State v. Smith

30 P. 679, 12 Mont. 378, 1892 Mont. LEXIS 61

• Court: Montana Supreme Court
• Decided: July 25, 1892
• Status: Published

Opinion

Blake, C. J.

The defendant was convicted of the crime of assault with the intent to commit murder. A complaint was filed July 27,1891, in the justice’s court of Yellowstone County, and the magistrate, after hearing the evidence, adjudged, August 6,1891, that there was probable cause for believing Smith guilty, and ordered that he be held to answer the charge at the next term of the District Court. The complaint and other papers in the action in the justice’s court were filed August 16, 1891, iu the District Court of Yellowstone County. The county attorney filed, October 15, 1891, an information in the presence of am! by the order of said District Court. Leave was given October 31, 1891, to the county attorney, to have the names of some witnesses indorsed upon the information; and on the same day, upon the motion of defendant, the place of trial was changed to Gallatin County. The defendant entered January 21, 1892, his plea of not guilty. The jury returned a verdict of guilty, and the defendant filed a motion in arrest of the judgment, upon this ground: “ That the prosecuting attorney of Yellowstone County, Montana, to wit, J. B. Goss, had no right or legal authority to file and make the information in this cause, upon which he was tried; . . . . and that the information on which the defendant was tried was not made and filed until October 16, 1891, more than thirty days elapsing between the return of the said complaint and papers to said District Court of Yellowstone County, Montana, and the filing of said complaint.” This motion was overruled, aud we will review this action of the court. The statute which governs the subject contains this clauses “When the defendant has been examined and committed or admitted to bail, as provided by law, or upon leave of court, the county attorney must, within thirty days after the delivery of the complaint and other papers to the proper District Court, or after such leave, file in such court an information charging the defendant with the offense for which he is held to answer, or with which he is charged, or any other offense by the facts disclosed.” (2 Sess. Laws, p. 249, § 2.) It is further enacted that all the provisions of the law regulating prosecutions upon indictments shall apply “ in the same manner, and to the same extent and effect, as near as may be,” to proceedings by information. (2 Sess. Laws, p. 250, § 4.)

Let us consider the provisions of the Criminal Practice Act which are pertinent to this inquiry. A motion in arrest of the judgment may be granted for the following causes: “That the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; .... that the facts stated do not constitute a public offense.” (Comp. Stats, div. 3, § 357.) It is uniformly held that this motion must rest upon these statutory grounds, and it is apparent that the court acted rightly thereon. The defendant did not resort to the appropriate remedy for the failure of the county attorney to comply with the statute. When the defendant was arraigned, the statute authorized him to move to set the information aside, or demur, or plead thereto. (Comp. Stats, div. 3, § 205.) The information “shall be set aside” when it has not been presented as prescribed by law. (Comp. Stats, div. 3, § 206.) If the motion to set aside be not made before the defendant demurs or pleads, the ground of objection to the information, which might have been thereby made, “shall be deemed waived.” (Comp. Stats, div. 3, § 208.) The importance of this statutory requirement is obvious. If the motion be granted, the court may direct a resubmission of the case. (Comp. Stats, div. 3, § 210.) Every question of this nature should be pointed out before the trial. It was held in Territory v. Iiart, 7 Mont. 55, that a defendant who failed to make this motion for the cause that twelve grand jurors did not concur in finding the indictment, before he demurred or pleaded thereto, waived his objections to the indictment. A defendant has a right to insist upon an examination “before he can be put upon his trial, or called upon to answer the information,” in Michigan. Mr. Justice Christiancy, in Washburn v. People, 10 Mich. 393, said: “ It is not a matter which goes to the merits of the trial, but to regularity of the previous proceedings. If he make no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he lias waived or now intends to waive it. If lie intends to insist upon the want of the examination, we think he should, by plea in abatement, set np the fact that it has not been had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information. The latter is the simpler course.” (Hamilton v. People, 29 Mich. 177; People v. Stacey, 34 Cal. 307; State v. Collyer, 17 Nev. 279.)

The appellant did not enter his plea to the information until the District Court of Gallatin County had acquired jurisdiction of the case. Another section of the Criminal Practice Act should be examined: “All questions concerning the regularity of proceedings, and the rights of the court to which the change is made to try the cause and execute judgment, shall be considered as waived after trial and verdict.” (Comp. Stats, div. 3, § 233.) We think that one clause of the act concerning the information has escaped the attention of the appellant: —•

“All criminal actions in the District Court, except those on appeal, shall be prosecuted by information, after examination and commitment by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment without any such examination or commitment, or without such leave of the court.” (2 Sess. Laws, p. 248, § 1.)

When this language is read in connection with the section supra, it is evident that the information can be filed within thirty days after the granting of leave therefor by the court, independent of the time when the examination took place. The statute has been strictly complied with, and there is no merit in the argument that the court did not have jurisdiction of the case.

