9 Mont. 67 | Mont. | 1889
Lead Opinion
The defendant was indicted, tried, and convicted of the crime of stealing a steer, and from an order overruling his motion for a new trial he prosecutes the present appeal.
The six grounds upon which he relies for a reversal will be considered in the order in which they appear in his motion.
His first two objections are that the verdict is contrary to the law and the evidence; both of which may be summarily disposed of by the statement that the record contains none of the evidence used upon the trial, while the indictment is technically perfect, inasmuch as it follows the words of the statute, and the verdict is completely responsive so the indictment.
The third objection is that the court a quo erred in refusing to give the instructions asked by the defendant. An inspection of the record show's that the instructions requested by the defense had already, in substance, been given by the court, and we do not think, under the circumstances, that there w'as any error in the trial judge’s refusal to emphasize by repetition the charge already given in behalf of the accused. If the court, in substance, gives the charges asked, there is no error of which the accused can complain. (Boyce v. Cal. Stage Co. 25 Cal. 460; Territory v. Corbett, 3 Mont. 50.)
The fourth objection is to the refusal of the court to permit one of the grand jurors to answer the question as to whether he knew what was legal evidence. A motion had been filed to set aside the indictment because the grand jury had found the same upon illegal evidence. Section 145 of the Criminal Practice Act directs that in the investigation of any charge for the purpose of finding an indictment the grand jury shall receive none but legal evidence. In the very nature of things, the statute must be directory, and not mandatory. When we consider that the investigations before grand juries are often necessarily conducted by men not skilled in the law, and who are ignorant of the rules of evidence, it would be an impossibility to prevent evidence of this character from sometimes getting before the jury. It was never the intention of the law-makers that an indictment should
This brings us to the fifth ground in the motion for a new trial, and which contains the only serious reason why it should be granted. The defendant asked the court to instruct the jury that the prosecution should prove the value of the stolen animal, but the trial judge refused to do so, and instead thereof instructed the jury as follows: “In the crime of stealing a steer it is not necessary to prove that it is of any special value whatever, to constitute grand larceny, and this you may infer from any facts and circumstances which may be proven, in the absence of any direct evidence upon that point.” Defendant complains that this instruction misstates the law. By the laws of the Territory, larceny is divided into grand and petit. The theft of property under fifty dollars in value is petit larceny, while to steal property of that or greater value than that sum constitutes the crime of grand larceny. But whoever steals a steer or certain other enumerated animals, of whatever value, commits the crime of grand larceny; the punishment for which is particularly specified in the section defining the crime. It is undoubtedly the common-law rule that the property stolen must have some appreciable value to be a subject of larceny, and prior to the time of George IV. it was always necessary to state the value of the stolen property in the indictment, in order to distinguish between the two offenses of grand and petit larceny, the punishment for the two crimes being different, and this is the reason for the rule as stated by East, Hale, and Blackstone. But when the distinction between grand and petit larceny was abolished, during the reign of George IV., it is not necessary to state or prove the value of the article stolen. (Archbold’s Criminal Pleading and Practice, marg. p. 364. See “Form,” marg. p. 354.)
The last ground in the motion to set aside the verdict is evidently frivolous. Defendant insists that the court erred in denying the motion, “ for the reasons stated in open court.” Doubtless the reasons given by his counsel in open court why the verdict should be set aside were very convincing and conclusive to both the defendant and his counsel, but not having found them reduced to writing and contained in the motion, this court is relieved from considering them.
There is no error in the order appealed from, which is therefore affirmed, at cost of appellant.
Concurrence Opinion
(concurring). — I agree with the result in this case, but I am forced to dissent from the reasoning of the majority opinion upon the fourth objection raised upon the appeal. The majority opinion seems to decide that an indictment cannot be quashed upon the ground that it was founded on illegal testimony, under any circumstances, and declares: “It was never the intention of the law-makers that an indictment should be set aside for any such reason, else it would have been enumerated as one of the grounds for such a motion in section 206 of the
I accept, then, the conclusion that a motion to quash an indictment may be based upon the ground that the same “ was not found as prescribed by this act.” It is necessary now to determine what is meant by the expression, “the finding of an indictment.” The finding of an indictment is a proceeding which commences by an investigation undertaken by a grand jury, and based only upon legal testimony, and which ends by an indictment voted for by at least twelve members of the grand jury. It is the legally declared result of an investigation based upon legal evidence. If twelve members of the grand jury do not
The following,cases are in point: State v. Fellows, 2 Hayw. (N. C.) 340. The opinion is short, and is herein given in full, (Taylor, J.): “The person who is to be entitled to a restitution of possession, in case of a conviction on an indictment of forcible entry, cannot be a witness on the trial; and if the indictment has been found on his single testimony, it ought to be quashed.” In State v. Froiseth, 16 Minn. 296, a motion to set aside (or quash) an indictment was granted because the defendant was required by the grand jury to testify before them, and did so testify, concerning a charge against himself pending before them. The statute of Minnesota regulating the practice on and enumerating the grounds for a motion to quash an indictment is similar to the said section 206 in the Montana Compiled Statutes.
In People v. Moore, 65 How. Pr. 177, a motion to quash an indictment was granted upon the ground that it was improperly found. The motion was based upon affidavits showing that the wife of the defendant was introduced as a witness before the grand jury, without the consent and against the will of her husband, the defendant, and that her testimony was vitally material. The opinion of Osborn, J., in People v. Briggs, 60 How. Pr. 17, seems to present the proper rule, one which preserves the prer sumption of the validity of an indictment to the fullest extent warranted by law, and one which provides a remedy against the illegal action of a grand jury. The learned judge says (see p. 41): “The law requires, and the grand jury are always charged, that no indictment should be presented unless the guilt of the accused is clearly established by credible, legal, and competent testimony. It may be said, and truthfully, that no indictment, could ever stand if it was to be set aside because some illegal evidence was admitted. The grand jurors are not lawyers, and it often happens that questions are put and evidence elicited that would not be allowed in court. Shall every indictment, therefore, be set aside? I answer, by no means. 'Where there is
In the case referred to the learned judge granted the motion to quash the indictment. The motion was based upon an affidavit showing the same state of facts as appeared in the case of People v. Moore, supra. See, also, People v. Hulbut, 4 Denio, 135, in which that learned jurist, Mr. Justice Bronson, takes the same position. The authorities and citations seem to me conclusive upon the point that in some cases the law permits, and public policy demands the granting of a motion to quash an indictment upon the ground that the same was not properly found. I shall not undertake to enumerate the causes for which' such a motion would lie. Without expressing any opinion as to the propriety of examining the grand jury in support of such a motion, I am firmly convinced that the court below was correct in not allowing defendant’s counsel to ask the question which is made the ground of error in this appeal. The counsel asked the foreman of the grand jury this question: “Do you know what legal evidence is?” Whether or not the grand jurors did so know was immaterial. The only proper question of that nature would be: “Did the grand jury receive and act upon illegal evidence?” That question was put by the court, and was answered in the negative. There was no error in this ruling.