author: MR. COMMISSIONER CALLAWAY Pee Curiam.-

text:
    LANE, Respondent, v. BAILEY, Appellant.
    (No. 1,983.)
    (Submitted January 4, 1904.
    Decided February 11, 1904.)

      'Elections — Contest—Verification of Statement — Registration of Voters — Failure to Take Oath — Registry Agent — Failure to Perform Duty — Effect—Trial by Court — Leading Questions — Incompetent Evidence — Appeal — Insufficiency of Evidence — Sufficiency of Exception — Evidence—Identification of Ballot — Secrecy of Ballot — Waiver—Statutory Construction.

      1. Section 2014, Code of Civil Procedure, prescribes that in election contests a statement of the grounds of contest must be verified by contestant’s affidavit that the matters and things therein contained are true. Held, that a verification of such a statement, in conformity with Section 731, was sufficient.
    2. Certain persons applied for registration, giving the agent all information requested, and their names were entered in the official register, check lists, etc. The oath required by Section 1209, Political Code, was not administered, the agent testifying that he did not think it was necessary. Held., that the failure to take the oath did not disqualify the electors.
    3. Failure of registry agent to perform his duty does not deprive a qualified elector of the right to exercise his franchise.
    4. Election statutes, being intended to promote purity in public elections to the end that a full and fair expression of the public will may be had, are remedial and'beneficial, and should be liberally construed.
    5. Where a cause is tried to the court without a jury, the admission of incompetent evidence will nor afford ground for reversal, the presumption being that the court did not consider it in arriving at its conclusion.
    6. Code of Civil Procedure, Section 1151, provides that a final decision in an • action or proceeding shall be deemed excepted to by the adverse party, no bill of exceptions being required. Section 1152 provides that, when the exception is to the verdict or decision on the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which the evidence is alleged to be insufficient. Heldj that a specification of error, in an election contest, of “insufficiency of the evidence to justify the findings of fact made by the court herein,” was insufficient to permit a review thereof.
    7. In an election contest it appeared that certain persons conspired to colonize voters by employing men prior to election to go into the county to obtain work and vote a certain ticket. Their expenses were paid, and the conspiracy was carried out, the colonized voters knowing the illegal purpose of their employment, and perjuring themselves in obtaining registration. Held that their declarations, as well as those of the original conspirators, from the time of the negotiations for their employment up to and during the election, which were germane to the conspiracy or a part of the res gestae^ were admissible.
    S. Where in an election contest it docs not appear from the direct evidence of the voter for whom the ballot was cast, circumstantial evidence is admissible to establish the fact.
    9. In an election contest in which a conspiracy to colonize voters was alleged, contestant introduced testimony tending to show that men employed as ranch hands were hired mainly for political purposes, witnesses testifying that there was no demand for ranch hands in the neighborhood, that the employer had no special use for men hired, and that most of them simply “killed time.” Held, that the exclusion of the testimony of such a voter, offered by contestee,- as to whether he was able to state whether the men were kept busy during the time they were at the ranch, and whether lie knew and could state when a man was doing a day’s work and was kept busy, was error.
    10. Where, in an election contest, testimony erroneously excluded does not affect sufficient votes to overthrow the decision of the lower court, such exclusion is not ground for reversal.
    11. An appellate court will not reverse a judgment merely because the lower court committed error: it is only when the error has materially affected appellant’s rights on the merits of the case.
    12. 1'olitical Code, Section 1364, as amended by Session Laws of 1901. page 120, authorizes judges of election to assist voters who cannot read and write, etc., in making out their ballots, the judges to certify on the outside of the ballot that it was made out with their assistance. Section 1358, as amended by Session Laws of 1901, page 118 et seq., provides that no elector shall place any identifying mark on his ballot. Section 1413 authorizes the use of ballots as evidence In election contests. Held that, where it appeared in an election contest that a voter’s ballot had been so indorsed, it was necessary to show that it could not be thereby identified, In order to let in, as secondary evidence, testimony as to how he voted.
    13. The privilege of refusing to testify as to how he voted may be waived by an elector.

      Appeal from District Govert, Hosebud County; G. H. Loud, Judge.

    E'lectioN contest by Clarence R. Lane against Charles W. Bailey. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Mr. Sydney Sanner, Mr. F. J. Dierhs, and Mr. F. V. H. Collins, for Appellant.

      Mr. T. J. Porter, and Mr. J. G. Lyndes, for Respondent.
   MR. COMMISSIONER CALLAWAY

prepared tbe opinion for the court-.

Election contest. Clarence R. Lane, an elector of Rosebud county, contests the right of Charles W. Bailey to hold the office of county clerk. Bailey and one Roderick McRae were opposing candidates for the office, Bailey being the democratic, and McRae the republican, candidate. The canvassing board found that B:ailey had received a majority of the votesi oast for the office of county clerk, and declared him elected. As ground for contest, Lane alleged that a number of persons, exceeding con-testee’s majority, who were not entitled to vote in said county, had voted for contestee; that they were not bona» fide residents thereof, but had been, brought into the county; thirty days of thereabouts, prior to the election, pursuant to a conspiracy entered into by James S'. Hopkins, Fred Ramsey, William McCarthy, William J. Nix and others, to colonize Rosebud county by illegally importing and bringing into the county large numbers of persons shortly before the- election, and causing them to be registered- and to vote the democratic ticket, and for said Charles W. Bailey; which conspiracy, according to- the allegations of the complaint, was accordingly carried out. The complaint, or statement of contest, contains this allegation: “That said persons so- illegally brought into said county of Bosebud were induced by the aforesaid parties to go into said county under a promise of unusual and exorbitant wages being paid them for.their services as laborers, and on the further promise and representation that they could return to their various homes without expense as soon as the election was over.”

To the complaint the contestee filed an answer which, in addition to a general denial, alleged that Bailey was in fact elected over McRae' by a, majority o.f 82 legal votes, for the reason that at Hathaway precinct 18 persons, and at Rosebud precinct 49 persons, had illegally registered without ever having taken or subscribed, or offered to take or subscribe, the oath prescribed by Section 1209 of the Political Code, as amended. This the contestant denied in his reply, and further alleged that said persons were in fact duly qualified voters in all respects, and that if they did not take the oath it was the fault of the registry agent, and not the fault of the voters.

The pleadings are of great length, and only the gist of the issues' is given here. Trial was to the court, sitting without a jury. The court found that 24 illegal votes had been cast and counted for the1 contestee, deducted the same from the number of votes received by him, and declared McRae elected, and entitled to the office of county clerk. Prom this judgment the contestee has appealed.

Counsel for contestee urge that the complaint is not verified as required by the statute, which prescribes that the statement must be verified by the affidavit of thei contesting party that the matters and things therein contained are true. (Code of Civil Procedure^ Sec. 2014.) The verification attached was in the usual form required by Section 731 of the same Code when a party to an action verifies a pleading. This was a substantial compliance with Section 2014, supra, and is sufficient. (Kirie v. Rhoads, 46 Cal. 398.)

