State v. Le Duc
| Decision Date | 24 June 1931 |
| Docket Number | No. 6808.,6808. |
| Citation | 89 Mont. 545 |
| Parties | STATE v. LE DUC. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Bert Le Duc was convicted of murder in the second degree, and he appeals.
Reversed and remanded, with directions, on rehearing.
J. A. Poore, and A. G. Shone, both of Butte, for appellant.
L. A. Foot, Atty. Gen., and T. H. MacDonald, Asst. Atty. Gen., for the State.
Defendant was convicted of murder in the second degree and sentenced to a term of twenty-five years' imprisonment in the state's prison. He has appealed from the judgment, and from an order denying his motion for a new trial. He admits that he shot and killed the deceased, John F. Snyder, but contends that he did so in self-defense.
1. His first contention is that the evidence was insufficient to justify the verdict. His contention is that the undisputed physical facts demonstrate the falsity of the state's evidence, establish the truthfulness of his own, to the effect that the killing was in self-defense, and command a verdict of not guilty as a matter of law.
The shooting occurred at about 5:30 a. m. on March 5, 1930, in room 16 of a rooming house in the Lisa Block at 401 Colorado street, in Butte. Death resulted shortly before midnight on March 6. The rooming house was operated by defendant. Deceased and Clem Ostdiek then, and for nearly a year prior thereto, occupied room 16 as tenants. Defendant gave them notice on March 2 that their tenancy was terminated, and that from then on their rent would be $5 per day. Prior to that it was $1 per day. He chose to sever the relationship of landlord and tenant between himself and them by reason of the fact that over the repeated protests of himself and his wife they were in the habit of creating loud noises at all hours of the night, and frequently took women and young girls to their room.
Between 4:40 and 5 o'clock on the morning of March 5, defendant, who occupied a room on the floor below that where room 16 was located, was awakened and looking through the transom of his room, saw a man and woman coming down the stairs; the man had a grip in his hand. Defendant went to the door and saw it was Clem Ostdiek and a woman leaving the building. Ostdiek had not paid the rent due and defendant according to his testimony, made a grab for him and took his hat (according to the testimony of Clem Ostdiek defendant then struck him twice), and defendant went to the telephone in his room and called the police, informing them that Ostdiek had left without paying his rent.
At about 5:30 that morning defendant was again awakened by footsteps going up the stairway, and, as he had previously had experience with prowlers in the building, thought this a repetition of that experience. He put on his slippers and bathrobe, placed his gun, a .38 Colt automatic, in the right hand pocket of the bathrobe, went into the hallway and up the stairs. He saw no one in the hallway but observed a light in room 16. He testified that the door was slightly ajar, but Bill Jones, a witness for the state, testified that the door was closed. Defendant said he knocked on the door and Snyder, who was then in the room, said, “Come in.” Jones said there was no knock on the door. In any event, defendant entered the room and found there, Snyder and Bill Jones.
There is a sharp conflict in the evidence as to what transpired thereafter. Jones testified that when defendant entered he said to him, “Get to hell out of here”; that the witness proceeded to get out of the room, and, in so doing, rushed past defendant to the door, and as he got through the door defendant hit him behind the right ear with what the witness thought was a gun. He went to the hospital and remained there for fifteen days. He said he was “out of his senses” for three days. He neither heard nor saw anything that transpired in the room thereafter. Defendant's version of what took place when he entered the room was that he said, “Ostdiek has moved, Snyder,” to which Snyder replied, “so I understand”; that then Jones raised his right hand quickly and that he, the defendant, thereupon struck Jones with his left fist. After Jones left the room the shooting took place, with no one present but defendant and the deceased.
The state introduced in evidence three dying declarations of the deceased. In order to more accurately understand the substance of these declarations, a brief description of room 16 is desirable.
