State v. Dryman

MR. JUSTICE ANDERSON:

(dissenting).

The majority opinion admits the fact that the record before this court leaves little doubt that it was the defendant who actually killed the decedent. Little wonder that any man, no matter where he resides, might be exercised, because the killing of Clarence Pellett was shockingly brutal. It would seem in the *591 circumstances that there was left for the jury here only that their minds then be open to the question of whether or not the defendant, at the time of the killing, was sane and thus responsible under the law for his acts, or insane and thus not responsible for his acts.

It appears that the majority opinion is bottomed upon the contents of certain newspaper items. It should be remembered that the news items referred to in the majority opinion were written, distributed and read at a time more than a year prior to the hearing for a change of venue.

The' newspaper items, as I read them, differ little from the usual comments in news items where a defendant pleads guilty to a murder and is sentenced to hang. The newspaper confined itself generally to circumstances having to do with the killing of Clarence Pellett and the proceedings in the district court, along with the added color and remarks usually made by newsmen when an occurrence of sensation comes about in a community. I believe that a newspaper should have a wide latitude of expression and if its use goes beyond normal expression, the local district judge is in a better position to determine its effects than we are.

The application for change of place of trial in a criminal case is one addressed to the sound discretion of the trial court, and unless there has been a clear abuse of discretion its ruling will not be disturbed. State v. Hoffman, 94 Mont. 573 , 23 Pac. (2d) 972 .

In the case of State v. Bess, 60 Mont. 558 , 199 Pac. 426, 429 , this court said: “The publication of an account of a killing, and even intimating that the defendant is the guilty party [here the defendant, before the news accounts were made, had pleaded guilty to the murder], is of itself not to be regarded as a sufficient ground for the transfer of the case to another county for trial. Newspapers do, no doubt, affect public opinion in matters upon which they take a decided stand; but before their effect can be pronounced so baneful and highly prejudicial as to warrant a change of venue, it must be shown that they were *592 passionate enough to excite undue prejudice, to the extent of rendering it impossible for an accused to secure a jury free from exception.” No such showing is made here. In fact,, if the case law of this state and the facts adduced at the hearing mean anything, the rule announced in the Bess Case is applicable.

As pointed out above, the hearing on the motion for change of venue was held on October 29, 1952, a year and one-half after the killing of Clarence E. Pellett and the news accounts followed shortly thereafter.

The petition for change of venue was supported by affidavits and testimony of four persons, two of whom were defendant’s attorneys. In opposition to the change of venue there were 25 affidavits and several witnesses who testified, all to the effect that there was no feeling of hostility or prejudice such as to prevent a fair trial.

There is a long line of cases in which the question of a change of venue has been before this court, and a study of them convinces me they have been ignored by the majority of this court in the instant case, and in effect overruled.

Language used in the case of State v. Searle, 125 Mont. 467 , 239 Pac. (2d) 995, 999 , is helpful here. It was said in that case: “It is well known that prejudice and indignation existing at and immediately after the commission of a heinous crime often subsides with the passage of time.” Here a year and one-half had passed before the hearing was had.

In the instant case the voir dire examination of the jury disclosed that of the 34 jurors called, 10 were peremptorily challenged by defendant, one by the state, and eight were excused because they had formed an opinion upon the merits of the case. In State v. Bess, supra, where the situation regarding the voir dire examination of jurors was similar, although more compellingly in favor of Bess, the court said: “This fact alone goes a long way in overcoming the charge that the court abused its discretion by refusing to change the place of trial.”

The majority opinion alludes to the fact that juror Johannson had formed an opinion in regard to the guilt or innocence of *593 the defendant and therefore should not have sat on the jury. Johannson’s statement was to the effect that he thought the judge had the right idea at the time that the judge had sentenced the defendant to hang upon his plea of guilty; however, upon voir dire examination he was asked the following questions and gave the following answers:

‘ ‘ Q. Now then you have changed your opinion since the court passed sentence upon the defendant. You have changed your opinion since that time. A. Well, yes, as long as he is going to get a new trial we have to go by the evidence.

“Q. In spite of the opinion you previously had on the evidence you would be able to give the defendant a fair and just trial? A. Yes, sir.”

A similar question has been before this court in the cases of State v. Sheerin, 12 Mont. 539 , 31 Pac. 543 , 33 Am. St. Rep. 600 , and State v. Howard, 30 Mont. 518 , 77 Pac. 50 , and in other cases. The particular -statute involved is R. C. M. 1947, see. 94-7119.

It is clear that though the prospective juror Johannson may have had an opinion at the time of the former trial, he testified on voir dire that his mind was open and under the statute, the juror was clearly competent. See State v. Juhrey, 61 Mont. 413 , 202 Pac. 762 .

Counsel for the defendant has assigned a great many other errors in his brief, some of which suggest serious questions. However, since they have not been discussed in the majority opinion no useful purpose would be served if I were to discuss them. I think that the points touched • upon in the majority opinion are insufficient to reverse the lower court in view of the authorities herein announced.