State v. Folwell

Jul 15, 1874
Reporters:
Before:
Kingman

The opinion of the court was delivered by

Kingman, C. J.:

Larceny. Facts tending to prove the corpus delicti. The appellants were charged with grand larceny, committed in Bourbon county on the 18th of September 1873, and tried and convicted of the offense. They claim that certain errors occurred on the trial. The first is, that there was no proof of the corpus delicti, and therefore a new trial should have been granted. There can be no doubt as to the law; but a careful scrutiny of the record has satisfied us that the proof on this point is satisfactory. The owner of the horse placed him in the stable of a neighbor with whom he was staying that night, and near ¿jje c]001- deposited his saddle and blanket. In the morning the horse ‍‌‌​​​​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​​‌‌​​​​​​‌‌‌​‌​‌​‌​‌‌‌​​​​​‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‍was gone, and the owner has never seen him since. If it be said that the horse might have escaped, the answer is, that the saddle and blanket were also gone; and almost every fact that was in evidence tended to prove that the horse was stolen. It was in evidence that the accused, on the day and night after the horse was taken, went northward with the team and wagon of Folwell, one of the accused; that there were three horse-tracks northward, twenty miles, while Folwell drove but two; that a couple of men with a span of horses and a wagon, with a led horse, were seen stopping 150 yards from the road the accused traveled; that the team, wagon and horses corresponded with that of the accused, and so did the led horse with the horse alleged to be stolen, a similar team, wagon, harness, with a led horse of the same color and size of the one missing, passed through Osage the afternoon of the 19th of September; and many other minute facts, all tended to show that the missing horse was stolen. Taken altogether, the testimony is so convincing that we do not see any ground on which the claim of the appellants on this point can rest.

*1091. Admissibility of evidence of one offense, where it also proves another offense. *108The other errors alleged are the admission of improper *109evidence. The first is, the admission of evidence tending to prove another larceny. The facts are substantially as follows: The state was trying to prove ‍‌‌​​​​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​​‌‌​​​​​​‌‌‌​‌​‌​‌​‌‌‌​​​​​‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‍the whereabouts of the accused on the 19th of September, to connect them with the‘loss of the missing horse. The evidence’ had tended to show that they had gone north as far at least as Prescott, twenty miles, and that on the way up the tracks showed three horses, and on the return two horses. Every fact that in any way tended ‘to show that the wagon of the accused made those tracks and that the defendants were with the wagon, was important and relevant. The witness had already testified that he had examined the wagon of defendants, and described it, pointing out peculiarities of its running, and had measured the track near where he lived, and that the “doubletrees on defendant’s wagon, as he saw it on September 20th, were the property of witness.” He was then allowed to testify that he left this property in the road five-and-one-half miles north of Fort Scott, on the Barnes-ville road, and next saw it the next day on defendant’s wagon at Fort Scott. It is true, that this evidence tended to prove a distinct felony, and it will readily be seen that it was likely to injure the defendants; but the testimony was essential to v show the guilt of defendants on the charge then being tried, and it would be a singular rule of law, that a person accused of a grave crime could compel the exclusion of important and relevant testimony merely by committing two felonies at the same time, or so nearly and intimately connected ‍‌‌​​​​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​​‌‌​​​​​​‌‌‌​‌​‌​‌​‌‌‌​​​​​‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‍that the one could not be proven without also proving the other. The testimony was competent, not for the purpose of proving’ another felony, but as tending to show the guilt of the accused in this case. The authorities are not conflicting on this point. (Wharton Crim. Law, § 649.) This testimony, relevant and proper in itself, was elicited by two questions propounded by a juror; and this asking questions by a juror is alleged as error by the counsel for appellants, who have apparently overlooked the fact that it was done by their own consent, as shown by the record.

*1102. opinions of witnesses, not experts. It is insisted that witnesses were allowed to give their opinions without having shown themselves competent; and two instances are pointed out. In the testimony of Randall, it was on cross-examination by defendants that the testimony was brought out, and no exception taken in any ° ’ , , way thereto. In Avery s testimony, the witness stated that in his opinion the defendant Folwell’s wagon made the track that was followed. This testimony the defendants moved to have struck out, which the court refused to do. It is very evident that the testimony could have had little or no weight with the jury; still it may possibly have had enough to make it necessary to examine the question raised. It is true, as a general rule, that witnesses are not allowed to give their opinions to a jury, but there are exceptions. In many cases they are the best evidence of which ‍‌‌​​​​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​​‌‌​​​​​​‌‌‌​‌​‌​‌​‌‌‌​​​​​‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‍the nature of the case will admit, cases where nothing more exact than an opinion can be obtained. Duration, distance, dimension, velocity, etc., are often to be proved only by the opinion of witnesses, depending as they do on many minute circumstances which cannot fully be detailed by witnesses. (See note in case of Poole v. Richardson, 3 Mass., 330.) Questions of science, skill, or judgment, are also of this description. And where, as in this case, the witness knew the wagon of Folwell, the peculiarity of its construction, and that one wheel was dished, the whole wagon making a much narrower track than common, and the dished wheel making besides a very irregular track, and where he also testifies that he has followed the track for miles, noticing its peculiarities and measuring its width, we do not think it was error to permit his opinion to go to the jury, who, having a knowledge of its groundwork, can judge of its value. The question was not one of science, nor was the witness an expert. After giving the facts he gives only the conclusion he deduced from them; and as it was the same that the jury must have drawn from the same facts, we cannot say there was error therein. (1 Wharton’s Crim. Law, § 45.)

*111.3.Declarations of accuses. *110Another alleged error is, that the court admitted the dec*111larations of appellants to be given in evidence, said declarations being made while they were in custody, and y. n0£ ]3ejng first shown that they were voluntary. It is not necessary to ‍‌‌​​​​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​​‌‌​​​​​​‌‌‌​‌​‌​‌​‌‌‌​​​​​‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‍examine the law on this question, for the facts are not such as to demand it. The record does not state that all the evidence is in the bill of exceptions; and as the testimony to show that the declarations were voluntarily made is for the judge only, to enable him to determine whether the declaration was a voluntary one, we cannot say that such testimony was not given. It is alleged that the ■evidence was not confined to the issue, and that the rule requiring it to be so limited was repeatedly violated; but no .specific instance is pointed out, and we think none exists. Upon a careful consideration of the whole case, we perceive no error that would justify us in reversing the judgment.

All the Justices concurring.