Contestee insists tbat the 67 men named in bis answer were not qualified voters, because they failed to take tbe oath set forth in Section 1209 of the P'olitical Code, as amended. (Session Laws. 1897, p. 118.) The proof shows, that the electors presented themselves before the registry agent for the purpose. of complying with the law which requires a voter to be registered. They gave the agent all the. information he asked concerning their qualifications as voters, and he entered their names as such upon the official register. According to his testimony, he did not think it was necessary for them to1 take the oath. Their names regularly appeared upon the official register, the copies thereof, and the check lists, as. well as upon tire lists posted in the precincts and in the office of the county clerk. The fact that their names appeared in the check lists and copies of the official register was. prima facie evidence of their right to vote.’ (Political Code, Sec. 1234, as amended; Session Laws 1897, p. 123.) That the electors were registered without taking the oath was not their fault. That a registry agent neglects his duty should not deprive an elector of the right, to exercise his franchise. If the elector may be deprived of his right to vote in this manner, an unprincipled registry agent may change the political status of a precinct, at will, and by concerted action on the part of a number of such the political complexion of a county may be easily changed, and the popular will effectually thwarted. If the elective franchise may be thus tampered with, incalculable abuses will creep into the state. The purpose of the statute is. to. prevent any but legal electors from voting. It demands good faith. It is not intended to. prevent those, who are qualified to vote from doing so. Before the elector is entitled to be registered he may be compelled to take the oath prescribed in Section 1209, supra — the statute, contemplates that he shall be compelled to take it. If he fails to. take the oath through the fault of the. registry agent, and is. challenged ’ on that ground before that officer closes his book, he may qualify on election day. This is clearly one of the purposes of Sections 1213 and 1214 of the Political Code, as- amended. (Session Laws 1897, p. 121 et seq.) Section 1213 provides that,, on the next day succeeding tba.t on which the registration of electors shall “be closed, the' registry agents must with all reasonable expedition, and within four days, prepare and cause to be written or printed a full, complete and true list of all the names registered by them and then remaining on the official register for each election precinct, alphabetically arranged, commencing with the surname of each, and then must write or print such reasonable number of copies of each registration district list-as they may deem necessary, showing on one sheet, but under separate headings in such list, the registered voters in each precinct in the district, and post copies of the same in at least five public and conspicuous places, within each and every district to which they apply, and shall also. furnish one, attested by his oath as true and correct, to the county clerk. Section 1214 provides that: “The registry agents must give notice in said lists that they will receive objections to the right to vote of any person so registered until six o’clock p. m. on the Saturday previous to the day of election; and also requesting all persons whose, names may he erroneously entered in said lists or erroneously canceled upon the the ‘Official Register’ to appear at the proper registry' office and have such error corrected. Such objections to- the right to vote of any person registered must be made only by a qualified elector, in writing duly verified, setting forth the grounds of objection or disqualification. The registry agent before whom any such affidavits, are made must carefully preserve the same and deliver them, with the ‘Check List’ and other papers required by this chapter, to be delivered •to the judges of election, as in this chapter provided, and he must write distinctly opposite to the name of any person to whose qualifications, as an elector objections, may be thus made, the words ‘to. be challenged,’ or words- to that effect. It is the duty of the judges of election, if on election day sucli person who has been objected to applies to vote, to- test, under oath his qualifications and if he is found to be disqualified, from any cause under the. law, or if he refuses to take an oath as to his qualifications he must not be permitted to vote. * *

McCrary, in his work on Elections, says: “It is a rule well grounded in justice and reason, and well established by authority and, precedent, that the voter shall not be deprived of his rights as an ©lector, either by the, fraud or a mistake of the election officer, if it is possible to prevent it.” (4th Ed. Sec. 231.)

Section- 2 of Article VI of the North Carolina Constitution provides that: “It shall be the duty of the, general assembly to provide from time to, time for the registration of all electors, and no person shall be allowed! to vote without registration, or to register, without first taking an oath to support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith.” The supreme court of that state says: “This section of the Constitution provides, that the ‘general assembly’ shall pass registration laws, and that no one shall be entitled to> register without taking an oath, and that no one shall vote whoi is not registered. This provision of the Constitution, that no one shall be entitled to register without taking an oath to support the Constitution of the state and of the United States, is directed to the registrars. It must be to them and to them alone, as is said by this court in Southerland v. Goldsboro, 96 N. C. 49, 1 S. E. 160. But if the registrar, through inadvertence, registers a qualified voter, who, is entitled to register and vote, without administering the prescribed oath to him, shall he, for this negligence of the officer, be deprived of his right to vote, and thereby the will of the maj'ority defeated? And if this omission was not through inadvertence, but with a view to- entrap the voter and thus defraud him out of his vote, it is much more the reason why he should not be, and that such methods should not be allowed to prevail. We do not hold that, where a registrar proposed to- administer the oath, and tire party wishing to be registered refuses to take the oath, it is, the duty of the registrar to register him. We would say that under such circumstances he should not be registered. * * * And a qualified elector cannot be deprived of his right to vote, and the theory of our government that the maj’ority shall govern be destroyed, by either the willful ox negligent acts of the registrar, a sworn officer of the law.”' (Quinn v. Lattimore, 120 N. C. 426, 26 S. E. 638, 58 Am. St. Rep. 797.)

In State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1,the court adopts the following quotation, from People v. Wood, 148 N. Y. 142, 42 N. E. 536: “W© can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them.” And see State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128,. 83 Am. St. Rep. 573 ; Moyer v. Van De Vanter, 12 Wash. 377, 41 Pac. 60, 29 L. R. A. 670, 50 Am. St. Rep. 900; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491.

Election statutes, being intended to promote purity in public elections) to the end that a full and fair expression of the public will may be had, axe remedial and beneficial, and should be liberally construed. We therefore hold that the electors of Hathaway and Eosebud precincts were not disqualified because, through no fault of theirs, they failed to' take the oath prescribed. (Stackpole v. Hallaban, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502.)

Under the head of “leading questions” conteste© presents-twenty-six specifications of error. We find that hut three questions of the twenty-six were objected toi upon the ground that the questions were leading. We cannot say that the court committed reversible error, in overruling contestee’s objections to the three mentioned. (Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.) No jury was in attendance, and the court does not appear to have abused its discretion in this respect.

The court permitted contestant to introduce in evidence some incompetent testimony, against oontestee’s objections, and upon this branch of the case, as presented, the contestee assigns numerous errors. A great deal of testimony was adduced — the transcript consists- of over 480 pages of typewriting. As we shall hereafter show, we are not permitted to look to- the- sufficiency or insufficiency of the evidence to sustain the court’s find’ings and judgment. What we ba,ve just said implies that there was testimony, and a great deal of it. The record bas received ■a thorough sifting by respective counsel. ■ We have examined all the assignments of error in detail, and on this point reaffirm the rule laid down in Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123, in which tlie court said: “But the cause was tried to the court, ■sitting withoiit a jury, and the presumption must, be indulged that such evidence, if improperly admitted, ivas not considered in arriving at a conclusion.”

As to the insufficiency of the evidence. This case comes .up on a bill of exceptions., duly settled and allowed. Counsel have indulged in considerable argument as to whether, in an ■election contest, a motion for a new trial is proper or permissible. That matter not being in issue in this case, we express, no. opinion thereon, counsel having elected to’ appeal upon a bill of exceptions. That a bill of exceptions is proper in a case of this nature admits of no doubt. If, however, a case is presented to this court upon a bill of exceptions, the bill must, be prepared ■conformably to the statutes prescribed for the preparation of •such in other cases. This being true1, it follows that the bill must be prepared in accordance with Article I, Chapter VII (Sections. 1150-1158, inclusive), of the Code of Civil Procedure. By Section 1151 we find that certain actions of the court are deemed excepted to. by the adverse party, and no bill of exceptions is required to present them; among these is “the final decision in an action or proceeding.” Section 1152 provides: “When, the exception is. to the verdict, or decision upon the ground of the insufficiency of the evidence to justify it-, the objection must specify the particulars, in which such evidence is .alleged to- be insufficient.” Appellant’s, specification of error No. 238 is “insufficiency of the evidence to justify the findings ■of fact made by the court herein.” We thus see that appellant relies for a, reversal of the case upon the insufficiency of the evidence, and this exception is not presented as required by the .statute. (Section 1152, supra; Robertson v. Longley, 28 Mont. 128, 72 Pac. 422.) Thus we are not permitted to proceed further with this' so-called exception.

Contestee insists tbat it was error for tlie court to admit in evidence tlie declarations of the alleged conspirators, and says that before declarations of conspirators can be admitted it must first be shown independently that a conspiracy existed; and then their admissibility is limited to such as were made during the pendency of the conspiracy, and in furtherance of its plans; and under these rules they are not admissible when they relate to a past transaction.

The correctness of these general principles will not be disputed. In answer to this it is sufficient, to< sa,y that even a cursory inspection of the, transcript discloses that, there was evidence sufficient to justify the conclulsion that the conspiracy charged in the statement of contest did in fact exist; that the conspiracy was for Hie purpose of employing a, sufficient number of men to carry the county in the interest of the Democratic ticket, or a, portion of it; that in furtherance of it a large number of men were employed a little over a. month prior to the election, with the understanding that they were to go into' Rosebud county for the purpose of obtaining employment for one month, and of voting the Democratic ticket; that their expenses were to be paid in traveling to, and from Kosebud, county; that a large number of them actually registered and voted in Rosebud, county; that, indeed, the conspiracy was actually carried out. These men, if the testimony be true1, knew the illegal purposes for which they were employed, perjured themselves in order to obtain registration, violated tlie election laws of the state, and thus became parties to the conspiracy themselves. Their declarations, as well as those of the persons who instigated the unlawful acts (the original conspirators), during the pendency of the conspiracy — while the negotiations for tlie men’s employment were pending, after they were, employed, during the election — and which were germane to the conspiracy, or a part, of the res gestae, are admissible1 in this case. The conspiracy existed as between the parties to- it until all its ends were accomplished. (See State v. Byers, 16 Mont. 565, 41 Pac. 708; Pincus v. Reynolds, 19 Mont. 564, 49 Pac. 145;. State v. Dotson, 26 Mont. 305, 67 Pac. 938; Underhill on Evidence, Sec. 69; Underhill on Criminal Evidence, Secs. 491, 492, 493; Jones on Evidence; Sec. 255.)

