State v. Gunn , 89 Mont. 453 ( 1931 )

Conceding, as we do, that under the statute (sec. 12127, Rev. Codes 1921) this court may, in a proper case, modify the judgment or reduce the penalty imposed to fit the crime established by the evidence (State v. Sorrentino, 31 Wyo. 129, 34 A.L.R. 1477, 224 P. 420; see extensive note to State v. Glander, 29 A.L.R. 313 et seq.), yet we cannot agree with the result reached on this appeal in the majority opinion, by reason of the evidence now before us presenting similar facts, and of our decision on the former appeal (85 Mont. 553,281 P. 757).

If the state's witnesses are to be believed, then there is ample evidence to sustain the verdict and judgment, it being the rule that no appreciable length of time is required to form the requisite deliberation to constitute murder in the first degree (State v. Shadwell, 22 Mont. 559, 57 P. 281; 29 C.J. 1113); but in view of the physical facts appearing on the last trial, substantially the same as on the first, such evidence is unworthy of belief. In the record before us, as in that presented on the former appeal, the physical facts, to our mind, demonstrate conclusively that a struggle ensued at the place of the homicide, thus completely refuting the story of the state's witnesses as to what transpired. Additional witnesses were produced by both the prosecution and the defense, but for the most part their evidence is cumulative in character, or of a nature to discredit defendant's version of the tragedy. It should be noted that on the former appeal the cause was reversed, not because of the strength of defendant's evidence, but because of the improbability of that offered by the state.

The only eye-witness to the tragedy, other than Ed. Kasten, O.J. Carney and the defendant, was Bertha Erickson, who was at the time riding with the defendant in his automobile. She was not produced as a witness on the former trial, but gave testimony as a witness for the defendant upon the last trial which was in no manner helpful to the prosecution. Generally, her evidence corroborated the defendant's version of the homicide and is substantiated by the physical facts. Her evidence, as well as that of additional witnesses produced by the state and the defendant, is merely cumulative.

The conviction of the defendant rests almost entirely upon the testimony of O.J. Carney and Ed. Kasten, both of whom at about the time of the homicide had been drinking, and Carney was pretty well under the influence of liquor. Their stories are inconsistent and contradictory and are refuted by the physical facts. Both testified that there was no fight, but the body of O.J. Carney was greatly bruised and his face gave unmistakable evidence of an encounter; the face of the defendant was bleeding and showed that he had been in a fight, and his leg was broken; the ground was all roughed and scuffed up, and the watch worn by O.J. Carney was found lying on the roadside with its link straightened out, indicating the force with which it was removed from his person. The money found scattered on the roadside, consisting of gold and silver, belonging to O.J. Carney, is mute evidence of a fight. At about the place on the road near where the watch and money were found there were blood spots on the ground a distance of about twelve or fifteen feet from where the Carney car stood, — all tending to corroborate the defendant's version of the homicide.

If the state's witnesses are to be believed in the story told by them, the jury was warranted in finding the defendant guilty of murder in the first degree and the verdict and judgment should not be disturbed; on the other hand, if the defendant is telling the truth, he acted in self-defense and should have been acquitted. We concede that the jury was warranted in disbelieving the story of the defendant in all its details, but that both bones in his leg were broken in a spiral fracture there can be no doubt. That it was broken in the fight is equally certain. There was no opportunity afforded to break it otherwise. Only some few minutes elapsed between the time of the shooting and the time that defendant drove into the town of Sweet Grass with the broken leg.

It is conceded by all the witnesses that the shooting of Paul Carney ended the fight. There was no fighting after that, and nothing thereafter transpired from which defendant's leg could have been broken. In consequence it follows that his leg must have been broken before the fatal shot was fired. This being so, it is improbable that defendant could have done the shooting while standing on his feet, as the witnesses for the state testified.

It is beyond belief that the defendant, after his encounter with the Carneys, returned to his roadhouse and there, deliberately or otherwise, broke his leg; moreover, M.L. Pick who constructed the building, testified that there are no stairs in the roadhouse, so that he could not therein have fallen down any stairs to break his leg, as testified by Latta, that the defendant had told him that was the way and place in which the leg was fractured. Moreover, it is unreasonable of belief that, had he there thus severely broken his right leg, he would have thereupon, in such condition, gotten into his automobile and driven to Sweet Grass. The more natural course for him to have pursued would have been to go to bed at the roadhouse and call for help.

In the face of the physical facts shown to exist, the evidence does not, in our opinion, justify a verdict of murder in either degree. (Secs. 10953 and 10955, Rev. Codes 1921.) Malice and premeditation are completely offset by the physical facts, and in the decision of this court on the former appeal it was determined, upon substantially the same testimony, that "there is no credible evidence in the case to support the verdict of murder in the first degree." It was pertinently said by this court on that appeal: "The rule that since the jury is in a more advantageous position to pass upon the credibility of witnesses and the weight to be given to their testimony than is the supreme court and that it will not substitute its judgment for that of the jury, is not controlling where the surrounding circumstances make the story of a witness highly improbable or incredible, when the testimony is inherently impossible, or the physical facts unerringly refute his testimony." The testimony of the defendant is substantiated by the physical facts, and accordingly the verdict and judgment should be set aside. If it were not for the fact that the evidence of the state was wholly discredited, the jury would have been warranted in finding that the defendant is guilty of murder in the first degree, as contended by the state; but in view of the character of the evidence, coupled with the physical facts, the rule announced on the former appeal controls here. On the former appeal, it was only because the state's evidence was so at variance with the physical facts that this court felt impelled to hold that the verdict of murder in the first degree could not stand. There was no holding to the effect that if the state's evidence could be believed it would not support that degree of murder. As recognized in the majority opinion, our conclusions reached in our former decision, whether right or wrong, constituted the law of the case upon like evidence. (Carlson v.Northern Pacific Ry. Co., 86 Mont. 78, 281 P. 913;Altermatt v. Rocky Mountain Fire Ins. Co., ante, p. 153,295 P. 327.)

Bertha Erickson, one of the four eye-witnesses, did not testify upon the former trial, and her testimony given on the last trial tends only to support the position taken by the defendant, and gives additional support to the physical facts, thus further discrediting the state's witnesses. The evidence is now all before the court, and, as we think it is governed by the decision on the former appeal, the judgment should be reversed.