State v. Howard

• Decision Date: 18 June 1904
• Citation: 77 P. 50,30 Mont. 518
• Parties: STATE v. HOWARD.
• Court: Montana Supreme Court

77 P. 50

30 Mont. 518

STATE v. HOWARD.

Supreme Court of Montana

June 18, 1904

Commissioners' Opinion. Appeal from District Court, Silver Bow County; Wm Clancy, Judge.

George Howard, alias James Howard, alias Joe Kirby, was convicted of robbery, and he appeals. Affirmed.

Alexander Mackel and Wm. Meyer, for appellant.

Jas Donovan, for the State.

CALLAWAY C.

The defendant was convicted upon an information accusing him of the crime of robbery, and charging his prior conviction of a like offense as the ground for a heavier punishment. He was sentenced to imprisonment at hard labor for 30 years. This appeal is from the judgment and an order denying a new trial.

1. He was informed against as George Howard, alias James Howard alias Joe Kirby. He makes the point that the information does not sufficiently conform to the requirements of sections 1832-1834, Pen. Code, in that there is no certainly as to the party charged, or as to the name of the party charged. Section 1832 of the Penal Code provides that the information must contain the name of the party. Section 1841 provides that the information is sufficient if it can be understood therefrom that the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is to the county attorney unknown. A man's name is simply the sound or sounds by which he is commonly designated by his fellows, and by which they distinguish him. It is a mere means of description. Sometimes a man is known by several different names, and it was formerly the custom, in drawing indictments, to charge him under all the names by which he was known; connecting them with the words "alias dictus," or with simply "alias." These words mean "otherwise called" or "otherwise." The county attorney attempted to be more certain than the statute requires. He charged the defendant, evidently, by three names by which the latter had been known. Had he charged the defendant as George Howard, stating that his true name was unknown, the statute would have been met, and such is believed to be the better practice. It is readily perceived that in a given case a defendant may be prejudiced by the use of the alias dictus by which a number of names may be joined, and thus all read to the jury; suggesting to them that the defendant has been using assumed names. But no such prejudice resulted in this case. A like point was decided in People v. Maroney, 109 Cal. 277, 41 P. 1097, in which the court said that while, for most purposes, the need and use of the charging alias are done away with, it is still proper in some instances, and illustration of one of which was offered by the indictment then before the court. The indictment charged the defendant with conviction of prior offenses, and the court observed: "For the purpose of identifying him as the person who had suffered those convictions, the use of the alias was not only permissible, but proper." At the trial the defendant in this case was referred to sometimes as "Howard," sometimes as "Kirby," and as "Howard or Kirby." He was formerly convicted under the name of George Howard, and it seems that he gave his name to the court as Joseph Kirby. The point urged by defendant is not well taken. Lee v. State, 55 Ala. 259; Haley v. State, 63 Ala. 83; Barnesciotta v. People, 10 Hun, 137; Kennedy v. People, 39 N.Y. 245.

2. The next point urged is that the information charges two offenses, in that it is alleged that the property was taken "by means of force and putting in fear," and that it was taken "from the person and possession and from the immediate presence of one W. M. Bell." It is contended that a robbery accomplished by means of force is a different kind of a robbery from that accomplished by means of fear, that a robbery from the person is different from a robbery from his immediate presence, and that the information in this respect is uncertain. The defendant presented these points by demurrer, which was overruled. We think these objections are hypercritical. Robbery may be, and often is, accomplished by the concurrence of force and fear. When it is accomplished by force, fear is the usual concomitant. If one were not apprehensive of the force, he would not have the fear. So, on the second point suggested, how can there be a taking from one's person, and that taking be not from his immediate presence? Of course, the article taken might be from the immediate presence without being taken from the person. That portion of the information which is criticised is substantially similar to the one before the court in State v. Clancy, 20 Mont. 498, 52 P. 267, and is not vulnerable to the attacks, made upon it by defendant. When tested by the rules prescribed by the Penal Code, it is sufficient. State v. Gill, 21 Mont. 151, 53 P. 184.

