Argeros v. State
| Decision Date | 27 February 1923 |
| Docket Number | 1118 |
| Citation | 212 P. 766,29 Wyo. 278 |
| Parties | ARGEROS v. STATE |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Platte County; HON. WM. A. RINER Judge.
Peter Argeros was convicted of the crime of larceny and appeals.
Reversed and Remanded.
Kinkead Ellery and Henderson, for appellant.
The testimony of the witness Brome was hearsay, incompetent irrelevant and immaterial and should have been excluded; he testified from a memorandum supplied by a bank, the correctness of which he had no personal knowledge; if the memorandum had been authenticated it alone would have been the best evidence; it devolved upon the state to prove the charge by the best evidence. (Jones Ev. 199 P. P. 243.) Deductions and conclusions of the witness Brome from his examination of the memorandum were inadmissible (22 C. J. 207.) (Baird v. Company, 162 P. 79.) The state rested its case on venue and corpus delicti, upon Brome's testimony; (Ex Parte Millsap, 118 P. 135.) the defendant was denied the right of being confronted with the witnesses testifying against him by the admission of hearsay evidence from the witness Brome; (Jones Ev. 297 P. P. 374.) defendant's motion to strike the same should have been sustained; (10 R. C. L. 133; Lambert v. Hamlin, 6 Ann. Cas. 713-714; State v. Osborn, 20 Ann Cas. 627-631;) the state failed to prove the venue and corpus delicti as laid in the information, the most that was proven by Brome's testimony was a shortage in a shipment of sheep at Denver, Colorado; this proof falls short of proving larceny in Platte County; (Green v. State, 122 P. 1108; State v. Millmeirer, 72 N.W. 275.) the information charged ownership of the sheep in the Chicago, Burlington and Quincy Railroad Company, a corporation; the corporate character of this company was not proven; the state offered as evidence a certified copy of the corporate certificate of the Chicago, Burlington and Quincy Railroad Company, the certificate introduced was not authenticated as required by Section 906 R. S. U. S. and was not proof that the corporation described in the information was a de jure or a de facto corporation; (Tollifson v. People, 112 P. 794-796; State v. Winder, 46 A. 1046; Webb v. State, 131 P. 970; People v. Berger, 102 N.E. 751;) the objections to the certificate in question should have been sustained; it was a copy of a certificate from a sister state but not authenticated and, therefore inadmissible; (Milwaukee Gold v. Gordon, 95 P. 995; Parchen v. Peck, 2 Mont. 567; James v. James, 77 P. 1080; Wilcox v. Bergman, 104 N.W. 955; Chapman v. Chapman, 104 N.W. 880; Newson v. Langford, 174 S.W. 1036 (Texas); Petermans v. Law, 6 Leigh, 523 (Va.); Nolan v. Nolan, 54 N.Y.S. 975; McCormick v. Evans, 33 Ill. 327; Taylor v. McKee, 45 S.E. 627 (Ga.); Johnson v. Rannels, 6 Mart. (N. S.) 621 (La.); Hollister v. Armstrong, 5 Houst. 46 (Del.); Arndt v. Burghardt, 162 N.W. 317 (Wis.); Ledowsky v. Gordon, 194 Ill.App. 442; Insurance Co. v. Stevens, 71 F. 258; Smith v. Brackett, 38 A. 57; Adams v. Stenehjem, 146 P. 467 (Mont.); Halfhill v. Malick, 120 N.W. 1086-1092 (Wis.).) the testimony of witness Morgneous that Krionderis kept no sheep on his ranch in the spring and summer of 1921 was immaterial and should have been excluded. The testimony of the witness Payne, sheriff of Platte County with reference to losses of sheep from railroad stock yards at Guernsey was hearsay and incompetent; and the court also erred in permitting the witness Payne to testify as to the means he took to locate the alleged lost sheep; the verdict is not sustained by sufficient evidence and defendant's motion for a directed verdict should have been sustained.
