This is an appeal from a judgment of conviction entered on a jury's verdict.
The information charges "that the defendant did wilfully, wrongfully, unlawfully and feloniously, steal, take, drive, lead and entice away one unbranded red white face heifer of the property of one William A. Finch, and not the property of the said defendant, with the intent in him, the said defendant, to deprive and defraud said true owner of his property, and of the use and benefit thereof, and to steal the same."
At the close of defendant's case and in rebuttal by way of impeachment, the state offered and there was received in evidence over the objection of the defendant, the record of defendant's prior conviction of a felony.
People v. Craig, 196 Cal. 19, 235 P. 721, 724, states: "The[1] usual manner of making proof of a prior conviction is to ask the witness who has suffered such a conviction if he had been theretofore convicted of a felony, and, if he denies that he has been so convicted, to produce a copy of the judgment of conviction, * * *."
In the present case the defendant while on the stand was not asked if he had suffered a prior conviction of a felony, and therefore he was given no opportunity to either deny or admit the fact. A careful search of the authorities fails to reveal any case in which the procedure adopted by the state in this case was *Page 493 followed. Such practice is most questionable and not to be commended.
Defendant assigns error on the giving, over his objection, of the state's offered instruction No. 6, reading: "In every crime or public offense there must exist a union or joint operation of act and intent. The intent or intention is manifested by the circumstances connected with the offense and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity. And under the laws of this State, when an unlawful act is shown to have been deliberately committed for the purpose of injuring another, it is presumed to have been committed with a malicious and guilty intent. The law also presumes that a person intends the ordinary consequences of any voluntary act committed by him. This latter presumption, however, is termed a disputable presumption and may be controverted by other evidence."
This instruction, in the exact language, was given in the case of State v. Schaefer, 35 Mont. 217, 88 P. 792, 793, wherein the defendant was charged with the crime of assault in the first degree. There as here, intent was the gist of the offense. Defendant there contended, "that `neither of these presumptions of law embodied in this instruction are applicable to a case of assault with a specific intent to kill, nor to any case where the specific intent with which the act is done is the very gist of the offense; * * *'." This court there said: "Such an instruction may properly be given in a case where the charge and facts warrant, but, when a defendant is on trial for a crime involving a specific intent as the gist of the offense, we think it might mislead a jury, and that the portions complained of should be omitted."
State v. Schaefer, supra, was cited with approval in State v. Colbert, 58 Mont. 584, 591, 194 P. 145, at page 148, wherein this court said: "The rule in other cases in which a specific intent is a necessary element of the crime is that the prosecution is required to prove it, or, what is equivalent, circumstances from which the jury may properly infer such intent. In such *Page 494 cases the propriety of giving the instruction is at least questionable. State v. Schaefer, 35 Mont. 217, 88 P. 792."
