Donner v. State

• Decision Date: 30 June 1904
• Parties: DONNER v. STATE.
• Court: Nebraska Supreme Court

72 Neb. 263

100 N.W. 305

DONNER

v.STATE.

Supreme Court of Nebraska.

June 30, 1904.

Syllabus by the Court.

1. A record kept by a stockyards company of the receipt, handling, and disposition of car or train loads of stock, copied from a book or tab of original entries, and from hearing another read the railroad company's waybills, is not competent evidence, in a criminal case, for the purpose of tracing cattle, alleged to have been stolen, to the possession of the accused.

2. The law makes a defendant in a criminal trial a competent witness in his own behalf, and the court should in no manner disparage his evidence. Therefore an instruction, otherwise correctly stating the rules by which the jury should determine the weight to be given to the evidence of the accused, and which concludes with the words, “You are not required to receive blindly the testimony of such accused person as true, but you are to consider whether it is true and made in good faith, or only for the purpose of avoiding conviction,” is prejudicial to the defendant's rights.

Error to District Court, Antelope County; Boyd, Judge.

Frank Donner was convicted of larceny, and brings error. Reversed.Jackson & Williams and Brome & Burnett, for plaintiff in error.

Frank N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

BARNES, J.

Frank Donner was charged, in the district court of Antelope county, with the larceny of two steers, the property of one John Thompson. A trial resulted in his conviction, and he was sentenced to the penitentiary for the term of four years. On error proceedings the judgment was reversed and the cause remanded for a new trial. 95 N. W. 40. He was again tried, found guilty, and sentenced to the penitentiary for a term of six years. From that judgment he brings error, and the case is now before us for the second time.

It appears that the steers described in the information were kept in the pasture of one Henry Wilson, situated in said county, and were there seen up to a short time before July 17, 1902, the date at which it was alleged they were stolen. It was shown that the plaintiff had a car load of stock in his possession on the 16th day of July, 1902, in the stockyards of the Fremont, Elkhorn & Missouri Valley Railway Company at Oakdale, in Antelope county, Neb., and on that day shipped the cattle, consigned by the Antelope County Bank, to the commission firm of Shelley, Rogers & Co. at South Omaha. It further appears that on the morning of the 17th day of July, 1902, a car load of stock was received by the South Omaha Stockyards Company, which it is claimed was delivered to Shelley, Rogers & Co., and sold by that firm and accounted for to the Antelope County Bank. The testimony discloses that one of the steers in question was shortly afterwards found in the stockyards of Shelley, Rogers & Co.; that it was purchased from them and shipped back to Antelope county. There was no direct testimony that the stolen cattle were in the plaintiff's possession in the stockyards at Oakdale with the cattle which made up his car load of stock shipment from that place to South Omaha, and in order to trace the stolen property it was necessary for the state to show that the identical shipment of cattle made by the plaintiff from Oakdale to South Omaha, after having been received by the stockyards company, was turned over to Shelley, Rogers & Co., and that the steer described in the information, and found in the yards of the last-named company, was contained in said shipment. In this manner the state sought to show that the stolen property had been in the possession of the plaintiff. In order to make this proof, the state introduced in evidence a book said to have been kept by the Omaha Stockyards Company, which is referred to in the bill of exceptions as “Exhibit D.” The introduction of this evidence was objected to as incompetent, immaterial, hearsay, and because the proper foundation had not been laid. The objection was overruled in so far as it related to page 2 of the book offered, and the same was received and read in evidence, over the plaintiff's objections. This is assigned as one of the grounds of error. It appears that one William R. Thompson identified Exhibit D, and testified that he made it up from a tab that he used in the yards at the time the train containing the car load of cattle in question was backed into the chutes at the South Omaha Stockyards, and from hearing another person read the waybills. His cross-examination discloses the following facts in relation to this book: “Q. Mr. Thompson, the only entry that you made out at the time this car was backed into the chutes was the figures in the line under the words ‘car number’? A. Yes, sir. Q. That was the only entry you made in this book at the time you was out in the yards--at the time the cars were backed in? A. I copied this off of my tab. Q. You made no entries in this book at the time you was out in the yards? A. No, sir. Q. This book that you have here is a book that is made up afterwards? A. Yes, sir. Q. After these entries are put onto a book which you use in the actual work of checking, they are afterwards transferred to this book? A. Yes, sir.” Thereupon counsel moved the court to strike out the entries on page 2 of Exhibit D, because they were hearsay, incompetent, and immaterial, not the best evidence, and because no proper foundation had been laid sufficient to authorize the book to be received in evidence. The court overruled the motion, and the defendant excepted. This was the only way by which the state attempted to trace the car load of cattle from the railroad company into the hands of the stockyards company, and from that company to the consignee. It thus appears that the evidence in question was very material, and without it the stolen cattle were not traced into the possession of the plaintiff. It is therefore necessary for us to determine whether the court erred in receiving the book Exhibit D in evidence. This book was not a book of accounts; neither was it a book of original entries, nor the original record of the transaction relating to the car load of stock sought to be traced from the possession of the plaintiff into the hands of Shelley, Rogers & Co. It...