Jones v. State

• Decision Date: 29 September 1919
• Docket Number: 935
• Citation: 26 Wyo. 293,183 P. 745
• Parties: JONES v. STATE
• Court: Wyoming Supreme Court

183 P. 745

26 Wyo. 293

JONES v. STATE

No. 935

Supreme Court of Wyoming

September 29, 1919

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

William L. Jones was convicted of larceny and brings error. The material facts are stated in the opinion.

Reversed.

H Donzelman, for plaintiff in error.

The evidence is insufficient to sustain conviction; the only evidence upon which the jury could find the verdict of guilty is the testimony of one Bush, who stood in the relation of an accomplice, and whose testimony was not corroborated (Stone v. State, 118 Ga. 705; Kelly v People, 192 Ill. 119; Com. v. Scott, 123 Mass. 222; State v. Kubbman, 152 Mo. 100; People v. Hare, 57 Mich. 505; People v. O'Neil, 109 N.Y. 251; Ayers v. State, 88 Ind. 275; People v. Mimi, 120 Mich. 530; U. S. v. Smith, 27 F. Cases No. 16322; U. S. v. McKee, 26 F. Cases, No. 15685). He admitted participation in the theft and must be considered an accomplice (Bauer's Law & Collection Co. v. Bradbury, 84 P. 1007; Campbell v. Campbell, 120 Iowa 317; Wingen v. May, 99 Mo. 809). His testimony was contradicted by several witnesses as to material matters; he was at the time under sentence for conviction on a horse stealing charge on a plea of guilty; he was shown to be of bad character and undeserving of belief. The testimony of Frank Sinon should have been excluded.

The testimony of Frank Sinon was a matter of surprise that ordinary prudence could not have guarded against, and a motion for new trial should have been granted on that ground (Blackburn v. Crowder, 110 Ind. 127). A new trial should have been granted on the ground of newly discovered evidence (State v. Albert, 114 La. 70, and cases cited). The verdict is unsupported by sufficient evidence.

W. L. Walls, Attorney General; T. Paul Wilcox, Deputy Attorney General; L. C. Sampson and Sam M. Thompson, for defendant in error.

There is no statutory requirement in this state that the testimony of an accomplice shall be corroborated in order to sustain conviction; under the common law a conviction upon the uncorroborated testimony of an accomplice will stand, if it satisfies the jury of the guilt of the accused beyond a reasonable doubt (Crawford v. State, Tex. 34 S.W. 927; Armstrong v. State, 26 S.W. 829-830, 33 Texas Cr. Rep. 417; Walker v. State, Tex. 37 S.W. 423; Anderson v. State, 45 S.W. 15, 39 Texas Cr. Rep. 83; Harris v. State, 75 Tenn. 124, 126). The assignment of error on the ground of accident and surprise was addressed to the discretion of the trial court and the ruling thereon is not reviewable (Cross v. People, 47 Ill. 152, 158, 95 Am. Dec. 474; In re. Rowe U. S. 77 F. 161, 165, 23 C. C. A. 103; Polk v. State, 36 Ark. 117, 126; Miller v. Commonwealth, 78 Ky. 15, 22, 39 Am. Rep. 194; Barrara v. State, 42 Texas 260, 263; Moynahan v. People, 167 P. 1175, 1176). There was no error in refusing a new trial on the ground of newly discovered evidence, it not appearing that defendant used diligence to procure the same, prior to the trial (Talbot v. McDougall, 3 Upper Canada Queens Bench Rep., Old Series, p. 644; Seward v. Cease, 50 Ill. 228; Bender v. Keil, 34 Misc. N. Y. 395, 69 N.Y.S. 655).

BEARD, CHIEF JUSTICE. POTTER, J., and BURGESS, DISTRICT JUDGE, concur. BLYDENBURGH, J., being unable to sit, HON. JAMES H. BURGESS, Judge of the Fourth Judicial District, was called in and sat in his stead.

OPINION

BEARD, CHIEF JUSTICE.

