*1 required by cate of location recorded tbe law defendants plaintiffs entered, posted, excavated, filed time and required by their verified man- certificate of location as datory provisions our state Defendants’ statutes. certifi- location, being being cates of defective and not recorded as required mandatory containing and not re- information as quired by 50-701, should be secs. de- nullity. apply rights clared a Section 50-713 because should parties statutory require- of third had intervened before perfected. unnecessarily were It would ments extend this forth detail my objections majority dissent set further opinion. ADAIR,
MR. JUSTICE dissents. MONTANA, STATE OF Respondent, Plaintiff Appellant. FAIRBURN, LLOYD H. Defendant No. 9930. January May 1, Submitted 1959. Decided 1959. Rehearing Denied June 1959. *2 ADAIR dissented. BOTTOMLY
MR. JUSTICES Herriott, Billings, appellant. for Ralph L. Atty. Gen., Crowley, William F. Asst. Anderson,
Forrest H. Crowley, argued orally. F. respondent. William Gen., Atty. CASTLES: MR. JUSTICE a.jury judgment conviction on appeal from
This is an appellant The grand larceny. verdict. was convicted property him-,'as by agent held under R.C.M.
94-2701. appellant’s
The appropriation per- arose out of to his paid sonal purchaser Comp- $381.60 use him the by of a computing appellant tometer The machine. -wasan sell- ing strictly According undisputed commission. tes- timony appellant’s authority employer, appellant had accept bring orders from customers “and to written back proof money might.have of those orders whatever been ’’ original sale, tendered in this being the amount case computing.machine, $381.60. stolen be- longed Corporation. shipped It was from Spokane the-Billings branch to him distributor and appellant purposes', delivered for demonstration- and sale. ‘‘ purchaser, paid drawn to cheek the order of General appellant’s request. Business Machines”- *3 reported paid neither the any sale nor sale proceeds the Comptometer Corporation’s over Algon- to the home office in quin, Illinois, Comptometer Corporation nor to the branch of- Spokane, Washington, appellant’s fice in nor to the immediate employer, Fowler, Comptometer Steve distributor resale Billings, in Montana. Until Fowler the discovered de- falcation, payee the of the check drawn to Business “General ’’ anyone by Machines was never heard of Fowler or connected Comptometer Corporation with the home or branch office. employed appellant April
Fowler the aas on salesman -1957.-; appellant’s duties sell The. were to office machines on percent basis, -a sixteen commission the commissions these payable to be sales machines had been made and after confirmed Spokane by particular adding office. The machine sale in this case was to be involved so handled according to the Appellant’s arrangement working State’s case. and Fowler’s n with the in these sale proceeds testimony: portion is shown this of Fowler’s you say “Q. commission, you When ‘strict’ do mean he [appellant sales paid was to be commission on Fairburn] only right? A. when he made sales—is that We had in position pay I commissions in understanding. no any only as the sale, advance of but after such time had come into the office. * * [*]
“Q. go computing I machine particular want to back pro- Now, shares in the Niagara people. delivered what Comptometer Cor- ceeds of the sale that machine would the * * * principal in it. poration had? share have A. “Q. any proceeds of the sale you Did have interest through the directly ? but of that machine Not A. Corporation. Yes.
“Q. I it? percentage, You a take A. received pro- you interest “Q, So in sense have a share a did * * I ceeds *? A. did.” appellant’s employment period of about two covered During this July months, ending his arrest on time office machines were delivered to the twelve were even- capacity agent. of the machines Four payment was ever received tually returned to Fowler. No Fowler for of the machines. replete record is with substantial testi- uncontradicted that, believed, proved beyond if a reasonable doubt
mony charged. nature act criminal defendant’s Defendant’s brought counsel out on cross-examination of Fowler that submitting sales, purported had been fake defendant and that part charge, as a of the same transaction involved given massage had a bad cheek for unit defendant adding machine All this company he sold the to. evidence of the defendant and the criminal intent demonstrated charged. of the act criminal nature *4 open showing ap- apparently based on The defense appellant good faith claim of title. The under a propriation that Fowler was indebted to the effect presented evidence money, he needed the commissions, that unpaid for him on The evidence money on account. retained the that he this matter in sharp jury conflict and the elected to believe testimony of the State’s witnesses.
