State v. Nesbit

Decision Date19 December 1895
Citation43 P. 66,4 Idaho 548
PartiesSTATE v. NESBIT
CourtIdaho Supreme Court

GRAND LARCENY-SUFFICIENCY OF EVIDENCE.-When there is absolutely no evidence to sustain the verdict, or where the evidence so preponderates against the verdict as to justify the presumption that it was rendered under the influence of passion or prejudice, the verdict should be set aside.

SAME-VERDICT.-When the circumstances on which a verdict is based can be as reasonably explained upon some other reasonable hypothesis than that of defendant's guilt or as perfectly consistent with defendant's innocence, then a new trial should be granted.

(Syllabus by the court.)

APPEAL from District Court, Boise County.

Judgment reversed and defendant discharged.

Wyman &amp Wyman, for Appellant.

There are no authorities cited in their brief, the same being a statement of the case nearly the same as in the opinion, and a recitation of the evidence given on the trial.

Attorney General George M. Parsons, for the State.

The only reference in the transcript to exceptions to the instructions is as follows: "And thereupon said defendants, by their attorneys, to each, every and all of said instructions then and there duly excepted." This court has repeatedly held that such an exception is not sufficient to a charge given by the court of its own motion. Appellant cannot avail himself of this objection, and error cannot now be urged. We further call attention to the fact that the transcript nowhere shows when the objections to the instructions were taken. (State v. Preston, ante, p. 215, 38 P. 694-696; State v. Schieler, ante, p. 120 37 P. 272; State v. Hurst, ante, p. 345, 39 P. 554 555.) "It is unnecessary to prove the whole of the property stated in an indictment, if, by rejection of the part not proved, the offense would be complete." (State v. Moore, 14 N.H. 451-455; Swinney v. State, 8 Smedes & M. 576-584.) "It is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified." (Rex v. Hunt, 2 Camp. 585, cited in Swinney v. State, supra.) There is nothing whatever in the record in the remotest degree indicating passion or prejudice. If individual jurors were biased or prejudiced, they should have been challenged. It is too late to raise this question after verdict. We simply cite the court to 1 Thompson on Trials, secs. 114-116. The assignment that the verdict is contrary to the evidence, this court has held that the question of the sufficiency of the evidence is for the jury, and if there is any legal evidence this court will not disturb the verdict on that ground. (United States v. Camp, 2 Idaho 231, 10 P. 226; People v. Ah Hop, 1 Idaho 698; State v. Jorgenson (Idaho), 32 P. 1129; State v. Thorp, 94 Iowa 746, 64 N.W. 265, 266.) The appellate court will not grant a new trial on the ground that the verdict is contrary to the evidence, if the evidence is conflicting and there is any evidence to sustain the verdict. (People v. Brown, 27 Cal. 500; People v. Starnge, 61 Cal. 496; People v. Darr, 61 Cal. 554; People v. Anthony, 56 Cal. 397; State v. O'Brien, 3 Idaho 374, 29 P. 38.) "In order to justify the appellate court in setting aside a verdict, on the ground that it is opposed to the evidence, the evidence must be so overwhelming against the verdict as to justify the presumption that it was rendered under the influence of passion or prejudice." (People v. Vance, 21 Cal. 400.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

The defendant, Watson M. Nesbit, Jr., was on the ninth day of August, 1894, jointly indicted with his father, Watson M. Nesbit, Sr., for the crime of grand larceny. The indictment charged that on October 5, 1893, the defendants did feloniously steal, etc., twelve twenty-dollar gold pieces, three ten-dollar gold pieces, four five-dollar gold pieces, one $ 100 bank note, denominated "national currency," all United States money, and one gold English sovereign, dated 1826--all the property of William Frame. The defendants were arraigned, pleaded not guilty, and by the verdict of the jury Nesbit, Sr., was acquitted, and Nesbit, Jr., was convicted, with a recommendation of mercy to the court. The defendant Nesbit, Jr., was sentenced to two years' imprisonment in the state penitentiary. Defendant's motion for a new trial was overruled. This appeal is from the order denying a new trial and the judgment.

