State v. Crean

• Citation: 114 P. 603,43 Mont. 47
• Parties: STATE v. CREAN.
• Decision Date: 13 March 1911
• Court: United States State Supreme Court of Montana

114 P. 603

43 Mont. 47

STATE v. CREAN.

Supreme Court of Montana

March 13, 1911

Appeal from District Court, Jefferson County; Lew L. Callaway Judge.

Cornelius Crean was convicted of manslaughter, and he appeals. Affirmed.

J. E Healy and M. F. Canning, for appellant.

Albert J. Galen, Atty. Gen., and J. A. Poore, Asst. Atty. Gen., for respondent.

HOLLOWAY J.

The defendant was charged by an information with the crime of murder in the first degree, convicted of manslaughter, and has appealed from the judgment and from an order denying him a new trial.

1. The first assignment argued in the brief of counsel for appellant is that the information does not support the judgment. Briefly paraphrased, the information charges that the defendant unlawfully, feloniously, willfully, premeditatedly deliberately, and of his malice aforethought shot and killed Emil Martilla, a human being. This sufficiently charges murder as defined in section 8290, Revised Codes. State v. Hliboka, 31 Mont. 455, 78 P. 965. But it is urged that manslaughter is not necessarily or at all included in the crime of murder under our Code, and that section 9326, Revised Codes, cannot apply to a case of this character. The test to be applied under statutes similar to the last one mentioned above is: Does an information in describing the greater offense necessarily contain all the essential elements of an information for the lesser? "Murder is the unlawful killing of a human being, with malice aforethought." Section 8290. "All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing *** is murder of the first degree," etc. Section 8292. "Manslaughter is the unlawful killing of a human being without malice. ***" Section 8295. The information before us clearly charges the unlawful killing of a human being, and, stripped of the terms used to convey the idea of deliberation, premeditation, and malice, sufficiently charges manslaughter. That murder in the first degree, as defined in our Code, necessarily includes manslaughter, is recognized generally. State v. Nielson, 38 Mont. 451, 100 P. 229; Pigg v. State, 145 Ind. 560, 43 N.E. 309; People v. Dolan, 9 Cal. 576; People v. Muhlner, 115 Cal. 304, 47 P. 128; 22 Cyc. 469.

2. Concerning Martilla, a witness for the state was asked: "What time did he die?" An objection by counsel for the defendant was overruled. The evidence showed that Martilla was shot at Comet, in Jefferson county, but died in Silver Bow county. The information charges that he was shot and that he died in Jefferson county; and it is claimed that there is a material variance between the pleading and proof. While the objection to the question asked does not raise the question of variance, yet, assuming that it does, there is not any merit in the contention made. Section 9020, Revised Codes, provides: "The jurisdiction of a criminal action for murder or manslaughter, when the injury which caused the death was inflicted in one county, and the party injured dies in another county, or out of the state, is in the county in which the injury is inflicted." Having properly laid the jurisdiction of the offense in the county where the fatal shot was fired, it was unnecessary to allege where the deceased died, and the allegation that he died in Jefferson county may be disregarded as surplusage. A variance within the meaning of the term as applied to criminal law refers to a disagreement between the allegations in the information and the proof, with reference to some matter which is legally essential to the charge. 22 Cyc. 450.

3. Instruction 32, given by the court, cannot be commended; but, generally speaking, it is in substance the same as the definition of reasonable doubt given in Commonwealth v. Webster, 5 Cush. 320, 52 Am. Dec. 711, approved in Territory v. McAndrews, 3 Mont. 158, and followed in many later cases. One paragraph in the instruction is criticized as assuming a fact in dispute. It follows: "A juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjecture, as to a possible state of facts different from that established by the evidence." It seems to us, however, plain enough that by this instruction the court meant merely to remind the jurors that they could not go outside of the evidence introduced in search of something upon which to base a reasonable doubt of defendant's guilt, and that the jurors must have so understood.

