1 Indian Terr. 85 | Ct. App. Ind. Terr. | 1896
Lead Opinion
The appellants, George Oxier and Ewalt Boone, were charged by indictment, containing two counts, with the offense of larceny. The first count charged the ;heft of one steer, the property of one Jo Brown. The second count charged the theft of a steer, the property of some person or persons to the grand jurors unknown. The attorney for the government elected to go to trial upon the second count. Objection is made to the sufficiency of this ¡ount, upon the ground that the description of. the animal stolen- should be more definite, when taken in connection vith the allegation that the owner of the same is unknown. Ye think this objection unsound. Rap. Larceny, § 83; 2 fish. Cr. Proc. § 700.
The proof for the government showed that the jppellants brought eight or nine cattle to the town of
It is apparent from the statements heretofore made that the grand jury might have learned, by examining the witnesses for the government, the names of the persons who claimed and obtained the property at Belcher. If the verdict of the jury rests upon the finding that the appellants were guilty of the theft of any of this property, except Gladney’s steer, the conviction cannot stand, because the names of these parties, if they were the owners, might have been learned by the grand jury by the exercise of any care or diligence, 1 Bish. Or. Proc. § 549; Jorasco vs State, 6 Tex. App. 252; Cameron vs State, 13 Ark. 712. As to the Gladney steer, the record does not show that the grand jury knew who was the owner of the animal at the time the indictment was found, but that its ownership was known at the time of the trial. In such case the rule seems to be established by authority that proof must be offered to affirmatively establish the averment that the owner was unknown to the grand jury finding the indictment. 1 Bish. Or. Proc. § 562; Rap. Larceny, § 104. In the absence of such proof, the conviction cannot stand for the theft of this animal, if we could assume that it was as to this animal that the jury rendered the verdict of guilty. If a conviction was sought as to the property claimed at Belcher, other than Gladney’s steer, the declarations of the parties who carried the animals away that they were the owners were not competent to establish the fact of their ownership, unless the record had further shown that the claim of ownership was made in the presence of the defendants, and was assented to, or, at least, not denied by them, in which case the evidence would have been competent for the consideration of the jury. In the absence of such showing in the record, such testimony was inadmissible, and the objection to it should have been sustained. Cannada vs State (Tex. App.) 16 S. W. 341; Rap. Larceny, § 145.
If a conviction was not sought for the larceny of this property, then the declarations of these parties made at
The court charged the jury as follows: “It is the law in this jurisdiction, and I charge you to that effect, that the possession of the property recently stolen raises the presumption of guilt against the defendants, or the party having the possession of the property. It is not conclusive, and, in my opinion, it is not prima facie evidence of guilt, but raises the presumption of guilt, which must be rebutted and dispelled by the defendants, or the party who was found in possession of the property recently stolen. He must, by reasonable explanation, show how he came into possession, in order to rebut that presumption; and, when he does that, he stands before the jury as though no such presumption had ever been indulged against him. He stands before the jury with the presumption in his behalf that he is innocent, if he has given reasonable explanation of the property recently stolen; and you are to be judge of the reasonableness of the explanation. If he has done that, and you are satisfied of that explanation, the presumption which attends all defendants in criminal trials attends him, and that is that he is presumed to be innocent until his guilt is established by competent testimony beyond reasonable doubt.” Objections are urged to this charge, but, as exception was not reserved to the giving of this- charge, the question of its correctness is therefore not before us. But the defendant requested the following charge: ‘ ‘If, when the defendants in this case were found in possession of property recently
In view of another trial, it is deemed proper to indicate our opinion with reference to the charge as given and refused. The defendants were entitled to the instruction, unconditionally, that a defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt. The question what the evidentiary effect of possession of property recently stolen is has been productive of an enormous number of decisions, which run the scale of inconsistency and conflict. The later and the sounder and better rule is believed to be that which makes the presumption arising from . the possession of recently stolen property not a presumption of law, but of fact,' — in other words, an inference to be drawn or not, as the jury may determine in the light of all.the evidence. As Mr. Thompson, in his work on Trials, says: “The more recent and better view ascribes to it the character of a presumption of fact, which means that it is a presumption which the jury are at liberty to' draw or not, as they see fit; and hence it does not necessarily become conclusive when not rebutted. The sound view is that whether the recent, unexplained possession of stolen goods is conclusive evidence that the possessor committed the larceny is a question of fact, exclusively for the jury; that such recent, unexplained possession does not create a conclusive presumption of law, which in the absence of .explanatory evidence given at the
The failure of the defendant in whose possession property recently stolen is found to offer a reasonable explanation of his possession when his right to the property is first questioned is a circumstance to go to the jury. It may have much or little weight, according to the facts of the particular case. Such weight is not a fixed quantity, ascertained in advance, and susceptible of exact statement by the judge to the jury, as a matter of law, but is a result, varying with the circumstances of each case, and resting wholly in the judgment of the jury. • If the defendant, at the time his right is challenged, offer an explanation which is reasonable and consistent, it is admissible as evidence in his behalf, and, ordinarily, should have much effect in the determination of his guilt or innocence. But, as the jury is the judge of the weight that is to be attached to the failure to explain, so are they the judges of the weight and conclusiveness of the explanation when made in the way of establishing the defendant’s innocence. As we hold it incorrect to declare, as a presumption of law, that the fact of the possession of recently stolen property, unexplained, establishes the conclusion of the defendant’s guilt, so it seems illogical and incorrect to declare that a reasonable explanation conclusively establishes his innocence, unless the government absolutely and in all things disprove the truth of his explanation when made. This latter doctrine is established in Texas, but it rests upon no sound foundation.
