State v. Wolfley

• Decision Date: 09 March 1907
• Docket Number: 15,101
• Citation: 75 Kan. 406,89 P. 1046
• Parties: THE STATE OF KANSAS v. JACOB WOLFLEY
• Court: Kansas Supreme Court

89 P. 1046

75 Kan. 406

THE STATE OF KANSAS v. JACOB WOLFLEY

No. 15,101

Supreme Court of Kansas

March 9, 1907

Decided January, 1907.

Appeal from Meade district court; EDWARD H. MADISON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LARCENY--Brands on Cattle--Evidence of Ownership. In a prosecution for larceny the jury have a right to consider the fact that the cattle alleged to have been stolen bore the brand of the complaining witness as some evidence that they were owned by him.

2. INSTRUCTIONS--Consideration of Defendant's Testimony--Burden of Proof. A conviction upon a charge of larceny will not be reversed because in referring to the defendant's story the court instructs the jury that they are to determine from all the facts and circumstances whether his defense is probably true, where in the same instruction they are also told that the defendant is not required to prove his innocence and that if after the consideration of all the evidence in the case, including the defendant's explanation, there exists a reasonable doubt of his guilt he must be acquitted.

3. INSTRUCTIONS--Reasonable Doubt. It is not error to include in an instruction defining the term "reasonable doubt" the statement that it is a doubt for which there is some good reason arising out of the evidence or lack of evidence--a doubt for which the jury are able to find a reason in the evidence or lack of evidence.

Fred S Jackson, attorney-general, and John S. Dawson, assistant attorney-general, for The State; H. J. Bone, of counsel.

A. T. Bodle, jr., G. E. Stockbridge, and Hayden & Hayden, for appellant.

OPINION

MASON, J.:

Jake Wolfley appeals from a conviction upon a charge of stealing six head of cattle. The court concludes after a careful consideration of the briefs and record that no material error is shown. To discuss in detail each assignment made would extend this opinion unduly, and only those thought to be of the most importance will be mentioned specifically.

The complaint that questions were asked which assumed as true certain facts prejudicial to the defendant is unavailing, because the witness had already given evidence supporting such assumption. The objection to the introduction of several diagrams of brands because they were copies of others is not well taken, inasmuch as there was specific testimony that those offered were correct. There was no error in allowing opinions to be given regarding the inferences to be drawn from the appearance of cattle brands, even by witnesses whose experience was not such as to enable them to speak with authority, for they had some special training in the matter--the extent of it went to the weight rather than to the admissibility of their testimony.

Questions were asked of a witness for the prosecution upon cross-examination to which the court sustained objections, and this ruling is assigned as error. The circumstances, however, were unusual. The witness had been examined at considerable length, cross-examined, reexamined, and excused. He was recalled later by the state and asked five additional questions. The court sustained objections to several questions then asked in cross-examination, for the express reason that they had no relation to the additional testimony given and that the whole case had not been opened up. This was within the sound discretion of the court. No request was made for leave to cross-examine further upon the evidence first given.

Among the special instructions asked in behalf of the defendant and refused were seventeen bearing upon the burden of proof and the degree of certainty required for a conviction, seventeen upon the effect of circumstantial evidence, and six upon the necessity of each individual juror being convinced of the defendant's guilt beyond a reasonable doubt before a verdict of guilty could be returned. Most of these instructions, possibly all of them, were correct statements of the law, but no good purpose could have been served by giving all of them to the jury. The charge of the court seems to have included everything on these subjects really necessary to be said.

The only instruction asked the refusal of which, in view of the instructions that were given, sharply presents a debatable question of law reads as follows:

"I further instruct you that any evidence which may have been offered by the state in regard to any brands upon the cattle is only to be considered by you for the purpose of establishing the identity of the cattle in question, but should not be considered by you as proving or tending to in any manner prove ownership of the cattle."

Of this question it is said in volume 1 of Wigmore on Evidence, section 150:

"When an animal is found in B's possession, and the animal bears a brand or other mark, and one of the issues is whether A is the owner of the animal, it is a natural and immediate inference that the animal belongs to the person whose brand it bears, and, if that brand is A's, then to A. This inference, however, while sufficiently probable in the light of practical experience, is in truth a composite one, made up of two steps: First, the inference, from the presence of A's usual mark, that A placed this particular mark--a genuine argument under the present principle, from a trace to the source of the trace; and, secondly, the inference from the fact that A placed it there, to the fact of his ownership of the animal. The latter step of inference is the vital one; it is perhaps not less natural than the former, but it is more serious in its effect. It would seem that the latter step of inference has been rarely conceded by courts, as a matter of common law; though the former step was universally conceded, it was said that the presence of A's brand was evidence of identity (i. e. of the animal being one of those originally branded by A), but not of ownership. This unduly cautious attitude has been generally corrected by legislation. In most of the stock-raising communities the brand on animals is made evidence of ownership; though in order to encourage registration and thus prevent confusion the rule is applied only to brands duly registered by law."

We regard it as clear that where an animal is found bearing a certain brand a just inference may be drawn that it belongs to the person who uses such brand, and that therefore in the absence of any statute on the subject the jury may treat the brand as evidence of ownership. Moreover, fewer decided cases deny this proposition and more support it than...