I dissent. In my opinion the cross-examination of defendant relative to passing counterfeit money in Billings does not necessitate the granting of a new trial. Defendant was charged with having in his possession "apparatus, paper and other things made use of in counterfeiting bank notes or bills." A vital issue in the case was whether the apparatus, paper and other things were capable of being used in counterfeiting.
Defendant on his direct examination testified: "I have heard the testimony of the state's witnesses. All of this paraphernalia was used in connection with gambling operations or the marking of cards and dice or the making of flash rolls; that is the purpose for which they were used by me and Mr. Fuller; I did not make use of them for any other purpose. I did not at any time make use of any of these exhibits for the purpose of *Page 291 making any imitation or similitude of counterfeit bills or notes or the similitude or imitation of a genuine bill or note. I never used it for the purpose of making any imitation or similitude of any bank note or bill. I did not have it for any other purpose than has been related by the witness George Fuller; that was in connection with my operations as a gambler."
Defendant stated that Fuller correctly explained the use of the apparatus. Fuller explained that the apparatus was used for marking cards and dice for gambling purposes. He explained their methods of operation, as follows: "You ask if the four of us fellows were involved in this scheme to bunco somebody; not to bunco, to win the bankroll out there. You ask what I call that, just simple larceny; no, it isn't larceny, if you get a man out there and the taking is fast and nobody can beat him, it is just — just kind of a professional proposition and absolutely all right. The four of us were going to carry out this professional scheme of ours."
Thus defendant was permitted to show that the apparatus was used to commit a catalogue of crimes relating to gambling, but not for the purpose of counterfeiting. The gist of his evidence was that, while he was guilty of violating the anti-gambling laws, he was not guilty of the particular crime charged. If defendant had actually passed counterfeit money in Billings, the jury might well have presumed that the apparatus was used in making it. While the passing of counterfeit money is a different crime from that of possessing apparatus for use in counterfeiting, yet the two are so related that the proof of one tends to prove the other, and is admissible to show the criminal intent. (People v. White, 34 Cal. 183; York v. UnitedStates, (C.C.A.) 241 Fed. 656.)
It is true that one party cannot, over objection, make out his case on the cross-examination of a witness for his adversary, if the cross-examination goes to matter not brought out on direct examination. But if no objection is made, this very thing can be done, in which case the witness becomes a witness for the examining party as to the new matter. (State v. *Page 292 Richardson, 63 Mont. 322, 207 P. 124.) But here the state did not make out its case on the cross-examination of defendant. Defendant's answer was detrimental to the state. The question here is: Was the mere asking of the question prejudicial to defendant?
Under our statute, a witness may be compelled to answer a question which will have a direct tendency to degrade his character, if the answer goes to the fact in issue or to a fact from which the fact in issue would be presumed. (Sec. 10674, Rev. Codes 1921.) And if the question is pertinent, the fact that it may tend to prejudice the witness before the jury is no ground for its exclusion, much less for a new trial. (Lukert v.Eldridge, 49 Mont. 46, 139 P. 999.) The test usually applied is: Was the question asked in good faith and not for the sole purpose of degrading the witness? (People v. Burns, 121 Cal. 529,53 P. 1096; State v. Greenland, 125 Iowa, 141,100 N.W. 341; Russell v. State, 24 Ala. App. 496, 137 So. 460.)
I think we are not justified in saying that the questions complained of were not asked in good faith. Moreover, the answer of the defendant, being favorable to him, I fail to see how, in the light of his own admission of being a professional swindler, prejudice could have resulted. (Compare Lukert v. Eldridge, supra.) If we are to assume that the jurors disregarded their sworn duty and found defendant guilty of a crime other than the one charged in the information, is it not more reasonable to suppose that they considered the gambling with marked cards and dice, which defendant freely admitted on his direct examination, rather than the passing of counterfeit money, which he positively denied?
I think the error, if such it be, for which the judgment is reversed, was technical, does not affect any of the substantial rights of the defendant, and should be disregarded under the command of section 12125, Revised Codes of 1921, as was done by the learned trial judge in denying the motion for a new trial.
Rehearing denied November 18, 1933. *Page 293