Territory v. Doyle

7 Mont. 245 | Mont. | 1887

The opinion states the case.

McLeary, J.

The appellant in this case was convicted of the larceny of two mules, and sentenced to seven years’ confinement in the territorial prison. The errors complained of will be examined seriatim.

1. It is alleged as an error that the court admitted in evidence a certain bill of sale found on the defendant when he was arrested. There was no error in admitting this bill of sale in evidence. The defendant had it in his possession, and it described the stolen mules which lie was driving. The fact that the brands did not exactly correspond, and that the vendee in the bill of sale was one Murphy, and not defendant, was properly left to the jury, with the other evidence tending to prove it to be a forgery; and whether it was or was not in the handwriting of the defendant, and whether or not he claimed any right to the mules thereunder, were circumstances for the consideration of the jury.

If the witness Bell, who testified in regard to the bill of sale, was not the person who made the bill of sale, or was supposed to be the maker, or if any other person named Bell made it, such matters could have been proven by the defendant; and these circumstances would have been properly submitted to the jury with the other evidence.

2. It is alleged as an error that the court permitted the jury to take with them in their retirement an account-book and the bill of sale found in defendant’s possession when he was arrested. It is argued that in civil cases jurors are not allowed to take with them account-books in their retirement, and that the same rule applies in criminal cases. We are not aware of any statute applying this rule to criminal trials; and in the absence of any statute forbidding such a practice, it remains within the discretion of the trial court, subject only to be reviewed on a manifest abuse thereof. Such a statute could not, from the nature of the case, apply to a criminal case. Besides, the book was not an account-book, properly so called, but a mere memorandum-book, containing a diary and a table of distances between certain points.

8. It is complained that there is no proof that a larceny had been committed in this case at all. After reading the testimony, it is hard to see how this objection can be maintained with so much apparent earnestness. The testimony of Kelly is plain and unequivocal that he turned these mules loose on the range in Wolf Mountains, west of Tongue River, and that they were missing from the range, and that he never saw them again till they were delivered to him by the constable in Miles City, eighty-five miles from his range on Tongue River; that ho never sold these mules, and was still the owner. The constable, Russell, testified that he found the mules in the possession of defendant, at a great distance from their range, in the Wolf Mountains. No juryman of reasonable intelligence could doubt that a theft had been committed.

4. It is further claimed by the appellant that the evidence is not sufficient to support the verdict. That the recent possession of stolen property is not of itself sufficient to justify a conviction of the possessor as a thief, is a principle very well settled, and the court so charged the jury. But other circumstances nearly always surround the transaction, to throw light upon the possession. And it is so in this case. The distance that the defendant was from the range on Tongue River, his having lately traveled from that country, and his making his way towards Deadwood, out of the territory, in the dead of winter, his having a forged bill of sale in his possession, and the unsatisfactory story that he told on the witness-stand, are all circumstances sufficient to justify the jury in finding a verdict of guilty. Besides, the witnesses and all the evidence were before the trial court, and that court not only refused a new trial, but inflicted much above the minimum penalty. We cannot, from the record,'find anything which would justify us in'reversing the decision of that court, which seems to us to have been properly exercised.

There being no error in the judgment, nor in the order refusing a new trial, they are both accordingly affirmed.

Judgment affirmed.

McConnell, C. J., and Galbraith, J., concur.