Appeal from District Court, Silver Bow County; J.J. Lynch,
MR. JUSTICE MATTHEWS DELIVERED THE OPINION OF THE COURT.
Criminal Law Homicide Jury Challenges Evidence Dying Declarations Witnesses Insanity Burden of Proof. Criminal Law Jury When Challenge Properly Denied. 1. The provision of section 11962, Revised Codes of 1921, that in challenging a juror for implied bias one or more of the causes stated in section 11960, and in challenging for actual bias the cause stated in subdivision 2 of section 11959, must be alleged, is mandatory; hence where this is not done, denial of the challenge does not entitle appellant to allege error. Same Jury When Juror not Disqualified by Expression of Opinion That Crime had Been Committed. 2. Where a juror on his voir dire stated that from newspaper reports and conversations with others he had formed the opinion that murder had been committed, but had no opinion as to the guilt or innocence of the defendant, that he would require the state to prove beyond a reasonable doubt that the latter had killed deceased with malice aforethought before he would vote for a conviction, and that he could fairly and impartially try him, he was not disqualified from serving. Homicide Dying Declarations Admissibility Question for Court. 3. The question whether a dying declaration is admissible is one for the court's decision after hearing preliminary proof concerning the condition of the declarant and the circumstances surrounding the making of the statement, whereupon, if admitted, the question of its sufficiency and the weight to be given it is for the jury's determination; hence refusal to submit instructions stating the rule governing the admission of such declarations was not error. Same Dying Declarations Admissibility. 4. Evidence held sufficient to show that when decedent whose abdomen had been torn open by a charge of heavy shot at close range, made the statement that defendant had fired the shot, he did so under a sense of impending death, and therefore it was admissible as his dying declaration. Trial Recross-examination Proper Exclusion as Repetitious. 5. Where a witness on his cross-examination had answered a question, refusal to permit him to answer the same question on recross-examination was proper. Same Witnesses Failure to Understand Oath Motion to Strike Proper Remedy. 6. A witness of foreign birth who knew that when he was sworn he was taking an oath and who testified on cross-examination that he had told nothing but the truth, was not disqualified by the fact that he did not understand what was said when the oath was administered to him; if counsel believed he did not understand the nature of an oath he should have moved to strike all of the testimony of the witness. Homicide Deliberate Killing Evidence Sufficiency. 7. Where defendant after deliberately firing a load of heavy shot into the body of a person at close range killing him instantly, made the remark that he would do likewise to deceased and did so and on his trial pleaded insanity, the circumstances were sufficient to show a wilful, deliberate murder and the contention that in the absence of evidence of malice aforethought a judgment of murder in the first degree cannot be sustained, held without merit. Same Insanity Burden of Proof on Defendant. 8. Under Chapter 87, Laws of 1925, defendant charged with homicide, has the burden of proving his defense of insanity by a preponderance of the testimony, and an instruction that the state was required to prove beyond a reasonable doubt that he was sane was erroneous. Same When Instruction on Manslaughter Improper. 9. Where defendant under the evidence was either guilty of murder or not guilty by reason of insanity, the court properly refused to give an instruction on the subject of manslaughter. Same New Trial on Ground That Testimony of Witness is Incredible Rule Held Inapplicable. 10. Testimony of a witness examined and held not so improbable, incredible or impossible as to make applicable the rule that where the surrounding circumstances make the story of a witness highly improbable or incredible, or when his testimony is inherently incredible, a new trial should be ordered.
The court erred in disallowing defendant's challenge for cause interposed against juror Kinney. (State v. Russell, 73 Mont. 240, 235 P. 172; People v. Helm, 152 Cal. 532, 93 P. 99-105; People v. Wismer, 58 Cal.App. 679, 209 P. 259-261. See, also, Coughlin v. People, 144 Ill. 140, 19 L.R.A. 57, 33 N.E. 1; Scribner v. State, 3 Okla. Cr. 601, 35 L.R.A. (n.s.) 985, 108 P. 422; State v. Otto, 61 Kan. 63, 58 P. 995; Middleton v. State, 16 Okla. Cr. 320, 183 P. 626; State v. Brooks, 57 Mont. 480, 188 P. 942.)
The alleged declarations of the deceased, taken piecemeal, or collectively, fall far short of showing that it was made in articulo mortis. (State v. Phillips, 118 Iowa, 660, 92 N.W. 876; State v. Kacar, 74 Mont. 269, 240 P. 365; State v. Doris, 51 Or. 136, 16 L.R.A., (n.s.), 660, 94 P. 44.)
Declarations which it was testified to were made by deceased at the hospital were inadmissible for any purpose, they were not dying declarations and they were not declarations admissible as part of the res gestae, but were purely hearsay relating to past occurrences. (State v. DeHart, 38 Mont. 213, 99 P. 438; State v. Pugh, 16 Mont. 343, 40 P. 861; State v. Judd, 20 Mont. 420, 51 P. 1033.)
