State v. Savage

60 P. 610 | Or. | 1900

Lead Opinion

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. It is contended by defendant’s counsel that the indictment charges grand larceny and larceny from a building, and that the court erred in overruling the demurrer to the duplicity. The statute (Hill’s Ann. Laws, § 1273), in prescribing the manner of stating the facts constituting an offense, provides that the indictment must charge but one crime, and in one form only ; and (section 1383), that in all cases the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment. The statutes which it is claimed the indictment charges a violation of, as far as applicable herein, are as follows : Section 763. “If any person shall steal any goods or chattels * * * the property of another, such person shall be deemed guilty of larceny, and, upon conviction thereof, if the property stolen shall exceed in value thirty-five dollars, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years ; ’ ’ and section 1764: “If any person shall commit the crime of larceny in any * * * office * * * such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than seven years.” It is argued that larceny in an office always comprises petit larceny, under the assumption that the property taken is of some value, but that larceny in such building does not necessarily include the taking of goods or chattels, the value of which would render the offense grand larceny, and that the defendant, having been charged in the indictment with the crime of larceny in an office, could not be found guilty of grand larceny. Larceny at common law was classed as simple larceny, and larceny accompanied with violence or putting in fear, which was denominated “robbery.” Simple larceny was subdivided into grand larceny, which consisted in the felonious taking of goods above the value of twelvepence, and petit larceny, in which the valúe of the property so taken was twelvepence or under : 1 Hale, P. C. 503.. Simple larceny was unaccompanied with any atrocious circumstance, while mixed or compound larceny included the aggravation of a taking from one’s house or person: 4 Bl. Com. 229. According to this classification, larceny in an office is plain theft, aggravated by the circumstance of the place in which the personal property feloniously taken is kept or stored, and necessarily includes simple larceny; and, as simple larceny embraces within its subdivisions grand larceny; it would seem to follow, notwithstanding a conflict in the decisions (Stone v. State, 115 Ala. 121, 22 South. 275) that, in those states in which grand and petit larceny are designated as different degrees of the same offense-, larceny in an office, when the value of the property so taken brings, the crime within the higher grade, necessarily includes grand larceny.

But, however this may be, the legislative assembly of this state has never subdivided simple larceny, or by any act denominated such crimes as grand or petit larceny. The statute, section 1763, in’ prescribing the mode of punishment, provides that, if the property stolen shall exceed in value «$35, the party convicted thereof shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, but, if the property feloniously taken shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $25 nor more than $100. Under section 1764, larceny of goods in a building rendei's the person convicted thereof subject to punishment by imprisonment in the penitentiary not less than one nor more than seven years, regardless of the value of the property feloniously taken. It will thus be seen that the grade of the offense is not measured by such value, nor by the penalty imposed for a violation of the property rights of another, but is determined by the circumstances which aggravate the taking. In an indictment for lai’ceny in an office the value of the property stolen is, therefore, immaterial, but when such value is alleged the party accused of the crime is thereby notified in this respect. In State v. Hanlon, 32 Or. 95 (48 Pac. 353), it was held that, under an indictment charging larceny from a shop, a defendant might be convicted of simple larceny, if the indictment alleged the value of the personal property taken. See, also, Fanning v. State, 12 Lea, 651. The indictment herein having charged larceny in an office, the specification necessarily included simple larceny; and, the value of the property stolen having been averred, no error was committed in overruling the demurrer .

