The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-02-03
NEAT QUESTION OF LAW.
Mr.. Duffy Springs Technicality
in the Lavelle Case.
WHAT is A FALSE TOKEN"
A Section of the Montana Codes Taken
From the California Laws in Which
Thare Is an Omission-Under
Amusement Til Monday.

LdFelle and his wife was concluded YES
| terday in Judge Donoghue's court. The
Lavelles are charged with obtaining
money under false pretenses in having
! defrauded j. II. Bonenberger out of
! something like $3.50.
| Yesterday was devoted to hearing the
arguments of counsel in the case and
| the attorneys talked for nearly five
hours. During the progress of the ar
guments Attorney ]. II. Duffy raised
| technical point of law which will have
a most important bearing on the case.
The Montana codes. with reference to
this crime, have been taken from the
California statute. but a most import
ant clause has been omitted. either in
tentionally or by an oversight. In view
of this fact Judge Donoghue, at the
conclusion of the arguments, took until
next Monday to read up on the law be-
fore rendering a decision.
When court convened at 1 80 O'clock
Mr. Winston, for the state, opened the
argument. He was followed by Attor-
ney Ballet of Helena, for the defense.
who made the legal argument in gen.
eral way. j. II. Duffy, the leading
counsel for the defense. then made his
argument. He made a most eloquent
appeal in behalf of his clients and be-
fore he had concluded half the men
and women in the court room were cry
ing. Mr.. Duffy spoke about two hours
after which Mr. Winston closed for the
state.
During the introduction of testimony
1t was brought out that at the time
the Laveles and the Boncnbergers en-
tered into the partnership in the res
taurant business, an agreement was
drawn up by Lavelle. The agreement
is as follows:
Anaconda, Mont. Jan. %. 1895
Il ~
that /. William Lavelle. have this day,
25th of January sold half my interest
In the business known as the restau-
rant Anaconda. One-half the good will
of the same for the sum of $3.50 to J. III.
Bonenberger, and each to have one
half the profits and each to pay one
half the expenses of the same j. H.
Bonenberger to have one-half the fix
lures and stock that belongs to William
Lavelle.
we seal our hands this 18th day of
January, 1898
WILLIAM LAVELLE.
j. II. BONENBERGER."
At the time this agreement was made
Mr.. and Mrs. Lavelle and Mr.. and Mrs
Bonenberger We're present. According
to the states witnesses, Bonenberger
asked Lavelle what fixtures he meant
Mrs. Lavelle spoke up and said "All
these you see here, back through the
kitchen" Lavelle supplemented this
remark by saying Everything you see
here except few old chairs" The de-
Tense, of course. denies having speci-
fed any fixtures as belonging to La
wells. Lavelle, in fact. did not own any
of the fixtures in the room.
The section under which the Lavelles |
were arrested and tried is as follows:
Section 1913. Every person who !
knowingly and designedly. by false or |
fraudulent representation or pretehses, |
detrauds any other person of money or |
property, or who causes or procures |
others to report falsely of his wealth |
or mercantile character, and by thus |
imposing upon any person obtain credit |
and thereby fraudulently gets into pos
session of money or property is pun
lshable In the same manner and to the |
same extent as for larceny of the
money or property so obtained
That section is clear enough. but now
comes another section which relates to
the evidence upon which a conviction
may be had. 1t is section No 20SS and
reads:
Upon trial for having. with an
intent to cheat or defraud another de-
Slgnedly or by any false pretense, OBJ
tanned the signature of any person to a
written instrument, or having obtained
rom any person any money, personal |
property or valuable thing, the defend
ant cannot be convicted il the false
prtleIse WAS expressed IN language
lnaccompanied by false token or
writing, unless the pretense, or some |
lote or memorandum thereof be in
writing, subscribed to or in the hand
writing of the defendant. -
The above section is identical with
section ITO of the California penal
ode, from which it was undoubtedly
AIKEN. with the exception that in the
'alifornia code the words ''or unless
he pretense be proven by the testi-
nony of two witnesses or that of one
witness and corroborating eircum-
stances. These words in the Califor-
Tia code follow Immediately after the
words handwriting of the defendant"
The defense contends that no false |
oxen was given by Lavelle and there
ore he cannot be convicted. The state
N the other hand maintains that the
tatements of Mr.. and Mrs. Lavelle
With reference to the fixtures pointed |
ut by them, as quoted above, must be |
onsidered as a false token.
Whatever the contentious of the at !
orneys may be, Judge Donoghue has |
neat question of law on his hands. |
ne which has never been passed upon
4 this state. A definition of the term
false token is to be found in a GER
ain case in the Missouri reports, which
re unobtainable in this city The
uestion hinges, apparently, entirely
pom the construction that may be
laced upon the words false token"
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