DocketNumber： 9672
Citation Numbers： 306 P.2d 679, 131 Mont. 17, 1957 Mont. LEXIS 82
Judges： Adair, Dayis, Angstman, Bottomly, Anderson
Filed Date： 1/4/1957
Status： Precedential
Modified Date： 11/10/2024
On July 6, 1955, an information accusing Lawrence Morran of the murder of Mervin Bishop was filed in the district court of Phillips County," Montana. Upon his trial, Morran, by a jury’s verdict, was convicted of murder in the first degree and sentenced to life imprisonment.
This is an appeal by Morran from the judgment of conviction and the order denying him a new trial.
Carter Oil Company owned the building and land constituting a service station known as the Hi-Line Servicenter at Malta, Montana, which it leased to Clifford Lundstrom to operate.
About August 26, 1954, Lundstrom, the lessee operator, sold his stock in trade and his service station equipment to the appel
At the time of his purchase of Lundstrom’s stock and equipment, Morran entered into a one-year lease agreement with the Carter Oil Company whereby he agreed to pay it a rental on the service station of $150 per month.
The appellant operated the Hi-Line Servicenter under such lease from August 26, 1954, until June 20, 1955, on which date the service station was consumed by fire.
At the beginning of the operation, appellant’s business was fairly good but during the fall and winter months it declined considerably so that by June, 1955, the appellant was faced with various adverse financial problems. In round figures the total of appellant’s obligations to various creditors was then in the neighborhood of $10,000.
To make the cash down payment to Lundstrom the appellant Morran borrowed $4,500 from the First State Bank of Malta on a promissory note secured by two co-signers and it was agreed at the time of making the loan that Morran should pay $300 per month on the note but at the time of the fire only three payments totaling $800 in the aggregate had been made on the note, leaving a balance owing to the bank of $3,700.
Robert J. Erhard, district manager of Carter Oil Company, spent June 2, 3 and 4, 1955, in Malta, during which time he discussed with Morran a plan whereby Mr. Hardin, the distributor in Malta for the Carter Oil Company products, could be paid for gasoline that he had delivered to Morran at his service station that had not been paid for and also the possibility of Mr. Morran selling his interest in the service station.
The record, in part, of Mr. Erhard’s testimony at appellant’s trial is as follows:
“Q. Did you discuss the question with Mr. Morran relative to a price? A. I told him to make up an inventory, take an*20 inventory of everything that he had and then we would start looking for a new dealer.
“Q. Was there ever a discussion relative to the cancellation of Mr. Morran’s lease? A. At that time?
“Q. Yes. A. Yes.
“Q. What matters were discussed relative to that subject? A. Well, prior to the time that Mr. Morran leased the service station I told him that the rent would increase at the end of the first year. He and I discussed the fact that the rent was going to increase in August when his lease was up. He said that he couldn’t afford to pay that much rent and wouldn’t pay that much rent, so I told him that that would automatically cancel his lease.
“Q. What was the expiration date of Mr. Morran’s first year’s lease? A. I believe it’s on the 25th of August.
“Q. That’s 1955? A. Yes.
“Q. What was Mr. Morran’s status with Carter Oil Company relative to paying his monthly rental? A. Well, he had missed paying it on schedule twice as I remember, once I believe in the spring. I wrote him about it, then I believe the May check for his rent did not go through the bank, did not clear the bank. * * *
“Q. What do the records indicate concerning the business at the Hi-Line Servicenter while it was operated by Mr. Morran? A. It slipped from previous business that we had done at the station.
“Q. Did you or did you not receive information that Mr. Morran was asking a price between eight and nine thousand dollars for his interest in the station? A. Yes, I did.
“Q. Did you have any conversation with Mr. Morran relative to this subject? A. Yes.
“Q. What was your conversation? A. I asked him where he arrived at the figure some place between eight and nine thousand dollars. He told me that included his accounts receivable.”
