State v. Pugh
| Decision Date | 26 June 1895 |
| Parties | STATE v. PUGH. |
| Court | Montana Supreme Court |
Appeal from district court, Jefferson county; Frank Showers, Judge.
Clay Pugh was convicted of murder, and appeals. Affirmed.
J. C English and C. L. Campbell, for appellant.
H. J Haskell, for the State.
On the 14th day of April, 1895, the above-named defendant was convicted of the crime of murder in the first degree, in the district court of Jefferson county, and on the 18th day of said month was, by the court, sentenced to be hanged. From the judgment this appeal is prosecuted. The facts of the case, as far as it is necessary to treat them, are stated in the opinion.
On the 5th day of October, 1894, the defendant shot and killed C. W West, in Silver Bow county. The case was thereafter transferred to the county of Jefferson, where it was tried with the result above stated. The deceased was a railroad conductor, and at the time of the shooting was engaged in running a freight train on the Butte, Anaconda & Pacific Railroad, from Butte to Anaconda. The defendant and others had gotten on said train to ride to Anaconda, without authority, and against the consent of the deceased. The train was stopped, and the men put off. As the train started the defendant and others got on again. The train was again stopped by deceased, and defendant was ejected therefrom by him. Almost immediately after being ejected from the train the defendant fired two shots at the deceased, from a pistol, inflicting upon him two mortal wounds in the back. The defendant, immediately after firing the shots, ran from the place of the tragedy towards the foothills. He was immediately pursued by persons near by, and captured about a quarter of a mile away. To his captors he stated, in effect, that West hit him in the face, and then he shot him. The defendant sought to prove this statement was made by him, after his capture, to the witnesses. The court held the testimony to be incompetent. The defendant assigns this ruling as error. We do not think, as claimed by counsel for defendant, that these statements were part of the res gestae. They were part of the defendant's narrative of the events of the tragedy that was passed and complete. Nor were they free from the suspicion that they were made with the design of having them constitute a part of the plan of defense. Whart. Cr. Ev. § 262; Territory v. Clayton, 8 Mont. 1, 19 P. 293. Even admitting the ruling complained of to have been wrong, still we think the defendant was not prejudiced. One of the witnesses who assisted in defendant's capture testified, without objection, to this statement of the defendant. The evidence went to the jury, and was not stricken out. The objection to this testimony was made when another witness was on the stand, and held to be inadmissible. So that the defendant got the benefit of this testimony, whatever the benefit may have been.
The defendant also assigns as error the action of the court in excluding evidence of a statement made by deceased, a short time after the shooting, to the effect that defendant applied to him opprobrious epithets, and he struck him. We think this evidence comes within the same rule, and was subject to the same objection, stated above. But in this case one or more witnesses did testify to this statement of the deceased, and the evidence went to the jury, for what it was worth, without objection. Other witnesses were not permitted to testify to the same fact when objection was made. It does not appear from the record just what time had elapsed after the tragedy before the making of either of the above statements by the respective parties sought to be introduced in evidence, but it is clear that they were made after the tragedy was over and complete, and that they were narrations of events that had passed. We think, therefore, it cannot be claimed that such statements constituted any part of the res gestae.
The defendant contends that the evidence is not sufficient to sustain the verdict, because, he says, it does not show premeditation or deliberation. Witness Pinney, who was the front brakeman on the train at the time of the homicide after testifying to the attempt of the deceased to get the defendant off the car, and after testifying that it was his duty, as such brakeman, to pay strict attention to the deceased, and that he was doing so, in order to repeat whatever signals he might give to the engineer, swears: ...
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