The court erred in refusing to grant a change of venue. (People v. Suesser, 132 Cal. 631, 64 P. 1095; State v.Hillman, 42 Wash. 615, 85 P. 63; State v. Dwyer, 29 Nev. 421,91 P. 305; State v. Nash, 7 Iowa, 347; People v.Pfanschmidt, 262 Ill. 411, 104 N.E. 804, Ann. Cas. 1915A, 1171;Jabich v. People, 58 Colo. 175, 143 P. 1092; Johnson v.Commonwealth, 32 Ky. Law Rep. 1117, 107 S.W. 768; People v.Hyde, 133 N.Y. Supp. 306; State v. Spotted Hawk, 22 Mont. 33,55 P. 1026.)
The lower court erred in admitting the alleged confession of the defendant. It was made with the promise to save his neck or the use of words that certainly imply the defendant was saving his life, getting off easier, by confessing. It was made under the influence and promise of hope to better his condition, or of fear. (Territory v. McClin, 1 Mont. 394; Territory v.Underwood, 8 Mont. 131, 19 P. 398; Bram v. United States,168 U.S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568; State v. Guie,56 Mont. 485, 186 P. 329; West v. United States,20 App. D.C. 347; Hardin v. State, 66 Ark. 53, 48 S.W. 904; Daniels v. State, 57 Fla. 1, 48 So. 747; Commonwealth v. Cullen,111 Mass. 435; People v. Siemson, 153 Cal. 387, 95 P. 863; 16 C.J. 717-724, and citations.)
(a) Misconduct of jury: The juror Marcus Johnson was not qualified to sit as a juror under the rules of the statute *Page 576 for the reason that his name did not appear on the last tax rolls of Teton county. This disqualification is admitted to be the fact. But the court denied it under authority of State v.Danner, 70 Mont. 517, 226 P. 475. This juror qualified as a trial juror. He and the balance of the panel were sworn and answered that they had the statutory qualifications. He misled the court and the defendant. 16 C.J. 1160, section 2668, states the law as follows: "But where on his voir dire a juror qualifies himself within the statute and thus misleads the court and counsel, a new trial will be granted." (See, also, People v. Reece, 3 Utah, 72, 2 P. 61; Hill v. People, 16 Mich. 351; Quinn v. Halbert, 52 Vt. 355; Lamphier v. State,70 Ind. 317; Boren v. State, 23 Tex.Crim. App. 28, 4 S.W. 463.)
(b) The juror Edward R. McLean was guilty of the grossest misconduct, we believe. He had prejudged, convicted and in the most emphatic and apt Old Testament terms consigned defendant's "worthless carcass" to "rot." The misconduct of this juror is so palpable, obvious and clear as to call for but a few citations of authorities. In no case that we can find has a new trial been denied on such a showing of facts.
Where a juror has formed or expressed an opinion to the effect that the defendant is guilty, previous to the trial, and to a greater extent where he conceals that opinion and the expression of it on his voir dire examination, and the defendant had no knowledge of it before the trial, a new trial should be granted. (Territory v. Chartz, 4 Ariz. 4, 32 P. 166; People v.Plummer, 9 Cal. 298; People v. Galloway, 202 Cal. 81,259 P. 332; Fitzgerald v. People, 1 Colo. 56; United States v. Upham, 2 Mont. 170; Ellis v. Territory, 13 Okla. Crim. 633,76 P. 159; Mask v. State, 5 Okla. Crim. 191, 113 P. 995; Id., 5 Okla. Crim. 677, 114 P. 1131; State v. Morgan,23 Utah, 212, 64 P. 356; State v. Mickle, 25 Utah, 179, 70 P. 856;State v. Swafford, 88 Wash. 659, 153 P. 1056; 16 C.J. 1152, sec. 2649, and p. 1150, sec. 2665, and citations. The trial court properly exercised its discretion in denying the motion for change of venue. (See People v. Mabrier,33 Cal. App. 598, 165 P. 1044; Gentry v. State,11 Okla. Crim. 355, 146 P. 719; Johnson v. State, 35 Okla. Crim. 212,249 P. 971; State v. Whitfield, 129 Wash. 134, 224 P. 559;State v. Hoagland, 39 Idaho, 405, 228 P. 314; People v.Yeager, 194 Cal. 452, 229 P. 40.) The two Montana murder cases, State v. Davis, 60 Mont. 426, 199 P. 421, andState v. Bess, 60 Mont. 558, 199 P. 426, dispose of all the contentions made by appellant.
