Lead Opinion
delivered the opinion of the court.
T. J. Newman was convicted of the crime of forgery, and has appealed from the judgment, and from an order denying his motion for a new trial.
The information in this case is in all substantial particulars the same as the one heretofore considered by this court in In re Terrett, ante, p. 325, 86 Pac. 266. The questions of the insufficiency of the information and the unconstitutionality of section 3078 of the Political Code, and section 3072 thereof, as amended by Chapter XCIY, page 166, of the Laws of 1903, are disposed of by the decision in that case.
At the trial the defendant objected to the introduction of any evidence on the ground that the information is indefinite, unintelligible, and uncertain. But this objection, coming after a plea of not guilty, was of course unavailable. ,The plea to the merits waived this objection. Defendant then moved the court to require the county attorney to state whether the prosecution was proceeding under section 3078 of the Political Code, or section 840 or 848 of the Penal Code. This motion was overruled. We know of no rule of law which requires the county attorney to state the particular section of the Code under which the defendant is being tried. It seems plain enough, from the information in this case, that it was drawn under section 3078 of the Political Code, and doubtless the trial court thought so. In any event, the defendant could not have been prejudiced by the court’s ruling; for, before the defense was commenced, it was definitely stated that the prosecution was being conducted under section 3078, above.
Certain bounty claim certificates were introduced in evidence over the objection of the defendant, and it is urged that the ruling of the trial court was erroneous, for the reason that no proper foundation had been laid. It is said that the state was proceeding upon the assumption that these certificates were public records, while in fact they were not such. But irrespective of whether they were public records, in every instance the certifi
A witness, J. L. Foster, was permitted to testify for the state, over the objection of the defendant, that his' name was not indorsed on the information. It does not appear from the record whether this witness was known to the county attorney at the time the information was filed. Section 1734 of the Penal Code provides: “The county attorney must indorse upon the information at the time of filing the same the names of the witnesses for the state, if known.” This section was considered in State v. Sloan, 22 Mont. 293, 56 Pac. 364, and State v. Schnepel, 23 Mont. 523, 59 Pac. 927, and the question now raised by defendant, determined by this court adversely to his contention. v*
The defendant Newman was a bounty inspector in Custer county and was charged with forging a bounty certificate. There is not any conflict in the testimony. S. A. Hotchkiss, a resident of Custer county, took to the defendant, as bounty inspector, three coyote skins, in order to receive the bounty upon them. There seemed, however, to be a well-founded opinion prevalent that, instead of defendant performing the duties of his office, as required by law, he was engaged in trafficking in bounty claims; so that when Hotchkiss took these skins to the defendant, instead of proceeding according to law to secure the bounty, he merely sold to the defendant the bounty claims at a discount of forty-five cents on each, signed in blank the affidavit of the person killing the animals, and an assignment of the claim in blank, and received his money for the claims. The defendant himself solicited one Herman to sign the resident stoekgrower’s affidavit, and this was done, although Herman says himself that he did not even see the skins. Defendant then filled up the affidavits, and made his own certificate as inspector, in which he certified that Hotchkiss had presented for examination, and that he as such inspector had examined and properly .marked, sixteen coyote skins. These papers were then taken to the
For the purpose of showing that the insertion of the figure. “16” instead of the figure “3” in the inspector’s certificate, as designating the number of skins presented by Hotchkiss, was not the result of accident, mistake, or inadvertence, but done malo animo, the state, over the objection of defendant, offered evidence to show a general plan or system by which the defendant was operating. The evidence consisted of bounty claim certificates and testimony of witnesses, showing other like transactions by Newman about the same time that the one was had with Hotchkiss. For instance: Homer Lewis presented three coyote skins at Newman’s place of business, and, although Newman was not present at all, sold the bounty claims to Newman through Newman’s sister, who acted for him, signed an affidavit in blank and a blank assignment of the claims, had his witness sign the resident stockgrower’s affidavit in blank, received $2.50 or $2.65 for each skin, and left, not having seen Newman at all. The affidavits of Lewis and his witness were filled up, and Newman attached his jurats as inspector, reciting in one instance that Lewis, and in the other his witness, had subscribed and sworn to the facts set.forth in the respective affidavits before tiim, Newman. Newman then filled up his own certificate as inspector, reciting that Lewis had presented nineteen coyote and three wolf skins, and that he had examined and properly marked the same. The county clerk’s certificate was procured, the blank
John M. Smith went before Newman, signed a blank affidavit as of a person who had killed certain stock destroying animals, the skins of which were then presented to Newman as such inspector, signed in blank an assignment of the claim for bounty, and received $13.65 for doing so, although as a matter of fact Smith had not presented any skins whatever for examination or marking. A resident stockgrower was procured to sign the affidavit, which, by reference to the inspector’s certificate, in effect stated that Smith had presented eighteen coyote and two wolf skins, and to the best of the stockgrower’s knowledge, information and belief the animals had been killed by Smith within sixty days preceding that date, and in Custer county. Newman then filled up these affidavits, and his own certificate as inspector recited that Smith had in fact presented to him as bounty inspector eighteen coyote and two wolf skins, and that he as such inspector had examined and marked the same as required by law. The county clerk’s certificate was procured to be attached, the blank assignment of the claim was filled out, and Etna Western named as assignee, and a claim against the state bounty fund for $64 duly presented.
