State v. De Wolfe

• Decision Date: 23 January 1904
• Citation: 29 Mont. 415
• Parties: STATE v. DE WOLFE.
• Court: Montana Supreme Court

29 Mont. 415

STATE

v.DE WOLFE.

Supreme Court of Montana.

Jan. 23, 1904.

Milburn, J., dissenting in part.

Commissioners' Opinion. Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Percy De Wolfe was convicted of grand larceny, and appeals. Reversed.

J. W. Freeman, for appellant.

Jas. Donovan, for respondent.

CALLAWAY, C.

Percy De Wolfe was convicted of the crime of grand larceny. From the judgment, and an order denying his motion for a new trial, he has appealed.

1. He was charged with stealing 27 horses branded Bar A P Bar on the left thigh, the property of Albert Lindquist, and 9 horses branded O L on the right shoulder, the property of George Houk. The case came on for trial October 21, 1901. After it was called, counsel for defendant raised the objection, which they said had just come to their notice, that the defendant had never been arraigned on the information; that the information was different from the copy furnished the defendant, in two important respects -of which facts they offered to make proof. The court then, after examining the information and copy, said: “Yes; there is a very material difference in the description of the property. The copy has an impossible time-the 25th of October, 1901. The property described is different, too. Fix them so they will be copies, and let him be arraigned again.” A copy of the information being made, the court directed the defendant to stand, and, after asking him his true name, directed the clerk to read to him the information. This the clerk did, and also gave him, a copy thereof. The defendant was then asked if he was ready to enter his plea, to which he answered that he was not, and requested that he be given the statutory time in which to plead, whereupon the court said: “Let the record show that this case was set for trial on this day by an order made on the 27th of September last, and that upon calling the case this morning the parties, both plaintiff and defendant, announced that they were ready for trial, and that this objection was subsequently raised; and we will go on with this case, gentlemen.” The trial was proceeded with accordingly. The defendant assigns that such action by the court constituted prejudicial error. We may say parenthetically that the record does not show, except inferentially, that the defendant was ever arraigned prior to the day of the trial, and does not show that any plea was ever entered by him or for him at any time, but does show that he did not enter any plea on the morning of the trial. Section 1880 of the Penal Code provides that when the information is filed the defendant must be arraigned thereon before the court in which it is filed, unless the cause is transferred to some other county for trial. Section 1893, Id., specifies that the arraignment must be made by the court, or by the clerk or county attorney under its direction, and consists in reading the information to the defendant, and delivering to him a copy thereof and of the indorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the information. And “if, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the information.” Section 1895, Id. It is apparent that when the defendant came into possession of the copy of the information, which was evidently prior to September 27th, when the order was made setting the cause for trial, he did not receive a true copy, or else the information was afterward changed. He was entitled to rely upon the presumption that the officers of the court had properly performed their official duties, and that the document furnished him, purporting to be a copy of the information, was such in fact. The “copy” meant is, of course, a true copy. His attorneys were entitled to rely upon such presumption, and were under no obligation to make a comparison of the copy with the original. They were justified in preparing to meet the issue charged in the information as shown by the copy, and no other. When the case was called, and they announced themselves ready to proceed, it was to meet the issue charged in the copy in their possession. When they discovered a material discrepancy between the description of the property in the copy and that in the original, they were confronted with an issue they did not expect, and could not have anticipated. The matter being called to the attention of the court, it at once determined that the difference was material-so material that another arraignment was deemed necessary. By taking the action it did, the court indicated that, in its opinion, the defendant had not been arraigned upon the information then on file. As we have seen, three steps are necessary in an arraignment: The information must be read to the defendant, he must be given a copy thereof, and he must be asked whether he pleads guilty or not guilty to the information. All of these steps are necessary, and must be taken unless expressly waived. The court doubtless thought the first attempt to arraign the prisoner was futile, and, if no copy was given him, its futility is obvious. The arraignment on the morning of the trial was therefore the first arraignment, and it seems to have been properly done; but the defendant, asserting his rights under the statute, required time to plead. He was entitled to at least one day. This the court refused. The defendant was then placed on trial without having pleaded to the information. No issue was joined by him. A trial had when the defendant has neither pleaded to the information, nor had his plea entered for him, is invalid, and a judgment of conviction based thereon will be reversed. Territory v. Clayton, 8 Mont. 1, 19 Pac. 293;Jackson v. State, 91 Ala. 55, 8 South. 773, 24 Am. St. Rep. 860;Hill v. State, 1 Yerg. 76, 24 Am. Dec. 441;Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433;Gould v. People, 89 Ill. 216;Crain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097;People v. Gaines, 52 Cal. 479;People v. Monaghan, 102 Cal. 229, 36 Pac. 511;Shaw v. State, 17 Tex. App. 225;State v. Cunningham, 94 N. C. 824;Davis v. State, 38 Wis. 487.

2. The state undertook to prove that the horses were stolen in pursuance of a conspiracy entered into between Jack Edmiston, Frank Smith, and defendant. During the trial witnesses were allowed to testify to statements made by Edmiston and Smith. Defendant objected to much of this testimony, and excepted to the rulings of the court thereon. As this case must be remanded for a new trial, it is unnecessary to discuss such alleged errors. The trial court was mindful of the rule that evidence of what was said and done by defendant's co-conspirators must be confined to their acts and declarations made and done while the conspiracy was pending, and in furtherance of it, and will doubtless again apply it upon another trial.

3. At the conclusion of the state's case the defendant moved to strike out all of the testimony with reference to the O L horses, on the ground that the state had not proved the ownership of such horses. The court overruled the motion. We have examined the record, and think the motion should have been sustained. No one testified that the O L horses described in the information were the property of George Houk. Houk does not seem to have been present at the trial. The witnesses Wagner and Fox testified that they saw O L horses in the herd driven away by Edmiston and Smith, and said they knew the O L brand, and that it belonged to George Houk. The fact that the O L brand belonged to Houk, and that the horses bore such brand, was not proof that they belonged to Houk at the time they were driven away, or that defendant was not rightfully in possession of them. The allegation that the horses were the property of George Houk was material, and it was incumbent upon the state to prove it beyond a reasonable doubt.

4. At the close of the state's case the defendant moved the court to discharge the jury on the ground that there was a variance between the venue as laid in the information and the proof.

The state proved that the Bar A P Bar horses were stolen in the Dominion of Canada, near the Montana line, and were then driven to Great Falls, in Cascade county, Mont., where they were disposed of. Defendant contends that when a larceny is committed outside of the local jurisdiction of a county, but is triable therein, “the facts showing where the larceny was committed should be stated in the body of the information.” No contention is made that the offense is not triable in Cascade county, nor does it seem that such contention could be sustained under the provisions of sections 1561, 1569, and 1572 of the Penal Code. These sections read as follows:

“Sec. 1561. When the commission of a public offense, commenced without the state, is consummated within its boundaries, the defendant is liable to punishment therefor in this state though he was out of the state at the time of the commission of the offense charged. If he consummated it in this state, through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the jurisdiction is in the county in which the offense is consummated.”

“Sec. 1569. When property taken in one county by burglary, robbery or larceny, has been brought into another, the jurisdiction of the offense is in either county. But if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former.”

“Sec. 1572. The jurisdiction of a criminal action for stealing in any other state the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought.”

Under these statutes, one who commits larceny may be...