2. The defendant, in support of a motion for a change of venue, filed an affidavit in which he stated, in effect, that immediately after the alleged larceny of the money mentioned in the' indictment the Pacific Express Company offered, by public advertisement, a reward of ten per cent, of the amount recovered, and the sum of $250, for the conviction of each person implicated in the alleged theft; that T. J. Driver, Sheriff of Wasco County, received or claims to be entitled to the sum of $1,400 for recovering $14,000 from the possession of the defendant Frank Klein, and that he expects to secure $250 additional in the event of defendant’s conviction ; that Driver is very bitter and vindictive against defendant, having frequently expressed the opinion that he was guilty of the offense charged, and, as deponent verily believes, will use every means within his power, lawful or otherwise, to secure such conviction ; that Driver, by reason of his prejudice, interest, and activity, is disqualified to serve any process in the action, and that the officers associated with him as deputies are also disqualified for the same reason ; that this cause has been much talked about, as deponent verily believes and is credibly informed, throughout said county, and great difficulty will be encountered in securing qualified jurors ; and that a fair and impartial trial cannot be had in said county. T. J. Driver filed a counter affidavit, in which he denied that he received or claimed that he was entitled to the sum of $1,400 as a reward, and further stated that he had been paid by the Pacific Express Company all the reward he asked, and did not expect to receive $250, or any part thereof, in the event that defendant was convicted; that he was not bitter or vindictive against the defendant, and any opinion he may have expressed as to his guilt was founded upon the facts which came to his knowledge, and not from any feeling against him ; that he was not disqualified from selecting a fair and impartial jury in said cause, and had no desire to see the defendant tried by a partial or prejudiced jury, but, if it should be his duty to summon jurors in said cause, he would select them conscientiously, and endeavor to secure fair and impartial men, who had formed no opinions in said matter; that his deputies were also fair and impartial, and would have no reason to select or summon any other than fair and impartial jurors to try said cause ; and that he believed a fair jury could be secured in said cause without great delay or unusual expense. The affidavits of others in support of and opposed to the change of venue having been filed, the motion was overruled, and it is contended that the court erred in this respect. The statute pro-, vides that in an action for a felony, when the cause is at issue upon a question of fact, the court may order the place of trial to be changed when it appears by affidavit, to the satisfaction of the court, that a fair and impartial trial cannot be. had in the county where the action is commenced, and that the motion is not made for delay: Hill’s Ann. Laws, § 1222. The affidavits filed in support of the motion do not state that the application for a change of venue is not made for delay ; but that fact may appear therefrom without a positive statement to that effect: Packwood v. State, 24 Or. 261 (33 Pac. 674). Giving to the affidavits in support of the motion such liberal construction, we are confronted with the principle that, an application for a change of the place of trial is addressed to the sound discretion of the trial court, and that its action in granting or denying the motion therefor will not be reviewed on appeal except in case of an abuse of such discretion, to the substantial injury of the accused : State v. Pomeroy, 30 Or. 16 (46 Pac. 797). An examination of the bill of exceptions fails to convince us that there has been any abuse of such discretion.

3. The regular panel having been exhausted, and only six jurors secured, defendant’s counsel, based upon the affidavits filed in support of the motion for a change of venue, protested against the selection of a special venire by T. J. Driver, the then sheriff of the said "Wasco County, on the ground that he was interested in the result of the trial, and that his prejudice precluded his selecting impartial persons to serve as jurors, and moved the court to appoint some qualified person to choose said jurors ; but, the protest having been disregarded and the motion overruled, a special venire was issued, in pursuance of which the said sheriff selected from the body of the county talesmen necessary to complete the jury, whereupon defendant’s counsel moved the court to set aside the array, but the motion was overruled. It is urged that the shexiff, though not a'party to the action, was interested in the result thereof, and hence the court erred in not appointing some qualified person in his stead to select the talesmen, and also erred in refusing to set aside the ax-ray, a part of which had been thus selected. At the common law, when a sheriff was interested in the result of a suit, the court dispensed with his services in summoning talesmen for a special jux-y, and committed that duty to the coroner; and, if a special jux-y were selected by a sheriff who was thus interested, the array, xxpon challenge, was quashed : Murfx-ee, Sher. § 388 ; 1 Thompsoxx, Trials, § 32. A challenge to the panel havixig been abolished in this state, no error was committed by the court in refusing to quash the arx-ay : Hill’s Ann. Laws, § 181.

4. The statute provides, however, that, whenever the x-egular panel becomes exhausted for any reason, the coux-t may, in its discx-etion, direct the sheriff to summon forthwith from the body of the coxxnty persoxxs whose names are xxpon the tax roll, and having the qualifications of jurors, to serve in a cause then pending: Hill’s Anxx. Laws, §§ 180, 968, as axnexxded by the act of Februai-y 21, 1893 (Laws, 1893, p. 84). The coroner has power, and it is his duty, to execute any process in any action when the sheriff is a party : Hill’s Ann. Laws, §§ 1027, 1028. And process in any action may be executed by an elisor when the sheriff and coroner are parties, when either of said officers is a party and the process is against the other, or when the offices of sheriff and coroner are vacant: Hill’s Ann. Laws, § 1058. It is argued by counsel for the state that these statutory provisions impose upon the sheriff of a county the duty of selecting talesmen, and, under the maxim that the expression of one is the exclusion of the other, the court is without authority to appoint an elisor, except in certain contingencies, none of which existed in the case at bar. In response to such contention, defendant’s counsel cite the U. S. Constitution, Article VI, which guaranties to the accused the right to a public and speedy trial by an impartial jury, and Const. Or. Article I, § 11, which provides that “in all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed,” and argue that the right thus guarantied might be violated or rendered of little avail if the persons by whom the accused was tried were selected by a sheriff who was interested in any manner in the result of the action, and, while our statute provides for the appointment of an elisor upon the existence of certain conditions, such contingencies, upon principle, cannot be exclusive, and the court must of necessity possess inherent power to correct such an abuse ; that, when jurisdiction is by the organic law of the state conferred on a court, all the means to carry it into effect are also given, and, in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by the code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit thereof (Hill’s Ann. Laws, § 940), — and cite Aiken v. Aiken, 12 Or. 203 (6 Pac. 682), wherein it is held, in construing this section, that under our system of jurisprudence all the common-law remedies are preserved in some formj and, when a course of proceeding is not specially pointed out, any suitable process may be adopted, conformable to the spirit of the code, and further argue therefrom that, the legislative assembly not having made provision for the appointment of an elisor in case of the disqualification of a sheriff to select talesmen, by reason of his interest in the result of the action, the procedure guarantied by the organic law of the state is not specifically pointed out by statute, and, this being so, it must be the duty of the court, in the interest of common justice, when the necessities of the case demand it, to appoint some suitable person to select a special jury, in order that the accused may have an impartial trial.

