State v. Bannon

244 N.W. 1, 62 N.D. 517, 1932 N.D. LEXIS 211

• Court: North Dakota Supreme Court
• Decided: August 23, 1932
• Docket: File No. Cr. 89.
• Status: Published

Opinion

Birdzell, J.

The defendant, James F. Bannon, was tried in the district court of Divide county upon an information charging him with the murder of Albert E. Haven. He was found guilty of murder in the first degree and sentenced to life imprisonment. He thereupon moved for a new trial on the grounds (1) of the insufficiency of the evidence to justify the verdict and (2) that the verdict is against the evidence. The motion for a new trial was overruled and the defendant appeals to this court from the judgment of conviction and from the order of the court overruling his motion. By stipulation the cause was transferred from McKenzie county, where the crime was alleged to have been committed, to Divide county.

Prior to Monday, February 10, 1930, Albert E. Haven and his family lived upon a farm about one mile north of Schafer in McKenzie county. The family consisted of Albert E. Haven, approximately forty-five years of age, his wife and four children: the eldest, Daniel, nineteen years of age; Lcland, sixteen years of age; Charles, three years of age; and an infant, some six weeks or two months of age. None of' this family was seen alive after Sunday, February 9, 1930. Albert Haven owned the farm upon which the family resided. His household goods included a piano and a radio. He had considerable livestock, feed and machinery. Prior to this date Charles Bannon, son of the defendant, about twenty-five years of age, had occasionally worked for Albert Haven, and immediately and continuously subsequent to this date Charles lived upon the Haven place. Up to this time the defendant, James Bannon, had been living upon a farm some three and one half or four miles distant in a northwesterly direction, known as the McMaster place and shortly thereafter he moved to the Haven place, which he and Charles farmed together during the farming season of 1930. Mrs. Bannon, wife of the defendant and mother of Charles, taught school and was not at home except during vacations. She attended summer school at the University of Oregon at Eugene in July and August, 1930. The Bannon family had lived in Oregon in 1920 and in 1924; otherwise, they had lived in McKenzie county since 1916.

The disappearance of the Haven family was a fact noted immediately in the neighborhood and it was accounted for by a story originating with Charles, or with Charles and the defendant, to the effect that owing to mental peculiarities exhibited by the wife of Albert Haven it had become necessary for her to be taken from the comnmnity and that the family had departed for the west on an early morning train from Williston, North Dakqta, on Monday, February 10th. It was also reported that Haven had rented the place to Charles Bannon who was left in charge as a tenant. In some instances the defendant likewise assumed to act as a tenant and agent of Haven. In the latter part of October, 1930, the defendant left the vicinity, driving west to Oregon. He took with him a young man named Boy Harrington. Charles Ban-non was later arrested and given a preliminary hearing on a charge of grand larceny. Investigation later disclosed that the Haven family had been foully murdered, the bodies being found at various places, some buried in a cow shed a short distance from the house, one, that of the infant, in a straw or manure pile. Parts of the “body of Mrs. Iiaven were found a few weeks before the instant trial upon another farm some six miles-east of Schafer, whence it had been taken from the place where it had earlier been buried. Charles Bannon confessed the killing of all the members of the family. Meanwhile, the defendant was in Oregon. He was there arrested and upon his person were found substantially all the remaining proceeds of the disposition of such of the property and crops as had been sold' from the Haven farm. He was returned to this state and bound over to the district court upon preliminary hearing. Some time after Charles's confession was obtained he was forcibly removed from the jail and hanged by a mob.

The only evidence in the record that purports to come from an eyewitness to the murder in question is that found in three confessions •of Charles Bannon, and in none of these is the defendant identified as being present. Mention is made in them, however, of a stranger, but according to the last confession Charles Bannon alone was responsible for the offense and committed it without any aid or assistance. These confessions will be later referred to in some detail. A determination •of the sufficiency of the evidence to connect the defendant with participation in the crime, which is the sole question involved on this .appeal, requires a survey of all parts of the record which may be thought to have any probative value upon the question of James Ban-non’s participation in the offense. The evidence having a bearing upon this question will be abstracted below in the order in which it was presented at the trial.

Ellsworth Swenson testified that he was sixteen years of age; that he lived in Schafer; that he had been acquainted with the Haven boys for about three years and visited at their home. The last time he was there vas the Sunday before they disappeared. He went there a little before noon. The older boys, Daniel and Belaud, were not then at home, but Mr. and Mrs. Haven and the two little children were home. Daniel and Leland returned about two o'clock from the Calkins farm where they had attended a party the night before. The witness returned to his home about dark. Charles Bannon came to the Haven lióme while the witness was there. He came on horseback and had a .rifle tied to the saddle. He remained after the witness left. No one came while he was. there except Charles Bannon. lie did not see James Bannon that dáy at all.

R. L. Bassett testified that he was a farm laborer living at Watford City. He had known Albert Haven possibly two years, and had worked for him several times, the last period of employment having been in October, 1929, at which time -he stayed there about three weeks but was not employed over a week. He was on the Haven place on the 10th of February between ten and eleven o’clock in the forenoon. He found no one there. He left his team outside the fence and carried his lunch into the house. There was a low fire in the stove and he put in coal. He noticed nothing unusual to attract his attention except that there was no one there. He went from there “to the north place” two miles to get a load of hay. He returned to the Haven home between one and two o’clock, watered his team, put them in and fed them. This time Charles Bannon was in the barn and James Bannon was in the house. When he went into the house the defendant was preparing lunch. They had difficulty with the cream separator. The witness said “I told them if they would heat water I would help them take the separator apart and help them put it together so that they would get acquainted with it.” He had worked that separator. He had lunch with James and Charles Bannon. lie was there three quarters of an hour. He didn’t recall any conversation but he showed them how to take the separator apart and put it together. Mr. and Mrs. Calkins, came to the place while he was there about ten minutes before he left. They left before the witness did. They did not enter the house. They came to get a turkey gobbler which Charles and the witness caught for them. They took the gobbler and went home before the witness did. He saw none of the Haven family. The next time he was on the place was some time within the next two weeks. He tied his team a quarter of a mile from the buildings and walked to the house for water. Charles Bannon was there, but he did not remember whether or not James Bannon was there. About three weeks after the 10th of February he was again at the house. Both Charles and James Bannon were there. He ate there and James Bannon washed the dishes. On cross-examination this witness was reminded of testimony he had given upon a preliminary hearing. • AVhen he had been asked as to the date he was on the Haven place he admitted he had answered the question thus: “It must have been the 17th of February, or the 10th, the 10th rather.” Tie admitted that on that hearing he had testified that he visited with Charles Bannon “not much over an hour.” He testified that after he put his horses in the barn and fed them “Charles was there and I visited with him awhile;” that he ate his lunch in the house with Charles and he told about his trip; that he visited with Charles “not much over an hour;” that when he was asked whether Charles told him about anything queer that had happened around the place he answered “He said Mrs. Haven was kind of violent a night or two before. He told about her taking after Albert Haven and pushing the kid around.” He admitted that after testifying upon such preliminary hearing to his acquaintance with Charles Bannon for two years or more he was asked “Do you know his father?” and he answered “By sight.” When asked to account for the fact that in the preliminary examination he referred to Charles alone and did not refer to his father he said “The conversation I had with Charles. James was working about the separator and getting lunch. Q. Did you mention that day that James was present? (Referring to the day of the preliminary examination) A. I think 1 did. Q. Are you sure? A. I am sure. . . . Q. You did say you were not sure that you mentioned that James Bannon was on the place or not? A. I can’t remember that.” There was no automobile on the place in the morning of the 10th of February when he was there, but in the afternoon Haven’s model A Ford sedan was there and from its appearance he determined it had been used.

