83 P. 228 | Idaho | 1905
— The defendant, David W. Burke, was charged upon information jointly with his father, George Burke, with the crime of burglary. He entered the plea of not guilty, and upon a separate trial was convicted of burglary in the first degree and sentenced to a term in the penitentiary. All the evidence produced by the state upon the trial was substantially as follows: That George Burke, the father of the defendant, was residing upon a farm near the town of Mohler, in Nez Perce county, and the defendant, who had been stopping with his father for a couple of weeks, was employed to assist in the farm work, but had no inter-, es.t in the farm or the business nor in any of the property about the farm, except as an employee. Upon an adjoining farm was situated a farmhouse and granary belonging to
Counsel for defendant took exceptions to various statements made by the prosecuting attorney upon the argument of the ease before the jury, in which the prosecutor referred to the defendant as a man who had “shown himself not to be a law abiding citizen,” and also to the statement where the prosecutor said: “Counsel wants to know who killed the horses; I do not know who killed the horses; it may have been that the man who killed the horses was the man who stole the grain. But, gentlemen of the jury, I want to say to you that if this was the case, then the man who killed the horses was David Burke.” And again, the prosecutor said: “He went over to Fletcher the next day, counsel said to see his sweetheart.' It might have been to see his sweetheart, or it may have been to arrange for the sale of this grain. ’ ’ The defendant through his counsel excepted to these various statements made by the prosecuting attorney upon the ground that there was no evidence in the record upon which to found such statements or argument, and that they were done purely for the purpose of prejudicing the jury
The attorney general has called our attention to People v. Sears, 119 Cal. 267, 51 Pac. 325, People v. Arthur, 93 Cal. 536, 29 Pac. 126, Harris v. State, 84 Ga. 269, 10 S. E. 742, People v. Wood, 99 Mich. 620, 58 N. W. 638, Burks v. State, 92 Ga. 461, 17 S. E. 619, Gregory v. State, 80 Ga. 271, 7 S. E. 222, State v. Tucker, 36 Or. 291, 51 L. R. A. 247, 61 Pac. 894, as similar cases sustaining verdicts on evidence which he thinks as meager as in this case. Upon an examination of these cases, it will be seen that there were some specific circumstances pointing directly to the defendant in each ease.
In People v. Sears, part of the goods were found in defendant’s pocket, and the defendant gave an improbable and unsatisfactory account of how he came into possession of the property.
In People v. Arthur, footprints were traced from the building burglarized to a vacant building where both defendants were found asleep and the goods stolen, together with some burglary tools concealed near them, were in the building; and other circumstances were shown pointing directly to the defendants.
In Harris v. State, the defendant was seen near the place about the time of the burglary and tracks testified to as being the defendant’s were found leading from the burglarized place to his house and the goods were found in the defendant’s possession.
In People v. Wood, there was evidence that the defendant was seen going in the direction of the building burglarized, and the property was found in his actual possession.
In State v. Tucker, tracks were traced from the place of the burglary to within a very short distance of the place where defendant lived, and a letter addressed to defendant was found along the line of tracks, and the defendant later sold the property which was identified as the property which had been taken from the burglarized building.
In Gregory v. State, there was the most meager evidence to be found in any of these eases, but even there it Aas
We conclude that the utter absence of evidence in this case connecting the defendant with the commission of the offense makes it necessary for us to grant a new trial. .Whether or not the defendant is a man capable of committing such an offense or has paid the penalty for the commission of an offense in another state, he is nevertheless entitled to a fair trial, and if guilty to be convicted upon evidence and not upon insinuations and innuendo. The administration of even-handed justice demands it, and the law will sanction no other kind of a conviction. It is not enough to say a crime has been committed and somebody has committed it, and that somebody shall pay the penalty therefor, and that the state has been unable to find any other person upon whom they could fasten the crime, and that it is entirely possible and was altogether convenient for the defendant to have perpetrated the offense. Something more must be done; facts or circumstances should be developed tending to connect the defendant with the commission of the offense such as would be inconsistent with the' actions and conduct of an innocent man. Since this case must be sent back for a new trial, it becomes necessary for us to consider the assignments of error with reference to the admission and exclusion of evidence and the instructions given and rejected.
After examining the rulings complained of in the admission and exclusion of evidence, we are satisfied no error has been committed. It does appear, as contended by counsel, that the trial court was rather strict with defendant when cross-examining the state’s witnesses.
Judgment reversed and a new trial granted.