State v. Gay

• Citation: 44 P. 411,18 Mont. 51
• Parties: STATE v. GAY.
• Decision Date: 23 March 1896
• Court: Montana Supreme Court

44 P. 411

18 Mont. 51

STATE v. GAY.

Supreme Court of Montana

March 23, 1896

Appeal from district court, Lewis and Clarke county; Henry N. Blake Judge.

William Gay was convicted of murder, and appeals from the judgment sentence of death, and an order denying a new trial. Affirmed.

Lewis Penwell, W. F. Sanders, and J. M. Clements, for appellant.

A. C Gormley, R. R. Purcell, H. J. Haskell, and Ella Knowles Haskell, for the State.

HUNT J.

The defendant, William Gay, was charged with the crime of murder in the first degree. The information alleges that on the 12th of May, 1893, he deliberately and maliciously killed James Macke, by shooting him with a rifle. The defendant was tried and convicted, and is now under sentence of death. He made a motion for a new trial, which was overruled. He appeals from the judgment of conviction and the sentence of death, and from the order overruling the motion for a new trial. We will first notice the errors urged on argument, and relied upon in the appellant's brief:

1. The defendant testified in his own behalf. After briefly reciting the fact that he had resided at Castle for some time, defendant said that he had located a lot on some disputed ground at Castle, and built his house. He was then asked this question: "Subsequent to building your home and living there, you may just state generally, without particulars, whether or not you had any litigation or trouble about that land?" The state objected upon the ground of irrelevancy. Defendant's counsel stated that the object of the question was to show the beginning of the trouble, and the sentiment worked up against defendant, resulting in transactions in April and May, 1893. The court then said: "At this time I do not think it competent for this witness to testify upon that subject. So far as I know, the name of this man Benson has not appeared in any way. I remember the opening statement. If it is subsequently shown that this man Benson was behind these proceedings, then the witness may testify on that matter, but at the present time I do not think it would be competent to go into it. The objection is sustained." We can perceive no error in the ruling of the court. The fact that the defendant had had litigation or trouble about his lot had no possible apparent relation to the killing of James Macke, or the events or facts immediately, or even remotely, connected therewith. The rule is that all facts that go either to sustain or impeach a hypothesis logically pertinent are admissible. "But no fact is relevant which does not make more or less probable such a hypothesis. Relevancy, therefore, involves two distinct inquiries, to be determined by logic, unless otherwise arbitrarily prescribed by jurisprudence: (1) Ought the hypothesis proposed, if proved, so to affect the issue? (2) Does the fact offered in evidence go to sustain this hypothesis?" Whart. Cr. Ev. § 24. The offer of counsel did not make the evidence relevant at that time, unless it tended to prove that Macke was directly or indirectly connected with the "trouble," and the "sentiment worked up" against defendant, prior to the time he was killed (some months afterwards), or unless it related to some fact or circumstance that extenuated the killing of Macke. It did not tend to do either. Besides, the ruling of the court was, expressly, not a final one; and, in the reasonable exercise of its discretion in controlling the order of proof, the judge properly excluded the testimony until it might appear to be relevant. No offer was subsequently made to introduce any testimony concerning the suggested litigation or lot difficulty, nor was any testimony offered in any way referring to any particular affair of the kind.

2. One J. H. Kidd testified for defendant to the effect that one night, shortly after Rader was killed, in the early part of May, 1893, he was going towards Gay's house, in Castle, to give an alarm of fire, and at that time saw one George Creiger. The state objected to what Creiger said or did at the time, as immaterial and forming no part of the res gestæ, said Creiger not being a witness. The defendant insisted that it was competent to show that Creiger burned Gay's house before Macke was killed. The court excluded this offered testimony as to Creiger, giving as a reason that Creiger was not a witness, and that the state had not brought anything he did before the jury. The testimony appeared to be entirely irrelevant to the killing of Macke, or to the conduct of defendant prior thereto. Suppose Creiger had maliciously burned defendant's house; unless it was shown Macke had had some participation in it, what possible explanation or justification could Creiger's offense constitute for the alleged wanton killing of Macke some days thereafter, and many miles away from the scene of the arson by Creiger? The testimony being wholly immaterial, there was no error in sustaining the objection.

