State v. Harkins

• Decision Date: 30 October 1929
• Docket Number: No. 6501.,6501.
• Citation: 85 Mont. 585
• Parties: STATE v. HARKINS.
• Court: Montana Supreme Court

85 Mont. 585

STATE

v.HARKINS.

No. 6501.

Supreme Court of Montana.

Oct. 19, 1929.

As Modified, on Denial of Rehearing, Oct. 30, 1929.

Appeal from District Court, Carter County; Stanley E. Felt, Judge.

James G. Harkins was convicted of manslaughter, and he appeals. Affirmed.

George W. Farr, of Miles City, and C. J. Dousman, of Baker, for appellant.

L. A. Foot, Atty. Gen., Stanley R. Foot, Asst. Atty. Gen., Rudolph Nelstead, of Miles City, and R. Shelden, of Ekalaka, for the State.

CALLAWAY, C. J.

This is an appeal by the defendant from a judgment convicting him of manslaughter and from an order denying him a new trial.

I. At the outset counsel for the state argue that we cannot consider the appeal from the order denying defendant's motion for a new trial because before the order was entered an appeal from the judgment had been perfected; therefore it is said the lower court was without jurisdiction to pass upon the motion and we have no right to consider the defendant's appeal therefrom. We do not agree with this position. The right to appeal from an order denying a motion for a new trial in a criminal action is expressly granted by section 12107, Rev. Codes 1921. This section must be read with reference to its companions. Section 12116 provides that, upon the appeal being taken, the clerk with whom the notice of appeal is filed must, within ten days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but, if not, then within ten days from the settlement of the bill of exceptions, transmit to the clerk of the appellate court the record on appeal, showing conclusively that the judge has authority to settle a bill of exceptions after the appeal is taken. He could not do that if the position of counsel for the state is sound.

It has been a common practice for a defendant desiring to be admitted to bail pending an appeal to the Supreme Court to obtain his release from custody upon a certificate of probable cause, followed by the giving of a bond (as prescribed by section 12138), and this course has been followed where the motion for a new trial is still pending in the trial court. The practice is proper. Otherwise, upon the entry of judgment, one desiring to move for a new trial must needs lie in jail awaiting the court's ruling upon the motion; he dare not appeal to the supreme court, for that would deprive the trial court of the power to rule.

“An appeal to the supreme court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that in his opinion, there is probable cause for the appeal, but not otherwise.” Section 12113, Rev. Codes 1921. “After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail–1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion in all other cases.” Section 12137.

These statutes recognize the benevolent provisions of the Constitution that “all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great,” and “excessive bail shall not be required” (sections 19 and 20, art. 3), and declare that, even after conviction, pending appeal, a prisoner, within the restrictions imposed by sound judicial discretion, may have his liberty upon giving sufficient bail.

Moreover, we think the holding in Molt v. Northern Pacific Ry. Co., 44 Mont. 471, 120 P. 809, 810, followed in Murphy v. Nett, 47 Mont. 38, 130 P. 451, is applicable to the present case. “In case of appeal from a judgment, the lower court loses jurisdiction over the judgment; but it still retains jurisdiction over the motion for a new trial, with power to rule thereon. Proceedings on motion for a new trial are independent of the judgment and, in a sense, collateral thereto.” And see Hoppin v. Long, 74 Mont. 558, 241 P. 636. Any other interpretation of the statute would, in some cases, deprive the defendant of the statutory right of appeal.

