Opinion
No. 8339.
Submitted January 8, 1943.
Decided February 16, 1943.
Criminal Law — Arson — Evidence — Sufficiency — Trial — Alleged Improper Remarks of Judge — Non-prejudice — Evidence — Cross-examination — Impeachment — Instructions — "Reasonable Doubt" — New Trial — Decisions of Supreme Court — Rehearings — Urging Error not Objected to at Trial — Denial of Motion. Criminal Law — Appeal — Alleged Insufficiency of Evidence — When Supreme Court will not Interfere. 1. On appeal by one found guilty of crime, based on the ground that the evidence is insufficient to support the verdict, the supreme court will not disturb the judgment if supported by substantial evidence. Arson — Sufficiency of Evidence to Support Judgment of Conviction. 2. Evidence adduced in a prosecution for arson resting largely upon the corroborated testimony of his confessed accomplice, and sustained by the physical facts and the behavior of defendant, held sufficient to support the judgment of conviction. Same — Trial — Alleged Objectionable Remarks of Trial Judge — When Contention without Merit. 3. Remarks of the trial judge made in the course of the cross-examination of a state witness that certain testimony sought to be elicited by defendant's counsel, was "immaterial and repetitious" may not be held error in the absence of an effort of counsel to show, by an offer of proof or otherwise, that the testimony was not open to such objection, so as to afford an opportunity to the court to correct its error, if any. Same — Remarks of Trial Judge during Trial Held non-prejudicial. 4. Where, during the cross-examination of a witness for the state in which counsel for defendant endeavored to lay a foundation for a showing of animosity between the witness and his client, the court remarked that various and sundry matters had been gone into "but we are not trying the lawsuit. We are going to get through this case before Christmas", and then informed counsel that he had already laid a foundation for future evidence, the court's remarks could not have tended to the prejudice of defendant. Same — Offer of Proof that Defendant Bought Insurance at Solicitation of Insurance Agent — When Refusal Not Prejudicial Error. 5. There was no error in refusing an offer of proof by defendant convicted of arson for the purpose of showing that defendant bought insurance on the burned farm buildings at the solicitation of a fire insurance agent and that he then had no notion of burning them in order to collect the insurance money, where the state had already shown by such agent that he had solicited the business from defendant. Same — Trial Courts may Expedite Trial of Causes. 6. Trial courts have a definite latitude in expediting trial of cases, and may properly prevent cumulative and repetitious testimony from delaying it. Same — Evidence — What not Inadmissible as Hearsay — Impeachment. 7. Testimony as to a conversation between a witness for the state and a witness for defendant in an arson case, objected to as hearsay because not had in the presence of defendant, held properly admitted for the purpose of impeachment of defendant's witness. Same — Instructions — By What Jury to be Governed in Reaching Verdict — What not Tantamount to Advising Jury to Find Defendant Guilty. 8. Instruction in a criminal case that the jury should not act upon their sympathies or prejudices, if any, for or against the defendant or any other person, but only according to the law and the evidence, and that the only question before them was whether or not they believed from all the evidence beyond reasonable doubt that defendant was guilty as charged, held not open to the objection, under the circumstances, that it was tantamount to advising the jury that defendant was guilty. Same — Instructions — "Reasonable Doubt" — Departing from Stock Instructions on Matter — Non-prejudice. 9. Instruction on the question of "reasonable doubt", apparently intended to distinguish between such doubt and trivial or fanciful ones, and stating "you are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been administered,", thus departing from stock instructions as to the term "reasonable doubt", could not have prejudiced defendant when viewed in the light of other instructions as to burden of proof, reasonable doubt and the requirement that the jury must be guided by the evidence before it. Same — New Trial — When Refusal Proper. 10. Though it has been held that where, after verdict of guilty of crime, evidence is discovered that a witness upon whose testimony the verdict was founded had committed perjury, a new trial may be granted, statements of defendant's accomplice made after verdict of guilty showing malice toward defendant, but not showing nor tending to show perjury, were insufficient to justify retrial.
ON MOTION FOR REHEARING.
