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[00 Mont. 426.]

defendant's sanity being in question, every act of his life was subject to scrutiny, and if it fell within prison walls it would have to be followed there. "To judge the mental deficiency of a person, the entire conduct of the individual through life may be taken into account." (St. George v. Biddeford, 76 Me. 593; State v. Colbert, 58 Mont. 584, 194 Pac. 145.) Later in his testimony, from his independent recollection, the witness said: "At the time I observed the actions of the defendant, at the time he was in the penitentiary, they were just the same as any other person in there. The defendant was at the state prison from June, 1913, until in November, when he escaped. The defendant was finally discharged from the state prison on March 21, 1920. He escaped some time in November, 1913. He was later captured in Washington. After the defendant was captured he was brought back to the Montana state prison. He was returned to the prison in January, 1914. From January, 1914, until March 21, 1920, the defendant was at the state prison at Deer Lodge, Montana, as a prisoner. The defendant made one other escape. In order to give the date of the escape, I would have to look at the commitment"-all of which presented to the jury the knowledge witness had of defendant's actions, and his opportunity for observation. The date of the second escape was immaterial. It was already in [5] evidence defendant had escaped twice. By no course of reasoning can prejudice be predicated, since the testimony was entirely directed to the defendant's mental condition and the witness' time and opportunity for observing his actions. "For many years this court has uniformly adhered to and enforced the rule that a conviction will not be set aside for technical errors or defects appearing in the record which do not effect the substantial rights of the accused." (State v. Brooks, 57 Mont. 480, 188 Pac. 942.) There is no merit to assignments 4 and 5.

The sixth assignment was that the court erred in permitting [6] to be given opinion evidence of defendant's sanity by a layman, J. B. Egan, who, according to the record, had seen,

[60 Mont. 426.]

talked with, and employed the defendant on the day of the homicide. Obviously, the witness had not qualified under subdivision 10, section 7887, Revised Codes, in that he did not come within the sphere of intimate acquaintanceship; but while the court erred in admitting his opinion, the error was harmless under all the circumstances of the case. In State v. Penna, 35 Mont. 535, 90 Pac. 787, relied on by defendant, there was much conflicting evidence as to the mental condition of the accused, and the court properly held that, under circumstances as presented at the trial, it was prejudicial error to admit the testimony of news-writers who had not qualified under the intimate acquaintanceship statute. In State v. Leakey, 44 Mont. 354, 120 Pac. 234, also cited by the defendant, the court correctly held that, in conjunction with other errors, the trial court erred in permitting the witness George Albert to express an opinion that the defendant was sane. In this case, likewise, was there much evidence conflicting in character as to the prisoner's sanity. But every case must be judged in the light of its individuating characteristics, and upon its own peculiar facts and circumstances. No parallel can be drawn between the cases cited and this case. If all of the evidence in the instant case did not point unerringly to but one conclusion, this court might have to reverse the judgment, and order a new trial.

jury his de

The state in its case in chief unquestionably established a state of facts that would support the verdict. The burden then devolved upon the defendant to prove circumstances of mitigation, or that would justify or excuse the act. This the defendant did not do, save by exhibiting to the meanor on the stand, and by incoherent answers. All of the witnesses in this case who testified as to the mental condition of the accused declared him sane. Therefore, there being no contradictory or conflicting evidence, we hold that, while the opinion evidence of the witness Egan was error, the defendant was not injured, and cannot complain. "It is further claimed the court erred in allowing proof to be made of the fact that

[60 Mont. 426.]

a number of fires were set by Warrick and the defendant after the pile of baled hay was kindled, and on the same night. Conceding that proof of after-committed offenses is not admissible in support of a criminal charge, we feel wholly justified in this case in resolving the error against the defendant, for the reason that upon the whole case we think that the conviction was just, and that there has been no miscarriage of justice." (People v. Wilkinson, 30 Cal. App. 473, 158 Pac. 1067.)

"Conceding error, and that the objection was properly raised in time, under the whole evidence, which was practically without dispute, and uncontradicted as to any part or particular, no such prejudice could have been worked to defendant's rights as would amount to a miscarriage of justice." (People v. Warr, 22 Cal. App. 663, 136 Pac. 304.)

