State v. Shafer

• Decision Date: 28 October 1901
• Citation: 26 Mont. 11
• Parties: STATE v. SHAFER.
• Court: Montana Supreme Court

26 Mont. 11

STATE

v.SHAFER.

Supreme Court of Montana.

Oct. 28, 1901.

Appeal from district court, Silver Bow county; Wm. Clancy, Judge.

Joseph Shafer was convicted of murder in the first degree, and from the judgment and from an order denying a new trial he appeals. Reversed.

E. S. Booth, for appellant.

Jas. Donovan, for the State.

BRANTLY, C. J.

Upon a second trial, granted to the defendant by the district court in obedience to the mandate of this court (State v. Shafer, 22 Mont. 17, 55 Pac. 526), he was again convicted of murder of the first degree, and condemned to death. This appeal is from the judgment and an order denying a new trial.

1. The charge against the defendant was by information filed by the county attorney by leave of court upon a motion in writing not verified. The information was verified by the county attorney upon his information and belief. Prior to the filing of the formal charge there had been no preliminary examination by a justice of the peace founded upon a complaint or affidavit reduced to writing, and showing probable cause, supported by oath or affirmation of any person. The motion for leave in the district court was accompanied by a statement in writing, but this was not supported by oath or affirmation. The defendant was arrested and brought into court under a bench warrant issued after the information was filed. He thereupon moved the court to set aside the information on the ground that he had been arrested and held to answer the charge preferred against him in violation of section 7 of article 3 of the constitution of the state, which prohibits the issuance of any warrant to seize any person without probable cause, reduced to writing, and supported by oath or affirmation. The motion was overruled, and, upon arraignment the defendant standing mute, a plea of not guilty was ordered entered by the court. Thereafter the cause was tried, resulting in a judgment of conviction. The contention of the defendant now made for the first time in this case is that, under the constitutional provision referred to, the written charge by the county attorney, verified upon his information and belief only, and not supported by an affidavit by himself or some other person setting forth facts sufficient to show probable cause, did not authorize the issuance of the warrant, his arrest, and subsequent trial. The sections of the statute regulating the filing of information upon leave granted by court (Pen. Code, §§ 1383-1387, 1810, et seq.), and prescribing the necessary steps to be taken, require a written motion for such leave, but nowhere provide that it must be supported by oath or affirmation. Under the statute of 1891 (Sess. Laws 1891, p. 249, § 3), the county attorney was required to verify the information; but Mr. Justice Hunt, in commenting upon this requirement in State v. McCaffery, 16 Mont. 33, 40 Pac. 63, points out that the words “probable cause,” as used in the constitution, are properly construed to embrace facts embodied in a complaint or information charging an offense upon information and belief. We believe this to be the true construction, both upon principle and for sound reasons of public policy. Where a charge is preferred by indictment in this state, it is usually based upon the information and belief of a grand jury of seven men. If the grand jury were required to act upon personal knowledge of the crimes for which they present indictments, it would rarely be the case that a charge could be preferred, no matter how much information they might obtain from witnesses, nor how thoroughly well founded their belief in the truth of it and in the guilt of the person accused. So it is with the county attorney or other public officer in endeavoring to bring wrongdoers to punishment. In the nature of things, these officers can rarely have personal knowledge of the facts and circumstances of a crime; and, in case of their inability to secure the affidavit of some one possessed of such knowledge upon which to prefer a charge, the lawbreaker would go unpunished. The provisions of the Code touching informations merely require that they shall be subscribed by the county attorney. It is nowhere made his duty to attach his verification, or to support the formal charge by an affidavit either by himself or any other person. It was held by this court in State v. Clancy, 20 Mont. 498, 52 Pac. 267, that the provision of the constitution here invoked is not violated by an omission on the part of the legislature to require an information to be verified, but that it is satisfied when an information, properly subscribed, is filed by the county attorney, because in thus presenting a formal charge this officer acts under his official oath. After a careful re-examination of the authorities cited and the provisions of the statute pertinent to the subject, we are satisfied with the conclusions reached in State v. Clancy, supra; and it necessarily follows that the written motion made by the county attorney for leave to file the information need not be supported by oath or affirmation, nor is it required that it should set forth with technical accuracy the facts constitution a formal charge.

2. The facts leading up to and attending the homicide are, briefly stated, the following: On the evening of August 11, 1897, the deceased, Hawkins, and the defendant, with some of their friends, had attended a dance at the Columbia Gardens, a resort near Butte, in Silver Bow county, remaining there until the following morning. About 2 o'clock in the morning Hawkins and the defendant had a personal encounter, during which Hawkins struck the defendant. The latter thereupon drew his pistol and fired twice at Hawkins, but without effect. Mutual friends interfered and stopped the conflict, and shortly thereafter Hawkins and the defendant, with their friends, returned to Butte. The defendant, with some of his party, went to the Swim Saloon, arriving there between 5 and 6 o'clock. The bar in the saloon forms a right angle with the line of the street, extending back from the front. Upon entering the place the rest of the party began to drink, and were standing about the room in front of the bar. The defendant apparently did not join in the drinking, but stood near and beyond the end of the bar towards the back of the room, some 18 feet from the entrance, leaning against a refrigerator. He was facing the street entrance. In a few minutes Hawkins entered alone. From this point there is a conflict in the evidence as to what took place. Some of the witnesses stated that Hawkins advanced towards the bar as if to order a drink, and stopped near the front of the room, with his right arm resting on the bar and his left hanging at his side; that thereupon the defendant, having advanced within a foot or two of Hawkins, thrust the muzzle of his pistol against Hawkins and...