#### STATE, Respondent, *v.*HARDEE, Appellant.

(No. 1,879.)

(Submitted April 3, 1903.

Decided April 11, 1903.)

*Homicide*— *Evidence*— *Proof of Venue*— Homicidal *Mono'mania*— New *Trial*— Newly *Discovered Evidence*— Gumular *Uve Evidence.*

1. In a prosecution ior murder, evidence considered, and *held*to show that ' ■ the crime was committed in the county alleged in the indictment.

2. In a prosecution for murder, evidence considered, and *held*to show too much deliberation to be the result of any sudden impuise, and'to be incompatible with the theory that the defendant was afflicted with homicidal monomania.

3. Where, in a prosecution for murder, the insanity of defendant was placed in issue, in support of which defendant called witnesses who testified, and the facts to be proved by newly discovered evidence were merely cumulative on that issue, and were not such as to make it clearly probable that a different result would. follow another trial, nor was it shown that they could not have been produced on the former trial by the evercise of reasonable diligence, a new trial was properly refused.

*19*Appeal from District Court, Valley County; John, W. Tat-tan, Judge.*

William EL Haejoee was convicted of murder. From a judgment sentencing bim to death, and from an order denying him a new trial, he appeals.

Affirmed.

*Mr. George E. Hurd,*and *Messrs. Nolan & Loeb,*for Appellant.

If there is any evidence to establish the venue .and the question arises as to its sufficiency, it cannot be considered upon an appeal from the judgment, but where there is no evidence its absence becomes a question of law and is reviewable upon such an appeal. (Penal Code, Section 2321; *Emerson*v. *Eldorado Ditch Co.;*18 Mont. 247; *Withers*v. *Kemper,*25 Mont 432.)

In criminal prosecutions the venue is a jurisdictional fact and must be proved. *(Brooks*v. *State,*120 Ala. 386; *Forehand*v. *State,*53 Ark. 46; *Moore*v. *People,*150 Ill. 405; *Harlan*v. *State,*134 Ind. 339; *State*v. *Young,*99 Mo. 284; *Early*v. *Com.,*93 Va. 765.)

The proof of venue must affirmatively appear from the record on appeal. *(Hite*v. *State,*9 Yerger, 357; *Terry*v. *State,*22 Tex. App. 679.)

When a bill of exceptions purports to set out all the evidence and the venue is not established, judgment will be reversed. *(People*v. *Griffith,*122 Cal. 212; *Cathom*v. *State,*63 Ala. 157; *Harrison*v. *State,*3 Tex. App’. 558.)

• The affidavits as to newly discovered evidence are uncontra-dieted. Under the peculiar conditions of this case the affidavits disclose a meritorious.case where the application for a new trial upon this ground should be favorably considered. (Thompson on Trials, Sec. 2762; *State*v. *Brooks,*23 Mont. 146; *Anderson*v. *State,*43 Conn. 514; *Dennis*v. *State,*103 Ind. 142.

*Mr. James Donovan, Attorney General,*for the State.

A new trial will not be granted on the grounds of newly dis*20covered evidence unless sucb evidence is material and would be likely to .change the result, if the motion were allowed. *(Territory*v. *Bryson,*9 Mont.. 42, 22 Pac. 147; *People*v. *De-masters,*109 Cal. 608; *Shafer*v. *fWillis,*124 Cal. 36; *People*v. *Warren,*130 Cal. 683; *Danis*v. *State,*51 Neb. 360; *Lin-scoit*v. *Insurance Go.,*88 Me. 497; *Smith v. State,*143 Ind. 685.)

If the new evidence is cumulative, a new trial will not be granted. *(Morse*v. *Swan,*2 Mont. 307; *People*v. *Kloss,*115 Cal. 567; 1 Bish. New Criminal Procedure^ Sec. 1279; *Nor-follc*v. *tTohnaTcin,*94 Va. 285; *Sisler*v. *Shaffer,*43 W. Va. 769; *Condan*v. *Mead,*172 Ill. 13; *AlTbright*v. *Hanna,*103 la. 98; *People*v. *Brittan,*118 Cal. 469; *Kuhlman*v. *Burns,*117 Cal. 409; *Niosi*v. *Umpire Steam Laundry,*117 Cal. 257.)