Admissibility of confession: The law in relation to confessions in the state of Montana was reviewed at length and definitely fixed in the case of State v. Dixson, 80 Mont. 181,260 P. 138. By the decision in that case four principles appear to be fixed as follows: 1. That the admissibility of a confession is discretionary with the trial judge whose decision will not be reversed in the absence of a clear abuse thereof; 2. One test as to the admissibility of a confession is based on the question of whether or not there is any risk of a false confession; 3. That the admissibility may be affected by the corroborating testimony; 4. That the advice by an officer to a defendant that he would get out better if he told the truth is not such an unfair inducement as to invalidate the confession. Neither a threat nor promise was made to the defendant in the case.
Defendant claims the juror, Marcus Johnson, was not qualified. "If defendant does not avail himself of examining into qualifications of prospective jurors before the jury is sworn he may not assign a juror's incompetency as ground for a new trial, even though his knowledge of the incompetency comes to him for the first time after trial." (State v. Danner, 70 Mont. 517,226 P. 475.) This is exactly the situation which applies in connection with juror Johnson. *Page 578
It is claimed that a new trial should be granted for the reason that the juror McLean falsely testified on the voir dire examination, when he stated that he had not formed or expressed an opinion as to the guilt or innocence of the defendant. We respectfully submit that the statements as published are not statements that the defendant has formed or expressed as to the guilt of any particular defendant. "Prior expressions of opinion adverse to defendant are not alone sufficient to establish such bias as requires a new trial." (16 C.J. 1155.) The statute (sec. 11962, Revised Codes 1921) and the case of State v. Mott,29 Mont. 292, 74 P. 728, clearly show that any information of the juror based upon reading or gossip would not disqualify him as a juror. He fairly testified on the voir dire and on the motion for a new trial that he had no prejudice against the defendant at the time of the trial, and we must conclude that the trial court held these statements to be true. (See, also, State v. Byrne,60 Mont. 317, 199 P. 262; State v. Juhrey, 61 Mont. 413,202 P. 762; State v. Vettere, 76 Mont. 574, 248 P. 179;State v. Olsen, 88 Kan. 136, 127 P. 625; Keffer v.State, 12 Wyo. 49, 73 P. 556; State v. Russell, 73 Mont. 240,235 P. 712; State v. Anderson, 14 Mont. 541,37 P. 1.) Defendant was charged with the murder of George Burrell in Teton county on September 20, 1932. He was convicted of murder of the first degree and sentenced to be hanged. He has appealed from the judgment and from an order denying him a new trial. His counsel predicates error in overruling his motion for change of place of trial based upon local prejudice. Defendant's motion was supported by the affidavit of his counsel, stating in effect that defendant is without friends or relatives in Teton county; that George Burrell was a cripple, exciting the sympathy and pity of acquaintances; that Burrell was widely known and highly respected; that affiant has interviewed many people in and near Teton county, and *Page 579 that they reported to him that the people were excited and wrought up concerning the crime and were up in arms against the defendant; that they were demanding the extreme penalty, and that some stated there was not a chance for him to get a fair and impartial trial; that, in order to avoid mob violence, defendant was removed from the Teton county jail to the jail of Cascade county.
Several newspaper articles were attached to the affidavit which gave the revolting details of the murder, and in some of them suggestion was made that the crime demanded the death penalty. In others an account was given of a confession made by the defendant to undersheriff J.L. Billings. In at least one of them reference was made to a finger-print expert obtaining evidence against the defendant.
It would serve no useful purpose to set forth in detail matters referred to in the newspaper publications; suffice it to say that in one of the articles, chiefly relied upon, appeared the following: "It was deliberate murder and while we naturally loath to sit in judgment of our fellow men, yet the sentiment here is one of hope that the maximum penalty prescribed by law will be accorded. It is not a time for technicalities and hair-splitting distinctions, though, of course, the accused should be given a fair trial. Mr. Burrell was so well known, esteemed, and in a sense pitied, that it is but natural that sentiment here should be very strong against the murderer. But it is necessary in the interest of all society that legal procedure hold sway, and there is every evidence that justice will prevail."
In one newspaper article the suggestion was also made that "a hemp-stretching party will be in order."
In opposition to the motion, the state filed thirteen affidavits, some of which were by candidates for public office who had talked with people in all parts of the county, and they all stated that, while there had been some feeling against the defendant shortly after the crime, the feeling had subsided, and that they were unable to find any prejudice or bias on the part of the people which would prevent the securing of a fair and impartial jury. *Page 580
The record discloses that thirty-four jurors were examined; one was excused for sickness; one because he was not a taxpayer; one because he was a witness; and one for having conscientious scruples against the death penalty. Only four were excluded for having formed an opinion concerning the merits of the case; the others, not serving, were excused on peremptory challenges.
