State v. Romero
| Decision Date | 21 July 1965 |
| Docket Number | No. 10841,10841 |
| Citation | 146 Mont. 77,404 P.2d 500 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Fred ROMERO, Defendant and Appellant. |
| Court | Montana Supreme Court |
Arnold A. Berger (orally), Billings, for appellant.
Forrest H. Anderson, Atty. Gen., Donald A. Douglas, Asst. Atty. Gen. (orally), Helena, William J. Speare, County Atty., Billings, for respondent.
This is an appeal by the defendant-appellant, Fred Romero, of a conviction of grand larceny on two counts of grand larceny, brought about by an Information filed February 28, 1964, in the district court of the thirteenth judicial district, in and for the County of Yellowstone.
The case was heard by the Honorable Charles B. Sande, District Judge. Trial was had by jury which resulted in a conviction on both counts and a sentence of fourteen years on each count to run concurrently.
The testimony revealed that in the early morning hours on February 21, 1964, Jerry Aarstad went to the Buffalo Steak House and while there a jacket containing a check in the amount of $90.10 was taken from him. His testimony shows that he laid the jacket down in a booth next to one in which the defendant and others were seated, and while away from the booth approximately three minutes the jacket disappeared. Earlier in the day he had been paid for work done at the Great Western Sugar Company by check No. 12194, in the amount of $90.10. He testified that the check was in an inside zipped up pocket of the jacket when he went to the cafe. When he returned to the booth and noticed that his jacket was missing, he looked on the floor and around the cafeteria and was informed by Mrs. Gladys Finch, a waitress at the Buffalo, Steak House, that the jacket had been taken by the defendant.
Mr. Aarstad called the Billings Police Department and shortly after they arrived the defendant returned to the Steak House and was pointed out by Mrs. Finch as the man who had taken the jacket. He was placed under arrest and later that evening was released on bond. At the time the defendant returned to the Steak House he did not have the jacket with him, and denied that he had taken it.
Mrs. Finch testified that she was cleaning up the booth in which the defendant had sat down and in doing so picked up the jacket and was about to go out into the kitchen to hang it up when she passed the defendant's booth and the defendant said 'That is my jacket', and removed it from her arm. She further testified that immediately after taking the jacket the defendant left the cafe.
Concerning the second count to the Information, that of the forgery of the check in the amount of $90.10, Mr. Robert McCollough, Assistant Manager of the South Side Safeway Store in Billings, Montana, testified that on February 22, 1964, defendant brought in a badly beaten up check to see whether it could be cashed. His testimony concerning this occurrence is as follows:
'He came to the office and asked if he could cash a check that was torn, his children had torn it, and he wondered if it would still be cashable, it had already been mended with scotch tape and it was presentable I thought and would be taken, so I asked him to endorse it which he did and I okayed it and cashed it and gave him the money.'
Mr. McCollough further testifies that he had seen the defendant around the store and positively identified him as the man who endorsed the check in his presence. It should also be noted that he put an address of 419 South 34th Street on the back of the check. When shown the endorsement, the true owner Jerry Aarstad stated that this was not his signature, that he did not live at the address above given, and that his address was 601 Parkhill Drive, Billings, Montana.
Defendant sets forth seven specifications of error, which are as follows:
(1) there was insufficient competent evidence to justify a verdict of guilty;
(2) evidence was presented and received without necessary and proper foundation (3) witness Raymond Wise was improperly endorsed upon the Information, and the defendant was thereby deprived of his right to have two days within which to prepare for trial;
(4) the witness Raymond E. Wise, Jr., who had not been endorsed on the information was permitted to testify;
(5) the jury was improperly instructed;
(6) the defendant was prevented from impeaching a witness on a very important point; and
(7) the defendant did not receive a fair trial.
