State v. Wells

• Citation: 33 Mont. 291
• Case Date: November 27, 1905
• Court: United States State Supreme Court of Montana

33 Mont. 291

STATE

v.WELLS.

Supreme Court of Montana.

Nov. 27, 1905.

Appeal from District Court, Choteau County; Jno. W. Tattan, Judge.

William D. Wells was convicted of grand larceny, and he appeals. Affirmed.

F. E. Stranahan, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.

BRANTLY, C. J.

The defendant was by information charged jointly with his brother, Samuel E. Wells, and one Frank Allen, with the crime of grand larceny. He demanded and was granted a separate trial, and as a result thereof was convicted and sentenced to a term of four years in the state prison. From the judgment and an order denying him a new trial, he has appealed. The integrity of the judgment is assailed upon the grounds that the verdict is contrary to the evidence, that the court erred in admitting and excluding evidence, and that it prejudiced the defendant by refusing to submit a certain instruction requested.

1. The larceny charged is that the defendants feloniously took, stole, and carried away $95 in money, of the value of $95, and a nickel case Waltham watch, of the value of $30, of the personal property of one J. H. Brady. The state's theory of the case is that on February 14, 1904, J. H. Brady and the accused were together, going from one saloon to another in the village of Havre, in Choteau county, and indulging in drink, and that the three defendants, discovering that Brady had the watch and a considerable sum of money upon his person, conceived a plain to steal them from him, and did so while he was stupefied by drink. There is a suggestion, also, that he was drugged during the course of the orgy. The evidence is entirely circumstantial. While not controverting the claim that the property was stolen by Allen, one of the accused, counsel for this defendant contends that the evidence wholly fails to connect him with the taking. This contention we do not think meritorious. While the evidence in this connection is not as convincing as it might be, the incriminatory circumstances proven made out a case for the jury. It appears that early on the evening in question Brady and the accused causally met at a saloon. They had had some previous acquaintance, but their relations had not been intimate. They there began to drink. Brady had on his person the watch in question and $102 in bills, among which were three of the denomination of $20, and the rest were of smaller denominations. The accused had no money. The drinking was all at the expense of Brady. That he had the property on his person became known to his associates by the fact that he carried the watch in sight, and during the course of the evening exhibited the roll of money. All of them are laboring men, but for the time being the accused had no employment, and were destitute; indeed, so destitute that for some days they had been dependent for drinks and meals upon the kindness of acquaintances in the village; the defendant and his brother in one or two instances using a borrowed meal ticket. The Wells brothers had been spending their nights in the saloons, and sleeping as best they could. During the evening Allen borrowed $1.25 from Brady. This he spent for drink. They continued drinking until about 2 o'clock on the morning of the 15th, going from place to place. At this time the four left the last place they visited. Brady was much intoxicated. When they had gone a short distance, they were seen by the bartender, who seems to have watched them, out in the middle of the street; two of the accused having their arms about Brady, and the other standing near. Brady testifies that about this time he lost consciousness, and knew nothing until he woke at his room at the hotel, about 10 o'clock on the morning of the 15th. It appears from other evidence that he went to his hotel and room about 2 o'clock. When he woke and dressed, he found his money and watch gone. He went in search of his associates of the previous night and early morning. He first found Allen, and ascertained from him that the watch could be found at a pawnshop. It was found there, and shown by other evidence to have been pawned by Allen. Immediately after this conversation between Brady and Allen the latter went and found the Wells brothers. He obtained money from the defendant to redeem the watch. At the time he preferred his request for the money the defendant demurred, but, upon being urged by his brother, finally furnished $2.50, the amount obtained on the watch by Allen. The conversation among the accused on this subject occurred in the rear of one of the saloons visited on the previous evening and was conducted in whispers. Early on the morning of the 15th the defendant went to a saloon kept by one Hinote and deposited with him for safekeeping $50 in bills. He had in his possession at that time three twenty-dollar bills, one of these he had changed, leaving the other two with a ten-dollar bill. During the morning he and his brother also paid some small bills theretofore contracted for drinks and small amounts in money borrowed at different saloons. The defendant himself was sworn and testified. His statements tended to contradict in a measure some of the facts detailed by the other witnesses. But his account of the night's doings is vague and contradictory of itself, as well as unreasonable in the light of some significant facts which are clearly established. For illustration: In explaining his possession of the bills next morning, he said that he had been saving the money for some time in order to pay his expenses to The Dalles, Or., where he intended to go to shear sheep as soon as the season opened. Though the opportunity was given him to tell the source from which he obtained the money, he failed to do so. He had recently been at Fort Benton, Choteau county, and had been employed there a short time, but his earnings had been small, and he had left the place without paying for his current board bill, and had borrowed money enough to pay the expenses of himself and his brother to a village in an adjoining county. He explained that he had been keeping the money which was deposited at Hinote's saloon, upon his person, but had...