Rehearing — Objections to Evidence not raised in Trial Court — Denial of Motion. 11. On motion for rehearing, appellant convicted of crime may not for the first time urge error in the trial of the cause because of improper cross-examination of one of his witnesses, and because the state violated the rule that a party cannot impeach his own witness; it is then too late to raise the objections, since the trial court may not be put in error in such matters without an objection having been made during trial so as to afford it an opportunity to make a proper ruling.
Appeal from District Court of Lewis and Clark County; Geo. W. Padbury, Jr., Judge.
Mr. Leo J. Kottas, for Appellant, submitted a brief, and argued the cause orally.
Mr. R.V. Bottomly, Attorney General, Mr. Fred Lay, Assistant Attorney General, and Mr. J. Miller Smith, County Attorney of Lewis and Clark County, for Respondent, submitted a brief; Mr. Lay argued the cause orally.
The court erred in making certain remarks in the presence of the jury which prejudiced the defendant's case. After the state's witness French had testified that defendant had offered him $50 to burn the buildings in question, it appeared on cross-examination that defendant had loaned him $56.31 to pay up an attachment on his wages, and while going into all the facts surrounding the matter, the court on objection stated it was "immaterial and repetitious.". The court thus instilled in the minds of the jurors that the evidence was immaterial and therefore not to be considered by the jury, when in truth and in fact it was material.
During the cross-examination of the same witness when the personal animosity of the witness toward the defendant was being inquired into and a foundation was being laid for defendant's testimony as to the threats the state's witness made against the defendant, the court further erred when sustaining the state's objection, in stating: "We have treated about generators, automobiles and wires, and everyone that lived in Basin and vicinity, but we are not trying this lawsuit. We are going to get through this case before Christmas", thus indicating to the jury that all of the matters presented on the part of defendant were valueless and immaterial. No defendant standing before the bar of justice can ever hope for a fair and impartial trial when the judge, by his remarks indicates that evidence is or is not important. A judge should not make any statement as to weight of evidence in ruling upon admissibility thereof. ( State v. Pascal, 147 La. 634; 85 So. 621.)
Remark of the court when an eye-witness was being cross-examined as to a vital question in the case: "Can't you hurry up and get along and quit fooling with things that have nothing to do with the case," was error. ( State v. Davis, (Mo.) 217 S.W. 87.)
When it is apparent that a fair trial has not been had due to remarks of the trial court, then a court of review should give relief as soon for that cause as for any other. ( State v. Brooks, 57 Mont. 480, 188 P. 942; People v. Flanagan, 65 Cal.App. 268, 223 P. 1014.)
The court erred in sustaining an objection to the introduction of evidence that would have shown that defendant bought insurance on his buildings at the insistance of an insurance salesman. The defendant had a right to show how it came about that he bought the insurance especially is this true since the buildings were of small value and the insurance was for more than they were worth and the state contended that defendant insured worthless buildings with the intent to burn them and collect the insurance. The facts that go either to sustain or impeach a hypothesis, logically pertinent, are relevant. ( State v. Gay, 18 Mont. 51, 44 P. 411; Pure Oil Co. v. Chicago M. St. P. Ry. Co., 56 Mont. 266, 185 P. 150.) Where the proof of intent is necessary to prove an element of crime or recover damages, then all of the circumstances connected with the transaction and tending to exhibit or explain it in its entirety are legitimate objects of inquiry. ( Edquest v. Tripp Dragstedt Co., 93 Mont. 446, 19 P.2d 637.)
The court erred in overruling the objection interposed to the introduction in evidence of a supposed statement made by one Strait to state's witness, Tom Roberts, that defendant wanted the buildings burned. It was not a statement made by the defendant and cannot be classed as an admission. It was purely a statement made by a third person as to what someone else was supposed to have said and is hearsay and inadmissible. Evidence by a witness of what was told to the witness by someone else when the defendant was not present is clearly hearsay, incompetent and immaterial. (Sec. 10506 Rev. Codes; State v. Judd, 20 Mont. 420, 51 P. 1033; State v. Welch, 22 Mont. 92, 55 P. 927; State v. Hopkins, 68 Mont. 504, 219 P. 1106; State v. Lund, 93 Mont. 169, 18 P.2d 603.)
