MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Defendant was charged with the murder of George Burrell in Teton county on September 20, 1932. He was convicted of murder of the first degree and sentenced to be hanged. He has appealed from the judgment and from an order denying him a new trial. His counsel predicates error in overruling his motion for change of place of trial based upon local prejudice. Defendant’s motion was supported by the affidavit of his counsel, stating in effect that defendant is without friends or relatives in Teton county; that George Burrell was a cripple, exciting the sympathy and pity of acquaintances; that Burrell was widely known and highly respected; that affiant has interviewed many people in and near Teton county, and
that they reported to him that the people were excited and wrought up concerning the crime and were up in arms against the defendant; that they were demanding the extreme penalty, and that some stated there was not a chance for him to get a fair and impartial trial; that, in order to avoid mob violence, defendant was removed from the Teton county jail to the jail of Cascade county.
Several newspaper articles were attached to the affidavit which gave the revolting details of the murder, and in some of them suggestion was made that the crime demanded the death penalty. In others an account was given of a confession made by the defendant to undersheriff J. L. Billings. In at least one of them reference was made to a finger-print expert obtaining evidence against the defendant.
It would serve no useful purpose to set forth in detail matters referred to in the newspaper publications; suffice it to say that in one of the articles, chiefly relied upon, appeared the following: “It was deliberate murder and while we naturally loath to sit in judgment of our fellow men, yet the sentiment here is one of hope that the maximum penalty prescribed by law will be accorded. It is not a time for technicalities and hair-splitting distinctions, though, of course, the accused should be given a fair trial. Mr. Burrell was so well known, esteemed, and in a sense pitied, that it is but natural that sentiment here should be very strong against the murderer. But it is necessary in the interest of all society that legal procedure hold sway, and there is every evidence that justice will prevail.”
In one newspaper article the suggestion was also made that ‘ ‘ a hemp-stretching party will be in order. ’ ’
In opposition to the motion, the state filed thirteen affidavits, some of which were by candidates for public office who had talked with people in all parts of the county, and they all stated that, while there had been some feeling against the defendant shortly after the crime, the feeling had subsided, and that they were unable to find any prejudice or bias on the part of the people which would prevent the securing of a fair and impartial jury.
The record discloses that thirty-four jurors were examined; one was excused for sickness; one because he was not a taxpayer; one because he was a witness; and one for having conscientious scruples against the death penalty. Only four were excluded for having formed an opinion concerning the merits of the case; the others, not serving, were excused on peremptory challenges.
An application for change of place of trial in a criminal case is addressed to the sound discretion of the trial court, and, unless there has been shown a clear abuse of discretion, its ruling will not be disturbed.
(State
v.
Davis,
60 Mont. 426, 199 Pac. 421.) And the fact that but few talesmen were examined in order to secure a jury goes a long way in overcoming the charge that the court abused its discretion by refusing to change the place of trial.
(State
v.
Bess,
60 Mont. 558, 199 Pac. 426.) On the record we are not able to say that the court abused its discretion in refusing to change the place of trial. (Compare
People
v.
Yeager,
194 Cal. 452, 229 Pac. 40;
State
v.
Hoagland,
39 Idaho, 405, 228 Pac. 314;
State
v.
Whitfield,
129 Wash. 134, 224 Pac. 559;
Gentry
v.
State,
11 Okl. Or. 355, 146 Pac. 719;
Johnson
v.
State,
35 Okl. Cr. 212, 249 Pac. 971;
People
v.
Mabrier,
33 Cal. App. 598, 165 Pac. 1044.)
The next contention is that the court erred' in admitting in evidence the confession made by the defendant. In general, the confession was to the effect that defendant, at about 11:35 on the night of September 20, took a piece of two-inch galvanized pipe about two feet long, and an insulated telephone wire from a barber-shop near the place of business of the deceased, went into Burrell’s place of business, and, while Burrell was fixing a calendar on the wall, he struck him on the back of the neck with the pipe. He then turned out the lights and dragged Burrell back of a screen which stood at the end of the counter. He then took the money from the cash register, went behind the screen, found Burrell groaning, and tied the wire around his neck. He returned the pipe to the
barber-shop. Later he went to his room, placed the money in a sock, and hid it under the bathtub.
