prepared the following' opinion for the court:
The defendant was convicted upon an information accusing him of the crime of robbery, and charging his prior conviction of a like offense as the ground for a heavier punishment. He was sentenced to imprisonment at hard labor for thirty years. This appeal is from the judgment and an order denying a new trial.
A man’s name is simply the sound or sounds by which he is commonly designated by his fellows, and by which they distinguish hilm. It is a mere means of description. Sometimes a man is known by several different names, and it was formerly the custom, in drawing indictments, to charge him under all the names by which he was known; connecting them with the words "alias dictus" or with simply "alias.” These Avoids mean “otherwise called” or “otherwise.” The county attorney attempted to be linore certain than the statute requires. He charged the defendant, evidently, by three names by which the latter had been known. Had ho charged the defendant as George Howard, stating that, h'is true name was unknown, the statute would have been met, and such is believed to be the better practice.
It is readily perceived that in a given case a defendant may be prejudiced by the use of the alias dictus by which a number of names may be joined, and thus all read to the jury; suggesting to them that the defendant has been using assumed names. But no such prejudice resulted in this case. A like point Ayas decided in People v. Maroney,
Another said that he had read the newspaper accounts of the alleged robbery, and had formed an opinion therefrom, but not a fixed one. Upon re-examination he said he could entirely discard the opinion then formed, and could give the defendant as fair a trial as if he had never heard of the case. This juror was clearly competent. (Penal Code, Sec. 2051; State v. Mott,
It is contended by the defendant that it was error to admit in evidence certain testimony concerning the details of the attempted “train robbery.” “Bobbery is the felonious taking of personal property in the possession of another, from his person
Defendant and Cole entered into a conspiracy to commit a felony, namely, the “train robbery,” and set forth to carry it out. ■ While actually engaged in an attempt to carry out the conspiracy, defendant committed another felony — the robbery of Bell — which, as it transpired, w;as but a part of the main transaction. The evidence objected to was clearly admissible.
The defendant objected to the introduction of this letter on the ground that it was not sufficiently identified, and was incompetent, irrelevant and immaterial. The witness Cole testified that he was familiar with defendant’s handwriting, and, after exalmining the letter, said: “It looks like his handwriting, and that is his signature there. That is all I can say. The signature and the body of the letter are the same handwriting.” The first objection, therefore, is not well taken. (Stale v. Ma-honey, 24 Mont. 281,
The defendant argues that there was no proof of the authenticity of the commitment, and further that the defendant was not identified as the man to whom it refers. Upon the record, these objections are captious. Evidently the committment offered was the original. At any rate, no objection was made to the effect that it was not. The court doubtless inspected it when the objection was made, and was satisfied as to its sufficiency. Conley identified the defendant as the one who had been confined in the penitentiary for robbery committed in Silver Bow county. The defendant was committed on October 26, 1895, and released January 26, 1903, which exactly corresponds with the requirement of the committment. Other witnesses testified that they knew the defendant on trial while he was in the penitentiary. The proper way to prove the defendant’s prior conviction was not by the introduction of the committment, but by the record of the judgment. (Code of Civil Procedure, Sec. 31’93.) But this was also done. The defendant therefore has no1 cause for complaint on this phase of the case.
It is also insisted that the following question tended to degrade the witness: “You are in jail at the present time charged with holding up Swanson’s saloon ?” The witness answered in the affirmative. In the light of his previous testilmony, we do not think the question tended to degrade him. On direct examination he had testified as to his confinement, in the state prison, and that he was at the time of the trial confined in the jail. Nor, under the circumstances, was the allowance of the question prejudicial as not proper cross-examination. (Matusevitz v. Hughes,
The verdict was returned April 10, 1903. Three days later, when the defendant was brought into court to receive his sentence, his counsel asked that the question of the defendant’s sanity be inquired into by a jury as required by law. The court denied the request, and the defendant assigns error.
Section 2521 of the Penal Code provides: “When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to' be submitted to a jury, which must be drawn and selected as in other cases; and the trial or. the pronouncing of the judgment must be suspended until the question is determined by their verdict.” The doubt mentioned in the above section is one arising in the mind of the presiding judge, and much must be left to his judicial conscience. Unless
We have given diligent attention to all other assignments of error urged by defendant’s counsel which are argued in his brief, but find none prejudicial to defendant. It follows that the judgment, and order should be affirmed.
Por the reasons given in the foregoing opinion, the judgment and order are affirmed.
Rehearing denied.