Arnold v. State

• Decision Date: 01 July 1895
• Citation: 40 P. 967,5 Wyo. 439
• Parties: ARNOLD v. STATE
• Court: Wyoming Supreme Court

40 P. 967

5 Wyo. 439

ARNOLD v. STATE

Supreme Court of Wyoming

July 1, 1895

Information filed in District Court October 23, 1893.

ERROR to the District Court for Converse County. HON. RICHARD H SCOTT, Judge.

George Arnold was prosecuted upon information for the crime of unlawfully killing neat cattle. He was convicted and sentenced to a term of three years in the penitentiary, and brings error. The material facts are stated in the opinion. The following instruction, among others, was requested by defendant on the trial and refused, to which refusal defendant excepted:

"The jury are instructed that in criminal cases, where the prosecution rely upon the circumstantial evidence alone for a conviction, it is not enough that all the circumstances proved are consistent with and point to the defendant's guilt; to authorize a conviction on circumstantial evidence alone, the circumstances must not only all be in harmony with the guilt of the accused, but they must be of such a character that they cannot reasonably be true, in the ordinary nature of things, and the defendant be innocent, and they must be such as to leave no reasonable doubt in the minds of the jury of the defendant's guilt."

Judgment affirmed.

M. B Camplin and Baird & Churchill, for plaintiff in error.

A party calling a witness cannot impeach his testimony by proving that he has made contradictory statements to those made on the witness stand or in any other manner. (People v. Safford, 5 Denio, 112; Thompson v. Blanchard, 4 N.Y. 303; Coulter v. Am. &c. Co., 56 N.Y. 585; Greenleaf Ev., sec. 442; Quinn v. State, 14 Ind. 589; Hurley v. State, 46 O. St., 320; Sissor v. Conger, 1 Thomp. &c. (N. Y.), 564; Com. v. Hudson, 11 Gray, 64; Craig v. Grant, 6 Mich. 447.) An exception to the rule exists where a statute authorizes such impeachment, and where the party calling the witness has been misled by fraud or artifice of the witness. (Dunlap v. Richardson, 63 Miss. 447; More v. Ry., 59 id., 243; McDaniel v. State, 53 Ga. 253.) The examination of the witness Dolan, in the case at bar, was not warranted and should have been refused. (Com. v. Welsh, 4 Gray, 535; People v. Jacobs, 49 Cal. 384.) Before any witness can be impeached upon contradictory statements made by him, he must be interrogated as to whether he made such statements, giving the time and place and the name of the person to whom made, together with the nature of such alleged statements. (Thomp. on Tr., sec. 496; 1 Whart. Ev., sec. 555, and authorities cited; Davis v. Franks, 33 Gratt., 425; Steamboat &c., 115 U.S. 69; Higgins v. Carleton, 28 Md. 138; Richardson v. Kelly, 85 Ill. 491; 43 Ia. 294; 55 Ind. 45; 15 N.C. 439; Henderson v. State, 70 Ala. 447; Runyan v. Price, 15 O. St., 11; Stacy v. Graham, 14 N.Y. 499; 15 Kan. 495; 11 Or. 52; 16 Cal. 173.) The instruction relative to the testimony of an accomplice was objectionable because there was no evidence of an accomplice in the case. Statements made by a witness out of court are not evidence. (Newell v. Homer, 120 Mass. 277; Smith v. Price, 8 Watts, 447.) It is error to submit to the jury a fact, or a state of facts, which there is no evidence tending to prove. (2 Thomp. on Tr., sec. 2315 and cases cited.) It is error to refuse a properly drawn instruction tendered by an accused, touching the probative force of circumstantial evidence. (2 Thomp. on Tr., sec. 2500, and cases cited; 2 id., sec. 2347, and cases cited.) In a criminal case the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with every other rational conclusion. (1 Greenl. Ev., sec. 34; People v. Schuler, 28 Cal. 490; 64 Cal. 440; 11 Nev. 334; 19 id., 365; 8 Ia. 477; 4 Pa. 269; 33 La. Ann., 537; 8 Mo. 67; 90 Ind. 1; 66 id., 428; 13 Tex. App., 483; 25 Miss. 584; 36 Ala. 212; 29 F. 503; 5 Or. 73; 45 Miss. 527; 2 Thomp. Tr., sec. 2505; 4 Lea., 266; 5 Cush., 296.) Evidence as to the demeanor and conduct of the accused is admissible as tending to disprove his guilt. (Teachout v. People, 41 N.Y. 7; People v. Wentz, 37 N.Y. 303; Com. v. Cuffee, 108 Mass. 285; Com. v. Crocker, id., 464; Roscoe Crim. Ev., 18; People v. Rathbun, 21 Wend., 509; Greenfield v. People, 85 N.Y. 75; State v. Baldwin, 36 Kan. 1; 3 Rice on Ev., 503.)

