Eads v. State

• Decision Date: 22 May 1909
• Parties: EADS v. STATE
• Court: Wyoming Supreme Court

101 P. 946

17 Wyo. 490

EADS v. STATE

Supreme Court of Wyoming

May 22, 1909

ERROR to the District Court, Big Horn County; HON. CARROLL H PARMELEE, Judge.

Upon an information charging Charles W. Eads with the crime of larceny of a horse of the value of $ 100, he was tried and convicted. He thereupon prosecuted error. The facts are stated in the opinion.

Affirmed.

E. E Enterline and Victor T. Johnson, for plaintiff in error.

The contents of a telegram can only be proved by the paper itself if it is in existence, and it is therefore incompetent to ask a witness whether he wrote or sent a telegram containing certain matters stated in the question without first showing the telegram to the witness and asking him whether he wrote the same. (Greenleaf's Ev., Sec. 463; 1 Jones Ev., Secs 209, 232; 3 Id. Sec. 850.) It was error therefore for the court to permit the attorney for the state to ask the defendant on cross-examination whether he knew that his attorney had wired to have the horse claimed to have been stolen attached in another state to which it had been shipped, no effort having been made to prove that the telegram was lost or could not be produced. Nothing could be more damaging to a party than evidence tending to prove the suppression or destruction of evidence by him. (Hay v. Peterson, 6 Wyo. 419.)

Counsel for the State having, on cross-examination, shown that defendant's witness Berg had talked over the description of the horse or horses in question with defendant's attorneys, it was error for the court to exclude the testimony offered by counsel for the defendant to show that the witness had described the horse to counsel without any suggestion by the latter.

Counsel for the State improperly asked the defendant if he was the father of Kize Eads and received the answer that he was. The prejudicial character of the question not having been learned until subsequently by counsel for the defendant, the misconduct of the State's counsel did not appear in time to offer a pertinent objection to the question, therefore, the court should have granted a new trial on the ground of such misconduct, the same being fully set out in the motion for a new trial.

The authorities seem to be conflicting as to whether a witness may be discredited by a showing that he has been arrested or indicted. It is held in some courts that the mere fact of arrest and indictment amounts to nothing more than an accusation which may be wholly without foundation, and that questions referring merely to such arrest or indictments are inadmissible on cross-examination as having no bearing upon his credibility. (State v. Howard, 102 Mo. 142; Pullen v. Pullen, 43 N. J. Eq. 136; State v. Grant, 104 Mo. 56; People v. Crapo, 76 N.Y. 288; People v. Irving, 95 N.Y. 541; Marks v. Hilsendegon, 46 Mich. 336.) In other jurisdictions it has been held that the credibility of a witness may be attacked by showing that he has been charged with the commission of an infamous crime, or that he has been arrested for a crime involving moral turpitude. (Jackson v. State, 33 Tex.Crim. 281; Carroll v. State, 32 Id. 431; Driscoll v. People, 47 Mich. 413; Hanoff v. State, 37 O. St. 178; Hill v. State, 42 Neb. 503.) We maintain that it was prejudicial to ask the defendant about his being prosecuted for horse stealing in another county. (Johnson v. State, 8 Wyo. 494.) If, however, it should be held that such cross-examination was proper then we insist that it was error to sustain the objections to the cross-examination of the State's witness Fedders, the object of which examination was to show previous criminal prosecution of said witness.

W. E. Mullen, Attorney General, for the State.

A verdict will not be disturbed for a conflict of evidence if there be sufficient evidence to sustain it. The weight of the evidence is for the jury. (Keffer v. State, 12 Wyo. 49; Edwards v. Murray, 5 Wyo. 153.) The examination of the defendant with reference to the sending of the telegram for the attachment of the horse in Nebraska, claimed by the prosecution to be the animal stolen, was for the purpose of showing that the defendant had sought to suppress or intercept evidence which was desired by the prosecution. It was not shown that the defendant had anything to do with the sending of the telegram, and the evidence finally brought out, even though irrelevant, was of small importance, and cannot be held to have been prejudicial.

