State v. George

• Decision Date: 05 March 1929
• Docket Number: 1509
• Citation: 40 Wyo. 95,275 P. 112
• Parties: STATE v. GEORGE [*]
• Court: Wyoming Supreme Court

275 P. 112

40 Wyo. 95

STATE v. GEORGE ^[*]

No. 1509

Supreme Court of Wyoming

March 5, 1929

APPEAL from District Court, Converse County; CYRUS O. BROWN, Judge.

Robert George was convicted of larceny and he appeals.

Reversed.

W. F Mecum and Raymond & Fitzgerald, for appellant.

Evidence of possession of stolen property by a third person is not admissible in a larceny charge. 36 C. J. 896; Morgan v State, (Tex.) 136 S.W. 1065; State v. Anders, (N C.) 77 So. 238; State v. Rawson, (Mo.) 259 S.W. 421; Sapp v. State, 77 S.W. 456. Evidence of possession by accused of property not proven to have been stolen is inadmissible. Smith v. State, 68 S.W. 510; People v. Wallace, (Ill.) 136 N.E. 723; Grant v. State, 58 S.W. 1026. Acts or declarations of co-conspirator, made after the conspiracy not in presence of defendant are inadmissible. 16 C. J. 656, 658; State v. Gilles, (Utah) 123 P. 93; Smith v. People, (Colo.) 88 P. 453; Wells v. State, (Okla.) 113 P. 210; Baker v. State, (Ind.) 93 N.E. 14. An inference may not be based upon another inference. U. S. v. Ross, 23 L.Ed. 707; Com. v. Parsons, (Mass.) 81 N.E. 291; State v. Alten, (Minn.) 117 N.W. 617; People v. Jackson, (N. Y.) 103 N.E. 1117. Error in the admission of evidence or giving of instructions is presumed to be prejudicial. State v. Goodage, (Ore.) 106 P. 638; Green v. State, (Okla.) 120 P. 667; State v. Solon, (Mont.) 89 P. 829; State v. Scott, (Nev.) 142 P. 1053; Porter v. State, (Ind.) 91 N.E. 340; People v. Muhly, (Calif.) 104 P. 466. Erroneous admission of evidence is not cured where not stricken until close of case, and is then withdrawn by instruction. 17 C. J. 326-327 and cases cited. Evidence in corroboration of an accomplice must come from some source other than accomplice, and tend to connect the defendant with the crime charged. State v. Brown, 124 N.W. 899; 16 C. J. 701; McNeally v. State, (Wyo.) 36 P. 824. The giving of an instruction not having application to the evidence is erroneous. 17 C. J. 342; State v. Bamhs, (N. D.) 149 N.W. 965; State v. Alten, (Mont.) 87 P. 177; Lockhart v. State, (Okla.) 139 P. 1136. The uncorroborated testimony of an impeached accomplice, is insufficient to sustain a conviction, McNeally v. State, supra. Note in 21 L. R. A. (N. S.) 848 and cases cited. Wallace v. State, (Nebr.) 135 N.W. 539; Sollon v. State, 203 S.W. 50; State v. Griggs, 150 P. 921; O'Dair v. State, (Okla.) 180 P. 253; State v. Shrock, (Mont.) 198 P. 137; State v. Erickson, (S. D.) 146 N.W. 1071. Unfair questioning by the prosecutor is prejudicial. Roggers v. State, (Okla.) 127 P. 365; Green v. State, 120 P. 667. Where evidence is not free from doubt, and verdict was apparently the result of passion or prejudice, reviewing court should reverse. People v. Bolik, (Ill.) 89 N.E. 700; Green v. State, (Okla.) 170 P. 667; State v. Miller, (Mo.) 137 S.W. 887; Ren v. State, 132 P. 1131.

William O. Wilson, Attorney General, and Richard J. Jackson, Assistant Attorney General, for respondent.

The evidence of witness Cooper was admissible to show the general scheme of the conspirators to steal sheep. Burns v. State, (Okla.) 129 P. 657; Bond v. State, (Okla.) 129 P. 666. The testimony of Hammond corroborated that of Cooper as to the conspiracy. McNeally v. State, 5 Wyo. 59. A person having knowledge may testify as to disappearance of stolen property. 36 C. J. 879; Johnson v. State, 47 Ala. 62; State v. Corrington, (N. C.) 105 S.E. 324. Error in admission of evidence is cured by the introduction of the same evidence by the other side. 38 C. J. 1432; 16 C. J. 651. The trial court correctly defined the term accomplice, leaving the jury free to decide, whether any witness was an accomplice. Clay v. State, 15 Wyo. 42. Defendant did not request an instruction as to what constituted corroboration. Smith v. State, 10 Wyo. 157. The court may instruct as to the law applicable to given facts when established. 16 C. J. 941; Ferris v. State, (Ind.) 59 N.E. 475. Failure to give instructions is not error, in the absence of a request. Smith v. State, 17 Wyo. 481; Haines v. Territory, 3 Wyo. 168. The instructions correctly state the law applicable to the case. Dalzell v. State, 7 Wyo. 450; Loy v. State, 26 Wyo. 381; Flanders v. State, 24 Wyo. 81; Downing v. State, 11 Wyo. 86; Ross v. State, 8 Wyo. 351. A recommendation by the jury of leniency, in pronouncing sentence, is addressed to the discretion of the court. 16 C. J. 1111. No objections were made as to the conduct of the prosecuting attorney. Eads v. State, 17 Wyo. 490; Horn v. State, 12 Wyo. 80; Curran v. State, 12 Wyo. 553. A jury may convict upon the uncorroborated testimony of an accomplice. Smith v. State, 10 Wyo. 157. It was the rule at common law, and is in effect in this state. 4547 C. S. The evidence showed that the conspiracy continued until February 23, 1927.