7. Under the rule tbat, where in an election contest it does not appear from tbe direct evidence of tbe voter for whom tbe ballot was cast, circumstantial evidence is; admissible to establish tbe fact (Boyer v. Teague, 106 N. C. 576, 11 S. E. 665, 19 Am. St. Rep. 547; Sorenson v. Sorenson, 189 Ill. 179, 59 N. E. 555; Black v. Pate, 130 Ala. 514, 30 South. 434; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; McCrary on Elections (4th Ed.), p. 363), and for the purpose of establishing tbat a conspiracy existed, contestant introduced considerable testimony tending to show tbat a number of men employed by Ramsey as ranch bands, and who' voted at tbe election, were hired mainly for political'purposes, and not to work on tbe ranch.

Witnesses testified tbat there was no demand for ranch bands in tbe immediate neighborhood of Ramsey’s ranch, and that Ramsey bad no' special use for tbe ten men) be bad there. Testimony was given- tending to prove tbat these ten men, or most •of them, simply “killed time.” Contestee introduced considerable evidence to contradict this line of testimony, and excepted to several rulings of tbe court upon questions bis counsel asked tbe different witnesses.- Eor example, the witness Miller, one of tbe alleged illegal voters who was employed on the Ramsey ranch, and who had qualified himself to answer, was asked: “From your observation, are you able to state whether or not they were kept busy during the time they were there ?” Also: “Erom your experience and observation do you know, and can you state, when a man is doing a day’s, work and is kept busy ?” Contestant objected to these questions as incompetent, and tbe objections, were sustained. This testimony, having been offered in contradiction of that on part of contestant, should have been admitted, and tbe court erred in sustaining the objections,, but the case cannot be reversed on that account. The testimony called for by tbe two questions just quoted related solely to- tbe conduct of the men employed at Ramsey’s ranch, and who voted at Kirby. Tbe court found that only sis illegal votes were cast at that precinct. Tliese it deducted from the total vote counted for contestee by the election officers. In its findings and judgment the court found McBae elected over contestee by nine votes. Therefore^ had the testimony called for been admitted, and the six illegal votes been counted .for contestee, McRae would still have a majority of three.

An appellate court will not reverse a judgment merely because the lower court committed error; it is only when the error has materially affected appellant’s rights on the merits of the case.

The court found that one Joko Petrovich was. an illegal voter, and that he voted for the contestee at the precinct of For-syth. Contestee sought to1 prove that Petrovich in fact voted for McRae, the Republican candidate. For this purpose he placed Terrett, one of the judges of election, on the; stand. Terrett testified that Petrovich said he could not make his ballot out, and that Marcyes, one of the other judges., made, it out for him, and that he (Terrett.) saw. Marcyes. mark it. Then this question was asked: “Now, you may state how Mr. Petrovich’s ticket was marked by Mr. Marcyes.” TTpon objection being lodged by contestant, the court ruled as follows: “As I recollect the law, if it is marked by a judge, the ticket should be indorsed as being marked by a judge. If that is true, the ticket is the best evidence, and should be produced. It is merely secondary evidence as to how it was marked. I will sustain the objection under and by virtue of the provisions of Section 1364 of the Political Code, as amended.”

Section 1364 of the Political Code-, as. amended, provides: “Any elector wrho- declares to the judges of election, or when it appears to the judges of election that he cannot read or write or that because of blindness or other physical disability he is unable to' mark his ballot, but for no other causey must upon request receive the assistance of two of the judges, who' shall represent different parties, in the marking thereof, and such judges must certify on the outside thereof that it was so marked with their assistance, and must thereafter give no information regarding the same. The Judges must require such declaration of disability to be made by the elector under oath before them, and they are hereby authorized to> administer the same. No elector other than one who may, because of his inability to' read or write or of his blindness, or physical disability, be. unable to mark his ballot, must divulge to any one within the polling place the name of any candidate for1 whom he intends- to vote, or ask, or receive the assistance of any person within the polling place in the preparation of Ms ballot.” (Session Laws 1901, p-. 120.)

"Whether the ballot is the best evidence as to how Petrovich voted depends upon whether it may be identified; if it can be identified, it is the best evidence; if it cannot be, then the testimony of one who knows how it was marked is the best evidence. Having shown that the ballot bore the certificate of the judges, in order to introduce the testimony of Terrett it was incumbent upon contestee to show that the ballot could not be identified. If Petrovich’s ballot was the only one bearing the certificate of the judges, Terrett and Marcyes, such certificate would serve to identify it; but if there were several ballots cast a.t Forsyth, under the provisions of Section 1364, supra, all of which bore the certificate; of the said judges, then it is probable that Ptetro-vich’s ballot could not. be identified. No elector shall place any mark upon his ballot by which it may afterwards be identified by him. (Section 1358, Political Code, as amended; Session Laws- 1901, p. 118 et seq.) And the judges should not place any distinguishing marks thereon, except as provided by law; the law evidently contemplates that the. same certificate; in effect, shall be placed upon all ballots to' which the judges, certify. Upon proof that Petrovich’s ballot could be identified, the court could have ordered the same produced, under the provisions of Section 1413 of the Political Code. The court was therefore right in excluding the testimony.

At the precinct of Kirby, ATcBae received but five votes. In order to show that all of the illegal votes cast there were for contestee, contestant produced five witnesses who were legal voters in that precinct, each of whom testified! that he voted for McBae. The admission of this testimony was objected to- by con-testee as incompetent, irrelevant and immaterial.- No1 question was raised as to whether the ballots, of these several voters could be identified.

Counsel insist that under our voting system, an absolutely secret ballot is contemplated, and to this end extraordinary precautions are provided" for; bystanders are prohibited from, approaching within a given distance from the voting booth; the voter is prohibited from placing a distinguishing mark upon his ballot; he must retire and mark his ballot alone, and fold it so its contents cannot be discovered. These precautions are provided for the protection of the voter. The design is ho make it impossible for others to prevent him from exercising his own free will. It is generally held that a legal voter may refuse to testify as to how he voted, but this is a privilege he may waive. (Van Winkle v. Crabtree, 34 Ore. 462, 55 Pac. 831, 56 Pac. 74; Boyer y. Teague, 106 N. C. 576, 11 S. E. 665, 10 Am. St. Rep. 547; Black v. Pate, 130 Ala. 514, 30 South. 434; Vallier v. Brakke, 7 S. E. 343, 64 N. W. 180; Dixon v. Orr, 49 Ark. 238, 4 S. W. 774, 4 Am. St. Rep. 42; Cooley’s Constitutional Limitations, 762; McCrary on Elections (4th Ed.), Secs. 438, 491, 492.)

There, is reason in this rule. While public policy requires that all electors be enabled to cast their ballots in absolute secrecy and with the utmost freedom, yet it is also to the public interest that a correct expression of the popular will he ascertained. Hence', when the validity of an election is being inquired into-, legal voters are encouraged to give testimony concerning it. Courts, should give a wide latitude to' such inquiries. Nothing concerns the people nearer than the purity of their elections. A fundamental principle of our government is that the majority shall control. When the popular will is subverted by conspiracies and other illegal practices, the searchlights of the- courts should be.fully turned on.

After a diligent examination of contestee’s specifications, we find no reversible error in the record. In a number of instances the proper objection was not made to the admission of testimony, and in others the right reason for the motion to strike out was not assigned. Again, we find that where the court in several instances sustained contestant’s objections, perhaps erroneously, the error was cured by the subsequent testimony of the several witnesses to> whom the questions, were put.

Dor the foregoing reasons, we are of the opinion that the judgment should be. affirmed.

Pee Curiam.-

Nor the reasons given in the foregoing opinion ,the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LANE, Respondent, v. HUMPHREYS, Appellant.
    (No. 1,984.)
    (Submitted January 4, 1904.
    Decided February 11, 1904.)
    For syllabus see Lane y. BaMey, ante, page 548.

      Appeal from. District Court, Rosebud County; C. H. Loud, Judge.

    ElectioN contest by Clarence E. Lane against N. J. Humph-reys. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Mr. Sydney Banner, Mr. F. J. Dierhs, and Mr. F. V. H. Collins, for Appellant.

