136 P. 788 | Utah | 1913
The defendant was convicted of burglary in the third degree — breaking into a tent in the daytime — and appeals.
Near Schofield, some five tents in a row, numbered from twenty-one to twenty-five, and from ten to one hundred feet apart, were maintained and occupied by miners working in a mine near by. Tent twenty-five was burglarized. It was occupied by two miners, who, as they testified, at about seven o’clock in the morning locked the door and left the tent to go to work. That tent was about one hundred feet from a highway to the west of it. Two tents to the east of tent twenty-five, and about one hundred‘feet from it, was tent twenty-three. That tent was occupied by the defendant and about fourteen other miners and a cook. The miners of that
A witness for tbe state, a grocer, testified tbat tbat morning at about nine o’clock be went to tbe front door of tent twenty-five to deliver a can of coal oil. He unlocked tbe door with a key tbe occupants bad put to one side, and then tried to push tbe door open. Some one on.the inside'held it, and said: “Hello.” Tbe witness said: “Hello, there. I have some stuff to deliver here.” Tbe person on tbe inside: “Get out! Go on and tend to your business.” Tbe witness: “I have some stuff to deliver here.” Tbe person on the inside : “Get out! Do you want to get in my bouse ?” Tbe witness left without opening tbe door, or seeing tbe person on tbe inside, and went up tbe street a hundred yards or more, and there talked a little while with some one living in a house near by, and then returned to tent twenty-five. On bis way back be saw tbe defendant at tbe rear of tbe tents, bareheaded, and without a coat or vest. He testified tbat be did not see tbe defendant come out of tent twenty-five, and while talking with such other be could not see it, and did not watch it, nor did be know or notice if persons were in or about tents twenty-four; twenty-two, or twenty-one. Just where the defendant was when be saw him is not definite. On direct examination, in response to questions asked him, tbe witness testified: “I saw him come from tbe behind. Q. Where did be come from ? A. There was two tents together, and be came from tbe south, you know. (Tent 25 was west of tent 23.) Q. He came from where? A. South from tbe tent 'where I was to deliver tbe stuff.” On cross-examination be
The defendant testified that he had lived at tent twenty-three for about seventeen months; that he had known the grocer for about a year from seeing him deliver merchandise at the tents, but he had never talked with him; that several days before the time in question he was hurt in the mine and laid off, staying about his tent; that he was not in tent twenty-five and denied he committed the offense; that he was at or near the rear of his tent on the occasion testified to by the grocer, but was then returning from a closet in the rear and to the south of the tents, and from gathering sticks for a fire, and that he then saw the grocer pass along in front. He further testified he could not talk English. The record shows his testimony was given through an interpreter.
At the conclusion of the state’s case, and at the conclusion of all the evidence, the defendant asked, that a verdict be directed in his favor on the ground that the evidence was not sufficient to connect him with the offense. The motions were denied and the case submitted to the jury, who found the defendant guilty.
The state, to support the verdict, points to but one thing— the testimony of the grocer (1) that he recognized the defendant’s voice in the tent, and (2) shortly thereafter saw him in the rear, not of tent twenty-five, but between tents twenty-two and twenty-three, or twenty-three and twenty-four, coming from the south; tent twenty-five being to the west. The second may readily be dismissed. Had the defendant not resided there, had he been a stranger, and not there in pursuit of some proper calling or business, his unexplained presence about the tents or in the vicinity where the offense was committed shortly before or after its commission might be significant, and give rise to the inference of more or less weight that it was he who committed the offense.' But, residing as he did
Portions of the testimony of the grocer were somewhat positive that the voice he heard in the tent was that of the defendant, other portions that he was not certain, and that he would not swear that it was the defendant. But the weakness, or insufficiency of the testimony does not lie alone in that. Here, the witness, though he testified that he could tell whose voice he heard, and that it was the defendant’s voice, yet was not shown to have previously talked with him or heard him tails:; nor was it shown that he had any previous knowledge whatever of, or was familiar with, the defendant’s voice; or that the voice he heard had any peculiarity, or was in any particular different from the voice of others. Nor was the witness in any respect required to show anything upon which his belief, or judgment, or opinion, was based, except the bare statement that he knew the
We think the court ought to have granted the motion to direct a verdict in the defendant’s favor. The judgment is therefore reversed, and the case remanded for a new trial.