State v. Shannon

• Decision Date: 18 November 1933
• Docket Number: No. 7145.,7145.
• Citation: 95 Mont. 280
• Parties: STATE v. SHANNON.
• Court: Montana Supreme Court

95 Mont. 280

STATE

v.SHANNON.

No. 7145.

Supreme Court of Montana.

Oct. 31, 1933.

Rehearing Denied Nov. 18, 1933.

Appeal from First Judicial District Court, Lewis and Clark County; W. H. Poorman, Judge.

Dodge Shannon was convicted of unlawful possession of apparatus, paper, and other things made use of in counterfeiting, and he appeals.

Reversed and remanded.

ANGSTMAN, J., dissenting.

Lester H. Loble and Hugh R. Adair, both of Helena, for appellant.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen., for the State.

STEWART, Justice.

The county attorney of Lewis and Clark County filed an information charging Dodge Shannon, George Fuller (sometimes called Clark), Ray E. Brewer, and James Tatum with unlawful possession of apparatus, paper, and other things made use of in counterfeiting. Shannon was tried separately, convicted, and sentenced to the state prison. This appeal is from the judgment of conviction and the order denying a new trial.

Thirty-eight assignments of error are urged. The assignments were grouped into four groups for discussion; it is not necessary to discuss all of them in detail. The more important groups will be given consideration.

The essential facts, briefly stated, are as follows: The four defendants were gamblers and in the month of December, 1932, were residing in Helena. Shannon and Fuller (Clark) were occupying a room at the Park Hotel, and the other two defendants had a room at the Mitchell Block. Apparently, however, the rooms were used more or less interchangeably by the four defendants. Harry L. Hale, a resident of Helena, was the chief witness for the state. He testified that the defendant Fuller, known to him as Clark, induced him to go to one of the rooms occupied by the defendants in the Mitchell Block, and that in his presence and in the presence of Fuller, or Clark, Shannon proceeded “to show what he had to offer.” Briefly, he claimed that Shannon opened up a black grip from which he took a couple of boards, some pans, and a lot of little vials with fluids, powders, some glass cylinders, rubber gloves, and an assortment of chemicals. Shannon asked for a notebook, and Clark reached in his pocket and produced two or three bank notes or bills. The bill given to Shannon was a $20 bill. Shannon took the bill and by use of a little sponge covered one side of it with some kind of acid or solution, and then turned it over and saturated the other side. He placed two pieces of clean white paper about the size of the $20 bill against the two sides thereof, rolled the paper around a glass cylinder, rolled the cylinder with the papers back and forth on a flat board for a short time, took the papers off the cylinder, removed them from the bill, washed the bill off, and laid it on the edge of the bed to dry. Shannon then showed Hale the two pieces of paper and explained that he had transferred the reading matter, figures, etc., from the $20 bill to the white paper; the printing matter, etc., on the white paper so transferred, showed in the reverse. Shannon explained that the process had to be carried out further by the use of a $1 bill from which the printing and all coloring matter was removed. That in order to complete the conversion, the bleached paper of a $1 bill was placed between the two sheets of paper then bearing the printing and other matter from the $20 bill in reverse, and the rolling process repeated, and that when completed the $1 bill would then bear the similitude of the $20 bill. He explained the bleaching process to which the $1 bill was subjected. He also produced and exhibited to Hale what he said were serial numbers of bills, and explained how he placed those serial numbers on the converted bills so as to give the remade bills the genuine appearance of $20 bills. The explanation was elaborate and, while the process was not entirely demonstrated, the entire operation, according to Hale, was either demonstrated or explained to him. It was further explained that such $20 bills, when completed, would have the appearance of genuine bills. Shannon said he could make $20 bills by that procedure; he said, “I can make new bills this way.”

The part that Hale was to play, according to his testimony, was outlined by the other men, and was to consist of introducing the men to Helena citizens, or making them acquainted with some of the local residents. Hale claimed that he never entered into the transaction further than to listen to the explanations and to watch Shannon make the experiments as indicated; he did, however, detail the facts of the visits to certain officers, including the sheriff and a federal prohibition official. Later the officers proceeded to the rooms of the defendants, arrested them and took away the paraphernalia described.

