125 P. 639 | Mont. | 1912
delivered the opinion of the court.
Defendant appeals from a judgment of conviction of grand larceny, and from an order denying his motion for a new trial.
1. The charging part of the information reads as follows: ‘ ‘ That on or about the 28th day of February, 1908, the defendant
2. It appears from the state’s evidence that Hall Brothers, a corporation, was engaged in the insurance, real estate and other business in Butte; the defendant was its president and also attorney in fact for one Frank E. Southmayd, who resided in Wisconsin. On August 29, 1906, Christopher Stephens, brother of Maggie Stephens, visited Hall Brothers’ place of business and
Nellie Jory,. bookkeeper for Hall Brothers, testified: “The method of keeping account as to those outstanding notes of
There is an abundance of evidence in the record to warrant the conclusion that Hall Brothers, the corporation, was simply a cloak or cover for the operations of the defendant Sam A. Hall. The latter testified: “Whenever I needed any cash I drew on the account of Hall Brothers and charged myself with it; when I needed money I got it there because when I got money in return I paid it back there. As each one of these notes was made it was made to Frank E. Southmayd. The loans were taken in his name for the purpose of convenience and to save a heavy tax and I was attorney in fact for him. Whenever one of these parties, for instance, Mr. Wynne, or other parties would come in and pay the principal on a note, that would be deposited at the Daly Bank in Hall Brothers’ account. I always had access to that bankbook. I was not handling the account with the bank but I was
Wigginton testified: “Every nickel that was paid in there Hall knew about. I think there never was an instance to my knowledge where the party that held the note was notified that the principal was paid. I suggested to Hall that money was paid in by a certain party and this money should be paid over. He was highly insulted and said, ‘I will guarantee every note that is sold in that office; it is none of your business.’ I know that when Wynne came in and paid his note, we made an entry in the Wynne account showing that he had paid the note, but we made no entry in the Stephens account showing that $564.50 or any other sum was received for Stephens’ benefit upon the Wynne note. I called Hall’s attention to the principal on these notes being paid, and told him they should be advised of the payment of the principal. I did not see anything crooked in Hall’s buying an automobile or piano and other transactions, but the money was coming out of Hall Brothers; I knew that the money should have been in Hall Brothers and should have been paid to the people to’ pay the notes, the holder of the notes; it was to them the money should have been paid. I called his attention to it two or three times — to various notes.”
3. It is contended that the court erred in admitting the Wynne note in evidence for the reason that it was not shown the defendant had indorsed it or delivered it to Stephens. This contention
Again it is argued that there is no evidence to prove that any money was ever collected on the note. We have quoted sufficient testimony, we think, to show that this point is not well taken. Let us make it plain from the outset that in our judgment there is ample evidence that the corporation Hall Brothers, in all the transactions set forth in the record, was simply a disguise for Sam A. Hall; and that his own confession to Stephens was sufficient proof that he actually and personally received and converted the principal of the Wynne note.
4. It is contended that the court erred in allowing the state
The district court of appeals of California in the Ruef case (People v. Ruef, 14 Cal. App. 576, 114 Pac. 48, 54) said: “The rule is that where several crimes are connected as part of one scheme or plan, all of the same character, and tending to the same common end, they may be given in evidence to show the process or motive and design leading up to the particular crime for which the prisoner is being tried, and thus directly tending to show logically that the crime in question was a part of such common scheme. If the several crimes are part of a chain of cause and consequence so linked as to be necessarily connected with the system or general plan, they are admissible.” The case of People v. Hill (Cal.), 34 Pac. 854, is not in point. That case involved two separate and distinct transactions, neither of which could have shed any light upon the other.
In the case of People v. Bartnett (Cal.), 113 Pac. 879, cited by appellant, the defendant was accused of embezzling certain bonds. The court compelled the prosecuting attorney to elect which particular offense he would rely upon, and afterward instructed the jury that if they believed the defendant had aided or abetted
5. The error, if any, in permitting the witness Atkins to testify that Stephens demanded payment of his note and asked to see his receipts, was immaterial and nonprejudieial in view of defendant’s admission to Stephens that he had collected all of the notes, and his virtual confession while a witness, that the proceeds thereof had been received and converted.
6. The witness Annie Harrington testified, over objection, that she loaned the defendant personally $2,980; that he gave her a paper that was worthless, that was “no good.” She appears not to have been very alert mentally. Two real estate mortgages, one for $184 and another for $1,500, were received in evidence. Both ran to Frank E. Southmayd, and were assigned by Hall, as attorney in fact, to Daniel D. Harrington, a brother of the witness. She testified that the principal of neither mortgage had been paid over by Hall to her brother. It was shown by the records in the office of the county recorder that defendant had satisfied the $1,500 mortgage of record, certifying that it had been fully paid. While the scheme to defraud disclosed by the foregoing evidence is somewhat different, in some of its details, from that practiced upon Stephens and others, we are of opinion that it falls within the general plan that was being carried forward by the defendant, and the evidence was competent.
7. There was no prejudicial error in the action of the court in admitting in evidence the mortgage for $184 above mentioned, and the assignment thereof to Harrington. No showing was made that Hall had received the sum secured by the mortgage. The evidence was simply immaterial.
8. We think the $1,500 mortgage and the assignment thereof were properly admitted in evidence. The whole affair discloses
9. There is no merit ip the contention that the court erred in admitting in evidence certain receipts produced by the witness Atkins, purporting to show that a note executed by him to Southmayd and afterward transferred to Christopher Stephens had been paid. As we have already stated, Hall’s confession to Stephens that he had collected and converted the proceeds of all the notes held by the latter, sufficiently established that fact. Moreover, we are of opinion that in the light of the evidence as to the manner of operations employed by the defendant, through the medium of Hall Brothers corporation, Wigginton and his sister, the receipts were competent evidence of the fact of payment.
