author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE, Respondent, v. HURST, Appellant.
    [No. 1,428.]
    [Submitted January 2, 1900.
    Decided January 29, 1900.]

      Criminal Law — Homicide—Evidence—Hew Trial— Witnesses —Impeachment—Jury—Instructions—Argument of Counsel —Review—Bill of Exceptions.

    Evidence reviewed and, held, to justify a verdict of guilty of murder.
    2. A witness’ credibility and the effect to be given his evidence are for the jury to determine.
    3. The appellate court cannot try a case de novo, and thus invade the province of the trial court by passing upon disputed questions of fact and the credibility of witnesses.
    4. Refusal to grant a new trial of a criminal case for insufficiency of evidence will not be disturbed on appeal where the evidence was conflicting, and tended to support the verdict.
    5. Where a witness based her testimony that threats against deceased were made by defendant on her recognition of his voice, it was not error to exclude evidence tending to show that such witness had mistaken the voice of another person on a different occasion, where it was not shown that the conditions were the same.
    6. It was not error to allow the state to ask defendant’s witness a question on cross-examination for the purpose of laying a foundation for his impeachment which was not germane to his direct testimony, since the state could have recalled the witness at any time for such purpose.

      7. Under Code of Civil Procedure, Sec. 3380, declaring that a witness may be impeached by evidence that at other times he made statements inconsistent with his present testimony, a witness having denied making statements at a coroner’s inquest, the state was properly allowed to call another witness in rebuttal, who was present when such statement was claimed to have been made, and ask him whether the former witness made a certain statement just after he finished his testimony before the coroner.
    8. Where a jury in a criminal case had been fully instructed as to their individual duties under the law, it was not error for the court to refuse to instruct that if, after consideration of the whole case, any juror entertained any reasonable doubt of the guilt of the defendant, it was the duty of such juror not to vote for a verdict of guilty, nor to be influenced in so voting for the single reason that a majority of the jury were in favor of a verdict of guilty.
    S. On appeal, alleged objectionable statements of counsel in argument cannot he considered, nor the action of the trial court thereon be reviewed, unless they, and the ruling of the court thereon, are preserved in a bill of exceptions and properly certified.

      Appeal from District Court, Dawson County; Charles II. Loud, Judge.

    Joseph Hurst was convicted of murder, and he appeals.
    Affirmed.

      Mr. William Wallace, Jr., Mr. II. J. Haskell, Mr. G. TIT Myers, and Mr. C. R. Middleton, for Appellant.

      Mr. Thomas C. Holmes, and Messrs. Strevell da Porter, for the State.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

The defendant was convicted of murder in the first degree on March 21, 1899, and on the following day was sentenced to suffer the death penalty. A motion for a new trial was denied on June 10, 1899. The appeal is from the judgment and the order denying a new trial.

The grounds relied upon for a reversal of the judgment and order are insufficiency of the evidence to sustain the verdict, errors of the trial court in rulings upon the admission and exclusion of evidence and in a refusal to properly instruct the jury, and misconduct of the counsel for the state which was prejudicial to the defendant.

The record discloses these facts: Dominick Cavanaugh, the deceased, was the sheriff of Dawson county. At the general election held on November-8, 1898, he was a candidate for re-election, and was successful. The defendant was also a candidate upon the opposition ticket. The deceased had his office and resided with his family in the court house building in Glendive, the county seat. The subjoined diagram of a part of the townsite of Glendive shows the place of the homicide and the other points referred to in the proof.

A Hurst residence.

B Yellowstone Hotel.

C M. Cain, saloon.

D Douglas & Mead, bank and store. E Agnew & Gilíes, barber shop.

E Foster’s bakery,

G Drug store where fair was held. H Masonic Block.

X Postoffice.

J Lowry & Eaker, meat market.

1C Duncan cottage, residence of Steele.

L Duncan block and office.

M Dr. Hunt’s residence.

N Cavanaugh’s barn.

O Court house.

P Side gates Hunt’s residence.

Q Where Myers Bros, stood on night of murder.

R Wood pile.

X Vacant lot, 50 feet wide.

The business portion of the town fronts on Merrill avenue. The court house fronts on Bell street at the point O. At N is a small stable appurtenant to the court house, and which ivas used by deceased. It opens back upon the alley, marked ‘‘20,” by two doors, the larger of which is at the middle of the building. This alley is open from Douglas avenue to the back of block 8. Between I and J in block 8 is a vacant lot. This is made use of as a passageway by persons going from Merrill avenue by way of the alley toward Douglas avenue. From the stable to Merrill avenue by way of the alley and vacant lot is about 240 feet. Early on the morning of December 24, 1898, the dead body of Cavanaugh was found lying face downward diagonally across the alley, near the large door of the stable, the-feet being toward the stable and the head toward Douglas avenue. The face was frozen in a pool of blood. The body was stiff. Near it was found the hat of deceased, and also a book, wrapped in Manilla paper. This book and a pair of cuff buttons he had purchased the previous evening at the store marked “F” on Merrill avenue. The effects upon the body were undisturbed. Upon the scalp were eight or nine wounds, made by some blunt instrument, all of which penetrated the flesh and crashed through the tables of the skull into the brain. Upon the right side of the hat were found traces of iron rust and indentations resembling screw threads over a space of two inches. There was a corresponding wound on the right side of the head, showing the skull, crushed in. Physicians examined the skull, and found it broken into 35 pieces, and they were of the opinion that the wounds had been inflicted by means of a heavy iron bolt. Each of the wounds was fatal. The last time the deceased was seen alive was about 8:24 o’clock on the previous evening. After buying the book and cuff buttons at F, he left there, saying he was in a hurry to reach home. He then went into the postoffice at I. After remaining there a few minutes, he left. The time is fixed by Miskimmen, the postmaster, at about 8:24. The deceased passed over the vacant lot between I and J, and within a few feet of the point B>. At this point he recognized and spoke to Frank Gilmore, a witness for the state, but did not stop. Gilmore had just thrown off a load of wood, and was preparing to take his team home. The night was clear, and the moon was bright. At a distance of 30 or 35 feet behind deceased, and going at a somewhat faster pace, there followed another man, wearing a sack coat and hat, whom Gilmore recognized as the defendant. He is somewhat taller than was the deceased. He passed within 9 or 10 feet of the witness, but did not speak. He had his right hand in the pocket of his pantaloons or under his coat, so that the coat projected behind. As he passed on he seemed tobe overtaking Cavanaugh. The witness then turned his team into Merrill avenue between I and J, and went along the avenue to the right. A short distance from J he passed the witnesses Steele and wife, who were going to their home at K. These latter passed along Merrill avenue to J, and then turned to the left to reach their home. As they came towards it, Airs. Steele saw two men, one taller than the other, standing near the point P, apparently engaged in conversation. The presence of the men there at that hour was such a strange circumstance that she twice called her husband’s attention to them. As these witnesses turned into their house, the two men started in the direction of the stable, the taller following the other. The witnesses then lost sight of them. Going into the house, Mrs. Steele lighted the lamp. It was then 8:25 o’clock. The residence of Dr. Hunt is at M. On this evening he and his wife had walked up to a drug store at G, and had returned home about 8:20. A minute or two later a patient called and obtained a prescription. While engaged in writing the prescription, and between 8:20 and 8:35, Dr. Hunt heardasound in the direction of the Cavanaugh stable, described by him as a muffled voice sound mixed with other sound, all of which he supposed was made by some one at the stable. He called the attention of the patient to it, who stated that it was probably some “kids” in the alley. On the same evening, between 8 and 8:30 o’clock, John and Lawrence Myers were passing along Douglas avenue. At the point Q they heard twice in quick succession a sound described by one of them as a ‘ ‘kind of a holler like a body holding their hand over their mouth hollering.” One of them says it was the sound of a muffled voice. The sound was in the direction of the Cavanaugh stable, and, looking in that direction, they saw the form of a medium-sized man, slightly stooped, walking rapidly away from the mouth of the alley at the stable into the street. He disappeared behind the stable along Kendrick avenue, and was not seen by them again. These witnesses could not describe the clothing of the man they saw. The distance he was from them was 60 or 75 yards. Though the moon was bright, they noticed nothing else in the alley.

Oavanagh had left his home at the court house a'little after 7 o’ clock, and had been in various places along Merrill avenue until he started from the postoffice on bis return. The defendant had also been into various places along Merrill avenue during the evening. After making some purchases, he was seen going towards his home at A about 7:30. The proof shows the he probably went home at that time to leave his purchases, and afterwards returned to Merrill avenue, for he was seen again going towards the postoffice at 8 o’clock. As Dr. Hunt and his wife went into the drug store at G a little before or after this time, the defendant was passing out. Dr. and Mrs. Hunt greeted him. He had a package under his arm, done up in light paper. It was as large as a quart bottle, and from 12 to 16 inches in length. Exactly at 8:30 the witness Agnew says that Hurst passed his barber shop at E, going in the direction of his home. At that time, though accosted by Agnew, he made no reply, but passed on in silence. He had no package. There is a sharp conflict in the evidence as to the dress worn by defendant, but there is evidence tending to show that he had on a sack coat of brown duck, overalls, and a dark hat. Another witness saw defendant a moment after Agnew saw him; he was then still going toward home. Besides these instances, no other witness saw defendant during the time after 8 o’ clock, except Gilmore, as before stated.

Defendant’s wife was upon the stand, but she made no statement as to defendant’s movements during that evening, nor as to the clothing he wore. Several days after the homicide a search was made of defendant’s house. A pair of overalls were found, hanging in a closet; they were over a pair of dark pantaloons. In the pockets of the pantaloons' were found two handkerchiefs. Upon the overalls and one of the handkerchiefs were found bloodstains. On the morning the body was discovered, and while a number of people were assembled at the court house, where the body lay, the witness Gilmore met the defendant at a point on Bell street, from which they could see the people at the court house, and spoke to defendant about the murder. Defendant appeared nervous, and looked several times toward the court house. He said nothing of the death of Cavanaugh, but began at once to speak about getting some one to call for a dance to come off a few nights afterwards.

