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If the information charges in appropriate | the place, that he and Sloan would steal terms the felonious or criminal intent, it is horses from the ranges in the southern part not necessary to use the technical word of Gallatin county, and that the defendant "feloniously.” In this case, however, we would receive them and allow a fixed price see that this technical term was used, as for them of $25 each for all of a certain applied to the taking, and hence the feloni- grade, each of the parties to the agreement ous intent is sufficiently alleged.
to have one-third of the proceeds. Later 2. It is earnestly contended that the de the defendant agreed to take all the horses fendant was convicted upon the uncorroborat- brought to him by Maxwell and Sloan, sell ed testimony of an accomplice, and, there- them and divide the proceeds, giving Max. fore, that under section 2089 of the Penal well credit for his share on the price of the Code, the judgment cannot stand. It is true ranch. The horses driven to defendant's that the only direct evidence against the place by Sloan and Mawell on their first defendant was given by one Maxwell, who visit were taken away by Sloan, and, so far testified that the defendant, one Sloan and as appears, defendant took no part in the himself entered into an agreement under disposition of them. Nor did Maxwell aftthe terms of which Maxwell and Sloan were erwards have anything to do with them. So to steal horses from the range in Gallatin that, even if a conspiracy theretofore excounty, and turn them over to defendant, who isted between defendant and Sloan, the reundertook to dispose of them for the mutual sult of this meeting was an abandonment of benefit of all. Since the judgment and or- it and the formation of a new agreement der must be reversed on other grounds, we for a different purpose. The court overruled shall refrain from discussing the evidence defendant's objection to the testimony of the further than to say that we think the inde- witness so far as it detailed the conversation pendent corroborative evidence tending to con- had between him and Sloan out of the hearnect the defendant with the commission of the ing of the defendant. larceny charged, together with the evidence of
The contention is made that the admission the accomplice, sufficient to make out a case of this evidence was prejudicial error.
We to go to the jury on the question of his guilt. think it was. There is no rule better settled
3. Maxwell stated in his testimony that than that the acts and declarations of a coon the day before the agreement was entered conspirator done and made in furtherance into, be assisted Sloan in driving some of a common design are admissible against horses to the house of the defendant, which all the other parties to the conspiracy, whethSloan intended to turn over to the defendant er done or made in their presence or with to be by him delivered to one Stevens in their knowledge or not. State v. Byers, 16 part payment for a ranch which defendant Mont. 565, 41 Pac. 708; Pincus v. Reynolds, and Sloan had agreed to purchase from 19 Mont. 564, 49 Pac. 145; Wigmore on Stevens. After some conversation between Evidence, 1079; 8 Cyc. 679. It is founded Sloan and the defendant, it was agreed be- upon the principle that when two or more tween them that Sloan might be released persons are associated together to accomplish from carrying out his part of the agree- some unlawful purpose, each one is, for the ment with Stevens, and that its performance time being, the agent for the others and would be undertaken by the defendant. binds them by his acts and declarations done Thereupon a proposition was made to Max- and made in furtherance and in aid of the well to buy from the defendant the ranch common purpose. But, to be admissible, where the latter was then living. Maxwell
Maxwell the acts and declarations must have occurred at first demurred, saying that he had no during the life of the conspiracy; that is, money. Defendant told him that he would after it has been formed and before its actake payment in horses. Maxwell and Sloan complishment or abandonment. Applying then went out to look over the place, leaving the rule, with these limitations, to the evidefendant at the house. Sloan seemed anx- dence in question, it should have been exious to have the trade made: So, while he cluded; for, admitting, for the sake of arguand Maxwell were together, he urged Max- ment, that Sloan and Allen, the defendant, well to buy the place, telling him that he had theretofore been engaged in a scheme had been doing business with the defendant to steal horses and sell them for their mutual for a long time, that he could be trusted, profit, Maxwell was not a party to the that Maxwell could steal horses enough to scheme, and, therefore, was not a co-conspirmake the payments, and that defendant ator with Allen in it. It was only after would take and handle them for him. It the contract of purchase of the Stevens' is apparent from the use of the expression place had been abandoned by Sloan that the "doing business," in the testimony of this arrangement for the purchase from defendwitness, that he intended to be understood ant by Maxwell was broached, and by its as saying that Sloan meant that he had completion only did Maxwell become assobeen stealing horses for a long time, and ciated with them. Up to the time of this that defendant had been handling them for visit to Allen's place by Maxwell in comhim. Upon their return to the house an pany with Sloan, Maxwell and Allen had agreement was made between the defend- been strangers. So far as the proof shows, ant and Maxwell, that Maxwell would take they had had no connection with each other In any sort of enterprise. Nor does it appear
Nor does it appear he must have had, and, further, the fact that that Allen knew that Sloan intended to make he received, at different times, animals with any such proposition to Maxwell as he did many different brands, without inquiry as make. Therefore the conversation between to whence they came, tended in some measMaxwell and Sloan was bad before the in- ure, at least, to support the inference that ception of the criminal purpose, and, though a conspiracy existed; and, since the differit had reference to this criminal purpose ent larcenies were committed as parts of which was afterwards formed and carried the scheme, evidence of them was competent, out, at the time it was had, Allen was not a because every act done in furtherance of it party to it, and therefore could not be bound could properly be proved as part of it, even by anything said by them.
