State v. Postal Telegraph Cable Co.
| Decision Date | 18 December 1916 |
| Docket Number | 3907. |
| Citation | 161 P. 953,53 Mont. 104 |
| Parties | STATE v. POSTAL TELEGRAPH CABLE CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Michael Donlan Judge.
The Postal Telegraph Cable Company was convicted of communicating and transferring information for the purpose of having a bet or wager made upon a horse race, its motion for new trial was overruled, and it appeals. Reversed and remanded.
William Meyer, of Butte, for appellant.
J. B Poindexter, Atty. Gen., and C. S. Wagner, Asst. Atty. Gen for the State.
The Postal Telegraph Cable Company was convicted of communicating and transferring information for the purpose of having a bet or wager made upon a horse race, and appealed from the judgment and from an order denying its motion for a new trial.
The evidence discloses: That about January 18, 1916, two saloon keepers in Butte were making and registering bets upon horse races presumably being run at Juarez, Mexico, and New Orleans, La. That the necessary information concerning the races was furnished to the bookmakers by one Harris. That Harris employed a stenographer to make copies of the race sheets which disclosed the character of the races, the names and numbers of the entries, the names of the riders, the betting odds, etc., which sheets were thereafter delivered to the bookmakers. That the stenographer had an office or workroom in the Pennsylvania Block, in Butte. That messenger boys from the defendant company's office were seen frequently going from the telegraph office to the Pennsylvania Block. That on January 15, 1916, Walter Reed delivered to a messenger from defendant's office a message for transmission to Kansas City. That a reply was received, but not over the defendant's line. That on one occasion, when the report of the races was delayed, one of the bookmakers went from his place of business to the defendant's office, and upon his return reported that "there was wire trouble; the results would be coming in very shortly." That on another occasion the other bookmaker visited the defendant's office. That on January 17, 1916, C. C. Slavens sent a code message by the Western Union Telegraph Company to the Thiel Detective Agency in Kansas City.
That on January 18th the clerk of the Butte Hotel delivered to Slavens a paper in the form of message blanks used by the defendant, upon which was printed and written the following:
"Bo Kansas City Mo Jany 18-16.
C. C. Slavens, Butte Hotel, Butte, Mont.
Bet on Quiz fifth race to-day at Juarez straight, place and show.
Henderson."
That the Western Union, the Continental, and the Postal Telegraph Companies were engaged in business in Butte. That in addition there were three or more private wires into Butte, and telephone and letter communications reaching Butte. There was evidence tending to show that the Slavens message was not transmitted by either the Western Union or Continental.
The foregoing fairly epitomizes the material evidence in the case, and much of this was purely hearsay, introduced over the objections of the defendant.
It will be observed that there is not a scintilla of direct evidence connecting the defendant with the violation of chapter 55, Laws 1915, the statute under which this prosecution was sought to be maintained. This fact alone is not significant, for circumstantial evidence is legal evidence, and if it is of such quantity and quality as to establish a defendant's guilt beyond a reasonable doubt, it will sustain a conviction. It is the rule in this state, however, that where a conviction is sought upon circumstantial evidence alone, the circumstances proved must not only be consistent with each other and with the hypothesis of defendant's guilt, but inconsistent with any rational hypothesis other than his guilt. State v. Chevigny, 48 Mont. 382, 138 P. 257; State v. Suitor, 43 Mont. 31, 114 P. 112, Ann. Cas. 1912C, 230; State v. Allen, 34 Mont. 403, 87 P. 177.
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