Willis Calkins testified that he lived five and one-half miles from the Haven place; that he had known the defendant, James Bannon, for four years. The witness was on the Haven place on the 10th of February. He fixed the date with reference to a surprise party for his boy which was held at his place on Saturday evening, the 8th. Ilis wife was with him. He saw Charles Bannon and a young man by the name of Fassett. He was there between two and three in the afternoon. He had come for a turkey gobbler and it was caught by Fassett, Charles Bannon and the witness. Neither the witness nor Mrs. Calkins was in the house. He was there about a half or three-quarters of an hour.

Frances Calkins, the wife of Willis Calkins, gave substantially identical testimony. Tlie date of tlie party was fixed with reference to the birthday anniversary of tlie Calkins boy which occurred earlier in the week.'

George Thomas, a farmer living northeast of Schafer, about four miles from the Haven place, testified to the finding a few weeks before the trial of the torso and other parts of the body of Mrs. Haven in the brush upon a place known as the Hannon homestead. Tie testified to seeing and talking with the defendant regarding the Havens in the fall of 1930, about a week before the defendant left for the west. The witness, asked the defendant if he had heard from the Havens. The defendant said “Yes.” When asked when they would be back “He said they were looking for them any time.”

Dan Harder, who lived fifteen miles northeast of Watford City, testified that he had known the defendant about fifteen years; that he had had a conversation with him the latter part of August or in September, 1930, regarding the Havens. The defendant, Charles Bannon, a Mr. Hanks, and, he thought, George Thomas were present. Witness asked Charles Bannon, in the presence of the defendant, if he ever heard from the Havens. “He said ‘No. Not since last February.’ I said it looked funny to me that a family would blow out ’of existence and nobody hear from them, and Mr. Bannon spoke up and said Mrs. Haven was in the asylum or else that they were living somewhere out of the way so that they wouldn’t have to send her to the asylum. He said, ‘If you would be there that night you would changed your mind, the night they took her away.’ ” James Bannon said that. Witness said “Why?” and James Bannon said “ ‘She went on the rampage and was going to clean up on her old man with a stove poker,’ and he said he had hid behind the door and he said he jumped out and threw his arms around her, and I asked him how he liked to hug her, and he said, ‘Not very well.’ He said, ‘By jabbers she is pretty stout.’ James Bannon said it was ‘The night we took her away.’ ”

Frank Frisinger, who lived seven miles northeast of Schafer, testified that he had known the defendant since the spring of 1915. ITe talked with the defendant either the 11th or 12th of February, 1930, in front of a hardware store in Watford City. He talked about the Havens. “Tie said the Havens went away and he was staying there helping Charlie. I said, ‘Where did they go ? ’ He said, ‘Out west.’ He said, ‘The other day.’ I said, ‘What other day ? ’ He said, ‘Sunday night.’ I said, ‘How come they went away ? ’ He said, ‘They had quite a pow-wow and knock down and drag out affair.’ I said ‘How did that happen?’ He said, ‘The old lady was playing the radio, he said, ‘Shut it off.’ She jumped off and hit Mr. Haven with the poker over the eye like this (indicating) with a poker.’ He said, ‘About that time I jumped in and helped him.’ I. said, ‘Were you there? ’ Ho said, ‘Yes, she is a stout old heifer to handle.’ He said, ‘I am staying there while Charlie is taking them to Williston. There is a lot of chores to do and I am staying there helping.’ That is practically all he said.”

William Schoenlein, who lived in Watford City and was in the wholesale gas and oil business, testified that he had known the defendant for about three years; that he had a conversation with him on the Haven place in July or August, 1930. After delivering gas to the defendant, Bannon said “ ‘Let’s go to the house and make out the ticket.’ It was windy and warm. As I went to leave he followed me out in the yard and I made the remark and said it was strange that Havens left without leaving word, and he said, ‘You Wouldn’t think it so funny if you knew the circ.umstaiic.es.’ He said, ‘The old lady went wild and hit the man over the head and he got hold and held her, that is Mr. Bannon did, and he held her, and they took them to AVillistou.’ . . . He said that she tried to jump out of the car and they held her.” He had never had any conversation like that with Charles. On cross-examination he was reminded of being asked on a preliminary hearing whether James Bannon had said who took them to AVilliston and he didn’t remember answering as follows: “I don’t quite remember whether he did or not but it does seem to me that he said something about Charles hauling them to Williston.” He said he might have made that answer. He testified that on cross-examination at the preliminary hearing he was asked “He said at that time that Charles, had taken them to AABlliston ? ” and that he answered “He did not mention Charles in particular. He gave me the impression that they both went.”

Frank Rubey, a farmer living ten miles and a half southwest of Watford City, testified that he had known'the defendant for about. fourteen years; that he bought some flax and speltz from him on the Haven place in the spring of 1930; that on one occasion he had talked with the defendant regarding the Havens and asked him where they were and if ho heard from them. “lie said he heard once. ... In harvest he said they would show up at any time.”

Bennie Botener, a farmer living six and one-half miles east of Schafer, testified that he had known the defendant five or six years or more; that he had a conversation with the defendant and Charles Ban-non, at which Miner Botener also was present, in April, 1930. They were considering trading horses. “He said Mrs. Haven was insane at the time Mr.’ Haven came up and wanted Charles to come up and take care of the stock while he took Mrs. ITaven out to Jamestown or out West to their relatives. He came he said on Sunday to get Charles to come down and take them to Williston and then he says ‘I came down to help Charles with the chores.’ ” When asked “Hid he say when he came over?” the witness answered “As near as I can remember, the following day. He said he came that same day. Q. That Charles came that same day ? A. He said Charles came in the forenoon. Q. Did James say when he went down? A. On Sunday night. Q. Hid he make any statement as to when they left ? A. The way I understood about' ten or eleven at night. Q. Hid he say who took them ? A. He said Charles took them. Q. Hid he say where he took them? A. To Williston. Q. Is that what he said ? A. Tes, and that they were going either to Jamestown or Oregon and so my brother says, ‘and they took her to Jamestown and she was allowed to run loose. I would have been afraid to have her running loose.’ And he said, ‘If I didn’t know she was in safe-keeping, I wouldn’t be on this place one day or one week.’ ”

