Parker v. United States, 1 Indian Terr. 592

Parker v. United States

1 Indian Terr. 592 | Ct. App. Ind. Terr. | 1898

Clayton, J.

( after stating the facts). It is unques-ionably the law that, while proof of other independent ¡rimes is not admissible to establish the guilt of the defend-,nt of the offense on trial, yet, under certain circumstances,. >ther crimes may be proven. In cases of larceny, if prop-rly connected, the proof that other stolen property was ound in the possession of the defendant, with the property harged to have been stolen, is admissible for either of four mrposes: (1) To prove felonious intent; ( 2) to prove hat the alleged theft was a part of a continuous transaction r scheme of larceny ; (3) to identify the defendant; ( 4) Id identify the stolen property. In all of these cases, how-Iver, it must not "only be shown that the defendant was ound in possession of the property, and that it was stolen ; ut, in addition thereto, it must appear from the proof that here was some connection between it and the property harged in the indictment to have been stolen. If nothing e shown but that it was in the defendants’ possession, then } is inadmissible in every case, because it tends to prove othing but another, and a separate and independent, lar-eny. If, in addition to the fact that the stolen property ras found in the possession of the defendant recently after íe alleged larceny, it be shown that it had been stolen at or bout the same time and place as that charged to have been tolen, then it is admissible in all of the cases, because, nder the circumstances of each case, it tends to prove the latter in controversy. Cases arising under the first propo-ition are usually those where the taking by the accused of *598the alleged stolen property is admitted or clearly established and the defense is interposed that it was taken under som< claim of right, or color of title, or through some mistake O] misapprehension. In such case, for the purpose of proving the intent, the prosecution, in rebuttal, may show that, a the time defendant was found with the property in question he was in possession of other property stolen about the sam< time and place. Under the second proposition; it ma; be shown that the alleged stolen property was found in th possession of the defendant, together with a number of othe stolen articles, taken at different times and places, not to remote from the time and place of the alleged larceny, no for the purpose of showing that the defendant is a comino thief, or of proving an independent crime against him, bn as tending to show that the alleged taking was a part of continuous transaction or scheme of larceny, and thus shec ing light on the transaction in controversy. Cases arisin under the third proposition are generally those where th larceny is admitted or established, and the defendant ha been seen with the alleged stolen property, but under sue circumstances as that he was not recognized by the witness as, if he were a stranger to him, or was in disguise, or see in the night-time ; or, it may occur in cases where no or has seen the defendant in possession of the property allege to have been stolen, but the circumstances point to his guil without clearly identifying him.- In such case, proof ( other stolen property having been found' in his possessic shortly after the theft, taken about the same time and plac is admissible for the purpose of identifying him. The ca; of Long vs State, 11 Tex. App. 387, is a good illustration < cases of this kind. In that case the court says: “T1 court, over the objections of defendant, permitted pro that other stolen cattle were in the bunch with which tl cow charged to have been stolen was driven to Seguin. J this there was no error, in view of the peculiar facts of th *599jase. Tbe most difficult thing on the part of the prosecu-,ion was to connect defendant with the possession of the sow charged to have been stolen. To do this, it was necessary to describe and identify the herd with which she was vhen taken to Seguin. To do this, evidence that other cat-le from the same range were taken at the same time was proper. Some of the state’s witnesses were able to iden-iify the herd, but not the cow in question ; others, the herd, md stated the fact that the cow charged to have been stolen vas with it. The herd being thus identified, the state at-empted to connect the defendant with it (the herd); thus ihowing his connection with, or possession of, the animal ¡harged to have been stolen. We are of the opinion that, mder the circumstances of this case, these facts were ad-nissible ; but, most evidently, it was the duty of the court o have informed the jury of the purpose for which this evi-lence was admitted. ” If the larceny of the alleged stolen troperty be proven, but the identity of the defendant is in loubt, then, if the fact that other property which had been aken was stolen at the same time and place, and was found n the possession of defendant shortly after the larceny, be ¡stablisned, inferentially he is the man who took it all. In he case of Long vs State, supra, the fact that the defen-lant, shortly after the larceny, was found in possession of ither cattle, whether stolen or not, which the unrecognized nan was seen driving with the cattle alleged to have been tolen, would have been competent proof for the purpose of dentifying him as the man who was seen driving the stolen attle ; but it would not have been competent to have proved hat these other cattle were stolen, but for the fact that they vere taken from the same range, ■ and at the same time, vith those in controversy. Cases arising under the fourth >roposition usually occur when the alleged stolen property ound in the possession of the defendant is similar to others of hat class, but without marks of identification whereby it *600may be distinguished, or the brands and marks may have been destroyed, or the property so mutilated as to leave il without means of identification. In such cases, proof that the defendant, recently after the larceny, was in possession of other stolen property, taken about the same time and place, is admissible for the purpose of identifying that which is in controversy, and found in his possession. If the property named in the indictment be shown to have been stolen, but the identity of that found in possession of the defendant, claimed to be the stolen property, is in doubt, then the fact that he was found with other stolen property, which had been taken from or about the same place, and at the same time, would so connect the two articles as that the identification of one would tend to identify the other; but i: not taken from or about the same place, although it maj have been taken at the same time, and found in the posses sion of the defendant, it would have no such tendency, anc therefore for that purpose the proof of it would be inadmis sible. In the case before us the proof tends to show tha' the two white cows of Adams and Smith were stolen; tha they were taken about the same time as those of the prose cuting witness; that they were found in the possession o: the defendants, with the cattle charged to have been stolen But there is no evidence that they were taken from or abou the sainé place. In this the case of the government is fatally defective. As has been shown, the whole purpose of tht United States attorney in offering this proof was to identifj the Henson cattle. It is not possible that it could have beei offered for any other purpose, and therefore, under the cir cumstances of this case, it was inadmissible.

