State v. Tripp

• Decision Date: 27 June 1921
• Docket Number: 4811.
• Citation: 199 P. 716,60 Mont. 421
• Parties: STATE v. TRIPP.
• Court: Montana Supreme Court

199 P. 716

60 Mont. 421

STATE v. TRIPP.

No. 4811.

Supreme Court of Montana

June 27, 1921

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Charles Tripp was convicted of an attempt to obtain money by false pretenses, and he appeals from the judgment of conviction and from an order overruling his motion for a new trial. Reversed, and remanded for a new trial.

M. K Beadle and Canning & Geagan, all of Butte, for appellant.

Wellington D. Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

POORMAN C. C.

Appeals from a judgment entered on a verdict of guilty and from an order overruling the defendant's motion for a new trial.

The information filed in the cause charged the defendant with the crime of "an attempt to obtain money by false pretenses," and it is alleged that on the 18th day of October, 1920, the defendant, with intent to cheat and defraud one Maurice Egan, represented to Egan that he (the defendant) was the owner of and had 25 gallons of 99 proof whisky, when in truth and in fact the defendant did not have or own 25 gallons, or any number of gallons, of any kind of whisky whatsoever; that defendant knew that said pretenses were false, and that by color and means of said false representations, or pretenses, defendant then and there knowingly, etc., attempted to unlawfully obtain from said Maurice Egan the sum of $1,100.

It appears from the evidence that on the evening of October 17, 1920, Maurice Egan met the defendant in the city of Butte, being then introduced to defendant by a third party and by agreement then made between the defendant and Egan, defendant was to sell and deliver to Egan 25 gallons of whisky, in two little kegs, for the sum of $1,100, the whisky to be tested, money paid, and delivery made on the following evening--that is, October 18th, between Second and Front streets, at about 7 o'clock. It was then agreed that the defendant and Egan would meet on the evening of October 18th, and that the defendant would go with Egan to make the test of the liquor. On the evening of October 18th, the defendant and the witness Egan met at the appointed time and place, and some further conversation was had between them concerning the whisky. Mr. Egan, in his testimony, says:

"Mr. Tripp was going down with me. The two of us were going to walk down to where the whisky was in the wagon. The wagon was to be down there with the whisky. * * * Below the Milwaukee depot we were to meet and walk right close to the Milwaukee. I had no conversation with him as to what was to happen there, only we were to sample the whisky right there, and I was to receive it and give him his money."

At this meeting it appears that Egan, who was "driving a buggy," proposed that they drive down to the whisky, but defendant said: "No; we will walk." Egan then went to unhitch his horse, and did not meet the defendant afterwards; and we gather from the evidence that the defendant was arrested at that time.

State's witness Brown testified that on the afternoon of October 18, 1920, he was employed by the defendant to go with the defendant to Nissler and get two of four kegs which defendant and the witness had theretofore placed there, which were dry, and leaking badly; that they filled two of the kegs with water, put a burlap sack around each keg, and--

"When I got near the Centennial Brewery the kegs were unloaded and left alongside of the road a short distance from the Centennial Brewery."

The defendant at that time had in his possession a brace and bit. Later, on the evening of the same date, the witness Brown went with the officers, took possession of the two kegs which were found about a quarter of a mile west of Montana street, and about 25 yards off the road. One of the kegs was of 10-gallon capacity, and one of 15-gallon capacity, both wrapped in burlap, and filled with colored water. This evidence does not show that defe...