State v. Peschon

310 P.2d 591, 131 Mont. 330, 1957 Mont. LEXIS 121

• Court: Montana Supreme Court
• Decided: April 30, 1957
• Docket: 9599
• Status: Published

Opinions

HONORABLE JAMES T. SHEA, District Judge,

sitting in place of MR. JUSTICE BOTTOMLY, who was absent from the State, delivered the Opinion of the Court.

On January 11, 1955, the county attorney of Blaine County, Montana, filed an information in the district court charging the defendant and appellant, Edward Peschon, with the crime of grand larceny. To this information the defendant entered a plea of not guilty. A trial was had, which resulted in a verdict finding the defendant guilty of grand larceny leaving punishment to be fixed by the court. Upon this verdict there was rendered and entered a judgment against the defendant fixing his punishment at imprisonment in the State Prison for two-years. The defendant then moved for a new trial which was by the court denied, and he is now before this court on appeal from the judgment and from the court’s order denying him a new trial.

The defendant and appellant predicates error in (1) denying appellant’s motion wherein appellant moved the court to request the jury to bring in a verdict of not guilty; (2) that the verdict is contrary to the law and the evidence; and (3) that the court erred in denying appellant’s motion for a new trial.

It appears, inter alia, from the evidence offered and received by the trial court that one Richard E. Walters and his wife came to Chinook from the Art McLeish Ranch sometime during the evening of December 31, .1954. At the time Walters had some fifty dollars in cash and a wage check in the amount of $312.07 which he cashed at the Bar N receiving therefor that amount mostly in twenty dollar bills and some balance in cash. That same day or evening he spent some twenty dollars in Chinook bars and then left for his room in the Chinook Hotel and there went to bed. The next day (New Year’s Day) he again commenced to drink, visiting bars in Chinook, the last being the Stockman’s Bar. Sometime around 11:00 p. m. of that day, while sitting on a bar stool, he purchased a drink and gave his wallet or billfold to one Katherine Immel, the barmaid, who extracted therefrom a twenty dollar bill and returned to the billfold one five dollar bill and one ten dollar bill, making a total of fifteen dollars and leaving some silver on the bar. She placed the billfold in Walters’ righthand shirt pocket and then buttoned the pocket. Walters was intoxicated at the time, in fact, quite drunk. When the barmaid returned Walters’ billfold to his shirt pocket and buttoned the pocket, she observed that there were several twenty dollar bills in it, some five or six, in addition to the fifteen dollars which she had returned to it. She further testified there could have been more than five or six twenties in the billfold. Some ten or fifteen minutes thereafter Walters fell asleep at the bar. Apparently he laid his arms on the bar with his head on his arms, and in the parlance of the several witnesses, he “passed out.”

During the same evening the defendant had been in and out of the Stockman’s Bar “all night.” After Walters “passed out” the defendant was observed to pass by and go to the lavatory. When he returned from the lavatory he was observed to go close to Walters and had been seen to touch both of his “hind pockets” and then to sit down on Walters’ righthand side where he remained some ten minutes. During this time the witness, Lee Falcon, called his wife’s attention to the defendant because he wanted to “see if she could see what was going on there between the defendant and Walters while he was sitting there. ” The defendant then got up from the bar stool and walked over to some man then playing some kind of a machine, and this man and the defendant were then observed going to the lavatory where they remained some five minutes and then both came out and both left the Stockman’s Bar. At this time the barmaid was requested to ascertain if Walters still had his billfold, and upon search it was found to be missing whereupon the police were notified and they responded to the call in some ten or fifteen minutes. The police then made some preliminary inquiries concerning the reasons for their having been called to the Stockman’s Bar and then left, looking for the defendant. Within five minutes thereafter they found the defendant in the Elks Bar. He was with one Gay Sterns. At that time the defendant was seated and Gay Sterns was standing at the bar. The defendant and Sterns were then and there arrested and taken to the city hall. Both men were advised at the city hall they were picked up because they had picked a “guy’s” pocket of his billfold. The defendant and Sterns were asked to turn over the contents of their pockets to the police. They did so, and the defendant turned over his billfold and money. At that time he had seven twenty dollar bills, three silver dollars and thirty-five cents in change. No five dollar bill nor ten dollar bill was found in the money which the defendant turned over to the police. At the Elks Bar both the defendant and Sterns had drinks in front of them. During the trial a police officer, Dow Butler, testified as follows:

“Q. At the time these two men, Sterns and Peschon, emptied their pockets did either one of them have a five or ten dollar bill? A. Yes.

“Q. Who had it? A. Sterns.”

From the foregoing it will be observed that the evidence is not clear as to whether Sterns had a single five or a single ten dollar bill, or both.

Later, the police aroused Walters at the Stockman’s Bar, took him to the police station and for the first time he was then and there informed he had been robbed. This was the first Walters had any knowledge of the fact his billfold, and the money in it, were missing.

