State v. Sieff
| Decision Date | 30 October 1917 |
| Docket Number | 3979. |
| Citation | 168 P. 524,54 Mont. 165 |
| Parties | STATE v. SIEFF. |
| Court | Montana Supreme Court |
Appeal from District Court, Dawson County; C. C. Hurley, Judge.
Louis Sieff was convicted of maliciously burning property, and appeals. Reversed and remanded.
J. A Slattery, of Glendive, Chas. E. Baughton, of Red Lake Falls H. J. Haskell, of Glendive, and Sharpless Walker, of Miles City, for appellant.
S. C Ford, of Butte, and Frank Woody, of Helena, for the State.
Louis Sieff was convicted of willfully and maliciously burning three stacks of hay belonging to H. S. Cutting, and has appealed from the judgment and from an order denying him a new trial.
1. In the original information the crime was designated the malicious destruction of property, but the facts alleged constitute a felony defined by section 8748, Revised Codes. Over defendant's objection the information was amended by substituting the word "burning" for the word "destruction" in the designation of the crime. In this no error was committed. The grade of the crime charged does not depend upon the appellation given it by the public prosecutor, but upon the facts stated. It was not necessary to mention the crime by name. The information would have been sufficient if the offense had been referred to merely as a felony. Rev. Codes, § 9148. The amendment related to a matter of form, and not of substance, and was authorized by section 9108, Revised Codes. The defendant did not ask for a continuance or suggest to the court that his rights would be prejudiced or that the evidence he was prepared to offer would not be equally applicable to the facts charged in the information as amended. State v. Duncan, 40 Mont 531, 107 P. 510.
2. The verdict as first returned found the defendant guilty of malicious destruction of property. This verdict was delivered to the clerk, and by him indorsed "Filed," but the court announced that it would not be accepted, and the jury was directed to retire for further deliberation. Later a verdict was returned which found the defendant guilty as charged in the information. It is elementary that a party cannot be charged with one crime and convicted of another independent offense. The verdict first returned was insufficient in that it did not respond to the issues tried. 12 Cyc. 690. The malicious destruction of property is not a crime the commission of which is included in the crime of willful and malicious burning of property defined by section 8748, and it was therefore the right and duty of the trial court to require the jury to return some form of verdict authorized by law, or report a disagreement. Rev. Codes, § 9323. The act of the clerk in indorsing his file mark upon the first verdict was, at most, a mere irregularity which could not affect adversely any substantial right of the accused. So long as the jury had not been discharged from consideration of the case, it was subject to the orders of the court.
3. To warrant a conviction in this case it was indispensable that the state prove: First, a willful and malicious burning of the property in question; and, second, that the defendant committed the crime. Assuming for the purpose of this appeal that the corpus delicti is established, the material inquiry presented by this record is: Does the evidence fix the guilt upon defendant?
Aside from evidence tending to show that the fire was of incendiary origin, there was introduced testimony descriptive of Cutting's premises, and which concerned particularly the relative locations of his buildings, the haystacks in question, and some fences and roads, but this evidence is practically meaningless. It was given with reference to two maps with certain marks and figures upon them which were before the witnesses, but which were not introduced in evidence and are not before us. Whatever value the evidence may have had, it is not suggested that it tended to connect the defendant with the commission of the crime.
We agree with the Attorney General that his résumé of the evidence upon the branch of the case now under consideration comprehends every material fact concerning which the state's witnesses testified. Those facts are:
About 7:30 o'clock on the evening of September 30, 1915, the defendant left his home riding a black horse belonging to Frank Lacrousiere, for the purpose, as he declared, of getting some cattle which a man had for him. About 10 o'clock of the same evening Lacrousiere, Marie Purdy, and Jessie Purdy, who were staying at defendant's house discovered that Cutting's haystacks were on fire. The hay was near the Cutting home, about a mile from and in plain view of defendant's residence. About a half hour later defendant returned, coming from the direction of Johnson's, riding in a gallop or running his horse, and, when asked by Lacrousiere if he had seen the fire, he...
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