36 Neb. 481 | Neb. | 1893
The plaintiff in error was convicted of stealing certain live hogs of the value of more than $35, and was sentenced to imprisonment in the penitentiary for the period of four years. The first objection is that the verdict is not supported by the evidence. The testimony of Mr. Russell, the owner of the hogs, as to the number and kind of hogs taken, is as follows :
Q. When did you see them last before that ?
A. It was along perhaps the 4th or 5th; the 5th maybe, along there. It was after the 1st, several days, that I looked them over again to see if they were there, all of them, as I often did once in a week or two.
Q. When was it you missed them ?
A. About the 9th, maybe the 10th.
Q. How many did you miss ?
A. Nine; that is what I think it was. I cannot count correctly not to a hog, but it was not less than eight nor more than ten.
Q. And they were taken in this time, between the 5th and 9th ?
A. Yes, sir.
Q. How large hogs were they?
A. There was two of them — well, one I would call a large brood sow, and then a medium sized — good size— and the balance of them with the 200 there together, a part of them spring pigs and a part older. Understand that I could not guess — that is to within maybe fifty pounds — but I thought if they took an average, it would be a little under 200, and if they took better than an average it would be a little over 200.
A. I did at the time but have forgotten now. I did know at the time, but I have forgotten what it was at that time.
Q. Are you able to state what the value of those hogs were at that time?
A. Well, taking that except those two — those two, I know about what they were worth. They were worth, the smallest ones, about twelve dollars, and the others about fifteen for those two brood sows I speak of, and the shoats that I called them, I would think from my recollection of the price, six or seven dollars would be enough for them.
Q. Seven dollars apiece ?
A. Seven dollars a head; yes, sir.
Q. What would you put the total value of tiie nine that were taken ?
A. It would be a little over sixty dollars.
It will be observed that his testimony is but little better than a guess either as to the number or value of the hogs, and his is all the testimony upon that point. He also testifies in regard to finding one of the hogs as follows i
Q,. Did you see any of them after that ?
A. Yes, sir.
Q,. How long afterwards ?
A. I think it was the 25th. It was either the 25th or the 26th of January of the same month, that I saw them. Either the 25th or the 26th.
Q. Where?
A. I saw them at Bill Taylor’s.
Q. Where is that from your place?
A. About three miles and three-quarters north and half a mile east.
Q. That is in what county ?
Q. That Bill lives ?
A. Taylor lived there; yes, sir.
Q. How came you to see this animal?
A. Well, I had got on a little track of what we call the gang there. We termed it that way. That is what we call them, and we got a little help and had a man looking there; that is the truth of it, and then he told me there was a hog there. I went there looking for this hog and found it there.
Q. Where was the hog ?
A. It was in a pen between two corn cribs. I would say the cribs were ten feet apart facing south. Around here back of the corn crib it was fenced a hog pen, and between these two cribs there was boards laid across and hay, etc., laid over, and after looking every place else about the place, I got into that hog pen and I crawled back two or three feet maybe and the hog could not turn around^ There was a little partition cut off there, and there was that hog.
Q,. Could the hog get out itself?
A. No, sir; not without breaking the fence. Certainly not.
Q,. Was the hog at that time permitted to pass out to view so that people generally could see it?
A. No, sir; it was planked up, the back part of it, and it could not get out. It was shut up.
Q,. Did you ascertain how it came there ?
A. Well, I did by Bill Taylor.
Q,. He was the man that lived there ?
A. Yes, sir.
Q,. When he told you anything about it was the defendant present ?
A. No, sir.
Q. Did you look after this same hog again?
A. Yes, sir.
Q. How long afterwards ?
Q. Was it there?
A. No, sir.
Q,. Where was itj where did you find it?
A. I did not find it the next day: it was not there.
And this is all the testimony as to finding any of the hogs. The plaintiff in error is a son of a neighbor of Mr. Russell and the only direct testimony to connect the plaintiff in error with the transaction, is the testimony of Mrs. Taylor. She testifies that between the 6th and 10th of January, 1891, the plaintiff and one Spence came to their residence.
Q. Where was your husband’s team the next day ?
A. I do not know where it was.
Q,. Was it at home?
A. No, sir.
Q,. When did it return?
A. T think it returned the next evening. I am not positive.
Q. Who came with it ?
A. I do not knovr who came with the team. I saw Carter and Mr. Spence there.
Q,. What did they do there that evening?
A. Well, they were out of doors. I did not see them.
Q. Didn’t they come in the house ?
A. They were in the house, but I was in another room. I had gone to bed.
Q,. What did they say or do there ?
A. I did not hear all they said.
Q. Did you see them do anything?
A. No, sir.
Q,. Did you see them have any money there?
A. The door was open and seen'one of them pay my husband some money.
Q. How much money?
A. I think about seven dollars.
A. Yes, sir; there was a hog there.
Q. What kind of a hog; just describe it?
A. It was black and white spotted.
Q. Thé size, give that the best you can.
A. It would weigh 250 or 300 pounds.
Q,. What was said between Mr. Carter, Mr. Spence, and your husband in reference to this sow?
