Kelly v. State

• Decision Date: 18 May 1897
• Docket Number: 9002
• Parties: GEORGE KELLY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

71 N.W. 299

51 Neb. 572

GEORGE KELLY v. STATE OF NEBRASKA

No. 9002

Supreme Court of Nebraska

May 18, 1897

ERROR to the district court for Burt county. Tried below before POWELL, J. Reversed.

REVERSED AND REMANDED.

H. E Carter, for plaintiff in error.

C. J Smyth, Attorney General, and Ed P Smith, Deputy Attorney General, for the state.

OPINION

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 discernible. 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 ascertain as to the existence or nonexistence of a brand on the animal at the time it was killed and dressed by them. On rebuttal there was called a witness, whose name was not indorsed on the information, who testified in regard to branding animals, and that where the branding iron touches the animal lightly, and does not burn the flesh, it makes a mark which is known as a "hair brand," which may disappear, or almost so, in a short time. The counsel for the accused objected to this witness testifying, on the grounds that the testimony was not proper rebuttal, and that the name of the witness had not been indorsed...