      Mr. T. J. Porter, and Mr. J. C. Lyndes, for Eespondent.
   Per Curiam.

By stipulation of counsel this case presents for decision questions identical with those in Lane v. Bailey {ante, page 548) decided this day. ■ On the authority of that case, therefore/the judgment is affirmed.'

Affirmed.


author: Pee Cueiam.

text:
    No. 1,960.
    STATE Respondent, v. STICKNEY, Appellant.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    On motion to dismiss appeal.
    Decided October 6, 1903.

      Messrs. Dowmng & Stephenson, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   Pee Cueiam.

Upon motion of the respondent this appeal is hereby dismissed without prejudice. Me. Justice MilbueN dissents to that part of the order which dismisses the appeal.


text:
    No. 1,743.
    STATE ex rel. PORTER, Appellant, v. WESTERN RANCHES, Limited, Respondent.

      Appeal from District Court, Custer County■; C. H. Loud, Judge.

      Decided October 6, 1903.

      Mr. J. H. Johnston, and Mr. James Donovan, for Appellant.

      Mr. M. S. Gunn, and Mr. Sydney Sanner, for Respondent.
   Per Curiam.

Tbe appeal herein is hereby dismissed, each party to bear its own costs, in accordance' with the stipulation on file.


text:
    No. 1,797.
    STATE ex rel. DONOVAN, Relator, v. DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT et al., Respondents.

      Original — G ertiorari.

    Decided October 6, 1903.

      Mr. James Donovan, Attorney General, for Relator.

      Mr. M. S. Gunn, and Mr. Sydney Sanner, for Respondents.
   Per Curiam.

This cause is hereby dismissed in accordance with the stipulation on file.


text:
    No. 1,970.
    LECK et al., Respondents, v. KEARNEY et al., Appellants.

      Appeal from District Court, Deer Lodge Gountyj Welling Napton, Judge.

    On motion.to dismiss appeal.

      Decided October 9, 1903.

      Mr. J. W. James, for Appellants.
   Per Curiam.

Tbe motion to dismiss tbe appeal herein is hereby sustained, and the appeal is accordingly dismissed.


text:
    No. 1,952.
    KLEESATTLE, Respondent, v. ROEHL, et al., Appellants.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    On motion to dismiss appeal.
    Decided October 9, 1903.

      Messrs. Greene & Cockrill, for Appellants.

      Mr. John W. Stanton, for Respondent.
   Per Curiam.

The motion to dismiss the appeal herein is hereby sustained, and the appeal is accordingly dismissed.


author: Per Curiam.-

text:
    No. 1,912.
    STATE, Respondent, v. LENNOX, Appellant.

      Appeal from District '‘Court, Silver Bow County; John B. McClernan, Judge.

    On motion to dismiss appeal.
    Decided October 13. 1903.

      Mr. J. Bruce Kremer, and Mr. George H. Busch, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   Per Curiam.-

It is ordered and adjudged that the appeal herein stand dismissed, provided that, if the defendant returns to- the jurisdiction and deliver himself to custody on or before November 13, 1903, the appeal may be reinstated. The re-mittitur will be withheld until that date.


text:
    No. 1,670.
    In re ALLPORT’S ESTATE. KARL KLEIN-SCHMIDT, Jr., Appellant.

      Appeal from District Court, Lewis and Clarice County; 8. U. Mclntire, Judge.

    Decided October 13, 1903.

      Mr. W. E. Carroll, for Appellant.
   Per Curiam.-

This cause having been set for hearing this day, and it appearing that no briefs have been filed herein; it is ordered that this appeal be and the same is hereby dismissed.


text:
    No. 1,674.
    CLARK et al., Respondents, v. GRAND OPERA HOUSE CO. et al., Appellants.

      Appeal from District Court, Silver Bow County; H. C. Smith, Judge.

    Decided October 14, 1903.

      Mr. Charles O'Donnell, and Mr. J. L. Wines, for Appellants.
   Per Curiam.

This cause having been set for hearing this day, and it appearing that no briefs have been filed herein; it is ordered that this appeal be and the same is hereby dismissed.


text:
    No. 1,681.
    MURRAY, Appellant, v. LIVINGSTON, Respondent.

      Appeal from District Court, Parle County; Frank Henry, Judge.

    On motion to dismiss appeal.
    Decided October 15, 1903.

      Mr. A. P. Stark, for Appellant.

      Mr. James Donovan, for Respondent.
   Per Curiam.

Upon motion to dismiss the appeal, it is ordered by the court that the appeal herein be and the same is hereby dismissed.


text:
    No. 1,988.
    STATE ex rel. BERGER, Relator, v. WESTON, County Clerk and Recorder, Respondent.

      Original — mandamus.
    Decided October 16, 1903.

      Mr. E. 8. Booth, and Mr. J. Bruce Kremer, for Relator.

      Mr. J. K. Healy, for Respondent.
   Per Curiam.

The motion to quash is sustained, and the proceeding is accordingly dismissed.


text:
    No. 1987.
    MITCHELL, Respondent, v. O’CONNOR, Appellant.

      Appeal from District Court, Silver Bow County.

    On motion, to dismiss appeal.
    Decided October 17, 1903.

      Mr. George M. Borquin, for Respondent.
   Per Curiam.

The motion to dismiss this appeal is hereby sustained, and the appeal is accordingly dismissed.


text:
    No. 1,911.
    MIRACLE, Respondent, v. PALMER et al., Appellants.

      Appeal from District Court, Leiuis and Clarke Countyj Henry C. Smith, Judge.

    Decided November 20, 1903.
   Per Curiam.

It is ordered and adjudged that the judgment of the court below made and entered on the 2,7th day of November, A. D. 1901, be and the same is hereby reversed and the cause remanded in accordance with the stipulation on file.

Messrs. Toole & Bach, for Appellants.

Messrs. Nolan & Loeb, for Respondent.


text:
    No. 1,707.
    CASEY, Respondent, v. ST. PETERS, Appellant.

      Appeal from District Court,.Silver Bow County; John Lindsay, Judge.

    On motion to dismiss appeal.
    Decided November 21, 1903.

      Mr. John N. Kirie, andilír. John W. Stanton, for Appellant.
   Per Curiam.

The motion 1» dismiss this appeal is hereby sustained, and the appeal is dismissed at the cost of appellant.


text:
    No. 1,716.
    WALSH, Respondent, v. KLEINSCHMIDT & BROTHER, Consolidated, Appellants.

      Appeal from District Court, Lewis and Clarice County; J. M. Clements, Judge.

    Decided November 23, 1903.
   Per Curiam.

It is ordered and adjudged that the judgment of the court below made and entered on the 3d day of April, A. D. 1901, and the order made and entered on the 23d day of July, A. D:. 1901, be and the same are hereby affirmed at the cost of appellants.

Mr. B. A. Carleton, for Appellants.

Mr. Carl Basch, for Respondent.


text:
    No. 1,717.
    FALK, Respondent, v. DITTO, Appellant.

      Appeal from District Court, Silver Bow County; B. W. Harney, Judge.

    On motion to dismiss appeal.
    Decided November 23, 1903.

      Mr. J. N. Kirie, for Appellant.

      Mr. J. H. Duffy, for Respondent.
   Per Curiam.

The motion to- dismiss this appeal is hereby sustained, and the appeal is accordingly- dismissed.


text:
    No. 1,746.
    STATE, Respondent, v. ANDERSON, Appellant.

      Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

    On motion to dismiss appeal.
    Decided December 11, 1903.

      Air. John N. Kirie, and Mr. E. J. Dierles, for Appellant.

      Mr. Peter Breen, and Mr. James Donovan, Attorney General, for tbe State.
   Per Curiam.

Tbe motion to' dismiss' the appeal hereiü is hereby sustained, and tbe appeal accordingly is dismissed.


text:
    No. 1,754.
    DOYLE, Respondent, v. CITY OF BUTTE, Appellant.

      Appeal from District Court, Silver Bow County; Jolm Lindsay, Judge.

    On motion to- dismiss appeal.
    Decided December 12, 1903.
    . Mr. E. M. Lamb, Mr. U. A. Bolinger, and Air. J. L. Tem-pleman, for Appellant.
   Per Curiam.

Tbe motion to- dismiss tbe appeal herein is hereby sustained, and the- appeal accordingly is dismissed.


text:
    No. 2,017.
    STATE ex rel. DURAND, Relatrix, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.

