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[60 Mont. 558.]

evidence, including the testimony of the defendant himself, the jury have any reasonable doubt that the defendant is guilty as charged in the information, then, and in such case, you should give the defendant the benefit of that doubt, and acquit him."

"(16) You are instructed that if, after considering all the evidence in this case, you should entertain a reasonable doubt as to whether the deceased was shot and killed with a softnosed bullet, then it is your sworn duty to give the defendant the benefit of such doubt upon that question, and find him not guilty."

"(20) The court instructs the jury that the burden of proving that the defendant was present and participated in the alleged homicide is upon the prosecution, and, if the prosecution fails to prove his presence or participation in the alleged homicide beyond a reasonable doubt, then it is your duty to acquit the defendant."

The reasons given by counsel in their brief were that the foregoing instructions were "predicated upon the defense of alibi, and that the defendant, having introduced evidence tending to establish an alibi, was entirely denied the right to have the same considered by the jury."

The propositions contained in the offered instructions are that the burden of proving that "the defendant was present and participated in the alleged homicide," is upon the state, and if it fails "to prove his presence or participation in the alleged homicide beyond a reasonable doubt, then it is your duty to acquit the defendant." In volume 1 of the third edition of Bouvier's Law Dictionary, we find the following: "Alibi. (Lat. elsewhere) Presence in another place than that described." If, as the defendant's counsel now insist, the defendant's absence from the scene of the homicide at the time of the killing was relied upon as one of his chief grounds of defense, he should have tendered an instruction defining the term "alibi," and so wording it that the jury could not have misunderstood the issue presented for their determina

[60 Mont. 558.]

tion. The instructions proposed do not present that issue to

the jury.

Under our system, it is the duty of counsel to request the court to give such instructions as he desires. If he fails to follow the statute in that respect, this court will indulge the presumption that the issue was not deemed of sufficient moment to warrant its submission to the jury. Any other course would encourage counsel to try his case in the district court upon one theory, and another and distinct theory in this court, and thus produce uncertainty and confusion which would seriously hamper the administration of the criminal law. Had counsel prepared an instruction in writing, defining the term "alibi" for the guidance of the jury in its consideration of the evidence upon that point, as he is required to do by subdivision 4 of section 9271 of the Revised Codes, a different question would arise.

The court, in its instruction No. 7, distinctly told the jury [8] that no person could be convicted of murder unless the death of the person alleged to have been murdered, and the fact of the killing by the defendant, are established as independent acts. In the same instruction it also used this language: "The fact of the killing must be established by direct proof, beyond a reasonable doubt, and the fact that the killing was done by the defendant must be established beyond a reasonable doubt."

The court also defined the term "reasonable doubt" without exception by defendant, and further charged that the defendant was presumed to be innocent, "and particularly of the crime charged," until the crime was proven, and, in case of a reasonable doubt whether his guilt is satisfactorily shown, he should be acquitted. From the entire charge, it is clear to us that the jury must have fully understood that, if they entertained a reasonable doubt as to whether the defendant, at the time of the shooting, was so far away from the scene that he could not have committed the act, the state had failed to prove

[60 Mont. 558.]

his guilt, and that the defendant must be acquitted. By defendant's own admission he was within rifle-shot of the deceased at or near the time of the killing. He left the doorstep of his house with his rifle in his hands, almost immediately returned to the house, hastily gathered up some provisions to take along, and passed out of sight toward the mountains. In our opinion, these conceded facts furnish ample ground for the inference that he assumed a position from which he could see the deceased removing a fence in opposition to his will, and in a spirit of anger, revenge and malice shot him, and without delay went into the mountains, where he stayed for the space of three days.

Appellant's contention that the court erred in giving as its [9] instruction No. 15, a literal copy of section 9282 of the Revised Codes, has no merit. It reads: "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." As was said by Chief Justice Brantly in the case of State v. Colbert, 58 Mont. 584, 194 Pac. 145: "In murder cases, when the killing is proved, the burden shifts to the defendant to adduce evidence tending to show mitigation, excuse, or justification. (Rev. Codes, sec. 9282.) When, therefore, the homicide is established, nothing else appearing, the presumption of innocence is overcome"; and the presumption that a person intends the natural consequences of his voluntary act "comes to the aid of the prosecution and establishes the malicious intent which is a necessary element of the crime, and warrants a verdict finding the defendant guilty of murder. To warrant a finding of murder in the first degree, the prosecution must, of course, establish premeditation and deliberation. (State v. Kuum, 55 Mont. 436, 178 Pac. 288.) But to establish murder

[60 Mont. 558.]

as defined in our Codes (section 8290), proof of the killing alone is sufficient to make out the case."

Under the circumstances shown in the evidence, there was ample room for the jury to conclude that the defendant killed the deceased. Having established that fact, clearly the burden was then upon the defendant to show circumstances of mitigation. The finding of the jury precludes the suggestion that there were any circumstances tending in any manner to justify or excuse the act. The state was entitled to this instruction and it was not error upon the part of the court to give it.

Error is also claimed because the court struck out and re[10] fused to consider the affidavits touching the charge that the jury were not kept together during the trial, and their deliberations upon the verdict. To rebut this evidence, each of the twelve jurors, as well as the three bailiffs, under whose charge they were, testified that they were kept together, and not allowed to separate; that they heard no other evidence than that adduced upon the trial; that they did not communicate with any person during the trial, nor misconduct themselves in any manner whatsoever; and that no facts other than those embodied in the evidence upon the trial entered into their consideration of the case. We have carefully considered the evidence upon this question, and are of the opinion that the result would have been the same had the court considered the question on the merits, instead of striking them from the files.

After a painstaking examination of the proceedings in the court below, embracing more than 850 full pages of typewritten matter, and a thorough examination of every legal question argued and suggested in the briefs of counsel, we are satisfied that every debatable ground of error has been urged in defendant's behalf. While we have not discussed all the errors alleged to have been committed, we have carefully considered them all, and are satisfied that every substantial

right of the defendant was respected, and that the verdict and judgment are fully justified by the evidence.

The judgment and order appealed from are affirmed.

Affirmed.

MR. CHIEF JUSTICE BRANTLY and ASSOCIATE JUSTICES REYNOLDS, HOLLOWAY and GALEN concur in the result.

Rehearing denied July 18, 1921.

EVANS ET AL., RESPONDENTS, v. CITY OF HELENA ET AL., APPELLANTS.

(No. 4,894.)

(Submitted July 1, 1921. Decided July 6, 1921.)
[199 Pac. 445.]

Cities and Towns-Special Improvements-Departure from Resolution of Intention-Void Contract-Injunction-Bonds and Warrants-Issuance at Discount Prohibited.

Cities and Towns-Special Improvements-Departure from Resolution of Intention not Permitted.

1. In its resolution of intention to create a special improvement district, the city council must describe the character and nature of the contemplated improvements with sufficient particularity to advise the taxpayer affected, and the improvements to be made must correspond substantially with those set forth in the resolution, and no material change or departure therefrom can be made.

Same Special Improvements-Material Departure from Resolution of Intention-Injunction.

2. Under a resolution of intention to create a special improvement district for the purpose of paving streets, with the necessary excavations, cutting, filling, etc., and "incidental work," held that defendant city was properly enjoined from entering into a contract the provisions of which departed substantially from the purposes set forth in the resolution, in that they included reduction in the street widths and the construction of new parking, curbing and storm sewers, each of which constitutes a distinct city improvement under Chapter 89, Laws of 1913, as amended by Chapter 142, Laws of 1915, and none of which was therefore subject to inclusion under the term "incidental work."

60 Mont.-37

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