Territory of Montana v. Rowand , 8 Mont. 110 ( 1888 )

McConnell, C. J.

The appellant was convicted at the April term, 1888, of the District Court of Deer Lodge County, of murder in the second degree, for killing Joseph Bussiere, and sentenced to imprisonment for life. A motion for a new trial was overruled, and an appeal was taken to this court. There are two grounds of error relied on for reversal: (1) A variance between the indictment and the prooí) and error in the instruction of the court to the jury upon this point. (2) Errors in the instructions to the jury in other particulars.

1. The defendant is charged with a wilful, premeditated, and deliberate assault with intent to kill the deceased, Joseph Bussiere, and that he did wilfully, premeditately, deliberately, and of his malice aforethought, kill him. In other words, the deadly intent is charged to have been-entertained by the defendant towards the deceased.- But it is insisted that the whole scope of the proof shows conclusively .that he intended to kill one Peter Martin, and that the killing of deceased was purely unintentional. We observe that the indictment does charge that the assault was made upon the deceased with the intent to murder him; and it is conceded that the proof shows that the defendant intended to kill one Peter Martin, and that the killing of the deceased was unintentional. In order the better to understand the application of the principles of law, which we think govern this subject, we will first give a condensed statement of the evidence touching the question of the intent of the defendant. The witness, Peter Martin, who was the keeper of the Branch Mint Saloon, in the city of Butte, where the killing took place, testified that it was about ten o'clock in the night when the defendant came to his saloon with another party, and ordered two drinks, and, after taking the drinks, told Martin to charge them. This Martin refused to do; whereupon he said, “ If you don't charge them to me, charge them to yourself." The witness, in substance, ordered him out of his house, to which the defendant said, “All right," and walked out. He came back again in about half an hour, and found the witness and deceased alone in the saloon. Defendant felt in his pocket, as if looking for some money, but finally said, “I ain't got none." When he started to say something else, witness told him that he did not want him in there, and came from behind the counter, took hold of him, and conducted him out of the house, the defendant going without resistance j but as he got to the door, he commenced to use abusive language to witness, who went back behind the counter, and got a police whistle, to call a policeman to come and arrest him. The whistle could not be blown very loud, and witness went to the door, which was ajar some three or four inches, and opened it wider for the purpose of blowing the whistle for the policeman, when he found defendant standing close to the door with pistol in hand. Defendant immediately fired, the ball grazing the arm of witness, and entering the back of deceased, inflicting a wound of which he died in some three or four hours. The witness also stated that deceased had not said a word to ■defendant, and, so far as he knew, never had any trouble of any kind with the defendant. Witness also testified that he told the defendant when he ordered him out that he was no gentleman, and he did'not want him in there. The witness Jordan, who was a policeman, and arrested the prisoner in a few minutes after the killing, testified that when he arrested him he said, “ I hit the wrong man, and have a notion to go back and kill the other son of a bitchand further, when he was trying to take the pistol from him, the witness remarked, “ John, you had better let me have that gun," and he replied, “I will,” and then said, “ Ho, I won’t; I am going back to kill that other man." He was then about twenty-five feet from Martin’s saloon. The witness, William Rutledge, testified that he was passing the door of Martin’s saloon, and, looking in, as the door was ajar, saw defendant backing out, and as he got out he whipped out a pistol from his pants, and threw it across his hands, and remarked, “ Come out of there, g — d d-n you, and I will fix you.” Witness then left, and Avent to another saloon near by, Avhere, in a short time, he heard the shot fired. He stepped out upon the street at once, and saw the defendant put up his pistol, and walk up the pavement about twenty feet, and immediately return to the front of Martin’s saloon, and pull his revolver out again. The witness, R. E. Haislop, testified that he Avas the first man who got to the defendant after the shooting, and, in answer to the question, “ What is the matter Avith you?” he replied, “Well, I won’t let any son of a bitch abuse me.” The Avitness, W. P. Emory, testified that the defendant came to him, and wanted him to go into a paivnbroker’s shop and redeem a pistol for him. He did so, but refused to let him have it that night, as he said, “I will fix that son of a bitch to-night.” The pawnbroker’s shop was only about two hundred and fifty or three hundred feet from Martin’s saloon, and the proof showed that he obtained the pistol on that occasion from the pawnbroker. The witness, C. C. Rhodes, testified that he was crossing the street in front of Martin’s saloon; that he saAV the defendant standing about two feet from the edge of the sidewalk, and Martin in the door, Avhen defendant said, “Come outside; I don’t uIIoav any son of a bitch to abuse me,” and immediately fired, and Martin jumped to one side of the door. The witness, E. Hirbour, testified that he heard, a short time before the killing, on the same night, the defendant say to one Max Lelande that the one who kept the Branch Mint Saloon was a damn son of a bitch; and, when they were about to take a glass of beer together, defendant said, “Before I take that beer he Avill have to take back what he said.”