In his own defense the defendant testified he had been employed in the oil fields in North Dakota and that he returned to his home in Chinook at about eight o’clock on the night of December 31; that when he returned to Chinook he had right around two hundred dollars and that $180 of the amount was money which was being saved by both him and his brother to be used in the purchase of a new car and that all of this money was in twenty dollar bills. In addition, his father had given him twenty dollars. Concerning the alleged theft of Walter’s billfold or wallet and the touching off his hind pockets, the defendant testified as follows:

‘ ‘ Q. Now along about eleven o ’clock of that evening, you were in the Stockman’s Bar, were you not? A. Yes.

“Q. And whom were you with? A. I was with Gordon Michaelson.

“Q. When you were there at that time, did you see Walters, the complaining witness in this case? A. I seen the man, yes— I didn’t know him.

‘ ‘ Q. Where did you see him ? A. He was at the bar when I seen him.

“Q. What position was he in ? A. Well, he was pretty drunk —buying drinks.

“Q. He was buying drinks at the time you first saw him? A. Yes.

“Q. Did you later see him change his position at the bar? A. I didn’t stay very long. I was back and forth between the bars, but one time I did enter the Stockman’s and I seen a man passed out there at the bar.

“Q. Do you recall any time going up and touching his rear pockets? A. No.

“Q. (Continuing) of his trousers? A. No.

“Q. Did you at any time sit down alongside of him for a period of ten minutes during the course of that evening? A. No, I don’t think so. I may have sat down to get some change.

‘ ‘ Q. Did you sit down alongside of him for any length of time that you can recall? A. For no length of time, no.

“Q. Did you sit alongside of him at all ? A. Well, as I said, I was back and forth at the bar getting change, and I believe I had a drink sitting there at the bar.

“Q. Did you take any wallet or purse out of his pocket? A. I did not.”

Other evidence received at the trial was that during the afternoon of January 1 the defendant cashed a check at the Stock-man’s Bar in the amount of five dollars. The barmaid, Katherine Immel, came on shift at 5:30 in the afternoon on January 1, New Year’s Day. She testified that during the evening of January 1 the defendant purchased some drinks and wrote a check in the amount of five dollars and that the check was cashed not much earlier than 11:00 o ’clock that night. The check was returned for want of funds to pay it. As the barmaid said, “It bounced.”

The defendant admitted writing the check and stated he had an account in the bank upon which it was drawn and that the only reason he wrote the check was to close out his bank account. Concerning this check and at one point in his testimony, the defendant testified on direct as follows:

“Q. On the day you cashed this check, had you checked how much money you had in the bank? A. No, I did not.

“Q. What did you think you had in the bank at that time? A. I figured I had around $27.00 or $28.00.

“Q. Did you have any reason for cashing that check that you cashed? A. Yes, I was going back to North Dakota, and I wanted to close out that account. I was going back to work. ’ ’

On cross-examination the defendant testified as follows:

“Q. Then you spent thirty or thirty-five dollars, you say, between the Stockman’s and the Elks Bar in Chinook? A. Yes.

“Q. And you still found it necessary to cash a check at the Stockman’s Bar? A. It wasn’t necessary.

‘ ‘ Q. How come you to do it then ? A. I though I had money in the bank, and I wanted to close out the account before I went back to North Dakota.

“Q. How much did you think you had in the bank? A. I figured I had $6.00 or $7.00.

“Q. And you figured a $5.00 check would handle it. A. It would be the biggest part of it, and I couldn’t find out how much I had.”

Further evidence disclosed the defendant did have a bank account at the time and the balance therein amounted to $1.55.

At around 7:00 o’clock on the evening of January 1, 1955, the defendant purchased a drink for the witness Carol Falcon, and when she was asked how the defendant paid for it the witness replied, “He borrowed thirty cents from Ernie Friede.” This last-mentioned testimony was not denied by the defendant, though he was the last witness to testify in the case.

The defendant, in his brief on appeal and his oral argument before this court, poses the question that Walters’ billfold or wallet could have dropped to the floor while Walters was asleep at the bar and that no one looked on the floor to determine whether or not the wallet was there. We do not consider this one fact, standing alone, of any great import. In any event, it was for the jury to take into consideration with all the other evidence in the case.

From the foregoing testimony, and considering only that part thereof introduced by the state in its case in chief prior to defendants’ motion made to the court requesting the jury to bring in a verdict of not guilty, and without considering the evidence which is favorable to the defendant, but taking into-consideration that only which might tend to prove his guilt, we hold the evidence was sufficient to establish a prima facie case of guilt. R.C.M. 1947, section 94-7227, provides that if, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant; but the jury is not bound by the advice. This section is applicable to those cases only in which the trial court deems the evidence, although tending to prove every element necessary to constitute the crime charged, insufficient in weight to warrant a conviction. State v. Mahoney, 24 Mont. 281, 286, 61 Pac. 647. The trial court was correct in denying defendant’s motion to request the jury to acquit the defendant.

