State v. Jolly

• Decision Date: 04 September 1941
• Docket Number: 8203.
• Citation: 116 P.2d 686,112 Mont. 352
• Parties: STATE v. JOLLY.
• Court: Montana Supreme Court

116 P.2d 686

112 Mont. 352

STATE v. JOLLY.

No. 8203.

Supreme Court of Montana

September 4, 1941

Appeal from District Court, Twelfth Judicial District, Hill County C. B. Elwell, Judge.

Clayton J. Jolly was convicted of receiving stolen property, and he appeals.

Reversed and information dismissed.

Jess L Angstman, of Havre, for appellant.

John W Bonner and Fred Lay, both of Helena, and Oscar C. Hauge, of Havre, for respondent.

JOHNSON Chief Justice.

Defendant appeals from a judgment of conviction of receiving stolen property. The contentions are that there was no substantial evidence to support the judgment, and that the court erred in entering judgment and in denying defendant's motion for a new trial. The only question is whether there is competent evidence to sustain the jury's conclusion that when the defendant bought or received the stolen property he knew it to have been stolen. § 11388, Rev.Codes.

Although the machinery, consisting of an air compressor and motor, was stolen sometime between October, 1938, and February, 1939, the defendant testified that he bought it about June 1, 1939, from a man who had operated a beer parlor at the Fresno Dam but had since died; that he did not then know that it was stolen, and that he never made the statement attributed to him by the witness Dees hereinafter mentioned. The motor and compressor were painted green prior to the theft but were painted white or gray when found in defendant's possession, thus changing their appearance and concealing the numbers on the compressor. Prior to its installation in the cellar it was kept in a public card room at the rear of the beer parlor with something thrown over it, and again after the cellar had been flooded it was in full view in the beer parlor until reinstalled. The defendant testified that it was of the same color when he bought it and that he did not intentionally conceal it at any time. The only evidence bearing upon defendant's guilty knowledge was that of the witness Dees.

Dees testified that he had known defendant for about three years and had worked for him at the beer parlor in the fall of 1938 and at times during 1939; that he first saw the air compressor and motor in the card room at the rear of the beer parlor about the middle of June, 1939; that it was then painted white and there was a "canvas coat or something" thrown over it; that he helped the defendant install it in the basement shortly before July 4th, 1939, to furnish compressed air for the beer. His testimony continued in part as follows, upon examination by the prosecution:

"Q. Now, did you ever hear Mr. Jolly tell you to be careful about it? A. I don't recollect.

Q. Did you ever hear Mr. Jolly say that it was hot and that you would have to be careful? A. I don't recollect that. I don't remember."

The county attorney then asked and without objection was permitted to cross-examine the witness. He conducted a lengthy cross-examination during which there was admitted, without any objection or effort to limit its evidentiary effect, an affidavit made by Dees about three months before the trial. In the affidavit Dees stated that when he helped Jolly install the equipment during the spring of 1939 "Jolly told Dees that it was 'hot' and that they would have to be careful."

The sheriff also testified without objection that on November 20, 1940, less than three weeks before the trial, Dees told him that Jolly had made the statement.

No objection was made to any of this evidence, nor was there any attempt by offered instructions or otherwise to limit its effect to the impeachment of the witness or to instruct the jury to disregard it for other purposes.

The argument on appeal is limited almost entirely to the effect of evidence of prior conflicting statements of a party's own witness under section 10666, Revised Codes, and the circumstances here shown; whether it is limited to the purpose of impeachment, or whether it constitutes affirmative evidence of the fact stated. The question whether under the circumstances the so-called impeachment should have been permitted is not raised, no objection of any kind having been made by the defense.

While the weight of authority would limit such evidence to the impeachment of the witness' subsequent testimony on the stand (2 Wigmore on Evidence, 2nd Ed., 459, § 1018), the better reasoning would seem to support the other view (3 Wigmore on Evidence, 3rd Ed., 687, § 1018), since the prior statement is not properly subject to objection as hearsay, the witness being present in court for cross-examination concerning it.

The former rule was stated as the law in State v. Kinghorn, 109 Mont. 22, 93 P.2d 964, largely upon the authority of the above section from Wigmore as quoted from the Second Edition in State v. D'Adame, 84 N.J.L. 386, 86 A. 414, Ann.Cas.1914B, 1109, prior to its amendment in the Third Edition, as above cited, to state the more logical rule.

The old rule was stated also as the law in State v Willette, 46 Mont. 326, 127 P. 1013, 1016, and seems never to have been overruled. Therefore if stare decisis is to control it must be held that the effect of the evidence should be limited to impeachment. However, that would be of no avail to defendant here, since here, as in the Willette case, no attempt was made by objection, offered instruction, or otherwise, to limit the effect of the evidence. In that case this court, speaking through Mr. Chief Justice Brantly, said: "An instruction limiting...