State v. Fuller

• Decision Date: 19 March 1906
• Citation: 85 P. 369,34 Mont. 12
• Parties: STATE v. FULLER.
• Court: Montana Supreme Court

85 P. 369

34 Mont. 12

STATE v. FULLER.

Supreme Court of Montana

March 19, 1906

Appeal from District Court, Silver Bow County; Michael Donlon Judge.

Miles Fuller was convicted of murder, and appeals. Affirmed.

Jas. H Baldwin, John Lindsay, and Edwin S. Booth, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

BRANTLY C.J.

On November 7, 1904, defendant was by information charged with the crime of murder, and thereafter, having been tried upon his plea of not guilty thereto, was convicted of murder of the first degree and sentenced to death. He has appealed from the judgment and from an order denying him a new trial.

The brief of counsel assigns many rulings and decisions of the court, which, it is alleged, prejudiced the defendant in his substantial rights. Of these only a few are sufficiently meritorious to require special notice. The following brief statement of the facts will be sufficient to make clear the contentions made: It appears that the homicide grew out of a grudge of long standing between the defendant and Henry Gallahan, the deceased. The defendant had repeatedly stated that he intended to kill Gallahan at the first opportunity. He made this statement to the deceased himself in the presence of one of the witnesses, a few days prior to the killing. Both men occupied cabins a short distance west of the city of Butte. About 6 o'clock on the evening of October 24, 1904, two of the witnesses going east into the city, along one of its principal streets near its western outskirts, met the deceased going west, near where he was killed. One of these, two or three minutes after passing the deceased, saw the defendant standing behind the corner of a school building "peeking" in the direction the deceased was going. A short time later the two, the defendant and the deceased, were observed further west standing a few yards apart on the hillside. No one was near enough to them to hear what, if anything, was said by either of them. The defendant first fired at the deceased. They then exchanged shots rapidly, both using revolvers, until the deceased fell mortally wounded by a shot in the head. The defendant then started west, but stopped, returned to where the deceased was lying, slashed his throat twice with a knife or other sharp instrument, severing the jugular vein, and then fled, escaping in the dusk of the evening. Those who witnessed the shooting were from 250 to 600 feet away; two of them, Semmons and Almquist, pursued the defendant for some distance. Though there was not sufficient light to enable him to distinguish the features of a man clearly, Almquist recognized him. Later on the same evening he was arrested. On the following day the undersheriff took the shoes worn by the defendant at the time of the arrest and compared them with footprints found leading from the place of the shooting to within a short distance of defendant's cabin. The impression made by the shoes corresponded exactly with these footprints. The evidence is that the undersheriff told the jailer to get defendant's shoes and that he went and took them off defendant in the corridor of the jail where he then was.

Gladstone Bray had witnessed the affray, but, though his name had been given to the coroner, he had not been called to testify at the inquest, nor had the county attorney been informed of the fact that he was an eyewitness until, on the evening before the trial began, he gave the information himself. When the trial opened, this fact having been made to appear, his name was by permission of the court indorsed upon the information. He was thereupon called and sworn as a witness. In one place in his testimony he positively identified the defendant as the man who was seen running from the scene of the shooting. On cross-examination, being questioned how he came to be called as a witness, he stated: "I did not go to the county attorney and tell him I wanted to testify in the case. I just went up there and told him." He was then asked: "Did you send any one else to him to tell him that you wanted to testify?" The county attorney having interposed a general objection, the witness was not permitted to answer. This ruling is assigned as error, because, it is said, the answer would "perhaps" have shown the interest of the witness in the outcome of the case, and hence should have gone to the jury as reflecting upon his credibility.

The interest and feeling of a witness are always material elements to be weighed and considered by the jury in determining the credibility of his story. It does not appear, however, from any offer made by counsel what the answer of the witness would have been, nor that they expected to contradict him if his answer had been in the negative. The witness had already stated that he had volunteered his evidence, thus evincing a willingness to see the defendant convicted; and if it be conceded that the ruling of the court was technically wrong as an undue restriction of the cross-examination, as we think it was, yet an affirmative answer would not have added further evidence of his interest. Evidently, since counsel did not prosecute the inquiry further or make an effort to prove, they were satisfied that they had obtained from the witness all the evidence they could showing interest. We think the ruling, though technically erroneous, was without prejudice.

The same witness in another place of his cross-examination testified: "Q. You don't know who fired them [the shots] of your own knowledge? A. I knew it was Fuller and Gallahan. Q. How do you know? A. Because I heard the people talking about it." Contention is made that this portion of his evidence is hearsay, and that the court erred in refusing to strike it out. The court did at first refuse to strike it out, but a few moments later, upon attention being called to it by counsel, the whole of it was stricken out and the jury admonished not to consider it. Further, the court submitted an instruction calling the attention of the jury specifically to the fact that certain testimony had been stricken out and that they must bear this constantly in mind during their deliberations, and not make use of it in making up their verdict. The prior erroneous ruling was thus fully corrected and the contention of counsel is not sustained by the record.

The testimony of the undersheriff, touching his comparison of defendant's shoes with the footprints leading from the place of the shooting, together with the shoes, was admitted, over objection by counsel that the use of this character of evidence was a direct violation of the constitutional prohibition that "no person shall be compelled to testify against himself in a criminal proceeding" (Const. Mont. art. 3, § 18), and also of the guaranty that "the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures" (Const. Mont. art. 3, § 7). Counsel also rely upon articles 5 and 4 of the amendments to the Constitution of the United States, which, respectively, embody substantially the same provisions. We do not think the evidence shows that what was done by the undersheriff was without the defendant's consent. From this point of view the defendant may not complain; for the privilege guarantied by the first provision of the Constitution cited may be waived by consent, either expressly or by implication. Otherwise a defendant who has offered himself as a witness in his own behalf would not be subject to cross-examination bringing out criminatory facts, should he conclude not to submit to it. The rule is, as pointed out by Mr. Wigmore in his work on Evidence (volume 3, p. 2276), that when the defendant offers himself as a witness in his own behalf, he waives his privilege as to all matters pertinent to the issues involved. So, if the defendant consented to the use of his shoes, voluntarily surrendering them to the officer for the purpose for which they were used, he cannot now complain that the evidence so discovered was used against him. And these remarks apply as well to the guaranty of security in the other provision; for, if the shoes were taken by the defendant's consent, he cannot be heard to complain that the officer was guilty of an unlawful seizure.

But accepting the theory of the defendant that the evidence does establish a taking without his consent, we still think the evidence in question was properly admitted. The prohibition first invoked is nothing more than a statement of the common-law rule of evidence, and guaranties no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free from compulsion by legal process to give self-incriminating testimony. After tracing the history of the rule, Mr. Wigmore states the object thus: "Looking back at the history of the privilege of the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person's own lips an admission of his guilt, which will thus take the place of other evidence. Such was the process of the ecclesiastical court, as opposed through two centuries-the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow objectors, that he ought to be convicted by other evidence, and not by his own forced confession upon oath. Such too, is the inference from the policy of the privilege as a defensible institution; that is to say, it exists mainly in order to stimulate the prosecution to a full and fair search for evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the accused's confessions. ...