Assuming, without deciding, that the authority of the court to appoint such person is clear, and that the obligation to do so is imperative, was such power evaded or duty violated in the present instance? The solution of this problem must depend upon whether the sheriff was interested in the result of the action. The mere expression of an opinion, from the facts before him, as to the defendant’s guilt, did not necessarily render him interested in the result of the action, or disqualify him from selecting talesmen: People v. Shuler, 28 Cal. 490. In Friery v. People, 2 Abb. Dec. 215, a jury having been impaneled, the accused submitted a challenge to the array, the first ground of which was that the sheriff or summoning officer had formed or expressed an opinion as to the guilt or innocence of the prisoner. Mr. Justice Wright, in commenting upon this question, says : “Plainly, the first ground of challenge was without substance. The idea that the mere expression of an opinion’by the officer designated by law .to summon jurors, as to the merits of a case that may chance to be on the calendar of a court for trial, or in respect to the guilt or innocence of a party under indictment, is matter for challenge to the array, is as absurd as it is novel.” The sheriff is the chief executive officer and conservator of the peace of the county : Hill’s Ann. Laws, § 999. It is thus incumbent upon him, within the boundaries of his county, to render to the prosecuting officers all the assistance reasonably in his power to suppress crime and to punish criminals; and, if he entertains the opinion that a person suspected or charged with the commission of an offense is really guilty, his conscience furnishes a justification for the effort he puts forth in the performance of his duty. The sheriff says he received, as a reward, all the compensation he demanded or expected for securing the money feloniously taken, and denies that he was to receive, or that he expected to secure, any sum whatever in the event of the defendant’s conviction. The sheriff’s interest- in the result of the action was thus in issue, and the court, by overruling the motion to appoint an elisor, in effect determined the question in his favor. The evidence upon this issue is made apart of the transcript, an examination of which, in the light of the decision thereon, fails to convince us that any error was committed in allowing the sheriff to select the talesmen.

5. John Adams, having been selected as a juror by Sheriff Driver upon a special venire, said upon his voir dire examination that he had read in the Daily Chronicle an account of the defendant’s preliminary examination, had heard the matter very freely discussed, and had talked about the ease; that as to the guilt or innocence of the defendant he had a pretty well settled opinion, which it would require evidence to remove ; and in answer to the question, “You feel that you would not be a fair and impartial juror?” he said, “No ; I do not think I would.” On cross-examination, however, he said he did not think that the paper purported to publish the questions propounded to the witnesses, nor the answers which they gave ; that such newspaper report could not be taken or relied upon at the trial as sworn testimony, against which it would have no weight; that, if accepted as a juror, he would base his verdict entirely upon the testimony given at the trial; and in answer to the question, “Would you have any trouble in laying the newspaper report aside, and basing your verdict on the sworn testimony?” he said, “No.” The court, having overruled the challenge for cause, accepted the juror, and the defendant excepted. Our statute provides that on a trial of a challenge for bias, if it should appear that the juror challenged has formed or expressed an opinion upon the merits of the case, from what he has heard or read, such opinion is not sufficient to sustain the challenge, but the court must be satisfied from all the circumstances that the juror cannot disregard such opinion and try the issue impartially : Hill’s Ann. Laws, § 187. In the trial of a challenge for actual bias, the court below, having heard the testimony of the juror, and noted his manner and bearing while under examination, is much better able to judge of his power to disregard any opinion he may have formed or expressed from what he has read or heard than is an appellate court from an inspection of the transcript containing the questions propounded and the answers thereto. It may be that, not desiring to serve as a juror, he will, as far as possible, seek to magnify his preconceived opinion, hoping thereby to escape the duty which the law enjoins upon him ; but having said that he can lay aáide such opinion and try the issue impartially, and the court being vested with discretion in such cases, its decision will not be reviewed, except for a manifest abuse thereof : State v. Saunders, 14 Or. 300 (12 Pac. 441); Kumli v. Southern Pac. Co. 21 Or. 505 (28 Pac. 637) : State v. Brown, 28 Or. 147 (41 Pac. 1042); State v. Kelly, 28 Or. 225 (52 Am. St. Rep. 777, 42 Pac. 217); State v. Steeves, 29 Or. 85 (43 Pac. 947); State v. Olberman, 33 Or. 556 (55 Pac. 866). Not being able to discover any abuse of such discretion, the action of the trial court in accepting said juror will not be disturbed..

