State v. De Hart

• Decision Date: 01 February 1909
• Citation: 99 P. 438,38 Mont. 211
• Parties: STATE v. DE HART.
• Court: Montana Supreme Court

99 P. 438

38 Mont. 211

STATE v. DE HART.

Supreme Court of Montana

February 1, 1909

Appeal from District Court, Lewis and Clark County; Thos. C. Bach Judge.

C. H De Hart was convicted of robbery, and appeals. Affirmed.

H. S Clayberg, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

SMITH J.

The defendant was convicted in the district court of Lewis and Clark county of the crime of robbery and appeals from the judgment. The prosecuting witness, the man alleged to have been robbed, was named Haar.

1. At the trial John F. Flannery, chief of police of Helena, a witness for the state, was asked: "Did you have any conversation with the defendant in regard to the alleged robbery of Haar?" Defendant's counsel interposed this objection: "We object. No proper foundation has been laid. There has been no proof adduced as yet as to any conversation, nor as to any offense." The objection was overruled, and the witness answered, in substance, that the defendant first denied that he knew Haar or was in his company, but afterwards acknowledged that he did know him, and said that Haar and a man had gotten into a fight on Sixth avenue, and that was how Haar got a scar on his head. It is contended in this court that the evidence was inadmissible because it amounted to a confession "made by a person under arrest to police officers or those having authority over him, without first determining the facts and circumstances surrounding the making of such confession and satisfying the court that such confessions were made fairly and voluntarily, without fear or hope of reward or benefit therefrom, or under duress of any kind or nature." We shall hereafter pass upon the merits of this contention, as applied to the facts disclosed by the record in this particular case; but here it is sufficient to say that the objection interposed did not raise the question.

2. Haar testified: That he was in a place called Steinbrenner's saloon, in Helena, about 10 o'clock of the night in question, having come from Townsend the same evening. That defendant came into the saloon, and they sat down by a table and drank some beer. Afterwards defendant undertook to show him a lodging house, and they went out onto the street. That, when they got some distance off Main street, the defendant "pounded him on the head with something," and he fell down, whereupon defendant robbed him of his pocketbook, containing about $20 in money, and ran away. That he became unconscious for about an hour and later found his way back to Steinbrenner's place and washed the blood off his face. It appeared that the witness was unacquainted with the names of the streets of Helena and had some difficulty in describing the place of the assault, although he said he could go there again and had been "around there yesterday and looked and saw where it was." The court then suggested that during recess the witness should go with the bailiff "and have the place fixed so that he can give the names." To this the defendant's counsel consented, and afterwards the bailiff testified that the witness went over the ground with him, pointed out the streets traversed on the night of the alleged robbery, and finally indicated a certain spot on Fuller avenue as looking like the place where defendant assaulted him, as near as he could remember. It appears from the record that the bailiff had made a map of the route and was testifying from it. The county attorney asked: "Have you indicated the point on the map that he indicated?" The answer was in the affirmative. Witness then testified that the map fairly represented the streets and buildings with reference to Fuller avenue, and that a certain line on the map indicated the route which they took. All of the foregoing went in without objection, but when the map was formally offered in evidence it was objected to, for the reason that, in so far as it showed the place of the alleged assault, it was hearsay. Regardless of whether or not the objection was technically well taken, we cannot see how the defendant was prejudiced by the formal receipt of the map in evidence, after the witness had used it to illustrate his testimony and had definitely described the spot where Haar said the assault took place. Haar afterwards testified that the red line on the map indicated, to the best of his recollection, the course he traveled on the night of the occurrence.

3. Defendant moved to strike out the testimony of the bailiff relating to what Haar told him as to where the assault took place; but, as the testimony was received without objection, and the trip was made with the consent of defendant's counsel, this motion was properly overruled.

4. Defendant objected to the witness Haar testifying, after he made the trip with the bailiff, as to where he was assaulted; but we see no merit in this objection. The witness had a right to refresh his recollection by going over the ground again, if by so doing he was able to identify the objects along the course theretofore taken.

5. Haar testified that he and defendant sat at a table in the saloon drinking, and that defendant saw his pocketbook at that time. Counsel for defendant then asked whether it was possible for De Hart to see the money when Haar took out the pocketbook. The court sustained an objection to the question, and the ruling is assigned as error; but no possible prejudice could have resulted, because the witness testified immediately afterwards that he did not know whether De Hart could see the money or not.

6. In addition to the testimony of the chief of police, other officers were allowed to testify that they had conversations with the defendant touching the offense with which he was charged, while he was in their custody. The defendant objected to this testimony for the reasons hereinbefore set forth. An examination of the testimony shows that at no time did the defendant admit...