The record, with respect to the manner of obtaining the confession, shows that defendant was held in jail in the town of Choteau from September 21 until nearly noon on September 24, during which time he denied any knowledge of the crime. On the night of September 28, arrangements were made to have the defendant taken to the jail at Great Falls for questioning. While the defendant was held in the jail at Choteau, a sock containing money was found in the hotel in which defendant roomed at Choteau. This was found concealed under the bathtub. Billings, the deputy sheriff, pursuant to the arrangements made to take the defendant from the jail at Choteau to the jail at Great Falls in company with his wife, left Choteau with the defendant, and, when about twenty-two miles from Great Falls, the deputy sheriff told him, there were two things he wanted to know, namely, where he got the sock, and where he got the wire. The defendant then asked Billings if the inquest had been held, and Billings told him the deceased had been buried the day before. The defendant then told Billings he would tell him when they were alone. Upon arriving in Great Falls, and after the defendant was placed in jail at that place, he related to Billings in detail his connection with the crime. About two hours later he repeated in detail the same story to Mr. Packer, county attorney of Teton county, in the presence of Billings, Art Jardine, deputy county attorney of Cascade county, and a stenographer.
It was shown that, before the defendant made the statements to Billings, Billings had said to him, “I have saved your neck,” and also stated to the defendant, after he' promised to tell when alone, that “it would not hurt him any.” But, when the statement was repeated by defendant in the presence of Mr.
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Defendant was charged with the murder of George Burrell in Teton county on September 20, 1932. He was convicted of murder of the first degree and sentenced to be hanged. He has appealed from the judgment and from an order denying him a new trial. His counsel predicates error in overruling his motion for change of place of trial based upon local prejudice. Defendant’s motion was supported by the affidavit of his counsel, stating in effect that defendant is without friends or relatives in Teton county; that George Burrell was a cripple, exciting the sympathy and pity of acquaintances; that Burrell was widely known and highly respected; that affiant has interviewed many people in and near Teton county, and
that they reported to him that the people were excited and wrought up concerning the crime and were up in arms against the defendant; that they were demanding the extreme penalty, and that some stated there was not a chance for him to get a fair and impartial trial; that, in order to avoid mob violence, defendant was removed from the Teton county jail to the jail of Cascade county.
Several newspaper articles were attached to the affidavit which gave the revolting details of the murder, and in some of them suggestion was made that the crime demanded the death penalty. In others an account was given of a confession made by the defendant to undersheriff J. L. Billings. In at least one of them reference was made to a finger-print expert obtaining evidence against the defendant.
It would serve no useful purpose to set forth in detail matters referred to in the newspaper publications; suffice it to say that in one of the articles, chiefly relied upon, appeared the following: “It was deliberate murder and while we naturally loath to sit in judgment of our fellow men, yet the sentiment here is one of hope that the maximum penalty prescribed by law will be accorded. It is not a time for technicalities and hair-splitting distinctions, though, of course, the accused should be given a fair trial. Mr. Burrell was so well known, esteemed, and in a sense pitied, that it is but natural that sentiment here should be very strong against the murderer. But it is necessary in the interest of all society that legal procedure hold sway, and there is every evidence that justice will prevail.”
In one newspaper article the suggestion was also made that ‘ ‘ a hemp-stretching party will be in order. ’ ’
In opposition to the motion, the state filed thirteen affidavits, some of which were by candidates for public office who had talked with people in all parts of the county, and they all stated that, while there had been some feeling against the defendant shortly after the crime, the feeling had subsided, and that they were unable to find any prejudice or bias on the part of the people which would prevent the securing of a fair and impartial jury.
The record discloses that thirty-four jurors were examined; one was excused for sickness; one because he was not a taxpayer; one because he was a witness; and one for having conscientious scruples against the death penalty. Only four were excluded for having formed an opinion concerning the merits of the case; the others, not serving, were excused on peremptory challenges.
An application for change of place of trial in a criminal case is addressed to the sound discretion of the trial court, and, unless there has been shown a clear abuse of discretion, its ruling will not be disturbed.
(State
v.
Davis,
60 Mont. 426, 199 Pac. 421.) And the fact that but few talesmen were examined in order to secure a jury goes a long way in overcoming the charge that the court abused its discretion by refusing to change the place of trial.
(State
v.
Bess,
60 Mont. 558, 199 Pac. 426.) On the record we are not able to say that the court abused its discretion in refusing to change the place of trial. (Compare
People
v.
Yeager,
194 Cal. 452, 229 Pac. 40;
State
v.
Hoagland,
39 Idaho, 405, 228 Pac. 314;
State
v.
