State v. Welch

• Decision Date: 23 January 1899
• Citation: 22 Mont. 92
• Parties: STATE v. WELCH.
• Court: Montana Supreme Court

22 Mont. 92

STATE

v.WELCH.

Supreme Court of Montana.

Jan. 23, 1899.

Appeal from district court, Custer county; C. H. Loud, Judge.

Thomas Welch was convicted of murder in the second degree, and appeals. Reversed.

O. F. Goddard, C. R. Middleton, and Wm. H. De Witt, for appellant.

C. B. Nolan, Atty. Gen., and T. J. Porter, for the State.

PIGOTT, J.

Thomas Welch, George S. Geddes, and Richard Dixon, or Dickson, were accused, by information filed in the district court of Custer county, of the murder of Clemence Winfred Brown. Upon his separate trial, Welch was convicted of murder in the second degree, and was sentenced to imprisonment for 20 years. From the judgment of conviction, and from the order refusing a motion for a new trial, this appeal is prosecuted.

Most of the errors assigned by defendant were presented in State v. Geddes, 55 Pac. 919, and are considered and disposed of in the opinion this day rendered in that case; hence only such points as are not determined in the Geddes Case, and are likely to arise in the event a new trial be had of this case, will be discussed.

1. Over the exception of defendant, the court admitted in evidence the information against George S. Geddes, filed July 20, 1897, charging him with assault upon decedent, and also the complaint, filed October 18, 1897, in an action brought by decedent to recover damages occasioned by the assault. If the defendant had conspired with Dixon or with Geddes to accomplish the murder of Brown, these documents would doubtless have been relevant, as tending to disclose a motive for the killing, and for no other purpose. Counsel for the state, however, employed this evidence for another and improper purpose. It is evident from an inspection of the transcript that the attorneys for the state were allowed, against the repeated objections of defendant, and over his exceptions, to comment on the information and complaint as if the allegations of each were true. This conduct was most prejudicial to defendant, and was error. Even in the heat of trial, and in the ardor of advocacy, county attorneys and their assistants ought to realize that their duty never requires them to disregard the rights of the defendant, and that when they seek, by deducing palpably unwarranted inferences from the proofs, to induce juries to return verdicts of guilty, the bound of official duty is overstepped. Prosecutors should never permit themselves to forget the obligation imposed upon them to refrain from perverting the evidence, even unwittingly, to the detriment of the defendant. It is true that the court permitted the negro, Dixon, to detail a conversation which he testified occurred between himself and George S. Geddes, at which the defendant was not present, and in which Geddes related the circumstances of the whipping administered by him to the decedent, and this is urged by the county attorney as warrant for the comments which have been mentioned; but, in the absence of a conspiracy, such evidence of the declarations of Geddes was hearsay, and, even had there been proof of a conspiracy, the declarations attributed to Geddes were mere recitals of a past act, done by Geddes prior to the time when the supposed conspiracy to kill Brown was formed, and therefore, as against Welch, would not be competent, as made in furtherance of the object sought to be accomplished by the conspiracy. There is not a dearth of instances disclosed by the record in which counsel for the state urged, and succeeded in adducing, inadmissible testimony against the defendant; nor is the transcript barren of instances where they were instrumental in excluding material and competent evidence offered by defendant. Observing, as we have, the many hypertechnical and frivolous objections interposed by the state, we are indeed impelled to the belief that the attorneys prosecuting, in their strong desire and excessive zeal to convict, were unconsciously disposed to regard as inadmissible much evidence which it was clearly the right of defendant to lay before the jury.

2. The state offered in evidence a letter, dated August 15, 1897, written by the defendant to the decedent, by which the decedent was requested to go to the O. W. ranch on the 21st of August, and in which the defendant said he wanted to see decedent on important business, and would depend upon him to be there, and that he would pay him well for his trouble, and would depend on him to go. The letter inclosed five dollars. The defendant offered to prove that he and George S. Geddes had had conversations in relation to effecting a settlement of the controversy that existed between Geddes and the decedent, growing out of the alleged whipping, and that he wrote the letter of August 15th for the purpose of meeting the decedent and bringing about a compromise of the trouble. This offer the court denied, and refused to allow the defendant to give any reason for having written the letter, or any explanation in respect thereof. In this there was error. In view, however, of the fact that the defendant subsequently, on cross-examination, succeeded in getting the matter offered before the jury, we are inclined to think the error was not a material invasion of defendant's rights.

3. The state having proved that letters passed between the defendant and Regina Geddes, both before and after the homicide, for the purpose of permitting the jury to infer that the letters contained something that might bear upon the murder, or as indicating a conspiracy between the correspondents to kill Brown, the defendant testified that he had destroyed the letters received by him, as was his universal habit as to letters that he received, and that he had no reason for destroying them, other than...