State v. Huffman

• Citation: 89 Mont. 194
• Decision Date: 10 March 1931
• Docket Number: No. 6795.,6795.
• Parties: STATE v. HUFFMAN.
• Court: United States State Supreme Court of Montana

89 Mont. 194

STATE

v.HUFFMAN.

No. 6795.

Supreme Court of Montana.

Feb. 9, 1931.

Rehearing Denied March 10, 1931.

Appeal from District Court, Rosebud County; G. J. Jeffries, Judge.

Harry H. Huffman was convicted of receiving stolen property, and he appeals.

Affirmed.

Guinn & Maddox, of Hardin, and C. A. Spaulding, of Helena, for appellant.

L. A. Foot, Atty. Gen., F. F. Haynes, of Forsyth, and Gunn, Rasch, Hall & Gunn, of Helena, for the State.

MATTHEWS, J.

The defendant, Harry Huffman, has appealed from a judgment of conviction on a charge of receiving stolen property and from an order denying him a new trial.

Huffman was charged, jointly with one Thomas Groom, with receiving, from two Indians, certain calves, the property of the United States, with the felonious intent to prevent the owner from again possessing them. Separate trials were granted, and, on his trial, Huffman was found guilty, and, by the judgment of the court, sentenced to a term of three years in the state prison.

1. Defendant's first contention is that the court erred in sustaining the state's challenge to juror Lloyd Boslaugh, on the ground of “implied bias” and “on the further ground that he has specifically disqualified himself.” Boslaugh frankly admitted that he was a close friend of the defendant, but declared that he could disregard the fact and try the case as though defendant was a stranger to him; later he stated that he would like to be excused, and, when asked, “If you believed he was guilty beyond a reasonable doubt under the law, you would vote to convict him?” answered, “No Sir,” and, when asked if the reason why he wanted to be excused was, because of his friendship for defendant, he could not consider the case dispassionately and that it would be embarrassing for him to vote to send a friend to the penitentiary, he answered, “Yes sir.” On further examination by counsel for defendant, the prospective juror answered “Yes” to such questions as, “You would vote to convict him regardless of the fact that you were friends, *** you would not allow friendship to influence your verdict, *** you would be guided solely by the law *** and the evidence?” Declaring that “the prospective juror has answered directly opposite on the respective examinations,” the court held that it would be unfair to the juror to require him to sit and that the challenge should be sustained, under section 11959, Revised Codes 1921.

Counsel for defendant assert that the county attorney did not state the correct ground of challenge, if the court was right, as the grounds stated, “implied bias” comes within the provisions of section 11960, and therefore the court should have denied the challenge under the rule announced in State v. Byrne, 60 Mont. 327, 199 P. 262, and State v. Vettere, 76 Mont. 574, 248 P. 179. The rule relied upon is not applicable to the situation here presented; in those cases this court was called upon to determine whether or not reversible error was committed in denying a challenge not based on proper grounds. Here we are asked to apply that rule to the action of the court in excusing a prospective juror, although the record does not disclose that an impartial jury was not thereafter obtained. Under the circumstances shown, there is no ground for reversal, even though we concede that the court committed a technical error.

The right to challenge is the right to reject, not to select, a juror; no person can acquire a vested right to have any particular member of a panel sit upon his case unless and until such member has been accepted and sworn. Prejudice is not presumed from error, and we are commanded by section 12125, Revised Codes 1921, to “give judgment without regard to technical errors *** which do not affect the substantial rights of the parties.” This has been the rule in this jurisdiction since territorial days (Territory v. Roberts, 9 Mont. 12, 22 P. 132;State v. Jones, 32 Mont. 442, 80 P. 1095), and prevails in other Code states (15 Cal. Jur. 410, and cases cited; State v. Seyboldt, 65 Utah, 204, 236 P. 225;State v. White, 48 Or. 416, 87 P. 137;State v. Rodriguez, 23 N. M. 156, 167 P. 426, L. R. A. 1918A, 1016;Keady v. People, 32 Colo. 57, 74 P. 892, 66 L. R. A. 353).

