State v. Shadwell

• Decision Date: 26 May 1899
• Parties: STATE v. SHADWELL.
• Court: Montana Supreme Court

57 P. 281

22 Mont. 559

STATE v. SHADWELL.

Supreme Court of Montana

May 26, 1899

Appeal from district court, Silverbow county; William Clancy, Judge.

G. R Shadwell was convicted of murder, and appeals from the judgment and an order denying his motion for a new trial. Reversed.

B. S Thresher, for appellant.

C. B Nolan and C. P. Connolly, for the State.

HUNT J.

Robert Shadwell, by appeal to this court from a judgment and order denying his motion for a new trial, seeks to obtain a review of a sentence of death for the murder of Martin J O'Connor in Butte on January 11, 1898.

1. From the 20 errors urged by his counsel we have selected, as entitled to first consideration, the striking out of certain testimony introduced by the defendant, as shown by the following extracts from the bill of exceptions: "That after the evidence had all been introduced in said cause, and both the plaintiff and defendant announced that they had no more evidence to offer, said cause was by counsel for the state and for the defendant argued to the jury. That during the argument of the county attorney to the jury, and at a point in his argument where he referred to the evidence of the witness Buglis and the evidence of the defendant relative to the transaction which took place at the game of cards on or about the evening of the 9th of January, 1898, wherein some trouble arose between the defendant and the deceased, O'Connor, relative to the cutting of the cards preparatory to a deal, the county attorney was interrupted by the court, and was told by the court to not refer to any part of the evidence relative to the alleged trouble between the defendant and the deceased on or about the 9th of January, 1898; that all of said evidence was irrelevant, and had by the court been stricken out; that no evidence should be considered by the jury of any game of cards between the defendant and the deceased, or any trouble between the deceased and the defendant prior to the game of cards in which or at which the defendant fired the shot that resulted in the death of the deceased, O'Connor. The court further stated orally to the jury: 'And, gentlemen of the jury you are instructed that all such evidence, if there has been any, has been stricken out, and you are now instructed to disregard any evidence of any of the witnesses relative to any prior transaction or occurrence between the defendant and the deceased, O'Connor. And you are further instructed to pay no attention to any remarks or comments of counsel upon such evidence."' Further on in the rec ord we find the following: "And now, upon this 18th day of July, 1898, comes the defendant, and serves and files his proposed bill of exceptions on motion for a new trial, and asks that the same be signed, settled, and allowed as true and correct, and as containing all the evidence introduced upon the trial of said cause, and all the proceedings had in said cause before this court; and said defendant in such proposed bill of exceptions makes the following assignment of errors in rulings by the court during the progress of such trial, to which rulings of the court the defendant duly excepted at the time." An "assignment of errors" then follows, in which are enumerated various objections to the court's rulings upon testimony, as shown throughout that portion of the bill of exceptions containing the evidence produced on the trial. Included, also, in this "assignment" is a specification, numbered 20, setting forth that it was error for the court "to state, during the argument of the county attorney to the jury, that all of the evidence of the witness Buglis and the defendant relative to the trouble which took place between the deceased, O'Connor, and the defendant, on or about the night of June 9, 1898, was irrelevant and immaterial, and that the same had been by the court stricken out, and to instruct the jury orally that such evidence had been stricken out, and that they should not consider the same, or the argument of counsel relative to such evidence."

