91 Neb. 575 | Neb. | 1912
The defendant (plaintiff in error here) was convicted
There is no evidence corroborating this testimony of the witness Phillips, unless the following circumstances should be thought to support his testimony: Mr. Bridenbaugh testified that a day or two after the chickens were taken he was at the defendant’s place and saw a large number of chickens, two or three hundred, and among them he saw two or three that had their tails cut off. He testified that he thought he saw some of his chickens there, but he did not pretend to identify them; and, being asked, “And you take one of your roosters and put him up besides Mr. Bartels’ rooster and there was no difference in their tails, you couldn’t hardly tell which chickens were yours or Mr. Bartels’? A. All were Plymouth Eock chickens. Q. All alike exactly?” He did not answer this question. Some time after the chickens were missed by their owner, a young man who resided in that' neighborhood was riding by the defendant’s place, and he testified that he noticed the defendant’s chickens as he went by, and he was asked this question: “You may state whether you noticed any bob-tailed roosters there.” He did not answer the question directly, but his answer would indicate that he intended to testify that he did. On cross-examination he was asked: “You couldn’t tell whether cut with pair of sheep shears, or razor, or whether pulled out? A. No; so many there. I noticed they were bob-tailed.” Another witness who passed the place some five or six months later gave similar testimony.
If the theory of the prosecution was that the defendant attempted to remove any of the distinguishing characteristics so that the stolen-chickens could not be identified, this ■ testimony would of course amount to nothing. It was shown without dispute that the defendant had upon, his premises very many chickens that would have fully answered the description that these witnesses gave of
This witness quarreled with defendant’s wife about three months after the chickens were missed and was discharged by defendant. The defendant and his wife both testify that when discharged he was very angry and made threats that he would get even with defendant. The witness admits the quarrel and discharge, but denies the threats, and testifies that he immediately declared the defendant had stolen the Bridenbaugh chickens, and began this- prosecution against the defendant. The defendant, his wife and brother-in-law all testify that on the evening of the 26th of January Phillips borroAved defendant’s horse, representing that he wanted to visit his sister some few miles distant; that he was gone nearly the Avhole night, returning about 3 o’clock the following morning. The defendant testifies that when he went to the stable about 7 o’clock in the morning Phillips was cleaning the horse, removing harness marks which shoAved plainly that the horse had been driven hard in harness. This, Phillips denies, but he did not visit his sister, and is not corroborated in his explanation of his whereabouts during the night. Six or seven, apparently respectable, men, merchants and other business men, without any apparent interest in the controversy, testified that they had known the Avitness Frank Phillips for many years, knew thoroughly his reputation for truth and veracity in the community where he lived, and that it was bad. This evidence was not contradicted, except that one witness testified that some people said his reputation for truth and veracity Avas good and some said it was bad. Also an attempt was made, which was at least partially successful, to impeach
The court instructed the jury: “The jury are instructed that one of the modes recognized by law for impeaching the veracity of a witness is the introduction of persons as witnesses who testify that they are acquainted with the general reputation for truth and veracity of the person sought to be impeached in the neighborhood in which he resides; and, if the jury believes from the evidence in this case that the general reputation of the witnesses Frank Phillips and William Bartels for truth and veracity in the neighborhood where they reside is bad, then the jury have a right to disregard the whole of their testimony and to treat it as untrue, except where it is corroborated by other credible evidence or by facts and circumstances proved on the trial.” If the jury had observed this instruction, they must have considered the evidence of the witness Phillips, wholly uncorroborated and discredited by impeachment as it was, insufficient to establish the guilt of the defendant beyond a reasonable doubt.
It seems probable that the jury were misled by the following instruction given by the court: “The rule which clothes every one accused of crime with the presumption of innocence, and imposes upon the state the burden of establishing his guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty to escape, but is a humane provision of the law intended, so far as human agencies can, to guard against the danger of an innocent person being unjustly punished. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man
The judgment of the' district court is reversed and the cause remanded.
Reversed.