The court erred in giving an instruction relating to the matter of sympathy (see opinion), to which defendant's objection was: "To which the defendant objects upon the ground and for the reason that there is no evidence introduced at the trial with reference to sympathy, as a comment on the evidence; tends to mislead the jury, tending to instruct the jury to bring in a certain verdict, and is against the law. The jury were told that no question of mercy, sympathy, sentiment or anything else should reside with them. The instruction as much as told the jury that defendant was guilty and that his family would suffer. The instruction told the jury that they were bound to administer justice according to the law and the evidence, and bring in their verdict and not allow sympathy or anything else influence them otherwise. From this instruction the jury were lead to believe that the court felt that the evidence was sufficient to convict and that the defendant and his family would suffer but that they must bring in the verdict of guilty. It is a comment on evidence and in effect amounts to a directed verdict and places undue stress upon the evidence for the state. State v. Dukich, 131 Wn. 50, 228 P. 1019; State v. Harrington, 61 Mont. 373, 202 P. 577; Jackson v. United States, 48 App. D.C. 272. People v. Harvey, 286 Ill. 593, 122 N.E. 138; The instruction was also argumentative. Johnson v. State, 15 Ala. App. 298, 73 So. 210; Hawkins v. State, 15 Ala. 581, 74 S. 400; McDonald v. State, 23 Ga. App. 58, 97 S.E. 448.
The court erred in giving the instruction on reasonable doubt quoted in latter part of opinion. The instruction is argumentative and should not have been given. ( People v. Bush, 300 Ill. 532, 133 N.E. 201; Carney v. United States, 295 Fed. 606.) Instructions on reasonable doubt that tell the jury that they cannot disbelieve as jurors if they believe as men and that their oath as jurors imposes no obligation to doubt where no doubt would exist if no oath were administered, held improper and case reversed. ( Highley v. People, 65 Colo. 497, 177 P. 975; Robinson v. State, 18 Wyo. 217, 106 P. 24; People v. Johnson, 140 N.Y. 350, 35 N.E. 604; Liberry v. State, 133 Ind. 677, 33 N.E. 681; Cross v. State, 132 Ind. 65, 31 N.E. 473; State v. James, 198 Iowa 976, 200 N.W. 577; State v. Ringer, 84 W. Va. 546, 100 S.E. 413; People v. Kingcannon, 276 Ill. 251, 114 N.E. 508; State v. Linker, 94 N.J.L. 411, 11 A. 35; State v. Worley, 82 W. Va. 525, 96 S.E. 56; State v. McCausland, 82 W. Va. 350, 96 S.E. 938;) by the above instruction, the court indirectly got before the jury, the idea that the defendant was guilty and where a court indirectly get before the jury its view of the facts or that matters have been proved, it is error. ( State v. Harsted, 66 Wn. 158, 119 P. 24; Chapman v. State, 23 Ga. App. 359, 98 S.E. 243.)
Where on a motion for new trial, although impeaching evidence may demonstrate perjury in the witness upon whose evidence the verdict was founded, and but for which, conviction could not be had, a new trial should be granted. ( State v. Hamilton, 87 Mont. 353, 287 P. 933; State v. Belland, 59 Mont. 540, 197 P. 841; State v. Matkins, 45 Mont. 58, 121 P. 881; State v. Gangner, 73 Mont. 187, 235 P. 703.)
Where newly discovered evidence will probably change the result to a verdict more favorable to Defendant, a new trial should be granted. ( State v. Matkins, 45 Mont. 58, 121 P. 881; People v. Cotell, 298 Ill. 207, 131 N.E. 659; State v. Lumpkin, 31 Idaho 176, 169 P. 939.)
Where the probable effect of newly discovered evidence is doubtful or impossible to determine, a new trial should be granted. ( State v. Keleher, 74 Kan. 631, 87 P. 738; Dennis v State, 103 Ind. 142, 2 N.E. 349; McClearly v. State, 97 Miss. 332, 52 So. 796.) The defendant need not show an entire absence of evidence of some fact necessary to make out a case; if he can show from all the evidence that it is insufficient in weight to justify the verdict, he is entitled to a new trial. ( State v. Schoenborn, 55 Mont. 517, 178 P. 294.)
