State v. Sparks

• Decision Date: 29 November 1909
• Citation: 105 P. 87,40 Mont. 82
• Parties: STATE v. SPARKS.
• Court: Montana Supreme Court

105 P. 87

40 Mont. 82

STATE v. SPARKS.

Supreme Court of Montana

November 29, 1909

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Edgar Sparks was convicted of burglary, and he appeals. Affirmed.

Homer G. Murphy, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

BRANTLY C.J.

The defendant was charged with burglary, committed by entering a suite of rooms occupied as a residence by Charles D. Curtis and Mae L. Curtis, at No. 117 1/2 Broadway, in the city of Helena, with the intent to commit grand larceny therein. Upon a trial he was found guilty of burglary in the second degree and sentenced to serve a term in the state prison. This appeal is from the judgment.

The integrity of the judgment is assailed upon the ground that the verdict is contrary to the evidence. From the record we gather the following facts: Charles D. Curtis and Mae L Curtis, father and daughter, upon December 4, 1908, were occupying a suite of rooms in a flat at No. 117 1/2 on Broadway, in the city of Helena. About 3 o'clock in the afternoon, the daughter left the rooms to make calls. The father was not at home. She locked the door leading into the suite, and hung the key near the door in the hallway, but in such a position that it could not be seen from toward the front. This was her custom when leaving the rooms. She left upon the dresser in her bedroom three gold rings, among them one set with diamonds and sapphires. On returning about 5 o'clock, she found the key in place as she had left it but the door was open. Her father had not returned in the meantime. Later in the evening she discovered that all the rings were missing, while the furniture in the bedroom showed some evidence of having been disturbed. She at once notified the police of her loss. In the meantime, about 5:20 o'clock, a stranger entered the jewelry store of Jacob Yund, on Main street, and secured a loan of $20 upon a ring set with diamonds and sapphires, signing the name G. B. Harmon, Jr., to the contract. Inquiry instituted by the police upon information of her loss by Miss Curtis led to the discovery of the transaction at Yund's store. The ring left with him was identified by Miss Curtis and surrendered to her. On December 5th the defendant, being recognized on the street, by Yund, as the person who had obtained the loan, and pointed out to the chief of police, was arrested. Having ascertained the cause of his arrest, he denied that he had ever been in Yund's store, or that he had ever gone under the name of Harmon, or that be had ever seen or had any knowledge of the ring. He had no pawn ticket upon his person, though one had been issued by Yund at the time the loan was made; nor were the other rings found. At the trial the ring was positively identified, by Miss Curtis and her father, as was also the defendant, by Yund and a workman employed by him. The time at which the loan was made was also definitely fixed by the latter two witnesses by the fact that it was near closing time, and the workman was watching for a car which he usually took to reach his home. The defendant did not offer himself as a witness, but undertook to show, by the testimony of several other witnesses, that during the time within which the entry into the Curtis rooms must have been effected he was at Ft. Harrison, several miles from the city, where he was temporarily stationed as an unassigned recruit to the United States army, engaged in the performance of duties assigned to him for the day, as room orderly and kitchen police.

We think the evidence was sufficient to go to the jury, and to justify the finding that the defendant is guilty as charged. If the testimony of the state's witnesses was to be credited, the defendant, about two hours after Miss Curtis left the ring in her room, had it in his possession, pledged it for a loan, signing a fictitious name, and thereafter denied all knowledge of the transaction. It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Territory v. Doyle, 7 Mont. 245, 14 P. 671; State v. Sullivan, 9 Mont. 174, 22 P. 1088; State v. Wells, 33 Mont. 291, 83 P. 476. When however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, such as the giving of a false or improbable explanation of it, or a failure to explain, when a larceny of the property is charged, or the possession of a forged bill of sale, or the giving of a fictitious name, or the like, a case is made sufficient to submit to the jury. Territory v. Doyle,...