26 Mont. 71 | Mont. | 1901
delivered the opinion of the court.
' The defendant was convicted of the crime of grand larceny, -and sentenced to a term of two years at hard labor in the state
The order is "silent as to the grounds upon which the district court based its action. It is therefore incumbent upon this court to affirm it if it can be justified upon any onei of the grounds upon which the motion was predicated. (State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592.) Counsel for the state have given attention in their brief to two questions only, namely, whether the district court erred in admitting certain evidence, and whether the verdict was contrary to- the evidence. • We shall notice the latter question only, as we think that a correct answer to it is conclusive of this appeal. The rule has frequently been declared by this court that an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, and that where there is a substantial conflict in the evidence the action of that court in granting or denying the application will not be disturbed on appeal. (Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407.) If, however, there is no- substantial evidence to support the verdict, a different rule applies. In the latter case it becomes the duty of the trial court, as a matter of law, to vacate and set aside the verdict and if it refuses to do so its action will be held erroneous. (State v. Welch, 22 Mont. 92, 55 Pac. 927.) The evidence contained in the record presents a case to which the second rule is applicable. Indeed,. the request made by the defendant at the close of the state’s case that the court direct a verdict of acquittal should have been granted; because there was then no evidence before the jury- to warrant' a. verdict of .guilty, ■ Nor did-the-defendant thereafter- by his
•■.The facts shown by tbe evidence are as follows: .On the ■evening of September 17, 1900, Mr. Roosevelt, candidate: for the vice presidency of tbe United States, addressed tbe citizens of Lewis and Clarke county at tbe city of Helena. A procession, it seems, was formed to conduct tbe speaker to tbe Auditorium, tbe place of the meeting. Crowds of people were collected upon the streets along tbe line of march. One South-mayd was standing with bis daughter among a crowd at tbe ■corner of.Main street and Sixth avenue, and, as tbe carriage in which Mr. Noosevelt was riding passed this point, South-mayd stepped into tbe street near the line of march, in order to obtain a better view. He then held bis purse clasped in bis left band in bis trousers pocket. Tbe purse contained, among ■other things, two United States silver certificates of tbe denomination of $10, tbe subject of tbe larceny charged in the information. While Southmayd was standing among tbe crowd, looking on, some man jostled him severely, passing on bis right towards tbe front, and then pressing backward towards bis left. At tbe same time be felt a tugging at bis left arm, as if some one were trying to lift bis band from bis pocket. Turning in that direction, be saw the defendant standing at his left, and by him another person by tbe name of Hall. He did not discover who was tugging at bis arm. His band was not removed from bis pocket by tbe tugging, and after it was over be stili held bis purse in bis pocket as before. When tbe carriage bearing Mr. Roosevelt bad passed, Southmayd returned to tbe sidewalk where be bad left bis daughter, and walked with her immediately to tbe Auditorium, about three blocks distant. Tbe doors of tbe building bad not been opened when they arrived, and they stood a few minutes with others waiting for admittance. At this time. Southmayd missed his .purse. Looking ■about .him, be saw; none but familiar-faces. Other persons during, the same evening, while, on-the streets or in attendance
The theory of counsel for the state at the trial was that the defendant and the persons arrested with him were professional pickpockets following the itinerary of Mr. Roosevelt for the purpose of plying their trade in the Crowds which gathered to hear him; that they were engaged in the common purpose for
The order complained of is therefore affirmed.
Affirmed.