State v. Matkins

• Decision Date: 19 February 1912
• Citation: 121 P. 881,45 Mont. 58
• Parties: STATE v. MATKINS et al.
• Court: Montana Supreme Court

121 P. 881

45 Mont. 58

STATE v. MATKINS et al.

Supreme Court of Montana

February 19, 1912

Appeal from District Court, Rosebud County; Sydney Fox, Judge.

James Matkins and another were convicted of grand larceny, and they appeal.Affirmed.

F. V H. Collins and Hathhorn & Brown, for appellants.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

BRANTLY C.J.

The defendants, charged jointly with grand larceny, were convicted and sentenced to terms in the state prison at hard labor--Matkins to a term of four years, and Gatliff to a term of five years.They moved for a new trial, on the ground among others, of newly discovered material evidence which they could not with reasonable diligence have discovered and introduced at the trial.They have appealed from the judgment and from an order denying their motion.The only question submitted for decision is whether the trial court abused its discretion in denying a new trial.

The larceny charged was that of a yearling colt.The evidence introduced by the state tends to show that the colt was foaled by a mare belonging to Warren, the prosecuting witness, in April, 1909; that in October following Warren took it from the dam and left it at the ranch of one Edwards, to be fed and cared for during the fall and winter; that it was put in a pasture in care of one Williams, who had charge of the ranch, where it remained until about the middle of December, when it disappeared with other colts belonging to Edwards; and that in the latter part of March, or the early days of April, 1910, it was found in the possession of the defendants at the ranch of Gatliff, where Matkins was employed, with Gatliff's brand upon it.Gatliff resided upon his ranch in Rosebud county, in the same general vicinity in which the Edwards ranch was situated, but several miles away.The Edwards ranch was about 35 miles from Forsyth, the county seat, where Warren resided.The controversy in the evidence was as to the identity, or, what is the same thing, the ownership, of the colt.The testimony of Warren and other witnesses was positive and circumstantial as to its birth, history, and physical markings.The defendants, not disputing the fact that Warren had lost a colt by larceny or otherwise, claimed and endeavored to show that the one found in their possession had been foaled on the range by a mare belonging to Gatliff, and had been taken from her during the month of December, 1909, and driven with other animals to the Gatliff ranch, to be fed and cared for during the winter.There was evidence tending to show that the colt was taken to the Gatliff ranch before the colt disappeared from the Edwards pasture, and was there at the time.There was also evidence tending to show that it differed materially in its general appearance and markings from that claimed and described by Warren.Gatliff did not offer himself as a witness, though the testimony of other witnesses showed that at the time of his arrest he claimed ownership of all the colts found in his possession.No declaration was then or thereafter made by either defendant, other than a statement made by Matkins to the deputy sheriff at or about the time of his arrest, as follows: "You have got me now.How many more have you got in this case?"

In support of the motion several affidavits were presented; the one upon which the defendants chiefly rely being that of one Fred Cration.He alleges in detail his acquaintance with the defendants and the prosecuting witness, a knowledge of the locality of the Edwards and Gatliff ranches, a knowledge of the colt described by Warren as the one stolen from him by the defendants, as well as those claimed by Edwards, his acquaintance with the testimony given by Warren at the trial of defendants, and then proceeds: "At the time of the alleged larceny of the said Warren colt and the said Edwards colts, I was residing on what is known as Sarpy creek in Rosebud county, Mont., about 12 miles from the Edwards ranch, where said colts were claimed to have been located, and about 18 miles from the ranch of said defendant Gatliff; that I was present at the time of the preliminary examination of the said Gatliff and Matkins, upon which an information was filed, and upon which the trial herein mentioned was had in Forsyth, during the latter part of November, 1910; that I saw the colt claimed by the state and its officials to have been stolen from the said Warren by the said defendants; that I had seen said colt long previous to the time of said preliminary examination, and while it was in the possession of the defendant Gatliff; that I know personally that the colt mentioned by the said Warren in his testimony was not the colt which was mentioned by the said Warren in his testimony at said trial; that I know personally that the colt which I saw at the time of the preliminary examination and the colt testified to by the witness Warren in said trial was not the property of the witness Warren, and have every reason to believe, and I am practically sure, that said colt was the property of the defendant Gatliff; that, at the time of the trial of said defendants Gatliff and Matkins, I was indicted for grand larceny in Rosebud county, Mont., and did not advise any person or persons of my knowledge in connection with the taking of the Warren colt, for the reason that I considered any such information to be prejudicial to my rights in the case then on trial; that at the time of the trial of Gatliff and Matkins neither of said defendants, nor any counsel connected or employed by them, had any knowledge of the facts known by me in connection with said affair, and could not have obtained the same, until after a dismissal of the case of the state of Montana against myself, for the reasons hereinbefore stated; that there is another reason why I did not give this information previous to the trial of said Gatliff and Matkins, and that is that I knew that neither the said Gatliff or the said Matkins had anything to do with the taking of said Warren colt, and I believed that justice would be done in the premises, and that the said defendants nor either of them would be unjustly convicted; that since the conviction of said Gatliff and Matkins I realize and know that an unjust conviction has been had and two innocent men have been sentenced for a violation of law, of which neither of them are guilty, and I feel that it is my duty to make a statement of the true facts, as they exist, that justice may be done to the said defendants and the state of Montana in the premises; that during the latter part of December, 1909, I personally went to the pasture of Charles C. Edwards mentioned hereinbefore and where the Warren colt in controversy then was, and took said Warren colt from said pasture, without the assistance or knowledge, so far as I know, of any other person or persons; that, after taking said colt from said pasture, I kept said colt in my possession for a considerable length of time, and then sold, disposed of, and delivered said property to a resident of Rosebud county, Mont.; that, to the best of my knowledge and belief, said colt has been in the possession of the person to whom I sold it ever since the time of said sale, and is now in the possession of the person to whom I made such sale, in Rosebud county, Mont., and can be produced at retrial of said action or at any other time, when the person to whom I sold said colt is called upon to produce it; that the sale of said Warren colt was made to the purchaser herein mentioned some time in the spring of 1910, at which time said colt, together with other live stock, was running upon the common range; that, after the sale of said colt and other live stock, said colt was rounded up and delivered by me to the said purchaser, with other live stock, at which time I told and represented to said purchaser that I was the owner of said colt and other live stock, and that no person had any claim upon or to the same; that said purchaser had no means or knowledge, either directly or indirectly, of knowing or assuming, that I was not the absolute owner of said colt and other live stock and entitled to transfer and deliver the same; that the name of the purchaser to whom said colt was sold as hereinbefore stated is George Johnson, now residing on Beaver creek, in Rosebud county, Mont. I am making this affidavit freely and voluntarily and simply that justice may be done in the premises, and, if called as a witness at this time or at any other time in the above-entitled cause in the above-named court, I will testify to the same facts as are set forth in this affidavit."

George Johnson states that he has read the affidavit of Cration, and also the transcript of the testimony of Warren as given at the trial, especially that part of it in which Warren gave a description of the colt claimed by him.He then avers "That during the year A. D. 1910 I purchased from the said Fred Cration above mentioned a colt which, as I understand it, answers the description given by said Warren in said testimony, and which I know to be the colt mentioned in the affidavit of said Cration as being the colt of said Warren, for that the colt which I now refer to is the only colt purchased by me from said Cration; that I purchased said colt in connection with a saddle horse, and that the said colt and said saddle horse were delivered to me by said Cration, and that said colt and said saddle horse are both now in my possession, and that I am willing to produce said colt on retrial of said cause, or at...