State v. Akers

• Decision Date: 13 January 1938
• Docket Number: 7717.
• Citation: 76 P.2d 638,106 Mont. 105
• Parties: STATE v. AKERS.
• Court: Montana Supreme Court

76 P.2d 638

106 Mont. 105

STATE v. AKERS.

No. 7717.

Supreme Court of Montana

January 13, 1938

Rehearing Denied March 7, 1938.

Appeal from District Court, Roosevelt County, Fifteenth District S.E. Paul, Judge.

John Akers was convicted of grand larceny, and he appeals.

Affirmed.

ANGSTMAN and ANDERSON, JJ., dissenting.

John L Slattery, of Great Falls, for appellant.

Harrison J. Freebourn, of Helena, and Hugh N. Marron, Erick Moum, and Frank M. Catlin, all of Wolf Point, for the State.

STEWART Justice.

Defendant has appealed from a judgment of conviction of the crime of grand larceny, from an order denying his motion for a new trial, and from an order denying his motion to set aside the judgment for want of jurisdiction.

The crime was committed in Roosevelt county on January 23, 1935. The subject of the alleged larceny was a mare, the property of A. B. Summers. The evidence is substantially the same as that in the companion case of State v. Akers, No. 7725, Mont., 74 P.2d 1138, decided January 3, 1938, and not yet reported [in State Report], except that it relates to a different animal belonging to a different owner. There was evidence that it was taken near the same time and under the same circumstances as the horse involved in case No. 7725, and reached the same destination in Wisconsin.

As all but one of the contentions of the defendant have been considered and decided in the companion case No. 7725, and as the evidence sustaining the conviction here is the same or as strong as in the other case, we shall consider only the plea of defendant that he has already been in jeopardy and has suffered a conviction in case No. 7725 for the same offense.

As in the companion case, Steele was the important witness in this case. The information charged six defendants with larceny, viz.: Ernest Summers, Wallette, Hamilton, Sherill, Steele, and Akers. Before trial the action was dismissed as to Summers, Wallette, Hamilton, and Sherrill. Steele was granted a separate trial, and the action proceeded against Akers alone.

The evidence shows that the two horses involved in this and in the other case ranged on the open range in the same vicinity but not together. They watered at the same place, but were never seen grazing together. They were both stolen on the same day and both were actually taken from the range by Steele.

On January 23, 1935, the parties gathered at the Buckles place and, according to the testimony of Steele, Akers went west from the Buckles house and he, Steele, went east. Both rounded up some horses and they were placed in the Buckles corral, and then all but seventeen were cut out. In explaining where the two horses were stolen, Steele said that the first horses he came to when he traveled east were about one mile east of the Buckles house. In that bunch, consisting of about ten head, was the gray gelding involved in case No. 7725. He drove these toward the Buckles house about one-quarter of a mile. He then went after a bunch of about fifteen head further south, about one-half mile from the first bunch. These he drove toward the house about one-fourth of a mile, and then went south after another bunch of ten head which were about three-quarters of a mile from the Buckles house. The mare involved in this action was in this third bunch. They were all driven into the corral together.

The court submitted the question whether there was in fact more than one taking to the jury under instructions to the effect that, if the theft of the two animals were at different times and at different places, each would be a separate offense, whereas, if the theft of both were parts of one act of stealing, they would constitute but one crime. The court instructed the jury to make a special finding on the question of jeopardy and former conviction. In accordance with this direction, and in addition to a general verdict of guilty, the jury brought in the following verdict: "We, the jury, duly impaneled and sworn to try the issues in the above entitled case, find for the State against the defendant John Akers, that he had not been formerly convicted of the same offense, and has not been once in jeopardy."

