[Download] "State v. Gunn" by Supreme Court of Montana * Book PDF Kindle ePub Free

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eBook details

• Title: State v. Gunn
• Author : Supreme Court of Montana
• Release Date : January 16, 1929
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 56 KB

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Criminal Law ? Murder in First Degree ? Insufficiency of Evidence ? Burden of Proof ? New Trial ? Evidence ? Cross-examination ? Credibility of Witness Affected by Occupation. Homicide ? Murder in First Degree ? Burden of Proof upon State to Show Premeditation. 1. To sustain a conviction of murder in the first degree, it is incumbent upon the state to show by the record not only that it discharged the burden resting upon it to establish the killing by defendant, but also that it proved deliberation and premeditation on his part. Same ? Murder in First Degree ? Insufficiency of Evidence. 2. Defendant, keeper of a roadhouse where intoxicating liquor was sold, several hours after three men, with two of whom he had had a quarrel, had left the place, and about 1 oclock in the morning, was driving in an automobile to a neighboring town when he observed the car of the three stalled in the road. A fight ensued with the two with whom he had quarreled, in the course of which he killed one. His defense was self-defense. While the testimony of the other two made little mention of an encounter, the ground where the shooting occurred showed evidence of a desperate struggle; it also appeared that defendant, among other injuries, sustained a broken leg and was confined in a hospital for nearly six months. Held, that the evidence was insufficient to sustain a verdict of murder in the first degree. Same ? Evidence ? Physical Facts may Unerringly Refute Sworn Testimony. 3. Physical facts are often more potent in the ascertainment of truth than sworn statements of witnesses; they may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the facts are not affected by sworn testimony which, in mere words, conflicts with them. Same ? Appeal ? Improbable or Incredible Testimony ? When Supreme Court not Bound by Verdict of Jury. 4. The rule that since the jury is in a more advantageous position to pass upon the credibility of witnesses and the weight to be given to their testimony than is the supreme court and that it will not substitute its judgment for that of the jury, is not controlling where the surrounding circumstances make the story of a witness highly improbable or incredible, when the testimony is inherently impossible, or the physical facts unerringly refute his testimony. - Page 554 Criminal Law ? New Trial ? Insufficiency of Evidence ? Defendant not Estopped to Urge Error by Failure to Object to Instructions on Degree of Crime of Which Convicted. 5. Failure of defendant to object to instructions on first degree murder does not deprive him of the right to ask for a new trial on the ground that the evidence did not justify a verdict of murder in that degree, the expression in section 12048, Revised Codes of 1921, authorizing a new trial "when the verdict is contrary to the evidence" meaning the same thing as insufficiency of the evidence to justify the verdict, and the section not contemplating that defendant must first make objection to such instructions before he may rely upon the insufficiency of the evidence as a ground for a new trial. Evidence ? Cross-examination ? Occupation of Witness Proper Subject of Inquiry as Affecting Credibility. 6. The occupation of a witness is a proper subject of inquiry on cross-examination, as bearing upon his credibility.

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