State v. Hopkins
| Decision Date | 23 October 1923 |
| Docket Number | 5286. |
| Citation | 219 P. 1106,68 Mont. 504 |
| Parties | STATE v. HOPKINS. |
| Court | Montana Supreme Court |
Appeal from District Court, Musselshell County; George A. Hortan Judge.
C. C Hopkins was convicted of robbery, and appeals. Reversed and remanded for new trial.
Jeffries & McNaught, of Roundup, for appellant.
W. D Rankin, Atty Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.
C. C Hopkins was convicted of the crime of robbery, and appealed from the judgment and from an order denying him a new trial.
The several specifications of error relied upon relate to the admission of evidence, and will be grouped and considered under two general heads, but to illustrate the rulings of which complaint is made a brief statement of the case is necessary.
In November, 1920, the defendant Hopkins was sheriff of Musselshell county; Frank Wilson was chief of police of the city of Roundup, and George Bennett was a pool hall proprietor in Roundup, residing at the Grand Hotel in that city.
James P. Barroch, the prosecuting witness in this case, testified that he lived in Lewistown; that about November 16, 1920, Bennett came to Lewistown, and there contracted to purchase from the witness a quantity of intoxicating liquor; that, on November 26, the witness, with one Ed. Harrold, transported 20 cases of whisky, of the value of $1,600, from Lewistown to Roundup, to be delivered to Bennett pursuant to the agreement; that they arrived at Roundup about 10 o'clock on the evening of the 26th, saw Bennett at his pool hall, and arranged to make delivery to him at the hotel a short time later; that about three-quarters of an hour later they returned to the pool hall, and from there Bennett accompanied them to the hotel; that they stopped their automobile in the alley directly back of the hotel; that Bennett entered the building by a rear entrance to ascertain whether it was safe to make delivery at that time; that as Bennett returned to the alley, Hopkins and Wilson appeared upon the scene, each armed with a gun; that, at the command of Hopkins, the witness and Harrold surrendered, and, under the direction of Wilson, and in company with him and Bennett, they drove their car with its cargo of liquor to the city jail, where they found Hopkins awaiting them; that the witness and Harrold were locked in a cell, while Hopkins and Wilson stored the liquor in the jail; that they were then released, permitted to take their car, and were ordered to leave town at once. Further evidence was introduced to show that a warrant was not issued for the arrest of Barroch, and that the defendant did not make return of any liquor seized by him at or near that time. Over the objections of defendant, Barroch was permitted to give, somewhat in detail, the conversations which he claims to have had with Bennett in Lewistown and in Roundup, not in the presence of defendant, and the rulings admitting this evidence constitute the assigned errors of the first group.
For the declared purpose of showing that the defendant was not acting in the discharge of his official duties as sheriff when he took the liquor from Barroch in the manner described by that witness, or, in other words, to prove the felonious intent charged in the information, the state was permitted to introduce the testimony of one George E. Heath, of Zortman, Mont., to the effect that he, with one Frank Pryble, transported 10 cases of whisky from Zortman to Roundup early in November, 1920; that about November 9 he contracted to sell the liquor to Bennett; that, while in the act of delivering it, and while in the alley back of the Grand Hotel on the evening of November 9, Hopkins and Wilson appeared, each armed with a gun, and compelled witness and Pryble to surrender, and to drive their car with its cargo of liquor to the city jail, where the witness and Pryble were locked in a cell, while Hopkins and Wilson stored the liquor in the jail; that they were then released, and ordered to leave town at once. The records disclosed that a warrant for Heath's arrest had not been issued, and that the defendant did not make return of any liquor seized by him at or near that time. It was admitted by the county attorney that the foregoing testimony given by Heath was the same as the testimony which Heath had given in the same court upon the trial of cause No. 347. In cause No. 347, Hopkins, Wilson, and Bennett were charged jointly with the crime of grand larceny in taking the 10 cases of liquor from Heath on November 9, 1920, and were tried upon the charge, and acquitted prior to the trial of this case.