6. J. W. Jackson, having been called as a witness for the state, was permitted to testify, over defendant’s objection and exception, that at The Dalles, Oregon, some time in- the spring of 1894-, the defendant and Frank Klein tried to persuade him to go with them to a place below The Dalles, called £iHog Canyon,” to hold up a passenger train which was expected to arrive from Portland at about 11 or 12 o’clock that night, but he refused to join in the enterprise.^ This witness, on being interrogated respecting the character of the-train he was invited to intercept, was asked if it was an express train, to which he replied : “No, sir ; they never said anything to me about holding up an express train. ” It is maintained that the invitation to participate in an unlawful undertaking, so imputed to the defendant, having been made four or five months prior to the larceny charged in the indictment, and not having related to the robbery of the Pacific Express Company, from which the money is alleged to have been stolen, the testimony so received was of a collateral fact not con: nected in any manner with the crime with which the defendant is charged, apd tended to prejudice him before the jury, and hence the court erred in its admission. The rule is well settled that evidence of collateral facts tending to show that a person charged with a crime has committed independent offenses of like character is generally inadmissible: Wharton, Cr. Ev. (9 ed.) § 30. Thus, upon a trial of an indictment for assault with intent to kill, evidence showing the commission by the prisoner of another similar assault at a different time and place, and upon a different person, is not competent: People v. Gibbs, 93 N. Y. 470. So, too, in a trial on an indictment for riot, evidence of participation in riotous assemblages in previous years is not admissible: State v. Renton, 15 N. H. 169. In a trial upon an indictment for larceny, testimony of a theft other than the one charged, and committed shortly before, is not admissible : People v. Tucker, 104 Cal. 440 (38 Pac. 195). “From the nature and prejudicial character of such evidence,” says Mr. Justice Agnew, in Shaffner v. Commonwealth, 72 Pa. St. 61 (13 Am. Rep. 649), ‘ ‘it is obvious it should not be received unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner.”' The testimony of all the witnesses concerning a material fact should be considered in its entirety, and nqt by an inspection of its integral parts. If it were not for this.rule, which permits the proof of circumstances tending to establish the material fact.in issue, Jackson’s testimony would seem to be inadmissible, because he does not connect the defendant’s alleged invitation to participate in the unlawful enterprise with the robbery of the Pacific Express Company.