Mr. L.A. Foot, Attorney General, Mr. I.W. Choate, Assistant Attorney General, Mr. T.E. Downey, County Attorney of Silver Bow County, and Mr. N.A. Rotering, Assistant County Attorney, for the State, submitted a brief; Mr. Choate and Mr. Downey argued the cause orally.
Defendant's challenge to Juror Kinney was properly disallowed: (State v. Byrne, 60 Mont. 317, 199 P. 262; State v. Russell, 73 Mont. 240, 235 P. 712; State v. Juhrey, 61 Mont. 413, 202 P. 762; State v. Haworth, 24 Utah, 398, 68 P. 155; State v. Hoerr, 88 Kan. 573, 129 P. 153; State v. Olsen, 88 Kan. 136, 127 P. 627; Cason v. State, 52 Tex. Cr. 220, 106 S.W. 338; State v. Ware, 58 Wn. 526, 109 P. 359; People v. Foglesong, 116 Mich. 556, 74 N.W. 730; State v. Weems, 96 Iowa, 426, 65 N.W. 387; State v. McDaniel, 39 Or. 161, 65 P. 520; State v. Hoagland, 39 Idaho, 405, 228 P. 314).
The dying declaration of decedent was properly admitted in evidence. (State v. Crean, 43 Mont. 47, 57, Ann. Cas. 1912C, 425, 114 P. 603; State v. Kacar, 74 Mont. 269, 240 P. 365; State v. Byrd, 41 Mont. 585, 111 P. 407; Keaton v. State, 41 Tex. Cr. 621, 57 S.W. 1125; Winfrey v. State, 41 Tex. Cr. 538, 56 S.W. 919; State v. Roberts, 28 Nev. 350, 82 P. 100; Miller v. State, 27 Tex. App. 80[27 Tex.Crim. 80], 10 S.W. 445.)
On February 23, 1926, the defendant, Tony Vettere, was convicted of the crime of murder in the first degree in the district court of Silver Bow county, and on March 13, 1926, he was by the court duly sentenced to be hanged. From the judgment and from an order of the court refusing him a new trial this appeal is prosecuted. Numerous assignments of error are made and will sufficiently appear hereinafter.
The testimony adduced at the trial tends to establish the following facts: On the night of November 22, 1925, Antone Favero and Joe Ciccarelli, while standing in front of the Antone Favero home at 201 North Main Street, Meaderville, each received, at short range, a charge of No. 4 shot in the body, discharged from a 12-gauge shotgun. Ciccarelli died immediately and Favero died in the Murray Hospital within two hours after he was shot.
Some confusion was caused at the trial by reason of the fact that most of the witnesses spoke through an interpreter and that there were four houses, apparently within a block of one another, on North Main Street, Meaderville, known as the Favero house or home. It is clear, however, that the home of Antone Favero was farthest north and stood on the corner of the street and an alley, facing the street; that something like 125 feet to the rear, facing the alley, stood another house occupied by members of the Favero family; next to the south on Main Street, at No. 131, was the home of Ben Favero and his wife; and still farther south, but just how far not being disclosed, stood another house occupied by the Ben Favero family. Joe Ciccarelli lived across the street from Antone Favero. One Jim Marsetti, with his wife and family, lived a short distance to the north of the Antone Favero home, while the defendant lived in a cabin near the Marsetti home.
In the late afternoon of November 22, 1925, the defendant, an Italian miner, had become drunk and boisterous. He visited the Marsetti home, taking with him a shotgun and a revolver. He created considerable disturbance, caused considerable damage, and attempted to force Mrs. Marsetti to drink some of his wine. He raised some objection to the attentions of a certain young man to Marsetti's daughter. He finally became so obnoxious that Mrs. Marsetti required her husband and another to put him out of the house. He wanted to leave his shotgun with Mrs. Marsetti, but she told him to take it with him. In the street he met Miss Marsetti and her escort, whereupon he called the young man a vile name and shot at him twice with his revolver. The young man left, declaring he would notify the police, and the defendant disappeared.
Mrs. Ben Favero saw and recognized the defendant in front of her home at 131 North Main on her return from the "picture show" that evening, though she did not notice how he was dressed or whether he carried anything in his hands. He was then going south on the street. She fixed the time at about 9:15 or 9:30.
Another witness saw the defendant in front of a drugstore to the south of all of the Favero houses the same evening. He then had a "long gun" in his hands. This witness thought the time a little before 9 o'clock.
