State v. Judd

• Decision Date: 31 January 1898
• Citation: 20 Mont. 420
• Parties: STATE v. JUDD.
• Court: Montana Supreme Court

20 Mont. 420

STATE

v.JUDD.

Supreme Court of Montana.

Jan. 31, 1898.

Appeal from district court, Silver Bow county; William Clancy, Judge.

John Judd was convicted of grand larceny, and appeals. Reversed.

The defendant was convicted of the crime of grand larceny in the district court of Silver Bow county, and appeals from the judgment. The information charges him with stealing $160, the money of one Jennie Wilson; the defendant being, as is charged, the bailee of said Jennie Wilson; she having, as it seems, deposited the money with him, which it is charged he converted to his own use. The jury, by their verdict, fixed the punishment of the defendant at one year in the penitentiary; and on the 26th day of June, 1897, the court entered judgment sentencing the defendant to prison for that term. On the trial of the case the court permitted, over the objection of the defendant, E. S. Booth and Charles Mattison, Esqs., who were assistant county attorneys at the date of the alleged offense, and also M. L. Holland, who was then a justice of the peace in Butte, to testify in rebuttal as to what Jennie Wilson, the complaining witness, said in relation to the defendant's taking and converting the money in question to his own use. These statements of the prosecuting witness were all made to the said witnesses in the absence of the defendant. The court, at the instance of the state, gave to the jury the following instruction: “If you find that the defendant in this case took the money and property in question, intending to return it to the complaining witness in the case, but did not restore it to her after demand was made on him, and before complaint had been lodged with a court or magistrate, charging the commission of the offense, the fact that he did so intend to return it is no defense to this action. If you believe that he took the money under the circumstances related by the witness Mrs. Wilson, and did not return the same when he was requested so to do, nor has returned the money to her, then you are instructed that the law presumes a guilty intent in the appropriation of said money, and the state does not have to prove such intent, but the burden of proof is on the defendant to show that he had no such intent.” At the instance of the defendant the court gave the following instructions: No. 7. “You are instructed that although you may believe from the evidence, beyond a reasonable doubt, that the defendant received the money in question from Jennie Wilson, and converted it to his own use, still, if you further believe from the evidence that the defendant took the money under a claim of title, honestly entertained, then he is not guilty of larceny; and in such case it makes no difference whether he did in fact have any legal right to the possession of the property or not.” No. 8. “The intent in this case is of the essence of the offense charged, and the intent is necessary to complete the crime of larceny; for if the defendant, under an honest impression that he had a right to spend the money in question, did so appropriate the same to his own use, and spend it, this would not be larceny.” After the jury had retired to consider of their verdict, it seems that they were of the opinion that the instructions on the part of the state and those given at the instance of the defendant were inconsistent and conflicting, whereupon they returned into court, and asked for further instructions. Thereupon the court instructed the jury as follows: “The court, of its own motion,...