Kelly v. State

• Decision Date: 18 May 1897
• Citation: 71 N.W. 299,51 Neb. 572
• Parties: KELLY v. STATE.
• Court: Nebraska Supreme Court

51 Neb. 572

71 N.W. 299

KELLY

v.STATE.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. The action of the trial court in excluding testimony merely cumulative held not prejudicial, if erroneous.

2. A witness, whose name was not indorsed on the information, may be called on rebuttal, and give testimony which is obviously and purely rebuttal, or on a subject first brought into the case in the evidence of the defense, and which is in rebuttal of, and made necessary by, such evidence introduced by the defense; but may not give testimony which is not directly and plainly rebuttal, or which tends to prove the commission of the crime, and might properly have been introduced on the part of the state as of its evidence in chief.

3. The action of the trial court in refusing to give certain instructions examined and approved.

Error to district court, Burt county; Powell, Judge.

George Kelly was convicted of larceny, and brings error. Reversed.H. E. Carter, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

HARRISON, J.

The plaintiff in error was prosecuted in the district court of Burt county under the provisions of chapter 77 of the Session Laws enacted during the session of the legislature of 1895, for the alleged crime of stealing one steer, of the value of $20, the property of one Henry C. Sawtell; was convicted, and sentenced to confinement in the penitentiary. The case has been removed to this court for review of the proceedings of the trial court.

The first assignment of error to which our attention is directed by the brief of counsel is that the trial court excluded certain of the evidence which it was sought to elicit from Ed Taylor when he appeared as a witness on the part of plaintiff in error. The steer the plaintiff in error was charged with stealing was sold by him in Blencoe, Iowa, September 29, 1895, and the testimony which was excluded was of the fact that the witness had been requested by the plaintiff in error to go to the wagon in which the steer had been hauled to Blencoe, and in which it was then standing, to look at it, with a view to its purchase; the object of the evidence being to show that the plaintiff in error was openly offering the animal for sale in the market, and observing no secrecy in regard to it. The main fact had been proved by other witnesses, and was not disputed; hence the rights of plaintiff in error were not prejudiced by the exclusion of the testimony, and there was no available error.

During the progress of the trial it became material to determine the identity of the steer. Whether the one sold by plaintiff in error at Blencoe was the one which had been missed from the herd of Mr. Sawtell was made a material issue, and on this subject there was testimony that the one which Sawtell claimed had been stolen was branded, but the brand had become or was so dim as to be scarcely discernable. Sawtell testified that the animal had been branded immediately “behind its left shoulder”; that the brand was a straight bar, two or three inches in length, and, in answer to the question as to how plainly it was to be seen, that (quoting his words): “It was a very light brand. Unless I should have known that there should have been a brand there, I would not have supposed there was one there;” and, further, that he knew it was there, “because our cattle were all branded when we bought them.” On the part of the defense it was shown that there existed no mark or brand on the animal which was sold by the accused at Blencoe. Among the witnesses who stated this last to be true were the two men who slaughtered the steer at Blencoe, and who further testified that they examined to...