II. The defendant admits that he killed John Jolly on the 27th of July, 1928, but claims he did so in self-defense. The parties lived near Chalk Buttes in Carter county, about 30 miles southerly from Ekalaka. Their residences were about a mile and a half apart, and each lived upon lands owned by himself. The defendant had resided in the locality 14 years and Jolly about 3 years. Between the lands of the parties there was a half section of land owned by one Ripley, which was not leased by either party. The relations between the defendant and Jolly, first friendly, became unfriendly. In 1927 the defendant had caused Jolly to be prosecuted for stealing a heifer. Jolly was acquitted, but after the trial paid for the animal. Angered because of his arrest, he made threats against the defendant, some of which were communicated to the latter. The testimony shows clearly that Jolly was a man of great strength and of violent temper. When in anger, he appeared almost insane. He bore the reputation of being a quarrelsome, violent, and dangerous man. All of this was known to defendant. At least four persons, one of whom was a deputy sheriff living in an adjoining county, warned defendant that his life was in danger from Jolly. The defendant was 58 years old, and weighed about 145 pounds. He testified that he never was very strong. Jolly, on the other hand, weighed 170 or 175 pounds. According to defendant's testimony, while he and Jolly were on good terms, Jolly boasted of numerous physical encounters in which he had been engaged, and said he had never encountered a man who had got the better of him. He said to defendant, “Any man that crosses my trail or fools with my business is fooling with fire.” In talking with defendant, Jolly said he left the Powder River country because of the enmity of Charley Miles, and that some day he would meet Miles alone and he would “beat the old son of a bitch to death.” Jolly threatened the life of Amos Harkins, a son of the defendant, on two occasions, and, because of fear of Jolly, the boy left home because he did not feel safe in remaining there with Jolly as a near neighbor. These facts were communicated by the boy to his father. After the trouble over the heifer, Jolly told defendant to keep off the Jolly place, and defendant gave Jolly a like warning to keep off the Harkins place. Defendant testified that, after the termination of the case over the heifer, “I took precautions to protect myself. I did not stay alone after that as I was afraid to stay by myself. I got a hired man to stay with me and I continued to keep someone with me right after that for that specific purpose because I was afraid that some violence would be done me by the deceased.” Mrs. Harkins had left defendant in 1927 because Harkins was drinking moonshine whisky furnished by Jolly; but she was at home at the time of the tragedy. The defendant's general reputation as a quiet and peaceable citizen was good.

A witness testified that about Christmas of 1927 he had a conversation with defendant; no one else being present. The witness said: “We were talking about Mr. Jolly. Of course, he said he did not like Jolly and he said, ‘if it wasn't for the law back of it he would shoot him like a snake.”’

Trenk, a witness for the state, testified that about the month of December, 1927, at the Chalk Buttes post office he was present when the defendant changed a tire on his car. He helped defendant part of the time, and in changing the tire witness noticed an automatic pistol on the car seat. At that time and place in the conversation there, said Trenk, in the presence of Ralph Hope and himself, defendant made the statement that he “intended to get Mr. Jolly.”

In July, 1928, Jolly was caring for some 600 head of sheep which occasionally strayed upon the land of the defendant. On the morning of July 27, when Mrs. Jolly arose, she noticed that the sheep were absent from their bedding ground, and told her son Clarence, 9 years old, to go after them. Shortly thereafter she told her husband that the sheep were gone. He arose, dressed himself hastily, and left the house. He was bareheaded and unarmed. There was a pocket knife in his “right hand front pocket,” a witness said. On that morning defendant got up early and went in his car to borrow a piece of machinery from a neighbor. While returning, he observed Jolly's sheep in his (Harkins') inclosure, and started to drive them out. Clarence, in pursuit of the sheep, saw his father, who waved to him and said the sheep were “up there.” Clarence passed out of sight of his father, and did not see him again until he saw him and defendant within 5 feet of one another, and saw defendant shoot his father. Clarence was then 113 steps from the two men. He said he did not hear any words between them whatever before the shooting. Before or during the shots he saw his father raise his hand. “He also stepped backwards–west, away from Harkins. Harkins was facing west at that time and my father was facing east.” His father fell, Clarence said, with his head to the west and his feet to the east. Testifying before the coroner's jury, the boy said he heard but one shot fired, but at the trial he said he heard two. When he saw his father fall, the boy ran away from the scene of the shooting.

The defendant testified that when he first saw Jolly the distance between them was about 60 yards; that Jolly and he continued to walk toward each other until they got within a distance of perhaps 35 or 40 yards when the defendant said, mildly, “When did you lease this place, Jolly?” to which Jolly said, not showing any anger, “They got over on you a little, did they?” to which defendant replied, “Yes, and they have been on me before.” Quick as a flash,...