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[60 Mont. 317.]

that the defendant committed the crime, and the court did not err in denying the challenges. (Sec. 9264, Rev. Codes; State v. Howard, 30 Mont. 518, 77 Pac. 50; State v. Haworth, 24 Utah, 398, 68 Pac. 155, 158; State v. Hoerr, 88 Kan. 573, 129 Pac. 153, 156; State v. Ware, 59 Wash. 526, 109 Pac. 359; People v. Foglesong, 116 Mich. 556, 74 N. W. 730.)

By assignment No. 16, the defendant claims that "the court [9] erred in receiving the verdict in the absence of the defendant." The clerk's minutes of April 2, 1920, contain the statement: "This day the trial of this case being resumed, each party being present represented by counsel as before, and the jury being present." It is then recited that rebuttal testimony was heard, the jury were instructed, the cause was argued, the jury retired, and later returned in open court and submitted their verdict, which was filed and read by the clerk in open court. There is not any statement directly or indirectly, or any inference that any adjournment of court was had from the time it convened to resume the trial on that date and the filing and reading of the verdict returned by the jury. The question presented by the assignment is: "Does the record sufficiently show that the defendant was present at the time the verdict was received?" This question, under a similar record, has heretofore been considered and determined by this court adversely to the contention of the appellant herein, in which it was held that, construed fairly, this language must be held to mean that the defendant was present at the time the verdict was received. (State v. Hall, 55 Mont. 182, 187, 175 Pac. 267.) The decision in the Hall Case is supported by the great weight of authorities, some of which we here cite: People v. Holmes, 118 Cal. 444, 50 Pac. 675; Sewell v. People, 189 Ill. 174, 59 N. E. 583; Feddern v. State, 79 Neb. 651, 113 N. W. 127; State v. Beedle (Mo.), 180 S. W. 888; Hughes v. State, 109 Wis. 397, 85 N. W. 333, 336; Kraimer v. State, 117 Wis. 350, 93 N. W. 1097; State v. Starr et ux., 52 La. Ann. 610, 26 South. 998; 17 C. J. 219.

We find no error in this record, and recommend that the judgment and order appealed from be affirmed.

PER CURIAM: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Affirmed.

STATE, RESPONDENT, v. CHRONOPOULOS, APPELLANT. (No. 4,726.)

(Submitted June 3, 1921. Decided June 20, 1921.)
[199 Pac. 266.]

Criminal Law Murder-Evidence-Admissibility-Appeal and
Error-Instructions-When Review Unauthorized.

Appeal and Error-Instructions-When Review Unauthorized.

1. Where defendant, through his attorney, at the settlement of the instructions, stated that he had no objections to them, assignments based on alleged error in them cannot be considered on appeal. Murder Conversation in Presence of Defendant-Identification-Evidence -Sufficiency.

2. Testimony as to a conversation had in the presence of defendant, a Greek, with others engaged with him in the commission of the homicide of which he was convicted was admissible though the witness was unable to positively identify defendant as having been present, merely referring to him as a Greek, where the identification was made complete by other testimony, including that of defendant, who understood the English language.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge.

THEODORE CHRONOPOULOS was found guilty of murder. From the judgment and the order overruling his motion for a new trial, defendant appeals. Affirmed.

Mr. I. G. Denny, Mr. William M. Wilson and Messrs. Canning & Geagan, for Appellant, submitted a brief; Mr. M. F. Canning argued the cause orally.

[60 Mont. 329.]

Mr. Wellington D. Rankin, Attorney General, Mr. George Bourquin and Mr. N. A. Rotering, for Respondent, submitted a brief; Mr. L. A. Foot, Assistant Attorney General, and Mr. Rotering argued the cause orally.

MR. JUSTICE REYNOLDS delivered the opinion of the court.

Defendant was charged with the murder of one Sylvester J. Prenatt, in Silver Bow county, on the ninth day of December, 1919. Trial was had to a jury, which rendered a verdict finding him guilty of murder in the first degree, and fixing his punishment at death by hanging. Motion was made for a new trial, which was overruled. Defendant has appealed from the judgment and the order.

