State v. Cassill
| Decision Date | 30 September 1924 |
| Docket Number | 5454. |
| Citation | 229 P. 716,71 Mont. 274 |
| Parties | STATE v. CASSILL et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; George B. Winston, Judge.
C. H Cassill and Scott K. Cassill were convicted of larceny, and they appeal. Affirmed.
C. A Spaulding, of Helena, for appellants.
Wellington D. Rankin, Atty. Gen., and E. J. Cummins and S. P. Wilson both of Deer Lodge, for respondent.
HOLLOWAY J. C. H.
Cassill and Scott K. Cassill were convicted of grand larceny, and appealed from the judgment.
The information contained two counts. In the first it was charged the defendants, as bailees, feloniously took and converted to their own use, money, and securities of the value of $10,000, the property of the First State Bank of Ovando, of which institution they were, respectively, the president and cashier. It is unnecessary to attempt an analysis of the second count. At the opening of the trial counsel for defendants requested the court to compel the state to elect upon which of the counts it would proceed. The request was denied, and error is predicated upon the ruling. At the conclusion of the evidence the court withdrew the second count from the jury's consideration, so that if error was committed in refusing to compel the state to elect, it was cured. 31 C.J. 791. Defendants offered instruction I as follows:
"You are instructed that all evidence which tends to show the commission of the crime charged in the second count of the information, but which fails to show the commission of the crime charged in the first count of the information, is to be entirely disregarded by you in your deliberations."
The offered instruction was refused, but instruction 4 was given as follows:
etc.
Error cannot be predicated upon the giving of instruction 4 since there was not any objection interposed to it at the time the instructions were settled; but defendants insist that the court erred in refusing to give their offered instruction I which, they argue, would have been more effective in accomplishing the purpose intended, namely, to obliterate from the minds of the jurors, as far as it was possible to do so, any impression which may have been made by evidence applicable only to the second count of the information. If the offered instruction had been given, the jurors would have been required to segregate the evidence applicable only to the second count from all the other evidence, since the objectionable evidence was not pointed out specifically, and to accomplish this end the jurors would have been called upon to determine what evidence was applicable only to the second count, and that would have involved a decision of a question of law, a decision which the jurors were not competent to make and could not be required to make in a case of this character. Hence the court did not err in refusing the offered instruction. State v. Trosper, 41 Mont. 442, 109 P. 858; 16 C.J. 965.
Three notes of C. E. Holland for $6,500 and a note of Scott K. Cassill for $2,850 were included in the property alleged to have been stolen. The defendants requested the court to charge the jury (offered instruction A) to disregard the evidence relating to these notes, upon the theory that it had not been shown that they were of any value. The request was denied and the court gave instruction No. 10, as follows:
"You are instructed that in a prosecution for larceny of a promissory note, or in a prosecution for obtaining the same by false and fraudulent representation or pretenses, the amount of money due on said note, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, is the value of said note."
The language italicized by us for convenient reference has no place whatever in the instruction, but counsel for defendants cannot complain in this court. Section 11969, Revised Codes, provides:
The record discloses that the only objection interposed to this instruction was the following:
"To the giving of instruction No. 10 the defendants object upon the ground and for the reason that the same is an incorrect statement of the law and that it withdraws from the jury the issuable fact as to the value of the property claimed to have been the subject of the larceny charged in the information."
Under the express provisions of the statute just quoted, this court is prohibited from considering the objection to the inclusion of the language italicized. State v. Brodock, 53 Mont. 463, 164 P. 658; State v. Bolton, 65 Mont. 74, 212 P. 504.
The question remains: Does the instruction, with the objectionable language eliminated, correctly state the law, or should the court have given defendants' offered instruction A? Section 11377 provides:
"If the thing stolen consists of any evidence of debt or other written instrument the amount of money due thereon or secured to be paid thereby and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property, the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen." In the absence of a statute fixing a special standard by which the value of a promissory note is to be determined in any given instance, its value would have to be proved as in the case of other personal property (Burrows v. State, 137 Ind. 474, 37 N.E. 271, 45 Am. St. Rep. 210); but no one can challenge successfully the right of the Legislature to fix prima facie the value of commercial paper for the purpose of a criminal prosecution, and since our Legislature has prescribed such a standard, the court did not err in submitting it for the jury's consideration and use. The Holland notes were in evidence, and disclosed that the amount due on them was $6,500; the Scott K. Cassill note was not available as evidence, but the books of the bank disclosed that the amount due upon it was $2,850. This was sufficient to make out the state's prima facie case so far as the value of the notes was concerned and to render inapplicable the defendants' offered instruction A.
The rule announced in defendants' offered instruction C was stated fully, though in different terms, in instruction 2 given by the court, and likewise the substance of offered instruction F was given in the court's instructions 18, 19, and 20.
Complaint is made of instruction No. 3, but it is a literal copy of section 10732, Revised Codes, and applicable to the facts of this case. Scott K. Cassill was prosecuted as a principal, and the evidence is ample to support that theory. While it is true, as defendants contend, that instruction 3 does not refer to the intention which is a necessary ingredient of the offense charged, instruction 11 does cover the subject fully. The instructions are numbered for convenience only; they are to be considered in their entirety, and if upon the whole they state the law correctly, the fact that one particular instruction omits reference to a material matter does not render it open to attack.
Neither instruction 13 nor instruction 28 is subject to the criticism that it comments upon the evidence. Instruction 13 is a copy of section 11384, Revised Codes, and instruction 28, after advising the jury to give full effect to the evidence which tended to establish the previous good reputation of each of the defendants, concluded as follows:
"Previous good character, however, must not be taken as an excuse or justification for a crime, where the proof altogether shows beyond a reasonable doubt that a defendant is actually guilty of the crime charged or some one included therein."
The language is not well chosen, but when the instruction is read in its entirety the jury could not have understood that the court was intimating that the evidence in this case established the guilt of either of these defendants. State v. Dunn, 125 Wis. 181, 102 N.W. 935.
Complaint is made that the word "steal," employed in instruction 14, was not defined, but it was defined sufficiently by instruction 5, and it was not necessary to repeat the definition every time the word was used.
The court charged that the defendants could be convicted only upon evidence which established their guilt beyond a reasonable doubt, and the approved definition of "reasonable doubt" was given. The court then gave instruction 23, as follows:
It is contended that by giving this instruction the court reduced...
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