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eBook details

• Title: State v. Lund
• Author : Supreme Court of Montana
• Release Date : January 23, 1932
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Criminal Law ? Larceny ? Information Charging Common Theft ? Evidence Showing Acquisition of Property by Deceit ? Defrauded Person Knowingly Parting With Title ? Pleading and Proof ? Fatal Variance ? Evidence ? Change of Venue. Criminal Law ? Evidence ? Conjectures or Probabilities Insufficient to Warrant Conviction. 1. One charged with crime may not be convicted upon conjectures or probabilities but only upon sufficient competent evidence to sustain the charge as made. Same ? Writings ? Inapplicability of Parol Evidence Rule. 2. The parol evidence rule under which, in civil actions, oral testimony is inadmissible to vary the terms of a written instrument has no application in a criminal case involving fraud, where the state seeks by parol testimony to negative the existence of an alleged contract. Same ? Grand Larceny ? Evidence ? Vice-president of Corporation Qualified to Testify Concerning Accounts of Company. 3. The vice-president of a building and loan association held qualified to testify concerning the accounts of the corporation, in a prosecution for the theft of one of its certificates of stock. Same ? Inadmissibility of Statements by Third Party, not Co-conspirator, Against Defendant. 4. Ordinarily, statements by a third party, not a co-conspirator, made in the absence of defendant, are inadmissible against the latter. Same ? Principal and Agent ? When Former not Liable for Acts of Latter. 5. One may not be held criminally liable for acts of his agent, where the latter was not acting under the formers authorization, though committed in connection with his business. Same ? Evidence of Similar Offenses by Defendant ? When Admissible. 6. With relation to the rule making testimony of similar offenses as that charged admissible against a defendant, the fact that the testimony does not disclose exact similarity does not necessarily make it inadmissible, so long as the similarity shows a more or less common purpose or intent to the offense charged in the information. Same ? Admission of Evidence Showing Commission of Crime Other Than That Charged Error. 7. Reception of evidence tending to show the commission of an offense other than that charged is error, since one may not be - Page 170 convicted of an offense on an information which charges a distinct and unrelated crime. Same ? Reception of Letter Written by Brother of Defendant Error in Absence of Showing That Defendant Knew Contents. 8. Reception in evidence of a letter written by a brother of defendant on trial for the larceny of a stock certificate was error in the absence of a showing that defendant knew of it having been written. Same ? Change of Venue ? Discretion in Trial Court ? Appeal. 9. A motion for change of venue in a criminal case is addressed to the sound legal discretion of the trial court, and its decision, based on conflicting testimony, will not be disturbed unless it clearly appears that the court abused its discretion. Same ? Information Charging Common Theft ? Evidence Showing Acquisition of Property by Deceit ? Party Defrauded Knowingly Parting With Title ? Fatal Variance. 10. Defendant was charged with the larceny (common theft) of a certificate of building and loan stock. The theory of the prosecution in making its case was that the theft was accomplished by means of deceit and artifice, and the evidence showed that the complaining witness knowingly parted with title to the certificate in making a new investment in a corporation in the conduct of which defendant was shown to have been guilty of fraud and bad faith. He was convicted of the crime as charged. Held, that the conviction was illegal because of the fatal variance between the crime charged and the proof offered in support thereof, entitling defendant to his discharge.

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