#### STATE, Respondent, *v.*De WOLFE, Appellant.

(No. 1,849.)

(Submitted January 6, 1904.

Decided January 23, 1904.)

*Grand Larceny*— Information—Time *for Answer*— Refusal—l *'Error*— Venue—Horses —■ *Brands*— *Ownership*— Proof— *Variance*— *Conspiracy*— Declarations *of Co-Conspirators■*— ■ *Proof*— *Accessories*— *Instructions*■— *Statutes*— *Right of Counsel to Appear*— Question *for Court.*

1. Under Penal Code, Section 1893, defining an arraignment, and requiring a “copy” of the information to be delivered to defendant, a true copy is meant.

2. Defeudant in a prosecution for grand larceny raised the objection that the copy of the information furnished him was materially different from the information on which he was about to be tried, which objection the court sustained, and required defendánt to be furnished with a true copy, whereupon defendant requested the statutory time in which to plead. *Seld3*that a refusal of the request constitutes reversible -error, under Penal Code. *416Section 1S93, providing that, “if on arraignment tlie defendant requires it, lie must be allowed a reasonable time, not less than one day, to answer tbe informationtbe record showing- that no plea was entered at the trial.

3. where the state, in a prosecution for larceny of horses, tries the case on the theory that the horses were stolen in pursuance of a conspiracy between defendant and others, proof of declarations of defendant’s co-conspirators must be confined to those made while the conspiracy was pending, and in furtherance of it.

4. where defendant was charged with stealing horses bearing certain brands, proof that one one of the brands belonged to H., and _that the horses bore such brand, is not proof that they belonged to H.

5. An allegaiton in an information charging grand larceny that the property belonged to a certain person is material.

6. under Penal Code, Sections 1501, 1569, 1572, permitting conviction in any connty into which the guilty person takes stolen property, there is no variance between the venue as laid in an information charging larceny of horses in Cascade county, Montana, and proof that the horses were stolen in Canada, and driven into Cascade county.

7. Penal Code, Section 1841, Subd. 4, providing that an information is sufficient if it can be understood therefrom that the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein, has no application to an information charging larceny.

8. under Penal Code, Section 1852, the distinction between accessories before the fact and principáis is abrogated, and all are treated as principals.

9. It Is improper to charge, In a prosecution for grand larceny, as to aeceso-ries after the fact, In the language of Penal Code, Section 1854, in the absence of evidence on which to base such a charge.

10. under Code of Civil Procedure, Section 3390, requiring the court on all proper occasions to charge “that a witness false in one part of his testimony is to be distrusted in others,” a charge in a prosecution for grand larceny which tells the jury that they have the right to disregard any or all of the testimony of a witness who has willfully and intentionally test!fled falsely as to any material matter in the case is erroneous by reason of the omission of the words “except In so far as it is corroborated by other credible evidence.”

11. The right of counsel to appear in a cause is a question of law for the court. Me. Justice Milbuen dissenting in part.

*Appeal from,, District Cowrt, Gaseado County; J. B. Leslie, Judge.*

Peecy De Wolee was convicted of grand larceny. Prom tbe judgment, and from an order denying bis motion for a new trial, be appeals.

[Reversed.

*Mr. James W. Freeman,*for Appellant.

*Mr. James Donovan, Attorney General,*for tbe State.

MR. COMMISSIONER ÜALLAWAY

prepared tbe opinion for tbe court.

*417Percy De Wolfe was convicted of the crime of grand larceny. Prom 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 ILouk. 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. Pix 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.

*418Section 1880' of tbe 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, lb., 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 indorse-ments 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, *lb.)*

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.

*419Afe we have seen, three steps are necessary in an arraignment : The information must be read to- the defendant, be 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 Edmis-ton, Prank Smith and defendant. During the trial witnesses were allowed to testify to statements made by E'dmiston 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.

