can be no question that he was engaged in "aiding and abetting in reporting, recording and registering a bet or wager upon the re-(Supreme Court of Montana. Nov. 29, 1909.) sult of a contest of speed of horses, held without the state of Montana," by communicating information for the purpose of having the wager made.

BRANTLY, C. J., and HOLLOWAY, J., J. Galen, Atty. Gen., and E. M. Hall, Asst.

BRANTLY, C. J. The defendant was | show, by the testimony of several other witcharged with burglary, committed by enter- nesses, that during the time within which ing a suite of rooms occupied as a residence the entry into the Curtis rooms must have by Charles D. Curtis and Mae L. Curtis, at No. been effected he was at Ft. Harrison, sev1171⁄2 Broadway, in the city of Helena, with eral miles from the city, where he was temthe intent to commit grand larceny therein. porarily stationed as an unassigned recruit Upon a trial he was found guilty of burglary to the United States army, engaged in the in the second degree and sentenced to serve performance of duties assigned to him for a term in the state prison. This appeal is the day, as room orderly and kitchen police. from the judgment. We think the evidence was sufficient to go The integrity of the judgment is assailed to the jury, and to justify the finding that upon the ground that the verdict is contrary the defendant is guilty as charged. If the to the evidence. From the record we gather testimony of the state's witnesses was to be the following facts: Charles D. Curtis and credited, the defendant, about two hours Mae L. Curtis, father and daughter, upon after Miss Curtis left the ring in her room, December 4, 1908, were occupying a suite of had it in his possession, pledged it for a rooms in a flat at No. 1171⁄2 on Broadway, in loan, signing a fictitious name, and thereaftthe city of Helena. About 3 o'clock in the er denied all knowledge of the transaction. afternoon, the daughter left the rooms to It has been held by this court, following the make calls. The father was not at home. rule recognized by the courts generally, that She locked the door leading into the suite, mere possession of property recently stolen and hung the key near the door in the hall- is not sufficient to convict the possessor of a way, but in such a position that it could not larceny of it. Territory v. Doyle, 7 Mont. be seen from toward the front. This was 250, 14 Pac. 671; State v. Sullivan, 9 Mont. her custom when leaving the rooms. She 174, 22 Pac. 1088; State v. Wells, 33 Mont. left upon the dresser in her bedroom three 291, 83 Pac. 476. When, however, this fact gold rings, among them one set with dia- is supplemented by other facts inconsistent monds and sapphires. On returning about 5 with the idea that the possession is honest, o'clock, she found the key in place as she such as the giving of a false or improbable had left it; but the door was open. Her explanation of it, or a failure to explain, father had not returned in the meantime. when a larceny of the property is charged, Later in the evening she discovered that all or the possession of a forged bill of sale, or the rings were missing, while the furniture the giving of a fictitious name, or the like, in the bedroom showed some evidence of a case is made sufficient to submit to the having been disturbed. She at once notified jury. Territory v. Doyle, State v. Sullivan, the police of her loss. In the meantime, State v. Wells, supra. The rule as to the about 5:20 o'clock, a stranger entered the materiality of such evidence is well stated jewelry store of Jacob Yund, on Main street, by the Supreme Court of Maine, in State v. and secured a loan of $20 upon a ring set Bartlett, 55 Me. 200, as follows: "If a perwith diamonds and sapphires, signing the son accused remains silent when he may name G. B. Harmon, Jr., to the contract. speak, he does so from choice, and the choice Inquiry instituted by the police upon in- he makes upon such occasions has always formation of her loss by Miss Curtis led to been regarded competent evidence. It is the discovery of the transaction at Yund's the act of the party. From time immemostore. The ring left with him was identified rial the reply or the silence of the accused by Miss Curtis and surrendered to her. On person, when charged, has been regarded as December 5th the defendant, being recog- legitimate evidence on his trial for the connized on the street, by Yund, as the person sideration of the jury. Any act of his, when who had obtained the loan, and pointed out charged, tending to sustain the charge, may to the chief of police, was arrested. Having be proved. Fleeing from arrest, giving conascertained the cause of his arrest, he denied tradictory, untrue, or improbable accounts that he had ever been in Yund's store, or of the matters in issue, and refusals to acthat he had ever gone under the name of count for the possession of stolen property, Harmon, or that he had ever seen or had any are evidences of guilt admitted upon the knowledge of the ring. He had no pawn trial of the persons accused. These are ticket upon his person, though one had been proofs derived from the prisoner's acts, sayissued by Yund at the time the loan was ings, and silence." made; nor were the other rings found. At So, where the charge is burglary, if propthe trial the ring was positively identified, erty taken from the owner is soon thereaftby Miss Curtis and her father, as was also er found in possession of the person charged the defendant, by Yund and a workman em- with the felonious entry, proof of this fact, ployed by him. The time at which the loan together with circumstances showing guilty was made was also definitely fixed by the conduct, is presumptive evidence, not only latter two witnesses by the fact that it was of the larceny, but also that he made use of near closing time, and the workman was the means by which the property was acwatching for a car which he usually took to quired. People v. Lang, 142 Cal. 482, 76 Pac. reach his home. The defendant did not of- 232; Holland v. State, 112 Ga. 540, 37 S. 5.

