State v. Miller
| Decision Date | 10 February 1922 |
| Docket Number | No. 22705.,22705. |
| Citation | 186 N.W. 803,151 Minn. 386 |
| Parties | STATE v. MILLER. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Beltrami County; C. W. Stanton, Judge.
Robert Miller was convicted of murder in the second degree, his motion for new trial was denied, and he appeals. Order and judgment set aside, warden of state penitentiary at Stillwater directed to surrender the defendant to the sheriff of Beltrami county, and the cause remanded for new trial.
Syllabus by the Court
The evidence justified the verdict of murder in the second degree.
The indictment is not defective in charging a design on the part of defendant to ‘effect the death of Albert W. Fenton or another.’
No reversible error occurred in charging that the jury need not consider the advice of counsel in respect to the arrest of one Bowman, with whom defendant had had trouble, and who, he believed, was approaching armed when the homicide occurred.
It was error to permit cross-examination of defendant as to threats to shoot others, there being no suggestion in the record that defendant thought Fenton was any one else than Bowman. This error was aggravated by the state calling a witness to show that some months before defendant had said he would shoot one Pearson. Certain other testimony, which accentuated the evil effect of the evidence thus received, was improper.
Defendant was not entitled to a copy of the charge of the court before the final argument to the jury.
No advantage can be taken by defendant for failure to more fully instruct as to the law of self-defense.
The evidence was such that it was not proper to instruct that defendant was under all circumstances responsible for what his brother thought and did when firing the fatal shots.
It was not error to refuse to submit manslaughter in the second degree. The submission of that degree might be proper as to defendant's brother; but, if the brother was only guilty of manslaughter in the second degree, defendant was entitled to an acquittal.
The evidence justified the submission of first-degree manslaughter. Heat of passion may be caused by fright as well as by anger. Middleton & Middleton, of Baudette, and M. J. Daly, of Perham, for appellant.
C. L. Hilton, Atty. Gen., Jas. E. Markham, Asst. Atty. Gen., and Graham M. Torrance, Co. Atty., of Bemidji, for the State.
The defendant, Robert Miller, and his brother George were jointly indicted for the crime of murder in the first degree. They had separate trials. After the acquittal of George, Robert Miller was tried and found guilty of murder in the second degree. His motion for a new trial being denied, sentence was passed and he appeals.
These facts seem undisputed: In a newly settled part of Beltrami county, about 17 miles south of Baudette, this defendant had a claim. He was 31 years old. In January, 1921, he and his family, consisting of his wife and three small children, were temporarily living with his brother George, who was 10 years younger. About 3 miles northeasterly from George's claim was a meadow owned by one Diedrick, who had sold the hay stumpage to Robert Miller for three seasons, beginning with 1918. The latter sublet a part thereof for the season of 1919 to Ellis Bowman, who lived a short distance east from the meadow. Some misunderstanding in respect to cutting the hay arose in 1920. Bowman and his family started in to cut and haul away some of the hay. George observed this and informed his brother, who was in Baudette. The latter sought legal advice. As a result Bowman was charged first with grand larceny, but afterward with petit larceny; the last charge being set for trial on February 18, 1921. Threats of some sort vented by Bowman reached the ears of the Millers previous to the homicide. On January 12th a large haystack put up by Robert Miller on the meadow was burned. He suspected the fire to have been set by some one in the Bowman family. On January 25th the Millers began to haul what hay remained away from the meadow. This seems to have been put up in very small stacks, or large cocks. And it is to be inferred that this hay had, in part at least, been cut by the Bowmans, but that, perhaps, the Millers had gathered and stacked it. The Millers came for the second load shortly before sunset on January 25, 1921. A little later a neighbor, Nick Siminovik, also arrived to help them haul. He was given a shovel and told to go with his team to a small stack some 93 paces east and slightly north of the stack the Millers were loading from. While Nick was shoveling away the snow from the stack he was to load, the Millers were working, George being upon the load, and this defendant pitching up the hay from the stack bottom, which was now not much higher than the surface of the snow. As these parties were so working Albert W. Fenton, a young settler who had a claim a few miles away, and who was engaged in sawing stovewood for the settlers with a portable saw, came from his last job about a mile