Sparks v. Territory of Oklahoma

• Decision Date: 07 June 1906
• Docket Number: 2,347.
• Citation: 146 F. 371
• Parties: SPARKS v. TERRITORY OF OKLAHOMA.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F. 371

SPARKS v. TERRITORY OF OKLAHOMA.

No. 2,347.

United States Court of Appeals, Eighth Circuit.

June 7, 1906

Louis C. Boyle (U. F. Guthrie and A. F. Smith, on the brief for plaintiff in error.

Don C Smith (W. O. Cromwell, on the brief) for the territory of Oklahoma.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The defendant below was tried and convicted of larceny of 32 steers in the territory of Oklahoma about September 1, 1902. There was evidence at the trial that these steers were the cattle of one George Storm; that they were in a pasture about 17 miles from the town of Woodward, in Oklahoma; that they disappeared from this pasture about August 25, 1902; that the defendant put them in a pasture within three miles of Woodward on that day; that he shipped them from the station of Woodward to Ben L. Welch & Co., commission merchants at Kansas City, on August 27, 1902; and that Storm found them there on the next day, and recovered them. The defendant testified that he had been engaged in purchasing cattle for many years; that on August 25, 1902, he had been out hunting and was returning toward Woodward when he overtook two men driving these cattle toward that town; that one of them informed him that his name was F.E. Read, and that the cattle were for sale; that he bought them of Read, took a bill of sale of them, which he produced at the trial and paid him $250 in cash, and gave him a draft for $710 on Ben L. Welch &amp Co., to whom he shipped the cattle. The draft was received by Welch & Co., in a letter which reads in this way:

'Woodward O.T. Aug., 25, 1902.

'Ben Welch Commission Co., Kansas City, Mo.-- Dear Sir: Inclosed please find draft on your firm for seven hundred and ten dollars, given to me by A. G. Sparks in part payment on 32 head of steers. Please send amount of same to my credit at Woods County Bank, Alva, Okla.

'Yours truly,

F.E. Read.'

Here is a copy of the draft:

'The Gerlach Bank.

'Woodward, Okla., Aug. 25, 1902.

'At sight pay to the order of F.E. Rad $710.00, seven hundred and ten dollars, part payment on thirty-two steers.

A.G. Sparks.

'To Ben L. Welch & Co., Stock Yards, Kansas City, Mo.'

Welch & Co. were seasonably notified that the cattle had been stolen, and they never paid the draft. Counsel for the territory produced three bankers, and asked each of them if there was any method known to banking institutions whereby this draft could be paid without an indorsement by the payee Read. Counsel for the defendant objected to this question, on the ground that it was incompetent, irrelevant, and immaterial. The objection was overruled, and an exception was noted. The first witness answered: 'No, there is none. Sometimes, by an oversight, they are; but they should be indorsed. ' The second said: 'Why, if it pass through the bank's hands, you are always required to indorse it. ' But on cross-examination he testified that if the draft was attached to the letter of instructions he expected the bank would take it. The third replied that it would be irregular if the draft was cashed without the indorsement of the payee.

Every litigant has the legal right to a fair and impartial trial of the issues which his case presents according to the law and the evidence applicable to those issues alone. The submission to the jury for their consideration of extraneous issues, or of evidence which is neither relevant nor material to the question upon trial, is a violation of this right, and it constitutes a fatal error, because it tends to withdraw the attention of the jury from the issues actually involved, and to lead them to decide the case upon false issues, and in that way to reach an erroneous result. Northwestern Mutual Life Ins. Co. v. Stevens, 18 C.C.A. 107, 112, 71 F. 258, 263; Railroad Co. v. Houston, 95 U.S. 703 24 L.Ed. 542; Railroad Co. v. Blessing, 14 C.C.A. 394, 398, 67 F. 277, 281; Union Pac. R. Co. v. Field, 137 F. 14, 15, 17 69 C.C.A. 536; Frizzell v. Omaha St.Ry.Co., 59 C.C.A. 382, 384, 124 F. 176, 178; Equitable Life Assur.Co. v. McElroy, 28 C.C.A. 365, 376, 83 F. 631, 642. The only issue in this case was whether the defendant stole the cattle or purchased them from Read. The draft payable to Read was...