Bise v. United States
| Decision Date | 23 March 1906 |
| Docket Number | 2,203. |
| Citation | 144 F. 374 |
| Parties | BISE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Syllabus by the Court
Under section 5357 of the Revised Statutes (U.S.Comp.St. 1901, p 3639), providing for the punishment of one who receives property, which has been feloniously taken or stolen from another, knowing the same to have been taken or stolen, it is not essential to allege in the indictment that the to deprive him of its use and benefit, the criminal intent and evil purpose of the receiver being sufficiently alleged where his act is characterized as unlawful and felonious.
In the absence of a controlling statute on the subject, the incompetency of a witness by reason of his prior conviction of a felony cannot be shown upon his examination, but only by the production of the record or an exemplified copy of it.
Where no objection to the testimony of a codefendant on the ground of his incompetency as a witness is made when he is sworn or at any time during the trial, the objection is waived.
C. B Stuart and J. H. Gordon, for plaintiff in error.
Charles C. Houpt, U.S. Atty.
Before VAN DEVANTER and HOOK, Circuit Judges, and LOCHREN, District judge.
The plaintiff in error was tried and convicted in the United States Court for the Central Division of the Indian Territory under section 5337, Rev.St. (U.S.Comp.St. 1901, p. 3639) upon an indictment charging that he 'unlawfully, feloniously, and then and there knowing the same to have been previously stolen,' did receive certain cattle theretofore feloniously stolen and taken from one James Eliff, the owner. On appeal to the Court of Appeals of the Indian Territory the judgment was affirmed (82 S.W. 921), and the case is now here on a writ of error to that court.
It is complained that the trial court erroneously overruled a demurrer, and also a motion in arrest of judgment, challenging the sufficiency of the indictment on the ground that it was not therein alleged that the stolen property was received without the consent of the owner or with intent to deprive him of its use and benefit. The complaint cannot be sustained. The statute defining the offense does not in terms make it an element thereof that the stolen property shall be received without the consent of the owner or with intent to deprive of its use and benefit; and, while the statute is manifestly not designed to punish one who with lawful intent receives stolen property, as where he receives it with the consent of the owner, or for his use and benefit, we think the words 'unlawfully, feloniously' as used in the indictment mean that the act which they characterize proceeded from a criminal intent and evil purpose and thus exclude all color of right and excuse for the act. 1 Bishop, New Cr.Proc. § 503; People v. Johnson, 1 Parker, Cr.R. (N.Y.) 564; People v. Hartwell, 166 N.Y. 361, 366, 59 N.E. 929; Gandolpho v. State, 33 Ind. 439; Stropes v. State, 120 Ind. 562, 22 N.E. 773; State v. Bush (Kan.) 27 P. 834, 13 L.R.A. 607. The indictment conforms to precedents given in standard works. 3 Chitty, Cr.L. 981; 2 Archbold's Cr.Pr. & Pl. 475; 1 Wharton's Prec. (4th Ed.) 450.
At the trial the plaintiff in error sought to show in the examination of one of the government's witnesses that the witness had been convicted of a felony. Objection being made to this line of examination, the court inquired whether it was for the purpose of impeachment or disqualification, and, upon receiving an answer that it was for the purpose of disqualification, ruled that to disqualify the witness it was necessary to produce the record of the conviction or an exemplified copy of it. Complaint is made of this ruling. The question is one in respect of which the decisions have not been uniform and this has led to the enactment of statutes upon the subject in several of the states. 2 Wigmore on Evidence, Sec. 1270. No controlling statute applicable to the Indian Territory has been called to our attention, and, in the absence of one, we think the ruling of the trial court is sustained by the better reason and authority. Prof. Greenleaf says:
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Williams v. United States
...us little assistance. The direct question here presented seems never to have been determined by this court. In Bise v. United States, 144 F. 374, 74 C. C. A. 1, 7 Ann. Cas. 165, the attempt was made in the trial court in the examination of one of the government's witnesses to show that the ......
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...a jury in a robbery case after giving the definition of robbery at common law. (U. S. v. Smith, 27 Fed. Cas. No. 16318.) In Bise v. United States, 144 F. 374, Van Devanter, in delivering the opinion of the court of appeals, Eighth circuit, said with reference to an indictment charging the r......
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State v. Shedoudy.
...9 Cir., 262 F. 957; State v. Bush, 47 Kan. 201, 27 P. 834, 13 L.R.A. 607, concurring opinion of Valentine J.; Bise v. United States, 8 Cir., 144 F. 374, 7 Ann.Cas. 165; People v. Hartwell, 166 N.Y. 361, 59 N.E. 929; Phelps v. People, 72 N.Y. 334; People v. Willett, 102 N.Y. 251, 6 N.E. 301;......
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...proceeded from a criminal intent and evil purpose and thus exclude all color of right and excuse for the act. . . .' Bise v. United States (8th Cir. 1906), 144 F. 374, 375. 'Under an information charging that the accused did unlawfully and feloniously, having obtained possession of certain ......