From August 26, 1954, when Morran commenced operating
On June 19, 1955, business at the station was as usual and the local distributor of Carter Oil Company’s products called at the station to determine the sufficiency of the supply of stock on hand. At that time the appellant and his bookkeeper were at the station and placed an order with the distributor for a quantity of gasoline to be delivered, the next day. This order was placed after the distributor had been told that there would be funds available to make immediate payment for gasoline when delivered.
Also on June 19, 1955, the accounts receivable were brought to the station by the bookkeeper for another employee to examine but later that day the bookkeeper took the books home at the insistence of the appellant, who stated that he did not want them left at the station.
At about 1:00 a.m. on June 20, 1955, the appellant and one of his employees, Lloyd Knudsen, closed the station for the balance of the night but before doing so they counted out the change that would be necesssary to commence business when the station should next be opened for business and placed such change in a coin bag along with the credit slips which had been received during the day. The bag with its contents was then placed in a tire in the service room of the station by the employee Knudsen. The charge slips for gasoline sold on credit during that day were left in the dispensing machine located in the station.
The bookkeeper testified that it was approximately 1:50 o’clock on the morning of June 20, 1955, when the appellant arrived at her home, at which time the appellant delivered to her the bag which contained not only cash to be deposited in the bank but also the credit card slips, the charge slips representing the accounts receivable, a small yellow carbon copy of a bill and two adding machine tapes.
The fire which consumed the Hi-Line Servieenter broke out at about 2:45 o’clock on the morning of June 20, 1955. According to the testimony of an investigator for the National Board of Fire Underwriters, the fire was caused by a small accumulation of gasoline on the floor and was of apparent incendiary origin.
In support of such conclusion the investigator stated that ‘‘the entire interior of the building appeared to have caught on fire at approximately the same moment and the fact that from no accidental or normal cause could I account for the apparent presence of an accelerant within the building that would cause that fire to spread and in effect explode as it did.”
The explosion caused the large overhead door to the service room to buckle and fall outside upon the pavement. All the glass except one window in the rear of the storeroom was blown out of the building, some particles being found as far away as fifty feet from the building. Although the glass was blown out of every window, only one window was found to be unlocked after the fire.
At the trial there was considerable testimony directed as to whether this one window was open before the fire or whether the force of the explosion caused the lock to break and the window to be blown open.
Immediately following the explosion the burning figure of a
A second man, Donald Freestone, who was commonly known and called by the nicknames “Turkey” and “Turk”, escaped the burning service station and fled to his home. There, in a badly burned condition, he was discovered by a younger brother who summoned another member of the family, who in turn took the injured man to the hospital.
The condition of these two men, shortly after the fire, is best described by the testimony of Dr. Eobert M. Wiprud, a physician and surgeon, who testified:
“Q. As a result of that call did you go to the hospital? A. Tes, I did. I went immediately to the hospital.
“Q. What did you find there? A. When I entered the emergency room of the hospital I found a very severely burned patient on the table in the emergency room. The individual was totally unclothed. A great proportion of his body was charred, absolutely black, so much so that I didn’t recognize him although I knew this individual.
“Q. You later found out who the individual was? A. Yes, I did.
“Q. Who was that individual? A. The individual on the emergency room table was Mervin Bishop.
“Q. What was the extent of his injuries? A. Mervin, I calculated his burns to be approximately eighty-five per cent of his body.
“Q. What degree of bums, Doctor? A. Mostly third degree burns, as severe as they could possibly be.
“Q. Did another patient come to your attention that same morning? A. Yes, approximately ten or fifteen minutes later they informed me that another patient was walking into the*24 hospital, and I advised the nnrse to pnt him immediately into the major surgery room.
“Q. Was the identity of that patient brought to your attention? A. Yes, the patient himself told me that he was Donald Freestone.
“Q. What was his condition, Doctor? A. He was even more badly burned than was the previous patient. He was, virtually a hundred per cent third degree burns.
“Q. Did you and Dr. Molloy administer medical attention, to both Freestone and Bishop during this period of hospitalization? A. Yes, we did.
