Bachman v. People

• Decision Date: 18 December 1885
• Citation: 8 Colo. 472,9 P. 42
• Parties: BACHMAN v. PEOPLE.
• Court: Colorado Supreme Court

9 P. 42

8 Colo. 472

BACHMAN v. PEOPLE.

Supreme Court of Colorado

December 18, 1885

Error to district court, Elbert county.

Henry B. O'Reilly, for plaintiff in error.

T H. Thomas, Atty. Gen., for the People.

BECK C.J.

The defendant below, Frederick Bachman, was indicted for the crime of grand larceny at the March term, 1884, of the district court of Elbert county. He was tried and convicted at the same term, and sentenced to serve a term of one year and six months in the state penitentiary. The offense for which the defendant was convicted was that of stealing a heifer from the prosecuting witness, August Ehler, on the fifth day of November, A. D. 1883. Before sentence the defendant moved the court for a new trial; the principal grounds of the motion being insufficiency of the testimony to sustain the verdict, and newly-discovered evidence. This motion was denied and exceptions to the ruling taken. The defendant, Fred. Bachman, and the prosecuting witness, August Ehler, are both prominent and well-to-do citizens of Elbert county. Both are possessed of large stock ranches, and both have for years been engaged in the raising of cattle and other stock. More than this, they are neighbors their ranches adjoining, and being separated only by a division fence constructed of wire. Mr. Ehler's house is three-quarters of a mile from this fence in one direction and the defendant's house one mile therefrom in an opposite direction. At the time of the alleged larceny the defendant was not residing upon his ranch, but resided, with his family, at Kiowa, a few miles distant. On November 5, 1883, defendant was upon his ranch, and drove a red heifer, having white color marks, from his pasture into his corral, and butchered her for beef, for his own use. Ehler was informed that this was his heifer; the information coming through John Bachman, a nephew of the defendant, in his employ; whereupon Ehler caused the defendant to be arrested, and held to bail, and afterwards to be indicted and tried for grand larceny. Ehler and the defendant had been enemies, according to the testimony of the former, for about eight years, and sharp words had passed between them about a month previous to this occurrence. This nephew had been in the employ of the defendant ever since his arrival here from Germany, a period of about 16 months. He witnessed the defendant driving up the heifer into the corral; also the killing; and obeyed the call of the defendant to bring the team with which he was working, and to drag the heifer up to the skinning-post.

The conviction of the defendant was due largely to the testimony of this nephew, and to a singular circumstance, the happening of which was proven, but there was no proof connecting the defendant therewith. This circumstance was the cutting out from the left side of the hide, from the shoulder to the tail, a strip six or seven inches wide, which probably contained the brand; also the removal of that part of the hide which covered the head and contained the horns and ears. It is probable, also, that the portion which had covered the legs below the knees and hocks had likewise been cut off, since they did not appear upon the mutilated pieces. In addition to all this, the skin had been cut into two pieces, and was found hanging up in the goose-house, an old log building belonging to defendant, which adjoined the corral, and had neither doors nor windows, but openings therefor only, and into which building any passer-by could look or enter at pleasure. The act of slaughtering the heifer was done openly, and the defendant has never denied the same, nor any circumstances connected therewith, which in our judgment has been established by sufficient proof to be contrary to the defendant's version or statement. He has persistently asserted, however, both on and off the witness stand, that the heifer was his own property; that it bore his brand and ear-mark; that it was born in his pasture, and had never been out of it, and that he had full right to kill it as he did for his own use. He testified that it was 18 months old, and that the only brand upon it contained the letters 'F. B.,' which was his brand; also that the left ear was cropped, which was his ear-mark. He testified that his nephew was using a team, working upon a ditch 40 or 50 rods distant from the corral, when he drove in the heifer, and that, after shooting her, he called to him to bring the team up, and drag the animal up to the skinning-post. In the mean time he had separated the skin along the belly, and had skinned and cut off the legs. He had not touched the ears. After the animal was put in position at the post, he and his nephew took off the entire hide in one piece, including the skin of the head, neck, and legs. The latter were skinned nearly to the hoof. He hung the hide upon a fence-board, in the corner of the corral, just as it came from the animal. Next morning he went to Kiowa, and the nephew went to Bijon. When defendant left the ranch, the hide was in the same condition as upon the evening previous. He was not certain which left the ranch first, himself or his nephew. He did not again return to his ranch until the second Sunday after after the election, which would be November 18th, when he found the hide in the goose-house adjoining the corral, cut up as described by the witnesses. Defendant says he did not cut up the hide, and don't know who did; he thinks the pieces found are parts of the hide taken from the heifer he killed. His testimony appears to be straightforward; and no attempt at evasion, or the making of testimony in his favor, is discernable. He produced the mutilated hide upon the trial; and had the fact been proven that defendant had mutilated the same, there would remain no reasonable doubt of his guilt, for the brand and ear-marks had evidently been removed in such a manner as to indicate that it had been done to destroy the identity of the hide with that of the animal from which it had been taken.