The appellant specifications makes three of error. The first is to the effect that the information does not state facts suf- public ficient to constitute a in offense. second is made connection with testimony by certain offered the defense but refused complains The third court. of the admission involving evidence of transactions pro- other machines and ceeds, prejudicial which is be claimed to to the defendant. accused him of information under which the committing grand larceny “in that was convicted [*] * * Fairburn the sum of as the * * * [*] * [*] having one Steve Fowler ($381.60), in then and there the possession, lawful custody property money and control * # * in said Comptometer Corporation Steve Fowler Spo and the kane, "Washington, wrongfully, unlawfully, did then there feloniously appropriate money said own use, to his Lloyd Fairburn, then and there in him, intent H. said deprive property; the true owners contrary said * * form
Appellant’s objections the information are that grand larceny generic in the terms of our is laid larceny (R.C.M. 94-2701) particular- without statute see. ity; agency for one principal, Corpora- tion, alleged is neither nor inferable from the information when read whole; as a and that the exact amount of owing separately to Fowler and to the Corpora- alleged. tion is not
To particulars buttress his contention required are support of an charging grand larceny generic information statutory terms, appellant relies on this court’s Hale, State v. 229. This was a prosecution under obtaining money by specifically pretenses, false on a “false and fraud- county ulent claim” making payment relied *5 454 surveyor. 328, 249 Pac. 326, Mont.
county Hale, State 126 v. (2d) 495, 496. 449, supra, 129 Mont. a,ppeal Hale, in
On the second State v. an generally that while (2d) 229, majority 291 Pac. held controlling statute language information in the of the couched claim was particulars in which the Hale good, not is representations particular also the (cid:127)false and fraudulent but be .County making payment must for relied Missoula forth at information is set averred the information. The Mont, (2d) pages 238-240, at pages 467-471, 129 291 Pac. above. insufficient the reasons stated and was ruled for pleading general rule of opinion recognizes Hale Hale Specifically the position here. opposed to defendant’s but with point in theft is off that it deals decision larceny a broad and pretenses. Whereas deceit, fraud and concepts common law comparatively simple problem based on particulars must be found general fraud application, .of opinion in State falsity pretense. See mode of the Pac, (2d) 571, citing State 428, 310 London, 410, 131 v. Mont. McLean, (2d) 229; 291 State v. Hale, 449, 129 Mont. Pac. v. 130 Duncan, (2d) 250, 291 and State v. Pac. says opinion (2d) The London 562, 568, Mont. 305 Pac. the contention : Mont. “It 581] [131 have MacLean that the eases] [Hale that now state and law of this changed previously settled the rules laid comply with must an information for murder with the had to do both of which cases, in these down two pretenses under our statutes. charge fraud or false apparent.” law be We is not now the must “That such reasoning, the rule of the Hale that, parity of now add prosecutions larceny law in equally not the cases is long-established meaning where crimes common-law other statutory meet tests informations form indictments and below. laid down position appellant also cites State support of
In further appeal which is an Pac. 56Wolf, from a conviction for gen- sedition. The Wolf follows the case eral rule statutory information framed must terms sufficiently particularized be to enable prepare a defendant to Beyond a defense. this the provide is irrelevant. To adequate defendant, notice to the of sedition or false pretenses particularized. must be Sedition is said, what was pretended being fraud what was fully and without informed on these matters the defendant cannot know what he must against. defend
Appellant also cites State Mjelde, 490, v. 29 Mont. 75 Pac. 87, a88, involving grand larceny case of received equal on separate amounts three bailments made simultane- ously purpose. separate for an identical The amounts were each than $50 less but the total of Appellant all $50. exceeded contends that the rule requires portions of this case that the belonging to Fowler and the be separately alleged.