W. F. Mecum and Raymond & Fitzgerald, in reply.

The brief of respondent fails to comment upon or rebut propositions advanced by the appellant. Cross-examination upon evidence, erroneously admitted over objection, waives the objection. 26 R. C. L. 1052; 33 L. R. A. (N. S.) 103; Storey v. Green, 130 P. 871; Brey v. Morestal, (Wis.) 138 N.W. 644; Kleinschmidt v. State, 218 N.W. 384. Corroboration is clearly defined in the case of McNeally v. State, (Wyo.) 36 P. 824. See also People v. Morton, (Calif.) 73 P. 609; State v. Loy, (Wyo.) 110 P. 986; 12 Cyc. 456. The evidence was clearly insufficient to support the verdict and the judgment should be reversed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Robert George was tried in the District Court of Converse County on an information charging him with the larceny of twenty-one sheep belonging to the Fiddleback Company, a Wyoming corporation. A conviction having resulted, he appeals, and in this discussion, he will be referred to either by his own name or as the "defendant" for the sake of clarity, as other parties of the same surname appear in the record.

An outline of the case for the State touching the matters material to be considered here, is shortly this: One James Cooper, who had worked at odd jobs in four or five different states and had come to Wyoming about six month previous to the occurrences we have now to consider, was staying at the home of Harry George and meanwhile was engaged in trapping for furs. Harry George was a brother of the defendant, as was also Hubert George presently to be mentioned. It appears that the family has lived in Wyoming for many years.

Cooper testified that on January 1, 1925, Harry George suggested that they steal some of the Fiddleback sheep which were being kept on what was called the Dunn ranch, not far from the Harry George home on LaBonte; that the same day Harry and he discussed the matter with the defendant in the front room of the latter's home, after dinner; that the defendant then said he would take all the sheep he had money to buy at $ 3.50 per head; that Cooper stated he would get the sheep and take them to Harry's place, whereupon the defendant remarked that he had a man who would take them out of the country; that Cooper and Harry made an effort to get sheep that same night, but failed; that from January 1st to and including January 5th, 1927, Cooper, in the course of several trips to where the sheep were kept, stole either twenty-one or twenty-three of them from the Dunn ranch, the thefts being committed about seven o'clock in the morning and the sheep carried to and placed in a chicken house located near Harry George's home; that on the evening of January 3, 1927, Cooper met the defendant, both went over to the location of the sheep, and after talking with the herders in control of the animals, Cooper and defendant went back across the creek, rode through the sheep and each got one; that they carried the animals up the creek and tied them in the brush. Cooper testified that he remembered no conversation being had with any of the George brothers by him before he started out on these several trips to get sheep. Other than those mentioned above, no more sheep appear to have been taken. Cooper also stated on the witness stand, that on each of the evenings of the 3rd and 5th respectively of January, 1927, about 9:30 or 10:00 o'clock, the defendant came and got him, both then went to the chicken house where the sheep had been put by Cooper and there they found one George Hammond with a team and wagon; that they loaded ten sheep each time into the wagon and then Hammond drove away with the sheep towards the west; that thereafter in February sometime, defendant paid Cooper $ 3.50 and told him that Hubert George owed defendant $ 50 and he would have Hubert pay Cooper that amount and "that would square us all the way around." A check was received in evidence in that amount, dated February 23, 1927, payable to Cooper and signed by Hubert George. On cross examination Cooper admitted that he was in jail charged with the theft of these sheep, that he had given a bad check and had to borrow money from Hubert George to make it good; that he had worked for Hubert from July to October, 1926, in the preceding year; that he had borrowed $ 50 from Hubert to apply on the purchase price of an auto, which he bought March 12, 1927; that Hubert shipped furs for Cooper along with his own fur shipments and paid him for them; that Cooper began work again for Hubert March 3, 1927, and remained engaged there until he was arrested for stealing these sheep on April 25th following. It was proven by the testimony of the court reporter that Cooper had made previous contradictory statements concerning the details of stealing the sheep.

From the testimony of the Fiddleback manager, Carol Mohr, it appeared that the company had about three thousand sheep at the Dunn ranch;...