declaring him guilty of an attempt is to be senassault, but under section 8895, for an attempt tenced, not under Rev. Codes, § 8313, as for an to commit a crime.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3291-3294; Dec. Dig. § 1208.*]

2. CRIMINAL LAW (§ 1208*)-PUNISHMENT

ATTEMPTS.

State, 39 Tex. Cr. App. 452, 46 S. W. 932, 73 | to commit the felony, defendant under a verdict Am. St. Rep. 950; Anderson v. Commonwealth, 18 Ky. Law Rep. 99, 35 S. W. 542; People v. Joy, 135 Cal. xix, 66 Pac. 964; State v. Norris, 27 Wash. 453, 67 Pac. 983; Walker v. Commonwealth, 28 Grat. (Va.) 969; State v. Bryan, 19 Neb. 365, 11 Pac. 317; State v. Powell, 61 Kan. 81, 58 Pac. 968; 1 Wharton's Cr. Law (10th Ed.) § 813; 6 Cyc. 246. Burglary is one degree removed from larceny; but, when the facts proven warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the felonious entry, the evidence is sufficient to warrant the finding of the burglary also.

The jury evidently discredited the assumption of ignorance by the defendant as indicated by his denial, and accepted the theory of the Curtises as to the loss of the ring, and also the story of Yund and his workman as to the transaction at Yund's store. This being so, it was within their province to discredit, as they did, the evidence offered by the defendant to establish his alibi. The court properly instructed the jury that, in arriving at their conclusion as to the guilt or innocence of the defendant, they should draw no adverse inference from the fact that he did not offer himself as a witness. Rev. Codes, § 9484. The presumption is that this instruction was obeyed, and that the jury made their finding upon the evidence adduced. A prima facie case having been made out by the state, the finding thereon may not be disturbed, notwithstanding the evidence tending to establish the alibi.

The court instructed the jury, in substance, that the mere possession of the property by the defendant, without other incriminating circumstances, would not warrant a conviction. The contention is made

Under Rev. Codes, § 8895, providing that a person who attempts to commit a crime but fails is punishable, if the offense so attempted is for five years, or more, by imprisonment therein punishable by imprisonment in the state prison for a term not exceeding one-half the longest term of imprisonment prescribed on a conviction of the offense attempted; and section 8902, providing that when a crime is declared punishable in the state prison for a term not less than a certain number of years, and no maximum is to imprisonment for life, or for any number of declared, the court may sentence the offender years not less than that prescribed-one convicted of an attempt to commit the infamous crime against nature, the commission of which is punishable, under section 8359, by imprisonment in the state prison for not less than five years, may be sentenced to 15 years in the state prison. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1208.*]

3. COSTS (§ 284*) - PUNISHMENT - CRIMINAL LAW.

The payment of the costs of the prosecution may not be imposed as part of the penalty, in the absence from the Codes of any general provision on the subject, or any provision therefor in ticular offense. the section prescribing the penalty for the par

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 1082, 1085; Dec. Dig. § 284.*] 4. CRIMINAL LAW (§ 1184*)-APPEAL-MODIFYING JUDGMENT.

including costs as part of the penalty; but unA judgment is not void because of error in der Rev. Codes, § 9417, it may on appeal be modified by striking out such part.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. §

1184.*]

VIEW-INSTRUCTIONS-OBJECTION NOT MADE

5. CRIMINAL LAW (§ 1038*) - APPEAL — RE

BELOW.

Under Rev. Codes, § 9271, error in the instructions given, or omission to submit any special instruction, cannot be complained of on appeal; it not appearing that any objection was made to the instructions given, or to any action of the court in connection with the settlement thereof during the trial, or that any special instruction was requested.

that the verdict is contrary to the law thus
stated. The instructions, as a whole, par-
ticularly in the respect referred to, were
as favorable to the defendant as he could
ask. As we have pointed out, the question
of his guilt or innocence did not rest alone
upon his possession of the property furtively
taken from the Curtis rooms. Upon the
evidence the verdict might have been guilty
or not guilty, in view of the other circum-ty; C. H. Loud, Judge.
stances proven. It is therefore not contra-
ry to the law.

Accordingly, the judgment is affirmed.
Affirmed.

SMITH and HOLLOWAY, JJ., concur.

STATE v. STONE.

