State v. Metcalf

• Decision Date: 13 January 1896
• Citation: 43 P. 182,17 Mont. 417
• Parties: STATE v. METCALF.
• Court: Montana Supreme Court

43 P. 182

17 Mont. 417

STATE v. METCALF.

Supreme Court of Montana

January 13, 1896

Appeal from district court, Beaverhead county; Frank Showers, Judge.

Paul Metcalf was convicted of murder, and appeals. Reversed.

Henry R. Melton and Smith & Word, for appellant.

Henri J. Haskell, for the State.

PEMBERTON C.J.

The defendant was tried in the district court in Beaverhead county upon an information charging him with the crime of murder in the first degree, alleged to have been committed in that county. He was found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 30 years. From an order denying a new trial and the judgment of the court the defendant appeals.

The information, omitting the formal parts, is as follows "That Paul Metcalf, late of the county of Beaverhead, on or about the 12th day of August, A. D. 1894, at the county of Beaverhead, in the state of Montana, in and upon one Frank G Hunter, then and there being, willfully, feloniously, and of his deliberate, premeditated malice aforethought did make an assault, and that the said Paul Metcalf a certain pistol, to wit, a revolving pistol, then and there loaded and charged with gunpowder and leaden bullets, which said pistol he, the said Paul Metcalf, in his hands then and there had and held then and there willfully, feloniously, and of his deliberate premeditated malice aforethought did discharge and shoot off to, at, against, and upon the said Frank G. Hunter, and that the said Paul Metcalf, with the leaden bullets aforesaid out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Paul Metcalf discharged and shot off as aforesaid, then and there willfully, feloniously, and of his deliberate, premeditated malice aforethought did strike, penetrate, and wound him, the said Frank G. Hunter, in and upon the left side of the head of him, the said Frank G. Hunter, giving to him, the said Frank G. Hunter, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid by the said Paul Metcalf, in and upon the left side of the head of him, the said Frank G. Hunter, two mortal wounds, of which said mortal wounds he, the said Frank G. Hunter, then and there instantly died. And so the said Everton G. Conger, county attorney as aforesaid, who prosecutes as aforesaid, doth say and charge that the said Paul Metcalf him, the said Frank G. Hunter, in the manner and by the means aforesaid, willfully, feloniously, and of his deliberate, premeditated malice aforethought did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Montana." The defendant demurred to the information generally and specially. The grounds of the special demurrer are that: "The acts constituting the offense (if any is stated) are stated in an indefinite, ambiguous, and uncertain manner, in this: it cannot be determined therefrom whether the defendant is charged with a simple assault, an assault and battery, or murder in the first or second degree, or with any other offense known to the laws of the state of Montana; that the defendant herein is not charged with a premeditated killing or murder, or that the act was done to, at, and towards the said Hunter with premeditation; and that said information does not charge a premeditated and deliberate murder or killing." The court overruled the demurrer, and defendant assigns this action of the court as error.

Our statute (section 21, p. 505, Comp. Laws 1887) defines the crime of murder, and the two degrees thereof, as follows: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree." Our statute is a copy almost literally of the Pennsylvania statute of 1794, the only difference being that our statute has the word "torture" in it. The information in this case is a substantial copy of the indictment given as a precedent by Bishop to be used under the Pennsylvania statute and statutes of like character. 2 Bish. Cr. Proc. (3d Ed.) § 564. It is also in substantial conformity with the indictment in Territory v. Stears, 2 Mont. 324, and cited with approval in State v. Northrup, 13 Mont. 522, 35 P. 228. Counsel for the defendant insist that the information does not charge that the killing or murder was premeditated and deliberate; that the words of the information charging the killing or murder to have been done "of his deliberate, premeditated malice aforethought" do not fill the requirements of the statute that the killing shall be deliberate and premeditated. There are authorities holding this view. But it is difficult to discern any substantial difference or distinction between the expressions "deliberate and premeditated killing" and "killing with deliberate and premeditated malice aforethought." Some authorities do draw the distinction, but we do not think it can be held that there is such a distinction as to prejudice the substantial rights of the defendant. Under statutes like the Pennsylvania law, the parent of our statute, as said in Territory v. Stears, supra, such information or indictment, as used in this case, has been quite generally held to be sufficient to charge murder in the first degree, and to support a conviction of such offense. Having borrowed our statute from Pennsylvania, we prefer to hold to the familiar rule that we adopt also the construction given thereto by the courts of that state.

The defendant assigns as error the action of the court in refusing to grant his motion and application for a continuance of the case. The affidavit of defendant for a continuance is as follows: "Paul Metcalf, being first duly sworn, on oath deposes and says: That he is the defendant in the above-entitled cause. That the information in said cause was filed in this court charging affiant with the crime of murder on the 23d day of February, 1895, and that affiant was arrested in the state of Missouri on the 27th day of December, 1894, and was brought to Beaverhead county, Montana, immediately thereafter, and lodged in the county jail of said county, where he has ever since been, and is now, confined. That ever since affiant's incarceration in jail, through the efforts of his counsel and friends, he has been preparing for this trial, as hereinafter detailed. That, notwithstanding the efforts of defendant and his friends to be prepared for said trial, he cannot safely go to trial at this term, for the following reasons, to wit, the absence of witnesses and evidence material to defendant, and which defendant has been unable to procure at this term of the court. That Alden Harness is a witness material to defendant. That defendant could prove by said Harness, if present as a witness, that the deceased, Frank Hunter, was killed at his saloon, at Medicine Lodge, in Beaverhead county, on the afternoon of August 12, 1894, by affiant. That affiant and said Harness, earlier in the day, had been to said saloon, and in company with other persons there present had taken several drinks of whisky or other liquor. That this affiant and said Harness left the saloon together, and parted from said Hunter without any difficulty. That after affiant and said Harness had been gone some time affiant discovered that he had left his gloves at said saloon, and proposed to return and get them. That said Harness and this affiant, in company, and on horseback, returned to said saloon, and dismounted, and entered the same. That Metcalf was a little in advance of and to the right of said Harness...