101 Neb. 461 | Neb. | 1917
Tlie plaintiff in error, Lloyd Clieney, was tried in the district court for Sioux county on the charge of stealing a steer, and was convicted and sentenced to the penitentiary for an indeterminate period of from one to ten years. He brings the case here for review, and alleges certain errors, the more important of which we will discuss.
The first assignment is that the evidence fails to sustain the verdict. It is shown by the testimony that one Chester H. Kramer, on whose premises the steer was kept at the time it was killed, was also informed against, but not prosecuted. The steer appears to have been running in the pasture with Kramer’s cattle, and had been there since some time in July. It belonged to a man named Wolfe. Kramer owned the ranch, consisting of about 1,440 acres, and kept there from 40 to 150 head of cattle. He had about 90 there December 10, 1914. He was a man of family, kept house, and had men employed to assist on his ranch. He had lived many years at Bancroft, Nebraska, and moved from there up to Sioux county, and staid there about two years, when he moved back to the eastern part of the state and located at Pender, Nebraska, where he was living at the time of the trial of Lloyd Cheney. When Kramer moved up to Sioux county from Bancroft he took with him John E. Marshall, a witness in this case. Marshall was in the employ of Kramer on the ranch, and was 31 years old. He was a single man, and lived at Kramer’s residence. He (Marshall) and Lloyd Cheney worked for Kramer, the latter only a small part of the
The testimony of the main witness for the prosecution, Chester H. Kramer, seemed to be introduced to show that he (Kramer) was not to be blamed for butchering the steer. He said Cheney had been riding over his (Kramer’s), place Avith him, and that they had talked about the ownership of the steer; that the conversation “naturally took place” on the ranch “some time or other when we were all together;” that, when riding over the place with the witness Kramer, Cheney had made mention that “we needed some meat;” that Cheney said: “This steer ought
There was some kind of an arrangement by which Kramer was not to be prosecuted. That Kramer should show anxiety to secure the conviction of Cheney was natural-if it in any way affected the proceedings touching himself. That some sort of an understanding was arranged between the county attorney and Kramer is shown by the county attorney’s testimony, which is very candid. The county attorney testified': “Q. Mr. Baker, tell the jury what arrangement you have made with Mr. Kramer as to immunity in the case of the state of Nebraska against Kramer, implicated in this case. * * * A. In the case of the state ag’ainst Kramer, you mean? Q. Yes, sir. A. In that case the facts came to my knowledge that there had been a butchering down near Glen, and that both Cheney and Kramer were implicated in this butchering, and I believe that the sheriff first brought the information to me about that; * * * and he (the sheriff) brought Kramer to my office in the courthouse; and I believe that there Kramer related all about this butchering, and made an affidavit to what had happened down there, and I told Mr. Kramer that I could not guarantee him anything, but that I would say to the district judge that he had turned state’s evidence, and that if he would do the square thing that I would give him a recommend to the judge.” In any event Kramer would seem to have been quite active, and his ac
The youngest man in the company was selected seemingly as the person upon whom to inflict punishment. The jury were not satisfied, and did not wish to inflict the punishment upon young Cheney which their verdict called for, because they recommended his pardon. When a recommendation for a pardon comes from a jury in a cattle country and in a cattle-stealing case, it may be said that there is some substantial reason for it. In the verdict in this case the jury said: “But this jury strongly recommends that the defendant be pardoned.”
The defendant testified that he staid at the home of his sister, Mrs. Morgan, on the night before the steer was killed, and that his sister’s husband, Chris Morgan, was away from home at that time; and that his sister and her two little children were the only persons there except himself; also that he had never talked with Kramer or any one else concerning a desire to help in butchering the steer “which was afterwards butchered;” that Kramer came over to Morgan’s place on the morning of the day when the steer was killed, and that he was riding a little buckskin pony; that it was then that Kramer asked for the butcher knives and asked the defendant to help him butcher, and that he (Cheney) agreed to do so, and that together they then sharpened the knives on the. grindstone, and that he (Cheney) got his saddle horse and went home with Kramer, and that Kramer said that the steer that he was going to butcher was on the north quarter, and that they then took the one that was butchered, and 12 or 14 others and drove the bunch up together; that Kramer said, “Let’s kill him in the shed we are building,” and that the shed would “be a windbrake;” that he (Cheney) then caught the steer (with a rope) and dragged it into the shed “out of the wind;” that Kramer said to “knock it in the head;” that they hit it a time or two with an ax and could not hit it right, and Kramer said, “ ‘Cheney, shoot him,’ and I had a revolver on my saddle, and I shot it, and Mr. Kra
The defendant was born in Box Butte county, Nebraska. His father took him along with him to Alabama when he was about nine years old, and subsequently the son returned to Nebraska and to the old neighborhood where he was born, and when his sister got married he made his home with her and her husband, Chris Morgan. He got employment at such work as he could get.
