Roberts v. State

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtKNIGHT, JUSTICE.
Citation11 Wyo. 66,70 P. 803
Decision Date09 December 1902
PartiesROBERTS v. STATE

70 P. 803

11 Wyo. 66

ROBERTS
v.
STATE

Supreme Court of Wyoming

December 9, 1902


ERROR to the District Court, Sheridan County, HON. JOSEPH L. STOTTS, Judge.

George A. Roberts was charged by information filed in the District Court in and for Sheridan County, in two counts, with the larceny of certain neat cattle. The prosecution elected to prosecute upon the first count. The State relied upon possession by the defendant of the animals alleged to have been stolen, and proof that defendant had obliterated the brand of the owners and placed his own or his wife's brand upon the animals. The defendant claimed that he had purchased the animals from one of the witnesses for the State, and produced testimony in support of that claim. He denied that he had obliterated any brand, but admitted placing his own brand upon a steer, one of the animals in question, which, he claimed, was before that without a brand. The party from whom defendant claimed to have purchased the steer denied having sold the same to defendant. Defendant was convicted as charged in the information, and prosecuted error. The other material facts are stated in the opinion.

Affirmed.

A. M. Appelget, W. E. Mullen and E. E. Enterline, for plaintiff in error.

Under the statutes of this State a party producing a witness may contradict him, and may also prove that at other times he has made statements inconsistent with his present testimony, but before such proof can be given the particular circumstances must be called to the attention of the witness, and he must be permitted to explain. (R. S., Sec. 3685.) Under the above statute, the exact language used by the witness should be put to him by counsel. In other words, it was not the intention of the Legislature to change the general rules of evidence concerning impeachment of a witness.

It is not necessary to object to questions propounded by the court to a witness, and, if objectionable, the same may constitute reversible error where prejudicial. (State v. Crafts (Wash.), 60 P. 403.)

The defendant testified in his own behalf. He testified that he purchased the steer from Zeke Arrington, witness for the State. He further testified that Arrington came to his ranch, offered to sell him some cattle, and gave as a reason that he (Arrington) needed the money to send some girl out of the country. On motion of State's counsel, this was stricken out. On objection having been sustained to question propounded by his counsel as to what Arrington said to him concerning why he (Arrington) needed the money, an offer was then made by defendant's counsel to prove by defendant that Arrington then stated to defendant that he (Arrington) had had illicit relations with a certain girl, and that he needed the money to send the girl out of the State; that the offer was made to show a circumstance as to the price fixed, namely $ 25, for the two head purchased, one being the steer in question. The offer was excluded.

As the complaining witness had testified that the steer was worth from $ 30 to $ 40, the testimony excluded was competent and relevant for the purpose of explaining why the defendant was able to purchase the same for less than the market value. While the record does not disclose the fact, it was argued by counsel for the State in their address to the jury that the defendant had purchased the cattle for considerable less than the market value. There is no doubt but what the court erred in excluding this evidence. The defendant had a right to place all the facts before the jury in relation to his connection with the property in controversy. He had a right to explain all the circumstances concerning his purchase and possession. In the exclusion of the testimony he was denied the right to explain his possession fully, the very thing he was called upon to do. It requires no citation of authority that the exclusion of the testimony offered was prejudicial error.

The instruction (quoted in opinion) as to possession of stolen property was erroneous, because it assumes as a fact that the defendant was in possession of property recently stolen--a matter which the jury must determine.

It is not the mere possession of property recently stolen from which an inference of guilt may arise, but the unexplained possession of property recently stolen. The defendant had a right to have his explanation considered by the jury. The instruction took away that right. It wholly ignored the defendant's explanation as to how he came into the possession of the steer in controversy. This principle of law was omitted in all the instructions. The giving of the instruction with the omission stated was in itself prejudicial error. (Gillespie v. State (Kan.), 63 P. 742; Orr v. State, 107 Ala. 35; Williams v. State, 40 Fla. 480; 74 Amer. St. Rep., 154.) The instruction is objectionable and erroneous in that it singles out one particular feature, namely, the branding, and gives undue prominence to such branding. (11 Ency. Pl. & Pr., 185; 2 Thomp. on Trials, Sec. 2330; Proffatt on Jury Trials, 319; 11 Ency. of Law (1st Ed.), 253; Hix v. People, 157 Ill. 382; 41 N. E., 862; Graff v. People (Ill. 1890), 29 N. E., 563.)

