16 Nev. 79 | Nev. | 1881
By the Court,
Appellant was convicted of the crime of burglary in entering, at Elko, a smoking-car of the Central Pacific railroad company, attached to an eastern-bound train of said company, with intent to commit petty larceny by burglariously and feloniously taking, stealing, and carrying away one overcoat, together with certain articles in the pockets thereof, the property of one A. W. Mercer, and of the value of twenty-five dollars. He appeals from the judgment.
■ There is no complaint, nor was it objected at the trial, that the certificate was not wlia.t it purported to be, or that it was incompetent evidence of the fact sought to be proved thereby. It was admitted without objection. Prom its admission under such circumstances, the jury had a right to presume the instrument was what it purported to be— proof of the incorporation of the Central Pacific railroad company. Confessedly, then, there was ample evidence admitted upon this point to support the verdict and judgment, and there is none against it. We must, therefore, consider it as established that the company was, in' fact and in law, a corporation.
• Conceding, then, for the sate of the argument, that the certificate shoiild have been read to the jury, still, the failure to do so, does not' justify us in disturbing a judgment, which, upon this point, is fully supported by the facts. If there was an error it was one without prejudice t'o the defendant. If the certificate had been read, the verdict, so far as this question is concerned, ought to have been what it was.
2. There was- sufficient evidence that the car was the property of the Central Pacific Railroad Company, as alleged in the indictment. It was upon the track of that company, attached to its eastern-bound train, and in its possession, occupancy, and control. Such being the facts, the ownership was properly laid in the Central Pacific Company, although the legal title was in another, which fact, however, from, the'testimony of Mr. Coddington, is at least improbable, although, on cross-examination, he was unable to testify positively on the subject, upon his own knowledge. (2 Bish. Crim. Proced., sec. 138; Markham v. The State, 25 Ga. 52.)
We think the certificate of the justice shows that the witness was examined and cross-examined in the presence of appellant, and that it is otherwise sufficient to warrant the admission of the deposition under proper circumstances.
It is urged by counsel for appellant that it was error to admit the deposition, without showing that the witness, Mercer,.entered into a written recognizance to appear and testify,at the trial, as required by the statute (0. L. 1795), which provides, in substance that, “ on holding the defendant to answer, the magistrate shall take .from each of the • material witnesses examined before him a written recognizance that he will appear and testify at the trial court, or that he will forfeit the sum which may be ordered by the court.” In view of our conclusion upon one point of objection made by counsel, it becomes necessary to decide this question: Was it the intention of the legislature of 1867 to make the giving of a recognizance a condition precedent to an admission of the deposition, when the witness is sick, out of the state, dead, or when his personal attendance ca-n not be had in court? (0. L. 1779.) No authorities are cited by either side, and so far as we aré informed, the question is res integra.
In the criminal practice act of 1861 (sec. 167) the magistrate was required to take from each of the material witnesses examined before him, on behalf of the people, a written recognizance to appear and testify at the trial, or that he rvould forfeit the sum of five hundred dollars. (Stat. 1861, 453.) At that time the statute made no provision for the admission of depositions taken at preliminary examinations, nor was such provision máde until 1867,
Section 151 (C. L. 1779)'states the circumstances under which depositions may be used by either party at the trial, and-we can not change them by adding conditions not stated, or subtracting those specified.
Should either party induce a witness not to appear at the trial, that fact proven would, probably, debar such party from the right to use the deposition, in case the witness is out of the state, or unable to attend, on account of the acts of that party; but we think of no other case where the deposition may not be used under the circumstances mentioned in section 151.
It is the duty of the magistrate- to obey the statute in relation to the taking of recognizances of material witnesses,
Finally, it is claimed by appellant’s counsel that the court erred in aclmitting Mercer’s deposition because there was no proof that he was-“sick, out of the state, dead, or that his personal attendance could not be had in court.” We think this objection is well taken. The statute provides that, depositions taken upon preliminary examinations, reduced to writing and authenticated by the magistrate as therein required, “may be used by either party on the trial of the 'cause, * * when the witness is sick, out of the state, or when his personal attendance can not be had in court.” (C, L. 1779'.)
It admits. of no discussion that it was incumbent upon the state to show, by some'proof at least, the existence of one of the conditions stated in the statute; for it is only when the witness is sick, etc., that the right to use the deposition is given. It is not shown whether Mercer was a resident of the state or not. So far as we know, he may have resided in the town of Elko, where the case was tried.
. The only evidence given as a foundation for the introduction of the deposition in question, is as follows: John M. Lane, constable, said: “ Saw a man in Elko on the evening of the fifth day of November, 1880, who said his name was A. W. Mercer. He went by the name of A. W. Mercer here. I heard him testify before the committing magistrate on the hearing upon this case. He had a ticket for Chicago; said he was going to Kankakee, Illinois. I saw him get on the cars going east on the evening of "the sixth of November, 1880; have not seen him since.” There was then no proof that the witness was sick, or dead, .and we think there was nothing to show that he was out of the state', or that his personal attendance could not have been had in court. The cause was tried November 26, and he left Elko on the cars on the sixth of the same month. He had time enough,
It is so ordered.