3. The court instructed the jury generally upon the several degrees of murder, and their distinguishing features, and manslaughter, as defined by the statutes, and told the jury that under the information, if they were so satisfied under the instructions and by the evidence, beyond a reasonable doubt, the defendant might be convicted of murder in the first degree, murder in the second degree, or manslaughter. The statute (Pen. Code, § 353) fixing death as the penalty for murder in the first degree was given, but so much thereof as fixed the penalty for murder in the second degree was not nor was the section (section 356) fixing the punishment of manslaughter included in the charge. The omission of the court to give the penalties for murder in the second degree and manslaughter is assigned as error. The point is not well taken. If the jury had, for example, been instructed what the penalty for manslaughter was, but had not been instructed what the penalty for murder in the first degree was, yet had convicted of murder in the first degree, then the appellant's position would be somewhat different; for it could be argued in such a case that, if the jury had known that death was the penalty of murder in the first degree, they might not have agreed upon that degree of murder, because of the severity of the penalty. But here the proposition is different. The jury in this case, with full knowledge of the worst consequences to the defendant, and with ample definitions of the constituent elements and distinctions of the various degrees of homicide and manslaughter, have found that the evidence warranted the conclusion that the defendant is guilty of that crime which demands the forfeiture of his life to the state. Therefore, if, notwithstanding their knowledge of the severity of the penalty, they have found that the evidence proves that the defendant is guilty of willful, deliberate, and premeditated murder, how could a knowledge on the part of the jury that for any other degree of killing, or for manslaughter, a lesser penalty would be inflicted, have benefited the defendant? The answer does not lie in the argument that they really may have found him guilty of murder in the second degree, but, in ignorance, thought the penalty for murder in the second degree or manslaughter was death, because, in addition to all statutory definitions of homicide generally, they were expressly told that the distinguishing feature between murder in the first degree and murder in the second degree rests in the absence of deliberation, premeditation, and preconcerted design to kill in murder of the second degree, while upon manslaughter they were charged that the killing is without malice, and voluntary or involuntary. Again, the statute wisely, and to pin a jury down to the most specific finding in murder cases, requires them to designate in the verdict the degree of murder of which they may convict. Thus, the jury must announce whether they have found from the evidence that deliberation and premeditation indispensable to warrant the conclusion that the crime proved by the evidence is murder in the first degree, beyond a reasonable doubt. With these statutory and other instructions, clearly explaining what murder in its degrees was, what manslaughter was, what excusable and justifiable homicide was; with malice, express and implied, defined; with plain direction that they must designate what degree of murder they found defendant guilty of, if they convicted at all; and with a clear knowledge that murder in the first degree was punishable by death,--they have deliberately applied the law to the evidence, and found the defendant guilty of murder, and have designated that he is guilty of murder in the first degree. By no fair reasoning can we see how the jury could have been misled in their deliberations, or how the defendant could have been prejudiced in his rights, by the omission to tell the jury what the penalties for the lesser crimes were. Morton v. State (Tenn.) 19 S.W. 225. Our attention is called to subdivisions 8, 9, § 1080, Code Civ. Proc. 1895, which read as follows: "(8) When the argument is concluded the court shall charge the jury in writing, giving in connection therewith, such instructions as are offered or allowed. *** (9) In charging the jury, the court shall give to them all matters of law which it thinks necessary for their information in rendering a verdict." No instructions defining the penalties for murder in the second degree, or manslaughter, were asked by the defendant; and as said, the court did give the jury the law of murder and manslaughter as defined by the statutes, and necessary for their information. The rule laid down in the case of State v. Baker, 13 Mont. 160, 32 P. 647, was therefore complied with, and the defendant cannot complain. Most of the cases cited to use by the...