43 P. 66 | Idaho | 1895
The defendant, Watson M. Nesbit, Jr., was on the ninth day of August, 1894, jointly indicted with his father, Watson M. Nesbit, Sr., for the crime of grand larceny. The indictment charged that on October 5) 1893, the defendants did feloniously steal, etc., twelve twenty-dollar gold pieces, three
’ The facts, as they appear from the record, are substantially as follows: Watson II. Nesbit, Sr., on or about the eighth day' of September, 1893, arrived at Placerville, Idaho, from Utah, and remained there over night with Thomas Mootry, Jr., and the next day went with him to Quartzburg, when said Mootry placed him in charge, as superintendent, of the mines there being operated by the Gold Hill Mining Company, the owners of which were Thomas Mootry, Jr., and David and W. A. Coughanour. Watson M. Nesbit, Jr., arrived in Quartzburg from Utah on the fourteenth day of September, 1893, and went to work for said companj', under his father, as superintendent. He had charge of the cyanide plant, did assaying, etc. And it further appears that shortly after said Nesbit, Sr., was appointed superintendent of said company, several other men arrived from Utah, and went to work for said company; that the complaining witness, William Frame, had been foreman of said company for a long time prior to the said appointment of Nesbit, Sr., and was removed therefrom without his (Frame’s) request or resignation. The company owned a Tilton- & McFarland safe, which was situated in what is called the “old office” of the company, a new-office having been built adjoining the old one, and the old one turned into an assay office. Said William Frame had, while foreman of said company, charge of said office and safe, and on the appointment of Nesbit, Sr., as superintendent, he delivered the keys of and possession of said office and safe to said Nesbit, Sr. Some time thereafter the witness Frame got the key to the safe from Nesbit, Sr.,, and opened the safe, and put therein the •watches and rings referred to. Nesbit, Sr., placed his son (this defendant) in charge of said assay office, and gave him the key
As to the contention that the verdict is contrary to the evidence: The rule is well established that if the evidence is conflicting, and there is any evidence to sustain the verdict, it will not be disturbed. (United States v. Camp, 2 Idaho, 231, 10 Pac. 226; People v. Ah Hop, 1 Idaho, 698; State v. Jorgenson, 3 Idaho, 620, 32 Pac. 1129; State v. O’Brien, 3 Idaho, 374, 29 Pac. 38.) In People v. Vance, 21 Cal. 400, the court says: “In order to justify the appellate court in setting aside-a verdict, on the ground that it is opposed to the evidence, the evidence must be so overwhelming against the verdict as to justify the presumption that it was rendered under the influence of passion or prejudice.” When tested by these rules, is the verdict sustained by the evidence? There is no evidence whatever tending to identify the $100 silver certificate •or note, or the gold coin of the United States — the former found on the person of Nesbit, Sr., and the latter on the person of Nesbit, Jr. — as the property alleged to have been stolen, and belonging to William Frame. The case seems to have turned on the evidence as to the identification of said English sovereign, which sovereign is before this court as an exhibit.
The said Erame, as a witness for the state, testified that he had been in the employ of the said company for some twenty years as miner and foreman, and had charge of said office, safe, etc., and -had slept in said office for years prior to his discharge by Nesbit, Sr.; that he quit work on the last of September, 1S93, some five days before the alleged robbery or theft; that on the first Tuesday after October 1, 1893, he went from Quartzburg to Horseshoe Bend, remained there one day, and returned home the day following, or, as we understand it, the day preceding the night of the robbery. He testified as follows: “When I left, I had some gold coin, a $100 bill, two watches, and three rings in the safe. Can’t say how much coin there was. I never thought I had less than $300 in money in the safe. I did think it was about $400. It might have been $500. There were twenty-dollar, ten-dollar and five-dollar
Recurring now to the. identification of the money stolen, the foregoing is all of the evidence touching the identification of the money which the defendant was convicted for stealing. 'The evidence utterly fails in the identification of the $100 bill as the one 'lost by witness Frame. Frame testified that: “I can’t say. It looks like it. It is for the same amount, but I can’t say whether it is the same one or not. I am not certain «bout it at all:” And, as to the identification of United States gold coin, he testified : “This gold coin [referring to- that taken from Nesbit, Jr., by the sheriff] here is all alike, like greenbacks, hut it all looks the same as the money I saw thrown on top of the documents spoken of in the safe. It looked just the same as my money did.” This is no identification whatever of said gold coin as being that lost by the complaining witness. It is hot claimed that any of the United States gold coins had any distinguishing marks on them, but it is shown that they have not. The witness testified, they are all alike; that they looked like his money; not that they were his. A very weak attempt
The defendant testified in his own behalf that he brought said gold coin from Utah, and also from whence he got it; that, he had carried money several times as he was carrying that when arrested by the sheriff; that he was on his way to Utah, and carried it thus for safety; that he had a small collection of old coins; and that he had had said sovereign for more than three years — and is corroborated as to these facts by his father, sister, two brothers, his betrothed, and by the two other witnesses, not related to him. In- regard to the $100 bill, Nesbit, Sr., testified as to circumstance and date of his drawing $1,900 out. of the Deseret National Bank at Salt Lake City, Utah, and that the $100 bill was a part of that money, and is corroborated as to those facts by one witness.
Conceding that there is circumstantial evidence against thadefendant tending to establish his guilt, those circumstances can be and are as reasonably explained on other hypotheses than.that of defendant’s guilt, or -as perfectly consistent with defendant’s innocence, and for that reason a new trial should have been granted. But, in our view of the case, there is no-evidence to sustain the verdict; and as the record shows that Frame is the only witness who could identify the money alleged to have been stolen, and his testimony is full and complete of all he knew in that regard, it would only result in an acquittal of defendant if a new trial should be ordered,
The judgment of the district court is reversed, and it is ordered that the defendant be discharged, and that the exhibit consisting of United States gold coin and said English sovereign be delivered by the clerk of this court to the defendant or his attorneys, and that order for release of defendant and remittitur issue at once.