There was no attempt on the part of counsel for the State to show that the witness Berg had been coached by counsel for the defendant, and hence it was immaterial on re-direct examination to show that the witness and not counsel had given the description of the horse in their consultation. It is perfectly proper for counsel to consult witnesses who are to be introduced by his client upon the trial.

There is nothing in the record to show that any member of the jury knew Kize Eads, the son of the defendant, either personally or by reputation, and hence there is nothing to show that the reference on cross-examination of the defendant to the fact that he was the father of Kize Eads was prejudicial.

It is conceded that there is a conflict of authority as to whether a witness may be discredited by a showing that he has been arrested and indicted. (30 Ency. Law, (2nd Ed.) 1086.) A defendant in a criminal prosecution testifying in his own behalf comes under the rule as to credibility applicable to witnesses generally. (Younger v. State, 12 Wyo. 24.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error who was the defendant below and who will be referred to as the defendant was charged by information in the district court of Big Horn County with having, on the 31st day of October, 1908, committed the crime of larceny of a horse of the value of one hundred dollars, the personal property of R. W. Hale. He was arraigned, plead not guilty, tried, convicted and brings the case here on error.

1. The defendant seeks to predicate error on the alleged misconduct of H. S. Ridgely, an attorney at law, who assisted the county and prosecuting attorney in the trial of the case, in asking upon cross-examination of the defendant who testified in his own behalf the following question, viz: "You are the father of Kize Eads?" to which question the defendant made answer: "Yes, I guess I am." This question was not germane to anything brought out on direct examination nor was it relevant to any issue in the case. It was not objected to on the ground of irrelevancy or at all nor was the answer made the subject of a motion to strike but went to the jury unchallenged in any way. No attempt was made to disclose its prejudicial character to the court until after verdict. Upon motion for a new trial in support of which one of counsel for defendant made affidavit in substance as follows: That he, the attorney for the defendant, was not informed as to the character of Kize Eads when the question was propounded. That since the trial affiant has learned that said Kize Eads had a very bad reputation for honesty and integrity in the said county as to being law abiding and has learned that he was compelled to leave the county on account of warnings received that he would be violently dealt with if he did not leave. That one of his associates had been foully dealt with and that immediately thereafter the said Kize Eads received notice that if he did not leave the said county he would likewise be foully dealt with and that he did leave the county to escape personal violence. That on information and belief the question was asked of the defendant concerning his relation to Kize Eads for the sole and only purpose of calling the attention of the jury to the fact that the defendant was related to a person who had a bad reputation and thus prejudice the defendant in the minds of the jury, and for no other purpose whatever. That affiant took no exception or made no objection at the time for the reason that he did not know until after defendant had left the witness stand that Kize Eads was a man of bad reputation and of the facts connected therewith, and that the affiant lives in Sheridan County.

Whatever merit there may be in this showing it is and was apparent at the time the question was asked that it called for irrelevant testimony. The court undoubtedly would have sustained an objection upon that ground had an objection been made. Had that been done the alleged misconduct of counsel would have been eliminated. There was no counter affidavit and however reprehensible the conduct of counsel may have been the court's attention was not called by timely objection to the alleged misconduct. Without such objection and an exception taken at the time to an adverse ruling and the opportunity offered the trial court by means of such objection to correct such misconduct the question cannot be here considered. This court has so held in Horn v. State, 12 Wyo. 80, 73 P. 705, and in Curran v. State, 12 Wyo. 553, 76 P. 577. The question was not sought to be raised until after verdict. It was then too late.

2. Other alleged acts of misconduct of the said Ridgely with reference to examining witnesses are complained of but they were not objected to at the time. An exception to the alleged misconduct is not of itself sufficient (State v. Waters, 36 Wash. 358, 364, 78 P. 897; Rangenier v. Seattle Electric Co. (1909), 52 Wash. 401, 100 P. 842), and under the rule above announced error if any in that respect was not preserved in the record.

3. The defendant was sworn and testified as a witness in his own behalf. It is urged that the court erred in overruling the objections interposed by him to each and all of the following questions propounded by counsel for the State...