The room faces the east on Colorado street. The east side has two windows situated 5 feet 8 inches apart. In the room was a bed extending east and west with the head end to the east between the two windows. There was but one door leading into the room. It was on the west and near the north wall of the room. Against the south wall was a gas stove, kitchen cabinet, book case, and chiffonier. The gas stove was in the southwest corner of the room. To the east of it was the kitchen cabinet, with 2 feet 2 3/4 inches between it and the stove. To the east of the cabinet was the book case, with 10 inches between it and the cabinet. East of the book case was the chiffonier. There were 11 inches between the book case and the chiffonier, and the chiffonier was 10 inches from the east wall, and there was a space of about 3 feet between the bed and the chiffonier. To the foot of the bed and against the west wall was a table, the table and bed being 6 feet 9 inches apart. Directly north of room 16 was room 18. According to one of Snyder's statements, when defendant entered the room he pulled out a sap and said, “Get out you sons of bitches,” and hit Jones over the head with it; that he (Snyder) was standing at the head of the bed and on the south of it, and he said, “I turned around to see what it was all about and he [meaning Le Duc] had the gun out”; that he, Snyder, said, Asked what he did after that, he said, “I reached around in the dresser behind me to get my own gun and while I turned around he shot me again in the hip.” He said he got his gun and as he turned around he slipped and fell on one knee and defendant fired again, hitting him in the left arm. He then said: “I pulled the trigger on mine, and I don't know whether I hit him or not and don't care.” In response to the question whether he gave Le Duc any reason to shoot him, he said, “No, I can't say that I did.” Defendant, he said, shot the fourth time but it did not hit him; that defendant then ran out of the room. He said he knew Jones was still in the room when the third shot was fired, because “I looked over the end of the bed, thought he was going to shoot him too.”
The other dying declarations, made at different times and which are not claimed to have been erroneously admitted in evidence, were, on the material matters, substantially repetitions of the statements already alluded to.
Defendant testified that as Jones left the room, Snyder was standing at the southwest corner of the bed and he near the northwest corner; that Snyder immediately jumped from where he stood to the dresser, grabbed the second drawer from the bottom and pulled it to the floor; that Snyder wheeled around in a crouching position and shot at defendant, filling his eyes with powder; that he, defendant, thereupon took out his gun, moved to the east, and started shooting. When he was able to see he saw Snyder at the southwest corner of the bed with his gun pointed at defendant, in the act of shooting. Defendant could see only the top of his shoulder and part of his head and his hand which was over the edge of the bed; that Snyder shot a second time and was jerking his hands in an effort to shoot again. Defendant thought he himself shot four times. He ceased shooting, he said, because Snyder put both of his hands on the floor. When Snyder did this, defendant said he backed out of the room and went down stairs.
It is clear that if defendant's version of the shooting is correct, then he acted in self-defense and should have been acquitted. On the other hand, if the jury was warranted in accepting Snyder's version of it, then the act of defendant constituted murder beyond the possibility of a doubt.
Ordinarily, when there is such a conflict in the evidence, the solution of the question is for the jury. And this is so even though defendant's story is corroborated by evidence of other witnesses. But defendant, in reliance upon the rule stated in State v. Gunn, 85 Mont. 553, 281 P. 757, contends that the undisputed physical facts demonstrate the falsity of Snyder's statements, and attest the accuracy of his own and of those who testified in his behalf, and for that reason the verdict cannot stand.
The physical facts relied upon are these: The bullet which struck Snyder in the throat abraised the point of the chin, entered the oesophagus just above the larynx, and was found lodged at the lower portion of the left shoulder blade. Its course was downward. The only blood found in the room was on the floor at the southwest corner and near the foot of the bed. All four of the bullets shot by defendant were found. One was taken from under the left shoulder blade of deceased. One was found lodged in his left arm. The one that struck his right hip passed through the hip bone, struck the vertebræ and ranged downward and passed out through the rectum and was found lying on the floor. The fourth was found lodged in the floor under the bed near the southwest post of the bed. There was evidence that it had passed through the mattress of the bed, struck the bed spring, and was deflected from its course and found in the floor. Two bullets shot by defendant passed through the mattress and were shot from the northeast corner of the bed toward the southwest corner; hence, one of the bullets that struck the mattress also struck the deceased. The bullet that was found in the...
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