I believe it was not reversible error to give instruction No. 11. Even in the case of State v. Schaefer, 35 Mont. 217,88 P. 792, where this identical instruction was given, the court did not rest its opinion reversing the judgment on that ground. It simply held that on another trial it should not be given but reversed the judgment for a different reason.
The court in the later case of State v. Colbert, 58 Mont. 584,194 P. 145, said that "the propriety of giving the instruction is at least questionable."
The questionable part of the instruction under the above cited cases is that part reading: "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."
I can see where the charge is assault with intent to kill as in State v. Schaefer, supra, or murder as in State v. Colbert, supra, that part of the instruction might be misleading. But in a larceny case there is no act done for the purpose of injuring another. If the larceny was committed by defendant, it was not with the intention of injuring another but for the purpose of increasing the size of his own herd of cattle.
There being no evidence in this case to which that statement in instruction No. 11 could apply, I fail to see how defendant could have been prejudiced by giving it. Compare Gobel v. Rinio,122 Mont. 235, 200 P.2d 700. Even were there evidence to which that statement could apply the instruction does not say that "intent to steal" must be presumed. In the first place, under the instruction, before there is a presumption of intent there must have been an unlawful act. If defendant honestly thought *Page 497 he was the owner of the heifer and the jury so believed, then there would have been no unlawful act by him in taking her. Sec. 11384, R.C.M. 1935.
If the jury believed to the contrary and found that defendant did not honestly believe he was the owner, then his taking is properly presumed to have been done with a guilty intent and the instruction to that effect was proper.
The jury was instructed "that the intent to steal the animal in question and to deprive the owner thereof is an essential ingredient of the crime charged and, as such, must be proved by the State beyond a reasonable doubt and to a moral certainty in order to justify the conviction of the defendant, and, if such intent is not proved in the manner aforestated, then you should find the defendant not guilty."
They were also told that "before you can find the defendant guilty, you must find beyond a reasonable doubt: * * * 5. That said animal was taken by the defendant with a felonious intent — that is, with the intent to steal the same."
I think when the whole of the charge to the jury is considered the court did not err in its instructions. No useful purpose would be subserved by considering whether defendant is entitled to a new trial on some other ground since the majority opinion is based upon the giving of instruction No. 11 and on that alone. I am not able to concur in holding that it was error to give that instruction.
I do not subscribe to what my associates have to say relative to admitting the record of a prior conviction. Section 10668, R.C.M. 1935, provides that a witness may be impeached by showing that he has been convicted of a felony. And this by the statute may be shown either by (a) "examination of the witness" or (b) "the record of the judgment."
And this applies to the defendant when he testifies in his own behalf as well as to any other witness. State v. Schnepel,23 Mont. 523, 59 P. 927.
Rehearing denied July 8, 1949. *Page 498