(Supreme Court of Montana. Dec. 2, 1909.) 1. CRIMINAL LAW (§ 1208*)-PUNISHMENT ATTEMPTS. An assault with intent to commit a felony being an offense distinct from that of attempt

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.*]

Appeal from District Court, Dawson Coun

George Stone was convicted of crime, and appeals from the judgment. Modified and affirmed.

C. C. Hurley, for appellant. Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

BRANTLY, C. J. Upon information charging him with the commission of the infamous crime against nature upon a male child of the age of 15 years, the defendant was found guilty of an attempt to commit the offense. By the judgment of the court, he

was sentenced to a term of 15 years in the | to commit a felony of any kind is a distinct state prison and adjudged to pay the costs offense from that of attempt to commit the of prosecution. He has appealed from the felony, as is pointed out in People v. Lee judgment. Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165. Under section 8313, to constitute an assault other than one which involves a technical battery without which the offense is not complete, there must be present both the element of attempt and the element of present ability to inflict the injury. The absence of either is fatal to the charge. The absence of the latter element, however, does not prevent a conviction for the attempt, for, under a charge of assault, the defendant may be convicted either of the assault or of the attempt, because the former includes all the elements of the latter. If the act done is with the requisite intent and tends to effect its purpose, the attempt is complete, no matter how the ac

The first contention made in his behalf is that there is no provision of law under which he could be sentenced for an attempt to commit the infamous crime against nature. The argument is: That the penalty for this offense, as declared by the statute, is imprisonment in the state prison for a term not less than five years; that the penalty for an attempt is imprisonment for a term not exceeding one-half the longest term prescribed for the offense so attempted; that there is no definite limit to the term which may be imposed for the infamous crime against nature; that the court had no basis upon which to determine the penalty in this case; and hence that it was authorized to impose no penalty other than the one pre-complishment was prevented; whereas, if by scribed for assault in the second degree.

reason of the existence of some obstruction the ability is not present to carry out the intent, the assault is not complete. This being so, it is clear that under a verdict declaring the defendant guilty of an attempt, as in the case here, he cannot properly be sentenced as for an assault.

We recur, then, to the question whether the sentence imposed upon the defendant can be sustained under the provisions of sections 8895 and 8902, supra. The penalty for

The defendant was sentenced under section 8895, Rev. Codes, which declares: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: (1) If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in the years, or more, or by imprisonment in the county jail, the person guilty of such attempt is punishable by imprisonment in the the infamous crime against nature cannot be state prison, or in the county jail, as the less than 5 years, and may extend during life. For an attempt to commit the crime case may be, for a term not exceeding onehalf the longest term of imprisonment pre- and may be extended during one-half of life. the penalty cannot be less than 22 years, scribed upon a conviction of the offense so Now, the period of a lifetime is indefinite attempted. ** ** The term for which one found guilty of the infamous crime and indeterminable. It is impossible thereagainst nature may be imprisoned is prescrib- fore for a court to ascertain the extent of ed by section 8359 of the Revised Codes, one-half of a lifetime. Every sentence, howwhich declares: "Every person who is ever, is indefinite and indeterminable, and guilty of the infamous crime against nature, therefore may be for life, in the sense that committed with mankind or with any animal, it may be ended by the death of the prisoner is punishable by imprisonment in the state before its expiration. While the court could prison not less than five years." Since the not definitely ascertain the extent of oneminimum limit only is here fixed, the penalty half of a life sentence, it could say, as it did for this crime may be extended to life, under impliedly in this case, that the longest term the provision found in section 8902, for there for which the defendant should have been it is expressly declared that "the court au- sentenced upon a conviction of the infamous thorized to pronounce judgment upon such crime against nature should be 30 years, and conviction may, in its discretion, sentence fix the term upon conviction for the attempt such offender to imprisonment during his at 15 years, or one-half of that time. People natural life, or for any number of years not V. Gardner, 98 Cal. 127, 32 Pac. 880; People less than that prescribed." v. Burns, 138 Cal. 159, 69 Pac. 16, 70 Pac. 1087, 60 L. R. A. 270; In re De Camp, 15 Utah, 158, 49 Pac. 823. The provisions of the statute are confusing and not free from difficulty, when it comes to apply them, yet we do not think them entirely abortive.

The penalty for assault in the second degree is fixed by section 8313 at not less than one nor more than five years, or a fine not exceeding $2,000, or both. While some of the various assaults defined in this section are purely statutory, and involve a battery Contention is made that the judgment is as well as a common-law assault-that is, erroneous in that it includes, as a part of an attempt with force or violence to do a the penalty, the payment of the costs incident corporal injury to another, under circum- to the prosecution. At common law costs, stances denoting an intention to do it, cou- as such, were unknown. Hibbard v. Tomlinpled with the present ability to carry the son, 2 Mont. 220; Orr v. Haskell, 2 Mont.

