State v. Mumford

• Decision Date: 16 January 1924
• Docket Number: 5379.
• Citation: 222 P. 447,69 Mont. 424
• Parties: STATE v. MUMFORD.
• Court: Montana Supreme Court

222 P. 447

69 Mont. 424

STATE v. MUMFORD.

No. 5379.

Supreme Court of Montana

January 16, 1924

Appeal from District Court, Valley County; C. D. Borton, Judge.

William Mumford was convicted of manslaughter, and he appeals. Affirmed.

Norris Hurd, Rhoades & Hallett, of Glasgow, and Cleveland Hall, of Great Falls, for appellant.

W. D Rankin, Atty. Gen., and C. H. Roberts, Co. Atty., of Glasgow for the State.

GALEN J.

On the morning of April 11, 1923, Hale Talbot, a neighbor of the defendant, was shot and killed by the latter. There were no eyewitnesses to the homicide other than the defendant, and the testimony against him consisted chiefly of his admissions made to various persons after the tragedy and circumstantial evidence in connection therewith.

The body of the deceased was found on the south bank of Rock creek, on land leased or owned by the defendant near the latter's place of abode, as he had described the situation to several parties to whom he told the story of the homicide. In substance he said to several persons that he had had trouble with neighbors cutting the fences inclosing his land, and that on the day of the shooting he saw a person on horseback riding down Rock creek. He then got his field glasses, and by use thereof observed the rider going down to the corner of defendant's fence, where there was no gate. The defendant observed the rider dismount and begin to pull and jerk at defendant's fence. The defendant then laid aside his field glasses, took up his Winchester 30-30 rifle and proceeded to his barn, where he saddled a horse, mounted it, and started in the direction of the intruder. He said that the sun was shining in his eyes as he approached the deceased, so that he was unable to recognize the latter. On getting within speaking distance the defendant dismounted, and accused the deceased of cutting down the former's fences, which charge Talbot, who was then standing on the ground, with an oath denied, reached down, picked up his rifle, and fired a shot at the defendant, which passed close to the side of defendant's head. The defendant said he became frightened when the deceased shot at him, and began shooting at the deceased, still not knowing the latter's identity; that the first shot apparently took effect, and after being hit Talbot fell to the ground, but immediately attempted to get up, retaining his gun in his hands, and under the circumstances the defendant kept shooting until the deceased lay still. During the time of the shooting Talbot was on the south side of the creek and the defendant was on the north side, he said, and that when the deceased showed no further signs of movement the defendant crossed the creek to where the body lay, and then ascertained for the first time that it was that of Hale Talbot. The defendant stated that he then recrossed the creek and proceeded to his home without in any manner disturbing Talbot's body, and after arrival at his house finished up his chores and then proceeded to Theoney to give himself up. A party consisting of several witnesses for the state went to the scene of the tragedy after learning about it, and there found Hale Talbot lying dead, with his rifle, a .22 caliber, lying by his side, the muzzle pointing towards his feet and his feet towards the creek. There were two blood spots at the place where the body lay, one underneath his head and one underneath the left leg. There was no sign of a hand to hand combat. Talbot lay on his back at right angles to the course of Rock creek, about 18 feet from the high-water mark thereof. His hat was off his head, and some distance away, the hat band being apart from the hat. On his hands were canvas gloves, the one on the right hand being partly off. Two wounds were apparent, one in the leg and the other through his forehead. Blood mixed with brains and tissue lay underneath the head, leaving at that place a large blood spot upon the ground. The ground was practically level, with little grass or verdure in the vicinity. In Talbot's rifle there was found one exploded .22 short shell in the chamber, and 11 like shells unexploded in the magazine. The statements made by the defendant generally as to the position of the body and its condition were found to be correct.

After investigation so made the body of the deceased was put into a wagon and hauled to his home, about two miles distant, where it was placed in a granary and left there overnight and the day following. While there it was viewed by several persons, including the sheriff, county attorney, and coroner. No powder marks were visible upon the body. On April 13th the remains were taken to Glasgow and an autopsy held. The bullet wounds upon the body of the deceased were described by Dr. Hoyt, who performed the autopsy, as follows:

"We found bullet wounds; one entered eight inches above the knee and below the center and came out on the outside of the thigh of the left leg about five inches below the hip bone. It * * * did not break the bone. There was another bullet wound. The point of entrance was an inch and a half above the naval and about four inches to the left thereof, and it came out about an inch and a half higher than the point of exit if the body had been perpendicular. On the right side of the neck there was a bruise. We did not know what that was. We extracted blood from it. * * * There was another wound in the forehead, to the right of center, that was ragged, not round, and was about midway between the hair line and eyebrow and a little to the right of center, and as large, perhaps, as an inch and a half in diameter, while the exit at the back of the skull and head had been blown open. The tear in the skull extended from the corner of the eye, back of the wound was laid clear open, and brains were practically missing. * * * The skull was shattered into a great many pieces from an inch to two and a half inches in diameter. The bones of the face were broken so that on pressure you could hear them grate together. The base of the skull was fractured."

The defendant was charged by information with the crime of murder, and upon his plea of not guilty was tried by a jury which returned its verdict finding him guilty of manslaughter, and fixing his punishment at imprisonment in the state penitentiary for not less than 5 nor more than 10 years. Judgment was entered accordingly. The defendant has prosecuted this appeal from the judgment and from the order made denying his motion for a new trial.

The assignments of error present three questions for determination, which will be considered in their order.

1. Did the court err in refusing to permit the defendant to recall the state's witness Haydon for further cross-examination after the close of all of the evidence? At the trial it appeared in the state's case in chief that on April 13, 1923, the scene of the homicide was visited for further investigation by Milton Talbot, a brother of the deceased, John Alexander Watson, George Clark, Fred Knott, and others. All of those named testified in substance that there was a large blood spot about a foot in diameter where the head of the deceased had lain, filled with particles of bone, brains and hair. The blood and gore on the spot had hardened, and Milton Talbot borrowed Fred Knott's jackknife with which he probed around in the ground in the center of the blood spot, and at the depth of about one inch or an inch and a half removed a bullet, state's Exhibit 6, which was in evidence. Dr. Arthur Henrici, to whom the bullet was delivered for examination by Sheriff Haydon, made an analysis and microscopic examination of it, and determined as a result thereof that human blood was present thereon, also "some small fragments of vegetable fiber and a particle of bone tissue."

A witness for the defendant, Otis A. Hallett, one of defendant's attorneys on the trial, testified that he, together with Sheriff Haydon, and several others named, visited the scene of the homicide on the afternoon of April 12, 1923. He says:

"The area the blood stain covered probably was 10 or 12 inches wide, and

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