State v. Schnepel

• Decision Date: 05 February 1900
• Parties: STATE v. SCHNEPEL.
• Court: Montana Supreme Court

59 P. 927

23 Mont. 523

STATE v. SCHNEPEL.

Supreme Court of Montana

February 5, 1900

Appeal from district court, Silverbow county; William Clancy, Judge.

Henry Schnepel was convicted of grand larceny. From an order granting a new trial the state appeals. Reversed.

C. P Connolly and C. B. Nolan, Atty. Gen., for the State.

M. J Cavanaugh, for respondent.

BRANTLY C.J.

On October 14, 1897, the defendant was convicted of the crime of grand larceny, and thereafter, on the 21st day of October was sentenced to imprisonment in the state prison for the term of one year. Thereupon he made a motion for a new trial alleging as grounds therefor various prejudicial errors. On March 4, 1899, the motion was granted. From the order granting a new trial the state has appealed. The order does not indicate the ground upon which the action of the trial court was based in granting the motion. It will therefore be necessary to notice all the assignments of error made by defendant, in order to determine whether the action of the trial court was justified; for, if that court was justified in granting a new trial upon any one of the errors assigned, the order must be affirmed.

1. The charge was preferred by information. After the jury was selected, but before any proof was offered, the county attorney asked leave of the court to indorse upon the information the names of three witnesses, not known to him at the time the information was filed. Such leave was granted over objection of counsel for defendant, and the indorsement was made. Defendant saved his exception. The only provision of the statute upon this subject is section 1734 of the Penal Code. By it the duty is enjoined upon the county attorney to indorse upon the information, upon filing it, the names of the witnesses for the state, if known. The purpose of this requirement is to enable the defendant to make inquiry as to the witnesses, and to prepare to meet their testimony. State v. Calder, 23 Mont. --, 59 P. 903. The duty of the county attorney is fully performed under this provision, however, when he has, at the time of presenting the charge for filing, indorsed the names of all witnesses then known to him; for there is no command that, if thereafter other witnesses are discovered, their names shall also be indorsed. Such witnesses may be called and examined at the trial whether their names have been indorsed or not. State v. Sloan, 22 Mont. 293, 56 P. 364. The defendant, therefore, cannot complain if the county attorney indorses their names under the directions of the court, thus giving formal notice of the intention to call them, when no such notice is required. It is the duty of this officer to discover and present all the evidence he can obtain. He would be remiss in the performance of this duty should he neglect to do so. The mere fact that the names of the additional witnesses were written upon the information did not add to or detract from the probative force of their testimony, and it would have been error to deny the county attorney the right to examine them because their names did not appear thereon, in the absence of a showing on the part of the defendant that the county attorney did in fact know of their existence at the time the information was filed. Had such showing been made, it would still have been within the discretion of the court to permit the names of the witnesses to be indorsed, and their testimony to be used. State v. Calder, supra. No such showing was made in this case. No objection was interposed to the examination of the witnesses, nor any complaint made that defendant had not had sufficient opportunity to meet and controvert their evidence. The objection was based upon a misconception of the law, and was without merit.

2. The defendant testified in his own behalf, going fully into the facts constituting his defense. To impeach his testimony, the state called several witnesses, who testified that his general reputation for truth, honesty, and integrity in the neighborhood where he lived was bad. Objection was made that such evidence was incompetent, inasmuch as the defendant had not himself put his character in issue. The objection was overruled. The defendant having testified to matters material to his defense, it was competent for the state to impeach his testimony. When a defendant is sworn, and testifies in his own behalf, he is subject to the same rules of cross-examination and impeachment as any other witness. Code Civ. Proc. § 3379; Pen. Code, § 2078. See, also Mitchell v. State, 94 Ala. 68, 10 So. 518; People v. Beck, 58 Cal. 212; Drew v. State, 124 Ind. 9, 23 N.E. 1098; State v. Rainsbarger, 79 Iowa, 745, 45 N.W. 302; State v. Day, 100 Mo. 242, 12 S.W. 365; State v. Broderick, 61 Vt. 421, 17 A. 716. The objection was properly overruled.

3. Complaint was made that the court erred in refusing to submit the following instruction to the jury: "The jury are instructed that in passing upon the testimony of defendant's witnesses in this case they should endeavor to reconcile their testimony with the belief that all the witnesses have endeavored to tell the truth, if they can reasonably do so under the evidence, and, if reasonably possible, attribute any differences or contradictions in their testimony, if any exist, to mistake, or misrecollection, rather than to a willful intention to swear falsely." The instruction was properly refused. It would have invaded the province of the jury by calling special attention to the defendant's witnesses and in giving special direction as to how their evidence should be weighed. By implication the jury would have been given to understand that the same rule should not be applied to the other witnesses in the case. The court may not properly call the attention of the jury specially to any particular witness, or class of witnesses, or to any particular portion of the evidence. Such an instruction is calculated to induce the jury to infer that the portion of the evidence thus noticed is of special importance or weight, and lead them to give less consideration to other portions which they ought to examine with equal care. This court, in Wastl v. Railroad Co., 17 Mont. 213, 42 P. 772, considered an instruction calling the attention of the jury to certain witnesses by name. It was there said: "The credibility of the witnesses is a question to be determined solely by the jury. The court has no right to comment...