distant from this meadow. He was on skis, carrying a rifle in his hand, and approached the Millers directly from the north. When about 200 feet away he received two mortal gunshot wounds. One bullet entered near the navel and was found imbedded in his back, half an inch under the skin. It was a soft-nosed bullet. It had made a hole large enough to admit the fist, and had severed completely the large intestine. Medical testimony was that it would produce death in less than half an hour. The other bullet entered about one inch above and slightly forward of the right ear. It tore away the whole top of the head and scattered the brains and bones of the head some distance. Because of this explosive effect it was impossible to determine the course of the bullet through the head. Fenton fell with his head to the east and feet to the west of the skis, which remained in the course he had come, the rear end of one ski being up against his body and the front end of the other just behind his thigh. He lay on his left side, his bare right hand touching the barrel of the rifle, which lay across his left leg with the butt towards the feet. On his left hand was a leather mitten over a woolen one. The right-hand mitten was in front of the body. His cap was from 6 to 10 feet directly east of his head. There was an exploded shell in the rifle and one unexploded in the chamber. Two empty shells were found about 200 feet north of where Fenton lay where his ski tracks passed through a two-strand wire fence. One empty shell was found where the Millers were loading. George had a rifle which he had stood in the snow near the stack. The rifle was the same make as Fenton's, a 250-3000 Savage, the bullet of which travels with the speed of 3,000 feet a second. Fenton was an expert shot. He was left-handed. He shot from the left shoulder, used a hammer with the left hand, and also pitched ball with that hand. His rifle ejected the empty shells towards the right. The empty shells found by the fence were just east of the ski tracks.
The evidence is conflicting as to what took place from the time Fenton was noticed by the three men at the haystacks. No one places him as far north as the fence. Nick testified that he first noticed Fenton about 50 or 75 feet north of where he fell. He was striding along on his skis, swinging the rifle in his right hand. He saw George slide from the load to the stack bottom, and Robert giving the rifle to George. Both stood on the south side of the load. A shot was fired, but Fenton paid no attention, coming right along. A second shot rang out from behind the load. Fenton hesitated or staggered. At that moment a white owl was settling on a charred tree stump a few feet northeast from Nick, attracting his attention for a second. At that instant he heard a third shot. George's team was restive. He saw Fenton prone on the snow; heard a death gurgle, but no further move or sound from him. He hurried over to the Millers asking, ‘Who is that?’ Robert said, ‘Look out! he can shoot you,’ and, pushing Nick behind the load, added, ‘That is the Bowman.’ He also inquired of Nick how many shots he heard. Nick told him three; whereupon George spoke up saying, ‘That is right; he shoot twice, and I shot once and get him.’ Nick hurried back, got his team, and started ahead of the Millers. The latter, walking on the south side of the load for some distance, called to Nick to see whether the man moved. They drove home. The Millers slid off the hay, turned the stock loose, loaded the wife and children in the sled, and drove to the home of C. R. Crabtree, four miles distant. Mr. Crabtree was constable. Relating what had occurred, Robert Miller stated that they had had a duel in the meadow, that he directed George to aim at the man, and that George was no more in for it than he was. Nick testified that the Millers did not warn or call out to Fenton before the gun was fired, nor during or after firing, and that Fenton never spoke. Nick had his cap pulled down over his ears.
The Millers testified that Fenton, whom they took to be Bowman, shot direct at them when George slid off the load and Robert ran for the rifle; that both went behind the load; that Fenton fired a second bullet, which they heard strike the load, passing between them; that Robert called to George to shoot to let him know that they were armed; that he did not tell George to aim at Fenton; that he hollered at him; that when Fenton's bullet struck the load George went to the other end, threw up the gun, and shot without taking aim, without any intention of hitting the man, but merely to warn or scare him off; that the admissions to Crabtree and others by Robert that he advised George to aim at, or to shoot at, Fenton, and that he was responsible for what George did, were not true, but that he so admitted in order to shield George or to share the responsibility with him. Their testimony also was that after George fired the last shot Fenton called out, ‘Who or what are you...
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