If the jury believed the testimony of this witness, they inight have reasonably inferred, from a consideration of other testimony hereinafter adverted to, that the robbery of the Pacific Express Company was contemplated by the defendant when he invited Jackson to go to Hog Canyon to hold up a passenger train; H. Beckwith, a witness for the state, testified that for seven or eight years prior to the larceny charged in the indictment the Pacific Express Company was the only company engaged in the express business on the railroad of the Oregon Railway & Navigation Company between Portland and The Dalles, and that express matter was carried on passenger trains in the baggage car. Frank Klein, the co-defendant, having pleaded guilty to the indictment, appeared as a wit-witness for the state, and testified that he and Savage talked about holding up the train and robbing the express ; that they planned to send two men to Mosier, a railroad station about twelve miles west of The Dalles, who were to get on the blind baggage, and to station two men at Hog Canyon, who were to stop and rob the train at the latter place; and that they had talked with the witness Jackson about such scheme. Klein’s testimony is corroborated by that of Walter Rowe, who says that it was agreed between them to rob the express car at Hog Canyon. John Hawthorn, a witness called by the state, testified that in May, 1894, Klein and Savage told him there -was money coming at that time on the train, and proposed that they hold it up at Hog Canyon. This testimony, if it is to'be believed, conclusively shows that Savage and his confederate had conceived the idea of robbing the Pacific Express Company, and that in pursuance of such intention they adopted plans to put it into execution, one of which was the robbery of the express car at Hog Canyon; and, having invited Jackson to join them, his testimony, in connection with the foregoing, was material; and the ground having been first laid, implicating the defendant in the commission of the crime with which he was charged, and evidence introduced tending to. show that he harbored an intent to rob an express car of the Pacific Express Company, a system was thus established connecting such intent and the alleged larceny, thereby rendering Jackson’s testimony admissible for the purpose of proving defendant’s intent, and not to show his character or to establish a substantive and independent crime :• Wharton, Cr.Ev. §§ 32,48; Strong v. State, 86 Ind. 208 (44 Am. Rep. 292); Mayer v. People, 80 N. Y. 364; Shipply v. People, 86 N. Y. 375 (40 Am. Rep. 551); Pinckord v. State, 13 Tex. App. 468; Shaffner v. Commonwealth, 72 Pa. St. 61 (13 Am. Rep. 649). Notwithstanding the trial court, in admitting evidence of other inculpatory acts, may be clearly satisfied that proof of one criminal act necessarily connects the defendant with, and affords evidence of his commission of, another crime, it is the province of the jury to reach conclusions from facts in evidence, and, this being so, it is the duty of the court, upon being so requested, to instruct the jury that evidence of collateral facts tending to show the existence of a system is admitted for the sole purpose of establishing the question of intent to commit" the particular act constituting the crime for which the defendant is being tried : Commonwealth v. Shepard, 1 Allen, 575 ; Commonwealth v. Vaughan, 9 Cush. 594. No instruction, however, was given or requested on this branch of the case, and hence the action of the court in respect thereto cannot be assigned as error : Page v. Finley, 8 Or. 45.

7. Samuel Simmons, being called as a witness for the state, testified that he and H. Beckwith found in Samuel Klein’s yard a sack containing $4,800 in gold; that he found another sack in a cesspool under a house occupied by Chinese, containing $7,500 in gold; and that Driver, in his presence, dug up two sacks of silver containing $498 and $1,000,- respectively. Upon cross-examination this witness was asked the following question in relation to searching the premises of Samuel Klein: “Had you not been up there to search for this money before you got any directions as to its whereabouts from Klein?” An objection having been interposed on the ground that it was not proper cross-examination, counsel for defendant made the following statement: “Wé expect to show by the cross-examination of this* witness that he did not go up to search for this money at the time hex states, totally, if at all, by the direction of Klein, or any persons, or any information got from him, but that he had been up there one or more times, searching upon the premises, upon other information, and that he had other information leading him to go up there and make the search, entirely independent of anything that Klein had told him.” The objection having been sustained, an exception was allowed. Upon further cross-examination defendant’s counsel propounded the following question to the witness : ‘‘Were you not up to Klein’s place to search for this money before young Klein had told you anything about its whereabouts, and did you not see Sam Klein there at that time, and in making search for the money, and while you were making search for it in the yard, didn’t Sam Klein stand immediately over where you found the money, and try to induce you to take up the walk and search under the walk, and was it not from that circumstance that you finally discovered the whereabouts of the money?” An objection having been sustained to this question on the ground that it was not proper cross-examination, an exception was allowed. The statute permits an adverse party to cross-examine a witness as to any matter stated in his direct examination or connected therewith; but, if he examine him as to other matters, such examination is subject to the same rules as a direct examination : Hill’s Ann. Laws, § 837. Defendant’s counsel, taking advantage of the latter clause of this section, called Simmons as a witness for the defense, who, on direct examination, testified that prior to finding the money he had been at Klein’s searching for it. This witness, on his direct examination for the state, made no statement tending to show by whose direction he went to the premises of Samuel Klein to search for the money, notwithstanding which it is argued that a witness on cross-examination may be asked any question that tends to test his accuracy, veracity, or credibility, under which rule answers to the questions propounded to the witness were permissible. In Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093), in construing Section 837, Hill’s Ann. Laws, it was held that, within the rule there prescribed, the cross-examination should be liberal, and properly extended to other matters that tend to limit, explain, or modify the facts stated on direct examination, provided they were directly connected therewith. To the same effect, see Sayres v. Allen, 25 Or. 211 (35 Pac. 254); Maxwell v. Bolles, 28 Or. 1 (41 Pac. 661); Kenny v. Walker, 29 Or. 41 (44 Pac. 501); Oregon Pottery Co. v. Kern, 30 Or. 328 (47 Pac. 917). Applying this liberal rule to the testimony given by Simmons the questions propounded to him on cross-examination did not relate to, nor were they in any manner connected with, the testimony given on his direct examination.