Counsel for the state argue that defendant cannot avail himself of this error because the record fails to disclose that any objection was made to the action of the court in withdrawing the evidence referred to in the judge's statement to the jury, or that an exception was taken to the action of the court at the time the evidence was so stricken out. But, notwithstanding the silence of that part of the record which states the ruling of the court in withdrawing the testimony, it does elsewhere appear, by the record as above set forth, that, after notice of intention to move for a new trial was served, defendant filed and served his "proposed bill of exceptions on motion for a new trial," purporting to contain, among other things, "all the proceedings had in said cause before the court," in which proposed bill of exceptions the defendant made the particular assignment of error numbered 20, supra, predicated upon the particular ruling of the court referred to in said assignment No. 20, and stating that to the ruling of the court "the defendant duly excepted at the time." This proposed bill of exceptions, together with certain amendments proposed by the state, was submitted to the judge for settlement on October 8, 1898, and on November 18th thereafter, "in the presence of and by the consent of counsel for both the plaintiff and the defendant," as a bill of exceptions it was "settled, allowed, and signed as true and correct" by Judge Clancy, the judge who tried the cause. Under this condition of the record we are constrained to hold that the judge, in settling and allowing the bill of exceptions as proposed, and in certifying to its correctness, certified that to his ruling in withdrawing from the consideration of the jury the evidence specified in assignment No. 20, defendant "duly excepted at the time." Wherefore it becomes our duty to consider the ruling, and its effect upon the substantial rights of the accused. While no independent specification of errors is required, under the Penal Code (section 2194), other than a bill of exceptions, yet, if the defendant does incorporate in his proposed bill a specific enumeration of errors alleged to have been made by the court below in decisions upon questions of law arising in the course of the trial of the case, so far as the allegations go, the office of such enumeration is merely to inform the state of the points intended to be relied on by defendant more fully than it has been notified by the original general designati on contained in the notice of intention to move for a new trial; and where the judge settles and allows as correct the bill of exceptions containing such enumerated errors, and certifies that to a ruling withdrawing certain evidence, specified as error in the enumerations, the defendant duly excepted at the time, we must hold the exception is preserved. In Territory v. McClin, 1 Mont. 394, on appeal from the judgment and bill of exceptions, the court said: "It is contended by respondent that the record does not disclose the fact that any proper exceptions were taken at the trial to the rulings of the court upon the introduction of evidence, or to the charge of the court to the jury. This is an appeal from the judgment roll, and the bill of exceptions is properly before the court for consideration. The bill of exceptions commences as follows: 'Now comes the defendant, by his attorneys, and tenders the following bill of exceptions, which were taken at the proper time and allowed.' We think these words form a part of the bill of exceptions, and, the bill being signed by the judge as correct, we must hold that to any ruling of the court, objected to at the time, as disclosed by the bill of exceptions, proper exceptions were taken at the time and allowed. This is the plain import and meaning of the language employed."

Holding then, as we must, that the action of the judge made the proposed bill of exceptions and its enumeration of errors the bill of exceptions in the case, it follows that verity is imported by the bill, and that defendant was allowed his exception to the point involved. State v. O'Brien, 18 Mont. 1, 43 P. 1091, and 44 P. 399. It also follows that we cannot ignore the record by acting upon the statement of counsel for the state, made during the oral argument, to the effect that defendant's counsel seeks to take advantage of a ruling not objected to on the trial, particularly where counsel for defendant announced that he stands upon the record, and upon its conclusive disclosure that an exception was duly taken to the ruling complained of at the time of the court's action. Furthermore, if, as a fact, there was no exception "duly taken at the time," full opportunity to correct the record, so as to make it conformable to the facts, was given after the proposed bill of exceptions was served upon the county attorney, and during the time wherein he could propose amendments thereto, and before the bill was settled. Again, if the bill of exceptions misstated the facts, the judge of the district court should not have allowed it to come to us in the condition it has. More than once has it been laid down that this court is obliged to examine and consider the bill of exceptions as it has been transmitted from the district court, and to credit it with being correct. State v. O'Brien, supra, and cases therein cited. We believe, therefore, that it is our duty to pass upon the point of the exception. In connection with the taking of this exception, our attention is called to the fact that the specified error quoted above pertains to the exclusion of evidence respecting an occurrence of June 9, 1898, whereas the ruling excluded the evidence of an occurrence of January 9, 1898. But, as it is conceded that...