State v. Ponthier

• Decision Date: 30 November 1959
• Docket Number: No. 10072,10072
• Citation: 136 Mont. 198,346 P.2d 974
• Parties: STATE of Montana, Plaintiff and Respondent, v. Norbert PONTHIER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 974

346 P.2d 974

136 Mont. 198

STATE of Montana, Plaintiff and Respondent, v. Norbert PONTHIER, Defendant and Appellant.

No. 10072.

Supreme Court of Montana.

Submitted Nov. 2, 1959.

Decided Nov. 30, 1959.

Berger, Stotesbury & Moe, Peder Moe, Jr., Billings, Peder Moe, Jr., argued orally, for appellant.

Forrest H. Anderson, Atty. Gen., Wayne E. Linnell, Asst. Atty. Gen., William J. Speare, County Atty., Billings, Wayne A. Linnell, Asst. Atty. Gen., argued orally, for respondent.

LESTER H. LOBLE, District Judge, sitting in place of Mr. Justice CASTLES.

In an information filed in the district court for Yellowstone County, defendant, Norbert Ponthier, was charged with committing the infamous crime against nature 'by wilfully, unlawfully and feloniously having carnal knowledge of the body of one Lee Everett Schoonover, a male person.'

The action came on regularly for trial on June 8, 1959. The defendant was found guilty and sentenced to a term of fifteen years imprisonment. Defendant's motion for a new trial was denied and he appeals from the order denying that motion and from the judgment of conviction.

The State called six witnesses to prove the charge. The defendant called no witnesses. The State's principal witness was the alleged victim, Lee Everett Schoonover, who testified to defendant's perpetration of the unnatural sex act. The record shows that Schoonover was an inmate of the Yellowstone County jail, occupying a cell with the defendant at the time the alleged offense occurred. Two other inmates in the same cell, Adried Hedges and Louis Santos, gave testimony which tended to corroborate that of Schoonover. Thus, it will be observed that the scene of the alleged crime was the 'bull pen' of the Yellowstone County jail.

The testimony of the other witnesses need not be embodied in this opinion for a proper understanding of the case or the questions of law involved.

The record indicates that when the witness Schoonover was testifying for the State during the first day of the trial, he refused to say whether or not he had shared defendant's bunk on the night of the alleged crime upon inquiry by the prosecutor, but claimed the privilege against self-incrimination. Thereupon, the trial was adjourned.

When the trial resumed the next day, Schoonover was recalled as a State's witness and freely testified that the defendant had perpetrated the act of sodomy.

Defendant's only specification of error, which is deemed to be meritorious, is his claim that the court erred in unduly limiting the cross-examination of the witness Schoonover.

The questions asked Schoonover on cross-examination, and defendant's offers of proof, to which objections were sustained, were undoubtedly presented for the purpose of showing that Schoonover was under detention and awaiting trial under a charge of lewd and lascivious acts upon a child; that he was being prosecuted by the same prosecutor who was proceeding against defendant; that he had not been charged with sodomy, and for the purpose of determining whether or not Schoonover had been offered an inducement to testify against defendant Ponthier, or a threat for his failure to do so, by the prosecutor. Appellant argues that such inquiry is proper as bearing on the credibility of the witness by showing his interest in testifying for the State, if any, and especially pertinent since Schoonover had refused to testify the day before.

On cross-examination counsel for appellant inquired of Schoonover:

'Q. And why were you in the County Jail, Mr. Schoonover?

'Mr. Adams: To which we will object as being irrelevant, and immaterial, and incompetent and improper impeachment.

'Court: Sustained.

'Q. Mr. Schoonover, you testified on direct examination that you were placed in the County Jail and arrested about May 3rd, is that right? A. I was not in the county jail on the 3rd of May.

'Q. Where were you? A. At the City Jail.

'Q. And when did you first arrive at the County Jail? A. The afternoon of May 4, 1959.

'Q. Mr. Schoonover, have you been charged with the offense----

'Mr. Adams: To which we will object as being irrelevant, immaterial, and incompetent, and improper impeachment. Counsel is attempting by the very nature of this question that he has started, to testify in this case.

'Court: Sustained.

'Q. Mr. Schoonover, do you know that Mr. Ponthier has been charged with committing a criminal act of sodomy on you, have you been charged with that offense?

'Mr. Adams: To which we will object and renew it on the same grounds heretofore.

'Court: Sustained.

'Q. Mr. Schoonover, are you acquainted with Gloria Jean Burright?

