Territory of Montana v. Campbell , 9 Mont. 16 ( 1889 )

Liddell, J.

The defendant was convicted of the crime of an assault with intent to commit murder, and has been sentenced to serve a term of five years in the territorial prison. In his appeal he complains of several erroneous rulings by the lower court, which were prejudicial to his rights; but, after an examination of the authorities relied on, we are unable to agree with his counsel that any exception was well taken.

It is very true that counsel for the defense should be permitted to thoroughly examine the juror on his voir dire, in order to show his bias or prejudice, and to decide whether he will exercise one of his peremptory challenges; but, whenever there is a doubt as to the propriety of the question propounded, it is always better to allow it. We are inclined to think that the questions propounded to the two jurors, Beckstead and Batterton, as to whether they knew of the feuds existing between the Milroys and Dooleys, into which the defendant had been drawn, and whether they had taken sides therein, were proper, and should have been allowed. But in the present condition of the record we cannot consider the exception, for it does not appear that either of the persons named were ever sworn or served as jurors, nor is it anywhere stated that the defendant’s peremptory challenges were exhausted before the jury was finally impaneled. Unless these facts appear there is no error prejudicial to the accused, and the record should show them affirmatively in order to have the exception considered by this court. (People v. McGungill, 41 Cal. 429; Ford v. Umatilla, 15 Or. 313; Carter v. Territory, Wyom. June 14, 1888; 18 Pac. Rep. 750; State v. Bunger, 14 La. An. 461.)

The prosecuting witness, Milroy, and one Dooley reside on adjoining farms, and on the morning of the trouble he saw Dooley, Blair, King, the defendant Campbell, and Orenoe Shaud standing at Dooley’s stables, where they seemed engaged in getting guns out of the house, and were firing them off in the direction where the witness was occupied in erecting a division fence between his and Dooley’s farm. Shortly afterwards Dooley came up with the foregoing party, all armed, and, claiming the land as his, objected to the fence being built. The prosecuting witness protested against Dooley’s taking the law into his own hands after this fashion, whereupon the latter immediately began firing upon Milroy, and called out: “Fire, boys!” which command was obeyed by the defendant, who deliberately fired four shots at the prosecuting witness, striking him once in the left knee. Counsel for defendant objected to what Dooley said at the time being received in evidence, but the court, we think, correctly overruled the objection, as it was evidently a part of the res gestee. The party had deliberately armed themselves and gone to where Milroy was engaged in building his fence. Dooley was the spokesman and commander, and directed the firing by the others. From this statement it is evident that whatever Dooley or any of the firing party said on this occasion was admissible in evidence as a part of the res gestee. It is always very difficult to lay down any precise rule as to what constitutes the “res gestee” of the transaction, but whenever the acts or declarations are concomitant with the principal act complained of, and evidently not made from design, then the act or declaration is admissible. And in the present instance we are not prepared to say that a prima fade case of conspiracy had not been sufficiently established to justify the admission in evidence of Dooley’s declarations. (1 Greenleaf on Evidence, §§108—110; Dismukes v. State, 83 Ala. 287; State v. Moore, 38 La. An. 66.)

The next objection reserved by the defendant was to the refusal of the judge to allow defendant’s counsel to ask the witness, Anna Milroy, if there was not a good deal of enmity existing between her husband and one Dooley. Whether such a state of feeling actually existed between those two individuals could have no bearing upon the guilt or innocence of the accused; much less as to how the witness felt towards the defendant, James Campbell. It is not disputed that in cross-examination the witness may be interrogated as to his interests, bias, or prejudice; but it is equally well settled that a witness cannot be cross-examined or contradicted as to any part which is collateral or irrelevant to the matter in dispute. Such evidence embarrasses the trial and distracts the attention of the jury by interjecting into the case issues which are entirely foreign to the real points submitted for decision.

Finally, the defendant contends that the court erred in refusing to allow him to prove certain threats which Milroy had made against the life of the defendant, and which had been communicated to him. It is elementary that such evidence is wholly inadmissible as a defense, unless at the time of the perpetration of the crime the person making the threats indicated by his conduct an intention to carry them into execution. The evidence in the case for the prosecution completely refutes any such condition, but, on the contrary, shows that the shooting was wanton, deliberate, and malicious,'and that the prosecuting witness on this occasion did everything possible to avoid being killed by the defendant. (2 Bishop’s Criminal Procedure, §§ 619, 620; Evans v. People, 44 Miss. 762; Head v. State, 44 Miss. 731; Johnson v. State, 27 Tex. 758.) We find no error in the judgment appealed from, which is therefore affirmed at cost of appellant, and it is ordered to be carried into execution according to the terms thereof.

Blake,- C. J., and Bach, J., concur.