State v. Hedican , 35 Mont. 381 ( 1907 )

MR. JUSTICE SMITH

delivered the opinion of the court.

The defendant in this case was convicted in the district court of Fergus county of the crime of grand larceny, to-wit, horse-stealing. Prior to his trial he presented a motion for a change of venue, based upon certain affidavits, to the effect that on account of the publicity that had been given to his case in a certain local newspaper, and the prejudice that existed in the community against the particular crime with which he was charged, he could not have a fair and impartial trial. This motion was denied by the trial court, and defendant assigns the action as error.

It might suffice to say that the contention was practically waived by his counsel in argument, but we have examined the affidavits presented and find no abuse of discretion in the denial of the motion.

It appears from the record that, as the information was originally drawn, it charged the defendant with having stolen certain horses belonging to one Mike T. Rooney; but on the eve of trial it was amended to read “Mike T. Rooney & Son. ” After the testimony had been closed, the court had instructed the jury, and the county attorney had made his opening argument, defendant’s counsel commented upon the fact that the son, Frank J. P. Rooney, had not been called as a witness for the state. Thereupon, at the close of the argument on the part of the defendant,- the state’s counsel asked leave to reopen his case, indorse the name of Frank J. P. Rooney on the information, and examine him as a witness. Upon the inquiry of the court as to the necéssity for such action, counsel stated that an oral stipulation had been had with one of defendant’s counsel to the effect that no advantage would be taken of Rooney’s absence, but that counsel had violated the stipulation by his argument to the jury, and therefore leave was asked to supply the testimony. Affidavits were filed by counsel on the respective sides and also by the trial judge, all practically agreeing that such a stipulation had been had, whereupon the court granted the motion of the state’s counsel, and Rooney was sworn. These proceedings were had in the presence of the jury. Counsel for defendant declined to cross-examine Rooney, and elected to make no further argument to the jury, although the court gave them permission so to do, and also to offer further evidence on defendant’s part if they desired. Afterward the court further instructed the jury to pay no attention to the circumstances.- surrounding the calling of Rooney as a witness, but to disregard what had taken place, and to consider and weigh his testimony as they would that of any other witness, they being the sole judges of his credibility.

Appellant contends that the court was in error in allowing Rooney’s name to be indorsed upon the information, and abused its discretion in reopening the case, under the circumstances, to 'his prejudice. There is no merit in the contention. Upon the showing made, the court was right in reopening the case and allowing Rooney to be sworn, and we find no abuse of discretion in the manner in which it was done.

The judgment of the court below is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.