State v. Gleim

Citation17 Mont. 17
Case DateOctober 07, 1895
CourtUnited States State Supreme Court of Montana

17 Mont. 17

STATE
v.
GLEIM.

Supreme Court of Montana.

Oct. 7, 1895.


Appeal from district court, Missoula county; F. H. Woody, Judge.

Mary Gleim was convicted of assault with intent to commit murder, and appeals. Reversed.


Toole & Wallace, for appellant.

H. J. Haskell and Thos. C. Marshall, for the State.


HUNT, J.

Patrick Mason, Mary Gleim, and William Reed were jointly indicted for an assault, with intent to commit murder, upon one Burns. Appellant, Mary Gleim, was separately tried after Mason had been convicted. She was found guilty, and sentenced to the penitentiary for 14 years.

1. Appellant contends that the indictment will not support a verdict and judgment of guilty, “because it nowhere charges that said Mary Gleim committed the crime of assault with intent to murder.” The material charging parts of the indictment are as follows: “That one Patrick Mason, late of the county of Missoula, state of Montana, on or about the 13th day of February, A. D. 1894, at the county of Missoula, in the state of Montana, did feloniously, deliberately, premeditatedly, and of his malice aforethought, make an assault in and upon one C. P. Burns, and certain giant powder and other highly explosive substance, a more particular description of which is to said jurors unknown, in, upon, around, and under the house where the said C. P. Burns was then and there present and sleeping, did feloniously, deliberately, premeditatedly, and of his malice aforethought, put and lay, and the same did then and there, feloniously, deliberately, premeditatedly, and of his malice aforethought, explode, and cause to be exploded, with intent in him, the said Patrick Mason, to kill and murder the said C. P. Burns. And that before the commission of the said felony, at the time and place aforesaid, one Mary Gleim and William Reed did feloniously counsel, aid, incite, and procure the said Patrick Mason to commit, in manner and form aforesaid, the said felony. All of which is contrary to the form of the statute,” etc. The indictment is substantially a common–law charge against Mason as principal and Mary Gleim as an accessory before the fact. It follows the precedents of Wharton (1 Whart. Prec. Ind. § 97) and of Archbold (Archb. Cr. Prac. & Pl. pp. 67, 77). Bishop on Criminal Procedure (volume 2, § 8), quoting Chitty on Criminal Law, lays down the course to be—First, to state the guilt of the principal, as if he alone had been concerned; and then, in case of accessories before the fact, to aver that the procurer, “before the committing of the said felony, in form aforesaid, to wit, on, etc., with force and arms, etc., did maliciously and feloniously incite, move, procure, aid, and abet (or counsel, hire, and command) the said principal felon to do and commit the said felony, in manner aforesaid, against the peace, etc.”

The statutes (sections 176, 177, Cr. Prac. Act 1887) provide that:

“Sec. 176. Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted, in the same manner as if he were a principal.

“Sec. 177. An accessory before the fact, to the commission of a felony, may be indicted, tried and punished; though the principal be neither indicted nor tried.”

By section 12, c. 2, p. 502, Comp. St. 1887, it is provided: “Any person who stands by, and aids, abets or assists, or who, not being present, hath advised and encouraged the commission of a crime, shall be deemed a principal offender, and shall be punished accordingly.”

It is plain that the old distinctions betweenaccessories before the fact and principals are abolished by these statutes (State v. King, 9 Mont. 445, 24 Pac. 265); but we see no objection to the form of an information charging a person as an accessory rather than as a principal. To so charge is to the advantage of a defendant, because it notifies him of the attitude which the state will assume when the case is brought to trial, by setting out the facts constituting the offense with greater certainty than is requisite where an accessory is indicted as a principal. This point was directly raised in People v. Rozelle, 78 Cal. 84, 20 Pac. 36, where the court held that an information stating facts sufficient to constitute a defendant an accessory at common law charges him with guilt as a principal under the statutes, and that to allege such facts as would have been sufficient against him as an accessory at common law is charging him as a principal under the statute. We are of opinion that the rights of the defendant were not prejudiced by the form of the charge. State v. Littell (La.) 12 South. 750;Territory v. Guthrie (Idaho) 17 Pac. 39.