“Q. Where is Mervin Bishop now? A. Mervin Bishop, of course, died from his severe injuries.
“Q. In your opinion, Doctor, from your education, your experience and from the personal knowledge of this case, what was the cause of Mervin Bishop’s death? A. Extensive third degree burns caused his death.
“Q. Doctor, where is Donald Freestone? A. Donald Freestone, of course, is likewise dead from severe third degree burns. ’ ’
Donald Freestone first told his brother that he and Mervin Bishop went to the service station to get some gas as Bishop, had a key and that when Bishop turned on the lights there was. an explosion. However, a few minutes later, Donald Freestone-told his brother that the two were “hired to blow it”. Donald Freestone lived but about twelve hours after receiving his burns.
The shoes of both Mervin Bishop and Donald Freestone were-introduced in evidence and the undersheriff, who had examined the shoes shortly after the fire, testified that the shoes of both men smelled of gasoline.
Mervin Bishop lived until Thursday afternoon, June 23, 1955.
Within a few hours after the fire a Catholic priest was summoned to the hospital and the last rites of the church were administered to both Mervin Bishop and Donald Freestone. The-priest before administering the last rites to Mervin Bishop, received his confession. The testimony of the priest given at appellant’s trial indicated that Mervin Bishop was able to respond
On Tuesday evening, June 21, 1955, Dr. Daniel T. Molloy, a physician and surgeon, then attending Mervin Bishop, called at the hospital between 7:00 and 7:30 o ’clock and had a conversation with Bishop concerning which Dr. Molloy testified as follows:
“Mervin Bishop asked me what was the condition of Turk Freestone. I informed him that Turk Freestone died shortly after they were admitted to the hospital, and he said, ‘Am I burned as badly as Turk?’ I said, ‘Not quite, but just about as bad, Merv.’ He said, ‘Am I going to live, Doc?’ I said, ‘No, Merv, you are not’.”
Later that evening Dr. Molloy returned to Bishop’s room accompanied by Dr. Wiprud, the county attorney, and a friend of Bishop’s named Clinton Dennis. Concerning this second visit with his patient, Dr. Molloy was examined and testified as follows:
“ Q. I presume that this second meeting was pursuant to the understanding that you had with Mervin Bishop in which he asked for an hour or so to thing it over? A. Well, Mervin Bishop at first was not aware of my presence. Clinton Dennis had talked to the County Attorney and told him that he thought he could get Mervin Bishop to tell him, so I went in with Clinton Dennis while he questioned Mervin Bishop so that I could be present to watch out for the welfare of my patient.
“Q. You heard the conversation? A. I heard the conversation.
‘ ‘ Q. And you heard the statement that Mervin Bishop made ? A. I heard the statement at that time. Mervin Bishop made the statement that he didn’t want to talk about it until a later time and to please leave him alone. We went out of the room to the next room where Willis McKeon [the county attorney] told Mr. Dennis to ask him if Buster had anything to do with the fire. We returned to the room and Dennis put that question*26 to him again. Mervin Bishop was not aware of my presence and he said something like ‘if you don’t leave me alone, Clint,. I am going to have a nervons breakdown’. And Mr. Dennis-said, ‘I just want to know, Merv, did he or did he not?’ And Merv said, ‘I don’t know; I don’t know.’ I spoke np and I said, ‘If there is anything you want to say, anything you want to get off your mind, Merv, go ahead and say it.’ He said, ‘Do yon think I should talk?’ I said, ‘Yes’, and he made his statement. ’ ’
Dr. Molloy’s testimony laid the foundation for the admission of the dying declaration of Mervin Bishop-, which was given orally within the hearing of the previously mentioned persons then present in the hospital room.
On Monday evening, June 20, 1955, Mervin Bishop said to Dr. Molloy, “I am going to die.” Bishop also made a statement to his friend, Clinton Dennis, which was overheard by Dr. Molloy to the effect that he (Bishop, a former boxer) was “going down for the long count.”