A person seeking a new trial on the ground of newly discovered evidence must show that he could not have discovered the evidence and produced it on the trial by any reasonable diligence on his part. Strict proof must be made on this point, and facts, not conclusions, stated in the moving affidavits from which the court may draw the conclusion that due diligence was used. *(Bradley*v. *Norris,*67 Minn. 48; *Lnleens*v. *Garret,*2 Kans. App. 722; *Butter*v. *Vassault,*40 Cal. 74; *People*v. *Ghing LLing Chang,*74 Cal. 389; *People*v. *Urquidas',*96 Cal. 239.)

The moving party must show hy his own affidavit that the new evidence was not known to him at the time.of the trial. Upon that question the affidavits of other persons. are not sufficient. *(Arnold*v. *Shaggs,*35 Cal. 684.)

An application.for a new trial on the ground of newly discovered evidence should be regarded with distrust and disfavor. *(People*v. *Howard,*74 Cal. 547; *People*v. *Sutton,*73 Cal. 243; *Tibet*v. *Tom Sue,*125 Cal. 544.)

And a party who relies upon that ground must make a strong case, both in respect to diligence on his part in preparing for the trial, and as to the truth and materiality of the newly discovered evidence, and that, too, by the best evidence *21obtainable, and if be fails in either respect bis motion must be denied. *{People*v. *Freeman,*92 Cal. 359.)

Tbe granting of a new trial on tbis ground is lai'gely a matter of discretion, tbe exercise of wbicb will not be disturbed by tbe appellate court except in tbe case of an abuse clearly disclosed by tbe record. *(O’Rourke.r. Vennekobl,*104 Oal. 254; *Hemtz*v. *Cooper,*104 Cal. 668; *People*v. *Pushing,*130 Cal. 449; *People*v. *Mitchell,*129 Cal. 584.)

ME. COMMISSIONER POORMAN

prepared tbe opinion for tbe court.

On tbe 26tb day of September, 1901, an information was filed against tbe defendant in Valley county, charging him with tbe crime of murder in the first degree* for killing Charles Snearly in that county.

Tbe defendant was apprehended and arrested on or about tbe 11th day of September, and placed in jail at the county seat of said county on or about tbe 12th day of tbe same month, where be remained continuously until tbe time of bis trial. On November 27, 1901, counsel for tbe defense called tbe attention of tbe trial court to tbe fact that tbe defendant was, in bis judgment, mentally incompetent to furnish bis counsel with any of tbe facts necessary in tbe preparation of bis defense. Tbe court thereupon made an order requesting that Drs. Hoyt, Clay, Meminger, and Atkinson, four regularly licensed and practicing physicians in said county, examine tbe defendant as to bis sanity. This examination was made on tbe 28th day of November, and the physicians SQ' appointed reported ix> tbe court that they found the defendant physically broken down from the use of morphine and opium, but that be was at tbe time of said examination mentally sound. Tbe trial was then proceeded with, tbe defense being insanity; it being sought to be shown that tbe defendant’s mental derangement took the form, of homicidal monomania. A verdict of guilty of murder in the first degree was rendered. Judgment sentencing de*22fendant to death was entered. .The motion was then made for a new trial on the ground of newly discovered evidence, which motion was overruled. From this judgment, and from the order overruling the motion for 'a new trial, the defendant appeals.

Two assignments of error are contained in the record: First, that the record fails to show that the offense was committed in Valley county; second, that the court erred in refusing to grant a new trial on the ground of newly discovered evidence.

