State v. McCarthy

• Citation: 92 P. 521,36 Mont. 226
• Parties: STATE v. McCARTHY.
• Decision Date: 23 November 1907
• Court: United States State Supreme Court of Montana

92 P. 521

36 Mont. 226

STATE v. McCARTHY.

Supreme Court of Montana

November 23, 1907

Appeal from District Court, Silver Bow County; Geo M. Bourquin Judge.

W. H McCarthy was convicted of grand larceny, and appeals from the judgment and an order denying a new trial. Reversed and remanded.

Peter Breen and W. F. Barta, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

SMITH J.

The defendant in the above-entitled action was convicted in the district court of Silver Bow county of the crime of grand larceny, and appeals from the judgment and also from an order denying him a new trial.

Numerous errors are relied upon by his counsel for a reversal of the judgment and order, among others, that the court erred in overruling the motion for a new trial, for the reason that the evidence is insufficient to justify the verdict. If this motion should have been granted, it will be unnecessary for this court to examine many of the other questions raised by appellant. In the case of State v. Foster, 26 Mont 71, 66 P. 565, the court said: "The rule has frequently been declared by this court that an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, and that, where there is a substantial conflict in the evidence, the action of that court in granting or denying the application will not be disturbed on appeal. If, however there is no substantial evidence to support the verdict, a different rule applies. In the latter case it becomes the duty of the trial court, as a matter of law, to vacate and set aside the verdict, and, if it refuses to do so, its action will be held erroneous." At the conclusion of the state's testimony, the defendant, through his counsel, requested the court to instruct the jury to bring in a verdict of not guilty, "for the reason that there is no testimony whatever to connect this defendant with the commission of the crime, and no corroboration whatever of the testimony of the accomplice in this case." This instruction was refused.

The facts shown by the evidence are, substantially, as follows: William Wright, a resident of Pony, Mont., arrived in Butte between 2 and 3 o'clock on the morning of January 9, 1907. He went to bed at a rooming house near the railroad depot in South Butte a short time after his arrival, and arose about 7 o'clock the same morning, when he took two drinks of whisky, had his breakfast, boarded a street car, and went to the central part of the city of Butte, where he remained until about 1 o'clock. He then returned to the vicinity of the railroad station in South Butte, and went into the defendant's place, which was a saloon directly across from the station. Earlier in the day he had met a man called "the Frenchman," in South Butte, and afterwards met this man up town, had a drink or two with him, and they returned to South Butte on the street car together. He says in his testimony that he "knocked around" South Butte for a few hours in the afternoon, and finally went into defendant's place, where he had another drink or two with the "Frenchman," and, as he was about to leave, the defendant McCarthy tapped him on the shoulder and said,"I want to introduce you to a friend of yours." He then went into a wineroom in the rear of the saloon, where he met a woman, for whom he bought three or four drinks and with whom he took at least one drink himself. McCarthy did not remain in the wineroom after introducing him to the woman, or, so far as the witness Wright knows, go back to the wineroom again while Wright was there. Wright wore two pairs of overalls, in the pocket of the inner pair of which he had a pocketbook containing about $110, but, he says, he did not exhibit the bulk of his money to the woman in the wineroom. She asked him how much money he had, but he refused to tell her. "Finally," he says, "the woman bought a drink," and, after taking it, he does not remember anything for about four hours. He testified that he went to sleep in the wineroom, and, when he woke up, he was out in the barroom, sitting in a chair, and the defendant was sitting about three feet from him. There were several other persons in the room at this time. He felt for his money, and found that the pocketbook had been taken from his inner overalls pocket, and placed in the outer pair, and that the money was all gone, with the exception of $3 or $4. He made no complaint to McCarthy, but walked out of the saloon, and told some one on the outside that he had been robbed. While in the wineroom, he gave the woman $3. He does not know where he may have been between the time he went to sleep in the wineroom, after he took the last drink, and the time he was awakened in the chair, but thinks that he must have been carried from the wineroom to the outer saloon by some one. He was feeling all right when he awakened-the same as he usually felt when he woke up in the morning. He afterwards went back to McCarthy's place, and took a drink with a stranger.

A witness, called May Miner, testified that she was the woman to whom Wright was introduced by McCarthy; that she had several drinks with him in the wineroom, when he appeared to become very much intoxicated, became angry at her because she would not tell him the number of her room, and left the room. She started to leave a few moments later, and, as she was passing out of the door, she met the defendant McCarthy, who asked her, "where is the money?" She indicated by a motion that Wright had it in his trousers pocket. She says that on the night in question she was sent for to come to McCarthy's place, where she had often been before; that she does not know who sent for her, but that she had an understanding with McCarthy, prior to this time, that, when she was in the wineroom, she should induce men to drink as much as possible. She testifies: "I knew what was expected-that I should drink with the gentlemen. Mr. McCarthy made the suggestion at one time that I might help the men to spend their money, but on this day, the 9th, I had not seen Mr. McCarthy until I went down to the saloon, and I saw him not at all after that evening. The only real understanding was that he [the man introduced] was to be induced to drink as much as possible for the purpose of getting all of his money. I know of two circumstances where men went away with no money; but there was only one case where the money was willfully taken away from the man to my knowledge. In that case a gentleman had been drinking wine and he refused to pay McCarthy, but McCarthy took the money, just simply for the wine; and in the other case the man had gone to sleep and was dropping his money, and I took it in my hand and called for McCarthy, and he took it, and gave me a part of it. This last man had been drinking, but he had been paying for his drinks as he got them. When McCarthy introduced Wright to me, I understood my duties to be the same...