The instruction relative to jeopardy and former conviction and the special verdict took into consideration the general principle that, where two articles are taken at different times and different places, there may be but one larcenous act if the asportation of the several articles were in fact one transaction. In determining the applicability of this rule to the facts in this case, we are directed to the case of In re Jones, 46 Mont. 122, 126 P. 929, 930, which involved the question whether the taking of several articles from a store on different days constituted a series of petit larcenies, or one crime of grand larceny. The matter was resolved in favor of the latter theory. The court based its decision upon the ground that the several takings amounted to one transaction. It said: "Each case must be determined upon its own special facts and circumstances. If, as it is said by some of the courts, the different asportations are prompted by one design, one purpose, one impulse, they are a single act, without regard to time." We seriously question the accuracy of the conclusion reached, even as applied to the facts then under consideration. We do not believe the reasoning of that case can be relied upon to sustain the position of the defendant in this case.

The facts and circumstances in the present case are almost identical with the facts in the case of State v. English, 14 Mont. 399, 36 P. 815. The decisive question was the same as is presented here, and the persuasive analogy is too striking to be overlooked. The syllabus in the English Case states the matter tersely and to the point, and is borne out by the facts of the case, viz.: "Where defendant and another stole a steer from the herd of one owner, and about an hour after stole a cow from the herd of another owner, driving both off together, the stealing of each animal was a complete and independent offense, and an acquittal as to the theft of the steer is not a bar to a prosecution for the theft of the cow. Nor is the defense of an alibi, established upon the trial for larceny of the steer, res judicata that defendant was not present when the cow was stolen."

The peculiar facts of the present case point the way for us here. Each of these horses was in a separate group; the gelding was in the first group, and the mare in the third group. The witness Steele testified that he took actual control of the first group, drove them a quarter of a mile, then left them and proceeded to get a second group started, and then finally the third group was rounded up. Each horse was in the constructive possession of its owner on different parts of the range. The two horses were not ranging together and were only brought together by the unlawful act of the defendant.

In addition to the single design, in order to apply the "one transaction" rule, the several subjects of the larceny must be so related in point of time and position as to make it physically possible for actual control to be exercised over both at the same time. In this case, as in the English Case, the fact that each of the two animals was in a different group and was on a different part of the range made it impossible for the actual control over the animals to be simultaneous.

To disregard the obvious facts of this case to the extent of holding that the taking here was merely one act or one transaction would lead to the absurd result that the defendant could have rounded up and assembled all of the range horses in Northeastern Montana into one corral, and thereafter sold them in one lot with the final result of having committed only one crime and without peril of more than one penalty. Such a result would not appeal to the ordinary sense of justice, and certainly would not tend to promote law enforcement or discourage stock rustling.

The judgment and orders appealed from are affirmed.

SANDS, C.J., and MORRIS, J. concur.

ANGSTMAN Justice (dissenting).

I dissent. I think defendant's plea of once in jeopardy and former conviction should have been sustained as matter of law. I am aware that these pleas raise issues of fact (section 11928, Rev.Codes), and that the pleas cannot be determined against the defendant except by verdict of the jury. State v. O'Brien, 19 Mont. 6, 47 P. 103. But if the evidence is in such condition as to leave no doubt in the minds of reasonable men that the pleas are good, then the court may and should determine the question in favor of defendant without submitting the question to the jury (State v. Nunnelly, 43 Ark. 68), the same as it should any other material issue. I think such is the state of the record here, and that the majority of the members of this court are confused as to the law applicable to the facts, rather than in seeing in the facts any different situation than I do.

Here according to the State's evidence, the defendant and Steele agreed between themselves to steal horses. About a month before the actual theft they and Marsh met at Steele's place. Marsh indicated to them that he desired to buy some horses. A bunch was then rounded up and looked over. Among them was the mare involved in this action and the gelding involved in case No. 7725. Marsh advised that he had bills of sale that corresponded with the brands of some of these horses and, according to the State's evidence, defendant thereafter ordered Steele to keep these horses in close range, as they might be ready to ship any time. Pursuant to this plan, Steele, on the day of the alleged offense, rounded up these horses as a part of this plan, and, after they were assembled into one compact bunch, they were...