State v. Suitor
| Decision Date | 25 February 1911 |
| Parties | STATE v. SUITOR. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; E. K. Cheadle, Judge.
Stephen E. Suitor was convicted of murder, and he appeals. Reversed with directions.
John A Coleman, for appellant.
Albert J. Galen, Atty. Gen., and J. A. Poore, Asst. Atty. Gen., for the State.
The defendant was convicted of murder in the first degree and sentenced to undergo punishment by confinement in the state prison for life. He has appealed from the judgment and an order denying him a new trial. Two contentions are made in his behalf, viz.: That the evidence is insufficient to justify the verdict, and that the verdict is contrary to law.
The evidence is entirely circumstantial. The defendant at the time of the homicide was residing alone in a cabin a few miles northeast of the village of Giltedge, in Fergus county. He was the owner of cattle which ranged over the mountains to the north and west. The Spotted Horse and Cumberland mines are about two miles to the northwest of defendant's home. The village of Maiden is to the west and some distance further, so that its position with reference to Giltedge is northwest, and with reference to these mines southwest. The road from Giltedge to Maiden winds for a distance to the northwest through Maiden Canyon, and then turns west. From this point a branch road leads northward up the canyon to the Spotted Horse mine, thence to the Cumberland, half a mile further, and thence north over a low divide connecting with another road coming from the northeast, called the Ft Maginnis road. On the right to one going up the canyon, about 700 feet directly east from the point where the road turns west to Maiden, and about 250 feet above the level of the road, in an open park, is situated the Hertford quartz claim belonging to one Mellor. The ascent in that direction is precipitous and covered with timber. A person at work on the claim cannot be seen by one passing along the canyon nearer than from a point about 2,500 feet in the direction of Giltedge. The deceased, Thomas Burke, was a miner, and occupied alone a cabin in the canyon near the road leading to the Spotted Horse mine. The cabin is on a direct line between the mine boarding house and the Hertford claim, about 700 feet from the former and 1,000 from the latter. The Cumberland boarding house is several hundred feet to the northwest beyond the Spotted Horse boarding house. The Hertford claim is not visible from any of these points. From it the surface of the country first ascends rapidly for somewhat more than a mile to the northeast and east, and then gradually descends to the level of the Ft. Maginnis road on the north and toward the home of the defendant to the east. It is rough and preciptous, so that in order to conveniently reach the Hertford claim from the home of defendant, either on foot or horseback, it is necessary to travel three or four miles around the base of the mountain toward the south and approach it by the road from Giltedge, or to go northward to the Ft. Maginnis road and come into Maiden canyon from the north over the divide, traveling about the same distance. One witness stated that the claim might be reached from defendant's place by going directly across the mountain on horseback.
This brief description of the locality where the homicide occurred and the surroundings is necessary to an understanding of the evidence, of which the following is a summary:
On June 28, 1910, Thomas Burke was in the employ of Mellor, and engaged in doing discovery work on the Hertford claim. Its location seems not to have been completed. He was seen to leave his cabin with his lunch bucket about 8 o'clock in the morning, taking the trail along the eastern wall of the canyon leading up to the claim. This was the last time he was seen alive by any witness. About 11 o'clock in the forenoon he fired a blast, the report of which was heard by several witnesses at the Spotted Horse and Cumberland mines. About 3 o'clock in the afternoon another report was heard in the direction of the claim, which, in the opinion of these witnesses, was made by the discharge of a shotgun. Mellor was in the employ of the Cumberland Mining Company. He went to the cabin of Burke on the evening of the 28th, but found no one there. He returned the following evening, and, finding no one there, wrote a note to deceased and left it for him. Later the same evening he again returned, and, finding that the deceased was still absent, went to the claim in search of him, thinking he might have been injured. On arriving there in the dusk, he found the body of the deceased lying face downward in an open cut in which he had been at work. He at once notified the sheriff and coroner. An examination made of the body the next morning revealed the fact that the deceased had been killed by a charge of what appeared to be six buckshot, fired into his breast from the right and somewhat above and from a short distance; that they all entered within a space of three inches square, tearing his heart into shreds. The nature of the wound and the position of the body indicated that he had probably been called by the assassin and shot down as he turned to answer. There was no evidence of a struggle. The lunch bucket was found empty. The surroundings indicated that the deceased had fired a blast, and that at the time he was killed he was engaged in shoveling the débris out upon the lips of the cut. Leading from the cut to a small tree below and toward the road were found the tracks of a man, and below the tree along the slope was the track of a small horse which in the opinion of a witnss was not very old, though he did not notice it closely enough to determine whether it was old or new. These led down toward the road in the canyon. On the 1st or 2d of July a deputy sheriff examined the ground in the vicinity. In a small park hidden in the timber across the road in the canyon he found a faint trail in the grass which appeared to have been made by some one going in and returning. On the left lip of the cut and toward the face of it there was picked up an ordinary 12-gauge felt shotgun wad. This bore on one side the marks of buck shot. A day or two afterwards a 12-gauge cardboard shotgun wad was found in the loose dirt in the cut. It was of a pink or yellow color on one side and white on the other. It was shown that in addition to felt wads a wad similar in color and material is used by the manufacturer in loading what is known to sportsmen and the trade as "Peters Ideal shells." It is placed over the shot. The pink or yellow color is the same as that of the outside covering of a Peters Ideal shell, no other manufacturer using it. On one side of the wad found were marks of small shot. Five shot were taken from the body, and upon examination some of them appeared to have been whittled down to make them chamber in a 12-gauge shell.
The defendant was arrested upon a charge of murder on July 6th. At his house was found, among his other weapons, a 12-gauge double-barreled shotgun. The firing apparatus of the right barrel was out of repair. In the opinion of witnesses who examined it then the left barrel had been recently fired, and streaks along the bore indicated that the last charge fired from it had consisted of buckshot or other large shot. Scattered about the premises outside the cabin were found several exploded Peters Ideal shells, all 12-gauge in size. The following conversation occurred between him and the sheriff at the time of his arrest: " Questioned as to his whereabouts on June 28th, he did not give a definite answer. He remarked that he had heard of some one telling that he had been at Giltedge trying to buy buckshot. On the evening of June 14th he was at Lewistown in company with the witness Langdoc. The two went to a restaurant to eat. On the way the defendant asked the witness if he could shoot coyotes with buckshot. The witness replied: "Yes; if you are close enough." Defendant then said: "Well, I believe I will go to the hardware [store] and get some." The witness stated that defendant then started toward the Judith Hardware Company's store, but found the door locked. The next day a man called at the store and purchased two pounds of buckshot of different sizes mixed.
The identification of this man as the defendant rests upon the testimony of the salesman, which is as follows: At another place in his testimony he stated that he had described the purchaser of the shot to the sheriff, and that his description He could not describe the defendant's clothing further than to say that the hat he had on at that time seemed the same he had when arrested, "rather a Western style of hat." This witness had accompanied the sheriff at the time the arrest was made. At the preliminary hearing he had testified that he recognized the defendant by his beard, his movements, and his voice. This was the only witness, other than Langdoc, who testified concerning the purchase of the buckshot, or who spoke as to the identity of the defendant as the purchaser.
The evidence...
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