REYNOLDS
J.
Defendant
was charged with grand larceny, tried and convicted, and
judgment followed. Motion for new trial was made and
overruled. Defendant has appealed from the judgment and order
overruling the motion. Motion was made in this court to
dismiss the appeals because of delay of appellant in serving
and filing transcript and brief.
Defendant
was employed by the Union Bank & Trust Company of Helena, and
was under the immediate supervision of R. O. Kaufman, one of
its officers. The bank arranged for a shipment of $40,000 in
currency from Butte, which reached Helena on the 5th of
November, 1919. Defendant, although not authorized to do so,
called at the post office for the package and received it.
His conduct while returning to the bank attracted the
attention of one Mrs. Agnes Watkins, who saw him, with a
package in his hand, enter a building on Park avenue known as
the old Kleinschmidt building. Later he was seen by her to
emerge from the building without the package, and proceed
rapidly in the direction of the bank. Later defendant was
found lying face downward in a small shed or alleyway, bound
and gagged, and with the appearance of having been seriously
injured. He was taken to the hospital, where he first told a
story of having been robbed. However, there were features in
connection with the story which caused it to be disbelieved,
and thereafter defendant made several different statements as
to the affair which evidently were false. The questions
involved on these appeals relate to the admissibility of
evidence, alleged errors in giving and refusing instructions,
newly discovered evidence, and misconduct of counsel for the
state.
The
contention is not made that defendant was innocent of the
crime charged, but that technically he did not receive a fair
trial in the respects mentioned. While an accused person,
even though guilty, is entitled to a fair trial, yet this
court will not grant a new trial where the record
conclusively establishes the guilt of the defendant, even
though there was error, unless it clearly appears that the
error of which complaint is made actually prejudiced the
defendant in his right to a fair trial.
It is
alleged that the court erred in admitting in evidence the
testimony of witness Patrick Keyes, wherein he stated that at
a short time prior to the larceny defendant stated that he
"thought it was unfair for some people to have hundreds
of thousands or a million dollars, and a poor person not have
any; he thought the money should be distributed equally with
everybody, and the most of the people that had lots of money,
they got it by robbing the poor people," in that
connection referring particularly to Mr. McKinnon, president
of the Union Bank & Trust Company. Objection was made to this
testimony on the ground that it only tends to show the
philosophy of the defendant, which has no probative value,
and that it was not connected, either directly or indirectly,
with the issues involved. It may be conceded that this
evidence is somewhat remote, but we cannot hold that it was
entirely
immaterial. Such evidence tends to show the mental attitude
of the defendant toward private rights in property, and,
while not direct evidence that he did or would commit such a
crime, yet it has a bearing in showing a prejudice against
people who have acquired property, particularly the president
of the bank from which bank the money was taken, which, in
turn, would tend to make it easier to excuse oneself in an
attempt to take such property from another who, he believes,
has illegitimately secured it.
The
state offered in evidence testimony of Lester Lightbody,
deputy sheriff, as to certain statements against interest
made by defendant, to which defendant objected and saved his
exception. The first statement was included within the
following testimony:
"At
this time, when the name of Marias or some similar name was
given, the defendant was asked--I think Mr. Barnes said,
'Charley, them ain't the names of them fellows; you
know the names of them,' and he said, 'Is it Ford
and Blodgett?' And Stevens says, 'Yes,' He said
they was to meet him at the Palmer House that night and
divide the money. Ford and Blodgett was arrested that
morning about five minutes after Stevens told us this.
Stevens was then taken to the county jail, and Ford and
Blodgett were arrested at the Palmer House. I was present
in the jail later when Ford and Blodgett and Stevens were
there."
The
second statement was included in the following testimony:
"He
told me he was sorry that he got Ford and Blodgett in any
trouble; that they were innocent of any wrongdoing. He said
they had nothing to do with it. At this time he said Ralph
Kaufman had something to do with it, and that he turned the
money over to Kaufman. The story he told me as to how the
whole thing happened was that he was to go and get the
money and was to go back to the bank with it, and that if
nobody there had seen him come in he was to go down to the
basement with the money. As to where they made this
arrangement, he said that Mr. Kaufman came up to his desk
and made the arrangement at his desk; that he said he had
been very good in helping him along, and intended to keep
on helping him, and then he told him he wanted Stevens to
go and get this money and fetch it to him. He did not say
that Earl Fallon had any connection with this story. He did
not tell me anything about Fallon at this time at all, not
on that day at all; it was the next day he told me about
Fallon. As to what he said when he came back to the bank
and just how they arranged that, he said he went down to
the basement and turned the money over to Mr. Kaufman. He
told me how much he was to receive for his part in it; he
was to receive $500. He did not say who was to get the
rest. With reference to the explanation he made to me
relative to any footmarks or finger prints on State's
Exhibit 15, the paper, I told him it looked peculiar to me
when a paper would be found in that building when it could
be burned up in the basement, and what was his idea in
going back with the paper; he said that it wasn't his
idea; that Kaufman wanted him to take the paper back there.
As to the way he said any print got on the paper, he told
me Mr. Kaufman had him step on the paper in the basement,
and had him put his hand in the dust and put the finger
prints on the paper, and that Mr. Kaufman had him take the
paper back to the Kleinschmidt building. He did not explain
to me at that time how he came to be tied up. I had a
further conversation with him about Fallon; I had several
conversations with him about Fallon, but he never said
anything connecting Fallon with it at all, with the
exception of once when he said he didn't see why
'they didn't get Fallon and put him in jail, as
well as putting me in jail.' He was asked at that time
as to why Fallon should be put in jail, and he refused to
answer. This defendant told me the money was in the bank;
he said he turned it over to Mr. Kaufman. He told me the
reason he told the story about the robbery and of the
automobile being in the alley was because that was the
first story that he and Kaufman had made up. He told me
that when he seen the officers did not believe the story
Mr. Kaufman said, 'Charley, we will have to change that
story; they don't believe it.' According to what
Stevens said, it was Kaufman that told him to tell the Ford
and Blodgett story, and he said they made the arrangement
to tell the Ford and Blodgett story in the county
jail."
Objection
was also made to the introduction in evidence of State's
Exhibit 28 on the same ground, which exhibit consists of a
written statement in defendant's handwriting, and is as
follows:
"The
man by the name of Ford whom I saw in the county jail
Friday morning, November 7th, stopped me on Main street
some time I believe during the month of September, and
wanted to carry a sack of silver containing $1,000 to the
express office. Two different times, either before or
afterwards, he stopped me on Main street and remarked about
large packages of currency from the post office. Yesterday
morning while I was on my way to the post office I met this
man Ford, accompanied by a gray-haired man, whom I also saw
in the county jail at the same time Ford was there. I have
been since told that the gray-haired man's name is
Blodgett or similar name. I know him positively when I see
him. These men mentioned to me about a package of money at
the post office. They told me to let them have the money
when I secured it, and I would make some haul. They said to
come down Park avenue, and they would take it and do away
with the whole thing, and at the same time make a hell of a
fight to keep it. Most of the talking was done by Ford. I
went to the registry window at the post office, and Mr.
Faith refused to let me have the registered mail, and said
my order had been canceled, so I said that I would get Mr.
Chivers or some one with authority to come and get it; I
went back to the bank by way of Park avenue, but seen
neither of the men. After lunch I again went back to the
post office after doing some errand, and got the common
mail, and then went over to the registry window, and Mr.
Williams said, 'What bank?' and I said,
'Union,' and he gave me the registered mail, three
in all, including
the currency which was stolen. I went down Park avenue, and
one man stepped out of the empty building and walked down
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