State v. Davis

• Decision Date: 27 June 1921
• Docket Number: 4730,4741.
• Citation: 199 P. 421,60 Mont. 426
• Parties: STATE v. DAVIS.
• Court: Montana Supreme Court

199 P. 421

60 Mont. 426

STATE v. DAVIS.

Nos. 4730, 4741.

Supreme Court of Montana

June 27, 1921

Commissioners' Opinion.

Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.

E. C Davis was convicted of murder in the first degree, and he appeals. Affirmed.

W. J Cushing and C. W. Robison, both of Dillon, for appellant.

Wellington D. Rankin, Atty. Gen., L. A. Foot, Asst. Atty. Gen., and T E. Gilbert, of Dillon, for the State.

JACKSON C.

The defendant was convicted of murder in the first degree on May 19, 1920, and on May 24th he was sentenced to be hanged. From the judgment of conviction, and from an order denying his motion for a new trial, he appeals.

Before the trial was begun, the defendant applied to the trial court for a change of place of trial. The motion was denied, and defendant predicates error. In support of the petition are the affidavits of W. J. Cushing and C. W. Robison, both counsel for the defendant. Briefly, the affidavits state that the arrest of the defendant was made by a posse commitatus, consisting of from 50 to 100 armed men; that at the time of the arrest, and subsequently, it was freely remarked by various members of the posse and others that defendant should be lynched; that the newspapers of the county and the papers of Butte, Mont., which have a large circulation in Beaverhead county, published statements concerning the defendant and the manner of the commission of the alleged crime and the arrest of the defendant, which statements were generally read by the people of the county of Beaverhead; that, on account of the statements and articles, the people of Beaverhead county were so prejudiced against the defendant that he could not have a fair trial in the county, and belief was expressed that it was impossible to obtain a jury in the county that had not formed an opinion as to the guilt or innocence of the accused, such as would disqualify them as jurors.

A hearing was had on the petition, Messrs. Cushing and Robison being the only persons to testify. Mr. Robison's evidence went solely to the talk he had heard, and that of Mr. Cushing, in addition to the talk, went to the effect that the newspapers of the county--

"published somewhat of an extended statement of the commission of this crime and the facts leading up to the arrest and confinement of the prisoner."

Both witnesses stated they believed it would be impossible to secure a fair trial or to secure an unprejudiced jury in the county. No counter affidavits nor proof were offered by the state.

The Constitution guarantees to everyone charged with a crime a fair trial before an impartial jury, and it is settled law in this jurisdiction that an application for change of place of trial is addressed to the sound discretion of the trial court, and, unless an abuse of this power is shown, its ruling will not be disturbed. State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026, and cases there cited. No extracts from the newspapers were attached to the affidavits, and the record is silent as to what the stories contained. The bald statement that the tale of the crime was printed in newspapers and generally read by the inhabitants of the county, and that therefore the defendant would be deprived of his constitutional right of fair trial by an impartial jury, is a flat conclusion, and was properly disregarded by the trial Court. State v. Spotted Hawk, supra; Territory v. Manton, 8 Mont. 95, 19 P. 387. No fact in the affidavits or testimony appears to move judicial discretion, save the statements that there had been talk of lynching the defendant, and its effect upon the popular mind.

It must be borne in mind that, while the defendant had been arrested by an armed posse, and at a time when feeling was intense, the inviolability of his person was observed, and in accordance with the high concept of respect for justice the law was permitted, without let or hindrance, to take its course. Naturally, whenever a brutal crime has been committed, there are many whose unbridled tongues vent emotion, but it does not follow that a community's judgment is warped. The record does not disclose the voir dire examination of the jurors, but it suffices to say that, when a jury is obtained on a homicide case after the examination of but 56 men, and no unusual condition is apparent, the statement as to prejudice and the impossibility of securing a fair and impartial jury falls. The showing is entirely insufficient to permit this court to disturb the ruling of the lower court in denying the motion.