The whole of this testimony bears directly upon the questions of the motive and intent of the defendant in doing the shooting, and shoAvs conclusively that he was very hostile towards Martin, and that the effort and intention was to kill him, and not the deceased. But the whole of it was admitted without objection upon the part of the counsel for defendant; nor was the court ever asked to withdraw it from the jury. No motion was ever made to instruct the jury to return a verdict of acquittal because there was no evidence to sustain the charge of intent to murder the deceased. Nor was there any motion made to arrest the judgment, after verdict, for the same reason. No attention was paid to it at all until the motion for a new trial was made; and then advantage was sought to be taken of it, because instruction 8 charged that, if the assault was made upon Martin with intent to murder him, but deceased was unintentionally killed instead, then they should convict the defendant. This instruction is as follows, to wit: “If you believe from the evidence beyond a reasonable doubt that the defendant, John A. Rowand, at the time when, and at the place where, he is charged in the indictment, to have killed Joseph Bussiere, did, with malice aforethought, wilfully, deliberately, premeditately, and feloniously shoot at Peter Martin, mentioned in the evidence, with the intent then and there to kill said Martin, and while so engaged did kill the deceased, Joseph Bussiere, then you will find the defendant guilty of murder in the first degree.” It is not contended that this instruction is not the law. (See 1 Bishop on Criminal Law, 4th ed. § 412.) Nor can it be insisted that it was not appropriately given under the evidence introduced. That there was a variance between the indictment upon the question of the deadly intent, and all the evidence touching that matter, there can be no doubt. The indictment charges that the intent was to kill the deceased, while all the proof shows that it was to kill Peter Martin. Much of the evidence upon this point was direct and unmistakable; for example, when the defendant said to the policeman who arrested him, that he had killed the wrong man, and he was going back to kill that other man. Upon objection this was clearly inadmissible; but it is not for the court to exclude incompetent testimony, unless objection be made to it. The charging part of the indictment covering the matter under consideration is as follows, to wit: “. . . . in and upon Joseph Bussiere, then and there being, feloniously, unlawfully, deliberately, wilfully, premeditately, and of his malice aforethought, did make an assault, and that he, the said John A. Rowand, a certain revolving pistol, then and there charged and loaded with gunpowder and a leaden bullet, which said pistol he, the said John A. Rowand, in his hand then and there had and held, then and there unlawfully, feloniously, wilfully, deliberately, premeditately, and of his malice aforethought, then and there him, the said Joseph Bussiere, intending to kill and murder, did shoot off and discharge at, to, towards, and against and upon him, the said Joseph Bussiere. The words, “then and there him, the said Joseph Bussiere, intending to kill and murder,” may be stricken out, and still leave a good indictment for murder in the first degree, under the decisions of this court. (See Territory v. Stears, 2 Mont. 324.) But they cannot be rejected as surplusage on that account, for the reason that the deadly intent must be proven in order to make out a case of murder in the first degree; for the specific intent to kill is an essential element of that crime, and, having charged it in the indictment, it becomes descriptive of the offense, and must be proven, unless the defendant by his acts has waived it. That it is a variance, see the following authorities: Wharton’s Criminal Evidence, § 146; U. S. v. Brown, 3 McLean, 233; State v. Jackson, 30 Me. 29; citing, State v. Noble, 15 Me. 476; State v. Canney, 19 N. H. 135. Whether there is a variance between the indictment and the evidence is ordinarily a question of law, and for the court to determine. Mr. Thompson, in his work on Charging the Jury, page 13, section 9, says it is for the exclusive determination of the court; but we will see that this must be taken with some modification. The question can only arise upon the admissibility of the evidence upon the trial. If the evidence is plainly at variance with the pleading, it must be rejected at once by the court, upon objection, and not permitted to go to the jury at all. But there sometimes arise cases where it is not plain that the evidence is at variance with the pleadings, and incidentally it may become a question of fact for the jury. If, for instance, it is an indictment for forging a certain instrument of writing, and the original is lost or destroyed, and it becomes a question of "conflicting secondary testimony as to its contents, it must be left to the jury to find the contents, and then to determine, under proper instructions from the court, whether it agrees with the paper described in the indictment. (Wharton’s. Criminal Evidence, § 117.) In the case of Commonio. v. Gateley, 126 Mass. 52, the indictment charged the defendant with the embezzlement of treasury notes and national bank bills. The evidence showed that his employer intrusted him with a bank check payable to bearer, with which to pay a note. The custom was not uniform to pay notes with checks. He sometimes did, and sometimes got them cashed, and paid them with the money. The defendant got the check cashed, and converted the money to his own use. Whether the defendant embezzled the check or the money was the question, and upon it depended when the felonious intent first intervened. If while he held the check, with which he should have paid off the note, then there would be a variance; but if in good faith he got the check cashed for the purpose of paying off the note, and afterwards embezzled the money, as charged, then there would be no variance. So in that case it was left to the jury to say whether there was a variance. But the principle is always the same. The court must tell the jury what a variance is; and, when they determine what the doubtful fact is, then they must say, under the law as given, whether there is a variance or not. But in the case at bar there was absolutely no proof to show any intent to kill deceased, and even the presumption that men intend the natural results of their acts is overwhelmingly rebutted by the proof. There was nothing to be left to the jury. It was purely a question of the admissibility of evidence, and was for the court. Every threat was made against Martin. They had quarreled together, and the defendant conceived himself insulted by Martin. He procured a pistol and returned to Martin’s house, and after being put out and freshly insulted by him, he shot at Martin and grazed his arm, but shot the deceased in the back, and killed him instead. There had never been the slightest trouble between the defendant and the deceased. But all this proof of intent went to the jury without objection, and the instruction complained of in this connection was given in strict conformity with the proof, as it was the duty of the court to do. The charge must conform to the evidence. If the evidence be illegal, it must first be stricken out upon motion, and then it will be the duty of the court to make its charge conform to the evidence as it then stands. Specific instructions must be asked for. “It Is not error for the judge to omit to charge the jury-on a particular point, unless asked to do so at the trial. A party cannot, in a court of error, avail himself of an omission which he made no effort to have supplied at the time. The rule is that for a misdirection the judgment will be reversed, though no instruction be requested; but not for the omission to instruct on a particular point, where the judge was not requested to do so.” (Thompson’s Charging the Jury, § 81.)

