State v. Webb

• Decision Date: 16 February 1899
• Citation: 18 Utah 441,56 P. 159
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, RESPONDENT v. EDWARD M. WEBB, APPELLANT

56 P. 159

18 Utah 441

THE STATE OF UTAH, RESPONDENT v. EDWARD M. WEBB, APPELLANT

Supreme Court of Utah

February 16, 1899

Appeal from the District Court Millard county, Hon. E. V. Higgins Judge.

Defendant was prosecuted for grand larceny and from a verdict and judgment of guilty, appeals to this court.

Affirmed.

Messrs Warner & Houtz, for appellant.

That it was error to admit the testimony as to the handwriting on certain exhibits having been executed by the same party, and that in this case such evidence was immaterial, see Durnell v. Snowden, 5 Utah, 216, and cases cited; Tucker v. Kellogg, 8 Utah, 11, and cases cited; Rogers v. Ritter, 12 Wall. 320; Strother v Lucas, 6 Peters, 767-8; Moore v. U.S. 91 U.S. 270.

A. C. Bishop, Attorney General, and William A. Lee, Esq., Deputy Attorney General, for respondent.

BASKIN, J. BARTCH, C. J. and CHERRY, Dist. J., concur.

OPINION

BASKIN, J.

The defendant Webb was convicted, on the charge, by information, of stealing one brown steer, branded GN on left side and C on left hip, four years old, the property of Richard Nixon, one black cow branded Mc on the right hip, the property of Samuel McIntyre, one red roan cow branded K on left hip, the property of Benjamin Kinney, one black cow branded on the right ribs, the property of William McIntyre, one red steer, four years old, branded on the left hip, the property of Anthony Stephenson and J. J. Stephenson of Millard county.

1. When the State rested, the defendant requested the court to instruct the jury to return a verdict of not guilty on the ground that the evidence was insufficient to sustain a verdict of guilty. This the court refused to do, and the action of the court is assigned as error.

The testimony in chief disclosed, substantially, the following facts: The five head of cattle charged to have been stolen by the defendant, belonged, as alleged in the information, respectively to Richard Nixon, Samuel McIntyre, Benjamin Kinney, William McIntyre and Anthony and J. J. Stephenson; that the cattle were running on the range near Leamington, Utah; that each of the cattle was branded with its owner's brand; that without having purchased any of these cattle from their owners, the defendant drove them, with some other cattle, from the range where they were running, to Milford, where he and Joseph B. Dusnup, who was a partner of the defendant in the butchering business, slaughtered them and shipped the hides to A. C. Andrews of Nephi; that afterwards J. F. Holbrook, a deputy sheriff, took possession of the hides; that these hides had upon them the brands of the owners of the five head of cattle which were driven from the range by defendant and slaughtered at Milford; that defendant told his partner that he had bought the cattle driven from the range, of N. C. Neilsen, and showed him a written bill of sale of about fifteen head of cattle, with the name of the said Neilsen attached thereto as maker, and the name of Walter Webb subscribed thereto as witness. This instrument was dated at the top in this manner:--Six miles below Leamington, August 27, 1897. This bill of sale was, by the consent of the defendant, introduced in evidence, and marked Exhibit "A." It described the cattle therein mentioned by age, color and brands. The description of four of the animals and their brands were the same as the description and brands, set out in the information, of the four animals last mentioned therein; that defendant in the latter part of August, had a conversation with J. C. Hawley, in which he told Hawley he had just returned from Leamington, or had been to Leamington, where he had bought a bunch of cattle from the Neilsen boys, and in coming down with the cattle had lost some of them.

Two witnesses testified that they had resided at or near Leamington for many years, and knew the people residing there; that they did not know of any such person as N. C. Neilsen. One of these witnesses, Christian Ovesson, testified, as follows: "I have lived in Leamington for about fifteen years; am postmaster, and have been for about ten years; am pretty well acquainted with the people there. Know everybody that lives there. There are some Neilsons living there. Never heard of N. C. Neilsen. Leamington is a small place. No man by the name of N. C. Neilsen lives there."

