People v. La Munion

• Decision Date: 03 February 1887
• Citation: 64 Mich. 709,31 N.W. 593
• Court: Michigan Supreme Court
• Parties: PEOPLE v. LA MUNION.

31 N.W. 593

64 Mich. 709

PEOPLE v. LA MUNION.

Supreme Court of Michigan

February 3, 1887

Exceptions from Newaygo.

Indictment for larceny.

Moses Taggart, Atty. Gen., for the People.

William D. Fuller, for defendant.

SHERWOOD, J.

The respondent was convicted, in the Newaygo circuit, at the last September term, of the larceny of a yoke of oxen of the value of $100. The case comes before us for review on exceptions before judgment.

The record contains a bill of exceptions not including all the testimony, and from which it appears that the cattle stolen belonged to George Mowatt, a farmer who lived at the time in the township of Croton, in Newaygo county; that the cattle were last seen by the owner on the twenty-fifth day of August, 1885, at about 2 o'clock in the afternoon; that he missed them the next morning about 9 o'clock; that he did not find them until the next January, when he discovered them at Ravenna, many miles distant, in the county of Muskegon, in the possession of one Patterson; that the respondent lived in the township of Brooks, adjoining Croton when the cattle were stolen, and but a few miles from Mowatt. The record also states that the people introduced witnesses from Muskegon, who gave testimony tending to show that on the twenty-eighth day of August, 1885, the respondent was seen in the city of Muskegon in possession of the stolen oxen, and was offering them for sale, and finally did sell them to a cattle dealer, who afterwards sold them to said Patterson, in whose possession Mr. Mowatt found them in January, 1886, at Ravenna.

At this stage of the case, counsel for respondent moved to strike out the testimony given by the Muskegon witnesses, on the ground that it was incompetent and immaterial; that no sufficient testimony had been given to warrant a verdict of larceny of the cattle. The court overruled the motion, and this ruling is made the basis for respondent's first and second assignments of error. We think these exceptions were not well taken. The people had not yet concluded their testimony in the case, and the testimony offered was competent to go to the jury. Besides, the testimony given by the Muskegon witnesses is not stated in the record, but only what it tended to show in the opinion of the circuit judge. Under such circumstances, it is impossible for this court to say error was committed in allowing the case to proceed. Error, to avail, must be made to appear upon the record, and not left in doubt.

Two additional witnesses, John Train and E.R. Baker, were sworn and examined on the part of the people, and who were acquainted with the respondent, and gave testimony tending to show that they met the respondent in the township of Ashland in Newaygo county, driving a pair of cattle, which, according to their best judgment, were those stolen, and respondent was offering them for sale. The exact date of the meeting witnesses were unable to state, but, as given by Train, was "two weeks before the seventeenth day of September 1885, during the middle of the week," at about 8 o'clock in the morning. Witness Baker's testimony was to the effect that he was with Train at the time the cattle were seen in possession of the respondent, and heard him offer them for sale; and he gave some testimony tending to identify one of the oxen. Said he could not give the date of the occasion, but thought it was in September, and about six weeks after the twenty-eighth of July, 1885.

Respondent's counsel here objected to the "testimony of the witnesses Train and Baker as incompetent and immaterial, and having no tendency to prove the charge against the respondent, no larceny, in fact, of said cattle having been proven by the people, and because the testimony of other witnesses, who claim to have seen respondent with the cattle in the city of Muskegon, fixes the date as August 28, 1885, and the witnesses Train and Baker fix the date when it is claimed they saw respondent with the cattle in Newaygo county, at a time prior to said twenty-eighth day of August, 1885; and the people have made time material in this case the defense being an alibi; and further moved to strike said testimony of Train and Baker from the record, for the reasons aforesaid, which objections and motion were overruled by the court." We see no error in this ruling. The circumstances stated by these witnesses were proper to go before the jury. If the occasion referred to by them was before the cattle were sold in Muskegon, the testimony was very important; and the court instructed the jury in the charge, unless they found such to be the fact, they could not consider the testimony. With this instruction, no harm could well come from the testimony.

The case, upon the testimony and circumstances, was one proper for the consideration of the jury, and the court committed no error in allowing them to pass upon it. The court charged the jury upon the subject of time, referred to by the witnesses as follows: "Now, there has been testimony given to show that two men saw the respondent in possession of these oxen in this [Newaygo] county, and they tell you about when. One of them says that it was on or near--uses the word 'near'--two weeks before the seventeenth day of September, in that year. If it was just two weeks before the seventeenth day of September, that would make it, as a matter of course, the third day of September. If that was the date they were seen absolutely, then it would be after the twenty-eight day of August, and the testimony ought not to be considered. If it was, however, prior to the twenty-eighth day of August,--if, instead of saying 'two weeks,' he should say 'three,' which would make it about the time, the twenty-eight of August,--then the testimony would be material, and ought to be considered. I say 'at or near.' He says it was on or near two weeks. On the other hand, the other witness states that it was about six weeks after the...