But defendant portion (State overlooks the of that not of the essence of the v. the felonious Mjelde) which reads: “The particular ownership taking * * crime. *. * * * time and gist place of the offense is of the '* taking [*] [*] is and the thing alleged taken must be the information, give not to character taking to the act of but merely by way but the crime * [*] of description. * against the state The fraud # * against owner; Mjelde decision is approval cited with in State v. Grims- ley, 96 327, page Mont. at 330, 30 (2d) 85, Pac. with interven- ing Montana many opinions decisions and in which follow the Grimsley case. We find no Montana decision sustaining ap- pellant’s position agency must be detailed, and, as be- owners, tween amount money stolen from each (cid:127) particularized. must be particularize To so would not aid the in preparing defendant his defense. by the
Tested rules of criminal code pleading, the informa charging tion grand defendant with larceny is sufficient public to state a offense. Summarized, these rules are: Will
456 apprised accused ? Will the and court be surprised
accused be Will a conviction bar evidence? prosecution? another of Montana This is the intendment 94, Chapter pleading, 1947, code rules criminal Title 64, following particularly applicable and of the as statutes 94-6404, appeal: information attacked in this Sections (6) (7), 94-6413, subd. (2), 94-6412, subds. 94-6429.
Beginning 50, 3 these Territory Corbett, v. Mont. rules sufficiency criminal information have indictments and Wong appeals. Sun, innumerable State v. been discussed on 185, (2d) 761; 133 pages 190-192, 114 at State v. Mont. Pac. 630, 43 Lake, 128, page 136, 627, 99 at states Mont. Pac. larceny charges “An offense information which language in the statute B..C.M. or bailee [now gen 1947, sec. is sufficient and not vulnerable to 94-2701] Brown, 309, page 313, 38 Mont. eral In State v. at demurrer.” Statutory 954, quoting Bishop Crime, Pac. from “ averred; be but on it is ‘The bailment must said: so, be it is principle particulars it need not because general allegation inducement, more a matter of so the Gondeiro, also v. will suffice’.” See State Haley, 507; State page seq., 535 et *7 therein; 368, (2d) State page at 318 Pac. citations For discussion Board, 135 Pac. a dissenting Chief Justice Adair’s of Montana decisions see Hale, page in State v. established the law in Montana. (2d) 229. decisions have These sufficiency of the They confirm the information. argument specification appellant’s under his second of improperly rejected court
error the trial the testimony witness, clergyman, prepared a of a who was offered testify to between himself and Fairburn a conversation to the prior charged. week offense court sustained to about hearsay grounded question was objection when asked an following proof: offer appellant then made and the by the wit- prove “Comes to now the defendant and offers June, 12th day ness Jess McGuire that on or about 1957, the had a conversation defendant and the witness conversed which had substance of was that the defendant from proceeds concerning with Steve Fowler retention of Further, sales and that defendant agreed. that Fowler had was probably had stated to the retention witness de- problem solution of the a result thereof and that as agreed agree- fendant and witness had that this solution was able.” purpose
This evidence was showing offered for the proceeds good the defendant took the of the check in faith right. and under claim of See section R.C.M. 1947. far prove So as it tends rightful to that the defendant had proceeds claim the check, depends to it on the truth- relating fulness the defendant in to McGuire what he had been Attempting prove told Fowler. that Fowler told Fairburn that “retention was the problem” solution through proof of Fairburn’s is certainly statement to McGuire subject hearsay objection to the and therefore the district ruling excluding quite court’s the evidence proper on this score. prove
So far as this evidence tends untenable claim good (see made in language faith statute) estab- lishing a attitude in mental the defendant incompatible with intent, criminal self-serving it at best a statement made through the defendant offered the mouth clergyman of a give weight it more order to jury. with the It has no real probative In value. give weight order to statement necessary it regard this take as true the fact of the con- versation between Fowler and Fairburn and gist as it so we again stated and to do are rely asked to upon hearsay. position appellant’s Thus the is no better as to intent than as to right previously his actual discussed. appellant argues in addition gestae that the res excep- hearsay rule,