The argument that there was no assault made upon the deceased is fallacious. If he was shot dead, there certainly must have been a battery, and there can be no battery without an assault. It can make no difference whether the assault was intended for the deceased, or for Martin. “The thing done having proceeded, from a corrupt mind, it is to be viewed the same, whether the corruption was of one particular form or another. Every act producing an unintended result must, when evil, be measured either by the Intent, or by the result. The common-law rule measures it substantially by the latter, holding the person guilty of the thing done, where there is any kind of legal wrong in the Intent, the same as though specifically Intended.” (1 Bishop on Criminal Law, 4th ed. § 411.) The charge in the indictment is that the defendant committed an assault and battery upon the deceased, by shooting him with a pistol, and thereby killed him. This is conceded In the proof. The charge in the indictment that it was done wilfully, deliberately, premeditately, and with malice aforethought, is sustained by proof that the assault and battery were committed with a mind imbued with those qualities; and on account of such corrupt intent the law will hold the defendant guilty of the unintended killing, the same as though specifically intended. There is no variance between the evidence and the allegations in the indictment, except as to the averment that the defendant intended to kill the deceased. The material point involved iu this particular is, that the defendant did the fatal act with a felonious, deadly intent. This was proven. The averment that the deceased was the object of this intent becomes material, only because made descriptive of the offense by the indictment. "YVe think the defendant waived his right by not objecting to the evidence at the time it was offered. His objection comes too late upon a motion for a new trial. He cannot be permitted to make the experiment of a trial without objection, and when he is convicted ask for a new trial, that he may do that which he might have done before. We have carefully looked into the testimony, and do not see how the result could be different, if a new trial was had upon an indictment which conformed to the facts in the case.

2. The next objection urged by defendant’s counsel is that the court did not properly instruct the jury as to the burden of proof, counsel contending “that the true rule is that the burden of proof in criminal cases never changes, but always rests with the prosecution, from the beginning to the close.” We do not call in question the correctness of this statement as a general rule; but this is subject to the exception, that when the accused relies upon some special defense to meet the prima facie case made against him by the people, the burden of the proof is upon him to so far establish such a defense that it at least raises a reasonable doubt as to his guilt. Besides, section 40 of our Criminal Laws, which is literally copied in instruction 10, given at the request of the prosecution, directly modifies the rule contended for by counsel for defendant. We have had occasion to comment upon said section in the case of Territory v. Manton, 8 Mont. 95 (decided at the present term of this court), and we do not deem it necessary to restate here what we said in that case. In this case the defendant certainly had the benefit of the rule asked for. There were thirty-one instructions drawn with great skill, covering every conceivable phase of the case, especially the law of self-defense, drunkenness, and reasonable doubt, given at the request of the counsel for the defendant, winding up with the admonition that it is better for ninety-nine men to escape than that one innocent man should be punished. Ho instruction asked by defendant was refused.

3. There are some other objections made to instructions given in behalf of the prosecution, but they are either verbal criticisms or objections, which if otherwise well founded were abundantly cured by those given in behalf of the defendant. We do not deem it necessary to notice them further. While the punishment assessed by the jury is severe, we cannot say, under all the proof, that it is too great for the defendant’s rash and intemperate act. Let the case be affirmed.

Liddell, J., concurs.