I dissent. I think the judgment should be reversed and the cause remanded for a new trial, but not for the reasons given by the majority. It is revolting in the extreme to contemplate the drunken acts and conduct of the defendant at his saloon the evening of July 25th and early morning of July 26th, but the evidence does not disclose any malicious intent to take human life, and for that reason I think the motion of the defendant to "remove from the consideration of the jury murder in the second degree" should have been granted, and the defendant tried for manslaughter.
I further do not agree with the majority as to the line of reasoning on the question of the "Privilege against self-crimination." Article III, section 18 of the Constitution of Montana provides: "No person shall be compelled to testify against himself, in a criminal proceeding."
In 8 Wigmore on Evidence, 3rd Ed., beginning on page 321, a clause is quoted from the Constitution of the United States similar to that quoted from the Montana Constitution above, and likewise in the same note Mr. Wigmore gives an excerpt from the Constitutions of forty-six of the forty-eight states, and from the Philippine Islands, and without exception the wordcompelled is used. The majority opinion leans toward the view that one accused of crime should not be permitted to testify, while the rule is that he may testify if he desires but may notbe compelled to do so. Nearly all the cases cited by the majority relative to the question, in mentioning the rule, use the word compelled. The evidence in the case at bar does not show that the defendant was compelled to testify either at the inquest or the trial, and in the new trial if any attempt to set up compulsion in the former proceedings is made by the defense, I think it would result in error if allowed. The defendant at the trial testified that he was told by the county attorney to take the witness stand at the inquest; the county attorney testified that the defendant volunteered as a witness, saying he wanted to tell what he knew "about this thing." The circumstances *Page 368 support the county attorney. The record shows that the defendant manifested a strong desire at the inquest and at all times after the dead man was found on his doorstep and up to the time of the inquest to talk to any one who would listen.
As to the case of State v. O'Brien, 18 Mont. 1,43 P. 1091, 1093, 44 P. 399, being an authority on the point of alleged error by the trial court in allowing the testimony of the defendant at the inquest to be read to the jury at the trial, theO'Brien Case was not reversed on any such ground. In ordering a new trial in that case Mr. Justice Hunt, in speaking for the court, said the trial court ought not to have permitted the testimony given by the defendant to be introduced at the trial and as the reason for his statement said: "It plainly appears that the defendant was called before the coroner by that official immediately after the homicide, and testified without any knowledge of his lawful rights, without counsel, and under a belief that he had to answer the questions put to him." In other words, Justice Hunt believed O'Brien was compelled to testify. In the new trial in the case at bar, it should be an easy matter to obtain the testimony of others than the county attorney who were present at the inquest and who can give testimony as to whether the defendant was ordered or volunteered to testify at the inquest. I do not think one is justified in assuming that the court intended to say in the O'Brien Case that a judgment of conviction should be reversed in a case wherein the testimony of the defendant at the inquest was given to the jury at the trial unless such testimony was obtained by compulsion.
Rehearing denied November 25, 1944.