An application for change of place of trial in a criminal case[1, 2] is addressed to the sound discretion of the trial court, and, unless there has been shown a clear abuse of discretion, its ruling will not be disturbed. (State v.Davis, 60 Mont. 426, 199 P. 421.) And the fact that but few talesmen were examined in order to secure a jury goes a long way in overcoming the charge that the court abused its discretion by refusing to change the place of trial. (State v. Bess,60 Mont. 558, 199 P. 426.) On the record we are not able to say that the court abused its discretion in refusing to change the place of trial. (Compare People v. Yeager, 194 Cal. 452,229 P. 40; State v. Hoagland, 39 Idaho, 405, 228 P. 314;State v. Whitfield, 129 Wash. 134, 224 P. 559; Gentry v.State, 11 Okla. Crim. 355, 146 P. 719; Johnson v. State,35 Okla. Crim. 212, 249 P. 971; People v. Mabrier, 33 Cal. App. 598,165 P. 1044.)
The next contention is that the court erred in admitting in[3] evidence the confession made by the defendant. In general, the confession was to the effect that defendant, at about 11:35 on the night of September 20, took a piece of two-inch galvanized pipe about two feet long, and an insulated telephone wire from a barber-shop near the place of business of the deceased, went into Burrell's place of business, and, while Burrell was fixing a calendar on the wall, he struck him on the back of the neck with the pipe. He then turned out the lights and dragged Burrell back of a screen which stood at the end of the counter. He then took the money from the cash register, went behind the screen, found Burrell groaning, and tied the wire around his neck. He returned the pipe to the *Page 581 barber-shop. Later he went to his room, placed the money in a sock, and hid it under the bathtub.
The record, with respect to the manner of obtaining the confession, shows that defendant was held in jail in the town of Choteau from September 21 until nearly noon on September 24, during which time he denied any knowledge of the crime. On the night of September 23, arrangements were made to have the defendant taken to the jail at Great Falls for questioning. While the defendant was held in the jail at Choteau, a sock containing money was found in the hotel in which defendant roomed at Choteau. This was found concealed under the bathtub. Billings, the deputy sheriff, pursuant to the arrangements made to take the defendant from the jail at Choteau to the jail at Great Falls in company with his wife, left Choteau with the defendant, and, when about twenty-two miles from Great Falls, the deputy sheriff told him there were two things he wanted to know, namely, where he got the sock, and where he got the wire. The defendant then asked Billings if the inquest had been held, and Billings told him the deceased had been buried the day before. The defendant then told Billings he would tell him when they were alone. Upon arriving in Great Falls, and after the defendant was placed in jail at that place, he related to Billings in detail his connection with the crime. About two hours later he repeated in detail the same story to Mr. Packer, county attorney of Teton county, in the presence of Billings, Art Jardine, deputy county attorney of Cascade county, and a stenographer.
It was shown that, before the defendant made the statements to Billings, Billings had said to him, "I have saved your neck," and also stated to the defendant, after he promised to tell when alone, that "it would not hurt him any." But, when the statement was repeated by defendant in the presence of Mr. Packer, Art Jardine and the stenographer, the defendant was specifically advised that any statement he made might be used against him in a criminal trial, and he was advised that he did not have to make any statement if he did not want to. There were no threats made, nor was there any promise or *Page 582 hope of reward held out to him. The statement was reduced to narrative form, and three or four days later Mr. Jardine presented it to the defendant and told him he would like to have him sign it, but that he did not have to if he did not want to. Defendant stated to Mr. Jardine that the statements in his confession were true, but that he did not wish to sign it. Later Dr. McGregor presented the same written confession to him in the presence of two other witnesses. He read it for twenty or thirty minutes and then signed it. The confession itself reads: "I make this statement free and voluntarily without any threats being made against me nor any promises of any kind made to me, and knowing full well that this statement can be used against me. I committed the offense because I was hungry and broke. I had not eaten for two days and I was desperate and hungry. When I tied the wire around Burrell's neck, I hardly knew what I was doing, and I was desperate and crazy."
The confession was admissible under the rules announced by this court in State v. Dixson, 80 Mont. 181, 260 P. 138, and the cases therein cited, and a further discussion of the law applicable is unnecessary here.
Error is assigned in denying the motion for new trial. It is[4] claimed that the juror Marcus Johnson was not qualified to sit as a juror, for the reason that his name did not appear upon the last tax roll of Teton county. This fact is made to appear by affidavit produced after the trial. The court properly held that this was not a ground for a new trial, in view of the holding in the case of State v. Danner, 70 Mont. 517, 226 P. 475, 476, wherein it was said: "If a defendant does not avail himself of the privilege of examining into the qualifications of prospective jurors before the jury is sworn, he may not assign a juror's incompetency as ground for a new trial, even though his knowledge of the incompetency comes to him for the first time after the trial."
Finally it is contended that a new trial should be had because of the misconduct of juror McLean. On this point the court *Page 583 is divided as will appear from the subjoined opinions, but the majority hold that the contention is without merit.