John Bachman, who circulated the report that his uncle had killed Ehler's heifer, says, in his testimony upon the trial, that he saw the hide hung up in the corral on the same evening the animal was killed, and also the next morning, and that it was on both occasions whole and not mutilated. He says he went to Bijon the morning of the sixth of November, leaving his uncle at the ranch; and when he returned late in the evening, his uncle was at Kiowa. Nobody else was on the ranch when he left in the morning, but a herder had come there while he was away, on the morning of the 7th. He saw the hide in the goose-house, mutilated as before described. His testimony as to the manner of skinning it off the animal was that the entire hide was taken off in one piece, including the head and the legs, to the knees and below the knees. He denied that he assisted in the skinning. He says he knew the animal to be Ehler's, and that it had Ehler's brand, 'I. E.,' upon it; but he did not see the brand upon the animal before it was skinned, or upon the hide after the same was removed from the animal. At the time he hitched the team to the hind legs to draw the carcass up to the post, he noticed the right ear had been cut off, but did not see the ear. He admitted that he had told Christ Vogt that both ears had been cut off at that time, but he was mistaken; only the right ear had been cut off.

It will here be observed that the ear-marks of both Ehler and the defendant were upon the left ear; Ehler's being an 'under-bit,' as he describes it, and the defendant's a cropping of the left ear.

An examination of the testimony given by the witnesses on part of the people shows it all to have been of this uncertain and contradictory character. All statements of fact upon which they agreed, and did not afterwards themselves contradict, may be true, and at the same time consistent with the defendant's innocence, save the positive testimony given by John Bachman on the trial, nearly all of which, however, is rendered unworthy of credit by contradictions by himself on the witness stand, and by proof of statements made by him on other occasions contradictory to his testimony at the trial. For example, according to the testimony of John Hoffman, a witness called by defendant, John Bachman first declared his belief that the slaughtered animal was Hoffman's cow. The witness Hoffman says he had in his possession a cow belonging to the defendant, in the months of October and November, 1883; that he lost her early in November, and was hunting her. Meeting John Bachman a few days after the election of November 6th, the latter told him he believed the defendant had killed his cow. Witness replied that the cow he was hunting belonged to the defendant. This witness further testified that he, said Hoffman, was then working for defendant, and knew he had not killed a cow, but had killed a heifer; also that witness had subsequently found the cow he had lost, when John Bachman admitted he was mistaken. John Bachman says he told Vogt, on the thirteenth day of November, that his uncle had killed Ehler's cow. Vogt communicated this information to Ehler on the eighteenth day of November.

Vogt was not a witness upon the trial, but Ehler's account of that interview is that Vogt called upon him on Sunday November 18th, and asked about his own cattle, which were being herded near by, and, being told by Ehler they were all right, he then asked if his (Ehler's) cattle were all right. Ehler replied that he did not know, but was going out to the pasture to see. This was 13 days after the heifer had been converted into beef; and his answer to Vogt was true,--he had not then discovered his loss. In almost the next breath, the witness Ehler acknowledges that the latter statement...