MENT AND EVIDENCE.

prohibiting the operation, etc., of the game of
An indictment, under Rev. Codes, § 8416,
draw poker or any game of chance played with
cards, having charged only that defendant per-
to prove, not that some game of cards was
mitted a game of draw power, it was necessary
played, but that draw poker was permitted.
[Ed. Note.-For other cases, see Gaming, Dec.
Dig. § 94.*]

Mont. C. C. & S. Min. Co., 27 Mont. 288, 70 12. GAMING ($ 94*) - PROSECUTION - INDICTPac. 1114; 11 Cyc. 267. The recovery of them depends upon the provisions of the statute upon the subject. If they are not expressly allowed, they cannot be recovered. The rule applies as well to criminal cases. While it is competent for the Legislature to make the costs a part of the penalty, as such, or to provide generally that a defendant, upon conviction of any crime, shall be adjudged civilly liable for them, in the absence of such a statute courts have no power to include them in the judgment. There is no general provision in the Revised Codes upon the subject; nor does the section supra, fixing the penalty for the offense here involved, grant the power to impose costs. The judgment is therefore erroneous in so far as it includes them; but this error does not necessarily render it void as a whole. It is valid to the extent to which the court had power to impose it, and void only as to the excess. Under the statute (section 9417, Rev. Codes), the objectionable part may be stricken out, and, as so modified, it may be allowed to stand.

It is said that the judgment should be reversed because the court failed to submit certain instructions to the jury. It does not appear from the record that objection was made during the trial to any portion of the charge, or that any special instructions requested were refused. So far as appears to this court, the entire charge was satisfactory to counsel and sufficiently comprehensive to cover every phase of the case. Having made no objection to any portion of it, nor to any action of the court in connection with the settlement of it during the trial, counsel cannot now complain, either of any error therein, or of any omission by the court to submit any special instruction. Section 9271, Rev. Codes.

The cause is remanded to the district court, with directions to modify the judgment by striking out so much thereof as adjudges the defendant liable for costs. As so modified, the judgment will stand af

firmed.

Modified and affirmed.

SMITH and HOLLOWAY, JJ., concur.

STATE v. RADMILOVICH.

(Supreme Court of Montana. Dec. 2, 1909.) 1. CRIMINAL LAW (§ 1063*)-APPEAL-CONSIDERATION OF EXCEPTIONS-NECESSITY OF MOTION FOR NEW TRIAL.

That exception to the overruling of a motion to direct an acquittal, on the ground of failure of proof of certain material facts, may be considered on appeal, it is not necessary that it should have been presented to the trial court by motion for new trial and exception reserved to denial of the motion.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1063.*]

3. CRIMINAL LAW (§ 933*)-VERDICT-DIS-
REGARD OF INSTRUCTIONS BY JURY.
that, unless they found a game of draw poker
Disregard by the jury of the instruction
was played, they should acquit, shown by the
fact that there was no evidence that such game
was played, is alone sufficient reason why a new
trial should be granted.
[Ed. Note.-For other cases, see Criminal
Law, Dec. Dig. § 933.*]

4. GAMING (§ 85*)-INDICTMENT.

An indictment for permitting a game of poker to be played on defendant's premises need not give the names of the persons permitted to play.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. § 266; Dec. Dig. § 85.*] 5. CRIMINAL LAW (§ 1169*)-PREJUDICIAL ERROR-ADMISSION OF EVIDENCE.

Allowing the state, in proving that defendwas charged to be permitted, to unnecessarily ant was the owner of premises where gaming show that a man had been killed there, prior to the offense charged, was prejudicial.

[Ed. Note.-For other cases, see Criminal

Law, Dec. Dig. § 1169.*]

Appeal from District Court, Silver Bow County; Michael Donlan, Judge.

John Radmilovich was convicted under Rev. Codes, § 8416, and appeals. Reversed and remanded for new trial.

Binnard & Rodger and B. S. Thresher, for appellant. Albert J. Galen, Atty. Gen., W. II. Poorman, and E. M. Hall, Asst. Attys. Gen., for the State.

* *

then and

SMITH, J. The above-named defendant was prosecuted in the district court of Silver Bow county under an information, the charging portion of which is as follows: "That the said defendant, on or about the 18th day of October, 1908, there being the owner and in charge of a certain saloon, beer hall, or barroom, then and there situate and being in that certain building known as and numbered 110 East Park street, in the city of Butte, *** unlawfully, etc., did permit, then and there and therein, and in and about said saloon beer hall, or barroom, a certain game of draw poker to be played, with cards, for money, checks, credits, and other representatives of value." The jury before whom he was tried rendered a verdict of guilty, and from a judgment of conviction he appeals.

At the close of the state's case in chief, the defendant moved the court for a directed verdict of acquittal, and also requested the court to advise the jury to acquit him, for the following reasons, viz., that the state had failed to prove (1) the corpus delicti, or (2)