State v. Gangner
| Decision Date | 18 April 1925 |
| Docket Number | 5674. |
| Parties | STATE v. GANGNER. |
| Court | Montana Supreme Court |
Appeal from District Court, Deer Lodge County; Geo. B. Winston Judge.
Fred Gangner was convicted of robbery. From order denying motion for new trial, he appeals. Reversed, and remanded for new trial.
John W James, of Anaconda, and Joseph J. McCaffery, of Butte, for appellant.
L. A Foot, Atty. Gen., and I. W. Choate and A. H. Angstman, Asst. Attys. Gen., for the State.
From the testimony of the prosecuting witness it is made to appear that about 8:15 o'clock on the evening of March 31, 1924, while Joe Couture and Tellis Houll were sitting in Couture's cabin, two men, later identified as Day and Felt, entered the cabin armed with pistols and commanded Couture and Houll to throw up their hands. Couture failed to respond promptly, and Day struck him over the head, knocked him down, and beat him into submission, when the two men robbed him of $515.
It appears from the record that on April 19 an information was filed, charging Day, Felt, and Gangner with the commission of the crime. Gangner was tried separately, but the jury failed to agree upon a verdict. He was tried again immediately, and the second trial resulted in his conviction. He moved for a new trial on the ground of newly discovered evidence, but the motion was denied, and he appealed.
A motion for a new trial on the ground of newly discovered evidence is not generally viewed with favor by the courts, and the reason is apparent. The presumption is that the moving party had one fair opportunity to make full preparation and presentation of his defense, and the smart of defeat and the prospect of immediate punishment offer impelling inducements to him to manufacture a plausible excuse for another chance, or spur him on to diligent activity to secure available evidence which he ought to have had at his trial but did not have. State v. Matkins, 45 Mont. 58, 121 P. 881; State v. Prouty, 60 Mont. 310, 199 P. 281. However, newly discovered evidence is made a ground for a motion for a new trial by our Codes (section 12048, Rev. Codes), and, when the prescribed conditions are met, a motion upon this ground is entitled to the same consideration as a motion made upon any other statutory ground; and, while a broad discretion is lodged in the trial court in disposing of the motion, a denial of it is not conclusive, but the order is subject to review on appeal (section 12107).
In State v. Matkins, above, this court announced the following rules by which to determine the sufficiency of an application for a new trial, predicated on newly discovered evidence, viz.:
"(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely; * * * (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness."
It was said further:
It is safe to say that no two applications present the same, or even closely analogous, fact situations; hence different courts may differ as to whether a given application measures up to the standards set by the rules above.
It is conceded by the state that Gangner did not participate in the robbery itself, and that he was not present when the crime was committed. It is sought to hold him responsible solely upon the ground that he had advised and encouraged Day to commit the crime. The state induced Day to testify against Gangner, and he did so, and it was upon Day's testimony that the conviction was secured. In other words, without Day's testimony the state did not have any substantial evidence of Gangner's guilt-not sufficient evidence to warrant the submission of the case to a jury.
After Gangner was convicted, Felt pleaded guilty to the charge, and, after he was removed to the penitentiary, he made the affidavit which is relied upon principally to secure for Gangner a new trial. Briefly, Felt's story, as detailed in his affidavit, is: That Day had ascertained that Couture was accustomed to carry considerable money on his person, and Day and Felt planned to rob him. They did not know just where Couture lived, but did know that he lived not far from Gangner's home, on the highway leading from Anaconda to Philipsburg. They planned to go to Gangner, ostensibly to obtain information concerning a location for a still for the illicit manufacture of intoxicating liquor, but in reality to obtain knowledge of the location of Couture's cabin. In execution of their plans they went to the Gangner home on the afternoon of March 31 and remained there until 6 o'clock or thereabouts, when Gangner took them in his sled to Cable Crossing, where they expected an automobile to meet them and take them back to Anaconda. As the three traveled along the road, Gangner pointed out the Couture cabin when they passed it and advised Day and Felt to maintain friendly relationship with Couture if they would avoid trouble and possible exposure. When they reached Cable Crossing where the sleighing ceased, Gangner turned, started back toward his home and was not seen again by Felt or Day until long after the robbery. Day and Felt then walked down the road towards Anaconda until Gangner was out of sight, when they turned back, went to Couture's cabin, and committed the crime as they had planned previously to do. Nothing was said in Gangner's presence concerning the contemplated crime, and, so far as Felt knew, Gangner was not aware that the robbery had been planned or even considered.
It is suggested by the state that this evidence...
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