State v. Crighton

• Decision Date: 07 July 1934
• Docket Number: 7257.
• Citation: 34 P.2d 511,97 Mont. 387
• Parties: STATE v. CRIGHTON.
• Court: Montana Supreme Court

34 P.2d 511

97 Mont. 387

STATE v. CRIGHTON.

No. 7257.

Supreme Court of Montana

July 7, 1934

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Donald Crighton was convicted of assault in the second degree, and he appeals.

Reversed and remanded for a new trial.

John B Tansil, F. A. Lamb, and Brown, Wiggenhorn & Davis, all of Billings, for appellant.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and Philip Savaresy and C. W. Demel, both of Billings, for the State.

CALLAWAY Chief Justice.

This is an appeal from a judgment convicting the defendant of assault in the second degree, and from an order denying his motion for a new trial.

So far as applicable here, the statutory definition of an assault in the second degree is, that every person who "3. wilfully or wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or, 4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm *** is guilty of an assault in the second degree. ***" Rev. Codes 1921, § 10977.

1. The information originally charged that one Ronald Crighton, on or about the 21st day of October, 1933, "at the county of Yellowstone, State of Montana, committed the crime of assault in the second degree, in that the said Ronald Crighton then and there being, did then and there wilfully wrongfully, unlawfully, intentionally and feloniously assault one Vernon Smalley by striking and wounding him with a revolver, a more particular description of which revolver is to this informant unknown, and inflicting upon him, the said Vernon Smalley, grievous bodily harm, with the intent in him, the said Ronald Crighton, to inflict upon the said Vernon Smalley bodily harm, contrary," etc.

To this information the defendant pleaded not guilty. After the jurors had been sworn upon their voir dire examination, the county attorney asked leave to amend the information by inserting after the words "Ronald Crighton," in the fourth line from the bottom of the information, the additional words, "the said Ronald Crighton, did then and there wilfully, wrongfully, unlawfully, and feloniously inflict upon the said Vernon Smalley grievous bodily harm." To this counsel for defendant objected, asserting that the proposed amendment, made at the opening of the trial and without notice, was of substance and would raise the grade of the offense from that of a misdemeanor, assault in the third degree, to that of a felony, assault in the second degree. The court permitted the amendment.

The information as originally drawn charged the defendant with assault in the second degree. It was specifically alleged that the defendant willfully, wrongfully, unlawfully, intentionally, and feloniously assaulted Vernon Smalley, inflicting upon him griovous bodily harm, and with the intent to do so. The additional matter did not change the legal effect of the information.

2. The only other errors which it is necessary to consider are: (1) That the court erred in admitting in evidence an alleged confession of the defendant, designated as State's Exhibit No. 6; and (2) erred in sending the same to the jury after it had retired to deliberate. Preliminary to the discussion of these alleged errors, a brief statement of the facts is necessary.

Two women, Clara Johnson and Edna Haynes, otherwise called Mrs. Crighton and Mrs. Campbell, were conducting what the witnesses term a "party house," called "The Palms," in Billings. Whether Edna Haynes was the wife of the defendant presents an important question, as will appear presently. "The Palms" contained an office room, bar room, dance hall, "toilet," kitchen, and bedroom. The defendant had furnished Edna Haynes $100 which she contributed to the enterprise. The testimony indicates that the principal business of The Palms was selling intoxicating liquor, which was stimulated by dancing girls provided by the "house." The girls urged their partners to drink and were paid a percentage of the amount received for the drinks which they caused to be sold. Edna Haynes and her sister Myrtle Hivley were dancers. Those who danced with the girls deposited money in a "kitty" from which the musicians obtained their compensation. At the time Vernon Smalley and Dudley A. Smalley were the musicians.