2. On the trial of the appellant, Gleim, the court, over the objection of the defendant, permitted the record of the conviction of Mason, the principal actor, to be introduced, and after having fully instructed the jury that it was essential, in order to convict the defendant Gleim, that they should find that Mason was guilty of having committed the crime charged, instructed as follows: “That the record of the trial and conviction of Patrick Mason was introduced in the trial of this case, for the purpose of establishing as a fact, prima facie, the guilt of said Mason. The record is prima facie evidence of the guilt of said Mason, but it is not conclusive evidence. It, however, remains prima facie evidence of the fact which it was introduced to prove, unless you believe from the evidence in this case that the defendant Mary Gleim has introduced evidence in this case which raises in your minds a reasonable doubt (as explained in these instructions) of the guilt of said Mason; but, if such testimony raises in your minds such reasonable doubt of the guilt of Mason, then you should find the defendant Gleim not guilty. But, unless the evidence introduced by the defendant Gleim does raise in your minds a reasonable doubt (as explained in these instructions) of the guilt of the said defendant Mason, you should receive such record of trial and conviction as evidence establishing the guilt of said Patrick James Mason. But, in determining the question of the guilt or innocence of the said Patrick James Mason, you are not confined to the record of trial and conviction introduced in this case, but you should carefully consider all of the evidence introduced in this case tending to prove or disprove the guilt of said Mason; and after a full and careful consideration of all the evidence in the case, in connection with the record in evidence, you have a reasonable doubt of the defendant Mason's guilt, you should find the defendant Gleim not guilty.” While it is true that the statute makes an accessory before the fact a principal, yet the evidentiary facts by which the accessory is to be incriminated may materially differ from those which are necessary and sufficient to convict the principal. In this case, for instance, to incriminate the appellant, Gleim, at all, under the theory of the state, as charged and contended for, it was not only necessary to prove the guilt of Mason, as alleged, but to go further, and to demonstrate beyond a reasonable doubt that the appellant, Gleim,...

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44 practice notes
  • State v. Apley
    • United States
    • United States State Supreme Court of North Dakota
    • 19 May 1913
    ...N.W. 751]Plunket v. State, 72 Ark. 409, 82 S. W. 845;People v. Abbot, 97 Mich. 486, 56 N. W. 862, 37 Ann. St. Rep. 360; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655;State v. Roderick, 77 Ohio St. 301, 82 N. E. 1082, 14 L. R. A. (N. S.) 704, and especially t......
  • State v. McKenzie, No. 13011
    • United States
    • Montana United States State Supreme Court of Montana
    • 10 January 1977
    ...is in favor of the judgment. State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State v. White, 146 Mont. 226, 405 P.2d 761; State v. Gleim, 17 Mont. 17, 41 P. 998. Here there is abundant evidence to support the Specifications of error 6 and 24 appear to be a shotgun attempt in defendant's att......
  • State v. Pelletier, DA 19-0218
    • United States
    • Montana United States State Supreme Court of Montana
    • 6 October 2020
    ...or circumstances. Polak II , ¶¶ 18 and 21-22; State v. Sorenson , 190 Mont. 155, 166-67, 619 P.2d 1185, 1191-92 (1980) ; State v. Gleim , 17 Mont. 17, 28-30, 41 P. 998, 1001 (1895). Upon additional foundation that the testifying witness denied previously using alcohol or drugs, or being und......
  • State v. Loon
    • United States
    • Idaho Supreme Court
    • 15 June 1916
    ...and therefore inadmissible. (Botkin v. Cassady, 106 Iowa 334, 76 N.W. 722; State v. King, 88 Minn. 175, 92 N.W. 965; State v. Gleim, 17 Mont. 17, 52 Am. St. 655, 41 P. 998, 31 L. R. A. 294.) Proof of independent collateral and distinct offenses is admissible only upon the question of intent......
  • Request a trial to view additional results
44 cases
  • State v. Apley
    • United States
    • United States State Supreme Court of North Dakota
    • 19 May 1913
    ...N.W. 751]Plunket v. State, 72 Ark. 409, 82 S. W. 845;People v. Abbot, 97 Mich. 486, 56 N. W. 862, 37 Ann. St. Rep. 360; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655;State v. Roderick, 77 Ohio St. 301, 82 N. E. 1082, 14 L. R. A. (N. S.) 704, and especially t......
  • State v. McKenzie, No. 13011
    • United States
    • Montana United States State Supreme Court of Montana
    • 10 January 1977
    ...is in favor of the judgment. State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State v. White, 146 Mont. 226, 405 P.2d 761; State v. Gleim, 17 Mont. 17, 41 P. 998. Here there is abundant evidence to support the Specifications of error 6 and 24 appear to be a shotgun attempt in defendant's att......
  • State v. Pelletier, DA 19-0218
    • United States
    • Montana United States State Supreme Court of Montana
    • 6 October 2020
    ...or circumstances. Polak II , ¶¶ 18 and 21-22; State v. Sorenson , 190 Mont. 155, 166-67, 619 P.2d 1185, 1191-92 (1980) ; State v. Gleim , 17 Mont. 17, 28-30, 41 P. 998, 1001 (1895). Upon additional foundation that the testifying witness denied previously using alcohol or drugs, or being und......
  • State v. Loon
    • United States
    • Idaho Supreme Court
    • 15 June 1916
    ...and therefore inadmissible. (Botkin v. Cassady, 106 Iowa 334, 76 N.W. 722; State v. King, 88 Minn. 175, 92 N.W. 965; State v. Gleim, 17 Mont. 17, 52 Am. St. 655, 41 P. 998, 31 L. R. A. 294.) Proof of independent collateral and distinct offenses is admissible only upon the question of intent......
  • Request a trial to view additional results

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