1. The record before us contains all the evidence in the cause. On the first assignment of error, we find these material facts established: Mrs. Ali.ce Smith, a witness- on behalf of the state, testifies: “I am the wife of T. P. Smith, called ‘Doc Smith.’ My residence is about eighteen or twenty miles north of Culbertson, in this county and state. I was at home at my house on the 9th of September of this year, and know the defendant, William El Hardee. I know Charles. Snearly.” The witness then proceeds to relate the circumstances of the killing, which occurred there on the evening, of that day. She further says that she started to Culbertson that evening with the men who were taking the deceased in, and continued with them1 until she met her husband, when she came back home with him. Fred Wagar, another witness on the part of the state, testifies: “My home is in North D'akota. The early part of last September I was in the state of Montana, on Doe Smith’s ranch, near Culbertson, in this county.” The witness then proceeds to detail the circumstances of - the killing as it occurred there at Smith’s place on the 9th day of September. J. P. Smith testifies: “My name is J. P. Smith. I live fifteen miles from Culbertson. Mrs. Smith, a witness in this case, is my wife. . I live north of Culbertson, in Valley county, state of Montana. On or about the 9th of September of this year I was at Culbertson. I went home that night or the next morning. On the way home I met the wagon bringing Snearly into town. I went on home, and my wife did also. * * * When I got home that night I don’t think I went into- that west *23bedroom. I think I went in first next morning. I think Mr. Ford was with me. There was a whole lot of blood in there.” The defendant also testifies, after repeatedly stating that he was at Doc Smith’s ranch: “I had trouble with Snearly. I killed him. I do not know when I killed him. I killed him because he jumped onto'-me, I guess, at Doe’s.” This testimony clearly establishes the fact that this homicide was committed at the ranch of J. P. Smith, in Valley county, Montana.

2. The defendant’s contention that he is entitled to a new trial on the ground of newly discovered evidence, establishing the. fact that he was insane at the'time of the commission of this offense, calls for a brief review of the actions of the defendant at the time of, and subsequent to', the killing. It appears from the testimony: that the defendant and the deceased came to' the ranch of Mr. Smith some time in August, 1901, and, after remaining there several days, went away. They returned there on the morning of the 9th of September. The defendant’s first inquiry of Mrs. Smith was whether the deceased had said anything to her about their trip. The defendant then told Mrs. Smith that they had been out after some horses, and were driving them to market; that they had been without food for some time; that he had shot a chicken; and that the boy (referring to the deceased, who- was about 1Y years of age) was pretty hungry, and insisted upon stopping to cook the chicken; that the defendant insisted upon continuing their drive of the horses until 12 o’clock, but that, at the instance of Snearly, they stopped and cooked the chicken, and while they were doing it the horses got away from them. This made the defendant very angry, and he threatened to kill Snearly, and stated that he did not kill him at that time because the boy begged so hard, and he thought he would wait until he got where he could have a decent burial. That in the afternoon of September 9th the defendant, the deceased, and one Jackson went hunting, returning to Mr. Smith’s place in the evening. That the deceased then busied himself with cleaning and oiling a revolver, and, after he had finished, rubbed his oily hands *24through tbe hair of tbe defendant. ¶ Tbis did not appear to anger tbe defendant at tbe time, and soon after tbe defendant, who was sitting down, got np, took tbe revolver from where tbe deceased bad laid it, carried it out into tbe kitchen, and laid it down. Tbe revolver was unloaded. The deceased and defendant then went into tbe bedroom, where they apparently had some disagreement. Tbe defendant soon come out in a hurried manner, rushed into the kitchen, picked up< tbe pistol, and, on bis way back to tbe bedroom, picked up a double-barreled shotgun. Passing into tbe room where tbe deceased was standing, be threw the pistol on tbe floor at tbe feet of. tbe deceased, and said, “Pick it up, if you have any nerve,” and almost immediately fired one barrel of tbe shotgun at tbe der ceased, inflicting tbe wound from which deceased died on Sep^ tember 11, 1901. Defendant remained there for some little time, and every few minutes would ask tbe deceased if be wanted tbe other barrel, and said to tbe deceased, “I promised tbis to you.” Tbe deceased replied, “Tes; but I did not think you would do it,” when defendant said, “You ought to know that I am a man of my word. You found out that I was.” A little later, when those present proposed taking tbe wounded man to Culbertson, tbe defendant objected, and said, “You bad better not take him until tbe coroner comes,” but afterwards gave his consent. Snearly repeatedly called for morphine, and •defendant finally gave him some that be bad with him; and afterwards, when Snearly asked for more morphine, be gave a spoonful of it to Mrs. Smith, told her to give it to Snearly, and said, “That will fix him, sure.” Defendant tiren ordered tbe men who were present to saddle up tbe best horse Doc (meaning Smith) bad, which defendant then mounted and rode away, following tbe wagon in which they were conveying Snearly for some distance. Prior to leaving tbe Smith residence be asked one of tbe men if Snearly was shot bad, and on being informed that be was, and that be could not live, defendant said: “That is good enough for me. If I thought be was not killed, I would shoot him again.” After Snearly had been *25placed in the wagon, be asked to liave bis boots removed. Tbe defendant then remarked: “That is good enough for me. He is gufr-shot, and will die before we get him to town.” The next night after the killing, defendant, while at the house of Mr. Olson, heard Mr. MacDonald, who had just come from. Culbertson, remark that the boy (meaning the deceased) was dead, or not expected to live. Defendant immediately asked: “Did the boy say anything; — tell anything?” On being informed that he had not, he expressed his satisfaction, and said he hoped that he would live. Defendant was taken to jail, and, being addicted to the use of opium, was placed under the care of the county physician. Since the defendant has been in jail he has frequently talked to the sheriff about the killing of Snearly, and expressed himself as being very sorry, and about “feeling very badly” on account of-it. On the trial of the case1, the defendant, in speaking of deceased, says: “I have seen him down there lots of times in the jail. He has been there lots of times, and I have seen him once in a while. I saw him two or three days ago, and last night he just came there and looked in and went away. I told him to get away.” Further •on the defendant, in testifying, says: “Since I have been in jail I have thought about this Snearly matter a great deal. I dream about it every night. I see Snearly in my dreams. He won’t talk to me. I talk to him, sometimes.”

