Harris v. State

• Decision Date: 04 January 1916
• Docket Number: 784
• Citation: 23 Wyo. 487,153 P. 881
• Parties: HARRIS v. STATE
• Court: Wyoming Supreme Court

153 P. 881

23 Wyo. 487

HARRIS v. STATE

No. 784

Supreme Court of Wyoming

January 4, 1916

ERROR to the District Court, Goshen County; HON. WILLIAM C MENTZER, Judge.

Frank Harris was convicted of the crime of grand larceny. Motion for new trial overruled and defendant brings error. The facts are stated in the opinion.

Judgment reversed and cause remanded.

Donzelmann & Howell, for plaintiff in error.

The objection to leading questions propounded to witness McCarty, should have been sustained. (State v Ogden, 65 P. 449; State v. Burgland, 91 N.W. 318.) Objections to questions propounded to witness, Griffin, as to the condition of defendant's mind should have been sustained on the ground of incompetency. (Territory v. McKern, 26 P. 123.) The objection to the question propounded to witness, Karpf, should have been sustained on the ground that it was leading. (People v. Elster, 3 P. 384, 3 West Coast, 33; 1 Greenleaf, Secs. 197-199; State v. Ogden, supra.) Also the objection to the question propounded to witness, Karpf, as to the value of the animal in Nebraska, as it was immaterial and incompetent. It was error to admit the Wyoming brand book in evidence, that record showing the brand in question to be owned by another. (Donner v. State, 95 N.W. 40.) It was error to admit the certificate of the State Board of Live Stock Commissioners, which record referred to the brand. (Donner v. State, 100 N.W. 305.) Testimony of witness, Bridges, should have been stricken out, as immaterial. Questions asked witness, McCarty, were leading and should have been stricken. (Hardtke v. State, 30 N.W. 723.) The testimony of witness, Yoder, should have been stricken out, as incompetent. (Donner v. State, supra; State v. Jackson, 95 Mo. 623, 652; State v. Martin, 129 S.W. 881.) The testimony of witness, Hayes, should have been excluded for irresponsiveness and immateriality. (State v. Jackson, supra.) The criminal warrant received in evidence marked Exhibit C should have been excluded. There being no evidence of flight, it was error to admit evidence relating to defendant's arrest in Nebraska and his refusal to return for trial without a requisition. (Clock v. State, 19 N.W. 542.) The questions asked witness, Sawyer, objected to by defendant, should have been ruled out. Said questions all relate to transactions in Nebraska, which were irrelevant. The refusal of the court to permit defendant to give testimony in explanation of his refusal to return without a requisition was erroneous. (State v. Baird, 88 P. 233.) It was error to permit the cross-examination of defendant with reference to his imprisonment in Nebraska. (People v. Manasse, 94 P. 92.) The court erred in refusing defendant's requested instruction number 2. (McNeally v. State, 5 Wyo. 68.) The court erred in refusing to give defendant's requested instructions three and four. (Cablick v. People, 4 Mich. 292; Crim. Def., Vol. 5, p. 531.) The court erred in refusing to give defendant's instructions numbered eight and nine, which were clearly within the law and the evidence. (State v. Young, 82 N.W. 420; Pruit v. People, 5 Neb. 377; Sandage v. State, 61 Neb. 240; Frudie v. State, 66 Neb. 244; O'Grady v. People, 95 P. 346; Brickwood Instructions, Sec. 4498.) Instruction numbered eight, given by the court, was erroneous. (Sec. 5827, Comp. Stats. 1910.) And number nine as given was erroneous. (People v. Matthai, 67 P. 694.) Instructions numbered ten, eleven, twelve and thirteen as given were erroneous. (State v. Jackson, supra; Ingalls v. State, 4 N.W. 785; State v. Walters, 34 P. 938; Robinson v. State, 18 Wyo. 217; McNeally v. State, supra.) Instruction numbered fourteen was erroneous. (State v. Wittun, 9 N.H. 519; Singleton v. Johnson, 9 M. & W. 67; Richard De Kentland v. Somars, 2 Root, 437.) Instruction numbered fifteen as given might be construed as coercing the jury to agree. The verdict is not sustained by the evidence.