8. And, further, ho error was committed in sustaining objections to such questions, unless they tended to test the accuracy, veracity, and credibility of the witness, and were admissible for that purpose. The rule is well settled in this state that if a witness in his direct examination is not permitted to answer a question, and the answer desired is not apparent from the form of the interrogatory, such question, supplemented by a statement of the testimony reasonably expected in response thereto, must be incorporated in the bill of exceptions, to render the action of the court available in sustaining an objection thereto: Kelley v. Highfield, 15 Or. 277 (14 Pac. 744); Tucker v. Constable, 16 Or. 407 (19 Pac. 13) ; State v. Gallo, 18 Or. 423 (23 Pac. 264); Craft v. Dalles City, 21 Or. 53 (27 Pac. 163); State v. Bartmess, 33 Or. 110 (54 Pac. 167). The object of requiring a statement of the facts expected to be proved by a witness who is not permitted to testify is to advise the court, so as to permit it to judge of the relevancy and materiality of such facts : Stanley v. Smith, 15 Or. 505 (16 Pac. 174). If it be assumed that on the cross-examination of a witness such declaration is required, an examination of the statement so made by defendant’s counsel, in compliance therewith, does not disclose that the questions were propounded to Simmons for the purpose of testing his accuracy, veracity, or credibility, and they were not admissible for that purpose.

9. It is contended that the court erred in admitting testimony tending to show that the Pacific Express Company was the owner of the money alleged to have been stolen, and in charging the jury to the effect that, if they believed said company was at the time of the alleged larceny doing business in this state as a corporation organized under the laws of Nebraska, it was not material that such company was regularly organized or had complied with the laws of this state concerning the transaction of its business ; it being sufficient to warrant a conviction if it appeared that said company was doing business in this state as a corporation. It is argued that notwithstanding the indictment charged that the money alleged to have been stolen was the property of the “Pacific Express Company, a corporation incorporated under the laws of Nebraska,” the state was permitted, over defendant’s objection and exception, to offer in evidence what purported to be articles of incorporation of a company under the name of “The Pacific Express Company,” and that, the allegation of ownership being material, the variance in the corporate name was fatal. An examination of the indictment shows that no quotation marks are used in stating the name of the corporation from which tire money is alleged to have been feloniously taken. The articles of incorporation offered in evidence contain the following recital: “The name of said company shall be ‘The Pacific Express Company,’ and the place of transacting its business shall be the City of Omaha, in the County of Douglas and State of Nebraska.” Defendant’s counsel, in support of the point for which they contend, cite the case of McGary v. People, 45 N. Y. 153, in which the accused was tried upon an indictment charging him with setting fire to and burning a building belonging to the Phcenix Mills Company, a corporation, etc.; and, evidence having been admitted showing that the name of the corporation was “The Phoenix Mills of Seneca Falls,” it was held, in reversing a judgment of conviction, that the misnomer rendered the variafice fatal, notwithstanding the corporation was generally known by the name stated in the indictment. The opinion in that case was written by Allen, J., in which Church, C. J., and Sapallo, J., concurred. Mr. Justice Andrews concurred in the result only, and on another ground for reversal stated in the opinion, while Grover, Peckham, and Folger, JJ., dissented. It will thus be seen that the opinion on the main point, not having been concurred in by a majority of the court, is entitled to no more consideration than the argument of a dissenting opinion. The variance in that case is much more apparent than in the case at bar, wherein the failure to capitalize the first letter of the definite article which is made a part of the corporate name constitutes the only variance, — a difference so insignificant that the defendant could not possibly be misled thereby.