On Tuesday evening, June 22, 1955, in a hospital room at the Malta Hospital, Bishop made the following dying declaration to which Dr. Molloy testified as follows:
“He stated that two weeks previous to the fire Lawrence R., ‘Buster’, Morran went to the Freestone residence north of town and propositioned Donald Freestone about setting the Hi-Line Servicenter on fire. At that time he said the arrangements were not definite but he wanted to know if ‘Turk’ Freestone would co-operate. Turk said he would, and Buster told him that he would get in touch with him at a later date.
“In the meantime Turk Freestone contacted Mervin Bishop and told him that Buster had a proposition to put to him about burning down the gas station. He said that when Buster called him about the proposition for the second time he would like Mervin Bishop to be present without Buster knowing it.
“We asked Mervin Bishop why he thought Turk Freestone did this and he said because Turk was chicken and was never one to do anything alone.
*27 “So on Sunday, June 19, I think, he called Turk Freestone to the Hi-Line Servicenter. Turk Freestone then contacted Mervin Bishop and Mervin Bishop sneaked into the back room and into the men’s rest room. Buster Morran then came to the back room with his proposition to Turk Freestone. He stated that he would give him fifty to five hundred dollars, depending on how good a job he did on burning down the Hi-Line Servicenter. He laid the plans for them that he would open the northwest window of the Hi-Line Servicenter and on some time Monday morning he was to enter the Servicenter and spread gasoline which Buster Morran would leave in the gas station around the floor and around the building and set fire to the building. Buster Morran was also, before he left the service station, to have poured gasoline around the place and Turk was just to finish the job, throwing it into the back room of the service station and then light it.
“So about 2:30, 2:00 to 2:30 in the morning Turk Freestone entered the northwest window of the Hi-Line Servicenter and Mervin Bishop stood jiggers while Turk Freestone entered. Mervin Bishop then followed Turk Freestone through the window. Then instead of setting about their business as they were supposed to, Turk went to the back room to obtain two tires for his car. After he obtained the tires for his car, Mervin was standing jiggers at the front door to make sure no one came.
“Turk threw a 15-gallon drum of gasoline into the back room as he was instructed, toward the water heater. At this point Mervin Bishop interjected that Buster was supposed to have turned off the flame, the pilot light in the water heater, but he did not, and ‘I think he left it on on purpose to catch Turkey and destroy all the evidence.’
“He then stated that after the gasoline exploded he saw Turk Freestone thrown clear of the building or blown through the building and he, himself, was on fire and he left through the front door, the main door of the Hi-Line Servicenter, through the big doors. * * *”
There was also evidence showing that bills for the accounts
Testifying in his own behalf, the appellant stated that Bishop had at one time worked for him and had a key to the door of the service station; that both Bishop and Freestone were indebted to appellant and that he had refused to extend further credit for the purchase of tires, although appellant did extend credit for the purchase of gasoline.
The appellant claims a money bag was left in a tire when the station was closed for the night. Although a careful search was conducted for both the bag and evidence of its contents in the form of melted coin neither could be found.
The appellant submitted a proof of loss to the fire insurance company for loss of stock and equipment valued at $11,636.58. This proof of loss was introduced in evidence at the trial where it was shown that the amount claimed for loss of stock could not be substantiated.
An accountant, who helped prepare an inventory during the month of May, 1955, testified that at that time there were only fifteen cases of oil on hand. There was also evidence the appellant purchased only eighteen cases of oil from the Carter distributor during the month of June 1955 and one of the appellant’s employees testified that on the day before the fire the supply of oil was so low there was danger of running out. Notwithstanding, the proof of loss represented a loss of seventy-four cases of oil.
