State v. Cates, 7224.

Citation97 Mont. 173
Decision Date20 June 1934
Docket NumberNo. 7224.,7224.
PartiesSTATE v. CATES.
CourtUnited States State Supreme Court of Montana

97 Mont. 173


No. 7224.

Supreme Court of Montana.

June 4, 1934.
Rehearing Denied June 20, 1934.

Appeal from District Court, Missoula County; Theodore Lentz, Judge.

William Clarence Cates was convicted of murder in the first degree, and he appeals.

Judgment affirmed.

E. F. Gummer, of Missoula, W. E. Keeley and W. T. Boone, both of Deer Lodge, and J. D. Taylor, of Hamilton, for appellant.

Raymond T. Nagle, Atty. Gen., C. J. Dousman, Asst. Atty. Gen., and Donovan Worden and D. N. Mason, both of Missoula, for the State.

ANDERSON, Justice.

The defendant by verdict of the jury was found guilty of murder in the first degree and by judgment of the court sentenced to be hanged. His motion for a new trial was denied, and this appeal is taken from the judgment and the order denying the motion.

The defendant admitted the homicide and attempted to justify it on the ground of self-defense.

The Missoula courthouse and the jail are the only structures located in a city block in the city of Missoula which is bounded on the west by Woody street. The courthouse is located approximately in the middle of the block; the jail in the northwest corner. About a quarter to 9 o'clock on the evening of July 21, 1933, an automobile was observed by witnesses for the state to proceed very slowly along Woody street in a northerly direction. When it reached a point about midway of the courthouse block, it stopped. The defendant was in the driver's seat in this automobile. Paul Reed, the deceased, was standing on the running board on the right-hand side of the car, with the front door open and with his head inside the doorway, so that it appeared to witnesses 75 feet distant from where the automobile stopped, and who were viewing it toward its left-hand side, as though two persons were occupying the front seat of the car. Shortly after it stopped-from a minute and a half to two minutes-two shots were fired within the automobile. The defendant then got out and proceeded along the left-hand side of the car to the rear. The deceased had proceeded to the rear right-hand corner of the automobile. When the defendant came around the rear end of the car, according to five witnesses who testified on behalf of the state, the deceased started to run in a crouching position toward the courthouse, and defendant shot at him while deceased was thus running with his back turned toward the defendant. At a point 59 feet from the automobile the deceased fell to the ground. The defendant returned to his seat in the car, sat down, and immediately got out again. In the meantime he was approached by the witness Harlow, a constable, who placed him under arrest. The sheriff, who was walking from the jail, took charge of defendant. At all times after defendant first left the automobile he had a .38-caliber automatic pistol in his hand. Some of the witnesses for the state testified to having heard three shots only; others testified to having heard four. Subsequently that evening three empty shells were found in close proximity to the automobile and a fourth on the front seat, the shells being identical in size and make with those found in the clip of defendant's pistol. The deceased was removed in an ambulance to a hospital, where he died on the night of the shooting, at about 11 o'clock. He was suffering from two bullet wounds. Following his death, Dr. Thornton performed an autopsy on his body. As a witness he testified concerning the result of the autopsy, with reference to the wounds.

The deceased, immediately after falling on the courthouse lawn, complained of something hurting him. In his hip pocket a witness found a flash-light, which was removed. The witness Harlow made the following inquiry of the deceased, “Paul, where is your gun?” to which deceased responded, “I didn't have any.” At the time in question the deceased was, and for some time prior thereto had been, a prohibition enforcement officer.

Witnesses testified as to their making a search for a gun around the defendant's automobile and on the courthouse lawn where the shooting occurred, and testified that none was found. In his right hand the deceased had keys which, while in the ambulance taking him to the hospital, he delivered to one of the witnesses, and which were found to be the keys to the defendant's car. An examination of the car, by removing the lining on the inside of the right-hand front door, revealed that a bullet had passed through the lining, but had not passed through the metal portion of the door. A bullet was found lying inside this lining in the door. A further examination of the car revealed that a bullet had passed through a portion of the post between the rear door and the window back of the rear door on the right-hand side of the car and through the glass of the window. Witnesses testified that from the appearance of the bullet hole through the window they were able to determine that the bullet had passed from the inside of the car out, rather than from the outside in.