There seems to have been an effort on the part of the sheriff to get Cheney to plead guilty before the county judge at the preliminary hearing. With the view to securing such a plea, the sheriff refused to tell Cheney whether “Kramer had turned state’s evidence,” but told him that he (the sheriff) “knew all that Kramer and Marshall knew about it.” If Kramer was giving a false account of the killing of the steer, which he seems to have been doing, and this false account was carried to Cheney by the sheriff, it would justly excite the apprehension of Cheney, and, entirely independent of his guilt or innocence. Cheney might fairly and reasonably conclude that Kramer, and
While the sheriff, Hill, finally denied that he had told Cheney that Marshall had turned state’s evidence, he (Hill) had talked to Cheney in such a way as to induce that belief upon Cheney’s part. Hill denied that he told Cheney that on the train, but said he told him that “in the jail.” This was deception. The county attorney either did not know that Kramer and Cheney together drove the steer up from Kramer’s pasture, or he desired to use the evidence for the sole and exclusive purpose of convicting Cheney. In his questions the county attorney is not shown by the record to have asked whether Kramer helped to drive up the steer from the pasture, but he starts in with the narroAV inquiry concerning what happened at the shed. At the shed Cheuey, who had. been asked by Kramer to help butcher, threw the rope around the steer’s head and put the other end of the rope on the horn of his saddle and pulled the steer into the shed. When Marshall failed
When Kramer was asked if he had sold part of “this carcass,” he answered that he had not. 'When asked if he had sold some of the carcass to Scott Chalfaunt, he answered, “Yes, sir,” but subsequently amended it by saying that he, had sold some of the meat of the second animal butchered, and that Chalfaunt “took a full quarter.” He did not know whether the meat of this first steer had lasted until February, 1915.
• While this case may be tried again, it is perhaps well to consider some of the other alleged errors. Kramer testified in such a way as to cast suspicion upon the defendant by reason of what he (Kramer) said independently of his direct testimony. “Q. Who was the first man that suggested butchering this animal? A. Chris Morgan. Q. That is the brother-in-law of the defendant? A. Yes, sir.” Counsel for the defendant moved to strike this out as hearsay and not binding on the defendant. The motion
In Wallace v. State, 91 Neb. 158, it was said: “In order to convict the defendant of the crime of larceny, as charged in the information, the state was required to prove, beyond a reasonable doubt, that defendant participated in the larcenous taking of the hogs in question from the complaining witness. We think the evidence was insufficient to establish that fact beyond a reasonable doubt.”
If Kramer’s testimony is to be taken as true, then, and then only, is there enough evidence against Cheney to create any suspicion of his guilt. If we follow the example laid down in the Wallace case, we will reverse the judgment of the district court. It should be remembered that Kramer boldly expressed the desire to appropriate the steer. Such testimony should not be permitted to determine the guilt of any person unless it is corroborated by other evidence worthy of belief. The defendant never had the steer in his possession. He did what Kramer requested him to do. He helped to kill and butcher the steer, but he found it in Kramer’s possession on Kramer’s ranch, and he left it in Kramer’s possession at Kramer’s shed. He did not remove the steer, and therefore there was no asportation, and consequently there could be no theft. Asportation, nonconsent of the owner, and a felonious intent to thereby convert the stolen property to the defendant’s own use are necessary elements of larceny. Ladeaux v. State, 74 Neb. 19.
After Kramer butchered the steer Cheney visited with Marshall, who was Kramer’s hired man.
The judgment of the district court is
Reversed.