State v. Simanton

• Decision Date: 30 September 1935
• Docket Number: 7404.
• Parties: STATE v. SIMANTON.
• Court: Montana Supreme Court

49 P.2d 981

100 Mont. 292

STATE v. SIMANTON.

No. 7404.

Supreme Court of Montana

September 30, 1935

Appeal from District Court, Phillips County; John Hurly, Judge.

William Simanton was convicted of grand larceny and he appeals.

Reversed and remanded for a new trial.

John A Tressler, of Malta, and George E. Hurd, of Great Falls, for appellant.

Raymond T. Nagle, Atty. Gen., Enor K. Matson, Asst. Atty. Gen., Fred C. Gabriel, of Malta, and John L. Slattery, of Great Falls for the State.

MATTHEWS Justice.

The defendant, William Simanton, has appealed, from a judgment of conviction of the crime of grand larceny on which he was sentenced to serve one year in the state prison, and from an order denying him a new trial.

The charge was the larceny of one "mouse-colored iron gray mare," the property of Joseph Le Carno. The appeal challenges the correctness of the court's rulings on the admission of testimony as to other like offenses, the sufficiency of the evidence to support the verdict and judgment, and certain instructions given by the court.

The evidence on behalf of the state sufficiently establishes the following facts: Joseph Le Carno had two "mouse-colored iron gray" mare colts, foaled in 1932 and branded, in the spring of 1933, by Le Carno's son-in-law, David Pecora, with a brand registered in the name of Lucian Le Carno, son of Joseph Le Carno, which consists of a "lazy 4, lazy H," with a quarter circle under. In June, 1933 the defendant contracted to sell horses belonging to him and his brother Hugh to a horse buyer, and he, with Alfred Taylor and others in his employ, gathered and placed in the Simanton pastures approximately 125 head of horses, many of which did not belong to the Simantons. Under instructions from the defendant, all animals bearing brands other than those belonging to the Simantons were cut out and released, but all unbranded animals were held, and with these the two Le Carno fillies. About 90 head of horses and 33 colts remained and were driven to Malta for inspection and shipment. On the inspection the undersheriff in charge refused to pass the Le Carno fillies on the defendant's statement that they belonged to him and were sucking two of his mares; he did not show the mares to the officer. The officer informed the defendant that he would have to produce a bill of sale for the fillies, witnessed by two good witnesses, or an affidavit signed by two good stockmen of Phillips county; neither instrument was forthcoming. The defendant sought to secure an affidavit from Alfred Taylor and Dunc. Thompson, his employees, but they refused to sign it. Taylor testified that the defendant offered him $5 to do so. While the horses were still in the stockyards, the defendant met Lucian Le Carno on the street and told the boy that he had a pair of "blue mares" on "West Alkali" with the boy's brand on them, showing the boy the brand as a quarter circle over the lazy 4 H. The boy denied that the brand described was his, and repeated his denial on being taken to the sheriff, and there made his brand on a piece of paper; he was not told that the fillies were in the stockyard or permitted to see them. From the statement of one of the defendant's brothers, it would seem that the brand had been put on one of the fillies upside down so that the quarter circle did appear on top. On the stand, the defendant admitted that he had no personal knowledge of the fillies and had never seen them sucking mares belonging to him or to his brother Hugh. He testified that he went on the statement of Alfred Taylor who had told him that he (Taylor) had seen one of the fillies sucking a "K E" mare, but this Taylor denied. In the winter of 1933 defendant caused a K bar B brand, owned by him, to be placed on the fillies and a bar run through the Le Carno brand, and, on the date on which he is charged to have stolen them, he branded them with his latest brand, "X over bar, over H."

