99 P. 954 | Mont. | 1909
delivered the opinion of the court.
The defendant, charged by indictment with the crime of grand larceny, was convicted and sentenced to a term of imprisonment in the state penitentiary. • He has appealed from the judgment and an order denying him a new trial. He has also attempted to appeal from an order overruling his motion in arrest of judgment. He contends that the facts stated in the indictment do not constitute a public offense, and that the court erred to his prejudice in its rulings in admitting and excluding evidence and in denying his motion for a new trial upon this ground, and also upon the ground that the verdict is contrary to the evidence.
1. An appeal does not lie from an order overruling a motion in arrest of judgment. It is not enumerated in the statute among the appealable orders. (Revised Codes, sec. 9397.) It is an intermediate order affecting the judgment, and may be reviewed only on appeal from the judgment. (Revised Codes, sec. 9416; State v. Beesskove, 34 Mont. 41, 85 Pac. 376.)
2. The charging part of the indictment is that “one C. M. Brown, late of the county of Yellowstone aforesaid, * * * committed the crime of grand larceny, in that the said C. M. Brown, then and there being, and then and there having in his possession, custody, and control, as a "bailee of one P. S. "Wagner, three hundred and five dollars ($305.00) lawful money and currency of the United States of America, of the value of three hundred and five ($305.00) dollars, then and there the money and property of the said P. S. Wagner, * * * did then and there wrongfully, unlawfully, and feloniously appropriate said money and property to his own use, with the intent
It will be observed that the indictment follows almost literally the words employed in the statute to describe the act denounced as larceny. The rules by which its sufficiency must be determined are found in Revised Codes (section 9145). For the guidance of the pleader a form is prescribed. (Section 9148.) This provision was pursued in this case. Section 9156 declares: “The indictment or information is sufficient, if it can be understood therefrom, * * * (6) That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. (7) That the act or omission charged as the offense-is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to 'the right of the case.” These provisions were intended to relax the-technical rules which prevailed at the common law, and to simplify the procedure to the end that regard to substance, rather than form, should be the rule of interpretation. The indictment here meets the test of these simple requirements. (State v. Stickney, 29 Mont. 523, 75 Pac. 201.)
Section 8642, supra, declares the offense known at the common law as embezzlement to be larceny, and the elements constituting it are stated; the purpose being to dispense with the
3. Since a statement of the facts appearing in the evidence-is necessary to an understanding of the other contentions made, we can most conveniently consider them by reversing the order-in which they are urged in counsel’s brief. There is some conflict in the evidence as to the amount of money involved in the-dealings between the parties, but there is substantial agreement among the witnesses as to all other material facts. The facts, may be stated briefly as follows: Wagner, the prosecuting witness, and the defendant, both residents of Yellowstone county,, but theretofore comparative strangers to each other, met casually and formed acquaintance at Billings on March 24, 1906. They soon became intimate. Wagner had theretofore worked as. a sheepherder and had saved some money. The defendant had been working as a common laborer during the winter. Whether-he had knowledge of Wagner’s financial condition, except that he had saved some money, does not appear. On that or the following day, upon being questioned by Wagner as to what he.
Counsel earnestly contend that these facts show conclusively that the negotiations between Wagner and the defendant re-¡¡ suited in the formation of a partnership, and that, since one/ partner cannot commit larceny by taking and appropriating j to his own use the property or moneys belonging to the part- S nership, the court erred in not directing the jury to acquit the defendant, and also in not granting him a new trial on- the ground that from no point of view can a conviction for larceny be sustained. Under the statute (section 8642, supra) one cannot be convicted of larceny except upon the taking of the personal property of another as therein declared. A partner cannot commit larceny of the funds or property of the partnership of which he is a member, because the interest or ownership of such partner extends to every portion of its property. (Revised Codes, sec. 5469.) Each partner combines in himself at once the character of principal and agent, and may possess and dispose of the firm’s funds and property, even to the extent of appropriating them to his' own use, by withdrawing them from the common fund. But a distinction must be made between an agreement to form a partnership and the consummation of the agreement. On this subject Mr. Parsons says: “There must be a lawful and valid agreement to enter into partnership, and this contract must be executed; and therefore courts do not declare persons to be partners under an agreement for a
The question whether or not a partnership has in fact been created has most frequently arisen in cases where one is sought to be charged by a third person as a partner, as in Atkins v. Hunt, 14 N. H. 208; but the distinction pointed out by Mr-Parsons is generally recognized by the courts, whether in this class of controversies or those in which the rights of the parties inter sese are involved. (Hanrahan v. Freeman, 35 Mont. 584, 90 Pac. 793; Hayhoe v. Burge, 9 Q. B. 431; Howell v. Brodie, 37 Q. B. 499; Wilson v. Campbell, 5 Gilm. (Ill.) 383, Goddard v. Pratt, 16 Pick. (Mass.) 412; Rice v. Shuman, 43 Pa. 37.) In Wilson v. Campbell, supra, the court observed: “A mere agreement to form a partnership does not in itself create a partnership. The parties must enter on the execution of the agreement before the relation of partners exists between them. While the agreement remains executory, if one of them refuses to carry it into effect, the only remedy of the other is by an action at law for the violation of the agreement or by a bill in equity to enforce specifically its performance.”
Under the facts of this case, we are of the opinion that, while there was an agreement to form a partnership, the agreement was never executed so far as to entitle the defendant to claim any interest in the sums of money paid him by Wagner. Wagner had no knowledge of, or experience in, the business, and naturally, after informing himself as to the experience and qualifications of the defendant, intrusted him with the different amounts paid him for the purpose of putting the agreement into execution. For the time being, and until this had been accomplished, the defendant having done his part, he was merely the bailee of Wagner, and had no other interest. Having failed to perform his part, and by his behavior in this regard repudiated the agreement, he could not appropriate the funds to his
4. Of the several assignments questioning the action of the court in its rulings upon the evidence, only one requires notice. On cross-examination the prosecuting witness was asked: “Q. You spent how much money that night for liquors?” The time referred to was the evening of March 28. Upon objection by the county attorney, the witness was not permitted to answer. Thereupon counsel made an offer to prove the following: That the prosecuting witness on the evening mentioned went with defendant to various drinking places and brothels; that he there spent his money for beer and wine; that, having spent all he had, he called upon defendant for $100; that he claimed that he had been robbed, but afterward recovered a considerable sum from one of the inmates of a brothel; and that he was so intoxicated that he could not remember the incidents of the evening. This offer was also rejected. The theory of counsel evidently was that the defendant had received only $150, as he subsequently stated, and that, if it could be shown that he had returned $100 of this amount, he could not in any event be held guilty of grand larceny. It was competent to ascertain the amounts spent by the witness as tending to show that he had exhausted his funds, and that the necessity had arisen to call on the defendant to supply him, thus giving support to counsel’s theory of the case. It will be observed,
On the Avhole, we think that the defendant was not prejudiced by any ruling during the trial, and that the judgment and order should be affirmed. It is so ordered.
Affirmed.