W. L. Walls, for respondent.
No exceptions were reserved by defendant to the evidence offered by the state with the exception of questions No. 182 1/2, 194, 277 and 763. Error was assigned by defendant to rulings of the court upon questions 182 1/2, 194 and 277, but these assignments were abandoned in defendant's brief; the objection to question 763 was untimely. Defendant failed when called as a witness to deny the charge and the evidence offered thereunder and such failure was an implied admission of its truth; (State v. Dexter, 87 N.W. 417; People v. Amaya, 134 Cal. 531; 66 P. 794; People v. Kessler, 13 Utah 69; 44 P. 97-101; Bob v. State, 32 Ala. 560; Gale v. Lincoln, 11 Vt. 152;) defendant by failing when a witness to deny the testimony of the prosecution given against him admits its truth; (State v. Goods, 33 S.W. 790; State v. Taylor, 35 S.W. 92; State v. Paxton, 29 S.W. 705; State v. Musick, 14 S.W. 212; Com. v. Finnerty, 19 N.E. 215; State v. Callahan, 69 A. 957; 73 A. 235; Stover v. People, 56 N.Y. 315; Davis v. State, 15 Tex.App. 594.) he cannot complain that the evidence is insufficient, where he himself has supplied the deficiency; (State v. Potello, 119 P. 1023.) incompetent evidence offered by the state and admitted by defendant is not prejudicial error; (Motes v. United States, 178 U.S. 458; Blackwell v. United States, 236 F. 912; McDuffie v. State, 86 S.E. 821; State v. Byrd, 41 Mont. 585; State v. Miller, 115 N.W. 493.) the jury was justified in drawing the inference that defendant could not truthfully deny the facts bearing upon the question of his guilt or innocence, after he went upon the witness stand and failed to deny that he committed the crime or had any participation in it; (State v. Skillman, 70 A. 83-87; State v. Hillstrom, 150 P. 935) a conviction is not contrary to law where there is credible evidence to support it; (Ford v. State, 78 S.E. 782; State v. Draughn, 124 S.W. 20; U. S. v. Green, 220 F. 973; U. S. v. Wilson, 176 F. 806.) a question must be objected to as soon as it is propounded and objections made after the evidence is in are unavailing; (People v. Scalameiro, 143 Cal. 343, 76 P. 1096; Lewis v. State, 25 So. 1017; McLeroy v. State, 25 So. 247; Vickery v. McCormick, 20 N.E. 495; State v. McKimtry, 100 Ia. 82, 69 N.W. 267; State v. Cater, 69 N.W. 881; State v. Moore, 25 Ia. 128; State v. Benge, 61 Ia. 658, 17 N.W. 100; Ryan v. State, 36 A. 706; State v. Fitzgerald, 47 A. 403.) it was proven by the witness Morgenous that defendant attempted to bribe and intimidate him; in testing the sufficiency of evidence to sustain a conviction the appellate court will accept the testimony of the prosecution as true, and need only consider such evidence, and will presume that conflicts in the evidence was resolved by the jury in favor of the prosecution's witnesses; (Starnes v. State, 128 Ark. 302, 194 S.E. 506; McCown v. State, 188 S.W. 547; State v. Taylor, 159 N.C. 465, 74 S.E. 914; State v. Chevigny, 48 Mont. 382, 138 P. 257.) proof that the lambs stolen were in the possession of the Chicago, Burlington and Quincy Railroad Company as bailee was sufficient, without proving what the company is; (State v. Watson, 102 Ia. 651, 72 N.W. 283; Thalheim v. State, 20 So. 947; Duncan v. State, 29 Fla. 439, 10 So. 815.) it was not necessary to produce the charter of the company; (State v. Grant, 104 N.C. 908, 10 S.E. 554; State v. Collens, 37 La. Ann. 607; Reed v. State, 15 Ohio 217; Smith v. State, 28 Ind. 322; People v. Davis, 21 Wend. 309; Burke v. State, 34 O. S. 79.) proof that the company was a corporation de facto was sufficient; (People v. Barrick, 49 Cal. 342.) refusal to direct a verdict for the defendant was not erroneous; if there was not sufficient evidence to sustain the conviction at the close of the state's case defendant supplied the omission; where accused where testifying in his own behalf, established the commission of an offense, whether there was sufficient proof of the corpus delicti at the conclusion of the state's case was immaterial. (In re Kelley, 83 P. 225; Kaye v. U.S. 177 F. 147; Messel v. State, 95 N.E. 565.)
Kinkead, Ellery and Henderson, in reply.
The prosecution contends that after eliminating evidence erroneously admitted, there is still sufficient evidence to sustain the verdict; it concedes that Brome's evidence was hearsay; the erroneous admission of evidence calls for a reversal; (17 C. J. 319; People v. Jordan, 127 N.E. 117; State v. Aldrick, 166 P. 1130; State v. Leltan, 139 N.W. 475; State v. Diedtman, 190 P. 117; Martin v. State, 89 So. 845; State v. Harrison, 88 So. 696; People v. Todaro, 120 N.E. 135; People v. Hedge, 120 N.E. 494; Alvarez v. State, 78 So. 272; People v. Whittlock, 171 N.Y.S. 109; State v. Vaughan, 173 N.W. 1917; Callahan v. U. S. 240 F. 683.) as to the proof required to establish the existence of the Burlington Railroad Company as a de facto corporation we submit that a mere assumption of a corporation name will not constitute a de facto corporation; there must be at least an attempt to perfect the organization under the law; (Fletcher on Corporations, Vol. 1 289; Farmers Co. v. Reser, 88 N.E. 349.) there was no proof whatever to establish the existence of the railroad company as a de facto corporation; no inference or presumption can be drawn from the failure of the defendant to take the stand and testify; the prosecution erroneously assumes that an offense was proved in some degrees at least, then proceeds to argue that defendant's failure to deny the commission of the offense, establishes the guilt of defendant and supports the verdict; we say that a lack of evidence cannot be properly considered as a factor supporting a verdict. (People v. Jordan, 127 N.E. 117.)
The appellant Peter Argeros was charged with the larceny of 25 head of sheep, the property of the Chicago, Burlington & Quincy Railroad Company, a corporation, who held said property as bailee. He was convicted of the charge. From the judgment entered thereon he brings this case...
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