State v. Greeno

• Decision Date: 02 September 1959
• Docket Number: No. 9940,9940
• Citation: 135 Mont. 580,342 P.2d 1052
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gerald T. GREENO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1052

342 P.2d 1052

135 Mont. 580

STATE of Montana, Plaintiff and Respondent, v. Gerald T. GREENO, Defendant and Appellant.

No. 9940.

Supreme Court of Montana.

Submitted March 13, 1959.

Decided July 21, 1959.

Rehearing Denied Sept. 2, 1959.

Sandall, Moses & Cavan, Billings, Charles F. Moses, Billings, argued orally, for appellant.

Forrest H. Anderson, Atty. Gen., Gordon R. Bennett, Asst. Atty. Gen., William J. Speare, John L. Adams, Jr., Billings, Gordon R. Bennett, Asst. Atty. Gen., and John L. Adams, Jr., argued orally, for respondent.

BOTTOMLY, Justice.

This is an appeal by Gerald T. Greeno from a judgment of conviction of the crime of grand larceny made and entered on the 13th day of March 1958, and from an order denying him a new trial.

On appeal some fourteen specifications of error are set out, many of the errors alleged having to do with offered and rejected instructions. However, since this case must be returned to the district court for a new trial we shall confine our opinion only to the specification of error relating to the denial of a new trial and one specification of error concerning a given instruction. This latter specification of error we shall discuss later in this opinion.

The facts concerning the denial of the motion for new trial are these: The specific larcenous act which it was alleged Gerald Greeno committed was that he had stolen or 'rustled' some eight head of Hereford cattle which cattle were the property of one Norman F. Miller, a rancher whose lands and cattle were located some thirty miles from where the alleged Miller cattle were found, and some thirty miles from defendant's ranch.

At the trial of this case, it was brought out that the defendant Greeno was aware of the fact that Miller was the owner of some eighty head of Hereford cattle; that Miller ranged these cattle in a pasture situated some twenty miles south of Billings, Montana; that the cattle were not closely attended and that some of them were unbranded.

The testimony was that sometime in the latter part of September, Miller had counted his cattle and determined that approximately sixteen head were missing; that Miller then conducted a search for the missing cattle and found two of them; that from approximately the 1st day of October 1957, until the 9th day of January 1958, the remaining cattle could not be found although a diligent search was conducted for the missing cattle; that thereafter on the 9th day of January 1958, the district brand inspector, a deputy sheriff and others, including Norman Miller's father, proceeded to a ranch owned by one Robert Percy Crocker and there asked if they could ride his range; that after permission was granted by Crocker, this group rounded up some sixty head of cattle, all bearing various brands, among which were some eight head of cattle which Norman Miller's father and Norman Miller later identified as the cattle owned by Norman Miller which had been missing since approximately the 1st day of October 1957. All of these eight cattle, at the time they were rounded up on the Crocker ranch, bore a brand on their right side described as an A bar T, three stories high. It was shown that this brand is the registered brand of the defendant, Gerald Greeno. These A bar T branded steers were found on the Crocker ranch which ranch is situated some twenty or thirty miles distant from the home of Gerald Greeno. Greeno testified at the trial and denied ownership of these A bar T branded steers, asserting he owned only cows and calves; that in his cattle business he never kept steers. Crocker likewise denied ownership of the A bar T branded steers. Greeno testified that he had visited the Crocker place October 22, 1957, for the purpose of picking up a horse he was to break for another person. These facts comprised the essential record exclusive of the testimony of one Chuck Armstrong. Armstrong's testimony at the trial and his subsequent statements form the basis for the motion for a new trial.

At the trial Armstrong testified, in substance, that he was an acquaintance of Crocker; that on or about October 22, 1957, he had deopped in for a visit at the Crocker ranch; that Crocker was absent but Gerald Greeno was present and was going to brand some cattle; that he, Armstrong helped Greeno brand some eight or ten head of two year old white face Hereford steers; that he had helped build a fire for the purpose of branding the animals, helped herd the steers into a chute and that Gerald Greeno had branded them. He testified that the brand placed upon the animals by Greeno was an A bar T brand; that in addition other cattle were branded with another brand described as being an X reverse F brand, that this brand belonged to Crocker. Armstrong further testified that although he himself had an injured hand, he had in fact branded one of the steers with the X reverse F brand; that he was not paid for his work in helping brand the animals; that Greeno had said the animals branded with Crocker's brand belonged to Crocker; and that the steers he had helped brand with the A bar T brand and the X reverse F brand were the same steers which he saw in the Billings Livestock Commission yards, and were the same steers that Norman Miller identified as the steers missing from his pasture.