'Mr. Adams: To which I will object as being beyond the scope of the direct examination, irrelevant, and immaterial.

'Court: Sustained.

'Q. Mr. Schoonover, I want to call your attention to May 3, 1959, and the Fox Theatre here in Billings, and Gloria Jean Burright, and ask you----

'Mr. Adams: To which I will object on the grounds that this line of questioning is incompetent, irrelevant, and immaterial, and improper, and ask that Counsel be asked to discontinue this line of questioning.

'Court: Objection sustained, and without the suggestion of Counsel, I want to warn Counsel for Defendant, that this line of cross-examination is improper and not to continue this same line of cross-examination.

'Mr. Moe: Your Honor, I have an Offer of Proof I would like to make at this time.

'Defendant's Offer of Proof No. 2, by Mr. Moe.

'Comes now the Defendant and offers to prove by the witness now on the stand that if he were permitted to testify over objection, he would state that he was charged by an Information filed in this Court by this County Attorney with the crime of a lewd and lascivious act upon a minor child of nine years named Gloria Jean Burright, alleged to have been committed about May 3, 1959, in the Fox Theatre in Billings, and that this charge is still pending, and that he was in the County Jail on May 10, as the result of this charge.

'The defendant further offers to prove (by asking the Court to take judicial notice of the foregoing charge filed as Cause No. 5932 in this Court), the fact that this witness is charged with the crime of Sex Deviation and is presently subject to prosecution by this County Attorney.

'Mr. Adams: We will resist the Offer of Proof on the grounds it is irrelevant and immaterial and incompetent, and improper impeachment testimony. We will refer the Court to Section 93-1901-11 as the basis for our objection.

'Court: The objection is sustained and Offer denied.

'Mr. Moe: Your Honor, I have a further Offer of Proof, and let me write it out now.

'Defendant's Offer of Proof No. 3, by Mr. Moe.

'Comes now the Defendant and offers to prove by the witness now on the stand that he has not been charged with the offense for which the Defendant is on trial.

'Mr. Adams: Same objection as heretofore made to the previous offer of proof.

'Court: Objection sustained and the Offer of Proof denied.'

Appellant's counsel later proceeded as follows:

'Defendant's offer of Proof No. 7, by Mr. Moe.

'Comes now the Defendant, now offers to prove by the witness now on the stand, that some time between the close of the trial yesterday, when the witness claimed the Fifth Amendment in response to certain questions propounded by the County Attorney concerning the offense charged against the Defendant, and today, the witness was contacted by a member of the law enforcement agencies here in the City of Billings, either the Police Department or the Sheriff's Department, at the County Jail, and was induced or it was suggested to him, or he was threatened or promised some benefit if he would change his mind and decline to take the Fifth Amendment, and testify against this Defendant. I intend to ask him the question preliminary to that, Your Honor.

'Court: What is that?

'Mr. Moe: I was going to ask him if at some time between the close of trial yesterday and this morning, he wasn't contacted in his cell or at the County Jail by a member of the Billings Police Department, and if he answered the name of the individual, whose name I do not know, then I would go on and ask him whether this individual did not promise him some benefit or induce him in some way or suggest to him the possibility that he would receive some leniency if he did not take the Fifth Amendment in answer to the County Attorney's questions, and that as a result of this conversation he had decided to change his mind.

'Mr. Adams: We will object to that Offer of Proof, assuming, on the grounds, that it is irrelevant, immaterial, and incompetent, and on the grounds that it constitutes in effect a fishing expedition to see if something might not be elicited regarding such, based upon conjecture, that it constitutes improper impeachment, and it is not substantiated by fact, and the Offer of Proof fails upon its face to specify any person, place, or time other than based upon supposition, and therefore it is irrelevant and immaterial and incompetent and improper cross-examination, and constitutes improper impeachment, and there is insufficient evidence in the Offer of Proof to constitute--(whereupon the jury resumed their seats in the courtroom.)

'Court: Court will be in session, and the jury is all present, proceed.

'Q. Mr. Schoonover, at some time following the close of the trial proceedings yesterday and today, did you have a conversation at the County Jail, with a member of the law enforcement agency, concerning certain promises or inducements or threats against you, or concerning you, if you continued to take the Fifth Amendment in response to questions by the County Attorney?

'Mr. Adams: To which I will object on the grounds heretofore read into the record.

'Court: Well now, if you want to ask a question stating specifically what was said, which would be in the way of impeachment and lay the foundation for impeachment, why that will be permitted. The objection to...