We have heretofore -held that, under the rule in federal courts, the trial judge may comment upon the evi
As to the question whether a witness could be asked in cross-examination if he had been arrested for larceny, we concur in the conclusion of the trial judge that such question maybe asked; that the answer of the witness cannot be contradicted where the question is simply for the purpose of affecting his credit; and that the witness in such case may claim his privilege not to reply, if he choose. This conclusion is believed to be supported by the better reason, is approved by all ths text writers, and by the weight of judicial opinion. 1 Best, Ev. § 130; Steph. Dig. Ev. p. 225; 1 Greenl. Ev. § 459; 1 Phil. Ev. 289; 1 Thomp. Trials, § 458; Carroll vs State (Tex. Cr. App.) 24 S. W. 100; Brandon vs State, 42 N. Y. 265; Real vs People, Id. 270; Wilbur vs Flood, 16 Mich. 40; State vs Taylor (Mo. Sup.) 24 S. W. 556. By section 2902 of Mansfield’s Digest of Arkansas, which is in force in this territory, it is provided: “A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth and morality renders him unworthy of belief, but not by evidence of wrongful acts, except that it may be shown by an examination of a witness or record of a judgment that he has been convicted of a felony. ” In Anderson vs State, 34 Ark. 257, proof by a third party that a witness for the defense had been indicted for felony, but not convicted, was held
Concurrence Opinion
(concurring.) Appellants assign as error the fact that a witness for them, on cross-examination, was required to answer, over their objection, the questions: First, as to whether he had ever been arrested for anything; and, second, whether he had ever been arrested for horse stealing. To the first question, the witness answered that he had been arrested for cow stealing, and to the second he answered that he had. Three cases decided by the Supreme Court of Arkansas' — namely, Anderson vs State, 34 Ark. 257; Bates vs State, 60 Ark. 450, 30 S. W. 890; and Cline vs State, 51 Ark. 140, 10 S. W. 225—are cited in order to establish the doctrine that a witness cannot be impeached, or his testimony impaired, by proving that he had been arrested or indicted for larceny. The counsel for appellee concede that the earlier decisions of the Supreme Court of Arkansas were to this effect, but he insists that in the case of Hollingsworth vs State (Ark.) 14 S. W. 41, that court materially modified its former ruling on this subject, and permitted such questions to be asked. It is a well-settled doctrine in this country that a witness may be cross examined as to specific facts tending to disgrace or degrade him, for the purpose of impairing his credibility, though these facts are purely irrelevant and collateral to the main issue; also, that the extent to which such questions may be allowed is to be determined by the discretion of the trial court, which commi:s no error unless it abuses its discretion; that the witness may claim the privilege of declining to answer, when the court allows such question, but that, when answers are called for which are material to the issue, there is no privilege. See Steph. Dig. Ev. (Am. Ed.) p. 225, note 1, and numerous American authorities there cited, in which the subject is fully discussed. In New York it appears that the rule confines the questions to the facts which tend tc discredit the witness, or to impeach his moral character; anc questions as to his having been indicted, arrested, accused,
From the foregoing examination of authorities on this subject, it will be seen that the rule is not uniform on this subject. We are, however, inclined to the opinion that the weight of authority permits such questions as were allowed m the case at bar to be put to a witness on cross-examina-3ion, and that the extent to which such questions may be al-.owed is to be determined by the discretion of the trial ;ourt, which commits no error in allowing such questions, mless it abuses its discretion. It is a general rule, with mly two exceptions as to all collateral and irrelevant inquiries, whether relating to character or not, that answers pven cannot be contradicted. The cross-examining counsel s bound by the answers given. The reason of ■ this rule is hat time may not be taken up with immaterial issues. To his rule, however, there are, as above stated, two excep-ions: If a witness is asked whether he has been previously onvicted of any felony or misdemeanor, and denies or does ot admit it, or refuses to ansymu evidence may be given of