Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-10-11


yEtcted of Horse Stealing, Given a
New Trial Testimony as to Con-
tents lis Error. s.,.s.sss
William H. Denny, formerly mayor
Of Williston and prominent in bank
ing circles for a number of years
at that place, who was convicted, Of
receiving stolen horses, run over
from q band Of rustlers in Montana,
has been granted "a new trial by the
supreme court, and the Judgment of
conviction has been reversed. soa
Denny's arrest and conviction were
among the sensations at. Williston a.
year or SO ago. Denny was convicted
of the crime charged and sentenced
to three years in the penitentiary.
The proceedings that resulted in
his arrest and trial were instituted
by the Montana Stockgrowers assoc
iation. through George W. Hall, who
was a stock inspector paid by the
association. Hall was on the. trail
of Tom Ryan, a noted Montana rus
tier, and claimed to have implicated
Denny: in the North Dakota end of
the deal. Several other North Dako-
ia parties were said to be implicated
but Denny. was the only one arrested
and brought to trial. At the trial of
Denny, one of the damaging bits of
evidence was in relation to a letter,
said to have been written from Mon
tana to Denny, at =Ryan's instiga-
ton, setting forth the fact that GER
tain horses that had been stolen,
would be sent over to-. Williston.
Denny denied having received such a,
letter. The copy Of the letter which
was sent was lost before it could be
introduced in evidence and the, con-
tents of it were permitted to be es-
tablished by witnesses, who, claimed,
to have, seen it.. The evidence had
much to do with the conviction of
Denny. The supreme court holds
that under the circumstances the
contents Of the letter should N not
have been permitted In evidence.
There are other grounds set forth
justifying- a reversal Of the case. !.
The syllabus OF the opinion is as
follows: fgl ss5ss u 8 sz..s...,tz..s,. 81. !.
An instruction defining the. term,
''feloniously'' as ssan intent to; com
nit felony or an intent to commit
a wrongful act which, might result
in the commission Of a felony" ETC.,
is erroneous. BY the use. of the
word might the jury was told in
effect that a person is. by law pre-
sumed to intend all the possible,
rather than the reasonably probable
consequences Of his voluntarily
wrongful act. Said definition was al
SO erroneous as it in effect inform
ed the jury. that an attempt to COM
nit a wrongful act which might re
suit In receiving stolen property,
knowing the same to be stolen, con
stituted a felonious intent within
the meaning OF the law relating to
the offense charged In the informa-
tion, to-wit: Receiving stolen prop
erty. knowing the same to have been
stolen. @f
Said instruction. although erron-
eous, was not prejudical in view Of
the subsequent explicit Instructions
given by the trial judge which was
referred to at length In the opinion.
In a prosecution for receiving stol-
en- property knowing the same to
have been stolen it is unnecessary
to allege or prove who the theief was.
1t Is accordingly held that an In
struction to the effect that it is i'm
material who committed the larceny
was not prejudicial In view Of state
of the proof which in no manner tend
ed to implicate the defendant in
such larceny. 9 3.9
An instruction that guilty know
ledge is made out and sufficiently
proven to warrant conviction in that
respect by proof that the defendant
received the property under such
circumstances as would q satisfy
man Of ordinary intelligence and
caution that they were stolen, \. lis
erroneous. Such instruction lays
down an arbitrary rule for determin-
ing guilty knowledge. using as a test
facts which would satisfy a man of
ordinary intelligence and caution.
The standard by which to impute
guilty knowledge is not that of a.
man of ordinary intelligence and
caution but the test is personal
test of the defendant. Under such
instruction no discretion was vested
in the Jury and hence the same con-
stituted an invasion of the province
of the jury. Judge spalding dissents
Among other things the jury was
Instructed as follows:
This felonious intent to warrant
conviction must have consisted Of