State v. Newman

• Decision Date: 29 October 1906
• Citation: 87 P. 462,34 Mont. 434
• Parties: STATE v. NEWMAN.
• Court: Montana Supreme Court

87 P. 462

34 Mont. 434

STATE v. NEWMAN.

Supreme Court of Montana

October 29, 1906

Appeal from District Court, Custer County; C. H. Loud, Judge.

Defendant T. J. Newman, was convicted of forgery, and he appeals. Affirmed.

Milburn J., dissenting.

Sydney Sanner and Geo. W. Farr, for appellant.

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

HOLLOWAY J.

T. J Newman was convicted of the crime of forgery, and has appealed from the judgment, and from an order denying his motion for a new trial.

The information in this case is in all substantial particulars the same as the one heretofore considered by this court in Re Terrett, 34 Mont. 325, 86 P. 266. The questions of the insufficiency of the information and the unconstitutionality of section 3078 of the Political Code and section 3072 thereof, as amended by chapter 94, p. 166, of the Laws of 1903, are disposed of by the decision in that case. At the trial the defendant objected to the introduction of any evidence, on the ground that the information is indefinite, unintelligible, and uncertain. But this objection, coming after a plea of not guilty, was of course unavailable. The plea to the merits waived this objection. Defendant then moved the court to require the county attorney to state whether the prosecution was proceeding under section 3078 of the Political Code, or section 840 or 848 of the Penal Code. This motion was overruled. We know of no rule of law which requires the county attorney to state the particular section of the Code, under which the defendant is being tried. It seems plain enough from the information in this case, that it was drawn under section 3078 of the Political Code, and doubtless the trial court thought so. In any event, the defendant could not have been prejudiced by the court's ruling; for, before the defense was commenced, it was definitely stated that the prosecution was being conducted under section 3078, above. Certain bounty claim certificates were introduced in evidence over the objection of the defendant, and it is urged that the ruling of the trial court was erroneous, for the reason that no proper foundation had been laid. It is said that the state was proceeding upon the assumption that these certificates were public records, while in fact they were not such. But irrespective of whether they were public records, in every instance the certificate offered was an original, and was properly identified by the parties who made the affidavits, by the county clerk who attached his certificate, and by proof of the signatures of the defendant to the jurats, and to the inspector's certificate. A witness, J. L. Foster, was permitted to testify for the state, over the objection of the defendant, that his name was not indorsed on the information. It does not appear from the record whether this witness was known to the county attorney at the time the information was filed. Section 1734 of the Penal Code provides: "The county attorney must indorse upon the information at the time of filing the same, the names of the witnesses for the state, if known." This section was considered in State v. Sloan, 22 Mont. 293, 56 P. 364, and State v. Schnepel, 23 Mont. 523, 59 P. 927, and the question now raised by defendant, determined by this court adversely to his contention.

The defendant Newman was a bounty inspector in Custer county and was charged with forging a bounty certificate. There is not any conflict in the testimony. S. A. Hotchkiss, a resident of Custer county, took to the defendant, as bounty inspector three coyote skins in order to receive the bounty upon them. There seemed, however, to be a well-founded opinion prevalent that, instead of defendant performing the duties of his office, as required by law, he was engaged in trafficking in bounty claims; so that when Hotchkiss took these skins to the defendant, instead of proceeding according to law to secure the bounty, he merely sold to the defendant the bounty claims at a discount of 45 cents on each, signed in blank the affidavit of the person killing the animals, and an assignment of the claim in blank, and received his money for the claims. The defendant himself solicited one Herman to sign the resident stockgrower's affidavit, and this was done, although Herman says himself that he did not even see the skins. Defendant then filled up the affidavits, and made his own certificate as inspector, in which he certified that Hotchkiss had presented for examination, and that he as such inspector had examined and properly marked, 16 coyote skins. These papers were then taken to the county clerk, who certified that Hotchkiss had presented the bounty inspector's certificate that 16 coyote skins were marked as required by law, although as a matter of fact Hotchkiss had not seen the papers from the time he signed them in blank in Newman's place of business, until the time of the trial of this case in the district court. The assignment of the claim which Hotchkiss signed in blank was filled up, and the name of one Etna Western inserted as assignee of Hotchkiss, and a claim of $48 on the state's bounty fund duly presented to the state board of examiners for allowance, although Hotchkiss' claim had amounted to but $9, and this he had sold to the defendant for $7.65. For the purpose of showing that the insertion of the figure "16" instead of the figure "3" in the inspector's certificate, as designing the number of skins presented by Hotchkiss, was not the result of accident, mistake, or inadvertence, but done malo animo, the state, over the objection of defendant, offered evidence to show a general plan or system by which the defendant was operating. The evidence consisted of bounty-claim certificates and testimony of witnesses, showing other like transactions by Newman about the same time that the one was had with Hotchkiss. For instance: Homer Lewis presented three coyote skins at Newman's place of business, and, although Newman was not present at all, sold the bounty claims to Newman through Newman's sister who acted for him, signed an affidavit in blank and a blank assignment of the claim, had his witness sign the resident stockgrower's affidavit in blank, received $2.50 or $2.65 for each skin, and left, not having seen Newman at all. The affidavits of Lewis and his witness were filled up, and Newman attached his jurats as inspector, reciting in one instance that Lewis, and in the other his witness, had subscribed and sworn to the facts set forth in the respective affidavits before him, Newman. Newman then filled up his own certificate as inspector, reciting that Lewis had...