State v. Kacar
| Decision Date | 06 October 1925 |
| Docket Number | 5750. |
| Citation | 240 P. 365,74 Mont. 269 |
| Parties | STATE v. KACAR. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Anna Kacar was convicted of murder in the second degree, and she appeals. Reversed, with directions to grant new trial.
M. S Galasso and H. C. Levinski, both of Butte, for appellant.
L. A Foot, Atty. Gen., and N. A. Rotering, of Butte, for the State.
The defendant was convicted of murder in the second degree. Motion for a new trial was denied. Three notices of appeal appear; by the first she sought to appeal from the judgment and from the order denying her a new trial; by the other two she appealed from the judgment alone. By reason of mistakes appearing in the first notice, and as the result will not be affected, it may be considered that the attempted appeal from the order was abandoned, and that the appeal, perfected by one of the other notices, is from the judgment alone.
The judgment roll brings up two bills of exception-one relating to the action of the court in refusing to set aside the information upon defendant's motion, the other purporting to incorporate the testimony taken and proceedings had during the trial. Counsel for the state have moved to strike from the record both these bills, on the ground that the transcript fails to show that the drafts of the bills were presented to the judge for settlement upon notice of at least two days to the adverse party-the county attorney-pursuant to section 12044, R. C. 1921. The motion is denied. As to the first bill, the judge certifies that he settled and allowed the same "after due and sufficient notice to plaintiff." As to the second, the record, as supplemented, shows a proper notice was given the county attorney advising him that the bill would be presented to the judge for settlement on April 7, 1925, at 2 p. m.; and the minutes show that on April 7, the county attorney and counsel for defendant stipulated in open court that "the settlement of the bill of exceptions of the defendant herein be continued from this day to Saturday, April 11, 1925, at 10 a. m.," and the court made an order accordingly; further, that on April 11, upon application of the chief deputy county attorney, "the settlement of the bill of exceptions herein is by the court ordered continued until Tuesday, April 14, 1925, at 10 o'clock a. m."; the bill was allowed and settled on April 14. In view of the facts the motion to strike these bills of exceptions, especially the last one, smacks loudly of trifling with this court.
1. The defendant's first assignment of error, based upon the first bill of exceptions, is that "the court erred in overruling defendant's motion to quash, dismiss, and set aside the information." To sustain this it is urged that leave to file the information was granted upon an oral request of the county attorney, in disregard of the provisions of section 11624, R. C. 1921, which provides:
"Application for leave to file an information before an examination, commitment, or admission to bail must be made to the court on written motion by the county attorney."
The record does not bear out counsel's contention.
A hearing was had upon defendant's motion, at which testimony was taken from which it appeared: That the defendant was not given a preliminary hearing before a magistrate, that a deputy county attorney appeared in open court and orally requested leave to file an information against the defendant, presenting a written request for such leave, signed by the county attorney, which was granted, following which the information was filed immediately. In the written request, the county attorney represented to the court, among other things, that the defendant had been arrested, accused of the crime of murder, alleged to have been committed in Silver Bow county, and that he had conversed with the witnesses on behalf of the state with reference to the accusation, and from his investigation he was satisfied "that the defendant is guilty as charged." The court deemed the written request sufficient, and we think it exercised its discretion properly in so doing. The county attorney was not required to support his written motion with an affidavit, nor was it necessary that he set forth therein, with technical accuracy, the facts constituting a formal charge. The statements made by him were under his official oath. State v. Shafer, 26 Mont. 11, 66 P. 463; State v. Martin, 29 Mont. 273, 74 P. 725. The statutes were complied with substantially. Sections 11624, 11625, 11626, R. C. 1921; State v. Vuckovich, 61 Mont. 489, 203 P. 491.
2. We now come to the main record on appeal. It contains a great deal of useless matter; 60 pages are consumed by the proceedings incident to impaneling the jury, and yet no complaint whatever is lodged concerning the jury; the instructions given and refused are inserted twice; and there are other duplications. Other infractions of this court's rules, respecting the preparation of a transcript, appear.
In the preparation of appellant's brief, the rules have been disregarded. The assignments of error are faulty to a degree. A sample:
"The court erred in refusing to the defendant the right to introduce evidence to contradict the question whether dying declarations were made in the article of death."
This odd statement is not followed by a compliance with subdivision b of rule 10 which prescribes in part:
"When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected."
Ordinarily, we should feel warranted in refusing to consider the case further, but the record discloses an unusual situation. The defendant, accused of murder in the first degree, was not represented by counsel of her own choice. Being indigent, she was unable to employ counsel. The court appointed two young attorneys to defend her. They are to be commended for their earnestness and zeal. One of them, without compensation, has prosecuted this appeal. Transcript and brief disclose the struggles of counsel unskilled in the use of English, and unfamiliar with appellate procedure. While the brief is deficient in respect of assignments of error, our attention is challenged by arguments therein, which, if sustained by the record, show the defendant entitled to a new trial. Examining the record, we perceive that error was in fact committed to defendant's prejudice. In view of this situation, we are confronted with the question: Shall this court, in view of what appears upon the face of the record, deny this defendant relief simply because its rules have not been complied with? The rules of this court are designed to promote, not to hinder or impede, justice. They are designed to regulate the business of the court, to confine the issues within proper limitations, to center the minds of court and counsel upon the essential points in controversy, to expedite the disposition of cases, to the end that justice may be rightly dispensed without delay.
Willful or negligent disobedience of the rules may cause the court to refuse to consider a transcript or brief, or parts of either, and that penalty has been invoked on many occasions. Neither is it to be understood that mere ignorance is to serve as an excuse for their infraction. Reasonable requirements only are prescribed, and with these every lawyer who practices before this court should be conversant. The rules, as was observed by Mr. Chief Justice Brantly in State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244,
Indubitably good cause appears in this case, and we shall now proceed to its disposition upon the merits. Other courts under peculiar circumstances have pursued a similar course. State v. Jones, 12 Mo.App. 93; Sharp v. Mayor, 31 Barb. (N. Y.) 578.
3. Before proceeding further, it may as well be said that the trial of the case was attended with much confusion which the judge patiently sought to prevent. Numberless objections were interposed, generally of a technical character, seldom with merit. By constant and inopportune objections, witnesses were confounded and testified with much difficulty, both upon direct as well as cross examination. The error into which the court fell probably may be ascribed to this confusion as well as to the contentions of counsel.
Juro Kacar, the deceased, was wounded on October 20, 1924, and shortly thereafter taken to St. James Hospital. The wound was described by a surgeon as one caused by a bullet which entered on the left side of the neck at a point midway between the mastoid and the collar bone, ranged upward egressing on the right side of the face at a point midway between the outer angle of the eye and ear. When the attending physician first examined the patient he pronounced the wound mortal, but Kacar made such remarkable progress toward recovery that the physician was so far encouraged that he told friends of the wounded man that he would recover. Seemingly, according to the physician's testimony, the patient progressed favorably until approximately 9 o'clock on the evening of October 29; shortly after that time another attending physician entered the bedroom of the patient, finding him upon the floor near his bed, in the throes of a hemorrhage as a result of which he died within half an hour; the hemorrhage was the result of the wound....
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