The loss of sixty new tires, thirty used tires, and one hundred inner tubes was also claimed, but there was testimony to the effect that on the day preceding the fire, appellant’s stock of tires and tubes was so low that there were only between nine and twelve new tires, twelve to sixteen used tires and eleven to fourteen tubes in the station. A search of the ruins • and debris after the fire produced only eight tire beads, being the
R.C.M. 1947, section 94-2503, in part, provides: “All murder * * * which is committed in the perpetration or attempt to perpetrate arson * * * is murder of the first degree; * *
R.C.M. 1947, section 94-204 defines a principal as: “All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, * *
Under the above sections of the codes it is manifest that upon the introduction of proper substantial evidence to link the appellant with the perpetration of arson in connection with the burning of the service station, the state makes a prima facie case for the application of the felony-murder rule. However the appellant asserts that such rule has no application to the facts of the instant case which appellant contends are practically identical with those which obtained in People v. Ferlin, 203 Cal. 587, 265 Pac. 230, wherein the California Court, in arriving at its decision, relied heavily on the case of People v. Garippo, 292 Ill. 293, 127 N.E. 75. We are unable to agree with the contention so made. Illinois is a common-law state and the Garippo case, supra, is inapplicable under Montana’s governing statutes. The facts in the Ferlin case, supra, are clearly distinguishable from those which obtain in the ease at bar. See People v. Cabaltero, 31 Cal. App. (2d) 52, 87 Pac. (2d) 364; People v. Henderson, 34 Cal. (2d) 340, 209 Pac. (2d) 785; People v. Milton, 145 Cal. 169, 78 Pac. 549; People v. Boss, 210 Cal. 245, 290 Pac. 881; People v. Reid, 193 Cal. 491, 225 Pac. 859; People v. Green, 217 Cal. 176, 17 Pac. (2d) 730; 13 Cal. Jur., Homicide, section 17, page 600; 25 Cal. Jur. (2d) Homicide, sections 84, 85, pages 590, 592.
Appellant cites the civil case of Taylor v. John Hancock Mutual Life Ins. Co. 9 Ill. App. (2d) 330, 132 N.E. (2d) 579.
The appellant contends that a proper foundation for the admission of the dying declaration was not made because it was not clearly shown that the deceased made the statement while he was “under a sense of impending death.” R.C.M. 1947, section 93-401-27, subd. 4. In support of such contention the appellant directs our attention to certain statements made at the hospital by Mervin Bishop such as he would have a “nervous breakdown”, or “I will tell it all when I get well.” However it is to be remembered that all such statements were made by Mervin Bishop to Clinton Dennis as Dennis was trying to obtain a statement from Bishop which Bishop was more than reluctant to give to his friend Dennis, but which matters Bishop apparently was willing to discuss with his physician, Dr. Molloy, and on which the patient Bishop sought his doctor’s opinion and advice as to whether or not he should make a statement.
The procedure adopted by the trial judge in hearing and determining the sufficiency of the foundation laid for the admission of the dying declaration was that set forth in State v. Kacar, 74 Mont. 269, 279, 240 Pac. 365. It was within the discretion of the trial judge as to whether or not the jury should be present when the foundation for the admission of the dying declaration was being laid. Should the trial judge find the foundation sufficient and decide to admit the dying declaration in the absence of the jury, then the whole procedure is repeated for and in the record in the presence of the jury.
R.C.M. 1947, section 93-401-27, subd. 4, sets forth the eon
The matter of dying declarations has been before this court on various occasions.
In State v. Russell, 13 Mont. 164, 168, 32 Pac. 854, 856, after considering numerous authorities therein cited, the court said:
“These authorities all hold that if all the facts and circumstances surrounding the declarant at the time of making the declarations show them to have been made under the sense of impending death, notwithstanding declarant may not have said he was without hope of recovery, or was dying, or going to die, then such declarations are admissible in evidence.” Also see State v. Gay, 18 Mont. 51, 44 Pac. 411; State v. Byrd, 41 Mont. 585, 111 Pac. 407; and State v. Kacar, supra.