P. C. Arildson, county judge of McKenzie county, testified to having a conversation about the 6th day of October, 1930, with James Bannon and Charles Bannon on the Haven place. The sheriff was present. He inquired if the Bannons knew where the Haven family was. “They said that the only knowledge they had of the Haven family was a letter that.they received from them at Colton, Oregon.” He thought that James Bannon said that and Charles went to the house and got the letter and showed it to him. The witness asked where they might get in touch with some of the members of the Haven family and they said they did not know anyone that could get in touch with them. They said they had not heard any more from the Havens than the letter. On this and subsequent occasions they discussed the property and the Bannons claimed a 50-50 share of the grain; that some of the property had been sold off and that they were holding the money for the. Haven family. When asked if the defendant or Charles had at any time spoken of the manner or cause of the Havens leaving, the witness answered “I think the first time that wo met the common talk was that Mrs.- Haven had become insane and they had taken her away. We did not dwell, very much on that, just a statement to that effect.” The latter part of October defendant paid some personal property taxes of the Havens and went to the office of the witness and asked whether or not he had heard from the Havens. The witness Stated “I have not,” and he said “If you hear from them, let me know.” That was about the 20th of October. The witness asked Bannon to let him know if he heard anything. Later, in January, 1931, the witness was on the premises with the sheriff, the state’s attorney, the county treasurer and Charles Bannon. Charles was pointing out to them how he claimed the crime had been enacted. Charles did not say that the defendant had anything to do with the killing.

Charles Breckner, a carpenter by trade, of Hastings, Minnesota, testified as to forming an acquaintance with the defendant on the 17 th of August, 1930. He had known the Haven family for about seven years. Albert Haven rented land belonging to Breckner and he transacted business with him regularly each year. This farm was east of the Haven farm and a little north. The Iiaven lease covered the year 1930. The witness came to the Haven farm on August 17, 1930, met the defendant and talked with him. When witness inquired fox the Haven family defendant said they had gone for a vacation and would be back most any day. Witness asked about crops and rent and defendant said he had charge of the farm under a contract from Mr. Haven. He said he had Breckner’s farm the same as Havens. Defendant gave Breckner permission to pitch his tent on the farm, which he did and remained there for twelve days. Defendant said the Havens might drive in most any day and said he (the witness) should-wait. Later on witness asked about the Havens leaving and defendant said they took them to Williston one morning about four o’clock early. “As I recall, lie said ‘we.’ The Court: Did he say ‘we?’ A. Charlie. The Court: Did he say ‘Charlie?’ A. Yes. Q. Did he say whether or not he was on the Haven place when they left ? A. Yes. Q. What did he say ? A. TI e said when they left they had quite a time to take them away. Q. Did he say anything about himself on the occasion ?■ A. No, I don’t think he did. Q. Did he say anything regarding the time he made the contract for the place ? A. Yes, he told me at that time that when they took them away they had quite a time that she wasn’t just about right you know, and they had quite a time taking her away. The Court: Did he say who had quite a time? A. The way I took him, him and the boy took them. Q. Do you remember whether he said ‘we,’ ‘they,’ or ‘I ? ’ He said ‘we’ at one time and the time they left them at Williston he said ‘Charlie said he had quite a time getting away.’ Q. Getting away from Williston ? A. Yes. Q. Did you have a conversation with James F. Bannon in which he told you when he got the contract ? A. Yes, he told me a contract from Mr. Haven, that the contract was.made that he was supposed to give me ¿ delivered at the elevator and he was supposed to take half of the balance. Q. Did he tell you when the contract was entered into ? A. The night before they left. Q. Where? A. At the house there. Q. Who made the contract ? A. Mr. Haven, he told me. Q. With whom ? A. Mr. Ban-non. Q. Tames F. Bannon, the defendant? A. Yes, sir. Q. How long before they -left for Williston ? A. He told me they left the next morning.” The witness said a little later on he got to talking with Charles Bannon and he told him that he was hired to take charge of the farm and the next day he (the witness) went up to the house and met the defendant at the pump and asked him again and he told the witness that he had the contract from Mr. Haven himself. He didn’t mention the date or the time that was the day before the Havens left.

Mrs. Ellen Breckner, wife of Charles Breckner, testified that she was a party to the first conversation between Breckner and the defendant. She overheard the first conversation, then they came to the car and she spoke with them, asked the defendant when the folks had left and he said “Early in April.” He said he was running the farm. He didn’t say directly to her when the deal had been made.

Elmer Bemele, who had long lived in the neighbox'hood axid had been ácqiiaixxted with the Havens and with the defendant since 3916 or 1918, testified he had talked with the defendant in Watford City in February, 1930, shortly after the Iiavens had “left.” He asked the defendant what he had been doing and “he said he had been pretty busy, he said, ‘with the chores on Mac’s place and on the Haven place and with moving.’ And then he said ho helped Charles at the place and he was at Haven’s while Charles was away. . . . He said he had been moving and doing chores on Mac’s place and on Haven’s place and then he was at Haven’s place helping Charles and he was there while Charles was away.” The witness was on the Haven place later in May to buy some barley, but the barley had wild oats in it and defendant suggested he-seed speltz. Then “Mr. Bannon told me that they were hearing from the Havens right along and that they were in Oregon and they could make use of money and I spoke up and told him that he was taking this means of getting the money, meaning the sale of the speltz. He says, ‘I might as well.’ ”

TIans Oakland testified that he had been acquainted with the Haven family since 1916; that he lived for the last three years a mile northeast of the Haven place; that, he had known the defendant for about ten years. During the harvest in 1930 he and the defendant operated a combine together, the witness furnishing the tractor and the defendant Haven’s combine. On Tuesday night, the 12th of February (Tuesday was the 11th of February), he came home from town and stopped in about dark. Charles Bannon and the defendant were in the barn. The witness had heard through Calkins that Mrs. Haven was crazy and had been taken to Williston the day before. He asked about Mrs. Haven and they said they had taken her to Williston on Monday morning. The witness would go to town with cream once or twice a week. He saw the defendant on the Haven place when he went by and talked with him a few times. When the witness and the defendant were combining together for about a week in September, 1930, he remembered one occasion when Mrs. Oakland asked Bannon “if he heard from Havens. ITe said, ‘Not lately,’ and my wife said, ‘I hope Mrs. Haven don’t come back if she is crazy.’ Mr. Bannon said, ‘You don’t need to worry, she won’t come back. She is in safe hands.’ Q. Anything else said? A. No, not at that time but later on, but when we were combining down on Haven’s place I asked him many times and he said, ‘No, not lately.’ I thought it was funny nobody — Havens wrote to nobody. Q. Not lately? A. lie said, 'Nod I said, Homebody must have 'heard or they got killed or something.’ He just laughed and lifted his shoulder, that is all he said.” He recalled the ■day in February, because Calkins was there on Monday and he went ■down the next day. (At a preliminary hearing of Charles Bannon this witness had testified as follows: “Q. Is there anything that you have in mind that I have not thought of, or don’t know, or haven’t asked you, that will in any way tend to throw any light at all upon the disappearance of the Havens or their present whereabouts ? Anything ? A. I ■don’t know. Q. The Bannons worked the place this year? A. Yes. Q. Openly and above board ? A. Yes. . Q. Did you ever have a talk with them as to how they happened to be in possession of that place? A. I did. Q. When? A. About a week after I heard the Havens left. Q. Who did you talk with? A. Both Charles and the old man Bannon. Q. Where? A. In Haven’s barn. Q. What was that conversation? A. Mrs. Calkins stopped at our place and told us about Havens leaving, so when I went to town, coming back I stopped in to find out. And then Charles told me what had happened; that they had to take Mrs. Haven away.”) He remembered that Charles Bannon told him that he had taken the family to Williston and had told him about the occurrence in the Haven home between himself and the Havens the night before he took them to Williston. “¡He didn’t say anything about his father, as far as I remember. He didn’t mention his father as being there but said he (meaning Charles) was there.” The defendant took part in the conversation on Tuesday. He couldn’t remember that James Bannon talked on Tuesday, but remembered ■Charles talking in James’s presence.