The plaintiff in error, William L. Jones, was convicted of the crime of larceny and sentenced to a term in the penitentiary. From that judgment he brings the case to this court by proceedings in error.

The errors assigned are: 1. Insufficiency of the evidence to support the verdict and judgment. 2. Newly discovered evidence.

The property alleged to have been stolen was a certain gray mare the property of Wesley Kelly. The evidence discloses that the mare was put in the barn of Kelly, situated a little more than a mile from the town of Pine Bluffs, where Kelly resided, about 5:30 or 6 o'clock on the evening of November 21, 1916, and disappeared therefrom some time between that hour and the next morning. The only evidence in the record tending to connect Jones with the larceny is the testimony of one Bush, a witness for the prosecution, a young man about twenty-one years of age at the time of the trial, who had theretofore been convicted of the larceny of a horse upon a plea of guilty, and was at the time of the trial under sentence therefor in the industrial institute in this state, and who admitted that he had stolen other horses. His testimony was to the effect and substantially as follows: That he went to the ranch of Jones, which is about twenty-two miles from Pine Bluffs, on the evening of November 20, 1916, for the purpose of going to work for Jones. On the next day he accompanied Jones to Pine Bluffs with a load of wheat, where they arrived in the evening about five o'clock, unloaded the wheat at the elevator, put up the team in Anderson's livery barn and went together to supper about seven o'clock. After supper went to Robinson's store, remained there about an hour, saw Mr. Hastings, Mr. Jones and Mr. Bloom there. Went from there to Johnston's store, where Jones and Hastings came in, was there probably twenty minutes and went out with Hastings and Jones. Went with them to MacSheedy's, was there fifteen or twenty minutes. Went from there with Hastings and Jones to Simon & Sellers' saloon, was there a short time, went from there to the drug store, then back to the saloon. Saw Jones and Hastings there. Stayed there a few minutes. Went to Anderson's livery barn. Jones and Bloom were there. Was there a few minutes and went back to saloon, where Jones came in later. Jones motioned to me to follow him outside. Hastings went out at same time. Hastings, Jones and I went to Anderson's livery barn. Jones said he wanted to give Hastings the slip. Jones and I went to Bloom's barn. Found Bloom there. On the way down Mr. Jones had told me he had a horse down at Frank Bloom's barn he wanted me to ride out to his place. I told him all right, so we went into Frank Bloom's barn and he pointed the horse out. The horse was already saddled and bridled, and he said: There is the horse. They told me to be careful of this horse, that he hadn't been ridden much. Jones told me that, and also gave me instructions not to tie my reins together, so if she got away and throwed me or anything I could catch her again, and Bloom spoke up and told Jones to tell me to go out the State line road, and I didn't do it. It must have been about eleven o'clock. (On cross-examination he said 10:30.) That he led the horse out in the street, got on it and rode out to Jones' place, arriving about four o'clock in the morning, put the horse in the barn, fed it, talked with Mrs. Jones, who was in bed. Jones came home about five o'clock in the evening. He told me Wesley Kelly was looking for this mare, that he had been down past Frank Bloom's place with a car, and that he had to get her out of there that night; that Kelly might be out there the next morning. After he put his team away and got supper, he saddled his horse and gave me instructions to saddle my horse. He said it would be best for me to go along, as they might come looking for me. He told me it was Kelly's mare. Jones led the Kelly mare and rode one of his, and I came along behind on a horse of mine, and we went north and east about forty miles across country until about two o'clock the following morning. Jones left me in the pasture there, said he would ride down to the house and see if this fellow was there, where he was going, came back and said it was all right. We took the mare down and put her in the barn. A fellow by the name of Nelson came out and Jones introduced me to Nelson. We went in the house and Nelson got Jones and I a bite to eat and some coffee. We sat there and talked quite a while. I went to bed and Jones and Nelson sat up and talked. Jones came in while I was asleep and we slept together. We got up the next morning about the same time, about eight or nine o'clock. Jones planned to go home in the afternoon and instructed me to stay...