183 P. 745 | Wyo. | 1919
The plaintiff in error, William L. Jones, was convicted of the crime of larceny and sentenced to a term in the penitentiary. From that judgment he brings the case to this court by proceedings in error.
The errors assigned are: 1. Insufficiency of the evidence to support the verdict and judgment. 2. Newly discovered evidence.
The property alleged to have been stolen was a certain gray mare, the property of Wesley Kelly. The evidence discloses that the mare was put in the barn of Kelly, situated a little more than a mile from the town of Pine Bluffs, where Kelly resided, about 5 :3o or 6 o’clock on the evening of November 21, 1916, and disappeared therefrom some time between that hour and the next morning. The only evidence in the record tending to connect Jones with the larceny is the testimony of one Bush, a witness for the prosecution, a young man about twenty-one years of age at the time of the trial, who had theretofore been convicted of the larceny of a horse upon a plea of guilty, and was at the time of the trial under sentence therefor in the industrial institute in this state, and who admitted that he had stolen other horses. His testimony was to the effect and substantially as follows : That he went to the ranch of Jones, which is about twenty-two miles from Pine Bluffs, on the evening of November 20, 1916, for the purpose of going to work for Jones. On the next day he accompanied Jones to P'ine Bluffs with a load of wheat, where they arrived in the evening about five o’clock, unloaded the wheat at the elevator, put up the team in Anderson’s livery barn and went together to supper about seven o'clock. After supper went to Robinson’s store, re
The foregoing is the substance of all the testimony of the witness Bush tending to connect Jones with the larceny. Jones testified, in substance, that Bush accompanied him to Pine Bluffs with the load of wheat; that they arrived there in the evening, had supper together, that he was at several places in the town with him during the evening up to about 9:3o o’clock, at which time he went to the hotel kept by Beaver, and went to bed there about 10 o’clock that evening. In that statement he was corroborated by Beaver, who' testified that Jones went to bed about ten or between 10 and 11 o'clock. Jones denied being with Bush after about 9:30 o’clock, denied being with him or Bloom at Bloom’s barn, or that any such conversation, as related by Bush as taking place at the barn was had. Denied being at Bloom’s barn that evening. Stated that he went to Anderson’s livery barn to attend to his team before going to the hotel, and that Bush did not go with him. Denied being at the saloon. Hastings -testified that Jones and Bush were at the saloon and that the three went to Anderson’s barn about 11 o’clock,
We have set out at considerable length the material testimony in the case, as this court has always followed the rule that it will not reverse a judgment on the ground of the in
The material evidence, claimed to be newly discovered, consists of the evidence of the man Nelson mentioned by the witnesses. In his affidavit attached to the motion for a new trial, he states, in substance, that on the afternoon or evening of November 23, 1916, John Bush -came to his home and had with him two horses, one a gray mare. That Bush remained there that night, and the next morning Bush wanted to trade the mare to him, but no trade was made. That Bush then wanted to sell the mare to him and that he then bought the mare from Bush for fifty dollars. That he never purchased any horse or mare from William L,. Jones, the defendant. That this was the same gray mare he took to Crawford, Nebraska, and sold there. That evidence was material; but, according to Jones’ own testimony, he knew Bush was at Nelson’s with this mare on Nov. 23; and there is no sufficient showing in the record of reasonable diligence to procure it and present it at the trial.
Reluctant as appellate courts are to set aside the verdict of a jury, a careful consideration of all of the evidence in-
Reversed.