23 Or. 441 | Or. | 1893
The defendants were indicted, tried and convicted of the crime of larceny in stealing one mare, the property of S. N. Needham. On the trial, the pros.ecubion gave evidence tending to show that the animal
1. The defendants objected and excepted to the admission of any evidence tending to show that any of the property claimed to have been found in defendants’ possession at the time of their arrest, except that described in the indictment, was stolen property, on the ground that such evidence tended to prove other and different crimes from the one alleged in the indictment. The general rule is unquestioned that evidence of a distinct crime unconnected with that laid in the indictment, cannot be given in evidence against the prisoner. Such evidence tends to mislead the jury, creates a preju
Now, in the case at bar, the evidence tending to show that the property found in defendants’ possession at the time of their arrest was stolen property, was so intermingled and connected with the evidence tending to show that defendants committed the crime charged, as to form one entire transaction, and to identify the actor by a connection which logically tends to show that he who committed the one must have committed the other. Without such evidence the chain of circumstances against the defendants would not have been complete, and the state could not have made out its case in its entirety. To exclude the evidence relating to the larcenies for which the prisoners were not on trial, would have broken the chain formed of links more or less perfect connecting them with the one which constituted the subject matter of the trial, for it was impracticable for the prosecution to trace the animal of Needham and defendants’ connection therewith from the time it was stolen until their arrest without disclosing the commission of the other crimes; and hence, we are of the opinion that no error was committed in admitting such testimony.
2. This cause was continued from the March to the June term of the court below on an affidavit made by the defendant Baker in order to procure the attendance of five certain witnesses in behalf of the defendants. In this affidavit he represented that he could have these witnesses duly served, and their attendance at the trial at the succeeding term, and could prove by one of them that the mare in question was stolen on the eighth day of October, and by two others that neither of the defendants were in Linn County at that time, but both were in
The cause must therefore be reversed and a new trial ordered.