State v. Peterson

• Citation: 60 P. 809,24 Mont. 81
• Parties: STATE v. PETERSON.
• Decision Date: 16 April 1900
• Court: United States State Supreme Court of Montana

60 P. 809

24 Mont. 81

STATE v. PETERSON.

Supreme Court of Montana

April 16, 1900

Appeal from district court, Ravalli county; Frank H. Woody, Judge.

Nelson Peterson was convicted of murder in the first degree, and appeals. Reversed.

C. B Calkins and Crutchfield & Draffen, for appellant.

C. B Nolan, Atty. Gen., for the State.

PER CURIAM.

Appellant was convicted of murder in the first degree. He appeals from the judgment and order denying his motion for a new trial.

1. It is said no legal information was filed against defendant. The record shows the following facts: "Journal Entry. September 11, 1899. The county attorney and the defendant with his counsel, C. B. Calkins, Esq., came into court. The county attorney now informs the court that the information herein heretofore filed was not signed, and asks leave of court to sign it. Counsel for defendant objects, which objection is overruled by the court. Defendant excepts to the ruling of the court, whereupon the county attorney signed the information. The defendant was then arraigned. Answering the question of the court, says that his true name is Nels Peterson. Then, by his counsel, defendant expressly waives the reading of the information and the statutory time for pleading thereto, and signifies his readiness to plead at this time. In answer to the court, defendant pleads that he is not guilty of the offense charged. Defendant then, by his counsel, expressly waives the statutory time for preparing for trial, and announces to the court that he is ready to be tried on the date heretofore by this court fixed, whereupon it is ordered by the court that this cause be, and the same is hereby, set down for trial." An information must be presented and signed by the county attorney. Section 1372 Pen. Code. And when not subscribed by the county attorney, or attorney prosecuting, it will be set aside by the court in which the defendant is arraigned, upon his motion. Section 1910, Id. It is expressly provided, however, that the motion to set aside the information on the ground of such a lack of proper subscription must be made before the defendant demurs or pleads, or the grounds of the objection are waived. Section 1911, Id. No motion was made before defendant pleaded, as the statute demands. This omission was a waiver by the defendant, and the objection to the action of the court in allowing the information to be subscribed cannot avail now. It clearly became a good information before the arraignment of September 11th, supra. State v. McCaffery, 16 Mont. 33, 40 P. 63; State v. Brantly, 20 Mont. 173, 50 P. 410.

2. Defendant's counsel argue that the court erred in not submitting the question of defendant's sanity to a jury under section 2521 of the Penal Code. We quote that section: "When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury, which must be drawn and selected as in other cases; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity." This provision of the law is to make effectual the humane principle that no person can be tried, adjudged to punishment, or punished for a public offense while he is insane. But it never was intended that a trial of the issue of guilt or innocence of the crime under investigation shall be arrested simply because the defendant seeks to avoid a trial on the ground of present insanity. If doubt as to the sanity of the defendant arises at any of the stages mentioned in the statute, it must exist in the mind of the court, before the question of defendant's insanity will be inquired into as an independent matter; but such a doubt does not necessarily present itself by the mere assertion of the defendant that he is insane, or even by introduction of witnesses on the trial who swear they do not believe him to be of sound mind. The question whether a doubt exists is one that addresses itself peculiarly to the sound discretion of the trial court. To it must be presented the reasons for asking that such an inquiry be had, or of its own motion the court may institute the investigation, and to its sound judgment is left the decision of the wisdom of having it. Webber v. Com., 119 Pa. St. 223, 13 A. 427; People v. Pico, 62 Cal. 50; People v. Lee Fook, 85 Cal. 300, 24 P. 654; Bish. Cr. Proc. § 667. By the common law, if it be doubtful whether a criminal who appears to be insane at his trial be such in fact or not, the issue of his sanity must be tried by the jury charged with the trial of the indictment, or by pleading ore tenus, and a venire awarded, in the nature of an inquest of office. 1 Whart. Cr. Law, § 58. But, where the two methods are open, judicial discretion is implied. The practice under the Codes should be this: If the defendant relies upon insanity when the offense was committed, that question should be tried by the jury impaneled to pass upon his guilt or innocence of the crime charged, while, if his sanity at the time of arraignment or trial is judicially doubted, the court should try that question, under section 2521, supra, by a special inquiry. After reading the evidence adduced on the trial in support of the defendant's plea of insanity, we are unable to say that the case was one where the court ought to have ordered a preliminary inquiry into the sanity or insanity of the defendant. Therefore no error was committed.

3. Defendant was a witness in his own behalf, and admitted the killing. His version was that he and deceased were partners that on the day of the homicide the two walked from their cabin up to a mountain...