Larceny — Possession oí stolen property.

The next exception raised by the assignment of erroi which we will notice is: “That the court erred in overruling the objection of the defendants to the admissibility of th< testimony of D. B. Henson and S. S. Henson relating to th< larceny of the aforesaid white cows.” Their testimony ii *601his connection was as follows: “D. B. Henson. Q. Do you :now whether or not there were other cattle stolen out there rom other parties about that time? (Objected to as incom-etent, irrelevant, and immaterial. Objection overruled; to rhich the defendant excepts.). A. Yes, sir; there was a reat deal of taking of cattle by some one at that time. By Ir. Cruce: Unless these men have all lied to me, I can show aat these two men drove other cattle out there at this time. The defendant objects to the remarks of theU. S. attorney.) What other cattle were lost at that time? (Objected to 3 incompetent, irrelevant, and immaterial. Overruled; to hich ■ the defendant excepts.) A. Mr. Tobe Smith lost a ow, and Mr. Adams lost a cow at the same time. Q. Do ou know whether or not they recovered them? Objected to as incompetent, irrelevant, and immaterial, verruled; to which the defendant excepts.) A. Mr. dams got his. Mr. Tobe Smith never got his ick, though. Q. What kind of a cow was Adams’ cow? Objected to as incompetent, irrelevant and immaterial, verruled: to which the defendant excepts.) A. I suppose was a white cow. Q. What kind of a cow was the other íe, — Tobe Smith’s? (Objected to as incompetent, irrele-mt, and immaterial. Overruled: to which the defendant ccepts.) A. Tobe Smith told me what kind of a cow his is; but I think, as well as I can remember, she was alight-d cow. He did tell me what her brand was, and all about (The defendant objects to the answer. Overruled.)’, 3. S. Henson. Q. Do you know whether or not any one se lost any cattle there at the same time? (Objected to as competent, irrelevant, and immaterial. Objection over-led: to which the defendant excepts.) Q. Who was it 3t any? A. That gentleman there lost one, — Mr. Adams, ’ointing to a gentleman in the court room.) Q. What nd of a cow did he loose? A. I could not tell you. Q. d you ever see it? A. No, sir. Q. Who else lost any? *602(Objected to as incompetent, irrelevant, and immaterial Overruled. Exception.) A. Tobe Smith. Q. What kinc of a cow was pt? A. I don’t know. Q. Do you kno-v whether they got their cows back? A. Mr. Adams got hi; back, he told me, yesterday. (Objected to, — what Mr Adams told him. Overruled. Exception.) * * * Q. Ho\ do you know, Mr. Henson, that Mr. Adams lost a cow at th same time? A. He told me. Q. You don’t know, as ¡ matter of fact, that he lost it? A. No, sir; only what Mr Pollard told me. Mr. Pollard told me he lost a cow at th same time; she got out of the pen, and he couldn’t find her. The above testimony was objected to as being “incompetent irrelevant, and immaterial,” and we are here asked to d< clare its admission to have been error, for two reasons : (I Because, under the circumstances of this case, it was an a tempt to prove a separate and independant larceny. Pc the reasons heretofore stated, we hold that this objectio should have been sustained. It is not sufficiently show that the two sets of cattle were taken from about the san place. (2) Because it is hearsay. Upon this point tl United States attorney contends that, as this objection wí not specifically made at the trial, the court was not bound • notice it. While it is true that all hearsay evidence is i: competent evidence, yet it is the rule that the specific, ar not the general, objection should be plainly stated to tl court, so that the court’s judgment may be fairly obtained relation to it. But in this case the evidence objected to being incompetent was so obviously and certainly hearse that the court, wé think, even on its own motion, shou have stricken it out.

Possession of stolen property-place. Evidence-Hearsay.

In the second assignment of error the side-bar rema: of the United States attorney is assigned as error. Whil counsel, in their conduct of a case and in argument, al allowed some considerable latitude, yet if it can be shovB that the remark was improper, and was prejudicial to tj| *603Iefendants’ case, and proper objection was made, and over-•uled by the court, and exceptions were duly saved, this sourt would not hesitate to reverse because of such an error, h this case, while the defendants objected to the remark, no ■uling of the court upon the objection was pressed or had, md. no exceptions were saved, and therefore we are not called upon to notice this assignment.

Witness not prevented from testifying by remaining in Court-room.

The eleventh assignment of error is as follows : ‘Eleventh. The court erred in allowing John Howell to be ntroduced as a witness and to testify in this case, over ob-ection of defendants, after he had testified that he had been n the court room during the trial after the rule had been 'laced upon the witnesses at the request of counsel for the ■overnment; the proof showing that said witness was not, nder the law, privileged from the rules.” Section 2906, lansf. Dig., provides that, “if either party require it, the idge may exclude from the court room any witness of the dverse party, not at the time under examination, so that e may not hear the testimony of the other witnesses. ” The xclusion of witnesses from the court room during the trial f a case is left, by this section, in the sound discretion of íe court. Randolph vs McCain, 34 Ark. 696. When, howler, a witness, by inadvertence, has remained within' the earing of the other witnesses during the trial, and is after-ards permitted to testify, the court should, we think, if so jquested, instruct the jury that this fact might be taken do consideration by them as affecting the credibility of the itness’ testimony; but, as this was not asked, we do not nd that the trial court abused its discretion in this mattpr. or the errors aforesaid this case is reversed and remanded Rr a new trial.

Springer, C. J., and Thomas, J., concur. Town-snd, J., did not participate in the case.