tion to the if applied, justify will admission *8 458
of this hearsay ad- evidence. That rule allows evidence to be mitted when where originates it under circumstances reflection unlikely. Platts, and fabrication are Platts v. ‘‘The spontaneity logical connection utterance and its principal coupled with the event, with the fact that the utter- subject ance was made while the declarant was still to event, principal stimulus of the nervous excitement of design are or preclude contrivance, deliberation, deemed to guaranty fabrication, give to an inherent and to the utterance 319, p. 597. Jones, Evidence, ed., of trustworthiness.” 5th surrounding the There is nothing the circumstances making which of the statement to McG-uire indicates plan, if it reflect, have time and suited the defendant did not to gestae the res rule does prevaricate. Therefore purposes, hearsay it it was to and since apply the statement not properly excluded. appellant, error, as drafted specification third :
reads as follows witness, Fowler, over ob- Steve permitted “The Court concerning other transactions questions jection, answer are questions as follows: defendant. prejudice of the “ any these machines you other of £Q. know whether Do any or were returned To Corporation? A. with the parties concerned any returned other been knowledge these have none of my company. —any other “ £Q. you get of these other machines paid ever Did by Mr. -Fairburn? No. I re returned A. and delivered money’.” no ceived questions these and answers argues jury evidence of other crimes put before
improperly thg jurors larceny charged impression convey the questions crimes. These of similar of a series only one than to establish the business rela- nothing more did answers Fairburn and fall short of show- Fowler between tionship *9 ing any crime This line with the other machines: connected testimony given was the machines established that Fairburn pros- use them trial demonstrators, place to as was to on ’ pective given authority customers to establishments, and was make It unusuál during sales. would not be at all period short of time involved here none of the machines had finally paid short, been for or In do not returned. we believe any this evidence tends to show commission of other appellant. objections cirmes We think the made questions probably time these were asked were based less questions guilty and answers than on a conscience. Other- questions wise the same might good and answers demonstrate part faith on the and lack of criminal intent. specification. We merit in find no this third prejudicial We find no error judg- to the defendant and the ment of conviction is affirmed.
MR. JUSTICE ANGSTMAN concurs.
THE HONORABLE LESTER LOBLE, H. District Judge, (specially concurring):
In dissenting opinion MR. JUSTICE BOTTOMLY objects true of the stolen business machine is not shown, whereby he dissents that the- information insufficient I public agree. offense. I do not concur with MR. JUSTICE CASTLES. prosecution
This the larceny bottomed on $381.60, money lawful of the United America, States of then and there- property Steve Fowler Comptometer and the Corpora- Spokane, tion of Washington. comptometer The for which this paid consigned was the from Cor- poration Spokane, Washington, company’s to this distribu- tor, Steve Fowler, Billings, Montana. It was Steve Fowler’s- sell the function to machine. 'When he sold-the machine, he was required signéd order, to return a sale any money ré~
ceived to this Washing- in Spokane, The ton. sale was processed there to be the commission due Fowler was Comptometer Corpora- to be sent him. tion Spokane kept money. the remainder of the Remittance arrangement on this kind of machine between branch office Spokane Algonquin, Illinois, and home office in shown. employed by defendant Fairburn was the distributor
Fowler as his salesman to demonstrate and sell comptometers. required turn over to Fairburn was Fowler together money by with a sale order received, Fairburn covering every comptometer as sold. the true owner allegations the information *10 by proof. fact, dissenting In until the not the sustained