A brief statement of the facts will aid us in presenting the other rulings of which appellant complains. Frank Church was the road supervisor of the district in which the land of said Smith is situate, and as such officer received the following order:—

“Office of the Clerk and Recorder, Yellowstone County, Montana.

“Billings, Mont., March 11, 1891.

“ Mr. FranJc Church, Road Supervisor, District No. 4, Hillings, Montana — Dear Sir: You are hereby directed, from, on, and after May thirteenth (13), 1891, to open and work the following described county road, to wit: [Description of road.]

“By order of the Board of County Commissioners of Yellowstone County, Montana.

“Witness my hand, and the seal of said county, this eleventh day of March, 1891.

[seal.] “Feed. H. Fostee, County Clerk.”

It is maintained by appellant that the admission in evidence of this order is an error.

Upon the trial Church testified that he was proceeding, July 27, 1891, to open the road through the land of defendant by virtue of the foregoing order of the county commissioners, and saw defendant “walking fast” towards his house, and then he “ came running out of the house with a Winchester rifle in his hand, and as he came along he motioned to some one, and he spoke twice, and said, ‘Get out of there,’ and motioned towards where I was, and towards where Mr. Ramsey and Mr. Terrill were. He stopped twice and then came on again. The sheriff came on behind on a run. During the times he stopped he was about half-way to the house from where I was. I had been working all the time. Each time he stopped he raised his gun. I was looking at him at the time, and was tearing the wire off a cedar post. I was on the outside of the fence, and as he raised his gun I jumped over a pile of plank. I had not got down behind it when he shot. He shot towards me. It was the way his gun was directed. At the time the shot was fired there was something hit me in the face, and something whizzed past my face, and afterwards, when I went to work on that road, I found the post which the bullet went through.” The witness also testified he had had several conversations with the defendant before this time. “ The first I had with him of any account was on the thirteenth day of March, 1891. I was opening the road, and expected to open the fence the full length; that is, I commenced that. I calculated to open it that day. When I came to Mr. Smith’s fence he came out and told me I could not go through there — go through his ranch. I said, ‘I have got an order in my pocket from the board of couuty commissioners to open the road through here.’ But he had a Winchester rifle. He came there with it. I took it to be this same one. He said lie came out there to keep me from going through. He said lie would not let them put a road through there. I told him I did not come prepared to fight my way through, but was instructed to report to the officers if I had trouble. I told him that his saying I could not go through would not keep me from going through.....The next time I had a conversation with him was between that time and this. I had two or three. I built some bridges near his place, and he was out there. He told me all along that I would never get through there; that he was not going to have it through there. I saw him one day going home, and I said, ‘ Hello, Smith! the commissioners are in session now, and they are liable to tackle you about that road again;’ and he said, ‘You will never get through there.’ I told him, ‘That depends on what kind of orders I get.’ He said, ‘It don’t make a damn bit of difference what kind of orders you get; you will never get through there.’” Upon cross-examination the witness testified that the county commissioners directed the sheriff and another person to go with him for his protection to the place of defendant on July 27, 1891.

Mr. Ramsey testified that he was the sheriff of Yellowstone County, and went July 27, 1891, to the land of defendant to keep the peace. “The defendant was irrigating, and threw down his spade, and started to the barn or stable, and I met him at the corner of the stack yard. I said, ‘ How do you do, Mr. Smith?’ He said, ‘I want you to get off my premises;’ and I said, ‘I came over to have a talk with you.’ He said, ‘These are my premises, and I order you off them.’ I said, ‘I came over here to talk with you, and I am going to do it.’ He moved around and went to the house, and in a pretty fast walk. I followed him. It was fifty yards to the house, I judge. As soon as he got to the door he picked up his gun, and came out. I said, ‘ Hold on there, Smith. Don’t you go any further. I am going to see that there is no trouble here to-day.’ Church was about a hundred yards away, pecking on a post. There was an irrigating ditch between him and Church, and he (Mr. Smith) ran across it. I followed a little behind him, and once or twice I ordered him to stop, and he kept on running until he got within sixty yards of Mr. Church, and drew up his gun, took deliberate aim, and fired.” The witness also testified that he and his deputy were armed.

Mr. Terrill testified that he was present July 27,1891, upon the land of defendant. “I wanted to talk to him, but lie would not have it.....Mr. Smith went a hundred yards before he fired at Church. He was sixty or sixty-five yards from Church when he pointed his gun at Church and fired. 'After Smith fired, he said something like, ‘I told you I would.’”