On several occasions a short time before the murder the defendant was heard to make threats against deceased, apparently prompted by hostile feelings aroused by their political contest and defendant’s defeat. On the evening of the day of election he was overheard by the witness Nellie Ward talking with another person. She was passing from the court house, where she had been to take supper to the Judges of election, to the building at G, which was not then occupied by any business. On that evening the women of the Catholic church held a fair there. It was about 6:30 o’clock, and dark; and as she passed the alley in the rear of this building she heard a part of the conversation, as follows: The strange voice said that ‘ ‘Dominick would get it. ” A voice, which she recognized as defendant’s, replied that “If the s— of a b— did, he would never see the new year. ’ ’ She saw the men, but did not recognize either by sight. On the night after election, in speaking of the result, the defendant told the witness Bonney that Cavanaugh had done him dirt, and that he would “fix him.” Three or four days later, in speaking of the election to the witness Schwanke, and in reply to an inquiry by Schwanke as to how he felt over it, he said, “I would have been elected, but he played me dirty tricks; but I will get even with him.” On the next day after the murder the defendant began to lay his plans to be appointed to the office of sheriff as the successor of Cavanaugh.

The foregoing is a brief statement of the salient parts of the evidence. We have made no attempt to set out a complete analysis of it, nor shall we. The jury having found all these facts established beyond a reasonable doubt, as they must have done, they were led irresistibly to the conclusion that the defendant is guilty of the murder of Cavanaugh. We have given our attention carefully and patiently to the examination of the whole of the evidence, and we cannot say that the result reached by the jury is not justified by it, or that there is, upon the whole of the evidence, a reasonable doubt of the defendant’s guilt. Counsel for defendant predicates his main attack on the verdict upon the assertion that the only evidence in the record tending to connect the defendant with the crime is that of the witness Frank Gilmore; that the identification of the defendant by this witness as the man who followed the* deceased along the alley a few minutes before the homicide, is unsatisfactory at best; and that, m addition to this, the witness was shown to have made so many contradictory statements about the matter that he should not be believed. It is true that this witness had been examined at the coroner’s inquest and at the preliminary examination, and that he was shown to have been evasive and contradictory in his statements at these times. It was further shown that he had been evasive and contradictory in speaking of the matter on other occasions. At the trial, however, his identification of the defendant was clear and positive. He also explained his previous inconsistent statements by telling the jury that he was at first reluctant to tell what he knew about the case, and thus to be the instrument of bringing condemnation upon the defendant, whom he looked upon as a friend, and as not capable of committing such a crime; but that, after a struggle with his conscience, he had determined that it was his duty to tell the facts, and let the law take its course. He also stated, in substance, that many persons had questioned him about the case, whom he deemed to be prompted by curiosity or, perhaps, less worthy motives, and that he did not think he was bound to gratify them by stating the facts to them. The jury heard the whole of his statement and the contradictory evidence. They saw him, and had an opportunity to observe his manner upon the stand. His credibility and the effect which was to be given his evidence were clearly for the jury to determine. They were fully instructed as to their power and duty in weighing the evidence, and this Court cannot say that they abused their power or disregarded their duty. Moreover, the trial judge saw and heard this witness testify. It was within his province if not satisfied with the verdict, to set it aside and grant a new trial. This he refused to do. We cannot say that he abused his discretion. This Court cannot try the case de nono and thus invade the province of the trial court by passing upon disputed questions of fact and the credibility of witnesses.

Counsel contends further that the evidence shows that the defendant was upon Merrill avenue, at the barber shop at F, at 8:30 o’clock and that, therefore, he could not have been present at the scene of the homicide at the time it occurred. The whereabouts of the defendant at the time of the homicide .was a controverted fact, and the finding of the jury thereon cannot be disturbed. Besides, admitting that he was seen at 8:30 o’clock on the street near the barber shop, going in the direction of his home, this fact does not show that the finding of the jury was wrong. Under the evidence on this point the distance from the scene of the crime to that point could 'be covered by a person walking rapidly in two or three minutes. The proof also shows that the homicide must have occurred not more than a minute or two after 8:25. The defendant could, therefore, have committed the crime, and then have gone to the barber shop on Merrill avenue afterwards.

In testifying to the threat which she heard defendant make against the deceased on the evening of election day in November, the witness Nellie Ward, stated in reply to a question by defendant’s counsel, that she could not be mistaken in the voice of defendant. In rebuttal defendant called Dustin Hibson. After stating that he had had a speaking acquaintanee with Kellie Ward for a long time, and that he had met her one evening, after dark, the fall before, at the house of' one Mrs. Schick, the witness was asked: “Now, I will ask you Mr. Gibson, if she did not, not seeing you, but from the tone of your voice, mistake you for Mr. Vo or hies ?” Upon objection the court refused to permit him to answer, on the-ground that the evidence thus sought was incompetent. This-ruling is assigned as error. Evidently the idea in the mind of counsel was that, if the witness Nellie Ward had made a mistake in identifying Gibson by his voice, she might also have been mistaken in her identification of the defendant. The purpose, therefore, was not to contradict this witness, as counsel stated, but to prove a fact from which the jury might infer that her observation was at fault. The answer to the question could not have shown any statement made by Nellie-War d at that time inconsistent with her opinion or conclusion as stated by her when upon the stand. It was, therefore, not competent for this purpose, as claimed by counsel. Nor do we think the mere fact that the witness made a mistake in the voice of Gibson at that time was competent as tending in any way to show that her observation was at fault at another time, and under conditions which may have been altogether different. The principle involved is somewhat analogous to that which permits proof, in certain cases, of experiments made for the purpose of showing that a person could or could not see or do something which he claims that he saw or did. “Under some circumstances this class of testimony may beverv satisfactory, but, unless the experiments are shown to have been made under essentially the same conditions, the tendency is to confuse and mislead, rather than enlighten, the jury.” (Lake Erie & W. Railway Co. v. Mugg, 132 Ind. 168, 31 N. E. 564.) This case is approved in Burg v. Chicago, etc., Railway Co., 90 Iowa 106, 57 N. W. 680, and the same-rule is followed by other courts. ( Wilson v. State (Tex. Cr. App.) 36 S. W. 587; Chicago & A. Railroad Co. v. Legg, 32 Ill. App. 218; Elgin J. & E. Railway Co. v. Reese, 70 Ill. App. 463; Byers v. Railroad Co., 94 Tenn. 345, 29 S. W. 128.) Counsel made no offer to show that the conditions existing at the time the mistake was made in recognizing Gibson were in any degree similar to those existing at the time in question. Assuming that the evidence would have been competent had the offer been so made as to bring it within the principle of these cases, the trial court committed no error in rejecting it as offered. Whether, if Nellie Ward’s attention had been called to the occurrence at Mrs. Schick’s, and she had denied it, it would have been competent to contradict her, we do not decide, as the question does not arise.

The witness Gilmore, upon cross-examination by defendant’s counsel, stated that on the day after the homicide, and at the barn where he and Dustin Gibson kept their horses, he had told the latter that the man he saw following Cavanaugh was the defendant. On redirect examination he gave the details of the conversation, and stated further that it was agreed between him and Dustin Gibson that they would say nothing of the matter to any person. Gibson, called by the defense to impeach Gilmore, denied that the conversation had occurred as Gilmore asserted, and stated that Gilmore had not told him that he recognized the defendant as the man following deceased on the evening of the homicide. He also stated that Gilmore had not mentioned the defendant in any way in connection with the murder until about the middle of the following week, and after Gilmore had been examined as a witness at the inquest. He then left the witness stand, but was recalled to impeach Nellie Ward’s testimony. This part of his testimony was excluded, as already noted. The court at this time, over the objection of defendant, allowed counsel for the state to cross-examine him, to lay the foundation for impeachment as to a conversation had with one George Schnick on the 26th or 27th of December after the murder, in which he told Schnick that Gilmore claimed that Hurst was the guilty party, but that Schnick should say nothing about it. Counsel contends that the evidence brought out was immaterial, and that the ruling was error. Counsel is clearly wrong, it was important for the state to contradict Dustin Gibson by showing that he had knowledge at that time that Gilmore asserted that Hurst was the guilty man, and that he had gained this knowledge from Gilmore, — facts entirely inconsistent with the statement made by him upon the stand, and materially corroborative of Gilmore’s testimony.

Counsel say that the court erred in permitting any cross-examination of this witness, because he was not permitted to testify to anything in chief, and his cross-examination related to matters wholly foreign to the subject upon which he had been questioned by the defense. This is true. But while he was on the stand counsel for the state desired to lay the foundation for impeachment by asking about the statements mentioned. They would have been permitted to recall him for this purpose at any time. It was a matter entirely within the discretion of the court. There was no error in the ruling.

At this time the witness Gibson was also asked if he did not, during the coroner’s inquest, and while he was upon the stand as a witness, state, in presence of Burdick, the coroner, and others there present, that Gilmore had told him on the 24th or 25 th of December that Hurst was the man he saw following deceased down the alley. He answered in the negative. Burdick was afterwards called to contradict him. The question put to Burdick did not refer to the time during which Gibson was on the stand, but to a time just after he had finished his testimony. Objection Avas made that the foundation had not been properly laid for the impeachment, because the question referred to a different time from that to which Gibson’s attention had been called. The court overruled the objection, and defendant excepted. Burdick directly contradicted Gibson. The question piit to Gibson sufficiently met the requirements of Section 3380 of the Code of Civil Procedure touching the circumstances of time, place and persons present, to notify him of the statement referred to and to which Burdick testified. The objection was extremely technical. There was no error in disregarding it.