It will be observed the defendant did not elect to stand on his motion but proceeded to introduce testimony on his own behalf, including that of his own. Taken as a whole, defendant’s case did not weaken the case of the state, but, in our opinion, added strength to it.

In People v. Appleton, 120 Cal. 250, 52 Pac. 582, wherein the facts are more or less analogous to the facts in the case at bar, the court said:

“Defendant’s main contention is that the evidence did not warrant a conviction of grand larceny (the amount taken being less than $50), because, as contended, it did not show that the money was taken from the person of Nolan. At the time the larceny is supposed to have been committed, Nolan was in a drunken sleep on a doorstep. Between 2 and 3 o’clock in the morning defendant and a companion were discovered standing on the sidewalk, very near the sleeping man, in a suspicious manner; they were watched, and seen to move away a short distance and then stop for a few minutes by a fence, after which they started off down the street, when defendant was arrested, his companion running away and escaping. Nolan was immediately aroused, and it was found that his left trousers pocket was turned inside out and empty. The last he remembered before going to sleep, his purse, containing sis or seven dollars in silver coin, was in the pocket. After daylight a search revealed the empty purse inside the yard by the fence near the point where defendant and his companion had been seen to stop. While entirely circumstantial, this evidence fully justified a finding of a taking from the person. True, neither the defendant nor his companion were seen in actual contact with Nolan’s person, but the situation was such as to have afforded them the opportunity, and the jury were clearly justified by the circumstances in drawing the inference that the purse was in the pocket when taken and was abstracted therefrom. The argument that there was nothing to show that it had not fallen from the pocket and was not upon the person of Nolan at the time of the taking was for the jury. The suggestion that in certain other respects the evidence was lacking is without merit. It substantially tended to establish defendant’s guilt, and its weight was for the jury.”

The prosecution in this case was had under R.C.M. 1947, section 94-2704, which provides:

“Grand larceny is larceny committed with a felonious intent in either of the following eases: * * *

“2. When the property taken is from the person of another. # * # »”

Under the provisions of this section of the code it is immaterial what amount of money may have been, taken from another, for it is grand larceny to take money from the person of another with a felonious intent no matter what the amount is that is taken. State v. Fisher, 108 Mont. 68, 88 Pac. (2d) 53.

The entire proof offered by the state and received by the court in the case at bar was based upon circumstantial evidence, and neither the state nor the defendant questions the fact that a legal verdict may be based on circumstantial evidence. If we correctly understand defendant’s position in the premises, it is that the billfold or wallet of Walters could have fallen on the floor, and no proof having been adduced to show that it was not on the floor, this fact, standing alone, is inconsistent with the hypothesis that the defendant is guilty of the crime charged against him. Whether the wallet did or did not fall upon the floor, whether an investigation was made to determine the fact, and whether the wallet had been securely buttoned in the right-hand shirt pocket of Walters by the barmaid, as previously related, were matters for the jury, to be considered along with all the other evidence in the cause.

Other testimony on behalf of the defendant, which is urged in appellant’s brief as warranting a reversal of the judgment, created conflicts in the evidence, all of which were, by the jury’s verdict, resolved against the defendant.

Under all the evidence in this case the jury was warranted in believing the defendant committed the crime of grand larceny as alleged in the information. It is for the jury and not the reviewing court to determine the credibility of a witness and the weight to be given his testimony. State v. Robinson, 109 Mont. 322, 96 Pac. (2d) 265; State v. Espelin, 106 Mont. 231, 76 Pac. (2d) 629; State v. Collett, 118 Mont. 473, 480, 167 Pac. (2d) 584.

Insufficiency of the evidence to justify the verdict. This court on appeal in a criminal case is controlled by the following rules: Disputed questions of fact and the credibility of witnesses will not be considered on appeal. Determination of such matters is within the province of the jury, and so long as there is substantial evidence to support the verdict, it cannot be disturbed on appeal. State v. Messerly, 126 Mont. 62, 69, 244 Pac. (2d) 1054. See, also, State v. Robinson, supra, State v. Harkins, 85 Mont. 585, 281 Pac. 551, and eases therein cited. See, also, State v. Strobel, Mont., 304 Pac. (2d) 606. There was sufficient competent evidence, if believed by the jury, to justify the jury’s verdict.

There was nothing in defendant’s showing on motion for a new trial which would have justified setting aside the verdict, and the new trial was properly denied.

We have considered the case of State v. Whorton, 25 Mont. 11, 63 Pac. 627. The facts there stated are not of the same character as disclosed by the record in the case at bar. The case is not applicable.

Here, the jury was properly and amply instructed as to the law in the case, and the rights of the defendant were carefully guarded by the court in its instruction on the law with reference to circumstantial evidence. We find no prejudicial error in the record. The judgment of conviction and the order denying defendant’s motion for a new trial are affirmed.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICES CASTLES and ANGSTMAN, concur.