      Original — Certiorari.
    Decided December 15, 1903.

      Air. Robert B. Smith, Mr. M. Donlan, and Air. H. L. Maury, for Relator.
   Per Curiam.

Tbe application for a wait of certiorari herein is denied.


author: Pee Cubiam.

text:
    No. 2,015.
    In re COLBERT’S ESTATE. JOHN WOOLBEATER, Appellant, v. STATE OF MONTANA, Respondent.

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

    On motion to dismiss appeal.
    Decided December 24, 1903.

      Mr. James Donovan, Attorney General, for the State.
   Pee Cubiam.

The motion to dismiss the appeal herein is hereby sustained, and the appeal is accordingly dismissed. •


author: Per Ouriam.

text:
    No. 2,002.
    HUMPHREYS, Respondent, v. STAFFORD, Appellant.

      Appeal from District Court, Fergus County; F. K. Cheadle, Judge.

    On motion, to dismiss appeal.
    Decided January 5, 1904.

      Mr. Rudolph Yon Tobel, for Appellant.

      Mr. Frank F. Smith, and Mr. H. L. DeKalb, for Respondent.
   Per Ouriam.

The motion to dismiss the appeal herein is hereby sustained and the appeal is dismissed without prejudice, however, to another appeal; and it is further ordered that the motion for leave to;, amend the briefs herein be and the same is hereby denied.


text:
    No. 1,766.
    WARREN, Respondent, v. HELENA POWER & LIGHT CO., Appellant.

      Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

    On motion to dismiss appeal.
    Decided January 12, 1904.

      Messrs. II. C. & 8. H. Mclntire, for Appellant.
   Per Curiam.-

Hpon motion of tbe appellant herein this appeal is hereby dismissed.


author: Per Curiam. Mr. Chief Justice Brantlt: Mr. Justice Hollo wav:

text:
    No. 2,018.
    FINLEN, Appellant, v. HEINZE et al., Respondents.

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

    Application for an injunction.
    Decided January 15, 1904.
   Per Curiam.

The application for an injunction herein is hereby denied.

Mr. Justice, Milburn, not having heard the argument herein, takes no part in making this order.

Mr. Chief Justice Brantlt:

My view is this: I did not think it worth while to' consider the sufficiency of the evidence presented at the hearing for this reason: that before this court can be moved to issue an injunction to' preserve the subject-matter of the muse in controversy there must be presented, to the court the record in the case, and the record must at least show that there is a probability that this court will reverse the judgment of the court below; because the principle must be recognized that where a party was successful in the court below, he is entitled to enjoy that success until the action of the court below has been reversed; that this: court will issue an injunction only when it is probable that that court was wrong. There is nothing presented to. this court but the judgment roll. Upon the showing of the judgment roll there is no< apparent error. The only question upon the face of the judgment roll is whether or not the findings of the court below sustain the decree. I take this view of the record in the case. A statement on motion for a new trial cannot be used in this court at all until it has been used by the court below, that is, there must be a motion for a new trial in the court below, and that must have been passed upon before this court can make any use of the statement used in support of it. Section 1736 to my mind clearly implies this.

Mr. W. W. Dixon, Mr. A. J. Shores, Mr. O. F. Kelley, and Messrs. Forbis & Fvans, for Appellant.

Mr. John J. McEatton, for Respondents.

Mr. Justice Hollo wav:

So. far1 as I am concerned, I feel this way about it. There was one matter set forth in the application for injunction that was controverted, that is that the-defendants in Finlen v. Ileinze were operating or causing to he operated the Minnie Healy mine. That being controverted, the burden was upon plaintiff to prove that that contention was true. I do not think he did that; the witnesses he called rather disproved that contention. That was my view! in this matter. And further, I feel that as these matters of injunction, under the rules of this court, are entitled to advanaeement, until the moving party has asked this court to1 advance and set the canse for hearing, he is not in very good position to ask for an injunction pendente lite.


text:
    No. 1,757.
    HEINZE et al., Appellants, v. BOSTON & MONTANA CON. COPPER & SILVER MINING CO., Respondent.

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

    On motion to dismiss appeal.
    Decided January 16, 1904.

      Mr. J. M. Denny, and Mr. Jolv¡% J. McHatton, for Appellants.

      Mr. C. F. Kelley, and Messrs. Forbis & Evans, for Respondent.
   Per Curiam.

The motion to dismiss tbis appeal is Hereby sustained, and the appeal is accordingly dismissed.


text:
    No. 2,034.
    STATE ex rel CITY COUNCIL OF THE CITY OF BUTTE, et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Original — Writ of supervisory control.
    Decided January 27, 1904.

      Mr. Bernard Noon, for Relators.
   Per Curiam.

The application for a writ of supervisory control, or some other appropriate writ, herein, is hereby denied.


author: Per Curium.

text:
    No. 2,037.
    STATE ex rel. SMITH, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.

      Original — C ertiorari.

    Decided February 1, 1904.

      Mr. B. 8. Thresher, for Relator.
   Per Curium.

Relator’s application for a writ of review herein is hereby denied.


text:
    No. 1,785.
    STARKE, Appellant, v. GRAHAM et al., Respondents.

      Appeal from. District Court, Silver Bow County; E. W. Har-ney, Judge.

    Decided February 9, 1904.

      Mr. D. Gay Stivers, and Mr. C. F. Kelley, for Appellant.

      Mr. John J. McHatton, and Messrs. McBride & McBride, for Respondents.
   Per Curiam.

This appeal is hereby dismissed in accordance with the stipulation on file.


author: Per CuriaM.

text:
    No. 1,774.
    BLACK et al., Respondents, v. BLAISE et al., Appellants.

      Appeal from District Court, Flathead County.

      Decided February 9, 1904.

      Mr. Sidney M. Logan, and Messrs. Nolan & Loeb,' for Appellants.
   Per CuriaM.

This appeal is hereby dismissed, without prejudice, however, to-the right to move to reinstate.


author: Per. Curiam.

text:
    No. 2,041.
    STATE ex rel. CITY OF BUTTE et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Original — Writ of supervisory control.
    Decided February 9, 1904.

      Mr. Bernard Noon, for Relators.
   Per. Curiam.

Relator’s application for a writ of supervisory control, or some other appropriate writ herein, is hereby denied.


text:
    No. 1,819.
    STATE, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, Respondent.

      Appeal from. District Court, Madison County; M. R. Parker, Judge.

    Decided February 11, 1904.

      Mr. James Donovan, Attorney General, for the State.

      Mr. M. M. Dun-can, for Respondent.
   Per Curiam.

Upon motion of the appellant herein this appeal is hereby dismissed.


author: Per CuRIAm.

text:
    No. 2,047.
    BARTLETT, Respondent, v. DIAMOND R. MINING CO., Appellant.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    On motion to> dismiss appeal.
    Decided February 24, 1904.

      Messrs. Downing & Stephenson, for Appellant.
   Per CuRIAm.

The motion h> dismiss this appeal is hereby sustained, and the appeal is accordingly dismissed.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KATHLEEN COCHRAN, Defendant and Appellant.
    No. 96-236.
    Submitted on Briefs December 30, 1997.
    Decided June 9, 1998.
    1998 MT 138.
    55 St.Rep. 551.
    290 Mont. 1.
    964 P.2d 707.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Mark Harshman, Blaine County Attorney, Chinook.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Kathleen Cochran (Cochran) appeals from the judgment entered by the Seventeenth Judicial District Court, Blaine County, on a jury verdict, convicting her of felony assault, and specifically from the District Court’s denial of her motion to suppress evidence, her motion for a directed verdict of acquittal, and her motion for a mistrial. We reverse.

¶2 Although Cochran raises several issues on appeal, we address only one, which is dispositive of this case: did the District Court abuse its discretion when it denied Cochran’s motion for a directed verdict.

BACKGROUND

¶3 Because the issue in this case involves the sufficiency of the evidence presented to support Cochran’s conviction, we review in detail the following facts presented at trial. Police Officer Robert Painter was on patrol duty at approximately 4:30 a.m. on January 10,1995, in Harlem, Montana, when he saw Cycil Jackson walking down the street. Painter approached him in his vehicle and asked him what he was doing at that hour. Jackson responded that he was on his way to a friend’s house. Painter noticed that Jackson was holding his right arm, but assumed it was simply because Jackson was cold. Painter continued his patrol duties.