In People v. Snyder, 15 Cal.2d 706, 104 P.2d 639, a case of attempt to murder, appellant contended that "the trial court committed prejudicial error in charging the jury generally that a person is presumed to intend to do that which he voluntarily and wilfully does in fact do, and is also presumed to intend all the natural, probable and usual consequences of his acts." The California court there said: "But where, as here, the crime of which the defendant stands convicted, viz., attempted murder, requires proof of a specific intent to kill the victim, appellant contends that such intent, like any other fact or essential of the crime, must be proved by evidence or the inferences reasonably deducible therefrom and may not be based upon a presumption. The authorities support the appellant's contention. (People v. Miller, 2 Cal.2d 527, 532, 533 [42 P.2d 308, 98 A.L.R. 913]; People v. Jones, 160 Cal. 358, 370, 371 [117 P. 176]; People v. Landman, 103 Cal. 557, 580 [37 P. 518]; People v. Mize, 80 Cal. 41, 42, 44, 45 [22 P. 80]; People v. Brown, 27 Cal.App.2d 612, 614, 616 [81 P.2d 463]; People v. Maciel, 71 Cal.App. 213, 217, 220 [234 P. 877]; People v. Ramirez, 64 Cal.App. 358, 360, 361 [221 P. 960].)" See also People v. Mooney, 127 Cal. 339, 59 P. 761, 762; People v. Everett, 10 Cal.App. 12, 101 P. 528; People v. Murphy,17 Cal.App.2d 575, 62 P.2d 592, 597, 598; People v. Faber, 29 Cal.App.2d Supp. 751, 77 P.2d 921, 923; People v. Peak, 66 Cal.App.2d 894, 153 P.2d 464; State v. Horne,62 Utah 376, 220 P. 378; State v. Black, 163 Wn. 237,1 P.2d 206; Reagan v. State, 28 Tex. App. 227 [28 Tex.Crim. 227], 12 S.W. 601, 19 Am. St. Rep. 833, 835; Vickery v. State, 62 Tex.Crim. R.,137 S.W. 687, Ann. Cas. 1913C, 514 and note page 517; Fanning v. Chace,17 R.I. 388, 22 A. 275, 13 L.R.A. 134, and note, 33 Am. St. Rep. 878; People v. Flack, 125 N.Y. 324, 26 N.E. 267, 11 L.R.A. 807, and note 811, 813; 14 Am. Jur., Criminal Law, p. 783, sec. 23, n. 13; Id., n. 19; 53 Am. Jur., Trial, p. 186, sec. 218; Id., p. 244, sec. 290, n. 13; Id., p. 496, sec. *Page 495 641, n. 15; 16 C.J., Criminal Law, p. 80, sec. 47.6; Id., 48.7; 22 C.J.S., Criminal Law, sec. 32, page 91; Id., sec. 33, page 92; Id., sec. 34; Id., sec. 35, page 93; 23 C.J.S., sec. 1222, page 783; 8 Cal. Jur., Criminal Law, p. 341, sec. 385, n. 2.
In People v. Snyder, supra, in answering the contention of the attorney general that other instructions were given on the subject of specific intent wherein the jury in effect was charged that to convict the defendant they must be satisfied beyond a reasonable doubt as to the intent of the defendant, the court, in substance, held that the vice of the instruction complained of was not cured by what was said in other parts of the instructions, that the force of the objectionable instruction was left untouched, and its meaning was left unchanged and unimpaired.
State v. Peel, 23 Mont. 358, 373, 59 P. 169, 174, 75 Am. St.[2] Rep. 529, states: "* * * wherever instructions are upon a material point, the one correct and the other incorrect, this court will not presume that the jury followed the correct instruction, but will reverse the judgment, and order a new trial. State v. Rolla, 21 Mont. 582, 55 P. 523." See also State v. Jones, 48 Mont. 505, 524, 139 P. 441; State v. Darchuck,117 Mont. 15, 20, 156 P.2d 173; State v. McClellan, 23 Mont. 532,537, 538, 59 P. 924, 75 Am. St. Rep. 558; Heilbronner v. Lloyd, 17 Mont. 299, 307, 42 P. 853; Kelley v. Cable Company,7 Mont. 70, 77, 14 P. 633; 53 Am. Jur., Trial, p. 613, sec. 837.
Defendant was convicted of an offense requiring proof of a[3] specific intent as the gist of the offense charged against him, and it is impossible to now state that the jury was not influenced in its deliberation and verdict by the inapplicable instruction, this especially in view of the length of time taken by the jury in their deliberations as shown by the minutes of the court in this case, and by the recommendation for leniency which the jury made in returning its verdict into court.
The giving of this instruction was prejudicial error.
We have examined the other instructions to which defendant objects and also those offered by the defendant but refused by the trial court, but find no error in the court's rulings thereon, *Page 496 nor do we find merit in defendant's other assignments of error.
The judgment is reversed and the case remanded for a new trial.
Mr. Chief Justice Adair and Associate Justices Freebourn and Metcalf concur.