Harold Semple, who lived fourteen miles northeast of Watford City testified to his acquaintance with the Havens in their lifetime and with the defendant. Early in February he saw Charles Bannon on the Haven place. Ho couldn’t exactly fix the date. There was no one else there besides Charles that he knew of. He asked Charles where Haven was and how he came to be there. He said Haven had come over and got him and he had asked him to take them to Williston. He said that Mrs. Haven had gone crazy “and then I guess he spoke about taking them to Williston and he said he had left them on the depot platform ¡at Williston.” Asked when, he didn’t remember that he had said when btit he would take it that he meant the day before. In a further conversation the witness said Charles asked him if he would stay there ■during the evening and have supper and stay over night. Witness said he shouldn’t stay over night as he had a boy staying with him that lie hadn’t been leaving alone. He said Haven didn’t say where he was going to take Mrs. Haven and if anything should happen that he wouldn’t go any further than Williston and she should come back he would feel pretty nervous and he asked the witness to stay. Witness said if he felt there was any need he would stay, and he did stay that night. There was no one else there so far as he knew and he left the next morning. He was about the Haven place later in the spring a half a dozen times, but those times both Charles and James Bannon were present. He couldn’t fix the evening of the night when he stayed with Charles -within three days.

Alex Batió (referred to in Charles Bannon’s confessions as Alec, the Finn) was on the Haven place' on a Monday early in February. It was the Monday following the night of the disappearance of the Haven family. He went to see Mr. Haven. He went to the barn and hollered “Is nobody in?” knocked at the door of the house and hollered “Is nobody in?” received no answer, stepped in and looked around in the kitchen. “There was a cream separator on the west side and it looked like milked the cows. There is milk buckets standing on the floor pretty near full. And in the other room there was dishes on the table •but I couldn’t say sure it was dirty or clean. I think it was kind of funny.” He saw nobody there and couldn’t say hów many minutes he -was in the house but not very long. He looked in the stove to see if there was a fire and went back to the barn. The cattle and horses had been "fed, the manger was half full of hay. He didn’t see anything out of the way, walked back, got on his horse and rode away. It was about eight o’clock in the morning. He was there again in the afternoon around three o’clock and saw nobody, but he didn’t go in. Was there again on Tuesday morning about 10 o’clock and saw no one and on Tuesday afternoon at two or three o’clock. That time he saw Charles Bannon but not the defendant. Talked with Charles a little while “and he told us what happened, where Mr. Haven’s folks went.” When asked about the conversation he had with Charles he testified “A. I asked ‘Where is Mr. Haven’s folks?’ He say, ‘They went away.’ I say, 'Where they go V He say, 'I took them to Williston. Mrs. Haven went off her mind, and he told me I come stay and to take care of the chores and later on didn’t know what to do, and he hear from them later on what he got to do there.’ He say, 'Take care of the stuff' and he could have cream check what he milked the cows and take care of the calves and things the way it was.’ ” Nothing was said then about farming arrangements but later on he had another talk with Charles, which he narrated as follows: "A. Before spring but not very late. After that he told me he got a letter from Mr. Haven. He got a contract which they make. I ask what it was but I can’t remember what he say it was. He handed me this letter. I said 'I can’t read and write English, if you want me to know, read it to me.’ He pulled out letter and read it to me. It was a contract supposed to be he run this place.” He didn’t remember the first time he had seen James Bannon on the place. Ho hadn’t talked with him about the matter.

Charles P. Hunter, postmaster at Colton, Oregon, testified to an occasion, probably the first days of December, 1930, when James Ban-non came into a store, in the back part of which the jDOstoffice was located, and inquired for A. E. Haven. When Hunter told him that Haven did not live there the defendant explained that he had received a letter from the Haven boy that was mailed at Colton and said “I rented the Haven place or rather my son did.” The witness asked why he was so certain the Haven family came to Colton and he said ''Because I hauled them to the train to go to Colton, Oregon.” , He talked a few minutes with a Mr. Danielson, who also was present, and left. The Avitness supposed that Danielson likewise heard the conversation. He was a little ways off.

Alfred Danielson testified and, in narrating that part of the defendant’s statement quoted above from Hunter’s testimony, said ''He said they lived in Colton and he had had a letter from them and that the Haven family was supposed to live out there. But I told him I didn’t know anything about it. He said then that they had taken them to the depot and knew they had moved out to Colton. Q. What led up to that statement by Mr. Bannon ? A. He said that they, him and his son, was renting the place out there and that they had had a letter from them and, as I said, they had taken them to the depot. Q. To whom did he say that? A. To Mr. Hunter. I was listening in.”

■ There was testimony concerning the condition of the body of Albert TIaven by the undertaker who had examined it. Although it was in an advance stage of decomposition he testified to a rather minute examination which showed fractures of the skull so that it was pressed directly on the brain from a quarter to half an inch; also, that the upper maxillary was crushed and the teeth knocked out; that a thorough examination of both the skull and the torso failed to disclose any bullet wounds.

Eli Tvcden, a mail carrier, testified to a conversation he had had with James Bannon concerning the proposed occupancy by the witness of another house upon the Haven premises. In response to his inquiry the defendant said “the Havens had told him before they left not to let anybody in there because they didn’t know when they might return and when they did they would need it for themselves.”

On the body of Daniel TIaven there were found no signs of violence on the arms or lower limbs or the main part of the body. The skull showed a hole about yV of an inch in diameter. An examination of the body of Leland Haven disclosed that the left clavicle was broken and that there was a fracture of the skull with an indentation of the left parietal bone; also, a hole about IV of an inch in diameter. An examination of the skull of Mrs. Haven showed the soft part to be badly decomposed and showed a circular fracture of about two and one-half inches on the left side in front of and above the ear. There is no testimony of any bullet holes except as stated below in the confession of Charles Bannon.

