State v. McDonald
| Citation | 149 P. 279,51 Mont. 1 |
| Decision Date | 22 May 1915 |
| Docket Number | 3644,3645. |
| Parties | STATE v. MCDONALD. STATE v. BRADLEY. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Jefferson County; Wm. A. Clark, Judge.
Michael McDonald and Joseph Bradley were convicted of kidnapping, and they appeal. Affirmed.
I. G Denny, Maury, Templeman & Davies, and M. J. Doepker, all of Butte, for appellants.
D. M Kelly, Atty. Gen., and C. S. Wagner, Asst. Atty. Gen., for the State.
These are separate appeals by the defendants from judgments convicting them of the crime of kidnapping and orders denying their respective motions for new trial. They were charged jointly and tried together. Though the appeals are presented upon separate records and under separate numbers, since the contentions made in behalf of both defendants are substantially the same, counsel submitted them, and they are considered, together. The information was originally filed in Silver Bow county; the act constituting the offense having been committed there. At the instance of the state a change of venue was ordered to Jefferson county, where the trial took place. The charging part of the information is:
"That at the county of Silver Bow, state of Montana, on or about the 27th day of August, A. D. 1914, and before the filing of this information, the said defendants did willfully and unlawfully, wrongfully and intentionally and feloniously, seize, confine, and kidnap one Patrick Towey, a human being, with intent in them, the said defendants, then and there to cause the said Patrick Towey, without authority of law, to be kept and detained against his, the said Patrick Towey's, will."
The charge was preferred under section 8306 of the Revised Codes, which declares:
"Every person who willfully--(1) seizes, confines, inveigles or kidnaps, another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or in any way held to service or kept or detained against his or her will or against the will of his or her parent or guardian, whether such guardian be natural or appointed, * * * is guilty of kidnapping and is punishable by imprisonment in the state prison for not less than one year."
This section was construed by this court, on application of the defendants and others for their release on habeas corpus on the ground that the information does not charge a felony. Ex parte McDonald, 50 Mont. 348, 146 P. 942; Ex parte Bradley et al., 50 Mont. 354, 146 P. 944. It was determined that it includes within its purview as distinct offenses these several acts, viz.: The seizure, etc., of one person by another with intent to cause him. without authority of law (1) to be secretly confined or imprisoned in this state, (2) to be sent out of the state, or (3) to be in any way held to service or kept or detained against his will, or against the will of his or her parent or guardian, whether such guardian be natural or appointed. Upon further consideration of the provision we are satisfied that the construction given it in these cases is correct. We shall therefore pass without notice the contention again made by counsel, that the information herein does not charge a felony, in that it omits entirely the element of secrecy.
During the course of the trial several witnesses were examined and gave testimony which was material to the state's case, whose names had not been indorsed upon the information at the time it was filed. Counsel for defendants' objection to each of them, on the ground that the county attorney had not observed the requirement of the statute in this behalf (Rev. Codes, § 9109), was overruled. These rulings are assigned as error. The statute requires the names of the witnesses for the state to be indorsed upon the information when it is filed, if they are known. There is no provision requiring the names of witnesses subsequently discovered, either before the opening of the trial or during its progress, to be indorsed; nor is there any provision prohibiting the examination of such witnesses. The purpose of the statute is manifest, viz., that the defendant, so far as reasonably possible, may be advised of the witnesses known to the county attorney when the information is filed, whom the state intends to call against him, in order that he may have the opportunity to make inquiry with respect to them and prepare himself to meet their testimony. State v. Sloan, 22 Mont. 293, 56 P. 364; State v. Calder, 23 Mont. 504, 59 P. 903; State v. Schnepel, 23 Mont. 523, 59 P. 927; State v. Biggs, 45 Mont. 400, 123 P. 410. The county attorney cannot be required to disclose the names of witnesses whom he does not know.
Nevertheless the state may not be deprived of the benefit of their testimony because they are not known to the county attorney at the inception of the prosecution (State v. Schnepel, supra); and this is true whether lack of knowledge on the part of this officer has been due to his want of assiduity in the preliminary preparation of the case or not. His negligence due to indolence, or even his incompetent knowledge of his important duties, cannot be alleged as a reason why a full disclosure should not be made of all the facts which are material to the state's case. The defendant is entitled "to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed," subject to the right of the state to have a change of venue in certain cases. Const. art. 3, § 16. If during the presentation of the case the court has accorded him all these rights, and, further, has guarded him against surprise by the introduction of evidence against him by the state which he cannot meet or the effect of which he cannot minimize, so far as this would have been possible by previous knowledge of the witnesses, he cannot complain that the county attorney has failed to pursue the statute. The provision was intended as a safeguard to the accused against surprise and unfair advantage by the prosecuting officer, and to serve the same purpose as a like provision relating to the disclosure of the names of witnesses upon whose testimony an indictment is found and returned by a grand jury. Rev. Codes, § 9140. Neither was intended, however, to operate as an impediment to prevent or delay the progress of a prosecution, except so far as is necessary to enable the defendant to have reasonable opportunity to prepare his defense. When his complaint is that he has not been accorded sufficient time for preparation, or that he has been surprised by the state's production of evidence which he has not been allowed an opportunity to meet or controvert, and he makes such a showing to the court as to justify the conclusion that his complaint is well founded, then, and then only, has he a right to allege prejudice.
It was never intended that criminals should escape punishment or delay the course of justice merely because the public prosecutor has ignorantly or carelessly omitted to observe the rule prescribed by the statute. If the charge is preferred by indictment, the indictment will be set aside upon timely motion, if the names of the witnesses are not indorsed. Rev. Codes, §§ 9140-9193. This is not true of an information; nevertheless, if timely request is made, the court ought doubtless to require a disclosure of the names of the witnesses then known. Even so, after the trial is over, and it is not shown or even claimed that the defendant has suffered prejudice by reason of the production of witnesses by the state whose names had not theretofore been disclosed, he cannot insist that his conviction was obtained unlawfully. So far as the command of the statute is concerned, it has been obeyed literally when the names of known witnesses have been indorsed at the time of filing. If others are subsequently discovered whose evidence is material, the county attorney would be remiss in his duty if he should fail to call and examine them if the necessities of the case required it. State v. Schnepel and State v. Sloan, supra. The court will presume that this officer has in every case done his duty, until the contrary appears; for the presumption prevails that he has observed the requirements of his official oath.
In the case of all these witnesses, except two, the county attorney stated that their names were not known to him at the time he filed the information. With reference to these he made no statement. If it had appeared that he knew them all at the time the information was filed, it was still within the discretion of the court to allow the examination to proceed without delay. State v. Schnepel, supra.
The name of the witness James Mitchell was indorsed as John Doe Mitchell. Upon objection to his examination for this reason the county attorney stated that he purposely so indorsed the name, because he believed that, if he had disclosed the true name at the time he filed the information, the witness' life would have been in danger. The purport of this statement will be made clear by reference had to a summary of the evidence hereafter made, showing the circumstances under which the offense charged was committed. Whether the fears of the county attorney were justified by the circumstances and he acted in good faith, we need not stop to inquire. That he violated the express injunction of the statute is clear. His conduct was indefensible from any point of view. Since the true name of the witness was known to him, it was his clear duty to indorse it without reference to the...
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