63 P. 1036 | Idaho | 1901
Lead Opinion
The defendant was convicted of the crime of grand larceny, and from the judgment of conviction and’ order denying a new trial appealed to this court at the May term, 1900. (See 61 Pac. 1033.) The court there held that the evidence was insufficient to establish the guilt of the defendant, and the cause was Temanded to the lower court. The cause was again brought on for trial in the district court at the November term, 1900. The county attorney thereupon made a motion to dismiss the case, which motion was in writing, and is as follows: “Henry D. Wilding was duly called and sworn, as a witness on the part of the prosecution, and testified as follows: Counsel for defendant at this time objected to the introduction of any testimony in this case, for the reason that the prosecuting attorney had theretofore asked the privilege and made a motion to dismiss this case for the reasons stated in said motion, which are as follows: Tn the District Court of Fremont County, State of Idaho. State of Idaho, Plaintiff, v. Emery H. Seymour, Defendant. Now comes J. E. Cochran, county attorney of Fremont county, and asks that the within case be dismissed for the following rea
The county attorney therein states that the prosecution had no further reputable evidence than was given on the former, trial, and that, as the supreme court had held that the evidence at the former trial was not sufficient to convict for that reason, he moved to dismiss said case. The record shows that the county attorney acted in perfect good faith, and in line with' his duty, in making said motion. (See Cooley’s Constitutional Limitations, 5th ed., p. 379, and note 3.) The court denied the motion, and proceeded with the trial. The defendant was convicted, and judgment of imprisonment imposed. A motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial.
The testimony above set forth of the witnesses, Mrs. Trafton, Lyman and Ellsworth, is all of the evidence introduced by the state in addition to the evidence on the first trial of the case, and does not materially change the evidence on which the defendant was first convicted. This court held on the former appeal that that evidence was not sufficient to sustain the verdict. Mrs. Trafton was most thoroughly impeached, and, aside from that, the defendant offered to show, by two disinterested witnesses, that Bruce and Williams did stop overnight at the Traf-ton ranch about June 15, 1897. However, Mrs. Trafton testified on cross-examination that they might have stopped there on the 14th or 15th of June, 1897. The color of Ben Williams’ hair was an immaterial matter, and the difference in the opinions of the two witnesses who testified on that point can have no important bearing in this ease.
The attorney general quotes from the testimony of the defendant, and the quotations, taken alone, would indicate that the defendant had testified, on direct examination, that Williams had purchased several head of cattle for him, and on cross-examination that he had purchased but one. But that testimony, as we read it, states that Williams only purchased one animal on his trip to the Teton Basin. He testified as follows: “That is the only animal that he bought and delivered.When he came in from Teton Basin he returned the money I had given him. He paid $17 for the critter. He did not buy any more cattle at all." In other words, that was the only one that he bought on that trip.
As there is no material change in the evidence from that given on the first trial, the cause must be determined upon the same
Several other errors are assigned, but it is only necessary for us to further notice one of them. Counsel for the defendant called the county attorney as an impeaching witness against Mrs. Trafton. The county attorney thereupon stated that be did not wish to testify. The court thereupon said that he need not testify if be did not want to, he being county attorney-The county attorney replied that be did not wish to, to which ruling the defendant duly excepted. On what theory the county attorney was excused from testifying is not made to appear. It certainly was not on the ground that it would incriminate him, and we know of no other reason under our law why the county attorney, or anyone, even the judge himself, may not be compelled to testify on behalf of one on trial for a crime. Both by the federal constitution and that of this state, the defendant has the right to process to compel the attendance of witnesses in bis behalf. It was error for the court to excuse the county attorney from testifying in said ease, as the defendant only desired bis testimony in the impeachment of one of the witnesses for the state. As it is apparent that the state cannot produce other evidence of defendant’s guilt than that given on the first trial of tbis case, the judgment of the district court must be reversed, and the appellant, Emery H. Seymour, discharged from custody; and it is so ordered.
Dissenting Opinion
Dissenting. — I cannot concur with my associates in this ease. The facts are stated in the opinion by Justice Sullivan, concurred in by Chief Justice Quarles;
Now, as to the facts as disclosed by the record in this case. On the twenty-seventh day of June, 1897, appellant was arrested upon the charge of grand larceny, and after preliminary examination, on the nineteenth day of February, 1900, J. E. Cochran, the county attorney of Fremont county, filed an information against him, charging him with the larceny of a cow in said county. A trial was had, conviction followed, and, on appeal to this court, the judgment of the trial court was reversed, and the case remanded for further proceedings. In December, 1900, another trial was had, conviction followed, and this appeal. Appellant testifies that he drove the cow in dispute into his pasture, thereby placing himself in a position where he must explain such possession to the satisfaction of the jury. He tells the same story that has been heard in every trial court in this state, and in fact all states where trials of this character are had, in every case where the possession of stolen animals is traced to the possession of the party accused. The purchase is always from a stranger. It must necessarily be from a stranger,' as he cannot be brought face to face with the accused to contradict him. Where is the necessity to look further into the evidence? His explanation was unsatisfactory to the jury and the judge who tried the case in the first trial, and the same is true of the second trial. What is the difference whether the jury believed Mrs. Trafton or .not? It is evident from their verdict that they did not believe that the possession of the cow by the appellant was honestly acquired, and his explanation of such possession was unsatisfactory to them. They must have believed Mrs. Trafton told the truth, even though her reputation for truth and veracity was shown to be bad by five witnesses. The most depraved person (and we do not wish to be understood as saying she is) may tell the truth, and the jury may or may not have believed her. That was their special province, and no one’ can control it. It is for the express purpose of passing upon such testimony that the jury sys-
It cannot be said that there was any malice or ill-will toward the defendant by the jury, as it recommended him to the mercy of the court. This may also be said of the court that pronounced the sentence, and before whom the case was tried. The sentence is for three years, and might, under the law, have been fourteen years. I do not think this ease should be reversed on the ground of insufficiency of the evidence to warrant the'verdict and judgment. I agree with my associates that the trial court should have required the county attorney to testify when called upon by the defendant. I also agree with them that the court should have permitted the two witnesses, Captain Aller and his son, to testify in rebuttal.