The above evidence was all introduced as part of the state’s main case. The state also introduced a letter from the defendant to Charles Bannon postmarked at Oswego, Oregon, on December 2nd, containing the following:

“Dear Charles

Will drop you a few lines hoping you are well and getting along all right as this leaves mo at preasent waiting thair is nice weather hear only for a little rain i see by the paper thair is Bad weather Back thair Well Charles our friend Mr. Haven can not be found as yet the atorities of Cluchmes Co. has looked the country over looking for then they can not find any track of a family of thet name ever came hear I have Ben up to Colten and inquired all around the contrv

But no one ever herd of sutch a name thair is 101 inquires for havens when I got to Colten thay got it whair you brought then to Willeston in thair car and that is the last track that got of than how are you getting along with the stock arc you going to have plenty of feed Chales I got that slip that was in the paper that your mother sent to-Elmer if havens relations have taking over thair property see that thay pay for all feed But they probily have made som arrangement with you and look out and see that you get Paid for what you do thair was a letter in the postoffice at Colten from you to havens Mailed in Montana it will be returned well i will close for this time i remain

as ever Father goodby

excuse poor ritting for I cant see very well”

On a separate sheet in the same handwriting, but unsigned, was the following:

“now Charles watch your Sep and see that every thing is right and do what is right and then thair will be no com Back you no your Bisnes Better then any one els write and let me now how every thing is i will be looking for a letter from you every day it took me a weak to make the trip had very good look good cows are selling from $35 to 50 i will tell you more next time good By address your letters Generl Delivery Portlen Oregon and then I will get them

P. S. write at once for I may leav hear in a few days.”

While Charles Bannon was confined in jail, on two occasions he made admissions which were taken in writing by the deputy sheriff. These were introduced by the defendant. They read as follows:

“12-12-1930 • Chas. Bannon

“This letter that I have that says Colton, Oregon, and contents which you all know — this stranger wrote or dictated this letter and I traced over it. Started doing chores about 7 or 8 Sunday eve. Mr. ITaven, Dan and Chas. Bannon were doing the chores. There were one team and saddle horse in barn at time — 8 milch cows were in barn. It did not take us very long to do chores. Mr. ITaven separated the milk or part of it and I finished it. I carried the skim milk out and fed two calves. We had lunch after the chores were done. Mrs. ITaven cooked supper or we had hot meal. Mrs. did uot wash supper dishés, the dark man ate supper with us. lie showed up when I was feeding the calves.. I saw this man in 1982 in pool hall and at Ole Berg in 1928 when we-were threshing as I was working there at the time. I haven’t seen him since this deal. Mr. Haven appeared to know this man. He might have-called him by name but I did not hear his name. In their talk he seemed to be sore at Mr. Haven it seems as Mr. Haven had promised him work and instead hired me. He called the old man a bastard. This man slept with boys in bedroom. Mr. and Mrs. Haven slept on davenport. I slept with boys too. We went to bed at about 11 o’clock. Mrs. Haven killed the child and Mr. Haven buried it by the light of the lantern. This man showed me his gun when we were in the barn early in evening. My rifle was on my saddle hanging in barn. Daniel was shot first as he was milking cow. Leland was shot second. He was milking cow. He was second cow from Daniel. Fawcett backed in by harness and waited till Mrs. Haven came to barn. She called two or three times- and finally came in barn. As she came thru door I hollered ‘look out’’ and Fawcett shot her twice, once behind the ear and once in the forehead. Chas, was milking second cow east from drive way — -stranger was milking 5th cow east from driveway — Daniel was milking 1st cow west of drive way, Leland milking 3rd cow west. Fawcett came in-south drive way door, took rifle from Chas. Bannon saddle on first peg-east of door, then Fawcett moved to alley way or end of alley way on-west side of drive way — shoots Daniel in right temple. Leland stands-up at report of gun and Fawcett shoots him twice, once in forehead and once in side of face or right side of face. Five minutes after Leland was shot Mrs. Haven came to' gate by house and called Daniel, the-second time she came and called from behind or near grainery and called Daniel and no answer. She walked past the door and went back towards house and came back the third time and came in door to the-, smith. Fawcett was standing back of harness on pegs east of door. Fawcett shot her from behind and to her right. Think first shot hit her in back of head and shot her in forehead when she was about half way to house and her running and looking- back over her shoulder — she was looking over her right.shoulder, she went to house and fell inside of kitchen door. She was not dead when I got to the house. Mr. Haven came out of house and got just outside of yard gate when Mrs. II. was shot the third time. Mrs. ran past Mr. and stranger standing by manure pile near door of barn shot Mr. Haven with revolver, shot Mr. in back and when wo got up to him Fawcett hit him over the head with my rifle as he was not dead yet. Shot Mrs. Haven twice, once in barn and once on north door step. I shot Mr. Haven when he was at northeast corner of house, shot him in back, he had the 3 yr. old in his arms at time he got in house, was standing just south of cook stove and near door to dining room when I shot him the second time, it was in back or in head, the 3 yr. old was standing by him at the time, he ran in ■dining room. I killed him on a small rug that laid just northeast of ■cream separator. I killed the baby as it laid in baby buggy in front oí heating stove which would be west.

