State v. Diedtman
| Decision Date | 08 May 1920 |
| Docket Number | 4398. |
| Citation | 190 P. 117,58 Mont. 13 |
| Parties | STATE v. DIEDTMAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; R. Lee Word Judge.
Tony Diedtman was convicted of sedition, and he appeals. Reversed and remanded.
Henry C. Smith, of Helena, for appellant.
S. C Ford, Atty. Gen., and Frank Moody, Asst. Atty. Gen., for the State.
By an information filed in the district court of Lewis and Clark county on May 31, 1918, the defendant was charged with the crime of sedition. Upon his first trial the jury failed to agree upon a verdict. The second trial resulted in a verdict of guilty, with a recommendation to the mercy of the court. The defendant was sentenced to imprisonment in the penitentiary for a term of not less than 10 years nor more than 20 years, and has appealed from the judgment and from an order denying his motion for a new trial. There are 47 assignments of error, but the contentions made upon some of them have been determined adversely to defendant in sedition cases recently decided. The other assignments may be considered in groups.
1. Henry Latch, a juryman, was examined on his voir dire by the county attorney at some considerable length, when the court interposed with the remark that, "if counsel will challenge this juror, I will sustain the challenge." The suggestion was availed of, the juror challenged and excused and exception was taken to the remark of the court, as well as to the ruling. There was not any intimation contained in the evidence that the juror was disqualified; on the contrary, he had shown himself possessed of the statutory qualifications for jury service. Neither do we think that the record discloses sufficient ground for challenge for cause but, even if it did, any ground for such challenge may be waived, and is waived unless availed of at the proper time, and in this instance, if the county attorney had not seen fit to interpose a challenge for cause, the competency of the juror to sit in the trial of the cause could not be questioned. To all intents and purposes, the action of the court amounted to the exercise of a peremptory challenge by it--a right which the court does not possess. 16 R. C. L. 253. If the court can, of its own motion, excuse one juror without cause, it can excuse a dozen, or, in other words, it can so far pick the jury in advance of the exercise of the peremptory challenges as to compel the defendant to submit to trial before a jury satisfactory to the court, with the only alternative to him to make use of his peremptory challenges among jurors all of whom are equally objectionable.
The statute prescribes the method of selecting a jury, including the challenges and the mode of their exercise, and neither the court nor the parties can select it in any other manner. To admit of any substantial departure from the statutory method would, in effect, nullify the statute itself. In People v. McQuade, 110 N.Y. 284, 18 N.E. 156, 1 L. R. A. 273, it is said:
To the same effect are Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. Rep. 22; Van Blaricum v. People, 16 Ill. 364, 63 Am. Dec. 316; Welch v. Tribune Pub. Co., 83 Mich. 661, 47 N.W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629.
But the error was made more manifest by the manner of the court than by the ruling itself. The remark, considered in connection with the testimony given by the juror, must have led the remaining jurors to believe that the court entertained prejudice against any venireman who manifested a friendly disposition towards the defendant, even though no such prejudice was entertained in fact. We approve the holding of this court in Territory v. Roberts, 9 Mont. 12, 22 P. 132; but the facts upon which that case was decided differ materially from the facts of the instant case. In that case the juror excused was not a citizen of the United States, and upon his voir dire examination testified that he had formed an opinion as to the guilt or innocence of the accused. He was challenged by the prosecution and the challenge allowed. The court did not go further than to hold that "the appellant was not injured by the exclusion of the juror."
2. The county attorney first called as witnesses John Berkin and Thomas Topping, and interrogated them concerning their acquaintanceship with one Eberhard Von Waldru, whose name was indorsed upon the information as a witness for the state. Each witness testified that he knew the reputation of Von Waldru for truth, honesty, and integrity in the neighborhood where he resided, and that it was good. Over the most vigorous objection of defendant's counsel, Topping was then permitted to testify that the Department of Justice at Washington and the Attorney General of the United States had investigated Von Waldru's record, and that they had passed favorably upon it.
Section 8026, Revised Codes, prohibits the introduction of supporting evidence of the good character of a witness until his character has been first impeached, unless his character is in issue; but assuming that an objection to the order of proof was waived--and it was waived as to one of the witnesses at least--or that error may not be predicated upon the court's rulings admitting this character evidence before Von Waldru had testified, the only evidence admissible under any conceivable circumstances was evidence of Von Waldru's general reputation in the neighborhood where he lived. Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 P. 652. The evidence that the Department of Justice had investigated Von Waldru's record and had passed favorably upon it was the veriest hearsay, and its admission violated the most elementary rules of the law of evidence.
That it was error to admit this evidence is not open to controversy, and the only question for determination is: Was the error a material one under the circumstances? The rule is now firmly established in this jurisdiction that no judgment shall be reversed for technical errors or defects appearing in the record, which do not affect the substantial rights of the complaining party. There is no hard and fast rule by which to determine whether a particular error shall be classed as harmful or harmless. Every case must be determined upon its on peculiar facts and circumstances. What are the circumstances of this case which reflect upon the question?
There was no one present, when the alleged seditious remarks were made, but Von Waldru and the defendant, and therefore the state was compelled to rely upon Von Waldru's testimony alone to establish the fact that the words were spoken. Von Waldru admitted that he was an alien enemy, a former officer in the German army, a former convict, who had completed his term in the penitentiary at Deer Lodge about the middle of November, 1917. The necessity of bolstering up Von Waldru's testimony was apparent, and appreciated fully by the county attorney; but neither Berkin nor Topping had known him for a period as long as six months, one-half of which time Von Waldru had spent in Butte, a portion of the remainder in Helena, and the other portion not accounted for. Just how either Berkin or Topping could gain a knowledge of the general reputation of Von Waldru during so short a period, or how Von Waldru could establish a general reputation among the people of a community by such a peripatetic residence, are questions which we need not stop to consider at length. In Martin v. Corscadden, 34 Mont. 308, 86 P. 33, this court said:
"Reputation can be proven only by the testimony of witnesses who, by association and acquaintance in the community where the person whose reputation is in question resides, know what is there said of him, and who can, from such knowledge, express an opinion thereon."
Assuming that Berkin and Topping each was competent to answer the question propounded to him, and that his brief acquaintanceship affected only the weight to be given to his opinion (Territory v. Paul, 2 Mont. 314), it must be manifest that under these circumstances the jury could not have given much weight to the expressed opinion that Von Waldru's reputation for truth, honesty, and integrity was good. The defendant denied categorically that he ever made any of the statements attributed to him by Von Waldru and produced several witnesses, each of whom testified to his good reputation; but notwithstanding these facts, and the fact that Von...
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