The facts, as they appear from the record, are substantially as follows: Watson M. Nesbit, Sr., on or about the eighth day of September, 1893, arrived at Placerville, Idaho from Utah, and remained there over night with Thomas Mootry, Jr., and the next day went with him to Quartzburg, when said Mootry placed him in charge, as superintendent, of the mines there being operated by the Gold Hill Mining Company, the owners of which were Thomas Mootry, Jr., and David and W. A. Coughanour. Watson M. Nesbit, Jr., arrived in Quartzburg from Utah on the fourteenth day of September, 1893, and went to work for said company, under his father, as superintendent. He had charge of the cyanide plant, did assaying, etc. And it further appears that shortly after said Nesbit, Sr., was appointed superintendent of said company, several other men arrived from Utah, and went to work for said company; that the complaining witness, William Frame, had been foreman of said company for a long time prior to the said appointment of Nesbit, Sr., and was removed therefrom without his (Frame's) request or resignation. The company owned a Tilton & McFarland safe, which was situated in what is called the "old office" of the company, a new office having been built adjoining the old one, and the old one turned into an assay office. Said William Frame had, while foreman of said company, charge of said office and safe, and on the appointment of Nesbit, Sr., as superintendent, he delivered the keys of and possession of said office and safe to said Nesbit, Sr. Some time thereafter the witness Frame got the key to the safe from Nesbit, Sr., and opened the safe, and put therein the watches and rings referred to. Nesbit, Sr., placed his son (this defendant) in charge of said assay office, and gave him the key to the safe. On the night of the 5th of October, 1893, the safe was robbed of a gold bar of the value of about $ 500, and some amalgam, belonging to the Gold Hill Company; and it is claimed that said Frame had in said safe, at the time of the robbery or theft, money of the kinds and denominations above set forth, also two watches, three finger rings, and two specimens of gold quartz, all of which, it is claimed, were taken by the robbers. The indictment, however, only charges these defendants with the theft of the money above described. It is shown that the morning of the 6th of October, 1893, Nesbit, Jr., went to the office about 7 o'clock, went in, and shortly after came out of the office, and went directly to his father, Nesbit, Sr., and reported to him that the office had been "looted"; whereupon they returned to the office, and found Nesbit, Jr.'s, trunk broken open, its contents strewn about the room. A bent file was found lying on the floor, and some injury done to another trunk, which the burglars failed to open. Also the safe was open, and the bar of gold and amalgam gone, and the money and property claimed by said Frame to have been therein was also missing. There were also some pieces of tin and paper found on the floor. Strips of the tin were fashioned somewhat after the key to said safe. On December 8, 1893, the defendants, while on their way from Quartzburg to Utah, were arrested at Idaho City, and searched by the sheriff of Boise county and his deputy. On Nesbit, Sr., among the other things, was found a $ 100 United States silver certificate or note; and on Nesbit, Jr., was found $ 290 in gold coin of the United States and an English gold coin known as a "sovereign." Said gold coins were found in a buckskin purse, suspended by a string around the neck of Nesbit, Jr., and drawn up close under his left armpit, next to the flesh. At the same time were arrested six other persons who were on their way to Utah with the Nesbits, and who had been at work for said mining company under the superintendency of Nesbit, Sr. All of the parties so arrested were released except Nesbit, Jr. Thereafter Nesbit, Sr., and Nesbit, Jr., were indicted, tried for said larceny and, as above stated, Nesbit, Sr., was acquitted, and Nesbit, Jr., convicted, and is now serving out the sentence imposed, in the state's prison.

The above state of facts we think sufficient for the purposes of this decision. Several errors were assigned, and a reversal of the judgment demanded. The principal error relied on is that the verdict is contrary to law and the evidence.

As to the contention that the verdict is contrary to the evidence The rule is well established that if the evidence is conflicting, and there is any evidence to sustain the verdict, it will not be disturbed. (United States v. Camp, 2 Idaho 231, 10 P. 226; People v. Ah Hop, 1 Idaho 698; State v. Jorgenson, 3 Idaho 620, 32 P. 1129; State v. O'Brien, 3 Idaho 374, 29 P. 38.) In People v. Vance, 21 Cal. 400, the court says: "In order to justify the appellate court in setting aside a verdict, on the ground that it is opposed to the evidence, the evidence must be so overwhelming against the verdict as to justify the presumption that it was rendered under the influence of passion or prejudice." When tested by these rules, is the verdict sustained by the evidence? There is no evidence whatever tending to identify the $ 100 silver certificate or note, or the gold coin of the United States--the former found on the person of Nesbit, Sr., and the latter on the...

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26 cases
  • State v. Seymour
    • United States
    • Idaho Supreme Court
    • 8 Marzo 1905
    ...of criminal cases are to be applied in this case, it becomes our duty to so declare and grant the defendant a new trial. In State v. Nesbit, 4 Idaho 548, 43 P. 66, this court, speaking through Mr. Justice Sullivan, "Conceding that there is circumstantial evidence against defendant tending t......
  • State v. Givens
    • United States
    • Idaho Supreme Court
    • 27 Noviembre 1915
    ... ... & Hawley, Jackson & Walters and R. L. Givens, for Appellant ... Where ... there is no material conflict and the proof offered is ... capable of two constructions, one of which is compatible with ... innocence, the defendant should be released. ( State v ... Nesbit, 4 Idaho 548, 43 P. 66; State v. Howser, ... 12 N.D. 495, 98 N.W. 352; State v. Seymour, 10 Idaho ... 699, 79 P. 825.) ... "Where ... a criminal intent is a necessary ingredient of the offense ... and it appears from the circumstances that such intent did ... not exist, no issue ... ...
  • State v. Allen
    • United States
    • Idaho Supreme Court
    • 8 Mayo 1913
    ...there is a substantial conflict in the evidence and there is any evidence to sustain the verdict, it will not be disturbed. (State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Silva, 21 Idaho 247, 120 P. AILSHIE, C. J. Stewart, J., concurs. Sullivan, J., sat at the hearing but did not partici......
  • State v. Wilson
    • United States
    • Idaho Supreme Court
    • 18 Marzo 1941
    ...it must also be inconsistent with any reasonable theory of his innocence. (State v. Burke, 11 Idaho 420, 427, 83 P. 228; State v. Nesbit, 4 Idaho 548, 556, 43 P. 66; State v. Seymour, 10 Idaho 699, 712, 79 P. State v. Lumpkin, 31 Idaho 175, 178, 169 P. 939; State v. Marcoe, 33 Idaho 284, 28......
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