¶4 Fifteen to twenty minutes later, Painter saw Jackson again, approximately six city blocks from his first encounter. This time Painter got out of his car and approached Jackson. Jackson told him that his friend was not home, so he was walking to his brother’s house. Painter offered him a ride, but Jackson declined. Painter noticed that Jackson was still holding his arm, but again assumed that Jackson was simply cold.

¶5 A little while later, Painter was dispatched to the home of Victoria Johnson. Painter was aware that Johnson resided with Lloyd Jackson, who was Cycil Jackson’s brother. As Painter was driving to the home, he received another message that Johnson had withdrawn her request for police assistance. Painter went off duty at approximately 5:30 a.m.

¶6 According to Johnson, she was awakened during the early morning hours to the sound of someone knocking on her door. When she realized it was J ackson, she invited him in. Both Lloyd Jackson and she could see he was bleeding from his arm. Johnson asked Jackson if he had been stabbed, but he denied it, and instead stated that he had fallen on glass. Although his brother also repeatedly asked him what had happened, Jackson never gave him an explanation. Johnson telephoned the police, but canceled the call after Jackson told her that he did not want the police involved.

¶7 Johnson and Lloyd Jackson then took Jackson to the Indian Health Services Hospital at Fort Belknap where he was treated by Dr. Ethel Moore. Dr. Moore testified that Jackson had sustained three wounds to his left arm: one across the shoulder joint, one in the mid-upper arm, and one just above the elbow. The two upper wounds were shallow and less than a half-inch in length, while the lower wound was deep and was an inch to an inch and a half in length. She characterized his wounds as stab wounds which could have been inflicted by a knife or a pair of sharp scissors. However, Jackson again denied having been stabbed and refused to tell her how he sustained the wounds.

¶8 In the meantime, Officer Charles Hunger, who is employed by the Fort Belknap BIA Police Department, was told that there was a stabbing victim in the emergency room and was dispatched to the hospital. However, Jackson similarly refused to tell Hunger what had happened, where he received his injuries, or who had been involved. Because Jackson was uncooperative, Hunger feared that there may be another victim somewhere. Hunger thus spoke with Jackson’s brother, Lloyd, who informed him that he did not know how Jackson sustained the wound. Lloyd did tell him that Jackson lived with Kathleen Cochran, and gave him their address in Harlem, Montana. Because Harlem was outside of Hunger’s jurisdiction, Painter, who by now was off Work, was dispatched by the Harlem Police Department to assist Hunger.

¶9 Painter, Hunger, and a criminal investigator named Martin Wilke proceeded to Jackson’s residence. As they approached the trailer house, they observed blood on the second stair leading to the house and blood in front of the windows in the snow. The three officers knocked on the door and on the windows on the north and east sides of the trailer, with no response. As they walked around the trailer, they observed no signs of a struggle or fight in the snow outside the residence. Painter saw blood droplets to the area north of the trailer with one set of footsteps by the blood spots. On the east side of the trailer, Painter and Hunger noticed that curtains in the east side window opened, then closed, but they did not see a person at that time.

¶10 While on the south side of the trailer, the officers heard voices and a banging noise coming from the inside of the trailer. It sounded to them as if a male and a female were fighting or wrestling. Painter testified that he heard a male state that he was going to get a gun, and a female trying to keep him from getting the gun. The officers feared that someone inside was about to be hurt. Painter thus radioed to the dispatch officer and informed him that there was an altercation proceeding in the trailer, and he did not have time to obtain a search warrant. He then forcibly entered, and Hunger and Wilke followed him inside.

¶11 Once inside, the officers discovered that the noise they had heard was actually coming from a television. They also found three individuals smeared with blood to varying degrees. The first individual was a man lying on the couch in the living room. According to Painter, he “was really hard to wake up.” When he finally regained consciousness, he identified himself as Stan Lindemulder.

¶ 12 The officers located a second man in the bathroom, who was later identified as William Azure, also known as Billy Rose. Rose was sitting fully clothed in the bathtub with his legs draped over the edge as though he had been pushed in. He was intoxicated and was kicking and mumbling incoherently. He appeared to be trying to get out of the tub. Painter observed blood on his right coat sleeve.

¶13 Finally, in a bedroom where the officers had seen the curtains moving from the outside of the trailer, they located Kathleen Cochran. She was on her stomach on the floor, wearing a sweat top and spandex bicycle shorts inside out. They observed blood on her top, shorts, hands, feet, face and hair. Cochran appeared to be asleep, and the officers were unable to awaken her. They also noticed a set of keys clutched tightly in her fist. For their protection they took the keys in the event she did wake up or if she were only pretending to be passed out.

¶14 Painter returned to the Harlem Police Department, which was one block away, to obtain a camera and some sheets of paper to question the individuals and read them their rights, while Hunger and Wilke stayed with the individuals at the house. After taking the pictures, Painter was eventually able to awaken Cochran by standing her on her feet. He then placed Lindemulder, Rose and Cochran under arrest when they refused to cooperate or answer questions about what had happened.

¶15 Before leaving the trailer, the officers also observed blood on the kitchen floor, the table, and in the sink. In a wash basin in the kitchen sink they saw bloody water and a meaty tissue. They also observed a pair of scissors in the garbage can sitting on the top of the trash, that appeared to be functional and very clean.

¶16 After placing the individuals under arrest, Painter obtained a search warrant, and returned to the trailer. Among various items of evidence seized, Painter seized several knives, a broken plate, a pint-size empty bottle of Black Velvet whiskey that had blood on it, the pair of scissors in the garbage can, and a tin can that had been converted into a first aid kit, which was sitting on the table. The lid to the can was off and it contained gauze pads and rolls. He also seized a pair of blood-stained women’s jeans which were located under a shelf in a bedroom. Later that day, Painter also retraced the route he had seen Jackson walking on earlier. He observed blood droplets in various places along the route.

¶17 Subsequently, Cochran was charged by information with committing the felony offense of assault in violation of § 45-5-202(2)(a), MCA (1993), by stabbing Jackson with a knife or scissors. At trial, Painter demonstrated how the scissors he had seized were still functional. He also showed the jury a picture he had taken of Cochran’s hand that depicted one large cut and several scratches. Painter demonstrated that when he held the scissors in his hand by grasping the blade of the closed scissors, the edge made contact with the lower part of his palm which approximated the area on Cochran’s smaller hand where she was cut.

¶ 18 However, Jackson offered another explanation at trial as to how both Cochran and he sustained their wounds. Jackson specifically denied that Cochran stabbed him, and he specifically denied that he had ever told Johnson he injured himself by falling on glass. Instead, he blamed his injuries on two unknown assailants.

¶19 Jackson elaborated on the events that allegedly unfolded. He testified that he has lived with Cochran since the summer of 1993, and he continued to live with her throughout the trial. At approximately 10:00 p.m, Cochran and he went to a bar and played pool with Lindemulder and the bartender. Rose, who was with them at the trailer, stayed behind. Jackson drank two beers and two shots of whiskey, and at approximately 11:00 p.m., Cochran, Lindemulder and he returned to the trailer. Rose was still there and the four sat around drinking and talking. According to him, no one was arguing or fighting during this time period.

¶20 Lindemulder eventually passed out on the couch, and Rose passed out in a back room while Cochran and Jackson continued drinking and talking. After they had passed out, Jackson claims he exited the trailer to investigate a banging noise. He discovered two people whom he had never seen before wrestling by the stairs to the front door. Jackson approached the two men to try to break up the fight. He was not concerned for his own safety, because he had been an amateur boxer and believed he could defend himself. However, when he tried to push the two men apart, he felt some pain in his arm. When he grabbed his arm, it felt wet, and he realized he had been stabbed. Jackson did not see a knife, and he does not know which person actually stabbed him. He then walked back to the trailer, and he said he saw the two individuals run away in a northern direction.

¶21 Once inside the trailer, Jackson claims that he grabbed four steak knives and intended to assault the two men who had injured him. Before he could, however, Cochran grabbed his arm with both hands to stop him, and in the process she got blood on herself. She also scratched her own hand on the knifes when he attempted to jerk away from her. Eventually, Cochran dissuaded him from going after the two men, and she attempted to bandage his arm. When the bleeding did not stop, he walked to a friend’s home for help and when the friend was not home, he walked to his brother’s home. It was during his walk that he encountered Officer Painter twice.

¶22 Although the police station was one block from Cochran’s home, Jackson said he did not want to walk there or tell the police what had happened because he feared they had a warrant out for his arrest in connection with other events. For that same reason, when he learned that Johnson had telephoned the police at his brother’s home, he requested that she cancel the call. However, although the police now know where Jackson is, Jackson has still refused to talk with either the police or with anyone from the County Attorney’s office about the incident.

