Jolliffee v. State
| Decision Date | 27 May 1922 |
| Docket Number | A-3763. |
| Citation | 207 P. 454,21 Okla.Crim. 278 |
| Parties | JOLLIFFEE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Before the evidence taken at a former trial or a preliminary hearing can be introduced against the accused at the final trial it must appear that the witness is dead, insane, sick, or beyond the reach of the process of the court, and that the presence of the witness with reasonable diligence cannot be procured.
a. Where such witness escapes from jail, and becomes a fugitive from justice, and is held in confinement to answer criminal charges in another state, in the absence of collusion it is not incumbent upon the state to make an effort to have such witness returned for final trial as a condition precedent to the introduction of his evidence taken at a former hearing.
b. If the officers of the court by collusion or agreement are responsible for the absence of such witness, his testimony taken at a former hearing should not be permitted to be used at the final trial.
In a prosecution for the larceny of cattle, where the value of the cattle at the time and place of the theft is at issue, the purchase price of other cattle at distant places 30 days before or 30 days after the theft is inadmissible.
Where it is admitted that, if the defendant is culpably implicated in the theft at all, the witness was an accomplice, the question of whether he was an accomplice is a question of law for the court, and not a question of fact for the jury, and the jury should be so instructed.
An instruction relating to the previous good character of the defendant qualifiedly approved.
A conviction will be set aside where the state's case rests almost wholly upon the testimony of an accomplice corroborated only by circumstances not inconsistent with the innocence of the accused, amounting at most to a mere suspicion.
Appeal from District Court, Nowata County; C. W. Mason, Judge.
D. W Jolliffee was convicted of cattle larceny, and he appeals. Reversed and remanded.
Bert Van Leuven, of Nowata, J. I. Howard, and A. M. Beets, both of Oklahoma City, for plaintiff in error.
S. P Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
D. W. Jolliffee, plaintiff in error, hereinafter referred to as the defendant, was by information filed in the district court of Nowata county, March 18, 1919, charged with the theft of 12 head of cattle, the property of Marion Dawson. At the trial, November 4, 1919, the jury returned a verdict finding the defendant guilty as charged, without assessing the penalty. After a motion for a new trial was heard and overruled, on November 8, 1919, the court pronounced judgment upon the verdict, assessing the punishment at confinement in the state penitentiary at McAlester for a term of 7 years. Thereafter, on the 28th day of January, 1920, the defendant filed a motion for a new trial on the ground of newly discovered evidence, which motion was later by the court overruled. From the judgment and orders made the defendant appeals.
The undisputed evidence is to the effect that Marion Dawson was the owner of the 12 head of cattle involved in this action; that he had resided at Watova in Nowata county for a number of years, during which time he had been extensively engaged in grazing and raising cattle; that during the fall of the year 1918 he had placed 140 head of steers on premises belonging to Ocie Freeman; that Ocie Freeman was a negro, residing about a mile from the pasture or inclosure in which these cattle were running; that about the 3d day of December, 1918, Freeman discovered that the fence inclosing this pasture had been broken down, and that some of the cattle had escaped to the commons and lands adjacent; that Freeman had these cattle rounded up and driven back into the pasture, and the fence repaired, and upon counting the cattle found that 12 head of steers were missing. Later he discovered a place in the wire fence inclosing the pasture where there were indications that some posts had been pulled up and the fence laid on the ground, and cattle tracks and tracks of two horses were found, leading away from the pasture. Later these tracks were traced some miles distant, towards Coffeyville, Kan. Dawson and his employés made inquiry at Coffeyvnle, and found that H. D. Barnett, the owner of a meat market there, and an extensive dealer in cattle, had purchased these 12 head of cattle from Al Spencer. It appears that the defendant Jolliffee was a son-in-law and associate or employé of Barnett in the buying and disposing of cattle; that he was for some time the chief buyer for the concern; and that he negotiated the purchase of these 12 head of cattle. Four of the 12 head so purchased by Barnett had been slaughtered and the other 8 head had been placed in a wheat pasture of Barnett's, along with a number of other cattle belonging to him. Upon inquiry by Dawson, Barnett exhibited the hides of the slaughtered animals, which were identified by Dawson by the brand used by him. Barnett then informed Dawson and his employé where the other 8 head could be found. Barnett, being satisfied that the cattle were stolen and belonged to Dawson, voluntarily turned them over to him.
The testimony of Al Spencer is to the effect that he, assisted by one Hill, stole these cattle from the Freeman pasture the night before they were sold to Jolliffee, pursuant to a previous agreement with the defendant, and that the defendant met Spencer with the cattle about 5 miles south of Coffeyville, where he paid for them with a check of the amount of $500, drawn on the account of Barnett; that Spencer, before reaching the Kansas line, turned and rode back towards Lenapah. Later he appeared in Coffeyville, and, with the aid of the indorsement of an employé of Barnett, cashed the check given him by Jolliffee. Spencer was arrested soon afterwards for this and other thefts, and placed in jail in Nowata county. After the preliminary trial in this case, and while the case against Spencer was pending, Spencer escaped from jail and fled to Kansas, where he committed other thefts, and fled to Colorado, being later apprehended in that state. He was then returned to the Kansas authorities, where he was being held at the time of the trial of this defendant.
The main portions of the testimony of Al Spencer taken at the preliminary hearing, constituting the foundation of the state's claim that this defendant was an accomplice and implicated in the theft, are as follows:
Examination by State.
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