It appears that the defendant and Edna Haynes had been living together for a number of years, and at the time of the alleged assault defendant was renting a house in Billings which he testified was the family home. While at Williston, N. D., on business, defendant heard Vernon Smalley had been paying attention to his wife; that is, to Edna Haynes. Defendant returned to Billings on the evening of October 19th, and went to The Palms, but did not enter the house; he went about the outside. Upon glancing through the kitchen window he observed the bedroom and saw Smalley sitting or lying on the bed with Edna Haynes. He did not enter the building at that time, but on the evening of the 20th he went back to The Palms wearing a mask, armed with two revolvers and carrying a coil of rope. This time, he said, he saw his wife and Smalley in bed covered by bed clothes completely to their necks. The light in the bedroom was put out, whereupon defendant entered, turned on the light, and told Smalley to lie where he was. Instead, Smalley rose to a sitting position; but whether he made any demonstrations against the defendant is not certain, as the evidence is in conflict.

Defendant's version of what took place is that Smalley "came up at him" with his fists clenched, and defendant "tapped" him with a revolver on the side of the head. There is no doubt that the blow caused a slight fracture of Smalley's skull. The woman jumped from the bed and left the room. After the liaison was thus broken up, the defendant left the room. The blow struck is the basis of the state's charge of assault in the second degree.

The defendant was arrested the next morning and apparently made two statements, or confessions. One was placed before the jury by Val Lechner, chief of police of Billings. As related, it consisted of a conversation between Mr. Lechner and defendant, and is said to have been taken down by the county attorney's stenographer and transcribed. It was not signed. Counsel for defendant at the trial demanded that it be produced; the county attorney said it would be. Nevertheless Mr. Lechner proceeded to give the testimony of defendant in narrative form. The chief of police testified he took a book from defendant, written by him as a diary, narrating his version of the events of October 20th and 21st, which, without objection, was read to the jury and introduced as Exhibit 1. The rope and mask were introduced as Exhibits 2 and 3. X-ray films were designated as Exhibits 4 and 5.

The next witness for the state was W. W. McKenzie, undersheriff of Yellowstone county. He testified that he was in the county attorney's office on the morning of October 21, 1933, when a statement was read to the defendant. Some corrections were made in it at the defendant's "instigation," the witness said. The defendant was asked if he would sign the statement, but he declined to do so. McKenzie then said defendant was asked by the deputy county attorney "whether the statement was true or not; whether it was the truth, and he said it was."

When the writing was offered in evidence as State's Exhibit 6, Mr. McKenzie, being interrogated by defendant's counsel, said, "No, Mr. Lechner and I were testifying to separate occurrences. No sir, I was not present at the time Mr. Lechner has testified about this morning. No sir, he was not present at the time I have just testified about." Objection was then made in behalf of defendant to the introduction of the proposed exhibit upon the foundation laid, for the reason that it was not competent; "the exhibit being in the form of an alleged confession, and there being nothing to justify its admission at the present time." Thereupon the judge said the exhibit would be received in evidence except the first paragraph, which was not admissible, and he "had marked it out in pencil on the first page" (the pencil lines did not in the least obscure the legibility of the matter sought to be stricken); he also observed that "where it says the witness signed--that is not admissible in evidence; the last part is not." (That portion was cut from the writing.) With these alterations the writing was read in evidence over the objection of the defendant, counsel saying: "There is nothing whatever to warrant the admission of the same in evidence." The part stricken out in pencil by the court reads as follows:

"Affidavit.

State of Montana, County of Yellowstone, ss.

Ronald Crighton, being first duly sworn and being first duly advised by the assistant county attorney of his constitutional rights and not being promised immunity or any inducement whatever, makes the following statement of his own free will:"

After the writing, except those parts which were "stricken out" by the court, was read to the jury, the witness McKenzie said there was "nothing else in particular that he knew about the case other than he had testified to." Upon cross-examination he said, "Mr. Crighton refused to sign the document that had been read to the jury. Mr. Lechner was not there at the time I was there; no sir. I think that was a day or two after Mr. Lechner was in there, no one else was there besides myself; Mr. Saveresy and Mr. Crighton. Mr. Demel was not there."

Exhibit No. 6 purports to contain a pretty full narration of the activities of the defendant during the seven or eight years he was acquainted with Edna Haynes. He said the two lived together as man and wife...