Territory v. Rowand

• Citation: 8 Mont. 432
• Parties: TERRITORY v. ROWAND.
• Decision Date: 16 March 1889
• Court: United States State Supreme Court of Montana

8 Mont. 432

TERRITORY

v.ROWAND.

Supreme Court of the Territory of Montana.

March 16, 1889.

Dissenting opinion. For majority opinion, see 20 Pac. Rep. 688.

BACH, J., (dissenting.)

I cannot concur with the majority of the court in this case. Upon the previous hearing, all the judges concurred in the opinion that certain allegations contained in the indictment were matters of material description. I shall therefore accept that proposition as granted. At that time, however, the majority of the court concluded that the defendant had waived his rights by failing to object. In dissenting I expressed the opinion that the case did not present a question of variance, but a question of entire failure of proof. I cannot see that anything is to be gained by the statement that murder in the second degree could have been properly alleged in a second count. That seems to be the question. The fact remains that it was not so charged in this case. There are many crimes which may be committed in one of several ways, and an indictment may charge, by the use of several counts, that the crime was committed in each of these ways. In such a case the indictment will sustain a verdict found upon the appropriate count. But suppose that an indictment charged that an offense was committed in only one of the ways mentioned in the statute, and that the proof demonstrated that in fact the crime was committed in another way. Would the evidence sustain the verdict? What possible difference does it make when we admit that the pleader might have charged the crime by further count, provided only that the fact remains that he did not so charge it? Our statute declares that the facts must be charged, and it follows that the facts charged must be proved as charged in all the material particulars. In the present opinion of the majority of the court the case of Bishop v. State, 9 Ga. 121, is cited to sustain the position that the defendant has waived his right by failing to object. I think that the majority of the court has misapprehended the point decided in that case, which was this: Richard Bassett had testified as to certain localities. Upon rebuttal the prosecution introduced in evidence a map for the purpose of contradicting Bassett, which map was admitted without objection. Upon appeal defendant urged that it was error to admit the map before it had been shown to Bassett. The court properly held that it was too late to raise such an objection. That was not a case of...