Bise v. United States

5 Indian Terr. 602 | Ct. App. Ind. Terr. | 1904

Gill, J.

Defendant files three specifications of error, as follows: “(1) The court erred in not arresting the judgment in this case because the indictment fails to allege that the defendant’reeeived the property knowing it to be stolen, and selling the same, after receiving it, for the purpose of depriving the owner of the use and benefit thereof; and because the indictment did not show or charge that defendant received the property with intent to deprive the owner of the use and benefit thereof. (2) The court erred in permitting the witness Frank Bain to testify in this-case, because said Bain admitted on cross-examination that he had been convicted of horse larceny; the defendant not being apprised of the fact that said Bain would be used as a witness on the trial of said cause, and'therefore being unable to present to the court the record of conviction which he admitted. (3) The court erred in permitting Frank Bain, who was indicted jointly with the defendant under the name of Joe Brooks, to testify in this case, there being ho severance in the case and no dismissal as to Bain or Brooks.”

Defendant complains that the court erred in not arresting the judgment because the indictment fails to allege that the defendant received the propertjr knowing it to be stolen. We find upon examination that the prosecution instituted in"this suit was not under section 1631 of Mansfield’s Digest of the Laws of Arkansas (Ind. Ter. St. 1899, § 974), but that such prosecution was under section 5357 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3625), which provides as follows: “Every person who, upon the high seas, or in any place under the exclusive jurisdiction of the United States, buys, receives or conceals any money, goods, bank notes or other thing which may be subject of larceny, and which has been feloniously taken or stolen from any other person, knowing the same to have been taken or stolen- shall be punished,” etc. That is to say, while this court held in Williams vs The United States, 4 Ind. Ter. Rep. 269 (69 S. W. 849), that under section 4 of the Act of March 1, 1895, c. 145, 28 Stat. 695, Congress intended to put in force and did put in force chapters 45 and 46 of Mansfield’s Digest of the Laws of Arkansas (Ind. Ter. St. 1899, cc. 19, 20), and that such chapters are exclssive of all other laws, we also held that, where the laws of the United States have provided for the punishment of an offense, the latter will govern; and section 5357 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3625) provides for the crime, defining it, and also provides for the punishment, and is in full force and effect in the Indian Territory. See Harless vs The United States, 1 Ind. Ter. 456, 45 S. W. 133. The second count of the indictment in this case sufficiently charges the crime under said section of the Revised Statutes of the United States, and we do not find that there was error on the part of the court in overruling the motion to arrest the judgment.

But it is further urged that there was error in the court below because said court permitted one Frank Bain to testify in the case, said Bain having admitted on cross-examination that he had been convicted of horse larceny. An examination of defendant’s motion for a new trial in this case shows that the defendant sought to raise this point in the court below, but we do not think, as a matter of practice, that the question was properly presented. If this matter could be properly considered on the motion for a new trial by the court below, it must come under one or other of the even grounds for new' trial presented in section 2297 of Mansfield's Digest (Ind. Ter. St. 1899, § 1640); that is, it must have been under the fifth clause, that the verdict was against the law' or evidence, or it must have come under the sixth clause, that the defendant has discovered important evidence in his favor since the verdict. Let us examine whether or not it w'as contrary to law' to permit Frank Bain to testify in this case, he having admitted on cross-examination that he had been convicted of horse larceny. Mr. Greenleaf, in section 375, vol. 1, of his invaluable work on Evidence, lays dowm the rule as follow's: “It is the judgment, and that only, which is received as the legal and conclusive evidence of the party's guilt for the purpose of rendering him incompetent to testify. * * * If the guilt of the party should be shown by oral evidence, and even by his own admission (though in neither of these modes can it be proved if the evidence be objected to), or by his plea of guilty, which has not been followed by a judgment, the proof does not go to the competency of the witness, however it may affect his credibility. And the judgment itself, when offered against his admissibility, can be proved only by the record, or, in proper cases, by an authenticated copy, which the objector must offer and produce at the time when the witness is about to be sworn, or at farthest in the course of the trial.” In Williams vs The United States, 1 Ind. Ter. 560, 45 S. W. 116, while the exact question here raised is not before the court, still the court uses the following language with reference to the requirements necessary to show' conviction to disqualify a witness. There the question was as to. the conviction of the principal upon the trial of an accessory, and the court says: “In this case, if it'had been alleged and shown that the defendant was an accessory before the fact in the sense that he, not being present, had advised and encouraged the perpetration of the crime, so that proof of the conviction of John Williams ivould haire been competent, it would have been necessary for that purpose to have produced the record, or at least first to have shown its loss or destruction, before resorting to parol testimony.” The case at bar is very different from that of asking the person whether or not he has been convicted of some crime, in order to discredit him before the jury. The rule in this territory is well established, and its reasons well stated in Oxier vs The United States, 1 Ind. Ter. 85, 38 S. W. 331. But in Arkansas the exact question raised by the appellant has been settled in favor of the rule above set out by Mr. Greenleaf. See Southern Insurance Company vs White, 58 Ark. 277, 24 S. W. 425; Scott vs State, 49 Ark. 156, 4 S. W. 750, and authorities there cited. From these authorities we must hold that there was no error of the court in permitting the, testimony of Bain in this case upon merely his confession of conviction. The fact of conviction was before the jury for the purpose of discrediting his testimony, and that only.