A. I did not hear their conversation about the sow?
Q,. It was a sow?
A. Yes, sir.
Q. You did not hear any about the sow?
A. No, sir.
Q. How long after that did the sow remain there? .
A. It was about two weeks I think.
The hogs were kept by Mr. Russell in a large inclostire, the fence being composed of seven barbed wires. It appears from other testimony that some of them broke out at times, but whether or not they strayed at such times is not stated. Eor aught that appears this money may have been derived from a perfectly legitimate transaction, and in the absence of proof to the contrary this is the presumption. The testimony shows that the plaintiff is known to have been at home the first six days in January, 1891, and if testimony in his behalf is to be relied upon, his whereabouts is accounted for up to the 10th instant. In the latter part of January, 1891, the plaintiff in error went to Sioux City, and from there to Missouri, and hired out to a man near Lathrop, and had been there about five weeks when he was arrested and came voluntarily back to this state. There is testimony tending to show that the plaintiff in error, for some time before the larceny in question, had frequented saloons and seemed to be starting in the road to ruin, and these facts seem to have induced the jury to convict. It also appears that a ■ son of Mr. Russell
Q. Didn’t you meet W. II. Russell on the county road west of Herman about the last days of January, 1891, the exact day I cannot state, and did not W. H. Russell s&y to you at that time, “I suppose you know what I have been doing with hog thieves and was afraid you would take exceptions,” and you said at that time and place to W. H. Russell, “you are doing right in prosecuting these men;
This is repeated in about a dozen different forms on the part of the state and brought the general character of the accused directly before the jury, as well as being collateral to the issue.
The rule is thus stated by Bishop (Cr. Proc., sec. 1112) as follows: “ Bad character is never admissible in evidence against a defendant as foundation for presuming-guilt. Not even on a charge of stealing a horse can it be shown that he is an associate of horse thieves. On the other hand as a branch of the general presumption of innocence, his character is presumed to be at least of ordinary goodness. But when this presumption has been met by prima facie evidence of guilt he may bring forward in defense his good character, in rebuttal whereof the prosecuting state may show that his character is bad. (People v. White, 14 Wend. [N. Y.], 111; State v. Jackson, 17 Mo., 544; Thompson v. Church, 1 Root [Conn.], 312; State v. Merrill, 2 Dev. [N. Car.], 269; Dowling v. State, 5 Sm. & M. [Miss.], 664; State v. Lapage, 57 N. H., 245; State v. Hare, 74 N. Car., 591; Harrison v. State, 37 Ala., 154; People v. Fair, 43 Cal., 137 ; Cheny v. State, 7 Ohio, 222; Ante, secs. 1103-1106; Ackley v. People, 9 Barb. [N. Y.], 609. See The State v. Ford, 3 Strob. [S. Car.], 517, note; 3 Greenl., Ev., sec. 25; Schaller v. State, 14 Mo., 502; Dupree v. State, 33 Ala., 380; State v. Wells, Coxe [N. J.], 424; McDaniel v. State, 8 Sm. & M. [Miss.], 401; Carter v. Commonwealth, 2 Va. Cas., 169; Reg. v. Rowton, Leigh
In regard to the impeachment of a witness by proving contradictory statements made by him the rule is this : If the answer of a witness is of a nature that the cross-examining party would be allowed to give it in evidence, then it is a matter in which the witness may be contradicted and is deemed material. (Maxw. Cr. Proc., 608; 2 Phillips, Ev., 959; Smith v. State, 5 Neb., 183.) In the case last cited an attempt was made, as in this case, to impeach a witness by showing that on a former trial he had testified that he was only ten or fifteen rods away from the scene of the crime, but the court held the question was collateral to the main issue and not material. Now no one will contend that the answer of the father, made in the absence of the son, which, at most, is a mere opinion, could be given in evidence to show the guilt .of the son. Yet this is the kind of testimony resorted to in this case, although he swears positively that he had no knowledge of such guilt. The case of People v. Cox, 21 Hun [N. Y.], 47, is somewhat similar in this respect to the case at bar. In that case the mother of the accused testified that he was at home when a certain letter was delivered, and on cross-examination she was asked if she had not stated to certain persons, naming them, that he had written such letter. These persons were then called to prove the fact, but the testimony was held to be improper and was excluded. (State v. Patterson, 74 N. Car., 157; State v. Patterson, 2 Ired. Law [N. Car.], 346; Wilder v. Peabody, 21 Hun [N. Y.], 376; Kaler v. Builders’ Mut. Fire Ins. Co., 120 Mass., 333.)
There is some proof that the plaintiff in error was advised that a warrant had been issued for his arrest; that being so informed, he went to Sioux City, and from there to Lathrop, Missouri; that a family was residing near there who were former neighbors of his father; that he was
Reversed and remanded.
