State v. Kindle
| Decision Date | 21 June 1924 |
| Docket Number | 5489. |
| Parties | STATE v. KINDLE ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Phillips County; C. D. Borton, Judge.
Simeon E. Kindle and W. Edwin Kindle were charged with murder. From judgment of not guilty, the State appeals. Reversed and remanded, with directions to grant new trial.
W. D Rankin, Atty. Gen., L. V. Ketter and L. A. Foot, Asst. Attys. Gen., and B. P. Sandlie, of Malta, for the State.
Tressler & Kirton, of Malta, and H. C. Hall, of Great Falls, for respondent.
By information Simeon E. Kindle and W. Edwin Kindle were charged with the murder of Gilbert Gilbertson. The case is here upon the state's appeal, as the result of a verdict of not guilty returned by the court's direction. The main question presented is whether upon the trial the state proved the corpus delicti.
While the record is obscure in places, the following facts are pretty clear: Gilbertson and the defendants occupied adjoining ranches. A fence running east and west was the southern boundary of the Gilbertson ranch and the northern boundary of a portion of the Kindle ranch. On the morning of April 4, 1923, Gilbertson had in his hands what Mrs Gilbertson termed a grub hoe, saying he was going to the east fence. This, it would seem, is not the east and west fence above referred to. About 1 o'clock Gilbertson not having returned, his wife went to a hill near by, from which a view of the country could be had, to look for him. While there she heard a shot. She then walked rapidly 160 steps to a cross fence. At that point she observed distant three-quarters of a mile in the Gilbertson field a man, not her husband, with a dog. As she stood at this fence she heard two shots which must have been fired within a short interval, as she illustrated the time which elapsed between them by clapping her hands. Following these shots she saw "another man come from the northeast coulee draw." Here the record is somewhat obscure, but it is to the effect that she saw the two men go to the spot where Gilbertson's body was found after which "one of them went home." Mrs. Gilbertson then returned to the Gilbertson house and ascertained that her husband's rifle was not there. She put on her coat and went to the east fence, about a mile distant. Not finding her husband there, she evidently started to go to the southerly part of the ranch by way of a coulee; she again saw the man with the dog; this time they were in Kindle's field. She testified that every time she would go down the coulee in a southerly direction the man in Kindle's field would come north toward her. When she would retreat he would also. This happened two or three times. She then returned to her house, where she remained until the sheriff and his party came. She did not know of her husband's death at that time. Another witness heard the three shots.
News of the shooting having reached Malta, the county seat, the sheriff, county attorney, and others left for the scene. On the way they met Fred Kindle, a brother of the defendants, driving a Ford automobile. Where Fred Kindle was going does not appear, but when the sheriff reached the scene of the shooting Fred Kindle was there with the defendants. After leaving Fred Kindle, the sheriff went to the Gilbertson house, and from there to the east side of the ranch. Upon arriving there, the sheriff observed three men on a hill who proved to be the defendants and Fred Kindle. Of them he inquired as to the whereabouts of Gilbertson, whose body was not then in sight. One of the defendants, Edwin, according to the sheriff's recollection, answered, and as a result of the conversation the party went towards the body, northwest about 100 feet. The body was lying in the decedent's own field 85 feet north of his south (the east and west) fence. Gilbertson was lying on his back, arms and legs outstretched, his head to the south. He had been shot through the head. The bullet entered directly between the eyes; there the skin was torn evenly, while at the point of exit directly in the back of the head "the skin was irregular and pushed out." The physician who examined the body did not observe any powder burns. There was not a gun or weapon of any kind near the body. On the contrary, Gilbertson's rifle and also a Springfield rifle belonging to Edwin Kindle were found in the possession of the defendants. The gun belonging to the deceased did not have either a cartridge or a shell in the barrel. There was a shell in the magazine, but the sheriff was unable to extract that, as it was lodged. In the barrel of the Kindle gun there was an empty shell.
After viewing the body, at the suggestion of the defendants the sheriff went to the fence and then to the edge of a coulee near by. The fence was found to be cut in several places. A pair of nippers was found there. The "Kindle boys" mentioned the fact that the fence was cut. About 100 yards distant the sheriff found the grub hoe, called by him an "adz," with the handle broken. The sheriff searched for cartridges or shells; he "went down to the edge of this coulee and followed around the point of the hill up around this way and down to where the body was (indicating on the map)," accompanied by the county attorney, a Mr. Mills, and the three Kindle boys. A question as to whether he made the trip at the suggestion of "the Kindles" was objected to and the objection sustained. The sheriff was asked whether he learned the cause of Gilbertson's death, to which he answered:
"Yes, sir.
Q. From whom? A. Edwin Kindle.
Q. And what did he give as the cause of his death?"
This was objected to, the objection being that the state had failed to prove the corpus delicti. The court thought the objection well taken. Thereupon counsel for the state offered to prove by the testimony of Mr. Wolfe, the sheriff, the substance of a conversation between himself and Edwin Kindle in which the latter said he had shot Gilbertson, and in which the circumstances of the affray were described at some length. Further:
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