were ownership was the JUSTICE BOTTOMLY true opinion of MR. any way questioned comptometer machine involved in or the of anyone. specification error on this owner- There is no of by argument supreme court, in urged the was not ship. It in the to sustain such a con- any evidence record is nor there tention. nothing in this case constitute but the facts say
To startling. Fairburn, knowing full well trespass is civil comptometer, the obtain the demonstrate should agent he as superior, the same over to his and turn payment and order send it the who, turn, in would Fowler, Steve Washington, which would remit Spokane, Corporation him Billings, at out of which Fowler commission Fowler’s (16%) percent commis- his sixteen pay Fairburn then would conduct, to-wit: in criminal indulged this sion, knowledge Fowler, May of Steve Fairburn, without Niagara Cyclo machine the Mas- Montana, the sold Billings, for $381.60 Montana and took a cheek in Company of sage under the fictitious name himself “Gen- out to made payment Fowler had never heard of this Machines.” Business eral 18, check was This dated June corporation. fictitious Machines,” “General Business Fair- name endorsing the After Billings, and Bar in the Stockmen’s bum cashed the check Fowler, or superior, his money. Never did he tell pocketed the any- anyone else connected the permanently is not money. If that the the thing about sale or could state of facts thereof, what the true owner depriving larceny of this character? prove ever lodged in informa- the charge,
I conceive the cannot how accused, and prejudice an tion,. manner mislead or could ample authority, MR. CASTLES on I concur with JUSTICE case State repeating only citation of the expanding 87, 88: Pac. Mjelde, subject is the before it “Property must have owner 1895, now Pen. C. larceny, but this statute [Sec. that owner the character of does not define
1947, sec. 94-2701] * # * stolen ownership property of the particular The ship is not of the essence of definition, does not fall within quality the act legal nor moral the crime. Neither being instead of property stolen, by fact that the affected jointly, prop by is the several one, or or more two owned gist is the erty owners. of different felonious offense * * * is determined grade of the offense taking place The time and property taken. the value alleged thing must be taken taking taking or give the act of information, character to description. The*fraud merely by way of but appropriation, * * * against crime owner; but the against in the name and conducted prosecution is state property The owner of authority of the state. by the *11 Emphasis supplied. party not a thereto.” stolen question, BOTTOMLY asks this “Did the MR. JUSTICE deprive the true of his permanently owner intend to person reading question record answers the A of the property?” obviously jury answered it. answer way same “Yes.” parties all treated the defense and prosecution, Spokane Steve Fowler as the Corporation of Comptometer Comptometer- true .owner of the- proceeds machine and the of sale. its practice
The whole-transaction is one of common in sales character, automobiles, of this sets, washing' television mai chines, and the like. trespass To treat this as a civil and to require proof arrangement between the Corporation Spokane Comptometer Corporation'of of Algonquin, Illinois, wholly inquiry.'Suffice irrelevant to the say question it to no one ever raised the of or ever Comptometer Corporation Algonquin, contended Illinois, proceeds owned the machine or the sale. Wallin,
State v. cited in dissenting point is not conceivable state facts in the instant case. dissenting: JUSTICE BOTTOMLY, MR.
I dissent. my opinion the information filed in this ease
In
and which
prosecution
allege
for this
does not
basis
the facts
requisite statute,
to conform with the
essential
according
testimony
that,
the state’s
witnesses,
Company
neither Steve Fowler nor the
Spokane, Washington,
were the true owner or owners of the
question
alleged
in the information.
stated
state’s evidence show
true owner was
Comp-
the.
Algonquin,
tometer
Illinois,
and not Steve
Comptometer Company
Fowler nor
of Spokane,
Washing-
Wallin,
332, 340,
ton. See State v.
I would reverse the discharge the de- information to dismiss the directions fendant.
MR. ADAIR: JUSTICE foregoing dissent-
I concur in MR. JUSTICE BOTTOMLY’S ing opinion. PUTERBAUGH,
LUELLA Respondent, Plaintiff Appellants. B. WILLIAM ASH al., et Defendants 9892. No. July 9, April 21, 1959. Submitted 1959. Decided