Appellant contends that the trial court erred in making remarks in the presence of the jury that prejudiced his case. We do not believe that the remarks had the slightest effect upon the jury, and even if they did, the court's Instruction No. 20 cured the error. "Where the trial court in its instructions admonishes the jury to disregard any comments or remarks made by it in admitting or excluding evidence, alleged error in this regard was rendered harmless." (See, also, People v. Yokum, 118 Cal. 515, 50 P. 686, 688; Bone v. State, (Ga.) 12 S.E. 205, 206; State v. Angel, (S.C.) 76 S.E. 190, 193; State v. Walton, (Mo.) 164 S.W. 211; State v. Gulliver, (Minn.) 142 N.W. 948; State v. Lindquist, (Minn.) 124 N.W. 215.)
Appellant assigns as error the refusal of the court below to allow defendant to prove that one Strait was present at the Curtiss ranch at the time an insurance agent and realtor attempted to sell the ranch to Curtiss, and that he told him to insure the buildings, as he had a tenant and should have the buildings insured and tried to sell the insurance. The insurance agent was cross-examined and most, if not all, of his evidence was favorable to the defendant and did not injure the defendant's case in any way, but rather bolstered the same.
Appellant contends that the court erred in overruling the objection interposed to the introduction in evidence of a supposed statement made by Strait to state's witness, Tom Roberts, without the presence of the defendant, that the defendant wanted the buildings burned. The answer was not hearsay as it was solicited by the state on rebuttal.
Contention is made that it was error to give instruction No. 17, the latter part of which is: "No question of mercy, sympathy, sentiment or anything else should reside with you in arriving at your verdict, except the question of whether or not you believe from all the evidence beyond a reasonable doubt that the defendant is guilty as charged." Instructions such as this are not at all unusual, as is indicated in Sheahan v. Barry, 27 Mich. 217; Gornetsky v. Gorntesky, 174 Mich. 492, 137 N.W. 606; People v. Bojorquez, 35 Cal.App. 350, 169 P. 922; Foskey v. State, 119 Ga. 72, 45 S.E. 967; and Hinshaw v. State, 147 Ind. 334, 47 N.E. 157.
As to the point that the term "reasonable doubt" was not correctly defined in Instruction 19, the burden was upon the defendant to specify particularly wherein the instruction was insufficient or offer one which would properly define the term. ( State v. Thomas, 46 Mont. 468, 128 P. 588.) That part of the instruction deemed especially objectionable to appellant, i.e.: "You are not at liberty to disbelieve, as jurors, if you believe as men. Your oath imposes upon you no obligation to doubt where no doubt would exist, if no oath had been administered," was given in the case of McQueary v. People, 48 Colo. 214, 110 P. 210, and sustained. (See, also, Sarkisian v. People, 56 Colo. 330, 138 P. 26; State v. Nolan, 31 Idaho 93, 169 P. 295, 298; State v. Lyons, 7 Idaho 530, 64 P. 236, and State v. Moon, 20 Idaho 202, 117 P. 757.) While the instruction may be properly subjected to some criticism and some courts have condemned it, its giving has not generally been regarded, even in the jurisdictions where it has been condemned, as sufficient in itself to amount to prejudicial or reversible error. ( Bothwell v. State, 71 Neb. 747, 99 N.W. 669; Lillie v. State, 72 Neb. 228, 100 N.W. 316; Clements v. State, 80 Neb. 313, 114 N.W. 271; Holmes v. State, 82 Neb. 406, 118 N.W. 99.) Respondent contends that the affidavits in support of defendant's motion and supplemental motion for a new trial are insufficient in that there is nothing therein that would indicate the possibility of a reversal of the judgment and in several instances fail to meet the requirements laid down in State v. Matkins, 45 Mont. 58, 122 P. 881.
Defendant was convicted of the crime of arson. He specifies as error, among other things, that the evidence is insufficient to support the verdict and that the verdict is contrary to the law. [1] It is the well settled rule of this court that the verdict will not be disturbed if supported by substantial evidence. (See cases cited in 4 Montana Digest, Criminal Law, Key No. 1159.)