The defendant then contends that, since no one was present [7] at the actual firing of the shots that killed Wyman, the court erred in giving the following instruction: "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."

This instruction is the statute of the state (sec. 9282, Rev. Codes), and was construed in Territory v. Manton, supra: "It means that if the jury find the fact of the killing, and that the prisoner did it, then the burden of proving circumstances which mitigate the offense from murder to manslaughter, or justify the killing altogether, will devolve on the accused, unless the very evidence itself which proves the killing, and that it was done by the prisoner, also shows it was manslaughter, or justifiable homicide." (See, also, State v. Colbert, supra.) The jury in this case was fairly and prop、 erly instructed, and no error was made in giving the instruction complained of.

Specifications 8 and 9, alleging error in denying defendant's motion for a new trial and entering judgment, are disposed of in deciding the merits of the other assignments.

For the reasons herein stated, we recommend that the judgment of conviction and the order denying a new trial be affirmed.

PER CURIAM: For the reasons given in the foregoing opinion, the judgment of conviction and the order denying a new trial are affirmed.



(No. 4,618.)

(Submitted June 2, 1921. Decided June 27, 1921.)
[199 Pac. 278.]

Criminal Law-Intoxicating Liquors-New Trial-Newly Discovered Evidence - Verdicts-Impeachment by JurorsWitnesses-Credibility-Impeachment-Former Conviction

of Misdemeanor.

Criminal Law-Witnesses-Former Conviction of Misdemeanor-Improper Cross-examination.

1. Held, that the provision of section 8907, Revised Codes, to the effect that the conviction of a person of any offense may be proved for the purpose of affecting the weight of his testimony, refers to conviction for a felony, and that therefore refusal to permit cross-examination of a witness for the state as to his former conviction of a misdemeanor was proper. Same-Misconduct of Jury-Verdict-Impeachment by Affidavit.

2. Since a juror may not impeach his verdict directly by affidavit, impeachment thereof is not permissible by the affidavit of another detailing admissions and declarations made by the juror after trial showing that he was prejudiced while acting as such.

1. What constitutes "crime" for conviction of which witness may be impeached, see note in Ann. Cas. 1916A, 274, 279.

On the question as to whether cross-examination is proper mode of proving conviction of crime for purpose of impeachment, see notes in 30 L. R. A. (n. s.) 846; 6 A. L. R. 1608.

[60 Mont. 441.]

Trial-Pleadings-Motions-Nature of-How to be Determined. 3. In determining the character of pleadings, motions and other papers filed in an action, the object sought to be attained is controlling.

Criminal Law-New Trial-Newly Discovered Evidence-Rule.

4. Where alleged newly discovered evidence is merely cumulative and designed to impeach the credibility of a witness further than it had already been impeached, a new trial cannot be granted. Same-New Trial-Motion Based on Documentary Evidence-Review on Appeal.

5. As a rule the supreme court is more reluctant to set aside an order granting than one refusing a new trial, but where the motion was based entirely upon documentary evidence, it is in as advantageous a position to pass upon its merits as was the trial court, and will set aside the order if from the record it is unable to ascertain upon what theory the motion could have been granted.

Appeal from District Court, Custer County, in the Sixteenth Judicial District; C. C. Hurley, Judge of the Seventh District, presiding.

HENRY STEIN was convicted of violating the prohibition law, and from an order granting new trial, the state appeals. Order reversed and cause remanded, with directions to enforce judgment.

Mr. S. C. Ford, Attorney General, Mr. Otto A. Gerth, Assistant Attorney General, and Mr. Frank Hunter, for Appellant, submitted a brief; Mr. L. A. Foot, Assistant Attorney General, and Mr. Hunter argued the cause orally.

Mr. Sharpless Walker, for Respondent, submitted an original and a supplemental brief and argued the cause orally.

Where a witness upon whose testimony the state's case is dependent has been promised money by the prosecution for testifying, or where he has been arrested and imprisoned and is promised his liberty if he testifies, and those facts were unknown to the defendant at the time of trial, it is ground for a new trial when discovered and presented on motion after verdict; likewise where objection is made to a question on cross-examination and testimony is excluded as to the pecuniary interest of a prosecuting witness in the conviction of a defendant. (People v. Langtree, 64 Cal. 256, 30 Pac. 813;

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