Mrs. — 2 shots and clubbed

Mr. — 2 shots and clubbed

Dan — 1 shot

Leland — 2 or 3 shots and clubbed

2 Babies were clubbed with gun bbl. as others were clubbed.”

“Chas Bannon

Dec.-- 1930./

Hog deal—

'“I bought 1 young hogs for — $28.00

” ” 10 head of cattle —

” ” 2 horses —

” ” 10 tons old hay —

$217.00

I gave him $265.00 cash money 4 days work at $3.00 per day 12.00

$265.00 -cash that

I gave Albert Haven this money Sunday eve about 3 or 4 o’clock we were sitting at table when I made the deal and turned over the money. Swenson boy was there at the time he was in other room playing with leland at the time Mr. Haven and I were making the deal. Daniel ask if I was going to rent the place and stay there. Mr. Haven answered him and said to keep still and not let nothing out. Next we talked about renting the place. Mr. Haven asked me if I could stay there a couple of months and work. I said I would stay and work a couple of months. He asked if $35.00 per month was too little and I said I wanted $50.00 per month and he said all right. We did not say any thing about when he would pay these wages. Mr. and Mrs. did not know which day they would leave but talked of leaving on Feb. 10th. That was Monday morning, at this time they had 3 suit cases packed. Mr. Haven got up first, built fires, he came in room, shook I and Daniel said for us to go out and do chores said he would help Mamma with breakfast. Daniel and I went to barn to do chores. Fed three saddle horses and team and gave the cows some alfalfa hay. Then we started to milk. I was milking 2nd cow on east side of drive way in barn, a white cow. Daniel was milking first cow on west side of drive way. We had milked some of the cows before this time. But these were the cows that we were milking when Leland came to barn. Leland had a gallon pail in his hand, he stepped over to Daniel and said, give me some milk for breakfast. Daniel said go and milk some for yourself. I got thru with my share of the cows, or I thot so at least. Daniel said you better milk that other cow you Son of a Bitch. I wns laughing and Danny laughed when he said this to me. I stepped back and took a 25-20 rifle off of side of saddle horn. I said ‘What did you say’ and he called me the same name again. I pointed the gun at him,, and did not pull the trigger. Danny was sitting and looking at me at time, the gun went off and shot him in the right temple killing him dead. I walked over by him and seen that he was dead. Then Leland jumped up and seen what had happened, he pulled his 22 revolver out of pocket and shot at me twice, one bullet striking post at side of feed box and second bullet striking board on brace above manger at side of feed box, this being first stall on east side of driveway, Leland standing-in alley way with one leg in manger when he fired the first shot. Then he came on out in drive way and fired his second shot. I fired about same time at him, striking him in forehead. He fell on his side — right side — and raised up on his elbow, just then Mrs. Haven came to barn, she walked in part way and Leland was getting up again. He had his gun in his hand and was going to shoot at me again. He stood up again and I fired second time striking- him in chest on right side. Then Mrs. Haven was wild. I could not blame her. I would have been the same-way if it had been my father, mother or children. Then she started coming for me and screaming. I pointed my gun at her and said, for her to stand where she was and I would not harm her. She stood there •crying and screaming till Mr. Haven came. When Mr. Haven came there was a pick lying by manure pile. lie took handle out Of pick. He came in barn and he and Mrs Haven came at me. I took gun off of them and tried to get away from them thru north door in drive way. Mr. Haven said 'he won’t get away from here alive.’ I did not get to door till Mrs. Haven caught me by coat tail when I was half way thru door, Mr. Haven striking me with pick handle on right shoulder. It was blue and swollen for quite a while afterwards. I fought with them till I could get to door Mr. Haven kept backing up at this time. Mrs. Haven got past me as I did not get out of north door. She got out of south door, Mr. Haven and I still fighting with gun and pick handle. I think Mr. Haven called to Mrs. Haven to get gun. She started for house and looking back towards barn — then is when I shot striking Mrs. Haven on forehead. She staggered but kept on going. I shot again striking her, I don’t know where, and she fell in door way to kitchen, her body lying in house. Then I started to go up there or to the house and Mr. Haven started fighting again and he broke and started to run for house and I shot him in back and ho only got to gate. I did not hit him with gun after he was down. As I walked past him he never moved. He must have been dead at time. I walked on into house to where Mrs. Haven was lying on floor. She was not dead yet. She said ‘Can you pray’ and I said 'Yes,’ and she said 'God help us’ and she ■died. I did not pray at time, but did afterwards. It was after I had killed all of them and had them put away in shed at side of barn. After Mrs. Haven died I killed babies. I killed Charles first, he was in front Toom screaming. I did not know what I was doing. I was afraid some one would come around, so I killed them, the baby the last. I don’t remember whether I shot or clubbed them to death, the baby in davenport bed at the time. I next dragged all in to cow shed but Mrs. Haven, .and I dragged her to cow' shed with the Haven saddle horse, the black one. I covered them all up with hay in the mangers of barn. I got Mrs. Haven in manger on east of cow shed. After I covered her with hay I buried the baby in straw pile where the officers found it. Next I mopped up floor and all blood in house and on step at front door. Then I took shovel and scraped and shoveled all snow where there was blood on it, I threw it in garden. Then I went to cow shed and buried Mr. Iiaven, Daniel and Leland at same spot where officers found their bodies in cow shed. Then I went in and ate some, did not build any more fire, the coffee was warm yet that they had prepared for breakfast. Then I went back to cow shod and dug a deep hole for Mrs. Iiaven and Charlie and while I was digging Alex, the Finn, came and hollered around the barn and went in to the house. I was in cow shed and was watching him thru crack in door. I believe Fassett was there before the Finn came. I saw Fassett as I was burying Mr. Haven and the boys. When I was thru burying them Fassett came back with load of hay. This was about 2 o’clock P. M. While I was out in shed he had put his coffee pot on stove so he ate his lunch, put his team in barn and watered them. Tie stuck around and helped me wash the cream separator and he hitched up his team and went home. After Fassett started honjc I did up the chores and then I went home over to my fathers four miles northwest. Dad and Mr. Morrison were there. I told Dad I was going to work for Haven for a couple of months and I had taken Haven’s family to Williston. I told them that I was to get $50.00 per month and that I had rented the farm. I told this to Dad in the presence of Mr. Morrison. We were all three out side of the house when I told Dad this. Morrison went back to town. Dad and I had supper. I helped Dad with chores and milking, then I got on saddle horse and went back to Haven home. Then I went to bed on davenport, got up next morning, done chores and had breakfast. This morning I took bed clothes which T had put in to a roll in closet. I burned them between toilet and bunk house. I also burned at this time three suit cases, one duck coat. This time is Tuesday’ forenoon. In afternoon Ilans Oakland came. Tic stopped in, said he had heard about the Havens leaving. I told him I had taken them to Williston. He wanted to know what was the matter. I told him Mrs. Haven had one of her spells again. He went homo, did not have much to say. I had something to eat then. It was a pretty late dinner, so I done up the chores for the night. There is one thing I forgot to say about that before I buried Air. Iiaven I took from his hip pocket $265.00 which I had paid to him on Sunday afternoon for cattle, hogs, horses and hay. Tuesday night Shorty Semple came from town, stopped in, wanted to warm up. I told him to put his team in barn so he did. Tie stayed all night with me. I told him the same story I told Ilans Oakland. I said I did not care to stay there alone. Semple went home the next morning after breakfast. I stayed alone for a week and the only one that came around was Fassett when he came after another load of hay. I went over to see Dad a couple times that week and I lied to him again and told him I had rented the place. He told me he intended to drop the McMaster place and would work with me if I wanted him to. I said ‘all right.’ I kept telling him I had it rented and everything. Father had to stay and take care of the McMaster stock till Morrison, the man who had rented the place, could get there. Dad and I drove back and forth between the two places for at least a week doing the chores at both places. Dad stayed with me nights on Haven farm. During this week there was one night Morrison came back with Dad ag there was no coal at McMaster place.

We three got up next morning early. We caught the McMaster team for Morrison to use. I think Morrison got coal and got his family out from town. From this time on Dad and I were together on Haven farm. During the week that Dad and I traveled back and forth between these two places we brought over Dad’s cattle and pigs and hay and feed.

I lied to Dad all the time. I always told him that they went toColton, Oregon. Dad talked of going west from the time he moved from the McMaster place. He always worried about me not hearing from the Haven family and always there was something wrong. He said when he left in a laughing way that he would send them back to me. Father left for the coast on Sunday, I cannot say what date. About 5-days after Dad left I moved the body of Mrs. Haven and Charles. I done this in night. The tunnel where I put their bodies has always been there under them white rocks. I was intending to move all the bodies after Dad left but did not got a chance. I. used a team and wagon to move their bodies. It was a hard job. The reason I did not get all of Charles I could not find all of him. I had their bodies covered with hay while I was moving them. I moved them between 7 and 8 o’clock in evening. The rocks where I put the Mrs. and Charles are near no trail and away back in the hills there.

This last summer Dad and Mother would be talking when I came in they would stop. I do not know what they were talking about but they would watch me just as much as to say that they were not so sure that I was telling the truth about the Iiaven family. Mother at one time had the letter that I have confessed to writing and which I said I had gotten from Colton, Oregon, from Daniel Iiaven. She would look at letter and then at me and said ‘are you sure you got this letter from Havens or is not this your writing.’

This is the only time she said .anything about it till after I was arrested.

I had cattle in the shed over the bodies all winter and in the summer I had it nailed up tight. Father was not in shed only when we were castrating calves and dehorning them. I don’t think Dad or Mother ever noticed the smell around the cattle shed. .1 did not clean out the manure in shed because I thought it might expose the bodies. I did not use lime on any of the bodies.