*420
      3. At tbe conclusion of tbe state’s case tbe defendant moved ' to strike out all of tbe testimony with reference to tbe O D borses, on tbe ground that tbe state bad not proved tbe ownership of such borses. Tbe court overruled tbe motion. We have examined tbe record, and think tbe motion should have been sustained. No one testified that tbe O L borses described in tbe information were tbe property of George Houk. Houk does not seem to have been present at" tbe trial. Tbe witnesses Wagner and Fox testified that they saw O' L borses in the herd driven away by Edmiston and Smith, and said they knew tbe O' L brand, and that it belonged to George Houk. Tbe fact that tbe O L brand belonged to Houk, and that tbe borses bore such brand, was not proof that they belonged to Houk at tbe time they were driven away, or that defendant was not rightfully in possession of them. Tbe allegation that tbe borses were tbe property of George Houk was material, and it was incumbent upon tbe state to prove it beyond a reasonable doubt.

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

Tbe state proved that tbe Bar A P Bar borses were stolen in the Dominion of Canada, near tbe Montana line, and were then driven to Great Falls, in Cascade county, Montana, 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 tbe larceny was committed should be stated in tbe body of tbe information.” No contention is made that tbe offense is not triable in Cascade county, nor does it seem that such contention could be sustained under tbe provisions of Sections 1561, 1569 and 1572 of tbe Penal Code. These sections read as follows:

> “Sec. 1561. When tbe commission of a public offense, commenced without tbe state, is consummated within its boundaries, tbe defendant is liable to punishment therefor in this state though be was out of tbe state at tbe time of tbe commission of tbe offense charged. If be consummated it in this state, *421through 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 convicted of that crime in any county into which he takes the stolen property, on the theory that, “since larceny consists of any as-portation of the goods of another through trespass by one who simultaneously means to- steal them, the complete offense is committed in every locality in which such asportation, trespass and attempt to steal occur.” (Bishop’s Directions & Forms, Sec. 607; *State*v. *Kief,*12 Mont. 92, 29 Pac. 654, 15 L. R. A. 722.)

Under a section similar to 1569, supra, it has been repeatedly held that informations for larceny should lay the venue in the county in which the offense is to be tried. It is- unnecessary to refer to' the place in which the stolen property was originally taken, or to allege what took place therein. Such matter is evidentiary, and may be proved without an allegation of prior jOjeeurrences. *(Haskins*v. *People,*16 N. Y. 348; *State*v. Brown, 8 Nev. 208; *People*v. *Mellon,*40 Cal. 648; *People*v. Scott, 74 Cal. 94, 15 Pac. 384; *People*v. Staples, 91 Cal. 23, 27 Pac. 523.)

The defendant says that Subdivision 4 of Section 1841 indicates a different procedure. The language relied on is: “The *422information is sufficient, if it- can be understood therefrom: (4) That tbe offense was committed at some place witbin the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.” This does not .refer to larceny, because in a case like the present the act was committed within, as well as without, the local jurisdiction of the county. The subdivision *supra*undoubtedly applies to the two other crimes — burglary and robbery— mentioned in Section 1569, *supra,*because those offenses are not continuing offenses, as larceny may be. They are necessarily completed at some certain place and time, being essen'tially local offenses. If property be taken by burglary in one county and brought into another, the jurisdiction of the offense of burglary is in either county, but the act of burglary is ordinarily consummated in one county only. Bringing the property into the other county gives that county jurisdiction.. *(Haskins*v. People, *supra; People*v. *Scott, supra.)*

5. The defendant insists that several of the instructions are erroneous. In No. 5 the jury was told: “If you shall believe from the evidence, beyond all reasonable doubt, that the said defendant, Percy De Wolfe, in conjunction with the said Jack Edmiston, or by himself, at the county of Cascade and state of Montana, and on or about the 25th day of October, 1900, did then and there willfully, unlawfully and feloniously steal, take and carry away thersaid horses described in the information, belonging to the said Albert Lindquist, and branded Bar A P Bar on the left thigh, and the said nine head of horses branded O L on the right shoulder, being the property of one George Ilouk, or any of said horses, and the said defendant then and there having the intent to willfully, unlawfully and feloniously deprive the said owner or owners of their said property, it will be your duty to find the defendant guilty as charged in the information.” Als we have previously observed, there was no evidence whatever concerning the ownership of the 0 L horses, and the court should not have referred to them in this instruction. This same criticism is applicable to instruction No. 13.

