State v. Bonning
| Decision Date | 20 June 1921 |
| Docket Number | 4648. |
| Citation | 199 P. 274,60 Mont. 362 |
| Parties | STATE v. BONNING. |
| Court | Montana Supreme Court |
Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.
William T. Bonning was convicted of receiving stolen property, and from the judgment and an order denying a new trial, he appeals. Reversed and remanded.
John Collins, of Dillon, for appellant.
Otto A Gerth and L. A. Foot, Asst. Attys. Gen., for the State.
Defendant was convicted of the charge of receiving stolen property knowing the same to have been stolen. Motion for new trial was made and overruled. Defendant appeals from the judgment and order overruling motion for new trial.
In July, 1919, defendant conducted a store and butcher shop at Wisdom, in Beaverhead county. On or about the 12th day of that month he received from one Williamson the carcass of a heifer. It was contended by the state that Williamson stole the animal from Spokane Cattle Company, dressed it, and delivered it to defendant at Wisdom in pursuance of a previous agreement between defendant and Williamson. Williamson and one Wilkinson, who assisted him, were charged with grand larceny, pleaded guilty, and were sentenced to the state penitentiary. Shortly after the delivery of the carcass to defendant he also was charged with the larceny. He was admitted to bail, and while released on bail he fled from Montana to Milwaukee, where he was found living under an assumed name and was brought back to Montana. In October 1919, the information upon which he was tried and convicted was filed with the understanding that the charge of larceny should be abandoned.
One of the assignments is that the court erred in giving to the jury the following instruction:
"You are instructed that the flight of a person after a crime has been committed or after the commission of a crime with which he is charged is a circumstance tending to establish his guilt, not sufficient of itself to establish it, but a circumstance which you may take into consideration in considering whether he is guilty as charged; and if you believe from the evidence beyond a reasonable doubt that the defendant, after a crime has been committed or after the commission of a crime with which he is charged, fled from the state and tried to avoid arrest and apprehension, then you may take this fact into consideration in determining the defendant's guilt or innocence of the crime charged in the information."
At the time the instruction was offered objection to it was made in behalf of defendant for the following reasons: (1) Because this instruction assumes that the crime charged has actually been committed; (2) it assumes that said crime has been committed by the defendant; (3) this instruction is not warranted by any competent testimony or evidence contained in the record herein.
In the latter part of the instruction the jury is told that, if it believes from the evidence beyond a reasonable doubt that the defendant, after the commission of the crime with which he is charged, fled from the state, then such fact may be taken into consideration in determining defendant's guilt or innocence of the crime charged. Paraphrased, this is equivalent to instructing the jury that, if it believes from the evidence beyond a reasonable doubt that the defendant after he received the stolen property, knowing it to have been stolen, fled, then such fact may be taken into consideration in determining the guilt or innocence of defendant of the charge of receiving stolen property. The instruction assumes the commission of the crime charged in the information. If the crime charged in the information was one which could have been committed by any one of a large number of persons, and its commission had been established beyond question, then the evil of such instruction would have been insignificant and probably would have resulted in no prejudice, but, when applied to the facts of...
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