The defendant testified: “Mr. Ramsey said, ‘How do you do, Mr. Smith?’ and I said, ‘How do you do, gentlemen?’ He said, ‘ I want to talk to you.’ I said, ‘ If you want to talk to me, call that man back;’ and they did not answer. ‘I took two or three steps towards Church, and asked him to stop, and he would not. I then told Ramsey and Terrill to leave the premises. Instead of doing that, they started to close in on me. I then went to the house. I told them to leave two or three times. I supposed they were going to try to do something with me. I went in the direction of my house, and got my rifle, and stepped out of the door with it, and went on and passed them, and jumped across the ditch, and hallooed to Church to get away from there nearly every step I took. He didn’t pay any attention to me. I stopped a minute, and as I raised the gun he jumped to one side.....I shot past him to drive him off. .... I had told Church a number of times before this not to go through my field. I forbid him to cut down my fence. .... I knew Mr. Church was about to make an effort to open this road, when I saw him chopping the fence down.” He also testified that “upon another occasion Mr. Ramsey came up in a buggy, and I spoke to him, and he said he had come to see that Church put that road through, and I said, ‘You can’t do it.’ He said, ‘Very well, I will arrest you right here.’ ‘Very well,’ I said. I said he might make an arrest if he wanted to, but I would not let him put a road through.”

Joseph Danford testified for the defendant about a conversation in the month of May, 1891. “Mr. Smith was on one side of the fence, and Mr. Church was on the other. Mr. Church walked up to within a few feet of the fence, and remarked to» Mr. Smith that he would have to tear down the fence. Mr. Smith told him he could not do it. Mr. Church remarked that he had that kind of orders, and he guessed if that was all he would have to go through; and he says, ‘Will you resist?’ Mr. Smith said, ‘Most assuredly I will.’” John Reardon, called by the defendant, testified to the same effect.

The testimony proving the official character of the road supervisor and the sheriff and his deputy, and the object of their visit to this place, was introduced without objection upon the part of the defendant. It is generally known that sheriffs and their deputies, and officers enjoying similar public trusts, are of necessity armed with deadly weapons. After the appellant uttered his threats of resistance to the opening of the road, and displayed his rifle to intimidate Church, it was the duty of the officers who were present to be prepared for every emergency. The relations of all the parties were of a friendly nature, and the opening of the road has been the whole subject of dissension and hostility. The defendant knew that Ramsey, Terrill, and Church held responsible official positions, and that the road supervisor was engaged in the performance of a public duty at the time and place mentioned in the information. The defendant also knew that he was jn no danger of receiving bodily harm from any of these persons, that none of them intended to commit a felony, and discharged his rifle at Church with a full knowledge of all the facts. The order of the board of county commissioners was competent evidence to explain the motives and conduct of the road supervisor.

The defendant offered in evidence the records of the board of county commissioners of Yellowstone County relating to the laying out of the road, and they were excluded, upon the objection of the State. This ruling is assigned as error. The transcript does not disclose the purpose for which this evidence was offered, but the appellant contends in his brief that the board of county commissioners did not comply in all respects with the law, and that the road was not legally laid out, and that the order under which Church assumed to remove the fence was unlawful. It is urged that, if this contention be sound, Ramsey, Terrill, and Church were armed trespassers, and that the defendant had the right to defend his person and property. "We have already seen that the appellant was not called upon to protect himself, and that his weapon was aimed at the officer, who was not attacking him or making any threatening demonstrations.

The simple question is whether the appellant was justified in committing the assault upon the road supervisor to prevent the opening of the road. The authorities are arrayed against this proposition. The statute embodying the principle which is applicable is expressed in these terms: “Justifiable homicide is the killing of a human being in necessary self defense, or in defense of habitation, property, or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.” (Comp. Stats, div. 4, § 32.) “ All other instances which stand upon the same footing of reason and justice as those enumerated shall be considered justifiable .... homicide.” (Comp. Stats, div. 4, § 38.) One of the oldest cases is Commonw. v. Drew, 4 Mass. 391, which was tried in the year 1808, and the court charged the jury as follows: “For it is a rule of law that where the trespass is barely against the property of another, not his dwelling-house, it is not a provocation sufficient to warrant the owner in using a deadly weapon; and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provocation.” These views have been repeatedly asserted. (Roberts v. State, 14 Mo. 138; 55 Am. Dec. 97; Harrison v. State, 24 Ala. 67; 60 Am. Dec. 450; McDaniel v. State, 8 Smedes & M. 401; 47 Am. Dec. 93; Johnson v. Patterson, 14 Conn. 1; 85 Am. Dec. 96; People v. Honshell, 10 Cal. 83; People v. Flanagan, 60 Cal. 2; 44 Am. Rep. 52; State v. Vance, 17 Iowa, 138; Kunkle v. State, 32 Ind. 220; Davison v. People, 90 Ill. 221; 2 Bishop on Criminal Law [4th. ed.], § 641; Wharton on Homicide, §§ 414r-540; Bush v. People, 10 Colo. 566.)

