8 Colo. 472 | Colo. | 1885
The defendant below, Frederick Bachman, was indicted for the crime of grand larceny at the March term, 1884, of the district court of Elbert county. He was tried and convicted at the same term, and sentenced to serve a term of one year and six months in the state penitentiary. The offense for which the defendant was convicted was that of stealing a heifer from the prosecuting witness, August Ehler, on the 5th day of November, A. D. 1883. Before sentence the defendant moved the court for a new trial: the principal grounds of the motion being insufficiency of the testimony to sustain the verdict and newly-discovered evidence. This motion was denied, and exceptions to the ruling taken. The defendant, Fred. Bachman, and the prosecuting witness, August Ehler, are both prominent and well-to-do citizens of Elbert county. Both are possessed of large stock ranches,
The conviction of the defendant was due largely to the testimony of this nephew, and to a singular circumstance, the happening of which was proven, but there was no proof connecting the defendant therewith. This circumstance was the cutting out from the left side of the hide, from the shoulder to the tail, a strip six or seven inches wide, which probably contained the brand; also the removal of that part of the hide which covered the head and contained the horns and ears. It is probable,
John Bachman, who circulated the report that his uncle had killed Ehler’s heifer, says, in his testimony upon the trial, that he saw the hide hung up in the corral on the same evening the animal was killed, and also the next morning, and that it was on both occasions whole and not mutilated. He says he went to Bijou the morning of the 6th of November, leaving his uncle at the ranch; and when he returned late' in the evening, his uncle was at Kiowa. Nobody else was on the ranch when he left in the morning, but a herder had come there while he was away, on the morning of the 7th. He saw the hide in the goose-house, mutilated as before described. His testimony as to the manner of skinning it off the animal was that the entire hide was taken off in one piece, including the head and the legs, to the knees and below the knees. He denied that he assisted in the skinning. He says he knew the animal to be Ehler’s, and that it had Ehler’s brand, “I. E.,” upon it; but be did not see the brand upon the animal before it was skinned, or upon the hide after the same was re
It will here be observed that the ear-marks of both Ehler and the defendant were upon the left ear; Ehler’s being an “ under-bit,” as he describes it, and the defendant’s a cropping of the left ear.
An examination of the testimony given by the witnesses on part of the people shows it all to have been of this uncertain and contradictory character. All statements of fact upon which they agreed, and did not after-wards themselves contradict, may be true, and at the same time be consistent with the defendant’s innocence, save the positive testimony given by John Bachman on the trial, nearly all of which, however, is rendered unworthy of credit by contradictions by himself on the witness stand, and by proof of statements made by him on other occasions contrary to his testimony at the trial. Eor example, according to the testimony of John Hoffman, a witness called by defendant, John Bachman first declared his belief that the slaughtered animal was Hoffman’s cow. The witness Hoffman says he had in his possession a cow belonging to the defendant, in the months of October and November, 1883; that he lost her early in November, and was hunting her. Meeting John Bachman a few days after the election of November 6th, the latter told him he believed the defendant had killed his cow. Witness replied that the cow he was hunting belonged to the defendant. This witness further testified that he, said Hoffman, was then working for defendant, and knew he had not killed a cow, but had killed a heifer; also that witness had subsequently found the cow he had lost, when John Bachman admitted that he was mistaken. John Bachman says he told Vogt, on the 13th
Yogt was not a witness upon the trial, but Ehler’s account of that interview is that Yogt called upon him on Sunday, November 18th, and asked about his own cattle, which were being herded near by, and, having been told by Ehler they were all right, he then asked if his (Ehler’s) cattle were all right. Ehler replied that he did not know, but was going out to the pasture to see. This was thirteen days after the heifer had been-converted into beef; and if his answer to Yogt was true, he had not then discovered his loss. In almost the next breath, the witness, Ehler, acknowledges that the latter statement was untrue; for he says he had ascertained November 17th (which was the day before) that he had lost two animals, a steer and a heifer. But upon his reply to Yogt that he did not know whether his own cattle were all right, the latter gentleman told him that if he would go down to the defendant’s goose-house, he would find the hide of one of his animals hanging up there; that defendant’s nephew had told him so. Upon Ehler’s attention having been called to this inconsistency in his testimony, and being asked why he did not inform Yogt of his loss if he had discovered it the day previous, he gives the following excuse : That defendan t and he were in trouble. He knew he could not prove anything, and defendant would proclaim that he (Ehler) had accused him of stealing. This was a novel explanation, especially so in view of the fact that he told three other persons next day that Bachman had stolen his heifer, and took them to the goose-house to see the mutilated hide as proof thereof. Plis first visit to the goose-house was about half an hour after receiving the information from Yogt. He says the hide was cut into two pieces; that the part of the hide the brand was on was missing. It was cut up from the left shoulder and behind the legs, and circled clear around the brand,—
It is a singular fact that nobody else saw these legs. The defendant says he skinned the legs down almost to the feet, and then boiled the legs for the oil and meat they contained. Hot one of the three persons taken by Ehler next day to see the evidences of defendant’s guilt saw these legs. Ehler says he forgot to show the legs to these witnesses, although it appears from his testimony that the discovery of them, with the familiar red upon the front feet, and white upon the hind feet, left no doubt remaining in his mind that it was his heifer the defendant had killed.