Error is assigned upon the refusal by the court to give instruction No. 13 requested by the defendant, as folloAvs:

“If, after consideration of the whole case, any juror should entertain any reasonable doubt of the guilt of the' defendant it is the duty of such juror so entertaining such doubt not to vote for a verdict of guilty, nor to be influenced in so voting for the single reason that a majority of the jury should be in favor of a verdict of guilty. ’ ’ The propriety of giving this instruction was considered in People v. Dole, 122 Cal. 486, 55 Pac. 581, the court saying of it: “This is a correct statement of the duty of a juror, and should have been given. If any juror needed an instruction upon this point, it was harmful to refuse it; if no juror needed the instruction, it would have been harmless to give it.” An examination of the record in this case shows that the court carefully instructed the jury as to their duties in instructions Nos. 9, 13, 17, and 38. We agree that . the instruction as asked is a correct statement of the law as to the duty of a juror, but we also think that the general instructions submitted in this case were amply sufficient to guide the individual jurors in the performance of their duties under the law. The court had heard the individual jurors examined. It had witnessed their behavior during the progress of the trial. It was discretionary with the court to instruct the jury more specifically with reference to their individual duties, the exercise of this discretion to be determined by the observations made by the court during the examination of the jurors and their conduct during the trial. If the court thought proper to give the instruction, it was proper to give it. On the other hand, if the court thought the jury did not require the instruction, it was not abuse of discretion to refuse to give it. There is some conflict of authority as to whether the court should instruct the jury in matters of this kind. We agree in the main with what the Supreme Court or Iowa said on the subject of such instructions in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5: “Of course, each juror is to act upon his own judgment. He is not required to surrender his convictions unless convinced. He maybe aided by his fellow jurors in arriving at the truth, but he is not to find a verdict against his judgment merely because the others entertain views different from his own. But a jury need not be advised of so simple a proposition. The usual method of instructing upon the measure of proof required in criminal cases is sufficient. ’ ’

Complaint is made that counsel for the state, during the argument to the jury, were guilty of misconduct prejudicial to the defendant, in that they went outside of the record, and stated matters of fact to the jury. The record fails to show in any authentic form what counsel did say. True, it appears that counsel for defendant several times interrupted the argument of counsel for the state to interpose objections to statements claimed to be not warranted by the proof, but the objectionable statements were not taken down, nor was a formal ruling of the court obtained, and exception saved. However objectionable the statements of prosecuting counsel may be, this Court cannot consider them, nor review the action of the trial court thereon, unless they, with the ruling of the court thereon, are preserved in a bill of exceptions, and properly certified. The rule was stated by this Court in State v. Biggerstaff, 17 Mont. 510, 43 Pac. 709, as follows: “We think the great weight of authority is to the effect that, in order to bring the language complained of before this Court for review, it was necessary for the defendant to request and secure a ruling of the court thereon, and properly save an exception to such ruling in a bill of exceptions. The bill of exceptions in the case presents no such record or action of the court as to authorize us to pass upon the language of the county attorney. It was never properly raised and passed upon by the lower court. It cannot be raised here for the first time.” (See, also, State v. Cadotte, 17 Mont. 315, 42 Pac. 857.)

There being no error in the record, the judgment of the district court and the order denying the motion for a new trial are affirmed.

Affirmed.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE, Respondent, v. ANACONDA COPPER MINING CO., Appellant.
    [No. 1,451.]
    [Submitted January 8, 1900.
    Decided January 29, 1900.]

      Constitution — Statutes—Validity—Expression of Subject in Title— Criminal Law — Evidence.
    1. By Sec. 23, Art. V, of the Constitution, it is only intended that the subject of a bill shall be fairly expressed in the title; it is not necessary that a title shall embody the exact limitations or Qualifications contained in the bill itself which are germane to the purpose of the legislature, if the general [subject of the measure is elearly expressed in the title.
    2. Laws of 1897, p. 245, entitled “An act to amend Section 705 of Title X, of the Penal Code of the state of Montana, to have the cages in all mines cased in,” makes it unlawful for any corporation to sink or work through any vertical shaft where mining cages are used to a greater depth than 300 feet, unless such shaft shall be provided with an iron-bonneted safety cage. Held, that the subject-matter of the act is sufficiently expressed in the title, within the meaning of Constitution, Art. V, Sec. 23.
    8. In a prosecution for violation of the Laws of 1897, p. 245, making it unlawful for a corporation to work through a vertical shaft where mining cages are used to a greater depth than 300 feet, unless the cage shall be provided with an iron-bonneted safety cage, evidence that such devices or cages would be dangerous is inadmissible, since the question whether such appliances were the best or wisest method is for the legislature to decide.

      Appeal from District Court, Silver Bow Cou/nty; William Clancy, Judge.

    The Anaconda Copper Mining Company, convicted of violation of the act requiring cages of all mines to be cased in, appeals.
    Affirmed.

      Mr. J. K. MacDonald, for Appellant.
    Defendant contends that the title of the amendatory act in question fails to state the object of the act, which was to have cased in the cages of those mines whbse shafts were sunk below 300 feet. The title, therefore, which describes the actas one to have the cages of all mines cased in, fails to state its object. Although it may not be obvious that the passage of the bill was aided by this deception, it is sufficient to say that our constitution has not been followed in this particular, when it provides that ‘ ‘no bill except general appropriation bills, and bills for the codification or general revision of laws, shall be passed containing more than one subject, which shall be clearly expressed in its title.” * * * (Constitution of Montana, Art. V, Sec. 23; see Coutieri v. New Brunswick, 44 N. J. Law, 58; City of Beverly v. Walm, 57 N. J. Law, 143; State v. Howell, 60 N. J. Law, 384; Sutherland on Stat. Const. Sec. 90, p. 99; Burkee v. City of Janesville, 26 Wis. 697; People v. Allen, 42 N. Y. 404; State v. Mitchell, 17 Mont. p. 76; Dissenting opinion of Ch. J. Church in Nenendorff v. Buryea, 69 N. Y. 557; 23 Am. & Eng. Ency Law, p. 232; In re Haynes, 22 Atl. Eep. p. 923.) The court erred in excluding the evidence offered by the defendant to show that the devices called for by said amendatory act would not tend to promote the safety of those using the cages to which they were attached, but that, on the contrary, such devices would be dangerous and liable to result in accident. (Tiedeman on Limitations of Police Powers, Sec. 1, p. 4 and authorities cited; Id. Sec. 3, pp. 10-13; Bertholf v. O' Reilly, 74 N. Y. 509; Black on Const. Law, p. 325; Mugler v. Kansas, 123 U. S. 663; Thompson on Electricity, p. 2; Toledo, etc. R. Co. v. City of Jacksonville, 16 Am. Eep. 612, 67 111. 37; Cooley on Const. Lim. p. 710; In re Jacobs, 98 N. Y. 98; Electric Imp. Co. v. San Francisco, 45 Fed. 593; Health Bept. of New Porky. Rector, Etc., 17 N. Y. S. 510.)

      Mr. C. B. Nolan, Attorney General, for the State. *
   MR. JUSTICE HUNT

delivered the opinion of the Court.

Conviction for violation of Section 705 of the Penal Code, as amended by an act of the Fifth legislative assembly entitled “An act to amend Section 705 of Title X of the Penal Code of the State of Montana, to have the cages in all mines cased in. ” (Laws of 1897, p. 245.) After a jury was impaneled and sworn to try the case, defendant moved that it be discharged, upon the ground that the amendatory act cited above is unconstitutional, for the reason that the subject thereof is not clearly expressed in its title. This motion was-overruled, and defendant duly excepted. Thereupon the state introduced evidence to sustain the charge. After the state rested, defendant sought to prove that the devices called for by the provisions of the amendatory act would not tend to-promote the safety of those using the cages to which they were attached, but that, on the contrary, such devices would be dangerous, and, likely to result in accident. To this offer of evidence the state, by its counsel, objected, and the court sustained the objection. Defendant duly excepted. The jury convicted the defendant, and from a judgment imposing a fine of §300 defendant appeals.

The amendatory act, following the original section (705) of the Penal Code, makes it unlawful for “any corporation * * to sink or work, through any vertical shaft where mining cages are used, to a greater depth than three hundred feet, unless said shaft shall be provided with an iron bonneted safety cage. ’ ’

The most significant change between the original provision of the Code and the statute as amended is that the latter requires cages to be cased in with sheet iron, or steel, or wire-netting, and to have doors of the same material, to be hung on hinges or made to slide, and to be at least five feet high from the bottom of the cage; whereas the original -statute was-silent concerning any such method of construction, thus leaving it optional with the mine operator to encase his cages or not, as he pleased. Evidently, therefore, it was to remove any choice in the matter, and to compel the mine operator to adopt an inclosed cage, that the amendment of 1897, supra, was enacted.

Is the subject contained in the amended bill clearly expressed in the title, as required by Section 23, Art. Y, of the State Constitution ?

The purposes of the clause of the constitutional mandate that the subject of a bill shall be clearly expressed in its title-have been considered and defined by this Court in State v. Mitchell, 17 Mont. 67, 42 Pac. 100; Jobb v. Meagher Co., 20 Mont. 424, 51 Pac. 1034, and the authorities cited in these cases. Briefly summarized, they are: to restrict the legisla.ture to the enactment of laws the objects of which legislators and the public as well may be advised of, to the end that any who are interested, whether as representatives or those represented, may be intelligently watchful of the course of the pending bill. The limitation is likewise designed to prevent legislators and the people from being misled by false or deceptive titles, and to guard against fraud in legislation by way of incorporating into a law provisions concerning which neither legislators nor the public have had any intimation through the title read or published. (Com. v. Brown (Va.), 21 S. E. 357, 28 L. R. A. 110.)