if the proof of it tended to establish a dis4. Like objections were made to other tinct crime. State v. Stevenson, 26 Mont. conversations had between Maxwell and 332, 67 Pac. 1001. Sloan out of the presence of the defendant, 7. In the charge to the jury the court de after the agreement was made. These con- fined grand larceny substantially in the versations all had reference to the purpose words of the statute, as follows: "The definiof the conspiracy and occurred while Max- tion of grand larceny applicable to this case well and Sloan were hunting for horses on is as follows: Every person who, with the the range, which they intended to, and sub- intent to deprive or defraud the true owner sequently did, deliver to defendant or from of his property or of the use and benefit which he made selections. They were there. thereof, or to appropriate the same to the for competent, and were properly admitted use of the taker, or of any other person, takes in evidence.
from the possession of the true owner any 5. Further objection was made to all of mare, gelding, or colt is guilty of grand larthese conversations on the ground that the ceny.” (Instruction No. 2.) The defendant, witnesses testifying to them were not first finds no fault with this definition, but con
tends that, since a taking of personal propoccurrence and the persons present. The erty from the owner thereof cannot be a declarations of a party against his interest | crime unless it be done with felonious inconcerning the subject of the controversy tent, the definition should have been supare always admissible against him as sub- plemented by an additional statement tellstantive evidence in aid of his adversary. ing the jury in appropriate terms that the It is not necessary that the circumstances taking must have been done with such inof time, place, etc., should be stated to ren- tent, or there could be no conviction. In der them competent. The rule invoked by State v. Rechnitz, supra, the instruction subcounsel applies only to cases where it is mitted to the jury used substantially the lansought to impeach a witness who is under- guage employed by the statute. Counsel for going examination. In such case it is but appellant in that case made the same confair to the witness that his attention should tention as is made here, and this court, upbe called to the time and place and attend- on a review of the authorities, both textant circumstances, so that he may have an writers and adjudicated cases, sustained opportunity to explain. The statute declares the contention on the ground that whatever that this must be done (Code Civ. Proc. 8 the definition given to the crime of larceny 3380). But one way to secure advantage of by statute may be, the criminal intent is the declarations of a party is to prove them a necessary ingredient of it, and, if not exas substantive evidence by witnesses who pressed therein in appropriate terms, must know of them, leaving it to his counsel to be imported into it by the court in applying bring out the attendant circumstances upon it to particular cases. Otherwise, every takcross-examination, and thus enable the party ing of personal property from the possession kimself to explain or contradict it.
of the owner, with the intention to deprive 6. It is argued that the court was in error him of it, would fall within the purview of in admitting evidence of other larcenies. the statute, and would be larceny. A sherifr It appears, however, that they were all com- taking it under process, or any one taking mitted by Sloan and Maxwell within three it under a bona fide but mistaken claim of or four weeks subsequent to the date of their ownership, if yet with intent to deprive the first visit to defendant's place; and in view owner of it, could, under the terms of the of the fact that the brands on some of the statute, be convicted. Under the authority animals were subsequently changed, and that of that case, which we think was correctly most of them were received and disposed of decided, the contention of defendant must be by defendant, the evidence was competent sustained. There was no other instruction as tending to establish the conspiracy, and submitted sufficiently explicit to cure the de also to show intent on the part of the de fect. The word "felonious" appears in the fendant. The possession of the property by charge but once, and that in a subsequent the defendant soon after it was stolen was paragraph in which the distinction between itself an incriminatory fact, not sufficient, the crimes of grand larceny and knowingly standing alone, to warrant conviction. Nev. receiving stolen property is pointed out. It ertheless the fact of such possession, coupled occurs in the sentence: "If you are not satiswith the changed brands, knowledge of which fied from the evidence in this case beyond all reasonable doubt, that the defendant had or to willful perjury, and determine its something to do with the felonious taking of weight accordingly, it is a clear invasion of the property * * it is your duty to the province of the jury for the court to say acquit." This casual, incidental use of the that "prominent and striking" contradictions technical term was not intended, nor could should be attributed to deliberate perjury it have been understood by the jury to im- rather than to the ordinary infirmities of port into the formal definition of the crime mankind. The jury are the exclusive judges theretofore given the necessary modification of the credibility of the witnesses and should to make it a correct statement of the law.
