69 Neb. 56 | Neb. | 1903
The defendant in the trial court who comes here by proceeding in error was informed against and, by a jury, found guilty of the larceny of two head of cattle of the value of $45. After overruling a motion for a new trial, the trial court pronounced sentence of imprisonment in the penitentiary for a period- of four years; to secure a reversal of which is the object of the present proceedings.
The errors assigned which are relied on and argued by counsel for the accused relate to the rulings of the trial court in the admission of certain testimony over objections of the defendant, which it is contended was hearsay testimony and, therefore, incompetent. The cattle alleged to have been stolen by the accused were found to be missing from a pasture containing a large number kept there during the grazing season. The prosecution by the state was conducted on the theory that the accused took those mentioned in the information with others from the pasture and with his own cattle drove them to Oakdale, a railway station near by, where he shipped the bunch, being a car-load, to the South Omaha market and there disposed of them through a firm of commission merchants operating at that place. The evidence is conclusive to the effect that the defendant, at about the time of the alleged larceny, shipped in the name of the Antelope County Bank, doing business at Oakdale, a car-load of cattle to Shelley, Rogers & Co. at South Omaha. Whether the stolen cattle were, in fact, included in the shipment thus made by the accused, depended upon the evidehce of witnesses who were qualified to testify to the receipt of the cattle at the stock yards .and to identify the car-load coming from Oakdale as the consignment made by the bank at the instance of the accused to Shelley, Rogers & Co. There appears to have been no evidence obtainable by which the stolen cattle could be identified as being in the possession of the accused at the time or prior to the shipment of the car-load from Oakdale. On this point, it is the contention of counsel for the accused
“You may state if on that date you received and Aveighed a consignment of stock from the Antelope County Bank to Shelley, Rogers & Co.”
Before the answer of the question Avas alloAved, the witness Avas cross-examined as to his competency to testify as to the facts inquired about, in Avhich it Avas disclosed that his only knowledge, regarding the cattle he Avas testifying about being shipped by the Antelope County Bank or having come in a car from that place, was from information received from other employees of the stock yards; that the first knowledge he had of the cattle was when he found them in a particular inclosure after being unloaded and, from the records kept by the stock yards.company and by other employees, he learned where they came from, who the consignor of the load was, and to whom they were consigned. Objection was made to the witness’s answering the question pat by the state because it appeared that his testimony was hearsay and incompetent. The objection was overruled and exception taken, and the witness’s answer to the question Avas: “I did.” He-Avas then permitted to testify what he did with the particular bunch of cattle purporting to have been consigned by the Antelope County Bank to Shelley, Rogers & Co., into what yard or pen he turned them and in whose charge they were placed. The
Q. Where did yon get your information from, when you say you received a consignment of cattle?
A. From the car number and consignee and consignor, then it is turned over to me. I take the bunch out and count it.
Q. That is the one source of your information?
A. That is the one way I know of by.
Q. That is the only source of the information of the fact you have testified to?
A. I took the car number from the books furnished me, then I counted them out of the chutes and turned them over to an employee of the company.
Q. And your information comes from the books kept by some one?
A. Yes, sir.
The defendant thereupon moved the court to strike out the testimony of the witness because hearsay and based upon certain books that have not been received in evidence and incompetent and immaterial. The objection was overruled and exceptions taken. There is no other evidence in the record connecting the bunch of stock received at South Omaha, in which the stolen cattle were found with the shipment made by the bank for the accused, except that which we have just quoted. The testimony of other witnesses identifying the stolen stock found in South Omaha must, necessarily, so far as its connection with the accused is concerned, rest on the testimony of the witness Jones, to the effect that the cattle afterwards identified as being stolen were a part of the car-load shipped by the defendant’s order at the time stated. Whether the assistant weighmaster should be permitted to testify, that the bunch
Although loth to interfere with the judgment of the trial court in this case, we can not escape the conclusion that the verdict, of guilty as found by the jury can not be sustained, without ignoring and violating fundamental principles of the law of evidence. The record disclosing, as it indubitably does, prejudicial error in the admission of the testimony referred to over the objections of the defendant,
Reversed.