10. The indictment charges that the Pacific Express Company is a corporation incorporated under the laws of the State of Nebraska, etc. Quaere: Is such averment so essential to the description of the corporation as to require proof of more than its de facto existence, thereby rendering erroneous the court’s instruction to that effect? In McCarney v. People, 83 N. Y. 408 (38 Am. Rep. 456), the accused was charged with stealing twelve barrels of whisky, which were alleged to be the property of the “Farmers’ and Mechanics’ National Bank of Buffalo, then and there being a body corporate organized and existing under and by virtue of the laws of the State of New York.” At the trial evidence was produced which showed the due organization and existence of the corporation under the laws of the United States, by the name set forth in- the indictment. The accused having been convicted, it was held, in affirming the judgment, that the averment of incorporation under the laws of New York was surplusage that need not be proved. Mr. Chief Justice Folger, in rendering the decision of the court, says: “The averment in the indictment was that the property stolen was owned by a body corporate. It named the corporation by its true corporate name. It might have stopped there; for all that is needed in an averment of ownership in a corporation is to state the fact of ownership in a corporate body, and to give the name of the corporate owner correctly.” In Braithwaite v. State, 28 Neb. 832 (45 N. W. 247), it was held that, where property is stolen from a corporation, it is unnecessary, on the trial of the party accused thereof, to introduce the articles of association or charter of the corporation. Mr. Justice Maxwell, in speaking of the party from which the property was stolen, says : “If it is in fact a corporation, and as such was lawfully in possession of certain property which has been stolen from it, it is sufficient to allege in the indictment or information its corporate character, and on the trial prove that it is a corporation de facto; in other words, it is sufficient to prove that it is a person in fact, without proving how it came into existence — the material inquiry being, was the property of such person stolen from it by the one accused of the larceny ?” To the same effect, see People v. Schwartz, 32 Cal. 160; Reed v. State, 15 Ohio, 217; State v. Grant, 104 N. C. 908 (10 S. E. 554); People v. Davis, 21 Wend. 309. No error was committed in giving the instruction of which the defendant complains.

11. It is contended that no competent evidence was produced tending to show that the Pacific Express Company was even a de facto corporation, and that the court erred in failing to instruct the jury to the effect that, before they could find the defendant guilty, they must be satisfied beyond a reasonable doubt, from the evidence introduced at the trial, that the Pacific Express Company was a corporation, and not a partnership or a joint stock company. Judge Thompson, in his exhaustive and valuable work on Corporations (section 8207), says' that a corporation defacto exists when there are “(1) a charter or statute under which a corporation with the powers assumed might have been engaged ; (2) a bona fide attempt to organize a corporation under such charter or statute ; (3) an actual user of the corporate powers, or some of them, which might have been rightfully used by such an organization.” The state was permitted to offer in evidence, over defendant’s objection and exception, Sections 123 and 124 of the Compiled Laws of Nebraska, relating to the objects and powers of private corporations, incorporated under the laws of that state, which sections were contained in a bound volume having the following inscription on the title page : “The Compiled Statutes of the State of Neb., 1881 (4 ed.) , with Amendments, 1882 to 1889. All Laws of a-General Nature in Force November 1, 1889. Published under Authority of the Legislature, by Guy A. Brown and Hiland PI. Wheeler.” The volume had no seal or imprint of a seal, and contained no evidence of authenticity, except the following certificate :

“Lincoln, Nebraska, October 26, 1889.

I, Guy A. Brown, appointed by the Legislature of the State of Nebraska to compile the general laws of said state, do hereby certify that the several acts and resolutions contained in this volume are, with the exception of words contained in ( ), true and accurate copies of the original rolls on file in the office of the secretary of state of said state. Guy A. Brown, Compiler.”

The state was also permitted to offer in evidence, over defendant’s objection and exception, what purported to be a certified copy of articles of incorporation of the Pacific Express Company, under the hand and seal of G. S. Haws, Secretary of State of the State of Nebraska, and also to offer testimony tending to show that the Pacific Express Company had been engaged in the general express business in the State of Oregon about nine years ; that it employed clerks, messengers, and route and express agents, and maintained express offices in this state ; that it issued receipts for money deposited with it for transportation over the lines on which it operated, several of which receipts were offered in evidence ; that it promulgated rules, and sent them to its agents for their guidance ; that it had a president and secretary; and that H. Beckwith, its route agent, deposited for it with the State Treasurer of the State of Oregon the sum of $50,000 in United States bonds.

Our statute provides, in effect, that books printed and published under the authority of a sister state, and purporting to contain the statutes of such state, are admissible in this state as evidence of such law: Hill’s Ann. Laws, § 725. Sections 123 and 124 of the Compiled Statutes of Nebraska were therefore admissible in evidence, as were also the articles of incorporation of the Pacific Express Company; but whether such articles comply with the requirements of said sections it is not necessary to determine, for an examination thereof shows a bona fide attempt in that direction, and this, with proof of user of corporate powers by the Pacific Express Company, establishes its de facto existence. It may well be questioned whether such a degree of proof of the corporate existence of the Pacific Express Company was required, even under the very formal allegations of the indictment. In People v. Ah Sam, 41 Cal. 645, proof of the existence of a corporation known as the Chartered Bank of India, Australia, and China, was permitted to be offered by reputation that it was engaged in the banking business, and issued bank bills which passed as current in certain countries. An exception to such mode of proof having been reserved, Mr. Justice Temple, speaking for the court in affirming the judgment, says : “It would be equally an offense whether the company be actually incorporated or not, so it is acting as a corporation, and issues bank bills which are current. So, too, as a matter of identity, we think the description is satisfied by proof that the company is known as a corporate company, and is acting as such, and as such issues bills which come within the statute. The case is widely different where a suit is pending in which the legal existence of the corporation may be made an issue. ’ ’

