State v. Hill

126 P. 41 | Mont. | 1912

MR. JUSTICE SMITH

delivered the opinion of the court.

Defendants were convicted of burglary in the first degree. They appeal from the judgments of conviction.

The state appears to have proved beyond a reasonable doubt that on December 15, 1910, the residence of J. W. Speer, W. S. Frary and B. L. Johnson, at Great Falls, Cascade county, were burglarized. The defendants were accused of burglarizing the residence of J. W. Speer. They were arrested on December 26 at Billings. At or about the same time certain articles of personal property were found in a telescope satchel in an old boiler in Billings, to-wit, a lot of jewelry and an overcoat belonging to Mr. Speer; there was also found in Hill’s suitcase, a vial of gold-dust which was proved to have been taken from the Johnson residence in Great Falls; the suitcase was found in defendants’ room at Billings. Hill made the statement to chief of police Talgo of Billings that the vial had been given to Stanley in Butte a day or two before they left; several souvenir spoons, a pipe, a pearl-handled dagger and a gold fountain-pen were found in the telescope; a revolver was found in Hill’s suitcase; some keys and coins were also taken from his person; a fleurde-lis pin was taken from his necktie. Other articles belonging to residents of Billings were discovered. A chisel or large screwdriver was also found in the telescope. The souvenir spoons belonged to Mrs. Speer; also a bracelet, matchbox, chain and some baby buttons, which were in the Great Falls residence on December 15. A pair of sleeve buttons and the fleur-de-lis pin belonged to Mr. Shorts, a br&ther of Mrs. Speer; the dagger and fountain-pen belonged to Mr. Speer; these articles were also in the house in Great Falls on the night in question. Mr. Speer left his residence about noon of the 15th and returned between 12 and 1 o’clock the following morning. The window curtains in the house had all been pulled down and the lace curtains pinned together. Matches were lying all about the house. One of the coins found on Hill resembled a Canadian piece belonging to Mr. Shorts which was in the Speer residence on December 15. Defendants told sheriff Collins that Stanley had bought the vial of gold-dust in Butte on the evening of December 17. Hill’s shoes fitted perfectly certain shoe marks or tracks under a window of the Johnson home which had been pried open with a tool. Hill cut or mutilated the heels of his shoes in the county jail at Great Falls after his arrest. A window of the Frary residence had apparently been opened with a tool similar to the one used at the Johnson place. The testimony is in the record in the form of recital and is far from clear, but as we understand it, a Miss Lefler was at the Frary residence at the time of the burglary and was given some souvenir spoons belonging to Mrs. B. L. Johnson by one of the burglars, whom she thought she recognized as the defendant Hill. The Johnson house was also strewn with matches. A meerschaum pipe found at Billings belonged to Mr. Johnson. A pin in a' green case belonged to Gerald Frary. The Frary house was entered between 7:45 P. M. and 11:15 P. M. A chisel or large screw-driver was afterward found on a bed at Mr. Speer’s residence. This chisel fitted the marks on the window sills and window sash at both the Johnson and Frary residences. Certain keys found on Hill fitted the side door of Mr. Speer’s residence. Fromiller, a lodging-house keeper, and his daughter testified that the defendants occupied rooms at the lodging-house from December 11 to December 17. Miss Lefler thought she recognized Hill by his voice. The defense was an alibi. Stanley went upon the witness-stand but Hill did not.

1. It is said in the brief of counsel for the appellants that the state must prove the particular crime charged in the information before evidence of other crimes can be received. We are of [1] opinion that the crime charged, to-wit, burglary, was fully proven, and that the presence of burnt matches about the house, the condition of the window shades, and other facts and circumstances shown by the record, were sufficient to justify the conclusion reached by the jury that the crime was committed in the night-time.

2. The order of proof was within the sound legal discretion [2] of the trial court. We find no abuse of such discretion.

3. Evidence of other similar crimes, committed at about the [3] same time, if calculated to identify the perpetrator of the particular crime charged, or to show the intent with which an alleged criminal act was committed, or that it was part of a system or chain of similar crimes, is admissible. (State v. Hall, 45 Mont. 498, 125 Pac. 639.)

4. Appellants contend that the trial court erred in allowing Robert Pontet, the chief of police at Great Falls, to testify in regard to a large screw-driver which he received from Talgo and [4] took to the Johnson and Frary residences for experimental purposes. This testimony was, however, received without objection.

5. The state propounded this question to the witness Talgo: “I will ask you now, after you had them under arrest, if you found any property in Billings that you can identify at this time and when it was.” Answer: “It was about the 26th or on the 26th.” Defendants’ counsel moved to strike out the answer as not responsive to the question. We think the court was correct in overruling the motion. We are also of opinion that [5] the court committed no error in refusing to strike out the answer of the same witness, viz.: “The stuff was all found over there in the telescope; that when I first saw it.” The answer is not very clear to us, but the trial court saw and heard the witness on the stand and was the better judge of what disposition should be made of the motion, under the circumstances.

6. In view of the fact that a chisel was found at Mr. Speer’s residence which fitted the indentations and marks about the windows of the Johnson and Frary residences, we find no error [6] in the action of the court in permitting witnesses to testify concerning the manner in which these residences were entered. It is not entirely clear from the record that the chisel found on the bed was the same one to which the witnesses referred, but be this as it may,, we think the testimony regarding Hill’s shoes and other evidence found in the record also justified the court in admitting the testimony of which complaint is made.

7. The shoes belonging to Hill, as to which the sheriff testified, and the vial of gold-dust, were properly admitted in evidence. [7] They were sufficiently identified for that purpose, and it was for the jury to weigh the testimony concerning them and give to it such effect as they thought proper.

8. Mrs. Johnson testified that it was thawing when the impressions of the shoes were taken. It appeared that she judged from appearances. The testimony was properly admitted.

9. We think the testimony of Miss Lefler to the effect that Gerald Frary’s pin was in the Frary house was responsive to the question propounded.

10. The keys found on Hill were properly admitted in evidence.

11. The order of examination of Miss Lefler was within the discretion of the district court.

12. The court permitted the state to ask Stanley on [8] cross-examination whether he and Hill were pretty well acquainted with each other’s finances. No error.

13. Two judgments were entered, one against each defendant. They recite that the defendants were informed by the court of the nature of the information found against, them for the crime of burglary committed on the 15th day of December, 1910. Section 9376, Revised Codes, provides that when judgment upon a conviction is rendered, the clerk must enter the same in his minutes, stating briefly the offense for which the conviction was had. It is claimed that the judgments are void, because, as we understand the contention of counsel, they do not recite that the defendants were convicted of burglary in the first degree. The case of Ex parte Howard, 72 Kan. 273, 83 Pac. 1032, is cited to the point. The court there said: “The statute prescribes one penalty for certain acts denounced as grand larcenies and another penalty for certain other acts denounced, also, as grand larcenies. Hence the judgment must show in which one of the two classes of grand larceny the criminal act falls before a sentence under the indeterminate Act can be imposed. Not necessarily so under the pre-existing statute where the court determined the duration of the punishment.” As we have no indeterminate sentence legislation in this state, the foregoing case is authority for holding, as we do, that the judgments in question and the clerk’s minute entry were sufficient.

14. As no objections were made to the instructions in the court below, we are forbidden to examine them. (Rev. Codes, sec. 9271.)

The judgment against each of the defendants is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.