3. The defendant moved for a continuance, which the court denied. An examination of the affidavit upon which the motion was based shows that it was insufficient for the purpose intended, and the court's action upon the motion was clearly correct. Moreover, the granting or refusing of a motion for the continuance of a criminal case rests in the sound discretion of the court below, and the appellate court will not interfere unless there has been an abuse thereof. Territory v. Perkins, 2 Mont. 467; Territory v. Harding, 6 Mont. 323, 12 P. 750; Territory v. Roberts, 9 Mont. 12, 22 P. 132.

4. Three jurors were accepted over defendant's challenges. Two of them, when upon their voir dire examination, said in response to questions put by defendant's counsel that they were prejudiced against the defense of insanity. Upon examination by the county attorney and the court, they said, in effect, that they would treat it like any other defense the defendant might urge; would follow the instructions of the court thereon, and, if the instructions upon the law should in any manner differ from their own ideas, they would follow the instructions. In short, without discussing their testimony in detail, it may be said that they qualified themselves as competent jurors. Another said that he had read the newspaper accounts of the alleged robbery, and had formed an opinion therefrom, but not a fixed one. Upon re-examination he said he could entirely discard the opinion then formed, and could give the defendant as fair a trial as if he had never heard of the case. This juror was clearly competent. Pen. Code, § 2051; State v. Mott (Mont.) 74 P. 728.

5. The evidence showed that the defendant, together with one Cole, had entered into a conspiracy to "hold up" the Northern Pacific train near Homestake, in Silver Bow county. Accordingly they stopped the train about a mile from Homestake, and attempted to blow open the safe in the baggage car. While they were proceeding in furtherance of this conspiracy, the defendant, after having intimidated Bell, a mail clerk, by the use of a revolver, reached into Bell's pocket and took therefrom the sum of 75 cents. The taking of the 75 cents is the particular crime for which the defendant is prosecuted. At the trial the state was permitted to show the details of the entire transaction, commencing with the formation of the conspiracy in Butte, and following it out until the train was again allowed to go upon its way. It is contended by the defendant that it was error to admit in evidence certain testimony concerning the details of the attempted "train robbery." "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Pen. Code, § 390. It is therefore technically inaccurate to speak of a "train robbery." The meaning of the phrase, however, is clear. In this case the defendant and Cole intended to take personal property--the contents of the safe--from those who had it in charge, using such force and producing such fear as might seem to them to be necessary. It is said that the conspirators did not contemplate the robbery of Bell, and that crime was therefore not within the purview of the conspiracy. This point is not well taken. If, while a person is engaged in the commission of one felony, he commits another, evidence of the commission of both is admissible as part of the res gestae. People v. Pallister, 138 N.Y. 601, 33 N.E. 741; State v. Desroches, 48 La. Ann. 428, 19 So. 250; Seams v. State, 84 Ala. 410, 4 So. 521; People v. Nelson, 85 Cal. 421, 24 P. 1006; People v. Teixeira, 123 Cal. 297, 55 P. 988; Commonwealth v. Hayes, 140 Mass. 366, 5 N.E. 264; Dove v. State, 37 Ark. 261; Snapp v. Commonwealth, 82 Ky. 173; Kennedy v. State, 107 Ind. 144, 6 N.E. 305, 57 Am. Rep. 99; State v. McCahill, 72 Iowa, 111, 30 N.W. 553, 33 N.W. 599; State v. Dooley, 89 Iowa, 584, 57 N.W. 414; State v. Taylor, 118 Mo. 153, 24 S.W. 449; State v. Pike, 65 Me. 111; State v. Wentworth, 37 N.H. 196; Leeper v. State, 29 Tex.App. 63, 14 S.W. 398. Defendant and Cole entered into a conspiracy to commit a felony, namely, the "train robbery," and set forth to carry it out. While actually engaged in an attempt to carry out the conspiracy, defendant committed another felony--the robbery of Bell--which, as it transpired, was but a part of the main transaction. The evidence objected to was clearly admissible.

6. The state was permitted to introduce in evidence a letter, which we quote in full, in order to arrive at a clear understanding of the matter involved. It is as follows: "Tom: From what I see in the papers and from what I can hear, you are afraid I am trying to ditch you. Well, you can come out in the Prosecuting Attorney's office and see what I say. You or no one else will go to the 'pen' on account of me and I was told by six different people, including your own...