State v. Mason

• Decision Date: 23 July 1900
• Parties: STATE v. MASON.
• Court: Montana Supreme Court

61 P. 861

24 Mont. 340

STATE v. MASON.

Supreme Court of Montana

July 23, 1900

Appeal from district court, Silverbow county; William Clancy, Judge.

John J Mason was convicted of robbery, and appeals. Reversed.

John W Kirk, for appellant.

C. B Nolan, Atty. Gen., for the State.

WORD J.

On the 2d day of February, 1899, in the district court of Silverbow county, the defendant was found guilty of the crime of robbery, and thereafter was sentenced to the state prison for a term of 20 years. No motion for a new trial was made, nor does the record contain any bill of exceptions; and what evidence the record did contain, upon motion, has been stricken out. The appeal is from the judgment, on the judgment roll. It appears from the judgment roll that witnesses were called, and testimony was given in behalf of defendant.

The appellant complains of the following instruction, which it is agreed was given by the court below of its own motion "The court instructs the jury that they are the sole and exclusive judges of the evidence given in this case, and the weight of the evidence, and the character and appearance of the witnesses giving evidence on the witness stand, and also may consider the interest they have in the event of the case; and if, after so considering and weighing all such evidence and fully considering the same, may reject all or any such testimony, where it is not supported or corroborated by other worthy and credible evidence." Counsel for the state on the hearing of the cause admitted that the giving of the instruction was manifest error, but contended that under the rulings of this court, in the absence of all evidence from the record, error in giving or refusing instructions cannot be considered on appeal. It needs no critical examination to detect the error in this instruction of which appellant complains. In it the court, in effect, tells the jury that, no matter how relevant or competent or pertinent the testimony given in defendant's behalf may be,--no matter if they believe every word of it to be true,--they are at liberty to reject such testimony, unless it is supported or corroborated by other competent and credible evidence. This is not the law. The instructions complained of is clearly erroneous, and the presumption is that is was prejudicial to the defendant. It cannot be correct under any supposed state of facts, and so is wrong in the absence of all evidence, as it would be were the evidence before us.

With the record in this case in the condition stated above, the question is, can this instruction be reviewed? It is to be remembered that under section 2176 of the Penal Code "the written charges and instructions, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions," and that section 2229, Id., provides that the judgment roll in a criminal case shall include, among other things, "(3) the charges given or refused, and the indorsements thereon." Sections 2176, 2229, supra, are practically the same as sections 1176 and 1207 of the Penal Code of California, adopted in 1872. In the case of People v. King, 27 Cal. 507, 514, the court said: "It is proper, however, to add, in this connection, that in the absence of any statement or bill of exceptions embodying the evidence, or declaring its purport or tendency, so far as may be necessary to point the exception, we must presume in favor of the action of the court below, upon the principle that the party who alleges error must show it. This, however, must be taken with the qualification that, where the action of the court below is manifestly erroneous under any and every conceivable state of facts, this court will review it, notwithstanding, the evidence may not have been brought up." People v. Levison, 16 Cal. 98, where the defendant was indicted for receiving stolen goods knowing them to be stolen,--a leading case, cited in People v. King, supra,--furnishes an illustration of the qualification above stated. The court below had charged the jury to this effect: "That a guilty knowledge on the part of the defendant is essential to the constitution of the offense. This may be shown either directly, by the evidence of the principal offender, or circumstantially, by proving that the defendant bought them very much under their value, or denied their being in his possession, or the like." The court, in reviewing this instruction, the giving of which was the only error assigned, say: "We understand that the court asserted, as a conclusion of law, that 'the purchase of goods at a great undervalue by defendant is sufficient proof of the knowledge by him that the goods were stolen'. This is not true. Besides, the charge makes a denial by the defendant that the goods were in his possession, whether the denial was truly made or not, proof, and sufficient proof, of the defendant's guilty knowledge. It also leaves the inference that the unsupported testimony of the thief is sufficient to establish the defendant's guilt. *** In this case the jury might well believe the court instructed them, that, if the defendant bought the goods much below their value, this was sufficient to convict him, or, if he denied that he had the goods, this was enough, or, if the thief swore he so received them, this was sufficient. It is true, there is no statement in this case. But, when the instructions are erroneous under any and every state of facts, then this court will review them. For it follows as necessarily in such a case that the court erred to the prejudice of the defendant, when there is no statement, as when one exists. If, however, the instructions may be correct under any supposed state of facts, as the appellant must show affirmative error, we presume in favor of the judgment below, and will not reverse the judgment when no statement appears." In the case of People v. Dick, 34 Cal. 663, for the giving of an instruction wrong under every conceivable state of facts, the court, upon the authority of the cases cited supra, granted a new trial. And in Carpenter v. Ewing, 76 Cal. 487, 488, 18 P. 432, the court again announces the rule as follows: "None of the evidence being brought up in the record, and there being nothing to show its purport or tendency, it will be presumed that it was such as to justify the instructions, and that they were properly given. The settled rule is that where the record contains no part of the evidence the judgment will not be disturbed on account of...