*423
      6. In instruction No. Y tbe court correctly told tbe jury that “in tbis state tbe distinction between an accessory before tbe fact and tbe principal, and between principals in tbe first and second degree, in cases of felony, is abrogated; and all persons concerned in tbe commission of a felony, whether tbey directly commit tbe act constituting tbe offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no other facts need be alleged or proved under an information against such accessory than are required under an information against bis principal,” and then gave tbe jury instruction No. 8, which reads: “You are instructed that an accessory to tbe commission of a felony may be prosecuted, tried and punished, though tbe principal may be neither prosecuted nor tried.” Instruction No. Y is practically in tbe language of Section 1852 of tbe Penal Code. Tbe words “such an accessory,” as used in that section, clearly refer to tbe words “an accessory before tbe fact,” used in tbe opening sentence thereof.

Instruction No. 8 is a quotation from Section 1854 of the Penal Code, which manifestly refers to an accessory after tbe fact, as tbe term was formerly employed. We find by reference to Section 40 of tbe Penal Code that tbe parties to crimes are classified as principáis and accessories. Section 41 defines who are principals, while Section 42 prescribes “that all persons who, after full knowledge that a felony has been committed, conceal it from tbe magistrate, or harbor or protect tbe person charged with or convicted thereof, are accessories.” It thus appears that accessories to crime are still recognized as punishable under our law, but tbe accessories referred to in tbe statute are accessories after tbe fact. Accessories before tbe fact are treated as principals. There was no evidence whatever upon which to base instruction No. 8. If,tbe defendant was guilty at all, be was guilty as principal. .It was not pretended that be either concealed tbe crime from a magistrate, or harbored or protected any person - charged with, or convicted thereof. Instructions must be warranted by tbe evidence. *(Yoder*v. *Reynolds,*28 Mont. 183, 72 Pac. 417, and cases cited.)

*424The impropriety of giving instruction No. 8 becomes more apparent when we consider that the defendant was tried for grand larceny, which is punishable by imprisonment in the state jorison for not less than one nor more than fourteen years (Section 885, Penal Code), while, “except in cases where a different punishment is prescribed, an accessory is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding two years, or by fine not exceeding five thousand dollars.” (Section 43, Penal Code.)

It is probable that the jury was not misled by instruction No. 8, for the reason that the only “accessory” the instructions informed them of was the “accessory before the fact” mentioned in instruction *7;*but as the matter is before us for review, and as the case is to be remanded, it is proper to call attention to the distinction between Sections 1S52 and 1854, supra, to the end that errors with reference to them, may be avoided in the future.

7. Instruction No. 20 reads, “If you believe that any witness who has testified in this case has willfully and intentionally testified falsely as to any material matter in the case, ■ the jury have a right to disregard any or all of the testimony of such witness.” Defendant says the court should have added thereto the words “except in so far as it is corroborated by other credible evidence,” and in this we think he is correct, under the former decisions of this court. Section 3390, Code Civil Procedure, which is applicable to this case, prescribes that the jury are to be instructed by the court, on all proper occasions, “that a witness false in one part of his testimony is to be distrusted in others.”

In *Cameron*v. *Wentworth,*23 Mont. 70, 57 Pac. 648, the court said: “It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to. discard his entire testimony, except in so far as it has been corroborated by other credible evidence.” And again, commenting on Section 3390, it is said: “As a statute affecting the province of the jury in weighing *425evidence, it requires them to view with distrust the testimony of a witness who willfully swears, falsely as to a material matter. They must distrust such a witness, and, under their general power of passing upon the credibility to be attached to each witness, they may disregard such testimony entirely, except in so far as it is corroborated by other credible evidence. *People*v. *Durant,*116 Cal. 179, 48 Pac. 75.” The same rule is announced in *Bonnie*v. *Earll,*12 Mont. 239, 29 Pac. 882.

