State v. Houchin

• Court: Montana Supreme Court
• Writing for the Court: JOHN C. HARRISON; JAMES T. HARRISON; CASTLES
• Citation: State v. Houchin, 428 P.2d 971, 149 Mont. 503 (Mont. 1967)
• Decision Date: 15 June 1967
• Docket Number: No. 11273,11273
• Parties: STATE of Montana, Plaintiff and Appellant, v. James Robert HOUCHIN, Jr., Defendant and Respondent.

Page 971

428 P.2d 971

149 Mont. 503

STATE of Montana, Plaintiff and Appellant, v. James Robert HOUCHIN, Jr., Defendant and Respondent.

No. 11273.

Supreme Court of Montana.

Submitted May 8, 1967.

Decided June 15, 1967.

Forrest H. Anderson, Atty. Gen., Helena, Marshall Candee, County Atty., Libby, Charles M. Joslyn, Asst. Atty. Gen. (argued) Helena, for appellant.

Murphy, Robinson, Heckathorn & Phillips, Kalispell, C. Eugene Phillips (argued) Kalispell, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal by the State from an order granting a new trial after a jury had found the respondent guilty of petit larceny and two prior convictions.

This is a companion case to State v. Armstrong, Mont., 428 P.2d 611, decided by this court on June 2, 1967. In the Armstrong case, supra, a rather lengthy statement of facts was set forth and referred to in considering this case. Only those additional facts as are particular to this case will be set forth.

The trial of the respondent was held approximately one week after his companion Armstrong had been convicted, after a jury trial, of petit larceny with two prior convictions and sentenced to two years in the State Penitentiary. At this trial a button that was found at the scene of the telephone line cutting was introduced without objection. It matched a button on the coat the respondent was wearing at the time of his arrest. Three buttons were missing on the coat but one remained which was used for comparison with the above-mentioned button. As at the trial of Armstrong, the State offered into evidence the horsehoe nippers found in the pickup respondent was driving, but unlike the Armstrong case the trial judge refused the admission into evidence of such nippers. A deputy sheriff testified here that after the Armstrong trial he had talked with a Mr. Elletson, who owned and had loaned the pickup to the respondent, and that he had been informed by Mr. Elleston that all the tools recovered from the vehicle, including the horseshoe nippers, were not his property.

Further, at this trial the State offered to prove that Martha Houchin, respondent's wife, had guided two deputies to the location of 4,100 feet of missing telephone wire to which the respondent objected on the ground that her testimony was privileged, that it was not within any of the exclusions or exceptions of the hearsay rule and that no proper foundation had been laid. The trial court sustained the objection to the entrance of the recovered 4,100 feet of wire, but did not specifically state his reason. At the conclusion of the State's case, the respondent moved (1) that the court instruct the jury to return a verdict of not guilty on the grounds and for the reasons that there had been an utter failure of proof on the part of the State; (2) that as an alternative, to advise the jury to return a verdict of not guilty on the grounds that the state of proof is such that if the jury returned a verdict of guilty the verdict would have to be set aside; and (3) that as an alternative to the foregoing, to remove from the case the element of grand larceny on the ground that there was a total failure of proof as to the value of the property in Lincoln County, Montana, the place where the same was stolen. The court denied all three motions. The jury found respondent guilty of petit larceny.

Respondent filed a motion for a new trial which resulted in a full scale hearing.

It is noteworthy that little evidence was produced supporting the motion for a new trial. However, the trial judge in reconsidering several rulings he had made during the course of the trial granted a new trial for the following reasons: (1) That the court misdirected the jury in a matter of law and has erred in a decision of a question of law arising during the course of the trial; and (2) that the verdict is contrary to the law and the evidence.

The appellant (the State) sets forth three specifications of error for our consideration contending that the court erred in:

(1) granting respondent's motion for a new trial;

(2) not allowing the testimony of Deputy Sheriff Fisher that he was guided to the location of the wire by respondent's wife; and

(3) not allowing State's exhibit 7, the horseshoe nippers, to be admitted into evidence.

Specifications of error 2 and 3 will be first considered for it was in the exclusion of the evidence set forth in these specifications that the trial court created the situation wherein the appellant's case was short on proof.

We agree with the appellant that the trial court committed error in not allowing into evidence the testimony of the deputy sheriff that he was guided to the location of the wire by the respondent's wife.

The offer of proof by the appellant was to the effect that Martha Houchin accompanied the deputy and pointed out the location of the wire. The offer was limited solely to that fact and that it would...