¶23 Rose was also called as a witness at the trial. Rose had been a longtime friend of Cochran and her family since she was a child. Although he could not remember any particular dates, he did recall an incident when Jackson was injured at Cochran’s residence, but he “wasn’t paying too much attention” because he was “cooking vegetable soup.” According to Rose, there was a party going on and people were coming and going, but again he was not paying attention to who else might have been there. When questioned whether he saw Jackson bleed, he again responded that he “didn’t pay no attention.” Rose recalled giving a statement to Officer Painter in January about the incident, but at the time of trial he claimed he did not recall any alleged statement that he saw Cochran grab Jackson and turn him around. He also claimed he did not recall any statement that he heard Jackson say to Cochran “Ouch, don’t do that.” No alleged statement of Rose was ever offered or admitted into evidence. Painter did not testify about Rose’s alleged statement.

¶24 Lindemulder did not testify. He was not a resident of Harlem, and the prosecution was unsuccessful in its attempts to locate him. ¶25 At the close of the State’s case, Cochran moved for a directed verdict. The court denied the motion, and the jury ultimately convicted Cochran of felony assault. The court sentenced her to a term of two years in the Montana State Prison on the charge of felony assault, and an additional six years because the offense was committed with a dangerous weapon. Cochran appeals.

DISCUSSION

¶26 Did the District Court abuse its discretion when it denied Cochran’s motion for a directed verdict?

¶27 The State charged Cochran with felony assault in violation of § 45-5-202(2)(a), MCA, which provides:

(2) A person commits the offense of felony assault if the person purposely or knowingly causes:
(a) bodily injury to another with a weapon[.]

In this case, it was necessary for the State to prove that Cochran (1) purposely or knowingly, (2) caused bodily injury to Jackson, (3) with a weapon. At the close of the State’s case, Cochran moved for a judgment of acquittal on the grounds that the State failed to prove that it was Cochran who stabbed Jackson.

¶28 Pursuant to § 46-16-403, MCA, a district court may direct a verdict of acquittal and dismiss a criminal action when the evidence is insufficient to support a verdict of guilty. Section 46-16-403, MCA, provides:

When, at the close of the prosecution’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant. However, prior to dismissal, the court may allow the case to be reopened for good cause shown.

We review a trial court’s denial of a motion for a directed verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Granby (1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). A district court’s decision lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307 (citation omitted).

¶29 In this case, we conclude that there is insufficient evidence to establish that it was, in fact, Cochran who assaulted Jackson. First, no direct evidence links Cochran to the crime. No witness testified that Cochran stabbed Jackson. Jackson himself never claimed to his family, the police, or his physician that he had been stabbed by Cochran, and at trial he expressly denied that it was she who assaulted him. The State argues that Jackson’s account of how he sustained his wounds is not believable because both Officers Painter and Hunger testified that there was no sign of a scuffle with two other persons in the snow outside the trailer. Additionally, at no time did Jackson report the crime or take any steps to locate and prosecute these two unidentified assailants. However, proving that someone other than these two alleged unknown men stabbed Jackson does not constitute proof that Cochran stabbed him.

¶30 Second, the circumstantial evidence was equally insufficient. Officers Painter and Hunger found blood inside the trailer, particularly in the kitchen area, and to varying degrees on each of the three persons located in the home. They also observed signs of a scuffle inside the trailer, such as the broken plate. Although the evidence thus indicates that Jackson was probably stabbed inside the trailer, no evidence established that it was Cochran, as opposed to Rose or Lindemulder, who assaulted Jackson. The State argues that more blood was found on Cochran than on Rose or Lindemulder and that blood was found on a pair of jeans she had allegedly hidden. But the quantity of blood does not necessarily establish guilt. It is just as possible that blood got on Cochran when she attempted to give Jackson first aid, as he testified. The State presented no evidence as to when the blood got on the pants.

¶31 The State argues that other evidence suggests that Cochran is guilty. It points to the “suspicious disposal” of the clean, functional scissors. However, the State presented no evidence that Jackson sustained his wounds from the scissors, as opposed to a knife, and no evidence suggests that it was Cochran rather than Rose or Lindemulder who threw the scissors away. Additionally, the scissors were located on the top of the garbage in plain view; they were not “suspiciously” buried or bidden.

¶32 The State also points to cuts on Cochran’s hands. Again, however, there is no evidence establishing when she got the cuts, and none of the kitchen implements were directly tied either to her cuts or to the stab wounds. Even if the cuts were obtained on the evening of the incident, it is possible that she cut herself while trying to grab knives from Jackson’s hands, as Jackson testified.

¶33 The State next argues that Cochran’s behavior when the police arrived indicates a consciousness of guilt. The State insists that Cochran was only feigning sleep when the police arrived, and that she was the only person who could have opened and shut the curtains to the trailer moments before the police entered. However, the police did not actually see a person at the window when the curtains briefly opened and shut. Even assuming a person did open and shut the curtains, it could have been Rose, for example, who, although was heavily intoxicated when the police entered, was nevertheless awake. No evidence other than pure speculation indicates that Cochran was pretending to sleep. Officer Painter testified that he was unable to awaken Cochran until after he had retrieved his camera, taken pictures, and then forcibly stood her on her feet.

¶34 We conclude that the evidence presented was not sufficient to establish that it was Cochran who assaulted Jackson. Accordingly, we hold that the District Court abused its discretion when-it failed to direct a verdict in favor of Cochran and dismiss the case. Cochran’s conviction for felony assault is reversed and her sentence is vacated.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, TRIEWEILER and LEAPHART concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LORI K. COMPAS, f/k/a LORI K. MILLER, Defendant and Appellant.
    No. 97-488.
    Submitted on Briefs January 30, 1998.
    Decided June 9, 1998.
    1998 MT 140.
    55 St.Rep. 560.
    290 Mont. 11.
    964 P.2d 703.

      For Appellant: Stephen Potenberg, Hesse & Potenberg, Livingston.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth Horsman-Wiitala, Assistant Attorney General, Helena; Tara DePuy, County Attorney, Catherine L. Truman, Deputy County Attorney, Livingston.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶ 1 Defendant Lori Compás (Compás) appeals from the judgment entered by the Sixth Judicial District Court, Park County, on its Findings of Fact, Conclusions of Law and Order convicting her of two counts of disorderly conduct and from its denial of her motion to dismiss the charges. We affirm.

¶2 We address the following restated issues:

¶3 1. Does sufficient evidence support the convictions?

¶4 2. Does § 45-8-101, MCA, as applied in this case, violate Compás’ free speech rights under the First Amendment to the United States Constitution?

¶5 Chan and Pam Libbey (the Libbeys) developed, own and operate the Yellowstone Edge RV Park (RV Park) located in the Paradise Valley of Montana. The RV Park is situated eighteen miles south of Livingston on land wedged between U.S. Highway 89 and the Yellowstone River. The Libbeys opened the RV Park in the summer of 1994, after complying with the required public hearing process and obtaining the necessary state and local permits.

¶6 Once the Libbeys started renting RV and camping spaces on the river, they began to experience repeated horn honking from vehicles traveling on the highway past the RV Park. The honking amounted to “someone just laying on the horn” the length of the RV Park. Several Park County residents described the RV Park as a scar on the Paradise Valley’s landscape and the newspaper in Livingston reported that the RV Park had become a “persistent source of controversy” due to its location on the Yellowstone River.

¶7 While in the campground office on the evening of May 6,1995, the Libbeys heard a loud, long horn honk consisting of three continuous blasts from a vehicle traveling north on Highway 89. Due to the ongoing horn honking problem, Chan left the RV Park in Pam’s car and pursued the vehicle from which the honking emanated. He followed the vehicle, a white Toyota extended cab pickup, until he was close enough to get the license plate number. He then passed the pickup and obtained a physical description of the driver, a male with long straight blond hair, and one passenger, a female with short hair. Chan then returned to the RV Park. Several RV Park guests asked Pam why someone was holding down his or her horn while passing the campground.

¶8 The next morning the Libbeys again heard three long horn honking “blasts” from a white Toyota pickup as it traveled south on the highway past the RV Park. Chan again followed the vehicle in Pam’s car and confirmed that it was the same Toyota pickup from the night before, driven by the same male; this time he was accompanied by two passengers, a male and a female. Chan identified the female passenger as the woman from the prior night’s horn honking incident. The RV Park guests complained about the horn honking noise. The Toyota’s description, its license plate number and the descriptions of the driver and passengers were provided to the Park County Sheriffs Office after each incident.