But by this constitutional notice it is only intended that the subject of the bill shall be fairly expressed in the title. It is not necessary — -for the constitution has not so declared — that a title shall embody the exact limitations or qualifications contained in the bill itself which are germane to the purpose of the legislature, if the general subject of the measure is clearly expressed in the title. Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the constitution itself, the courts ought not to ‘ ‘embarrass legislation by technical interpretations based upon mere form or phraseology. The objections should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or, if but one object, that it was not sufficiently expressed by the title.” (Montclair v. Ramsdell, 107 U. S. 155, 2 Sup. Ct. 391, 27 L. Ed. 431; Powell v. Supervisors of Brunswick County, 88 Va. 707, 14 S. E. 543.)

In harmony with these sound principles of the construction of like constitutional limitations, we are of opinion that appellant’s point is not well taken. We fail to see in the title of this amending bill any substantial departure from the constitutional requirement. That the bill itself contained but one subject is obvious — in fact, we do not understand appellant to contend otherwise. That that one subject, however, is clearly expressed in the bill is disputed, but not convincingly so. The title specifically refers to the- section of the Penal Code to be amended, and adds thereto, “to have the cages in all mines cased in. ’ ’ The law itself requires cages in all mines to be cased in if cages are used, and if the mines are worked through vertical shafts to a greater depth than 300 feet. It follows that, in mines not operated through vertical shafts over 300 feet in depth, cages, if used, need not be such as the law specifies. The law presupposes such a development as leads to the use of cages, and then only undertakes the regulations prescribed.

Now, what was the underlying object of this legislation ? Plainly to better protect the lives and limbs of miners working in developed mines where such development or operation is through vertical shafts in mines where cages are used. There must be a reasonably extensive development, 300 feet in depth, before the appliances specified need be used at all; but, when such development is had, the law becomes uniform in its operation by requiring that in vertical shafts in all mines so developed where cages are used the cages must be cased in and covered in a certain way. The legislature, in its wisdom, apparently deemed it unnecessary to require such extraordinary protection in properties where the shafts, though vertical, are less than 300 feet deep; and we do not assume more than a common knowledge of mining when we state it as a fact, generally known, that in Montana few mining properties operated through vertical shafts are classified by miners as “mines” to be systematically worked until the development exceeds 300 feet. Clearly it was never meant to create a statute that would in the least retard the development of prospects by demanding expensive and elaborate means of protection, unnecessary while prospecting or shallow mining only was going on.

As stated, the aim of the legislature was to insure a proper protection for miners where a prospect has opened into a “mine” in which deep mining is to be carried on, and the enterprise has taken on some degree of permanency of operation, for, obviously, it is in deep mining that the protection is most needed.

Though the words of the title, £ £to have the cages in all mines cased in,” are general, they give clear notice to the operators of all mines where cages are used that their properties might be affected by the law. There was no deception by design or accident, and we cannot see how, on the one hand, any mine owner operating a mine where cages are used could fairly say that he was misled, or, on the other, a mine owner not using cages at all in his mine could have been deceived by the title.

There is, therefore, really no objection to the law other than that the title is somewhat broader than the bill itself. The effect of the comprehensiveness, however, is not reasonably to mislead or deceive. A better title than the one given —a more limited title — could be suggested; still we think, under the doctrines of construction already invoked, the subject contained in the law is expressed by the title used with sufficient clearness to remove the act from within the mischief which the constitution says shall be avoided. It follows that the courts cannot hold the law unconstitutional. In line with our views we cite: Neuendorff v. Duryea, 69 N. Y. 557; State v. Trolson, 21 Nev. 419, 32 Pac. 930; State v. Miller, 45 Mo. 495; Sutherland on St. Const. Sec. 97; Cooley’s Const. Lim. p. 170 et seq.; Allegheny Co. Home’s Appeal, 77 Pa. St. 77; State v. Becker, 3 S. Dak. 29, 51 N. W. 1018; In the Matter of Petition of Mayer, 50 N. Y. 504; Luther v. Saylor, 8 Mo. App. 424.

-The contention that the court erred in excluding evidence offered to show that the devices or cages required by the amended law would be dangerous, and apt to result in accidents, must fall also. The text of the law discloses a measure designed to guard against the dangers incident to lowering and elevating men in deep mining shafts. Whether the cased-in cage and its appliances is the best or wisest method was a question for the legislature to decide. Laws regulating the construction and operation of elevators are frequently enacted as a proper exercise of the police power of the state. The legislature is the branch of the government which exercises this power, and, unless there be constitutional limitations upon it, as a rule the judicial power cannot set aside a law passed in the exercise of it. This proposition is fundamental. Whether the courts may nullify the judgment of the legislature upon the ground that some great principle of natural right has been subverted is a question not' before us, for a law requiring mining cages to be covered and cased in does not present an instance of “natural injustice” which authorizes the interposition of the courts, even could there be any such interposition under the guaranty that no man shall be deprived of life, liberty, or property without due process of law.

The judgment is affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT

text:
    STATE, Respondent, v. CALDER, Appellant.
    [No. 1,431.]
    [Submitted January 3, 1900.
    Decided January 29, 1900.]

      Criminal Law — Homicide—Information—Indorsement of the Hamssof Witnesses — Evidence—Corpus Delicti — Testimony of Accomplice — Sufficiency of Corroboration — Instructions—• Degrees of Murder — Circumstantial Evidence.

    1. Under Penal Code ot 1895, See. 1734, requiring tlie county attorney to indorse on the information, at the time of its filing, the names of the witnesses then known to him, where the name of a witness known to the county attorney at the filing of the information was omitted, but there was no evidence of bad faith, the court properly permitted it to be indorsed on the day before trial.
    2. On a trial for murder, the identity of the person alleged to have been killed was proved by direct evidence of an accomplice, who was an eyewitness, and assisted in disposing of the body by burning it and throwing the ashes in a river, corroborated by circumstantial evidence. The death of a human being was directly proved, by the identification of certain teeth and charred bones found in a river near the point where the body was burned, and there was circumstantial evidence to prove the identity of the deceased. Held, that the evidence was sufficient to satisfy the requirements of Penal Code, Sec. 358, that the “death” of the person alleged to have been killed must be established by “direct proof,” as an independent fact, and of Code of Civil Procedure, Sec. 3108, defining “direct proof” as that which proves the fact in dispute, without an inference or presumption.
    •3. In prosecutions for murder, proof of the corpus delicti involves the establishment of the fact that a murder has been committed, but includes neither the identity of the person alleged to have been killed, nor the killing by the person accused.
    4. Under Penal Code, Sec. 2089, requiring an accomplice to be corroborated by other evidence which of itself tends to connect the defendant with the crime, it is not essential that the evidence in corroboration must be sufficient, when standing alone, to connect the defendant with the crime, but it is sufficient if it tends so to do.
    5. The court is not bound to charge upon murder in the second degree, or upon a lower grade of homicide, when there is no evidence, direct or circumstantial, to which the instruction could apply.
    3. On a trial for murder, the refusal to charge specifically as to the burden of proof resting on the state to establish beyond reasonable doubt the existence of each link in the chain of circumstantial evidence was not error, where there was direct evidence of the main fact, and the indirect evidence was merely in corroboration.

      Appeal from District Court, Fergus County; Dudley Du Dose, Judge.

    William Wallace Calder was convicted of murder. From an order denying a new trial he appeals.
    Affirmed.

      Mr. Wm. F. Cort and Mr. O. F. Goddard, for Appellant.

      Mr. C* D. Nolan, Attorney General, for the State.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

William Wallace Calder was tried upon an information charging him with the murder of one Farquhar MacRae on the 24th day of September, 1898, at the county of Fergus. The jury having found him guilty of murder in the first degree, as charged, he was sentenced to be hanged. Upon the 25th ■day of May, 1899, his motion for a new trial was denied, and he appeals.