"The trial judge is generally familiar with the local situation; he knows the prevailing sentiment of the people, in so far as it finds oftrepeated expression; he knows all the facts and circumstances proper to be considered in determining the matter; he may know the persons who make affidavits suggesting undue excitement or prejudice, and can properly estimate the weight to be given such affidavit. A judicial discretion exercised under such circumstances should not be interfered with, unless its abuse is so clearly manifest as to call for a reversal." State v. Welty, 65 Wash. 244, 118 P. 9.

See, also, State v. Caseday, 58 Or. 429, 115 P. 287; Johnson v. State, 1 Okl. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; People v. Elliott, 80 Cal. 296, 22 P. 207; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, 104 N.W. 154.

It appears that shortly after noon on April 21, 1920, C. K. Wyman, sheriff of Beaverhead county, in response to a telephoned request from J. B. Egan, of Monida, came to the latter place from Dillon, Mont, to arrest the defendant, accused of the theft of a bridle. Egan, in order to keep the defendant until the sheriff arrived, had engaged him to remove some carcasses from a corral. On his way from the train, the sheriff was met and accompanied to the hotel by the witness Raymond W. Knott. When they entered the place the defendant was pointed out to the sheriff, who tapped him on the shoulder and informed him he was under arrest. The defendant said, "All right," picked up his hat, and added, "I have a coat out in the cabin, and I would like to get that." The sheriff and defendant then went out the front door of the hotel, and turned to the left. Knott left by the same door immediately after they had gone, turning to the right, and walking down the street until he came to the front entrance of the Egan store, a distance of about 200 feet from the hotel, where he met a man named Robbins, and heard the sound of two shots. He ran back on the same street a short distance from the store, and, looking down an alley, saw the defendant, gun in hand, standing about 3 feet in front of Wyman, whose back was towards witness, and who was then staggering. Knott testified:

"It could not have been more than a few seconds from the time I heard the shots until I got into the position I indicated at the gate, where I could see Mr. Wyman and the defendant Davis, because I ran the 20 feet or so that was between me and the alley."

The witness then ran back into the store, told those who were there that the sheriff had been shot, went out the rear door, and around an oil house, to the point where he had seen the defendant and Wyman. The defendant had disappeared, and Wyman was lying on the ground. The witness roused him, asked him what had happened, and the wounded man answered: "He shot me." Knott then left Wyman, went back into the store, reported the sheriff was dead in the alley, picked up a rifle, and went out with others after the defendant. From this point his testimony is:

"I saw the defendant after that. In fact, I saw him practically all the time, because we were trailing him until he got to the cabin. I saw the defendant on horseback the next time after I had seen him standing near Wyman with a gun in his hand; at that time he was in the corral. At that time the defendant would be to the left of the door marked 'F.' When I saw the defendant he was on his horse, and was trying to make it jump the bars, jump the corral at the point marked 'Bars' on the map, State's Exhibit No. 1. I just saw the defendant for an instant then. He was still on horseback the last time I saw him. The next time I saw the defendant he was running down the railroad track. At that time he was right on the track. There is a railroad Y in there, and he was crossing the Y. The defendant, at the time I saw him on the track, was running in this direction, which, according to the map, would be northwest. He was running on the right-hand side of the track at that time; that would be as you look down the track from Monida, towards Dillon. Mr. Robbins was with me at that time. Mr. Robbins and I struck out to the right of him, trying to circle around the defendant. I had a rifle at this time. I did not use my rifle at that time. Mr. Robbins did not use his at that time either. Mr. Robbins used his rifle in the corral. I was not present the first time that Mr. Robbins shot. I said that Mr. Robbins and I started to follow the defendant. I imagine we went one-eighth of a mile from the railroad track out through the hills with the intention of cutting him off at the bend in the track. That would be about northwest of Monida; it would be more northerly than the track runs. After that time we kept the defendant in sight. We did that by following him. Mr. Robbins and Mr. Miller were in the party at that time. As a rough estimate, I would say that we were separated from the defendant from one quarter to a half of a mile. I know that Mr. Miller had some glasses with him that day. Mr. Miller had a pair of high-powered binoculars with him at that time that he used. I could see the defendant myself most of the time. We followed the defendant in this northwesterly direction from Monida for about 1 mile.

...