27 Mont. 342 | Mont. | 1903
delivered the opinion of the court.
The defendants were convicted of the crime of grand larceny, having been duly charged by the county attorney with having on the 1st day of September, 1897, in the county of Dawson, stolen 600 sheep, of the value of $2,700, the property of E. S. Webster, Aldo Sanford, and D. O. Webster, copartners as Webster, Sanford & Co. From the order denying’ the motion of defendants for a new trial and from the judgment, the defendants, and each of them, ajipeal.
There are thirty-seven alleged errors of the district court argued under ten heads in the brief of counsel. There were twenty-ono witnesses examined, and the testimony covers two hundred and twelve pages of the record. It will not be necessary to talce up seriatim the exceptions which were saved to the rulings of the court as to admission of evidence.
1. The first specification in the brief depends upon assigned errors 5, "6, 17, 18, 19, 20, 27, 28, 33, 34, and 46. All of these refer to alleged confessions and admissions of the defendant
As to' tbe effect of tbe testimony relating to admissions or
2. As to alleged errors 29, 30, and 31, it is only necessary to say that it appears that tbe court was strictly technical in sustaining tbe objections to tbe questions referred to1, and too much technicality and restriction is not to be recommended when it is evident from tbe connection what tbe question plainly means to a person of ordinary understanding.
3. Defendants assigned error (7, 8, 9, 10, 13, and 14) in that the court refused to allow certain questions to be asked of the ex-convict Hand, a witness for the state. The evidence tends to show that he was friendly to the prosecution and hostile to the defendants, or one of them at least; that be was visited in tbe penitentiary by the prosecuting witness Webster, and taken into tbe employ of tbe latter; and tbe questions were very proper, as likely to educe evidence from Hand showing bis relations to tbe prosecuting witness and bis animus in tbe case. Nothing is more important in a felony case than that each party should be allowed to thoroughly cross-examine tbe adversary’s witnesses. Again, we say that full cross-examination, within reasonable limits, must be permitted. Tbe court erred to- tbe prejudice of tbe defendants in tbis matter in tbis case. Tbe court erred, as said in assignments 11 and 12, but afterwards tbe witness testified in cross-examination as to these points, and
4. Alleged, errors 35, 36, and 40 are well assigned. Tbe court erred in permitting tbe impeaching witnesses to testify to tbe use or nonuse of tbe words “certain things” by Webster to Broadbent, for tbe reason that these words were not used by the defendant Broadbent as words actually spoken by Webster, but as characterizing things narrated by him as actually said to him by Webster. Broadbent testified that Webster mentioned matters which he said Webster wished him to swear, to, • and after narrating them he lumped them as the “certain things” that Webster wished to be told. He did not say that Webster used the words “certain things.” No foundation was laid for the questions asked, and the objections should have been sustained.
5. Assignments of error Nos. 2 and 3 are not tenable. As to assignment No. 16, considering the answers of the witness on cross-examination as to the same matter, we find no error.
6. We discover no error as suggested in assignment 41. The defendant Donaldson testified concerning the matter under consideration, and the evidence complained of was proper in opposition.
7. As to refused instruction “g,” we find it substantially covered, and there was no error assigned.
8. Refused instruction “d” should have been given.
9. Assignments 49 and 50 are not well taken. We see no prejudice to.the defendants.
10. It is not necessary to consider the matter 'of newly discovered evidence on motion for a new trial, as the case must be reversed for the reasons heretofore stated.
The order denying the motion for a new trial and the judgment are reversed, and the cause is remanded.
Reversed and remanded.