State v. Heaston

• Decision Date: 05 January 1940
• Docket Number: No. 7968.,7968.
• Citation: 109 Mont. 303
• Parties: STATE v. HEASTON.
• Court: Montana Supreme Court

109 Mont. 303

STATE

v.HEASTON.

No. 7968.

Supreme Court of Montana.

Nov. 15, 1939.

Rehearing Denied Jan. 5, 1940.

Appeal from District Court, Fifth District, Beaverhead County; Henry G. Rodgers, Judge.

William J. Heaston was convicted of first-degree murder, and he appeals.

Affirmed.

J. E. Kelly, of Dillon, and S. T. Schreiber, of Boise, Idaho, for appellant.

Harrison J. Freebourn, of Helena, and L. A. Schulz and T. E. Gilbert, both of Dillon, for respondent.

ERICKSON, Justice.

The defendant was convicted by a jury in the district court of Beaverhead county in the Fifth Judicial District of first degree murder. This is an appeal from the judgment, and from the order denying defendant's motion for a new trial.

On July 24, 1938, the defendant was living in a certain dwelling house at Wise River, Beaverhead county, Montana. On that day Joseph Potts came to visit at the residence of his daughter, Mrs. Martin, in Wise River. The Heaston residence and Martin residence were some sixty feet apart. Potts claimed title to the old townsite of Wise River and also claimed ownership of the dwelling on the townsite in which defendant resided. There had been some difficulty between the two over defendant's continued possession of the house. Ingress to the property on which the dwelling stood was gained through a gate which ordinarily was padlocked, with the key being hidden under a certain rock known to all those who commonly used the gate. On the day in question Potts removed the key from under the rock and had it in his possession while Potts was at the Martin residence that day. During the course of the conversation which ensued between defendant's son, William Heaston, Jr., who came to the Martin home and Potts and asked to see the deceased and which took place just outside the Martin residence, some reference was made to the gate and the key. The testimony is that the conversation between them was friendly up to the moment the gate and key were mentioned. Except for the first part of the conversation no one overheard what was said by them, except for certain scraps of the conversation testified to by various witnesses.

The witness Mrs. Mary Heaston testified that Potts struck Heaston, Jr., in the face and then said: “I will kill you, you son of a bitch. I will do it right now.” The defendant and other witnesses for the defense testified to this same statement. A fight ensued. Mary Heaston testified with Heaston, Jr., that Potts during the course of the fight succeeded in getting his arm around Heaston Jr.'s throat and succeeded in partially choking him, but defendant did not testify to seeing this. With the exception of that testimony, however, all of it indicates that the two were evenly matched and that it was a fair fight. At the moment of the fatal shooting, the witnesses Mr. and Mrs. Martin, daughter and son-in-law of Potts, testified that Heaston, Jr., had knocked Potts to the ground and that he was in the act of rising when the shots were fired. The testimony of the doctors who performed the autopsy indicates that the course of the bullets in the body was such that Potts was not in a standing position with his body erect. In order for the bullets to take the course they did, it was necessary that Potts be in an extremely stooped position.

The witnesses for the defense, though denying that Potts was getting up after being knocked down, testified that at the moment the shots were fired there had been and was a pause in the fight and that Potts was in a stooped-over position.

The record shows that at the time the fight started the defendant was at the door of his residence, and that he saw the fight start; that he went into his own house and secured a loaded revolver from the wall; that he walked within a few feet of the combatants, and without warning fired three shots at Potts and then returned to his house, and that Potts died as a result of the shooting.

The theory upon which defendant based his defense was that, when he saw Potts and his son engaged in the fight and heard Potts threaten to kill his son, he feared his son's life was in danger and that he thought in order to protect his son it was necessary for him to take the life of Potts; in other words, that the homicide was a justifiable one under the theory that he was acting in the defense of his son's life.

There are many assignments of error, some of which will require an additional statement of facts, and this will be given in the discussion of the particular assignment.

