State v. Gunn
Decision Date | 23 April 1931 |
Docket Number | 6799. |
Citation | 300 P. 212,89 Mont. 453 |
Parties | STATE v. GUNN. |
Court | Montana 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.
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: ' 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 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
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. ...
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