State v. English, 14 Mont. 399 (Mont. 1894)

Per Curiam.

The defendant appeals from the judgment convicting him of the crime of larceny of one cow. The judgment must be reversed upon one of the points argued, but we will express our views upon some other questions raised, as it seems that they will necessarily be before the court again on a new trial.

The defendant was tried upon a plea of not guilty, and also upon the plea of autrefois acquit. The defendant and one Leslie De Witt were charged with stealing a cow, named in this information, and belonging to one Lars Waldeland. They were also charged with stealing a steer belonging to Charles

Carthrae. This defendant, English, was tried for the offense of stealing the steer, and was duly acquitted. He was then tried on the other information for stealing the cow, and was convicted. It is from the judgment on this conviction that lie now appeals.

The acquittal on the charge of stealing the steer is what the defendant claimed as a former acquittal which barred this prosecution. His argument proceeds upon the theory that the taking of the steer and the cow was one act, and therefore there could be but one prosecution. On the trial of this information the evidence as to the taking of the animals was to the effect that De Witt and this defendant first cut out the steer from Carthrae’s herd, drove it away some distance, and left it; that about half an hour or an hour afterwards they went to the herd of Waldeland, from half mile to a mile distant, and took the cow mentioned in this information, drove her to where they had left the steer, and then drove them both way. We are of opinion that thei'e were clearly two acts and two offenses in these transactions. The takings of the two animals were at different times, and at different places, under different circumstances, and from different owners. Each was in itself an absolute, complete, and independent offense We cannot doubt that, if an information had set up what the facts showed in this case, namely, that these persons took, "and drove away the steer of Carthrae, and half an hour or an hour later, and half a mile or a mile removed, took, and drove away the cow of Waldeland, a court would have held that the information was bad, in that it set up two offenses. But defendant here is informed against for stealing the cow only, and on the trial of that information he was not in jeopardy of a conviction for stealing the steer. It is said in the case of Territory v. Willard, 8 Mont. 328, quoting from Wharton: “Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois is generally good, but not otherwise.” Applying that rule to the case at bar, it is clear that the evidence necessary to support the information for stealing the cow would not have been sufficient to procure a legal conviction upon the information for stealing the steer. (See, also, Territory v. Stocker, 9 Mont. 6.)

There can be no doubt that the plea of former acquittal in this case is insufficient. It should have been so determined as a question of law by the court.

Defendant also makes the contention that the judgment upon the trial for stealing the steer is res adjudicata in this: that the only defense made upon the trial was an alibi that the defendant being acquitted, it is res adjudicata that he was not present when the steer was stolen; and that the evidence in this case shows that the steer and cow were stolen together and therefore it was established as res adjudicata that defendant was not present when the cow was stolen. But we have heretofore shown that the stealing of the steer and cow were two offenses, committed at different times and places. The defendant, under the circumstances appearing, was not necessarily absent from the one stealing because he was absent from the other.

It seems, upon the argument~of this case, that Leslie De Witt, the associate of defendant in these transactions, had, before the trial of this cause, been convicted and sentenced for his participation in these events. On this trial the court, over the objection of defendant, admitted in evidence testimony of the confessions made by De Witt, implicating him and defendant in the stealing of the cow. It is clear from the testimony that these confessions were not made in the presence of defendant, nor were they made during the pendency of the commission of the larceny, nor in its furtherance, nor were they part of the res gestee. They were simply narrations by De Witt, after the larceny was completed, of the events which were past and accomplished. Under such circumstances the confessions of an accomplice, or of one of two persons charged with a crime, can be used as against the confessing person only. In the case at bar they were used as against the other person only. This was error. This is elementary, and ancient and modern law; and it is just. (1 Greenleaf on Evidence, §§ 111, 233; Wharton’s Criminal Evidence, 8th ed., § 699; 3 Am. & Eng. Ency. of Law, 482, notes and cases; Wharton’s Criminal Law, § 696; People v. Moore, 45 Cal. 19; McGehee v. State, 58 Ala. 360; Commonwealth v. Thompson, 99 Mass. 444; Cable v. Commonwealth (Ky.), 20 S. W. Rep. 220; State

v. Donelon, 45 La. Ann. 744.) See, also, cases cited by appellant. It is a matter of regret that prosecuting attorneys should insist upon, and the trial court permit, the introduction of illegal evidence, which must result in the reversal of cases, when such errors could be so easily avoided by a little reflection and research of the authorities.

The judgment is reversed, and the case is remanded for a new trial.

All concur.