State v. Gunn

Decision Date23 April 1931
Docket Number6799.
Citation300 P. 212,89 Mont. 453
PartiesSTATE v. GUNN.
CourtMontana Supreme Court

Rehearing Denied May 21, 1931.

Appeal from District Court, Pondera County; R. M. Hattersley, Judge.

Frank Gunn was convicted of murder in the first degree, and he appeals.

Modified and remanded with directions.

W. F O'Leary, of Great Falls, and Arnot & Doyle, of Conrad for appellant.

L. A Foot, Atty. Gen., T. H. MacDonald, Asst. Atty. Gen., and L. P. Donovan, of Shelby, for the State.

FORD J.

This case was here before (State v. Gunn, 85 Mont. 553, 281 P. 757), and we held that the evidence was insufficient to support a verdict of murder in the first degree; the judgment was reversed and the cause remanded to the district court with direction to grant defendant a new trial.

Upon a retrial defendant was again found guilty of murder in the first degree and by judgment of the court sentenced to life imprisonment in the state's prison; his motion for a new trial was denied, and he appeals from the judgment and the order denying the motion. The various specifications of error present for determination the sufficiency of the evidence to support the verdict.

Defendant contends, as he did on the former appeal, that the state's testimony is so unreasonable and improbable, and so at variance with the undisputed physical facts, that it is unworthy of belief and cannot support a verdict of murder in the first degree.

On appeal in a criminal case a review by this court is limited to an examination of the record to determine whether there is any substantial evidence to justify the verdict. State v. Gustin, 85 Mont. 581, 281 P. 351.

The homicide occurred about 1 o'clock a. m. on July 21, 1928. On the evening of July 20, 1928, about 9 o'clock, Paul and O. J. Carney and Ed. Kasten went to the roadhouse of defendant located near Sweet Grass. While there, many drinks were ordered by them and served by defendant; the Carneys drinking whisky and Kasten beer. Kasten paid for one of the drinks with a $10 bill; defendant gave him back $2.50 in change, when he should have given him $7.50. Kasten called defendant's attention to the mistake, and he was given the proper change and made no further comment upon the incident. The Carneys took exception, accused defendant of attempting to short-change Kasten. There is some conflict in the testimony as to what actually took place, but it does show that the Carneys became abusive and called defendant vile names. Defendant says that he telephoned to Sweet Grass for assistance and went to his room, got his revolver, and placed it behind the bar. Before assistance arrived the Carneys and Kasten had left. How long the controversy was carried on does not appear. However, another party of three arrived at the roadhouse at about 10:30 and, according to the testimony of two of the party, the Carneys were drunk but sociably inclined and indulged in no quarreling of any kind. The Carneys and Kasten left about 11 o'clock, traveling in a Dodge coupé; O. J. Carney was driving; Paul sat next to him, and Kasten on the right side of the car. At a point about one-half mile south of Sweet Grass on the main road their engine stalled; the lights were turned off and the Carneys went to sleep. Kasten remained awake. The testimony conclusively shows that at this time, approximately 11 o'clock, the Carneys were very drunk and sick, while Kasten was apparently sober. At about 1 o'clock defendant, with Bertha Erickson, left the roadhouse in a car, for the purpose, according to testimony of defendant and his witnesses, of meeting his wife who was to arrive in Shelby from Havre at 5:30 a. m. He overtook the Carney car where it had stopped and it was at this point defendant shot Paul Carney. Defendant's car was stopped slightly back and to the left of the Carney car; the lights on defendant's car were left burning.

The testimony is in hopeless conflict as to the events leading up to the killing of Paul Carney. Kasten testified defendant stepped, got out of his car, rapped on the door of the Carney car and, when it was opened, said: "'What are you doing here?' I said in answer to that, 'The boys are drunk and are asleep.' 'Oh,' he said, 'it is you sons-of-bitches, I thought I would overtake you. I am out of my joint, if you sons-of-bitches want to fight, get out and fight."' That he struck O. J. Carney three times over the head with a pistol and then dragged him out of the car; that after O. J. was out of the car he was struck again; that he staggered backward several steps and fell in the road on his back; that he called to Paul for help; that Paul got out of the car and started the fight over again, making a couple of passes at defendant, but that he (Kasten) could not see defendant; that defendant and Paul were both standing on their feet with their left hands in the air when a shot was fired and Paul sank to the ground. He then heard a woman's voice say, "Come on Frank, you have done enough," and that Gunn started his car and ran over O. J. Carney; that O. J. crawled to the Carney car, and that he (Kasten) pulled Paul's body over close to the car, and then went to Sweet Grass for help.

