State v. Reagin
| Decision Date | 19 October 1922 |
| Docket Number | 5086. |
| Citation | 210 P. 86,64 Mont. 481 |
| Parties | STATE v. REAGIN. |
| Court | Montana Supreme Court |
Appeal from District Court, Treasure County; Geo. A. Horkan, Judge.
Joe B Reagin was convicted of first degree murder, and he appeals. Order denying new trial and judgment of conviction affirmed.
Guinn & Maddox, of Hardin, and Young & Young, of Forsyth, for appellant.
W. D Rankin, Atty. Gen., and E. D. Gerye, Co. Atty., of Hysham for the State.
Joe B Reagin was convicted of murder in the first degree, and has appealed from the judgment and from an order denying him a new trial.
Some time late in the fall of 1921 the residence of a Mrs. Gambol, in Treasure county, near McRae post office, was burglarized, and bedding and other household articles taken. On December 9 the sheriff of Treasure county and Irving Keeler, the undersheriff, went to the Gambol neighborhood to search for the stolen property, and, with a son of Mrs. Gambol, searched about the premises of Amanda J. Bolton, and later in the day searched the premises of Glen Bolton, where they discovered several articles which the Gambol boy identified as property which had been taken when his mother's residence was burglarized. At the time Mrs. Glen Bolton was confined to a bed in her home on account of a broken leg. The sheriff placed Keeler in possession of the property identified by Gambol, and secured Samuel Pope to remain at the Bolton home with Keeler. The sheriff then returned to Hysham to secure a warrant, presumably for Glen Bolton, and medical attention for Mrs. Bolton. After the sheriff had gone, Glen Bolton went to the home of a neighbor to secure some camphor for his wife. He returned about 10 o'clock at night, and soon thereafter this defendant appeared, wearing a mask over his face and armed with a revolver. As he entered the house and the doorway leading into the room where Glen Bolton, Mrs. Bolton, Keeler, and Pope were assembled, he presented the revolver with the hammer cocked and commanded the four persons named to throw up their hands. Bolton and Pope obeyed promptly, but Keeler either refused or hesitated, and was shot and killed. After the shooting defendant burned the articles which Keeler had been guarding, took Keeler's gun, Glen Bolton's gun and his own, and left, but was later apprehended. The foregoing facts are taken from the case made by the state. Other evidence introduced by the prosecution need not be narrated here.
The defendant took the witness stand in his own behalf, and apparently in the most naïve manner imaginable told the story of his participation in the homicide, and included as well a recital of his complicity in other crimes. Stated briefly, his story is to the following effect:
He was born in Oklahoma and reared there until he was about 15 years old, when he came to Montana and resided here for some time. For brief intervals he was in Texas. New Mexico, Washington, Wyoming, and California, in which last-named state he committed grand larceny and pleaded guilty to the offense. He returned to Montana and engaged in work near Hardin until the fall of 1921, when he went to Treasure county near McRae post office and worked a few days for a Mr. Dowlin. He then took up his abode at the home of Glen Bolton in the same neighborhood. The Boltons not having sufficient bedding to accommodate him adequately, he burglarized the home of Mrs. Gambol at the instigation of Glen Bolton, and secured the necessary articles, which he took to the Glen Bolton home, where they were used. He did not do any work, except to assist about the chores. When the supply of meat at the Bolton home became exhausted, he went upon the range, butchered a steer without consulting the owner, and replenished the larder, and when that supply was consumed he repeated the crime, and again provided the necessary food.
During the afternoon of December 9, while he was at the home of Amanda J. Bolton, he was informed that the sheriff and undersheriff were in the neighborhood searching for the goods which had been taken from the Gambol residence. He started to return to the home of Glen Bolton about dark, and on the way met Glen Bolton, who informed him that an officer was then in the Bolton home in charge of property which had been taken from the Gambol residence. The two of them then agreed that defendant should "hold up" the undersheriff, and that they would disarm him and take the goods from him and burn them, thereby, as they supposed, destroying the evidence of the burglary. In the conversation defendant asked Bolton if the officer in his house "was a mean-looking guy, if he looked like he would be hard to hold up," to which Bolton replied, "No; just a little guy; an ordinary town dude." Bolton said further: "Don't cause any trouble if you can help it, but if you do I'll get you out of it." In execution of their plan they returned to the Amanda J. Bolton home, where they secured a large handkerchief and a piece of cloth for a mask. They then went to a point near the Glen Bolton home, where it was agreed that defendant should wait until Bolton went to his home and informed Mrs. Bolton and Pope of what was to occur, so that they would not be unduly excited. Defendant waited until he thought that sufficient time had elapsed for Bolton to make all necessary arrangements, and he then went to the house, his face, except his eyes, covered by the mask.
As he entered the house he drew and cocked his revolver, and approaching to the doorway leading into the room where Bolton, Mrs. Bolton, Pope, and Keeler were gathered, he called out in a loud voice: Bolton and Pope each put up his hands. Keeler was sitting with his legs crossed and his hands locked over his knees. He put his foot down, and cleared his throat, as if to say something, when defendant drew his gun down on Keeler, the gun was discharged, and Keeler was killed. Defendant testified: "I didn't know I was pressing the trigger." He testified, also, that he did not intend to kill Keeler; that he had been drinking, and was somewhat under the influence of intoxicating liquor.
There is much more evidence in the record, but nowhere does it present any conflict upon a material matter, and the foregoing suffices to illustrate defendant's assignments of error.
1. Complaint is made of the refusal of the trial court to give defendant's offered instructions 9 and 10, as follows:
Offered instruction 9 includes all of section 10865, Revised Codes 1921, while offered instruction 10 is a literal copy of section 10894. The theory upon which these instructions were offered is that, if the homicide occurred while defendant was committing or attempting to commit a misdemeanor only, he could not be guilty of murder in the first degree, in the absence of proof of premeditation, deliberation, and malice aforethought, and that defendant had the...
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