A sixteen-year-old girl, going to the drugstore from her home to the north of the Antone Favero home, passed the defendant, as she thought, about ten or fifteen minutes before nine. He was then standing in the street with one Ligui Battestella. He then had a gun about three feet long in his hands. Battestella testified through an interpreter that he roomed in the Ben Favero house at 131 North Main Street and boarded at the lower Favero house, the number of which he did not know; that about 9:30 he was going from the house where he boarded to the house where he roomed for something to smoke; that he had passed three or four houses and came in front of an empty house which was demolished, when the defendant came from the demolished house and put a long gun in his face. The witness asked why defendant wanted to shoot him, and defendant said, "Who are you?" to which the witness replied, "I am Ligui; don't you know me?" Witness then asked defendant to come with him and get something to drink, and, while the defendant's attention was distracted, seized the gun, whereupon defendant produced his revolver and compelled him to return the gun. The defendant then said: "You go your way, and I will go my way." Asked if the defendant did not then seem excited, the witness answered: "No, he seemed placid." Battestella frequently stated that he could not fix distances, but, on being urged, fixed the place of meeting at 145 "yards" from the Antone Favero house, but he demonstrated that it was north of 131, for on cross-examination he testified that when the defendant told him to go his way he went toward Meaderville, or south, to go to the house where he roomed, or No. 131. The witness further testified that, while he was so progressing and with his back turned and within a minute and a half of the time he left defendant, he heard a shot. He turned around and immediately saw a flash in the dark and heard a second shot. He ran to the place where the shots were fired, taking but three-fourths of a minute to do so. He there found Ciccarelli dead on the ground and Favero, "lamenting pain," trying to draw himself up by holding to the picket fence. The witness testified that he then saw the defendant at or in an alley a distance of about twenty yards away, walking fast or running away; that he ran after the defendant with the intention of detaining him, but that defendant again put the gun to his face, and he therefore ran away; went directly to the house where he roomed and to bed, where he spent a bad night with visions of the two men he had seen on the ground. This witness did not see members of the Favero family at the scene of the shooting, nor did they see him, although they came from the rear house immediately on hearing the shots. The witness, although confused as to distances, remained steadfast as to the facts he had related and as to the time being about 9:30, though he stated that he had no watch.
The doctor who received Favero at the hospital, to which he was rushed immediately, testified that he was brought in about 9 o'clock. He further testified that Favero was then in a dying condition no pulse and heart fluttering, "he was in extremis," but that he rallied to strong stimulation and, after that, was conscious and rational; that he then talked in the Italian language with members of his family, though the doctor could not understand what was said. With regard to these conversations, John Favero, deceased's eldest son, 26 years old, testified: "I asked him if it pained very much; he says, `Yes.' I said, `Well, cheer up,' I says, `Maybe by morning you will feel better * * * the nurse is going to get you something to make you sleep.' He said, `I'll never feel this pain in the morning'"; that his father then told him that he was the "oldest one at home now, take care of ma and also take my keys and give them to her"; also to take his pocketbook to her. After this conversation the witness asked Favero who shot him, and he replied, "Tony Vettere," and after some questioning as to the gun, he stated, "It was a shotgun." Later deceased's wife called at the hospital with other sons and a Mrs. Perga, and in the presence of these witnesses Favero made further statements of like character.
On cross-examination before the court in the absence of the jury, John Favero was asked if at the coroner's inquest he did not make the following statement: "He was paining awful, and he said, `I can't stand this very long; I want to get up and go out'; wanted to do something; and ma told him, `You will be all right in the morning'; and he said, `I will be all right by morning; no more pain'; and by that he meant he knew he was going."
Mrs. Favero testified: "I ask my husband who shot him, and he said, `You know that Tony Vettere, that he have trouble all the time with Joe Ciccarelli, and he shot Joe,' and then he said, `There is Favero, and for Favero too, and he shot me'; he said, `He didn't have any business to shoot me; I didn't have nothing to do with him.'" On motion of counsel for defendant "all reference to trouble with Ciccarelli" was stricken from the answer.
At 10:30 on the night of the homicide Vettere appeared at the home of one John Wilplinger, where he removed an empty shell from his shotgun and reloaded the gun. He sought to exchange hats with Wilplinger. He was then sober according to the witness. The empty shell was produced at the trial and was of the same make and gauge as shells loaded with No. 4 shot found in defendant's cabin. No. 4 shot were found in deceased's body. Later that night defendant appeared at a section-house where he succeeded in changing hats. He had his shotgun with him, and stated that he had been on the mountain hunting. He was captured the next morning six miles from the scene of the homicide.
The defense was intoxication to such an extent as to deprive defendant of knowledge of his actions, and insanity. In his own behalf defendant testified that he had at one time gone to Basin to work because he drank too much in and about Butte; that for a long time he had not slept well; that he had dreams and visions which disturbed his rest. He testified further to getting drunk on the afternoon of the 22d of November and to shooting at the young man at the Marsetti ...