State v. Barretta

Citation155 P. 343,47 Utah 479
Decision Date29 January 1916
Docket Number2779
CourtSupreme Court of Utah
PartiesSTATE v. BARRETTA et al

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Victor Barretta, Joe Melea, and another were indicted for larceny and, the last two defendants being convicted, they appeal.

REVERSED AND REMANDED.

Thomas Marioneaux, and L. L. Baker, for appellants.

A. R Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The three defendants, Barretta, Melea, and Tomljenovich, were, by the information, jointly charged with the larceny of a steer. We shall refer to them as B., M., and T. The case was proceeded against the last two named defendants only, who were convicted and appeal.

T., with others as partners, was engaged in the butcher business at Tooele. M. resided at Stockton, in the same county. He had resided there about five years. His business was that of a miner and leaser. He also traded horses, bought and sold cows, and did some butchering. B. was in his employ. About a week before the alleged larceny, M. sold four head of cattle to a competitor of T. and his partners. He was thereupon solicited to procure cattle for T. and his firm, and in pursuance of which it was arranged that T., M., and B. should go to a place known as Orr's ranch in Skull Valley to purchase cattle. M. took with him $ 600 for that purpose. On a Saturday night they reached a place called Russell's ranch owned by M. There they stayed all night. The next morning M. and T. proceeded on to Orr's ranch. They left B. at the Russell ranch, M. giving him $ 150 with which to buy cattle if he found any among the farmers in that vicinity.

From this point the evidence is in conflict. T. and M. testified that they went to the Orr ranch, and, finding no cattle there, returned in the afternoon to the Russel ranch. As they approached, they saw B. driving two head of cattle toward the ranch. He informed them that he had purchased them from a cowboy and paid him ninety dollars for them, and returned the other sixty dollars of the $ 150 to M. The three proceeded to Stockton; M. and T., most of the way, riding in a wagon ahead, and B. following with the cattle. From there the cattle were driven by T. and B. to Tooele. The next day M. went to Tooele, when one head was disposed of to T. and his firm, and the other to their competitor. M. then returned to Stockton.

B., a witness for the state, testified that M. and T., in the morning, left him at the Russel ranch to take care of the horses; that, when he next saw them in the afternoon, they came along driving the two head of cattle; and that then the three proceeded to Stockton. There is no doubt that the cattle were stolen. To inquiries of the sheriff, B., in M. and T.'s presence, stated that he had purchased them in Skull Valley from a cowboy with a smooth face, dark complexion, and about thirty-five years of age. On the witness stand B. admitted making such statements, but testified that they were false, and that he made them because he was coerced and told to do so by M. The three were arrested. M. furnished bail for B. M. asked B. to take him to the man whom he claimed had sold the cattle. B., at two different times, took M. to a place called Condie's ranch where they saw two men, but B. was not able to find the man whom he claimed had sold the cattle. Later B. escaped, or went away. M., who was on his bond, offered a reward for his recapture and sent men out to search for him. He was apprehended and rearrested.

B., after testifying, in effect, that he had not, but that T. and M. had, stolen the cattle, was asked on cross-examination:

"Don't you understand that your case is to be dismissed if you will testify against the defendants (appellants) in this case?"

To this the district attorney objected upon the ground of an assumption not shown by the record. The court sustained the objection on the ground of indefiniteness, calling for the witness' "understanding" instead of what "some one had told him." Here, the ruling is defended on the ground that such matter was cross-examination within the discretion of the court. It is familiar doctrine (5 Jones, Commentaries on Evidence, Section 826) that:

"For the purpose of testing the credibility of a witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, inclinations and prejudice, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description."

As effecting credibility, the question was pertinent inquiry of motive and interest, and, for that purpose, was competent. The state concedes that, but urges that the matter rested within the discretion of the court. No doubt, in many instances, the manner of conducting the examination of a witness, and the course of proceeding in the cross-examination, are matters resting in the sound discretion of the trial court (Jones, Section 826) and also, no doubt, may limit a needless prolongation of a cross-examination, or unnecessary repetitions of interrogations. But the court may not deny the right of legitimate cross-examination itself. Says Jones (section 828):

"It has frequently been held that it is error not to permit cross-examination as to the state of feeling or bias of the witness. But the extent of such cross-examination is within the sound discretion of the court. * * * Nevertheless, the range of cross-examination should not be restricted within bounds so narrow as not to embrace questions affording the defendant a reasonable opportunity to test the accuracy and show, if he can, the falsity of the statements of the witness. * * * The defendant's right of cross-examination, if so abridged and confined to such limits as to be useless to him, amounts to a denial of an absolute and valuable right; for, while the court has a large discretion as to the range and extent to be permitted on cross-examination, the discretion does not extend to the denial of cross-examination going to substantial matters within legitimate bounds."

The defendant, to affect the credibility of the witness, had the undoubted right, on cross-examination, to show the motive or interest of the witness. To deny that is to deny one of the fundamentals of cross-examination itself. The state claimed the witness was an accomplice. The court, in submitting the case, charged, "the state concedes that the witness Barretta is an accomplice," and that, "if he was guilty of the theft or participated therein," a conviction could not be had on his testimony alone. Appellants contended that he alone was the thief. He himself, with the appellants, was jointly charged with the offense. The inquiry of whether he did not understand that "your case is to be dismissed if you will testify against these defendants" undoubtedly tended to show motive and interest. The court indicated that inquiries could be made as to whether any promise of immunity had in fact been made him, but that his "mere understanding" that the case was to be dismissed, if he testified against the appellants, was too indefinite and speculative. This is well answered by the court in the case of State v. Kent, 4 N.D. 577, 62 N.W. 631, 27 L. R. A. 686. Said the court:

"The only object of proving that the accomplice has or has not been promised total or partial immunity is to strengthen or weaken his credibility by showing that his testimony is given possibly without hope, or that in giving it he may be influenced by an expectation of total or partial exemption form punishment, as a reward for such testimony. Even if no express promise of immunity is made, the accomplice may be led to believe by something in the conduct or speech or tone of voice of some one connected with the prosecution that nevertheless his testimony involving another in guilt with him will earn him some consideration at the hands of those who control his fate. We are therefore clear that, even when all the positive evidence is against the proposition that any express promise has been made, it is competent to ask the accomplice, as affecting his credibility, whether he expects to have full punishment meted out to him. Even when the accomplice has nothing in the way of word or conduct from any one connected with the prosecution on which to build an assurance, he may have some expectation--leading all the way from a faint glimmer of hope to confident belief--that, if his testimony results in the conviction of another, he himself will reap some reward."

The main factor was the state of mind of the witness; hence what "he understood," or expected, or believed with respect to granting him immunity or amelioration, is the very kernel in the shell. It is also familiar doctrine that great latitude is allowed in cross-examining an accomplice including "questions tending to injure his credit or to prove his accuracy or veracity." 2 Elliott on Evidence, Sections 9, 10. All the texts say, and all the cases hold, that. We think the court erred in the ruling and thereby denied appellants a substantial right.

Another point is made with respect to testimony of good character. A witness was called who testified that he had lived in Stockton for forty years and there knew M. for three and one-half years, and that "I know his general reputation for honesty and integrity in Stockton, and that it is good." On cross-examination he was asked, "How did you find out his general reputation" and answered "Well, I had business with him. As far as my business with him is concerned, I know his...

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