be left, under proper instructions, to de8. Among other instructions as to the cred.
termine from what cause the contradictions ibility of witnesses, not complained of by the and inconsistencies therein arise, and to defendant, the court gave the following: weigh the evidence accordingly. Nor is it a "The court instructs that partial variances correct statement of the law that coincidence in the testimony of different witnesses on in all particulars in the stories of two or minute and collateral points are of little more witnesses always casts suspicion upon importance unless they be of too prominent their evidence. This is often the case, but and striking a nature to be ascribed to mere the rule is not of universal application. inadvertence, inattention, or defect of mem- Two such stories may coincide literally, and ory; that it so rarely happens that witnesses yet be true. It is therefore manifestly an of the same transaction perfectly and en- invasion of the province of the jury for the tirely agree on all points connected with it
court to say to them that such evidence must that any entire and complete coincidence in
be viewed with suspicion and to this extent every particular, so far from strengthening discredit it by expressing an opinion upon their credit only, indirectly engenders a sus- it. It is for the jury to examine the stories, picion of practice and concert; and that in and say whether they are true. We have determining upon the credence to be given to not found a similar instruction approved by testimony by the jury, the real question
any court or text-writer, and deem it clearmust always be whether the points of va- ly open to the fault found with it by appelriance and discrepancy are of so strong and lant. In this connection we may observe decisive a nature as to render it impos- that it is far safer for a trial court to make sible or difficult to attribute them to the
use of instructions generally approved by ordinary sources of such variance, viz., in
the courts, rather than to risk the danger of attention or want of memory.” (Instruction invading the province of the jury by formNo. 10.) Irrespective of the doubtful propri- | ulating new ones. The expression of this ety of giving such an instruction in any case, instruction is confused and contradictory to we think this invades the province of the such an extent that it is hardly possible jury in two respects. In the first place, a that a jury of ordinary men would be able witness may always be impeached by evi- to understand exactly what the court did dence tending directly to contradict his story
mean by it. (Code Civ. Proc. $ 3379), or indirectly by 9. Many other errors are assigned upon showing that he has made at other times the instructions submitted. We briefly refer statements inconsistent with it (Code Civ.
to such of them as require notice. Upon the Proc. $ 3380); and the contradiction or in- value of circumstantial evidence the jury consistency is of more or less value as an were instructed substantially, that such eviimpeachment, according as it is upon an im- dence should be regarded by the jury in all portant or unimportant material statement
cases; that it is in many cases quite as conin the story. If it grows out of inadvert- vincing as direct and positive evidence; that ence, inattention, or defect of memory, it is when it is strong and satisfactory, the jury of less value than when it is the result of
should so consider it, neither enlarging nor a statement shown to be willfully false. belittling its force; that it should have its Contradictions arising out of defect of mem- just and fair weight; and that if, when takory, and the like, do not ordinarily destroy en as a whole and fairly and candidly weighthe credit of the witness' story as a whole, ed, it convinces the guarded judgment, the but only so far as the story is manifestly in- jury should convict. The fault found with accurate. But where it arises out of a will- this statement is that it is misleading, in ful perversion of the truth, the jury may that it tells the jury that if such evidence disregard the whole of it, except so far as convinces the guarded judgment they should it is corroborated in other particulars by convict, whereas, if the evidence convinces other credible evidence in the case. But it the jury of defendant's innocence, or raises is a fact commonly observed, that the varia- a doubt of his guilt, he should be acquitted. tions in the stories of witnesses, even in the Reading this paragraph with the rest of the most important particulars, are as often due charge, we do not think the jury could have to inattention, inadvertence, and failure of been misled; yet, it should have stated that memory, as to willful perjury; and while the jury should convict only if the circuinit is eminently proper for the jury to in- stances were of such a character as to satisfy quire whether the contradiction is only ap- the minds of the jury of the guilt of the de parent, or due to lapse of memory or the like, fendant beyond a reasonable doubt to the exclusion of every reasonable hypothesis other ever, it makes
it makes any particular difference than the guilt of the defendant. The instruc- whether the disjunctive or conjunctive partion submitted was taken substantially from ticle is used here. The word "advise," in section 729 of Hughes' Instructions to Juries, the sense here used, means "to give counsel and seems to find approval in State v. El- to; to offer an opinion to, as worthy or exsham, 70 Iowa, 534, 31 N. W. 66. In copying pedient to be followed; to recommend as it, however, the instruction was altered so as wise and prudent; to suggest as the proper to make it say to the jury that they should course of action.” The term "encourage" under such circumstances convict, whereas means "to give courage to; to incite to action the text correctly states: “And if, when it or perserverance.” While the terms are not (such evidence) is all taken as a whole and synonymous in a technical sense, in popular fairly and candidly weighed, it convinces the usage they are; and it would seem that one guarded judgment, the jury should act upon who suggests to another that the commission such conviction;" quite a different proposi- of a crime is wise, or that it is a proper tion. We question, also, whether it would not course of action, and the advice so given is have been better to omit the second sentence followed, should very properly be said, in a of the paragraph as coming perilously near popular sense, to have encouraged it. To ininvading the province of the jury by comment- cite to action also involves the idea of giving ing upon the weight of the evidence. But this advice to the same end. So that, avoiding point was not made, and we do not decide it.