D. A. Preston, Attorney General, for the State.

The first assignment of error with reference to testimony concerning where the cattle ranged is without merit. (State v. Ogden, 65 P. 449.) The objection made to the question as to the condition of defendant's mind was practically sustained by the court. Assignments three and four do not present prejudicial error. The allowance of leading questions is largely within the discretion of the court. (Bolton v. State, 146 Ala. 691; Gibson v. State, 47 Tex. C. A. 489; Burch v. State, 49 Tex. C. A. 13.) The several exceptions based upon the admission of evidence with reference to value can hardly be considered prejudicial. (Odell v. State, 44 Tex. C. A. 307.) The Wyoming brand book was clearly admissible as evidence. The assignment of error as to the ownership of the brand was cured by cross-examination. (Rufus v. State, 117 Ala. 131.) The motion to strike out all of the evidence of witness, Bridges, was properly overruled for the reason that plaintiff in error cross-examined the witness fully on all his direct testimony. (Rhodes v. State, 141 Ala. 66; Miller v. State, 130 Ala. 1; People v. Scealomiero, 143 Cal. 343; State v. McDonough, 104 Ia. 6; Wigmore on Evidence, Vol. 1, Sec. 775.) The general assignment of error with reference to twenty-four questions occurring in the testimony of witness, Hayes, all relating to the refusal of defendant to return without a requisition and his efforts to evade arrest, all related to material circumstances, which were proper for the jury to consider. (12 Cyc. 396-397.) The court very properly refused to permit the impeachment of the witness, McCarty, for the reason that his evidence covered immaterial matters. The exceptions taken to instructions given, and to requested instructions refused, do not appear to be meritorious.

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

OPINION

POTTER, CHIEF JUSTICE.

Frank Harris was convicted of the crime of grand larceny in the district court sitting in and for Goshen County, upon an information charging him with stealing one head of neat cattle of the value of $ 35, the property of Curtis E. Griffin. A motion for new trial was duly filed and overruled, the ruling thereon excepted to, and the case is here on error.

1. A preliminary question is raised upon exceptions to the proceedings and order of the district court amending the bill of exceptions after the term at which it was allowed and signed, and after it had been filed in this court. The bill was ordered returned to the district court, on the application of the Attorney General, for the purpose of allowing a motion to amend it to be made and heard in that court, but, following our usual practice when granting such an application, without then finally deciding as to the sufficiency of the showing to authorize the proposed amendment. (See Stockgrowers' Bank of Wheatland v. Gray, 144 P. 294.) Upon a hearing in the district court an order was entered amending the bill so as to correct what is claimed to have been a mere clerical mistake in transcribing from the notes of the official court reporter parts of the testimony describing a certain brand as observed on the animal alleged to have been stolen, or as used by the alleged owner of such animal to mark and identify his cattle, and other parts referring by name or description to that brand. It was sought by the prosecution to prove the larceny by testimony describing the brand on an animal--a two-year-old steer--observed at one time in the defendant's pasture and afterwards in his immediate possession, together with evidence as to the ownership of the brand. This brand was referred to by description several times in the testimony, either in a question propounded to a witness or in his answer. And at every place but one in the official typewritten transcript of the testimony incorporated in the bill, where the brand appears to have been mentioned by name or description, it was designated as N--X--N. The single exception was in transcribing the answer of the witness Curtis E. Griffin, Jr., to the question, "What brand do you use?" That answer appeared in such transcript as "X--N--X."

Such a delineation of a brand would usually indicate the use of a horizontal line or mark between the letters as a part of the brand, for it is a matter of common knowledge in this state that such a mark forms a part of many cattle brands. and is generally spoken of or referred to in that connection as a "bar." Hence the ordinary verbal description of the brands set out in the transcript as above would be, respectively: N bar X bar N, and X bar N bar X. But the brand owned by Curtis E. Griffin, Jr., who the prosecution claimed was the owner of the alleged stolen animal, was shown by the record proof to be NXN, without any mark or character between the letters. This discrepancy in the evidence as shown by the bill was pointed out in the brief of plaintiff in error and urged as a ground for the contention that the evidence was insufficient to sustain the verdict. Thereupon the application was made to withdraw the bill for the purpose of amendment, it being alleged in support thereof that the use of a "dash" separating the letters of the brand was an error in transcribing the reporter's notes and misrepresented the testimony describing or mentioning the brand. On the hearing of the motion to amend the bill in the district court the official court reporter was sworn as a witness and permitted to produce and explain his shorthand notes of the trial respecting such brand, over the objection of defendant's counsel, and upon comparing the transcript aforesaid with his notes he testified in substance that where X--N--X appeared in the transcript as the answer of Curtis E. Griffin, Jr., to the question, "What brand do you use?" it was a typographical error, for his...