State v. McMillan , 1898 Mont. LEXIS 8 ( 1898 )

Pemberton, C. J.

The principal assignment of error in the case is that the ‘ ‘verdict is not supported by the evidence, and appears to have been rendered under the influence of passion and prejudice.”

It is the well-settled general rule of law, especially in this jurisdiction, that a verdict will not be disturbed when there is simply a conflict in the evidence, — where there is evidence sufficient to support the verdict. But this record does not present simply a conflict in the evidence. It is insisted that the uncorroborated evidence of the prosecutrix, upon which the conviction was had, is so unreasonable, unsatisfactory, and contradictory as to unavoidably leave in the mind of any impartial person a reasonable doubt, when considered from a legal standpoint.

"When the testimony is flatly' and positively contradicted, there may be said to be a conflict in the evidence. But when the testimony is not only flatly contradicted, but appears to be so unnatural, improbable, and unreasonable as to render belief impossible, it is more than a simple conflict, and must necessarily leave in the mind of an impartial, deliberate and intelligent person a reasonable doubt.

Viewing evidence from a legal standpoint, we are of the opinion that we have just this kind of a case presented by this appeal. W e will refrain from entering into any detail or restatement of the evidence here. Enough of the disgusting details may be found in the statement.. It is conceded that the evidence of the prosecutrix is contradicted in many material particulars, but counsel for the state seek to excuse this upon the ground of age. But in a case so serious as this it will not do to say that a jury should believe unnatural, unreasonable, or contradictory evidence because it is the evidence of a child of tender years. The testimony of the prosecutrix is not only subject to the criticism above; but she says she testified to what her mother told her to swear to, and that she told her story as and in the manner her mother directed; that she testified from what her mother told, rather than from her memory of the facts as they occurred.

In addition to this, Dr. Ladd, a witness for the state, who examined the prosecutrix after she was injured, says, in effect, but positively, that á child of her age, after receiving such injuries at night, could not the next day play, swing, climb on houses, and wade rivers, as the prosecutrix swears she did. According to the testimony of Dr. Ladd, the testimony of the prosecutrix is unnatural and unreasonable m this respect, so much so that we believe that, in law, it° must necessarily leave in the mind of any fair, impartial, and intelligent person what the law calls £ £a reasonable doubt’ ’ of the guilt of the defendant. And that such evidence did not produce such a doubt in the minds of the ■ jury that tried the case, forces the impression upon the minds of this court that passion and prejudice to some extent may have influenced the jury in rendering their verdict. The verdict does not seem to us to be the reasonable result of a calm and deliberate consideration of the evidence by men uninfluenced by passion and prejudice.

Our attention is also attracted to the fact that the trial of the defendant occurred so soon after the alleged commission of the offense that perhaps the community was not in such a calm and quiet condition as to be free from that bias and prejudice which is always aroused in any community by the commission of offenses of such enormity as the one charged against the defendant.

W e think, after a full consideration of the evidence, that it is not sufficient in law to support the verdict.

There are other assignments of error in the record; but as the case must go back for a new trial, and as such errors, if errors they be, are not likely to occur again, we consider it unnecessary to treat them.

The judgment appealed from is reversed and the cause remanded for new trial.

Reversed and Remanded.

Hunt and Pigott, JJ., concur.