Now, upon the other proposition — as to whether or not there was any record of conviction whatever in any court whatever — the mere' statement by counsel in his motion for a new trial that the court erred in permitting Bain to testify because defendant did not know that he was to testify, and therefore had not time to produce the record of conviction, certainly cannot be, and is not, the proper practice in which to present questions of this kind to the court. No effort or diligence has been shown in any way, shape, or form by defendant to secure the record of conviction. No reason of any kind is assigned for such lack of effort. Had defendant secured an authenticated copy of the record of the conviction of Bain, and attached the same to his motion for a new trial, with — sufficient affidavit showing surprise and inability on his part to have secured such record by the time of the trial, and presented the matter to the court below in this shape, the trial court might have seen the necessity of granting appellant's motion for a new trial upon this ground; but we are not called upon at this time to say whether refusal by the trial court, even under such circumstances, to grant a new trial, would bo error, but we do say that in the present attitude of the question it is not properly before this court for review, and find .no error in this assignment.

Appellant's third assignment is to this effect: That Frank Bain, under the alias of Joe Brooks, was jointly indicted with Bise and Brannon, and that Bain was permitted to testify in the case without his being discharged from the indictment. The record discloses that Scott Bise, Monroe Brannon, and Joe Brooks were jointly indicted. It is silent with reference to the arrest of any of the defendants, and shows that on May 18, 1903, Monroe Brannon and Scott Bise waived formal arraignment, and entered a plea of not guilty; that Monroe Brannon asked a severance in the case, and elected to be tried first, and that a nolle prosequi was entered as to him, and that Scott Bise was placed on trial. No mention whatever is made of Joe Brooks, nor is there any appearance as to him, nor arraignment of him, nor any objection to the court shown on the part of defendant to the disqualification of Frank Bain on the ground that he is the Joe Brooks named in the indictment. The testimony of Bain is to the effect that he went, a portion of his time, under the name of Joe Brooks, but that he never went under the name of Joe Brooks in the Central District; that he had never been arrested; that he did not know that there was an indictment against him; that he had information that a writ had issued for him a year or two before. The testimony of one of the witnesses was to the effect that he understood the defendant Joe Brooks named in the indictment and the witness Bain were one and the same person, but appellant at no time and in no place raised the question to the trial court and objected to the testimony of Bain on the ground that he was the Joe Brooks named in the indictment until after the trial, and in his motion for a new trial; and it was then too late, if the question had merit, to present it to the trial court, and it certainly cannot be presented under these circumstances in this court as error.

We have examined the charge of the court, and have examined minutely the evidence in this case, and, being Satisfied that no injustice in any way has been inflicted upon the defendant, but, on the contrary, that the law has been vindicated in his conviction, we therefore affirm the judgment of the lower court.

Affirmed.

Raymond, C. J., and TowNSEND, J., concur.