I dissent. I think defendant's plea of once in jeopardy and former conviction should have been sustained as matter of law. I am aware that these pleas rise issues of fact (sec. 11928, Rev. Codes), and that the pleas cannot be determined against the defendant except by verdict of the jury. (State v. O'Brien,19 Mont. 6, 47 P. 103.) But if the evidence is in such condition as to leave no doubt in the minds of reasonable men that the pleas are good, then the court may and should determine the question in favor of defendant without submitting the question to the jury (State v. Nunnelly, 43 Ark. 68), the same as it should any other material issue. I think such is the state of the record here, and that the majority of the members of this court are confused as to the law applicable to the facts, rather than in seeing in the facts any different situation from what I do.
Here, according to the State's evidence, the defendant and Steele agreed between themselves to steal horses. About a month before the actual theft they and Marsh met at Steele's place. Marsh indicated to them that he desired to buy some horses. A bunch was then rounded up and looked over. Among them was the mare involved in this action and the gelding involved in case No. 7,725. Marsh advised that he had bills of sale that corresponded with the brands of some of these horses and, according to the State's evidence, defendant thereafter ordered Steele to keep these horses in close range, as they might be ready to ship any time. Pursuant to this plan, Steele, on the day of the alleged offense, rounded up these horses as a part of this plan, and, after they were assembled into one compact bunch, they were driven into the corral where a division was made as to which ones would be cut out and which ones driven away in consummation of the plan to steal. It is true that the mare involved in this action was on that day actually grazing a short distance away from the gelding involved in case No. 7,725. It is likewise true that a different person owned each animal. However, the difference in ownership is immaterial *Page 111
In State v. Mjelde, 29 Mont. 490, 75 P. 87, 88, this court said: "The great weight of authority sustains the principle that, where several articles of property belonging either to one or several owners are taken at the same time and place, the act is a single transaction, and constitutes but one larceny. Although the information may charge the taking of a particular article or all the articles stolen, a trial for stealing a part is a bar to any subsequent action for the stealing of the remainder."
This is but an application of the rule stated by Bishop on Criminal Law, volume 1, fourth edition, sec. 891, wherein it is said, "that although when a man has done a criminal thing the prosecutor may carve as large an offense out of the transaction as he can, yet he must cut only once."
The supreme court of Vermont, I think, correctly states the rule in State v. Emery, 68 Vt. 109, 34 A. 432, 54 Am. St. Rep. 878, wherein it said: "It is an elementary rule in criminal law that the theft of several articles at one and the same time and place, and by one and the same act, constitutes but one indivisible crime, even though the articles belong to different owners, and that a judgment of conviction or acquittal of the theft of one of the articles is a bar to a prosecution for the theft of the others. A prosecution and conviction or acquittal for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.
"It is equally well settled that if, on the same expedition, there are several distinct larcenous takings, as taking the goods of one person at one place, and afterwards taking the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings."
My associates place great reliance upon the case of State v.English, 14 Mont. 399, 36 P. 815. That case was essentially different from this. It does not appear in that case that the defendant and his confederate had planned the theft of the steer and cow as one theft or taking. The evidence indicates the contrary. In that case the theft of the steer was completed and, after the lapse of an hour, or at least a half hour, they went to a different herd, a mile or at least half a mile distant, *Page 112 and stole the cow. In that case there were two separate transactions occurring at different times and places. There was an interruption of action between the first and second thefts. The evidence showing the theft of the steer would not prove the theft of the cow. Here there was but one plan, one purpose, one design, and one impulse. It was carried out by one continuous and uninterrupted act and at practically the same time and place. The case falls squarely within the reasoning of that of In reJones, 46 Mont. 122, 126 P. 929, 930, wherein this court said: "If, as it is said by some of the courts, the different asportations are prompted by one design, one purpose, one impulse, they are a single act, without regard to time." The court, in reviewing the evidence, which it held was some evidence tending to show a single larceny, said: "The great number of articles which were admitted to have been stolen, the fact that they must have been taken, in some instances, at different times on the same day, and in others on different days, that the different thefts followed each other in rapid succession, and were continued for a period of about 150 days, that all the articles were stored in complainant's house for some purpose of her own, all being adapted for use by herself, it seems to us is some evidence tending to show that all the thefts were the result of a single purpose — a single impulse — and hence that there was a single larceny." I think this is a correct statement of the law, but whether it was correctly applied under the facts involved in the Jones Case is not here important. It certainly has application to the facts here.
