there that fourteen states and England have answered this question yes. Ibid. at 1449. Seven jurisdictions have held in the negative....

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