Further, the trial court is the judge of the weight to be given to the testimony adduced on a voir dire examination, and, if the trial court has any doubt as to the existence of such a state of mind as would disqualify a juror, the court should sustain a challenge to such a juror in the interest of justice (State v. Russell, 73 Mont. 240, 235 P. 712), and, where a juror admits bias, his subsequent statement that he can consider the evidence impartially should be received with caution, for, “even though a juror be biased, he will, it is said, seldom admit inability to act impartially” (15 Cal. Jur. 430, and cases cited). On the record, we are of the opinion that the court properly exercised its discretion in excusing juror Boslaugh.

2. It is next contended that the court erred in overruling defendant's motion for a directed verdict, in that the evidence does not show that the defendant either purchased or received the stolen calves.

Two Indians from the Northern Cheyenne Indian Reservation testified that, in the fall of 1929, defendant told them that he would pay them $25 a head for all “slicks” they would bring him, but on delivery they were to come to his place at night and not let any one see them on the road. A “slick” is an unbranded animal. These witnesses confessed to stealing the animals involved in this case; they testified that, on a cold night just beforeChristmas in 1929, they drove to defendant's house in a truck in which they had the three unbranded calves; that defendant was in bed, but arose and dressed, and then said that he could not take the calves as he then had no money, but stated, “We will take them over to Groom's.” Defendant drove the truck to the Groom ranch, where the calves were unloaded, and defendant had a private conversation with Groom during which both men were searching in their pockets “getting money,” which was all taken by defendant and paid over to the witness Roundstone. The amount was $75. The evidence is that the calves were worth from $40 to $45 per head. The calves were later taken from the Groom ranch and were found to bear Groom's brand.

The witness Roundstone testified that, on a previous occasion and after defendant's offer to purchase “slicks,” he had stolen two calves on the reservation and delivered them to the defendant, who had paid him for them.

The defendant denied that he ever offered to buy “slicks” from the Indians, but testified that he did receive two calves from Roundstone's confederate “Limpy,” in part payment on a car; Limpy assuring him that he had a right to sell the calves, as they were from his wife's milk cows. His version of what took place on the night in question was that Roundstone awoke him and told him he wanted to sell him some calves; that he replied that he was not buying any, and then Roundstone asked him to go with them to Groom's to help unload the calves, which he agreed to and did do; that Groom asked if the price was the same, $25 per head, and on receiving an affirmative reply, counted out the money and handed it to defendant to count, which he did, and then passed it on to Roundstone. As to what took place at his house, defendant was corroborated by a boy said to have been in bed in the kitchen.

Counsel for defendant assert that, while it is true that the evidence “might show the defendant Huffman to have been an accessory to the larceny of the animals described in the information, there is no evidence to show that he bought the animals or that he received them.” In this counsel are mistaken. In the information defendant is charged as a principal, with Groom, in the crime of receiving stolen property. Section 10732, Revised Codes 1921, declares that “all persons concerned in the commission of a crime, *** whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission *** are principals in any crime so committed.”

Taking the testimony of the Indians, believed by the jury, at its face value, while the defendant offered to purchase from them stolen property, he was not present when these particular animals were stolen, and it cannot be said that he either aided or abetted the thieves, although he may have advised and encouraged the stealing of the animals, yet, even though there is no positive evidence that he had any prearrangement with Groom and thus, as a joint operator with Groom, personally received the property, he certainly aided and abetted Groom in securing possession of the animals. If this was done with guilty knowledge that the animals were stolen and with the felonious intent of preventing the owner from again possessing its property, defendant was under the above statute a principal in the crime of receiving stolen property, whether or not he could have been prosecuted for the larceny. The evidence and circumstances surrounding the night delivery of the animals justify the inference that defendant had that knowledge and harbored that intent, which facts may be established by circumstantial evidence. State v. Moxley, 41 Mont. 402, 110 P. 83, 85.

The crime of receiving stolen property, defined in section 11388, is a distinct statutory crime, and one who, after the crime of larceny is completed, being present, aids and abets others in receiving the stolen property, with knowledge that it was...