In the case of Cody v. State, 31 Tex.Crim. Rep.,20 S.W. 398, cited in the Jones Case, the court had this to say: "On the contrary, the rule generally is that property taken at one time and one place constitutes one transaction and one offense, and no aggregation of distinct and separate misdemeanors will make a felony. There is, however, an apparent exception to the rule, to which the trial court may have referred; that is, when several articles or things in bulk are taken by continuous acts, there being one purpose, one impulse, the act is one, without regard to time (1 Whart. Ev. 931); as where one drives *Page 113 at night a wagon to the fence, and carries cotton from a pile in the field, 30 yards off, to his wagon, which he filled, and drove away. Though taken by successive baskets full, it was a theft of the wagon load, and, its value being over $20, was a felony. So, where one breaks into a store at night, and carries out by successive trips as much goods as he wished, the amount taken in the aggregate is the amount stolen. So, where one unlocks a money drawer of his employer, in which was $51, and had taken out $6 when detected, this court held that he had taken the whole amount in the drawer, because he had dominion over it, with power to take it into his possession." (Compare, also, State v. Kurth,105 Mont. 260, 72 P.2d 687.)
Under the facts here, there was but one taking. The horses were not in different herds as in the English Case, but were on the open range and really constituted but one band, as they watered at the same place and, just prior to being rounded up, were not far apart. There was but one plan or purpose — one impulse — and that was to round up all the horses which Steele had been holding in close range, and then drive away and steal those the descriptions of which corresponded to those covered by bills of sale. It was accomplished by one continuous, uninterrupted act and was prompted by one purpose and intent. The evidence necessary to prove the theft of the one, and which was introduced in case No. 7,725, was identically the same as was presented in this case to prove the theft of the other, save that the evidence as to the identity of each animal was given in more detail in the particular case involving the particular animal.
If these two constitute separate offenses, then the State is privileged, under the facts here, to file thirteen different informations, and try defendant thirteen different times on exactly the same evidence in each case — that being the number of horses apparently stolen at the time in question. I say this because it is not possible for any two of the animals to occupy exactly the same grazing space at one and the same time. Essentially each was removed from the other at least some distance before and at the time of the taking. The defendant could *Page 114 not exercise dominion over more than one at exactly the same instant of time.
I think it would be a gross injustice to the taxpayers to permit thirteen different informations to be filed and thirteen expensive trials conducted, each on the same identical evidence. The true test to be applied, in determining whether there is more than one offense, is whether the same evidence is admissible to prove each charge. (Ex parte Nielsen, 131 U.S. 176,9 Sup. Ct. 672, 33 L. Ed. 118; United States v. Nickerson, 17 How. 204,15 L. Ed. 219; Gavieres v. United States, 220 U.S. 338,31 Sup. Ct. 421, 55 L. Ed. 489; In re Snow, 120 U.S. 274,7 Sup. Ct. 556, 30 L. Ed. 658, 659; Short v. United States, 4 Cir.,91 F.2d 614; State v. Marchindo, 65 Mont. 431,211 P. 1093; and see 12 Cornell Law Review, 214.)
Here, in order to connect Akers with the theft, it was necessary to show the plan formulated a month before the theft, and, since all the horses were taken by one continuous act, it was not possible to prove the theft of one without at the same time proving the theft of the others. Exactly the same evidence was necessary to prove each case. The situation is exactly the same as if a person stole a band of sheep at one and the same time and from the same place, except as they were necessarily scattered about as they were grazing. To prove the theft of one it would not only be proper, but absolutely necessary, to show the theft of the whole band. Such was the situation here. The prohibition against double jeopardy prevents the State from submitting the identical evidence to more than one jury to prove the same crime.
Neither can I see any justification for the assertion made by the majority that this result would in any way hamper the administration of justice, or for the claim that the view of the majority must be adopted in order to discourage stock rustling. The State was privileged to charge in one information the theft of the thirteen horses and thus present to the jury the true facts as to the magnitude of defendant's operations. It was shown here, however, that in case No. 7,725, wherein the charge was confined to the one gelding, the evidence showed the entire *Page 115 transaction wherein the thirteen horses were driven away together with four belonging to Akers. I cannot see how the administration of justice requires us to ignore the provisions of the State Constitution (Art. III, sec. 18), prohibiting a person from being put in jeopardy twice for the same offense, or the provisions of the Federal Constitution to the same effect. (Amendment 5.)
The majority, I think, is also in error in supposing that the result, which I think is the correct one, would make it possible for defendant to round up all the range horses in Northeastern Montana without being guilty of more than one offense. Such operations would plainly contemplate a series of separate takings, each provable by a different set of facts. Such a plan is not comparable to the plan here, where it was known, in advance of the taking, just where the horses were that it was planned to steal and what ones were proposed to be stolen. Such an undertaking as the majority refers to would plainly constitute more than one offense. (Patterson v. State, 96 Ohio St. 90,117 N.E. 169, L.R.A. 1918A, 583; State v. English, supra.)
I think the judgment should be reversed, with direction to dismiss the information.