Whitfield,
129 Wash. 134, 224 Pac. 559;
Gentry
v.
State,
11 Okl. Or. 355, 146 Pac. 719;
Johnson
v.
State,
35 Okl. Cr. 212, 249 Pac. 971;
People
v.
Mabrier,
33 Cal. App. 598, 165 Pac. 1044.)
The next contention is that the court erred' in admitting in evidence the confession made by the defendant. In general, the confession was to the effect that defendant, at about 11:35 on the night of September 20, took a piece of two-inch galvanized pipe about two feet long, and an insulated telephone wire from a barber-shop near the place of business of the deceased, went into Burrell’s place of business, and, while Burrell was fixing a calendar on the wall, he struck him on the back of the neck with the pipe. He then turned out the lights and dragged Burrell back of a screen which stood at the end of the counter. He then took the money from the cash register, went behind the screen, found Burrell groaning, and tied the wire around his neck. He returned the pipe to the
barber-shop. Later he went to his room, placed the money in a sock, and hid it under the bathtub.
The record, with respect to the manner of obtaining the confession, shows that defendant was held in jail in the town of Choteau from September 21 until nearly noon on September 24, during which time he denied any knowledge of the crime. On the night of September 28, arrangements were made to have the defendant taken to the jail at Great Falls for questioning. While the defendant was held in the jail at Choteau, a sock containing money was found in the hotel in which defendant roomed at Choteau. This was found concealed under the bathtub. Billings, the deputy sheriff, pursuant to the arrangements made to take the defendant from the jail at Choteau to the jail at Great Falls in company with his wife, left Choteau with the defendant, and, when about twenty-two miles from Great Falls, the deputy sheriff told him, there were two things he wanted to know, namely, where he got the sock, and where he got the wire. The defendant then asked Billings if the inquest had been held, and Billings told him the deceased had been buried the day before. The defendant then told Billings he would tell him when they were alone. Upon arriving in Great Falls, and after the defendant was placed in jail at that place, he related to Billings in detail his connection with the crime. About two hours later he repeated in detail the same story to Mr. Packer, county attorney of Teton county, in the presence of Billings, Art Jardine, deputy county attorney of Cascade county, and a stenographer.
It was shown that, before the defendant made the statements to Billings, Billings had said to him, “I have saved your neck,” and also stated to the defendant, after he' promised to tell when alone, that “it would not hurt him any.” But, when the statement was repeated by defendant in the presence of Mr. Packer, Art Jardine and the stenographer, the defendant was specifically advised that any statement he made might be used against him in a criminal trial, and he was advised that he did not have to make any statement if he did not want to. There were no threats made, nor was there any promise or
hope of reward held out to him. The statement was reduced to narrative form, and three or four days later Mr. Jardine presented it to the defendant and told him he would like to have him sign it, but that he did not have to if he did not want to. Defendant stated to Mr. Jardine that the statements in his confession were true, but that he did not wish to sign it. Later Dr. McGregor presented the same written confession to him in the presence of two other witnesses. He read it for twenty or thirty minutes and then signed it. The confession itself reads: “I make this statement free and voluntarily without any threats being made against me nor any promises of any kind made to me, and knowing full well that this statement can be used against me. I committed the offense because I was hungry and broke. I had not eaten for two days and I was desperate and hungry. When I tied the wire around Burrell’s neck, I hardly knew what I was doing, and I was desperate and crazy.”
The confession was admissible under the rules announced by this court in
State
v.
Dixson,
80 Mont. 181, 260 Pac. 138, and the cases therein cited, and a further discussion of the law applicable is unnecessary here.
Error is assigned in denying the motion for new trial. It is claimed that the juror Marcus Johnson was not qualified to sit as a juror, for the reason that his name did not appear upon the last tax roll of Teton county. This fact is made to appear by affidavit produced after the trial. The court properly held that this was not a ground for a new trial, in view of the holding in the case of
State
v.
Danner,
70 Mont. 517, 226 Pac. 475, 476, wherein it was said: “If a defendant does not avail himself of the privilege of examining into the qualifications of prospective jurors before the jury is sworn, he may not assign a juror’s incompetency as ground for a new trial, even though his knowledge of the incompetency comes to him for the first time after the trial.”
Finally it is contended that a new trial should be had because of the misconduct of juror McLean. On this point the court
is divided as will appear from the subjoined opinions, but the majority hold that the contention is without merit.