In State v. Crean, 43 Mont. 47, 57, 114 Pac. 603, 606, Ann. Cas. 1912 C, 424, the court said:
“It is not necessary to the introduction of a dying declaration that it be shown that the declarant was in extremis by evidence independently of the declaration itself. * * * In fact, it was formerly assumed that any evidence of the condition of the deceased, other than his own statement, was inadmissible; but the rule now is well settled that the party offering the evidence may avail himself of any means by which the declarant’s condition can be shown; and if the evidence, whether given by the declarant or others, shows that the declaration was made under a sense of impending death, the object has been attained. ’ ’
In State v. Martin, 76 Mont. 565, 569, 248 Pac. 176, 177, in reviewing the conditions precedent to admitting a dying declaration, the court said:
“* * * It will be observed that the rule requires, as a condition precedent to the admissibility of the declaration, preliminary proof of the concurrence of the following conditions: (1) That the declaration was made by a, dying person, or, in the*32 more flowery phrases of the courts, by one in extremis or in articulo mortis; (2) that the declaration was made under a sense of impending death; (3) that the declaration relates to the cause of the declarant’s death, or, more exactly, to the cause of his dying condition.”
The supreme court in the Martin ease, supra, further discussed the problems relative to determination of whether the statement was made under a sense of impending death and affirmed the holding of the earlier Montana eases to the effect that the state of the declarant’s mind may be shown by the circumstances surrounding the injury that would indicate a sense of approaching death, and, 76 Mont. at page 571, 248 Pac. at page 177, the court said:
“Among the circumstances tending to prove that state of mind are: That the declarant sought the consolation of religion, or received the last rites of his church, and whether his conduct was that of a person fully conscious of immediate approaching death, as evidenced by his directions for his funeral, the disposition of his property, the care of his family, and the like. Indeed, we may go further and adopt the extreme view of the textwriters and some courts, that: ‘If in a given case the nature of the wound is such that the declarant must have realized his situation, our object is sufficiently attained.’ 3 Wigmore on Evidence, section 1442.”
It is our conclusion that a proper foundation for the admission of a dying declaration of Bishop was laid. "We reach this conclusion because of the statements of Bishop that he was “going to die” and that he was “going down for the long count”; because he was told by his doctors that he was going to die of his burns; because he knew and appreciated that his doctor was telling him the truth and that he was about to die; because he received the last rites of his church; and he knew “Turk” Freestone had died of his burns and that his own burns were nearly as bad and because the very nature of his burns made death a certainty. As was said in State v. Russell, 13 Mont. 164, at page 169, 32 Pac. 854, at page 856, “The facts
Appellant contends that certain portions of Mervin Bishop’s dying declaration were hearsay, conclusions, or opinion evidence to which the declarant could not properly testify and that it was error to admit same. However the record fails to show that appellant’s counsel made either timely, specific or proper objection to the specific parts of the declaration here complained of, either prior to or at the time of its admission. In the absence of timely, specific and proper objections the appellant may not wait until his appeal and then successfully predicate error on his following motion to strike the dying declaration, viz.: “We move to strike this evidence upon the grounds and for the reason that it is hearsay evidence. It is plainly shown that it wasn’t given in anticipation of death. It is incompetent, irrelevant, and immaterial as a dying declaration. ’ ’ Upon the making of such motion the trial court inquired, “That’s your objection for the record?” to which appellant’s counsel answered “Yes.”
Appellant’s above motion to strike was directed against the entire declaration and it failed to specify the objectionable parts. It is elementary that to be good the motion must point out the specific parts of the statement which are objectionable, and give the reason why such parts are objectionable. See Jackson v. State of Mississippi, 173 Miss. 776, 163 So. 381, 100 A.L.R. 789; Burgess v. State of Maryland, 161 Md. 162, 155 A. 153, 75 A.L.R. 1471; Williams v. Graff, 194 Md. 516, 71 A. (2d) 450, 23 A.L.R. (2d) 106; Southern P. R. Co. v. San Francisco Sav. Union, 146 Cal. 290, 79 Pac. 961, 70 L.R.A. 221, 106 Am. St. Rep. 36; Harris v. State 23 Wyo. 487, 153 Pac. 881; Viss v. Calligan, 91 Wash. 673, 158 Pac. 1012; 3 Am. Jur., Appeal and Error, section 345, page 91; 53 Am. Jur., Trial, section 147, page 132; 53 Am. Jur., Trial, section 151, page 137.
