198 P. 137 | Mont. | 1921
prepared the opinion for the court.
Defendants were charged in the district court of Flathead county with the larceny of one steer calf, the property of A. M. Moore. Trial was had and defendants convicted. Motions in arrest of judgment and for a new trial were denied-Defendants appeal from the adverse order in each instance and from the judgment.
It appears from the evidence that about June 29, 1917, the defendants went through Niarada, in Flathead county, traveling north through the Little Bitter Root Canyon, upon a fishing excursion. They were seen going and returning. Over a considerable portion of the territory lying between Niarada and Marion, through which defendants traveled, and particularly near what is known as Lang’s Hill, many head of cattle
The evidence discloses further that about July 6 or 7, 1917, in a conversation between witness Joe Shilts and defendant Schrack, the defendant made the following statement: “This time they got me for killing a steer instead of a deer, and I will leave it go at that, and it will only cost me $40.” And the day previous to the trial defendant Schrack said to the same witness: “Well, all I told you, that they had me for killing a steer instead of a deer.”
The foregoing epitome views the evidence in the light most unfavorable to the defendant Schrack.
Defendant Rogers accompanied Schrack on the trip to the Bitter Root and return. In addition to this fact, witness Martin testified that defendant Schrack told him they used Schrack’s team and Rogers’ wagon, from which we conclude there is no evidence to justify a suspicion of his guilt, must less his conviction.
Having in mind this rule, together with the further declaration so long recognized by this court that “mere suspicions or probabilities, however strong, are not sufficient basis for a conviction” (State v. Brower, 55 Mont. 349, 177 Pac. 241; State v. Sieff, 54 Mont. 165, 168 Pac. 524; State v. McCarthy, 36 Mont. 226, 92 Pac. 521), we conclude that the testimony sup
In view of the foregoing, we think consideration of other assignments unnecessary and deem the evidence insufficient to justify a conviction, and recommend that the judgment and order appealed from be reversed and the cause remanded, with directions to the court below to dismiss the information.
Per Curiam : For the reasons given in the foregoing opinion, it is ordered that the judgment and order of the lower court be reversed, and the cause remanded, with directions to dismiss the information.
Reversed.