State v. Mullins

• Decision Date: 21 June 1918
• Docket Number: 4174.
• Citation: 173 P. 788,55 Mont. 95
• Parties: STATE v. MULLINS.
• Court: Montana Supreme Court

173 P. 788

55 Mont. 95

STATE v. MULLINS.

No. 4174.

Supreme Court of Montana

June 21, 1918

Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.

Benjamin Mullins was convicted of grand larceny, and from the judgment and an order denying motion for new trial, he appeals. Reversed and remanded.

John Collins, of Dillon, for appellant.

W. G Gilbert, of Dillon, S. C. Ford, of Helena, and Frank Woody of Butte, for the State.

SANNER J.

By an information filed in the district court of Beaverhead county G. H. Moller and Benjamin Mullins were jointly charged with the crime of grand larceny, in that on or about the 13th of July, 1917, they did steal, take, and carry away 1,000 pounds of wool of the value of $500, the property of P. A. Dansie. Both the accused were apprehended, but pending trial Moller died. Mullins was arraigned, pleaded not guilty, and upon his trial was convicted. From the judgment as well as from an order denying his motion for new trial he appeals, and the grounds upon which a reversal is sought are the refusal of two offered instructions and that the evidence is insufficient to justify the verdict.

The salient material features as presented by the state are: P A. Dansie, a wool grower residing near Daly's Spur, about 14 miles south of Dillon, was in the fore part of July engaged in hauling his wool and loading it on cars at Daly's Spur. He needed men, and through his brother at Dillon hired Mullins and one other man whose name is not given. Mullins had arrived in Dillon a day or two before and was seen with Moller, who introduced him to Opp as an old acquaintance. Mullins appeared at Dansie's on Tuesday, July 10th, working there the afternoon of that day and the whole of the following two days, quitting on Friday, the 13th. On Wednesday, the 11th, he borrowed a horse from Dansie to go to the public telephone station at Henneberry's, Dansie having no telephone. Henneberry's is a short distance away, and Mullins said as he left, "I am wanted at Helena as a witness," or that he had to phone to Helena because he was wanted as a witness there. Arriving at the station, he had Henneberry call up Moller, who was working for Sullivan's barn at Dillon. He spoke a few sentences to Moller which Henneberry did not hear, except the last phrase, which was, "at Daly's Spur," or "I am at Daly's Spur." Shortly after Mullins began to work one of the wagons broke a tongue, and Dansie sent to Dillon for another tongue and a reach, expecting them to arrive on the local freight Thursday evening, July 12th. He mentioned the matter at supper, and Mullins offered to go to the station to see if they had come. Mullins went, and had not returned to the ranch at 10:30 that evening. On the same or the next evening Dan Sullivan went to his barn at 11:30, expecting to find Moller, who had charge at night. Moller was not there, but was out with the mule team, as Sullivan was told, and had left the barn in charge of one Naylor. On Friday morning Moller paid Opp, the day man at the barn, $10 for a drive which Moller said he had made with the mule team the night before. Mullins quit Dansie's Friday morning, taking a check for $9, the wages due him, but before he left he was heard to ask a fellow employé for a loan of 50 cents to pay his fare to Dillon. Saturday morning at 6:30 or 7 o'clock Moller, accompanied by Mullins, came to the house of Bassett, a dealer in hides, pelts, and wool, driving the Sullivan mule team and a wagon loaded with 619 pounds of wool in small sacks. Moller reported to Bassett that the wool had been shorn from a stray band and sold it to Bassett for $309.50. Bassett gave his check, which Moller cashed. Mullins took no part in these transactions except to hold the team which seemed to be bad. Later in the day Bryan saw Mullins at a saloon in Dillon buying drinks, and Mullins showed a roll of money containing at least five $20 bills. The Dansie wool arrived at Dillon on Monday the 16th, when it was ascertained that three sacks of it were gone. The wool sold to Bassett was identified as Dansie's. The sacks in which it had been first packed were found behind Sullivan's barn. There was also evidence in the loft of Sullivan's barn that wool had been handled there.

That this evidence suffices to establish Moller's guilt need not be doubted. That one may conjecture circumstances which will show an opportunity in Mullins to take part in the stealing and which, together with the proven facts, would justify a strong suspicion against him cannot be questioned. But how, as it stands, shall this evidence be said to command the inference, so that one may say beyond reasonable doubt that Mullins took part in the stealing, or, being present aided and abetted therein, or, not being present, had advised or encouraged the same? The only positive fact implicating Mullins is that he and Moller drove to Bassett's, where he held the team while Moller sold the wool; and, assuming Moller's possession to be that of Mullins, still possession of property recently stolen is only a strong circumstance, not alone...