The defendant owned a farm upon which were located certain [2] buildings. All of these buildings were insured against fire prior to July 18, 1941. On that date the buildings were burned. The conviction must rest largely upon the testimony of Lester D. Lamb, an employee of the defendant who was staying on the farm with the defendant on the date of the fire. The testimony is that he and the defendant planned the fire and that he proceeded methodically to carry out that plan. The testimony of this witness, if believed, was more than ample to establish the guilt of the defendant. This evidence, however, comes from the lips of the confessed accomplice. By section 11988, Revised Codes 1935, we are directed that a conviction may not be had upon the uncorroborated testimony of such person. The corroborating testimony must tend to connect the defendant with the commission of the crime, and it is not sufficient if it merely shows the commission of the offense or the circumstances thereof. (Sec. 11988, Rev. Codes 1935.)
The witness French testified that prior to the fire the defendant had offered him $50 to burn the buildings. The witness Roberts testified that defendant questioned him in detail as to the habits of one of defendant's neighbors, John Miller. Miller was regularly employed in the city of Helena and defendant sought to obtain from Roberts information as to what time Miller arose in the morning and when he returned. Miller's place was so close to that of the defendant that he could see a fire or anything else unusual that might occur on defendant's property.
The testimony of Lamb, corroborated, as it was, not only by the testimony above set out but by the physical facts and the behavior of the defendant, amply supported the verdict.
Error is specified on the remarks made by the district judge [3] in the course of the trial. Upon the cross-examination of one of the state's witnesses the court ruled upon an objection to certain testimony in these words: "Objection sustained. It is immaterial and repetitious." No showing was made by offer of proof or otherwise that the testimony ruled upon was material or that it was not repetitious. The burden was upon the defendant to make that showing so that the trial court could have an opportunity to correct its error, if any were made. We cannot say from the record presented that the ruling of the court was error.
The other remark made by the trial judge to which objection [4] was made was as follows: "The court: We have treated about generators, automobiles and wires, and every one that lived in Basin and vicinity, but we are not trying this law suit. We are going to get through this case before Christmas. Objection sustained." The objection was made while defendant's attorney was cross-examining the witness French, endeavoring to show animosity between the witness and the defendant. After the ruling of the court, defendant's counsel stated that his purpose in asking the question to which the objection was sustained was to lay a foundation for showing the existence of animosity on the part of the witness toward the defendant. The court informing him that he had done so, defendant's counsel acquiesced with these words, "all right, with the understanding that I have laid a foundation for future evidence." The case of State v. Davis, (Mo. Sup.), 217 S.W. 87, is cited by defendant in support of his argument that the remarks of the court are prejudicial error. In a matter such as this the facts of the case only may be relied upon to determine whether or not any particular remark and ruling of the trial judge is prejudicial error. Here it was certainly not error to sustain the objection since the foundation had already been laid for the testimony counsel wished to introduce later, and under the circumstances we find nothing in the remarks of the court which would tend to prejudice the defendant.
Error is specified on the court's refusal to permit the [5] introduction of testimony showing that defendant bought insurance on his buildings only after solicitation on the part of an insurance salesman. This testimony could only have served to show that the defendant, at the time he purchased the insurance, did not have any notion of burning the buildings in order to collect the insurance money. The testimony contained in the offer of proof was admissible, but it had already been admitted by the state through its witness, the insurance salesman, that the salesman had solicited the insurance business from the defendant, and not vice versa. The court has definite latitude in expediting the trial. It can prevent cumulative and [6] repetitious testimony from delaying it. There was not error in excluding the testimony.
Error is specified on the admission of certain testimony as to [7] conversations held between the witnesses on the stand and one of the defendant's witnesses, it being objected to as hearsay as not having been in the presence of the defendant. This testimony was elicited for impeachment of the defendant's witness only and was properly admissible.
Error is specified on the giving of certain instructions by [8, 9] the court. The first instruction is as follows:
"You are instructed that altho you may sympathize with those who suffer or may suffer, as a result of this trial, yet as men and women, bound by your oath, to administer justice according to the law and the evidence, you should not act upon your sympathies or prejudices, if any, for or against the defendant or any other person, or persons, in deciding this case.
