State v. Kuum

• Decision Date: 31 January 1919
• Docket Number: 4264.
• Citation: 178 P. 288,55 Mont. 436
• Parties: STATE v. KUUM.
• Court: Montana Supreme Court

178 P. 288

55 Mont. 436

STATE v. KUUM.

No. 4264.

Supreme Court of Montana

January 31, 1919

Appeal from District Court, Mineral County; Theo. Lentz, Judge.

Alex Kuum was convicted of murder in the second degree, and from the judgment and an order denying a new trial he appeals. Judgment and order reversed, and cause remanded.

Murphy & Whitlock, of Missoula, for appellant.

S. C Ford and Frank Woody, both of Helena, for the State.

BRANTLY C.J.

The defendant, Alex Kuum, was convicted of the crime of murder in the second degree, and sentenced to a term of imprisonment in the state prison. He appeals from the judgment and an order denying him a new trial.

The first contention made in his behalf is that the evidence was insufficient to justify the verdict (1) in that, though that introduced by the state showed that the defendant shot and killed the deceased, it also showed that the killing was accidental and therefore excusable; and (2) that, though it be conceded that the killing was not excusable, the evidence from any point of view did not justify a finding of any higher grade of homicide than involuntary manslaughter.

The killing occurred on October 1, 1917, at Sildix, a flag station on the Northern Pacific Railway in Mineral county two or three miles from the Idaho state line. The defendant resided at Mullan, Idaho. He is a Russian from Esthonia ignorant, of a low order of intelligence, and unable to speak the English language beyond a few words. On the morning in question he came by train to Sildix, arriving at about 11 o'clock. Several others arrived at the same time, all of whom were strangers to him. These were Finlanders, as were also all the others who were about the place during the day, including Gofried Peterson, the deceased. None of them spoke English well; nor did the defendant understand or speak the Finnish language. The defendant as well as the other witnesses gave their testimony through an interpreter. For this reason, and because of the fact that at the time of the shooting all of them were more or less under the influence of liquor and consequently that their recollection of what occurred was imperfect, it is difficult to gather a clear account of the incidents preceding and leading up to the killing. A cabin near the station owned by one Everett was occupied and used at the time by the witnesses Norman and Lebstadt as a boarding house to accommodate those who worked in mining prospects in the mountains near by. Apparently it was used also as the headquarters for the conduct of an illicit trade in alcoholic liquors to be conveyed across the line into Idaho, as well as to furnish them by the drink to any one who cared to go there. The cabin consisted of two rooms besides a woodshed in the rear. The rooms were connected by a door. One of them was called a sitting room. In it were two beds, one large and the other a small one, the former situated near the door leading out to the front. The other room was used as a kitchen and eating room. A door opened from the sitting room into the woodshed. The small bed was near the door. As soon as the defendant reached the place he began to drink, and, in company with others, including the deceased, continued to do so until 4 or 4:30 o'clock in the afternoon. The deceased made his home at Sildix.

There is no evidence disclosing how he and the defendant became acquainted with each other, nor how they happened to be together at the time of the shooting. It does not appear that they had met before that day. A few minutes before the shooting they came into the sitting room together. Both of them had been drinking, but were apparently friendly. Gus Sundberg, the only eyewitness of the shooting, was lying on the large bed. Ernest Carlson was sitting by him on the bed talking to him. The defendant and deceased were standing together talking, apparently discussing the quality of a revolver which the defendant had taken from his pocket. The few words overheard by Sundberg and Carlson were spoken in English. The only words Carlson heard were: "Liberty! We have no liberty." These were spoken by the defendant. The following excerpts from the testimony of Sundberg furnish the only explanation as to how the shooting occurred:

"I seen him (Kuum) have a gun in his hand; he took it out of his pocket or had it in his hand, I don't know. He was holding it this way. As to how he was holding it, *** I will ask you to show me the gun. As far as I remember, I noticed the flash-he held it in this manner (indicating). I didn't notice much. He was talking and doing some motion. I didn't pay attention, but I remember Gotfried (the deceased) got hold of the business end and says, 'That gun ain't no good,' and I thought it was all over. And at that time I was talking too. I took my eye off, and I was talking to Carlson about leaving the place, and all at once I noticed this here motion, and all at once it went off. Q. Now I want to ask you just one other thing as to that, and we have to ask all of these things. After Alex had the gun up this way (illustrating) and Peterson had his hand over there and Peterson said, 'That gun wouldn't hurt anybody,' or 'shoot anybody,' or whatever it was, did Alex hold it down this way and then up this way (illustrating)? A. I noticed the motion distinctly. I took my eye off, and just as I looked back I noticed the motion. It was just a short-arm movement. I don't think it came from the pocket. I don't believe it ever went to the pocket. *** Yes, he (deceased) was backing away from him at the time he had hold of the gun, and Kuum was following him up, apparently. As to whether Peterson was pulling the gun or Kuum was pushing him, I didn't pay much attention. When I saw the gun they were perfectly still-they were perfectly still. I didn't hear any loud or violent talk between them. There was no loud talk. Q. Then, the last you saw before the fatal shot was fired, Peterson had hold of the gun barrel? A. Previous to that. The next thing I saw, Kuum drawing the gun down on Peterson. I saw the actual explosion. I don't know where Kuum brought his hand from when the shot was fired; all I noticed was that short-arm movement. It is my impression that

the shot, the explosion, seemed to be an answer to the challenge that the gun was no good; it followed the remark so fast-it came just after that remark. *** As to whether Peterson actually had hold of the end of this gun, or how, and being asked to illustrate, I will say that he was slipping around with his fingers like this (illustrating) and says, 'This is no good.' So that he didn't have hold of it as counsel for the state now has-not tight. *** As to the short-arm movement which I have illustrated, I couldn't say how Peterson was holding it, whether he had it up that way as you illustrate, or down. I took my eyes away just after that; and the next time I looked I saw Alex pull the gun on him with this short-arm movement that I have indicated. In answer to Mr. Murphy I said the gun went off. As to whether I meant that it went off while Peterson was holding the end like that and it was being held up like that by the other, no; I can't rightly answer that question. I have already illustrated that there was this movement of the arm; that is right. *** As to whether they were fighting or quarreling, I thought they were more in a joshing way; I don't recall Kuum saying a word. As to whether there was a quarrel between them, that was all the talk there was. No, indeed, there was no swearing or threatening language. So far as I know, judging from all I saw previous to the shot being fired, they were as friendly as drunken people can be. Yes; that is very friendly. I believe they can be more friendly then than in any other condition."

The witness Carlson was sitting with his back toward the defendant and the deceased, and aside from the few words he heard defendant speak, his attention was not directed to them until, hearing the shot, he turned and saw the deceased fall, exclaiming, "I am shot." He then saw defendant with the revolver in his hand. He had not seen it until that time. This witness had been drinking with the defendant. When the shot was fired he ran from the room. A few minutes later he returned with others, who seized the defendant and held him down for a few minutes on the small bed. We quote the following from his testimony:

"They were not quarreling, and there was no loud talking. No; I did not see a gun in the hands of Kuum at that time. The first that I knew that there was a gun there at all was a shot that I heard fired. *** They were both pretty drunk. I thought they were good friends. So far as I could judge they were very friendly; that is true. *** Kuum was excited after the shot-after it was all over. He didn't seem to be excited before or angry. It was all after this occurred."

The defendant and the deceased were both strangers to this witness.

The witness Charles Lattman passed through the room to the kitchen a few minutes before the shooting. He was sitting at the table eating when it occurred. As he passed through the room he saw the defendant and the deceased standing talking together. He heard the deceased say, "You shouldn't...