The first specification of error is directed to the action of the district court in permitting the county attorney, on the day next before the beginning of the trial, to indorse upon the information the name of one James Calder, an important witness for the state. To the request for leave to indorse the name of this witness, the defendant objected, but the objection was overruled, and the name indorsed, the defendant excepting. At the common law the names of the Witnesses are not required to appear upon the indictment or information. It is only by virtue of the statutes that such necessity exists. Section 1813 of the Penal Code provides that the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment, or indorsed thereon, before the indictment is presented to the court, but that a motion to set it aside, interposed under Section 1910 of the Penal Code, shall be denied if the names be indorsed prior to the disposition of the motion. Under the statute as it existed from 1891 to July 1, 1895, the prosecuting attorney was commanded to indorse upon the information, at the time of its filing, the names of the witnesses then known to him, £iand at such time before the trial of any case, as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him. (Laws of 1891, p. 250, Sec. 3.) Section 1731 of the Penal Code of 1895, which is the law applicable to the present case, differs from the statute of 1891 only in this, that Section 1731 omits the provision contained in the former statute requiring the names of witnesses discovered after the filing to be indorsed upon the information, and, of course, necessity does not now exist for the indorsement of the names of witnesses discovered subsequently to the filing; but the requirement that the names of witnesses for the state then known to the attorney prosecuting must be indorsed upon the information at the time it is filed is common to both. It is manifest, therefore, that neither by the statute of 1891 nor by Section 1731 is there expressly given to or recognized in the court the privilege of permitting the names of witnesses known when the information was filed to be indorsed thereafter. In State v. Black, 15 Mont., at pages 151 and 152, 38 Pac. 676, 677, — decided under the statute of 1891, — it was held, in substance, that the trial court did not err in permitting the name of such witness to be indorsed at the opening of the trial. This rule we affirm, and apply to the case at bar. The purpose sought to be accomplished by Section 1734 is apparent. It is to advise the defendant of the witnesses known at the time the information is filed, — and these are usually the most important, — whom the state intends to call against him, so that he may have opportunity to make inquiries in respect of the witnesses, and otherwise prepare himself for meeting their testimony. If the witnesses are then known to the county attorney, his duty is to indorse their names at the time the information is filed; such is the command addressed by the statute to that officer, but it does not attempt to limit the exercise of the court’s discretion, or define the duty of the court. The contention of the defendant is that if the county attorney, even by inadvertence or mistake, omits from the information, when filed, the name of a witness then known to him, the name never can properly be indorsed, and the state must be deprived of the testimony which the witness would give had his name been indorsed. The contention is untenable, for the- court may permit the indorsement to be made after the information is filed, as was held in State v. Black, supra. In the case at bar the objection to the granting of the leave asked was general, no ground being stated in its support; the transcript fails to disclose that a showing was made at the time that James Calder was known to be a material witness when the information was filed, although the witness, when testifying thereafter, incidentally stated that he had imparted to the county attorney the facts touching the defendant’s connection with the murder. But, for aught that appeared when the objection was interposed, the witness was not known to the county attorney at the time the information was filed, and for this reason the objection was properly overruled. Every reasonable intendment is in favor of the action of the trial court; the burden of establishing error is upon him who assails the ruling; and, since the court might with propriety permit the indorsement to be made after the filing, the presumption is conclusive, in the absence of proof to the contrary, that its action was correct. It is argued that the uncontradicted assertion of the witness made during the trial ought to have been accepted by the court as proof of such knowledge by the county attorney; but, conceding this, either of two answers is sufficient: First, the proof should have been adduced at the time of the objection; secondly, no effort was made to show that the name of the witness had been purposely withheld from the information. We express no opinion in respect to the right course for the court to take where it appears that the omission of the indorsement at the time of filing was in bad. faith; but we do hold that in all other cases the court should permit the indorsement upon the information of the names of witnesses who were known to the county attorney at the time it was filed, and in such cases the defendant would be entitled, upon timely application and showing, to a reasonable delay of the hearing to enable him to meet the testimony of the witnesses whose names were put upon the information after it had been filed. In the present case, however, no application or showing whatever was made. These views are, in part, at least, supported inferentially or directly by State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Bokien, 14 Wash. 411, 44 Pac. 880; and State v. Black, supra. The first specification is without merit.

The principal points made by the defendant are that the death of MacRae was not sufficiently proved by direct evidence, and that the evidence, aside from the testimony of the accomplice, did not tend to connect the defendant with the commission of the offense. He insists there was no evidence which, without the aid of the testimony of the accomplice, tended to prove guilt. It is argued that the •corpus delicti was not established, and that the evidence in corroboration of the accomplice was not of such character and force as to warrant the submission of the case to- the jury.

Section 3108 of the Code of Civil Procedure defines “direct evidence’ ’ as c ‘that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct. ’ ’ Section 358 of the Penal Code provides that “no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of the killing by the defendant as alleged, are established as independent facts; the former by direct proof and the latter beyond a reasonable doubt.” Section 2089 of the Penal Code is as follows: ‘ ‘A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof. ”

We assume, as did the attorney general in his brief and •argument, that James Calder was unquestionably a confederate of the defendant in committing the murder of which the latter was accused. James Calder, a brother to the defendant, and an accomplice in the crime of which the defendant was convicted, was the principal witness for the state. His story is, in brief, the following: The defendant, agéd 25, and the witness, aged 19, lived with their mother and stepfather, Smith, on Flatwillow creek, in Fergus county, about 16 miles from the Musselshell river. One James Eli Fisher, aged 21 or 22, was visiting the brothers. MacRae was a ranchman and had a flock of about 1,700 sheep, one-half of which belonged to one Hildebrand. In the employ of Mac-Rae was a sheep herder named’ Allen. MacRae and Allen occupied a cabin distant 1£ or 2 miles, from the home of the defendant. The country thereabouts is sparsely populated, there being but four families in a radius of as many miles, and is but little traveled. On the afternoon of Saturday, September 2é, 1898, the brothers and Fisher, armed with two guns, went hunting. After they had gone about a mile the defendant laid before his brother and Fisher ‘ ‘a scheme’ ’ to make money, and proposed that the three kill MacRae and Allen and steal the sheep, suggesting that their possession of the sheep could be explained by saying that MacRae had hired them to drive the sheep away. The witness objected to becoming a party to the proposed crime, but was induced by threats of the defendant to aid in its commission. Immediately after the conspiracy was formed, the three started towards the ranch of one Lewis, which is about 2 miles from the MacRae cabin, at which ranch MacRae, not having a pasture of his own, had left his wagon and horses for a few days; on the way there they saw MacRae at a distance, alone with his sheep. When they were near the house of Lewis, the witness and Fisher stopped, while the defendant went into the house and talked with Lewis. Upon his return the three went immediately to MacRae, who was then about a mile from Lewis’ ranch, and a like distance from the MacRae cabin. Fisher had one of the guns, and witness the other. They went close up to McRae, and had a pleasant talk with him about the sheep, and asked him where he intended taking them. The three stood,in a row, Fisher being next to the defendant, and the witness next to Fisher. The defendant was six feet from MacRae, and fronting him, seemingly waiting and watching, for an opportunity to commit the murder while the eyes of MacRae were not upon his. The conversation lasted twenty or twenty-five minutes, and finally MacRae dropped his eyes and looked at his hands, in which he held a very small pocketknife and a little stick; then the defendant took the gun from Fisher aDd shot MacRae, who, in the graphic words of the witness, £ ‘had a word in his mouth when he was shot; I couldn’t tell what it was; I know he had it in his mouth, because he was speaking it when he was shot; he made a noise that indicated to me that he was going to speak. ’ ’ Death was instantaneous. The blood from the body formed two pools. The defendant at once complained of the failure on the part of his companions to act, saying that they were ‘ ‘too slow, ’ ’ since he had desired and expected them to do the deed. The defendant searched the body, and took from it a silver watch, which, with its buckskin string, he appropriated to his own use, and wore until he was apprehended. MacRae had also another knife, the importance of which fact will hereafter become apparent. Near the scene of the murder was a horse or pony of MacRae’s; from it the witness, at the command of the defendant, took a quilt and a short rope, and, wrapping the former about the body, and attaching one end of the latter to the horn of the saddle, and the other to the feet of the corpse, he led the horse, and dragged the body a mile to MacRae’s cabin. The pressure of the body upon the ground bent down the grass, and blood was visible in its wake; in the trail were left lint, fuzz, and fragments of the quilt. While the body of MacRae was being dragged, Fisher, with the same gun which had dispatched MacRae, killed Allen, who was about fifty feet in a direct line from the cabin. His body was also dragged in the same way as was MacRae’s to the cabin; then both bodies were wrapped in tarpaulins taken from MacRae’s cabin, and placed behind an adobe chimney. The sheep were then put into the corral, and the defendant and his associates went home. The next morning they returned to the cabin and chimney where the bodies had been deposited, and the defendant went to Lewis’ ranch, and got the wagon and horses left there by MacRae. Into the wagon they put the food found in the cabin, and also a chest with iron handles, a shovel, and some other things of Mac-Rae’s. Then they put the bodies, still covered with tarpaulins, into the wagon. It was the intention of the defendant to sell the wethers at Forsyth, and ship the remainder of the flock after reaching the railway. In pursuance of this purpose they then began their wagon journey to the Musselshell river, on the afternoon of Sunday, September 25th, taking with them the sheep and three of MacRae’s horses, and one belonging to the witness. On Monday afternoon, September 26th, the Musselshell river was reached; on the bank of the river, and five or six feet from the brink, they built a great fire of logs to burn the bodies, and placed them, together with the chest and its contents, taken from the cabin, upon the fire. The clothing worn by MacRae and Allen at the time they were killed had not been removed. From 2 o’ clock to 12 o’clock midnight of that day the bodies burned, and the defendant and his companions from time to time replenished the fire. Daylight revealed only ashes and cinders. These the defendant and the witness cast into the river by means of the shovel taken from the MacRae cabin, leaving no apparent evidence of the fire, except the marks on the ground where it had been. The debris floated down on the surface of the stream a short distance, and was stopped by the still water in a hole. Commanded to do so by the defendant, the witness waded into the water and dislodged the cinders. They then proceeded on their journey, having first buried á tin box, a. large knife, and a gun, which had also been taken from the cabin, — the1 difficulty of consuming these by fire being the reason they were buried, and not burned with the bodies and chest. Before reaching Forsyth, the defendant and his associates were captured by a posse eomitatus. While in jail at Forsyth the defendant wrote a letter to the sheriff of Fergus-county, which he delivered to the witness for that officer; the-letter reached the sheriff, and is as follows:

“Miles City, Oct. 6, 1898.
“Sheriff — Dear Sir:
“Turn them boys loose; they haven’t done anything.
“Yours truly,
“F. McRae.”

