120 P. 808 | Mont. | 1912
delivered the opinion of the court.
The defendant was convicted of the crime of grand larceny and appeals from an order denying him a new trial.
On January 17, 1911, Laura Kirkendall committed the crime of grand larceny by taking some $200 from the person of one Lester or Nestor Hill, at Sand Coulee. The theory of the state was that this defendant and Laura Kirkendall were jointly concerned in the commission of the crime, and they were informed against by one information. At the time of the trial the charge was dismissed as against the Kirkendall woman and she was called as the chief witness for the state. Upon the witness-stand
1. The first contention of this appellant is that' the evidence offered by the state, independently of that given by the accomplice, is insufficient to tend to connect him with the commission
2. But there is a stronger reason, in our opinion,’ why a new trial should have been granted. The testimony of the witness Laura Kirkendall was absolutely indispensable to a conviction. Without it there was not any substantial evidence of defendant’s guilt. Upon the trial of this case she was contradicted in many particulars by other witnesses for the state, and after reading' her testimony as a whole, one is impelled to the conclusion that if any part of it is true, it is that portion found in the conclusion of her cross-examination, as follows: “I had been drinking a lot both in Great Falls and 'at Sand Coulee, and had drank so much that I don’t remember what I was doing. I don’t remember what the room looked like that we were in at Sand Coulee. I had been drinking so much at the time that I could not be sure now as to just what did happen and do not know just what did happen in Sand Coulee or how these events occurred.” After the defendant had been convicted, this same witness, Laura Kirkendall, made, affidavit in support of his motion for new trial, in which she stated that the testimony given by her upon the trial, in so far as it tended in any way to connect the defendant with the commission of the crime, was absolutely untrue. She makes some attempt at explanation of her conduct upon the trial, but that need not be considered here. Suffice it to say, the conviction as it now stands may well be said to rest solely upon the testimony of a self-confessed perjurer.
In view of the requirements of our statute that a conviction in a criminal ease can only be had when the evidence of defendant’s guilt is so strong and convincing that it may be
The order is reversed, and the cause is remanded for a new trial.
Reversed and remanded.