Alfred Taylor left the employ of the Simanton Brothers in December, 1933, and was thereafter employed by the county as a stock detective; in this capacity he made two trips to the defendant's ranch in March, 1934, and reported what he had seen to the sheriff, who thereupon secured a search warrant and thereunder took from the defendant's pasture a number of young animals freshly branded with defendant's brand, X/H, among them the two Le Carno fillies. Taylor was permitted to testify, over the objection of the defendant, as to his observations at the Simanton ranch. He testified, first, that in March he observed a mare belonging to one Tuttle, branded with Tuttle's brand and followed by a black unbranded colt, in the vicinity of the defendant's ranch; later saw the mare without the colt, and, on his visit to the ranch on March 25, 1934, saw the colt in defendant's corral, with other animals. He was then asked if at that time he saw other colts in defendant's corral which he had previously seen with their mothers, and, having answered in the affirmative, on the assurance of the prosecution that the matter would be later "connected up," was permitted to describe the animals in the corral. The witness stated that there were "8 or 10 clicks" (unbranded horses) in the corral, and that of these he recognized a colt from a pinto mare belonging to Chappel Bros., whose brand is "CBC," and two colts from "Y6" mares, explaining that the "Y6" brand belonged to Jim Le Noir, the defendant's father-in-law; he said he also saw a two-year old gelding branded with a "K-D" belonging to one Baxter. The next day the witness picked up the Tuttle mare and the "CBC" pinto on the range and met the sheriff and others at the ranch, where they took from the defendant's pasture the Tuttle colt, the Chappel Brothers colt, the Baxter colt, a colt from a "FC" mare, that brand belonging to one Jim Cotter, and the two Le Carno fillies--six head in all and all freshly branded with the defendant's X/H brand.

Having been questioned somewhat concerning branding on the Simanton ranch, on cross-examination, the witness was asked on redirect as to that subject, and stated that, while he was working on the ranch, branding was done on January and July, 1933, and the only other branding he knew of was that in March, 1934. The witness testified that "people generally brand in the summertime. The time they branded in the winter they got some colts around and branded them and brought them to town." He was then asked if he knew "the brands they had on." Objection was interposed on the ground, among others, that the examination was not proper redirect; the objection was overruled. The witness then testified that he saw one "FC" mare "bald faced colt off from her," which was Jim Cotter's brand.

The witness testified that five or six colts were branded at that time but that he paid no attention to them and did not know what brands were on the mothers. He was next asked concerning the branding in the summer of 1933, and over objection testified that "we" cut the colts back from five to six Y6 mares, a CBC mare and a black mare "belonging to Brown." He described the brand used at that time.

From the foregoing it will be seen that the case is unique, in that the defendant was charged with the larceny of an animal over which he had openly exercized dominion and control, under a claim of right, for at least a year prior to the date on which it is charged he stole it. With the facts relating only to the crime charged before them, the jurors might not have been willing to declare that they were convinced beyond a reasonable doubt that the defendant took the animal, as charged, from the possession of the true owner with the intent to steal it--an intent forming a necessary ingredient of the crime charged.

The prosecution sought to establish the existence of this felonious intent by proof that the defendant had committed other like offenses, which, to clarify the record, were as follows: On March 26, 1934, in addition to the two Le Crano fillies, the defendant placed his X/H brand on (a) the Tuttle colt; (b) the Baxter yearling; (c) the Chapple Brothers colt; (d) two Le Noir colts; (e) a colt from a mare branded F lazy Y; (f) a colt from a mare branded A triangle; (g) a Le Noir mule. In the winter of 1932-1933, the defendant likewise branded (h) the Cotter colt, and (i) five or six colts from mares whose brands the witness did not notice; and in the summer of 1933, branded (j) the Brown colt, and (k) five or six Chapple Brothers colts.

Here was proof of the stealing of approximately twenty animals, other than the one described in the information, if it was then established that they did not belong to the defendant or he had no right to brand them. When this plethora of evidence was adduced, the jurors may well have determined that, although the defendant's guilt with respect to the crime charged was not established beyond a reasonable doubt, by the evidence with respect to the animal charged in the information, it was clear that he had engaged in horse stealing on a large scale and should therefore be convicted of the only crime on which they could return a verdict.

It has been truly said that "the large majority of persons of average intelligence are untrained in logical methods of thinking and are therefore prone to draw illogical and incorrect inferences, and conclusions without foundation. From such persons jurors are selected. They will very naturally believe that a person is guilty of the crime charged if it is proved to their satisfaction that he has committed a similar offense, or an offense of an equally heinous character. And it cannot be said that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will...