Such, in brief, was the testimony of the accomplice; and unless he was corroborated to the extent required by Section 2089, supra, the defendant should have been acquitted. Although the practice at the common law is for the court to charge the jury to view the testimony of an accomplice with caution, and to advise an acquittal unless such testimony be corroborated in some material part by other evidence, yet these cautionary and advisory instructions may be given or withheld in the uncontrolled exercise of an arbitrary discretion. This rule of the common law rests upon the premise that the defendant may legally be convicted of crime upon the unsupported testimony of his accomplice, —the only exception to the rule seems to be a prosecution for perjury or its subornation, as was declared in People v. Evans, 40 N. Y. 1. Section 2089, supra, in express terms requires the accomplice to be corroborated by evidence from an independent source which in itself tends to connect the defendant with the commission of the crime; it does not, unless by implication, require the production of such other evidence with respect to the corpus delicti, the identity of the person killed, or any other particular. But, whatever may be the true construction of the section, we shall in this case assume, without deciding or intimating any opinion upon the matter, that its spirit requires the accomplice to be corroborated by other evideuce which in itself, and independently of his testimony, tends not only to connect the defendant with the commission of the offense, but also to prove the corpus delicti and establish the identity of the person slain. The corpus delicti is the body or substance of the offense; this means, and has always meant, the existence of the criminal fact. In prosecutions for murder, proof of the corpus delicti involves the establishment of the fact that a murder has been committed, but includes neither the identity of the person alleged to have been killed, nor the killing by the person accused. Evidence that a murder has been done, whether by the defendant or another, is proof of the body of the offense. Section 358, supra, declares, among other things, that no person may be convicted of murder or manslaughter unless the death of the person alleged to have been killed be established by direct proof. The testimony of the accomplice was direct evidence of MacEae’s death. His testimony, however, was not, as we assume for the purposes of this case, of itself sufficient to establish it; corroboration in this particular, while necessary, need not have been other than by indirect or circumstantial evidence of the identity of the decedent and MacEae.' The true meaning of the statute in this respect is that in the proof of the corpus delicti there must be direct evidence establishing the death of a person, — the fact that the decedent is the person alleged to have been killed may be proved by circumstantial evidence, that is, by inferences drawn from the facts proved; or it may, of course, be established by direct proof; for example, direct proof that somebody is dead becomes direct proof that MacRae is dead whenever by indirect evidence the remains are shown to be Mac-Rae’s. (People v. Palmer, 109 N. Y. 110, 16 N. E. 529; State v. Pepo, 23 Mont. 473, 59 Pac. 721.) This was the rule at common law,* and has not been modified by Section 358 supra. Again, the direct testimony of the accomplice to the alleged fact that MacRae is dead becomes sufficient proof of his death when the accomplice is corroborated by independent evidence, indirect though it be, which tends to establish such fact. In this case the corpus delicti, the identification of MacRae as the person slain, and the perpetration of the crime by the defendant, were proved by the direct evidence, if true, of an eyewitness. To sustain a conviction upon such testimony, that witness, being an accomplice, must have been corroborated. Was the corroboration sufficient?

Smith, the stepfather of the defendant, testified, among other things, to these matters: He last saw Allen on the 20th day of September, 1898; MacRae he saw and talked with at 10 o’clock on the morning of the 24th, and each then agreed to assist the other in building fences and in doing certain work. Since that time Smith has not seen MacRae, although on the afternoon of the next day the defendant told Smith that Mac-Rae was alive, as will hereafter appear. When Smith last talked with MacRae, the latter was in the vicinity of his cabin. Early in the afternoon of the 24th the defendant, his brother James, and Fisher, left the Smith home, returning about dark. Next morning, the 25th, they went away at 7 o’clock, the defendant and Fisher carrying guns. The defendant at about 1 o’clock returned and got a bed, which witness helped him to pack upon his horse; the defendant saying that he was going hunting. At half past 2 or 3 o’clock in the afternoon Smith saw the defendant and his two companions, who were then about three miles from MacRae’s cabin. They had a wagon and four horses, and were driving or leading the MacRae and Hildebrand sheep. The witness went towards the wagon, but the defendant and his brother left the wagon and went to meet Smith. The defendant told Smith that he was leaving with MacRae’s sheep; that MacRae intended stealing Hildebrand’s sheep, and was to pay the defendant $500 for assisting him in taking the sheep to Miles City. “When he spoke about he was to get $500 to help MacRae take the sheep over to Miles City, I asked him where Mac was. He says, 'He is in the wagon,’ he says. ‘He don’t want to show up here,’ he says, ‘until he gets away, because he don’t want nobody to see him. ’ ’ ’ The witness did not get to the wagon, but saw it distinctly, observing that a wagon sheet or tarpaulin extended from the hind end to the back of the seat, covering the bed. The defendant asked Smith to write to him at Miles City, addressing the letter to “Charles A. Brown.” The brother produced a book, in which the defendant wrote the assumed name. Then the defendant and Smith had a private conversation aside, in which he requested Smith not to sign his name to any letter so addressed; the defendant saying that it would be better to omit the signature. The defendant and his associates then drove off in the direction of the Musselshell river. From these circumstance^, Smith feared that all was not as it should be, — MacRae and he on the morning of the 21th having agreed upon a plan of mutual assistance in their work; having been told by the defendant two hours previously, when leaving home, that he was going hunting, — the promise to pay $500 for services easily procurable for $30; the assumed name, and the larceny which the defendant so openly avpwed, — these and other circumstances aroused the suspicions of Smith. He went immediately to the MacRae cabin, arriving there about 1 o’clock, or a trifle earlier, where he found the contents scattered so “that it looked to me as though a man had left things in there as though he would be back most any time, —the same day or the next day. ’ ’ At the adobe chimney adjoining the cabin he found a trail made by the dragging of some heavy body; in the trail were pieces of lint and stuff which had caught on the twigs, grass and ground, and in places the lint showed that it had been rolled under whatever had made the trail. He followed the trail for about a mile. There it stopped, and at that place, about 10 inches or a foot apart, were two jmols of curdled blood, somewhat dry and hard. A few moments afterwards he saw the defendant proceeding on his way with the sheep and horses. The next day, the 26th, he and his half-brother Lewis made a further investigation. In the center of the trail they found a small, gray-handled pocketknife, and picked up some of the lint. Two days afterwards, on September 28th, they made another examination, and found that a-second trail ran into the first one discovered, the second trail being about 200 yards long, and ending with the first one at the chimney. Pony tracks were visible on each trail. Where the trails stopped at the chimney there had been a large spot of blood, most of which had been shoveled into a hole, leaving on each side of the shovel’s track a little strip of blood. Behind the chimney was blood, and there they found a stick of wood with blood on one side of it, from which the blood had dripped to the ground beneath, where, in a hole, and covered over, were found other bloody sticks and dirt. Smith was one of the posse that captured the defendant, who was found with the sheep, horses, wagon and watch. On his return trip home, and on the 10th or 11th of October, Smith and others discovered on the bank of the Musselshell river, at a point where the defendant passed with his sheep, evidences showing that a large fire had been built very near the brink. ’From a circular space 12 feet in diameter the ashes had been shoveled off, the marks of the shovel being distinct; towards and in the center the ground had been scraped clean, but near the edges there were some ashes and cinders, and the ground was blackened. In the river at this point, just opposite the remains of the fire was a natural washout or hole. There they spent a day and a half, finding in the edge of the water a piece of cinder or charred wood. Making a raft of logs, and a ladle with a handle 8 or 10 feet in length, they proceeded to explore the hole. They brought up, with cinders and ashes, four kinds of buttons, buckles, nails, pens, and pieces of bone and teeth, and fragments of skull, all showing the effect of fire; there were enough of these things to fill a 10-pound lard pail. Leaving the river, they went to the MacRae cabin, and saw where a bullet had grazed a tree distant about 150 yards from the cabin, and near the second and shorter trail; the bullet was discovered in another tree, four or five feet distant from the tree that had been grazed.

Witness Sherman was one of the men who apprehended the defendant and his companions on Porcupine creek, about 30 miles from Forsyth. Sherman informed the defendant that he wanted him for the murder of MacRae and Allen; the defendant answered that both were alive and at Miles City. Upon his. person were found some money, a pocketknife and a watch, the latter, at least, having admittedly belonged to MacRae. At Forsyth, Sherman, received from James Calder the letter addressed to the sheriff, and hereinbefore copied. The testimony of Sherman in respect of the finding of the bones, teeth, buttons, nails, buckles, pens, and the like, is substantially that of Smith. Sherman then went to the Mac-Rae cabin, saw the shorter trail, and followed the longer one to the place where Smith had found the two pools of blood on September 25th. Witness took up a clot of the blood the size of a man’s hand, and placed it in a cloth, producing it in that condition before the jury. His testimony agreed with that of Smith as to the bloody stick in the hole found near the chimney, and in addition he gave reasons for his opinion that the physical facts indicated that £ ‘the bodies must have been laid across the sticks. ”

The witness Lewis testified: That he saw the defendant at about 3 or 4 o’clock on the afternoon of September 24th; that the defendant said he had been hunting and “stopped in for a few moments, and that his companions were outside, waiting for him;” he further said to Lewis that he and MacRae were leaving the country with Hildebrand’s sheep, “and asked me to write to him at Miles City, to let them know if Hildebrand made any disturbance about the sheep, the letter to be addressed to ‘Charles A. Brown, Miles City,’ and he would get it.” Between'8 and 9 o’clock in the forenoon of the next day the defendant again went to see Lewis, and on that occasion informed Lewis that MacRae had hired him for a few days, and had sent hini to get the team and wagon belonging to MacRae, for use at MacRae’s place for a short time. On the morning of the 26th of September Lewis saw the two trails, and corroborated Smith’s and Sherman’s testimony respecting their appearance. Lewis testified further: That in the longer trail he found pieces of quilt, wool, and a jackknife; behind the 'chimney “we found where there had been some poles piled up, and blood, — looked like somebody had been piled up in there, — blood there on some sticks. ” The shorter trail was about 200 to 250 yards long, and led from a patch of timber to the chimney, and showed evidences that something heavy had been dragged over it.

Other witnesses testified as did Smith, Sherman and Lewis with respect to the trails, and the fragments taken from the river at the place where the great fire had been. Two iron handles, suitable to- a chest, were also found in the hole. A physician and surgeon, called as an expert, declared that the bones had been subjected to the action of either a considerable degree of heat or long-continued heat; that the bones and teeth were those of an adult human being, and, in his opinion, of two persons.