4. In instruction 33 the court gave section 9282, Revised Codes, as follows: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." And this was followed by instruction 34, which reads: "As to the amount of evidence necessary to be introduced by the defendant so as in law to mitigate, excuse, or justify the homicide, you are instructed it must be at least sufficient to create in the minds of the jury, upon a consideration of all the evidence in the case, a reasonable doubt." It is urged that in instruction 34 the court in effect told the jury that the burden of proof was upon the defendant. The commission of the homicide by the defendant was proved; in fact, it was tacitly admitted at least by the defendant himself. The defense sought to be made was that the killing was justifiable. The evidence on the part of the prosecution tended to show that the killing amounted to murder. Therefore, under section 9282 above, the burden was upon the defendant to prove circumstances of mitigation or that justified or excused the killing (Territory v. McAndrews, above), and in instruction 34 the court correctly told the jury that the quantum of proof thus imposed upon the defendant was such only as upon the whole case made would raise a reasonable doubt of his guilt. People v. Bushton, 80 Cal. 160, 22 P. 127, 549; 21 Cyc. 1014, and cases cited.

5. At the trial defendant tendered his instruction No. 5, as follows: "You are instructed that the presumption of innocence is not an idle form. It is a fundamental and important part of the law of the land, and should not at any stage of your investigations be lost sight of or ignored; and, unless your minds are convinced of defendant's guilt to a moral certainty, and to the exclusion of all reasonable doubt as to his innocence from all the evidence adduced in this cause and considered by you, as well as that of the defense, you must find the defendant not guilty." The instruction was refused, and error is predicated upon the ruling. In instruction No. 2, given, the court charged: "No presumption is raised by the law against him [defendant], but every presumption of law is in favor of his innocence, and in order to convict him of the crime charged against him, or of any lesser offense included therein, every material fact necessary to constitute such crime, or any lesser offense included therein, must be proven by the state by competent evidence beyond a reasonable doubt; and if the jury entertain a reasonable doubt upon any fact or element necessary to constitute the crime charged, or any lesser offense included therein, it is your duty to give the prisoner the benefit of such doubt and acquit him." We think this instruction fully covers the subject-matter of defendant's requested instruction No. 5 above. "It is not error to refuse to give instructions asked for, however correct or applicable, if they have in substance already been given in the charge of the court." Territory v. McAndrews, 3 Mont. 158; State v. Martin, 29 Mont. 273, 74 P. 725.

6. Upon the trial, the dying declaration of deceased was offered in evidence. Counsel for the defendant requested the court to excuse the jury pending a determination as to the admissibility of the declaration. This the court refused to do. Whether the jury should or should not be excused during the preliminary inquiry was a matter entirely within the sound discretion of the trial court, and, in the absence of any showing of abuse of that discretion, the ruling will be affirmed. 5 Wigmore on Evidence, p. 137; 21 Cyc. 985. It is urged, however, that the declaration was inadmissible (1) because there was no preliminary proof that deceased at the time of making it was in articulo mortis; and (2) that the declaration itself does not show that the deceased had abandoned all hope of recovery. Prior to offering the declaration, the state had shown that Martilla's wound was such that it would necessarily be fatal; that the declaration was made on July 30th; that Martilla died on August 2d; that the declaration was made in the presence of the county attorney of Silver Bow county and other witnesses was reduced to writing, read over to Martilla and signed by him. A part of the declaration reads as follows: "Q. Have you given up all hope of recovery? Have you given up all hope of getting well? You expect to die, do you? A. Oh, yes. Q. You don't think there is any chance for you to get well? A. No; I don't. Q. No chance at all? A. No. Q. Do you believe in a Supreme Being--in a God? Do you think you will have a hereafter? A. Yes, sir. *** Q. And the statement you make is true, is it? A. Yes, sir. Q. You realize that you must tell the truth on an occasion of this kind, do you? A. Yes, sir; I tell the truth. Q. When you die, you expect, then, that you would be punished if you are not telling the truth--is that the idea?...