Concerning specifications 1 and 2, the defendant lays his entire attack on the validity of the instrument in question, towit, the check in the amount of $90.10. While the Great Western check does not contain a date, the testimony does reveal that it was paid to Jerry Aarstad in the amount of $90.10, that it was accepted by him in payment of wages due him. Too, that it was later accepted by Mr. McCollough of the Safeway stores, who accepted the defendant's explanation as to how the check got torn and that the defendant received from Mr. McCollough the $90.10 called for by the check. To argue now that this check was not a negotiable instrument, and does not come within section 55-907, R.C.M.1947, concerning what constitutes a material alteration, must fail, for the tearing of the check and its repair does not constitute a spoilation as set forth in the above statute and is therefore not grounds for avoidance.
It should be further noted that there was no objection to the introduction of the check at the time of trial, nor to the proof of its genuineness. Apparently, the defense counsel at the time of trial relied on the defense of mistaken identity and, such approach having proved unsuccessful, the defendant cannot now be given a new trial for the failure of defense trial tactics at the time of trial.
This court, in the case of Miles City Bank v. Askin, 119 Mont. 581, 591, 179 P.2d 750, 755, 171 A.L.R. 790, said:
Defendant's specifications of error 3 and 4 go to the endorsement of the name of Raymond E. Wise to the Information. It should be noted here that the Information was filed on February 28, 1964, and that the defendant plead not guilty when arraigned on March 2, 1964. The defendant changed counsel on April 24th , and on May 4th the case was set for trial on May 18th. On May 12th the county attorney filed a motion to endorse additional witnesses, and said motion was heard and granted on May 13, 1964, five days prior to trial which commenced May 18, 1964.
The name of the additional witness requested and granted was listed in the motion as Raymond Wise. When he appeared at the trial his name turned out to be Raymond E. Wise, Jr. He was the Assistant Cashier of the First National Bank of Billings and his testimony went only to the validity of the check and the fact that the Great Western Sugar Company banked at his bank.
The record contains no motion for a continuance by trial counsel nor was there any claim of surprise or an objection raised to the calling of Raymond E. Wise, Jr., as a witness.
Where error is predicated upon the court's allowing the endorsement of additional witnesses to the information, such a contention has been foreclosed by the prior decisions of this court. See State v. McLeod, 131 Mont. 478, 311 P.2d 400; State v. Gaffney, 106 Mont. 310, 77 P.2d 398.
In its most recent opinion concerning this point in the case of State v. Johnston, 140 Mont. 111, 367 P.2d 891, the court held:
The failure of the county attorney to endorse the name of a witness on the information was not error where the failure was inadvertent and the county attorney timely informed the court-appointed counsel for the defendant of the omission and of the intention to move the court for an order permitting the endorsement of the witness on the information.
To defendant's specification 5, that the court misdirected the jury in a number of instances, we find no merit. The defendant alleges that instruction 16 which contains part of section 93- 2001-1, R.C.M.1947, was incomplete, in that it covered only subdivisions 1, 2, 4 and 6, and, that the court in leaving out sub-divisions 5 and 7 completely failed to properly instruct the jury on the pertinent provisions of such section which would have been favorable to the defendant.
First, it should be noted that defense counsel at the time of trial made no objection to the offered instruction which became court's instruction 16. In other instructions the court adequately covered such subdivisions of the above-quoted statute, sufficiently to properly instruct the jury when all of the instructions are read as given by the court. Had the defendant felt the court improperly instructed the jury on all the aspects of the case, it was his duty to submit instructions which more fully...
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State v. Bashor
...an instruction which dealt with the same subject. He now contends such an instruction should have been given. In State v. Romero (1965), 146 Mont. 77, 83, 404 P.2d 500, 503, this Court considered a similar situation and "Had the defendant felt the court improperly instructed the jury on all......
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Petition of Romero, 12489
...that the prosecutor in that case was his court appointed defense counsel. That case was appealed to this Court (See State v. Romero, 146 Mont. 77, 404 P.2d 500) and an examination of our Court file indicates that the information was filed on February 28, 1964, executed by William J. Speare ......