State v. Shafer

• Decision Date: 19 December 1898
• Citation: 22 Mont. 17
• Parties: STATE v. SHAFER.
• Court: Montana Supreme Court

22 Mont. 17

STATE

v.SHAFER.

Supreme Court of Montana.

Dec. 19, 1898.

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

Josiah Shafer was convicted of murder in the first degree, and appeals. Reversed.

M. J. Cavanaugh, B. Noon, and Francis Brooks, for appellant.

C. B. Nolan, Guy W. Stapleton, and C. P. Connolly, for the State.

PEMBERTON, C. J.

The defendant was convicted of murder in the first degree on the 14th day of November, 1897, in the district court of Silverbow county. On April 23, 1898, he was by the judgment of the court sentenced to be hanged. From the judgment, and order of the district court refusing him a new trial, this appeal is prosecuted. There is an immense record in the case, presenting the evidence and numerous assignments of error alleged to have been committed by the trial court in admitting and excluding testimony, and in the giving of instructions to the jury.

Several witnesses on the part of the defendant testified that they knew the defendant, and had known him in the community where he lived for a considerable time prior to the homicide, and that his general reputation for peace and quiet was good. They all, however, testified on cross–examination that they had never heard his reputation discussed at all. Because these witnesses stated that they had never heard the defendant's reputation in this respect discussed, the court, on the motion of the prosecuting attorney, and against defendant's objection, struck out all their testimony. We think it was competent for the defendant to prove good character by this negative testimony. Upon this subject it is said in Rice on Evidence (volume 3, § 380): “The propriety of this rule, permitting negative evidence of good character, is gradually forcing itself upon the recognition of the courts, and there is a current and modern authority rapidly forming in support of it. *** The authorities abundantly establish that the person testifying need not base his means of knowledge on what is ‘generally said’ of the person whose character is in question, but may base his knowledge of the reputation of such person on evidence of the negative nature above noted.” See authorities cited in section 380, supra. Counsel for the state say no foundation was laid for this negative evidence, by showing the witnesses would have likely heard any discussion that might be had concerning defendant's reputation. But these witnesses stated they knew the defendant, and, evidently, very intimately, and also knew people who were acquainted with defendant; and we think they were so well acquainted with him, and with people who knew him, that it may be reasonably inferred that they would have heard any discussion that defendant's neighbors might have had concerning his reputation.

It seems also, from the record, that the court permitted witnesses on the part of the state to testify, over the objection of defendant, to the bad reputation of defendant and the good reputation of deceased, who showed no more qualification to testify than the witnesses offered by the defendant, whose evidence was excluded by the court. If it was proper to exclude the evidence of defendant's witnesses under the circumstances disclosed by the record, for the same reason the testimony of the state's witnesses should likewise have been excluded.

It is also contended by the state that other witnesses gave like testimony, which was not stricken out, and that therefore, if the striking out of such testimony was error, it was not prejudicial. But defendant was entitled to have the jury consider all of his testimony. We cannot say that he was not prejudiced by striking out part of it on a material point, because like testimony had not been stricken out.

When the defendant was on the stand, he was asked what kind of a man the deceased was physically. This was objected to, and he was not permitted to answer the question. This was error.

Matt Lewis, a witness for defendant, testified that the reputation of deceased for peace and quiet was bad. This evidence, on motion of the prosecuting attorney, was stricken out. This was error. There was evidence tending to show that the deceased was the assaulting party at the time of the homicide, and it was competent to prove the general reputation of the deceased for peace and quiet under the plea of self–defense.

The court permitted witnesses to testify to declarations made by the deceased to them in the absence of the defendant, about 30 minutes before the homicide, that he (deceased) had had a difficulty with the defendant at Columbia Gardens that night; that he was not armed; that he was afraid of the defendant; that he wanted protection from defendant; that he wanted defendant arrested, etc. It seems that this evidence was admitted for the purpose of showing deceased was not armed at the time he was shot by defendant. But we know of no theory upon which it was admissible. It was not a part of the res gestæ. It was clearly hearsay, and it was just as clearly error to admit it. People v. Irwin (Cal.) 20 Pac. 56;People v. Carlton, 57 Cal. 83, and authorities cited.

We are called upon to treat the instructions given by the court to the jury. The task is appalling. Fifty–nine instructions were given, and nearly all of them are attacked by innumerable assignments of error. It is out of the question to treat them seriatim. The attorney general claims that the instructions cover all the questions of law applicable to the case, and says, “The only objection that ought to be urged in that respect is that they are too numerous.” We agree with counsel that the instructions “are too numerous.” They are so much so as to be absolutely confusing, if they were free from defects, inconsistencies, and contradictions. Counsel for the defendant especially claim, and urge with much earnestness, that instruction No. 13 is fatally erroneous. The instruction reads as follows: “The unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation. It must be formed upon a pre–existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. But there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer; and, if such is the case, the killing is murder of the first decree, no matter how rapidly these acts of the...