In instructing the jury that certain facts, if proven, were strong criminating circumstances tending to prove the guilt of the defendant of the theft of the property, the court invaded the province of the jury. It was a question for the jury alone to determine from all the facts in the case as to the strength or weakness of any portion of the testimony. The universal holdings of the courts under statutes like ours, or under the practice which obtains in our State, sustain our contention in this regard. (11 Ency. Pl. & Pr., 91-102; Dobson v. State, 46 Neb. 250; 64 N. W., 956; State v. Mandich, 24 Nev. 336; 54 P. 516; Cooper v. State, 29 Tex. App., 8; 25 Amer. St. Rep., 712; Baker v. State, 80 Wis. 416; 50 N. W., 518; People v. Cline (Cal.), 16 P. 391; Williams v. State, 60 Neb. 526; 83 N. W., 681; Van Straaten v. People, 26 Colo. 184; 56 P. 905; Williams v. State, 40 Fla. , 480; 74 Amer. St. Rep., 154; State v. Hodge, 50 N. H., 510; State v. Bliss, 68 P. 87; State v. Hale, 12 Ore., 352; 7 P. 523.)

The next instruction objected to is the following: "No. 8. You are further instructed that, if you believe from the evidence, beyond all reasonable doubt, that the defendant, at or about the time and place alleged in the information, found the animal in question, and took it to his ranch, and there obliterated the brand on the animal in question, and if you further believe from the evidence that such brand so obliterated (if you find such to be the case) belonged to R. T. and M. W. Mason, then, I charge you, that such obliteration of said brand is a circumstance to be taken into consideration by you, bearing upon the intention of the defendant in taking the said animal, and if you further believe from the evidence, beyond a reasonable doubt, that the defendant, at or about the time mentioned in the information, placed his own brand on said animal, this is a strong criminating circumstance tending to prove the guilt of the defendant of the crime of stealing live stock, as charged in the information."

The mere finding and taking the animal to his ranch would not constitute a stealing. There must be a felonious taking. The placing of his own brand on the animal in no sense would be a strong criminating circumstance tending to prove that the defendant stole it. Such obliteration of a brand, with intent to steal or to prevent the identification thereof, might tend to prove that the defendant was guilty of misbranding live stock, which is a substantive offense in this State. (R. S., 4989.) This instruction is clearly erroneous, for under it the defendant could be found guilty of misbranding live stock, a crime with which he was not charged. (Williams v. State, 40 Fla. 480; 74 Amer. St. Rep., 154; State v. Tucker, 76 Ia. 232; 40 N. W., 725.) It ignores the principle of possession of property recently stolen--the unexplained possession thereof--and invades the province of the jury.

Another instruction of which the defendant complains is the following: "No. 9. The court instructs you that, if you believe from the evidence that Zeke Arrington stole the animal in question in Sheridan County, Wyoming, at any time prior to the filing of the information in this case, and that the value of such animal so stolen was the sum of $ 5 or upwards, and if you further believe from the evidence, beyond a reasonable doubt, that the defendant aided, encouraged, counseled, advised or abetted the said Arrington in the larceny of such animal, you can find him guilty of stealing live stock as charged in the information."

There was no evidence whatever introduced tending to establish the fact that Arrington was the principal and Roberts an accessary. It is improper to give an instruction where there is no evidence on which to base it, or to submit to the jury matters which there is no evidence tending to prove. (11 Ency. Pl. & Pr., 170; 1 Bishop's New Crim. Proc., Sec. 978; Clark's Crim. Proc., Sec. 464 et seq.)

