State v. Rodgers , 40 Mont. 248 ( 1909 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the ■court.

Patrick Rodgers, James Barrett, a,nd Frank Rodgers were jointly accused of the crime of burglary, by an information filed in the district court of Silver Bow county, the charging part of which is as follows: “That at the county of Silver Bow, state of Montana, on or about the ninth day of November, A. I). 1908, and before the filing of this information, the said defendants, Patrick Rodgers, James Barrett and Frank Rodgers, •did willfully, unlawfully, feloniously, intentionally and burglariously enter that certain store and building known as the ■store and building of Louis Dreibelbis and situated at No. 429 North Main street, in the city of Butte, in said county and state, with intent in them, the said defendants, Patrick Rodgers, James Barrett and Frank Rodgers, then and there and therein, to commit grand and petit larceny.” Upon arraignment Patrick Bodgers interposed a general demurrer to the information, and, this being overruled, a plea of not guilty was entered, lie demanded and was granted a separate trial, was convicted, and has appealed from the judgment and from an order denying his motion for a new trial.

It is urged with great ability and commendable zeal that this information does not state facts sufficient to constitute a public offense; but every phase of that question now pressed upon our attention was fully presented with reference to an information in substantially the same language, in State v. Mish, 36 Mont. 168, 122 Am. St. Rep. 343, 92 Pac. 459, and, after a thorough investigation, the conclusion was reached that the information was sufficient, and it would be idle to restate the arguments in favor of the court’s conclusion at this time. We decline to recede from the position taken in the Mish Case, and the decision then rendered is conclusive against the defendant on this appeal. (See, also, State v. Rogers, 31 Mont. 1, 77 Pac. 293; People v. Price, 143 Cal. 351, 77 Pac. 73.)

It is also urged that the information is defective in that it charges two distinct offenses: (a) An entrance with intent to commit grand larceny; and (b) an entrance with intent to commit petit larceny. But this objection, if meritorious—which we do not concede—was waived by the defendant. The Code has prescribed the method by which the question can be raised, in subdivision 3 of section 9200, Bevised Codes, viz., by a special demurrer, and, failing to raise it in that manner, the defendant cannot upon the trial revive the right which his failure do demur specially waived, by objecting to the introduction of .any evidence upon the ground that the information states more than one offense. That the failure to raise the question by special demurrer is a waiver of his right to insist upon it is determined by section 9208, Bevised Codes, and State v. Mahoney, 24 Mont. 281, 61 Pac. 647.

Exception is taken to the action of the trial court in permitting a witness for the state to testify that the defendant .attempted to get away from the officers at the police station. The evidence was clearly admissible; but the objection was not made until after the question had been answered, repeated, and again answered. In State v. Rhys, ante, p. 131, 105 Pac. 494—we considered this same matter, and said: “Counsel cannot sit by until a question has been answered, and then,, if he deems the answer inimical to his client’s interest, object to it. Of course, if it appeared that the answer had been made before counsel had an opportunity to object, he could not be held to have waived his right to object. But there is not any showing made here that such was the case, and under the rule this objection came too late. (Poindexter & Orr L. S. Co. v. Oregon Short Line R. Co., 33 Mont. 338, 83 Pac. 886; Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33.)”

Exception is also taken to the refusal of the trial court to compel the witness George Dreibelbis to answer yes or no to the following question propounded by counsel for the defendant on cross-examination: “Now, you say your purpose in going to the city hall was to see the man you had the trouble with in the drug store, was it? Did you have any other purpose?” The witness answered: “I went to see the man, to see that he was safely landed where he would be when he was wanted. My only purpose in going to the city hall was to see that he was safely landed.” The witness was further questioned at considerable length regarding his trip to the city hall and to the county jail on the night the offense was committed, and there is not any complaint made that his answers, taken as a whole, were not explicit, or that they did not fully meet the questions propounded. Under these circumstances we do not think the court erred in permitting this witness to answer in his own way, rather than by yes or no. In any event, we fail to see how the defendant could have been prejudiced by the court’s ruling.

There are some fifty specifications of error directed to the action of the trial court in permitting certain cross-examination of the defendant and his witnesses. In State v. Rogers, above, this court announced the rule that, when a defendant goes upon the witness-stand in his own behalf and denies the commission of the crime with which he is charged, a very wide latitude of cross-examination is allowed; and we do not find that the cross-examination of the defendant in this instance violated any of his rights. Of course, it is not true that the cross-examination of a witness can be extended to the same limit that the direct examination of another witness might be, unless the particular circumstances warrant it; in other words, a party has no right to cross-examine any witness except as to the facts and circumstances connected with the matter stated in his direct examination. But, with that limitation in view, this court, in State v. Howard, 30 Mont. 518, 77 Pac. 50, said: “The right of cross-examination extends not only to all facts stated by the witness in his original examination, but to all other facts connected with them, whether directly or indirectly, which tends to enlighten the jury upon the question in controversy, and this right should not be restricted unduly.” While great latitude was allowed in the cross-examination of defendant’s witnesses, and some questions were asked which might have been omitted with propriety, yet the inquiry was directed to the movements of James Barrett and his relations to the defendant, and, since the evidence as a whole did not tend to discredit the defendant in any manner, he cannot insist that he was injured thereby.

We have examined every specification of error assigned, but deem it unnecessary to consider them separately; indeed, Counsel for appellant does not do so in his brief. It is sufficient to say that upon the assignments made we fail to find reversible error.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Beantly and Me. Justice Smith concur.