12. It is contended that the court erred in charging the jury in its fifth and seventh instructions, relative to the measure of testimony necessary to corroborate the testimony of an accomplice, and in failing to give certain instructions requested by the defendant upon that subject. While the instructions complained of may not have been as ample as the law required, the court in other parts of its charge gave, in substance, Sections 845, 1371, Hill’s Ann. Laws, as far as applicable, and no error was committed in this respect: State v. Anderson, 10 Or. 448; State v. Hansen, 25 Or. 391 (35 Pac. 976, 36 Pac. 296); State v. Bartmess, 33 Or. 110 (54 Pac. 167).

13. The co-defendant, Frank Klein, having entered a plea of guilty to the joint indictment, it is contended that he was not a competent witness for the state, and that the court erred in permitting him to testify against the defendant at the trial herein. In State v. Magone, 32 Or. 206 (51 Pac. 452), it was held that one who was jointly indicted with a defendant on trial, but who has entered a plea of guilty, is a competent witness for the state. No error was committed in this respect.

14. It is contended that the verdict hereinbefore set out is special, and was based upon the assumed commission of a crime not charged in the indictment, and that the court erred in refusing to arrest the judgment on the ground that it was unsupported by the verdict. A general verdict upon a plea of not guilty is either “Guilty” or “Not Guilty :” Hill’s Ann. Laws, §. 1378. A special verdict is one by which the jury finds the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them ; and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them : Hill’s Ann. Laws, § 1379. What has been said upon the subject of simple larceny being necessarily included in the aggravated offense of larceny in a building need not be here repeated. The verdict, although special, complies with all the requirements of Section 1379, Hill’s Ann. Laws, and the court was enabled to draw the conclusions of law therefrom. No error prejudicial to the defendant having been committed by the trial court, it follows that the judgment is affirmed. Aekikmed.:

Decided 13 August, 1900.

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Rehearing

On Petition eor. Rehearing.

[62 Pac. 1128.]

Mr. Justice Moore

delivered the opinion.

15. In reviewing the decision in this cause upon defendant’s petition for rehearing, we find that in referring to the testimony of Samuel Simmons, the opinion improperly states that “This witness, on his direct examination for the state, made no statement tending to show by whose authority he went to the premises of Samuel Klein to search for the money.” The bill of exceptions show that “Pending the examination of witnesses in said case one Samuel Simmons was called on behalf of the state and testified, among other things, in his direct examination, that he found $4,800 of the money alleged to have been stolen in the yard of Mr. Samuel Klein, father of the defendant Prank Klein. (This defendant Frank Klein claimed to have turned state’s evidence and was a witness against the defendant Otis Savage on this trial); that he searched for and found the money in pursuance of directions and information given him by said Frank Klein.” This statement was inadvertently overlooked when the opinion was written, the writer being misled by what purported to be a copy of the witness’ testimony given on his direct examination, in which he made no statement whatever tending to show by whose direction he went to the premises of Samuel Klein to search for the money.

The court having refused to permit Simmons to answer the questions propounded to him on his cross-examination, defendant’s counsel called him as their witness and on his direct examination secured the information which they sought; and this presents the question whether, if it be assumed that an error was committed in the first instance, it was not cured in the manner indicated. Judge Thompson, in his work on Trials (section 707), in commenting upon this subject, says: “An error of the court in excluding the evidence of a witness does not injure a party, if the witness is afterwards permitted to testify fully in respect of the matter excluded. ’ ’ In State v. Biggerstaff, 17 Mont. 510 (43 Pac. 709), it was held that where a witness when called by the state gives evidence which was excluded when called by the defense, there is no error of which the defendant can complain. In State v. Coates, 61 Pac. (Wash.) 726, it was held that where a defendant in a prosecution for burglary was erroneously denied the privilege of cross-examining the state’s witness, who was an accomplice, as to what he did with stolen money, and as to his connection with burglaries, the fact that he was thereafter permitted to go into the matter fully rendered the error harmless.

We think that defendant’s counsel, by making Simmons their witness and proving by him on his direct examination the fact which they were prevented from showing on his cross-examination, thereby waived the error of which they now complain, and hence the petition for a rehearing is overruled. Rehearing Denied.