The defendant was a witness in his own behalf. He denied the killing, but said he had no doubt, from all appearances, that both MacRae and Allen were dead. His story, in brief, is this: MacRae and Hildebrand owned a flock of sheep in common; MacRae asked defendant to steal Hildebrand’s sheep and go away with the entire flock, which defendant on the 24th day of September consented to do, MacRae agreeing to pay him $500 in hay, the wagon, team, harness, and the like; Lewis had made arrangements to buy the hay from the defendant; on the afternoon of the 24th the sheep weve counted and divided into two bands, each containing the same number, but no plausible reason was shown why such division should have been made; that afternoon MacRae, Allen and the defendant, with his associates, prepared the contents of the cabin for transportation by wagon; next morning they saw Allen and MacRae at the cabin, — the latter told him to go for the wagon at Lewis’, which he did; and then the wagon was loaded; defendant, his brother and Fisher started away with the sheep at about 12:30 o’clock in the afternoon; MacRae and Allen had their packs ready, and intended to leave the country as soon as they got three horses which were near by; MacRae’s plan was to purchase 300 sheep on the way to Miles City, so that the band, when sold, would bring $6,000, which amount he desired to have when fleeing the state; in the next breath, however, the defendant testified that, instead of purchasing, MacRae intended, on the way to Miles City, to steal all the sheep that he conveniently could. The defendant never saw or heard of or from MacRae or Allen after he left them at the cabin in the afternoon of the 24th. From the cabin the defendant went to Smith’s house for a bed, and told his mother that he was going hunting, but would return in a few days. When he met Smith, and asked him to write to Charles A. Brown, at Miles City, he did not tell Smith that MacRae was in the wagon. He admits writing the letter from Forsyth to the sheriff, and signing, MacRae’s name to it, and that he made no effort to ascertain whether MacRae or Allen was in Miles City, although he believed they were in that town: The defendant’s testimony abounds in discrepancies and absurdities, and is shown to be untrue in material matters by circumstances and the statements of disinterested witnesses.

This evidence was sufficient to satisfy the requirement of section 358, supra, that the death of the person alleged to have been killed must be established by direct proof as a fact independent of the fact of the killing by the defendant; it was, indeed, ample. The death of a ' human being was directly proved by the identification of certain teeth and charred bones as those of an adult person; that the decedent was MacRae was established by the direct testimony of the accomplice, corroborated by circumstantial evidence which in itself tended to prove such identity. The provisions of section 2089, supra, were also met by the proofs: The accomplice was corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tended to connect the defendant with the murder of MacRae. It is not necessary that the evidence in corroboration of the accomplice must be of sufficient strength, when standing alone, to connect the defendant with the commission of the crime, or to establish his guilt; if it tends m and of itself"alone to prove the defendant’s connection, it is sufficient. State v. Geddes, 22 Mont. 68, 55 Pac. 919; People v. Elliott, 106 N. Y. 288, 12 N. E. 602; Murray v. Com. (Ky.) 28 S. W. 480; State v. Townsend, 19 Or. 213, 23 Pac. 968; State v. Russell, 90 Iowa, 493, 58 N. W. 890; Fort v. State, 52 Ark. 180, 11 S. W. 959; People v. Christian, 78 Hun. 28, 29 N. Y. Supp. 271; People v. Grundell, 75 Cal. 301, 17 Pac. 214.) The statement by the defendant to Smith that MacRae was in the wagon, but did hot wish to be seen, and his possession of the dead man’s watch, sheep, horses and wagon, were, under the circumstances, and without reference to the testimony of the accomplice, evidence tending to connect the defendant with a murder as appalling and fiendish in its commission and incidents as was ever perpetrated in Montana. Nor was it necessary that the whole case for the state should have been established by the corroboratory evidence: (People v. Hooghkerk, 96 N. Y. 149.)

The court charged that the defendant was either guilty of murder of the first degree, or not guilty of any grade of homicide, saying to the jury that a definition of murder of the second degree would be of no use, because the defense was that the defendant had nothing to do with the killing of Mac-Rae. Of this the defendant complains, upon the ground that the degree should have been left for the jury to find. We remark, in passing, that the reason assigned by the court for omitting to define murder of the second degree is unsound; nevertheless, if the instruction itself be correct, it will not be vitiated by the statement of a wrong reason in its support.

The element which raises murder of the second degree to murder of the first degree is deliberation. Where the proof of guilt on a trial for deliberate murder is to be deduced from circumstantial evidence alone, the court should ordinarily, and perhaps always, charge the jury as to murder of the first and .second degrees, and should also charge as to manslaughter whenever there is any evidence tending to negative the presence of malice; for in such cases the circumstances may permit of inferences tending to show the commission of different grades of felonious homicide. If the killing was unlawful only, manslaughter is the crime; add to the element of unlawfulness malice aforethought only, and murder of the second degree is the crime; and, lastly, add deliberation to unlawfulness and malice aforethought, and murder of the first degree is the crime. Even in cases depending for proof of guilt largely or chiefly upon direct evidence, the omission to instruct with respect to murder of the second degree is a dangerous practice, and would in mobt cases constitute error sufficient to reverse a judgment convicting the defendant of the higher crime; the reason being that the question of fact of whether or not the element of deliberation was present is, save in very exceptional cases, to be determined, not by the court, but by the jury. The case at bar, however is exceptional. The murder alleged, if committed, was, under the evidence, deliberate, or MacRae was not unlawfully slain. Unless the jury believed the story of the killing as related by James Calder, they could, under their oaths, do nothing but find the defendant not guilty. If they believed it, the verdict could be nothing less than guilty of murder of the first degree. It is not the duty of the court to charge upon murder of the second degree, or upon a lower grade of homicide, where there is no evidence, direct or circumstantial, to which the instruction could apply. (State v. Hopper, 71 Mo. 425; State v. Umble, 115 Mo. 452, 22 S. W. 378, approved in State v. Fairlamb, 121 Mo. 137, 25 S. W. 895; State v. Estep, 44 Kan. 572, 24 Pac. 986; Fertig v. State, 100 Wis. 301, 75 N. W. 960; Jones v. State, 52 Ark. 345, 12 S. W. 704; Smith v. U. S., 1 Wash. Ter. 262; Washington v. State, 36 Ga. 222; Bish. New Cr. Proc. Vol. I, Sec. 980, subd. 2, and cases there cited; Thomason v. Territory, 4 N. M. (Johns.) 150, 13 Pac. 223; People v. Chavez, 103 Cal. 407, 37 Pac. 389; 10 Enc. Pl. & Prac. 164; Cornell v. State (Wis.), 80 N. W. 745; Territory v. McAndrews, 3 Mont. 158.) The defendant in this case is guilty of murder of the first degree, or he is innocent. There is no possible intermediate ground.

The defendant prayed, and the court refused to give, a charge in respect of the burden resting upon the state to establish beyond a reasonable doubt the existence of each link in the chain of circumstantial evidence. The court did not err. The question of guilt or innocence was not dependent upon circumstantial evidence alone, or in a controlling degree upon such evidence, and therefore the case did not' require a special instruction as to that means of proof. There was direct evidence of the main fact, and the indirect evidence was merely in corroboration. (Wooldridge v. State, 13 Tex. App. 443; Buntain v. State, 15 Tex. App. 515; Leeper v. State, 29 Tex. App. 154, 15 S. W. 411.) Were the refusal to charge specifically upon circumstantial evidence held to be error in all cases where it, in conjunction with direct evidence, is relied upon as tending to prove guilt, the cases free from error in that regard would be extremely few; for in almost every, if not in every, prosecution there is indirect evidence of a material nature. In the case at bar the court fully and accurately charged the jury upon the law applicable to the facts, including the instruction usually given upon the subject of reasonable doubt, and the defendant has no just cause to complain.

Finding the record free from error, the order refusing- a new trial is affirmed.

Affirmed.


text:
    STATE, Appellant, v. SCHNEPEL, Respondent.
    [No. 1,478.]
    [Submitted January 10, 1900.
    Decided February 5, 1900.]

      Criminal Law — • Witnesses — Indorsing Names on Information —Evidence—Impeaching Defendant — Instructions— Weight of Evidence — Preponderance of Evidence — Reasonable Doubt — New Trial — Defect in Information— Waiver.

    1. Under Penal Code, Section 1734, requiring the county attorney to indorse on the information, on iiling it, the names of the witnesses for the state, if known, but not providing for the indorsement of other witnesses thereafter discovered, the act of the attorney at the trial in indorsing, under the directions of the court, the names of other witnesses on the information is not error, as such witnesses were subject to be examined whether their names were indorsed on the information or not.
    2. It is error to deny the county attorney the right to examine witnesses because their names do not appear on the information, in the absence of a showing on the part of the defendant that the county attorney did in fact know of their existence at the time the information was filed.
    8. When a defendant is sworn, and testifies in his own behalf, he is subject to the same rules of cross-examination and impeachment as any other witness, and it is competent for the state to impeach his testimony by evidence that his general reputation for truth, honesty and integrity is bad.
    4. An instruction calling special attention to the defendant’s witnesses and giving special direction as to how their evidence should be weighed, is properly refused, as invading the province of the jury.
    5. The refusal of an instruction easting upon the state no greater burden than that of showing by a preponderance of the evidence the circumstances establishing defendant’s guilt was proper, since the universal rule is that in all such cases the prosecution must establish such circumstances beyond a reasonable doubt.
    O. Under Penal Code, Section 1910, providing that an information may be set aside when not properly subscribed by the county attorney, and Section 1911, providing that, unless a motion to set aside be made before demurrer or plea, this ground of objection is waived, if the motion to set aside the information was made in the trial court, and improperly refused, the error can be reviewed only on appeal from the judgment; it cannot be reviewed on an appeal from an order granting a new trial, not being one of the grounds for new trial enumerated under Penal Code, Section 2192.
    7. It is error, in a criminal case, to grant defendant’s motion for a new trial on the ground that the information therein is not properly subscribed.
    8. The rule that the trial court’s action in granting a new trial cannot be disturbed, even if it committed errors during the course of the trial, because such action was discretionary, applies only when the motion is made upon grounds which appeal to the discretionary power of the court, hence does not apply where the motion was made upon assignments of errors in law only.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

      Henry Schnepel was convicted of grand larceny. From an order granting a new trial the state appeals.
    Reversed.