"No question of mercy, sympathy, sentiment or anything else should reside with you in arriving at your verdict, except the question of whether or not you believe from all the evidence beyond a reasonable doubt that the defendant is guilty as charged."
In defendant's view, this instruction is tantamount to advising the jury that the defendant was guilty. He bases this conclusion upon the fact that there was no evidence tending to create any sympathy in the case. Defendant cites a number of cases dealing with instructions similar to this where the court held that the particular instruction assumed that the defendant was guilty. We cannot so read the instruction here given. The last words of the instruction clearly negative any suggestion that the court considered the defendant guilty but clearly left the determination of that fact to the jury. Sympathy might be aroused in the jury without any testimony tending to create it, by the appearance of the defendant or by any one of a number of things occurring at the trial. While there may be a question concerning the necessity or the desirability of an instruction such as this in every case, under the circumstances here it certainly was not prejudicial.
The last portion of the instruction on reasonable doubt reads as follows: "A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict, is not a reasonable one, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence; you are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been administered."
The purpose of this instruction apparently was to distinguish between a reasonable doubt and trivial or fanciful ones. The court in this case has attempted a further definition of the term "reasonable doubt" than is found in the stock instructions. We do not think that these stock instructions, tested over the years as they have been, need any elaboration. (See Underhill on Criminal Evidence, 4th Ed., p. 26; Note 96 Am. St. Rep. 210.) We cannot say, however, in this case that anything in this part of the instruction, particularly in view of the other instructions as to burden of proof, reasonable doubt and the requirement that the jury must be guided only by the evidence before it, has prejudiced the defendant.
Defendant urges that the latter portion of the quoted part of the instruction would lead the jury to believe that it could base its verdict on something else besides the evidence. The cases cited in support of that view are found in the recent case of State v. Wong Sun, ante p. 185, 133 P.2d 761. This argument of the defendant and the cases he cited are considered in that case. There is no need now for us to here reconsider the matter. What is there said is controlling.
Finally defendant specifies error on the action of the trial [10] court in denying his motion and supplemental motion for a new trial. The application sets out certain statements of the witness Lamb which he was alleged to have made after the trial. The following statements are said to have been made by the witness, speaking to a third person: "Well, you thought you were pretty smart to go over and testify against us. But it didn't do you any good, we got him anyway. [Apparently referring to defendant.] We had that all fixed up." And further: "Red and I, we got him where we want him." Defendant relies on what is said in State v. Hamilton, 87 Mont. 353, 287 P. 933, 937: "`Where the impeaching evidence may demonstrate perjury in the witness upon whose evidence the verdict was founded and but for which conviction could not have been had,' a new trial should be granted. [Citing cases.]"
The alleged statements of the witness do not show perjury nor even tend to show perjury. The most that can be said of them is that they tend to show malice on the part of the witness toward the defendant, and they do not bring the case within the rule of State v. Hamilton above. No error was committed in refusing to grant a new trial.
The judgment is affirmed.
ASSOCIATE JUSTICES MORRIS, ANDERSON, and ADAIR, and HON. R.E. McHUGH, District Judge sitting in place of MR. CHIEF JUSTICE JOHNSON, disqualified, concur.
On Motion for Rehearing.
For the first time, in the petition for rehearing, defendant [11] urges that the cross-examination of Strait was improper when he was questioned concerning statements which he, Strait, had made to the witness Roberts and that in asking these questions the state made Strait its witness because the questions propounded to him, it is argued, are not within the scope of proper cross-examination. No objection was made by the defendant to these questions on any grounds. To carry the matter a step further, the defendant now argues that since, in his view, this testimony by Strait was as a witness for the state, the testimony of Roberts, which we held proper for the purpose of impeachment, was not properly admissible since a party cannot impeach his own witness. ( State v. Smith, 57 Mont. 563, 190 P. 107.) Here again this objection was not made to the admissibility of this testimony. The objection to the testimony of Roberts was based entirely on the theory that it was hearsay because the statements were not made in the presence of the defendant. Even if the cross-examination were not proper, which we do not hold, it is too late upon the petition for rehearing in this court to raise the objection. The trial court may not be put in error in a matter like this without an objection having been made in the trial of the cause so as to permit the court to make a proper ruling.
The petition for rehearing is denied.