Benjamin F. Fowler, attorney general, for the State.

A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him with respect to former declarations which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony, or explain his apparent inconsistency, and for such purpose his former declarations may be repeated to him, and he may be called upon to say whether they were made by him. (Rice Ev., par. 237.) The giving of an instruction not applicable to the evidence in a criminal case is not error, unless the principle of law stated is erroneous. (Thomp. on Tr., par. 2321; Upstone v. People, 109 Ill. 170; State v. McGuire, 50 Ia. 153; Ry. Co. v. Jacobs, 20 Ill. 487.) The instruction requested by the defendant on trial, relating to circumstantial evidence, was confusing, and went too far. (Thomp. on Tr., secs. 2507, 2509, and cases cited.)

POTTER, JUSTICE. CONAWAY, J., concurs. GROESBECK, C. J., dissents.

OPINION

POTTER, JUSTICE.

Plaintiff in error was convicted of the crime of unlawfully killing neat cattle, being charged with killing a certain black cow, the property of F. E. Wolcott & Company. The jury found the value of the animal to be fifteen dollars, which, under the statute, subjects the offender to imprisonment in the penitentiary, and he was sentenced to such imprisonment for the term of three years.

Several errors are assigned and relied on, which we will consider in their order.

It is first assigned as error that the court permitted counsel for the State to enquire of a witness, William Dolan, produced by it, concerning certain statements which he had made to said counsel, the sheriff and others, to the effect that he had witnessed the killing of the animal by the defendant Arnold.

When Dolan was called as a witness, it had already been shown that the head and some other remains of the slaughtered animal had been found near the ranch or house of Arnold, which was situated inside the pasture of F. E. Wolcott & Company; and wagon tracks were discovered leading therefrom to said ranch. Other circumstances had also been testified to tending to connect said killing with some one at the ranch of Arnold. Dolan testified, without objection, that at the time when it was claimed the animal had been killed, he was residing upon Arnold's ranch with him; that, when in company with Arnold one day, Prentice, an employe of F. E. Wolcott & Company, had asked them, "What did you fellows do with the beef you killed up the creek?" That he, Dolan, told him he did not know anything about any beef that was killed up the creek, but that there was a beef which had been killed and taken to town, which was an animal they had got from Grass creek; and he also testified such animal was not killed at the place where the black head had been found. Thereupon he was asked, "State if you know anything about a black head and black feet being found around there," to which he answered, "No; nothing more than what Prentice told me about it." Counsel for the State then put to him the following question: "Mr. Dolan, I want to refresh your memory by calling your attention to a conversation you had with me in the office of the jail on last Wednesday, since the beginning of this court, in reference to this matter; and now ask you to state to the jury what you know in reference to the killing of a black cow near the Arnold ranch." This was objected to as immaterial and on the ground that the State cannot impeach its own witness. The objection was overruled and exception taken. The witness answered, "I know just what I stated here." This question was not objectionable, and the answer did not prejudice the defendant; therefore, on either ground, no error can be predicated upon it. He was then asked if he remembered a conversation with the sheriff, Mr. Williams and counsel in the August preceding in the office of the jail in reference to the matter, and he gave an affirmative reply. The following question was then propounded to him: "Now, Mr. Dolan, refreshing your memory by reference to that conversation, will you state to the jury what you know in reference to the killing of a black cow in August, 1892, near Arnold's ranch, in Converse County." Objection, on the ground that it had already been answered, being overruled, he replied, "What I have told here is all that I know about it."

Counsel for the State thereupon informed the court that he had placed reliance upon statements of said witness, that he did not care to state to the jury what they were, but he had been led to rely upon his testimony, and had been disappointed therein; that as he appeared to be a hostile witness he desired leave to examine him by cross-examination, and by asking leading questions. Defendant's counsel objected to "the statements of counsel in the presence of the jury." The court granted the leave, to which exception was taken. Up to this point it is clearly apparent that there was no error. The counsel for the State proceeded to interrogate the witness further in a leading manner, and first asked him this question: "Mr. Dolan, isn't it a fact that you, along about the 24th of August, 1892 witnessed the killing of one black VR cow in the Wolcott pasture, just above the pasture fence of the defendant Arnold; and that you so stated to the officers, the sheriff and deputy of this county, and myself, on a day of August last of this year, in the county jail here in...