State v. Gibbs

• Decision Date: 10 November 1890
• Citation: 25 P. 289,10 Mont. 213
• Parties: STATE v. GIBBS.
• Court: Montana Supreme Court

25 P. 289

10 Mont. 213

STATE v. GIBBS.

Supreme Court of Montana

November 10, 1890

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Hoffman & Donovan, for appellants.

Henry J. Haskell, Atty. Gen., for the State.

BLAKE C.J.

The grand jury of Cascade county in this state returned, January 24, 1890, an indictment charging the appellant with the commission of the crime of perjury. At that time he entered a plea of not guilty, and was tried by a jury in the following May term of the district court. The transcript has not been carefully prepared by the appellant, and we have been compelled to dismiss this appeal, and also reinstate the case for hearing. Ubi Supra. While we cannot notice all the matters which have been urged in the brief of counsel, we will try to review the rulings of the court below which are properly before us.

It is alleged in the indictment that Frank Gray was tried August 26, 1889, in the justice's court of Cascade county before W. H. RACE, a justice of the peace, for the offense of maliciously and unlawfully shooting, August 22, 1889 "four domestic geese," the property of another that Gibbs testified as a witness for said Gray that he was in the city of Great Falls during the afternoon of the last-named day and saw Gray at different places therein; and that the said Gray and Gibbs were together in a boat upon the Missouri river at the times specified. The testimony which was offered by the respondent upon the trial tended to prove that the crime that was charged against Gray was perpetrated in the afternoon of August 22, 1889, when Gray and Gibbs and two women were in a boat upon the Missouri river, about three miles above Great Falls Some exhibits concerning the official character of RACE, the justice of the peace, and the complaint against Gray, and the record of the proceedings before the magistrate, were offered in evidence, but are not embodied in the transcript. These documents form the foundation of a number of alleged errors, and it was the duty of the appellant to have had them incorporated in the bill of exceptions. The censure, which appears in the brief of the appellant, relating to the stenographer, is undeserved. In the absence of this evidence, we cannot determine the validity of the objections that were made to their introduction. The appellant maintains that he was not allowed the time to prepare for his trial which is provided by the statute, as follows: "If the defendant, however, desire, he shall have two days after he makes his plea in which to prepare for trial." Comp. St. div. 3, § 275. The plea was entered January 24, 1890, and the trial commenced May 8, 1890, and the position is groundless.

The appellant filed, May 7, 1890, a motion for a continuance of the action, to enable him to procure the depositions of three persons. The following proceedings were then had, according to the transcript: "Thereupon counsel for the state announced to the court that they would admit that the witnesses named in said affidavit would testify to the facts therein stated if they were present, but reserved the right to impeach the testimony of said witnesses in case they deemed it advisable to do so, and thereupon the court overruled the motion." This action is controlled by the cases of Territory v. Perkins, 2 Mont. 467, and Territory v. Harding, 6 Mont. 323, 12 P. 750. We are asked by the counsel for the appellant to reconsider the interpretation of the statutes which govern the postponement of trials and have received the thoughtful scrutiny of the supreme court of the territory. No opinions to the contrary are cited, and no new argument is submitted upon this question. Upwards of 14 years have elapsed since the decision was made in Territory v. Perkins, supra, and the legislative assembly had the power to change the construction of this law if it had been deemed erroneous. But no legislation of this nature has been enacted. We therefore reaffirm the cases of Territory v. Perkins, supra, and Territory v. Harding, supra, upon this proposition.

It is contended that the court had no authority to prescribe the condition that the state should have the right to impeach the testimony of the witnesses who are referred to in the affidavit for the continuance. We do not so understand the ruling. The counsel for the state announced what they intended to do under certain circumstances, and the court did not assent thereto, and could not be bound thereby. But, if we take the same view as the appellant, we assert that the respondent declared correctly the law, which allows this privilege without any order of the court.

N. P. Loberg and Hattie Loberg testified in behalf of the state that they were present as witnesses at the trial of said Gray for the offense of shooting the aforesaid geese, before the said RACE, as justice of the peace of Cascade county. They also testified regarding the evidence which was then given by both Gray and Gibbs, as well as themselves. This testimony was admitted after the objections of the appellant that it was immaterial and incompetent had been overruled by the court. The language of the brief is that "parol evidence of what a witness said before an examining magistrate is inadmissible," and authorities are cited in support of the contention. The testimony in regard to the proceedings in the justice's court does not appear in the record, but the officer entered a final judgment in the action. There is no statute which requires the testimony of witnesses given under the conditions set forth in the transcript to be reduced to writing, and the ruling in this respect was correct. An examination of the issues shows that the evidence was material. In Wood v. People, 59 N.Y. 117, Mr. Justice ANDREWS, in the opinion, says: "It must appear, either from the facts set forth in an indictment for perjury that the matter sworn to and upon which the perjury is assigned was material, or it must be expressly averred that it was material, and the materiality must be proved on the trial, or there can be no conviction. A false oath upon an immaterial matter will not support a conviction for perjury." Says Prof. Greenleaf in his work on Evidence: "In proving what the prisoner orally testified, it is not necessary that it be proved ipsissimis verbis, nor that the witness took any note of his testimony; it being deemed sufficient to prove substantially what he said, and all that he said, on the point in hand." Vol. 3, (13th Ed.) § 194. See also, Com. v. Grant, 116 Mass. 17; 2 Bish. Crim. Proc. § 854. The effect of the evidence was to prove the circumstances attending the crime which has been charged against Gray, and the nature of his defense, an alibi. In this way the materiality of the testimony upon the trial of Gray is demonstrated.

It is argued that the following instruction is erroneous: "The matters necessary for the state to prove to the satisfaction of the jury, beyond a reasonable doubt, to authorize you to convict, are: *** Seventh. That such act of perjury has been established to your satisfaction, beyond a reasonable doubt, by more than one witness, or that the testimony of such...