State v. Hughes
| Decision Date | 14 June 1926 |
| Docket Number | 5905. |
| Citation | 246 P. 959,76 Mont. 421 |
| Parties | STATE v. HUGHES et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Big Horn County; Robert C. Stong, Judge.
Barney McClain and Greeley Hughes were convicted for the larceny of a stag. From an order granting defendants a new trial, the State appeals. Reversed and remanded, with directions.
L. A Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and T. H Burke, of Hardin, for the State.
Guinn & Maddox, of Hardin, and H. Glenn Kinsley, of Sheridan, Wyo for respondents.
On a motion for a rehearing, the original opinion handed down in disposition of this appeal on May 25, 1926, is withdrawn, and this one substituted.
By information, the defendants were jointly charged with the larceny of "one certain stag branded 9b on the left ribs, the property of one David Bell." On their pleas of "not guilty," they were tried jointly before a jury. On the conclusion of the evidence and regular submission of the case, the jury returned separate verdicts finding each of the defendants "guilty as charged," and leaving the fixing of the punishment to the court. Accordingly, the court sentenced the defendant Barney McClain to a term in the state prison at Deer Lodge of not less than four nor more than eight years, and the defendant Greeley Hughes to a term of not less than three nor more than six years in such prison. Separate judgments were thereupon duly entered. Thereafter the defendants made joint motion for a new trial, which was granted by the court, and the judgments theretofore entered ordered to be set aside. The state has appealed from the order granting the defendants a new trial and vacating the judgments.
The only question presented on the determination of the merits of the appeal is whether the court erred in making the order.
The motion for a new trial, made and filed by the defendants, was predicated upon the following grounds: (1) That the court misdirected the jury in matters of law; (2) erred in the decision of questions of law arising during the course of the trial; and (3) that the verdict is contrary to the law and the evidence. Such motion was made in conformity with the statute (section 12048, R. C. 1921), and presented for the court's determination question as to the sufficiency of the evidence to justify the verdict. State v. Schoenborn, 55 Mont. 517, 179 P. 294. As shown by the court minutes, the motion for a new trial was granted, but the motion in its entirety was not passed upon. The minutes recite "order signed," and then follows the order mentioned, from which it is clearly shown that a new trial was granted the defendants solely upon the ground that the court had committed error in the admission of testimony tending to prove other independent like crimes committed by them. The other grounds of the motion were unheeded by the court. The defendants had an absolute right to have all of the grounds of their motion for a new trial passed upon, and the court's failure so to do of necessity requires the cause to be remanded to the trial court in order that it may pass upon the defendants' motion in its entirety, unless we should conclude that the court was correct in its views of the law on the sole question upon which the order granting the defendants a new trial is predicated. The general rule established in this state is that the opinion of the district court, rendered in disposition of questions presented, does not properly constitute a part of the record on appeal ( Mutual Benefit Life Ins. Co. v. First Judicial Court, 16 Mont. 274, 40 P. 600; Porter v. Industrial Printing Co., 26 Mont. 170, 66 P. 839, 67 P. 67; Phillips v. Coburn, 28 Mont. 45, 72 P. 291), but it can have no application here for, upon reference to the minute entry to determine the action taken by the court on the motion for a new trial, it appears beyond question that the court limited its order granting a new trial solely to its alleged error in the admission of testimony in rebuttal against the defendants, tending to prove the commission by them of other offenses. This appears from the minute entry itself. It is not the court's opinion from which we determine the action taken, but rather from the court minutes. They recite "order signed," and then the order is set forth showing the court's ruling with respect to but one of the several grounds upon which the motion for a new trial was based. The court might have considered the evidence insufficient, a matter which we are not in position to consider until decision thereon has been made by the trial court.
The scope of our inquiry is therefore limited alone to the question of whether the testimony admitted tending to prove the commission of other like crimes by the accused is legally admissible.
A prima facie case was established by the state tending to show the larceny of the animal as charged. In defense, the accused admitted the branding of the stag with McClain's brand, Walking YM Bar, but asserted right so to do by reason of an arrangement said to have been made by the defendant Hughes with the owner of the animal, David Bell, about two months previous, in effect that Hughes might, upon finding the stag, brand it and thereafter make payment to the owner, and that, at the time of branding the animal, it was agreed to place the brand of the defendant Barney McClain thereon as security for money which McClain had agreed to advance to pay for the animal.
In rebuttal, testimony was admitted tending to show that the brands on other cattle belonging to known owners had been worked, and the brands of the defendant Barney McClain substituted, that they gave indication of having been recently placed upon such animals, and that such cattle were seen by the witnesses about the time of the alleged larceny of the stag in question. No evidence was offered connecting up these transactions so as to show that the branding was unlawful, and such testimony was later withdrawn from consideration by the jury. However, independent evidence was admitted and permitted to stand, to the effect that some time the latter part of July, 1925, a cow...
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