Territory Montana v. Mcclin

• Decision Date: 31 August 1871
• Citation: 1 Mont. 394
• Parties: TERRITORY OF MONTANA, respondent, v. MCCLIN, appellant.
• Court: Montana Supreme Court

1 Mont. 394

TERRITORY OF MONTANA, respondent,

v.MCCLIN, appellant.

Supreme Court of the Territory of Montana.

August Term, 1871.

Appeal from the First District, Gallatin County.

MCCLIN was tried in June, 1871, by a jury, who returned a verdict of guilty, and the court, MURPHY, J., sentenced him. The other facts are stated in the opinion of the court, the remarks of MURPHY, J., and the note of the reporter.

S. WORD and PAGE & COLEMAN, for appellants.

Appellant was convicted upon his confession. There was no other evidence of guilt, and such a conviction could not be had. People v. Hennessey, 15 Wend. 148;People v. Badgley, 16 Id. 53.

Appellant's confessions were not voluntary, and should have been excluded. 1 Phil. on. Ev. 542, 543; People v. McMahon, 15 N. Y. 384;People v. Wentz, 37 Id. 303;Hartung v. People, 4 Park. C. C. 319.

The confessions of appellant to the officer having him in custody were inadmissible after officer had advised him to make the confessions. 1 Phil. on Ev. 542, 543, 557; Regina v. Warringham, 2 Lead. Crim. Cas. 167.

Any subsequent confession of guilt made by appellant was inadmissible, unless it appeared that the inducements of the officer and owner of the goods taken had been withdrawn and their influences removed. 1 Phil. on Ev. 551-554. The court erred in refusing to allow the officer, Guy, to answer the question put to him by appellant.

The instructions of the court were erroneous. See authorities already cited.

If the confessions were improperly admitted, the judgment of conviction should be reversed. Acquittal v. Crowell, 1 Cal. 191;Junis v. Steamer Senator, Id. 459;Grimes v. Fall, 15 Id. 63.

H. N. BLAKE, district attorney, first district, for respondent.

The transcript does not show that any exceptions were properly taken by appellant or allowed. They must be settled, signed, sealed and filed as allowed by law in civil cases. Acts 1865, 244, § 177.

This assertion in the transcript must be disregarded, to wit: “Now comes the defendant by his attorneys, and tenders the following bill of exceptions, which were taken at the proper time and allowed.” It is not certified to be correct by the judge or counsel.

The bill of exceptions is a mere statement of evidence. No error of the court is complained of. The appellant did not except to the action of the court at the trial. This court cannot review the same. People v. Thompson, 28 Cal. 218;People v. Martin, 32 Id. 91;People v. Dick, Id. 214;People v. Trim, 37 Id. 275.

The appellant was not injured by the confession specified in the first exception, as it was excluded from the jury by the court.

The question put to the officer, Guy, about soliciting appellant to confess, was “ruled out by the court.” No objection was made to the same, and no exception was taken to the ruling thereon.

The instructions referred to in the bill were not excepted to by anybody. They may have been given at the request of the appellant. The record is so defective in this respect that they cannot be reviewed.

The evidence detailed in the bill was “objected to” by appellant, when it was offered. No exception was taken to its admission, and there is nothing for the court to review.

The failure of appellant to take any exception to the above evidence or instructions was an acquiescence in the judgment of the court and a waiver of any right to appeal. People v. Wooster, 16 Cal. 435;Turner v. Tuolumne C. W. Co., 25 Id. 398.

The ground on which the evidence was objected to is not stated. A general objection is insufficient. People v. Rodriguez, 10 Cal. 50;People v. Frank, 28 Id. 507.

The admission of the evidence was discretionary with the court. 1 Greenl. Ev., § 219; People v. Jim Ti, 32 Cal. 64.

WADE, C. J.

This case comes into this court on appeal from the judgment and bill of exceptions, upon the separate trial of defendant, James F. McClin, indicted jointly with defendants, Nathan Ward, David Collier and John Maloney, for the crime of burglary.

It is contended by respondent that the record does not disclose the fact that any proper exceptions were taken at the trial to the rulings of the court upon the introduction of evidence, or to the charge of the court to the jury. This is an appeal from the judgment-roll, and the bill of exceptions is properly before the court for consideration The bill of exceptions commences as follows:

“Now comes the defendant by his attorneys and tenders the following bill of exceptions, which were taken at the proper time and allowed.”

We think these words form a part of the bill of exceptions, and the bill being signed by the judge as correct, we must hold that to any ruling of the court, objected to at the time, as disclosed by the bill of exceptions, proper exceptions were taken at the time and allowed. This is the plain import and meaning of the language employed.

We are then to consider the case as disclosed by the bill of exceptions and the record. By the record the defendant was convicted upon the evidence of confessions alone. As shown in the testimony the defendant was arrested by one John Guy, deputy sheriff, and that he told defendant that it would be better for him to confess his guilt. There appears the following in the bill of exceptions:

“In addition to the above, further evidence being adduced that a mob of one hundred men were around and about the jail where defendant was confined at intervals of nearly all one day; that threats were frequently made against defendant that if he did not confess he would have one hundred lashes, would be hung, etc.; that word was brought to defendant that one person confined with him and recently taken out by the mob had been hung; that the names of defendant and others confined in jail and the addresses of their parents and friends had been taken down by John Guy, deputy sheriff, in writing, with their knowledge, that in consequence of these threats and demonstrations defendant was greatly excited and alarmed so that he shed tears; and further, no evidence being produced that the inducements held out by the said deputy sheriff, John Guy, were at any time withdrawn, or that the mind of the defendant was at any time freed from the apprehensions occasioned by said violent threats and demonstrations; the court admitted as evidence confessions of guilt made by defendant to said Guy at intervals for several days afterward. Defendant's attorneys objected to the evidence at the time it was offered. The foregoing testimony having been adduced, the defendant's attorneys put the following question to the witness, Guy: ‘Were the confessions of defendant made subsequent to the day of his first confession, made at your solicitation and advice, that it would be better for him?’ which question was ruled out by the court.

The court then charged the jury that they should regard as evidence all confessions of guilt made by defendant to said Guy after the day of the first confession.”

We think the court erred in refusing to permit the...