State v. Colbert
| Decision Date | 06 December 1920 |
| Docket Number | 4589. |
| Citation | 194 P. 145,58 Mont. 584 |
| Parties | STATE v. COLBERT. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
James Colbert was convicted of murder, and from the judgment and order denying his motion for new trial he appeals. Judgment and order affirmed.
Canning & Geagan, of Butte, for appellant.
S. C Ford, Atty. Gen., and N. A. Rotering, of Butte, for the State.
The defendant was convicted of murder in the second degree. From the judgment and an order denying his motion for a new trial he has appealed.
The evidence introduced by the state showed that on the evening of December 5, 1918, the defendant and his brother were standing on the north side of East Park street near its intersection with Thornton avenue, in the city of Butte, when Patrick Foley, the deceased, came walking toward them. When he had approached to within 20 or 25 feet, the defendant without apparent cause or reason, drew an automatic pistol from his pocket and shot him. The deceased fell to the ground, dying a few minutes later. While he was lying on the ground, the defendant approached him, with the pistol presented, and stood pointing it at his head until apparently satisfied that he was dead. He thereupon turned to his brother, handed him the pistol, and turning away went directly to the sheriff's office and, after stating that he had killed the deceased, surrendered himself to this officer. As a defense, evidence was adduced to show that the homicide was due to an irresistible insane impulse induced by previous acts of the deceased toward the defendant which had continued over a period of several months prior to the homicide. These acts, defendant's evidence tended to show, were repetitions of the crime against nature committed upon the person of the defendant by the deceased.
The propriety of the conviction is assailed on the grounds that the court erred to the prejudice of the defendant in refusing to exclude testimony of the four witnesses Curtis, Rule, Couch, and Green, called in rebuttal by the state, and in submitting instructions to the jury.
There was evidence, which was not controverted, that during the afternoon of December 5, and some hours before the homicide, defendant purchased the pistol from a dealer; that thereupon, in company with his brother, he went in search of the deceased; that the deceased was a single man, a miner by occupation; that he occupied a room at a rooming house kept by Mrs. Nelson and obtained his meals at the Clarence Hotel, kept by Mrs. Irvine, both places being on Park street, a short distance east from the scene of the homicide; that the defendant and his brother, having sought the deceased at both these places but having failed to find him, were standing together at or near the intersection of the streets mentioned above, and were apparently waiting to meet the deceased while on his way from work to his room or boarding place; that in a few minutes the brother called the attention of defendant to the approach of the deceased and that the defendant thereupon drew his pistol and shot the deceased. Immediately before or after he fired the shot, he used the following expression, or one of similar import: "You will make no more trouble for me now."
The testimony of many witnesses, both laymen and experts, was introduced by the defendant, tending to show that the shot was the result of an irresistible impulse of momentary insanity induced by the sudden appearance of the deceased, coupled with the recollection by defendant of the unspeakable crimes which the deceased had perpetrated upon him. Some of the witnesses, including defendant's mother and sister, testified in detail as to the history of defendant's life and particularly as to his appearance and behavior during several weeks immediately prior to the day of the homicide, and also as to his apparent physical condition. These witnesses testified that his physical health was not good. Their testimony tended to show that he had grown sullen and moody, remained at home, neglected to go to his daily work in the mine where he was employed, abstained from food, and was afflicted at times with fits of weeping, for which he refused to give any explanation. The defendant himself testified as to the crimes perpetrated upon him, asserting that he was afraid of the deceased and that he avoided him as much as possible. In addition to expert medical testimony, the state introduced and examined several lay witnesses, whose testimony tended to show that defendant worked as usual up to two days before the homicide and that nothing unusual was observed by them in his conduct or physical condition. Among these was the witness Curtis, who was a shift boss in the Leonard mine at Butte. He testified that the defendant worked steadily in this mine from August 30 to September 26, doing contract work, which was more difficult than that which he did when working by the day. The witness Rule had known the defendant for 3 or 4 years. He testified that he himself was a saloon keeper; that the defendant and the deceased were frequently together at his place, were apparently friendly, and that he had never observed anything wrong with the defendant. The witness Couch testified that he had known the defendant for 13 or 14 years, from the time he was a small boy, and that he was always a good boy, so far as he knew. The witness Green testified that he had known both the defendant and the deceased during the year 1917 at Burke, Idaho, where they worked for the same employer as miners and lived together in a cabin. He had also known both in Butte during the year 1918 prior to the homicide, and stated that they were frequently together. The testimony of all these witnesses was admitted over the objection that it was immaterial and irrelevant. It is argued that this evidence was improperly admitted, in that it did not reflect in any way upon the mental condition of the defendant, and that it was prejudicial because it showed incidentally that defendant was in the habit of frequenting saloons. The several rulings were correct.
The testimony introduced by the defendant was competent. A wide discretion is vested in the trial court in ruling upon the admissibility of evidence in such cases. Every fact, including the conduct and habits of the accused and statements and declarations made by him, both before and after the homicide, which reflects in any way upon his mental condition, may be admitted for consideration by the jury, whether the particular fact or incident has any probative value because of its remoteness in time from the homicide being the guide by which its admissibility is to be determined. 1 Wharton & Stille's Med. Juris. § 326; 7 Ency. of Evidence, 449 et seq.; Commonwealth v. Pomeroy, 117 Mass. 143; Barnett v. State (Ala.) 39 So. 778; State v. Leakey, 44 Mont. 364, 120 P. 234; People v. Wood, 126 N.Y. 249, 27 N.E. 362; People v. Manoogian, 141 Cal. 592, 75 P. 177. For the same reason it was competent for the state to controvert the testimony of defendant's witnesses by evidence tending to show that the defendant was not, in fact, afraid of the deceased, but was on friendly terms with him, and that there was nothing unusual in his conduct or physical condition during the time with reference to which his witnesses testified. That the testimony of the witnesses in question incidentally disclosed that the defendant was in the habit of frequenting saloons did not affect its competency. The court should in every case carefully guard against the admission of evidence which tends to present collateral matters and thus prevent the real issue from becoming obscured. At the same time, evidence otherwise competent may not be excluded on the ground that it has an incidental tendency to disclose something to the defendant's discredit. State v. Shafer, 26 Mont. 11, 66 P. 463. But, if it be conceded, for the sake of argument, that the evidence should have been excluded because it tended to discredit defendant, it could not have wrought prejudice, for it appeared from the testimony of several of defendant's witnesses that he was in the habit of drinking and of visiting saloons for that purpose, and that upon one occasion he and his brother engaged in a fight with the deceased.
It is contended that the court erred in submitting to the jury the following instructions:
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