The defendant testified that for some time he had been engaged in the business of “boot-legging” and had paid a fine for the violation of both the national and state prohibition laws; that for some time prior to the homicide he had been paying to the deceased the sum of $50 a month, and that at the time of the shooting he owed the deceased under this arrangement $120; that on the evening in question, in response to a solicitation over the telephone, he left his home about 8:30 and went into the alley to the rear of the Oxford pool hall; that he walked down the alley from his car, came back and went into the back door of the Oxford, but did not see the man who had called him on the telephone; that he then discovered sitting in the front seat of the car a pasteboard carton which contained within it a paper bag, and inside the bag a jug of moonshine whisky; that he started to back his car out of the alley, and at this point the deceased opened the car door and turned his flashlight in the defendant's face; that the deceased had a gun in his hand and said to defendant, “Back out of here”; that deceased did not tell defendant that he was under arrest and did not look into the car for anything; that from this point on the deceased directed him in the movement of his car. He testified further that deceased demanded $100, and that he (defendant) protested that he had less than $10 in his pocket, and that he had to remove his wife from the hospital that morning because of lack of funds to keep her there; that the deceased said, “We will go to the sheriff's office,”to which the defendant responded, “That is fine with me. But you remember you took money from me before my wife and kid.” Defendant then testified that deceased then said, “What are you going to do? Are you going to come through with this?” to which defendant responded that he could not come through and had nothing to come through with; that defendant then said, “We will go to the sheriff's office and I will tell them what you are pulling,” to which deceased replied, “I can kill you and say you were resisting arrest,” at which point, defendant states, the deceased struck at him with the gun, and that he caught it. The defendant testified that, after the car was stopped, the deceased struck at him; that defendant grabbed his own gun and shot from the seat as the deceased was backing out of the car; that, when the deceased stuck up his head along back toward the rear of the car, the defendant threw up the gun and snapped back there; that defendant walked around toward the back of the car; and that the deceased was down by the rear wheel and “had his gun in his hand pointed toward the front right door of the car that was open, and as soon as I seen him I shot him.”

The witness Frazier testified on behalf of the defendant that at the intersection of Broadway and Woody street, about half a block from the scene of the shooting, he saw Cates driving his car; that there was a man whom he did not know standing on the running board and leaning in the car; that the man had something in his hand; that “it looked like a gun to me; I took it to be a gun apparently pointed within the car.”

Florence Hoffman, a 16 year old girl, came down Woody street between 8:30 and 9 o'clock and noticed a large crowd assembled around the courthouse lawn. She testified that her escort, a soldier at Fort Missoula, who was since discharged from the Army and had departed to parts unknown, went over to the crowd to see what was happening, and that as he went over to the crowd “a gentleman walked across the street, and he stooped down and picked up something that resembled a gun.”

The remaining facts will be discussed in connection with the treatment of the specifications of error.

The court instructed the jury as to the degrees of murder and manslaughter, and with reference to the law of self-defense.

The defendant contends that on the trial of this case the corpus delicti was not proved. It is his contention that there was no proof, or at least insufficient proof, to establish that the deceased died as a result of the bullet wounds which he received on the night in question. On the trial of a murder or manslaughter case it is incumbent upon the state to prove the fact of the death of the deceased by direct evidence, and the fact that death came about through a criminal agency, by direct or circumstantial evidence, but beyond a reasonable doubt. Section 10962, Rev. Codes 1921; State v. Kindle, 71 Mont. 58, 227 P. 65;State v. Riggs, 61 Mont. 25, 201 P. 272;State v. Dixson, 80 Mont. 181, 260 P. 138.

The wife of the deceased testified that she was at the hospital following the removal of the deceased thereto, and remained with him until his death, which occurred after 11 o'clock and before midnight of the day in question. Dr. Thornton testified that the day following he performed an autopsy on the body of the deceased. He said that the subject was a strong, healthy appearing male from thirty to...

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