State v. Pepo
| Decision Date | 22 January 1900 |
| Parties | STATE v. PEPO. |
| Court | Montana Supreme Court |
Appeal from district court, Teton county; D. F. Smith, Judge.
William Pepo was convicted of murder, and he appeals. Affirmed.
J. G Bair and M. D. Baldwin, for appellant.
C. B Nolan, Atty. Gen., for the State.
The defendant, William Pepo, was charged with murder in the first degree by having killed one Julius Plath about June 15, 1898 at Teton county. About June 29, 1898, a deed body was found in a small cabin near Muddy river, in Teton county. The person who found it discovered that the door of the cabin was fastened on the outside with wire. The body was badly decomposed; the flesh having fallen away from the head, and the hair having fallen off. It was lying in a bunk, and was clad in a black shirt, vest, and black coat, with binding upon it. The trousers were very dark, with a stripe in them, and covered with overalls with a bib upon them. The little hair that there was about the head was of very dark-brown color. The skull was mashed above the forehead, as if hit by a blunt instrument, and the brains had oozed out. The body measured five feet six inches in height. Upon the floor of the cabin, by the head of the bed, was a cracker box, in a handkerchief. There was also an overcoat found in the cabin, in which was a memorandum book. The shoes were upon the floor near the head of the bed, and by them was found a watch charm. There were no evidence of any struggle having taken place. There was also found near the cabin a heavy piece of iron, upon the end of which was blood and dark hair. This defendant was afterwards convicted of the crime of having murdered the person whose body was so found, and from the judgment sentencing him to death, and from an order denying his motion for a new trial, he prosecutes this appeal.
1. The first point urged upon our attention is the alleged misconduct of the jury. This is set forth in the affidavit of one of the jurors, named De Haas, who stated that after the court had instructed the jury, and upon the night of June 1 1899, and during the whole of said night, the jury deliberated in their efforts to reach a verdict; that during the deliberations of said jury, and during the discussion of said cause, the court bailiff entered the jury room, at about 11 o'clock on said night, and remained in the jury room with the jurors during the entire night; that conversation and communication took place between the said bailiff and some of the jurors during said night, and that during all the night the said bailiff was in close proximity to all of the jurors, and within the hearing of all the discussions upon the case; that he remained in the jury room from midnight of said day until daylight of the next morning; and that the said bailiff departed from the jury room before the jury had reached and agreed upon a verdict. In opposition to this affidavit the bailiff, by counter affidavit, set forth that he did not enter the jury room where the jury were deliberating until about 1 o'clock a. m., June 1, 1899, at which time he took the jury a lunch and some bedding; that at that time he did not speak to any of the jurors about the case, and the case was not then being discussed within his hearing; that about 2 o'clock a. m. of said date he entered the jury room, and lay down just inside of and close to the door leading into the jury room; that at that time all the jurors hadretired for the night, except four, one of whom was the juror who made the affidavit just heretofore referred to; that when he lay down the said jurors were in the remote part of the room from where he was; that the room in which the jury held its deliberations was 70 feet in length by 30 feet in width; that he fell asleep in a very few minutes after lying down, and that he heard no part of any conversation, if any there was, of the case by the jury; that at about 4 o'clock in the morning he woke, and left the room before the jury resumed their deliberations; that at no time during the night was he among the jury, nor was he present at any time when the case was under discussion; that no conversation took place between him and the jury, or any of the jurors, about the case; that he neither said nor did anything with the intent to prejudice or bias the jury against the defendant, or in any way to influence any of them in rendering a verdict, but that he performed his duties as court bailiff honestly and conscientiously, and without bias or prejudice. Adolph Fellers, one of the jurors, in his affidavit stated that about 1:30 a. m. the bailiff entered the room with bedding, and that about 2 o'clock all the jurors retired, except himself and three others; that after the jury had retired the bailiff came into the room and lay down by the door; that during the time the bailiff was in the room he had no communication with any of the jurors, and that the jury were not deliberating or discussing the case while he was in the room, but that the bailiff left the jury room in the morning, before the jurors who had retired were up, and before discussion of the case was resumed; that the bailiff did not mix with or discuss the case with the jury, or any of them, while he was in the jury room. Other jurors corroborated the statement contained in Fellers' affidavit. John Jackson, Sr., who was one of the jurors who did not retire before the bailiff came into the room, also filed an affidavit in which he said that when the bailiff came into the jury room there was no conversation between the jurors and the bailiff about the case under consideration, and that the bailiff at no time mixed with the jury or took part in the discussion of the case, but that he left the room before the jurors who had retired were up. From the foregoing affidavits, we think it is fair to say that there was no misconduct on the part of the jury which tended in any way to prejudice the substantial rights of this defendant. Although it has been held by some courts that the mere presence of the bailiff in charge of a jury in the jury room during their deliberations will vitiate the verdict, the rule established in this jurisdiction is different; for it was laid down in State v. Jackson, 9 Mont. 508, 24 P. 213, that if misconduct be shown, tending to injure the defendant, prejudice is presumed, but not absolutely. "The state," said the court, "may remove that presumption, and the burden is upon it to do so, and in so doing it may use the testimony of the jurors to show facts which prove that prejudice or injury did not or could not occur." The finding of the district court that there was no prejudice is so clearly sustained that we are not authorized to disturb it. The affidavit of juror De Haas, upon which the defendant relies, in itself fails to show any prejudice, other than such as might be deduced from the presence of the bailiff in the jury room while four of the jurors were up and possibly discussing the case; and whatever presumption might have been raised by that fact alone is well rebutted by the counter affidavits upon which the district court made its finding. Doles v. State, 97 Ind. 555; Fitzgerald v. Goff, 99 Ind. 28; State v. Hopper, 71 Mo. 425; State v. Summers, 4 La. Ann. 26; Territory v. Clayton, 8 Mont. 1, 19 P. 293; Same v. Burgess, 8 Mont. 57, 19 P. 558; ...
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