The record discloses that defendant, in company with Steve Byrne and others, went to the home of deceased about 2 o'clock in the morning, and, after gaining admission to the house, killed the deceased. A full and complete statement of facts involving the matter is set forth in an opinion handed down this date (State v. Byrne, ante, p. 317, 199 Pac. 262), written by Chief Commissioner Poorman, to which reference is made for such other facts as may be pertinent to this case.

Five assignments are made on the ground that the court [1] erred in giving to the jury certain instructions. The record, however, discloses that at the time the instructions of which complaint is made were offered, the court expressly asked the defendant if he had any objections to them, and defendant, unequivocally, by his attorney, replied that he did not. As no objections were made to the giving of these instructions, this court has no authority to review them. (Rev. Codes, sec. 9271; State v. Hill, 46 Mont. 24, 31, 126 Pac. 41; State v. Fowler, 59 Mont. 346, 196 Pac. 992.) However, in view of the importance of this case, we have carefully examined the instructions, and are satisfied that no error was committed by the court in the giving of any one of them.

[60 Mont. 329.]

It is alleged that the verdict and judgment are contrary to law. Appellant, however, fails to point out wherein the verdict and judgment are contrary to law, and from our examination of the case we are unable to find that there is any merit in such assignment.

It is urged that the verdict and judgment are contrary to the evidence in the case. It is true that the verdict and judgment are contrary to defendant's evidence, but there is abundant competent evidence on behalf of the state showing defendant's participation in the crime charged.

Appellant contends that the court erred in admitting the tes[2] timony of the state's witness, Edgar McIntosh. This witness testified to a conversation which took place in the presence of defendant, but in his testimony was unable to identify positively the defendant as being present merely referring to him as a Greek. However, the identification is made complete by other testimony in the case, including that of the defendant himself. The record shows that defendant, even though a Greek, understood the English language, and the conversation was with other parties engaged with him in the commission of the crime. We are unable to see any error in the admission of this testimony.

For these reasons, the judgment and the order denying motion for new trial are affirmed.

Affirmed.

MR. CHIEF JUSTICE BRANTLY and ASSOCIATE JUSTICES COOPER, HOLLOWAY and GALEN concur.

STATE, RESPONDENT, v. WALLIN, APPELLANT.

(No. 4,625.)

(Submitted June 2, 1921. Decided June 20, 1921.)

[199 Pac. 285.]

Criminal Law-Grand Larceny-Banks and Banking-Trusts -Bailment Information-Evidence - Insufficiency - Criminal Intent.

Grand Larceny Ownership of Property-Evidence-Insufficiency.

1. In a prosecution for grand larceny the information charged defendant, while acting as cashier of a bank, with having stolen a Liberty Bond, the property of one L. and purchased by him on the installment plan. The bond was one of a number subscribed for by the bank to a reserve bank and held in trust for the individual subscribers until full payment therefor was made by them. Held, that title to the bond in question was in the bank, and did not pass to L., under section 4632, Revised Codes, until it was identified on delivery to L. upon final payment, and that, therefore, at the time of the alleged offense, several months prior to delivery, he was not the owner thereof.

Same-Property in Defendant's Possession by Virtue of Office-Information-Insufficiency.

2. An information charging that, while acting as cashier of a bank, defendant feloniously converted a Liherty Bond to his own use, was insufficient for failure to allege that the bond came into his possession by virtue of his office.

Bailment Ownership of Property in Whom.

3. In bailment, the ownership of the chattel is in the bailor, and the possession only in the bailee.

Trusts-Personal Property-Legal Title, in Whom.

4. In a trust of personal property, the legal title is in the trustee. Grand Larceny by Bailee-Evidence-Insufficiency.

5.

Where the legal title to a bond was in a bank as trustee and in the possession of it in the cashier only by virtue of his office, a prosecution against the latter under subdivision 2 of section 8642, Revised Codes, under a charge of larceny by bailee, could not be maintained.

Same Criminal Intent-Evidence-Insufficiency.

6. Since, to constitute the crime of larceny there must have been a criminal intent to permanently deprive the owner of the property taken, evidence showing that defendant cashier delivered a Liberty Bond held in trust by his bank for a subscriber, in behalf of his bank, as collateral security to another bank, with the intention that

6. On the question of intent or offer to return, or actual return of, property as affecting charge of embezzlement or larceny, see notes in Ann. Cas. 1916C, 90; 52 L. R. A. (n. s.) 1013.

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