      Mr. G. JB. Nolan, Attorney General, and Mr. G. P. Connolly, for the State.

      Mr. M. J. Cavanaugh, and Mr. David M. Durfee, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

On October 14, 1897, the defendant was convicted of the crime of grand larceny, and thereafter, on the 21st day of October, was sentenced to imprisonment in the state prison for the term of one year. Thereupon he made a motion for a new trial, alleging as grounds therefor various prejudicial errors. On March 4, 1899, the motion was granted. From the order granting a new trial the state has appealed. The order does not indicate the ground upon which the action of the trial court was .based in granting the motion. It will therefore be necessary to notice all the assignments of error made by defendant, in order to determine whether the action of the trial court was justified; for, if that court was justified in granting a new trial upon any one of the errors assigned, the order must be affirmed.

The charge was preferred by information. After the jury was selected, but before any proof was offered, the county attorney asked leave of the court to indorse upon the information the names of three witnesses, not known to him at the time the information was filed. Such leave was granted over objection of counsel for defendant, and the indorsement was made. Defendant saved his exception. The only provision of the statute upon this subject is Section 1734 of the Penal Code. By it the duty is enjoined upon the county attorney to indorse upon the information, upon filing it, the names of the witnesses for the state, if known. The purpose of this requirement is to enable the defendant to make inquiry as to the witnesses, and to prepare to meet their testimony. (State v. Calder, ante, p. 504, 59 Pac. 903.) The duty of the county attorney is fully performed under this provision, however, when he has, at the time of presenting the charge for filing, indorsed the names of all witnesses then known to him; for there is no command that, if thereafter other witnesses are discovered, their names shall also be indorsed. Such witnesses may be called and examined at the trial whether their names have been indorsed or not. (State v. Sloan, 22 Mont. 293, 56 Pac. 364.) The defendant, therefore cannot complain if the county attorney indorses their names under the directions of the court, thus giving formal notice of the intention to call them, when no such notice is required. It is the duty of this officer to discover and present all the evidence he can obtain. He would be remiss in the performance of this duty should he neglect to do so. The mere fact that the names of the additional witnesses were written upon the information did not add to or detract from the probative force of their testimony; and it would have been error to deny the county attorney the right to examine them because their names did not appear thereon, in the absence of a showing on the part of the defendant that the county attorney did in fact know of their existence at the time the information was filed. Had such showing been made, it would still have been within the discretion of the court to permit the names of the witnesses to be indorsed, and their testimony to be used. (State v. Calder, supra.) No such showing was made in this case. No objection was interposed to the examination of the witnesses, nor any complaint made that defendant had not had sufficient opportunity to meet and controvert their evidence. The objection was based upon a misconception of the law, and was without merit.

The defendant testified in his own behalf, going fully into the facts constituting his defense. To impeach his testimony, the state called several witnesses, who testified that his general reputation for truth, honesty and integrity in the neighborhood where he lived was bad. Objection was made that such evidence was incompetent, inasmuch as the defendant had not himself put his character in issue. The objection was overruled. ‘ The defendant having testified to matters material to his defense, it was competent for the state to impeach his testimony. When a defendant is sworn, and testifies in his own behalf, he is subject to the same rules of cross-examination and impeachment as any other witness. (Code of Civil Procedure, Sec. 3379; Penal Code, Sec. 2078.) See, also, Mitchell v. State, 94 Ala. 68, 10 South. 518; People v. Beck, 58 Cal. 212; Drew v. State, 124 Ind. 9, 23 N. E. 1098; State v. Rainsbarger, 79 Iowa, 745, 45 N. W. 302; State v. Day, 100 Mo. 242, 12 S. W. 365; State v. Broderick, 61 Vt. 421, 17 Atl. 716. The objection was properly overruled.

Complaint was made that the court erred in refusing to submit the following instruction to the jury: “The jury are instructed that in passing upon the testimony of defendant’s witnesses in this case they should endeavor to reconcile their testimony with the belief that all the witnesses have endeavored to tell the truth, if they can reasonably do so under the evidence, and, if reasonably possible, attribute any differences or contradictions in their testimony, if any exist, to mistake or misrecollection, rather than to a willful intention to swear falsely.” The instruction was properly refused.. It would have invaded the province of the j ury by calling special attention to the defendant’s witnesses and in giving special direction as to how their evidence should be weighed. By implication the jury would have been given to understand that the same rule should not be applied to the other witnesses in the case. The court may not properly call the attention of the jury specially to any particular witness, or class of witnesses, or to any particular portion of the evidence. Such an instruction is calculated to induce the jury to infer that the portion of the evidence thus noticed is of special importance or weight, and lead them to give less consideration to other portions which they ought to examine with equal care. This Court, in Wastl v. Montana Union Railroad Co., 17 Mont. 213, 42 Pac. 772, considered an instruction calling the attention of the jury to certain witnesses by name. It was there said: “The credibility of the witnesses is a question to be deter-, mined solely by the jury. The court has no right to comment upon their credibility, either by word or intimation. By designating the three witnesses named in the instruction among the great number who testified in the case, and calling the particular attention of the jury to their testimony, and theirs only, the court intimated that there was something connected with their evidence which demanded particular scrutiny, and to that extent the instruction was an implied comment on their evidence and credibility; at least, the jury was authorized to so consider it.” The vice of the instruction under consideration here is the same, for there is no difference between calling certain witnesses by name and pointing them out by some other designation equally as effective to distinguish them. (People v. Hawes, 98 Cal. 648, 33 Pac. 791; Allen v. State, 111 Ala. 80, 20 South. 490; Model Mill Co. v. McEver, 95 Ga. 701, 22 S. E. 705; Scott v. People, 141 Ill. 195, 30 N. E. 329; Goodwin v. State, 96 Ind. 550.)

While a trial court may instruct the jury that they should, in considering the evidence, presume that a witness speaks the truth, unless there is some reason to think otherwise (Thompson on Trials, Sec. 2420; State v. Jones, 77 N. C. 520), the instruction given must apply to all witnesses in the case, and not to some to the exclusion of others.

Complaint was also made that the court refused the following instruction: “The jury are instructed as a matter of law that, where a conviction of a criminal offense is sought upon circumstantial evidence, the prosecution must not only show by a preponderance of the evidence that the alleged facts and circumstances are true, but they must be such facts and circumstances are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused. And in this case all the facts and circumstances relied upon by the prosecution to secure a conviction, if they can be reasonably accounted for upon any théory consistent with the innocence of the defendant, the verdict should be not guilty. ’ ’ It will be observed that this instruction does not read intelligently, because of the use of the word ‘ ‘be’ ’ for the word ‘ ‘believe. ’ ’ Still, if this correction had been made, the instruction was nevertheless properly refused. It casts upon the state no greater burden than that of showing by a preponderance of the evidence the circumstances establishing the guilt of the defendant, whereas it is the universal rule that in all cases where the guilt of the defendant is sought to be established by circumstantial evidence the burden devolves upon the prosecution of establishing to the satisfaction of the jury beyond a reasonable doubt all the circumstances necessary to show such guilt. (State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294.) Furthermore, an examination of the instructions given by the court shows that the jury were fully and correctly instructed upon the phase of the law involved in the instruction under consideration.

The last error assigned, and the one to which counsel for the respondent devotes almost his entire argument in the effort to support the action of the trial court in setting aside the verdict of the jury, is based upon the assertion that the information filed herein is not properly subscribed. An examination of the record shows that it is subscribed by the chief deputy county attorney, instead of by the county attorney. Section 2192 of the Penal Code enumerates the grounds-upon which the court may grant a new trial. The failure of the county attorney or the attorney prosecuting to properly subscribe the information is not enumerated in this section asoné of the grounds for a new trial. True, section 1910 of the same code provides that the information may be set aside-where if is not properly subscribed by the county attorney or the attorney prosecuting; but section 1911 provides further that, unless a motion be made to set aside the information before demurrer or plea, this ground of objection to it is deemed to be waived. (State v. McCaffery, 16 Mont. 33, 40 Pac. 63.) The record does not show whether a motion to set. aside the information was made in the trial court. Even if there had been, and the court had erred in refusing to set it aside for the reason that it was not properly subscribed, the error thus committed by the trial court could be reviewed only on appeal from the judgment. The question presented by this assignment is, therefore, not before chis court on this appeal. If the court below granted defendant’s motion for a new trial on this ground, it was error.

No assignment was made in the court below as to the insufficiency of the evidence to sustain the verdict of the jury. Counsel for respondent contend here that, even if the court committed no error during the course of the trial, yet its action in granting a new trial on the motion of the defendant cannot be disturbed, because such action was discretionary. This is the rule when the motion is made on the ground of insufficiency of the evidence, or other ground which appeals to the discretionary power of the court; but when the motion is made upon assignments of errors in law only, as in this case, it is not addressed to the discretion of the court, but presents a question of strict legal right. (Hayne, New Trial & App. Sec. 100; Hinkle v. S. F. & N. P. Railroad Co., 55 Cal. 627.)

The trial court having committed no error during the progress of the trial, it was clearly error to grant a new trial for any of the reasons assigned in this record. The order granting a new trial is therefore reversed, and the cause remanded to the district court, with direction to enforce the judgment as originally entered, jRemittitur forthwith.

Beversed and remanded.