a strictly technical construction and giving 10. Paragraphs 15 and 16 of the charge as- the terms employed a more liberal and popusume that Maxwell was an accomplice of the lar meaning, which is the correct canon of defendant. The assumption was clearly er- construction to be applied in such cases, roneous. To assume that there is an accom- there is no difference in principle between plice is an assumption that a crime has been giving advice and giving encouragement, and committed, and that there is a principal; for criminal responsibility should be regarded there can be no accomplice without a crime as attaching to the giver in either case. By and a principal. Therefore, the assumption the ordinary mind no distinction is drawn that Maxwell was an accomplice was an as- between the two. sumption of defendant's guilt of the crime A more serious objection to the instruction charged. Other portions of the charge fully (not noticed by counsel) might have been urgand fairly submitted the question of com- ed to the use of the disjunctive between the plicity to the jury, and they may not have terms "aided” and “abetted." In People v. been misled by the assumption, but the error Dole, 51 Pac. 945, the Supreme Court of Calishould be avoided on another trial.
fornia in Department 1 held that the use of 11. Paragraph 25 of the charge is as fol- the disjunctive "or" was not fatal error, belows: "All persons concerned in the com- cause "to the ordinary mind, one who aids mission of a crime, whether they directly or assists in the commission of the crime of commit the act constituting the offense, or aid forgery is guilty; and this is true because to and abet in its commission, or even if not such a mind criminality is included as an elepresent at its commission, have advised or ment in the act of the party aiding or assistencouraged its commission, are principals in ing.” In the same case, however, in 122 Cal. the crime so committed; so if you find from 486, 55 Pac. 581, 68 Am. St. Rep. 50, the court the evidence, beyond a reasonable doubt, that in bank decided that the use of the disjuncRoland T. Sloan or Ross Maxwell or the tive was prejudicial error. The court said: two together stole the horses in question with "The word 'aid' does not imply guilty knowlor without others, and that they were in such edge or felonious intent, whereas the definiact in any way aided or abetted by the tion of the word 'abet includes knowledge of defendant Allen in the commission of the the wrongful purpose of the perpetrator and crime, the defendant knowing the nature and counsel and encouragement in the crime. The purpose of the acts so being committed by error in the instruction is, therefore, clear, said Sloan and Maxwell, or either of them, and it cannot be held to be harmless error or that the defendant in any way know- to instruct a jury that they must convict ingly advised or encouraged them or either upon proof of a fact which does not necesof them in the commission of such crime, the sarily imply guilt." This case is cited with defendant is guilty, and you should so find approval in People v. Compton, 123 Cal. 403, by your verdict.” The adverse criticism 56 Pac. 44, upon the same point, and we made of this statement is that the use of think the views therein expressed are corthe disjunctive "or" instead of "and" between rect. Aside from the person who actually the words "advise" and "encourage" is a commits the crime, no person could, under departure from the statute (Pen. Code, $ 41), the statute, be guilty of the crime who and must, therefore, have been prejudicial. does not aid and abet in it; and a person In State v. Geddes, 22 Mont. 68, 55 Pac. 919, may aid in it by unconsciously, and therefore the same substitution of terms was consid- innocently, doing some act essential to its ered somewhat, and a doubt was expressed as accomplishment. to whether it was fatal to the instruction. 12. In another paragraph of the charge the But it is always safer to follow the stat- court instructed the jury as to the duty of ute. We do not see how on principle, how- a person finding property to restore it to the owner, or to make a reasonable effort to JOHNSTON, C. J. J. L. Bursaw was condo so. This instruction should not have been victed of unlawfully selling intoxicating given, since there were no facts or circum- / liquors. The information contained five stances proven in the case justifying the counts, and upon a trial he was found guilty inference that the animals alleged to have on the first and second counts, the judgment been 'stolen had been found by defendant or imposed being imprisonment for 30 days, any one else. It was not applicable to the and a fine of $100 on each count. He infacts of the case.