Error is predicated upon the insufficiency of the information, the charging part of which reads: “The said William J. Heaston, on or about the 24th day of July A. D. 1938, at the County of Beaverhead, State of Montana, did then and there wilfully, unlawfully, feloniously, deliberately, premeditatedly, and of his deliberate, premeditated malice aforethought kill and murder one Joseph W. Potts, a human being,” etc. It is the contention of the defendant that the allegation of time in the information is not sufficient.

Section 11848, Revised Codes, provides: “The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before finding or filing thereof, except where the time is a material ingredient in the offense.” It is not here claimed that time was a material ingredient of the offense charged. The date alleged in the information was prior to the date of its filing and, since time was not an essential ingredient of the offense, the statement as to time is sufficient. For an exhaustive discussion of this subject see State v. Thompson, 10 Mont. 549, 27 P. 349; also State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann.Cas. 398;State v. Terry, 77 Mont. 297, 250 P. 612; 31 C.J. 682.

Counsel further urges that the information is faulty in that it does not state the means or the manner by which the offense was committed. This court has passed on that a number of times, and we do not propose to go into it at length again. The information need not state the means by which the killing was done. State v. Hayes, 38 Mont. 219, 99 P. 434;State v. Neilson, 38 Mont. 451, 100 P. 229;State v. Guerin, 51 Mont. 250, 152 P. 747.

Error is predicated in specification No. 2 on the delay of the court in pronouncing judgment-particularly it is based on the fact that the judgment was not pronounced in the same term of court during which the trial was had and the verdict rendered. In order to dispose of this assignment it is necessary to examine the record to determine what transpired between the date the verdict was rendered and the date the judgment was pronounced.

On November 18, 1938, the jury returned its verdict finding the defendant guilty of murder in the first degree, and fixing punishment at life imprisonment. At the defendant's request time for pronouncing sentence was set for the same day. At the hour so fixed defendant asked that the time for passing sentence be delayed thirty days. The court denied this request, and time for pronouncing judgment was reset at November 19, 1938. At that time defendant appeared and presented a motion in arrest of judgment. At the presentation of this motion the court deferred pronouncement of judgment until the motion in arrest was disposed of. This motion was set for hearing on November 25th. After that hearing the court granted to the state time for filing briefs, and on November 29, 1938, the motion was denied. The defendant then presented a motion for new trial, and it was set for hearing on December 16, 1938. A hearing on the motion was had, and on that hearing the state was given ten days in which to file briefs, and the motion was taken under advisement. On January 19, 1939, the motion was denied, defendant then being in court personally and with counsel. Defendant was asked if he had any legal cause why judgment should not be pronounced forth with, to which he replied he had none. Judgment was then on the same day pronounced.

Ordinarily, the court must pass judgment without delay, other than that provided in section 12055, Revised Codes, which declares: “After a plea or verdict of guilty, or after a verdict against the defendant on the plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed.”

Section 12066 provides: “If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered.”

Here there were various motions presented to the court by defendant which properly could be disposed of before the judgment be pronounced. Many cases are cited by counsel to the effect that delay in the pronouncement of judgment is error. In those cases there were no intervening motions, and in each case cited the court was careful to except the situation presented here by defendant's motions. Typical of the cases cited is that of People ex rel. Smith v. Allen, 155 Ill. 61, 39 N.E. 568, 569, 41 L.R.A. 473, where the court quotes with approval from Colby on Criminal Law, 390, 392, as follows: “‘No court has authority to suspend sentence indefinitely against criminals who have been found guilty by a jury, or have pleaded guilty. A suspension of sentence or stay is not authorized except upon *** an application in arrest of judgment or for a new trial.”’ This case is squarely within the exception stated.

What is said in People v. Vaughn, 25 Cal.App. 736, 147 P. 116, at page 117, is also applicable to the facts here, where the delay in pronouncing judgment was occasioned by defendant's own motions and without his objection. It is there said: “The postponement of the pronouncing of judgment was had at the request of the defendant. ...