There was a pair of overalls that I had on when this deed was committed .that I burned with the ITaven clothes. My overall jacket had some blood on sleeve but I kept on wearing it. I did not change any paper on the wall of the Iiaven house. I did change the furniture around, put the cupboard in front room and put the kitchen cabinet where there was more light. There is still some blood on the base of the cook stove and little lid on side that comes up.

I did not make a trip with the Haven car on these days that was testified to in my hearing at Watford. The Haven family used the cat Saturday night and were in Watford at Skadrons store. I used the Haven-to go to get my mother at the Kora school twice. Went to Watford once, was pulled in by Parks. The blood in rear of ITaven car was caused by dressed pigs which I hauled to Williston. There were 4- hogs — dressed—I sold 1 hog to Hogans Cafe. I sold 2 hogs to Model Cafe. The 4th hog I sold to restaurant in old Williston Hotel. These hogs were all Dad’s and were sold just before the 4th of July.

My father or mother know absolutely nothing about me killing the Haven family only what I have told her today. I have told this story to Earl R. Gordon, deputy sheriff, of Williston, N. D., with my own free will-and with the understanding that the evidence can be used against me in courts. There has been threats of violence used against me here at Williston, N. D., or at Watford, McKenzie Co.

I am sorry I lied to everybody and officers, as they seemed to be helping me and was only wanting the truth. I did not realize it then but I do now.”

Later on in January Charles Bannon made the following confession, written by himself, which was introduced by the state without objection :

“I left Sunday morning about 10 o’clock and visited with Mr. and Mrs. Haven until the boys come home. They come home about 2 and 3 o’clock in the afternoon and the Swenson boy was with them. Dan came in first, then Leland and Swenson next. Mrs. and Mr. Haven stay in dinning room talking to me, and the Swenson boy and Leland in the front room. Dan came in and talked to the old folks and me awhile then went out to clean the barn then Leland and Swenson went out and started to help Dan clean the barn and Mrs. Haven says to Albert go out and tell that kid to go home and let the boys do there work, they have had a good time at the party let them work now and he says Oh let them play they will get it done any way so she got up and went out she must have said something because he went home, he went home between 4= and 5 o clock, that kid comes here for his meals every Sunday but he has got his last meal here they had it about done then they come in and we had supper listened to the radio a while then Mr. Haven and I went out to milk and finish up the chores when we was doing the chores Mr. Haven says what will you take to work awhile for me I says Oh I dont know what will you give me. Well we will talk to Mrs. Haven when we go in. so we went in and sat down while Danny turned the seperator and Haven says Charles says he will work a while But dont know what he is worth. She says it should be worth $35.00. But I did not think so so they decided to give me what I asked $50.00 they neaded me for around 2 months, so after we listened to the radio awhile I said Well I better go home Know Mr. Haven says you can stay all night, for we would like to have you start in the morning so I did. In the morning Haven called mo and Dan and said well get up and start doing up the chores and you get up Leland and get ready for school so me and Dan got up and went out to milk and do the chores up while Mrs. and Mr. Haven got breakfast While Dan and I was milking Leland came down and asked Dan for some milk. Dan says milk your own milk so Leland did start to milk one of the cows witli his tin pail I had milked my share any way my pails was full Dan saying in a joking way you son of Bitch and got my gun from my saddel and shot Dan. seeing what happened I got scared and shot Leland and Leland did not drop then I shot again then he did I then waited for Mrs. and Mr. to come out I was so scared some one might come But Mrs. Iiaven had called the boys a. copel of times already then Mrs. Haven come out again and come into-the barn I was standing back by the door by the harness and she walk by me I ran up behind her and she heard me and turned around, and I.shot her in the forehead some where she made a run at me saying you little devil and I got out of her way she started riming to the house and I after her then Haven come out what the matter what the matter and I shot him in the head and finished her with another shot on the-step and hit her with my gun on head Iiaven got in the house and grab up the next lilted one But my mind seem to be sacared and I shot him and finished the little ones then I draged Haven out of the house and he was heavy But I got him down to a straw pile where the baby was. when they got it and Mrs. Haven I draged there too But the boys, was in the barn yet I took them back in the hay yard and covered them over with hay the babys was with the rest then I cleaned up the floor and step and the path where Mrs. Haven bleed and then I went in the-cow shed thinking of a place to bury them whil I was in there Alec the Finn come went in the house because I heard the door slam he walk by the granery and I see him then went. I then went in the house and seen the coast was clear.

Well I had every thing covered up then I went home and talked to Dad awhile and told him I was working for Haven and that I had rented the place so then I went back and went in the house and I see slim had been there But I did not now who at the time I then started to wash up some dishes and the seperalor and dad come over with Lie team and slay then slim come back with his hay sloped watered put his team in the barn come up and showed me how to wash the sep. dad finished the lunch I had started we all eat then slim went home I don’t remember if dad stayed all night or went home But any way tuesday I hurried the boys and Mr. Iiaven then in the afternoon I worked late I did the chores eat and started to- finish up and dig a hole for Mrs. Haven and baby just as I had finished up shorty Sempel came I was in the cow barn and he says what are you doing here so late I said there is a lot of chores to do here I tell you then shorty went in the house with me said I am a little chilly I warm up and go so he warm up .and said I got to go now. But I told him stay all night and he did

I told him that I was scared of Mrs. Haven coming back, because I told him about the same story I told the rest all a lie But he shade. went next morning I worked around there till about 2 oclock then dad come over and we did up everything there fed watered milked then went over to Mac place and finished up the chores there ate supper talked a while then went to bed I got up early and helped dad milk then eat then went over to Havens to do up the chores again before I went dad said I wont be over tonight you can do up everything stay there and come over here again if your scared But I did not go home that night I stuck there all day until 3 oclock then went over to shortys told him I had got a letter from Dan telling me to go ahead and put the -crop in as we planed that which is a lie also I shad there all night went home about nine oclock done up every thing again then dad and I went back for about a week then we moved on the place when Morrison to — charge of Mac.”

During the time the defendant was upon the ITaven place, after the murder in question, grain was sold to the aggregate amount of over $900 and the proceeds paid to the defendant, and, according to the .sheriff’s testimony, when he was arrested in Oregon he had upon his person postal savings certificates payable to himself and travelers’ ■checks aggregating over $900. . These he said belonged to the Havens and he said he was looking for Mr. Haven so that he might settle with him.

The defendant, testifying in his own behalf, stated that Charles had left the McMaster place on Sunday afternoon about two o’clock; that he next saw him Monday afternoon between two and three o’clock on the McMaster place; that just he and Oharles were present. Charles stated that he was going to work for the Havens; that he had taken the family to Williston; that the Havens had had a row the night before which arose over the playing of the radio. He said they had left for Williston about three o’clock in the morning; that on the way Mrs. Haven wanted to get out of the car and that Charles and Mr. ITaven held 'her in. He said he Had arranged to work for Mr. ITaven; that he was to get $50 a month and that he had given him a cow as part payment and the first month’s cream check; that Charles left alone about four o’clock; that the next time the defendant saw him was on Wednesday. The witness went from the McMaster place to the Haven place with a team and sleigh and got there about one o’clock; that he stayed until after supper; that Fassett came while he was there around two o’clock and stayed until nearly dark; that that was the occasion on which Fassett showed them how to clean the cream separator; that after helping them milk he went back to the McMaster place arriving there somewhat after seven o’clock. .• He moved on to the Haven place some time in the forepart of March. He' denied that he ever told any one he took the Havens to Williston.' He denied having told other persons that he had participated in a disturbance at the Haven home just preceding the disappearance of the family and denied being on the Haven place Sunday or Monday, the 9th and 10th of February.