sists on this appeal that the evidence does 13. Defendant's requested instruction No. | not sustain the conviction; that it did not 9 should have been given. It embodies sec- in any event show more than one unlawful tions 20 and 21 of the Penal Code, and should
The state elected to rely on sales of always be given, especially when requested by whisky to four young men on each of the the defendant.
three counts. According to their testimony, 14. Instruction No. 11, requested, deals with they obtained three bottles of whisky from the element of felonious intent. It is a defendant, and drank it in his presence. correct statement of the law applicable to While the liquor was all procured by these the case and should have been given. What parties, and drank within a brief space of has already been said on this subject, how- time, the sales appear to have been three ever, renders further remark unnecessary. separate transactions. The young men state Most of the other instructions requested and that the defendant furnished them with a refused were fairly covered by the instruc- bottle of whisky and that they "chipped in" tions given. The remarks heretofore made and paid him for it, and when that was are sufficient to guide the court on another drank they bought another bottle and again trial without special discussion of the ques- "chipped in" for its payment, and in the tions presented and discussed by counsel same way a third bottle was purchased and with reference to them.
paid for. It thus appears that each bottle Let the judgment and order be reversed, was a separate sale, and each sale was, and the cause be remanded for a new trial. therefore, a distinct offense. There is no Reversed and remanded.
lack of evidence to sustain the verdict. The
complaint that leading questions were asked HOLLOWAY, J., concurs. MILBURY, J.,
by the state and allowed is without merit. not having heard the argument, takes no part Only a few questions which might be regardin this decision.
ed as leading and to which objection was
made were asked, and it was manifest that (74 Kan. 473)
the defendant suffered 'no injury from the STATE v. BURSAW.
form of the questions. The court has a wide (Supreme Court of Kansas. Oct. 6, 1906.)
discretion in allowing leading questions, 1. CRIMINAL LAW—ACCUSED AS WITNESS-IN- and only an abuse of such discretion affords STRUCTIONS.
ground for reversal. Objection is made that When an accused becomes a witness in three of the witnesses to whom liquor was his own behalf it is not error for the court
sold were permitted to testify in respect to to call attention to his testimony and to advise the jury that it may consider his interest in
their ages. It appears that they ranged the result of the trial as affecting his credibility. | from 18 to 21 years of age, a fact that was
[Ed. Note. For cases in point, see vol. 14, patent to all, and while the evidence was not Cent. Dig. Criminal Law, $S 1786-1789, 1895
material, it was certainly not prejudicial. 1901.]
In instructing the jury the court called spe2. SAME-NEW TRIAL. The court has a wide discretion in per
cial attention to the testimony of the defendmitting leading questions in the examination
ant, saying: "He testifies as an interested of witnesses, and only the abuse of such dis- witness, and from an interested standpoint, cretion affords grounds for a new trial.
and as such you should consider his testi[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, $$ 2206-2208; vol.
mony.” In the same connection the jury 50, Cent. Dig. Witnesses, $ 795.]
were informed that he was a competent wit3. INTOXICATING LIQUORS-ILLEGAL SALES.
ness, and that his evidence was to be conEach of several sales of liquor to the same sidered in connection with the other evidence persons, being independent and distinct from and circumstances surrounding the case, and the others, is to be regarded as a separate sale, given such weight as the jury might think although such sales were made in quick succession and within a brief time.
it entitled to. The jury has a right in all [Ed. Note.-For cases in point, see vol. 29,
cases, in measuring testimony, to consider Cent. Dig. Intoxicating Liquors, '193, 194.) the interest which any witness may have in (Syllabus by the Court.)
the result of the litigation, and the court
may properly call their attention to that 'Appeal from District Court, Morris Coun- right. Ordinarily, a court is not warranted ty; O. L. Moore, Judge.
in singling out a witness and commenting on J. L. Bursaw was convicted of selling in
his particular interest in the case, but when toxicating liquors, and appeals. Affirmed.
an accused becomes a witness in his own Clarence A. Crowley, for appellant. C. C. behalf, the court is justified in calling attenColeman, Atty. Gen. (W. J. Pirtle and M. B. tion to the interest which he has in the reNicholson, of counsel), for the State.
sult, and that it may be considered in de