Armstrong further testified that when he and Greeno were at the Crocker ranch, Crocker was not at home. After this testimony was given it was brought out that Armstrong had been questioned prior to the trial by a deputy sheriff of Yellowstone County and also by one of the defense attorneys for Gerald Greeno; that when so questioned Armstrong had said that he had been out to Crocker's place and had seen some cattle branded; that he specifically did not brand any cattle himself because of his bad hand; that he could not identify any of the brands placed upon the cattle; that he could not say whether any cattle had been branded on the left side; and that he could not identify the cattle at the Billings Livestock Commission yards as being those same cattle which he had helped to brand.

Armstrong's testimony as a witness differed from the story he had told prior to the trial. He explained this difference by saying 'Because I helped brand them, I didn't want to get involved.'

Armstrong was the key witness at the trial. After Greeno's conviction a motion for a new trial was presented and filed. The basis of the motion for new trial was set out in the affidavit of the attorney for the defendant as follows:

'That your affiant was informed by the County Attorney on March 12, 1958, at 1:00 o'clock p. m. of said day, that the witness, Charles Armstrong, had had a conference with the County Attorney's staff and has now made the following statements in connection with the testimony in this case:

'(a) That approximately one week prior to the alleged branding he was called on the telephone by Percy Crocker and requested to be present on October 22, 1957, to aid the said Percy Crocker in branding some animals;

'(b) That on October 22, 1957, he appeared at the Crocker ranch at the request of Mr. Crocker, and Mr. Crocker was rounding up and placing in the corral the animals identified by the witness as belonging to Norman A. Miller and otherwise had the care, possession and control of said animals;

'(c) That Mr. Crocker left the premises but returned shortly after lunch and participated in the care of said animals and their branding and knew of the presence of said animals upon his premises at that time and the brands placed thereon and the condition of said animals and the fact that the animals had been branded and that not all of the animals had been branded prior to the time when the said Charles Armstrong left the premises and that Mr. Crocker had knowledge of the presence of said animals and their condition and the branding and participated therein; that his testimony on the stand, which was contrary to his present statement, was given for the reason that he wished to protect Mr. Crocker and that such statements made by him were not in fact true in several material particulars, as above set forth, and that the substance of his statements now made to the County Attorney's office on March 12, 1958, incriminated said Percy Crocker completely and is contrary to the statements made by the witness at the time of the trial'.

At the hearing on the motion for new trial, the county attorney would not refute the affidavit, nor would he support it with an affidavit of his own. The witness Armstrong refused, prior to the hearing on the motion for new trial, to give the county attorney a sworn statement of what he asserted after the trial was the true situation, and Armstrong also refused to give the defense attorneys a sworn statement.

To counteract the effect which the absence of the affidavit of Armstrong might have upon their motion for new trial, the defense attorneys had Armstrong subpoenaed to give oral testimony to support the motion for new trial. At the hearing it was disclosed that after Armstrong had given the county attorney his statement after trial, in which he materially changed some of the aspects of his testimony at the trial, he then refused to tell the county attorney anything more. At the hearing on motion for a new trial the witness Charles Armstrong was called, and the Court inquired of him whether or not he was willing to testify in connection with the motion for new trial, to which Armstrong replied 'No'.

The court declined to compel Armstrong to testify. Armstrong was then asked if he had refused to make an affidavit in support of the defendant's motion for new trial, to which he replied he had refused. He further testified that he had refused to make an affidavit or sworn statement for the county attorney.

The motion for a new trial was based upon that part of section 94-7603, R.C.M.1947, which provides in part:

'When a verdict has been rendered against the defendant, the court may, upon his...