State v. Popa

• Decision Date: 17 December 1919
• Docket Number: 4263.
• Citation: 185 P. 1114,56 Mont. 587
• Parties: STATE v. POPA.
• Court: Montana Supreme Court

185 P. 1114

56 Mont. 587

STATE v. POPA.

No. 4263.

Supreme Court of Montana

December 17, 1919

Appeal from District Court, Valley County; John Hurly, Judge,

George Popa was convicted of murder in the second degree, and he appeals. Affirmed.

Henry C. Smith, of Helena, for appellant.

Frank Woody, of Helena, for the State.

HOLLOWAY J.

On May 28, 1917, George Kozocar was shot and instantly killed while at his home in Valley county. The defendant was accused of having murdered him, was tried and convicted of murder in the second degree, and has appealed from the judgment. The brief of his counsel is devoted to a discussion of the sufficiency of the evidence and certain rulings of the trial court admitting and excluding evidence.

The persons present at the time of the tragedy were all foreigners, presumably Roumanians, apparently of a very low order of intelligence. Most of them did not speak or understand the English language at all. Two or three of them were able to give their testimony without the aid of an interpreter, but they spoke and understood English so imperfectly that it is very difficult to comprehend the evidence. The state's case rests largely upon the testimony of Wessa Kozocar, the 13 year old son of the deceased, and it is conceded by the eminent counsel for defendant that, if this testimony is worthy of belief, it cannot then be said that the evidence is insufficient to sustain the verdict and judgment.

Briefly the story told by the boy is to this effect: Some ten days or two weeks before May 28th Jake Moreaitu and his wife came from Canada looking for a location upon public land. They stopped at the Kozocar place during the interval under some sort of arrangement for compensating Kozocar for the accommodation furnished. About May 25th they began preparation to leave, and employed Popa and Alex. Boulder to assist in moving their property. On the evening of May 27th Popa and Boulder came to the Kozocar place and remained overnight. On the morning following Kozocar and Moreaitu and his wife engaged in a quarrel over the amount to be paid Kozocar in settlement, and Moreaitu and his wife left without adjusting the difference. When Popa and Boulder prepared to leave with their team and wagon, Kozocar stepped in front of the horses and with a monkey-wrench in his hand forbade them to go until Moreaitu should return and make settlement. Popa then went into the Kozocar house, procured a shotgun returned to within a few feet of Kozocar, and shot him in the face, cusing his death. This story is corroborated in some particulars by the wife of the deceased, who, however testified that she was not in a position to observe all that transpired. Except in one important particular, it does not differ from the story told by Popa and Boulder. Their version is that, when Kozocar stepped in front of the team, be struck one of Popa's horses in the head with the wrench; that Popa protested and gave Kozocar a shove to one side; that thereupon Wessa went into the house and procured the gun returned, and pointed it at Popa, who seized it to prevent harm to himself; and that while the two thus held the gun it was accidentally discharged, killing Kozocar. Wessa and his mother both testified to violent language employed by Popa to Mrs. Kozocar when she unpraided him for shooting her husband. Popa and Boulder admit that after the shooting they drove away and did not offer to render any assistance; did not even examine the body of Kozocar to ascertain whether he was dead.

On appeal from a judgment the review of the evidence by this court is limited to an examination of the record to determine whether there is any substantial evidence to justify the verdict. Buhler v. Loftus, 53 Mont. 546, 562, 165 P. 601; Dawes v. City of Great Falls, 31 Mont. 9, 15, 77 P. 309. While the story told by the boy, when reduced to cold print, appears to contain many contradictions and inconsistencies, we do not feel disposed to say that it is so far inherently improbable, or so far contradictory and inconsistent in itself, as to render it unworthy of credence.

The jury had the advantage of seeing the boy on the witness stand, observing his demeanor, his apparent candor or lack of it, and his ability to comprehend the question directed to him by counsel, and they may have been able to explain satisfactorily to themselves all inconsistencies and apparent contradictions in his story upon the theory of his limited knowledge of the English language, and this they must...