State v. Trueman

• Citation: 85 P. 1024,34 Mont. 249
• Parties: STATE v. TRUEMAN.
• Decision Date: 14 May 1906
• Court: United States State Supreme Court of Montana

85 P. 1024

34 Mont. 249

STATE v. TRUEMAN.

Supreme Court of Montana

May 14, 1906

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Edward B. Trueman was convicted of manslaughter, and he appeals. Reversed and remanded.

Noffsinger & Folsom, McIntire & Kendall, W. G. Downing, and Jesse B Roote, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

HOLLOWAY J.

Edward B. Trueman was convicted of the crime of manslaughter and appeals from the judgment, and from an order denying him a new trial. The defendant killed James McCabe on election day November 4, 1904, near a polling place at Sedan, Flathead county. He was tried at the February term of court, 1905, but the jury failed to agree upon a verdict, was discharged and the cause continued until the May term of the same year, when it was tried a second time. Upon the second trial the defendant entered a plea of once in jeopardy in addition to his plea of not guilty, which had been interposed before the first trial. There had been a long-standing difficulty between deceased and defendant, other personal encounters between them had occurred, and each had made threats against the other.

1. A witness, Yeiser, testified to a threat made by the defendant in 1900. He testified that he was near the defendant's place; that defendant came up, with a rifle leveled at the witness, to within about 20 feet from where the witness was standing, and said: "I will get you sons-of-bitches yet." When asked how he knew that McCabe was meant, he answered: "Because my neighbors had told me previously." This was objected to upon the ground that it was hearsay, and a motion to strike it out was made. The objection was in effect overruled and the motion to strike out was denied. The testimony, so far as it related to McCabe, was clearly hearsay and inadmissible. The witness did not pretend that McCabe's name was mentioned at all by the defendant, and there is nothing in the record whatever to show that McCabe was intended to be included in the class referred to by the defendant. The mere fact that the witness said: "I know he meant James McCabe and myself and Frank Addeman," does not alter the situation, for he had testified that the reason he knew that McCabe was intended to be included was because his neighbors had told him so. The rule of law with reference to the reception of testimony of previous threats by the defendant is stated in 21 Ency. of Law (2d Ed.) 220, as follows: "The rule as generally laid down is that threats to be admissible must indicate a purpose to do some particular person an injury, or must be expressions of ill will or hate against a class of which the deceased is one, and must be capable of such construction as to show reference to the deceased."

2 Fred. Strodbeck, a witness for the state, testified that he and McCabe went to Sedan together on the day of the homicide, and told generally of their movements. On cross-examination he stated that he and McCabe went to Sedan and voted before they had anything to drink (meaning intoxicating liquors). On cross-examination he was asked to state whether or not they had anything to drink that day, but, on objection by counsel for the state, he was not permitted to answer. This rule was erroneous. It was proper cross-examination, for the purpose of showing whether the witness was in such a condition of sobriety as to be likely to remember what occurred, and as tending to shed light upon McCabe's action. The contention of the defendant was that McCabe was the aggressor, and was killed by Trueman in self-defense.

3. The witness Roddy, for the state, testified at great length with reference to circumstances preceding and attending the homicide; that McCabe came up to where witness and Trueman were standing, came up behind Trueman and struck him over the shoulder with an axe handle. On cross-examination he was asked to state whether or not he saw McCabe carrying that axe handle around during that day. This was objected to by counsel for the state as not proper cross-examination, and the objection was sustained. This was also error. It was not only proper cross-examination, but tended directly to sustain the defendant's contention that McCabe sought the encounter and had prepared himself for it. There is no dispute in the evidence that McCabe not only had the axe handle, but had a loaded revolver in his coat pocket, at the time he was killed. The testimony also tends to show that he had purchased this axe handle during the forenoon, some considerable time before the homicide. The mere fact that the evidence sought to be elicited by the question was in a sense cumulative does not cure the error. The jury might not have believed the other witnesses and might have believed the witness Roddy.

4. A witness, Alexander, testified for the defendant that he was a clerk of election at Sedan on the day of the homicide; that he saw McCabe, and that McCabe appeared to have been drinking. He was then asked to state whether he noticed that the drinking affected McCabe's conduct. This was objected to on the ground that it called for the conclusion of the witness. The objection was sustained, and error is predicated upon this ruling. The ruling was erroneous. In Hardy v. Merrill, 56 N.H. 227, 22 Am. Rep. 442, it is said: "But without reference to any recognized rule or principle, all concede the admissiblity of the opinions of nonprofessional men upon a great variety of unscientific questions arising every day, and in every judicial inquiry. These are questions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, and health; questions, also, concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character, and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention." The correctness of this rule is settled beyond controversy. People v. Sehorn, 116 Cal. 503, 48 P. 495; State v. Dolan, 17 Wash. 499, 50 P. 472; 3 Wigmore on Evidence, § 1977; 17 Cyc. 91.

5. Thomas D. Long, an attorney, was employed by Mrs. McCabe relict of James McCabe, the deceased, to assist in the prosecution, and from the record it appears that he assumed the role of leading counsel for the state and did most of...