Benedict Marke, one of these witnesses,' stated, when testifying on part of the people, that he looked around the corral for the feet and ears, but saw nothing of them, and that Ehler did not tell the parties present that he had seen them the day before. The same is true of the other two witnesses; neither of them saw the legs. Even the informer, John Bachman, who was mainly instrumental in procuring his uncle’s conviction, testified on the trial that he remained and. worked for defendant ten days after the killing of the heifer, but saw nothing of the legs. August. Ehler is the only witness who testified to the contrary. It would seem from his testimony that he saw the legs also upon the second visit, when all three of the above-named witnesses were present; for he not only says he forgot to show them to the witnesses, but that he just walked by and saw them, but did not know
This witness testified to a minute description of his missing heifer, including age, size, color and color-marks, from the white spot in -the forehéad to the color of the brush of the tail, which he says was white. He had twenty-six other animals of the same age, but admitted he could not describe any of them with the same precision. The reason he remembered the description of this one so well was that it was his best heifer, and was from a cow he had milked the previous summer. He then admitted he had milked five cows the previous summer, and that this heifer and a calf from another cow were so nearly alike that, although the color-marks were somewhat different, he could only tell to which cow each belonged when he saw them together. Regarding this description, he stated further that he gave it from his memory of it as a yearling; that he lost his familiarity with the heifer during the previous winter. In this statement he seems to have overlooked another statement made by him, viz. , that he had seen and recognized this heifer eight days before it was killed, and had turned it, with a band of fifteen others of the same age, into his pasture. That was on October 28th. If John Bach-man tells the truth, this heifer was in his uncle’s pasture on the same day Ehler found it with the band upon the creek, and turned the whole band into his pasture. We have seen that Ehler made contradictory statements as to when the discovery was made that he had lost this animal. One statement was that the discovery was made November 17th, and the other that he knew of no loss on November 18th, until he received the information
The reckless inconsistency of August Ehier’s testimony is only equaled by the contradictory and improbable statements of John Bachman. We have already adverted to the fact that, according to the testimony of an unimpeached witness, he first reported that the animal killed belonged to John Hoffman; and, after that animal had been found, he admitted that he was mistaken, and after-wards declared it was Ehier’s animal that had been butchered. He said on the trial that the hide was not mutilated when hung up in the corral on the evening of November 5, 1883, and that it remained in the same condition next
Witnesses sworn on behalf of the defendant testify to what John Bachman had previously sworn to on the preliminary examination before the magistrate; most of which John denies. Gf. A. Wood, a cattle raiser, living at Kiowa, says he heard his testimony on that occasion, and he swore he did not know what brand was on the animal, and that he did not know what Ehler’s brand was. George Earran, who had resided in Elbert county since
Upon a review of the whole testimony and the circumstances in evidence, taking into account the situation of the parties, prosecuting witness and defendant, with regard to character, business experience and success, their social relations, the manner in which this charge against the defendant originated, and the contradictory and improbable character of the testimony produced to support the same, we are of opinion that the proof is wholly insufficient to sustain the verdict and judgment.
It is wholly improbable that a man of the business ability and experience of defendant would, if guilty, so mutilate a hide as to destroy its value, for the purpose of avoiding detection, and then hang .the worthless fragments in a conspicuous place, where every passer-by could see and examine them; especially when the object of the .mutilation was apparent upon the slightest examination.
This court and other courts have often said that where the evidence is conflicting, and the verdict is not manifestly against the weight of evidence, it will not be disturbed; also that where there is a direct conflict in the evidence, it is the province of the jury to determine to whom credit should be given. There is a serious conflict in the evidence here, but it is principally between the witnesses on the part of the people and between the several statements of each of the two witnesses upon whose testimony the defendant was convicted, John Bachman and August Ehler. The rules referred to do not contemplate a conflict of this character, but between the testimony of witnesses produced for the 'respective parties litigant. We also regard the verdict as manifestly against the weight of the evidence, when analyzed and its weight ascertained.
Mr. Wharton says: “The fact of the commission of the offense must necessarily be the foundation of every criminal suit, and until that fact is proved, most dangerous would it be to convict;” to which he cites State v. Davidson, 30 Vt. 377; Smith v. Com. 21 Grat. 809; State v. Keeler, 28 Iowa, 553; People v. Bennett, 49 N. Y. 137.
In consideration of the peculiar features of this case, at least one of the affidavits filed in support of the motion for a new trial below, on the ground of newly-discovered evidence, would seem to be in point and should have been considered favorably. The affidavit of George T. Kathrons alleged that he visited defendant’s ranch early in November-, hunting lost stock, and that he saw a green hide hanging up in the corral; that he examined it, and it bore the brand “ F. B.” upon it (Bachman’s brand), and no other marks; that he noticed that it was not mutilated at this time. There were other affidavits filed concerning newly-discovered evidence that we do not deem necessary to refer to. Defendant alleged in his affidavit upon this motion that he knew nothing of the visit of Kathrons to his ranch at the time stated in his affidavit, nor of the
We regard the evidence insufficient to sustain the verdict and judgment; and, it appearing upon inspection of the entire record that the conviction and senténce are not warranted, the judgment is reversed, and the cause remanded for further proceedings.
Reversed.