10. The witness Frances J. Atkins, wife of C. D. Atkins, testified that having paid a note to Hall she demanded the “original,” but he gave her a “renewal”; that he promised to send the “original” by mail but never did so. She afterward asked Wigginton if he knew where “the original” note was, and he
11. When the defendant took the stand as a witness in his own behalf he made an effort to create the impression that Wigginton
12. Defendant testified, without objection, on cross-examination,
14. Defendant, having testified that he did not notify any of the holders of notes that the same had been collected; that “the
15. Wigginton’s testimony that Hall Brothers were short $39,000 or $40,000 was competent to corroborate Stephens’
16. Specifications of error Nos. 32 and 33 relate to testimony to which no objection was interposed at the trial.
17. The state’s witness Karsted testified that he had had dealings with Hall. He was then requested to state what those dealings were. Over objection he answered: “I loaned out some money, about $3,000, to Mr. Hall and he never paid back a cent. He admitted that he collected money for me or on my account. I asked him point blank whether he had collected money for me and he said he had. He collected from a number of loans that I had — a number of parties in the city to whom I had given out loans — that is, which he had given out loans.” The witness
18. Karsted also testified on cross-examination, in answer to the inquiry: “Mr. Hall admitted that the payments came to him?” “He did, and he admitted that $6,000 of my mother’s notes had been paid in and he could not show the money — six thousand of my mother’s.” The court refused to strike the answer, and it is now urged that in his direct examination he had said nothing about his mother’s money. The answer was not strictly responsive to the question, but we find no prejudicial error.
19. The witness, on redirect examination, was asked: “What notes did you refer to as your mother’s notes?” He answered: “I have a list of them here; I made the memorandum myself and know it is correct. ’ ’ He was then, properly, we think, allowed to read off a list of the makers and amounts of twenty promissory notes, aggregating $5,069.12. The objection becomes altogether immaterial when we reflect that Hall admitted a shortage of some $40,000, and the witness Karsted testified that he admitted to him that he had collected the principal on all of the notes mentioned.
20. Specification of error No. 39 goes to the refusal of the court to direct a verdict of acquittal. What is hereafter to be said,
21. It is contended that the court erred in neglecting and refusing to instruct the jury as to an essential element of the crime of larceny, to-wit, the felonious appropriation of the property. Error is assigned on the refusal to give three instructions which are claimed to correctly state the law relating to the necessary ingredients of the crime. The offered instructions were numbered 2a, 4a and 5a. 2a did not directly raise the
The best that can be said of 5a is that it suggests the necessity of instructing the jury that a felonious intent is necessary to constitute a crime. The first part of the instruction is so framed as to be confusing and almost meaningless. Certain words appear to be omitted therefrom. The expressions “simple larceny’’ and “embezzlement” are found therein, but the crime of which the defendant was accused is not mentioned, save in the last sentence, and it is there coupled with the declaration that the “talcing or conversion of personal property which renders a person guilty of simple larceny or of embezzlement is a feloni-ously taking or conversion.” The defendant was not charged with a felonious “taking.” We think the court was justified in refusing this instruction, for the reason that, if given, it would have had a tendency to confuse the jury, rather than to enlighten them.
Counsel argue: “The court’s attention, by these instructions,
For the purposes of this action we shall assume that it is the duty of the trial court to charge the jury of its own motion in a criminal case, and that the charge should substantially cover the main issues, so as to enable the jury to intelligently decide them. This does not mean, however, that the court must, without request, cover every point in the case, or explain every issue, or deliver a charge so comprehensive in scope as to be beyond fault or criticism. If such were the law very few criminal convictions could stand. In the instant case, the court, of its own motion, gave many instructions to the jury. The information charges that the defendant feloniously appropriated the money of Maggie Stephens to his own use. The jury were instructed (1) that his plea of not guilty made it incumbent upon the state to prove all of the material allegations contained in the information beyond a reasonable doubt, and that the evidence must be sufficient to establish every element of the crime charged; (2) that if they entertained any reasonable doubt upon any single fact or element necessary to constitute the crime, it was their duty to acquit; (3) that in every crime there must exist a union or joint operation of act and intent. The court also defined the crime of larceny as bailee in the words of the statute. As is well known to the profession, this definition is defective in that it omits any reference to a criminal intent. Grand larceny was also defined. Altogether nineteen instructions were given. So it appears that the court made a reasonable effort to advise the jury of the issues in the case and the constitutional rights of the defendant. They were also given the usual and ordinary rules for their guidance
22. Defendant’s instruction No. 3a was refused. It reads as follows: “You are instructed that considerable evidence was admitted with reference to transactions other than the larceny
23. Again, it is contended that the verdict is not supported by the evidence, in that there was no showing that the defendant,
24. Finally it is urged that there is not any testimony in the record to show that Maggie Stephens did not consent to the appropriation by the defendant of the proceeds of the Wynne note. Maggie Stephens did not appear in the case as a witness or otherwise. Her brother was her agent with full power to act in her behalf. He purchased the notes and collected the interest. He testified that the defendant was never given authority to convert the proceeds of any of the notes to his own use. Hall virtually confessed as much in the conversation with Stephens to which we have just referred. He was palpably guilty of the •crime charged, and although there were many technical errors committed at the trial, we are clearly of opinion that he was properly and justly convicted.
The judgment and order are affirmed.
Affirmed.
I cannot agree with my associates in the disposition made of this case. I think the defendant is entitled -to a new trial. In my opinion the evidence does not show that the money alleged to have been appropriated by the defendant belonged to Maggie Stephens. To sustain the verdict it was indispensable that this fact be established.
Rehearing denied June 4, 1912.