The only question argued on the appeal is the sufficiency of the 'evidence to support .the verdict. Counsel for the appellant concede that the evidence is sufficient to support a conviction as accessory after'the-fact, but forcefully argue that it is insufficient to show he participated in the homicide. The basic contention is that the evidence does hót show that James Bannon was present upon the Haven farm at the timé of the murder of Albert E. Haven. .It is further argued that -the. fevh deuce shows the crime to have been committed substantially as detailed in the last confession of Charles Balmon,"and since this account of the crime is one reasonably to be deduced frorp all the evidence, it must,, be said, as a matter of law, that the evidence does not prove the guilt of the defendant beyond a reasonable doubt-

The evidence fixes the time of the homicide as being early in the. morning of the 10th day of February,-1930. There is abundant evi-, dence that-Charles Bannon was on the place at that time; that he had come there .alone-the day before and had remained that night and the following day, except for a trip to the McMaster place which he says he took on the 10th, after the crime was committed. There is ample, evidence that James Bannon was on the'Haven place on.the 10th of' February. Fassett testified that he was! there between ten and eleven o’clock in the forenoon ánd found no ¡one present; that he'went to the. house'; that there was .a low fire, in the síoké and.that'he jmt in s'ome coal; that he returned between one and two o’clock in the afternoon; and that at that time Charles Bannon was in the barn and James Bannon in the house. The latter was preparing lunch. He testified that he had lunch with both James and Charles Bannon and that he assisted them in cleaning the separator, with which he was familiar on account of having worked on the place before.

In the last confession, which was written by Charles Bannon in his own handwriting, he stated “Well I had every thing covered up then I went home and talked to Dad awhile and told him I was working for Haven and that I had rented the place so then I went back and went in the house and I see Slim had been there. But I did not now who at the time. I then started to wash up some dishes and the separator and dad come over with the team and slay then Slim come back with his hay sloped watered put his team in the barn come up and showed me how to wash the sep. Dad finished the lunch I had started we all eat then slim went home I dont remember if dad stayed all night or went home but anyway Tuesday I hurried the boys and Mr. Haven. . .

This confession corroborates Fassett’s testimony as to the presence of James Bannon on the place in the early part of the afternoon of February 10th. James Bannon himself testified to Fassett’s assistance in cleaning the separator, but he placed the event at around two- o’clock on Wednesday instead of Monday.

In an earlier confession Charles Bannon, in describing the events immediately following the killing, stated “Then I went in and ate some, did not build any more fire, the coffee was warm yet that they had prepared for breakfast. Then I went back to co^v shed and dug a deep hole for Mrs. Haven and Charlie and while I was digging Alex, the Finn, came and hollered around the barn and went into the house. I was in cow shed and was watching him thru crack in door. I believe Fassett was there before the Finn came. I saw Fassett as I -was burying Mr. Haven and the boys. When I was thru burying them Fassett came back with load of hay. This was about 2 o’clock P. M. While I was out in shed he had put his coffee pot on stove so he ate his lunch, put his team in-barn and watered them. He stuck around and helped me wash the cream separator and he hitched up his team and went home.” He follows this with a statement to the effect that he then went over to his--father’s house and that his father and a. Mr. Morrison were there. Since the testimony does not show any other occasion when Fassett assisted in cleaning the separator and as Fassett’s evidence and Charles Bannon’s confession both refer to this incident as taking place on Monday, the 10th, and Janies Bannon testifies to the incident but places it on Wednesday, there is ample basis to support the conclusion that James Bannon was on the Haven place on Monday.

There is another circumstance of some moment which was brought out in Fassett’s testimony. He says that when he was on the place in the morning there was no automobile there, but when he returned in the afternoon Haven’s model A Ford sedan was there and from its appearance he determined it had been used. Since Charles Bannon stated that he was on the place and saw Fassett when he was first there in the morning, the Ford sedan must have been in the possession of another at that time, if these statements be true. This is a circumstance pointing to the participation of more than one person in the crime, and the fact that James Bannon was seen on the place when the car was observed, in the afternoon showing evidence of recent use is an evidentiary circumstance connecting him with the crime.

The general circumstances in relation to this crime are such as may well give rise to the conviction that it was the work of more than one person and that the motive was to supplant the Havens in the enjoyment of the property which they had accumulated. There is abundant evidence that- the appellant entertained or shared such motive. He was the one who obtained the fruits of the crime in so far as they were realized. True, he claims it was his purpose to account to the Havens for such property, but he was exercising rights with respect thereto that did not rest upon any relations he sustained with them and he converted the property into a form admitting of its personal enjoyment by him had he not been apprehended. The adequacy of his explanation to disprove this apparent motive was clearly for the jury.

Leaving to one side those parts of the confessions of Charles Bannon in which he assumes sole responsibility for the crime,-the circumstantial', evidence of the defendant’s guilt is such that we cannot say it does not warrant the jury in finding him guilty beyond a reasonable doubt. Knowing how the spirit of braggadocio sometimes leads a depraved mind to' glory in a horrible deed and aware of that instinct which leads, members of a family to protect each other at all hazards, the jury was, not bound to accept as an adequate explanation of this crime the story told by Charles Brannon. They were at liberty to disregard as much of his confessions as they thought to be unreasonable and uncorroborated. Then, disregarding them, they could consider the remaining facts and circumstances in the case. If these be such as to point to the guilt of the defendant beyond a reasonable doubt and to exclude every reasonable hypothesis except that of his guilt, the evidence meets the tost of legal sufficiency. See State v. Gummer, 51 N. D. 445, 200 N. W. 20. They were well warranted in considering the statements made by James Bannon to various witnesses which indicated that he was present when the Havens disappeared. They could consider the character of the wounds found upon the bodies of Albert Haven and Mrs. Haven, showing skull fractures of considerable size, indicative that they had met death in a way different from that detailed in Charles Bannon’s confession, and indicative of the participation of more than one person in the crime. They could consider the fact that gain was the apparent motive fox the crime and that the defendant, was the principal beneficiary. They could consider the fact that in accounting for the disappearance of the Haven family to various persons this defendant assumed the role of an actor in the events leading to that result. They could consider the fact of his departure from the community when serious public concern as to the disappearance of the .Haven family became manifest. The adequacy of the defendant’s explanation of all of these circumstances was a question for the jury to consider in light of the evidence which raised an issue of veracity between the defendant and the various witnesses, both as to his presence upon the Haven farm on February. 10th and as to his statements accounting for the disappearance of the ITaven family. We are of the opinion that the evidence is sufficient to support the verdict.

It follows that the judgment appealed from must be affirmed. It is so ordered.

Christianson, Ch. J., and Burke, Nuesshe and Burr, JJ., concur.