We think that this evidence tended, strongly, to show the guilt of the defendant. Therefore, the refusal of the lower court to instruct the jury to return a verdict of not guilty was not error. This view is in harmony with the decisions of this court in the cases of State v. Halford, 17 Utah 475, 54 P. 819, and the State v. McCune, 16 Utah 170, 51 P. 818.

In the case of the State v. Halford, supra, this court, Justice Miner delivering the opinion, said: "When there is testimony tending to connect the defendant with the commission of a crime, and show his guilt, the weight to be given it is a question for the jury, and the Supreme Court will not substitute its judgment for that of the jury."

2. After the introduction of the defendant's testimony, evidence on behalf of the state was admitted, over the objection of the defendant, the ground of which was that the evidence so admitted was not in rebuttal of the testimony of the defendant.

It is a general rule of practice, that the testimony in reply should be confined to a rebuttal of the evidence in chief; yet the court may, at its discretion, relax the general rule, and when this is done the action of the court, in that regard, is not assignable as error, unless it affirmatively appears from the record that the party complaining was, by the exercise of such discretion, placed in a position of disadvantage in the further progress of the trial. 1 Bish. Crim. Proc. Sec. 966 (N. 2). 8 Enc. Pl. & Pr. (Title, Examination of Witnesses, p. 131 and 132 and cases cited.

The record does not disclose that the defendant was taken by surprise, or otherwise placed in a position of disadvantage; or that he was denied the opportunity of either contradicting or explaining the testimony complained of, or that by reason of the relaxation of the general rule of practice he was unprepared to do so. The only ground of the objection to this testimony was that it was not in rebuttal of the evidence adduced by the defendant.

The record shows that the defendant introduced evidence in surrebuttal. As no abuse of the court's discretion, in the premises, is shown, the objection under consideration is not tenable.

The defendant testified in his own behalf, in substance, that having received a letter signed N. C. Neilsen, dated and postmarked at Leamington, in which it was stated that the writer understood that the defendant was in the butcher business, and that he had some cattle he would like to sell to defendant, after some further correspondence with the said N. C. Neilsen on the subject, the defendant left Milford for Leamington, which is distant from Milford seventy-five miles, and on the morning of the 25th of August, 1897, when about six or eight miles from Leamington he met and was accosted by a man on horseback, who was a stranger to defendant, and who asked the defendant where he was going, to which the defendant replied that he was looking for a bunch of cattle up the road. Whereupon the stranger asked the defendant if his name was Webb, and having received an affirmative answer introduced himself as Neilsen, and said that he was the man who had been corresponding with defendant regarding the sale of cattle; that this strange man and defendant then went to a bunch of about fifty head of cattle which were being held together by a man who was introduced to defendant, by the name of L. C. Johnson; that the said Johnson was also a stranger to the defendant; that the defendant selected nine head of cattle from the bunch so held, paid for the same and asked for a bill of sale, but as there was no writing material there, this was dispensed with on that day; that as defendant was starting away with the nine head he remarked that he would like to buy some ten or fifteen head more like them, and if they had some dry cows he would purchase them; that Neilsen then made the remark that McIntyre of Leamington was very anxious to trade dry cows for steers, and that it was possible that a trade with him might be made, and if the defendant would come back the next day they would possibly have some more cows; that defendant after driving the nine head home and putting all of them, except four which, on the drive home, in the dark, escaped, in one Kidder's corral, returned the next day, August 26, and bought and paid for nine head more, five of them from Neilsen, and four from Johnson; that having upon his second trip provided himself with pen, ink and paper, upon completing his purchase from these strangers, on the range six miles from Leamington, he wrote two bills of sale, one for the fourteen head bought of Neilsen, and another for the four head obtained from Johnson; that both of these bills were drawn up and signed at the same time.

The first bill of sale was introduced by consent of defendant, by the State in chief, and has been referred to in the first part of this opinion, and has attached to it the signature of N. C. Neilsen as maker and Walter Webb as witness; the other has subscribed to it the signature L. C. Johnson; the first is dated as follows: "Six miles below Leamington, August 27th, 1897," and the other Riverside, August 26th, 1897. In the first bill of sale each head of the cattle mentioned therein is described by their color, age and brands, and in so describing them ten different brands are used, and the respective forms of the brands are traced in the body of said bill. Four of...