124 P. 516 | Mont. | 1912
delivered the opinion of the court.
The defendant was convicted of grand larceny and has appealed from the judgment and from ah order denying him a new trial.
1. The contention of appellant that the information does not state facts sufficient to constitute a public offense is without merit. (State v. Van, 44 Mont. 374, 120. Pac. 479; State v. Biggs, ante, p. 400, 123 Pac. 410.),
3. The defendant requested two instructions (5 and 7) upon the subject of circumstantial evidence. These requests were refused, and in lieu thereof the court gave instruction No. 17 upon the same subject, employing therein the following sentence:
4. Instruction 8, given by the court, is not open to the objection urged against it. It very plainly told the jury that they
5. Kequested instruction No. 1 was fully covered by instruction No. 12, given.
6. Defendant’s offered instruction No. 3 is erroneous and was properly refused. (State v. Kremer, 34 Mont. 6, 85 Pac. 736.) The court correctly covered the subject in instruction No. 20, given. (State v. Biggs, above.)
7. By offered instruction No. 11 the court was asked to define a presumption and to tell the jury that “where there are two
8. Defendant’s offered instruction No. 13 reproduces a portion of section 8658, Revised Codes, and then continues with an apparent effort to apply the rule to the facts of this particular case, but, in doing so, imposed upon the defendant a burden much greater than that warranted by law. The meaning of the instruction is not clear, particularly the last clause; but, however this may be, the court by instruction No. 9 told the jury that it was incumbent upon the state to prove, beyond a reasonable doubt, that the defendant took the animal in question with a felonious intent, — that is to say, with the intent to steal; and in instruction No. 11 the court made a proper application of the rule announced in section 8658, above.
9. Defendant’s offered instruction 14 is so far contradictory in its terms as to be confusing, if not almost meaningless. In
In support of the offered instruction, counsel for appellant cite People v. LaPique (Cal.), 67 Pac. 14; but a reference to the case discloses that the instruction there considered was given at the request of the defendant and is not approved by the California court.
10. The defendant was charged with the larceny of a black mare, the property of Samuel Sanderson. The evidence of
The evidence tends to show that the mutilation of the brand occurred but a short time prior to the trial, and that the animal when sold to Holland was only four or five years old. According to the testimony of defendant and his witnesses, defendant never saw the animal until two or three months, at most, before he sold her to Holland. The defendant offered fin explanation of his possession of the animal, which, if true, completely exonerated him, but the jury refused to accept his explanation, and we cannot say that they were not justified in their action. Defendant and his witnesses were before the jury, their demeanor on the witness-stand, their apparent interest or lack of interest, their candor or lack of it, and all the attending circumstances the jury were advised to consider, and doubtless did consider, in arriving at their determination that defendant’s explanation was not entitled to credence. The trial court having had the witnesses before it and the like opportunity to observe them while testifying, upon a review of the case on motion for new trial refused to interfere. Under these circumstances we cannot
Finding no error in the record, the judgment and order are affirmed.
Affirmed.