After defendant had introduced his oral testimony which amounted to a categorical denial of all of the testimony given by Barroch, his counsel offered in evidence the record in cause No. 347. The court refused to admit it generally, but admitted it for the sole purpose "of affecting the credibility of the witness Heath," and instructed the jury accordingly.
In admitting the testimony of Heath, in refusing to admit the record in cause No. 347 without qualifications, and in limiting the purpose for which the record might be considered by the jury, it is contended the court erred, and these alleged errors are comprehended in the second group of assignments.
1. It is an elementary general rule that a defendant in a criminal case cannot be bound by conversations between third parties not in his presence, hence the rulings permitting Barroch to testify to the conversations he had with Bennett were prima facie erroneous. An exception to the general rule, as well established as the rule itself, permits evidence of the acts and declarations of a coconspirator done or made in furtherance of a common design to be admitted against all the other parties to the conspiracy, whether the acts or declarations were done or made in their presence or with their knowledge, provided only that they were done or made during the life of the conspiracy (State v. Allen, 34 Mont. 403, 87 P. 177), but the evidence of such acts or declarations is admissible only after proof of the existence of the conspiracy (subdiv. 6, § 10531, and § 11977, Rev. Codes 1921; State v. Dotson, 26 Mont. 305, 67 P. 938).
There is not any pretense here that the existence of a conspiracy between Hopkins, Wilson, and Bennett had been shown at the time the objectionable evidence was admitted; and the only evidence introduced at any time tending to prove the existence of such a conspiracy is that Bennett contracted to purchase the liquor from Barroch; that he was present when Hopkins and Wilson took the liquor from Barroch; that he accompanied Wilson, Barroch, and Harrold to the city jail, and was present there when Barroch and Harrold were released from custody.
A conspiracy is constituted by an agreement, and is a partnership in criminal purposes. United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168. While it is not essential that the agreement between the parties should be formal, it is necessary that their minds meet understandingly, so as to bring about an intelligent and deliberate agreement to do the acts. 12 C.J. 544.
Of course, it is not indispensable that a conspiracy be proved by direct evidence. Circumstantial evidence is legal evidence, and, if sufficient, will establish the existence of a conspiracy, but we conclude that the few isolated circumstances detailed above do not furnish the required quantum of proof, and that the court erred in admitting the evidence under consideration.
2. It is the general rule that, upon the trial of one accused of crime, evidence of a distinct and independent offense is not admissible. To enlarge the scope of the inquiry beyond the facts pertinent to the offense for which the accused is being tried would ordinarily subject him to the danger of surprise against which no possible foresight might be able to prepare and no innocence defend. But, if particular facts tend to establish an element of the offense for which he is being tried, they may be proved and the evidence is not the less relevant because it may disclose or tend to disclose that the accused had committed another crime. In the language of Justice Brewer "No man can by multiplying crimes diminish the volume of testimony against him."
In order to make out the charge of robbery it was necessary for the state to prove that defendant acted with felonious intent in taking the liquor from Barroch, and, to establish that intent, the state offered the testimony of Heath. In harmony with the rule just stated, the state may introduce evidence of other acts similar to the one for which the accused is being tried, for the purpose of proving criminal intent. State v. Newman, 34 Mont. 434, 87 P. 462; State v. Hill, 46 Mont. 24, 126 P. 41; State v. Pippi, 59 Mont. 116, 195 P. 556.
The reason which underlies the rule admitting such evidence may be illustrated by reference to the state's theory of this case, assuming the truth of the testimony given by the state's witnesses, for the purpose of this illustration only. By virtue of defendant's official position as sheriff, and in the regular discharge of his duties, he might have taken the liquor from Barroch in the manner described by that witness without committing any offense whatever; indeed, it was his duty to seize the liquor, and, if in his judgment it was reasonably necessary to make an exhibition of force to accomplish his purpose, he could not be subject to criticism upon that score. But, having seized the liquor, it was his duty to arrest Barroch, even though he had no warrant, take him before the proper tribunal, and lodge complaint against him, and also make proper return of the liquor so seized. Section 9, chapter 143, Laws 1917.
This cause of action arose, if at all, prior to ...
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