8. At the beginning of the trial the county attorney requested that Mr. W. G. Downing be entered as associate counsel for the state. This the court permitted over defendant’s objection. After some discussion upon another point, the court said: “I believe I will require Mr. Downing to state upon what basis he appears in this case, and let the record show it,” to which that gentleman replied, “If the court please, I have been employed by the state board of stock commissioners in this case.” Upon this state of facts, the court gave the jury instruction No. 1, which reads as follows: “The jury are further instructed that, under the provisions of the statutes of this state, it is the duty of the board of stock commissioners to exercise a general supervision over, and, so far as may be, protect the stock interests of the state from theft and disease; and they may take all necessary and lawful steps, procure all necessary and proper process for the attendance of witnesses, and employ counsel to assist in the prosecution of any person; and it is further made the duty of the board of stock commissioners, when necessary, to- assist the prosecution of any person guilty of any offense against the laws of this state, in feloniously branding or stealing any stock or any other crime, or misdemeanor, under any of the laws of the state for protection of the rights and interests of stock owners.”

The right of Mr. Downing to appear was a question of law for the court, and was a matter with which the jury had nothing to do-. There was no evidence before them that he was employed by the board of stock commissioners. His statement was to the court, and before the jury was impaneled. This instruc*426tion, therefore, is not based upon any evidence in tbe case. But it is objectionable from any point of view. Tbe jury were told that it is tbe duty of tbe board of stock eommissoners to employ counsel to assist tbe prosecution of any person *guilty*of any offense against tbe laws of tbe state in feloniously branding or stealing any stock. In effect, tbe instruction told tbe jury that tbe gentlemen comprising tbe board, of stock commissioners bad satisfied themselves that tbe defendant was guilty of tbe crime charged in tbe information, and therefore bad employed counsel to assist in tbe prosecution.

We do not find any merit in any of tbe other alleged errors pointed out by defendant.

Nor tbe foregoing reasons, we are of tbe opinion that tbe judgment and order should be reversed, and tbe cause remanded for a new trial.

Pee, GueiaM.

For tbe reasons given in tbe foregoing opinion, tbe judgment and ,order are reversed, and tbe cause remanded for a new trial.

Me. Justice MilbuRN:

I concur specially. I do not agree with what is said in tbe opinion in regard to what it is necessary to allege in the information, and prove on tbe trial, when a party' is to be charged .with larceny under tbe provisions of tbe statute making it larceny, under tbe law of Montana, to bring into and have in tbe state of Montana property stolen without tbe state. I believe, in such a case, that the information should pursue tbe language of the statute, and recite the facts necessary to bring it within tbe provisions of tbe statute; one important one being that tbe property was stolen outside of Montana.

Tbe case of *State*v. Kief, 12 Mont. 92 (29 Pac. 654, 15 L. R. A. 722), cited in tbe opinion, is not authority for any other conclusion. At page 98 of that case tbe court cites Mr. Bishops tbe learned writer saying: “Where, as in some states, there is a statute on tbe subject, its terms will, *of course*[italics mine. G. R. M.], if *427it is tbe foundation of tbe proceeding, be pursued.” Tbe indictment in tbe *Kief*Case, as tbe court states ofter tb© citation from Mr. Bishop', alleged tbat Kief “did feloniously steal, take and carry away” tbe property of one Mitcbell, witbin tbe Dominion of Canada, and bring tbe same into tbe county of Dawson, in tbe state of Montana.

My belief is tbat tbe conclusion of tbe court tbat it was not necessary to> show tbat tbe taking in tbe foreign state or country was unlawful is erroneous and illogical. I say tbis respectfully, and witb less hesitation tban I otherwise would, when I consider tbat tbe court said, •‘'We confess that tbe authorities cannot be reconciled, and tbat tbe question is environed by extreme difficulties;” and further when I find in tbe opinion several quotations from courts of high standing *contra*to tbe conclusion reached.

The short dissenting opinion of Mr. Justice De Witt in tbe *Kief Case*is better supported on principle and by authority, in my opinion, tban that of tbe majority of tbe court. Tbe contention of tbe appellant in tbe ease before us is stronger tban tbat of tbe respondent in tbe case of *State*v. *Kief,*for tbe reason tbat tbe indictment against tbe respondent in tbat case was drawn witb actual reference to tbe language of tbe statute, and all of it, whereas tbe information in tbe case at bar simply states tbat tbe property was stolen, taken and carried away in tbe county of Cascade.

Not being satisfied witb tbe correctness of tbe views expressed in the opinion in tbis case upon tbe subject referred to, I dissent as to them; being inclined to the1belief tbat the contention of tbe appellant as to tbe information and tbe insufficiency of tbe proof under it is correct.