In Bush v. People, supra, decided in the year 1887, Mr. Justice Elbert, for the court, said: “ It is well settled that a bare trespass against the property of another is not sufficient provocation to warrant the owner in using a deadly weapon in its defense, and if he do so, and with it kill the trespasser, it will be murder; and this though the killing were actually necessary to prevent the trespass.....The rule is the same whether the trespass be upon real or personal property; the law does not justify the shedding of human blood to prevent slight injuries to the property of others.” Many of the circumstances in Davison v. People, supra, are similar to the case at bar. We make the following extract from the statement of the facts: “Robertson, the deceased, was one of the commissioners of highways of the town of Ella, in Lake County, and in company with the other two commissioners, Jacob Beese and August Knigge, and others, on September 8, 1877, went to open a highway in front of Davison’s house, which the commissioners claimed had been obstructed by Davison by building fences across it. Davison claimed the road had never been legally laid out, or, if it had been, it had been legally vacated by appeal to three supervisors. The commissioners tried to persuade him to remove his fences, which he refused to do, claiming that the laud where the fences were was his private property, which he would defend with all the force necessary for that purpose. The commissioners then directed the men who came to assist them to take down the fences, . . . .” and during the difficulty which ensued Robertson was mortally wounded. Mr. Justice Walker, in the opinion, said: “It is urged that the court trying the case erred in refusing to permit accused to introduce evidence that the place where the commissioners were attempting to remove the fence was not, as they claimed, a public highway; that the fact was important, not as a justification, but as showing the feelings of the parties, and as tending to shed light on the transaction; that it was a part of the res gestee. . ... It is not, nor can it be, claimed that the fact that there was no road where the attempt was made to remove the fence justified plaintiff in error in taking the life of deceased. The admission of the evidence would have raised a collateral issue that would have tended to confuse the jury, obscure the real issue, and could in nowise have tended to elucidate the true issue in the case. That issue was foreign to the case, and its trial was not proper. The evidence was before the jury that there was a dispute between accused and the road commissioners whether there was a road at this point, he claiming there was not, and they iusistmg there was. This dispute had lasted for almost a year, and, if he believed there was no road there, that belief would explain his feelings and motives as fully as had the fact been established by proof. We are clearly of opinion there was no error in excluding this evidence.....It is urged that the third instruction given for the people is erroneous. It informs the jury that accused would not be justified in billing deceased to prevent a trespass to his real estate, unless it was upon his dwelling-house. We apprehend that no well-considered case has gone the length of holding that a person may kill another to prevent a mere trespass to his property. A man’s house is his castle, and he may defend it even to the taking of life, if necessary or apparently necessary to prevent persons from forcibly entering it against his will, and when warned not to enter and to desist from the use of force. The law affords ample redress for trespasses committed on a man’s land, but does not sanction the taking of life to prevent it. The owner may, no doubt, oppose force with force to protect his property from injury or destruction, but not to the extent of taking life, or in excess of the necessity of the case. When he carries resistance to excess, and uses more force than is reasonably necessary, he becomes a wrong-doer.....The twenty-second asked the court to instruct that, if the road commissioners and others were on the premises without his consent, they were trespassers. Suppose they were; that did not authorize him to shoot and kill deceased.....The thirtieth asks the court to instruct that, if a prosecution for obstructing this road was pending against accused at the time, the commissioners would have no right to open the fence. Suppose this was true; it would follow that the commissioner's were trespassers, and we have seen that would not justify accused in taking the life of Robertson.”

We are satisfied that the question of the legality of the action of the board of county commissioners of Yellowstone County in laying out the road sustained no relation to the facts before the jury, and that these records were immaterial. Admitting that the road supervisor and the sheriff and his deputy were trespassers, the act of the appellant in using a deadly weapon was inexcusable.

The instructions are consistent with this theory, and we will not review them separately. The defendant in 11 requests for instructions, which were refused by the court, took a different view of the law, and insisted that his acts were justified, and that he was not guilty of the commission of any offense. It is the contention of the appellant that the order of the board of county commissioners was in violation of this statute: “No such road shall be ordered opened through fields of growing crops, or along a line where growing crops would thereby be exposed to stock, until the owner or owners of such crops shall have sufficient time to harvest and care for the same.” (Comp. Stats, div. 5, § 1818.) It will be observed that the order complained of was made March 11,1891, and within two days notice thereof was given to the appellant, and that at this season of the year' there could be no growing .crops. If we consider the matter in the most favorable aspect for the defendant, and assume that the road was “ ordered opened ” through his fields of growing grain, there was ample remedy in the courts for every grievance.

We discover no error in the record, and it is ordered and adjudged that the judgment be affirmed, and that the same be executed as directed by the court below.

Affirmed'

Harwood, J., and De Witt, J., concur.