The defendants attempted to explain away the possession of the paraphernalia. They asserted that the various exhibits introduced by the state, together with others introduced by themselves, constituted equipment used by them in their gambling operations and in marking cards, changing dice, and otherwise altering gambling paraphernalia, so that they could the better and more certainly win money in gambling games. The defendants also denied that the exhibited articles could be used for counterfeiting.

The information is drawn under the provisions of section 11365 of the Revised Codes of 1921, the material part of which reads as follows: “Every person who makes or knowingly has in his possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever made use of in counterfeiting coin current in this state, in counterfeiting gold-dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank-notes or bills, is punishable by imprisonment,” etc.

The charging part of the information reads as follows: “That at the county of Lewis and Clark, in the State of Montana, on or about the 16th day of December, A. D. 1932, and before the filing of this information, the said defendants did wilfully, unlawfully and feloniously, knowingly have in their possession apparatus, paper and other things made use of in counterfeiting bank notes or bills, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Montana.”

Specifications of error 1 to 6, inclusive, constitute an attack upon the sufficiency of the information. Proper and timely objections were made to the form of the information at every stage of the case. Demurrer was urged before the arraignment, and objections and motions were interposed to the end of the proceeding. These objections urged that the information was insufficient by reason of the fact that the words of the statute were literally or substantially followed, and that no sufficient description of the offense was set out; in other words, that the charging part of the information did not specifically describe the “apparatus, paper and other things,” but merely employed the words of the statute.

It must be observed that the prosecution is not for counterfeiting, or for the use of the apparatus, etc., in counterfeiting, but is based upon the possession of articles “made use of in counterfeiting”-a distinct crime. The section under which the prosecution proceeded necessarily involves elements and considerations different from those common to a charge of counterfeiting.

The defendant contends that he was entitled to be advised as to what particular articles he unlawfully possessed, to the end that he might properly prepare his defense. Courts generally hold that an information is sufficient when it literally or substantially follows the language of the statute. 15 C. J. 367. The modern tendency of criminal procedure has been distinctly towards simplification. Informations charging murder were formerly lengthy and verbose; finally, this court in State v. McGowan, 36 Mont. 422, 93 P. 552, and State v. Hayes, 38 Mont. 219, 99 P. 434, recognized the simpler and more liberal rule, a rule which it, after twenty years of experience, declared wise and salutary. State v. Gondeiro, 82 Mont. 530, 268 P. 507, 511.

The cases relied upon by defendant are mostly of early origin, although it is interesting to note that as early as 1841 the Tennessee court broke away from the strict rule and sustained an indictment which was subject to the objections lodged against the information in this case. Bradford v. State, 3 Humph. (22 Tenn.) 370.

The information here, although not a model, was sufficient. If it was too general in character to advise the defendant as to what he had to meet, he had a plain remedy available. He could have called for a bill of particulars. This court has specifically recognized the right to call for such a bill. In State v. Gondeiro, supra, it, speaking through the Chief Justice, said: “When it is apparent to the court that the defendant, by reason of the general character of the charge, may have difficulty in preparing his defense, we think the trial judge should incline toward granting a motion for a bill of particulars; we commend the practice.” See, also, State v. Sedlacek, 74 Mont. 201, 239 P. 1002.

Defendant asserts error in the admission of certain testimony given by the state's witness Bechtel, a federal employee engaged in investigating counterfeiting cases. The state used Bechtel as an expert witness in an endeavor to explain to the jury that the exhibits might or could be used in counterfeiting. Bechtel was properly qualified as an expert witness to the satisfaction of the court, in accordance with the declaration of this court in State v. Harkins, 85 Mont. 585, 281 P. 551.

Objection was made that the witness Bechtel was permitted to answer questions propounded by the county attorney in the abstract form, rather than being given a set of hypothetical facts upon which to base his opinion as an expert. It is obvious that the matter in controversy was a proper subject for...