State v. Smart

• Citation: 262 P. 158,81 Mont. 145
• Decision Date: 10 December 1927
• Docket Number: 6134.
• Parties: STATE v. SMART.
• Court: United States State Supreme Court of Montana

262 P. 158

81 Mont. 145

STATE v. SMART.

No. 6134.

Supreme Court of Montana

December 10, 1927

On Motion for Rehearing, December 31, 1927.

On Motion for Rehearing.

Appeal from District Court, Treasure County; G. J. Jeffries, Judge.

A. H Smart was convicted of grand larceny, and he appeals. Reversed and remanded.

Marguerite Young, of Forsyth, for appellant.

L. A Foot, Atty. Gen., and A. H. Angstman and S. R. Foot, Asst Attys. Gen., for the State.

GALEN J.

Upon a plea of not guilty to an information charging grand larceny, the defendant was tried by a jury and found guilty, the jury fixing his punishment by its verdict at from 2 to 4 years in the state penitentiary. Judgment was entered upon the verdict, and appeal has been prosecuted therefrom.

The defendant has specified 19 alleged errors committed by the trial court as reason for reversal of the judgment, the first 13 of which relate to the admission and exclusion of evidence and the giving and refusal to give certain instructions to the jury. Assignments of error numbered 14 and 15 relate to orders made by the court during the progress of the trial and numbers 16 to 19, inclusive, involve question as to the sufficiency of the evidence. At the outset the Attorney General contends that this court is without jurisdiction to review the defendant's assignments of error in consequence of the fact that he did not move the trial court for a new trial, the appeal being taken directly from the judgment.

By statute it is provided:

"Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment." Section 12126, R. C. 1921.

In construing this section it was by this court held, and we think correctly, that on an appeal from a judgment of conviction the defendant may, by bill of exceptions, bring before this court, for review, errors alleged to have been committed by the trial court in any intermediate order or ruling involving the merits of the case or which may have affected the judgment, also rulings of the court upon matters of law in the exclusion or admission of testimony during the progress of the trial; and that errors in law alleged to have been committed during the trial may be by this court reviewed either on appeal from the judgment or from an order denying a motion for a new trial. State v. O'Brien, 18 Mont. 1, 43 P. 1091, 44 P. 399; State v. Francis, 58 Mont. 659, 194 P. 304; State v. Brantingham, 66 Mont. 1, 212 P. 499. In the case last cited the statute is construed to mean that, on an appeal from the judgment, this court "may review any order or ruling of the trial court in admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in instructing the jury." But questions involving the sufficiency of the evidence to justify the verdict may be reviewed only on appeal from an order denying a new trial, save only where the record discloses that there is no evidence sufficient to even remotely prove the elements of the crime charged. State v. Brantingham, supra. It thus appearing that the practice is settled, we shall proceed, accordingly, to a consideration of such of the defendant's assignments of error as we deem worthy of note.

The defendant was charged with the larceny of "two grey gelding horses, each about 6 years old, branded what is known as quarter circle K J on the right shoulder," committed in Treasure county about November 11, 1924. There was ample proof to sustain the charge, and a review thereof is wholly unnecessary.

Of the defendant's several assignments of error, we are of opinion that 4 thereof are deserving of serious consideration in disposition of this appeal. The first relates to the action of the court in permitting a witness to testify over objection respecting the contents of certain proposed exhibits which were not admitted in evidence; the second raises question as to the admissibility in evidence of two certain exhibits offered by the prosecution; the third relates to the exclusion from the evidence of defendant's offered Exhibit No. 5; and the fourth pertains to error alleged to have been committed by the court in denying to the defendant the privilege of having the county attorney corrected on a misstatement of important facts in his closing argument to the jury. These will be discussed and disposed of in their order.

1. As to the first of such assignments, we have carefully reviewed all of the testimony of the witness Lester given respecting the proposed exhibits and therefrom do not find any evidence elicited from him respecting the offered exhibits bearing upon the question of the defendant's guilt justifying a reversal, in view of the fact that the court ruled respecting the admissibility of the exhibits when they were by the prosecution offered in evidence:

"The only evidence before the court concerning the exhibits was as to the authenticity of them, in connection with them, not the contents. The questions were preliminary questions. The exhibits were not offered in evidence, and no evidence was given before the jury. The jury understands that they are not to consider any matters as to documents which are not admitted in evidence. In other words, the documents I and O were admitted in evidence, and those are the only matters before the jury."

And further, by way of additional precaution in the protection of the defendant's rights, the jury were particularly instructed by the court that in its consideration of the case it should "only consider the testimony of the witnesses upon the witness stand and such documentary or physical exhibits as have been admitted in evidence," and further, that the jury "should totally disregard and in no wise consider all testimony stricken by the court during the progress of the trial." The court carefully guarded the rights of the defendant, and he was in no manner prejudiced in his substantial rights. The testimony was simply preliminary to the offer made of the exhibits in evidence, and they were by the court excluded.

2. The state's offered Exhibits I and O were received in evidence over the defendant's objection. Exhibit I is the original tagging and numbering record kept by the commission house at Grand Island, Neb., to which two carloads of horses were consigned by the defendant in a shipment made by him from Hardin, Montana, on or about the date of the commission of the offense as in the information alleged. It listed and described three grey geldings included in the shipment and the numbers given to each by the commission house for identification in the sale of the horses so consigned to it. And Exhibit O is called an "unloading card." The original entries on both were made by the witness Lester in his handwriting in the usual course of the business of the commission firm to whom the horses were consigned by the defendant and by whom the witness was employed, it being a part of his duties to keep or supervise the keeping of such records from data within his knowledge and that furnished him by other employees of the commission house. Concerning the manner in which such accounts are kept, the witness testified:

"Exhibit O represents the unloading card, when the stock is received by us. This is supposed to be two carloads. I made that original entry. Our custom in making these entries is this: The night man hands in a slip with the car numbers on it and the number of head. I get my information from the night man of the freight that came during the night. We obtain, usually, the consigner's name from the railroad company. Then we make up the record in the office in the morning as to the number of head and the car number. I get my knowledge of the number of the shipment when they are tagged. This is after they have been unloaded. I did not help unload them. So far as I know, there might have been other horses. We have horses coming in all the time. I would not say that these were the horses received from Smart. I am testifying from the records only. I do not know these things of my own knowledge. Just the records. And that information I received from the night man as to the number unloaded. The things represented on State's Exhibit I I obtained as follows: The horses were pointed out to me as having been shipped by Smart. These horses were already in the pens, and I helped tag them. They did not necessarily have to point them out to me-we took the pens and run through. We had the pens numbered when they were unloaded, but I got that information from somebody else. I do not know from my own knowledge, as I said before; I am testifying from the records."

Books of account and records kept in the usual course of business contemporaneous with the transactions therein recorded, or approximately so, are admissible in evidence upon their identification by one who made the entries or supervised the making thereof, and evidence to the effect that such records are the books or records kept in the usual course of business. Wigmore on Evid. § 1530; Smith v. Sullivan, 58 Mont. 77, 190 P. 288; Gallatin County F. Alliance v. Flannery, 59 Mont. 534, 197 P. 996; State v. Cassill, 70 Mont. 433, 227 P. 49. Professor Wigmore states the rule as follows:

"In such a case, it should be sufficient if the books were verified on the stand by a supervising officer who knew them to be the books of regular entries kept in that establishment, and the production on the stand of a regiment of bookkeepers, salesmen, shipping clerks, teamsters, foremen, or other subordinate employees should be dispensed with. * * * The conclusion is, then, that where an entry is made by one person in the regular course of business, of a transaction lying in the

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