Conceding, for the sake of argument, that the defendant aided Arrington in the commission of the larceny, still this would not imply that the defendant was an accessary. The word "aid" does not imply guilty knowledge or felonious intent. (People v. Dole (Cal.), 55 P. 581.)

The defendant was not charged with larceny, but with the crime of stealing live stock, and it was improper for the court to instruct on a crime with which the defendant was not charged. The defendant was charged under the provisions of Revised Statutes, Section 4988, and not under the provisions governing larceny. (R. S., Sec. 4984.)

Over the defendant's objection and exception, the following instruction was also given: "No. 10. You are instructed that, if you believe from the evidence, beyond a reasonable doubt, that the defendant stole...

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5 practice notes
  • Krucheck v. State, No. 83-35
    • United States
    • United States State Supreme Court of Wyoming
    • October 20, 1983
    ...supra, 636 P.2d 1107; Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Flanders v. State, 24 Wyo. 81, 156 P. 1121 (1916); Roberts v. State, 11 Wyo. 66, 70 P. 803 7 Instruction No. 1, in pertinent part: "You are the exclusive triers of the facts and of the effect and value of the evidence, but ......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Ed.) Sec. 739.) It is believed to be error for the court to call attention to particular facts and lay stress upon them. (Roberts v. State, 11 Wyo. 66; Gustavenson v. State, 10 Wyo. 301.) It being clearly shown that defendant could not have stolen the property, the only inference to be draw......
  • Younger v. State
    • United States
    • United States State Supreme Court of Wyoming
    • August 20, 1903
    ...authorities, that the unexplained possession of recently stolen property is presumptive evidence of guilt. In Roberts v. State, 70 P. 803 (11 Wyo. 66), this court said that an instruction stating that the possession of recently stolen property, and certain other facts enumerated in the inst......
  • Gardner v. State, 960
    • United States
    • United States State Supreme Court of Wyoming
    • April 4, 1921
    ...to be considered. Robinson v. State, 18 Wyo. 216. But it is only a circumstance and must be aided by other evidence, Roberts v. State, 11 Wyo. 66-84; Methard v. State, 19 Ohio St. 363. It must be shown that the possession was exclusive and that defendant was conscious of having the same in ......
  • Request a trial to view additional results
5 cases
  • Krucheck v. State, No. 83-35
    • United States
    • United States State Supreme Court of Wyoming
    • October 20, 1983
    ...supra, 636 P.2d 1107; Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Flanders v. State, 24 Wyo. 81, 156 P. 1121 (1916); Roberts v. State, 11 Wyo. 66, 70 P. 803 7 Instruction No. 1, in pertinent part: "You are the exclusive triers of the facts and of the effect and value of the evidence, but ......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Ed.) Sec. 739.) It is believed to be error for the court to call attention to particular facts and lay stress upon them. (Roberts v. State, 11 Wyo. 66; Gustavenson v. State, 10 Wyo. 301.) It being clearly shown that defendant could not have stolen the property, the only inference to be draw......
  • Younger v. State
    • United States
    • United States State Supreme Court of Wyoming
    • August 20, 1903
    ...authorities, that the unexplained possession of recently stolen property is presumptive evidence of guilt. In Roberts v. State, 70 P. 803 (11 Wyo. 66), this court said that an instruction stating that the possession of recently stolen property, and certain other facts enumerated in the inst......
  • Gardner v. State, 960
    • United States
    • United States State Supreme Court of Wyoming
    • April 4, 1921
    ...to be considered. Robinson v. State, 18 Wyo. 216. But it is only a circumstance and must be aided by other evidence, Roberts v. State, 11 Wyo. 66-84; Methard v. State, 19 Ohio St. 363. It must be shown that the possession was exclusive and that defendant was conscious of having the same in ......
  • Request a trial to view additional results

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