State v. Gunn
| Decision Date | 06 November 1929 |
| Docket Number | No. 6533.,6533. |
| Citation | 85 Mont. 553 |
| Parties | STATE v. GUNN. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Toole County; R. M. Hattersley, Judge.
Frank Gunn was convicted of murder in the first degree, and he appeals. Reversed and remanded, with directions.
W. F. O'Leary, of Great Falls, and Robert L. Clinton, of Shelby, for appellant.
L. A. Foot, Atty. Gen., T. H. MacDonald, Asst. Atty. Gen., and Louis P. Donovan, of Shelby, for the State.
The defendant, by verdict of the jury, was found guilty of murder in the first degree, and, by judgment of the court, sentenced to life imprisonment. His motion for a new trial was denied, and this appeal taken from the judgment and the order denying the motion.
The defendant admitted the homicide, and attempted to justify it on the ground of self-defense. The principal contention on appeal is that the evidence is insufficient to support the verdict of murder in the first degree.
Murder in the first degree is defined by section 10955, Revised Codes 1921, as follows: “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, or perpetrated from a deliberate and premeditated design, unlawfully and maliciously, to effect the death of any human being other than him who is killed, is murder of the first degree.”
In order to sustain a conviction of murder in the first degree, the burden rests upon the state to establish, not only the killing by the defendant, but also to prove deliberation and premeditation. State v. Kuum, 55 Mont. 436, 178 P. 288;State v. Colbert, 58 Mont. 584, 194 P. 145.
It is the contention of defendant that there is no credible evidence in the case to warrant a finding that the killing was done with deliberation or premeditation. The homicide occurred in the early morning of July 21, 1928. The defendant at that time was running a roadhouse near Sweet Grass. About 9 o'clock in the evening of the 20th day of July, Paul and O. J. Carney and Ed. Kasten came to the roadhouse. This was the first time the defendant ever saw them. While at the roadhouse, drinks were ordered by them and served by defendant Gunn, Kasten drinking beer and the Carneys drinking whisky. One of the drinks was paid for by Kasten by means of a $10 bill. Through mistake defendant gave him back $2.50 in change when he should have given him $7.50. Upon his attention being called to the mistake, defendant, “in a gentlemanly way,” as Kasten said, gave him his additional change, and, so far as Kasten was concerned, the incident was closed. According to the testimony of O. J. Carney, the defendant, upon having his attention called to the fact that he had not given Kasten sufficient change, stated, “get it if you can.”
There is a conflict in the testimony as to some of the details of the altercation that took place at the roadhouse. It satisfactorily appears, however, that the Carneys were under the influence of intoxicating liquor, were boisterous and quarrelsome, and created a sufficient disturbance so that the defendant caused a telephone message to be sent to Sweet Grass for help. Before help came, the Carneys and Ed. Kasten left the roadhouse in their automobile, a Dodge coupé, and started homeward on the main road from Sweet Grass to Shelby. At a point about one-half mile south of Sweet Grass, and about the same distance from the roadhouse by the traveled road and 1,590 feet by airline, their engine stalled. The lights on the car were turned off. The Carneys went to sleep in the car; Kasten remaining awake. O. J. Carney occupied the position at the wheel, Paul was next to him, and Kasten sat at the right. About 1 o'clock in the morning, and about two hours after the Carneys and Kasten had left the roadhouse, the defendant, with Bertha Erickson, started for Shelby in his car to keep an appointment to meet his wife, who was to arrive in Shelby at about 5 or 5:30 a. m. from Havre. He overtook the Carney car standing in the road. It was at this point that the deceased, Paul Carney, was shot by the defendant.
There is a sharp conflict in the evidence as to the order of events culminating in the shooting. It appears that, when the defendant overtook the Carney car, he stopped his car so that the front wheels of his car were about 4 feet to the rear, and about 5 feet to the left, of the Carney car. The lights on the defendant's car were left burning. The record is replete with evidence that the ground in front of and to the side of the Carney car was torn up; pieces of gold and silver coins, admittedly belonging to O. J. Carney were scattered about, and the watch of O. J. Carney was found on the ground disconnected from the chain. The evidence discloses that the hook or snap on the chain had been straightened out. A flashlight, with the glass broken, was also found on the ground. There is no conflict in the evidence as to these physical conditions existing at the place of the homicide. That a desperate struggle was staged there is certain, in view of the conditions shown to exist. Additionally, it appears from the undisputed evidence that immediately after the homicide blood was running from the mouth, nose, eye, and ear of the defendant; his eyes were swollen and discolored, and both bones of his right leg were broken so that he was unable to sustain any weight upon it. He also had a bruise over his right hip. Photographs and X-rays of the defendant, taken shortly after the homicide, were introduced in evidence, revealing the injuries above mentioned. As a result of his injuries, he was confined in a hospital from the time of the homicide until the 8th day of December. Dr. S. E. Keenan, who treated him at the hospital, described the fracture of the bones as a spiral longitudinal fracture, and said it was usually caused by a twist.
Defendant contends that the evidence offered by the state is so unreasonable and improbable, and so contrary to the undisputed facts that it is unworthy of belief and cannot be accepted as the basis for a verdict of murder in the first degree.
The state's version of what transpired at the time of, and immediately prior to, the shooting rests upon the testimony of O. J. Carney and Ed. Kasten. Bertha Erickson, the only other eyewitness, was subpœnaed by both the state and the defendant, but could not be found at the time of the trial.
Kasten testified that, when defendant overtook the Carney car, he stopped, alighted from his car, knocked on the door of the Carney car, and “hollered”; that the Carneys were then sleeping; that the witness opened the door of the Carney car, which he said was then closed; that the defendant held a flashlight in his left hand and a revolver in his right hand. According to this witness, the defendant said, “What are you doing there?” to which he replied that the Carneys were drunk and asleep; that the defendant then said, ; that he then beat O. J. Carney over the head with the gun three times while Carney was in the car; that then O. J. Carney started to get out of the car, and the defendant hit him once more after he was out of the car and knocked him down; that when O. J. Carney fell he “hollered,” and Paul Carney awakened, got out of the car, and made a couple of passes at defendant; that he saw Paul Carney with his left hand raised in the air and held by defendant's left hand, heard a shot fired, and saw Paul Carney sink to the ground. He said that Paul Carney and defendant were both on their feet with their left hands in the air when the shot was fired. He then said he heard a woman's voice say, “Come on, Frank, you have done enough now,” and that then the Gunn car started and ran over O. J. Carney while lying on the ground.
O. J. Carney testified that after his car stalled on the road he went to sleep and the next thing he remembered was a man speaking. He said ...
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