The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-02-01
IN THE SUPREME COURT
Another of the Clancy Decisions
Turned Upside Down.
IN THE JOHN JUDD TRIAL
The Attorney General Admitted the Err
rors- Instructions to the Jury Were
Irreconcilably Inconsistent and
Confiicting-NewT Trial.
Special Dispatch to The STANDARDS

rendered two opinions this morning.
The court granted new trial to John
Judd. convicted of grand larceny in Sill
yer Bow. Chief Justice Pemberton pre-
pared the opinion. Counsel for Judd as
signed various errors in the trial below,
chief of which We're the admission of
the evidence of f. s. Booth. Charles
Matteson and M. l.. Holland, who testi-
fed as to what Jennie Wilson said as to
the defendant taking and converting the
money in question to his own use, and
the instructions which Judge Clancy
gave after the jury had left the court
room and returned for further instruc-
tons. The opinion Of the court was as
follows:
"The appellant assigns as errors the
admission of the evidence of witnesses
Booth, Matteson and Holland as to
what the complaining witness told them
about defendants taking the money.
and the giving of the Instructions by the
court as shown and set out in the state
ment-
..The action of the court in admitting
the Objectionable evidence and in Civ
ing the instructions complained of is SO
palpably wrong in the opinion of the
attorney general that he admits in his
brief that the court should be reversed
and remanded for a new trial.
I'VE would therefore reverse and re-
mand the case on the attorney generals
confession of error without comment hut
for the fact that the case Will perhaps be
tried again.
That the evidence of the witnesses
as to what Jennie Wilson told them
about the defendants taking the money
mentioned In the information was hear
say, cannot be disputed. 1t is glaringly
so. Nor is ii anywhere pretended that
these statements We're made in the pres
ence of the defendant.
The statements We're made by the
complaining witness To the other witf
nesses in the city of Butte when ii Is
conceded that the defendant was out OF
the city. Ii is not improbable that the
complaining witness told her grievances
and version of the case to many other
people. and. If such statements are COM
petent evidence to establish the defend
ants guilt, the prosecuting attorney
might have made n stronger case by
putting such persons ON the witness
stand. And this Objectionable evidence
was all admitted in rebuttai. The add
mission of this evidence was such pail
pable prejudicial error that we are at
loss to see upon what theory the prose
cutting attorney could have offered II or
the court admitted it.
Inconsistent Instructions.
1T only requires casual reading of
the instructions complained of to see
that they are irreconcilably inconsistent
and conflicting. The instruction given
at the instance of the state tells the jury
substantially that If the defendant took
the money intending TO return IL. but
did not do so after demand, the fact that
he intended to return II when he took
1T, or when il was delivered TO him by
Jennie Wilson. was no defense. and that
the burden was on the defendant to
show that he had no guilty intent.
THE instructions given Of the instance
of the defendant made the intent the
essence of the crime and require the
state to prove a guilty intent telling the
Jury in effect that although the defend
ant appropriated the money, yet if he
did ii under an honest claim of right OF
title he was not guilty as charged of lar
ceny.
These Instructions are SO conflicting
that no jury could reconcile them and
the additional instruction given by the
court at the request of the jury did not
relieve or remedy the conflict.
Absolutely Erroneous.
! "The instruction of the state placing
the burden of proving that he had no
guilty intent upon the defendant. in dis
posing of the money in question was alb
soiutely erroneous. 1t devolved upon the
state to prove beyond reasonable doubt
that the defendant was the bailee of the
money and that he unlawfully and fe-
1oniously appropriated II to his own use
The defendant was not required to prove
his innocence
THE errors in this case are SO glaring
that we commend the action OF the at
forney general in confessng them on an
inspection of the record. The action of
the court especially in admitting the
evidence complained of. would he ridi-
culous but for the expense imposed upon
the taxpayers by such seemingly farci-
cal administration of the laws of the
state.
1.-THE judgment appealed from is re-
rersed and the case remanded for a new
trial
A Meagher County Case.
The other case decided came from
Meagher county and was an appeal
from the judgment Of Judge Armstrong
IN dismissing the suit of Jobb rs the
county of Meagher for three months
wages as deputy sheriff. The case is in
teresting since IL promuigates the doc
trine that the county commissioners
have the power to declare the number
and compensation of deputies that shall
be employed in county offices under the
restrictions laid down by the codes as 10
the maximum number of deputies that
shall be allotted counties Of certain
classes. After an exhaustive review of
the law. backed up by numerous cita-
lions from authorities. the court in an
opinion by Justice Pigott, afiifms the
Judgment of the lower court. This is
the first time this issue has ever been
presented to the supreme court. The
question as to the power Of the commits
sioners has been mooted one. Not
long ago the commissioners of Lewis
and Clarke county retained prominent
firm of attorneys To pass upon this very
question. Their opinion is said 10 have
been directly opposite 10 the doctrine
laid down by the supreme court to-day.
They VIII Fight.
San Francisco. Jan. 31.-The foreign in