While it is the settled rule in Montana that objectionable
“® * * The error urged on appeal was not contained in the objection made to the particular question asked. It is well settled that an objection, to be good, must point out the specific ground of the objection, and that, if it did not do so, no error is made in overruling it. In other words, a party is confined to the specific objections made by him and can have the benefit of no others.”
Appellant assigns as error the giving over his objection of the trial court’s Instruction No. 8, which reads:
“Instruction No. 8.
“You are instructed that when two or more persons agree and confederate together to commit a crime under such circumstances as may, when tested by human experience, specifically result in the taking of human life, either in the execution or resistance of their unlawful plans, then each party to such common understanding or conspiracy will be held responsible for the consequences which might be reasonably expected to flow and which do flow from carrying into effect their unlawful combination, and for the taking of human life, if any, to accomplish the object of such conspiracy, even though such consequences were not specifically intended as a part of the original plan. The law is that, if two or more persons conspire to commit a felony and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in the furtherance of the original design, in contemplation of law, is the act of all. And if such conspiracy and agreement is to do or perform an unlawful act constituting a felony, and in the prosecution of such unlawful act constituting a felony an individual is killed or death ensues, such killing is murder in the first degree.
“If you believe, from the evidence in this case, beyond a*35 reasonable doubt and to a moral certainty, that the defendant entered into a conspiracy or common design with another person or persons, to commit the crime of arson and that as a result thereof the crime of arson was committed and if in carrying out such crime Mervin Bishop was killed, then such killing was murder in the first degree and the defendant would be guilty thereof, though he was not present and did not actually assent to the killing of the said Mervin Bishop.”
Appellant’s one and only objection to the above instruction was that it “doesn’t correctly state the law.” In our opinion the instruction does correctly state the law insofar as concerns the instant case because of the provisions of R.C.M. 1947, section 94-2503, and we find no merit in the assignment.
Appellant specifies as error the trial court’s refusal to give appellant’s requested Instruction No. 32, which reads:
“"Where a conspirator commits an act which is neither in furtherance of the object of the conspiracy nor the natural and probable consequence of an attempt to attain that object, he alone is responsible for and is bound by that act, and no responsibility therefor attaches to any of his confederates. ’ ’
We find no merit in the specification. The offered instruction incorrectly states the law to be applied under the evidence in this case in that the instruction presumes the presence of an intervening cause that would break the chain of events whereas here there was evidence of an unbroken chain of events leading from the conspiracy of the appellant and Freestone to the death of Freestone and Bishop in the perpetration of the arson. See Vol. 1, Warren on Homicide, page 326; Romero v. State, 101 Neb. 650, 164 N.W. 554, L.R.A. 1918 B, 70; 13 Cal. Jur., Homicide, section 17, pages 600, 603.
Appellant also specifies as error the refusal of the trial court to instruct the jury on the theory that an accidental death during the commission of a felony does not come within the felony-murder rule, R.C.M. 1947, section 94-2503, but it is clear from our earlier discussion of the applicability of such rule to the facts disclosed by the evidence in this case that any death
Appellant further specifies as error the trial court’s refusal to give two instructions based on the California case of People v. Ferlin, supra. As before stated, we are of the opinion that the Ferlin case, supra, is not applicable to the facts here involved as disclosed by the evidence herein and we hold that the trial judge was correct in refusing the proposed instructions.
We do not find any abuse of discretion in denying appellant’s motion for a new trial, nor do we find any prejudicial error in the record before us on this appeal. Accordingly the order denying appellant a new trial and the judgment of conviction are affirmed.