¶9 Compás subsequently was charged by complaint in the Park County Justice Court with two counts of disorderly conduct in violation of § 45-8-101(l)(b), MCA. The alleged factual basis for the charges was that she disturbed the peace, making loud or unusual noises, by blowing the Toyota’s horn while her friend drove past the RV Park on May 6 and 7,1995. Compás was convicted of both counts of disorderly conduct and appealed to the District Court.

¶ 10 At Compás’ de novo bench trial on May 5,1997, she admitted to the District Court that she frequently honked as she traveled past the RV Park and that she did, in fact, honk the Toyota’s horn on the dates in question. Compás testified that it was her “personal policy to honk every time [she] drove by the place” because she wanted to protest the RV Park and its location on the Yellowstone River. In Compás’ view, the RV Park was an eyesore which destroyed the view from the road and the river.

¶11 The District Court subsequently entered its Findings of Fact, Conclusions of Law and Order finding Compás guilty of two counts of disorderly conduct, making loud or unusual noises, in violation of § 45-8-101(l)(b), MCA. The court found that, while a passenger in a white Toyota pickup, Compás “reached over and honked the horn for three long, steady bursts as it traveled the length of the park... in protest of the placement and operation of the park” and that “by honking a horn for several seconds on May 6 and 7, 1995 ... [Compás] made loud and unusual noises.” It concluded that Compás “disturbed] the peace of the owners and guests of Yellowstone’s Edge RV Park.” Judgment was entered accordingly and Compás appeals.

¶12 1. Does sufficient evidence support the convictions?

¶13 We review the sufficiency of the evidence to support a criminal conviction to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Granby (1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). The same standard applies to our review of judge-made findings relating to a criminal conviction as to jury-made findings. Granby, 283 Mont. at 199, 939 P.2d at 1010 (citation omitted).

¶14 Compás was convicted of committing the offense of disorderly conduct set forth in § 45-8-101(l)(b), MCA, by making loud or unusual noises. She correctly observes that two elements must be proved beyond a reasonable doubt to support a conviction under § 45-8-101(l)(b), MCA: (1) that she knowingly disturbed the peace; and (2) that she did so by making loud or unusual noises. Relying on State v. Ytterdahl (1986), 222 Mont. 258, 721 P.2d 757, Compás contends that insufficient evidence established the “disturbing the peace” element. Her reliance is misplaced.

¶15 The defendant in Ytterdahl was convicted of the offense of disorderly conduct under § 45-8-101(l)(g), MCA, by disturbing or disrupting any lawful assembly or public meeting. His conviction was based on his behavior at a county commissioners’ meeting relating to an easement action taken by the county on his property. Ytterdahl “hollered] and scream[ed] at the commissioners” and, after being informed that he could initiate a lawsuit regarding his complaint of trespass by the county, he “’mumbled a bad word,”’ got up, stomped out and slammed the door so hard that the glass in the room rattled.” Ytterdahl, 222 Mont. at 259-60, 721 P.2d at 758. We reversed Ytterdahl’s conviction, ultimately holding that the evidence failed to show that his acts were sufficient to constitute the offense of disorderly conduct under § 45-8-101(l)(g), MCA. Ytterdahl, 222 Mont. at 261-62, 721 P.2d at 759-60. In reaching that result, we held that “disturbing the peace is synonymous with breaching the peace[,]” which we defined — for purposes of § 45-8-101(l)(g),MCA — as tending to create public tumult, or to incite others to break the peace or to cause an immediate disturbance by others. Ytterdahl, 222 Mont. at 261, 721 P.2d at 759. In addition, we weighed Ytterdahl’s rights to protest an allegedly unlawful act of his government and to free speech against the state’s interest in preserving the peace and concluded that Ytterdahl’s actual conduct was not sufficient to constitute the charged offense of disorderly conduct. Ytterdahl, 222 Mont. at 262, 721 P.2d at 760.

¶16 Here, Compás contends that no evidence of record supports the District Court’s finding that her horn honking resulted in a breach of the peace as we defined that term in Ytterdahl. Compás fails to recognize, however, that our definitions of breach of the peace in Ytterdahl were in the context of an alleged violation of subsection (g) of § 45-8-101(1), MCA, disturbing or disrupting any lawful assembly or public meeting; indeed, we specifically stated that the definitions were applicable “[t]o establish a misdemeanor under Section 45-8-101(l)(g), MCA ...” As discussed above, Compás was charged, and convicted, under § 45-8-101(l)(b), MCA.

¶17 Moreover, we expressly limited application of Ytterdahl to disorderly conduct charges brought under § 45-8-101(l)(g), MCA, in State v. Lowery (1988), 233 Mont. 96, 98-99, 759 P.2d 158, 159-60. Like Compás, the defendant in Lowery was charged with disorderly conduct under a different subsection of § 45-8-101(1), MCA, than that at issue in Ytterdahl. See Lowery, 233 Mont. at 99, 759 P.2d at 160.

¶18 In this case, the District Court found that Compás’ horn blasts disturbed the Libbeys and the guests of the RV Park. It further found that the horn honkings caused an immediate disturbance to the Libbeys and their guests and thereby disturbed their peace. The record supports the court’s findings and, indeed, Compás does not argue otherwise.

¶ 19 When viewed in the light most favorable to the prosecution, any rational trier of fact could have found that Compás knowingly disturbed the peace by making loud or unusual noises. We hold, therefore, that sufficient evidence supports the District Court’s conviction of Compás of two counts of disorderly conduct.

¶20 2. Does § 45-8-101, MCA, as applied in this case, violate Compás’ free speech rights under the First Amendment to the United States Constitution?

¶21 Compás filed a pretrial motion to dismiss the disorderly conduct charges on the basis, in part, that her horn honking actions were protected speech under the First Amendment to the United States Constitution which could not be criminally sanctioned. The District Court orally denied the motion, concluding that Compás had not established an infringement of her free speech rights. Compás asserts error, contending that § 45-8-101, MCA, as applied in this case, violates her right to free speech.

¶22 A trial court’s decision to deny a motion to dismiss in a criminal case is a conclusion of law which we review de novo. State v. Cooney (1997), 284 Mont. 500, 502, 945 P.2d 891, 892 (citation omitted). Our review of a trial court’s determination on a question of constitutional law also is plenary. State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503 (citation omitted).

¶23 Compás contends that her horn honking activities were “expressive conduct” which has long been recognized as protected speech under the United States Constitution. She cites to no authorities which support her position, however. To prevail on her “as applied” chailenge to § 45-8-101, MCA, Compás must prove that her horn honking activities are constitutionally protected. See State v. Helfrich (1996), 277 Mont. 452, 458, 922 P.2d 1159, 1163. She has not done so with regard to her “expressive conduct” contention.

¶24 Nor is Compás’ reliance on Ytterdahl in this regard well placed. There, we emphasized that the defendant’s actions involved protesting to his government an allegedly unlawful act of his government. Ytterdahl, 222 Mont. at 262, 721 P.2d at 760. Compás’ conduct in the present case is of an entirely different type. She was not exercising her right to protest to her government and she was not protesting any allegedly unlawful act by her government or, indeed, by anyone. Thus, Ytterdahl does not support Compás’ position here.

¶25 The right to free speech is not absolute. City of Billings v. Batten (1985), 218 Mont. 64, 69, 705 P.2d 1120, 1124 (citation omitted). Indeed, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems.” State v. Lance (1986), 222 Mont. 92, 102, 721 P.2d 1258, 1265 (citation omitted). One of those classes of speech not protected by the First Amendment is activity intended to embarrass, annoy or harass. Helfrich, 277 Mont. at 460, 922 P.2d at 1164 (citations omitted).

¶26 Here, Compás’ horn honking activities clearly annoyed and harassed the Libbeys and their guests at the RV Park and, on the face of it, could not have been intended otherwise. Thus, while Compás asserts that her intent was “to protest the location of the RV Park,” her actions did not constitute a protest to government of government acts which would be entitled to protection under the First Amendment. Moreover, under these circumstances, Compás’ “protest” — aimed at the Libbeys — had precisely the effect she intended: it disturbed their peace and that of their guests.

¶27 We conclude that the District Court correctly concluded that Compás did not establish a violation of her free speech rights. Therefore, we hold that the District Court did not err in denying Compás’ motion to dismiss the disorderly conduct charges.

¶28 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and LEAPHART concur.