The circumstances and facts attending this homicide show too much deliberation to' be the result of any sudden impulse, "but appear, rather, to be the result of anger occasioned by the deceased causing the defendant to lose the horses, and a fear on the part of defendant that the deceased might make some remark relative to some past transaction. This is evident from the solicitude of the defendant as to whether or not the deceased had “said anything — told anything.” The fact that the defendant has evidently been brooding over this affair, and has •expressed himself as very sorry that he had killed Snearly, is ■not compatible with the theory that the defendant was at the time of the killing afflicted with homicidal monomania. The *26testimony of the physicians on this point is to the effect that if-a man is a homicidal monomaniac, and in that condition hills.another, he would not afterwards be sorry or grieve over his act. It is further in evidence that Dr. Hoyt saw and examined' the defendant within .three or four days after the commission of the homicide, and that the defendant has been in his care at all times since; that he has never been able to. détect any signs of insanity about defendant. Defendant was. further-examined by four physicians the day prior to< his trialj who-reported that he was at that time mentally sound. It is further-stated in the testimony of the physicians that, if defendant had been the victim of mania or of insanity in any of its forms, it would not have, passed away in the interval between the killing and the time when he was placed under the care, of Dr. Hoyt. Sheriff Griffith also .testified that during the time that the defendant has been in his care he has detected no. signs, of insanity, that the defendant has been at all times able, to converse upon matters, and that it was only when placed upon the-witness stand to give testimony- in this ease that his memory-failed him. Mr. and Mrs. J. P. Smith also testified that they knew the defendant — had known him for some time prior to the homicide; that he had frequently been about, their home; that they had never thought him insane, nor detected signs of' insanity about him. One of the physicians testified that at the-examination on the 28th of November the defendant appeared to be afflicted with melancholia, which fact is. also a refutation of the homicidal maniac theory, for it is a part of the evidence-of the physicians that melancholia is. a. milder form of insanity, and that a person afflicted with homicidal monomania would not afterwards pass into a condition of melancholy.

The facts which defendant wishes to- prove by his newly discovered evidence are cumulative, tending to prove the allegations of mental incapacity, which became- an issue on the trial, and in support of which defendant called witnesses who- testified, and are not such as to make it clearly probable that a different result would follow another trial; nor does it appear-*27that the testimony could not have been produced upon the former trial by the exercise of reasonable; diligence, for the testimony produced upon the former trial shows that the defendant was mentally capable at all times from the day when he shot Charles Snearly until the time of his trial of giving his counsel all the required information necessary in the preparation of his defense. *(Territory*v. *Bryson,*9 Mont. 32, 22 Pac. 147; *State*v. Brooks, 23 Mont. 146, 57 Pac. 1038.)

It appears from the record that the defendant had a fair and impartial trial, that he was ably defended, and that the court did not in any manner abuse its discretion in overruling the motion for a new trial.

We therefore recommend that the judgment and order appealed from be affirmed.

Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.

Mr. Justice MilburN did not hear the argument in this case, and therefore takes no part in this decision.