O. J. Carney testified that after his car stalled he went to sleep and remembered nothing until he heard defendant say, "Here you are, you sons-of-bitches, I knew I would catch up with you"; that at the time he was trying to start his car; that when he raised up he was hit on the cheek, chin, and above the eye, partially dragged out of the car by defendant; that he became unconscious, and when he regained consciousness he was lying in the middle of the road and a car was approaching him; that he called out, "For God's sake, don't run over me, you have done enough"; that he was run over and rendered unconscious again; that the next he remembered was the Gunn car coming from the south and he then dragged himself, or crawled, to his car and asked Kasten to get help.

Dr. Kell, who attended O. J. Carney, testified that he first saw him about 10:30 o'clock p. m. on the day of the homicide; that "he had a temperature of 103.4, also had a wiry pulse; labored breathing; spitting some blood; eleven contused and lascerated wounds on the left limb; four on the right; five cuts on the face; a contused wound on the left shoulder; a contused left elbow; a fractured eighth rib, left rib. As to the wounds on the face, there were four in number. Two large ones, one large one above the eye, and one large one on the chin cut almost to the bone; they were on the left side, as I recall." That he considered the wounds on the face such as might have been produced or made by being struck with a pistol. Similar testimony as to the nature of the wounds upon O. J. Carney was given by Dr. Sullivan.

There was also testimony that the wheel tracks of the Gunn car showed "there was an abrupt break in them; there was no track there at all for a matter of eighteen inches or maybe two feet; they then resumed again and went down the road. *** As to the condition of the ground there, *** the car had passed over something there; there was a pressure there in the ground, and that space where the car had passed over something was about or between eighteen inches and two feet."

We think it clear from the evidence that the broken rib and the wounds on the body, arm, and legs of O. J. Carney resulted from his having been run over by the Gunn car.

Defendant testified that he left his roadhouse about 1 o'clock a m. to go to Shelby to meet his wife, who had written him she would arrive from Havre on the train which reached Shelby at 5:30 a. m.; that Bertha Erickson accompanied him and was going as far as Sunburst; that after turning onto the main road and about a quarter of a mile distant, he came upon a car; that he stopped his car, took his flash-light, got out, and offered assistance; that until he got to the car he did not know who was in it; that as he walked up to the car he turned on the flashlight and asked if they needed help; that O. J. Carney said: "It is you, God damn you," started to get out of the car, and, as he did so, hollered, "Come on Paul, we have got the son-of-a-bitch"; that O. J. Carney got out of the car. "I backed up a couple of steps, it kind of surprised me, so as soon as he got out he started towards me, swinging his arms and hitting me, and I started to fight back with him, and we scrapped around there quite a while, quite a little bit; he was hitting me and I was hitting him. I could not hit him, so I had the flash-light, I hit him two or three times with that flash-light, then he clinched, he jerked and grabbed me, we went to the ground. *** He was on top. *** I finally rolled him over. *** I held him there and jumped in his ribs with my knees as hard as I could. *** Just at that time Paul Carney jumped on my back and threw me backwards and jumped on top of me, and we wrestled there on the ground for a little bit, and I got up with him, and we continued to wrestle. *** While we were wrestling in some manner he got his leg twisted around mine and threw me backwards and as he did, my leg hurt, and I hit the ground, and Paul jumped on me and held me by the shoulders; he was trying to pound my head on the ground. *** He was hurting my head. I said, 'Get off me, you hurt my leg'; he said, 'Get off of you, hell, I am going to kill you, you son-of-a-bitch;' I said, 'If you don't get off of me, I am going to shoot;' He said, 'Go ahead and shoot, you haven't got guts enough, God damn you,' and drew back to hit me, and as he did I shot. *** He rolled off of me. I tried to get up and I couldn't put any weight on my leg, so that I started for the front of the car. I got hold of a wheel, then pulled myself up, then hopped around until I got to the door and...

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