Charles Hout presented the skins of two coyotes and one wolf to Newman as inspector, signed the affidavit and assignment of the claims in blank, had the stockgrower’s affidavit made by one J. H. Daly, received $2.40 for each claim for bounty on the coyote skins, and $4 for the bounty claim of the wolf skin. Newman made out his certificate, as inspector, that Hout had presented fourteen coyote skins and one wolf skin, the assignment of the elaixps was made out, and Etna Western named as assignee of the claims, the county clerk’s certificate procured, and a claim against the state bounty fund for $47 duly presented, though the total amount óf Hout’s claim was but $11, and this he had sold to the defendant for $8.80.
The defendant urges that the introduction in evidence of the certificates showing these transactions, particularly the certificates showing the transactions other than the one with Hotchkiss, was error prejudicial to the defendant. With this contention we are not able to agree. It is a well-settled rule of the law of evidence that proof may be made by the-state of facts tending to show a uniform course of action recently pursued — a system or plan on the part of the accused, for the purpose of showing guilty knowledge or criminal intent, and to negative the idea that' the particular act with respect to which the accused is charged with committing a crime was the result of accident,' mistake,' or inadvertence. In 12 Gyc. 411, the rule, is thus stated: “Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time- and of similar character is relevant and admissible to show the-knowledge and intent of the accused, and that the act charged: was not the result of accident or inadvertence,” and numerous, decisions are cited in support of the text. (See, also, 1 Wig-more on Evidence, sec: 304; Underhill on Criminal Evidence,, see. 423.) .
The defendant in his own behalf offered to. show that
An analysis of these offers shows that, according to the defendant’s own statement as contained in the offers, in addition to being guilty of the crime for which he was being tried, he was likewise guilty of subornation of perjury, if he procured Hotchkiss to swear that he, Hotchkiss, had killed sixteen coyotes, and had presented these skins to Newman as bounty inspector, when in fact Hotchkiss had killed but three, and had presented but three skins. (Political Code, sec. 3078.) He was also guilty of a felony in purchasing these claims against the state. (Penal Code, see. 136.) He was likewise guilty of perpetrating a fraud upon the state in presenting for bounty and procuring the payment of bounty, upon skins for which no bounty could be collected by law. It is perfectly clear from section 3071 of the Political Code, as amended by Act of March 6, 1903 (Laws of 1903, p. 166, Chapter XCIY), that the state’s bounty is only given to the party himself who kills a stock destroying animal, and if any such party sold the skin of the animal to Newman, he thereby waived his right to claim the bounty, and from that moment the state was not liable for bounty on such skin. In attempting to collect it, Newman was attempting to defraud the state out of the amount of such bounty. So, instead of defend
Complaint is made of certain instructions given by the court, and of the refusal of the court to give certain other instructions requested by the defendant. None of these instructions are set forth in the brief of appellant, as required by subdivision “b,” paragraph 3, Rule X, of the Rules of this court (30 Mont, xxxviii, 82 Pac. x), and, under the practice uniformly followed, these assignments will not be considered.
We have examined the other assignments made by appellant, but we do not find anything in them which would justify this court in interfering with the verdict of the jury or the judgment of the court. The evidence is amply sufficient to sustain the judgment. The defendant appears to have had a fair trial.
The judgment and the order are affirmed.
Dissenting Opinion
I dissent for the reasons stated by me in In re Terrett, ante, p. 325, 86 Pac. 266. The defendant is not, in my opinion, guilty of forgery.